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Clay v. State

Court of Criminal Appeals of Tennessee, Knoxville

November 29, 2016

DARIEN B. CLAY
v.
STATE OF TENNESSEE

          Assigned on Briefs Date: September 20, 2016

          Appeal from the Criminal Court for Hamilton County No. 294910 Barry A. Steelman, Judge

          The Petitioner, Darien B. Clay, appeals from the Hamilton County Criminal Court's denial of his petition for post-conviction relief from his guilty plea convictions for aggravated robbery, attempted aggravated robbery, two counts of theft of property valued at $1, 000 or more but less than $10, 000, theft of property valued at $10, 000 or more but less than $60, 000, aggravated burglary, burglary of a business, and statutory rape, for which he received an effective thirteen-year sentence. On appeal, he contends that the post-conviction court erred in denying relief on his ineffective assistance of counsel claim and that the court erred in determining that the Petitioner's guilty plea was knowingly and voluntarily entered. We affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Darien B. Clay, Clifton, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Neal Pinkston, District Attorney General; Lance Pope, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Alan E. Glenn, J., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The Petitioner's indictments and judgments are not in the appellate record. The guilty plea petition, which was received as an exhibit at the post-conviction hearing, reflects that he was charged in nine indictments with eighteen counts. It likewise reflects that the plea agreement disposed of all charges, with the Petitioner pleading guilty to eight counts and the State agreeing to the dismissal of ten. In the plea petition, the Petitioner agreed to an eight-year sentence for the aggravated robbery conviction, and the transcript of the plea hearing, which was received as an exhibit at the post-conviction hearing, reflects that the sentence was to be served at 85% and that the remaining five years of the sentence were to be served at 30%.

         At the post-conviction hearing, the Petitioner testified that he met with counsel "probably twice" in the three months the Petitioner was released on bond. He said that he wanted a trial and was not considering signing a plea agreement involving incarceration. The Petitioner said that shortly before he entered his pleas on June 23, 2014, he asked counsel what counsel thought would happen if the Petitioner went to trial and that counsel stated he thought the Petitioner would "lose." The Petitioner said that he asked counsel about the options and that counsel stated he could obtain a plea offer. The Petitioner said that he asked counsel how long he had to consider this alternative and that counsel said the Petitioner had "less than about 30 minutes" because the Petitioner was scheduled for trial the next day. The Petitioner said he still wanted to go to trial, but he said counsel's statement that the Petitioner would lose "kind of made me think otherwise." He said counsel told him the court's Tennessee Rule of Evidence 404(b) ruling combined the Petitioner's charges and "made it look even worse." The Petitioner did not think he and counsel had discussed a plea agreement before the day he pleaded guilty.

         The Petitioner testified that counsel told him the plea offer specified an effective sentence of eight years, which consisted of eight years and five years to be served concurrently at 30%. The Petitioner said counsel estimated that the Petitioner would serve about two years in prison and that he might be released earlier if he participated in "programs." The Petitioner said he expressed concern to counsel about missing his son's childhood and not wanting to be in prison for five or six years. The Petitioner said that after counsel estimated the prison term around two years, he wanted to accept the plea offer because "two years really wasn't nothing [sic] at all."

         The Petitioner acknowledged his signature on the plea petition and said he had signed it at counsel's office after being in court on the day he later entered the plea. The Petitioner said that counsel only provided him with the last page of the document and that he had not seen the portion of the plea petition containing the disposition of the charges and the respective sentences until his mother mailed it to him after he was in the Tennessee Department of Correction (TDOC). He said he did not go over this portion of the plea petition with counsel before he entered his pleas. He said they returned to court to enter the pleas. When asked why he did not tell the court at the plea hearing that Indictment 290005 was supposed to be dismissed pursuant to the plea agreement when the State announced that the Petitioner would plead guilty to Count 1 of that indictment, he said he had not been informed he could speak "out of turn." He said, "I just played my part and did what I was told." The Petitioner recalled standing before the court and reviewing the terms of the plea agreement and the judge's asking him questions about the agreement. The Petitioner said, however, that he did not understand the terms of the agreement.

         The Petitioner testified that counsel told him he was "pleading out to a universal plea." The Petitioner said that based upon the advice he received from counsel, he understood this to mean all of his sentences would be concurrent. He said, however, that after he reached the penitentiary, he learned that a "universal plea" was something recognized in federal courts but not in Tennessee courts and that his "out date" was in 2027. He said he did not understand when he entered his pleas that some of his sentences were to be served consecutively. He acknowledged that the transcript of the plea hearing reflected that some sentences were to be served consecutively but stated that he did not say anything during the hearing because he did not think he could "blurt out" that he had not agreed to consecutive sentences.

         The Petitioner testified that after he learned about the length of his sentences, he called his mother, who contacted counsel. The Petitioner said his mother and counsel exchanged text messages, that counsel said he would "get it fixed, " that counsel stopped communicating with the Petitioner's mother, and that his mother contacted the "board of professionals."

         The Petitioner testified that he understood he would face a trial on all of the charges if he received post-conviction relief. He said this was his "plan." He said he had never pleaded guilty to another offense before the date on which he pleaded guilty in the present case.

         The Petitioner testified that he had two codefendants in the March 2011 aggravated robbery to which he pleaded guilty. He agreed that he had been arrested on additional charges while the aggravated robbery charge was pending, that he failed to appear for court, and that his bond had been revoked. He said that he had an attorney before counsel and that the first attorney never told him that aggravated robbery required 85% service of the sentence. He said he decided against having the first attorney continue representation after the attorney told him he would rather have the State's case than the Petitioner's case. He thought he filed a bar complaint against this attorney and said he came before the trial court about retaining a different attorney. He agreed he had a pending trial date when counsel assumed representation, and he thought the judge said a new attorney would have to be prepared for the scheduled trial date.

          The Petitioner testified that he met with counsel twice while he was incarcerated and twice while he was on bond. He said counsel never told him that he would have to serve 85% of an aggravated robbery sentence. When shown the plea agreement, he said that notwithstanding the language indicating that for aggravated robbery, he was to serve eight years with a minimum of 85%, he thought he would serve 30% because he was a Range I offender. He acknowledged that although he had not seen this portion of the document when he pleaded guilty, the trial judge had reviewed it line by line at the plea hearing. He acknowledged that the transcript of the plea hearing reflected that the assistant district attorney had stated that the effective sentence pursuant to the plea agreement was thirteen years, with the first eight years to be served at 85% and the remaining time as a Range I offender with 30% release eligibility. He also acknowledged that he stood at the podium when the trial judge advised him he would serve 85% for the aggravated robbery conviction and when counsel represented to the court that he had advised the Petitioner accordingly. The Petitioner said that he had responded, "Yes, sir, " when asked by the judge if he understood the plea agreement ...


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