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Johnson v. State

Court of Criminal Appeals of Tennessee, Jackson

January 31, 2017


          Assigned on Briefs: November 1, 2016

         Appeal from the Criminal Court for Shelby County No. 09-06118 James C. Beasley, Jr., Judge

         The Petitioner, Mahlon Johnson, appeals the denial of post-conviction relief for his convictions for sexual battery and aggravated assault. On appeal, he argues that he received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court.

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

          Constance Wooden Alexander, Memphis, Tennessee, for the Petitioner, Mahlon Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Amy P. Weirich, District Attorney General; and Ann Schiller, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams and J. Ross Dyer, JJ., joined.



         The Petitioner was indicted by the Shelby County Grand Jury for two counts of aggravated rape, one count of aggravated assault, and one count of aggravated burglary. State v. Mahlon Johnson, No. W2011-01786-CCA-R3-CD, 2013 WL 501779, at *1 (Tenn. Crim. App. Feb. 7, 2013). The charges stemmed from an altercation that occurred on October 31, 2008, between the Petitioner and his wife, the victim. Id. at *1. This court summarized the facts underlying the Petitioner's charges in its opinion on direct appeal. Id. at *1-8. In short, the Petitioner and the victim had been separated at the time of the altercation, and the victim was at home asleep when she was awakened during the night by the Petitioner, who did not live in the home. Id. at *1. The victim testified that the Petitioner accused the victim of cheating on him and then became aggressive, eventually raping the victim both vaginally and anally, as well as brutally assaulting her. Id. at *2.

         The State pursued two aggravated rape charges, and the jury returned guilty verdicts of the lesser included offense of sexual battery on both counts. The jury acquitted the Petitioner of aggravated burglary but found him guilty of aggravated assault. The trial court sentenced the Petitioner to an effective sentence of twenty-seven years in the Tennessee Department of Correction. The Petitioner appealed, claiming insufficiency of the evidence, failure to merge his convictions, double jeopardy violations, and improper sentencing. On direct appeal, this court affirmed the Petitioner's convictions and sentence.

         The Petitioner filed a pro se petition for post-conviction relief on November 13, 2013, alleging that his two trial attorneys provided ineffective assistance of counsel on numerous grounds. The post-conviction court determined that the Petitioner had a colorable claim and appointed counsel on November 14, 2013. Petitioner's post-conviction counsel did not file an amended petition, and an evidentiary hearing was held on February 26, 2016.[1]

         Post-Conviction Hearing.

         At the post-conviction hearing, the Petitioner testified that he met with one of his trial attorneys twice before trial and that he did not meet his other trial attorney until the day of trial. The Petitioner said that one of his issues with trial counsel was that the Petitioner was "indicted up on the wrong indictment" for his sexual battery conviction and that "it was invalid due to [the] statutory spouse exclusion." The Petitioner testified that he believed spousal rape was valid under Tennessee law. The Petitioner also testified that counsel failed to include certain issues in his motion for new trial and failed "to merge the sexual battery and the aggravated assault conviction together, because it all happened in one continuous act."

         The Petitioner acknowledged that he was charged with two counts of aggravated rape and that, considering the notice of impeachment and notice of enhancement factors filed against him, he could have received up to sixty years for each count of rape as a career offender. The Petitioner testified that he also believed he should not have received consecutive sentences and that his aggravated assault charge should have been an assault charge because he never used a weapon. The Petitioner confirmed that trial counsel was ineffective for failing to include these issues in his motion for new trial. However, when asked if he was pleased with the way trial counsel tried his case, the Petitioner responded that "the case, ...

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