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Sowell v. State

Court of Criminal Appeals of Tennessee, Nashville

February 7, 2017

HERMAN SOWELL, JR.
v.
STATE OF TENNESSEE

          Assigned on Briefs January 10, 2017

         Appeal from the Circuit Court for Rutherford County Nos. F-67824 & F-69706 David M. Bragg, Judge

         In 2011, the Petitioner, Herman Sowell, Jr., pleaded nolo contendre to attempted aggravated rape, attempted aggravated sexual battery, and incest, and the trial court sentenced him to fifteen years, at 30%. The trial court ordered a "time served" sentence followed by probation. In April 2013, after the statute of limitations had expired, the Petitioner filed a petition for post-conviction relief, using a separate case number but challenging as ineffective the representation of his counsel for the November 2011 case. At some point thereafter, the trial court revoked the Petitioner's probation. The Petitioner amended his petition for post-conviction relief to challenge his November 2011 convictions. The post-conviction court summarily dismissed the post-conviction petition. We affirm the post-conviction court's judgment.

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

          Herman Sowell, Jr., Pikeville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Jennings H. Jones, District Attorney General; and Dana S. Minor, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE

         I. Facts

         The record in this case is sparse, and it does not contain the Petitioner's judgments of conviction. In the Petitioner's brief, he asserts that, on November 27, 2012, he pleaded guilty to attempted aggravated rape, attempted aggravated sexual battery, and incest. From the petition for post-conviction relief, it appears that the Petitioner identifies this case in his April 8, 2016 post-conviction petition as "F-67824." In the petition he listed the dates of his judgment of conviction as November 2011 and stated that the trial court sentenced him to fifteen years, to be served at 30%.

         The petition also states that the Petitioner had previously filed a petition for postconviction relief in April 2013, which was still pending and never dismissed by the Rutherford County Circuit Court. He stated that he raised grounds of ineffective assistance of counsel and the State's withholding of exculpatory evidence in that petition. He asked the post-conviction court to allow him to amend his previously filed postconviction petition since it had not yet been dismissed.

         The petition lastly alleged that the Petitioner had received the ineffective assistance of counsel during his plea agreement and that his guilty plea was unknowingly and involuntarily entered. The petition set out facts supporting this contention, which included that the Petitioner said that he violated his probation in April 2013. At that time, his attorney advised him to "drop his post-conviction [petition]" and that, if he did so, the State would not seek jail time for his violating of his probation.

The trial court summarily dismissed the petition. It found:
[]The Court entered a Violation of Probation Order on November 15, 2013. This was an agreed revocation, and therein, the Defendant withdrew his Petition for Post-Conviction Relief ...

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