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Johnson v. State

Court of Criminal Appeals of Tennessee, Nashville

March 1, 2017

KEVIN LEE JOHNSON
v.
STATE OF TENNESSEE

          Assigned on Briefs October 19, 2016

         Appeal from the Circuit Court for Marshall County No. 2014-CR-14 Forest A. Durard, Jr., Judge.

         The Petitioner, Kevin Lee Johnson, entered a guilty plea on April 17, 2013, for failure to appear, a Class E felony. The Petitioner filed a post-conviction petition challenging his conviction for failure to appear and also challenging a 2012 conviction for operating a vehicle after having been declared a motor vehicle habitual offender ("MVHO"). The post-conviction court dismissed both claims. On appeal, this court affirmed the dismissal of the part of the petition related to the 2012 conviction but reversed and remanded for a hearing on the part of the petition related to the conviction for failure to appear. See Kevin Lee Johnson v. State (Kevin Lee Johnson I), No. M2014-01166-CCA-R3-PC, 2015 WL 2445817, at *3 (Tenn. Crim. App. May 22, 2015) no perm. app. filed. The post-conviction court held an evidentiary hearing on the allegation that the Petitioner received the ineffective assistance of counsel during his guilty plea to the charge of failure to appear, and the post-conviction court denied the petition, finding neither deficiency nor prejudice. Discerning no error, we affirm the denial of the petition.

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

          Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Kevin Lee Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Robert J. Carter, District Attorney General; and Drew Wright, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         Underlying Convictions

         The conviction at issue in this appeal was the result of the Petitioner's failure to appear for a court date at which he was to turn himself in to begin serving his prison sentences for four 2012 Marshall County convictions, including the MVHO conviction.

         On December 19, 2012, the Petitioner pled guilty to one count of theft of property valued over $1, 000 or more but less than $10, 000, a Class D felony. See T.C.A. §§ 39-14-103(a); 39-14-105(a)(3) (2010). The Petitioner simultaneously pled guilty to one count of reckless endangerment with a deadly weapon, a Class E felony; one count of resisting arrest, a Class A misdemeanor; and one count of driving after having been declared a MVHO, a Class E felony. See T.C.A. §§ 39-13-103(b)(2); 39-16-602(a); 55-10-616(b). The Petitioner's claims in the instant appeal relate in part to errors he alleges his trial counsel committed with respect to the MVHO conviction.

         According to the prosecutor's recitation of the factual bases for these pleas at the plea hearing, the theft conviction was the result of the burglary of an automotive shop on March 20, 2012, in which two handguns and a four-wheeler were stolen. A confidential informant told police he had purchased one of the guns from the Petitioner, and the informant allowed police to record a call in which he negotiated with the Petitioner for the purchase of the four-wheeler, which the Petitioner then moved to a new location to facilitate the purchase.

         The other offenses occurred on May 13, 2012, when the Petitioner was driving a white Crown Victoria and attempted to force a young woman to pull over on the side of the road by flashing a white light at her in imitation of a police vehicle. The woman called 911 and was told by the operator to keep driving. The Petitioner then passed and blocked her vehicle, got out of his car, and told her that she was "supposed to stop for an officer of the law." She managed to drive away, and the Petitioner then began following a different vehicle driving in the opposite direction. He successfully forced the driver to stop, demanded the driver's license and registration, and was in the process of searching the driver's trunk when police, ...


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