Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs October 19, 2016
from the Circuit Court for Marshall County No. 2014-CR-14
Forest A. Durard, Jr., Judge.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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.
Everett Williams, J., delivered the opinion of the court, in
which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
EVERETT WILLIAMS, JUDGE.
AND PROCEDURAL HISTORY
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.
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.
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
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, ...