Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 15, 2017
from the Criminal Court for Davidson County No. 2011-B-1498
Seth W. Norman, Judge
pleading guilty to one count of aggravated child abuse,
Petitioner sought unsuccessfully to withdraw his guilty plea.
Subsequently, Petitioner sought post- conviction relief on
the basis of ineffective assistance of counsel, among other
things. The post-conviction court denied relief, and
Petitioner appeals. After a review, we affirm the judgment of
the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Lords, Nashville, Tennessee, for the appellant, Mitchell
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; Glenn R. Funk,
District Attorney General; and Jennifer Smith, Assistant
District Attorney General, for the appellee, State of
Timothy L. Easter, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J.,
TIMOTHY L. EASTER, JUDGE
was indicted in May of 2011 by the Davidson County Grand Jury
for two counts of aggravated child abuse and two counts of
aggravated child neglect after his two-year-old son received
second degree burns from scalding water in a bathtub. On
January 28, 2013, Petitioner entered a best interest, open,
guilty plea to one count of aggravated child abuse in
exchange for the dismissal of the remaining counts of the
indictment. Prior to sentencing, Petitioner attempted to
withdraw the plea. The trial court held a hearing and denied
the motion, finding that Petitioner did not provide
sufficient justification to facilitate the withdrawal of his
guilty plea. After a sentencing hearing, Petitioner was
sentenced to seventeen years as a violent offender.
direct appeal, Petitioner challenged the trial court's
denial of the motion to withdraw his guilty plea. See
State v. Mitchell Nathaniel Scott, No.
M2013-01169-CCA-R3-CD, 2014 WL 1669964, at *1 (Tenn. Crim.
App. Apr. 25, 2014), perm. app. denied (Tenn. Sept.
18, 2014). This Court affirmed the denial of the motion,
determining that the trial court properly examined the
factors set forth in State v. Phelps, 329 S.W.3d 436
(Tenn. 2010). This Court determined that "the balance of
the factors did not weigh in favor of [Petitioner]" and
the trial court properly held that Petitioner "did not
provide sufficient justification for the withdrawal of his
plea." Mitchell Nathaniel Scott, 2014 WL
1669964, at *7.
then filed a timely petition for post-conviction relief in
which he alleged that he received ineffective assistance of
counsel and that the State withheld exculpatory evidence.
Counsel was appointed and an amended petition was filed. The
amended petition alleged that trial counsel was ineffective
by: (1) failing to meet with Petitioner; (2) failing to
properly investigate the case prior to trial; (3) failing to
interview witnesses; and (4) failing to file a motion to
withdraw the guilty plea within a reasonable time of being
instructed to do so by his client.
hearing on the petition for post-conviction relief,
Petitioner testified that he informed trial counsel of a
potential problem with the indictment prior to trial.
Specifically, Petitioner was concerned about the fact that he
was charged in a four-count indictment when "the
incident only occurred one time." He asked trial counsel
to "fix" the indictment, but trial counsel informed
him that the "DA was going off of his own theories of
the incident." Petitioner admitted that trial counsel
explained to him that the indictment reflected alternative
counts and that he did not ask any clarifying questions.
counsel provided Petitioner with discovery in early summer of
2012, but they did not discuss the contents of the discovery
until "like right before trial." They discussed
Petitioner's "other cases" that were pending at
the time. Petitioner explained that trial counsel was
"going with the common-sense approach about the case,
" meaning that trial counsel was going to try to show
that the burns on the victim were accidental rather than
intentional. Petitioner recalled that trial counsel explained
the defense to him by telling him that the State
"couldn't prove intent." Petitioner claimed
that he was unhappy with this trial strategy, and asked trial
counsel if he could get his sister, girlfriend, cousin, and
brother to testify. To Petitioner's knowledge, trial
counsel never interviewed these witnesses. Petitioner also
asked trial counsel to get "the hot water maintenance
report from where . . . first they repaired the hot water
heater, and then they replaced it a few weeks later."
According to Petitioner, trial counsel stated that the
maintenance records were not "relevant to the case"
even though the police department essentially conceded that
there was a malfunction with the water heater.
testified that trial counsel did not explain the
ramifications of the guilty plea. According to Petitioner, on
the morning of trial, while seated at the defense table, he
looked at trial counsel and told him that he wanted to plead
guilty. Petitioner did not recall if trial counsel went over
the plea petition or if he read it in its entirety.
Petitioner thought that he discussed a plea agreement with
trial counsel but could not "recall the actual
conversation." Petitioner explained that entering the
plea was his attempt to get out of going to trial because he
did not think that trial counsel was prepared for ...