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Harshaw v. State

Court of Criminal Appeals of Tennessee, Knoxville

March 24, 2017


          Assigned on Briefs January 21, 2016

         Direct Appeal from the Criminal Court for Knox County No. 103023 Bob R. McGee, Judge No. E2015-00900-CCA-R3-PC

         The Petitioner, Ronnie Lamont Harshaw, pled guilty to two counts of attempted first degree murder, Class A felonies; three counts of aggravated assault, Class B felonies;[1] reckless endangerment by firing into an occupied habitation, a Class C felony; two counts of being a convicted felon in possession of a firearm, Class D felonies; and two counts of employing a firearm during the commission of a dangerous felony, Class C felonies. He received an effective sentence of thirty-six years. The Petitioner filed a petition for postconviction relief, alleging that his trial counsel was ineffective and that his guilty pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the Petitioner appeals. On appeal, the Petitioner also argues that the criminal gang enhancement statute, which was applied to increase his aggravated assault convictions from Class C felonies to Class B felonies, is unconstitutional. Upon review, we conclude that pursuant to State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016), the criminal gang enhancement statute is unconstitutional; therefore, we must reverse the judgments for the aggravated assault convictions in counts three, four, and five in case number 100379; vacate the criminal gang enhancements in those convictions; and remand for entry of judgments reflecting that each aggravated assault conviction is a Class C felony with a sentence of fifteen years. The Petitioner's total effective sentence remains the same. The judgments of conviction are affirmed in all other respects.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part, Reversed in Part; Case Remanded.

          Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, Ronnie Lamont Harshaw.

          Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Charme Allen, District Attorney General; and TaKisha Fitzgerald, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.



         I. Factual Background

         In a multi-count indictment, the Petitioner was charged with eleven offenses, [2] and he faced a potential total sentence of 140 years. At the guilty plea hearing, the State recited the following factual basis for the Petitioner's pleas:

[O]n September 18th, 2012, [the Petitioner] was married to a Trisha Harshaw. . . . [T]hey were separated and . . . there was an Order of Protection in place preventing [the Petitioner] from assaulting or threatening any type of violence towards Trisha Harshaw.
The proof would be that Ms. Harshaw lived at an apartment complex. She was there at the apartment with a number of people in the apartment, to include her foster daughter, the foster daughter's - that being Kayla Thompson and her husband, as well as the kids, who would be under the age of 18. The proof would be that [the Petitioner] started calling - or calling Ms. Trisha Harshaw's cell phone.
At one point in time Kayla Thompson picked up the phone recognizing the number [as the Petitioner's] number and just heard rain on the other end. And it was raining that night.
Further proof would be that next [the Petitioner] began sending text messages to Trish Harshaw, threatening messages telling her that he was on his way over. She needs to hit the button, answer the phone.
Eventually he gets over to the apartment along with two other individuals and he begins banging on the door. At one point in time one of the members inside the house, they look outside. They see his face. Additionally, they're able to identify his voice. A short time after this is when bullets begin to pierce the window coming inside the apartment.
Further proof would be that Ms. Thompson was injured by some debris, probably some glass from the shattered window.
Further proof would be that they did report this to the police. The police began investigating this case, were able to locate a house or an apartment that [the Petitioner] stayed at over in Walter P. Taylor Homes with a Ms. Lisa Harris, and went to that apartment complex. In the bedroom they found a number of unspent rounds of ammunition, and these rounds of ammunition would be the same type of - same caliber, same type of the empty shell casings that were left there outside of the apartment complex, along with one unfired spent - one unfired round that was outside of the apartment complex.
Additionally, while talking to Ms. Lisa Harris, the officers talked to her about the type of - whether or not [the Petitioner] had a gun and she was able to identify a very distinctive gun which he had. And this very distinctive gun is the same type of gun that fired this type of ammunition. It's a Carbine rifle, and that's just not very prevalent.
Further proof would be that - and this was the type of rifle that was used to shoot into the apartment complex.
Further proof would be that [the Petitioner] does have at least two prior convictions involving force and violence, that being the robbery conviction and the aggravated assault conviction . . . . Additionally, [the Petitioner] has a number of other convictions.

         The trial court specifically asked if the Petitioner was "stipulating [to] the gang enhancement provisions." Trial counsel acknowledged that the enhancement was part of the plea agreement. The State recited the factual basis for the gang enhancement:

[I]f called upon in a sentencing hearing our proof would be that [the Petitioner] is a member of - or at the time was a member of the Vice Lords. He is documented by the Knox County Sheriff's Department as being a member of Vice Lords. People - his associates, his friends, Trish Harshaw, would identify him as being a member of the Vice Lords at that time.

         The State recited further proof supporting the application of the gang enhancement.

         The plea agreement provided that the Petitioner would receive a total effective sentence of thirty-six years. Further, pursuant to the plea agreement, the State agreed not to refer the cases to the federal authorities.

         Following the State's pronouncement, the trial court asked the Petitioner if he was under the influence of any substance(s) that might affect his understanding of the plea agreement, and the Petitioner said that he was not. The Petitioner agreed that the State had recounted the plea agreement as he understood it. The trial court asked if the Petitioner was aware he was pleading outside his range, if he had discussed it with his attorney, and if it was the Petitioner's desire to do so. The Petitioner responded affirmatively, stating that he understood the plea agreement and that he had discussed it with his attorney. The Petitioner acknowledged that he was aware of the rights he was waiving by entering guilty pleas. He said that he was entering the guilty pleas "freely, and voluntarily, and knowingly" and that he had not been threatened or coerced into entering the pleas. The Petitioner further said that he was satisfied with counsel's performance. Following the colloquy with the Petitioner, the trial court accepted the plea agreement.

         At the post-conviction hearing, the Petitioner testified that he felt compelled to plead guilty because his trial counsel was not adequately prepared for trial, which was scheduled to be held approximately one week after the guilty plea hearing. The Petitioner said he met with trial counsel four or five times prior to the guilty plea hearing, but they had "no communication." Trial counsel told the Petitioner about the State's plea offer but did not discuss potential trial "tactics" with him. The Petitioner said that approximately two months prior to trial, he and counsel met at the detention facility, and counsel showed him the presentments and a motion for discovery. The Petitioner acknowledged trial counsel showed him audio and video recordings that counsel had obtained from the State. The recordings included the statements of the Petitioner's ex-wife, Trisha Harshaw; Kayla Thompson; Braden Thomas; and Jennifer Raff. The Petitioner said that he and counsel did not discuss the contents of the statements and that trial counsel did not bring him any "paper documents."

         The Petitioner complained that trial counsel failed to interview Sherry Robinson, Danielle Davis, and Reba Turner. The Petitioner said that the witnesses would have testified that Harshaw and Thompson came to Walter P. Taylor Homes where he was staying, and Harshaw began "hitting on" him. The Petitioner said that Harshaw asked him to come to her car to sign divorce papers but that when he arrived at the car, he learned she did not have the divorce papers with her. The Petitioner opined that the testimony would have been beneficial to his defense.

         The Petitioner said that he gave trial counsel the names and telephone numbers of the three potential witnesses. Approximately three weeks before trial, trial counsel brought a private investigator to a meeting with the Petitioner. The investigator said that he was working on a murder case and asked to speak with the Petitioner later without counsel. The Petitioner agreed, but the investigator never returned. The Petitioner said that Robinson and Turner told him they were not contacted by trial counsel or the investigator. The Petitioner did not know whether trial counsel or the investigator ever spoke with Davis.

         The Petitioner said he told trial counsel that he had spoken with Harshaw and that she was willing to testify that the Petitioner was not the person who shot into her house. When post-conviction counsel asked if the Petitioner discussed with trial counsel ways to impeach the State's witnesses, the Petitioner responded that he told trial counsel Thompson had a "drug habit" and requested that trial counsel obtain her medical records. He did not, however, think trial counsel complied. The Petitioner further asserted that he thought the victim's medical records "would also not show any gunshot wounds as described."

         The Petitioner averred that trial counsel did not perform any pretrial investigation, noting that he never saw any documentation of the actions counsel was taking regarding the case. The Petitioner acknowledged that trial counsel said the private investigator had spoken with Harshaw, but the Petitioner complained that counsel did not reveal what was learned during that conversation. The Petitioner did not know whether trial counsel or the investigator visited the crime scene but said that he and trial counsel never discussed any evidence regarding the crime scene other than trial counsel showing the Petitioner "pictures off the disk."

         The Petitioner asserted that he and trial counsel never discussed any potential defenses concerning the Petitioner's state of mind or intent at the time of the crimes. The Petitioner said that he had sickle cell anemia, depression, anxiety, and attention deficit hyperactivity disorder (ADHD). He began taking medication for the conditions when he was incarcerated, and approximately one week prior to entering the guilty pleas, the medication was increased. Around that time, trial counsel brought the plea agreement to the Petitioner while he was in a holding cell and told him to sign it. The Petitioner said that he could not read well and that he did not understand some of the words in the plea agreement. Trial counsel did not read the plea agreement to him or explain it. Despite not reading or understanding the agreement, the Petitioner signed it.

         The Petitioner said that he requested a mental evaluation but that an evaluation was never performed. The Petitioner opined that if the evaluation had been performed, trial counsel would have known about the Petitioner's "learning disability" and given the Petitioner "more help understanding the law and the trial preparation." The Petitioner also wrote letters complaining about trial counsel to the Board of Professional Responsibility.

         The Petitioner said he was with two other men during the shooting, but he did not have the gun when he was apprehended. Therefore, the Petitioner asked trial counsel to file a motion to suppress evidence, namely the gun that was used in the crime. Trial counsel did not file a motion to suppress.

         The Petitioner said his case was set for trial in February 2013, but it was rescheduled until June 2013. The Petitioner maintained that trial counsel had visited him only once before the February court date. Thereafter, trial counsel visited ...

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