Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs January 21, 2016
Appeal from the Criminal Court for Knox County No. 103023 Bob
R. McGee, Judge No. E2015-00900-CCA-R3-PC
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; 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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Affirmed in Part, Reversed in Part; Case Remanded.
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.
McGee Ogle, J., delivered the opinion of the court, in which
Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.
MCGEE OGLE, JUDGE
multi-count indictment, the Petitioner was charged with
eleven offenses,  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
[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
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
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
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.
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
State recited further proof supporting the application of 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.
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.
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."
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.
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.
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."
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."
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.
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.
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
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