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Locke v. State

Court of Criminal Appeals of Tennessee, Knoxville

April 19, 2017

CHRISTOPHER LOCKE
v.
STATE OF TENNESSEE

          Session Date: September 20, 2016

         Appeal from the Circuit Court for Blount County Nos. C18813, C23000 David Reed Duggan, Judge

         Petitioner, Christopher Locke, pleaded guilty to one count of incest and received a three-year sentence of probation after the trial court denied judicial diversion. State v. Christopher Locke, No. E2010-01965-CCA-R3-CD, 2011 WL 3446442 (Tenn. Crim. App., Aug. 9, 2011), perm. app. denied (Tenn., Nov. 16, 2011). Petitioner appeals the denial of his petition for post-conviction relief as being untimely. Additionally, Petitioner asserts that the trial court erred by failing to conduct an independent inquiry regarding a conflict of interest between trial counsel and post-conviction counsel. Having reviewed the record, the applicable law, and the briefs of the parties, we affirm the judgment of the post-conviction court.

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

          Mabern E. Wall, Knoxville, Tennessee (on appeal) Raymond Mack Garner, District Public Defender; and George Houston Waters, Assistant Public Defender (at trial), for the appellant, Christopher Locke.

          Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Matthew Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Procedural history

         The procedural history of this case is somewhat convoluted and requires a detailed recitation in order to address the issues on appeal.

          On July 12, 2010, Petitioner pleaded guilty to one count of incest and received an agreed upon sentence of three years. A sentencing hearing was conducted on September 3, 2010, to determine the manner of service of Petitioner's sentence and Petitioner's request for judicial diversion. The trial court denied Petitioner's request for judicial diversion. The trial court sentenced Petitioner to three years to be suspended to supervised probation and ordered Petitioner to register as a sex offender. The judgment was entered on September 13, 2010. A panel of this court affirmed the trial court's denial of judicial diversion on direct appeal. The panel noted, "[i]n his analysis, the trial judge placed considerable weight on the fact that [Petitioner] smoked marijuana in the time between his guilty plea and the sentencing hearing." Id. at *5. The panel concluded that the trial court did not abuse its discretion in determining that Petitioner was not amenable to correction. The facts underlying Petitioner's conviction were summarized by this court as follows:

On or about February 15, 2009, the [petitioner] engaged in sexual intercourse with his half-sister. At the time of the offense, the defendant was nineteen years old and the victim was fifteen years old. The victim became pregnant and gave birth to a child on November 4, 2009. The child was born with birth defects which the doctors determined were indicative of incest. DNA tests revealed that the father of the child was either the victim's father or brother. It was then discovered that the defendant was the father of the child. Upon this discovery, both the defendant and the victim admitted to engaging in sexual intercourse with one another. The defendant stated that he knew what he did was unacceptable.
The offense occurred at the home of the defendant, where he lived with his mother and the victim. The victim stated that she and the defendant were alone at the house one day and were "roughhousing" around. She said that this led up to them having sexual intercourse. In a taped interview with the defendant, he admitted to having sex with the victim "at least three or four times." The defendant expressed remorse about the incident in question and said he knew he must take responsibility for it.

Id. at *1.

         An assistant public defender with the Blount County Public Defender's Office represented Petitioner at his plea submission hearing and the sentencing hearing ("trial counsel"). On January 4, 2011, while Petitioner's direct appeal was pending, trial counsel filed a "Motion for Modification of Sentence" pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. On June 21, 2013, trial counsel informed the trial court, "I'm basically wanting [Petitioner] to be able to post-convict me . . . [a]nd I didn't know whether Your Honor . . . would rather me file the post-conviction motion and ask that other counsel be appointed or whether you would rather go ahead and appoint other counsel and have them . . . ." The trial court appointed new counsel ("newly appointed counsel") to represent Petitioner.

         Newly appointed counsel filed a petition for writ of error coram nobis on July 18, 2013. During an appearance on July 22, 2013, newly appointed counsel advised the trial court that she had filed a coram nobis petition rather than a post-conviction petition because more than one year had elapsed since the entry of the final judgment. On August 8, 2013, newly appointed counsel filed a petition for writ of audita querela. The record does not indicate the disposition on the petition for writ of error coram nobis or writ of audita querela. On January 27, 2014, newly appointed counsel advised the trial court, "[t]here is a Rule 35 pending in this case. What we think we need to do is reset this so that Your Honor can rule on a Rule 35 and then we can proceed with a post-conviction." The trial court denied Petitioner's Rule 35 motion on February 28, 2014, more than three years after it was filed.

         On May 23, 2014, Petitioner filed a petition for post-conviction relief, alleging the ineffective assistance of counsel, through another assistant public defender with the Blount County Public Defender's Office ("post-conviction counsel"). Paragraph 11 of the petition states in part, "[Petitoner] has communicated to [post-conviction counsel] that he will waive any objection to a potential conflict of interest because [post-conviction counsel] and his [t]rial [c]ounsel work in the same office." The petition is verified under oath and signed by Petitioner.

         On September 25, 2014, the post-conviction court filed a preliminary order, stating in pertinent part: "It is noted that the previous attorney who represented Petitioner, and who is alleged to have been ineffective in representation, is also an employee of the Public Defender's Office, but according to the [p]etition, Petitioner has waived any conflict of interest in this matter."

         Post-conviction hearing

         On September 28, 2015, the post-conviction court held a hearing to address the tolling of the statute of limitations. Trial counsel testified that she filed a timely notice of appeal from the denial of judicial diversion. She also filed the "Motion for Modification of Sentence" within the "120-day time period allotted . . . under Rule 35(f)." She testified that she did not immediately set the motion for a hearing because she wanted to "try to develop a history . . . of [Petitioner's] compliance with probation." The filing of the Rule 35 motion was following a communication between trial counsel and the trial judge, in which the trial judge expressed that he was "second-guessing" his decision to deny judicial diversion.

         Trial counsel testified that she informed Petitioner that his sentence was affirmed on direct appeal. She testified that she did not advise Petitioner at that time that he had one year in which to file a post-conviction petition. Trial counsel communicated with the assistant district attorney handling the case, who expressed some willingness to resolve the matter by agreement. Trial counsel realized in late 2012, "maybe November 2012, " that judicial diversion was not available under Rule 35. Trial counsel testified that after she "exhausted all of [her] negotiations" with the assistant district attorney, she told Petitioner on May 31, 2013, "I don't believe we can obtain relief under this motion and I had filed the wrong one." Trial counsel testified that she "thought [she] was going ...


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