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State v. Marshall

Court of Criminal Appeals of Tennessee, Jackson

May 31, 2017

STATE OF TENNESSEE
v.
EBONY MARSHALL

          Assigned on Briefs January 18, 2017

         Appeal from the Criminal Court for Shelby County Nos. 13-05966, 13-05021 James C. Beasley, Jr., Judge

         The Defendant, Ebony Marshall, was convicted upon his guilty pleas of two counts of robbery, a Class C felony. He was sentenced to terms of twelve and thirteen years as a persistent, Range III offender for the offenses. The sentences were imposed to run consecutively, for an effective sentence of twenty-five years. The Defendant filed a motion to withdraw his guilty plea, which the trial court denied. On appeal, the Defendant contends that: (1) the trial court erred in denying his motion to withdraw his guilty pleas, (2) the trial court erred in imposing consecutive sentences, and (3) he was denied his rights to due process and self-representation in the trial court proceedings. We affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Ebony Marshall, Memphis, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; Jose Leon and Kenya Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The Defendant's convictions relate to robberies that occurred in Shelby County on May 25, 2013, and September 10, 2013. The record reflects that the Defendant was represented variously by multiple attorneys, was allowed to proceed pro se at the Defendant's request, and was assisted by advisory counsel at different stages of the trial court proceedings. The Defendant has elected to proceed pro se in this appeal.

         On July 6, 2015, the Defendant pleaded guilty to both counts of robbery. The record reflects that he was represented by counsel. According to the prosecutor's recitation of facts at the hearing, the circumstances of the offenses are as follow:

[The defendant] is doing an open plea to Indictment 13-05021 to the offense of robbery, a Class (C) Felony. . . . The fact pattern on that would have been that on May the 25th, 2013[, ] officers responded to a robbery at 925 Poplar Avenue. Briana Walls (phonetically) the complainant advised that she was checking out another customer when the defendant jumped over the counter. He was - she had her hand on the right side of the cash register.
The victim complained that the defendant grabbed her hand and pushed it out of the way and grabbed the money, took the money and jumped off the counter and ran out - out the business what is the westbound location. Witness Randy (indiscernible) advised that when he turned around he saw the defendant on the counter grabbing the money so he ran towards the suspect. A witness, Michael Norfleet, advised he was in the drive-thru when he heard the commotion. This individual, Michael Norfleet, chased the defendant down Poplar and Dunlap. He advised that the suspect took the money out of his pockets and threw it on the ground. He picked up the money and brought it back with the [defendant] back to 925 Poplar where the offense occurred.
Officer Bernell (phonetically) counted the money and there was a total of $45. Officer Rector made the [scene]. [The defendant] was arrested and transported to 201 Poplar. This offense occurred in Shelby County.
[The defendant] is also doing an open plea to Indictment 13-05966 to the offense of robbery . . . . And should these matters [have] gone to trial[, ] the facts would have been that on September 10th, 2013 at 5:30 p.m. an individual entered the McDonald's located at 1389 Poplar where Kiera Hawkins, Audrey Davis and Felix (indiscernible) were employed. He stood in line and waited until the cash register was opened by Kiera Hawkins. When it was open, the male suspect, the defendant, jumped onto the counter and placed both hands in the drawer. Kiera Hawkins, the witness, tried to shut up the register but she was forced away by the defendant. He was able to retrieve $39 in cash from the drawer and flee the business.
Audrey Davis was standing beside Kiera Hawkins when this occurred and she fell to the ground. On September the 12, Sergeant Vincent developed [the defendant] as a suspect in this incident. He went to the McDonald's at 1389 Poplar. . . . Felix (indiscernible) and Audrey Davis were shown [a] photographic lineup by the investigator and they identified the [defendant] as the individual responsible for the incident. This occurred here in Shelby County.

         The Defendant was sentenced, and judgments were filed on August 11, 2015. He filed various pro se pleadings, including a notice of appeal on September 3, 2015. His appointed attorney filed a notice of appeal on September 10, 2015. The Defendant filed a pro se "notice of withdrawal of guilty plea" in case number 13-05966 on October 1, 2015. On November 3, 2015, the trial court granted the Defendant's counsel's motion to withdraw and appointed an attorney who had represented the Defendant in earlier stages of the case. The court's order also purported to stay the appeal pending resolution of the motion to withdraw the guilty plea. On November 18, 2015, the court admonished in an order denying a motion for extension of time that the Defendant could not proceed simultaneously through counsel and pro se and cautioned that future pleadings should be filed by counsel. On February 2, 2016, the Defendant filed another pro se motion to withdraw his guilty pleas, which listed case numbers 13-05021 and 13-05966.

         The trial court conducted a hearing on the motion to withdraw the guilty pleas on February 18, 2016, and the Defendant proceeded through counsel. The Defendant and the attorney who represented him at the time of the guilty pleas testified. The Defendant testified that his guilty pleas in the present case had been his first "open" pleas and that he had not understood he faced up to thirty years due to the possibility of consecutive sentencing. He acknowledged that he had thirteen to fifteen prior convictions, all of which had resulted from negotiated guilty pleas, and that the court had sentenced him as a Range III offender. He said counsel had advised him that he did not qualify for mandatory consecutive sentences and that "there's a chance that the Judge would probably run them concurrent." He said counsel had no further conversation about consecutive sentences with him. The Defendant stated that "there is no way [he] would have" accepted an open plea if he had known he would receive consecutive sentences. He said that, when he accepted the plea offer, he thought the court would be lenient and impose an effective fifteen-year sentence. He stated that he thought he would have prevailed at a trial but had not wanted to wait two to three years for a trial. The Defendant acknowledged a passage in the transcript of the guilty plea hearing in which the court advised him that he faced three to fifteen years on each robbery charge. The Defendant said, though, that he was only scheduled for trial on one of his three then-pending cases and questioned "why would we talk about [a] consecutive sentence, if I was going for one case." He said his attorney did not say anything to him about a consecutive sentence. The Defendant acknowledged that he had answered negatively when asked by the court at the guilty plea hearing whether anyone was making him plead guilty and said that no one made him plead guilty. He said he was "looking for a way out" and wanted to settle the case in order to get out of jail while he was young. He reiterated that he thought he would receive a fifteen-year sentence. When asked about his statement at the guilty plea hearing that he had been satisfied with counsel and that counsel had done a good job, the Defendant said, "That was sarcasm." The Defendant stated he had filed numerous complaints with the Board of Professional Responsibility against counsel.

         The Defendant's former attorney testified that he explained the possible consequences of the plea offer to the Defendant. He said that for "major violators, " he prepared a "charge exposure offer sheet" that explained count-by-count the sentencing exposure a defendant faced and the State's corresponding offer. He said he prepared such a document for the Defendant. Counsel said he and the Defendant had multiple conversations about the possibility of consecutive sentencing. Counsel stated that he advised the Defendant that mandatory consecutive sentencing did not apply to the Defendant's cases. Counsel stated that he had written a March 25, 2014 letter to the Defendant advising that counsel thought it unlikely the prosecutor would agree to the Defendant's proposed settlement in another case of five years on probation on two counts of aggravated assault. Counsel said he also advised the Defendant in the letter that counsel believed the plea offer was in the Defendant's best interests because the Defendant faced up to 120 years. Counsel stated in the letter that even if the Defendant were not convicted of the robbery charges, the Defendant nevertheless faced up to thirty years for the two aggravated assault charges, given the likelihood of consecutive sentencing.

         The Defendant's former attorney testified that the Defendant asked about a settlement "a number of times" on the day the first case was set for trial. Counsel said he asked the prosecutor about a "package deal" but that the prosecutor said the only settlement option was an "open plea." Counsel said he explained to the Defendant that if the Defendant accepted an open plea, the trial court had the discretion to impose consecutive sentencing and that consecutive sentencing was a "very distinct possibility." Counsel said he did not "twist [the Defendant's] arm" in order for the Defendant to plead guilty. He said the Defendant did not appear to be intoxicated or impaired.

         The Defendant's former attorney testified that he requested that the hearing be bifurcated because the Defendant wanted to be considered for the Jericho Project. The attorney said that ultimately, his office received a letter stating that the Defendant was not eligible for consideration because of another pending case.

         The Defendant's former attorney testified that he explained the State's pleadings related to notification of intent to seek enhanced punishment, consecutive sentencing, and for application of enhancement factors. Counsel stated that he received a letter from the Defendant, which was dated the day after the sentencing hearing, in which the Defendant thanked the attorney for "exceptional effort" on the Defendant's behalf.

         The Defendant's former attorney testified that he filed a timely notice of appeal but that the Defendant had been concerned the notice would not be filed promptly and filed a pro se notice of appeal. ...


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