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Richardson v. State

Court of Criminal Appeals of Tennessee, Jackson

June 2, 2017

PAUL RICHARDSON
v.
STATE OF TENNESSEE

          Assigned on Briefs April 11, 2017

         Appeal from the Criminal Court for Shelby County No. 05-03372 Glenn Ivy Wright, Judge

         The petitioner, Paul Richardson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

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

          Robert Brooks (on appeal) and Eric Mogy (at hearing), Memphis, Tennessee, for the appellant, Paul Richardson.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Charles Summers, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Alan E. Glenn and Timothy L. Easter, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         FACTS

         For the petitioner's participation in a home invasion on December 24, 2003, a Shelby County jury convicted him of aggravated robbery, aggravated burglary, aggravated assault, and unlawful possession of a handgun by a convicted felon. The trial court imposed consecutive sentences for the aggravated robbery and aggravated assault convictions, and ran the remaining sentences concurrently to one another, for an effective thirty-nine year sentence. The petitioner appealed. On direct appeal, this Court affirmed the convictions for aggravated robbery, aggravated burglary, and unlawful possession of a handgun by a convicted felon, but reversed and vacated the aggravated assault conviction, determining the jury was charged with different elements of aggravated assault than those in the indictment. State v. Paul Richardson, No. W2008-02506-CCA-R3-CD, 2010 WL 3791973, at *10-11 (Tenn. Crim. App. Sept. 29, 2010) perm. app. denied (Tenn. March 9, 2011). Upon remand, the trial court imposed consecutive sentences to the petitioner's three remaining convictions, resulting in an effective forty-one-year sentence. The petitioner again appealed, challenging the trial court's imposition of consecutive sentencing.

         On the second appeal, this Court summarized the factual and procedural history of the petitioner's case as follows:

At approximately 10:00 p.m. on Christmas Eve, the [petitioner] and another man, who were both dressed in black and wearing bullet-proof vests, entered a home at which several women and over a dozen children were gathered. The [petitioner] wore a badge or camera around his neck, causing some of the occupants to initially believe the men were police officers. The women were having their hair done by Jenell Allen, who lived in the home and ran a salon from a back laundry room. The [petitioner] and the other man, who were armed with a handgun and rifle respectively, entered through the unlocked screen door and began asking for "the money, " "the weed, " and "J-Mack, " which was a moniker shared by Ms. Allen's husband and an individual who lived across the street. When the women back in the "hair room" proved unable to produce J-Mack or "the weed, " the [petitioner] proceeded to rob them. Ms. Allen gave the [petitioner] between one and two hundred dollars after he pointed the gun at her and threatened to kill her. The [petitioner] also pointed the gun at and demanded money from Lynette Johnson, who had no money with her. The [petitioner] then robbed and assaulted Pandora Powell. The [petitioner] took Ms. Powell's money by searching her pockets and her bra, where she had twenty dollars. Ms. Powell believed the [petitioner] would kill her because he was unmasked, and Ms. Allen testified Ms. Powell was so frightened she "used the rest room on herself." After the [petitioner] had robbed the other women in the "hair room, " he returned to Ms. Powell, who was huddled in a corner with her arms covering her head, and searched her bra again. Anita Williams, who had been in a separate room with some of the children, saw the [petitioner's] accomplice, who was masked and who did not observe her among the children, peek into the room and then close the door. She then heard the other children screaming and went into the hallway, and the [petitioner], who was not masked, pointed a pistol at her, asking for J-Mack; she dropped her purse, which he took as he fled. When the men left the house, Ms. Allen was hyperventilating and required medical attention. At trial, the [petitioner] introduced the testimony of two alibi witnesses, his brother, Edward Richardson, and his former girlfriend, Wanda Washington. The [petitioner] also had an expert witness testify regarding the accuracy of eyewitness identifications.
The trial court sentenced the [petitioner] to twenty-five years as a Range III persistent offender for the aggravated robbery; to ten years as a Range III persistent offender for the aggravated burglary; to fourteen years as a Range III persistent offender for the aggravated assault; and to six years as a career offender for the convicted felon in possession of a handgun conviction. The trial court ordered the sentence for aggravated assault to be served consecutively to the sentence for aggravated robbery, and the remaining sentences were ordered to run concurrently with all other convictions for an effective sentence of thirty-nine years.
After his conviction, the [petitioner] appealed the sufficiency of the evidence supporting his convictions and challenged his conviction for aggravated assault on the basis that the indictment had charged that the [petitioner] did "knowingly commit an assault on PANDORA POWELL and by use of a deadly weapon, cause bodily injury, " but the trial court had charged the jury with what it considered the lesser included offenses of aggravated assault by "intentionally or knowingly caus[ing] another to reasonably fear imminent bodily injury" and aggravated assault by "intentionally or knowingly caus[ing] physical contact with another and a reasonable person would regard that contact as extremely offensive or provocative." The jury convicted the [petitioner] of aggravated assault "by causing the victim to reasonably fear imminent bodily injury." This Court upheld the sufficiency of the evidence but reversed the conviction for aggravated assault, concluding that the [petitioner] was convicted based on an element different from that charged in the indictment. State v. Richardson, 2010 WL 3791973, at * 11. Because the aggravated assault conviction was the only count which was imposed consecutively to any other count, the case was remanded "for the purpose of allowing the trial court to restructure the manner of service of the remaining sentences to include consecutive sentences, if the court deems it to be appropriate." Id. at *1.
On remand, the parties entered a consent order reflecting the fact that the trial court reviewed portions of the appellate record in State v. Richardson, 2010 WL 3791973, including the transcript of evidence, transcript of the sentencing hearing, and the exhibits. At the May 28, 2008 sentencing hearing, the prosecution had introduced judgments for the [petitioner's] prior convictions. The exhibits reflect that the [petitioner] was convicted of: (1) reckless endangerment, a Class E felony, on February 14, 1997, in case no. 96-11837; (2) aggravated robbery, a Class B felony, on February 10, 1998, in case no. 97-07016; (3) aggravated robbery, a Class B felony, on February 10, 1998, in case no. 97-07014; (4) sale of a controlled substance (0.5 grams or more of cocaine), a Class C felony, on October 18, 1994, in case no. 94-01783; (5) attempt to commit aggravated robbery, a Class C felony, on October 18, 1994, in case no. 94-05834; (6) uttering forged paper, a Class A misdemeanor, on November 21, 1991, in case no. 90-05231; and (7) theft of property valued over $1, 000, a class D felony, on October 18, 1994, in case no. 94-01933. The exhibits also show a federal conviction for felon in possession of a firearm on October 23, 2003 in case no. 2:04CR20344-01-MI. The prosecution also introduced a presentencing report that showed that the [petitioner] had held two previous jobs: as a painter/laborer with a staffing service from October 1, 2002 to June 30, 2003, and as a warehouseman from January 1, 1996 to March 1, 1997. The presentencing report also reflected several misdemeanor convictions, spanning from 1989 to 2003 and including assault and battery, reckless driving, six convictions for driving with a suspended license, marijuana possession, simple assault, harassment, public intoxication, failure to renew motor vehicle license, evading arrest, and a "weapons offense." The [petitioner's] juvenile record was also introduced into evidence; the [petitioner] had been adjudicated delinquent in Tennessee for larceny and possession of a controlled substance and in Arkansas for theft of property, breaking and entering, and attempted theft. The proof at the 2008 sentencing hearing also included the [petitioner's] testimony in mitigation. The [petitioner] testified that he was born in 1970 and that, due to an automobile accident in 1996, he had five steel rods in his right arm, as well as arthritis. The [petitioner] additionally testified that he had been shot in February 2004, and that a bullet was lodged in his chest. He testified regarding some partial paralysis he had experienced on his left side and stated that his left leg occasionally became swollen as a result. The [petitioner's] medical records corroborating his gunshot injuries were introduced at the hearing. The [petitioner] noted that his age, physical condition, and current confinement under federal law should be taken into consideration as mitigating circumstances.
At the May 19, 2011 sentencing hearing, the trial court, having reviewed the evidence previously introduced, ordered all three remaining convictions to be served consecutively to one another, for an effective sentence of forty-one years. The trial court ordered the sentences to be served consecutively based on a finding that the [petitioner] had an extensive record of criminal activity, that the [petitioner] was a professional criminal, and that the [petitioner] was a dangerous offender whose behavior showed little or no regard for human life and who had no hesitation about committing a crime in which the risk to human life was high. In finding the [petitioner] a professional criminal, the trial court consulted the presentence report prepared for the original sentencing hearing, which the court found showed that the [petitioner] "only held jobs for a very minimal amount of time" and demonstrated "no normal source of income other than by committing offenses." The trial court also noted that many of the offenses involved the taking of property. In finding that the [petitioner] had an extensive record of criminal activity, the trial court likewise referred to the [petitioner's] prior convictions and the other exhibits introduced at the first sentencing hearing. The trial court further found that the circumstances surrounding the commission of the offense were aggravated, that confinement for an extended period of time was necessary to protect society, and that the aggregate length of the sentence reasonably related to the offenses for which the [petitioner] was convicted.
. . .
The trial court also noted that it took the mitigating evidence into account, including that introduced at the 2008 sentencing hearing.

Paul Richardson, No. W2011-01434-CCA-R3-CD, 2012 WL 2307902, at *1-4 (Tenn. Crim. App. June 18, 2012), perm. app. denied (Tenn. Sept. 18, 2012). After our review, this Court upheld the consecutive sentencing ...


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