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Ellison v. State

Court of Criminal Appeals of Tennessee, Jackson

June 7, 2017

CALVIN ELLISON
v.
STATE OF TENNESSEE

          Assigned on Briefs: March 7, 2017

         Appeal from the Criminal Court for Madison County No. C-16-157 Roy Morgan, Judge

         The petitioner, Calvin Ellison, appeals from the denial of his petition for post-conviction relief, which petition challenged his 2013 convictions of misdemeanor reckless endangerment, aggravated assault, and employing a firearm during the commission of a felony. Because the petitioner failed to establish that he was prejudiced by counsel's failure to challenge the consecutive alignment of his sentences and because he failed to establish that counsel performed deficiently in any other regard, we affirm the denial of post-conviction relief.

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

          Joseph T. Howell, Jackson, Tennessee, for the appellant, Calvin Ellison.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Jerry Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE.

         The Madison County Grand Jury charged the petitioner with one count of attempted first degree murder, two counts of aggravated assault, and one count of employing a firearm during the commission of or attempt to commit a dangerous felony. The evidence adduced at the petitioner's trial established that the petitioner and victim Joshua Cathey exchanged words at a Jackson convenience store about the petitioner's interactions with Mr. Cathey's wife, Princess Cathey. See State v. Calvin Ellison, No. W2013-02786-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Jackson, Dec. 10, 2014), perm. app. denied (June 17, 2015). Mr. and Ms. Cathey testified that the petitioner followed Mr. Cathey to his car and then fired several shots at the car as Mr. Cathey drove away with Ms. Cathey in the passenger's seat. See id., slip op. at 2-3. The petitioner and his friend, Lewis Grimes, III, testified that the petitioner fired on the Catheys only after Mr. Cathey drove his vehicle toward the petitioner at a high rate of speed. See id., slip op. at 6-7. The petitioner provided two pretrial statements to the police, denying both times that he had fired a weapon at the Catheys. See id., slip op. at 4-5, 7. The jury convicted the petitioner of reckless endangerment, aggravated assault, and employing a firearm during the commission of or attempt to commit first degree murder. See id., slip op. at 7. The jury acquitted the petitioner of the second charge of aggravated assault. See id.

         Following his unsuccessful bid for relief on direct appeal, the petitioner filed a timely petition for post-conviction relief, alleging, among other things, that he was denied the effective assistance of counsel. The petitioner also filed a motion to set aside the fines and costs associated with his convictions. In an amended petition, the petitioner averred that counsel performed deficiently by failing to raise the imposition of consecutive sentencing as an issue on appeal; failing to challenge the duplicitous indictment; failing to object to the jury instructions, certain testimony, and violations of the petitioner's protection against double jeopardy; and failing to adequately inform the petitioner of the charges against him.

         At the August 22, 2016 evidentiary hearing, the petitioner testified that he presented counsel with "12 different issues to" be included on direct appeal and that counsel "only chose like two or three of them." The petitioner said that he wanted counsel to raise the issue of prosecutorial misconduct on direct appeal. By way of explanation, the petitioner claimed that he was originally charged by indictment with only a single count of aggravated assault related to the incident with the Catheys. He said that the assistant district attorney originally assigned to his case "threw out that indictment and reindicted" him on the more serious charges only after he "caught a charge against a . . . jail sheriff deputy" who was "related to" that particular assistant district attorney. He claimed that the seriousness of the new charges reflected the assistant district attorney's desire to punish the petitioner for "the charge against his cousin" and for the petitioner's refusal to "accept 11/29 over in . . . [g]eneral [s]essions" court. The petitioner insisted that someone in the district attorney's office "sent a letter" to trial counsel admitting that the indictment on more serious charges was an act of retaliation by that office as a favor to one of the assistant district attorneys general.

         The petitioner testified that counsel also performed deficiently by failing to adequately address on appeal the consecutive alignment of the sentence for his conviction of employing a firearm during a dangerous felony, arguing that counsel "didn't argue" the issue "the way he supposed to had argued" because counsel "didn't know at the time" how to argue the issue. He claimed that he had "investigated the charge" and that the consecutive alignment of his sentences was illegal because "all these charges is on the same person." He insisted that his "6 and 10 should be run together." The petitioner also claimed that he should have been sentenced as a Range I offender because the State failed to file a notice seeking enhanced punishment and that he was improperly denied pretrial jail credits.

         The petitioner stated that counsel performed deficiently by failing to object to instances of prosecutorial misconduct. He then embarked on a meandering narrative response the gist of which was that he believed a particular assistant district attorney, whose relative the petitioner had apparently assaulted, exerted his influence in an improper manner in the petitioner's case, insisting that there was "something fishy there." He also claimed that the assistant district attorney general who prosecuted the case engaged in misconduct during his cross-examination of the petitioner and during the closing argument.

         The petitioner also claimed that counsel performed deficiently by failing to file a motion to suppress "an illegal arrest, " testifying that "the crime scene, it was tampered with" and that the police "didn't get all the evidence properly how they [are supposed] to got [sic] it, and then they made mistakes." He insisted that the police had not reviewed the video surveillance from the convenience store "properly because the tech said there wasn't no [sic] video for the outside." He contended that had the police properly viewed the video surveillance, he "wouldn't never have been charged because it showed that the victim tried to run [him] over and [he] was lawfully defending" himself. He also claimed that the police had failed to take photographs and collect relevant evidence and ...


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