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Livingston v. State

Court of Criminal Appeals of Tennessee, Jackson

June 7, 2017

VERNON LIVINGSTON
v.
STATE OF TENNESSEE

          Assigned on Briefs May 2, 2017

         Appeal from the Circuit Court for Madison County No. C-16-17 Kyle Atkins, Judge

         The petitioner, Vernon Livingston, appeals the denial of his post-conviction petition. The petitioner argues he received ineffective assistance of counsel at trial which forced him to enter a guilty plea prior to the conclusion of the trial. Following our review, we affirm the denial of the petition.

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

          Joseph T. Howell, Jackson, Tennessee, for the appellant, Vernon Livingston.

          Herbert H. Slatery III, Attorney General and Reporter; Breanne N. Hataway, Assistant Attorney General; Jerry Woodall, District Attorney General; and James W. Thompson, 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 Robert L. Holloway, Jr., JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         FACTS

         I. Trial

         On June 7, 2012, the petitioner served as a "lookout" for the burglary and attempted burglary of two businesses in Jackson, Tennessee: Tyler Locksmith and Cash in a Flash. Two years and four court-appointed attorneys later, he arrived at trial with his fifth and sixth court-appointed attorneys. The petitioner faced eight charges, including: the Class D felony of burglary; the Class E felonies of theft of property over five hundred dollars, vandalism of property over five hundred dollars, and attempted burglary; and the Class A misdemeanors of vandalism of property under five hundred dollars, possession of burglary tools, evading arrest, and possession of cocaine. After the State presented a significant portion of its proof, the petitioner asked to represent himself for the remainder of the trial. The trial court cautioned the petitioner from proceeding in this manner, and he ultimately agreed to continue with representation.

         On the second day of trial, the State presented its final witnesses and closed its proof. After hearing all of the evidence against him, the petitioner sought to plead guilty rather than move forward with his defense. The trial then transitioned into a guilty plea hearing.

         II. Guilty Plea Hearing

         As the plea colloquy began, the petitioner stated he was not under the influence of any medications, drugs, or alcohol and did not suffer from any mental disabilities. However, the petitioner's behavior at various moments of the plea hearing made the trial court question his understanding and sincerity regarding the nature of the plea. For that reason, the trial court addressed several aspects of the plea at length. For example, the trial court discussed each conviction with the petitioner, the penalties the convictions carried, and the rights the petitioner was giving up by entering a guilty plea. The trial court noticed the petitioner was "smiling and laughing" during these discussions. As a result, the trial court repeated its questioning of the petitioner regarding his understanding of the plea until the trial court was satisfied the petitioner understood. Additionally, when the trial court asked the petitioner if his plea was being freely and voluntarily entered, the petitioner stated it was, but made "a gesture like it's not." The trial court then made it clear to the petitioner that he could either plead guilty or continue with trial. The petitioner chose to continue with the guilty plea, and he asserted his plea was being freely and voluntarily entered. Finally, when asked if he was satisfied with his attorneys, the petitioner initially stated he was not. Upon further inquiry, and a reminder that the trial court would not accept the plea absent an affirmative response to the question, the petitioner stated, "Yeah, I'm satisfied with my lawyers."

         The State then read the facts of the indictment for each of the eight convictions into the record. Under the theory of criminal responsibility, the State asserted that on June 7, 2012, the petitioner committed crimes against Tyler Locksmith including: burglary (Count One), theft of property over five hundred dollars (Count Two), and vandalism of property over five hundred dollars (Count Three). Again under a theory of criminal responsibility, the State asserted that on June 7, 2012, the petitioner also committed attempted burglary (Count Four) and vandalism of property under five hundred dollars (Count Five) against Cash in a Flash. Finally, in relation to his other crimes, the State asserted the petitioner was guilty of possession of burglary tools (Count Six), evading arrest (Count Seven), and possession of cocaine (Count Eight).[1]

         The petitioner affirmed the facts of each crime were substantially correct, and the State made the following recommendation to the trial court:

Your Honor, please, the State is recommending the following sentences: In Count One, four years as a Range II offender and no fine; Count Two, two years at a Range II, thirty-five percent, no fine; Count Three, two years at thirty-five percent and no fine; and Count Four, two years at thirty-five percent and no fine. The first four counts are felonies and the State is recommending that Count Four run consecutively to Count Three; Count Three consecutively to Count Two; and Two consecutively to Count One. That adds up to ten years effective sentence in Case 12-733. The misdemeanor counts, Five, Six, Seven, and Eight, the State is recommending a sentence of eleven months and twenty-nine days at seventy-five percent on each and every one of these counts. The State is recommending no fine on Counts Five, Six, and Seven, but as stated, the minimum statutory fine on Count Eight we're recommending at seven hundred and fifty dollars. The State is also recommending that this effective sentence in 12-733 of ten years run consecutively to cases on which the [petitioner] was on parole at the time of this offense.

         The trial court ordered the petitioner to pay restitution to his victims and to pay his court costs, including the costs incurred for the jury for two days of trial prior to the plea.[2]After ...


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