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Jelks v. State

Court of Criminal Appeals of Tennessee, Jackson

July 6, 2017

TONNIE JELKS
v.
STATE OF TENNESSEE

          Session May 2, 2017

         Appeal from the Circuit Court for Madison County No. C-16-114 Roy B. Morgan, Jr., Judge

         Tonnie Jelks, the Petitioner, claims that the post-conviction court erred in dismissing his petition for post-conviction relief. The Petitioner claims that his guilty plea was not knowingly and voluntarily entered because trial counsel incorrectly advised him concerning his offender classification, failed to adequately investigate his case, failed to inform him of the elements of the charged offense, and failed to challenge a show-up identification procedure and because the State failed to file the notice of enhanced punishment mandated by Tennessee Code Annotated section 40-35-202(a). After a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

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

          J. Noble Grant, III, Jackson, Tennessee, for the appellant, Tonnie Jelks.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Alan E. Glenn and J. Ross Dyer, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         Procedural History

         Pursuant to a negotiated plea agreement, the Petitioner pleaded guilty to attempted aggravated robbery and assault and received concurrent sentences of ten years' confinement with a forty-five percent release eligibility for attempted aggravated robbery and eleven months and twenty-nine days for assault. The Petitioner filed a timely petition for post-conviction relief, counsel was appointed, and an amended petition was filed. In the pro se petition, the Petitioner alleged that his guilty plea was not entered voluntarily and knowingly, that the search of his person and subsequent arrest were unlawful, that the prosecutor failed to disclose evidence favorable to the Petitioner, that there was newly discovered evidence, and that he received ineffective assistance of counsel. The amended petition claimed the guilty plea was not entered voluntarily or knowingly and that the Petitioner received ineffective assistance of counsel.

         Post-Conviction Hearing

         At the post-conviction hearing, trial counsel was called to testify by the Petitioner. Following arraignment, trial counsel reviewed the police report and an incident report, watched a video of the incident recorded by a camera at CVS pharmacy, and examined photographs of the victims taken at the hospital. According to trial counsel, he could not identify the Petitioner from the video.

         Trial counsel agreed that the aggravating factor for the attempted robbery was serious bodily injury and that no deadly weapon was involved. There were two victims, a mother and her fourteen-year-old daughter. Trial counsel acknowledged that the police report stated that both victims were transported to the hospital "with minor injuries." When asked if the statement "with minor injuries" would raise a "red flag, " counsel responded:

That would have been something -- If this case had proceeded to trial, that would have been something I could have pointed out to the jury and argued to the jury. However, he was charged with attempted aggravated robbery and simple assault, so from that perspective, it didn't raise any red flags for that purpose.

         Trial counsel agreed that he did not investigate the victims' medical records, and he could not recall if he discussed lesser-included offenses with the Petitioner. He went over with the Petitioner each element of the crimes charged, including the serious bodily injury element, the Petitioner's offender classification, and the range of punishment for the charges.

         Before trial counsel was appointed, the Petitioner filed a pro se motion to reduce bond. The "State's Response to Motion for Bond Reduction, " a copy of which was provided to trial counsel during discovery, included within the body of the response a photocopy of the Petitioner's TOMIS report listing seven felony convictions. Trial counsel discussed the prior convictions with the Petitioner and expressed concern about the Petitioner being classified as a career offender.

         When questioned about the State's failing to file a notice of enhanced punishment ten days prior to the Petitioner entering his guilty plea, trial counsel answered that the ten day notice was for trial. Post-conviction counsel read Tennessee Code Annotated section 40-35-202(a) to trial counsel, who then acknowledged that he did not know that the ten-day notice also applied to entry of a guilty plea. Trial counsel stated that, based on the seven felony convictions listed in the Petitioner's TOMIS report, "it appeared to me that he would have been a career offender, or could possibly be a career offender." When further questioned about the seven listed felonies, trial counsel agreed that the Petitioner could have been classified as a persistent offender but not a career offender if sentenced for a Class C felony.

         Trial counsel said that he met with the Petitioner two times in jail before the entry of the plea. When questioned about the jail logs which listed only one visit, trial counsel stated, "I believe I met with [the Petitioner] twice, but it may have just been once." Concerning what he discussed with the Petitioner, trial counsel stated:

I recall a discussion that there was a reference in the discovery where he was arrested that day, in the near vicinity where he was arrested, there was a hat located or -- hat and/or gloves and that it was submitted for DNA analysis, but I let him know that we didn't have -- I didn't have that analysis at that point in time.

         Trial counsel agreed he did not obtain the DNA analysis before he negotiated the terms of the plea, explaining that "on the day we came to court for the plea cut-off date, I was prepared to ask to extend that plea cut-off. I had already discussed that with [the Petitioner] as well, but he indicated to me that he wanted to enter a guilty plea." Concerning how the plea agreement was negotiated, trial counsel stated:

I don't recall there being an offer on the table. [The Petitioner] instructed me to go to the D.A. on what he pled guilty to and the sentence that was imposed. He offered that to the State and the State accepted it, even knowing that the DNA analysis was still outstanding.

         When questioned about the police report, trial counsel agreed that one of the victims "identified the suspect as a black man wearing a black shirt, a gray beanie and gloves" and "that the suspect dropped a toboggan and a thumb of a glove, " and that the officer "located a pair of gloves with the thumb missing on the ground about 25 feet from where [the officer] made contact with [the Petitioner]". Trial counsel explained that he did not examine the physical evidence because he "anticipated [the Petitioner's] plea cutoff being extended, " but the Petitioner "requested to enter a guilty plea" on the plea cutoff date.

         Trial counsel was asked if he challenged the "show-up identification procedure" in which the fourteen-year-old victim was taken by the police to where the Petitioner was apprehended and asked if the Petitioner was the person who assaulted her and her mother. Trial counsel admitted that, although the "show-up identification procedure" is "frowned upon" and "highly suggestive, " he never challenged the identification before negotiating a plea agreement.

         On cross-examination, trial counsel agreed that it was not uncommon for an investigation to be cut short by a guilty plea. Trial counsel reviewed a letter that had been mailed to the District Attorney General before he was appointed. He stated that the letter had been provided in discovery. The letter was addressed to the Assistant District Attorney General handling the Petitioner's case, had a return address for the Petitioner at the Madison County jail, and was signed "Tonnie L. Jelks." The letter discussed the Petitioner's family, four-year-old son, and the Petitioner's strong work history. The letter asked the State to "keep [the Petitioner's] charge as attempted robbery, and to give me a fair and reasonable plea[.]" The letter states that "I can talk to you more when I receive a lawyer[.]"

         The Petitioner testified that he first met trial counsel on May 1, 2015, at the jail. Trial counsel told the Petitioner that he had watched the video and that he would "share it with [the Petitioner] out at the jail." He said that trial counsel met with him for thirteen seconds based on the computerized "jail logs." The next time he saw trial counsel was on May 11 in a room at the courthouse. He said they discussed the State's first plea offer- fifteen years at sixty percent. When asked what he told trial counsel about the offer, the Petitioner stated, "I didn't tell him nothing [sic]. I knew I wasn't a career offender." The Petitioner said that, after he rejected the offer, the State offered ten years as a career offender and that he again rejected the offer. He said that the final offer was ten years as a persistent offender. He claimed that trial counsel did not discuss the elements of the offenses, lesser-included offenses, the medical proof, or range classification with him. He said that trial counsel told him that, if he rejected the offer and went to trial, he would "get careered out[.]" The Petitioner agreed that trial counsel discussed extending the plea deadline but denied that he stated that he wanted "to plead today." The Petitioner explained:

How [trial counsel] came, he said if I take that 10 years at 45, you won't even have to worry about the DNA or nothing showing up no more. That was my understanding. So that's why I was confused. So that's why I went on and took that 10-year sentence.

         The Petitioner further explained, "I was trying to get a lesser[-]included offense, and [trial counsel] said, 'Well that offer stand[s]. That 10 years at 45 stand[s], but if you don't take that, it's gonna be 15 years at 60 percent.' So I was lost. I didn't know."

         When asked if he would have pleaded guilty if he had known at the time what he knows now, the Petitioner stated, "No, sir, I would have [gone] to trial. I wouldn't -- I believe I would have [come] out better with this 10 years. I would have [come] out with a lesser[-]included offense or it could have been possibly thrown out at trial."

         On cross-examination, the Petitioner admitted that he had a prior conviction for aggravated assault for which he was sentenced to ten years and a prior conviction for robbery for which he was sentenced to six years. He agreed his TOMIS report was included in the response to his pro se motion to reduce bond and that the report listed seven prior felony convictions. When questioned about sending the letter to the District Attorney General, the Petitioner stated:

No, sir, I don't remember that. I don't even -- I don't even see that in my motion. I don't even recall that letter. That is not my -- To my knowledge, as far as I can see it, that's not my handwriting."
. . .
No, sir, it don't [sic] look like my handwriting. Can I take a look at that if you don't mind, sir? I hadn't saw [sic] that. I haven't saw [sic] that.

         The Petitioner claimed that he did not ask for trial counsel to initiate plea negotiations and that he did not want a plea offer from the State for attempted aggravated robbery. He was then asked, "[I]sn't it true the real reason you're here is because you want a better plea bargain?" The Petitioner answered, "I'd take a lesser[-]included offense."

         Concerning the guilty plea colloquy by the trial court, the State engaged in the following dialogue with the Petitioner:

Q. And he asked if you'd gone over the sentencing form.
A. Yes, sir.
Q. And he asked if you understood it.
A. Yes, sir.
Q. What did you tell him?
A. I said, "Yes, sir."

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