Session May 2, 2017
from the Circuit Court for Madison County No. C-16-114 Roy B.
Morgan, Jr., Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Noble Grant, III, Jackson, Tennessee, for the appellant,
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
L. Holloway, Jr., J., delivered the opinion of the court, in
which Alan E. Glenn and J. Ross Dyer, JJ., joined.
L. HOLLOWAY, JR., JUDGE.
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, 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.
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.
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.
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
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
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.
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
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.
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.
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
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[.]"
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
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."
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."
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.
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
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."