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Cunningham v. State

Court of Criminal Appeals of Tennessee, Jackson

July 12, 2017

DEREK CUNNINGHAM
v.
STATE OF TENNESSEE

          Assigned on Briefs May 17, 2017, at Knoxville

         Appeal from the Criminal Court for Shelby County No. 14-01981 W. Mark Ward, Judge

         The Petitioner, Derek Cunningham, appeals the denial of his petition for post-conviction relief. Pursuant to a guilty plea, the Petitioner was convicted of second degree murder and sentenced to thirty years of incarceration. The Petitioner sought post-conviction relief, asserting that he received the ineffective assistance of counsel and that he entered his plea unknowingly and involuntarily. Following a hearing, the post-conviction court denied relief. After review of the record and applicable law, we affirm the post-conviction court's denial of relief.

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

          John R. Marek, Memphis, Tennessee, for the appellant, Derek Cunningham.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Greg Gilbert, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         A Shelby County Grand Jury indicted the Petitioner for first degree premeditated murder, felony murder, especially aggravated robbery, and aggravated robbery. Pursuant to a plea agreement, the Petitioner was convicted of second degree murder and sentenced to thirty years of incarceration. The Petitioner appeals the denial of his petition for post-conviction relief wherein he argued that trial counsel was ineffective for allowing him to accept a guilty plea that sentenced him above his range classification and for not advising him to proceed to trial because of the opportunity to cross-examine witnesses with inconsistent statements and the lack of evidence. He also argued that he unknowingly and involuntarily accepted his guilty plea because he was a minor when he accepted his plea.

         Guilty Plea Hearing

         At the plea hearing, the State proffered the factual basis for the Petitioner's guilty plea. The State asserted that it would have proved that the Petitioner and his co-defendant, Corey Sandifer, approached two men, Octavio Sanchez and the victim, who were working outside of a house. Mr. Sanchez would testify that one of those men pointed a gun at him and told him not to look at him. The prosecutor identified the man that held Mr. Sanchez at gunpoint as Mr. Sandifer. Mr. Sanchez would also testify that he gave that man his wallet and that the victim was held at gunpoint by the other man. The prosecutor stated that the other man pointed a gun at the victim and shot and killed him during the robbery. The prosecutor also stated that Mr. Sandifer would testify that the Petitioner was the other man who shot and killed the victim. The Petitioner and Mr. Sandifer fled the scene and got into a vehicle with the other co-defendant, Jerrell Jackson. After getting into the vehicle, the Petitioner and Mr. Sandifer were in possession of the victims' property, including a cell phone, an iPad, and cash. The prosecutor stated that Mr. Jackson would testify that Mr. Sandifer expressed frustration with the Petitioner for killing one of the men, and the Petitioner attempted to explain that the shooting was an accident. The Petitioner later confessed his involvement to Travelt Speed who would testify to that effect. Moreover, the prosecutor stated that Thomas Moss would testify that he witnessed the Petitioner and Mr. Sandifer carrying property belonging to the victims and saw that Mr. Sandifer was "very upset" with the Petitioner.

         The Petitioner testified that trial counsel reviewed and explained all of the legal rights that he was waiving by pleading guilty. He stated that he understood the legal rights that he was waiving. He also stated that he understood that it was his decision whether to plead guilty, he had a right to a jury trial, and he had a right to confront and cross-examine witnesses. The Petitioner testified that he understood that by accepting his guilty plea, he was agreeing to a thirty-year sentence. He also testified that he understood that he was charged with first degree murder and that he would be sentenced to life in prison if he was convicted. He stated that he understood that he was being sentenced as a Range II offender and that, if he were convicted of second degree murder at trial, he would be sentenced as a Range I offender and receive a shorter sentence. He also stated that he understood that he would be required to serve one hundred percent of his sentence and that he was only eligible for a possible fifteen percent reduction in his sentence for good behavior. The trial court requested that the Petitioner use his "own words" to describe the sentence he was agreeing to take. The Petitioner responded by saying, "I'm signing for a second degree murder, pleading at thirty years at 100%." The Petitioner testified that he understood his legal rights, that trial counsel appropriately represented him, that he was entering his plea on his own free will, and that he did not have questions for the trial court. Accordingly, the trial court found that the Petitioner entered his plea knowingly and voluntarily and accepted his guilty plea.

         The Petitioner filed an initial post-conviction petition and an amended petition following the appointment of counsel that included issues that the Petitioner does not raise on appeal. Our summary of the evidence presented in the ...


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