Assigned on Briefs May 17, 2017, at Knoxville
from the Criminal Court for Shelby County No. 14-01981 W.
Mark Ward, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
R. Marek, Memphis, Tennessee, for the appellant, Derek
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
Everett Williams, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J.,
EVERETT WILLIAMS, JUDGE.
AND PROCEDURAL HISTORY
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.
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 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.
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 ...