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Mellon v. State

Court of Criminal Appeals of Tennessee, Knoxville

July 20, 2017


          Assigned on Briefs April 26, 2017

         Appeal from the Criminal Court for Knox County No. 89777 Robert R. McGee, Judge

         The Petitioner, James Mellon, appeals as of right from the denial of his petition for post-conviction relief. On appeal, the Petitioner contends that he received ineffective assistance of counsel because trial counsel failed to present a viable defense. Following our review, we affirm the judgment of the post-conviction court.

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

          Jonathan S. Wood, Knoxville, Tennessee, for the appellant, James Mellon.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.




         This case arises from the following procedural history. The appellant pled guilty to the first degree murder and especially aggravated robbery of Robert Scott Loveday. The State had agreed to recommend concurrent sentences of life and twenty-five years in confinement in exchange for the appellant's guilty pleas and agreeing to testify against his co-defendants. However, the appellant failed to testify against his co-defendants, and the State withdrew its sentencing recommendation. The appellant was sentenced to death for the murder conviction and twenty-five years confinement for the robbery conviction. A panel of this court affirmed the convictions and sentences; however, our supreme court reversed his convictions, concluding that the appellant had not pled guilty voluntarily and intelligently. State v. James A. Mellon, No. E2006-00791-CCA-R3-CD, 2007 WL 1319370, at *1 (Tenn. Crim. App. May 7, 2007), perm. app. denied (Tenn. Sept. 24, 2007).

         On direct appeal, this court summarized the facts of the underlying case as follows:

[O]n the night of August 23, 1997, David Jones picked up the twenty-one-year-old [Petitioner]; fourteen-year-old Ernest Rogers; and Anthony "T-Bone" Jones, who was unrelated to David Jones. The group planned to rob the "dope man" and drove to a drug house in Knoxville but found it empty. In the early morning hours of August 24, 1997, David Jones drove the group to west Knoxville. They were searching for a person to rob and spotted the victim near a gas station payphone. The victim had just paged a friend, was sitting in his Chevrolet Camaro with the driver's door open, and was waiting for the friend to call him at the payphone. David Jones pulled up behind the victim's car, and the [Petitioner] and Ernest Rogers got out and approached the victim's Camaro.
The [Petitioner] pointed a nine millimeter pistol at the victim, and the victim began pulling items out of his pockets. Anthony Jones, who had been waiting impatiently in David Jones' car, got out and ran up to the victim's car. David Jones heard gunshots and saw the [Petitioner] bend down. Anthony Jones, Ernest Rogers, and the [Petitioner] ran back to David Jones' car, and the group drove away. Soon after the shooting, a motorist waiting at a stoplight across the street from the gas station saw the victim and pulled into the gas station parking lot. He found the victim sitting on the ground and gasping for air. The motorist opened the victim's shirt, saw that he had been shot, and telephoned 911. A police investigation resulted in the arrests of the four individuals, and the police found nine millimeter handguns at Anthony Jones' and Ernest Rogers' homes. Forensic analysis of two cartridge cases recovered from the crime scene and two bullets recovered from the victim showed that the casings and bullets were fired from the handgun police found in Anthony Jones' home. In interviews with police on August 25 and 26, 1997, the [Petitioner] admitted participating in the robbery but said he never intended for the victim to be killed.
A forensic pathologist who performed the victim's autopsy testified that the victim was shot once in the left chest through the heart and once in the upper left arm. He stated that either of the wounds would have been fatal but that the victim could have survived briefly. The robbers obtained only a watch and a one-dollar-bill from the victim.

Mellon, 2007 WL 1319370, at *1-2.

         A Knox County Criminal Court jury convicted the Petitioner of first degree felony murder and especially aggravated robbery. The Petitioner was sentenced consecutively to life in prison and twenty-three years. On direct appeal, a panel of this court affirmed his convictions. Mellon, 2007 WL 1319370, at *8-11. The Petitioner timely filed a pro se petition for post-conviction relief from the judgments. Upon appointment of counsel, the Petitioner filed an amended petition.

         At the Petitioner's post-conviction hearing, the following proof was presented. The Petitioner's trial counsel testified that she knew the Petitioner because she was appointed to represent him in "early 2000" for a "homicide that happened in 1998." She explained that the Petitioner was represented by two other attorneys for his original guilty plea for which he received the death penalty; however, that conviction was appealed, and "there was a reversal of the death sentence." She explained that at that point, she was appointed to represent him. Trial counsel testified that when she first received the Petitioner's case, "he still had the death notice" but that it was "ultimately withdrawn and replaced by a life without parole notice." She said that

there was an understanding by the State that since . . . one of the other participants in the crime, one of the individuals who actually pulled the trigger and killed Mr. Loveday, that individual resolved his case with a plea to a life sentence. So I think there was an acknowledgement after the Appellate Court ruling that there was a proportionality problem, and so, ...

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