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State v. Newell

Court of Criminal Appeals of Tennessee, Knoxville

August 8, 2017

STATE OF TENNESSEE
v.
JIMMY NEWELL

          Assigned on Briefs December 20, 2016

         Appeal from the Criminal Court for Bradley County No. 14CR309 Andrew M. Freiberg, Judge

         Defendant, Jimmy Newell, appeals from the trial court's denial of his motion to withdraw his guilty pleas in multiple cases. Petitioner entered guilty pleas in several cases at a single hearing as part of a "global plea deal" and received a total effective sentence of four years' incarceration. Defendant filed a pro se motion to withdraw his pleas. Counsel was appointed to represent him. Following an evidentiary hearing, the trial court denied Defendant's motion. Defendant appeals the trial court's ruling, asserting that his pleas were entered unknowingly and involuntarily and that his trial counsel provided ineffective assistance. Having reviewed the entire record and the briefs of the parties, we affirm the judgment of the trial court.

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

          Mabern E. Wall, Knoxville, Tennessee, for the appellant, Jimmy Newell.

          Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Stephen Davis Crump, District Attorney General; and Krista Oswalt, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr. and John Everett Williams, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE.

         Procedural history

         On May 20, 2014, Defendant entered guilty pleas in several cases. Defendant was convicted of one count of assault, three counts of domestic assault, one count of theft in an amount less than $500, and two counts of theft over $1, 000. Defendant received a total effective sentence of four years' incarceration. On June 3, 2014, Defendant filed a pro se "Motion to Withdraw Plea and Appoint Conflict-Free Counsel." On July 16, 2014, the trial court entered an order appointing counsel and noting that it would treat the motion as a petition for post-conviction relief. Following an evidentiary hearing on August 14, 2015, the successor judge entered an order denying Defendant's motion to withdraw his guilty pleas. The court's order noted that the parties agreed, prior to the evidentiary hearing, that "the true, legal character of Defendant's Motion was one to withdraw plea[s]" rather than a post-conviction petition.

         Evidentiary hearing

         Trial counsel, an assistant public defender, represented Defendant at trial. He testified that he had several plea negotiation discussions with the prosecutor prior to trial. He communicated those discussions to Defendant. Trial counsel testified that Defendant had several cases pending, and he attempted to negotiate a "universal settlement" of those cases. Prior to trial, the prosecutor made a "three-year offer" to serve by incarceration that would "encompass all [the] cases[.]" Defendant rejected that plea offer, and one of his felony theft cases (the "Kohl's" case) was set for trial. Trial counsel testified that he advised Defendant to accept the offer because he was facing a possible sentencing range of two to four years if convicted in the Kohl's case, and trial counsel believed the State's case against Defendant in that case was strong. Trial counsel testified that during the State's case-in-chief, Defendant commented to him that "he thought the trial was going very well." Trial counsel responded that he "believed [Defendant] was the only one in the courtroom" who thought that. Defendant then requested that trial counsel ask the prosecutor if the plea offer was still available. The prosecutor stated that the previous offer was no longer available, but he made an offer of "four years to serve" and that "would still include everything within that, all the misdemeanors, . . . so everything was contained." Trial counsel relayed the plea offer to Defendant, and Defendant agreed to accept the offer. Trial counsel explained Defendant's charges to him and the possible sentencing ranges, and he read the plea agreement to Defendant, and Defendant signed it.

         Trial counsel testified that Defendant was "a very intelligent individual." Defendant never indicated to trial counsel that he did not understand the consequences of his guilty pleas. At Defendant's request, trial counsel asked the court if Defendant could serve his sentence on community corrections, and the court replied, "absolutely not" because it was not part of the plea agreement. Trial counsel testified that the State was "adamant" that any sentence pursuant to a plea offer could not be served on community corrections because Defendant had a prior criminal record that included assault convictions. Trial counsel testified that Defendant "understood that that was not part of his plea agreement" and that "[i]t wasn't contemplated as part of it." He testified that the State "was not willing to do anything but a to-serve offer." Trial counsel testified that he spent "an extensive time" discussing the plea offer with Defendant.

         In preparation for trial, trial counsel went to Kohl's to interview the State's witnesses and the security camera footage. During trial, trial counsel stipulated as to Defendant's identity in the video because "[i]t was obviously him on the video[, ]" and he wanted to avoid the officer's testifying that he recognized Defendant from his previous interactions with him.

         Trial counsel represented Defendant in previous cases in which Defendant entered guilty pleas to several misdemeanors. Trial counsel discussed with Defendant the possibility of his sentences running consecutively.

         On cross-examination, trial counsel acknowledged that some of Defendant's prior misdemeanor charges involved a woman named Kelly Sullivan, who trial counsel learned was the step-sister of the District Public Defender. Trial counsel "discussed whether there might be . . . any type of conflict." Defendant filed a motion requesting new counsel be appointed, but "then he gave it up. He decided not to pursue that." Trial counsel testified that he believed Defendant filed the motion because he thought trial counsel was not "doing everything [he] could for him."

         Defendant testified that he had "many conversations" with trial counsel about his cases. He testified that trial counsel communicated the State's original offer to him of three years' incarceration, and he rejected the offer. He testified that he believed "the only thing [trial counsel] was concerned with was getting [him] to plead out. He was not worried about developing [his] defense[.]" Defendant "insisted [trial counsel] withdraw from [his] case" because he believed a conflict existed due to the relationship between the public defender and one of the State's witnesses. Defendant's defense to the charges against him was that the value of the items he stole from Kohl's was less than $500. Defendant asked trial counsel to file a motion to suppress the store security video.

         Defendant acknowledged that he agreed to waive a mistrial and request a curative instruction instead after a detective in the case testified that Defendant refused to talk to him, thereby commenting on Defendant exercising his constitutional right to remain silent. Defendant testified that they had spent all morning picking a jury, and he did not want to spend more time in jail awaiting a new trial date. Defendant testified that after the State rested, trial counsel asked him if he had any witnesses he wanted to call. Defendant was incredulous. He told trial counsel to ask the prosecutor "if they'll take a two." Trial counsel discussed a plea agreement with the State and told Defendant, "[t]hey will take the three but not the two, and they want you to plead to everything[.]" Defendant replied that he wanted to "plead open" and ask the trial court to grant probation. Defendant testified that he did not have any prior felony convictions, and he felt that he was a good candidate for probation. Defendant testified that he "wanted community corrections at the very least[.]" He testified that the State told trial counsel that if Defendant was "gonna plead to corrections, he's gonna get a four." Defendant testified that he understood that he was pleading guilty in exchange for a four-year sentence to be served on community corrections, and that if he "messed up on corrections, " he would have to serve 30 percent of his sentence, or 14.4 months, incarcerated.

         Defendant testified that during the plea hearing, he indicated that he understood the trial court's statement, "four years going to TDOC" to mean that he would be "committed to the custody of TDOC and then out on corrections[.]" Defendant testified that he had been admonished by the trial court before for "speaking out of turn[, ]" and he was "shell shocked." He testified that he "acquiesced" and gave "the appropriate responses" at the plea hearing. He testified that when he returned to jail, he told another inmate that he had to serve 30 percent of a four-year sentence, or 14.4 months, and the inmate explained that was his parole eligibility and that it did not mean he was "guaranteed to get out." Defendant testified, "It wasn't until then that I discovered the difference." Defendant called trial counsel and asked him to file a "motion to put in for some corrections" or a motion . . . to reconsider" or to "reduce the judgment or something." Trial ...


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