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Hurst v. State

Court of Criminal Appeals of Tennessee, Knoxville

August 11, 2017


          Assigned on Briefs July 25, 2017

         Appeal from the Criminal Court for Knox County No. 107221 G. Scott Green, Judge

         The petitioner, Marvin Hurst, Jr., appeals the denial of his post-conviction petition. The petitioner argues he received ineffective assistance of counsel and that, by his actions, counsel overbore the petitioner's will resulting in the petitioner pleading guilty rather than going to trial. Following our review, we affirm the denial of the petition.

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

          Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Marvin Hurst, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Charme Allen, District Attorney General; and Ashley McDermott, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.


          J. ROSS DYER, JUDGE


         I. Guilty Plea Hearing

         On the eve of trial, the petitioner made the decision to enter a guilty plea for the sexual crimes he committed against his younger half-sister after his eighteenth birthday. For the crimes, the petitioner pled guilty on January 26, 2015, to six counts of aggravated sexual battery and one count of sexual battery by an authority figure.

         The trial court then conducted a thorough plea colloquy with the petitioner wherein the court addressed each charged offense and correlating conviction, the potential sentence each conviction carried, the agreed upon sentence, and the petitioner's one hundred percent eligibility for release.[1] Specifically, the trial court noted the petitioner was originally charged, as follows: Count One, rape of a child, Tenn. Code Ann. § 39-13-522; Count Two, criminal attempted rape of a child, Tenn. Code Ann. §§ 39-12-101, -13-522; Count Three, rape of a child, Tenn. Code Ann. § 39-13-522; Count Four, aggravated sexual battery, Tenn. Code Ann. § 39-13-504; Count Five, aggravated sexual battery, Tenn. Code Ann. § 39-13-504; Count Six, aggravated sexual battery, Tenn. Code Ann. § 39-13-504; Count Seven, incest, Tenn. Code Ann. § 39-15-302; and Count Eight, sexual battery by an authority figure, Tenn. Code Ann. § 39-13-527. Pursuant to the guilty plea, the trial court explained to the petitioner that he was pleading guilty to the lesser-included offense of aggravated sexual battery in Counts One through Three, and pleading guilty as charged in Counts Four, Five, Six and Eight. Count Seven was dismissed.[2]

         The trial court then reviewed the constitutional rights the petitioner was relinquishing upon entering his guilty plea. The petitioner confirmed he was not forced, pressured, or threatened into pleading guilty and that he was satisfied with trial counsel's representation. Subsequently, the State presented the following facts for the record:

Your Honor, the State anticipates that if this case had gone to trial the witnesses listed would testify as follows, that the [petitioner's] 18thbirthday was July 30th, 2010. And from the time that he turned 18 until the date listed in the indictment is right before the victim turned 13, your Honor. The victim was 11, 12, and 13 years of age at the time of these offenses. And the [petitioner] whenever she was 11 was 18, when she was 12 was 19, and when she was 13 was 20.
That the [petitioner] began touching the victim's breasts in this case, your Honor. That he would touch her breast underneath her clothing. He progressed to touching her vagina, your Honor. Eventually this progressed to him inserting his fingers into her vagina. He also performed oral sex on the victim in this case whenever she was 11 and 12.
He would make her touch his penis at that time too, your Honor. And that progressed until an incident where he attempted to have sex with her. He put his penis to her vagina but did not insert his penis into her vagina, your Honor.
The victim in this case at first did not tell anyone anything that was going on and this happened for a total period of three years from the time that she was in the fifth grade until the time that she was in the seventh grade. It happened at two different houses. One house on Wilson where the victim lived. The [petitioner] would come to her house to visit and that's where the sexual assaults would take place.
Then there came a time where the victim in this case and her family were kicked out of their home on Wilson, and they moved into an apartment on the bottom floor of the [petitioner's] home on Sierra Road. The testimony would be that during that time sexual assaults happened, specifically in December of 2011.
The testimony would be that the [petitioner's] family had their car broke down and the [petitioner] on several occasions would take the victim and her older brother, who was in high school, to their schools. On one occasion in December of 2011 he took the older brother to the high school and was supposed to then take the victim in this case to the middle school, but instead of taking her to the middle school he took her to the home where they both lived. And as I said, he lived in the top of the house. He took her up to the floor where he was living and he did sexually assault her at that time. She then stayed at the top of the house for the remainder of that day unbeknownst to the other people who were in the lower floor at that time.
There was also a time in July of 2012 after the victim had turned 13 and he came down to her room and it was dark in her room, she only had her television on, and he attempted to take her clothing off. As he was doing that the victim's mother in this case observed him in the room over top of the victim like -- and the mother obviously got very upset, your Honor, and asked the victim what was going on. The victim at the time did not feel that she could tell her mother what was going on, but she did about a week to two weeks after that tell her sister Sabrina what had happened. Her sister Sabrina is also the biological sister of the [petitioner] in this case. They're half brother and half sister. And the victim was able to tell Sabrina that she had been sexually assaulted by her brother for the past three years.
Sabrina did call DCS and tell DCS what had been reported to her as is required by law. The Knoxville Police Department became involved in this case. Detective [Jonathan] Harris with the Knoxville Police Department after hearing a forensic interview where the victim explained everything that happened, did a follow-up regarding what had happened in December of 2011. And he was able to get records from both the high school and the middle school, and the records showed that on December the 21st of 2011 the brother had gone to the high school and he was present at the high school that day, but that the victim in this case who was supposed to be at the middle school that day was, in fact, not present at school that day. She had an absence and that absence was an unexcused absence.
The detective then went further and got records from the [petitioner's] work on this case, and he did confirm that the [petitioner] was late to work that day. He began working at eleven a.m. which was not the custom. So he corroborated the story in that way.
In addition, Detective Harris also spoke to the [petitioner] in this case and after waiving his right to have an attorney present and being fully informed of his rights, the [petitioner] did agree to speak to Detective Harris. [The petitioner] initially denied anything. He explained what had happened as just being horseplay and tickling each other.
However, as the interview progressed [the petitioner] began to tell more about what happened. [The petitioner] specifically told Detective Harris that he had thought about touching [the victim], and that it was a constant thing in his head. [The petitioner] went on to say that he never intended to hurt the victim. [The petitioner] stated that it was best for them to break paths. And then he finally did admit to touching the victim's breast. [The petitioner] admitted to taking her shirt off. And he admitted that the tickling led to more, but never specifically said what the more was.
And then finally after the detective left the room [the petitioner] wrote a note to the victim in this case, and I'm going to read the note, your Honor. It says, "I am so sorry for anything that I've put you through. None of this is your fault. It is my own mistake for letting it go this far. As for now I think we should split paths and get both of our heads on straight. I want you to know I'm sorry and that I ...

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