Court of Criminal Appeals of Tennessee, Knoxville
MARVIN HURST, JR.
STATE OF TENNESSEE
Assigned on Briefs July 25, 2017
from the Criminal Court for Knox County No. 107221 G. Scott
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
M. Jeffress, Knoxville, Tennessee, for the appellant, Marvin
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
Ross Dyer, J., delivered the opinion of the court, in which
Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.
ROSS DYER, JUDGE
Guilty Plea Hearing
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.
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. 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.
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
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
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 ...