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Tut v. State

Court of Criminal Appeals of Tennessee, Nashville

August 14, 2017

TUT MAYAL TUT
v.
STATE OF TENNESSEE

          Assigned on Briefs June 20, 2017

         Appeal from the Criminal Court for Davidson County No. 2012-C-1981 Cheryl A. Blackburn, Judge.

         Petitioner, Tut Mayal Tut, appeals the denial of his petition for post-conviction relief from his guilty-pleaded convictions for two counts of especially aggravated kidnapping, two counts of especially aggravated robbery, and four counts of aggravated rape. Petitioner alleges that he received ineffective assistance of counsel during both the juvenile court transfer hearing and the criminal court plea proceedings. Upon 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.

          Manuel B. Russ (on appeal) and Brian M. Griffith (at hearing), Nashville, Tennessee, for the appellant, Tut Mayal Tut.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Glenn R. Funk, District Attorney General; and Megan King, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          TIMOTHY L. EASTER, JUDGE.

         Factual and Procedural Background

         On March 17, 2012, Petitioner and his codefendants, Yangreek Tut Wal, Duol Tut Wal, and Peterpal Tutlam, kidnapped, robbed, and brutalized the male victims, P.T. and R.W.[1] Petitioner was fifteen years old at the time.[2] A delinquency petition was filed in the Davidson County Juvenile Court charging Petitioner with two counts of especially aggravated kidnapping, two counts of especially aggravated robbery, and four counts of aggravated rape.[3] The Juvenile Court eventually transferred the case to the Davidson County Criminal Court. Petitioner pled to the offenses as charged in exchange for a sentence of 30 years to be served at 100% in the Department of Correction and lifetime supervision as a sex offender.

         According to the evidence presented by the State, the victims went to the Tennessean distribution center around 3:00 a.m. on March 17, 2012, to pick up newspapers to deliver. Because the papers would not be ready for some time, the victims decided to go to R.W.'s apartment. As they were walking up the stairs toward the apartment, the victims were approached by four individuals asking for the location of a specific apartment. As the victims tried to give the men some directions, the men "charged at" the victims and hit them. One of the assailants placed a knife at R.W.'s throat. P.T. threw his coffee at one of the assailants. The assailants continued to assault the victims and rummaged through their pockets, removing their wallets. The victims were then forced into the back seat of a small car with one of the assailants while the other three sat in the front seat. As the car was driven around, the victims were beaten and repeatedly stabbed with the assailants passing the knife back and forth among themselves. The assailants demanded the PIN numbers for the victims' bank cards and withdrew money from ATMs. The assailants then ordered the victims to perform fellatio on each other. After approximately forty-five minutes to an hour of this ordeal, the assailants forced the victims to strip naked, exit the car, and get on the ground where they were again severely beaten. As the assailants fled in the vehicle, they threatened to kill the victims. The victims were able to walk to a nearby house to seek assistance and were eventually taken to the hospital.

         During the investigation, the police were able to obtain security footage of one of the codefendant's withdrawing money from an ATM. A search warrant was obtained for Duol and Yangreek Wal's house.[4] There, the police found some of the victims' belongings as well as a "large amount of blood evidence" in the back seat of a car in the driveway. Petitioner's DNA was also discovered on some of the items. P.T. was able to identify Petitioner in a photographic lineup as the assailant at whom he had thrown his coffee.

         On March 19, 2014, Petitioner filed a pro se petition for post-conviction relief. Counsel was appointed, and amended petitions were filed on August 29, 2014, and November 6, 2015. Petitioner alleged that he received ineffective assistance of both juvenile and trial counsel. Evidentiary hearings were held on August 26, 2015, November 10, 2015, and January 19, 2016. On July 13, 2016, the post-conviction court entered an order denying relief. The post-conviction court concluded that Petitioner failed to prove either deficient performance or prejudice with regard to both juvenile and trial counsel. Petitioner filed a timely notice of appeal.

         Analysis

         On appeal, Petitioner alleges that he received ineffective assistance of counsel during both the juvenile court transfer hearing and the criminal court plea proceedings. Specifically, Petitioner alleges that juvenile counsel was ineffective for failing to present proof at the transfer hearing that would have persuaded the juvenile court to deny the transfer to criminal court. Additionally, Petitioner alleges that trial counsel failed to convey accurate information concerning his bond, failed to provide all of the discovery material to Petitioner, and failed to accurately convey the length of Petitioner's plea-bargained sentence. Petitioner contends that but for these deficiencies of trial counsel, he would not have pled guilty but would have insisted on going to trial.

         I. Standard of Review

         Post-conviction relief is available for any conviction or sentence that is "void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States." T.C.A. § 40-30-103. In order to prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). "Evidence is clear and convincing when there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence." Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

         On appeal, this Court will review the post-conviction court's findings of fact "under a de novo standard, accompanied with a presumption that those findings are correct unless the preponderance of the evidence is otherwise." Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh or re-evaluate the evidence presented or substitute our own inferences for those drawn by the post-conviction court. Id. at 456. Questions concerning witness credibility, the weight and value to be given to testimony, and the factual issues raised by the evidence are to be resolved by the post-conviction court. Id. However, ...


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