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Gleaves v. State

Court of Criminal Appeals of Tennessee, Nashville

August 30, 2017

ELBERT BRYANT GLEAVES
v.
STATE OF TENNESSEE

          Assigned on Briefs August 8, 2017

         Appeal from the Criminal Court for Davidson County No. 2012-B-1296, 2012-B-1275, 2012-C-2534 J. Randall Wyatt, Jr., Judge.

         The petitioner, Elbert Bryant Gleaves, appeals the denial of his post-conviction petition. The petitioner argues he received ineffective assistance of counsel prior to trial forcing him to accept the State's plea offer. 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.

          Susan L. Kay, Nashville, Tennessee, for the appellant, Elbert Bryant Gleaves.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Amy M. Hunter, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Robert W. Wedemeyer, and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE.

         Facts and Procedural History

         This petition for post-conviction relief is based upon the petitioner's claim that his trial counsel did not adequately investigate the case against the petitioner and this failure deprived the petitioner of constitutionally effective assistance of counsel. Furthermore, the petitioner claims that this alleged deficiency resulted in a false impression that he would only serve four years in prison; therefore, he did not knowingly, voluntarily, and intelligently enter the plea agreement with the State of Tennessee.

         The petitioner was initially charged as a juvenile with misdemeanor theft and attempted murder. Subsequently, on May 14, 2012, the petitioner was indicted by a Davidson County grand jury for theft of under $500 in case number 2012-B-1275 and aggravated assault in case number 2012-B-1296. In addition, the petitioner faced indictments for aggravated robbery, carjacking, employing a firearm during a dangerous felony, evading arrest, aggravated assault, and two counts of leaving the scene of an accident in case number 2012-C-2534. The petitioner was dissatisfied with counsel who had represented him in juvenile court and petitioned for replacement counsel.[1] The court granted the request and appointed trial counsel to represent the petitioner.

         Based upon testimony from the petitioner and trial counsel the representation proceeded along the following lines. Trial counsel spoke briefly with the petitioner after initial assignment, after which trial counsel met with the petitioner in prison to discuss the petitioner's options. Trial counsel encouraged the petitioner to plead guilty in order to avoid the likely outcome of a significantly longer prison term. The petitioner's primary concern was to minimize time spent in prison in order to return to his family as soon as possible. Trial counsel spoke with the petitioner at least once more by phone prior to the plea hearing. Prior to entering his plea, the petitioner met with both trial counsel and members of his family to discuss the State's offer of a maximum sentence of ten years. After a discussion with trial counsel, the petitioner's family asked to speak with the petitioner alone. After a few minutes, the family informed trial counsel that the petitioner would accept the plea agreement.

         During the plea colloquy, the State announced that the petitioner would plead guilty to the following: theft of property under $500 and receive a sentence of eleven months and twenty-nine days; two counts of aggravated assault and receive a sentence of three years as a Range I offender for each; and aggravated robbery and receive a ten year sentence. All the sentences would run concurrently for a total effective sentence of ten years. Per the plea agreement, the other counts of the indictment would be dismissed. After the State announced the terms of the plea, the trial court explained the sentence in detail to the petitioner, after which, the petitioner and trial counsel had a brief discussion off the record. Once back on the record, the trial court again reiterated that the petitioner would be receiving a ten-year sentence at eighty-five percent release eligibility.

         The trial court then informed the petitioner of his rights, including his right to a jury trial and the presumption of innocence. The petitioner said he understood the terms of the plea and trial counsel confirmed this. The State proceeded to announce its proof, after which, the petitioner plead guilty to one count of theft under $500, one count of aggravated robbery, and two counts of aggravated assault. The trial court ...


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