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Tucker v. State

Court of Criminal Appeals of Tennessee, Jackson

August 31, 2017


          Assigned on Briefs Date: August 1, 2017

         Appeal from the Criminal Court for Shelby County No. 14-04391 J. Robert Carter, Jr., Judge

         Petitioner, Kenneth Tucker, appeals the post-conviction court's dismissal of his post-conviction petition alleging ineffective assistance of counsel. After a review, we determine Petitioner has failed to establish that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

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

          Shannon M. Davis, Memphis, Tennessee, for the appellant, Kenneth Tucker.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy P. Weirich, District Attorney General; and Leslie Fouche, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert W. Wedemeyer, JJ., joined.



         Factual Background

         In July of 2014, Petitioner and Allen Neasby were indicted for one count of aggravated robbery, one count of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony. Both Petitioner and Mr. Neasby entered guilty pleas to one count of aggravated robbery and one count of aggravated burglary. Count Three of the indictment, employing a firearm during the commission of a dangerous felony, was dismissed.[1] In exchange for the entry of the guilty pleas in Counts One and Two, Petitioner received an effective sentence of eight years to be served at 85%.

         At the guilty plea hearing, the factual basis for the plea was established by the State. Both Petitioner and Mr. Neasby stipulated that they entered the female victim's home at night, pointed a gun at the victim, and demanded money. When the victim refused, she was struck in the face with the handgun, breaking her cheekbone. The victim eventually gave in to the demands by handing over the cash from her purse. The men ransacked portions of her home before running from the scene. Mr. Neasby was identified as a suspect, and the victim confirmed his identity after picking him out of a photographic lineup. Mr. Neasby confessed and named Petitioner as his accomplice. The victim was also able to identify Petitioner.

         Petitioner filed a timely pro se petition for post-conviction relief. In the petition, he claimed that the guilty plea was unknowing and involuntary, his confession was coerced, the conviction was based on evidence obtained pursuant to an unlawful arrest, the conviction was based on the unconstitutional failure of the prosecution to disclose evidence favorable to the defense, and he received ineffective assistance of counsel. Counsel was appointed, and an amended petition was filed. In the amended petition, Petitioner alleged the following with regard to ineffective assistance of counsel: (1) counsel failed to properly investigate the case and interview witnesses; (2) counsel did not provide discovery to Petitioner; (3) counsel failed to "do her due diligence in defending the [Petitioner]"; and (4) counsel failed to challenge the arrest as unconstitutional. Petitioner also alleged prosecutorial misconduct during the preliminary hearing.

         At the hearing on the petition for post-conviction relief, Petitioner admitted that he entered guilty pleas to aggravated robbery and aggravated burglary in exchange for a sentence of eight years. However, he claimed trial counsel was "defiant from the beginning, " withholding the discovery materials from Petitioner. Petitioner claimed that he was unaware Mr. Neasby had signed a confession. Petitioner maintained his innocence, claiming that he "gave [trial counsel] witnesses and alibis that she needed to subpoena to court, that she needed to even contact, " and trial counsel failed to do so. Petitioner maintained that trial counsel's failure to investigate, secure witnesses, and provide discovery put him in "duress." Petitioner explained that trial counsel told him this plea offer was the "best" deal he could get and that he had "to sign for this eight-year sentence for something [he] didn't do." Petitioner claimed trial counsel told him if he successfully completed a year of incarceration he could get "special parole." Petitioner testified that this promise of "special parole" led him to sign the plea agreement.

         Petitioner admitted on cross-examination that trial counsel gave him the address for a website on which he could read his discovery materials. Petitioner claimed that he attempted to access the materials on his telephone but was unable to do so because he did not have a computer. Petitioner "tried to send a message" to trial counsel through the website in which he requested a paper copy of discovery. Petitioner did not think that the message went through. Petitioner did successfully send a message to trial counsel to "call him" ...

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