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Johnson v. State

Court of Criminal Appeals of Tennessee, Jackson

September 15, 2017

JEROME JOHNSON
v.
STATE OF TENNESSEE

          Assigned on Briefs August 1, 2017

         Appeal from the Criminal Court for Shelby County No. 10-07575 Lee V. Coffee, Judge

         Petitioner, Jerome Johnson, was convicted of reckless endangerment, aggravated assault, and solicitation of the filing of a false police report. His convictions and effective sentence of fifteen years, eleven months, and twenty-nine days were affirmed on direct appeal. See State v. Jerome Johnson, No. W2012-01754-CCA-R3-CD, 2013 WL 5488522, at *1 (Tenn. Crim. App. Sept. 30, 2013), perm. app. denied (Tenn. Feb. 11, 2014). Petitioner subsequently sought post-conviction relief for ineffective assistance of both trial counsel and appellate counsel. The post-conviction court denied relief after a hearing. On appeal, we hold that Petitioner failed to show that counsels' actions were deficient and that Petitioner was prejudiced thereby. 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

          Eric Mogy (on appeal), and Gregory D. Allen (at hearing), Memphis, Tennessee, for the appellant, Jerome L. Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Ann Schiller, 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.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         Factual and Procedural History

          On June 25, 2010, Petitioner verbally abused and severely beat the victim, his girlfriend, for a period of ten minutes after returning from a party. See Jerome Johnson, 2013 WL 5488522, at *1. The victim suffered multiple injuries from the beating, including a fractured nose, several fractured ribs, a punctured and collapsed lung, swollen eyes and neck, and bruises and lacerations on her face. Id. The next morning, Petitioner beat the victim again, and told the victim that "if [she] didn't say someone jumped on [her], . . . he wasn't gonna [sic] get [her] any help." Id. at *2. On December 2, 2010, Petitioner was indicted by the Shelby County Grand Jury for attempted second-degree murder in Count One, aggravated assault in Count Two, and solicitation of the filing of a false police report in Count Three. Id. at *1.

         Initially, the date for Petitioner's trial was set for August 2011, but the trial date was continued and eventually set for May 2012. In the time between Petitioner's indictment and his trial, our supreme court decided State v. Watkins, 362 S.W.3d 530 (Tenn. 2012), on March 9, 2012. In Watkins, our supreme court adopted the federal double jeopardy standard, more commonly known as the Blockburger test from Blockburger v. United States, 284 U.S. 299 (1932), and abandoned the state-specific standard set forth in State v. Denton, 938 S.W.2d 373 (Tenn. 1996). Watkins, 362 S.W.3d at 556. Prior to trial, the trial court informed Petitioner of the Watkins decision and its implications in Petitioner's case. The trial court explained that, under the Blockburger test, Petitioner could be convicted, punished, and sentenced for charges that involved the same conduct. In light of that information, Petitioner still indicated that he did not want to accept the State's offer for a guilty plea and wanted to proceed to trial. There is no indication in the appellate record that trial counsel advocated for the application of the Denton test prior to trial or during trial. On May 17, 2012, Petitioner was convicted of reckless endangerment as a lesser included offense in Count One. Jerome Johnson, 2013 WL 5488522, at *1. In Counts Two and Three, Petitioner was convicted as charged. Id.

         Petitioner was sentenced to fifteen years' imprisonment as a Range III, persistent offender for the aggravated assault conviction in Count Two, and eleven months and twenty-nine days each for the reckless endangerment conviction in Count One and the solicitation of the filing of a false police report in Count Three. Id. The trial court ordered the sentences in Count One and Count Two to run concurrently, and the sentence in Count Three to run consecutively. Id.

         The trial court denied Petitioner's motion for a new trial on July 20, 2012, and Petitioner appealed his case, arguing only sufficiency of the evidence. This Court affirmed Petitioner's conviction. Id. at *10. Petitioner filed a timely petition for post-conviction relief, counsel was appointed, and an amended petition was filed on April 10, 2015. A supplement to the petition was filed on February 23, 2016. The post-conviction court held a hearing on the petition on August 16, 2016.

         At the hearing, Petitioner's trial counsel stated that she was aware of the change in the standard for determining double jeopardy violations in Tennessee. She further acknowledged that under the Denton test, the convictions for aggravated assault and attempted second-degree murder would merge. However, she admitted that she never objected to the indictment containing the aforementioned charges. She explained that the reason that the trial was continued and reset was that the Assistant District Attorney needed more time to obtain the relevant medical records for trial. ...


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