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Simons v. State

Court of Criminal Appeals of Tennessee, Nashville

September 25, 2017


          Assigned on Briefs September 13, 2017

         Appeal from the Circuit Court for Montgomery County No. 40800701 William R. Goodman, III, Judge

         Dominique Dantwan Simons ("the Petitioner") appeals from the denial of his petition for post-conviction relief arguing that trial counsel rendered ineffective assistance in advising him concerning his guilty plea and therefore the plea was not knowing and voluntary. Discerning no error, the judgment of the post-conviction court is affirmed.

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

          Gregory D. Smith, Clarksville, Tennessee, for the appellant, Dominique Dantwan Simons.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Robert J. Nash, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams and Robert H. Montgomery, Jr., JJ., joined.



         Procedural History

         Guilty Plea Hearing

         On March 22, 2010, the same day that his case was scheduled for trial, the Petitioner pled guilty to Class B felony unlawful possession of one-half gram or more of a Schedule II controlled substance with intent to sell and was sentenced to eight years as a Range I, standard offender with probation after the service of one year in confinement. He received 364 days pre-trial jail credit, making him immediately eligible for release on probation on this sentence. However, he was required to serve a general sessions sentence before he would be released. The State presented the following factual basis for the plea:

On April fourth of 2008[, ] U.S. Marshalls[, ] along with the local drug task force[, ] were hunting a fugitive, Charles Berrios. They set up surveillance at 2328 Riley Court, apartment two here in Clarksville. U.S. Marshalls noticed two black males enter that apartment; they descended on the apartment, knocked and announced their presence and their authority; the door was open; inside the residence was a Chauncy Darden, Samuel Bracy, Charles Berrios and the [Petitioner]. During a protective sweep[, ] U.S. Marshalls observe[d] what appear[ed] to be narcotics manufacturing; there [wa]s [a] white powdery substance on the kitchen counter and sink, two digital scales, a Pyrex dish on the stove, paper towel filters and baking soda. There were little baggies of crack cocaine in the living room along with some marijuana. The [Petitioner] had . . . an outstanding warrant, either parole violation or something of that sort when they ran his name. [] Mr. Berrios was taken into custody. Pursuant to a consent search 245.7 grams of cocaine were located in the residence divided up equally into four separate bags. Those are the facts and circumstances.

         The trial court advised the Petitioner of his rights, including his right to a trial by jury, right to confront the State's witnesses or to subpoena witnesses, and right to remain silent or to testify. The trial court explained the presumption of innocence, the burden of proof the State was required to carry to convict the Petitioner of the offense, and that the offense was a Class B felony with a range of punishment of eight to twelve years. The trial court also explained that no one could force the Petitioner to plead guilty and that there was no right to appeal from a guilty plea. The Petitioner acknowledged that he understood his rights and that he was waiving his right to a jury trial. The Petitioner also agreed that he wanted the court to accept his guilty plea and acknowledged that on April 4, 2008, he "knowingly possessed five tenths [] gram or more of cocaine with intent to sell it[.]" The trial court then sentenced the Petitioner pursuant to the terms of the plea agreement and dismissed the remaining counts.

         Post-Conviction Proceedings

         The Petitioner filed a timely petition for post-conviction relief on March 17, 2011, claiming that he was denied the effective assistance of counsel because trial counsel failed to file a motion to reduce bond, failed to file a motion to suppress evidence, and failed to file a motion to dismiss. The Petitioner was incarcerated in Davidson County when he filed the petition but was later transferred to a federal penitentiary in Kentucky and could not be transported to Tennessee for a post-conviction hearing.[1] The Petitioner filed a pro se amended petition on September 5, 2012, in which he repeated the same claims of ineffective assistance of counsel raised in the original petition.

         On May 23, 2013, the Petitioner filed a pro se "motion to vacate plea and dismiss conviction" on the grounds that he had not had a hearing on his post-conviction petition. The motion was summarily dismissed. The Petitioner appealed, and this court affirmed the summary dismissal and remanded the case "for further proceedings on the [Petitioner's] post-conviction, if necessary." Dominique Simons v. State, No. M2013-01663-CCA-R3-PC, 2014 WL 1285493, at *2 (Tenn. Crim. App. Mar. 31, 2014), no perm. app. filed.

         The Petitioner then filed a pro se Writ of Habeas Corpus Ad Testificandum, which the trial court summarily dismissed, and the Petitioner appealed the dismissal. By order entered August 20, 2015, this court dismissed the appeal. The order stated "the trial court should act on the [Petitioner's] post-conviction petition in accordance with the procedure set forth by the statute and rule." Dominique D. Simons v. State, No. M2015-00137-CCA-R3-HC (Tenn. Crim. App. Aug. 20, 2015) (order dismissing appeal).

         By the time this court dismissed the appeal of the denial of the Writ of Habeas Corpus Ad Testificandum, the trial judge had retired, and the Petitioner's post-conviction case was assigned to a new judge. As allowed by Tennessee Code Annotated section 40-30-110(a), the Petitioner was deposed on March 23, 2016. Post-conviction counsel then filed an Amended Petition on March 31, 2016, claiming "that due to lack of contact and a sparse information flow between [trial counsel] and [the Petitioner, ] the guilty plea made [by the Petitioner] was not fully knowing and voluntary because [the] Petitioner did not completely understand his legal options and the ramifications of his plea."

         The post-conviction hearing took place on December 16, 2016. The Petitioner's deposition and the transcript of the guilty plea colloquy were entered as exhibits. Trial counsel was the only witness who testified at the hearing.

         Deposition Testimony of the Petitioner

         The Petitioner claimed that his guilty plea was not voluntarily entered. He stated that trial counsel represented him at the preliminary hearing, met with him at the jail three or four times, and met with him additional times in court. The Petitioner complained that trial counsel failed to discover before the preliminary hearing what one of his co-defendants had told police. According to the Petitioner, this co-defendant "made statements against" the Petitioner and the other two co-defendants that trial counsel did not know about. The Petitioner stated, "So I would think that [trial counsel] . . . would find out when the statement was made at the preliminary hearing before the preliminary hearing, before we went in there." He also complained that trial counsel did not give him a narrative of what the cooperating co-defendant told the police. The Petitioner stated that trial counsel "played me a piece of a tape that didn't really say nothing [sic] and then [he gave me] four pieces of paper and that's it, and then I'm trying to build off of that."[2]

         The Petitioner stated that trial counsel "hit [him] with constructive possession" but "never told [him] the definition of constructive possession other than it's the same thing as actual possession[, ]" which was what made the Petitioner "change [his] mind and go on and take the eight-year sentence[.]"[3] The Petitioner stated that he would never have pleaded guilty if he had known that "constructive possession and possession [are] two different things." When asked on direct examination if possession was the only thing he was charged with, the Petitioner stated, "It was possession ...

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