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Phillips v. Johnson

United States District Court, M.D. Tennessee, Nashville Division

September 27, 2017

JARROD PHILLIPS, Petitioner,
v.
DEBRA K. JOHNSON, WARDEN, Respondent.

          Waverly D. Crenshaw, Jr. Chief Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge.

         This habeas corpus case is before the Court for decision on the merits. Petitioner filed the Petition (ECF No. 1) and a Traverse (ECF No. 49). Respondent filed the state court record (ECF No. 27) and the Answer/Return of Writ (ECF No. 28).

         Phillips pleads the following Grounds for Relief:

GROUND ONE: "As a general rule, a trial judge may correct an illegal, as opposed to a merely erroneous sentence at any time, even if it has become final." State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978); Davis v. State, 313 S.W.3d 751, cert. den. (2010), WL 3321488; Hart v. State, 21 S.W.3d 901, 902 (Tenn. 2000). The challenge to Petitioner's sentence is not that he could plead guilty to a sentence of thirty-two (32) years for a Class A felony. It is abundantly clear that the State of Tennessee's position is that a Class A felony sentence "range" is from "not less than 15 years to not more than 60 years." [Tenn. Code Anno. Section 40-35-111 (b)(J)]
However, the Sentence Reform Act of 1989 specifically provides that sentences fall under one of three categories, and this condition is based on the number and severity of his priors and the offense for which the defendant is found guilty. The Petitioner is found guilty of 2nd degree murder. He had one prior for a Class C felony, for which he received probation.
The fact that ordinarily, considering the relevant requirements of the law applicable to "Range I" sentences, is that because he had only one ''prior" offense, his sentence range is "not less than 15 nor more than 25 years" [Tenn. Code Anno. 40-35-112(a)(J) But, the usurpation of due process is to be compared to the other relevant fact that Petitioner received a sentence within Range II, which the State of Tennessee describes as a ''best interest plea", of 32 years for 2nd degree murder.
The sentence he received is challenged because of the denials of due process attendant to the guilty plea hearing which resulted in his guilty plea. Petitioner would add however, that the essential question is latent in the nature of the guilty plea, that resulted in him being sentenced outside Range I. The Sentencing Reform Act of 1989 factors governing sentences in the state of Tennessee for a Range I sentence, provide that Petitioner's sentence may fall within one of three categories of Range I, Range II or Range III, depending on his priors and the validity of a waiver of the defendant's right to be sentenced according to the lawful Range. T.C.A. § 40-35-210(b). See State v. Ashby, 823 S.W.2d 166 (Tenn. 1991). Further, for a Class A sentence for the offense of 2nd degree murder, to exceed 25 years it must fall in Range II or Range III. Range II sentences begin at 25 years to 40 years. According to law, petitioner had to be sentenced as a Range I offender, unless he was informed he was being sentenced as a Range II or Range III offender felony class, for 2nd degree murder, even though Range II "multiple" offender requires ''2-4 priors", according to the Sentence Reform Act. [T.C.A. § 40-35-106(a)].
GROUND TWO: ''A 'knowing' waiver is one that is "made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." State v. Stephenson, 878 S.W.2d 530, 544-45, citing, Fare v. Michael C., 442 US. 707 (1970); North Carolina v. Butler, 441 U.S. 369 (1979). In petitioner's case, there is no evidence on the record that he waived his rights knowingly and intelligently, as there was no discussion of the nature of the "best interest" sentence's illegality that was being waived. Further, the 32 year sentence at 100% is equivalent to a LIFE sentence in 2009. Life sentences in Tennessee equal thirty-six calendar years with a minimum of twenty-five years before release eligibility. (T.C.A. §§ 40-28-116; 40-35-501 (h)(1): "Release eligibility for each defendant receiving a life sentence of imprisonment for first degree murder shall occur after service of sixty (60%) of sixty (60) years less sentence credits earned and retained by the defendant, but in no event shall a defendant sent to imprisonment for life be eligible for parole until the defendant has served a minimum of twenty-five (25) full calendar years of the sentence.... "
In Tennessee, "... waiver will not be presumed where there is no evidence ... to indicate that the appellant was made aware of the issue. " See also United States v. Young, 73 F.Supp.2d 1014, 1024 (N.D. Iowa 1999); State v. McClintock, 732 S.W.2d 268 (Tenn. 1987); State v. Mackey, 553 S.W. 337 (Tenn. 1977); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709. In Mackey, supra, the court found that under Boykin v. Alabama, a defendant waives numerous constitutional rights upon a plea of guilt. These rights cannot be waived unless there is an affirmative showing that the guilty plea was intelligent and knowingly made.
The affirmative showing can only be met by the trial court's questioning and advising the accused of the significant consequences of a guilty plea. In Tennessee, Mackey imposed on trial court's even stricter standards than those mandated by the gold standard in Boykin, which included specific warnings and advice which the defendant must receive as part of his plea. See Tenn. Rule of Criminal Procedure Rule 11. See also Brady v. United States, 397 US. 742, 747 (1990). Best interest was written at some point in time on the judgment form, but the 4 comers of the form do not contain any signature or proof that Rule 11 was complied with. According to Rule 11, T.R.Crim. P., a sentence is a form of trial... as such the Defendant's right to be heard, to have the sentence of "best interest" explained to him, to have the "waiver" explained to him. A defendant cannot waive rights he didn't know he had. Cf. Taylor v. State, 2013 WL 6797398, citing, State v. Muse, 967 S.W.2d 764, 768; Tears v. State, 2013 WL 6405734 (12-6-13). T.R. Crim. P. 11 (b)(J)(H)(1).
Petitioner submits that the sentencing judge did not "insure that the plea was voluntary". Id. T.R. Crim. P. 11 (b)(2). This omission constitutes a denial of due process of law. Petitioner is not contending that he could or could not be sentenced to the "statutory minimum and maximum sentences for a particular sentencing range...: See Phillips v. State, No. M20 l 3-02026-CCA-R3-HC; 4-2314) Petitioner[sic] claim is that no one explained the real meaning of his so-called "Best Interest" plea and especially the meaning of his waiving his right to be sentenced within the Range II sentence range for a conviction of 2nd degree murder.
Tennessee judicial system has strong legal structure for substantive and procedural due process in order for a defendant to plead guilty, in particular to the particular plea known as a ''best interest" plea outside the sentence range provided by law for the defendant. See State v. McClintock, 732 S.W.2d 268 (Tenn. 1987) In this case, the state's prosecutor was the only source for which any reference to a ''best interest plea" was made:
Judge, on his plea of guilty to-- I think he is going to plead this as a best interest plea of guilty of second degree murder. The defendant would also waive his range of punishment on that for a total sentence of 32 years at 100 percent.
[pg. 8, Ins. 4-8, Guilty Plea Hearing Transcript, Case No. 2009-D-3454; Criminal Court for Davidson County, Tennessee, Division IV]
The State claims "A defendant who is a multiple offender shall receive a sentence within Range II which is 25 to 40 years for a Class A felony. Tennessee Code Annotated § 40-35-106 ©[sic], -112(b)(1)." However, the law requires that a "multiple offender must have that classification found by the court beyond a reasonable doubt", (Id.), and the district attorney general was required to file a statement that he believes the defendant should be sentenced as a multiple offender" See T.C.A. § 40-35-202(a)
GROUND THREE: Petitioner had not received constitutionally effective assistance of counsel during the penalty phase in part because of Defense Counsel's failure to adequately investigate and present mitigating circumstances during the penalty hearing.
The issue of ineffectiveness of counsel goes directly to sentencing. One of the most important functions of the defense lawyer is to represent the client zealously at the sentencing hearing. Cf Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527 (2003): [counsel's failure to investigate and present mitigating circumstances during the penalty phase deprived defendant of effective assistance of counsel]. A defendant can be sentenced within Range II only if he is found to be a "multiple offender", or is found to have committed an especially aggravated offense. T.C.A. § 40-35-202(b)(2). The Petitioner's trial attorney Public Defender Ms. Dykes, the State's attorney and the trial Court are all state actors. In Coffman v. Bomar, 220 F.Supp. 343, the court held that "any default of court appointed counsel in Tennessee criminal case must be attributed to State in testing application of Fourteenth Amendment". U.S.C.A. Const. Amend 14. Petitioner plight fell under either a "mitigated" offender or at the most a "standard" Range I offender.
GROUND FOUR: A guilty plea must be voluntarily, understandingly and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709 (1969); State v. Mackey, 553 S.W.2d 337 (Tenn. 1977); Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010). A plea is not "voluntary" if it results from ignorance, misunderstanding ...." Blankenship v. State, 858 S.W.2d 897. In that sense, petitioner's sentence was not voluntary.
Petitioner was by law a "Range I" offender, even facing the charge of 1st degree murder. When he was offered the plea to 2nd degree no one explained nor did he understand that a conviction for 2nd degree murder by best interest guilty plea can be sentenced as a Range I or Range II sentence, even though he rightly belongs in range I for that offense. When he was offered the plea to 2nd degree, he agreed because it was a lesser charge, not because he was willing to be sentenced outside the range for that offense. This was his complete understanding.
As to Range I or Range II, he had no knowledge of how he could or would be sentenced in terms of the sentencing ranges. Petitioner could still have entered a "best interest" plea to 2nd degree murder as Range I. Cf in the Tennessee case of Demarcus Sanders v. State, (No. W201 2-01685-CCA-R3-PC; 2013 WL 6021415, Tenn. Crim. App. Nov. 8, 2013) where that defendant received a "25 year sentence" - the maximum for "Range I" - for 2nd degree murder. Id. At *2.
Only after his plea was entered and long after he was sentenced, did he come to know that the sentence he received of 32 years, was in excess of the amount of time he would have received based on the statutory guidelines of priors as a Range I sentence. When or where did petitioner affirm that he understood the different "ranges of punishment which he was essentially waiving", (No. M2013-02026-CCA-R3-HC), when the record is devoid of how this required understanding was had? The Criminal Court of Appeals opinion that the Defendant "... affirmed that he understood the charges against him and their respective range of punishment". Petitioner did not understand that he would be pleading guilty to a sentence in a "Range" beyond what his criminal history allowed.
GROUND FIVE: "A void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment or because the court lacked jurisdiction or authority to render the judgment or because the defendant's sentence is expired." Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999); State v. McConnell, 12 S.W.3d 795, 797.
The trial court lost jurisdiction by violating his procedural and substantive constitutional rights to sentence him under the statute for multiple offender. Pursuant to T.C.A. § 40-35-106©[sic], "A defendant who is found by the court beyond a reasonable doubt to be a multiple offender shall receive a sentence within Range II." And yet, petitioner received "a sentence within Range II", without the court's finding "beyond a reasonable doubt'', that he is a "multiple offender".
This omission clearly proves the court lost its jurisdiction to sentence Petitioner to a Range II sentence. See State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (quoting Archer v. State, 851 S.W.2d 157, 158 (Tenn. 1993).
"Subject matter jurisdiction concerns the court's authority to adjudicate a matter. Jacob v. Partee, citing, In re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn. 2012). Jurisdiction is conferred by statute and by the constitution of the United States, and cannot be waived or conferred by the parties by silence, consent, or plea. Id. An order of a court acting without subject matter jurisdiction is void. Id. -The question of subject matter jurisdiction may be raised at any time in any court." Partee, supra, 2013 WL 5817450 (10-30-13), @#2, citing, Freeman v. CSX Transp. Inc., 359 S.W.3d 171, 176 (Tenn. Ct. App. 2010); See also May v. Carlton, 245 S.W.3d 340, 344 (Tenn. 2008) citing, State v. Burkhart, 566 S.W.2d 871, 873 [Tenn. 1978]: "An illegal sentence, one whose imposition directly contravenes a statute, is considered void and may be set aside at any time. "
Petitioner contends that the only way the State of Tennessee can justify sentencing him beyond his lawful range for punishment, is that someone, anyone, came forward and upon the record in open court, clearly established that they informed the Defendant that "this is a Range I sentence and this is a Range II sentence. Although you are (otherwise) a "Range I” offender, you are being sentenced as a "Range II" offender because you could have been facing a greater sentence had you enjoyed your right to a jury trial and the jury found you guilty beyond a reasonable doubt." The record does not reveal this kind of instruction or admonishment by the sentencing court or by defense counsel.
The State was quoted in the Criminal Court of Appeals Opinion (Id., pg. I; No. M2013-02026-CCA-R3-HC; 4-23-14) "Judgment (form) specifically 'stated' that, "Defendant waives range of punishment for Murder 2nd & will receive 32 yrs as Range 2.” (No. M2013-02026-CCA-R3-HC. Other than this "judgment" form, which was not signed by counsel or petitioner, nowhere in the State's "offer of proof' does anyone state on the record that Petitioner was advised that "you are a Range I offender, but you are waiving that range of punishment, in order to be sentenced to a 'total sentence of 32 years at 100 percent at Range II". This sort of explanation is the only way the State can fairly say that the Petitioner knowingly and understandingly waived his right to be sentenced for 2nd degree murder, outside of his Range.
His prior criminal history established that he was more correctly a Range I offender, and he could still have received a maximum sentence of 25 years, and been a "best interest" plea due to the degree of offense, not the sentence outside the range. A plea bargain also results in a lesser included offense.
GROUND SIX: Whether the trial court dismissal without reliance on the guilty plea hearing transcript was an abuse of discretion.
What the· sentencing court noted on the judgment form that the petitioner had "waive[ d] range of punishment for murder 2nd and will receive 32 years as Range 2", was not known by petitioner until after he got to prison and a counselor gave him a copy of his judgment. (See State's Motion to Dismiss, 8-14-2013, Case No. 13-CV-39). Petitioner did not voluntarily, knowingly and intelligently waive his rights. U.S. Const. Amend. 5; Const. Art. I § 9, where he did not have a "rational as well as factual understanding of the proceedings: State v. Blackstock, 19 S. W, . 3d 200, 205, citing, Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789 (1960).
The State is attempting to parlay the writing on a judgment "form" that was not signed by petitioner or his attorney, as equivalent to the U.S. Supreme Court requirement that waiver must be in open court. North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin, supra, 395 U.S. at 244. "in considering the validity of a judgment, an examination of the underlying record is appropriate in habeas corpus proceedings." Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). A trial court abuses its discretion when it causes an injustice by applying an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice." Dickson v. Kriger, 2012 WL426601; Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011).
The sentencing State court did not follow the statutory sentencing procedure, did not make findings of fact that are adequately supported in the record, and did not give due consideration to the factors and principles that are relevant to sentencing under the Tennessee Sentence Reform Act of 1989. T.C.A. § 40-35-117; § 40-35-112. (Sentence ranges) The sentencing court abused its discretion in sentencing him to a sentence outside of Range I and outside of his knowledge and understanding.
In order to ensure that a defendant understands the constitutional rights being relinquished, the trial court must advise the defendant of the consequences of a guilty plea, and determine whether the defendant understands those consequences. Boykin, 395 U.S. at 244. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).
GROUND SEVEN: Whether the defendant received “NOTICE” from the State of Tennessee that his plea was a best interest plea rather than a guilty plea? Amend, 5, 6, 14. Tennessee.
However, the State's attorney was not the one who was charged with the duty of explaining to petitioner what rights he was waiving with respect to this particular plea. Note that there is no reference by the State's district attorney general to Range I or Range II. And nothing whatsoever from the trial Court Judge. What the district attorney general was required to do by law as a matter of due process to the defendant, is provided by statute T.C.A. § 40-35-202 (a):
If the district attorney general believes that a defendant should be sentenced as a multiple, persistent or career offender, the district attorney general shall file a statement thereof with the court and defense counsel not less than ten (10) days before trial or acceptance of a guilty plea; provided, that notice may be waived by the defendant in writing with the consent of the district attorney general and the court accepting the plea. "
T.C.A. § 40-35-202 (a).
It is not the State's district attorney general's duty to provide that the Defendant's plea be knowingly, understandingly and intelligently made. Yet, in this case, the only reference at all to the sentence petitioner received, was made by the court, and the reference was to the "nulled" charge of "Count III". (See pg. 5, Ins. 4-5) No reference to the charge or sentence received. What makes the sentence unconstitutional is the absence from the trial court, to the Defendant advising him of the nature of the plea in terms of the sentence. The State takes a look at it, but in no way can the uncertain characterization of the State fulfill the requirements of the law:
"I think he is going to plea This as a best interest plea". [lns. 4-5, pg. 8)
The significance of these glaring denials of petitioner's constitutional federal 5th, 6th and 14th amendment rights to notice, equal protection and to due process of law, is that had the district attorney general put Petitioner on "notice" that he "believes that a defendant should be sentenced as a multiple ... offender" we may not be having this argument now.
Putting petitioner on notice that he would be sentenced as a Range II multiple offender as required by T.C.A. § 40-35-202 (a), may well have brought with it an explanation that (1) petitioner did not meet the statutory number of priors to otherwise plead guilty to a sentence of 32 years, and (2) the State intended nonetheless to induce him as a Range II offender as part of the "best interest" plea bargain, and reduce the offense in lieu of giving up his rights to trial by jury, the presumption of innocence, right to counsel during trial, right to direct appeal, to witnesses in his own behalf, and to cross examine any adversarial witnesses, and of course the right not to be compelled to be a witness against himself.
GROUND EIGHT: Whether the petitioner knowingly understanding and intelligently pled guilty to an out of range sentence of 32 years at 100% as a Range I offender? The judgment form is void of proof that the Petitioner knowingly accepted the terms of the expressed judgment.
Only the signature of the prosecutor and the judge are preserved on the form. Petitioner contends that because of the illegality of his sentence, his sentence should be set aside: "Due process provision of Federal Constitution requires that pleas of guilty be knowing and voluntary; a knowing and voluntary guilty plea includes the intentional relinquishment or abandonment of known rights." Johnson v. State, 834 S.W.2d 922 (Tenn. 1992):("... knowing and intelligent waiver of fundamental rights''). The United States Supreme Court has provided the essential requirements in order for a guilty plea to be knowingly, understandingly, and intelligently made, in order for the State to rest on its conclusion that there was an "intentional abandonment of a constitutional right." Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019 (1938) [Relinquishment of certain constitutional rights including right against self incrimination will not be presumed from silent record; therefore unless there is affirmative showing that plea was knowing and voluntary, guilty plea may be vacated upon collateral attack. Id.] See State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003); State v. Mackey, 553 S.W.2d at 340.
GROUND NINE: Whether defense counsel explained to the Defendant the difference between a Range I and Range II sentence? Counsel was never asked in open court did he explain to the Defendant, the "best interest plea" to a sentence ...

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