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Westbrook v. State

Court of Criminal Appeals of Tennessee, Jackson

January 25, 2018


          Assigned on Briefs December 5, 2017

         Appeal from the Criminal Court for Shelby County No. 14-03378 James C. Beasley, Jr., Judge

         The petitioner, Aaron Westbrook, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel relating to the entry of his guilty plea. 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

          Terrell L. Tooten, Cordova, Tennessee, for the appellant, Aaron Westbrook.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Devon Lepard, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.


          J. ROSS DYER, JUDGE


         I. Guilty Plea Hearing

         On November 2, 2015, the petitioner pled guilty, as charged, to aggravated robbery in violation of Tennessee Code Annotated section 39-13-402. Prior to the entry of the guilty plea, the trial court conducted a thorough plea colloquy with the petitioner during which the trial court addressed the charged offense and the potential sentence the conviction carried, the agreed upon sentence and the petitioner's eighty-five percent eligibility for release, and the constitutional rights the petitioner waived upon the entry of the plea.[1] At the hearing, the State presented the following facts, which were stipulated to by the petitioner, concerning the aggravated robbery:

Had this matter gone to trial, the State's proof would have been the following. Under indictment 14-03378, that on December 31st, 2013, officers responded to a robbery at Epping Way and South Advantage Way. That is located here in Shelby County.
[The] victim said he had been communicating with the [petitioner] by text message from a phone number regarding an ad that he had posted on Craigslist for the sale of a Samsung tablet with a Bluetooth keyboard, total value of around six hundred dollars ($600).
[The] [v]ictim advised that the suspect told him to meet him at the Jamesbridge Apartments, and that, when he arrived, the suspect examined the tablet for several minutes before motioning to a second suspect to approach, who did brandish a shiny black revolver and ordered [the victim] to get back in the car, or he would blow his head off.
[The victim] did comply, and the suspect took the tablet and keyboard and fled between the buildings.
Suspect two stood there with the gun and watched until the victim drove away.
The victim did call police. They were able to trace the number back to the [petitioner's] phone. They put [the petitioner's] picture in a photographic lineup, and he was picked out by the victim as the person responsible for robbing him of that tablet.

         All those events did occur here in Shelby County, Tennessee.

         Before reviewing the constitutional rights the petitioner was relinquishing upon entering his guilty plea, the trial court confirmed trial counsel reviewed and explained the plea to the petitioner prior to its entry and that he understood the same. The trial court then affirmed the petitioner understood he was giving up his right to "go to trial, " "to subpoena witnesses, " "to listen to the witnesses who come in here to testify" and to "cross-examine them, " and "to testify" for himself. The trial court informed the petitioner he "could have been facing eight to thirty years" at eighty-five percent service for aggravated robbery at trial. Additionally, the trial court explained to the petitioner "if [he] get[s] arrested and convicted of other crimes of violence, " the aggravated robbery conviction "could be used to enhance [his] punishment to life in prison." The petitioner waived the above-listed rights and confirmed he was not forced into pleading guilty or "promised" anything in exchange for pleading guilty. The petitioner asked the trial court if he would receive jail credit for the days he served after "[t]he time he got picked up." Finally, the petitioner stated he was satisfied with trial counsel's representation.

         At the conclusion of the guilty plea hearing, the trial court sentenced the petitioner, as a Range I, mitigated offender, to 7.2 years in confinement to be served at eighty-five percent.

         II. Post-Conviction Evidentiary Hearing

         The petitioner filed a pro se petition for post-conviction relief wherein he alleged he was party to an improper line-up, his guilty plea was involuntarily entered, and he received ineffective assistance of counsel. The post-conviction court appointed counsel, and the petitioner filed an amended petition for post-conviction relief wherein he alleged "he is being held unlawfully based on the grounds that he experienced ineffective assistance of counsel, which led to an unknowingly given guilty plea, and that he did not receive due process under the law." The petitioner filed a second amended petition for post-conviction relief wherein he further alleged he was denied due process because the trial court failed to comply with Rule 11 of the Tennessee Rules of Criminal Procedure upon the entry of his guilty plea. Specifically, the petitioner alleged the trial court failed to address: (1) "[t]he maximum penalty and any mandatory minimum penalty" faced by the petitioner; (2) the petitioner's "[r]ight to trial by jury;" (3) the petitioner's "[r]ight against self-incrimination;" (4) that a "[g]uilty plea must be free of any threats, promises, or coercion;" (5) that "[t]here must be a determination that there is a factual basis for the plea;" and (6) that "[b]y pleading guilty to the charge, future convictions can be enhanced based on the guilty plea." The post-conviction court then held an evidentiary hearing during which the petitioner and his trial counsel testified.

         Trial counsel stated he was retained to handle the petitioner's trial and "first met [the petitioner] when he was in [g]eneral [s]essions." According to trial counsel, he discussed the discovery with the petitioner at the general sessions level and then "intermittently over the next fourteen months that [trial counsel] was on the case." Trial counsel stated he met with the petitioner twice in his office, and though he did not provide the petitioner with a "paper copy of the discovery, " the two "discussed it at length." Specifically, trial counsel stated he and the petitioner discussed "the fact [the petitioner] was pointed out in a photospread by the victim, " though he was not "positive" he showed the petitioner the actual photospread wherein he was identified, "the fact [the petitioner] gave a statement to the police putting himself on the scene of the robbery, " and "the fact that [the petitioner] was actually found with the gun." Trial counsel testified he and the petitioner also discussed the fact that the petitioner's brother was misidentified in a separate photospread during the investigation and they discussed how to use this fact as part of their strategy at trial. In trial counsel's opinion, however, the misidentification evidence "paled in comparison to the evidence against [the petitioner]." Trial counsel explained, as follows: "As I recall this was a [Craigslist] robbery that [the petitioner] used his personal cell phone to set up the meeting, that is how the police actually tracked him down, and the police found him in his home with the weapon that was used in the robbery."

         Trial counsel explained he worked on the petitioner's case "at length, " noting he obtained a bond reduction which enabled the petitioner to be released from custody in order to finish high school. Additionally, trial counsel worked "at length" to negotiate a plea deal on behalf of the petitioner under the mandatory minimum for an aggravated robbery conviction. Trial counsel stated he believed a guilty plea was in the petitioner's best interest because he "felt the facts of the case and the evidence against him was overwhelming, " further stating the petitioner "expressed the same concern to [him]." Trial counsel stated his "last meeting [with the petitioner] was a few weeks before the trial, at which time [they] decided that the guilty plea was the best move."

         Upon examination by the trial court, trial counsel affirmed he never questioned the petitioner's understanding of the proceedings surrounding his case or their communication regarding the same. Trial counsel had no hesitation about the petitioner's guilty plea, stating it was, in his opinion, freely, voluntarily, and knowingly entered. Trial counsel stated, "I think [the petitioner] understood everything." Trial counsel felt he "did everything [he] could in this case."

         The petitioner then testified. He was twenty-one years old at the time of his guilty plea. Though he made it through the ninth grade, the petitioner stated he can read but he has "trouble comprehending sometimes." According to the petitioner, he and trial counsel discussed his case "[p]robably between five times, less than ten though." The petitioner stated he did not receive a copy of the discovery in his case, and he was unaware of the contents of the same. For example, the petitioner stated he learned that his brother was misidentified in a photospread while preparing for his post-conviction proceedings. The petitioner testified that if he had known of the misidentification issue prior to pleading guilty, he would not have done so. When asked what he and trial counsel discussed in their meetings if not the discovery, the petitioner stated trial counsel "was basically telling me while [the case] was being set off saying he was still trying to negotiate." However, on cross-examination, the petitioner further detailed the discussions he had with trial counsel regarding the evidence at issue in the case. Specifically, trial counsel told the petitioner the investigation revealed the cell phone used in the robbery was held in the petitioner's name, the victim identified the petitioner as one of his robbers, and the petitioner was found with the gun used in the robbery upon arrest. The two also discussed the petitioner's statement to police and how to approach the case based upon the evidence against him. Ultimately, the petitioner chose to plead guilty, stating a week prior to trial, trial counsel told the petitioner "he didn't think he could win the trial." The petitioner believed trial counsel was "looking out for [his] best interest, " and as a result, the petitioner pled guilty.

         Regarding the guilty plea colloquy, the petitioner stated trial counsel told him to "agree with everything" asked of him by the trial court because trial counsel "already went over [] everything" with him prior to the guilty plea hearing. The petitioner admitted he knew he could have received more time than what he was pleading guilty to at trial, but maintained trial counsel "didn't say nothing about eight to thirty years or nothing like that." Rather, the petitioner believed he would receive 13.5 years at trial for an aggravated robbery conviction. The petitioner stated although trial counsel told him to plead guilty, ultimately it was his decision. The petitioner admitted the trial court informed him of the sentencing range he faced at trial if convicted of aggravated robbery which was eight to thirty years to be served at eighty-five percent.

         However, the petitioner also testified he believed his conviction would come off his record. When asked by the trial court as to why he believed the conviction would come off his record, the petitioner stated "[n]o one told me that it couldn't." Despite this statement, the petitioner acknowledged the trial court "said if [he] get[s] in trouble again this could not come off [his] record." Furthermore, the petitioner affirmed he ...

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