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McKinley v. State

Court of Criminal Appeals of Tennessee, Jackson

February 8, 2018

HERMAN MCKINLEY
v.
STATE OF TENNESSEE

          Assigned on Briefs June 6, 2017

         Appeal from the Criminal Court for Shelby County No. 11-04050 Lee V. Coffee, Judge

         The Petitioner, Herman McKinley, filed a petition for post-conviction relief, alleging that his trial counsel was ineffective by failing to preserve his right to allocution at the sentencing hearing and by failing to ask the trial court to recuse itself because it signed the Petitioner's arrest warrant. The post-conviction court denied relief, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

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

          Eric Mogy (on appeal) and James Jones (at hearing), Memphis, Tennessee, for the Appellant, Herman McKinley.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Amy P. Weirich, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          NORMAMCGEEOGLE, JUDGE.

         I. Factual Background

         The Petitioner was indicted for the first degree premeditated murder of Toby Gladney; the attempted first degree premeditated murder of Jimmie Williams; the aggravated assault of Williams; the aggravated assault of Laquita Turner; employing a firearm during the commission of a dangerous felony; and the unlawful possession of a handgun by a convicted felon. State v. Herman McKinley, No. W2012-00050-CCA-CCA-R3-CD, 2013 WL 3193415, at *4 (Tenn. Crim. App. at Jackson, June 20, 2013). On direct appeal, this court stated that the Petitioner's

multiple convictions in this case arose from two separate, although related, shootings which occurred on September 23, 2009, at the Claiborne Holmes Apartments in Memphis. Multiple witnesses testified about the two shootings, and certain discrepancies were noted in the various testimony. However, the general testimony offered, with the exception of the [Petitioner's], established that the [Petitioner] approached Laquita Turner and Jimmie Williams outside Ms. Turner's apartment and began an argument because his girlfriend refused to exit the apartment. After leaving the scene, the [Petitioner] returned with a gun and fired one bullet between Ms. Turner and Mr. Williams, although neither party was wounded. The [Petitioner] then left the area again, and police were called to the scene to investigate. After the police left the scene, the [Petitioner] returned and was heard threatening Mr. Williams. He approached the area where Mr. Williams was assisting a neighbor with his automobile and began firing the gun. In the fray, seventeen-year-old Toby Gladney was shot and later died as a result of a gunshot wound to the back.

Id. at *1. The jury convicted the Petitioner of the lesser-included offense of second degree murder in count one and of the remaining offenses as charged. Id. at *4. The trial court sentenced the Petitioner to forty years at one hundred percent for second degree murder; forty years at thirty-five percent for attempted first degree murder; fifteen years at forty-five percent for each aggravated assault; fifteen years at one hundred percent for employing a firearm during the commission of a dangerous felony; and six years at forty-five percent for possession of a handgun by a convicted felon. Id. The trial court ordered the sentences to be served consecutively, for a total effective sentence of one hundred and thirty-one years. Id. On direct appeal, this court affirmed the Petitioner's convictions and sentences. Id. at *6-11.

         Thereafter, the Petitioner filed a petition and an amended petition for post-conviction relief, alleging, in pertinent part, that his trial counsel was ineffective by failing to preserve the Petitioner's right to allocution at the sentencing hearing and by failing to ask the trial court to recuse itself because it had signed the Petitioner's arrest warrant.[1]

         At the post-conviction hearing, trial counsel testified that he was appointed to represent the Petitioner in 2011, approximately one and one-half years prior to trial. Trial counsel recalled that the case originally was set in Division X, which had a "very, very long wait period for trials" but that the trial court in Division VII ...


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