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Aho v. State

Court of Criminal Appeals of Tennessee, Nashville

February 23, 2018


          Session January 17, 2018

         Appeal from the Circuit Court for Warren County Nos. F-13913, F-13974 Larry B. Stanley, Jr., Judge

         In 2012, the Warren County Grand Jury indicted Petitioner, Ronald Henry Aho, in case number F-13913 for aggravated burglary and theft of property over $1, 000 but less than $10, 000. Petitioner was also indicted in case number F-13974 for two counts each of aggravated burglary and theft of property over $1, 000 but less than $10, 000. In January 2014, Petitioner entered best interest guilty pleas in case numbers F-13913 and F-13974 to a total of two counts of aggravated burglary and two counts of theft over $1, 000 but less than $10, 000 in exchange for the dismissal of the remaining charges and the dismissal of charges contained in three additional indictments. Pursuant to the plea agreement, Petitioner was sentenced to serve a total effective sentence of twenty-three years, with the first fifteen years to be served at sixty percent release eligibility and the last eight years to be served at forty-five percent release eligibility. Petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel and that his pleas were unknowingly and involuntarily entered. Following an evidentiary hearing, the post-conviction court denied relief. After review, we affirm the judgment of the post-conviction court.

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

          G. Jeff Cherry and Christopher Beauchamp (on appeal), Lebanon, Tennessee, and Samuel F. Hudson (at hearing), Dunlap, Tennessee, for the appellant, Ronald Henry Aho.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Lisa Zavogiannis, District Attorney General; and Randal Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.



         Plea Submission Hearing

         On January 29, 2014, Petitioner entered a best interest guilty plea, as a Career Offender, to aggravated burglary and theft over $1, 000 in case number F-13913 and received concurrent sentences of fifteen years and twelve years, respectively, to serve in the Department of Correction. In case number F-13974, Petitioner entered a best interest guilty plea, as a Range III Persistent Offender, to one count each of aggravated burglary and theft over $1, 000. Pursuant to the plea agreement, Petitioner received concurrent sentences of eight years with forty-five percent release eligibility on each count to be served consecutively to his effective fifteen-year sentence with a sixty percent release eligibility in case number F-13913, for a total effective sentence of twenty-three years in the Department of Correction. Based on Petitioner's plea, the State dismissed the two remaining counts in case number F-13974, as well as the charges against Petitioner in case numbers F-13975, F-13976, and F-13977.

         At the plea submission hearing, the State recited the following factual basis for case number F-13913:

[O]n October 18 of 2012, the State's proof would have been that [Petitioner] broke into a home on Spring Street here in Warren County owned by Ms. Sheila Bates. Once inside, [he] obtained several items of property including several items of jewelry with a combined value in excess of a thousand dollars. [He] [l]eft the house with those items and was able to elude the police in that incident.
The State recited the facts of case number F-13974, as follows:
[A] burglary [also] occurred [] on October 18 of 2012 of a house on 70 Underwood Road. Taken during that burglary were a Nintendo Wii, a PlayStation 2, approximately 100 DVD and BluRay videos, an HP Compaq notebook computer, a quantity of oxycodone and several other items and that burglary and theft occurred here in Warren County. The State's proof would be that a short time later [Petitioner] was found in possession of that stolen property.
The State's proof . . . would be . . . that they were found at a residence that [Petitioner] was associated with and there would have been proof linking him to that property.

         When questioned by the trial court, Petitioner agreed that he went over the plea documents in both cases "thoroughly" with trial counsel. Petitioner testified that he understood the nature of the charges to which the pleas were offered, the minimum and maximum sentence on each charge if convicted, his right to counsel at every stage of the proceedings, his right to plead not guilty, his right to a jury trial, his right to confront adverse witnesses and bring his own witnesses, his right to remain silent, and his right to appeal any resulting conviction or sentence. In accepting the terms of the plea agreement, Petitioner affirmed that he was waiving each of those rights. He also agreed that he was entering his pleas freely and voluntarily. Petitioner denied that he was entering the pleas because he had been threatened to do so. The trial court found that Petitioner understood his rights and made a knowing, voluntary, and understanding waiver of his rights by pleading guilty. The trial court additionally found that there was a factual basis for Petitioner's pleas.

         Post-Conviction Proceedings

         On January 30, 2015, Petitioner filed a timely pro se petition for post-conviction relief, asserting that he was denied the effective assistance of counsel and that his best interest plea was unknowing and involuntary due to Petitioner's mental incompetence. On February 8, 2015, the post-conviction court entered a preliminary order appointing counsel for Petitioner. Petitioner later retained counsel to represent him. On May 27, 2015, Petitioner, through counsel, filed an amended petition for post-conviction relief.

         At an evidentiary hearing on the petition, Bud Sharp testified that he had been practicing law for seven years when he was retained by Petitioner's parents to represent Petitioner in case number F-13913. Mr. Sharp stated that he met with Petitioner twice in a three-week period regarding the case. He stated that he may have filed a discovery motion but did not investigate any witnesses because he was on the case for only four weeks. He stated that the case had not yet been set for trial when he withdrew from representing Petitioner. Mr. Sharp recalled that he talked to Petitioner about entering a best interest plea based on Petitioner's extensive prior record, which consisted of "[forty] something felony convictions[, ]" the unpredictability of a jury trial, and the strength of the State's proof. Specifically, Mr. Sharp recalled from the police report that the victim in case number F-13913 "pulled up to her house and [Petitioner] was in the house, came out of the house, the car was sitting in the driveway, and she got his tag number and he left."

         Although Mr. Sharp remembered Petitioner discussing matters unrelated to his case, Mr. Sharp stated that this was not unusual because many of his clients tended to go off subject. Mr. Sharp stated that Petitioner was "very intelligent[.]" Mr. Sharp stated that he represented Petitioner in 2007 on a burglary and theft case and that Petitioner was mentally competent when he entered his guilty plea on the case. He acknowledged that he was aware Petitioner was drawing SSI disability, but he stated that he was not aware of Petitioner's being diagnosed with post-traumatic stress disorder or anti-social personality disorder. Mr. Sharp stated that, if the case had proceeded to trial, he may have had Petitioner undergo a forensic evaluation based on the Petitioner's drawing disability. Mr. Sharp denied telling Petitioner he should talk with the prosecutor. He stated, "[Petitioner] may have written a letter to [the prosecutor]. My clients do not talk to the State period. I do not want my clients talking to the State even though they may have good intentions." Mr. Sharp recalled that Petitioner's parents retained co-counsel, Steve Roller. Mr. Sharp talked to Mr. Roller over the phone about who would ultimately handle the case and whether a plea agreement should be negotiated. They did not discuss trial strategy. Mr. Sharp withdrew from the case on April 29, 2013.

         Steve Roller testified that he had been a practicing attorney since 1978. Mr. Roller was retained by Petitioner's parents to represent Petitioner after dismissing Mr. Sharp for some unspecified reason. Mr. Roller recalled that a trial date had been set for one of Petitioner's cases. Mr. Roller did not recall Petitioner's parents' expressing concerns about Petitioner's mental health.

         Mr. Roller testified that he met with Petitioner in the Warren County Jail more than once. During this time, Petitioner told Mr. Roller that he wanted to meet with the prosecutor; however, the State was not interested in meeting with him. Mr. Roller acknowledged that he scheduled a meeting with Petitioner and investigators Jason Rowland and Barry Powers to discuss facts about "certain different cases[, ]" despite Petitioner not having an immunity agreement. Mr. Roller stated that he advised Petitioner not to meet with the investigators, but Petitioner "insisted" on meeting with them.

         Mr. Roller denied having any knowledge of Petitioner's mental health issues. However, he recalled an incident in which Petitioner lost his temper and acted in such a way that guards interrupted their meeting and took Petitioner to his cell. Mr. Roller testified that Petitioner demonstrated his understanding of the nature of the charges against him by asking and answering relevant questions about the case. Petitioner was "very educated with legal procedure and trial" due to his extensive criminal record. Based on Petitioner's participation in his defense, Mr. Roller did not see the need to have Petitioner undergo a forensic evaluation.

          Mr. Roller recalled that he was the subject of a complaint Petitioner filed with the Board of Professional Responsibility (BPR). In his response to the complaint, Mr. Roller stated that Petitioner had serious mental problems and that Petitioner had "a mental breakdown at the jail[.]" Mr. Roller testified, however, that he was attempting to describe the incident at the jail in which Petitioner lost his temper. Despite his letter to the BPR, Mr. Roller did not believe that Petitioner lacked competency to participate in his own defense. Mr. Roller acknowledged that he was required by the BPR to refund a substantial amount of the money paid by Petitioner's parents for his representation.

         Christopher Stanford testified that, at the time of the post-conviction hearing, he had been practicing law for approximately nine years. He stated that about fifty percent of his practice involved defending individuals charged with criminal offenses. Mr. Stanford recalled that he was retained by Petitioner's parents in 2013 to represent Petitioner on his charges in multiple indictments. Petitioner's parents also retained Lee Nettles as a defense investigator. After being retained, Mr. Stanford and Mr. Nettles met with Petitioner at a prison in West Tennessee for approximately three hours. Mr. Stanford also obtained copies of the State's discovery. Mr. Stanford recalled how knowledgeable Petitioner was about his cases, and he testified that he observed nothing in Petitioner's behavior during their discussions to make him concerned about Petitioner's mental health and to warrant a forensic evaluation. He explained:

. . . I never once had an inkling that [Petitioner] was unable to assist me with his defense. In fact, he was probably - he seemed fairly well-versed in the law. He seemed fairly able to point us in particular directions, able to give us theories of defense and so while he did have some scattered thought processes, . . . I mean, he would go down a rabbit trail and we would have to redirect him back to the main issue but other than that I didn't notice anything about him that gave me cause for concern.

         Mr. Stanford testified that he learned of Petitioner's extensive prior record when the State filed its "Notice of Intent to Use Conviction for Impeachment." He recalled that the State elected to proceed to trial first on case number F-13913. He explained that, once the State made its election, he and the defense investigator primarily focused their investigative efforts on that case. Mr. Stanford recalled that he met with Petitioner at the Warren County Jail after Petitioner was transferred to the jail about a week before trial. He met with Petitioner "several times in a three[-]day period" to prepare Petitioner for trial.

         Initially, the State refused to make a settlement offer, but Mr. Stanford eventually convinced the prosecutor to ...

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