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Phifer v. State

Court of Criminal Appeals of Tennessee, Nashville

February 23, 2018

JERRY BRANDON PHIFER
v.
STATE OF TENNESSEE

          December 12, 2017 Session

         Appeal from the Criminal Court for Davidson County No. 2011-B-1782 Cheryl A. Blackburn, Judge

         Petitioner, Jerry Brandon Phifer, appeals the denial of his petition for post-conviction relief from his convictions for aggravated burglary and theft of property valued over $1000. Petitioner argues that he received ineffective assistance of counsel and that his convictions were based on evidence obtained in violation of the Fourth Amendment of the United States Constitution. After a review of the record and the briefs of the parties, we determine Petitioner has failed to establish that he received ineffective assistance of counsel and Petitioner's Fourth Amendment claim is waived. Accordingly, the judgment of the post-conviction court is affirmed.

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

          Wesley Clark, Nashville, Tennessee, for the appellant, Jerry Brandon Phifer.

          Herbert H. Slatery III, Attorney General and Reporter; Nicholas S. Bolduc, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Doug Thurman, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         A Davidson County Grand Jury indicted Petitioner for one count of aggravated robbery, five counts of aggravated burglary, one count of employing a firearm during the commission of a dangerous felony, and five counts of theft of property. Prior to trial, Petitioner filed a motion to suppress evidence that was obtained as result of a GPS tracking device being placed on Petitioner's car without a warrant. The motion was denied. Counts One (aggravated robbery) and Two (aggravated burglary) of the indictment were severed, and a jury trial commenced on those charges on February 4, 2013. The jury convicted Petitioner of Counts One and Two, and the trial court imposed a total effective sentence of forty-five years. Petitioner appealed his convictions, arguing that the warrantless placement of the GPS device on his car was unlawful. See State v. Jerry Brandon Phifer, No. M2013-01401-CCA-R3-CD, 2014 WL 4698499 at *1 (Tenn. Crim. App. Sept. 23, 2014), no perm. app. filed.

         Before this Court ruled on Petitioner's appeal on Counts One and Two, the State proceeded to trial on Counts Eleven (aggravated burglary) and Twelve (theft of property valued over $1000) of the indictment. In the meantime, Petitioner changed his representation. For the trial and appeal on Counts One and Two, an attorney, whom we will refer to as "trial counsel, " represented Petitioner. On the remaining counts, an attorney from the 20th Judicial District Public Defender's Office, whom we will refer to as "plea counsel, " represented Petitioner. Minutes before the trial on Counts Eleven and Twelve was to begin, the State offered Petitioner a plea deal. The terms of the deal were that it was to be an open plea to Counts Eleven and Twelve as charged for a sentence concurrent with Petitioner's sentence in Counts One and Two. After a short discussion with plea counsel, Petitioner pled guilty in Counts Eleven and Twelve on January 13, 2014.

         At the plea hearing, the trial court told Petitioner to "feel free" to consult with his attorney if he had any questions. The trial court went on to say, "Ask me to explain anything. If I say something you don't understand about this agreement or . . . if it's something that's different than what you thought it was, we need to clear that up today." The trial court explained that the plea was an open plea where she would be determining the length of the sentence and whether the sentences in Counts Eleven and Twelve would be concurrent or consecutive to each other. The trial court went on to tell Petitioner that his sentences in Counts Eleven and Twelve would be concurrent with his forty-five-year effective sentence on Counts One and Two. Petitioner acknowledged that he understood the agreement.

         The trial court stated, "I want to make sure you understand this. You're not waiving your appellate rights on that case, the other case. But you are waiving any on this case, any rights to complain about the stop or the statement. Do you understand that?" Petitioner replied, "Yes ma'am, on this case." The trial court reiterated that this plea agreement did not affect Petitioner's appeal in Counts One and Two. After some discussion, the trial court informed Petitioner again, "If you were to win your appeal on that forty-five years, this one would stay in place." Petitioner replied, "Yeah, I understand that."

         After some more discussion about whether the State would pursue more convictions if the State lost the appeal, the trial court asked Petitioner, "What do you want to do?" Petitioner stated, "I'll agree with the plea bargain. . . . We're going to go with the offer." Again, the trial court reiterated that even if Petitioner won his appeal on Counts One and Two, his convictions based upon his pleas to Counts Eleven and Twelve would stand. Petitioner again responded, "Yes ma'am." The trial court inquired if Petitioner spoke to his attorneys about the pleas and if Petitioner had read his plea agreement. Petitioner indicated affirmatively. When asked about giving up his rights, Petitioner stated, "I understand I can't appeal this right here." Petitioner indicated that plea counsel and her co-counsel had done everything that he wanted them to do. The trial court then went over the rights that Petitioner would be giving up by pleading guilty, and Petitioner indicated that he understood. The trial court then determined that Petitioner's pleas were voluntary and factually based and found Petitioner guilty. Later, the trial court sentenced Petitioner to thirteen years in Count Eleven and twelve years in Count Twelve. The sentences were ordered to run consecutive to one another and concurrent with Petitioner's sentences in Counts One and Two.

         On September 23, 2014, this Court reversed the trial court's denial of Petitioner's motion to suppress the evidence obtained from the use of the GPS tracking device and remanded the case for a new trial. See Jerry Brandon Phifer, 2014 WL 4698499 at *1. On remand, the trial court dismissed Counts One and Two and vacated the accompanying sentences. However, the trial court's order, which trial counsel also signed, ...


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