Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perry v. State

Court of Criminal Appeals of Tennessee, Jackson

February 26, 2018

JEFFREY PERRY
v.
STATE OF TENNESSEE

          Assigned on Briefs October 3, 2017

         Appeal from the Criminal Court for Shelby County No. 12-01672 Lee V. Coffee, Judge

         The Petitioner, Jeffrey Perry, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his convictions of especially aggravated kidnapping, aggravated robbery, aggravated burglary, aggravated assault, and employing a firearm during the commission of a dangerous felony and resulting effective sentence of twenty-one years in confinement. On appeal, the Petitioner contends that he did not enter his guilty pleas voluntarily and that he received the ineffective assistance of trial counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

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

          Christie Hopper (on appeal), Jackson, Tennessee, and Eugene Belenitsky (at hearing), Memphis, Tennessee, for the appellant, Jeffrey Perry.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         In April 2012, the Shelby County Grand Jury indicted the Petitioner for especially aggravated kidnapping, a Class A felony; aggravated robbery, a Class B felony; aggravated burglary, a Class C felony; aggravated assault, a Class C felony; and employing a firearm during the commission of a dangerous felony, a Class C felony. Trial counsel was appointed to represent the Petitioner in January 2013 and filed a motion to suppress the State's DNA evidence, which the trial court denied. On May 7, 2014, the Petitioner pled guilty as a Range I offender to the offenses and, pursuant to the plea agreement, received respective sentences of fifteen years to be served at 100% release eligibility, eight years to be served at 85%, three years to be served at 30%, three years to be served at 30%, and six years to be served at 100% with the six-year sentence to be served consecutively to the other sentences for a total effective sentence of twenty-one years. The effective twenty-one-year sentence also was to be served consecutively to a separate three-year sentence for aggravated burglary.

         At the guilty plea hearing, the State gave the following factual account of the crimes:

[O]n June the 28th of 2011, the victim, Ms. Summerlin, was returning to her apartment [on] Wall Street in Memphis and Shelby County, when she was approached by a group of young men. One of them was armed with a handgun. They demanded her property and took her inside her apartment where they went through her apartment and were prepared to take some of her property from the apartment, as well.
She was held at gunpoint, knocked to the ground and not allowed to leave. She was actually on the phone when she [was] pulled into the apartment, and the friend that she was on the phone with called the police.
The police arrived on the scene while all these individuals were still in Ms. Summerlin's apartment. This defendant, Mr. Perry, attempted to leave. He came out one of the doors. The police observed him. He pointed a gun at the officer, who then shot him. Mr. Perry fled the scene.
He made several phone calls with the victim's cell phone. The police were able to identify him that way. They also were able to collect blood from the scene and identified him through his DNA collected from that blood on the scene as one of the individuals who had robbed Ms. Summerlin, taken her inside her apartment, and threatened her, as well.

         On May 5, 2015, the Petitioner filed a petition for post-conviction relief claiming, in pertinent part, that his guilty pleas were involuntary and that he received the ineffective assistance of counsel because trial counsel failed to present certain evidence, including the Petitioner's own testimony, at the suppression hearing and failed to challenge the count of the indictment charging employing a firearm during the commission of a dangerous felony because it failed to name the underlying dangerous felony. The post-conviction court appointed counsel, and counsel filed an amended petition, basically reiterating the issues raised in the original petition.

         At the outset of the evidentiary hearing, post-conviction counsel advised the post-conviction court that the Petitioner "has asked me to inform the Court that, due to me not doing all the things that he has requested of me, it is his belief that it is my duty as his attorney to make a motion to withdraw." The post-conviction court noted that it appointed post-conviction counsel at the Petitioner's request and that counsel had been representing the Petitioner almost eight months. The court informed the Petitioner that he would have to represent himself if the court allowed counsel to withdraw. The Petitioner explained that he did not want to represent himself but that he had wanted post-conviction counsel to hire a blood spatter expert and add "something" to the petition for post-conviction relief. The court told the petitioner that it was "not going to listen to that right now" and that "[y]ou may have a seat, sir."

         Post-conviction counsel called trial counsel as the Petitioner's first witness. Trial counsel testified that the Petitioner was identified as one of the perpetrators from DNA analysis on blood at the crime scene. At the hearing on the motion to suppress, trial counsel argued that the trial court should suppress the DNA results because the police shot the Petitioner as he was fleeing; thus, "that spilling of blood was [an] unconstitutional, unreasonable search and/or seizure of [the Petitioner]." The police shot the Petitioner twice, one time in the hip, which supported the defense's theory that the police shot him while he was running away. Counsel said that he did not remember if he reviewed the Petitioner's medical records but that he would not have put "much weight" on the records because "the positioning of the body is so mobile and fluid that you can't get any expert to say that, 'I can tell you where a person was standing based on where they got shot.'" He also did not "see any realistic need" for a blood spatter expert or an expert on crime scene reconstruction.

         Trial counsel testified that the police also shot the Petitioner's right hand and that the police claimed the Petitioner was holding a gun in his right hand at the time of the shooting. Post-conviction counsel asked if trial counsel and the Petitioner considered whether the Petitioner could have been shot through his right palm without damaging the gun. Trial counsel explained that "if it had been a through-and-through [wound], and the weapon . . . didn't have any injury on it, then . . . that would have caused me to at least look into it for further investigation." However, counsel remembered the wound as being "superficial and on the outside" of the hand, not through the Petitioner's palm. Therefore, he did not investigate the gun.

         Trial counsel testified that the State presented proof at the suppression hearing that the police shot the Petitioner in self-defense, and the trial court denied the motion. Trial counsel said he would have talked with the Petitioner about his right to appeal the suppression issue if the Petitioner went to trial and was convicted. However, counsel did not consider appealing a certified question of law after a guilty plea to be an option because this court often dismissed such appeals on procedural grounds.

         Trial counsel denied prohibiting the Petitioner from testifying at the suppression hearing. He said that he did not remember his specific conversation with the Petitioner about whether the Petitioner should testify but that he "strongly urge[d]" any defendant not to testify when he did not need the defendant's testimony. He said he did not need the Petitioner's testimony in this case because the testimony "had to do with the officers" and because counsel did not think the testimony "would come across as necessarily the most credible evidence." Moreover, the Petitioner's testimony would have been subject to impeachment at trial.

         Trial counsel testified that he never considered arguing that the count of the indictment charging employing a firearm during the commission of a dangerous felony was void for failing to name the underlying dangerous felony. He said that he knew "there was something wrong" with the indictment but that he thought "it was something that was either amendable, or would be an election at trial, or that could be waived in the negotiation process."

         On cross-examination, trial counsel testified that an attorney from the public defender's office originally was appointed to represent the Petitioner. However, that attorney had to withdraw, and the trial court appointed trial counsel. Trial counsel acknowledged that he met with the Petitioner multiple times, went over discovery with the Petitioner, answered the Petitioner's questions, and explored possible defenses. Counsel discussed filing a motion to suppress with the Petitioner, counsel filed the motion, and counsel and the Petitioner discussed whether the Petitioner should testify at the suppression hearing. Based on counsel's advice, the Petitioner decided not to testify. The Petitioner could have testified, though, if he had wanted to testify. Counsel said that the suppression issue was "new, fascinating, and interesting law that no one had ever argued before" but that the trial court denied the motion and set a trial date. Counsel acknowledged that the Petitioner understood his options of going to trial or pleading guilty and that the Petitioner understood his possible punishments.

         Trial counsel testified that the State made a plea offer to the Petitioner as a Range I offender but that the Petitioner turned down the offer. Counsel later learned that the Petitioner might qualify for a higher range of punishment and asked that the State re-extend the original offer. The State did so, and the Petitioner accepted the offer. The Petitioner never requested that trial counsel ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.