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Ellison v. State

Court of Criminal Appeals of Tennessee, Knoxville

March 15, 2018


          Session January 24, 2018

         Appeal from the Criminal Court for Knox County No. 108652 Steven W. Sword, Judge

         The Petitioner, Joseph Ellison, appeals from the Knox County Criminal Court's denial of his petition for post-conviction relief. The Petitioner contends that his guilty pleas were not knowingly and voluntarily entered because "there was no factual basis for" them. Discerning no error, we affirm the judgment of the post-conviction court.

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

          Sherif Guindi, Knoxville, Tennessee, for the appellant, Joseph Ellison.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Charme P. Allen, District Attorney General; and Kenneth F. Irvine, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.




         On July 13, 2015, the Petitioner was charged by information with and pled guilty to two counts of possession with intent to sell one-half ounce or more but less than ten pounds of marijuana, a Class E felony; and two counts of possession of a firearm during the commission of a dangerous felony, a Class D felony. See Tenn. Code Ann. §§ 39-17-417, -1324. By agreement, the trial court imposed a total effective sentence of eight years. The charges were broken up into two groups. Counts 1 and 2 were, respectively, possession of marijuana and unlawful possession of a firearm arising from a December 10, 2014 incident. Counts 3 and 4 were the same charges as Counts 1 and 2, but arose from an April 22, 2015 incident. In exchange for the Petitioner's guilty pleas, the State dismissed additional charges stemming from the April 22, 2015 incident, including two Class B felony charges of possession with intent to sell cocaine and methamphetamine.

         At the plea submission hearing, the prosecutor provided that the factual basis for the December 10, 2014 charges was that the Petitioner "was found to be in possession of approximately 182 grams of marijuana and a pistol." With respect to the April 22, 2015 charges, the prosecutor provided that, following a traffic stop, the Petitioner "was found to be in [possession of] a quantity of marijuana, and [there] were some other narcotics involved, and weapons . . . and law enforcement would testify that . . . [the] amount [of marijuana] was sufficient for sale." When asked by the trial court, the Petitioner stated that he understood that "by pleading guilty [he was] agreeing to stipulate to the facts the [prosecutor had] just outlined."

         Additionally, the trial court stated that two of the offenses the Petitioner was pleading guilty to were "possession of marijuana with the intent to sell in an amount that makes those [C]lass E felonies." When asked by the trial court if that was his understanding of the plea agreement, the Petitioner responded that it was. The plea agreement form also reflected that both of the marijuana charges were for possession of one-half ounce or more. The Petitioner told the trial court that he had reviewed the plea agreement form with trial counsel and that he had signed the form. Likewise, the information charging the Petitioner listed the amount of marijuana for both charges as being "more than one-half (1/2) ounce but not more than ten (10) pounds."

         On August 8, 2016, the Petitioner filed a timely pro se petition for post-conviction relief alleging numerous constitutional violations.[1] An attorney was appointed to represent the Petitioner in this matter, and an amended petition was filed on December 20, 2016. The amended petition narrowed the issues down to two: (1) whether there was a factual basis to support the Petitioner's guilty pleas to Counts 3 and 4, and (2) whether the Petitioner received ineffective assistance of trial counsel with respect to those counts. An evidentiary hearing was held on March 3, 2017. At the outset of the hearing, the Petitioner's attorney announced that he would only address the issue of the factual basis for the pleas to Counts 3 and 4. The Petitioner was the sole witness at the evidentiary hearing.

         The Petitioner testified that prior to his guilty pleas, he was unaware of how much marijuana was seized during the April 22, 2015 incident. The Petitioner claimed that he never discussed the amount of marijuana with trial counsel prior to entering his guilty pleas. According to the Petitioner, it was only after he was incarcerated that he reviewed the arrest warrant for the April 22, 2015 incident and determined that the amount of marijuana seized was less than one-half ounce. On cross-examination, the Petitioner admitted that in addition to the marijuana that was seized and weighed, the police also seized two "hand-rolled cigar[s] filled with . . . marijuana" that were not weighed. However, the Petitioner ...

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