Dyer v. State

          Assigned on Briefs December 20, 2017

          Appeal from the Circuit Court for Rhea County No. 17043 J. Curtis Smith, Judge

         The Petitioner, Valentino L. Dyer, appeals from the denial of his petition for post-conviction relief, wherein he challenged his convictions for especially aggravated robbery and aggravated burglary. See Tenn. Code Ann. §§ 39-13-403, -14-403. In this appeal as of right, the Petitioner alleges that trial counsel was ineffective in the following ways: (1) by failing to object to the State's deficient notice seeking enhanced punishment, thereby causing the Petitioner to be confused regarding the State's plea offer and factoring into his decision to reject the fifteen-year offer; (2) by failing to negotiate a more favorable plea offer from the State due to his "improper understanding of the Petitioner's criminal convictions"; (3) by failing to prepare the Petitioner to testify at trial; (4) by failing to visit the crime scene; (5) by failing to object to two photographs of the machete used during the break-in; (6) by failing to argue that the victim did not suffer serious bodily injury; (7) by failing to discuss with the Petitioner "any mitigating factors or the sentencing hearing" prior to the hearing itself; (8) by failing to subpoena or call witnesses on the Petitioner's behalf at the sentencing hearing; and (9) "all other reasons set forth in the petition and amended petition for post-conviction relief." Following a review of the record, all but one of the Petitioner's issues are waived due to an inadequate brief, and the single issue properly presented for review lacks merit. Accordingly, we affirm the judgment of the post-conviction court.

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

          Elizabeth G. Adams, Dayton, Tennessee, for the appellant, Valentino L. Dyer.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; James Michael Taylor, District Attorney General; and James W. Pope III, and Will Dunn, Assistant District Attorneys 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.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         This case arises from the Petitioner's participation with two accomplices, Timothy Swafford and Brian Shadden, in the April 27, 2008 break-in of the Rhea County home shared by Jarvis Copeland with his girlfriend, Amanda Roberts, and Roberts's ten-year-old son. See State v. Valentino L. Dyer, 2011 WL 4600652, at *1 (Tenn. Crim. App. Oct. 6, 2011), perm. app. denied (Tenn. Jan. 11, 2012). Mr. Copeland was "seriously injured" during the incident, sustaining cuts to his hands from a machete swung by the Petitioner and "severe head injuries" from repeated blows from a baseball bat swung by Shadden. See id. The men stole Mr. Copeland's wallet and car keys and broke into his vehicle parked outside before fleeing from the scene. A full recitation of the underlying facts can be found in this court's opinion on direct appeal. See id. at *1-4.

         The Petitioner, Swafford, and Shadden were indicted for especially aggravated burglary, especially aggravated robbery, attempted first degree murder, and aggravated assault. See Dyer, 2011 WL 4600652, at *1. Both Swafford and Shadden subsequently negotiated fifteen-year plea bargains with the State, and each was called as a defense witness at the Petitioner's July 2009 trial. See id. At the conclusion of the jury trial, the Petitioner was found guilty of especially aggravated burglary, especially aggravated robbery, reckless endangerment, and aggravated assault. See id. The trial court modified the conviction for especially aggravated burglary to aggravated burglary and merged the convictions for aggravated assault and reckless endangerment into the especially aggravated robbery conviction. See id.

         At the sentencing hearing, the trial court found the Petitioner to be a Range II, multiple offender based on his two prior felony convictions for aggravated assault. See Dyer, 2011 WL 4600652, at *5. The trial court applied two enhancement factors: that the Petitioner had a previous history of criminal convictions in addition to those necessary to establish his range and that he was on probation at the time he committed the offenses, see Tennessee Code Annotated section 40-35-114(1) & (13), and found no applicable mitigating factors. See id. Consequently, the trial court sentenced the Petitioner to concurrent terms of eight years at thirty-five percent for the aggravated burglary conviction and thirty-two years at one hundred percent for the especially aggravated robbery conviction, with the sentences to be served consecutively to his sentences in the aggravated assault cases, for which the Petitioner had been on probation at the time he committed the instant offenses. See id.

         The Petitioner appealed to this court, arguing (1) that the indictment was defective for failing to state sufficient facts; (2) that he did not adequately waive his right to testify in his own defense; (3) that the trial court erred by disallowing evidence of the victims' alleged activity as drug dealers to show their reputation for dishonesty; (4) that the evidence was insufficient to sustain the convictions; and (5) that the trial court improperly sentenced him as a Range II offender and that his sentences were excessive. See Dyer, 2011 WL 4600652, at *1. This court affirmed. See id. at *1, *12.

         Following his unsuccessful direct appeal, the Petitioner filed a timely pro se petition for post-conviction relief. Counsel was appointed, and two successive amended petitions were filed. In the various petitions, the Petitioner raised numerous ineffective assistance of counsel claims. The allegations relevant to this appeal included the following: (1) trial counsel failed to object to the State's defective notice to seek Range II sentencing, which led to the Petitioner's being confused regarding the State's plea offer and impacted his decision-making in the plea negotiation process; (2) trial counsel failed to understand the nature of the Petitioner's prior convictions, which affected trial counsel's ability to negotiate a better plea offer; (3) trial counsel failed to "properly voir dire" the Petitioner about his decision to testify at trial; (4) trial counsel failed to investigate the crime scene; (5) trial counsel failed to argue that Mr. Copeland's injuries were merely bodily injuries rather than serious bodily injuries; (6) trial counsel failed to meet with the Petitioner to discuss and prepare for the sentencing hearing; and (7) trial counsel failed to subpoena and call witnesses on the Petitioner's behalf at the sentencing hearing. There was never any specific allegation about the machete photographs in any of the three petitions. Thereafter, a hearing was held on the matter, at which trial counsel, the Petitioner, and the Petitioner's mother testified. We will only recount the testimony from the post-conviction hearing that is relevant to the issues presented on appeal.

         Trial counsel testified that he was appointed to represent the Petitioner in January 2009. On July 27, 2009, trial counsel sent the Petitioner a letter memorializing "several conversations" that they previously had in the county jail. The letter explained that the prosecutor had filed a notice to sentence the Petitioner as a Range II offender, that the Petitioner would "most likely . . . be sentenced as a Range II offender, " that the Petitioner's Range II sentencing exposure for especially aggravated robbery was somewhere between twenty-five and forty years, and that consecutive sentencing was also a possibility. Trial counsel further relayed in the letter that the Petitioner's defense to the charges was "VERY WEAK" and that the "PROBABILITY OF CONVICTION AT TRIAL [WAS] EXTREMELY HIGH, " especially given the fact that the Petitioner had given "two statements to the police admitting [his] participation in the crimes." Also in the letter, trial counsel advised the Petitioner to accept the State's plea offer and plead guilty, as a Range I, standard offender, to fifteen years for especially aggravated robbery with dismissal of the remaining charges. Trial counsel confirmed that the Petitioner's initials appeared at the bottom of the letter.

         Moreover, trial counsel recollected that he discussed the State's notice to seek a Range II sentencing classification with the Petitioner. That notice was introduced into evidence and specified that the Petitioner had two prior convictions-a February 10, 2006 conviction for aggravated robbery, for which he received a sentence of six years, and a February 10, 2006 conviction for aggravated assault, for which he also received a sentence of six years. Both convictions resulted from the same Rhea County indictment, according to the State's notice. Trial counsel remembered the Petitioner's conveying to him that the Petitioner did not have a prior conviction for aggravated robbery but instead had two aggravated assault convictions. Trial counsel averred that he did not discuss this with the prosecutor because aggravated assault was "just another felony" and "it wasn't going to make a difference whether it was agg[ravated] assault or agg[ravated] robbery[.]" Trial counsel affirmed that he never filed a formal objection to the State's notice.

         Trial counsel testified that he would have discussed the State's plea offer within "a day or two" of receiving it. Trial counsel recalled that the Petitioner's co-defendants, Swafford and Shadden, had already entered pleas to fifteen years prior to the Petitioner's receiving the same offer. Trial counsel did not recall any "point in time during the plea negotiations . . . where [he] went back to the [d]istrict [a]ttorney and explained that [the Petitioner] did not have a prior aggravated robbery, [that the Petitioner] had two prior aggravated assaults[, ] in an attempt to try to get a lower offer[.]" Furthermore, trial counsel recollected meeting with the prosecutor "several times" to review discovery materials and then going to speak with the Petitioner. When trial counsel was questioned "how many times did [he] ask [the prosecutor] to come off that [fifteen]-year sentence, " trial counsel replied that he "always asked" but that he also knew the co-defendants had accepted the same offer. Trial counsel affirmed that he was not successful in negotiating a lower plea offer.

         Trial counsel confirmed that the Petitioner did not testify at trial and that there was a Momon^[1] hearing where the trial judge questioned the Petitioner about his right to testify. According to trial counsel, the issue of the Petitioner's prior convictions came up during the Momon hearing, and after a discussion that the Petitioner's criminal record included two aggravated assaults rather than an aggravated robbery, the State withdrew its notice of its intent to impeach the Petitioner with those convictions if he chose to testify. Ultimately, the Petitioner still did not testify.

         When asked if the Petitioner provided a motive for the crimes, trial counsel recalled the Petitioner's telling him that this occurred at "a crack house and [that the Petitioner] wanted to make sure the jury knew that, " but the Petitioner provided "no particular motive" that trial counsel could remember. Trial counsel said that he attempted to explain to the Petitioner "that he basically had no defense" to these crimes because the victims had identified the Petitioner; the Petitioner gave "two confessions"; the Petitioner admitted to swinging the machete at the victim and to buying a baseball bat, stocking caps, and a machete from Walmart; there was a video recording of the Petitioner's buying these items; and the Petitioner turned over the receipt for these items to the police. Trial counsel opined that the evidence was "overwhelming[ly] against" the Petitioner. When asked if there was anything he could have done differently "that would have resulted in a different decision in this matter, " trial counsel responded, "Only if I'd been successful in getting [the Petitioner] to plead."

         Moreover, trial counsel could not remember whether he had any discussions with the Petitioner regarding Mr. Copeland's "injuries to his hands." Trial counsel confirmed that he was provided with discovery materials, which included information about Mr. Copeland's medical treatment.

         In addition, trial counsel confirmed that he did not visit the crime scene. Trial counsel recalled the State's introducing photographs at trial of the machete the Petitioner used, but trial counsel had no memory of those "two photographs . . . portray[ing] what appeared to be different machetes[.]" According to trial counsel, "[i]f they showed different machetes[, he] didn't notice it." Trial counsel confirmed that he did not file a motion in limine to exclude said photographs. Although trial counsel could not recall specific discussions, trial counsel believed he likely reviewed the State's evidence with the Petitioner, as such was his custom.

         Regarding the sentencing hearing, trial counsel said that he did not recall whether he filed any mitigating factors on the Petitioner's behalf. When asked if he met with the Petitioner between the trial and the sentencing hearing, trial counsel replied, "I do not recall meeting with [the Petitioner] after the trial. It's not to say that I didn't, but I just don't recall that." Trial counsel also could not recollect speaking with anyone in the Petitioner's family about their testifying at the sentencing hearing. Trial counsel averred that he "really didn't know of anybody that would be helpful" to the Petitioner at sentencing.

         The thirty-three-year-old Petitioner testified that trial counsel went "over testimony that was going to be given and the State's witnesses[.]" However, according to the Petitioner, trial counsel did not visit the crime scene and did not review any photographs "of the home" with him. The Petitioner claimed that he saw the "tangible exhibits" only once when he was being interrogated by the police.

         The Petitioner testified that trial counsel never discussed filing any pretrial motions with him. According to the Petitioner, "there [was] an issue" with the photographs of the machete-that being that "[t]here were two photos taken of the machete the night of the crime" and that in "[o]ne the machete was straight and the next the machete was bent." The Petitioner felt as if trial counsel should have attempted to exclude those photographs. Moreover, the Petitioner averred that he never attacked Mr. Copeland with a machete.

         The Petitioner also maintained that trial counsel did not prepare him to testify at trial. According to the Petitioner, they did not discuss prior to trial "the pros and cons of whether or not [the Petitioner] should testify, or whether or not [he] should elect [his] right to remain silent[.]" The Petitioner said that he was not aware the State also intended to impeach him with "prior instances of conduct" if he chose to testify.^[2] He also claimed that he did ...