Court of Criminal Appeals of Tennessee, Knoxville
VALENTINO L. DYER
v.
STATE OF TENNESSEE
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
...