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Armstrong v. State

Court of Criminal Appeals of Tennessee, Jackson

April 25, 2018

JOHN ARMSTRONG
v.
STATE OF TENNESSEE

          Assigned on Briefs Date: April 3, 2018

          Appeal from the Criminal Court for Shelby County No. 13-01034 Carolyn Wade Blackett, Judge

         The Petitioner, John Armstrong, appeals from the Shelby County Criminal Court's dismissal of his petition for post-conviction relief. The Petitioner contends (1) that the post-conviction court erred in dismissing his petition for being untimely filed; and (2) that his guilty pleas were not knowingly and voluntarily entered due to the ineffective assistance of his trial counsel. Following our review, we affirm the judgment of the post-conviction court.

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

          Vicki M. Carriker, Memphis, Tennessee, for the appellant, John Armstrong.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Renee Byrd and Sarah Michelle Poe, Assistant District Attorneys General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and J. Ross Dyer., JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         On December 19, 2013, the Petitioner pled guilty to attempted first degree murder and possession of a firearm during the commission of a dangerous felony. See Tenn. Code Ann. §§ 39-12-101, -13-202, -17-1324. As part of the plea agreement, the State recommended that the Petitioner be sentenced to fifteen years at thirty percent service for the attempted first degree murder conviction and three years at one hundred percent service for the unlawful possession of a firearm conviction. The sentences were to be served consecutively, for a total effective sentence of eighteen years.

         As a factual basis for the Petitioner's guilty pleas, the State provided that on October 26, 2012, the Petitioner "was in a verbal argument with his wife." The Petitioner's wife "got in her vehicle" and started to drive away. The Petitioner "retrieved a gun and fired a shot" at his wife's vehicle. "The shot went through the trunk of her vehicle [and] into the driver's seat, [striking] her in the upper back." The Petitioner's wife was "left paralyzed from this incident."

         At the outset of the guilty plea submission hearing, the prosecutor listed the sentences, listed the applicable service percentages, and stated that the sentences were to be served consecutively. The trial court reviewed with the Petitioner the plea agreement and the rights he would be waiving by pleading guilty. The Petitioner stated that he understood this and that he was voluntarily pleading guilty. When the trial court asked the Petitioner if he had any questions, the Petitioner asked the trial court to further explain the payment plan for his court costs and fines. At the conclusion of the trial court's plea colloquy, the prosecutor stated that trial counsel had "been unbelievably diligent in negotiating this case with the State" and had "worked very, very hard" on the case.

         The trial court then allowed trial counsel to briefly question the Petitioner. The Petitioner stated that trial counsel had provided him with the State's discovery materials and had reviewed those materials with him. The Petitioner also stated that trial counsel had visited him "on several occasions, " had "filed several motions on [his] behalf, " and answered "any questions" the Petitioner had. Finally, the Petitioner stated that trial counsel had done "everything that [he had] asked [her] to do on this case." After this exchange, the trial court accepted the Petitioner's guilty pleas and the State's sentencing recommendation.

         On November 4, 2015, the Petitioner filed a pro se motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. State v. John Armstrong, No. W2016-00082-CCA-R3-CD, 2016 WL 5210869, at *1 (Tenn. Crim. App. Sept. 20, 2016). The trial court summarily dismissed the motion for failure to state a ...


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