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Freeman v. State

Court of Criminal Appeals of Tennessee, Nashville

May 7, 2018

ANTONIO L. FREEMAN
v.
STATE OF TENNESSEE

          Assigned on Briefs November 14, 2017

          Appeal from the Criminal Court for Sumner County No. 149-2016 Dee David Gay, Judge

         The Petitioner, Antonio L. Freeman, appeals the Sumner County Criminal Court's denial of his petition for post-conviction relief from his conviction of possessing contraband in a penal facility and resulting sentence of ten years in confinement. On appeal, the Petitioner contends that he received the ineffective assistance of counsel on direct appeal of his conviction. 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

          Christopher V. Boiano, Hendersonville, Tennessee, for the appellant, Antonio L. Freeman.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Lytle Anthony James, 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 July 2010, the Petitioner was being housed in the Sumner County Jail while awaiting trial in another case. During a search of his cell on July 9, officers found Xanax and Soma pills hidden in a package of Ramen Noodles. In November 2010, the Sumner County Grand Jury indicted the Petitioner for one count of possessing contraband in a penal facility, a Class C felony. The trial court appointed counsel, and trial counsel filed two motions to recuse: one before trial and one before the Petitioner's sentencing hearing. Both motions alleged that recusal was necessary because the Petitioner had named the trial judge as a defendant in two, pro se federal civil lawsuits. State v. Antonio Freeman, No. M2012-02691-CCA-10B-CD, 2013 WL 160664, at *1 (Tenn. Crim. App. at Nashville, Jan. 15, 2013). The trial court denied the motions. A Sumner County Criminal Court Jury convicted the Petitioner as charged, and the trial court sentenced him as a Range II, multiple offender to ten years in confinement.

         Trial counsel filed a motion for new trial. Trial counsel later filed a motion to withdraw when he learned that the Petitioner wanted to include the ineffective assistance of trial counsel in the motion for new trial. The trial court granted the motion to withdraw, and newly-appointed counsel (hereinafter "appellate counsel") filed a third motion to recuse. In addition to the Petitioner's claim that recusal of the trial judge was necessary due to the federal civil lawsuits, appellate counsel alleged that recusal was necessary because the trial judge was the prosecutor in a criminal case against the Petitioner in 1999. Id. Again, the trial judge denied the motion. Id. The Petitioner filed an interlocutory appeal to this court, and this court affirmed the trial court's denial of the third motion to recuse. Id. at *4-5. Subsequently, appellate counsel filed an amended motion for new trial. That same day, the trial court held a hearing on the Petitioner's motion for new trial and amended motion for new trial and denied the motions.

         On direct appeal of his conviction to this court, the Petitioner raised various issues, including that he received the ineffective assistance of counsel at trial and that "nine issues required the trial judge to recuse himself and that the cumulative effect of [those] issues also required recusal." State v. Antonio Lamont Freeman, No. M2013-01813-CCA-R3-CD, 2014 WL 5307461, at *11 (Tenn. Crim. App. at Nashville, Oct. 16, 2014), perm. app. denied, (Tenn. Feb. 12, 2015). This court affirmed the Petitioner's conviction. In finding that the Petitioner was not entitled to relief on the recusal issue, this court explained as follows:

In this court's opinion on the defendant's interlocutory appeal, we held that the filing of a federal lawsuit against a judge and a judge's former role as a prosecutor did not require the judge to recuse himself from the case. State v. Antonio Freeman, 2013 WL 160664, at *4-5. Because this court decided issues one through four and six on the merits, the defendant may not raise them again on direct appeal. The defendant also contends that the trial court questioned appellate counsel regarding the motive and purpose of the filing of the motion to recuse during parts one and two of the motion, doing so in part one "in a tone that was elevated." However, the defendant knew of these grounds for recusal prior to filing his interlocutory appeal; thus, the grounds should have been raised in the interlocutory appeal. Id. at *4 (stating that a failure to include known grounds for recusal results in waiver).
The defendant claims that the post-trial Facebook postings of Officers Gilley and Lewis created the appearance of partiality and bias that required the trial judge to recuse himself; however, the defendant cites to neither the record nor any authority to support his contention. See Tenn. Ct. Crim. App. R. 10(b) ("Issues which are not supported by argument, citation to authorities, or appropriate references to ...

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