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Allison v. State

Court of Criminal Appeals of Tennessee, Jackson

May 23, 2018


          Session September 7, 2017

          Appeal from the Criminal Court for Shelby County No. 14-04389 Carolyn W. Blackett, Judge

         Petitioner, Delvin Allison, pled guilty to aggravated robbery with an agreed sentence of seven years and two months as a mitigated offender, which was ordered to be served in the Department of Correction. Petitioner now appeals the post-conviction court's denial of his petition for post-conviction relief in which he contends: the post-conviction court improperly determined that he was not entitled to discovery of the audio recording of the juvenile court transfer hearing; trial counsel rendered ineffective assistance both prior to and during the guilty plea proceedings; and his guilty plea was not knowing and voluntary. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

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

          Terrell L. Tooten, Memphis, Tennessee, for the appellant, Delvin Allison.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Norma McGee Ogle and J. Ross Dyer, JJ., joined.




         The facts of the case as set forth by the State at the guilty plea submission hearing are as follows:

Had this matter gone to trial, Your Honor, the proof would have been as follows in the case. On April the 27th of last year, Mr. Anthony Hall was robbed at gunpoint around the 6300 block of Winchester. Taken in this armed robbery was his wallet, which contained $40.00 in cash and his Tennessee Identification.
Apparently, Mr. Hall would have said that he met a man at that address Winchester [sic] to sell him a tee-shirt. And when [sic] Mr. Hall quoted the price of the tee-shirt, at which time the man pulled out a .32 caliber revolver from his sweatshirt and pointed the gun at Mr. Hall, demanded his wallet and ran from the scene, got into a blue Nissan Maxima. It was occupied by other men.
[Petitioner] was developed as a suspect and positively identified by Mr. Anthony Hall as the person responsible for robbing him. After being advised of his rights [Petitioner] gave a statement of admission.

         Post-Conviction Hearing

         Angela Allison, Petitioner's mother, testified that she spoke with Petitioner on the morning of April 29, 2014, as he was leaving for school. She received a call from the school at approximately 9:00 a.m. informing her that Petitioner had been arrested for aggravated robbery. Ms. Allison testified that she went to the police station and told the person at the front counter that she was there concerning Petitioner. She said that she waited for approximately two hours before she was allowed to see Petitioner. She said that the police told her what happened. Ms. Allison testified that she was distraught and confused, and she did not know her rights at the time. She said that police had already begun questioning Petitioner before she arrived. Ms. Allison testified that Petitioner gave a statement, and an officer was "basically typing the questions in and we was answering them pretty much." She said that the statement was never read out loud, and she did not read it. She signed it in the capacity as a witness. Ms. Allison testified that she was also asked for permission to search her property, which she granted, but nothing was found. Ms. Allison further testified that Petitioner wore bifocal glasses and that he could not see well or read without them. He was not wearing his glasses at the time he gave the statement.

         Ms. Allison testified that she was present in court on April 7, 2015, when Petitioner entered his guilty plea. She observed him review the plea with trial counsel, and she was present when trial counsel discussed the plea with Petitioner. She said that trial counsel told Petitioner that he would be sentenced to the "penal farm" if Petitioner accepted the plea. Ms. Allison testified that the box for serving time in the penal farm was clearly "marked off and they were saying that he's going to the penal farm. And that was the only reason why he basically signed off on the plea."

         On cross-examination, Ms. Allison testified that trial counsel told Petitioner that he faced a sentence of twelve to twenty years if the case went to trial. She remembered that the guilty plea was read aloud in court, and the prosecutor stated that the sentence would be served in the Department of Correction.

         Ms. Allison again testified that she told the officer during the statement that Petitioner could not see without his glasses, and therefore he could not read over his statement to police. She said that the officer then told Petitioner to sign the statement. Ms. Allison testified that she signed the statement after asking the officer some questions. She said: "I asked him a few questions and I was asking him, what are my son's rights? And he read, I guess, something to me or whatever, but I didn't have a clear, you know understanding."

         James Allison, Petitioner's grandfather, testified that he attended court appearances with Petitioner a few times, and he heard trial counsel "mention something about eight to 12 years when she spoke with him on a couple of occasions." He was not present at the guilty plea submission hearing. Mr. Allison further testified: "She mentioned something to the fact about the penal farm. I don't know a lot about the system, but I do recall her saying something about the penal farm." On cross-examination, Mr. Allison testified that Petitioner had turned eighteen years old by the time he pled guilty in this case.

         Petitioner testified that he spoke with trial counsel on the day of his guilty plea, and she told him that he was facing a sentence of twelve to twenty years if he went to trial. The plea offer was for seven years and two months. Petitioner testified: "My lawyer told me if I took this time, I would serve my time at the workhouse and get 41 days a month which will reduce my sentence quickly, making me eligible for parole in one year for a sentence to be completed in three years." More specifically, Petitioner said that trial counsel told him the sentence would be served on the "penal farm." Petitioner testified that he pled guilty because of the way trial counsel told him that his time would be calculated and because of the location. Petitioner testified the "41 days a month" was the amount of credit for "good time" per calendar month if he served his sentence at the penal farm. He had never previously entered a guilty plea.

         Petitioner agreed that he spoke with police on April 29, 2014, and he gave a statement. He said that his mother was present "the second time" police spoke to him. Petitioner testified that police had picked him up at school and transported him to the police station. Petitioner testified that officers questioned him, and he gave a statement. He said:

I believe in the midst of the first statement that I gave, they called her to the station and she was supposed to been waiting in the lobby while they was back there in the interrogation room threatening me, doing what they do in order to scrap me in order to get me to change my statement.

         Petitioner testified that he felt scared, and police refused to give him his eyeglasses that were inside his backpack. He said that he told them that he needed the glasses in order to see. Petitioner testified that he was unable to read his statement before signing it.

         Petitioner testified that he did not receive a copy of discovery in his case until September 29, 2016, during the post-conviction proceedings. He said that he thought that he understood the minimum and maximum sentences that he could have received if the case went to trial because trial counsel told him that he faced a sentence of twelve to twenty years. Petitioner testified that during the guilty plea submission hearing, he never realized that he was not being sentenced to the workhouse.

         We note that trial counsel did not testify at the post-conviction hearing. There were three hearing dates, and on the third date, the Prosecutor informed the post-conviction court of the following: "Judge, I just checked and I have a text message from [trial counsel]. I had asked her to be here. She and I talked last night. She had remembered a conflict that she has. She can't be here. Judge, I'm just going to submit it on the proof." Petitioner had closed his proof without calling trial counsel as a witness, and there is nothing in the record to indicate that Petitioner had relied upon any representation by the State or the post-conviction court that trial counsel would be called to testify during the State's proof.



         First, Petitioner argues that the trial court improperly held that he was not entitled to discovery of the audio recording of his transfer hearing in juvenile court. At the post-conviction hearing, the following exchange took place:

[Post-conviction counsel]: Post[-]conviction under docket number 14-04389. Your Honor, as I've stated before, this is going - - one of the issues I've had - - and I did file two different motions for discovery. I have not received juvenile court audio. I filed a Motion to Compel as it relates to the audio. The response I was given by the State is that they were not going to give it to me.
In addition, it had come to my attention that there is another statement that the defendant may have made that I have nothing in my discovery representing that at all. And so at some point I would ask that the Court issue an Order of whether I do or do not have a right to the discovery I requested so that I can quit raising that issue and we can move forward.
THE COURT: I think the law says, and you can check to make sure, but I don't think there is a right to discovery in ...

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