Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 16, 2018
from the Circuit Court for Marshall County Nos. 2016-CR-73,
2016-CR-74, 2016-CR-75, 2016-CR-76 Forest A. Durard, Jr.,
Petitioner, James Odell Osborne, appeals the Marshall County
Circuit Court's denial of his petition for
post-conviction relief from his 2015 convictions for three
counts of failure to appear, misdemeanor theft, and felony
theft and his effective nine-year sentence. The Petitioner
contends that he received the ineffective assistance of
counsel. We affirm the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Matthew D. Wilson, Spring Hill, Tennessee, for the appellant,
James Odell Osborne.
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Senior Counsel; Robert H. Carter, District
Attorney General; and Edward Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.
H. MONTGOMERY, JR., JUDGE
November 18, 2015, a Marshall County Circuit Court jury
convicted the Petitioner of failure to appear, and he
received a six-year sentence. On the same day, the Petitioner
entered "best interest" guilty pleas to two counts
of failure to appear, felony theft, and misdemeanor theft,
and he received concurrent sentences of three years, three
years, and eleven months, twenty-nine days, respectively.
Pursuant to the plea agreement, the effective three-year
sentence was imposed consecutively to the six-year sentence,
for an overall effective nine-year sentence. The Petitioner
also waived his right to appeal the jury trial conviction for
failure to appear. The trial and the guilty plea hearing
transcripts are not included in the appellate record.
27, 2016, the Petitioner filed the instant petition for
post-conviction relief, alleging that he received the
ineffective assistance of counsel, that his confession was
coerced, that the prosecution failed to disclose favorable
evidence, that double jeopardy principles were violated, that
inadmissible evidence was used to convict him, and that he
had discovered new evidence. The petition sought
post-conviction relief relative to his guilty plea
convictions for two counts of failure to appear and felony
theft and his jury trial conviction for failure to appear.
The petition did not seek relief for the misdemeanor theft
post-conviction hearing, trial counsel testified that he
represented the Petitioner on the failure to appear charge
that resulted in a guilty verdict after a jury trial. Counsel
said that the only defense witness was the Petitioner, who
testified that he had been homeless and unable to attend
court on the date that formed the basis of the charge.
Counsel stated that he and the Petitioner did not discuss
witnesses who could substantiate the Petitioner's
homelessness but recalled that they discussed a nurse who was
"treating" the Petitioner. Counsel said that the
Petitioner wanted the nurse to testify about the
Petitioner's prescribed medications, that the Petitioner
wanted to introduce records from Mental Health Cooperative,
Inc., during the nurse's testimony, and that counsel
believed the records contained information detrimental to the
Petitioner's case. The mental health records were
received as an exhibit and showed that the Defendant had been
diagnosed with "major depressive disorder, recurrent,
severe with psychotic features, " had been prescribed
Trazodone, Wellbutrin, and Seroquel, and had reported cocaine
use on January 13, 2015.
counsel testified that he and the Petitioner discussed a
possible "temporary insanity" defense. Counsel did
not recall, though, whether the Petitioner provided him with
medical records. Counsel said that the prosecution presented
the bondsman and a court clerk as trial witnesses and that
the defense theory was that the Petitioner was homeless and
could not "get" to the courthouse.
counsel testified that although another attorney resolved the
charges to which the Petitioner entered best interest guilty
pleas, the Petitioner faced more than fifty years'
confinement for all of the charges based upon the
Petitioner's offender classification. Counsel said that
he and the Petitioner discussed the possible outcomes.
Counsel said that the Petitioner mentioned having "some
[mental health] issues" but that counsel never saw any
counsel, the attorney who represented the Petitioner at the
guilty plea hearing, testified that he negotiated the plea
agreement for the Petitioner's remaining convictions.
Counsel recalled that the Petitioner faced a maximum sentence
of more than fifty years, that they discussed the details of
the plea offer, and that counsel provided the Petitioner with
what counsel anticipated the likely sentences would have been
after a trial. Counsel said that, pursuant to the plea offer,
the Petitioner waived his right to appeal the failure ...