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Blevins v. State

Court of Criminal Appeals of Tennessee, Knoxville

June 12, 2018

DAVID MICHAEL BLEVINS
v.
STATE OF TENNESSEE

          Assigned on Briefs August 15, 2017

          Appeal from the Circuit Court for Sullivan County No. C64574 R. Jerry Beck, Judge

         Petitioner, David Michael Blevins, appeals the Sullivan County Criminal Court's denial of his petition for post-conviction relief. On appeal, he contends that the post-conviction court improperly found: (1) that he had waived his independent claim regarding a speedy trial violation and (2) that trial counsel did not render ineffective assistance of counsel by failing to raise the speedy trial issue. Having reviewed the record before us, we affirm the judgment of the post-conviction court.

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

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Camille R. McMullen and Robert L. Holloway, Jr., JJ., joined.

          Randall D. Fleming, Kingsport, Tennessee, for the appellant, David Michael Blevins.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Barry Staubus; District Attorney General; and Julie Canter, Assistant District Attorney General, for the appellee, State of Tennessee.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Following a jury trial, Petitioner was convicted of three counts of aggravated sexual battery as lesser-included offenses of the indicted charges of rape of a child. He was sentenced to serve thirty years in confinement. Petitioner appealed his convictions and sentence, and this court affirmed the judgments of the trial court. State v. David Michael Blevins, No. E2013-01976-CCA-R3-CD, 2014 WL 2170073 (Tenn. Crim. App. May 23, 2014).

         Petitioner testified that he was originally charged with additional offenses in Hamilton County, and served eighteen months in jail. He estimated that he was in jail from 2009 until April or May of 2011, awaiting disposition of the charges. Petitioner was not aware that he had been indicted in Sullivan County for three counts of rape of a child while he was incarcerated in Hamilton County. While in custody in Hamilton County, he was never served with a warrant for his arrest or notified of the Sullivan County charges. Petitioner testified that in 2011 he pled guilty to the Hamilton County charges, which consisted of five counts of sexual battery, and he received a sentence of one year for each count to be served consecutively for an effective five-year sentence as a Range I offender. The victim in the Hamilton County cases is the same victim in the Sullivan County cases.

         Petitioner testified that he became aware of the Sullivan County presentment in August 2011 when he "was up for parole[.]" He said that someone from the parole board told him that the board would grant parole but "there were people from Sullivan County who wanted to speak first." Petitioner testified that he was presented with the Sullivan County presentment charging him with three counts of rape of a child when he was booked into the Sullivan County Jail on September 2, 2011. Petitioner claimed that if he had known about the charges in Sullivan County he would not have accepted the plea deal in Hamilton County.

         Petitioner testified that he informed trial counsel in the Sullivan County case that he was unaware of the Sullivan County presentment while he was incarcerated in Hamilton County. He also said that he would have asked for a speedy trial in Sullivan County if he had known about the Sullivan County presentment in October of 2009. Petitioner did not recall why the Sullivan County case's trial dates were reset. Petitioner testified that he did not ask trial counsel to file a motion for speedy trial in Sullivan County because he did not know that he could. He felt that he was prejudiced in his Hamilton County cases because he did not know of the Sullivan County charges.

         On cross-examination, Petitioner agreed that trial counsel in the Hamilton County case told Petitioner that he was getting a good deal and that "I would go over, get classified with the State of Tennessee. They would give me a number, and I would be out on parole immediately." Petitioner claimed that he and the Hamilton County trial counsel did not review everything in the Hamilton County plea agreement, and he only signed the plea agreement because his counsel told him that it was a good deal. However, he would have requested a trial if he had known about the Sullivan County charges at the time.

         Sullivan County trial counsel testified that he had been practicing law for thirty-nine years. He represented Petitioner in Sullivan County on three counts of rape of a child, and after a two-day trial, Petitioner was convicted of the lesser-included offense of aggravated sexual battery on each count. Trial counsel testified that he first learned of the Sullivan County indictment in September or October of 2011, and he subsequently learned of the Hamilton County case from Petitioner. Trial counsel testified that he did not argue the speedy trial issue on appeal because he did not think of it. He said, "I - I can see that that would be a possibility now, but I - at the time I did not think of it, quite frankly."

         On cross-examination, trial counsel testified that Petitioner's cases in Hamilton County concluded in March 2011. Petitioner arrived in Sullivan County approximately six months later, and his case went to trial in "just a little over a year."

         The appellate record shows the following. Petitioner was indicted by the Hamilton County Grand Jury on October 12, 2009, for seven counts of aggravated sexual battery. On March 31, 2011, Petitioner pled guilty to five counts of sexual battery and was sentenced to an effective five-year sentence.

         Petitioner was indicted on October 27, 2009, by a Sullivan County Grand Jury for three counts of rape of a child. A capias was issued, and the court set bail at $35, 000. Following the completion of the Hamilton County case, Petitioner was transported to the Department of Correction and later to Sullivan County. On September 6, 2011, Petitioner was served with the capias while at the Sullivan County Jail. Trial counsel was appointed, and on October 25, 2011, a hearing was held to discuss the status of Petitioner's case. During that hearing, the following exchange took place:

[Trial counsel]: Judge, discovery's still ongoing in this case. And though it's set for announcement, I was just conferring with [Petitioner]. He is serving another sentence from the DOC, and he says right now his release date is May of 2014. And I know the State needs some time to get some more . . .
[Prosecutor]: Right. We're waiting on some information from the Chattanooga Police Department so . . .
[The Court]: Suggestions?
[Prosecutor]: Probably after the first of the year.
[Trial Counsel]: After the first of the year, Judge. ...

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