Session September 6, 2017
from the Criminal Court for Shelby County No. 13-03935 James
M. Lammey, Judge
Corey Mitchell, appeals from the denial of his petition for
post-conviction relief. He raises two issues on appeal: (1)
he was denied a full and fair hearing in the post-conviction
proceedings, and (2) his guilty plea was not knowingly,
voluntarily, and intelligently made due to the ineffective
assistance of counsel rendered by his trial counsel. After
review of the arguments of the parties and the entire record,
we conclude that Petitioner is entitled to relief on his
first issue. Accordingly, we reverse the judgment of the
post-conviction court and remand this matter for a new
hearing. Furthermore, the interests of justice require that
under the circumstances of this case, and to insure the
public perception of a fair and impartial hearing, the
post-conviction proceedings must be heard by a different
judge than the one who has previously heard the proceedings.
In light of our conclusion and disposition of the first
issue, issue two is pretermitted at this time.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Reversed and Remanded
W. Stewart, Memphis, Tennessee, for the appellant, Corey
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Counsel; Amy P. Weirich, District Attorney
General; and Gavin Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.
T. Woodall, P.J., delivered the opinion of the court, in
which Norma McGee Ogle and J. Ross Dyer, JJ., joined.
T. WOODALL, PRESIDING JUDGE
August 15, 2013, Petitioner was indicted by the Shelby County
Grand Jury for the offenses of attempted first degree murder,
aggravated assault, and employing a firearm during the
commission of a felony. Petitioner pleaded guilty to
attempted first degree murder and received a sentence of 15
years' confinement as a Range I offender. The remaining
counts of the indictment were dismissed.
guilty plea hearing, the State gave the following factual
basis for Petitioner's plea:
[O]n February 2, 2013, at approximately 11 p.m., the victim
Jeremiah Mays was at 2574 Malone here in Memphis, Shelby
County when he was confronted by two male blacks. He
didn't know them very well. He did, however, know they
were in a rival gang.
There had been some confrontation prior to this about [an]
apparent allegation there may have been a [ ] shooting prior
to this date. The males were upset with Mays because they
felt he was flirting with their girlfriends. There was an
argument that escalated when apparently [the] victim . . .
may have pulled guns but according to [Petitioner's]
co[-]defendant, it was actually Robert Lindiment
[Petitioner's co-defendant] who actually fired his weapon
several times at the victim, striking him twice in the leg.
[Petitioner] apparently was the driver of the vehicle as it
All events did occur in Memphis, Shelby County, Tennessee.
[T]he victim did pick out both out of a photo lineup and say
one was the driver [Petitioner] and also Robert Lindiment was
the shooter in fact.
Lindiment did in fact give a confession saying he was the
shooter and that [Petitioner] did in fact drive the vehicle.
And there were several Facebook pages taken where there was a
photo on both Facebook pages with guns very similar to those
described by the victim.
guilty plea hearing, Petitioner acknowledged that he signed
the waiver of rights form. The trial court asked if trial
counsel "went over" the form with Petitioner before
he signed, and Petitioner responded that he had. The trial
court asked Petitioner whether he understood that he had the
right to a jury trial, the right to confront the State's
witnesses, the right to subpoena witnesses in his defense,
the right against self-incrimination, the right not to
testify, the right to testify if he so chose, the right to
appeal, the right to an attorney on appeal, and the right to
have an attorney appointed if he could not afford one.
Petitioner stated that he understood those rights and that he
wanted to waive those rights and accept the State's
offer. The trial court asked if Petitioner was "doing
this freely and voluntarily, " and Petitioner responded
that he was. The trial court asked Petitioner if he had any
questions, and Petitioner responded that he did not.
trial court accepted Petitioner's guilty plea and
sentenced him as a Range I offender to 15 years to be served
at 30 percent release eligibility. The trial court also
THE COURT: Oh, there's one thing I noticed on here [trial
You marked workhouse. This is Tennessee Department of
[TRIAL COUNSEL]: I understand that, Your Honor.
THE COURT: Does he think he's going to be serving this at
[TRIAL COUNSEL]: Well we've heard that if your term is at
a certain low percentage, with some people they have been
keeping them at the penal farm. But my understanding is
it's at the Department of Correction[ ]?
THE COURT: Right. It's up to them but we have to mark
this Tennessee Department of Correction[ ]. Now they have
been keeping a log of people out there on long sentences but
it's up to them. Do you understand that, [Petitioner]?
[PETITIONER]: Yes, sir.
THE COURT: Now they may keep you out there if they want to.
It's up to them. Where they house you I have no control
over, okay. The law says that I have to mark Tennessee
Department of Correction[ ] on this judgment sheet, okay.
[PETITIONER]: Yes, sir.
THE COURT: With that in mind do you still wish to enter this
[PETITIONER]: Yes, sir.
filed a pro se petition for post-conviction relief,
in which he alleged that he was denied the effective
assistance of counsel and his guilty plea was unknowingly and
involuntarily entered. Petitioner was appointed counsel, and
an amended petition was filed, also alleging that Petitioner
was denied the effective assistance of counsel and that his
guilty plea was unknowingly and involuntarily entered.