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Mitchell v. State

Court of Criminal Appeals of Tennessee, Jackson

June 14, 2018


          Session September 6, 2017

          Appeal from the Criminal Court for Shelby County No. 13-03935 James M. Lammey, Judge

         Petitioner, 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and Remanded

          Kirk W. Stewart, Memphis, Tennessee, for the appellant, Corey Mitchell.

          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.

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



         Procedural history

         On 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.

         At the 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 drove by.
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.

         At the 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.

         The 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 noted:

THE COURT: Oh, there's one thing I noticed on here [trial counsel].
You marked workhouse. This is Tennessee Department of Correction[ ].
[TRIAL COUNSEL]: I understand that, Your Honor.
THE COURT: Does he think he's going to be serving this at the workhouse?
[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 guilty plea?
[PETITIONER]: Yes, sir.

         Petitioner 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.

         Post-conviction ...

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