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Rhodes v. State

Court of Criminal Appeals of Tennessee, Jackson

May 6, 2019

MARCUS RHODES
v.
STATE OF TENNESSEE

          Assigned on Briefs February 5, 2019

          Appeal from the Criminal Court for Shelby County Nos. 16-00690, 16-00691 J. Robert Carter, Jr., Judge.

         The Petitioner, Marcus Rhodes, appeals the post-conviction court's denial of his petition for post-conviction relief in which he challenged the validity of his guilty pleas to attempted second degree murder, reckless endangerment, three counts of aggravated assault, and two counts of attempted aggravated robbery, for which he received an effective ten-year sentence. On appeal, the Petitioner contends that his trial counsel was ineffective and that his guilty pleas were not knowingly and voluntarily entered. Specifically, he contends that trial counsel and the trial court misinformed him regarding his potential sentencing exposure if convicted at trial. We conclude that the Petitioner has waived this issue, and we affirm the judgment of the post-conviction court.

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

          Phyllis Aluko, Chief Public Defender, and Robert Felkner (at hearing) and Tony N. Brayton (on appeal), Assistant Public Defenders, for the appellant, Marcus Rhodes.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Alyssa Hennig, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, P.J., delivered the opinion of the court, in which Camille R. McMullen and J. Ross Dyer, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, PRESIDING JUDGE

         FACTUAL AND PROCEDURAL BACKGROUND

         The Petitioner's convictions stem from two separate indictments and involve five victims. In indictment number 16-00690, he was charged with attempted second degree murder of Mr. Bobby Hopper, attempted aggravated robbery of Mr. Hopper, three counts of aggravated assault against Mr. Hopper and two other victims, employing a firearm during the commission of a dangerous felony, and reckless endangerment of a fourth victim, all of which occurred on September 27, 2015. The Petitioner was charged in indictment number 16-00691 with attempted aggravated robbery of Mr. Shaun Kent on September 26, 2015. The Petitioner pled guilty to attempted second degree murder, two counts of attempted aggravated robbery, three counts of aggravated assault, and reckless endangerment. Pursuant to the plea agreement, the State dismissed the firearm charge, and the trial court sentenced the Petitioner to concurrent sentences of ten years for attempted second degree murder, six years for each count of attempted aggravated robbery, three years for each count of aggravated assault, and two years for reckless endangerment to be served as a Range I, standard offender at 30%.

         During the plea hearing, the prosecutor provided a factual basis for the guilty pleas. According to the prosecutor, on September 26, 2015, Mr. Kent was outside his apartment when the Petitioner approached him, pointed a black revolver at him, and demanded his possessions. Mr. Kent ran, and the Petitioner chased him. Mr. Kent evaded the Petitioner and reported the incident to the police.

         The next day, police officers responded to an address where Mr. Bobby Harper reported that the Petitioner approached him, pointed a gun at his head, and demanded money. Mr. Harper ran to his truck, and the Petitioner fired one shot at Mr. Harper's head, narrowly missing him. Mr. Harper retrieved his firearm and shot the Petitioner multiple times. The Petitioner fled the scene in a Chevrolet Malibu. Officers subsequently located the car with the Petitioner still in it. The Petitioner got out of the car and fell to the ground where he remained until emergency personnel arrived. The officers located a handgun in the seat of the Petitioner's car.[1]

         During the plea hearing and in response to questioning by the trial court, the Petitioner acknowledged that trial counsel reviewed the guilty plea form with him. The Petitioner affirmed that he understood that by entering a guilty plea, he was waiving his right to a jury trial. Although the Petitioner was indicted for attempted second degree murder, the trial court informed the Petitioner that he was charged in the first count with a Class A felony, which "carries fifteen to sixty years in the penitentiary and it's … a non-parole offense, I guess, it's eighty-five percent." The Petitioner affirmed that he understood. The trial court then stated that trial counsel "has gotten the State to agree to reduce this charge to criminal attempt murder second degree, it still carries eight to thirty years in the penitentiary. In your case[, ] it's a ten-year sentence as a range one standard offender, that means it's a thirty percent release eligibility." The Petitioner responded that he believed the trial court's summary of the plea negotiations was correct. The trial court then reviewed the remaining charges to which the Petitioner was pleading guilty, the sentencing range for each charge, and the sentences that the Petitioner was to receive for each charge. The Petitioner affirmed his understanding of the plea agreement.

         The Petitioner agreed that he was freely and voluntarily entering the guilty plea, that no one had threatened him, that he had discussed the terms with trial counsel and his family, that entering the plea was his decision, and that he understood the terms of the plea agreement. Trial counsel requested that the trial court order the Petitioner to serve his sentence in the penal farm. The trial court responded, ...


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