Assigned on Briefs February 5, 2019
from the Criminal Court for Shelby County Nos. 16-00690,
16-00691 J. Robert Carter, Jr., Judge.
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
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
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
Everett Williams, P.J., delivered the opinion of the court,
in which Camille R. McMullen and J. Ross Dyer, JJ., joined.
EVERETT WILLIAMS, PRESIDING JUDGE
AND PROCEDURAL BACKGROUND
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
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.
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
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.
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, ...