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Strong v. State

Court of Criminal Appeals of Tennessee, Knoxville

June 5, 2019

MARCUS WARD STRONG
v.
STATE OF TENNESSEE

          March 26, 2019 Session

          Appeal from the Criminal Court for Greene County No. 15CR010 Alex E. Pearson, Judge

         The Petitioner, Marcus Ward Strong, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel and that his guilty pleas were unknowing and involuntary. We affirm the judgment of the post-conviction court.

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

          Keith Lowe, Knoxville, Tennessee, for the Petitioner, Marcus Ward Strong.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Dan E. Armstrong, District Attorney General; and Cecil C. Mills, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Timothy L. Easter, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         Factual Background.

         Just after noon on July 19, 2012, the Petitioner, who was driving a 1989 Ford Mustang, and the victim, Kiley Shelton, who was the unrestrained passenger in the front seat of this vehicle, were involved in a fatal wreck. The Petitioner, while negotiating a slight left curve, lost control of his vehicle, drove off the right side of the roadway, rotated counter-clockwise and crossed back across both lanes of Route 351, and then traveled more than 100 feet before striking a utility pole with the right front of his vehicle. Thereafter, Petitioner's vehicle traveled another ninety feet and rolled over two times before coming to a stop. During this wreck, the victim was ejected from the vehicle and came to a final rest entangled in nearby electrical wires, where she died from her injuries. A highway patrolman responding to the scene determined that the Petitioner, at the time of the wreck, was driving at a speed of eighty-five miles per hour in a thirty-five miles per hour zone.

         The Official Alcohol Report generated by the Tennessee Bureau of Investigation (TBI) stated that the blood sample collected from the Petitioner at 3:20 p.m. on July 19, 2012, had a blood alcohol concentration (BAC) of 0.05%.

         The TBI's Official Toxicology Report showed that the Petitioner's blood sample also contained the following substances:

7-Amino Clonazepam

8.9 ng/ml

Nordiazepam

211.8 ng/ml

Diazepam

108.6 ng/ml

Dihydrocodeinone

Less than 0.05 ug/ml

Citalopram

Less than 0.05 ug/ml

         However, this report showed that the Petitioner's blood sample tested negative for cocaine, cannabinoids, and barbiturates.

         On March 19, 2013, Dr. Kenneth E. Ferslew, the State's expert in the field of toxicology, drafted a letter after reviewing several documents relevant to this case, including the TBI's Official Alcohol Report and Official Toxicology Report. After determining that the Petitioner "would have eliminated a blood alcohol concentration of 0.045 gram%," Dr. Ferslew opined that the Petitioner's "blood alcohol concentration at the time of the crash would have been 0.095 gram%." He said that based on the Petitioner's body weight, the Petitioner would have had to consume at least "1.09 to 2.14 ounces of alcohol prior to the crash." He explained that this amount of alcohol was "equivalent to between 1.8 and 3.6, twelve ounce, 5% [alcohol] beers" and was "consistent with [the Petitioner's] statements to emergency and medical personnel that he had been drinking a few beers earlier in the day." Dr. Ferslew stated that the Petitioner's BAC "would have produced removal of inhibitions, loss of self[-]control, weakening of will power, development of feelings of well[-]being, euphoria, increased confidence, altered judgment, expansion of his personality, and dulling of attention to some extent versus a sober condition."

         In this letter, Dr. Ferslew stated that 7-amino clonazepam was "an active metabolite of Klonopin (clonazepam)," which was also a "benzodiazepine used as a[n] anxiolytic, minor tranquilizer, and sedative/hypnotic." He said that the concentration of 7-amino clonazepam in the Petitioner's blood was "subtherapeutic (therapeutic 0.023 to 0.137 ug/ml) but its presence indicate[d] administration prior to the time of the crash with sufficient time for biotransformation by his body." Dr. Ferslew asserted that there was "no indication of this drug being prescribed or administered to [the Petitioner] prior to the crash."

         Dr. Ferslew stated, "Diazepam (Valium) is a minor tranquilizer, anxiolytic, muscle relaxant, and antiepileptic that is metabolized in the body to [N]ordiazepam (its active metabolite)." He opined that the concentrations of Diazepam and Nordiazepam, two benzodiazepines, were "within the therapeutic range for these medications (therapeutic 0.02 to 6 ug/ml, toxic 5 to 20 ug/ml, and lethal greater than 30 ug/ml). Dr. Ferslew also noted that the presence of Diazepam and Nordiazepam was "consistent with [the Petitioner's] medical history of being prescribed and taking Valium prior to the time of the crash."

         Dr. Ferslew asserted that "Dihydrocodeinone (hydrocodone)" was an "opiate analgesic" and that the concentration of Dihydrocodeinone found in the Petitioner's blood was "in a subtherapeutic to therapeutic range (therapeutic 0.03 to 0.25 ug/ml, toxic 0.5 to 2 ug/ml, and lethal 0.7 to 12 ug/ml)." He noted that the "presence of this analgesic [was] consistent with [the Petitioner's] medical record which indicated that he was prescribed and had been taking Norco (hydrocodone and acetaminophen) prior to the time of the crash."

         Dr. Ferslew stated that Citalopram was a "SSRI antidepressant" and that the concentration of Citalopram in the Petitioner's blood "would not have had any effect on [the Petitioner's] psychomotor performance at the time of the crash."

         After evaluating the concentrations of the aforementioned substances in the Petitioner's blood sample, Dr. Ferslew provided the following conclusion:

Though many of these other medications found in [the Petitioner's] blood at the time of the crash are from subtherapeutic to within therapeutic ranges, the combination of a significant blood alcohol concentration with these benzodiazepines and opiate can produce additive to synergistic central nervous system depression. This would cause increased psychomotor impairment to [the Petitioner] and would have contributed to his misoperation of the vehicle . . . in this fatal crash with [the victim]. [The Petitioner] was under the influence of alcohol and these drugs at the time of the crash.

         On March 25, 2013, a Greene County Grand jury indicted the Petitioner in case number 12CR429 for aggravated vehicular homicide, vehicular homicide, violation of the habitual motor vehicle offender act, driving under the influence, and driving under the influence, seventh offense. The record indicates that at some later point, the Petitioner was charged in case number 13CR660 with two counts of conspiracy to introduce drugs into a penal institution and two counts of conspiracy to sell or deliver a controlled substance, and his parents were charged in 13CR658 and 13CR659 as co-defendants to the Petitioner's drug-related charges in case number 13CR660.

         Plea Submission Hearing.

         On January 16, 2014, the Petitioner entered best interest pleas pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), in case number 12CR429 to aggravated vehicular homicide, vehicular homicide, violation of the habitual motor vehicle offender act, driving under the influence, and driving under the influence, seventh offense. The Petitioner also entered guilty pleas in case number 13CR660 to two counts of conspiracy to introduce drugs into a penal institution and two counts of conspiracy to sell or deliver a controlled substance. Although this plea agreement was a package deal in which the State agreed to give the Petitioner's parents probationary sentences for their crimes, the trial court was not made aware of this package deal at the time the Petitioner entered his guilty pleas.

         During the plea submission hearing, the trial court informed the Petitioner that his vehicular homicide conviction would merge with the aggravated vehicular homicide conviction and that his convictions for DUI and DUI, seventh offense, would merge with the aggravated vehicular homicide conviction.

         The trial court asked the Petitioner if he was "entering this best interest plea freely and voluntarily of [his] own free will," and the Petitioner responded, "Yes, sir." The court then asked, "Any force, threats, or pressure of any kind to cause you to enter this best interest plea," and the Petitioner said, "No, sir." The court also inquired, "Anybody promise you anything other than what's on this Waiver Rights and Plea of Guilty form," and the Petitioner answered, "No, sir."

         The court then detailed the terms of the Petitioner's plea agreement in case number 12CR429: "Your agreement is aggravated vehicular homicide, 18 years at 30 percent. It carries . . . 15 to 25 [years] and you're [receiving] 18 years. . . . And violation of the Habitual Motor Vehicle Offender Act is one year at 30 percent on that." The Petitioner replied that he understood that he would receive these sentences pursuant to his plea agreement.

         The trial court then explained that the Petitioner would receive concurrent two-year sentences for his guilty pleas to the two counts of conspiracy to introduce drugs into a penal institution and the two counts of conspiracy to sell or deliver a controlled substance in case number 13CR660 and that these concurrent two-year sentences would be served consecutively to the eighteen-year sentence he received in case number 12CR429, for an effective sentence of twenty years with a release eligibility of thirty percent.

         The State summarized the facts supporting the aggravated vehicular homicide charge:

On July 19[], 2012, a 1989 Mustang pulled off the lot of a convenient store/grocery store on Highway 107 here in Greene County. The vehicle was seen driving at a high rate of speed. A little over a minute later that Mustang struck a utility pole and the Mustang rolled over several times. A female, [the victim], was thrown out of the Mustang and her body was found entangled in the power lines, suspended above the roadway.
The proof would be, Your Honor, that a video would have shown that . . . at the time the Mustang left that grocery store/convenience store this [Petitioner] was the driver. The proof would be that . . . the distance that the vehicle traveled was such that in a . . . minute and a few seconds, beyond a minute, we would have been able to show that [the Mustang] was traveling at an excessive rate of speed. The proof would also be not only that [the Petitioner] was driving when the vehicle left the grocery store, but he was driving at the time that it struck the utility pole. . . . [T]he toxicology report, the TBI lab report, showed that there was .05[% of] alcohol . . . in his blood . . . . The proof would be that Dr. Ferslew would have come and testified that based upon the time frame when the alcohol . . . was drawn from him and the time that had passed since the crash of the vehicle [the Petitioner's] blood alcohol level would have really been approximately .09[%]. In addition to that, a toxicology composition showed that he had clonazepam, diazepam, nordiazepam, dihydrocodeinone in his system. The proof would be, Your Honor, that at the time of the crash [the Petitioner] was a habitual motor vehicle offender.

         The Petitioner acknowledged that the State had provided a fair statement of the evidence supporting his aggravated vehicular homicide charge.

         The trial court accepted the Petitioner's best interest pleas in case number 12CR429 to aggravated vehicular homicide and violation of the habitual motor vehicle offender act as well to vehicular homicide, DUI, DUI, seventh offense. The court then accepted the Petitioner's guilty pleas in case number 13CR660 to two counts of conspiracy to introduce drugs into a penal institution and two counts of conspiracy to sell or deliver a controlled substance.

         Post-Conviction.

         On January 16, 2015, the Petitioner filed a petition for post-conviction relief, seeking relief only from his aggravated vehicular homicide conviction in case number 12CR429. Thereafter, the State filed its response and a motion to dismiss the petition. The Petitioner then filed an amended petition for post-conviction relief.

         At the December 18, 2017 post-conviction hearing, defense counsel testified that he had been practicing law for less than three years at the time the Petitioner entered his pleas. He said that when he was retained to represent the Petitioner, he had never conducted a jury trial at the criminal court level, had never sat first chair on a Class A felony case, and had never filed an appeal. Although defense counsel said he consulted with experienced attorneys for guidance on the Petitioner's case, he could not recall whether he asked any of these experienced attorneys whether he needed to retain a "lab expert" in the Petitioner's case. However, defense counsel asserted that on September 25, 2013, he filed a motion to continue the case because he had "discovered the need to seek an expert regarding an essential element of the defendant's case and that the expert had been consulted but had not had adequate time to analyze the material provided[.]" He stated that this motion to continue was granted and that the Petitioner's trial was set for ...


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