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Epps v. State

Court of Criminal Appeals of Tennessee, Nashville

August 2, 2019

HENRY EPPS
v.
STATE OF TENNESSEE

          Assigned on Briefs June 18, 2019

          Appeal from the Circuit Court for Montgomery County No. 41200478 William R. Goodman, III, Judge

         Henry Epps, Petitioner, entered a best interest plea to six counts of sexual exploitation of a minor; the remaining nine counts of sexual exploitation of a minor were dismissed per the negotiated plea agreement. Petitioner received an effective sentence of eight years with release eligibility after service of 100% of the sentence in the Tennessee Department of Correction. Petitioner filed an original and an amended petition for post-conviction relief. After an evidentiary hearing, the post-conviction court denied relief. Petitioner filed a timely notice of appeal. This court reversed and remanded for a new post-conviction hearing and for entry of an order that contained specific findings of fact and conclusions of law relating to all issues raised. At the second post-conviction hearing, the post-conviction court admitted numerous affidavits and reports from Petitioner's forensic expert and the State's forensic expert. The post-conviction court then denied relief in an order. On appeal, Petitioner alleges that trial counsel's performance was deficient because he "failed to consult with or inform [Petitioner] as to whether [Petitioner]'s expert would be used at trial" and "unilaterally discarded [Petitioner]'s defense, allowing him no say as to whether the case would proceed to a trial that would have presumably consisted of a jury hearing testimony from each side's competing experts." Petitioner asserts that he would have proceeded to trial absent trial counsel's deficient performance. He also contends that he did not knowingly and voluntarily plead guilty because he "did not have a meaningful opportunity to confer with trial counsel about alternatives[, ]" that "trial counsel . . . unilaterally deprived [Petitioner] of the option to choose trial[, ]" and that Petitioner "had no prior experience with criminal proceedings, which would have weighed in favor of a finding that [Petitioner]'s plea was not voluntary, intelligent, or knowing." After a thorough review of the facts and applicable case law, we affirm.

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

          B. Nathan Hunt and Zachary L. Talbot, Clarksville, Tennessee, for the appellant, Henry Epps.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; John W. Carney, District Attorney General; and Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and D. Kelly Thomas, Jr., J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background

         Guilty Plea Submission

         Petitioner was indicted on May 7, 2012, by the Montgomery County Grand Jury for fifteen counts of sexual exploitation of a minor. On August 18, 2014, Petitioner entered a best interest guilty plea.[1] The trial court explained to Petitioner the elements of the offense he was charged with and the sentencing range of that offense. Petitioner affirmed that he understood the charges against him and the possible sentencing range. Petitioner affirmed that he understood that, by entering a best interest plea, the trial court would enter a judgment of guilty but that it would not ask Petitioner whether he was guilty of the offenses. The trial court informed Petitioner that he had a right to a jury trial and to plead not guilty, that the State would have to prove the elements of the charged offenses beyond a reasonable doubt, that Petitioner had the right to confront the State's witnesses and the right to present his own witnesses, that he had the right to remain silent at trial or to testify in his own defense, and that he had the right to appeal if he was convicted by a jury. Petitioner stated that he understood that he was waiving these rights by entering his best interest plea. Petitioner affirmed that it was his desire to enter the best interest plea.

         The trial court then accepted Petitioner's best interest plea to six counts of sexual exploitation of a minor and noted that, at a later hearing, the trial court would dismiss the remaining counts from the indictment and enter a formal finding of guilt. On January 7, 2015, the trial court sentenced Petitioner to an effective sentence of eight years with release eligibility after service of 100% of the sentence in the Tennessee Department of Correction.

         On July 29, 2015, Petitioner filed a timely pro-se petition for post-conviction relief. Counsel was appointed, and on January 29, 2016, an amended petition for post-conviction relief was filed alleging that Petitioner received ineffective assistance of counsel. Petitioner also filed a motion requesting that the post-conviction court "authorize funds in the amount of Three Thousand Dollars ($3, 000.00) to be used to hire the services of Tami L. Loehrs to testify at the hearing scheduled in the above referenced matter on March 14, 2016 or in the alternative to allow Ms. Loehrs to participate by telephone at said hearing."

         Post-Conviction Proceedings

         At a hearing conducted March 14, 2016, Petitioner testified that he entered a best interest plea to six counts of sexual exploitation of a minor, and he was sentenced to an effective sentence of eight years. Petitioner explained that he retained Ms. Loehrs as a computer forensics expert and that he paid her $20, 000 for her services. He stated that, before his trial date, he believed that Ms. Loehrs was prepared to travel to Tennessee and testify on his behalf at his trial, which was scheduled for August 18, 2014. On Friday, August 15, Petitioner "had a meeting with [trial counsel], and after the meeting - [he] was under the impression that [Ms. Loehrs] was going to be there." Petitioner contacted Ms. Loehrs that afternoon "to see how much money she need[ed] as far as flying back here to testify. [Ms. Loehrs] said [that] she [was] not coming because she wasn't put on the witness list by [trial counsel]." After learning that Ms. Loehrs would not be testifying at his trial, Petitioner contacted trial counsel. Petitioner testified that trial counsel told him that he did not have a defense and that he had three options: "take a plea deal;" "flee to Mexico;" or "hire a new attorney." After speaking with trial counsel, Petitioner wrote a letter to trial counsel terminating his representation and a letter to the trial court, informing the court that he had ended trial counsel's representation and requesting a continuance. Petitioner also spoke with other attorneys about hiring new trial counsel, but he was unable to retain a new attorney.

         On Monday, August 18, 2014, Petitioner attempted to deliver the letter to the trial court, but he was informed by the court officer that the letter would need to be mailed to the trial court. Petitioner then gave both letters to trial counsel, and trial counsel informed Petitioner that he would submit the letters to the trial court. After trial counsel had a conference with the trial judge and the assistant district attorney, trial counsel advised Petitioner that the trial court denied the continuance. Petitioner stated that trial counsel did not indicate that he was prepared to try Petitioner's case and instead advised Petitioner to accept the State's plea offer-that Petitioner enter a best interest plea to six counts of sexual exploitation of a minor, the remaining counts would be dismissed, and Petitioner would be sentenced to eight years at 100% on each count to be served concurrently. Petitioner testified that he felt like he had no other choice but to enter a best interest plea because his expert had not been subpoenaed to testify, his request for a continuance had been denied, and his "attorney wasn't going to fight on [his] behalf." He explained that Ms. Loehrs' report and testimony would have been beneficial to his defense if he had proceeded to trial and that he would not have entered a best interest plea if Ms. Loehrs had been subpoenaed to testify.

         On cross-examination, Petitioner agreed that he had entered a negotiated best interest plea and that, if he had proceeded to trial, he would have faced a possible sentence of over seventy-two years. Petitioner also agreed that, prior to trial, trial counsel had informed him that the State's expert had reviewed Ms. Loehrs' report and prepared a report to rebut Ms. Loehrs' conclusions.

         Trial counsel testified that he was retained to represent Petitioner on the current criminal charges. When asked if he recalled advising Petitioner that his only options were to plead guilty, flee to Mexico, or hire a new attorney, trial counsel responded that he did not recall, but the statement sounded like something he would have said. Trial counsel explained that Petitioner also had the option of proceeding to trial, but he stated that Petitioner did not have a defense. Trial counsel stated that Ms. Loehrs had traveled to Tennessee and "looked at the computer software and made a report." Trial counsel shared that report with the State. The State shared Ms. Loehrs' report with its expert, who then examined "the computer a lot more thoroughly than he had done the first time." Consequently, Petitioner's case was continued for several months while the State's expert examined the evidence. Trial counsel stated that the State's expert then "issued a report, which . . . seemed to be a much more thorough and accurate assessment of what was in the computers as opposed to Ms. Loehrs' evaluation." Trial counsel explained that the report prepared by the State's expert "pointed out a lot of things that Ms. Loehrs . . . didn't look at, and [that Ms. Loehrs] made some assumptions that were incorrect[] and used . . . some kind of software to examine the hardware that was out-of-date or not the correct software to use."

         Trial counsel explained that, after Ms. Loehrs received a copy of the State's report, she traveled to Tennessee a second time. Trial counsel stated that Ms. Loehrs informed him of the following during a telephone conversation:

[A]fter [she] evaluated the computer software, after the State gave the very exhaustive report that they gave, she could not contend and she could not argue against the State's report, and essentially told [trial counsel] that the State's report was correct; that there was child pornography on the computers, and [Petitioner] was the one who had access to it and [Petitioner] was the one that was looking at it.

         Trial counsel asked Ms. Loehrs to put her findings from her second examination into a report because Petitioner had disagreed with her conclusions and asserted that several of the counts in the indictment were based on time periods "where [Petitioner] would not have had access to these computers when these images were allegedly downloaded." Trial counsel explained that he did not subpoena Ms. Loehrs to testify at Petitioner's trial because she had informed him that she could not argue against the State's report. When asked when he notified Petitioner that his expert had not been subpoenaed or indicated as a witness on the witness list, trial counsel stated "[p]robably right after [Ms. Loehrs] told [him] on the phone that she could not dispute the State's follow-up report."

         Trial counsel stated that he did not recall that Ms. Loehrs had informed him that "she could still identify four or five images that [Petitioner] would not have had the ability to download because he was somewhere where he would not have been able to do that[.]" He agreed that he was concerned about representing Petitioner at a jury trial because Petitioner did not have a defense. Trial counsel could not recall specifically what he discussed with Petitioner before the plea submission hearing but stated that Petitioner "wasn't happy with what he was hearing[.]"

         On cross-examination, trial counsel testified that, on the morning of the trial date, he knew that Petitioner wanted to terminate the representation, and he informed the trial court during the meeting in chambers that Petitioner wanted to terminate the representation. Trial counsel agreed that Petitioner's trial was continued on at least one occasion to allow Petitioner to leave the Army before entering a plea. Trial counsel also agreed that, after reading the experts' reports, Petitioner's best strategy was to negotiate a plea offer with the State; however, trial counsel stated that he was prepared to proceed to trial if Petitioner had declined to enter a best interest plea.

         On redirect-examination, trial counsel stated that Petitioner "was very consistent all along that he didn't do anything." He stated that Petitioner had "receipts" that allegedly showed that he was "at locations where he couldn't have retrieved or downloaded some of the[] pictures or images that were allegedly downloaded." Trial counsel gave the following explanation concerning the importance of Petitioner's "receipts":

When child pornography was being downloaded on the computer, apparently somebody was on the computer entering [Petitioner's] passwords to check his account at Fort Campbell Federal Credit Union and checking other accounts that were in his name only, which presumably is what led the State's expert to believe that it was [Petitioner] who was downloading the child pornography and then checking bank accounts and other things while it was occurring.

         Trial counsel agreed that Petitioner had an eighteen-year-old stepson who was also living in the house at the ...


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