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Bostic v. State

Court of Criminal Appeals of Tennessee, Nashville

August 28, 2019

JAMES BOSTIC, JR.
v.
STATE OF TENNESSEE

          Assigned on Briefs August 21, 2019

          Appeal from the Criminal Court for Davidson County No. 2013-C-2607 Steve Dozier, Judge

         The petitioner, James Bostic, Jr., appeals the denial of his petition for post-conviction relief, which petition challenged the revocation of the community corrections placement for his 2014 guilty-pleaded conviction of the sale of cocaine. In this appeal, the petitioner claims entitlement to post-conviction relief on grounds that he was deprived of the effective assistance of counsel at the community corrections revocation hearing. Discerning no error, we affirm.

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

          Eugenia R. Grayer, Madison, Tennessee, for the appellant, James Bostic, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Kim R. Helper, District Attorney General; and J. Wesley King, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and Robert H. Montgomery, Jr., J., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         The Davidson County Grand Jury charged the petitioner with one count of the sale of .5 grams or more of cocaine in a drug free school zone, one count of evidence tampering, one count of simple possession, and one count of resisting arrest. Pursuant to a plea agreement with the State, the petitioner pleaded guilty to the lesser included offense of the sale of less than .5 grams of cocaine in exchange for a Range III sentence of 12 years to be served in a community corrections placement and dismissal of the remaining charges. A community corrections violation warrant issued in October 2016, and, following a hearing, the trial court revoked the petitioner's community corrections placement on October 26, 2016, and ordered that he serve the balance of his 12-year sentence in confinement. See James Edward Bostic, Jr. v. State, No. M2017-00087-CCA-R3-PC, slip op. at 1 (Tenn. Crim. App., Nashville, Aug. 9, 2017). On December 12, 2016, the petitioner filed a petition for post-conviction relief, arguing that he had been deprived of the effective assistance of counsel at the revocation hearing. The post-conviction court summarily dismissed the petition as untimely, and the petitioner appealed. On appeal, this court determined that the post-conviction court erred by dismissing the petition as untimely because the claims in the petition related to the October 2016 revocation hearing and remanded the case for further proceedings. See id., slip op. at 2.

         Upon remand, the post-conviction court appointed counsel, and the petitioner filed an amended petition for post-conviction relief, alleging that the attorney who represented him at the revocation hearing performed deficiently by failing to "be aware of (through experience, training or research) the law applicable to [the petitioner's] case"; by failing "to investigate all means of drug and mental health treatment available to" the petitioner; by failing "to properly investigate relevant issues" in the case; failing to interview, investigate, and call witnesses "who may have aided in the mitigation of his sentencing"; and by failing to interview and investigate the State's witnesses. The petitioner asked that he be granted a new hearing on the merits of the community corrections revocation warrant.

         At the May 2018 evidentiary hearing, counsel testified that he was appointed to represent the petitioner at the community corrections revocation proceeding on October 26, 2016, the same day as the scheduled hearing. Counsel testified that he spoke with the petitioner for approximately 45 minutes "on and off" and that he spent an hour and a half to two hours on the case. Counsel recalled that the "first thing" the petitioner "wanted to do was put his sentence into effect." Counsel said that he asked the petitioner to "at least give [counsel] the opportunity to talk to the DA, . . . talk to probation, investigate the violation a little bit." The petitioner acquiesced, so counsel spoke "with probation" and learned that the petitioner "had already completed" the available mental health and drug treatment programs "and that was not an option." Counsel said that "that was as far as it got with trying to figure out what could be done" because the assistant district attorney "wasn't making any offer other than to concede or have the hearing." Counsel relayed this information to the petitioner and asked the petitioner to "at least give [counsel] an opportunity to reset it to have a hearing." The petitioner adamantly refused, "and it was his decision to go ahead and put his sentence into effect."

         Counsel testified that the petitioner did not tell him about any specific mental health issues and did not tell him anything about having developmental disabilities, saying, "[A]t no time during that discussion did he make me aware of any kind of developmental disability other than mental health issues, which could span the gamut . . . ." The petitioner did tell counsel "that he was on his meds." He said that the petitioner did not appear frustrated and was instead "very calm about the situation." He recalled that they "had a good conversation, a good back and forth." Counsel testified that he had previously represented other individuals with a variety of mental health issues and that the petitioner "seemed like he was fine." Counsel said that the petitioner's desire to have his sentence put into effect did not seem strange, explaining, "I guess if any client has a significant number of jail credits they may want to go ahead and put the sentence into effect." Counsel reiterated, however, that he "kept trying to talk [the petitioner] out of going ahead and putting the sentence into effect that day" so as to allow counsel "to investigate his case a little more and get a new date before going any further," but the petitioner instructed him "to forgo that option."

         Counsel spoke to the petitioner's probation officer, who told him about "the mental health program and the drug program that he had already completed." Counsel said that, "because we never got to the point of going into a hearing," he did not get an opportunity "to investigate any options other than the fact that [the petitioner] had already completed mental health court and drug court." He said that it was possible that, had he been allowed to spend more time with the petitioner, the result of the proceeding might have been different.

         During cross-examination, counsel reiterated that he asked the petitioner to let him "continue the case because he wasn't going to get any worse" result following a continuance, but the petitioner "instructed [counsel] to put his sentence into effect." Counsel said that he had several conversations with the prosecutor in which he attempted to get the prosecutor to agree to "split confinement or anything that would allow [the petitioner] to serve less than 12 years in prison," but the prosecutor would not agree. Counsel said that nothing in the petitioner's behavior, including his asking to have his sentence placed into effect, led counsel to believe that he needed to ask the court for a forensic evaluation. He added during redirect examination, "Given the fact that he was on his medication[] ...


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