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Burgess v. State

Court of Criminal Appeals of Tennessee, Jackson

August 30, 2019

DANTARIO BURGESS
v.
STATE OF TENNESSEE

          Assigned on Briefs June 5, 2019

          Appeal from the Criminal Court for Shelby County No. 14-02782 J. Robert Carter, Jr., Judge

         The Petitioner, Dantario Burgess, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of trial counsel. Following our review, we affirm the denial of the petition.

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

          Jason M. Matthews (on appeal), and Mark McDaniel, Jr., (at hearing), Memphis, Tennessee, for the appellant, Dantario Burgess.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Thomas T. Woodall and Timothy L. Easter, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         In 2015, the Petitioner and two co-defendants, Rodriguez McNary and Joseph Jones-Cage, were tried together before a Shelby County Criminal Court jury on charges that arose out of their participation with a fourth man, Benjamin Bohannon, in a drive-by shooting of a group of people outside a Memphis apartment complex. State v. Dantario Burgess, Rodriguez McNary and Joseph Jones-Cage, No. W2015-00588-CCA-R3-CD, 2017 WL 417231, at *1 (Tenn. Crim. App. Jan. 31, 2017), perm app. denied (Tenn. May 22, 2017). At the conclusion of their trial, the Petitioner was convicted of two counts of attempted first degree murder, one count of aggravated assault, one count of reckless endangerment, one count of employing a firearm during the commission of a dangerous felony having been previously convicted of a felony, and one count of possession of a firearm after having been convicted of a felony involving the use or attempted use of violence. The trial court sentenced him to an effective term of fifty-five years in the Department of Correction. Id. This court affirmed the Petitioner's convictions and sentences, and our supreme court denied his application for permission to appeal. Id.

         Our direct appeal opinion provides the following overview of the evidence at trial:

The evidence presented at trial established that on March 10, 2013,[1] the Defendants and co-defendant Benjamin Bohannon shot at a group of people at an apartment complex and then fled in Mr. Jones-Cage's vehicle. The group included Mr. Demarcus Thomas, Ms. Shanna Niter, Ms. Niter's two-year-old son[, ] J.N., Ms. Brittany Hervery, and Ms. Hervery's two-month-old daughter[, ] J.H. Mr. Thomas sustained multiple gunshot wounds to the face and head. He survived the shooting but requires twenty-four-hour care as a result of the injuries. Ms. Niter sustained a graze gunshot wound to her right side.

Id. (footnote omitted).

         The shooting was precipitated by co-defendant Jones-Cage's anger over Facebook posts about him that were made by Ms. Niter's cousin, Glen Hervery, Jr., who was known as "Little Glen." Id. at *2, *8. At approximately 10:30 to 11:00 a.m. on April 10, 2013, Mr. Jones-Cage and his three co-defendants appeared at the Hillview Apartments in a Ford Explorer that was registered to Mr. Jones-Cage's father. Id. at *1, *7. Mr. Jones-Cage was driving, the Petitioner was sitting in the backseat on the passenger side of the vehicle, co-defendant Rodriguez McNary was sitting in the backseat on the driver's side of the vehicle, and co-defendant Benjamin Bohannon was sitting in the front passenger seat. Mr. Jones-Cage called out to ask Ms. Niter where "Little Glen" was and to tell her to call him to the scene. Id. at *1-6. Mr. Thomas told the men to leave because there were ...


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