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Whiteside v. State

Court of Criminal Appeals of Tennessee, Jackson

August 30, 2019

DEVIN WHITESIDE
v.
STATE OF TENNESSEE

          Assigned on Briefs July 9, 2019

          Appeal from the Circuit Court for Madison County No. C-16-278 Kyle Atkins, Judge

         The petitioner, Devin Whiteside, appeals the denial of his petition for post-conviction relief, which petition challenged his guilty-pleaded convictions of aggravated robbery, alleging that his guilty pleas were invalid because he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

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

          Alexander D. Camp, Jackson, Tennessee, for the appellant, Devin Whiteside.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Jody S. Pickens, District Attorney General; and Alfred L. Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer, and J. Ross Dyer, JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         In December 2014, the Madison County Grand Jury charged the petitioner with two counts of aggravated robbery and three counts of identity theft. State v. Devin Whiteside, No. W2016-00671-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Jackson, Jan. 30, 2018). There is no recitation of facts in the record on appeal or below, but we glean from the record that the victims, Mr. McCarver and Ms. Edgar, [1] were in a vehicle when the petitioner and co-defendant Gerald Hampton robbed them at gunpoint. The petitioner then used one of the victims' credit cards to make a purchase. Pursuant to a negotiated plea agreement, the petitioner pleaded guilty to two counts of aggravated robbery and received an effective sentence of eight years' incarceration with an 85 percent release eligibility, and the State dismissed the identity theft charges. Id., slip op. at 3.

         The petitioner filed a pro se motion to withdraw his guilty pleas in December 2015, alleging that his guilty pleas were the result of "'coercion, duress and fear from [counsel].'" Id. (alteration in original). The trial court denied the motion, and this court affirmed the denial on appeal. Id., slip op. at 6-7.

         While his motion to withdraw his pleas was pending before this court, the petitioner filed a pro se petition for post-conviction relief, alleging that his sentence was illegal and that his trial counsel performed deficiently. The post-conviction court appointed counsel and held the petition in abeyance pending the outcome of the appeal on his motion to withdraw his pleas. After the resolution of that appeal, the petitioner filed an amended petition for post-conviction relief incorporating the pro se petition and reiterating his claim of ineffective assistance of counsel.

         At the October 2018 evidentiary hearing, the petitioner testified that he met with trial counsel "[m]aybe three times" in the year leading up to his scheduled trial. They communicated primarily through writing and "[v]ery seldom . . . talked on the phone." The petitioner stated that he had asked trial counsel to interview several witnesses, including Gerald Hampton, Investigator Aubrey Richardson, the victims, and Alexis Blue, but counsel did not speak with them. Counsel told him that she could not speak with Mr. Hampton, the petitioner's co-defendant, without the permission of the co-defendant's attorney; the petitioner never heard back from trial counsel on her efforts to contact the other witnesses. The petitioner stated that Ms. Blue was later apprehended in connection to this case and that she made a statement to law enforcement, but the petitioner did not learn about that statement until two days prior to his plea deadline. He stated that if he had learned of Ms. Blue's statement sooner, he would have been better equipped to know "how to proceed going to trial," explaining that, other than Ms. Blue, Mr. McCarver was the State's only witness.

         The petitioner testified that counsel failed to file several motions that he had requested. First, he asked counsel to provide notice of an alibi defense, stating that his aunt could provide an alibi for him and asserting that this alibi would have proven his innocence. He also asked counsel to move to suppress Mr. McCarver's identification of the petitioner, contending that Mr. McCarver was inconsistent and unsure in making the identification. Finally, the petitioner stated that he asked counsel to move to compel the identity of the State's confidential informant. Although counsel did not file that motion, the petitioner acknowledged that he learned the identity of the informant when he received his discovery materials.

         The petitioner contended that he did not know that he could not appeal his guilty pleas. During the plea submission hearing, he was "unsure of accepting the plea," and the court gave him time to talk with counsel and think about the decision. The petitioner said that trial counsel told him that he would be convicted if he went to trial and would receive "two 12-year sentences consecutively at 85 percent." The petitioner testified that, at that point, he felt that his options were to either take the plea deal or to "go to trial with an unsure lawyer." He described counsel as "already defeated" because "she told me I would lose" at trial. He acknowledged telling the trial court that he had not received ...


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