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Hardin v. State

Court of Criminal Appeals of Tennessee, Knoxville

October 25, 2019


          Assigned on Briefs February 26, 2019

          Appeal from the Criminal Court for Knox County No. 109057 Bob R. McGee, Judge.

         The Petitioner, Malik Hardin, filed a petition for post-conviction relief, alleging that his trial counsel was ineffective and that his guilty pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

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

          J. Liddell Kirk, Knoxville, Tennessee, for the Appellant, Malik Hardin.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.



         I. Factual Background

         On March 22, 2011, the Petitioner was indicted for possession of more than 26 grams of cocaine with the intent to sell within a drug-free school zone; possession of more than 26 grams of cocaine with the intent to deliver within a drug-free school zone; possession of a firearm with the intent to go armed during a dangerous felony; being a convicted felon in possession of a weapon; possession of marijuana; and criminal trespass. After the indictment was returned, the Petitioner filed a motion to suppress the evidence obtained as a result of his arrest and the seizure of the vehicle. State v. Malik Hardin, No. E2014-00873-CCA-R3-CD, 2015 WL 3794588, at *1 (Tenn. Crim. App. at Knoxville, June 12, 2015), application for perm. to appeal denied, designated not for citation, (Tenn. Oct. 15, 2015).

         At the suppression hearing, the proof revealed that on May 5, 2010, Knoxville Police Officer Brandon Wardlaw and Sergeant Chris Bell were walking patrol in the Austin Homes Housing Development, which was a "property of Knoxville Community Development Corporation ('KCDC')." Id. at *1. They saw a vehicle, and Officer Wardlaw recognized that one of its occupants, Chancey Johnson, was on KCDC's "no trespass list." Id. The vehicle parked, and the driver, the Petitioner, exited the vehicle. Id. Officer Wardlaw approached him and asked for identification. Id. The Petitioner responded "that he did not have identification, that he was on parole, and that he was 'on KCDC trespass.'" Id. After a consensual search of the Petitioner, Officer Wardlaw found two cellular telephones and a stack of money held together by rubber bands. Id. at *2. The Petitioner denied having keys to the vehicle he had been driving. Id.

         Sergeant Bell and Officer Wardlaw looked inside the vehicle and, in plain view, saw the butt of a handgun. Id. A police dog was brought to the scene, and it reacted positively to the vehicle. Id. After obtaining a search warrant, the officers searched the vehicle and found a loaded pistol, a Tupperware container containing marijuana, crack cocaine, powder cocaine, a computer case containing a laptop computer, and approximately $20, 000 in cash. Id. at *2-3. The Petitioner's fingerprint was on the Tupperware container. Id. at *3. Officer Wardlaw testified that he did not issue a citation to the Petitioner and release him because the criminal trespass probably would continue after the issuance of the citation. Id. at *2. At the conclusion of the hearing, the trial court denied the suppression motion. Thereafter, the Petitioner decided to plead guilty.

         At the guilty plea hearing, the State summarized the terms of the plea agreement as follows: the Petitioner agreed to plead guilty to possession with intent to sell less than half a gram of cocaine within a drug-free school zone, a Class B felony, and receive a sentence of twelve years as a Range II, multiple offender. Because the offense was committed in a drug-free school zone, the Petitioner was required to serve the entire twelve-year sentence in confinement "day for day, prior to release consideration." The Petitioner also agreed to plead guilty to possession of a firearm with the intent to go armed during the commission of a dangerous felony, a Class D felony, and receive a sentence of three years. The Petitioner was required to serve one hundred percent of the sentence in confinement "with some reduction up to 15 percent." The three-year sentence was to be served consecutively to the twelve-year sentence. Additionally, the Petitioner agreed to plead guilty to possession of marijuana, a Class A misdemeanor, and receive a sentence of eleven months and twenty-nine days. He also agreed to plead guilty to criminal trespass, a Class D misdemeanor, and receive a sentence of thirty days. Pursuant to the plea agreement, the misdemeanor sentences were to be served concurrently with each other and with the twelve-year sentence. The remaining charges were dismissed. Defense counsel agreed that the terms announced by the State were correct.

         Before accepting the plea agreement, the trial court informed the Petitioner that his pleas must be entered voluntarily and that he could not be forced to plead guilty. The trial court repeated that "the agreement is a total effective sentence of 12 years at 100 percent, plus three years at least 85 percent, so that'd be 15 years." The Petitioner acknowledged the trial court correctly summarized his understanding of the plea agreement and agreed that he had reviewed the plea agreement with trial counsel and that he understood the agreement. The Petitioner further acknowledged that he understood the rights he was forfeiting by pleading guilty and that he was pleading guilty freely, voluntarily, and knowingly. The trial court cautioned "that there will be no further proceedings or hearings to determine your guilt in these cases. This is the final step. This is it." The trial court then asked if the Petitioner had any questions, and the Petitioner responded that he did not. After the State recited the factual basis for the pleas, which was substantially the same as the proof adduced at the suppression hearing, the trial court gave the Petitioner another opportunity to speak, but he declined. The trial court then accepted the Petitioner's guilty plea, reiterating that the Petitioner was receiving "a total 15-year sentence. The first 12 years at 100 percent, . . . the next three years at a minimum of 85 percent."

         As a condition of his guilty pleas, the Petitioner reserved the following certified questions of law:

"1. Whether the arresting officer's reliance on [Tennessee Code Annotated section] 40-7-118(c)(2) when arresting the [Petitioner] for the offense of criminal trespass was 'objectively reasonable' under the Fourth and Fourteenth Amendments to the United States Constitution and article I, [section] 7 of the Constitution of the State of Tennessee.
2. Whether the seizure of the automobile, in which the trial court found the [Petitioner] had a reasonable expectation of privacy, was based upon reasonable suspicion that the automobile was or contained evidence or fruits of criminal activity at the time it was seized and whether there was reasonable cause to believe that impoundment was reasonably necessary under the circumstances."

Id. at *7. On appeal, this court held that because issuing a citation would not stop the ongoing trespass, an exception to the cite and release statute applied, and the officer was authorized to arrest the Petitioner for the misdemeanor committed in the officer's presence. Id. at *8. Further, this court held that the pistol was found in plain view, which "did not offend constitutional limitations on searches and seizures," and that the seizure and search of the vehicle was constitutionally permissible pursuant to the automobile ...

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