Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs October 16, 2019
from the Circuit Court for Lawrence County No. 34773 Stella
L. Hargrove, Judge.
Petitioner, Mario Cruz Estrada, appeals the Lawrence County
Circuit Court's denial of his petition for
post-conviction relief from his 2015 conviction for attempted
second degree murder and his twelve-year sentence. The
Petitioner contends that he received the ineffective
assistance of trial counsel. Because the notice of appeal was
untimely, we dismiss the appeal.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
Free, Columbia, Tennessee, for the appellant, Mario Cruz
Herbert H. Slatery III, Attorney General and Reporter;
Courtney N. Orr, Assistant Attorney General; Brent A. Cooper,
District Attorney General; and Christi Thompson, Assistant
District Attorney General, for the appellee, State of
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and Robert L. Holloway,
Jr., JJ., joined.
H. MONTGOMERY, JR., JUDGE.
Petitioner's conviction relates to the January 1, 2014
stabbing of Charles Davis. On the day of the stabbing, the
victim and Ms. Carranza engaged in a verbal argument about
the Petitioner's drinking and driving with Ms. Carranza
and her four-year-old daughter inside the Petitioner's
car. The argument escalated into a physical altercation
between the victim and Ms. Carranza, who began hitting the
victim with her fists. The victim grabbed Ms. Carranza's
arms and laid her on the ground in an effort to protect
himself. According to the victim, the Petitioner approached
stabbed him multiple times before fleeing the scene with Ms.
Carranza. See State v. Mario Cruz Estrada, No.
M2016-00056-CCA-R3-CD, 2016 WL 6996399, at *1-3 (Tenn. Crim.
App. Nov. 30, 2016), no perm. app. filed.
December 1, 2017, the Petitioner filed the instant petition
for post-conviction relief, alleging that he received the
ineffective assistance of trial counsel. The Petitioner
asserted that counsel failed to conduct an adequate
investigation and to present evidence showing the victim was
the first aggressor.
post-conviction hearing, trial counsel testified that the
physical altercation between Ms. Carranza and the victim
occurred out of the Petitioner's view and that the first
thing the Petitioner saw was Ms. Carranza on the floor with
the victim lying on top of her. Counsel recalled that the
Petitioner began assaulting the victim and that, ultimately,
the victim was stabbed and the Petitioner and Ms. Carranza
fled the scene.
counsel testified that he began representing the Petitioner
after the arraignment, that he did not file any pretrial
motions, that he obtained the State's discovery materials
and reviewed them with the Petitioner, and that he attempted
to negotiate a plea agreement. Counsel recalled that the
Petitioner had been released on bond at the time counsel was
retained. Counsel said that he and the Petitioner had
"some miscommunications or some phone calls" but
that they discussed the State's initial and final plea
offers before the guilty plea deadline.
counsel testified that although the Petitioner had eight
previous felony convictions, the offenses occurred within
twenty-four hours and that, as a result, the Petitioner had
one previous felony conviction for purposes of sentencing.
Counsel did not recall the State's arguing that the
Petitioner had more than one previous felony conviction and
said the Petitioner was sentenced as a Range I offender.
Counsel said, though, the previous conviction increased the
length of the within-range sentence imposed by the trial
counsel testified that he learned through the discovery
materials that Ms. Carranza was not charged with the same
offense as the Petitioner, although she and the Petitioner
were both charged with conspiracy. Counsel ...