Donald Smith v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 9, 2013

DONALD SMITH v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 10-02085-90 Lee V. Coffee, Judge

No. W2012-01084-CCA-R3-PC - Filed September 30, 2013

The Petitioner, Donald Smith, contends that his guilty plea was not knowingly and

intelligently entered because he was not coherent at the hearing due to mental incapacities

and that trial counsel was deficient for failing to request a mental evaluation. After

considering the record and the relevant authorities, we affirm the judgment of the post-

conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OHN E VERETT

W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

James P. DeRossitt, IV, Memphis, Tennessee, for the appellant, Donald Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Greg Gilbert, Assistant District

Attorney General; State of Tennessee.

OPINION

FACTUAL BACKGROUND

Six separate indictments for the sale, possession, and delivery of cocaine, Class C

felonies, were issued against the Petitioner on March 30, 2010. Pursuant to a plea agreement,

the Petitioner pleaded guilty on October 27, 2010, to six counts of the sale of cocaine and

received concurrent ten-year sentences on each count, for an effective ten-year sentence. As

a part of the plea agreement, the Petitioner agreed not to seek any form of probation or

alternative sentence. The proffered factual basis for the plea was as follows:

[H]ad the cases gone to trial, the proof would have been that all of these crimes

occurred here in Memphis and Shelby County, before the finding of these

indictments on the dates alleged in the indictment. The defendant met with an

undercover law enforcement officer and sold that undercover officer a

substance that later field tested positive for cocaine. It weighed under five

tenths of a gram in each [of the six] case[s]; and it was delivered to the

undercover officer in exchange for money.

The Petitioner filed a pro se petition for post conviction relief on November 4, 2011,

alleging that he had newly discovered evidence that he was suffering from a mental illness

at the time he entered his guilty plea, rendering it unlawful, and that he received the

ineffective assistance of counsel. Counsel was appointed, and an amended petition was filed

on January 23, 2012, reiterating the claims alleged in the pro se petition. An evidentiary

hearing was held on February 22, 2012. The following evidence was presented.

The Petitioner testified that after retaining trial counsel, he asked trial counsel to file

some motions, but trial counsel never filed any. The Petitioner stated that trial counsel never

explored his mental condition, despite asking trial counsel to have him undergo a competency

evaluation, and that he was later diagnosed with bi-polar manic depressive disorder. The

Petitioner testified that he tried to contact trial counsel numerous times over the phone but

that trial counsel was always too busy and never had time to speak with him. According to

the Petitioner, trial counsel visited him about three times while he was incarcerated and every

time prior to court appearances: he had approximately fifteen to twenty court dates. The

Petitioner relayed that he had sought out another attorney because he “felt like [trial counsel]

wasn’t representing [him] to the fullest.” However, he did not retain that attorney because

he could not afford the attorney’s price.

The Petitioner testified that he wanted to go to trial and relayed that to trial counsel.

He explained that he ultimately decided to accept the plea agreement “[b]ecause [trial

counsel] told [him] that [he] didn’t have a chance.” The Petitioner further explained, “it was

like [trial counsel] was saying that nothing else could be done, and I didn’t know the

necessary procedures that I could take to contest what was going on. I just felt like I didn’t

have a chance.” When asked whether he understood that he had a right to have a jury trial,

the Petitioner stated, “I really didn’t. I just - it’s like I heard what the judge was reading to

me; but as far as, you know, understanding what he was saying, I really didn’t.” The

Petitioner explained that, although it might have appeared as if he understood his right to

have a jury trial,

at the time, I didn’t - I were [sic] going through withdrawal symptoms, and I

didn’t know, necessarily what I was doing because I didn’t - I didn’t

understand what was going on. You know, it’s like when I hired [trial

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counsel], I expected him to do everything in his power to defend me. So I just

really put my trust in him because I really did not have any - and I really don’t

have knowledge of the proceedings as our courts go.

The Petitioner said that he had also asked trial counsel about entering a drug treatment

program but that trial counsel said that the Petitioner would not qualify. The Petitioner

claimed that he was unaware that the terms of his plea agreement precluded him from

seeking any form of probation or alternative sentence until it was announced in court; he did

not raise that concern to the trial court because he “didn’t even know how to voice it to the

court.” The Petitioner testified that he began to have second thoughts about his guilty plea

after he learned about his mental condition. The Petitioner explained,

I learned that I’m a bi-polar manic depressant [sic.], and I have been

experiencing thoughts of people talking about me; and, you know, thoughts of

people taking my life; and, you know, it’s like I can’t manage money. It’s just -

it’s like I have dreams - at night, I’m sweating, and it’s like I have anxiety -

outbursts of anxiety all the time, you know, to my mother - to my sister - to my

brother - to, you know, the people that love me.

He further explained that this had been going on since he was thirteen but that, as a child, he

did not know how to deal with his issues and had neither the information nor the money to

address his problems before he was incarcerated and had access to proper care. He also

explained that his mother, who was also manic, was recently properly diagnosed, and “that

allowed [him] to be properly diagnosed so [he] could stop doing and being misled into things

that [he had] done in the past.”

Trial counsel testified that he met with the Petitioner approximately seventeen to

twenty times during his representation and estimated that he made about fifteen to twenty jail

visits, delivering discovery, etcetera. He testified that he visited the Petitioner the same

amount of time as he would any “in-custody defendant,” except for a few, and that he had

been practicing in criminal court for twenty-eight years. Trial counsel stated that he also

shared the discovery materials with the Petitioner’s girlfriend, and he presented a signed copy

of a receipt reflecting such.

Trial counsel testified that the undercover officer who the Petitioner sold cocaine to

was being monitored because he had misidentified a defendant in a previous case. He

explained that he thought “there might be some headway with that” until he found out that

the undercover officer only had one misidentification. Trial counsel testified that there were

serious circumstantial issues with the Petitioner’s case. He explained that there was never a

“dead-on” shot of the Petitioner’s face in the surveillance video, creating an element of doubt

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as to whether the Petitioner was the person in the video. However, this element was tempered

by the facts that trial counsel recognized the Petitioner’s voice in the video and that the car

involved in the drug sale was registered to the Petitioner’s aunt or other relative; trial counsel

believed it was doubtful that a jury would believe that the Petitioner’s aunt was involved in

six different drug sales.

Trial counsel stated that he discussed the plea agreement with the Petitioner before

entering the plea. Trial counsel testified, “my hands were tied. . . . the prosecutor . . . was

inflexible as a brick. I was steadily getting nowhere, but I continuously reset the case for

short periods trying to make some headway.” He further testified that he even sought a better

plea agreement from the “second in command” in the prosecutor’s office but that no one

would budge on the plea deal. The prosecutors were primarily concerned with the Petitioner’s

record, and both he and the Petitioner were frustrated with the negotiations and believed the

“ultimate plea was probably predicated on exasperation.” Trial counsel said that he did not

recall whether the stipulation that the Petitioner would not ask for probation or any

alternative sentence was a part of the plea agreement.1 Trial counsel explained that the

Petitioner was always “perfectly in touch,” and there was never any indication that the

Petitioner needed a mental evaluation. He further explained that, at the hearing, the Petitioner

was the same person that he had always dealt with. Trial counsel conceded that there was

potentially some regression but stated that the eloquent nature of his petition negated that

perception; it was “so well-written and grammatically correct.”

In its order denying post-conviction relief, the post-conviction court found that trial

counsel was not deficient in his performance and was not obligated to conduct further

investigation concerning the Petitioner’s mental capacity; there was no indication in the

record that the Petitioner had any mental illness. The Petitioner offered no newly discovered

evidence that he was suffering from any mental illness nor any proof indicating that he

lacked the capacity to understand and waive his rights at the guilty plea hearing. The post-

conviction court also found that the Petitioner failed to prove that additional investigation or

witnesses would have made a difference. Thus, the Petitioner failed to establish prejudice.

The post-conviction court noted that the Petitioner’s testimony at the post-conviction hearing

and the guilty plea hearing was inconsistent and found that the Petitioner’s testimony at the

post-conviction hearing was untruthful. The Petitioner, thereafter, filed a timely notice of

appeal.

ANALYSIS

The Petitioner contends that the post-conviction court erred in denying him post-

1

The post-conviction court noted that this stipulation was written on both judgment forms.

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conviction relief because he received the ineffective assistance of counsel. Specifically, he

contends that his guilty plea was not knowingly and intelligently entered because he was not

coherent when he entered his plea and that trial counsel was deficient for failing to request

a mental evaluation. The State responds that the Petitioner has failed to prove that his trial

counsel was ineffective, that his guilty plea was unknowingly and unintelligently entered, or

that a mental evaluation was necessary.

Petitions for post-conviction relief are governed by the Post-Conviction Procedure

Act. Tenn. Code Ann. §§ 40-30-101 to -122. To obtain relief, the petitioner must show that

his conviction or sentence is void or voidable because of the abridgement of a constitutional

right. Tenn. Code Ann. § 40-30-103. The petitioner must prove his factual allegations

supporting the grounds for relief contained in his petition by clear and convincing evidence.

Tenn. Code Ann. § 40-30-110(2)(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.

2009). Evidence is clear and convincing when there is no substantial doubt about the

accuracy of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245

(Tenn. Crim. App. 1998).

The post-conviction court’s findings of fact are conclusive on appeal unless the

evidence in the record preponderates against them. See Nichols v. State, 90 S.W.3d 576, 586

(Tenn. 2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)); see also Fields v.

State, 40 S.W.3d 450, 456-57 (Tenn. 2001). The petitioner has the burden of establishing

that the evidence preponderates against the post-conviction court’s findings. Henley v. State,

960 S.W.2d 572, 579 (Tenn. 1997). This court may not re-weigh or reevaluate the evidence

or substitute its inferences for those drawn by the post-conviction court. Nichols, 90 S.W.3d

at 586. Furthermore, the credibility of the witnesses and the weight and value to be afforded

their testimony are questions to be resolved by the post-conviction court. Bates v. State, 973

S.W.2d 615, 631 (Tenn. Crim. App. 1997).

I. Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are regarded as mixed questions of law and

fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). Thus, the trial court’s

findings of fact underlying a claim of ineffective assistance of counsel are reviewed under

a de novo standard, accompanied with a presumption that the findings are correct unless the

preponderance of the evidence is otherwise. Fields, 40 S.W.3d at 458 (citing Tenn. R. App.

P. 13(d)). The trial court’s conclusions of law are reviewed under a de novo standard with

no presumption of correctness. Id.

Under the Sixth Amendment to the United States Constitution, when a claim of

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ineffective assistance of counsel is made, the burden is on the defendant to show (1) that

counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland

v. Washington, 466 U.S. 668, 687 (1984); see Lockart v. Fretwell, 506 U.S. 364, 368-72

(1993). A defendant will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. See Henley, 960 S.W.2d at 580. The

performance prong requires a defendant raising a claim of ineffectiveness to show that

counsel’s representation was deficient, thus fell below an objective standard of

reasonableness or was “outside the wide range of professionally competent assistance.”

Strickland, 466 U.S. at 690. The prejudice prong requires a defendant to demonstrate that

“there is a reasonable probability that, but for counsel’s professional errors, the result of the

proceeding would have been different.” Id. at 694. “A reasonable probability means a

probability sufficient to undermine confidence in the outcome.” Id. Failure to satisfy either

prong results in the denial of relief. Id. at 697. The Strickland standard has also been applied

to the right to counsel under article I, section 9 of the Tennessee Constitution. State v.

Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

Both the United States Supreme Court and the Tennessee Supreme Court have

recognized that the right to such representation includes the right to “reasonably effective”

assistance, that is, within the range of competence demanded of attorneys in criminal cases.

Strickland, 466 U.S. at 687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In

reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689. Deference is made to trial strategy or

tactical choices if they are informed ones based upon adequate preparation. Hellard v. State,

629 S.W.2d 4, 9 (Tenn. 1982). “Thus, the fact that a particular strategy or tactic failed or

even hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v.

State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

This two-part standard of measuring ineffective assistance of counsel also applies to

claims arising out of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice

component is modified such that the defendant “must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Id. at 59; see also Hicks, 983 S.W.2d at 246.

A. Failure to Request a Mental Evaluation

The Petitioner contends that his trial counsel was deficient for failing to request a

mental evaluation to investigate his mental illness. The State responds that the Petitioner

offered no proof to support a defense of inability to form a mental state which would

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necessitate a mental evaluation.

The applicable test as to competency to stand trial is whether the accused has the

sufficient present ability to consult with his lawyer with a reasonable degree of rational

understanding and whether he has a rational and factual understanding of the proceedings

against him. State of Tennessee v. Billy Joe Carter, No. E2012-00279-CCA-R3-PC, 2013

WL 625597, at *15 (Tenn. Crim. App. Feb. 20, 2013) (citing State v. Benton, 759 S.W.2d

427 (Tenn. Crim. App. 1988)).

The record reflects that trial counsel, an experienced trial attorney, communicated

regularly and thoroughly with the Petitioner about his case, providing discovery and

discussing issues and defense strategies with the Petitioner. Trial counsel stated that, based

upon his interactions with the Petitioner, he did not believe a mental evaluation necessary.

He explained that he did not file a motion requesting a mental evaluation because the

Petitioner always seemed “perfectly in touch” and appeared to understand the nature of the

charges. We discern nothing in the record indicating that the Petitioner was unable to

meaningfully consult with trial counsel “with a reasonable degree of rational

understanding[.]” Further, as we will discuss in more detail below, the Petitioner’s guilty

plea hearing colloquy with the trial court suggests that he had “a rational and factual

understanding of the proceedings against him.” Moreover, as the State points out, the

Petitioner failed to present any witnesses at the evidentiary hearing or other documentation

to support his claim that a mental evaluation was needed and that trial counsel was

ineffective for failing to request one. As such, the Petitioner cannot show that he was

prejudiced by trial counsel’s failure to request a mental evaluation. See Black v. State, 794

S.W.2d 752, 757 (Tenn. Crim. App. 1990).

B. Plea Knowingly and Intelligently

The Petitioner contends that his plea was unknowingly and unintelligently entered

because he was suffering from an undiagnosed mental illness and that he ultimately pleaded

guilty because trial counsel was not representing him “to the fullest” and was largely

indifferent to his defense. The State responds that the post-conviction court properly

concluded that the Petitioner’s plea was knowingly and voluntarily entered.

When analyzing the voluntariness of a guilty plea, we look to the federal standard

announced in Boykin v. Alabama, 395 U.S. 238 (1969), and the state standard set out in State

v. Mackey, 553 S .W.2d 337 (Tenn. 1977). See State v. Pettus, 986 S.W.2d 540, 542 (Tenn.

1999). In Boykin, the United States Supreme Court held that there must be an affirmative

showing in the trial court that a guilty plea was voluntarily and knowingly given before it can

be accepted. 395 U.S. at 242. Similarly, our supreme court in Mackey required an

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affirmative showing of a voluntary and knowledgeable guilty plea. Pettus, 986 S.W.2d at

542. A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,

inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). In order

to find that the plea was entered “intelligently” or “knowingly,” Boykin requires that the trial

court “canvass[ ] the matter with the accused to make sure he has a full understanding of

what the plea connotes and of its consequences.” Blankenship, 858 S.W.2d at 904 (quoting

Boykin, 395 U.S. at 244).

The courts have recognized that “the decision to plead guilty is often heavily

influenced by the defendant’s appraisal of the prosecution’s case against him and the

likelihood of securing leniency through a plea bargain.” See id. (quoting Brown v. Perini,

718 F.2d 784, 786 (6th Cir. 1983)). There are a number of circumstantial factors that should

be considered when examining the voluntariness of a guilty plea. Id. These factors include

(1) the defendant’s relative intelligence; (2) his familiarity with criminal proceedings; (3)

whether he was represented by competent counsel and had the opportunity to confer with

counsel about alternatives; (4) the advice of counsel and the court about the charges against

him and the penalty to be imposed; and (5) the defendant’s reasons for pleading guilty,

including the desire to avoid a greater penalty in a jury trial. Id. at 904-05.

Considering those factors, we conclude that the Petitioner’s guilty plea was knowingly

and intelligently entered. When questioned by the trial judge at the guilty plea hearing, the

Petitioner stated that he had gone over his waiver of jury trial form with trial counsel before

signing it and that he understood his rights. The Petitioner also stated that he was entering

his plea freely and voluntarily. If the Petitioner had gone to trial, he faced up to sixty years

as a multiple offender due to his extensive criminal record. The post-conviction court noted

that the Petitioner had extensive experience with entering guilty pleas: he had entered guilty

pleas approximately thirty times. Thus, the record reflects that the Petitioner understood his

rights, and he voluntarily relinquished those rights to avoid a greater punishment by pleading

guilty; there is simply no evidence that but for counsel’s actions, the Petitioner would not

have pleaded guilty.

Further, the Petitioner provided no evidence, and the record does not reflect any, that

trial counsel’s representation fell below the standard of reasonableness demanded of

attorneys in criminal cases, that trial counsel failed to investigate, or that trial counsel was

otherwise indifferent to the Petitioner’s defense. Therefore, as we have previously concluded

that the Petitioner appeared to have had a rational and factual understanding of the

proceedings and was able to communicate with trial counsel, the Petitioner is not entitled to

relief on this issue.

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CONCLUSION

Based upon the foregoing, the judgment of the post-conviction court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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