Dameion Nolan v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 26, 2013 Session

DAMEION NOLAN v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Knox County

No. 91847 Bob R. McGee, Judge

No. E2012-00429-CCA-R3-PC - Filed June 28, 2013

The petitioner, Dameion Nolan, filed in the Knox County Criminal Court a petition for post-

conviction relief, alleging that his trial counsel was ineffective by failing to explain that he

would be required to remain on the sexual offender registry for life as a result of his guilty

pleas to five counts of especially aggravated kidnapping, three counts of aggravated rape,

two counts of aggravated robbery, and one count of aggravated burglary and the resulting

effective twenty-five-year sentence. The petitioner also contended that his guilty pleas were

not knowingly and voluntarily entered. The post-conviction court denied the petition, and

the petitioner timely appealed. In addition to his ineffective assistance claim, the petitioner

maintains that the post-conviction court erred by allowing trial counsel to remain in the

courtroom during the proceedings. 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 is Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD

W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Dameion Nolan.

Robert E. Cooper, Jr., Attorney General and Reporter, Deshae Dulany Faughn, Assistant

Attorney General; Randall E. Nichols, District Attorney General, and Phil Morton, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

At the July 28, 2008, guilty plea hearing, the State explained to the trial court the

factual basis for the pleas. The State said that shortly after 1:00 a.m. on June 3, 2007, the

petitioner and his two codefendants, Shavon Page and Michael McMahan, entered the Knox

County residence of the victims, W.P. and T.P.1 , by forcing open the rear, basement door of

the residence. All three defendants, armed with handguns, went into the victims’ bedroom

where they were sleeping. As the victims began to awaken, one of the defendants “pistol

whipped” W.P. At gunpoint, the defendants made T.P. remove her clothing and ordered both

victims to lie down on the floor. The defendants bound the victims with belts and other items

from the victims’ bedroom. The defendants took the jewelry that was in the bedroom,

removed T.P.’s wedding ring from her finger, and demanded to know where the victims kept

their money. W.P. revealed that his credit cards were in his downstairs office. After two

defendants took W.P. downstairs, he gave them the cards and the pin number for one of the

cards. The two defendants put W.P.’s collection of state quarters, which had an approximate

value of $3,000, in one of W.P.’s camera bags and took the bag with them.

While the two defendants and W.P. were downstairs, the defendant with T.P. forced

her at gunpoint to perform fellatio on him. When the two defendants and W.P. returned to

the bedroom, the defendants made W.P. lie on the floor and watch as they forced T.P. to

perform fellatio on all three defendants. The petitioner’s co-defendants also attempted to

vaginally rape T.P. T.P. became nauseous after the rapes, and the defendants threatened to

shoot her if she vomited. The defendants took T.P. downstairs at gunpoint and made her turn

off the power to the residence’s surveillance camera. During the incident, the defendants

repeatedly threatened that if the victims “move[d] or talk[ed], . . .[the defendants] would

blow [the victims’] heads off.”

Shortly before 4:00 a.m., the defendants left the residence by a patio door and got into

an awaiting car. At 4:04 a.m., a security camera at the SunTrust Bank on Cedar Bluff Road

recorded the petitioner in a car with at least two other individuals, using the victim’s ATM

card to withdraw $500 in cash.

Greg Faulkner of the Knox County Sheriff’s Office later spoke with the petitioner, and

the petitioner revealed the names of his co-defendants, Page and McMahan. Police searched

the car the petitioner was driving and found the victims’ jewelry in the glove compartment.

On June 5, 2007, McMahan’s mother, Tracie Bennet, went to Charlie’s Pawn Shop on

Kingston Pike, where she pawned a diamond heart-shaped pendant that belonged to T.P.

DNA testing of samples from the defendants were compared with swabs taken from the

victim during a rape kit, revealing sperm from Page and McMahan.

The petitioner entered guilty pleas to five counts of especially aggravated kidnapping

1

It is the policy of this court to refer to the victim’s of sexual crimes by their initials.

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and three counts of aggravated rape, Class A felonies, and for each conviction received a

twenty-five-year sentence to be served at one hundred percent. The petitioner also pled

guilty to two counts of aggravated robbery, a Class B felony, and was sentenced as a Range

I, standard offender to twelve years, with release eligibility after serving thirty percent of the

sentence in confinement. Finally, the petitioner pled guilty to one count of aggravated

burglary, a Class C felony, and received a six-year sentence as a Range I, standard offender,

with release eligibility after serving thirty percent of the sentence. The trial court ordered the

sentences to be served concurrently, for a total effective sentence of twenty-five years at one

hundred percent.

On June 4, 2009, the petitioner, acting pro se, filed a petition for post-conviction

relief, and amended the petition on June 26, 2009. Thereafter, counsel was appointed, and

four additional amended petitions were filed. On January 27, 2012, the post-conviction court

held an evidentiary hearing on the petitions.

Before the petitioner testified at the hearing, post-conviction counsel asked that trial

counsel be excluded from the courtroom during the petitioner’s testimony based upon

Tennessee Rule of Evidence 615, which governs the sequestration of witnesses. The State

responded, “No, I’m asking him to stay. I think he’s – he’s the State’s designated witness

under the rule. He’s the complained on lawyer, I think he’s entitled to hear what the

complaints are and respond to them.” The post-conviction court overruled the petitioner’s

motion.

The twenty-two-year-old petitioner testified that he was seventeen years old when he

was arrested. He said that he was never informed that he would be transferred from juvenile

court to criminal court. He said that he did not want a preliminary hearing or transfer hearing

in juvenile court because his main goal was to be released on bond.

The petitioner said that he met with trial counsel “[a] few times, a couple of times,

maybe a handful or less than a handful of times” and that they discussed the facts of the case.

During a meeting at the county jail on June 26, 2008, trial counsel advised the petitioner of

a plea offer that would require him to serve twenty-five years in confinement. Counsel said

that “due to some law or something,” the petitioner would have to serve only seventeen years.

The petitioner agreed to accept the plea. The petitioner asserted that trial counsel never

advised the petitioner that he would be subject to community supervision for life or that he

would be placed on the sexual offender registry.2

The petitioner said that his guilty plea hearing took place on June 28, 2008, and that

2

See Tenn. Code Ann. §§ 39-13-524, 40-39-201

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he signed the written plea agreement the same day. The written plea agreement did not

include the provision that the petitioner was subject to community supervision for life or that

he would be placed on the sexual offender registry.

The petitioner asserted that he would not have pled guilty had he known of the

lifetime community supervision requirement. He had believed that after completing his term

of incarceration, he “would be done with this case.” The petitioner said that after his guilty

pleas, he sent trial counsel a letter saying that he was not guilty of any of the charges and that

he wanted to withdraw his guilty pleas.

On cross-examination, the petitioner acknowledged that he had been in juvenile court

on two prior occasions. He said that he did not understand juvenile proceedings because

“[n]o lawyer I ever had ever explained anything about none of my cases.”

The petitioner said that after his arrest, he told the police of his involvement in the

crime. He acknowledged that he knew the police had photographs of him using the victims’

ATM card. Trial counsel told him that his co-defendants were not being offered a plea

agreement and that as a condition of his pleas, he would be required to testify against them.

Trial counsel said that the petitioner would receive a twenty-five-year sentence, of which he

would serve seventeen years. The petitioner said that after he served seventeen years, he

expected to “walk out of prison and not have to worry about anything else.”

The petitioner stated that he met with trial counsel less than five times and that on one

or two occasions, trial counsel brought an investigator to the meetings. Trial counsel never

discussed whether the State’s case against the petitioner was strong or weak. The petitioner

maintained that counsel never mentioned that he would be subject to community supervision

for life, asserting that the requirement “would have been a deal breaker.” He learned of the

requirement “some time in 2009” when, after arriving at the Tennessee Department of

Correction, he looked at his judgments of conviction and saw a notation in the “special

conditions” section that explained he was subject to lifetime community supervision

following service of his sentences.

The petitioner acknowledged that he was not under the influence of drugs or alcohol

at the guilty plea hearing and that he told the trial court he understood the proceedings and

had no questions. The petitioner said that although he was innocent of the crimes, he

followed trial counsel’s advice and “just answer[ed] yes to the judge’s questions.”

Post-conviction counsel introduced as exhibits the original July 28, 2008 aggravated

rape judgments of conviction and the October 16, 2008 corrected judgments of conviction.

The original judgments of conviction did not provide for lifetime community supervision;

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however, the corrected judgments reflect that the petitioner was subject to community

supervision for life.

Trial counsel testified that after he was appointed to represent the petitioner, he hired

a private investigator and began investigating the case. Counsel spoke with the petitioner

and with members of the petitioner’s family. Trial counsel believed he understood the facts

of the case and was prepared for trial. Nevertheless, based upon information from the

petitioner, counsel thought, given the petitioner’s youth and the strength of the State’s proof

against him, it was in the petitioner’s best interest to negotiate a plea agreement. Counsel

thought they did not “have a very winnable strategy.”

Trial counsel told the petitioner that the charges he faced were based upon his own

acts and his criminal responsibility for the acts of his co-defendants. The petitioner did not

“like that concept [of criminal responsibility,] but he seemed to understand it very clearly.”

Trial counsel told the petitioner that he might be able to earn up to fifteen percent reduction

credits on his sentence but that the credits “would be determined by the prison not by the

judge.”

Trial counsel said that he had lengthy discussions with the petitioner regarding the

community supervision for life required upon his plea to aggravated rape. The private

investigator was present during one of the discussions. Counsel explained:

I had been involved with another lawyer in town on several of

these cases when the – when the Marcus Ward case was being

argued before the ruling and that – the idea of letting the

defendants know that this is going to happen to them is

something that a whole bunch of us, myself included, really

started hammering a couple of years before this even happened

with [the petitioner] because we all kind of saw that this was –

this could happen.

Trial counsel said that the petitioner was very young and faced multiple charges that,

if he were convicted, could result in a lengthy sentence. The petitioner’s main concern was

how quickly he could be released from custody. Trial counsel advised the petitioner that

after completing the twenty-five-year sentence associated with the plea agreement, he would

be young enough to do things he wanted, such as traveling. Trial counsel said he told the

petitioner, “You’re going to serve your time and be done and then you’re going to have to

go see these people. And then if you move to a different state, you got to go talk to them, but

it’s not too bad. It’s only a couple times a year that you go talk to th[ese] people.”

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Trial counsel said that due to an issue with the media, there was a “break” during the

petitioner’s guilty plea hearing. The petitioner was “annoyed” by the media coverage

because he did not want to be known as “a snitch.” Trial counsel thought that he and the

petitioner discussed the community supervision for life requirement again during the break.

On cross-examination, trial counsel said that he could not recall whether he had seen

the petitioner’s corrected aggravated rape judgments. During his representation of the

petitioner, he advised the petitioner of his rights. Counsel stated that he had liked the

petitioner and had felt sorry for him. He did not think the trial court had improperly advised

the petitioner during the guilty plea hearing, and counsel would have informed the petitioner

if the court had provided misinformation. Counsel noted that he did not “correct” the trial

court about the need to inform the petitioner about the supervision requirement because

“[t]he Ward case hadn’t come out and I had reviewed the lifetime community supervision

with [the petitioner] already in the plea discussions.” Counsel denied ever receiving a letter

from the petitioner stating that he wanted to withdraw his guilty pleas.

At the conclusion of the post-conviction hearing, the post-conviction court said:

The Court has some trouble with – when you think about

it that is a fairly incredible notion that a man who was so

concerned that he might get a much larger sentence, apparently,

he had exposure upwards toward 75 years. And in order to

avoid that kind of exposure, he would agree to a sentence to

serve in prison 25 years at 100 percent but he would not have

done it if he’d known he had to check in with somebody and let

the State know about his whereabouts when he got out of prison.

That that would just be a super imposition but 25 years in prison

he could live with. There is something fairly odd about that line

of thinking.

The post-conviction court accredited trial counsel’s testimony that he advised the petitioner

of the lifetime community supervision requirement. The court found that trial counsel

thoroughly investigated the case, met with the petitioner several times, and advised the

petitioner of the possible consequences of trial and of pleading guilty. The court said that

even if the trial court failed to specifically warn the petitioner during the guilty plea hearing

about the lifetime community supervision requirement, the petitioner had been advised of the

requirement by counsel. Therefore, “it is classic harmless error.” The post-conviction court

concluded that counsel was not ineffective and that the petitioner’s guilty pleas were

knowingly and voluntarily entered. On appeal, the petitioner challenges this ruling. He also

challenges the post-conviction court’s denial of his motion to remove counsel from the

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courtroom during the petitioner’s testimony.

II. Analysis

A. Post-Conviction Claims

On appeal, the petitioner maintains that the post-conviction court erred by concluding

that his trial counsel was not ineffective and that the petitioner’s guilty pleas were knowingly

and voluntarily entered. The State responds that the post-conviction court correctly

concluded that the petitioner failed to prove his post-conviction claims and that he is not

entitled to relief.

To be successful in a claim for post-conviction relief, a petitioner must prove the

factual allegations contained in the post-conviction petition by clear and convincing

evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means

evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.

App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

Issues regarding the credibility of witnesses, the weight and value to be accorded their

testimony, and the factual questions raised by the evidence adduced at trial are to be resolved

by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579

(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to

substantial deference on appeal unless the evidence preponderates against those findings. See

Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. See

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s

findings of fact de novo with a presumption that those findings are correct. See Fields, 40

S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law

purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, “the petitioner bears the burden of proving both that counsel’s performance was

deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,

369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish

deficient performance, the petitioner must show that counsel’s performance was below “the

range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient

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to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Generally,

[b]ecause a petitioner must establish both prongs of the

test, a failure to prove either deficiency or prejudice provides a

sufficient basis to deny relief on the ineffective assistance claim.

Indeed, a court need not address the components in any

particular order or even address both if the [petitioner] makes an

insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Moreover, in the context of

a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s

errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks

v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S.

52, 59 (1985).

When a defendant enters a plea of guilty, certain constitutional rights are waived,

including the privilege against self-incrimination, the right to confront witnesses, and the

right to a trial by jury. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in order

to comply with constitutional requirements a guilty plea must be a “voluntary and intelligent

choice among the alternative courses of action open to the defendant.” North Carolina v.

Alford, 400 U.S. 25, 31 (1970). In order to ensure that a defendant understands the

constitutional rights being relinquished, the trial court must advise the defendant of the

consequences of a guilty plea, and determine whether the defendant understands those

consequences. Boykin, 395 U.S. at 244.

In determining whether the petitioner’s guilty pleas were knowing and voluntary, this

court looks to the following factors:

the relative intelligence of the defendant; the degree of his

familiarity with criminal proceedings; whether he was

represented by competent counsel and had the opportunity to

confer with counsel about the options available to him; the

extent of advice from counsel and the court concerning the

charges against him; and the reasons for his decision to plead

guilty, including a desire to avoid a greater penalty that might

result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

Underlying the petitioner’s assertion that his trial counsel was ineffective and that his

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pleas were not knowingly and voluntarily entered is his complaint that trial counsel failed to

advise him that he would be subject to community supervision for life after pleading guilty

to aggravated rape. See Tenn. Code Ann. § 39-13-524(a). In support of his claims, the

petitioner cites State v. Ward, 315 S.W.3d 461, 464 (Tenn. 2010), in which our supreme

court examined the effect of a trial court’s failure to advise a defendant during a guilty plea

hearing of the consequences of being subject to community supervision for life. The court

reiterated that for a guilty plea to be entered knowingly and voluntarily, a defendant must be

aware of the “direct consequences” of the guilty plea and that “[t]he most obvious direct

consequence of a conviction is the penalty to be imposed. It is, therefore, well-recognized

that the defendant must be apprised of the sentence that he will be forced to serve as the

result of his guilty plea and conviction.” Id. at 474 (citation, internal quotations, and

emphasis omitted). The court held that “the mandatory lifetime supervision requirement is

an additional part of a defendant’s sentence[; therefore,] the trial court is constitutionally

required to inform the defendant of the supervision requirement as part of the plea colloquy.”

Ward, 315 S.W.3d at 474.

Our review of the transcript of the guilty plea hearing reveals that the trial court did

not advise the petitioner that he would be subject to a lifetime of community supervision as

a result of his guilty pleas to aggravated rape. Therefore, the trial court failed to advise the

petitioner of the consequences of his guilty pleas. However, we note that this court has

previously addressed this issue and concluded that “the holding in Ward is not to be applied

retroactively in collateral proceedings such as petitions for post-conviction relief.” State v.

Joshua Jermaine Whitehead, No. E2012-00312-CCA-R3-CD, 2012 WL 4551345, at *5

(Tenn. Crim. App. at Knoxville, Oct. 3, 2012) (citing Derrick Brandon Bush v. State, No.

M2011-02133-CCA-R3-PC, 2012 WL 2308280, at *10 (Tenn. Crim. App. at Nashville, June

15, 2012), perm. to appeal granted, (Tenn. Oct. 17, 2012)). The petitioner pled guilty on July

28, 2008; our supreme court’s Ward decision was not filed until July 7, 2010. Thus, Ward

was not applicable at the time the petitioner entered his guilty pleas.

In any event, regarding the appellant’s claim of ineffective assistance of counsel, the

post-conviction court specifically accredited trial counsel’s testimony that he was aware the

Ward case was pending and that he repeatedly and thoroughly advised the petitioner that

because of his aggravated rape convictions, he would be subject to community supervision

for life. Nothing preponderates against the trial court’s finding. Thus, the petitioner has

failed to show that counsel rendered deficient performance.

As to whether the trial court’s failure to advise the petitioner about the consequences

of his guilty pleas rendered the pleas unknowing and involuntary, our supreme court stated

in Ward that such error is subject to harmless error review. 315 S.W.3d at 476. To save the

conviction, the State must “prove[] that the error was harmless beyond a reasonable doubt.”

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Id. “If it can be shown that the defendant already knew what he was not advised, . . . the

harmless nature of the error is classic.’” Id. (quoting State v. Neal, 810 S.W.2d 131, 139

(Tenn. 1991)). Again, the trial court explicitly accredited trial counsel’s testimony that he

advised the petitioner of the requirement of community supervision for life, and the evidence

does not preponderate against this finding. Therefore, the State has established that the trial

court’s error was harmless beyond a reasonable doubt.

B. Rule 615

The petitioner maintains that pursuant to Tennessee Rule of Evidence 615, the post-

conviction court should have excluded trial counsel from the courtroom during the

petitioner’s testimony. The petitioner asserts that after hearing the petitioner’s testimony,

trial counsel “ha[d] ample motive to testify in such a way – truthful or not– that ma[de] him

look better in the eyes of the finder of law and/or fact.” Therefore, allowing trial counsel to

remain in the courtroom “was nothing more than a means to bolster the testimony of

[counsel] when he was called as a witness by the State of Tennessee, and to allow him to hear

and prepare to overcome damaging testimony against him by the Petitioner.” The State

responds that the post-conviction court did not violate Rule 615 because “trial counsel’s

presence was essential to the presentation of the State’s case.”

The application of Tennessee Rule of Evidence 615, the rule of sequestration, “is

within the sound discretion of the trial court.” State v. Palmer, 108 S.W.3d 887, 898 (Tenn.

Crim. App. 2002) (citing State v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992)). Rule 615

provides that “[a]t the request of a party the court shall order witnesses . . . excluded at trial

or other adjudicatory hearing. . . . The court shall order all persons not to disclose by any

means to excluded witnesses any live trial testimony or exhibits created in the courtroom by

a witness.” Tenn. R. Evid. 615. However, “[t]his rule does not authorize exclusion of . . .

a person whose presence is shown by a party to be essential to the presentation of the party’s

cause.” Id.

This court has previously held that “‘[g]iven the special circumstances which arise in

a post-conviction proceeding in which a petitioner claims that his trial attorney was

ineffective, it is entirely reasonable to conclude that the trial attorney’s presence would be

essential for the presentation of the state’s case.’” Palmer, 108 S.W.3d at 898 (quoting State

v. Jerome Brown, No. 03C01-09107-CR-00201, 1992 WL 259357, at *7 (Tenn. Crim. App.

at Knoxville, Oct. 7, 1992)). This court has repeatedly concluded that a post-conviction court

did not abuse its discretion by allowing trial counsel to remain in the courtroom during a

petitioner’s testimony. See Shavon Page v. State, No. E2012-00421-CCA-R3-PC, 2013 WL

68904, at *9 (Tenn. Crim. App. at Knoxville, Jan. 7, 2013); Kevin White v. State, No.

E2004-02986-CCA-R3-PC, 2005 WL 1981484, at *1 (Tenn. Crim. App. at Knoxville, Aug.

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12, 2005). Likewise, we can discern no abuse of discretion in the instant case. Moreover,

the petitioner has not articulated what prejudice, if any, he suffered by allowing trial counsel

to remain in the courtroom. See Palmer, 108 S.W.3d at 898; El Paso Pitts v. State,

No.W2001-01563-CCA-R3-PC, 2002 WL 818252, at *4 (Tenn. Crim. App. at Jackson, Apr.

17, 2002). We conclude that the petitioner is not entitled to relief on this issue.

III. Conclusion

In sum, we conclude that the petitioner failed to prove his post-conviction claims by

clear and convincing evidence and that the post-conviction court did not err by allowing trial

counsel to remain in the courtroom during the petitioner’s testimony. Accordingly, the

judgment of the post-conviction court is affirmed.

_________________________________

NORMA McGEE OGLE, JUDGE

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