Frederick Carey v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 4, 2010

FREDERICK CAREY v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 07-05894 - 96 W. Mark Ward, Judge

No. W2009-01646-CCA-R3-PC - Filed June 14, 2010

The petitioner, Frederick Carey, pled guilty pursuant to a negotiated plea agreement to three

counts of the sale of cocaine, Class B felonies, two counts of assault, Class A misdemeanors,

and one count of resisting official detention, a Class B misdemeanor. The petitioner agreed

to a sentence of ten years in the Tennessee Department of Correction for each Class B felony,

to be served concurrently, and to time served for the misdemeanor convictions. On appeal

from the post-conviction court’s denial of relief, the petitioner argues that he received

ineffective assistance of counsel because his trial counsel presented an unenforceable plea

agreement upon which he relied in choosing to plead guilty. Following our 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.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and D. K ELLY

T HOMAS, J R., JJ., joined.

Terita M. Hewlett, Memphis, Tennessee, for the appellant, Frederick Carey.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; and William L. Gibbons, District Attorney General, for the appellee, State of

Tennessee.

OPINION

Background

In July 2007, a Shelby County grand jury indicted the petitioner, Frederick Carey,1 in

case number 07-05894 for the sale of cocaine, possession with intent to sell cocaine, and

possession with intent to deliver cocaine, Class B felonies. The grand jury indicted him on

identical charges in case numbers 07-05895 and 07-05896. In case number 07-05897, the

grand jury indicted him on two counts of assault, Class A misdemeanors, and one count of

resisting official detention, a Class B misdemeanor. Pursuant to a negotiated plea agreement,

the petitioner pled guilty on May 1, 2008, to three counts of the sale of cocaine and to case

number 07-05897 as charged. The state dismissed the six possession counts. The petitioner

agreed to serve ten years as a Range I standard offender for each sale of cocaine conviction,

to be served concurrently in the Tennessee Department of Correction. He agreed to serve

thirty days in the workhouse for each of the misdemeanor convictions, which amounted to

time served.

At his plea acceptance hearing, the petitioner stipulated to the following facts

presented by the state:

The facts giv[ing] rise to 07-05897 are on June 1, 2007[,] officers were

attempting to locate [the petitioner] who had three outstanding warrants for his

arrest. Upon making entry into the home to search the residence to find [the

petitioner][,] the officers located him in a southwest bedroom closet under

clothing. Officers ordered [the petitioner] to exit the closet, at which time he

refused. They were physically removing him from the closet when he began

to fight with the officers. During the fight [the petitioner] kicked Officer

Gonzales several times and Officer Hinson was struck on the right leg and then

Officer Gonzales was struck on the right cheek.

....

The facts giving rise to [the] indictment 07-05894 are on May 17, 2007,

a confidential informant working with the Shelby County Sheriff’s Office

Street Crimes Unit did make a narcotics transaction with [the petitioner] in

which he exchanged $40.00 with marked narcotics funds for suspected crack

cocaine. This occurred in front of 5201 Breckinwood [Drive], here in Shelby

County.

The cocaine that the confidential informant was able to purchase from

[the petitioner] did test positive and weighed .7 grams.

1

The petitioner is also known as Frederick Caery.

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The facts giving rise to indictment ending in 95, are on [May 18, 2007,]

a confidential informant working with the Shelby County Sheriff’s Office

Narcotics Unit made a phone call to [the petitioner] in regards to purchasing

some crack cocaine from him. The confidential informant met with [the

petitioner] and gave [him] $40.00 of narcotic funds for the crack cocaine.

[The petitioner] was then picked up by a male white, occupying a white

truck. That truck left the scene. [The petitioner] was followed and observed

to go into a store at Woodstock-Cuba [Road] and Rust Road. He exited the

store, got back in the truck, returned to Breckinwood [Drive], exited the

vehicle and handed the confidential informant, approximately, .86 grams of

crack cocaine and that substance did test positive.

The facts giving rise to indictment 07-05896 are on May 21, 2007[,] an

undercover officer with the Shelby County Sheriff’s Office met with [the

petitioner] in front of 5201 Breckinwood Drive and advised [the petitioner]

that he would like to buy $50.00 worth of crack cocaine.

The undercover officer left the area to get the money. [The petitioner]

was observed by the surveillance unit to make a hand to hand transaction with

a male black known as Damian Tate.

The undercover officer returned, gave [the petitioner] $50.00 of

narcotic funds and was given approximately 1.22 grams of crack cocaine by

[the petitioner]. This occurred in Shelby County, Tennessee.

The petitioner requested a community corrections sentence, and the court held a

hearing on the matter on May 30, 2008. Following the hearing, the court denied any form

of alternative sentencing. On November 5, 2008, the petitioner, pro se, filed a petition for

writ of error coram nobis, and the court appointed counsel on November 19, 2008. Through

counsel, the petitioner filed an amended petition for post-conviction relief on March 11,

2009. The petitioner alleged that he received ineffective assistance of counsel because

counsel failed to prepare and investigate his case and that he entered his guilty pleas

unknowingly and involuntarily. The post-conviction court held a hearing on July 16, 2009,

at which the parties presented the following testimony.

Trial counsel testified that she had worked for the Public Defender’s Office for

twenty-five years. She took over the petitioner’s case when his original attorney was on

medical leave. She spoke with the petitioner and suggested that she would try to procure a

better offer for him from the state. Counsel said his original offer was for fifteen years.

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Subsequently, the state agreed to ten-year sentences for the three cocaine sale charges, to run

concurrently, and to allow the petitioner to apply for probation. She said, “I told [the

petitioner] that we would try to see if we could get probation and that based on his record

Community Corrections would probably be the only shot he had at it.” Counsel testified that

she did not guarantee that the petitioner would be placed on community corrections and that

she told him it would be “a long shot” because of his record. After discussing the state’s plea

offer, the petitioner decided to plead guilty. Counsel testified that her normal procedure with

clients who are pleading guilty is to “go over the plea agreement paragraph by paragraph and

go over the judgment sheet . . . then [she has] them sign it, after they tell [her] they

understand everything.” Counsel recalled that the petitioner told her that he had received a

head injury that caused him to reevaluate his life. She did not believe the injury affected his

reasoning ability. Counsel said that the petitioner said that he understood his rights, and she

had no reason to doubt him. She testified that the petitioner maintained his innocence, but

there was video placing him in the locations of the drug sales, and he was facing a much

longer sentence if he went to trial.

On cross-examination, counsel testified that she reviews the state’s proof with each

of her clients and advises them of the sentencing possibilities. She said that she would not

have allowed the petitioner to plead guilty if he did not understand what he was doing.

Counsel could not recall whether the petitioner’s insistence that he was innocent was an issue

regarding his plea acceptance. Counsel said that she knew the petitioner before she began

working on his case. She believed that she had represented him in a prior matter.

The petitioner testified that counsel told him the state was offering ten-year sentences

and that he would get probation, but she was not sure what kind of probation he would

receive. He testified that he signed papers without reading them, believing them to be

probation papers. He did not know that he was agreeing to serve ten years. The petitioner

said that he would not have accepted the offer if counsel had not promised that he would get

probation. He recalled that the trial judge told him, during the plea acceptance hearing, that

no one could guarantee that he would receive community corrections. He did not speak up

at the time because he “was trying to find out how things were going to work out for [him]”

and “was kind of stunned . . . .” When the judge asked him whether he was satisfied with his

representation, he replied “huh-uh,” meaning that he was not because he was not satisfied

with his original attorney and trial counsel had only represented him one day.

On cross-examination, the petitioner admitted that he was familiar with the criminal

justice system and that he was normally willing to advocate for his rights, as evidenced by

the letters he wrote to his attorney and to the Board of Professional Responsibility. He said

that he did not answer the judge as he should have when the judge asked about his

understanding that he may or may not receive a community corrections sentence. The

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petitioner claimed that he told the judge that counsel promised that he would receive

community corrections, despite the absence of such a comment on the record.

The post-conviction court entered a written order denying relief on July 16, 2009. The

court found that the petitioner presented no evidence that counsel failed to prepare and

investigate his case and that counsel’s testimony that she did not promise the petitioner that

he would receive a community corrections sentence was credible . The post-conviction court

ruled that the petitioner did not carry his burden of proving his claims. The petitioner filed

a timely notice of appeal.

Analysis

On appeal, the petitioner contends that he received ineffective assistance of counsel

when counsel presented the state’s plea agreement, which he claims was unenforceable

because he was not eligible to receive a community corrections sentence. The state responds

that the petitioner waived his argument by not presenting it in his petition for post-conviction

relief nor arguing his claim at the post-conviction hearing. Alternatively, the state argues that

counsel provided effective assistance and did not guarantee the petitioner that he would

receive a community corrections sentence. We agree with the state’s alternative argument.

The burden in a post-conviction proceeding is on the petitioner to prove his grounds

for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). On appeal,

this court is bound to the post-conviction court’s findings of fact unless the evidence

preponderates against those findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our

review of the post-conviction court’s factual findings is de novo with a presumption that the

findings are correct. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001). Our review of

the post-conviction court’s legal conclusions and application of law to facts is de novo

without a presumption of correctness. Id.

When determining the knowing and voluntary nature of the guilty plea, the standard

is “whether the plea represents 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).

See also State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). The reviewing court must look

to various circumstantial factors, including:

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

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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). In order for a guilty plea to be

voluntary, the petitioner must have an understanding of the charges against him and the

consequences of pleading guilty, including “the sentence that he will be forced to serve as

the result of his guilty plea and conviction.” Id. at 905. A petitioner’s solemn declaration

in open court that his or her plea is knowing and voluntary creates a formidable barrier in any

subsequent collateral proceeding because these declarations “carry a strong presumption of

verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

To establish the ineffective assistance of counsel, the petitioner bears the burden of

proving that (1) counsel’s performance was deficient and (2) the deficient performance

prejudiced the defense rendering the outcome unreliable or fundamentally unfair. Strickland

v. Washington, 466 U.S. 668, 687 (1984). See also Arnold v. State, 143 S.W.3d 784, 787

(Tenn. 2004). Deficient performance is shown if counsel’s conduct fell below an objective

standard of reasonableness under prevailing professional standards. Strickland, 466 U.S. at

688. See also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that

representation should be within the range of competence demanded of attorneys in criminal

cases). A fair assessment of counsel’s 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. See also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

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). The fact that a

particular strategy or tactical decision failed does not by itself establish ineffective assistance

of counsel. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves

that counsel’s representation fell below a reasonable standard, the petitioner must also prove

prejudice. Strickland, 466 U.S. at 694. In relation to a guilty plea, the petitioner must show

a reasonable probability that, but for the errors of his counsel, he would not have pled guilty

and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985);

Adkins v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994).

Initially, we note that the state contends that the petitioner waived his argument on

appeal by not including it in his petition for post-conviction relief nor arguing his claim at

the post-conviction hearing. In his petition, the petitioner claims that he

was misled and thereby induced into believing that he was eligible for

Community Corrections. However, after the acceptance of the guilty plea,

Counsel acknowledged during the sentencing hearing that Petitioner was not

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one who would normally be considered for Community Corrections . . . . Had

Petitioner known that it was possible he would not be eligible for Community

Corrections, he would not have pled guilty but would have insisted on going

to trial.

In his appellate brief, the petitioner states that counsel “communicated to [the petitioner] that

Community Corrections was a possibility and upon further discussion with [the petitioner],

he waived his right to trial and chose to plead guilty.” He further states that counsel “owed

a duty to [the petitioner] to determine whether the [Community Corrections terms] of the

[p]lea could be implemented before rendering advice on whether to accept the plea bargain.”

While expressed differently on appeal, the argument is sufficiently similar to his petition

because he argues in both that he relied on his alleged eligibility to receive a community

corrections sentence when he pled guilty. We conclude that the petitioner has not waived his

argument.

As for the merits of the petitioner’s argument, in our view, the petitioner has not

carried his burden of showing a reasonable probability that he would have proceeded to trial

but for counsel’s error. Counsel’s testimony, accredited by the trial court, reveals that she

did not promise that he would receive a community corrections sentence. Additionally, the

guilty plea hearing transcript demonstrates that the trial court advised the petitioner that no

one could guarantee that he would receive community corrections and that the petitioner

indicated that he understood. The negotiated plea agreement allowed him to apply for an

alternative sentence, and the trial court held a hearing to determine whether to grant

alternative sentencing. The trial court denied alternative sentencing, not because the

petitioner was statutorily ineligible as the petitioner contends on appeal, but because, in its

discretion, the court found that he was not a suitable candidate for any form of alternative

sentencing based on his criminal record and history of probation violations. The petitioner

has not shown that counsel provided ineffective assistance by inducing him to plead guilty

based on an unenforceable plea agreement. Trial counsel made no guarantee that he would

receive community corrections and the plea agreement, which he indicated at the time that

he understood, merely allowed him to apply for alternative sentencing. We conclude that the

petitioner’s claim is without merit.

Conclusion

Based on the foregoing reasons, we affirm the denial of post-conviction relief.

___________________________________

J.C. McLIN, JUDGE

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