Selwyn Forbes George v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 12, 2014

SELWYN FORBES GEORGE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2009-D-3272 Steve Dozier, Judge

No. M2013-1320-CCA-R3-PC - Filed May 9, 2014

Petitioner, Selwyn Forbes George, was indicted by the Davidson County Grand Jury for one

count of possession with intent to sell or deliver .5 grams or more of cocaine in a drug-free

school zone. Petitioner entered a negotiated plea agreement in which he pled guilty to

possession of more than .5 grams of cocaine for resale in exchange for a twenty-year

sentence to be served as a Range I, standard offender. Petitioner subsequently filed a petition

for post-conviction relief in which he alleged that trial counsel was ineffective. After a

hearing, the post-conviction court denied relief. Petitioner appeals. After a review, we

determine that Petitioner has failed to show clear and convincing evidence that he received

ineffective assistance of counsel. Further, we determine that Petitioner has failed to show

that his guilty plea was involuntarily or unknowingly entered. As a result, we affirm the

judgment of the post-conviction court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and

J EFFREY S. B IVINS, JJ., joined.

William E. Griffith, Nashville, Tennessee, for the appellant, Selwyn Forbes George.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General, and Rachel Sobrero, Assistant

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

OPINION

Factual Background

Petitioner was indicted in October of 2009 by the Davidson County Grand Jury for

possession of more than .5 grams of cocaine with the intent to sell or deliver within a

drug-free school zone in violation of Tennessee Code Annotated section 39-17-417.

On May 23, 2011, Petitioner entered a guilty plea to one count of possession of more

than .5 grams of cocaine for resale. As a result of the negotiated plea agreement, Petitioner

would receive a sentence of twenty years to be served as a Range I, standard offender with

a release eligibility of thirty percent.

At the guilty plea hearing, counsel for the State explained the factual basis for the plea

as follows:

Had this case gone to trial, the State’s proof would have shown that on

August 6, 2009, detectives with the south crime suppression unit were

conducting an investigation based on a telephone call investigating a drug

complaint. They went to 100 Gallatin Pike, Apartment 404, and knocked on

the door.

At that time, a female opened the door who was not a resident of the

home. They asked for a resident of the home and another individual came to

the door and allowed them in. That person was the girlfriend of Dennis Hayes.

Dennis Hayes was a resident of the apartment as well.

When officers entered, they asked for consent to search. They

encountered a Mr. George sitting in an armchair in the corner of the room. Mr.

George beg[a]n fidgeting when they walked in the door. They walked over to

him and did a weapons check for safety purposes then searched the area where

he had been sitting and found tucked between the chair cushion and the side

of the chair a baggie containing 13 smaller baggies of what the TBI verified

to be crack cocaine. They also found $936 in US currency. Most of this was

in $20 bills consistent with narcotic sale.

Mr. George also had two cell phone[s] on him at the time in his pockets.

He denied that they were his although one of them had his picture on it. While

detectives were investigating, Mr. George’s cell phone continued to ring and

one of them were answered by Detective Browning. The person on the other

end asked for a 20 and Detective Browning told that person to come and get

it.

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A short time later, that person knocked on the door at apartment 404 .

. . in attempt to purchase $20 worth of crack cocaine. That person had a $20

bill in [h]is pocket and when Detectives asked if - - he cooperated with

detectives, they had that person’s phone - - his name was John McCowsky, I

believe. They took Mr. McCowsky’s phone and dialed the last number that

had been dialed from his phone and it rang to Mr. George’s phone.

Meanwhile as other detectives were processing the apartment they

found Mr. Hayes asleep in his bedroom. When they explained to him why they

were there, after he was Mirandized, he told Detectives that he was aware that

Mr. George periodically came to his house to sell drugs and that he received

some drugs in exchange for allowing Mr. George to sell drugs out of that

apartment.

After the recitation of the facts, Petitioner stated under oath that he understood the

charges against him, and that his attorney discussed the charges and punishment. Petitioner

also indicated that he understood the possible sentence he could face if he went to trial and

understood the sentence he was receiving. Petitioner testified that he was satisfied with

counsel’s representation and that entering the guilty plea was his own decision. Trial counsel

informed Petitioner of the charges, the possible punishment, and the punishment he would

receive as a result of the guilty plea. The trial court also outlined the constitutional rights

Petitioner was relinquishing by pleading guilty. The guilty plea was accepted by the trial

court.

Subsequently, Petitioner filed a pro se petition for post-conviction relief in which he

alleged that he received ineffective assistance of counsel and that his guilty plea was

involuntarily and unknowingly entered. Counsel was appointed and an amended petition was

filed.

The post-conviction court held a hearing on the amended petition for post-conviction

relief. At the hearing, Petitioner testified that trial counsel failed to file a motion to suppress.

Petitioner disagreed with trial counsel’s assessment of the facts. Trial counsel told Petitioner

that he did not have an expectation of privacy in the apartment so a challenge to the search

would be fruitless. Petitioner believed that he had standing to contest the search because he

had stayed at the residence overnight and off and on. Petitioner also claimed that trial

counsel failed to adequately interview witnesses to the arrest. As to the guilty plea, Petitioner

thought that he should have received between eight and twelve years because he had no prior

felonies. At the post-conviction hearing, Petitioner contradicted his sworn testimony at the

plea hearing, claiming that he did not entirely understand the consequences of the plea.

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Trial counsel testified that he has practiced law since the fall of 2004 and handles

about eighty percent criminal cases in his practice. Trial counsel insisted that he had

extensive discussions with Petitioner about the potential punishment. Trial counsel explained

the sentencing range and informed Petitioner that he was not guaranteed to get parole. Trial

counsel also told Petitioner that he could receive a longer sentence if he were to go to trial.

Trial counsel explained that Petitioner received another felony drug charge while on

bond for this case. Petitioner retained trial counsel to represent him on the additional

charges. At first, the State offered a “package deal” wherein Petitioner would plead to eight

years on each count in exchange for two guilty pleas. Petitioner wanted to wait to see

discovery in the second case. The State withdrew the offer before Petitioner decided to

accept it.

Trial counsel testified that the State made the twenty-year offer for the first time on

the morning of trial. After communicating the offer to Petitioner, and explaining that the

State was willing to drop the school-zone enhancement, Petitioner decided to accept the

offer. The State indicated that they would also make an acceptable offer on the second case.

Trial counsel and Petitioner had a lengthy discussion prior to the acceptance of the plea.

Trial counsel also recalled that he discussed filing a motion to suppress with

Petitioner. In trial counsel’s opinion, Petitioner did not have standing to contest the search

of the residence. Trial counsel was of the opinion that the motion was unwarranted.

Petitioner did not offer any proof to the contrary at the post-conviction hearing.

Trial counsel was aware that Petitioner wanted him to interview several witnesses

prior to trial. However, Petitioner failed to provide contact information for the witnesses.

Additionally, Petitioner did not present these witnesses at the post-conviction hearing.

At the conclusion of the proof, the post-conviction court denied relief. In a separate

order, the post-conviction court recounted the testimony at the post-conviction hearing and

determined that Petitioner failed to show that trial counsel was not prepared for the case.

Specifically, the post-conviction court accredited the testimony of trial counsel that he

reviewed discovery with Petitioner and prepared for the pending trial. The court noted that

there was “no other proof presented that showed counsel did not adequately prepare or [that

Petitioner suffered] prejudice from the lack of preparation.”

Additionally, the post-conviction court determined that trial counsel was not

ineffective for failing to file a motion to suppress. Specifically, the court again accredited

the testimony of trial counsel that counsel made the determination after research that

Petitioner did not have standing to challenge the search. The post-conviction court noted that

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Petitioner failed to show clear and convincing evidence to the contrary and failed to show

prejudice as a result of the allegation.

With regard to Petitioner’s allegation that his guilty plea was unknowing and

involuntary, the post-conviction court again accredited the testimony of trial counsel. The

court found that trial counsel had “extensive discussions about the potential punishment,”

“explained the sentencing range,” and “did not advise the petitioner that parole was a

guarantee.” Additionally, the post-conviction court determined that Petitioner was

“informed and had sufficient knowledge of the nature and consequences of the plea and that

he voluntarily chose to enter the guilty plea as evidenced by the transcript of the plea.”

As a result of those findings, the post-conviction court dismissed the petition.

Petitioner filed a timely notice of appeal.

Analysis

On appeal, Petitioner argues that the post-conviction court improperly dismissed the

petition. Specifically, he insists that trial counsel was ineffective for failing to file a motion

to suppress and that his guilty plea was involuntarily and unknowingly entered because he

was not aware of the consequences of the plea. The State disagrees, arguing that the

evidence does not preponderate against the findings of the post-conviction court.

Post-conviction Standard of Review

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

evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

During our review of the issues raised, we will afford those findings of fact the weight of a

jury verdict, and this Court is bound by the post-conviction court’s findings unless the

evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d

572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This

Court may not re-weigh or re-evaluate the evidence, nor substitute its inferences for those

drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.

2001). However, the post-conviction court’s conclusions of law are reviewed under a purely

de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001).

Ineffective Assistance of Counsel

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

of counsel, the petitioner bears the burden of showing by clear and convincing evidence that

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“(a) the services rendered by trial counsel were deficient and (b) that the deficient

performance was prejudicial.” See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.

1996); see also T.C.A. § 40-30-110(f). In order to demonstrate deficient performance, the

petitioner must show that the services rendered or the advice given was below “the range of

competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). “Because a petitioner must establish both prongs of the test to prevail on a

claim of ineffective assistance of counsel, failure to prove either deficient performance or

resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960

S.W.2d at 580.

As noted above, this Court will afford the post-conviction court’s factual findings a

presumption of correctness, rendering them conclusive on appeal unless the record

preponderates against the court’s findings. See id. at 578. However, our supreme court has

“determined that the issues of deficient performance by counsel and possible prejudice to the

defense are mixed questions of law and fact . . .; thus, [appellate] review of [these issues] is

de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

Furthermore, on claims of ineffective assistance of counsel, Petitioner is not entitled

to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.

1994). This Court may not second-guess a reasonably-based trial strategy, and we cannot

grant relief based on a sound, but unsuccessful, tactical decision made during the course of

the proceedings. See id. However, such deference to the tactical decisions of counsel applies

only if counsel makes those decisions after adequate preparation for the case. See Cooper

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

Once a guilty plea has been entered, effectiveness of counsel is relevant only to the

extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective

assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently

made. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400

U.S. 25, 31 (1970)). As stated above, in order to successfully challenge the effectiveness of

counsel, Petitioner must demonstrate that counsel’s representation fell below the range of

competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. Under

Strickland v. Washington, Petitioner must establish: (1) deficient representation; and (2)

prejudice resulting from the deficiency. 466 U.S. 668, 694 (1984). However, in the context

of a guilty plea, to satisfy the second prong of Strickland, Petitioner 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.” Hill, 474 U.S. at 59; see also Walton v. State, 966

S.W.2d 54, 55 (Tenn. Crim. App. 1997).

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On appeal, Petitioner argues that trial counsel was deficient because he did not file a

motion to suppress and failed to investigate witnesses in preparation for trial. Specifically,

Petitioner insists that he has standing to challenge the search. Further, Petitioner claims that

trial counsel failed to explain that he was pleading outside the range of punishment and was

not guaranteed parole. Petitioner claims that had he known these things he would not have

pled guilty and would have insisted on going to trial.

With regard to the motion to suppress issue, the post-conviction court accredited the

testimony of trial counsel. Trial counsel stated that after reviewing the issue, he did not find

that Petitioner had standing to challenge the search warrant as he had no right to privacy in

the apartment where he was not a permanent resident. Again, this Court may not

second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound,

but unsuccessful, tactical decision made during the course of the proceedings. Adkins, 911

S.W.2d at 347.

With regard to interviewing and investigating other witnesses, the post-conviction

court again accredited the testimony of trial counsel who testified that Petitioner failed to

give trial counsel the specific names and contact information for such witnesses. The

post-conviction court noted that trial counsel discussed trial strategy with Petitioner prior to

the scheduled trial date. Additionally, the post-conviction court concluded that Petitioner

was unable to prove, by clear and convincing evidence, that trial counsel was ineffective.

The evidence does not preponderate against the judgment of the post-conviction court.

Petitioner has failed to show that but for trial counsel’s alleged deficiencies, he would

have refused to plead guilty and insisted on going to trial. Petitioner testified at the

post-conviction hearing that he was shown the discovery materials. However, he claimed at

the post-conviction hearing, contrary to his testimony at the plea hearing, that he was

unaware of the consequences of his guilty plea and that trial counsel did not fully explain that

he was pleading outside the range of punishment.

Petitioner has not proven that trial counsel’s representation was deficient or that he

would not have pled guilty without the alleged errors and gone to trial. Petitioner stated

himself at the guilty plea hearing that he was satisfied with the representation from trial

counsel. It is up to the trial court to determine credibility of witnesses and the post-conviction

court's findings have the weight of a jury verdict. Momon v. State, 18 S.W.3d 152, 156 (Tenn.

1999). Therefore, Petitioner has not met either prong under Strickland.

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Guilty Plea

Petitioner also argues that the post-conviction court erred in dismissing his petition

because he entered his plea unknowingly and involuntarily. The State disagrees.

When analyzing 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), superceded on other grounds by Tenn. R. Crim. P. 37(b) and

Tenn. R. App. P. 3(b). 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; see Pettus, 986 S.W.2d at 542. Similarly, our Tennessee Supreme Court in Mackey

required an affirmative showing of a voluntary and knowing guilty plea, namely, that the

defendant has been made aware of the significant consequences of such a plea. 553 S.W.2d

at 340; see 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). The trial

court must determine if the guilty plea is “knowing” by questioning the defendant to make

sure he fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;

Blankenship, 858 S .W.2d at 904.

Petitioner argues that his guilty plea was entered unknowingly because he did not fully

understand the consequences of the guilty plea. The post-conviction court determined that

Petitioner knowingly and voluntarily entered the guilty plea after learning about the

consequences of the plea from trial counsel and reviewing the consequences with the trial

court. This Court, therefore, finds that the Petitioner failed to establish, by clear and

convincing evidence, that the plea was entered unknowingly or involuntarily.

As stated above, post-conviction court’s factual findings are given a presumption of

correctness, rendering them conclusive on appeal unless the record preponderates against the

court’s findings. We have found nothing in the record to preponderate against the

post-conviction court’s findings. Petitioner has failed to prove that trial counsel did not

discuss the plea with Petitioner prior to its entry.

The transcript of the guilty plea hearing reflects that the trial court discussed the

ramifications of the guilty plea with Petitioner. The trial court thoroughly questioned

Petitioner to ascertain whether he understood the effects of the plea. The plea hearing also

indicates that Petitioner knew what he was doing, understood the plea, and agreed that it was

what he wanted to do to resolve the case. Petitioner has failed to show by clear and

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convincing evidence that he received ineffective assistance of counsel or that his guilty plea

was involuntary. Moreover, Petitioner has failed to prove he did not understand the

consequences of his plea.

CONCLUSION

For the foregoing reasons, we affirm the denial of Petitioner’s petition for

post-conviction relief.

___________________________________

JERRY L. SMITH, JUDGE

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