Joshua Faulkner v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 5, 2015

JOSHUA FAULKNER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 11-07186 James C. Beasley Jr., Judge

No. W2014-01572-CCA-R3-PC - Filed June 11, 2015

The Petitioner, Joshua Faulkner, pursuant to a plea agreement, pleaded guilty to aggravated

burglary, employing a firearm during the commission of a dangerous felony, and aggravated

assault, with a total effective sentence of ten years of incarceration. Thereafter, the Petitioner

filed, pro se, a petition for post-conviction relief. Counsel was appointed and, after a

hearing, the post-conviction court denied the petition. On appeal, the Petitioner maintains

that Counsel was ineffective because he coerced the Petitioner into entering a guilty plea.

After a thorough review of the record and relevant law, we affirm the post-conviction court’s

judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which N ORMA M CG EE

O GLE and R OGER A. P AGE, JJ., joined.

Rosalind E. Brown, Memphis, Tennessee, for the appellant, Joshua Faulkner.

Herbert H. Slatery III, Attorney General and Reporter; Meredith Devault, Senior Counsel;

Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant District Attorney

General for the appellee, State of Tennessee

OPINION

I. Facts

The Petitioner was charged with aggravated burglary, employing a firearm during a

felony, attempted aggravated robbery, aggravated assault, and theft of property over $1,000.

On October 25, 2012, pursuant to a negotiated plea agreement with the State, the Petitioner

pleaded guilty to aggravated burglary, employing a firearm during a felony, and aggravated

assault. The State dismissed the remaining charges. At the guilty plea submission hearing,

the State presented the following factual basis in support of the Petitioner’s guilty plea:

If the matter had gone to trial the State would have shown that on

August the 16th of 2011, Chadrick Lawson (phonetically) heard loud banging

noises coming from his front door. He went downstairs to see what it was and

was met by the [Petitioner] who was armed with a handgun. The male told

him not to move and then fired a shot.

Mr. Lawson advised he ran upstairs and looked out the window. The

male took a fifty-inch television, but dropped it in the yard before getting into

a vehicle that was occupied by two other people and fled the scene.

Responding Officers located the vehicle. The Officer found this

[Petitioner], Cordricus Harding and Michael Briggs and located two handguns

inside the vehicle.

[The Petitioner] was identified by Mr. Lawson on the scene as the

person who came into his home, took his television and fired a shot at him.

The Petitioner stipulated to these facts.

The Petitioner confirmed that it was his signature on the “petition for waiver of trial

by jury and to request an acceptance of a guilty plea” and that his attorney (“Counsel”) had

reviewed and explained this document to him. He confirmed his understanding of the

contents of the petition and asked if he would be sent to the “penal farm.” The trial court

stated that the Petitioner “probably” would but clarified that it could not “guarantee that.”

The trial court then reviewed with the Petitioner the sentence, his rights, and the

consequences of waiving those rights, and the Petitioner confirmed his understanding. The

Petitioner responded in the negative when asked if he felt coerced into entering the

agreement or if any one had promised him something to induce him to accept the plea. The

Petitioner agreed that he was satisfied with “everything [Counsel had] done.”

Upon further questioning by Counsel, the Petitioner stated that he was not under the

influence of alcohol but that he had been prescribed “Respidol” to help him sleep. He said

that he was not sleepy at the time of the hearing and understood “everything going on.” He

agreed that he knew the difference between right and wrong and that he had been evaluated

as competent to proceed in the case. The trial court then made the following findings:

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I am going to rule you understand what you are doing, understand the process

that we are going through, that you are entering this guilty plea freely,

voluntarily, without threats, or coercion, because this is what you want to do.

I am going to rule that you have been represented by counsel under the

guidelines required by the law.

On October 15, 2013, the Petitioner filed a pro se petition seeking post-conviction

relief. The post-conviction court appointed counsel and held a hearing on the petition on

June 27, 2014, and the parties presented the following evidence: The Petitioner testified that

he was twenty-one years old at the time of the guilty plea submission hearing. He said that

he told Counsel “multiple times” that he wished to proceed to trial. The Petitioner said that

Counsel had told him, “that he wasn’t able to defend me to the best of his ability. He told

me my signing [the plea agreement] would be in my best interest.” About the crimes for

which he was convicted, the Petitioner stated that he did not employ a firearm or shoot a

weapon. He said that he “got shot at” but never fired a gun.

The Petitioner testified that he told Counsel that he wanted to go to trial and pursue

a self-defense strategy. He explained that the incident was a “drug deal gone bad” and that

the victim had pulled a gun on him. The Petitioner said that he did not tell the trial court that

his plea was not voluntary at the hearing because Counsel had told him that he could later file

a motion and come back to court. He said that he was “unaware and dumb-founded” about

“what was going on,” so he said “yes, just to get it over with.”

The Petitioner testified that Counsel never reviewed with him the discovery in the case

and merely told him to “take the guilty plea.” He maintained that he did not commit the

burglary for which he was convicted.

On cross-examination, the Petitioner agreed that he had two previous convictions for

aggravated robbery and one previous conviction for possession of a controlled substance with

the intent to sell. He agreed that based on these previous convictions, he would have been

eligible to be sentenced as a Range II offender with a lengthier sentence than the sentence

he received pursuant to the plea agreement. The Petitioner denied understanding his

sentence, explaining that Counsel only told him that it was in his best interest to accept the

State’s plea offer because Counsel could not represent the Petitioner at trial. The Petitioner

agreed that he never expressed any reservations about pleading guilty during the guilty plea

submission hearing.

Counsel testified that the Petitioner indicated initially that he wanted a trial but after

further conversations, the Petitioner said it was clear the evidence against him was a “very

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difficult problem.” Counsel explained that a gunshot residue test was done on the Petitioner,

and the results were positive. Counsel said that he reviewed all of the discovery with the

Petitioner, which included the results of the gunshot residue test, the Petitioner’s signed

confession, a bullet hole inside the residence, and the police officers’ finding a television

outside the victim’s residence consistent with the victim’s allegation that the Petitioner had

taken his television. Counsel said that the Petitioner told him that the victim had fired a gun

at him but that there was no proof to support the Petitioner’s allegation.

Counsel testified that the Petitioner “certainly” had the right to proceed to trial but that

Counsel advised him that it was in his best interest to accept the State’s offer. Counsel

explained that he negotiated “the minimum deals” on these cases, and the Petitioner’s

“exposure [to a greater sentence at trial] [wa]s horrible.” Counsel stated, “[The Petitioner]

ha[d] prior felonies and he would just be exposing himself to a long, long prison sentence if

he [went] to trial and [lost].” Counsel denied telling the Petitioner that he would not take the

case to trial; he reiterated that he told the Petitioner it was in his “best interest” to avoid trial

due to the “overwhelming proof.”

Counsel testified that the Petitioner had told him that this incident was a “dope deal

gone bad.” Counsel said that there were three defendants in this case; all three initially

claimed they were at the victim’s house to buy marijuana, but the co-defendants later

changed their story. Counsel said that he investigated the victim and found no criminal

record or any kind of drug history for the victim. The victim claimed that the Petitioner

grabbed his television and took it out the door. The Petitioner maintained that he did not

move the television. He admitted having a gun, admitted discharging the gun, and admitted

he was at the victim’s residence to buy marijuana. The police, however, found the victim’s

television outside. Counsel said that it would have been difficult to find a plausible

explanation for the movement of the television.

On cross-examination, Counsel testified that he met with the Petitioner on “numerous

occasions.” Counsel reviewed the discovery in the case with the Petitioner which included

the statements of the co-defendants and the victim. Counsel said that it was the Petitioner’s

decision to accept the plea agreement, and he denied pressuring the Petitioner to accept the

agreement. Counsel recalled that the Petitioner “didn’t like it, because he wanted to be found

not guilty,” but the Petitioner recognized that it was a “difficult case.” Counsel expressed

no hesitation about proceeding to trial and denied ever telling the Petitioner that he would

not represent him at trial.

After hearing this evidence, the post-conviction court made the following findings:

Well, my review of the guilty plea and the file in this case indicate that

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both co-defendants, one had already entered a plea, the other entered a plea

this particular day, both of them admitted their role and the part that they

played, neither of them had a record, both of them were diversion eligible.

[The Petitioner] appeared to be the ring leader. [The Petitioner] was

thoroughly questioned, not only by the Court and he was questioned by

[Counsel].

The test is whether or not he was [properly] represented to the extent

that his counsel met with him, advised him, advised him what the situation

was, the weight of the case, the weight of the proof and that the ultimate

decision was [the Petitioner]’s.

Now, to come in after the fact and say, I really wanted a trial, that is a

question that has to be determined. At the time this plea was entered [the

Petitioner] expressed to this Court that he did not want a trial, that he wanted

to enter a guilty plea.

[The Petitioner] understood his rights. [The Petitioner] had previously

been through this process and understood how all of this worked.

[The Petitioner] was also questioned by this Court and the only question

that [the Petitioner] asked this Court, I do recall that was, he wanted to know

whether or not he would be going to the penal farm. And my recollection is

that I told him I wasn’t sure whether he would go to the penal farm, or not, he

could.

Normally speaking, a sentence that he was receiving, my understanding

was that they would keep him at the penal farm, but I didn’t know that and he

indicated that he understood and I said, “You still want to go forward?” He

said, “Yes, I do”.

And, this Court watched [the Petitioner] in his guilty plea and watched

him answer the questions that were given to me. I got no indication that this

was coerced, or not knowingly entered, but that it was freely and voluntarily

entered.

Not that it was a pleasant decision to make, but it was a decision that

had to be made and [the Petitioner], in my opinion, entered his guilty plea

freely and voluntarily.

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I don’t believe [Counsel] coerced him. I don’t believe [Counsel]

tricked him. I don’t believe [Counsel] improperly represented him. I don’t

believe [Counsel] would not have gone forward with a trial if [the Petitioner]

had expressed a desire to go forward with a trial.

I think [Counsel] explained to him what the situation was, got the best

offer he could get, which quite frankly, was a minimum offer and [the

Petitioner] realized where he was and what he was facing and he opted to take

his best out.

And as soon as he reached the penal farm he decided to go this route.

But, I don’t find that there is any basis today for me to set the guilty plea aside

and for me to find that [Counsel] acted improperly, or that he did not represent

[the Petitioner] under the guidelines that the law requires.

I am satisfied that he did receive adequate representation and that it met

all of the standards of the law that I know there to be. So I find that there is no

basis for me to grant a post-conviction relief.

I find that [Counsel], thoroughly, represented [the Petitioner] and that

he entered his guilty plea freely, voluntarily and without threats, coercion and

full knowledge of what he was facing.

So I will deny the petition for post-conviction relief.

It is from this judgment that the Petitioner now appeals.

II. Analysis

On appeal, the Petitioner maintains that his guilty plea was the result of coercion and,

therefore, not knowing and voluntary. The State responds that the Petitioner has failed to

prove that he received the ineffective assistance of counsel. We agree with the State.

In order to obtain post-conviction relief, a petitioner must show that his or her

conviction or sentence is void or voidable because of the abridgment of a constitutional right.

T.C.A. § 40-30-103 (2012). The petitioner bears the burden of proving factual allegations

in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-

110(f) (2012). Upon review, this Court will not re-weigh or re-evaluate the evidence below;

all questions concerning the credibility of witnesses, the weight and value to be given their

testimony, and the factual issues raised by the evidence are to be resolved by the trial judge,

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not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999) (citing Henley

v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-conviction court’s factual findings

are subject to a de novo review by this Court; however, we must accord these factual findings

a presumption of correctness, which can be overcome only when a preponderance of the

evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40

S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are subject

to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following

two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel’s performance was

deficient. This requires showing that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the [petitioner] by the

Sixth Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose

result is reliable. Unless a [petitioner] makes both showings, it cannot be said

that the conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 S.W.2d

417, 419 (Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must determine

whether the advice given or services rendered by the attorney are within the range of

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

on a claim of ineffective assistance of counsel, “a petitioner must show that counsel’s

representation fell below an objective standard of reasonableness.” House v. State, 44

S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

When evaluating an ineffective assistance of counsel claim, the reviewing court

should judge the attorney’s performance within the context of the case as a whole, taking into

account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753

S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the “distorting

effects of hindsight” and “judge the reasonableness of counsel’s challenged conduct on the

facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S.

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at 689-90. In doing so, the reviewing court must be highly deferential and “should indulge

a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a defendant in a

criminal case is not entitled to perfect representation, only constitutionally adequate

representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other

words, “in considering claims of ineffective assistance of counsel, ‘we address not what is

prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483

U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)).

Counsel should not be deemed to have been ineffective merely because a different procedure

or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276, 279-

80 (Tenn. Crim. App. 1980). “The fact that a particular strategy or tactic failed or hurt the

defense, does not, standing alone, establish unreasonable representation. However, deference

to matters of strategy and tactical choices applies only if the choices are informed ones based

upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

If the petitioner shows that counsel’s representation fell below a reasonable standard,

then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating

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

the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State,

90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875

S.W.2d 662, 665 (Tenn. 1994). In the context of a guilty plea, as in this case, the effective

assistance of counsel is relevant only to the extent that it affects the voluntariness of the plea.

Therefore, to satisfy the second prong of Strickland, the 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 v. Lockhart, 474 U.S. 52, 59 (1985) (footnote

omitted); see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

The evidence does not show that Counsel was ineffective in his representation or that

he coerced the Petitioner into pleading guilty. Counsel testified that the Petitioner initially

wanted to proceed to trial but after reviewing the evidence against him decided to accept the

State’s offer. The discovery consisted of evidence that there was gunshot residue on the

Petitioner’s hands, a bullet hole in the victim’s house, a television in the victim’s yard, and

the Petitioner’s admission that he was in the victim’s house and fired a gun. Counsel

negotiated a minimum sentence in this case, and the Petitioner benefitted from avoiding a

lengthier sentence had he been convicted at trial. This evidence supports the post-conviction

court’s conclusion that Counsel “thoroughly represented” the Petitioner.

Counsel testified that it was a hard decision but that it was the Petitioner’s decision

to plead guilty. Counsel testified that he would have proceeded to trial had the Petitioner so

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wished and denied ever stating to the contrary to the Petitioner. The guilty plea submission

hearing transcript supports Counsel’s testimony and the post-conviction court’s finding that

the Petitioner willingly entered the guilty plea.

Accordingly, the Petitioner has failed to show by clear and convincing evidence that

Counsel was deficient and that, but for counsel’s errors, he would not have pleaded guilty

but proceeded to trial. The Petitioner is not entitled to relief.

III. Conclusion

After a thorough review of the record and relevant authorities, we conclude that the

post-conviction court properly denied the Petitioner’s petition for post-conviction relief.

Accordingly, we affirm the judgment of the post-conviction court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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