Corey Mitchell v. State of Tennessee

06/14/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 6, 2017 Session

COREY MITCHELL v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 13-03935 James M. Lammey, Judge

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No. W2016-01818-CCA-R3-PC

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Petitioner, Corey Mitchell, appeals from the denial of his petition for post-conviction

relief. He raises two issues on appeal: (1) he was denied a full and fair hearing in the

post-conviction proceedings, and (2) his guilty plea was not knowingly, voluntarily, and

intelligently made due to the ineffective assistance of counsel rendered by his trial

counsel. After review of the arguments of the parties and the entire record, we conclude

that Petitioner is entitled to relief on his first issue. Accordingly, we reverse the

judgment of the post-conviction court and remand this matter for a new hearing.

Furthermore, the interests of justice require that under the circumstances of this case, and

to insure the public perception of a fair and impartial hearing, the post-conviction

proceedings must be heard by a different judge than the one who has previously heard the

proceedings. In light of our conclusion and disposition of the first issue, issue two is

pretermitted at this time.

Tenn. R. App. P. 3 Appeal as of Right;

Judgment of the Criminal Court Reversed and Remanded

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and J. ROSS DYER, JJ., joined.

Kirk W. Stewart, Memphis, Tennessee, for the appellant, Corey Mitchell.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Amy P. Weirich, District Attorney General; and Gavin Smith, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Procedural history

On August 15, 2013, Petitioner was indicted by the Shelby County Grand Jury for

the offenses of attempted first degree murder, aggravated assault, and employing a

firearm during the commission of a felony. Petitioner pleaded guilty to attempted first

degree murder and received a sentence of 15 years’ confinement as a Range I offender.

The remaining counts of the indictment were dismissed.

At the guilty plea hearing, the State gave the following factual basis for

Petitioner’s plea:

[O]n February 2, 2013, at approximately 11 p.m., the victim Jeremiah

Mays was at 2574 Malone here in Memphis, Shelby County when he

was confronted by two male blacks. He didn’t know them very well. He

did, however, know they were in a rival gang.

There had been some confrontation prior to this about [an] apparent

allegation there may have been a [ ] shooting prior to this date. The

males were upset with Mays because they felt he was flirting with their

girlfriends. There was an argument that escalated when apparently [the]

victim . . . may have pulled guns but according to [Petitioner’s] co[-

]defendant, it was actually Robert Lindiment [Petitioner’s co-defendant]

who actually fired his weapon several times at the victim, striking him

twice in the leg. [Petitioner] apparently was the driver of the vehicle as

it drove by.

All events did occur in Memphis, Shelby County, Tennessee. [T]he

victim did pick out both out of a photo lineup and say one was the driver

[Petitioner] and also Robert Lindiment was the shooter in fact.

Lindiment did in fact give a confession saying he was the shooter and

that [Petitioner] did in fact drive the vehicle. And there were several

Facebook pages taken where there was a photo on both Facebook pages

with guns very similar to those described by the victim.

At the guilty plea hearing, Petitioner acknowledged that he signed the waiver of

rights form. The trial court asked if trial counsel “went over” the form with Petitioner

before he signed, and Petitioner responded that he had. The trial court asked Petitioner

whether he understood that he had the right to a jury trial, the right to confront the State’s

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witnesses, the right to subpoena witnesses in his defense, the right against self-

incrimination, the right not to testify, the right to testify if he so chose, the right to appeal,

the right to an attorney on appeal, and the right to have an attorney appointed if he could

not afford one. Petitioner stated that he understood those rights and that he wanted to

waive those rights and accept the State’s offer. The trial court asked if Petitioner was

“doing this freely and voluntarily,” and Petitioner responded that he was. The trial court

asked Petitioner if he had any questions, and Petitioner responded that he did not.

The trial court accepted Petitioner’s guilty plea and sentenced him as a Range I

offender to 15 years to be served at 30 percent release eligibility. The trial court also

noted:

THE COURT: Oh, there’s one thing I noticed on here [trial counsel].

You marked workhouse. This is Tennessee Department of Correction[ ].

[TRIAL COUNSEL]: I understand that, Your Honor.

THE COURT: Does he think he’s going to be serving this at the

workhouse?

[TRIAL COUNSEL]: Well we’ve heard that if your term is at a

certain low percentage, with some people they have been keeping them

at the penal farm. But my understanding is it’s at the Department of

Correction[ ]?

THE COURT: Right. It’s up to them but we have to mark this

Tennessee Department of Correction[ ]. Now they have been keeping a

log of people out there on long sentences but it’s up to them. Do you

understand that, [Petitioner]?

[PETITIONER]: Yes, sir.

THE COURT: Now they may keep you out there if they want to.

It’s up to them. Where they house you I have no control over, okay.

The law says that I have to mark Tennessee Department of Correction[ ]

on this judgment sheet, okay.

[PETITIONER]: Yes, sir.

THE COURT: With that in mind do you still wish to enter this guilty

plea?

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[PETITIONER]: Yes, sir.

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

he was denied the effective assistance of counsel and his guilty plea was unknowingly

and involuntarily entered. Petitioner was appointed counsel, and an amended petition

was filed, also alleging that Petitioner was denied the effective assistance of counsel and

that his guilty plea was unknowingly and involuntarily entered.

Post-conviction hearing

Our holding in this appeal necessitates only a brief summary of Petitioner’s

testimony, in addition to quotations from the transcript of comments by the post-

conviction court, Petitioner’s post-conviction attorney, and the prosecutor at the post-

conviction hearing.

Petitioner was the only witness who was permitted to testify at the post-conviction

hearing. The transcript of the post-conviction hearing reflects the following at the outset

of the proceeding:

This cause came to be heard and was heard on the 16th day of

August, 2016, before the Honorable James M. Lammey, Junior, Judge,

holding the Criminal Court for Shelby County, at Memphis, Tennessee,

and the following proceedings were had to-wit:

THE COURT: Okay. We we’re going to bifurcate this hearing, this

post[-]conviction?

[PROSECUTOR]: Yes, Your Honor. For the record I spoke with Mr.

Newport from the Public Defender’s Office handling [trial counsel]’s

matters. He informed me that he contacted [trial counsel] and he has no

objection [to] bifurcating the hearing.

THE COURT: Okay. Good.

[POST-CONVICTION COUNSEL]: We have no objection either,

Your Honor.

Petitioner testified at the post-conviction hearing that he was 17-years-old at the

time of his arrest. He was 18-years-old when he entered his guilty plea. Petitioner

testified that he was born and raised in South Memphis, and he completed eleventh grade.

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He obtained his GED while incarcerated. He was raised by his father. He testified that

he “was around [his mother] but not that much.” He testified that the charges against him

in this case were his “first brush with the law” in “adult or [c]riminal [c]ourt[,]” but that

he had a record of misdemeanor offenses in juvenile court.

He testified that his trial counsel “never went over anything” with him and that he

“never came and visit[ed] [him].” Petitioner testified that the only time he saw trial

counsel was in court. Petitioner testified that he did not receive discovery materials until

after he signed the plea agreement. Petitioner testified that trial counsel did not advise

him of the maximum potential sentences for his charges. He testified that he did not

understand the consequences of his plea “[b]ecause [trial counsel] never went over

anything with [him].” He testified, “at the time, I know I was young and I ain’t [sic]

understand none of it, you know.” Petitioner testified that trial counsel did not explain

that he had the right to go to trial, the right to have witnesses subpoenaed, the right not to

incriminate himself, the right to cross-examine the State’s witnesses. He also testified

that trial counsel did not explain to him the maximum possible punishment for the

offenses.

Petitioner testified that he did not read the waiver of rights form. He testified, “I

feel like it probably was right because he was, you know, my lawyer.” Petitioner testified

that he did not understand any of his rights.

Petitioner testified trial counsel told him, “you do four and a half years and then

you get out.” He testified that trial counsel told him to “[j]ust say yes to everything” that

the trial judge asked him at the guilty plea hearing. Petitioner testified that it was his

desire to go to trial on the charges against him, despite that he might receive a greater

sentence if convicted.

On cross-examination, Petitioner acknowledged that he paid attention to the trial

court’s questions and answered “no” to the trial court’s question of whether he had ever

entered a guilty plea before. He testified that he “just did what [his] lawyer told [him] to

do.” Petitioner testified, “if [trial counsel] would have helped me, went over and visit[ed]

me more and, you know, I think I probably could have got[ten] a better deal, like, you

know.”

After Petitioner’s post-conviction attorney and the prosecutor had completed all

direct examination, cross-examination and redirect and recross examinations, the

following exchange between Petitioner and the post-conviction court occurred.

THE COURT: [Petitioner], you actually had two lawyers on this

from the Public Defender’s Office, did you not?

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THE PETITIONER: Yes, sir.

THE COURT: Who was your first one?

THE PETITIONER: I know her last name was Mitchell.

THE COURT: Jennifer Mitchell. She was a public defender in here

and then [trial counsel] came in and took over the case from her[,]

correct?

THE PETITIONER: Yes, sir.

THE COURT: All right. So you’re saying that no – neither one of

these two lawyers explained anything to you anything about this plea?

THE PETITIONER: No, sir. I only see Ms. Mitchell, like, two

times. Every time I seen her, the court date was getting set off.

THE COURT: I see. So but she filed all sorts of motions on this a

month after she was on the case according to the record. She filed all

these motions on November 13, 2013. You entered a guilty plea on

April 7th of [20]14 so it was about five months before she filed all these

motions. State, does your file indicate when discovery was provided to

her?

[PROSECUTOR]: It does, Your Honor. I just checked it. Discovery

was e-mailed to both codefendants’ attorneys November 12, 2013.

THE COURT: November 12, 2013. So now you’re saying you

couldn’t understand – you couldn’t really read that well; is that right?

THE PETITIONER: Yes, sir.

THE COURT: So what good would it have done you to have a copy

of the discovery because you wouldn’t have understood what was in it?

THE PETITIONER: I just wanted my discovery.

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THE COURT: Okay. So you’re telling me now[,] [the prosecutor]

asked you if you understood what aggravated perjury is. Well you said

you don’t know.

THE PETITIONER: No, sir.

THE COURT: I’m telling you it carries two to 12 [sic] years in jail,

okay. You only have one prior crime so you would be a range one

offender. It would be two to four years, two to four years on top of this.

Do you know what two years or four years will do to your parole date?

THE PETITIONER: No, sir.

THE COURT: No, you don’t. Well you’re about to find out.

Because if you’re convicted of aggravated perjury and it’s on top of this,

you might have to flatten every minute of this 15 years before you get to

get parole. That would be totally up to the guys at the parole office if

they want to give you parole because I think you’re not telling me the

truth today.

So here’s the question. You better think hard because if they put

on Ms. Mitchell or they put on [trial counsel], they come in here and say

I gave him a copy of his discovery, a lot of times they’ll do it on the

record. We might have a record of having it and it might have happened

in court. But you need to remember because if you tell me a lie today,

those guys over there are going to indict you for aggravated perjury.

And it’s one thing to be an attempted murderer. It’s another thing

to be a convicted liar on top of being an attempted murderer, okay.

THE PETITIONER: Yes, sir.

THE COURT: And you’ll go before the parole board and they’ll say

huh, he was just convicted of aggravated perjury. Is this the kind of guy

we want to give parole to? I don’t know. They might. They might not.

I can’t make any promises, just like I don’t know where you were –

where are you being housed?

THE PETITIONER: Northeast Correctional Center.

THE COURT: So you’re actually in prison?

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THE PETITIONER: Yes, sir.

THE COURT: Okay. Well then so I don’t know what’s going to

happen. They might indict you. So here’s the question. Did you receive

discovery from either Ms. Mitchell or [trial counsel]?

THE PETITIONER: [Trial counsel], I got mine’s the same day I

signed for my time. Ms. Mitchell, she never gave me any discovery

packet.

THE COURT: I see. Now back to the guilty plea, I went over

everything with your codefendant . . . first; right?

THE PETITIONER: Yes, sir.

THE COURT: And I asked you if you heard everything I went

over with him and you said you did. Now did you hear what I went

over with him or not?

THE PETITIONER: I wasn’t really paying attention but I heard

it.

THE COURT: Okay. Sir, you can step down. You can step

down. I’ve heard enough. There’s no need to call [trial counsel].

[Petitioner] is not telling the truth today. I don’t believe a single

word he has to say.

I gave him his rights. I went over his rights, went over his codefendant’s

rights first. He said he had no questions. He said he understood. I even

told him I couldn’t promise where he would be housed. With that in

mind do you still wish to enter this plea, even though he said it was

promised by [trial counsel] that he [would] serve it at the penal farm.

So we went all over that. And I was satisfied then that he was giving it

freely and voluntarily. Now he wants to tell me that he was lying to me.

So he didn’t really understand so that means he lied to me then. That’s

aggravated perjury right there.

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You lied. You’re lying to me today. And so there’s no need to call

[trial counsel] to testify to that because I’m certain of it. I don’t

believe a single word you have to say.

So therefore, this petition for post-conviction relief is denied. He gave

this guilty plea freely and voluntarily. He was given a gift from God.

He should have got[ten] 25 plus six. He should have gotten 31 years

in jail. And if I had the power to, if I wanted to, if I was – if I could,

I would set this aside just so we could go to trial on this so you could

get 31 years. You lied to me today and I’m not going to take it. You

can step out. Denied.

[POST-CONVICTION COUNSEL]: Thank you, Your Honor.

(Emphasis added).

After the ruling from the bench, the post-conviction court entered a brief order

denying relief. The entire content of the order is as follows:

This cause came to be heard on the 16th day of August, 2016, on

the pro se Petition for Post-Conviction Relief, and the record as a whole.

An evidentiary hearing was heard on August 16, 2016. After hearing the

Petitioner’s evidence, the Court denied the petition for post-conviction

relief and elected to make his findings of fact and conclusions of law

orally. A transcript of the hearing and oral ruling as prepared by the

court reporter is incorporated by reference in this order as stating, in

detail, the Court’s findings of fact and conclusions of law denying said

petition.

CONCLUSION

In summary, the Petitioner has failed to prove ineffective assistance

of counsel. More specifically, he has failed to carry his burden of proof

as to either deficient performance or prejudice. Furthermore, the court

finds that petitioner was less than candid with the court and may have

committed aggravated perjury. Petitioner’s testimony was simply

incredulous.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED

that the Petition for Post-Conviction Relief is hereby denied.

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Analysis

Petitioner argues in his first issue that he was denied his right to a full and fair

hearing because “he was not allowed to examine the attorney from whom he received

ineffective assistance of counsel.” The State strenuously argues that on the face of the

record Petitioner received a full and fair hearing. We agree with Petitioner.

The State agrees that Petitioner is entitled to an evidentiary hearing on his petition

for post-conviction relief. See T.C.A. § 40-30-109. It is Petitioner’s burden to prove his

allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f). Thus, it is

abundantly clear that a petitioner is entitled to a full and fair hearing in order to meet this

burden. The Supreme Court has held that the opportunity to be heard “at a meaningful

time and in a meaningful manner” is a requirement of due process accorded to litigants.

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S.

545, 552 (1965)). The State acknowledges that the Tennessee Supreme Court has held

that the requirement of a “full and fair hearing” is satisfied when “a petitioner is given the

opportunity to present proof and argument on the petition for post-conviction relief.”

House v. State, 911 S.W.2d 705, 714 (Tenn. 1995).

The State, however, mistakenly concludes that a hearing in which the post-

conviction court unilaterally halts the proceedings by prohibiting any other witness’s

testimony and immediately concludes the evidentiary hearing by making a final ruling

constitutes a “full and fair hearing.”

In the case sub judice, Petitioner had not rested his case. The State asserts that

Petitioner neither objected to the sudden denial of the second portion of an agreed

bifurcated hearing, nor asked for a continuance “after the court ruled from the bench.”

(Emphasis added). The State cites no authority for the proposition that a petitioner must

move for a continuance or object to the denial of an agreed second hearing after the post-

conviction court makes a sudden, unexpected, and procedurally unorthodox final ruling.

As such, the State’s argument is waived.

Without citing to anything in the appellate record other than the exchange about

the agreement to bifurcate the hearing, quoted above, the State says “[t]he record reflects

that trial counsel was the State’s witness, not [Petitioner’s].” The State also cites a

sentence in Petitioner’s initial brief that he should have been allowed to “cross-examine”

trial counsel. (Emphasis added). The State asserts that this is corroboration that trial

counsel was only a witness for the State, and not for Petitioner. In his reply brief,

Petitioner admits the use of the term “cross” was “inartfully” used. What the State

neglected to point out is the very first sentence in the argument section of Petitioner’s

initial brief: “[Petitioner] first asserts that he was denied a full and fair hearing because he

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was not allowed to examine the attorney from whom he received ineffective assistance of

counsel.”

The post-conviction court abused its discretion by dismissing the petition for post-

conviction relief on the merits: (1) before either side had rested its case; (2) without

giving both sides opportunity to direct and/or cross-examine Petitioner after the post-

conviction court questioned Petitioner; and (3) without allowing Petitioner the

opportunity to object to the ruling that trial counsel would not be permitted to testify

before making its final ruling on the petition.

Petitioner was denied a full and fair hearing. He is therefore entitled to have the

post-conviction court’s judgment reversed and to have the matter remanded for a new

evidentiary hearing. We emphasize that on remand, the post-conviction court is ordered

to allow the parties to present the testimony of all witnesses they desire to call, subject

only to the provisions of law that might limit testimony of a witness. However, the post-

conviction court is not to limit the witnesses called to Petitioner and trial counsel solely

because they were the only witnesses contemplated by the parties at the first hearing. In

other words, Petitioner is entitled to a fresh start as if there has not yet been an

evidentiary hearing.

We also conclude that the post-conviction court judge who previously heard this

matter must be recused from hearing further proceedings in this case. We do not take this

action lightly.

In order to maintain the people’s confidence in the judicial branch of the people’s

government, all cases must be tried by unbiased and unprejudiced judges. Smith v. State,

357 S.W.3d 322, 340 (Tenn. 2011) (citing State v. Rimmer, 250 S.W.3d 12, 37 (Tenn.

2008)). “[T]he preservation of the public’s confidence in judicial neutrality requires not

only that the judge be impartial in fact, but also that the judge be perceived to be

impartial.” State v. Reid, 213 S.W.3d 792, 815 (Tenn. 2006) (quoting Kinard v. Kinard,

986 S.W.2d 220, 228 (Tenn. Ct. App. 1998). A judge should be recused whenever “a

person of ordinary prudence in the judge’s position, knowing all of the facts known to the

judge, would find a reasonable basis for questioning the judge’s impartiality.” Alley v.

State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994). The test is an objective one

because “the appearance of bias is as injurious to the integrity of the judicial system as

actual bias.” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn. 2001). While

bias based only upon the judge’s observance of a witness at a trial does not require

recusal, if the bias “is so pervasive that it is sufficient to deny the litigant a fair trial,” the

bias need not be extrajudicial. Alley, 882 S.W.2d at 821. “When a trial court’s

comments indicate that the judge has prejudged factual issues, Tennessee courts have

required disqualification.” Id. at 822 (citing Leighton v. Henderson, 220 Tenn. 91, 414

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S.W.2d 419, 420 (Tenn. 1967)). When a remand for the trial judge to evaluate the

potential appearance of impropriety would be inefficient, then the appellate court can

proceed to order recusal to avoid the public appearance of impartiality. Alley, 882

S.W.2d at 823.

From the transcript, quoted above, it is evident that under the cases cited, the post-

conviction judge who initially heard this case should be recused upon remand for the new

evidentiary hearing. The judge pre-determined what the testimony of trial counsel would

be, and that it would contradict in all material aspects Petitioner’s testimony. While it

may well be that in the vast majority of post-conviction cases trial counsel will contradict

a petitioner’s testimony alleging ineffective assistance of counsel and/or the legal validity

of a guilty plea, this cannot be presumed without testimony from a trial counsel who is

able to attend and testify.

The post-conviction judge emphatically stated on the record that Petitioner was

guilty of aggravated perjury, and even implicitly encouraged the State to seek an

indictment (saying to Petitioner, “But you need to remember because if you tell me a lie

today, those guys over there are going to indict you for aggravated perjury.”).

Finally, an objectively reasonable person could easily conclude that the post-

conviction judge was being vindictive toward Petitioner by terminating the hearing and

thus denying Petitioner a full and fair hearing by stating the following in his ruling from

the bench:

So therefore, this petition for post-conviction relief is denied. He

gave this guilty plea freely and voluntarily. He was given a gift from

God. He should have got 25 plus six. He should have gotten 31 years in

jail. And if I had the power to, if I wanted to, if I was – if I could, I

would set this aside just so we could go to trial on this and so you could

get 31 years. You lied to me today and I’m not going to take it. You

can step out. Denied.

(Emphasis added).

We do not question the post-conviction judge’s subjective intentions. We only

conclude that from an objective view, the post-conviction judge must be recused from

this case upon remand because the judicial system mandates that the judge must be

perceived to be impartial.

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CONCLUSION

The judgment of the post-conviction court is reversed and this case is remanded

for a new evidentiary hearing. Upon remand, the post-conviction judge who presided

over the first hearing is recused, and another judge shall preside.

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THOMAS T. WOODALL, PRESIDING JUDGE

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