Patrick Bumpus v. State of Tennessee

09/04/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 5, 2020

PATRICK BUMPUS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Dyer County

No. 17-CR-243, 18-CR-06, 18-CR-07 R. Lee Moore, Jr., Judge

___________________________________

No. W2019-01082-CCA-R3-PC

___________________________________

The Petitioner, Patrick Bumpus, appeals the denial of his motion to withdraw his guilty

pleas and his petition for post-conviction relief. He asserts various allegations of

ineffective assistance of counsel, challenges the knowing and voluntary nature of his pleas,

and alleges that the State “breached the contract of [his] involuntary plea[s.]” After review,

we affirm the judgments of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL and

D. KELLY THOMAS, JR., JJ., joined.

Patrick Bumpus, Hartsville, Tennessee, pro se, (on appeal), and Noel H. Riley, II,

Dyersburg, Tennessee, (at hearing), for the appellant, Patrick Bumpus.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant

Attorney General; Danny Goodman, Jr., District Attorney General; and Karen Burns,

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

OPINION

FACTS

On August 14, 2017, the Petitioner was indicted for aggravated assault by

strangulation in case number 17-CR-243. On February 12, 2018, the Petitioner was

indicted in case number 18-CR-06 for aggravated burglary, aggravated domestic assault,

and coercion of a witness. Also on February 12, 2018, the Petitioner was indicted in case

number 18-CR-07 for aggravated domestic assault and two counts of aggravated assault.

On May 8, 2018, the Petitioner entered a guilty plea in all three indictments. In case

number 17-CR-243, the Petitioner pled guilty to the reduced charge of domestic assault in

exchange for a sentence of 11 months and 29 days on probation. The Petitioner pled guilty

as charged in case numbers 18-CR-06 and 18-CR-07 and received concurrent three-year

sentences of confinement for each charge in each case. The effective sentences in each of

the three cases were ordered to be served consecutively to each other for a total effective

sentence of six years, 11 months, and 29 days, with six years to be served in the Department

of Correction.

Less than a week after pleading guilty, the Petitioner filed a “Motion to Appeal Best

Interest Plea Agreement,” which the trial court denied, stating that “[a]ny appeal of this

judgment must be directed to the Court of Criminal Appeals.” State v. Patrick Bumpus,

No. W2018-01034-CCA-R3-CD, 2019 WL 1896562, at *1 (Tenn. Crim. App. Apr. 29,

2019). About three weeks later, on June 4, 2018, the Petitioner filed a “Motion to Withdraw

Plea Agreement” in the trial court in which he raised the same claims as his prior motion,

while simultaneously filing a notice of appeal from the denial of the first motion. Id. at *1

n.1. Two days later, the trial court denied the motion to withdraw the plea agreement

without a hearing. Id. at *1. On appeal, this court, noting the “extreme similarity between

the two motions,” viewed the appeal as a challenge to the denial of a motion to withdraw

guilty plea and considered both of the trial court’s orders. Id. at *1 n.1. The State conceded

that the trial court erred by summarily denying the motion, and this court remanded the

matter for a hearing. Id. at *2-3.

While his appeal was pending, the Petitioner filed a petition for post-conviction

relief from conviction or sentence. In the petition, he alleged multiple claims of ineffective

assistance of counsel, but relevant to this appeal claimed that counsel was ineffective for

failing to file pretrial motions. An amended petition was filed by appointed counsel,

specifying that the Petitioner believed that counsel should have filed a motion to suppress

and also raising a new claim that counsel “failed to request an independent expert in the

matter of ballistics[.]” The State responded that “[a]ll of the appropriate and relevant

motions in this case were filed by [counsel]. If [counsel] did not file a requested motion,

it was because it was irrelevant or harmful to the Petitioner’s cases.”

The post-conviction court conducted an evidentiary hearing on May 13, 2019. At

the onset of the hearing, the transcript of the guilty plea hearing was entered as an exhibit

but was not included in the record on appeal. We attempt to constrain our recitation of the

proof at the evidentiary hearing to that relevant to this appeal.

The Petitioner first testified on his own behalf. With regard to his guilty pleas, the

Petitioner said that he did not understand what portion of his sentence would be served in

-2-

confinement or understand what the term “time served” meant. He said that he “didn’t

know what to do” and “was trusting [his] lawyer.”

The Petitioner said that he thought counsel should have filed a motion to suppress

Facebook messages that “came from the phone that was found in [his] console[]” because

he “never . . . received a search warrant” regarding the messages. He felt that counsel had

“overlooked” the issue and “really just blew [him] off.”

The Petitioner also claimed that counsel should have hired an expert witness

because there “was allegedly a bullet found at the scene, but it didn’t match [his]

fingerprints and the police . . . didn’t even conduct a powder residue test.” Asked what he

expected a ballistics expert to find, the Petitioner just said “it’s always good to have an

expert witness” and claimed that “an expert witness will prove my innocence.” He later

elaborated that an “independent expert could have contradicted the State’s account o[f]

evidence[.]” However, he acknowledged that the State might not have even been entitled

to “introduce a cartridge that they found some place close to where [the incident] could

have happened” without any foundation connecting it to the case.

The Petitioner’s trial counsel testified with regard to the Petitioner’s claim that he

should have filed a motion to suppress Facebook messages taken off his phone that it was

not definite that the Facebook messages in question were obtained from the Petitioner’s

phone. In fact, it appeared that the messages were actually obtained from the phone of one

of the victims. Additionally, counsel thought that the messages were helpful and he would

have wanted to use them as part of the defense proof had the case gone to trial. He said,

“no matter which way you cut it, I want this stuff . . . to be in” at trial. Counsel elaborated

that the messages would help the defense “say it didn’t happen and we know why and the

way is because she’s lying. She’ll do whatever it takes to put him in jail. This is a lovers’

quarrel where she’s just going to lie to put him in jail.”

Although the Petitioner did not mention it during his testimony, counsel testified

that the Petitioner asked him for “a complete copy of the jury pool list[,]” but counsel “did

not feel that that was appropriate to give to [the Petitioner]” because it contained the jurors’

addresses, telephone numbers, and other personal information. Counsel said that he and

the Petitioner “would have talked about jurors and things of that nature[,]” and the

Petitioner would have helped him pick the jury had the matter gone to trial, but counsel did

not think the jurors’ full identifying information should be disclosed to the Petitioner.

With regard to the Petitioner’s allegation that he should have obtained an expert

witness, counsel said, “I don’t believe an expert witness would have been helpful in any

way.” He elaborated that it was “a fairly straight forward [sic] case. You know, it is she

says one thing, he says another[,]” and “[a]n expert wouldn’t add or subtract anything to

-3-

that.” He reiterated that “even if I had unlimited money I don’t know what an expert would

have done in most of these cases. . . . that’s just the reality of it.”

As to the Petitioner’s guilty plea, counsel testified that he went back and forth with

the State to reach a deal that did not include jail time on the first offense as the Petitioner

requested. Counsel recalled that he and the Petitioner reviewed the plea form and discussed

what the Petitioner’s sentences were going to be and how they were structured. Counsel

said that he fully believed the Petitioner wanted to accept the plea or he would not have let

the Petitioner go forward. Counsel stated that “[t]here was no question” the Petitioner

understood the sentences he received under the plea.

Counsel acknowledged that he told the Petitioner that his appearance, including his

facial tattoos, could have an impact on the jury when the Petitioner asked him “what are

the things . . . the jurors are going to look at?” However, counsel maintained that “[a]t the

end of the day, . . . it’s always [the Petitioner’s] decision to make a plea of guilty or not

guilty. . . . I can’t make him plea. I tell them that over and over and over.” Counsel said

that he was “absolutely” willing to go to trial on the Petitioner’s cases but that the Petitioner

wanted to plead guilty.

The post-conviction court entered an order denying post-conviction relief. In the

order, the court also denied the remanded motion to withdraw guilty plea and indicated that

a hearing had taken place on that matter on April 16, 2019. With regard to the denial of

post-conviction relief, the court found that the Petitioner did not have standing to seek

suppression of the information that he thought should have been suppressed and also that

counsel’s strategy was to use the information to the Petitioner’s benefit if the case went to

trial. The court ruled that counsel’s performance was within the range of competence

demanded of attorneys in criminal cases and that there was no proof of prejudice so as to

deprive the Petitioner of a fair trial. The court observed that the Petitioner “has had trouble

with every attorney who has tried to represent him.”

ANALYSIS

On appeal, the Petitioner asserts that he received ineffective assistance of counsel

because counsel failed to file a pretrial motion to suppress, did not provide him with a copy

of the jury list, did not investigate the jury list for “faulty backgrounds,” coerced him into

pleading guilty, and did not obtain an expert witness. The Petitioner also asserts that his

guilty pleas were not knowingly and voluntarily entered, and that the “prosecutor breached

the contract of [his] involuntary plea[.]”

Post-conviction relief “shall be granted when the conviction or sentence is void or

voidable because of the abridgment of any right guaranteed by the Constitution of

-4-

Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The

petitioner bears the burden of proving factual allegations by clear and convincing evidence.

Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the

findings of fact made by the court are conclusive on appeal unless the evidence

preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When

reviewing factual issues, the appellate court will not reweigh the evidence and will instead

defer to the post-conviction court’s findings as to the credibility of witnesses or the weight

of their testimony. Id. However, review of a post-conviction court’s application of the law

to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State,

978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which

presents mixed questions of fact and law, is reviewed de novo, with a presumption of

correctness given only to the post-conviction court’s findings of fact. See Fields v. State,

40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the

burden to show both that trial counsel’s performance was deficient and that counsel’s

deficient performance prejudiced the outcome of the proceeding. Strickland v.

Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.

Crim. App. 1997) (noting that the same standard for determining ineffective assistance of

counsel that is applied in federal cases also applies in Tennessee). The Strickland standard

is a two-prong test:

First, the defendant 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 defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

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

errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

Moreover, the reviewing court must indulge a strong presumption that the conduct of

counsel falls within the range of reasonable professional assistance, see Strickland, 466

U.S. at 690, and may not second-guess the tactical and strategic choices made by trial

counsel unless those choices were uninformed because of inadequate preparation. See

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

-5-

The prejudice prong of the test is satisfied by showing a reasonable probability, i.e.,

a “probability sufficient to undermine confidence in the outcome,” that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland,

466 U.S. at 694. In the context of a guilty plea, the petitioner must show a reasonable

probability that were it not for the deficiencies in counsel’s representation, he would not

have pled guilty but would instead have insisted on proceeding to trial. Hill v. Lockhart,

474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

Courts need not approach the Strickland test in a specific order or even “address

both components of the inquiry if the defendant makes an insufficient showing on one.”

466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective

assistance claim.”).

The Petitioner first claims that counsel rendered ineffective assistance by failing to

file a pretrial motion to suppress Facebook messages obtained from his phone. However,

counsel testified that it was not clear that the Facebook messages were obtained from the

Petitioner’s phone. In fact, it appeared that the messages were actually obtained from the

phone of one of the victims. Counsel additionally testified that he viewed the messages as

helpful and would have wanted to use them as part of the defense proof had the case gone

to trial to establish witness bias and show that the charged offenses were lies stemming

from a “lovers’ quarrel.” The post-conviction court found that the Petitioner had failed to

prove that counsel performed deficiently or that any deficiency caused the Petitioner

prejudice. The record supports this determination.

The Petitioner claims that counsel rendered ineffective assistance by failing to

provide him with a copy of the jury list and investigate the jury list for “faulty

backgrounds.” Initially, we observe that the Petitioner has waived these claims because he

did not raise them in his petition or at the evidentiary hearing, and they were not ruled upon

by the post-conviction court. “As a general rule, this court will not address post-conviction

issues that were not raised in the petition or addressed in the trial court.” Brown v. State,

928 S.W.2d 453, 457 (Tenn. Crim. App. 1996). The only mention of these issues came

from counsel at the evidentiary hearing when he volunteered that the Petitioner asked him

for “a complete copy of the jury pool list[,]” but he “did not feel that that was appropriate

to give to [the Petitioner]” because it contained the jurors’ addresses, telephone numbers,

and other personal information. The post-conviction court noted counsel’s brief testimony

but did not make any findings with regard to the jury pool list. Waiver notwithstanding,

the Petitioner has failed to demonstrate prejudice as he has not even claimed, much less

proven, that he would not have pled guilty and insisted on going to trial had counsel shown

him the jury pool list or investigated the people on it.

-6-

The Petitioner claims that counsel rendered ineffective assistance by coercing him

into pleading guilty. However, counsel testified at the hearing that he went back and forth

with the State to reach a deal that did not include jail time on the first offense as the

Petitioner requested. Counsel said that he fully believed the Petitioner wanted to accept

the plea or he would not have let the Petitioner go forward. Counsel recalled that he and

the Petitioner reviewed the plea form and discussed what the Petitioner’s sentences were

going to be and how they were structured. Counsel stated that “[t]here was no question”

the Petitioner understood the sentences he received under the plea. Counsel recalled that

he repeatedly informed the Petitioner that it was his decision alone whether to plead guilty

or go to trial and counsel was “absolutely” willing to go to trial, but the Petitioner wanted

to plead guilty. The post-conviction court implicitly accredited this testimony, and the

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

The Petitioner claims that counsel rendered ineffective assistance “for failing to at

least at the (minimum) try to obtain expert services[] in [his] favor[.]” (Jan. 14 brief pg.

18) As to this issue, counsel testified that it was “a fairly straight forward case,” and “I

don’t believe an expert witness would have been helpful in any way.” He elaborated that

the case was a “she says one thing, he says another” situation, and “[a]n expert wouldn’t

add or subtract anything to that.” Counsel reiterated that “even if I had unlimited money I

don’t know what an expert would have done in most of these cases. . . . that’s just the

reality of it.” From this testimony, implicitly accredited by the post-conviction court, it is

clear that counsel made the strategic choice not to pursue obtaining a futile expert witness.

Moreover, the Petitioner failed to call an expert witness at the evidentiary hearing to prove

how such expert would have supported his defense and has therefore failed to establish

prejudice. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

The Petitioner claims that his guilty pleas were not knowingly and voluntarily

entered. However, the Petitioner has waived any challenge to his guilty pleas for failing to

ensure that the transcript from the plea hearing was included in the record on appeal. The

record reflects that a separate hearing was held to specifically address this claim and the

transcript from that hearing was made an exhibit to the post-conviction hearing, but it was

not included in the record on appeal.1

Waiver notwithstanding, the testimony at the post-conviction hearing addressed the

Petitioner’s pleas, the Petitioner’s post-conviction counsel noted at the hearing that the

issues in the Petitioner’s motion to withdraw his guilty plea also pertained to his post-

1

In a reply brief, the Petitioner avers that the court clerk has verified that all transcripts and exhibits have

been properly filed, yet these documents are not contained in the appellate record. In any event, as discussed

below, we are nevertheless able to reach this issue.

-7-

conviction petition, and the post-conviction court’s order indicated that “all of [the

Petitioner’s] allegations that formed the basis for withdrawing the plea involved claims of

ineffective assistance of counsel.” Therefore, from the record before us we are nonetheless

able to conclude that the Petitioner’s pleas were knowingly and voluntarily entered,

supporting the post-conviction court’s conclusion that “[t]here is no basis for allowing the

[Petitioner] to withdraw his plea.”

The Petitioner finally claims that the “prosecutor breached the contract of [his]

involuntary plea[,]” apparently by including the fact that he choked the victim in the factual

basis supporting one of the offenses to which he pled guilty. The Petitioner, however, did

not include this issue in his post-conviction petition or raise it at the evidentiary hearing;

thus, the post-conviction court made no ruling on the matter for this court to review. Issues

not included in a post-conviction petition may not be raised for the first time on appeal and

are waived. See Walsh v. State, 166 S.W.3d 641, 645 (Tenn. 2005) (“Issues not addressed

in the post-conviction court will generally not be addressed on appeal.”); Cauthern v. State,

145 S.W.3d 571, 599 (Tenn. Crim. App. 2004) (“[A]n issue raised for the first time on

appeal is waived.”)

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the

post-conviction court.

____________________________________

ALAN E. GLENN, JUDGE

-8-