Marshall Donnell Johnson appeals the denial of his post-conviction relief petition, claiming ineffective assistance of trial counsel and that his guilty plea was not made knowingly and voluntarily. The Tennessee Court of Criminal Appeals affirmed the denial. Johnson had been indicted in October 2003 for burglary (a Class D felony) and theft (a Class A misdemeanor). On August 27, 2004, he pled guilty to the burglary charge, receiving a ten-year sentence as a Range III persistent offender, with the requirement that this sentence be served consecutively to prior sentences from other counties due to statutory mandates. The theft charge was dismissed as part of the plea agreement.
During the plea hearing, the prosecution outlined the factual basis for the charges, detailing that Johnson entered Style America, caused damage, and stole a small amount of change before breaking into an adjacent business, Sally’s Beauty Salon, which triggered an alarm. Johnson was later apprehended and admitted to his actions during police questioning. The court, led by Judge Alan E. Glenn, included Justices Jerry L. Smith and John Everett Williams in the ruling. Johnson was represented by Howard W. Wilson, while the state was represented by Attorney General Robert E. Cooper, Jr., and others.
At the guilty plea hearing, the petitioner acknowledged understanding that the trial court would later decide whether his sentence would run concurrently or consecutively to his existing Sumner County sentences. He inquired about the court's considerations for this decision, to which the court emphasized the importance of the petitioner's record and cooperation with the investigation. During the hearing, the petitioner confirmed that his trial counsel had reviewed the plea agreement with him and that he had signed it, indicating it accurately reflected their agreement. He mentioned an officer's willingness to testify about his cooperation, and the trial counsel noted the possibility of subpoenaing this officer for the sentencing hearing.
At the November 30, 2004, sentencing hearing, the State presented the petitioner’s presentence report, revealing an extensive criminal history. The petitioner, 45 years old, admitted to a substantial record and prior incarcerations. He indicated that his numerous burglaries stemmed from his expertise in that area and his need to fund a drug habit, although he claimed to have stopped using drugs and expressed intentions to abandon crime. He presented certificates from self-improvement classes and a letter of recommendation from an auto mechanics instructor, stating he was a high school graduate.
Testifying about his cooperation with law enforcement, the petitioner claimed he assisted in recovering stolen items due to his desire to change his life. On cross-examination, he acknowledged that his cooperation had resulted in the retirement of multiple charges against him. Ultimately, the trial court classified the petitioner as a professional criminal who had largely relied on criminal activities for his livelihood and ordered that his ten-year sentence for the Rutherford County case be served consecutively to the twenty-year sentence from his Sumner County convictions.
On August 8, 2005, the petitioner sought post-conviction relief, asserting that his guilty plea was unknowing and involuntary and that he received ineffective assistance of counsel. After appointing post-conviction counsel, the petitioner submitted an amended petition alleging ineffective trial counsel for not adequately explaining sentencing laws, failing to investigate the case, and not calling witnesses at the sentencing hearing.
During a July 21, 2006, evidentiary hearing, trial counsel, with 18 years of experience, testified that he was appointed on the day of arraignment. He indicated that the petitioner was focused on having his Rutherford County sentence run concurrently with his Sumner County sentences. Trial counsel claimed he explained to the petitioner that he would likely have to serve the Rutherford County sentence consecutively due to his prior parole status. The State's initial offer was 12 years at 45% consecutive, which the petitioner rejected. A counteroffer was made, and the prosecutor suggested a ten-year plea deal with a hearing for the judge to decide on the sentencing structure.
Trial counsel admitted he received discovery from the State but did not interview key witnesses, including Detective Rick Hall. He acknowledged discussing the petitioner's extensive criminal record and its implications for sentencing but noted that the petitioner showed no intent to dispute the charges or seek witness subpoenas. The petitioner wanted to highlight his cooperation with law enforcement, believing it could influence the possibility of concurrent sentencing. Trial counsel believed the State considered this cooperation in the plea deal, which allowed for a persistent offender designation. The petitioner testified that trial counsel only briefly spoke with him three times, initially mentioning an eight-year offer.
The petitioner asserted that he informed his trial counsel he would accept a plea deal only if the sentences were served concurrently. Trial counsel later communicated a ten-year offer contingent on a judge's sentencing hearing. The petitioner claimed he discussed subpoenaing Detective Hall before his guilty plea but only learned at the sentencing hearing that Hall would not testify. He stated he would not have pled guilty had he known Hall's absence would affect his case. During cross-examination, the petitioner acknowledged he had the opportunity to inform the court of his cooperation with law enforcement and confirmed that no coercion influenced his plea, which he entered knowingly. He also stated that trial counsel made no promises regarding concurrent sentencing. The petitioner had not interacted with Detective Hall since giving his statement and was uncertain about Hall's potential testimony. Ultimately, the post-conviction court denied the petition, ruling the guilty plea was made knowingly and that the petitioner could not demonstrate prejudice from counsel's failure to subpoena Hall. The court considered the petitioner's undisputed testimony about his cooperation in its sentencing decision. The petitioner subsequently appealed the ruling.
In analyzing the post-conviction claims, it was noted that the petitioner bears the burden of proof by clear and convincing evidence. Findings of fact from the post-conviction court are conclusive unless evidence contradicts them. Appeals on factual issues do not involve reweighing evidence, but legal applications are reviewed de novo. The ineffective assistance of counsel claim requires the petitioner to demonstrate both deficient performance and resulting prejudice, following the Strickland v. Washington standard.
In Tennessee, the standard for determining ineffective assistance of counsel mirrors the federal Strickland standard, which consists of two prongs: (1) the performance prong requires the defendant to demonstrate that counsel's performance was deficient, meaning errors were so significant that the counsel did not fulfill the Sixth Amendment guarantee; (2) the prejudice prong requires showing that this deficient performance undermined the fairness of the trial outcome. Specifically, in the context of a guilty plea, the defendant must illustrate a reasonable probability that, absent counsel's deficiencies, they would have opted for trial instead of pleading guilty.
In this case, the post-conviction court found that the petitioner received effective representation. Trial counsel testified that he made no guarantees regarding the sentencing outcome and informed the petitioner about the unlikelihood of concurrent sentencing due to the petitioner’s extensive criminal record. Although counsel did not call Detective Hall as the petitioner requested, he believed Hall's testimony was unnecessary, as the State did not dispute the petitioner’s cooperation, which he communicated to the court. Counsel also did not pursue suppression of the petitioner’s confession, reasoning that it would contradict the strategy of highlighting cooperation with law enforcement.
Even if counsel's failure to call Detective Hall was deemed deficient, the petitioner could not demonstrate prejudice, as he did not present Hall at the evidentiary hearing and could only speculate about what Hall might have testified. The court emphasized that to prove ineffective assistance due to missing witnesses, the petitioner must present those witnesses at the hearing; speculation about their potential testimony is insufficient for establishing a claim of prejudice.
The petitioner did not demonstrate ineffective assistance of counsel nor establish that he would have chosen to go to trial instead of pleading guilty if not for his counsel's alleged shortcomings. Furthermore, the claim that his guilty plea was not entered knowingly, voluntarily, or intelligently was rejected. The petitioner argued that he pleaded guilty based on the belief that his counsel would subpoena a key witness. Analyzing the plea under the standards set forth in Boykin v. Alabama and State v. Mackey, the court emphasized the necessity for an affirmative showing that a plea is voluntary and knowledgeable. A plea cannot be deemed voluntary if it arises from ignorance, misunderstanding, or coercion. The trial court is required to ensure the defendant understands the plea and its consequences through questioning. Factors considered in evaluating the plea's voluntariness include the defendant's intelligence, familiarity with legal processes, representation by competent counsel, and the reasons for pleading guilty. The record indicated that the petitioner comprehended his rights and the nature of his plea, was not under the influence of substances, and had a high school education alongside extensive experience with the criminal justice system. Consequently, the court affirmed the denial of the petition for post-conviction relief, affirming the validity of the petitioner’s guilty plea.
