Jenelle Leigh Potter v. State of Tennessee

Citation: Not availableDocket: E2021-01063-CCA-R3-PC

Court: Court of Criminal Appeals of Tennessee; September 15, 2022; Tennessee; State Appellate Court

Original Court Document: View Document

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Jenelle Leigh Potter appeals the denial of her post-conviction relief petition concerning her convictions for two counts of first-degree premeditated murder and one count of conspiracy to commit murder. She claims her trial counsel was ineffective for not timely filing a motion for new trial. The Tennessee Court of Criminal Appeals affirms the post-conviction court's judgment.

The case involves the 2012 murders of Billy Clay Payne and Billie Jean Hayworth, for which Potter and her parents were indicted. After a joint trial, she was convicted and sentenced to life imprisonment. On direct appeal, Potter raised several issues, including the denial of a change of venire, insufficient evidence, the vagueness of the criminal responsibility statute, and a request to restrict the prosecutor's book publication. The appeal was hindered by the untimeliness of her motion for new trial, filed 31 days post-judgment, which waived her objections. The court found the evidence sufficient to uphold her convictions.

Subsequently, Potter filed a timely post-conviction relief petition alleging ineffective assistance of counsel for failing to file a motion for new trial and notice of appeal, seeking a delayed direct appeal.

During a status hearing, the parties reviewed the implications of the supreme court ruling in *Howard v. State*, which established that claims of ineffective assistance of counsel regarding untimely motions for new trials must be evaluated under the Strickland standard, focusing on whether counsel’s performance likely altered the case's outcome. Consequently, the Petitioner was directed to submit a revised pleading addressing *Howard* in relation to her request for a delayed direct appeal. 

The Petitioner filed a second amended petition, asserting actual prejudice due to trial counsel's failure to file the motion timely. She highlighted that the court had not deemed the evidence against her overwhelming, that the deficiency hindered her ability to contest the constitutionality of the criminal responsibility statute, and that one of her direct appeal issues had a potential for success, which warranted a delayed appeal. 

Additionally, the Petitioner claimed ineffective assistance from both trial and appellate counsel for not calling her father as a witness, who would have supported her defense. During a joint evidentiary hearing, the Petitioner’s mother’s attorney noted that the jury was extensively questioned about potential biases, indicating no need for a change in venire due to publicity.

Trial counsel testified about his extensive experience in criminal defense and the complexities surrounding the Petitioner’s father's potential testimony, including his prior convictions and uncooperativeness. Counsel expressed concerns about the father's credibility and the Petitioner’s reluctance for him to testify due to health concerns. The defense's strategy included expert testimony regarding the Petitioner’s low IQ, which positioned her as incapable of orchestrating a crime. Trial counsel admitted to the late filing of the motion for a new trial, resulting in the waiver of most appellate issues aside from sufficiency of evidence and sentencing.

Trial counsel indicated that he would only include issues in the Petitioner's direct appeal that had a reasonable chance of success, asserting that the Petitioner had several strong issues on appeal and that his performance was deficient, leading to prejudice against the Petitioner. The Petitioner’s mother testified that their attorneys had initially planned to call her husband as a witness but ultimately decided against it, which she felt was made without her input. The Petitioner expressed a desire for her father to testify, but trial counsel advised against it, citing her father’s cancer diagnosis. After the trial, the Petitioner received a letter from her father claiming he would have testified if called, although she did not keep this letter. The father later testified at the post-conviction hearing that he was prepared to testify in favor of his wife and daughter but was advised by his attorney not to do so.

The post-conviction court denied relief, recognizing trial counsel’s failure to file a timely motion for a new trial as deficient. It examined the waived appellate issues and concluded that previously rejected arguments regarding the criminal responsibility statute's vagueness would not have led to relief if properly presented. The court found no evidence that the prosecutor's book, released after the trial, influenced the appellate judges' decisions. Additionally, the voir dire transcript was missing from appellate records, and trial counsel was not questioned about the change of venire issue during the post-conviction hearing. The court accepted testimony from the Petitioner's mother’s attorney that prospective jurors had extensive questionnaires and noted no publicity concerns.

Consequently, the court determined that trial counsel’s failure to preserve appellate issues did not cause actual prejudice, denying the Petitioner a delayed appeal. Furthermore, the court ruled that trial counsel was not ineffective for not calling the Petitioner's father as a witness, as the Petitioner did not demonstrate that his testimony would have significantly helped her defense. The court justified this decision based on the potential credibility issues and the strength of other defense evidence. The Petitioner subsequently filed this appeal, claiming ineffective assistance of counsel due to the untimely motion for a new trial, which waived many appeal issues, one of which had a reasonable probability of success.

The post-conviction court affirmed that even if trial counsel had adequately preserved issues for appeal, the Petitioner’s appeal outcome would remain unchanged. The Petitioner has waived the issue regarding trial counsel’s failure to call her father as a witness. Under T.C.A. 40-30-103, post-conviction relief can be sought by asserting that a conviction or sentence is void due to violations of constitutional rights. A petitioner must prove their claims by clear and convincing evidence, with the post-conviction court's factual findings being conclusive unless contradicted by the evidence. The trial judge resolves credibility and evidentiary weight, while appellate courts review legal conclusions de novo without presumption of correctness.

The right to effective counsel is guaranteed by the Sixth Amendment and state constitution. To prove ineffective assistance, a petitioner must demonstrate both deficient performance and resulting prejudice, with the possibility of failing to address one prong if the other is not met. Prejudice requires showing a reasonable probability that the outcome would have differed but for counsel's errors. The Petitioner contends the post-conviction court wrongly concluded she was not prejudiced by counsel’s failure to file a timely motion for a new trial, claiming she need not prove a different outcome on appeal but rather that there was a reasonable probability of a different result. The Petitioner references trial counsel’s belief that he would have included only meritorious issues in the appeal and that he recognized the potential for prejudice due to his deficiencies.

The Petitioner argued that she intended for her trial counsel to preserve her post-trial and appellate remedies, which she claims were lost through no fault of her own. However, she did not address the requirement established by the supreme court in Howard regarding the need to demonstrate prejudice. The Petitioner failed to provide legal authority or substantive arguments supporting her claims that issues raised on direct appeal were meritorious, neglecting to discuss these issues in her brief. She vaguely noted that one appellate issue had a reasonable probability of success without specifying which issue it was, including the constitutionality of Tennessee’s criminal responsibility statute, concerns about a prosecutor’s book published after her trial, and issues regarding the jury venire. 

The court referenced previous rulings that deemed the criminal responsibility statute not unconstitutionally vague, indicating that the Petitioner could not prove the statute was obviously unconstitutional. Regarding the book publication, the court stated that it occurred after the trial and there was no evidence that appellate judges considered it during the appeal process. The Petitioner also did not provide a voir dire transcript to support her claims about jury bias, and testimony from her mother's counsel suggested no concern about juror exposure to publicity. Ultimately, the Petitioner did not demonstrate a reasonable probability that trial counsel's errors would have altered the outcome of her case. Thus, the post-conviction court correctly ruled that even if the issues had been preserved, they would not have granted relief, affirming that the Petitioner did not establish actual prejudice from her trial counsel’s deficiencies and is not entitled to a delayed appeal. The trial court's judgment was affirmed by the judge.