                                                                                      06/29/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                               January 7, 2020 Session

              MARQUETTE JONES v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                    No. 14-03149       Paula L. Skahan, Judge
                     ___________________________________

                          No. W2019-00399-CCA-R3-PC
                      ___________________________________


The Petitioner, Marquette Jones, appeals the denial of his petition for post-conviction
relief. Following our review, we affirm the judgment of the post-conviction court
denying the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL
and NORMA MCGEE OGLE JJ., joined.

Lance R. Chism, Memphis, Tennessee (at hearing and on appeal), for the appellant,
Marquette Jones.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Teresa McCusker,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                      OPINION

                                       FACTS


       On July 1, 2014, the Petitioner and a co-defendant were jointly indicted by the
Shelby County Grand Jury for especially aggravated kidnapping, aggravated robbery, and
evading arrest. On December 1, 2015 the Petitioner pled guilty to the offenses in
exchange for concurrent sentences as a Range I offender of sixteen years at 100% for the
especially aggravated kidnapping conviction, nine years at 85% for the aggravated
robbery conviction, and eleven months, twenty-nine days for the evading arrest
conviction, for an effective sentence of sixteen years in the Department of Correction.
The Petitioner stipulated to the following factual basis for the pleas recited by the
prosecutor at the guilty plea hearing:

      Had [the Petitioner] gone forward with trial the State would have shown
      that on March 11, 2014 911 received a call from a witness name[d] Ms.
      Cox who indicated that she had walked out of Beale as she witnessed two
      male blacks approach an individual and put him on the ground and then
      hold him at gunpoint while they took his wallet from him.

             They then forced him into the vehicle. As she was speaking to 911
      she was able to tell them the direction that that vehicle, a Ford F150[,]
      traveled. As she continued to speak to 911 she was able to tell them that
      the vehicle had turned around and was heading back her direction. She was
      able to even inform dispatch when police officers got behind that vehicle.

             When police officers got behind that vehicle two individuals bailed
      out of the vehicle and started running. They were apprehended. Those
      individuals was [sic] [the Petitioner’s] co-defendants, [sic] Mr. Walton.
      One was seen to throw a handgun. As he fled the scene the handgun was
      recovered.

             The victim in that matter, Mr. Andrew McKinney, was also left in
      the vehicle. After officers realized that he was indeed a victim and not one
      of the perpetrators, he was brought down and was given a statement [sic]
      and indicated that he had been placed on the ground and robbed at gunpoint
      and forced back into his car because he didn’t have enough money to go to
      an ATM.

             On the way to the ATM he told police officers that individuals
      realized that that particular ATM that they were heading to had security
      cameras so they wanted him to go to yet a different ATM. And it was all
      backtracked back through Beale Street the place that they left. That’s when
      officers got behind the vehicle.

        On December 1, 2016 the Petitioner filed a pro se petition for post-conviction
relief in which he raised claims of ineffective assistance of counsel and involuntary and
unknowing guilty pleas. Following the appointment of post-conviction counsel, he filed
an amended petition alleging that his guilty pleas were not knowingly, voluntarily and
intelligently entered and that he received ineffective assistance of counsel because
counsel failed to explain to him that, pursuant to the holding in State v. White, 362
                                          -2-
S.W.3d 559 (Tenn. 2012), the jury in his case, “after being properly instructed, may
conclude that the facts in his case support a conviction only for aggravated robbery (and
not a conviction for especially aggravated kidnapping).”

       At the evidentiary hearing, trial counsel testified that he began practicing law in
2010, primarily focused on criminal law. By the time he was appointed to represent the
Petitioner in August 2015, he had handled approximately a dozen jury trials, including
approximately three or four cases that involved Class A and Class B felonies. He
recalled that he and the Petitioner met at least two or three times at court settings from
August 2015, when he was appointed, until the Petitioner entered his guilty pleas in
December. Trial counsel explained that he was appointed after a trial date had already
been set due to the Petitioner’s having developed a serious conflict with prior counsel.

        Trial counsel testified that the Petitioner did not want to go to trial but was also
unhappy with the plea that had been offered of fifteen years for the especially aggravated
kidnapping and eight years for the aggravated robbery. He said the Petitioner maintained
that it was his co-defendant who committed the crimes, did not think he was responsible,
and did not think it fair that he had been charged with his co-defendant. By the
Petitioner’s account, he had merely been present when his co-defendant committed the
crimes. Trial counsel stated that he discussed with the Petitioner “at great lengths” the
concept of criminal responsibility and the minimum sentences for the offenses. He said
most of their discussions revolved around attempting to obtain a better plea offer from the
State. Trial counsel believed that the prosecutor increased the plea offer to sixteen years
after becoming irritated at the Petitioner’s not wanting to either accept the plea that had
already been offered or set the case for trial.

        Trial counsel testified that he discussed with the Petitioner in depth the charges
and the elements the State would have to prove to convict. He said he was not familiar
with the White opinion at the time and could not recall the Petitioner’s having ever sent it
to him. Had the Petitioner done so, he was confident he would recall it. When shown a
letter to him from the Petitioner, he testified that he did not remember having ever
received any letter from the Petitioner.

        Trial counsel testified the State reached a point when it was prepared to revoke
any offer. He said the Petitioner never wanted to go to trial; he simply wanted an offer
that involved less than fifteen years. Trial counsel stated that he was prepared to go to
trial but advised the Petitioner to accept the plea offer because of the potential exposure
he faced if convicted of the offenses at trial. However, he also told the Petitioner that it
was his decision alone. Because the Petitioner did not want to go to trial, he ultimately
accepted the sixteen-year offer from the State.

                                           -3-
       Trial counsel testified that he would not have changed anything in his
representation had he been aware of White at the time, as he believed the facts in the
Petitioner’s case were very different from those in White:

               And even looking at the White case now, you know, since you’ve
       given it to me, there wouldn’t have been any information in the White case
       that I feel would have changed anything. If I would have had the White
       case then, looking at it now, I would have explained to him the same thing:
       That the facts of that case aren’t even close to the facts of his case.

       Trial counsel testified that the Petitioner was not happy about pleading guilty in
exchange for a sixteen-year sentence but did not want the alternative of going to trial. He
said he thought the Petitioner was “particularly frustrated that [the State] increased it
from 15 to 16 years.”

       On cross-examination, trial counsel agreed that he was appointed to represent the
Petitioner on August 24, 2015, and that the Petitioner’s case had been set for trial that
day. He reiterated that he had never received the letter from the Petitioner asking him
about the White case, and, when shown the letter again, testified that it was dated August
3, 2015, which was before he was appointed. He repeated that the Petitioner never
expressed any desire to go to trial and mainly expressed his unhappiness with the plea
offer. He said the Petitioner appeared to understand the concept of criminal
responsibility but that he thought it was unfair. He stated that he and the Petitioner got
along well and never had any problems communicating. Finally, he testified that he
believed the Petitioner entered his pleas knowingly, intelligently and voluntarily.

       On redirect examination, trial counsel testified that he told the Petitioner that they
“would have a very hard time coming out from each of the counts.” He said he
repeatedly talked to the Petitioner about what the State would have to prove for each
count without connecting the two together: “[T]here was never any instruction that linked
the two; it was always them having to show them independently of each other.” Trial
counsel testified that he told the Petitioner that the trial court was unlikely to order
consecutive sentences if the Petitioner were convicted of the offenses at trial but that the
Petitioner could be sentenced at the high end of the range for each offense.

       The Petitioner testified that trial counsel visited him once in jail, where the
Petitioner asked him about the White case. He also identified the August 3, 2015 letter as
one that he had sent to trial counsel. According to the Petitioner, he sent the letter in
October and the August 3 date was “an honest mistake.” He said that trial counsel told
him he had received the letter but that White was inapplicable to his case.

                                            -4-
       The Petitioner testified that he wanted to go to trial. He said he told trial counsel
that he had robbed someone and was guilty of a robbery but was not guilty of kidnapping.
Trial counsel never told him that the jury would be instructed that he could not be found
guilty of kidnapping if the kidnapping was incidental to the robbery. Had trial counsel
explained that legal concept to him, he would not have pled guilty because he thought
“the jury probably would have just found [him] guilty on the aggravated robbery, and not
the especially aggravated kidnapping.”

       The Petitioner testified that he again brought the White case up to trial counsel on
the day he entered his pleas, but counsel told him they could not worry about it right then.
He said he felt pressured into pleading guilty because trial counsel “wasn’t really trying
to help [him].”

       On cross-examination, the Petitioner was unable to remember what day trial
counsel visited him in jail. He acknowledged he informed the trial court at his guilty plea
hearing that he was satisfied with counsel’s representation and had no complaints about
him. He further acknowledged that he could have received much more time at trial, that it
was his decision to plead guilty, and that he was not forced to enter his pleas.

        On January 28, 2019, the post-conviction court entered an order denying the
petition. Among other things, the court found that “[t]rial counsel’s discussion of the law
covered the necessary elements required to secure a conviction against Petitioner and
reflected that the State would be required to prove each offense independently.” The
court therefore concluded that the Petitioner failed to prove by clear and convincing
evidence that counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms. The court further concluded that, even if counsel
was deficient for not discussing the holding in White, the Petitioner failed to show by
clear and convincing evidence that counsel’s failure to discuss White resulted in
prejudice to the Petitioner’s case.

       As for the Petitioner’s claim of unknowing and involuntary guilty pleas, the court
noted that the Petitioner’s own testimony was that no one had coerced him into entering
his pleas. The court also noted the Petitioner’s responses during the plea colloquy that he
was satisfied with counsel’s representation, understood the charges against him, the terms
of his plea agreement, and the rights he was waiving by pleading guilty, and that it was
his decision to enter the pleas. The Court, therefore, concluded that the Petitioner also
failed to show by clear and convincing evidence that his guilty pleas were unknowing,
unintelligent, and involuntary.

                                       ANALYSIS

                                           -5-
       On appeal, the Petitioner argues that trial counsel’s failure to explain to the
Petitioner the legal concept set forth in White, which was released approximately three
years prior to counsel’s appointment, constituted a deficiency in performance that
resulted in prejudice to his case. The Petitioner asserts that he would not have pled guilty
had trial counsel explained the White holding to him. The State responds by arguing that
the post-conviction court properly found that the Petitioner failed to show by clear and
convincing evidence that counsel was ineffective or that his guilty pleas were unknowing
and involuntary. We agree with the State.

       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
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.
                                           -6-
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)).
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).

        When analyzing a guilty plea, we look to the federal standard announced in
Boykin v. Alabama, 395 U.S. 238 (1969), and the state standard set out in State v.
Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn.
1999). In Boykin, the United States Supreme Court held that there must be an affirmative
showing in the trial court that a guilty plea was voluntarily and knowingly given before it
can be accepted. Boykin, 395 U.S. at 242. Similarly, our Tennessee Supreme Court in
Mackey required an affirmative showing of a voluntary and knowledgeable guilty plea,
namely, that the defendant has been made aware of the significant consequences of such
a plea. Pettus, 986 S.W.2d at 542.

        A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The
trial court must determine if the guilty plea is “knowing” by questioning the defendant to
ensure he or she fully understands the plea and its consequences. Pettus, 986 S.W.2d at
542; Blankenship, 858 S.W.2d at 904. Because the plea must represent a voluntary and
intelligent choice among the alternatives available to the defendant, the trial court may
look at a number of circumstantial factors in making this determination. Blankenship, 858
S.W.2d at 904. These factors include: (1) the defendant’s relative intelligence; (2) his
familiarity with criminal proceedings; (3) whether he was represented by competent
counsel and had the opportunity to confer with counsel about alternatives; (4) the advice
of counsel and the court about the charges against him and the penalty to be imposed; and
(5) the defendant’s reasons for pleading guilty, including the desire to avoid a greater
penalty in a jury trial. Id. at 904-05.

       In denying the petition, the post-conviction court accredited trial counsel’s
testimony about his preparation for the case and his thorough discussions with the
                                           -7-
Petitioner with respect to the elements of each offense, the proof against the Petitioner,
the theory of criminal responsibility for the actions of another, the pros and cons against
going to trial, and the Petitioner’s desire to avoid a trial. The court also noted the plea
colloquy in which the Petitioner assured the trial court that he fully understood his plea
agreement, that he was satisfied with counsel’s representation, and that he was entering
his pleas knowingly and voluntarily, as well as the Petitioner’s evidentiary hearing
testimony that he was not coerced into entering his pleas.

       We note that the Petitioner testified at the evidentiary hearing that he was familiar
with the White case at the time he entered his pleas. The Petitioner, in fact, appeared to
have not only been familiar with the case by name but also to have had a grasp of the
legal concepts in the case. In the letter dated August 3, 2015 that he allegedly sent to trial
counsel in October 2015, he states that he was told about the case, that he and his
previous counsel could not come to an agreement about it, but that his understanding was
that the jury “could find [him] not guilty because only a robbery occurred.” Thus, we
conclude that the evidence does not preponderate against the findings and conclusions of
the post-conviction court that the Petitioner failed to meet his burden of showing that he
was denied the effective assistance of counsel or that his guilty pleas were unknowing,
unintelligent and involuntary.

                                      CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court.




                                              ____________________________________
                                              ALAN E. GLENN, JUDGE




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