                                                                                          08/09/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              December 13, 2017 Session

                     ROY SMITH v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Rutherford County
                          No. F-76440 Royce Taylor, Judge
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                           No. M2017-00321-CCA-R3-PC
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CAMILLE R. MCMULLEN, J., dissenting.

        I respectfully disagree with the conclusion reached by the majority in this case. In
this appeal, the Petitioner contends that he received ineffective assistance of counsel at
the plea negotiation stage. Specifically, the Petitioner argues that trial counsel was
deficient in proceeding to trial based on an erroneous jurisdictional argument. As a
result, the Petitioner argues that, but for trial counsel’s erroneous advice, he would have
accepted the State’s more favorable plea offer. The State argues that the Petitioner has
failed to overcome the presumption that trial counsel exercised reasonable judgment in all
strategic decisions. Moreover, the State asserts that because the Petitioner has failed to
prove he would have accepted the ten-year offer extended to him instead of the twenty-
year offer, he has failed to prove prejudice. For the reasons that follow, I would have
reversed the judgment of the post-conviction court and remanded this matter for a re-
hearing. The facts underlying the Petitioner’s convictions stem from the execution of a
search warrant upon his home resulting in the discovery of oxycodone and several
hundred dihydrocodeinone pills. State v. Roy Allen Smith, No. M2014-01172-CCA-R3-
CD, 2015 WL 3550106, at *1 (Tenn. Crim. App. June 8, 2015) perm. app. denied (Tenn.
Oct. 15, 2015). The Petitioner was ultimately convicted after a jury trial of simple
possession of a Schedule II controlled substance, possession of a Schedule III controlled
substance with the intent to manufacture, deliver, or sell, maintaining a dwelling used for
keeping or selling controlled substances, and possession of drug paraphernalia, for which
he received an effective twelve-year sentence. Id. The trial court ordered the Petitioner’s
twelve-year sentence to be served consecutively to six prior convictions with an
aggregate sentence of thirty-seven years for which the Petitioner had been on probation at
the time that the instant offenses were committed. Roy Allen Smith, at *3. In total, it
appears that the Petitioner received an effective forty-nine-year sentence, the bulk of
which is for driving offenses.
       At the post-conviction hearing, the Petitioner explained that prior to this offense,
he was serving 25 years for driving related convictions and 12 years for a drug related
conviction. Trial counsel had represented the Petitioner on all his prior criminal matters,
and the Petitioner “always” accepted trial counsel’s advice to plead guilty. The Petitioner
received an offer in this case from the State, represented by Assistant District Attorney
Jennings Jones, to plead guilty to “20 years - - to do 20 years on all of it run together. All
the 25 and the 12 with a plea of guilty.” However, the Petitioner proceeded to trial in this
matter because trial counsel advised him that “he [trial counsel] could beat [the case] on
the jurisdiction law. Said that LaVergne had no business coming out into the county.”
The Petitioner would have accepted the State’s offer to plead guilty had he known trial
counsel’s advice was erroneous.

       When confronted with the original assistant district attorney’s notes that the offer
extended by the State was “10 years at 45 percent, to be served consecutively,” the
Petitioner insisted that trial counsel told him that the offer was “20 on all of it. To squash
everything and just give me a 20 on all of it . . . at 45.” When pressed further by the
prosecutor regarding the fact that the Petitioner was already serving thirty-seven years
“on paper” prior to the instant offenses, the Petitioner replied, “I think he [the original
assistant district attorney] was just trying to give me a break on it. I got 5 5’s running
consecutive, which would make it a 25-year sentence for driving a car with no license.”
Exasperated by his current situation, the Petitioner exclaimed, “And I haven’t killed
anybody.” Based on his understanding of the law, the Petitioner insisted, that if trial
counsel “beat the case on jurisdictional law,” the Petitioner would have been back out on
community corrections because his violation was based on the instant offenses.

        In Hill v. Lockhart, 474 U.S. 52, 58-59 (1985), the United States Supreme Court
extended Strickland’s two-prong test to challenges of guilty pleas based on ineffective
assistance of counsel. Hill was based on the petitioner’s acceptance of a plea offer as a
result of trial counsel’s erroneous advice. While the first deficiency prong of Strickland
remained the same, a petitioner establishes the second prejudice prong by showing “a
reasonable probability that, but for counsel’s errors, [the petitioner] would not have
pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. Years
later, and in contrast to Hill, the Supreme Court extended the right to effective assistance
of counsel to defendants who reject plea bargains because of their lawyers’ deficient
performance. Lafler v. Cooper, 566 U.S. 156, 160-75 (2012); Missouri v. Frye, _ U.S. _,
132 S. Ct. 1399, 1407-09 (2012) (in the context of guilty pleas a defendant must show the
outcome of the plea process would have been different with competent advice); accord
Bush v. State, 428 S.W.3d 1, 20 (Tenn. 2014) (citing Frye, 132 S. Ct. at 1407); Wlodarz
v. State, 361 S.W.3d 490, 503-04 (Tenn. 2012); see also McMann v. Richardson, 397
U.S. 759, 771 (1970) (“defendant [who] ... enters his plea upon the advice of counsel

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[entitled to] advice ... ‘within the range of competence demanded of attorneys in criminal
cases’”).

       In Lafler v. Cooper, the defendant shot at the victim’s head and ultimately struck
her “buttock, hip, and abdomen,” but she survived. Lafler, 566 U.S. at 161. After being
charged with various offenses, the defendant three times rejected plea offers, “allegedly
after his attorney convinced him that the prosecution would be unable to establish his
intent to murder the victim because she had been shot below the waist.” Id. The
defendant proceeded to trial, was convicted as charged, and received a sentence three and
a half times more severe than the initial offer conveyed by the prosecution. On appeal,
there was no dispute as to the deficiency prong of Strickland. The Court then elaborated
on the prejudice prong of Strickland in the context of a rejected plea offer and held:

       a defendant must show that but for the ineffective advice of counsel there is
       a reasonable probability that the plea offer would have been presented to
       the court (i.e., that the defendant would have accepted the plea and the
       prosecution would not have withdrawn it in light of intervening
       circumstances), that the court would have accepted its terms, and that the
       conviction or sentence, or both, under the offer’s terms would have been
       less severe than under the judgment and sentence that in fact were imposed.

Lafler, 566 U.S. at 164.

       In regard to the remedy for successful ineffective-assistance-of-counsel claims, the
Court cautioned that

       Sixth Amendment remedies should be tailored to the injury suffered from
       the constitutional violation and should not unnecessarily infringe on
       competing interests. Thus, a remedy must “neutralize the taint” of a
       constitutional violation, while at the same time not grant a windfall to the
       defendant or needlessly squander the considerable resources the State
       properly invested in the criminal prosecution.

Lafler, 566 U.S. at 170 (internal citations and quotation marks omitted). Nevertheless, if
the defendant establishes a successful ineffective-assistance-of-counsel claim, then it is
within the trial court’s discretion to fashion the appropriate remedy. The Court
envisioned the following two remedial scenarios: when the charges that would have been
admitted as part of the plea bargain are the same as the charges the defendant was
convicted of after trial, “the court may exercise its discretion in determining whether the
defendant should receive the term of imprisonment the government offered in the plea,
the sentence he received at trial, or something in between.” Id. at 171. Or, if re-
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sentencing alone will not be full redress for the constitutional injury, i.e. an offer was for
a guilty plea to a count or counts less serious than the ones for which a defendant was
convicted after trial, or if a mandatory sentence confines a judge’s sentencing discretion
after trial, then “the proper exercise of discretion to remedy the constitutional injury may
be to require the prosecution may reoffer the plea proposal[.]” Id. (internal citations
omitted). Upon the offer’s acceptance, the court has the discretion to vacate the
conviction from trial, accept the plea, or leave the conviction undisturbed. Id.

       As a preliminary matter, our research has revealed no Tennessee cases involving
allegations of attorney incompetence resulting in the defendant’s rejection of a proposed
plea agreement or the application of Lafler. This may explain why the post-conviction
court’s order is devoid of (1) a determination regarding the Petitioner’s allegation of trial
counsel’s deficient performance; and/or (2) an analysis of the prejudice prong as required
under Lafler. The post-conviction court cited Strickland and its state law progeny;
however, it denied relief based solely on the Petitioner’s failure to establish by clear and
convincing evidence that trial counsel extended the twenty-year plea offer.

        The Petitioner argues that trial counsel was deficient in advising him to reject the
offer based on counsel’s mistaken belief that the police did not have jurisdiction to
execute the search warrant. Rather than deficient performance, the State contends that
trial counsel’s decision to proceed to trial was strategic, warranting a presumption of
reasonableness by this court. In review of this issue, I am mindful that “a defense
attorney’s simple misjudgment as to the strength of the prosecution’s case, the chances of
acquittal, or the sentence a defendant is likely to receive upon conviction, among other
matters involving the exercise of counsel’s judgment, will not, without more, give rise to
a claim of ineffective assistance of counsel.” See McMann v. Richardson, supra, 397
U.S. at 770-771. Moreover, “[s]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable; and strategic choices
made after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.” Felts v.
State, 354 S.W.3d 266, 278 (Tenn. 2011) (citing Strickland, 466 U.S. at 690-91; Baxter,
523 S.W.2d at 935-36 (recognizing that counsel should investigate all apparently
substantial defenses); and Hellard v State, 629 S.W.2d 4, 9 (Tenn. 1982) (emphasizing
that a reviewing court should not second guess counsel’s strategic and tactical
decisions)). Counsel’s duty is “to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Id. The fact that a particular
strategy or tactical decision failed does not by itself establish deficiency. Id. (citing
Goad, 938 S.W.2d at 369).

       Based on trial counsel’s thought process from the record from the direct appeal,
the testimony of the Petitioner, and trial counsel’s notes, I would conclude that trial
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counsel was deficient in advising the Petitioner to reject a plea agreement and proceed to
trial. During oral argument, trial counsel conceded that he should have raised the
jurisdiction issue prior to trial. Trial counsel’s position, that the case should have been
dismissed on jurisdictional grounds after double jeopardy attached, was rejected by the
trial court, this court, and our supreme court denied his Rule 11 application based on the
same. While the extent of trial counsel’s research and investigation on this issue prior to
trial is not entirely clear, trial counsel’s notes show that minimal research was done. The
overwhelming authority on this issue was, in fact, contrary to counsel’s position. In my
view, counsel’s advice to the Petitioner was a clear misstatement of the law. Because trial
counsel’s advice to proceed to trial was not informed or well investigated, it is not
entitled to deference. Accordingly, I would have held that counsel’s advice on this issue
fell below reasonable professional norms, see Strickland, at 466 U.S. at 688, and that the
Petitioner established deficient performance.

        Next, the Petitioner argues trial counsel’s deficient performance caused him to
proceed to trial resulting in a much harsher sentence than the offer extended by the State.
He acknowledges in his brief that there was no proof other than his own testimony that a
twenty-year offer “to flatten everything” had been conveyed. Nevertheless, the Petitioner
argues that he would have accepted the ten-year offer conveyed by the State, as it was
also more favorable than the sentence imposed after trial. In response, the State contends
that the Petitioner has failed to prove he would have accepted the ten-year plea offered to
him; therefore, he has failed to establish prejudice. As previously noted, to establish
prejudice in this context, the Petitioner must demonstrate that, but for counsel’s deficient
representation, there is a reasonable probability that (1) the Petitioner would have
accepted the plea, (2) the prosecution would not have withdrawn the offer, and (3) the
trial court would have accepted the terms of the offer, such that the penalty under its
terms would have been less severe than the penalty actually imposed.

        Here, as in Lafler, the focus is not which offer the Petitioner would have accepted
but rather whether a reasonable probability exists that an offer was extended that the
Petitioner would have accepted. There is no question on this record that the State
conveyed an offer to plead guilty to ten years to be served at forty-five percent prior to
trial. See Lafler, 566 U.S. at 161 (noting that the defendant received and rejected two
offers prior to trial and another less favorable offer on the day of trial and rejected all
three based on counsel’s erroneous advice). Moreover, the Petitioner testified that he
would have accepted the offer but for counsel insisting that he could “beat the case” at
trial on the jurisdiction issue. The Petitioner further testified that on each of his prior
cases, trial counsel advised him to accept the plea offer and enter a guilty plea. In turn,
on each of the Petitioner’s prior cases, he did, in fact, forgo a trial and plead guilty.
Significantly, the Petitioner likewise never insisted upon his innocence in this case. In
addition, trial counsel’s notes showed that the proof against the Petitioner was,
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“overwhelming,” and he conceded the same at oral argument. There is nothing in the
record indicating that the State would have withdrawn the offer or was in any way
prohibited by law from extending it. It is likewise reasonable to predict that the trial
court would have approved the terms of the ten-year offer and accepted the Petitioner’s
plea. See Ebron v. Comm’r of Corr., 53 A.3d 983, 989 (Conn. 2012) (holding that in
most jurisdictions, prosecutors and judges are familiar with the boundaries of acceptable
plea bargains and sentences and therefore, in most instances, it is not difficult to make an
objective assessment as to whether or not the prosecution would withdraw an offer or the
court would accept). And finally, as to the last element of the Lafler prejudice prong, the
Petitioner has demonstrated that the twelve-year-sentence imposed after trial was more
severe than the ten-year-offer that was conveyed by the State.

       In my view, based on the aforementioned proof, the Petitioner has established that,
but for the ineffective advice of trial counsel, it is reasonably probable that he would have
accepted the plea offer, such offer would have been submitted by the State and accepted
by the court, and that his sentence would have been less severe than the sentence that was
in fact imposed. In other words, the Petitioner has demonstrated that without trial
counsel’s erroneous advice, the result of his guilty plea negotiation phase would have
been different. Accordingly, I would have reversed the judgment of the post-conviction
court and remanded this matter for the trial court to determine whether the Petitioner
should receive the term of imprisonment the State offered in the plea proposal (ten years
consecutive) or the sentence he received after trial (twelve years consecutive).


                                              ____________________________________
                                              CAMILLE R. MCMULLEN, JUDGE




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