           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                        August 21, 2013 Session

                      STATE OF TENNESSEE v. JARRETT INMAN

                       Appeal from the Criminal Court for Roane County
                         Nos. 13654, 14023   E. Eugene Eblen, Judge


                    No. E2010-02431-CCA-R3-CD - Filed October 18, 2013


The petitioner, Jarrett Inman, pled guilty in the Roane County Criminal Court to rape of a
child, a Class A felony, and was sentenced to seventeen years at 100% in the Department of
Correction. On appeal, he argues that the trial court erred by denying his motion to withdraw
his guilty plea and his petition for writ of error coram nobis based on newly discovered
evidence of the victim’s recantation. Following our review, we affirm the judgments of the
trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
R OGER A. P AGE, J., joined.

Robert L. Vogel, Knoxville, Tennessee, for the appellant, Jarrett Inman.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Russell Johnson, District Attorney General; and Frank Harvey, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                  OPINION

                                                   FACTS

        On June 18, 2007, the Roane County Grand Jury indicted the petitioner for the rape
of a child based on his sexual penetration of a twelve-year-old neighbor, J. R.1 On December
9, 2008, the petitioner entered an open guilty plea to the offense in exchange for the dismissal
of pending theft and felony drug charges against him, and on April 16, 2009, the trial court

       1
           Pursuant to the policy of this court, we refer to the minor victim by her initials only.
sentenced him to seventeen years in the Department of Correction at 100% as a child rapist.

        On July 10, 2009, and again on August 21, 2009, the petitioner sent pro se letters to
the trial court requesting that he be allowed to withdraw his guilty plea. In support, he cited
his unhappiness with his trial counsel and his belief that she had misled him about the
consequences of his plea. At the hearing on that motion, at which the petitioner was
represented by counsel, the petitioner testified that he “felt like [he] was innocent” and that
he had been “bullied . . . into this plea.” The petitioner said that he had learned that his trial
counsel, who met with him only twice before he entered his plea, had since been suspended
from the practice of law “for not having the right requirements; hours.” He stated that trial
counsel was assisted by co-counsel who was present for both of his meetings with trial
counsel. At their first meeting, which lasted about thirty minutes, counsel discussed the
witnesses and their possible trial strategy. The petitioner stated that he told counsel that he
was not the person who was in the room with the underage victim and gave them the name
of a witness, Shawna Russell, who, according to the petitioner, would have testified that she
identified him as the perpetrator because she believed he was only seventeen and she was
attempting to cover for the real perpetrator, who was twenty-three. The petitioner testified
that he attempted to call Russell while at co-counsel’s office but did not receive an answer.
According to his testimony, neither of his counsel attempted to locate or talk to her or any
other witnesses.

        The petitioner testified that at their second meeting, which lasted approximately three
hours and took place in the courtroom, counsel abandoned any discussion of trial strategy and
instead kept trying to convince him to accept the plea deal. He said that counsel told him that
he faced more time if convicted on the drug charges than he did if convicted of the rape
charge and that he could receive a total of sixty-five years if he did not accept the plea offer.
The petitioner stated that counsel “scared [him]” with such talk, which is why he ultimately
agreed to plead guilty. The petitioner acknowledged that he signed the guilty plea agreement
but said he did not know what it was. He said neither of his counsel discussed with him the
details of the plea agreement or the rights he would be waiving by pleading guilty. He also
said that when the trial court asked him if he understood that he did not have to enter a guilty
plea, he tried to tell trial counsel that he did not want to take the plea, but she instead told him
just to answer “yes” to the judge.

        On cross-examination, the petitioner acknowledged that co-counsel discussed with
him the law regarding child rape and the fact that it was a strict liability crime in which his
belief about the victim’s age was irrelevant. He further acknowledged that counsel reviewed
with him the State’s evidence in the case and discussed possible ways to defend him against
the charge.



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        Co-counsel testified that he had been practicing criminal law for fourteen years and
that the trial court asked him to sit as a sort of informal “second chair” on the case because
trial counsel did not have a lot of experience with child rape cases. Co-counsel explained
that he agreed to do so because he had grown up in the same town with the petitioner and
knew the petitioner’s family, who were “good people.” He said he initially met with trial
counsel alone for an hour or two, instructing her on the law of child rape, discussing the case,
and reviewing with her the discovery materials, which included the nineteen-year-old
petitioner’s statement acknowledging that he had sexual contact with the twelve-year-old
victim. The two of them then met with the petitioner at co-counsel’s office, where co-
counsel explained to the petitioner in great depth the strict liability nature of child rape. To
aid in his explanation, he provided the petitioner with copies of the statute and with relevant
case law. Co-counsel testified that at the end of that first meeting the petitioner left, saying
that counsel needed to talk to Shawna Russell, a witness. He said he replied that they would
talk to anyone the petitioner wanted them to and that the petitioner should give them their
names and numbers. He did not know what kind of information the petitioner might have
given trial counsel, but he never heard back from the petitioner with respect to the names and
numbers of any potential witnesses.

        Co-counsel testified that he drafted several motions for trial counsel to file, including
a motion to suppress the petitioner’s statement. He did not, however, think they had much
of a chance of success given the petitioner’s age, intelligence and education level, and ability
to read and write. Co-counsel said that on the day that the hearing on the various motions
was scheduled, the State approached trial counsel with a plea bargain offer in which the
petitioner’s pending drug and theft charges would be dismissed. Co-counsel testified that
they discussed the pros and cons of the offer with the petitioner, including the fact that some
of the sentences for his felonies would have to be served consecutively. He said they pointed
out that although the petitioner would have to serve his child rape sentence at 100% if he
accepted the deal, it was “a whole lot better than . . . losing [his] whole life” if he went to
trial and was convicted of all the offenses and received consecutive sentencing. As he
recalled, the petitioner, who was sitting with his head in his hands, asked for a minute to
think about the offer before agreeing to accept the plea deal. Co-counsel said he did not push
the petitioner to accept the offer and that, to his knowledge, trial counsel did not either.

        On cross-examination, co-counsel testified that he was not appointed and received no
pay for his work on the case but instead volunteered his time due to the fact that he knew the
petitioner’s family and wanted to help. He said he explained the strict liability aspect of the
child rape law to trial counsel at their first meeting, not because he thought she did not know
it, but because the charges were so serious and he wanted “to start at ground zero” and not
“take any chances.” He acknowledged that he was not privy to all the conversations that took
place between the petitioner and trial counsel. He said he had no recollection of the

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petitioner’s having turned to talk to trial counsel during the guilty plea colloquy, but he was
not standing with the petitioner and it was possible he did so. Finally, he acknowledged that
he was aware that trial counsel lost her license to practice law sometime after the petitioner’s
sentencing hearing. He said, however, that he was not familiar with any of the circumstances
involved.

      On redirect examination, co-counsel testified that he informed the petitioner that it
was unlikely they would be successful with their motion to suppress his statement.

        At the conclusion of the hearing, the trial court denied the motion to withdraw the
guilty plea, finding that the petitioner received effective assistance of counsel and that his
guilty plea was knowing and voluntary. On November 19, 2010, the petitioner filed a timely
notice of appeal of the trial court’s denial of his motion to withdraw his plea.

         Subsequently, on November 9, 2011, the petitioner filed a petition for writ of error
coram nobis alleging newly discovered evidence. Specifically, he alleged that sometime in
January 2011 “[r]elatives or agents” of the petitioner had discovered a series of “Facebook”
postings by the victim, which were posted after the petitioner pled guilty, in which the victim
made statements indicating that she and her mother had “lied about the culpability of the
[petitioner].” The petitioner asserted that such evidence indicated that the victim had
recanted her story. He further alleged that had it been available at the time he entered his
plea, he would not have pled guilty because trial counsel could have impeached the victim
at trial with her recantation.

        The petitioner attached the “Facebook” postings as an exhibit to his petition. In the
postings, which purportedly consist of an online conversation between the victim and
“Calvino Inman,” the victim explains that her mother was trying to get the petitioner locked
up because the victim was only twelve and the petitioner was much older. She further states
that the petitioner did not force her to do anything, that he wanted to have sexual intercourse
with her but they “didn’t go thru [sic] with it,” and that they “started to” have sex but she
“told him to stop and he did.”

       This court stayed the appeal of the trial court’s denial of the petitioner’s motion to
withdraw his guilty plea pending disposition of the petition for writ of error coram nobis.
On May 8, 2012, the trial court entered an order denying the petition for writ of error coram
nobis. This court then waived the timely filing of the notice of appeal of the trial court’s
denial of the petition for writ of error coram nobis. We, therefore, now address the
petitioner’s claims regarding both rulings in this consolidated appeal.

                                         ANALYSIS

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                       I. Denial of Motion to Withdraw Guilty Plea

       The petitioner contends that the trial court abused its discretion in denying his motion
to withdraw his guilty plea, arguing that he was denied the effective assistance of trial
counsel and that his plea was entered as a result of fear and misunderstanding, thereby
rendering the plea unknowing and involuntary.

        Tennessee Rule of Criminal Procedure 32(f)(1) provides that a trial court may grant
a motion to withdraw a guilty plea “for any fair and just reason” before sentence is imposed,
or to correct manifest injustice after the sentence is imposed but before the judgment
becomes final. Granting a motion to withdraw a guilty plea to correct manifest injustice may
be warranted where (1) the plea was entered as a result of fear, fraud, or misunderstanding;
(2) the State failed to disclose exculpatory evidence as required by Brady v. Maryland, 373
U.S. 83 (1963); (3) the plea was not knowingly, understandingly, and voluntarily entered; or
(4) the defendant was denied the effective assistance of counsel in connection with entering
the plea. State v. Crowe, 168 S.W.3d 731, 742 (Tenn. 2005). It is the defendant’s burden
of establishing that the plea of guilty should be withdrawn to prevent “manifest injustice.”
State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995). The decision whether to
grant a motion to withdraw a plea of guilty rests with the sound discretion of the trial court
and will not be reversed absent an abuse of discretion. State v. Drake, 720 S.W.2d 798, 799
(Tenn. Crim. App. 1986).

       To establish that he was denied the effective 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 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

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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).

       Before a guilty plea may be accepted, there must be an affirmative showing in the trial
court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242
(1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a showing that
the defendant was made aware of the significant consequences of the plea. State v. Pettus,
986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340). 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 make sure 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.

        The record in this case fully supports the trial court’s findings that the petitioner
received effective assistance of counsel and entered a knowing, understood, and voluntary
guilty plea. The transcript of the guilty plea hearing reflects that the petitioner assured the
trial court that he knew he did not have to enter a plea of guilty and was entitled to a trial by
jury if he wished, that he understood the terms of the plea agreement, and that the
prosecutor’s recitation of the factual basis for his plea, that he sexually penetrated the less
than thirteen-year-old victim, was substantially correct. At the evidentiary hearing, co-
counsel testified that he and trial counsel “went through everything with” the petitioner
during the meeting held at his office and that he explained to him in great detail the child
rape statute and the strict liability nature of the crime. He said that the petitioner mentioned

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a witness that he wanted them to talk to but never provided co-counsel with any further
information about that, or any other, potential witness. Co-counsel described the damaging
statement of admission given by the petitioner and explained why he did not think they would
have been successful in suppressing the statement. He further testified that he and trial
counsel explained the plea bargain agreement offered by the State and the potential sentences
the petitioner faced if convicted of all the offenses with which he had been charged, some
of which would involve mandatory consecutive sentencing. Finally, he testified that he did
not push the petitioner to accept the offer and that, to his knowledge, co-counsel did not
either. We conclude, therefore, that the trial court did not abuse its discretion in denying the
petitioner’s motion to withdraw his guilty plea.

                  II. Denial of Petition for Writ of Error Coram Nobis

       The petitioner also contends that the trial court erred by denying his petition for writ
of error coram nobis. A writ of error coram nobis is an extraordinary remedy by which the
court may provide relief from a judgment under only narrow and limited circumstances.
State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). Tennessee Code Annotated section
40-26-105 provides this remedy to criminal defendants:

       Upon a showing by the defendant that the defendant was without fault in
       failing to present certain evidence at the proper time, a writ of error coram
       nobis will lie for subsequently or newly discovered evidence relating to
       matters which were litigated at the trial if the judge determines that such
       evidence may have resulted in a different judgment, had it been presented at
       the trial. The issue shall be tried by the court without the intervention of a
       jury, and if the decision be in favor of the petitioner, the judgment complained
       of shall be set aside and the defendant shall be granted a new trial in that
       cause.

Tenn. Code Ann. § 40-26-105(b), (c) (2012).

        The decision to grant or deny a petition for writ of error coram nobis based on newly
discovered evidence lies within the sound discretion of the trial court. See Tenn. Code Ann.
§ 40-26-105; State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995). We review this
issue, therefore, under an abuse of discretion standard.

        In denying the petition, the trial court acknowledged that the Facebook materials
raised issues that could have been the subject of cross-examination of witnesses at trial but
concluded that, in light of the victim’s explanation and the statement by the petitioner, it was
not reasonably well satisfied that a different result might have been obtained had the

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information been available at trial.

       We find no abuse of discretion in the trial court’s ruling. The statements purportedly
made by the victim consist of her explanation as to why her mother was angry at the
petitioner, her claims that she had tried to explain to her mother that the sexual encounter was
her fault, and her account of how she and the petitioner had started to have sexual intercourse
but did not go through with it. No specific details of what exactly transpired or at what point
the victim and the petitioner stopped the sexual encounter are provided.

        The petitioner, by contrast, told the police in his statement that he “finger[ed]” the
victim and put his penis inside her vagina but “only did it for about a minute” and did not
ejaculate. In light of that damaging statement, there is no reasonable basis for concluding
that the result of the proceeding might have been different had the vague description of the
sexual encounter, which was purportedly made by the victim, been available for the
petitioner’s use at trial. Accordingly, we affirm the dismissal of the petition for writ of error
coram nobis.

                                       CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court denying the petitioner’s motion to withdraw his guilty plea and his petition for writ of
error coram nobis.


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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