         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs March 25, 2009

                       EDD STEPP v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Cocke County
                         No. 30,759-I    Ben W. Hooper, II, Judge



                   No. E2008-01642-CCA-R3-PC - Filed December 1, 2009


The Petitioner, Edd Stepp, pled guilty to nine counts of aggravated sexual battery, a Class B felony,
and was sentenced as a violent offender to twelve years for each count, with four of the sentences
to be served consecutively, for an effective sentence of forty-eight years. On appeal, this court
modified his sentences to eight years for each count, with two of the sentences to be served
consecutively, for an effective sentence of sixteen years. The Petitioner filed a petition for post-
conviction relief which, following an evidentiary hearing, was dismissed by the post-conviction
court. On appeal, the Petitioner argues, and the State concedes, that the post-conviction court erred
in finding that the guilty pleas of the Petitioner were knowing and voluntary and in dismissing the
petition. Following our review, we agree, reverse the order of the post-conviction court, and remand
for the granting of post-conviction relief.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed,
                                      Case Remanded

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and D. KELLY THOMAS, JR., JJ., joined.

Brad L. Davidson, Newport, Tennessee, for the appellant, Edd Stepp.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General;
James B. Dunn, District Attorney General; and Amanda H. Inman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

       In the direct appeal of the Petitioner’s convictions, this court set out the underlying facts:
         On November 24, 2004, a Cocke County grand jury returned
an indictment charging the [Petitioner] with nine counts of aggravated
sexual battery of the female victim, who was a child under thirteen
years of age. On April 4, 2005, the trial court ordered the [Petitioner]
to submit to a forensic evaluation at Cherokee Health Systems in
Morristown. On June 21, 2005, the [Petitioner] pled guilty, as
indicted, to nine counts of aggravated sexual battery, submitting all
sentencing issues to the trial court for its determination. At the
sentencing hearing, the State introduced letters from the victim’s
mother reciting the emotional impact of the crimes upon the victim
and her family, the [Petitioner’s] statement to the police, the
[Petitioner’s] mental health evaluation from Cherokee Health
Systems, and the presentence report. The [Petitioner] submitted
copies of his medical records from the University of Tennessee
Hospital and the Family Practice Center referencing numerous health
problems and injuries from which the [Petitioner] suffered. At the
conclusion of the hearing, the trial court sentenced the [Petitioner] to
serve twelve years for each conviction. The court further ordered that
the first four sentences be served consecutively to each other and the
remaining five sentences be served concurrently, resulting in an
effective sentence of forty-eight years.

        The [Petitioner] is a single, seventy-year-old man who is
unable to read or write with the exception that he can write his name.
He attended three years of public schooling. He lives with Faye
Etherton, an invalid, and assists her with her daily chores. He earns
spending money by mowing yards and picking up aluminum cans.
The [Petitioner] states that he is in poor health, and medical reports
establish that he has been treated for hypertension, chronic
obstructive pulmonary disease, and stomach problems.

        The [Petitioner] and Ms. Etherton are friends of the victim’s
mother and grandmother. In 2003, the victim’s grandmother moved
to a location near Ms. Etherton. When the victim’s mother worked
weekends, the victim would stay with her grandmother. The victim
was six and a half years old when the first offense occurred in
November 2003, with the subsequent offenses occurring at least once
a month over an eight-month period of time.

        The victim’s mother began to notice changes in the victim
after the victim would return home from her weekend visits with her
grandmother. The victim objected to being touched, and she stopped
wearing little girl’s dresses and would wear only big T-shirts and


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              sweat pants. She became frightened when separated from her mother
              and ultimately was placed on medication for anxiety attacks.

                     The [Petitioner] gave the following statement describing his
              action in the crimes to Detective Ball of the Newport Police
              Department:

                      [The victim] would come visit Faye, who is sick. . . .
                      The first time [it] happened I touched [the victim’s]
                      private area on top of her clothes. I didn’t know what
                      I was doing. [The victim] would visit a couple of
                      times a week. Since then I have touched [the
                      victim’s] private part on top of her clothes 8-10 times.
                      . . . Also during this time I showed [the victim] my
                      private or my penis on other occasions around 5
                      times. The last time I touched [the victim] was the
                      beginning of July 2004. The last time I showed her
                      my private part . . . [was] near the end of June 2004.
                      I did touch myself in front of her.

                     The victim’s parents testified that the [Petitioner’s] sexual
              contacts with the victim have left deep, emotional scars on both her
              and the family. The victim and her mother are attending counseling
              sessions as a result of the [Petitioner’s] conduct.

                      Ms. Mary Brady, the [Petitioner’s] half-sister, testified on his
              behalf. She described the [Petitioner] as kind and compassionate and
              stated that he had helped a lot of people during his life. He takes care
              of Ms. Etherton by taking her to the doctor, picking up her
              medication, and cooking for her.

                      The [Petitioner] was evaluated at Cherokee Health Systems,
              and the forensic evaluator concluded that a defense of diminished
              capacity based upon mental retardation could not be supported. The
              evaluator opined that “[the Petitioner] does have the mental ability to
              appreciate the wrongfulness of the crime of Aggravated Sexual
              Battery.” The [Petitioner’s] full scale IQ was 62, which placed him
              in the Extremely Low Range of intellectual functioning, but “[t]his
              score reflects the fact that [the Petitioner] has a third grade
              education.”

State v. Edd Stepp, No. E2005-02178-CCA-R3-CD, Cocke County, slip op. 2-3 (Tenn. Crim. App.
Nov. 2, 2006), perm. to appeal denied (Tenn. Jan. 29, 2007).


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       Additionally, this court’s opinion in the direct appeal set out the guilty plea provisions to
which the Petitioner agreed and explained why such provisions were not in his interest:

                       The [Petitioner] agrees to plead guilty to Plea, upon
                       stipulated facts, to the charge of Aggravated Sexual
                       Battery X 9 and/or its lesser included offense of
                       Attempted Aggravated Sexual Battery X 9 with court
                       to decide guilt of which offense(s) and the State
                       agrees to recommend to the Court the following
                       sentence: No recommended sentence.


               A guilty plea agreement of this nature is fr[aught] with uncertainties
               and should be discontinued. Rule 11, Tennessee Rules of Criminal
               Procedure, which governs guilty pleas and plea agreements, contains
               no authority for this type of agreement. The plea agreement
               procedure of Rule 11 provides that the district attorney general and
               the attorney for the defendant may engage in discussions with a view
               toward reaching an agreement for entry of a plea of guilty to an
               offense, not to multiple offenses or optional offenses. See Tenn. R.
               Crim. P. 11(c) (emphasis added). Rule 11 specifically requires that,
               prior to accepting the guilty plea, the court is to inform the defendant
               of and determine that he understands the “nature of the charge to
               which the plea is offered” and to inform the defendant of the
               minimum and maximum sentence of the crime. Tenn. R. Crim. P.
               11(c)(1) (emphasis added).

                        Moreover, the voluntariness of a guilty plea of this nature is
               brought into question as the defendant is informed by trial counsel,
               during plea negotiations, that he could receive a lesser sentence if the
               trial judge chooses to reduce the conviction. This is an unrealistic
               assumption. Moreover, it is not the function of the trial judge to
               select the appropriate crime at the guilty plea hearing. Finally, this
               procedure promotes uncertainty with regard to punishment as
               illustrated in this case where trial counsel argued at the sentencing
               hearing that the [Petitioner] should receive a total sentence of three
               to six years with placement in a group home, and the trial court
               actually imposed a sentence of forty-eight years confinement in the
               state penitentiary.

Id. at 4-5.




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        At the evidentiary hearing, the former assistant district attorney who represented the State
at the Petitioner’s guilty plea proceeding testified that, subsequently, he became employed as an
Assistant United States Attorney. He testified that to the best of his knowledge, no defendant other
than the Petitioner had pled guilty before in that court to an offense as charged or a lesser-included
offense. He explained why the pleas had been structured as they were:

                         What I recall is that there really wasn’t much hope of success
                at trial where [the Petitioner] could go to trial. There was a full
                confession that would have fully supported the indictment. I recall
                that we were in plea negotiations, [trial counsel] and I. I think [trial
                counsel] was making some arguments, I don’t recall, and I think just
                as kind of a compromise, I guess if [trial counsel] is going to say I
                thought of it, I don’t know, I don’t remember, but it seems to me the
                compromise was at least this would give [the Petitioner] a chance of
                convincing the [c]ourt of a possible lesser charge and lesser sentence.
                To me that seems like . . . extra-effective counsel, not ineffective
                counsel, because he had the chance of getting a lesser sentence and
                lesser charges as opposed to what was just in the indictment, which
                was the aggravated sexual battery.

He acknowledged that the agreement was “unusual” and could “not honestly say, looking back at it,
that it was a good idea.” He said that he could not recall advising trial counsel of the punishment
which the Petitioner would receive.

         The Petitioner’s trial counsel described the proceeding as being “in the form of a guilty plea,
it’s . . . basically a bench trial with stipulated facts, but it was entered in the form of a plea
agreement.” In response to a question as to how often he “enter[ed] pleas with clients for various
possible offenses and allow[ed] the Court to determine their guilt or innocence,” counsel replied:

                        I was pondering that question when it was asked of [the
                assistant district attorney], and I won’t say I’ve done one exactly like
                this, but we may on occasion where there’s really no issue on one of
                the elements, such as whether or not something was stolen but there’s
                an issue as far as value, we may enter a guilty plea to theft and let the
                Court decide the value, which, of course, can lead to a conviction for
                different levels of felonies. But it’s not something we do a lot.

        Counsel related how he had explained the possible punishment faced by the Petitioner and
the sentences he hoped the trial court would impose:

                        Probably that he had nine counts, they carried eight to twelve
                years each. The top of the line, I think it was a hundred and forty-four
                years if he got the maximum sentence and they were stacked. As far


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               as the plea agreement we did enter, our goal was to get a sentence of
               three to six years with the possibility of probation.

       Counsel said that he was aware that the Petitioner had a limited IQ and told the State of this
fact. He said that it “appeared as though [the Petitioner] understood [the pleas of guilty]. He acted
appropriately and so forth.”

        On cross-examination, counsel explained his meetings with the Petitioner prior to his pleas
of guilty and the difficulty he had in doing so:

                       It was probably in the neighborhood of a half a dozen times.
               I know from reflection of my file, we had problems up front with
               getting [the Petitioner’s] cooperation. Never could get a hold of him
               prior to his first court date, which was a plea date, and, lo and behold,
               he showed up and I think the judge, the Court, had to admonish him
               to stay in touch with his counsel. We got the case reset. And
               thereafter, he was somewhat hard to reach but we found him when we
               needed to.

         The Petitioner testified that he had a third grade education and could neither read nor write.
He said that he did “not understand what [the plea agreement] meant.” He said that he was seventy-
three years old and, as we understand, had been housed in a special needs facility before being
transported for his testimony at the evidentiary hearing. On cross-examination, the Petitioner
testified that he had signed the waiver of rights form and recalled being questioned by the trial court
before the pleas of guilty but said he “didn’t understand a thing.”

                                             ANALYSIS

       On appeal, the Petitioner argues that trial counsel was ineffective because the Petitioner
entered the pleas of guilty without understanding them. The State agrees that the Petitioner’s guilty
pleas were involuntary and unknowing and that he is entitled to post-conviction relief.

         The burden in a post-conviction proceeding is on the Petitioner to prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, we are bound by the
trial court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457. Post-conviction relief may only be given if a conviction
or sentence is void or voidable because of a violation of a constitutional right. T.C.A. § 40-30-103.

       Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the Petitioner to show (1) that counsel’s performance was deficient and (2) that the


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deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v.
Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing that counsel’s performance falls
below a reasonable standard is not enough; rather, the Petitioner must also show that but for the
substandard performance, “the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. When a petitioner pleads guilty, he must show a reasonable probability that, but for the
errors of his counsel, he would not have pled guilty. See Hill v. Lockhart, 474 U.S. 52, 59 (1985);
Adkins v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App.1994).

       In its order denying post-conviction relief, the post-conviction court found as follows:

               1.      That Petitioner’s testimony is not credible.

               2.      That Petitioner has not suffered an abridgement of any
                       right afforded by either the United States or Tennessee
                       Constitution[].

               3.      That Petitioner has failed to meet the applicable burden of
                       proof.

               4.      That Petitioner’s trial counsel . . . was not ineffective
                       in his representation of Petitioner.

               5.      That Petitioner’s guilty plea was knowingly and voluntarily
                       entered.


      On appeal, the State explains why, in its view, the pleas of guilty were involuntary and
unknowing:

               A review of the plea colloquy demonstrates that the trial court was
               unaware of the nature of the plea agreement until the end of the
               hearing when sentencing hearing dates were discussed. Moreover, at
               no point during the plea colloquy did counsel or the judge ask the
               [Petitioner], “if he understood that he was pleading guilty to either
               aggravated sexual battery or attempted aggravated sexual battery and
               that the determination would be left up to the judge.” Furthermore,
               because the trial court did not determine which offense the
               [Petitioner] pleaded guilty to until the sentencing hearing.

        The record supports the State’s analysis. Although the trial court questioned the Petitioner
as to the voluntariness of his pleas of guilty, the court did not explain to him or question him about
the fact that, later, the court would decide whether he would be found guilty of aggravated sexual
battery or attempted aggravated sexual battery. We note that according to trial counsel, a report from


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Cherokee Mental Health Center prepared for the sentencing hearing stated that the Petitioner had an
IQ of 62. Accordingly, we reverse the order of the post-conviction court and remand with
instructions that the petition for post-conviction relief be granted.

                                         CONCLUSION

        We conclude that the evidence preponderates against the findings of the post-conviction court
that the Petitioner’s pleas of guilty were knowingly and voluntarily entered, that trial counsel was
not ineffective, and that the Petitioner was not prejudiced. Accordingly, we reverse the order of the
post-conviction court dismissing the petition and remand the case for the granting of post-conviction
relief.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE




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