                                                                                           04/09/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 15, 2017

              STEVEN TYLER NABI v. STATE OF TENNESSEE

              Appeal from the Circuit Court for Robertson County
   Nos. 74CC2-2013-630, 74CC2-2013-635        William R. Goodman, III, Judge
                   ___________________________________

                           No. M2017-00041-CCA-R3-PC
                       ___________________________________


Petitioner, Steven Tyler Nabi, appeals the denial of his petition for post-conviction relief.
On appeal, Petitioner contends that his trial counsel was ineffective for failing to
adequately prepare for trial, failing to properly cross-examine the State’s witnesses at
trial, and failing to pursue the issues of the State’s lack of DNA evidence and defense of a
third party. Petitioner entered guilty pleas following the State’s presentation of its
evidence at trial. Petitioner contends that his guilty pleas were unknowingly and
involuntarily entered because he was under the influence of marijuana at the time of the
plea acceptance hearing, the trial court failed to properly advise him under Rule 11 of the
Tennessee Rules of Criminal Procedure, and Petitioner did not understand that his
sentence would be served at 85 percent. Having reviewed the entire record and the briefs
of the parties, we reverse the judgment of the post-conviction court and remand this case
for proceedings consistent with this opinion.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

William F. Kroeger, Springfield, Tennessee, for the appellant, Steven Tyler Nabi.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; John Wesley Carney, Jr., District Attorney General; and Jason White, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

Procedural history

       Petitioner was indicted by the Robertson County Grand Jury for one count of
aggravated robbery in case number 2013-CR-630 and one count each of aggravated
robbery, conspiracy to commit aggravated robbery, and aggravated assault in case
number 2013-CR-635. A jury trial began in case number 2013-CR-630. Following the
State’s proof at trial, Petitioner entered guilty pleas to two counts of aggravated robbery,
one under each case number, and the remaining counts were dismissed. The trial court
ordered Petitioner to serve two twelve-year concurrent sentences.

       Petitioner filed a pro se petition for post-conviction relief, in which he asserted
that his trial counsel was ineffective and his guilty pleas were unknowingly and
involuntarily entered. After appointment of counsel, Petitioner subsequently filed an
amended petition for post-conviction relief, alleging as grounds for relief that: 1) his trial
counsel failed to properly cross-examine the State’s witnesses; 2) his trial counsel
coerced him into entering guilty pleas by advising him that he would receive 30 years’
incarceration if he did not accept the negotiated plea agreement; 3) his trial counsel failed
to properly prepare for trial; 4) his trial counsel failed to reply to his letters and met with
him on only two occasions prior to trial; 5) his trial counsel failed to “push the issue” of
the State’s lack of DNA evidence; 6) his trial counsel failed to raise the issue of self-
defense of a third party; 7) his trial counsel failed to properly attack the credibility of the
witnesses; 8) he was coerced by trial counsel to enter guilty pleas; 9) he was in a “trance”
or in “shock” during the guilty plea hearing and did not understand the plea colloquy; 9)
he was under the influence of marijuana when he entered his guilty pleas; and 10) he
would not have entered guilty pleas if his trial counsel had effectively cross-examined the
State’s witnesses.

        Notably, Petitioner did not assert in either his pro se petition or his amended
petition that the trial court failed to adhere to all of the procedural requirements of Rule
11 of the Tennessee Rules of Criminal Procedure in accepting his guilty pleas. Petitioner
asserts on appeal that the trial court failed to explain the maximum possible punishment
and failed to inquire about the voluntariness of Petitioner’s pleas. Petitioner also argues
that the trial court failed to advise Petitioner that evidence of his prior convictions may be
considered at sentencing. Petitioner did argue these grounds for relief at the post-
conviction hearing without any objection by the State that they were not included in the
post-conviction petition as amended.




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        In Tennessee, to ensure that guilty pleas are voluntarily, knowingly, and
intelligently entered, Tennessee Rule of Criminal Procedure 11 sets forth, in part, the
requirements for guilty pleas.

        (1) Advising and Questioning the Defendant. – Before accepting a guilty
        plea or nolo contendere plea, the court shall address the defendant
        personally in open court and inform the defendant of, and determine that
        he or she understands, the following:

        (A) The nature of the charge to which the plea is offered;
        (B) the maximum possible penalty and any mandatory minimum
        penalty;
        (C) if the defendant is not represented by an attorney, the right to be
        represented by counsel – and if necessary have the court appoint counsel
        – at trial and every other stage of the proceeding;
        (D) the right to plead not guilty or, having already so pleaded, to persist
        in that plea;
        (E) the right to a jury trial;
        (F) the right to confront and cross-examine adverse witnesses;
        (G) the right to be protected from compelled self-incrimination;
        (H) if the defendant pleads guilty or nolo contendere, the defendant
        waives the right to a trial and there will not be a further trial of any kind
        except as to sentence; and
        (I) if the defendant pleads guilty or nolo contendere, the court may ask
        the defendant questions about the offense to which he or she has pleaded.
        If the defendant answers these questions under oath, on the record, and
        in the presence of counsel, the answers may later be used against the
        defendant in a prosecution for perjury or aggravated perjury[.]

Tenn. R. Crim. P. 11(b)(1) (emphasis added). Rule 11 also requires that the trial court
determine that the plea is “voluntary and is not the result of force, threats, or promises,”
other than the promises in the plea agreement. Tenn. R. Crim. P. 11(b)(2). Rule 11
further requires the trial court to inquire “whether the defendant’s willingness to plead
guilty results from prior discussions between the district attorney general and the
defendant or the defendant’s attorney.” Id. Moreover, the trial court must ensure that
there is a factual basis for the plea. Tenn. R. Crim. P. 11(b)(3).

        In addition to these enumerated Rule 11 requirements, Tennessee law requires a
trial court to inform a defendant and ensure that he or she understands that different or
additional punishment may result from his or her guilty plea due to the defendant’s prior
convictions or other factors which may be established after the entry of his plea, and that
                                            -3-
the resulting conviction may be used to enhance punishment for subsequent convictions.
State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1977); State v. McClintock, 732 S.W.2d
268, 273 (Tenn. 1987).

        As noted, the State failed to object to these grounds at the post-conviction hearing
or in its brief on appeal on the basis they were not included in the pleadings, thus we will
review the merits. Petitioner also failed to include in either his pro se petition or his
amended petition that he did not understand that his sentence would be served at 85
percent. The record contains a Petition for Waiver of Trial by Jury and Request for
Acceptance of Plea of Guilty in each case. The plea documents contain a typewritten
statement of the sentence of “ten (10) years to serve in the Tennessee Department of
Corrections at 70 [percent]” for each offense, to be served concurrently with each other.
The length of sentence and percentage of service are stricken through, and “twelve” and
“85” are handwritten over them.

       Petitioner raised this issue at the post-conviction hearing. The State also failed to
object at the post-conviction hearing that this issue was waived. Therefore, it is also
reviewable on the merits.

        At the beginning of the plea acceptance hearing, trial counsel informed the trial
court that Petitioner would be entering guilty pleas and “be sentenced to twelve years on
each, concurrent, set at seventy percent service. . . .” The trial court asked what range
Petitioner was being sentenced, and the prosecutor replied that it was Range II and stated,
“[i]t’s still at seventy percent.” The trial court then asked Petitioner to “step up to the
podium.” The trial court read aloud Tennessee Code Annotated section 40-35-501(k)(1):

        [T]here shall be no release eligibility for a person committing aggravated
        robbery on or after July 1, 2010, until the person has served eighty-five
        percent of the sentence imposed by the court, less sentence earned and
        retained. However, no sentence reduction credit or any other provision
        of law shall operate to reduce below seventy percent, the percentage of
        the sentence imposed by the court, such person must serve before
        becoming release eligible.

        It is my understanding and [trial counsel], correct me if I am wrong, that
        he’s got to serve at least seventy percent of twelve calendar years –

        ....

        – before he would be subject to even be considered?

                                           -4-
       The trial court addressed Petitioner and asked if he understood, and Petitioner
replied, “Yeah.” The trial court then asked Petitioner:

        Court: Now, is this something you want to do or not do?

        [Petitioner]: I agreed to it.

        Court: That is not my question.

        [Petitioner]: Yeah.

        Court: Well, I am going to be going through your rights and if I don’t
        think this is something you are really agreeing to, then I am not going to
        accept it . . . it is my job in this type of situation to determine whether
        you are voluntarily and intelligently giving up your rights upon entering
        these pleas. Do you understand that?

        [Petitioner]: Yes, sir.

       At the conclusion of the guilty plea hearing, the trial court stated:

        Court: All right, I find [Petitioner] then guilty in Count three and
        sentence him to twelve years as a range two offender; that is, as we went
        over earlier, a minimum of seventy percent calendar days of twelve
        years.

        ....

        I find [Petitioner] then guilty of aggravated robbery in Count one and
        sentence him to twelve years as a range two offender, that is concurrent
        with the 635 case.

Post-conviction hearing

        At the post-conviction hearing, Petitioner testified that he was under the influence
of marijuana at the time he entered his guilty pleas. He testified that he “smoked quite a
bit of marijuana” in the Robertson County jail. He testified that he smoked “[p]robably
about three or four grams” of marijuana the morning he entered his pleas. He testified
that as a result, he was unable “to comprehend absolutely everything that was going on . .
. .” He testified that the transcript of the guilty plea hearing shows that the trial judge did
not ask or explain to him: the maximum punishment; whether his plea was voluntary;
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whether any threats or promises were made to him; and whether he was under the
influence of any drugs. Petitioner testified that there was also no discussion of his prior
convictions.

       Petitioner testified that trial counsel failed to properly cross-examine the State’s
witnesses to show that they were not credible. He testified, “as soon as the trial started,
there was [sic] lies already taking place, and I feel like that needed to be proved.”
Petitioner disputed the victim’s testimony that the victim met one of Petitioner’s co-
defendants on a dating website. Petitioner testified that trial counsel told him that he did
not believe the issue “was going to make that big of a difference, whether or not we
discussed that website topic.” Petitioner testified, “there w[ere] lies all through [the
victim’s] testimony.” Petitioner testified that the victim paid his co-defendant, Bailey,
for sex, and trial counsel should have cross-examined her about that. Petitioner testified
that there were inconsistencies in the victim’s statement to police, and a proper cross-
examination of the victim by trial counsel would have shown that he “may have been
guilty of an assault, but that – the [victim’s] statement showed that [Petitioner] never
robbed him.”

       Petitioner testified that trial counsel cross-examined one of the State’s witnesses
about his prior felony conviction and the fact that his gun was stolen; however, trial
counsel failed to cross-examine the witness about his statement to police that the gun was
kept under his mattress and that police found the gun in the attic. Petitioner testified that
another State’s witness gave testimony at trial that was inconsistent with her prior
statement. He testified, “she had a bunch of details that were different” and that she “was
just changing things as she went.” Petitioner testified that the witness initially told police
that she did not know anything about a gun, and that she later told police where the gun
was located.

       Petitioner testified that trial counsel asked the detective in the case why no DNA
analysis or fingerprint analysis was conducted on the weapon, but Petitioner felt that trial
counsel “should have pressed the issue more.”

       Petitioner testified that he was his co-defendant Bailey’s “significant other at the
time.” He went to the victim’s hotel with her to protect her. He testified that “her plan
was to go up there and get his money and leave.” When Petitioner saw the victim
following Bailey, Petitioner “got nervous for her safety,” and he defended her.

        Petitioner testified that he met with trial counsel on two occasions before the day
of trial. Trial counsel advised him of the State’s offer. Petitioner wrote letters to trial
counsel, but he did not get a response. Petitioner testified that during his trial, he was
“just constantly writing notes” to trial counsel. Petitioner testified, “[w]e didn’t have
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time or we didn’t get an opportunity to actually prepare for this trial and sit down and
discuss everything that was – that needed to be discussed.” Petitioner testified that trial
counsel told him that he had not been able to meet with him because he was working on
several other cases.

       Petitioner testified that all of the plea offers he received prior to trial had been for
eight years to be served at 70 percent. After the trial began, he was offered a sentence of
twelve years to be served at 70 percent. Petitioner testified that he did not understand
that he would be serving his sentence at 85 percent until he read the transcript of the plea
hearing. Petitioner felt that he was “tricked into taking a sentence at 85 percent, when the
whole time [he was] thinking it’s 12 [years] at 70 [percent].” Petitioner testified, “I
didn’t sign a twelve-year-sentence at 85 percent, with an opportunity to get 70 percent
good time. That’s not how I was made aware of the sentence.” Petitioner testified that
on the second day of trial, trial counsel advised him not to finish the trial. Trial counsel
explained to him that he could “end up with 30 or 40 years.” On cross-examination,
Petitioner acknowledged that the State had filed a notice of sentencing that indicated a
sentencing range of 12 to 20 years as a Range II offender based on Petitioner’s prior
conviction.

        Trial counsel testified he became employed at the Public Defender’s Office in
Hickman County in 1989. He transferred to the 19th Judicial District Public Defender’s
Office in 1993. Trial counsel estimated that he had represented defendants in “a couple
of hundred” trials. Trial counsel could not recall how many meetings he had with
Petitioner. He testified that he discussed “the details of [Petitioner’s] case” with
Petitioner, including the State’s discovery response. Trial counsel testified, “[t]he
essential elements [of the case] were very straightforward.” He acknowledged that the
State filed a sentencing range notice. Trial counsel provided Petitioner with a copy of the
plea agreement, which he testified, “clearly states . . . sentenced to 12 years in the
Tennessee Department of Corrections at 85 percent . . . .” Trial counsel reviewed the
plea agreement with Petitioner and explained that Petitioner would be eligible to use
good behavior credits to be released after 70 percent. Trial counsel testified that he also
advised Petitioner of the maximum potential sentence.

        Trial counsel testified that the State’s lack of DNA evidence “would have been an
argument to make to the jury. We never got to the argument phase of [trial].” He
testified that the name of the website on which the victim and co-defendant Bailey met
each other “just didn’t matter.” Trial counsel testified that he did not raise the issue of
third-party self-defense because “[y]ou don’t get third-part[y] defense of a co-defendant
in an aggravated robbery.” He testified that in order to claim the defense, Petitioner and
Bailey would have had to testify. Trial counsel understood that co-defendant Bailey

                                             -7-
would have testified that Petitioner hit the victim with a gun and demanded his wallet.
Trial counsel testified that “[t]he leading up [to those actions] is irrelevant.”

        Trial counsel testified that Petitioner asked him on the second day of trial, “Can
we settle this?” Trial counsel spoke to the prosecutor, and relayed an offer of an effective
twelve-year sentence to Petitioner. Trial counsel testified that Petitioner “was prepared to
take that.” Trial counsel did not observe any signs that Petitioner was under the influence
of marijuana. Petitioner’s “speech and manner seemed appropriate.” Trial counsel
testified that the plea agreement he presented to Petitioner said, “10 years at 70 percent.”
Trial counsel changed it to 12 years at 70 percent, “but we wrote 85 over the top of that.”
The change was made after Petitioner signed the document. Trial counsel testified that
he did not “specifically recall” whether he discussed the change with Petitioner, but that
he normally discussed those kinds of changes with his clients. Trial counsel testified that
Petitioner initialed beside the change to the length of the sentence, but “[n]ot specifically
by the [change to] the percentage, no.” The documents reflect that the initials “TN”
appear beside the handwritten “TWELVE (12).”

      We note that the transcript of the post-conviction hearing is approximately 108
pages in length. The post-conviction court’s written order denying relief, while
summarizing the testimony of the two witnesses, only contains the following findings of
fact:

        In this case the court finds that the trial counsel for the petitioner
        reviewed the facts and applicable law in each case with the petitioner,
        consulted with the petitioner on several occasions, and that the petitioner
        both considered and participated in trial strategy.

        Petitioner heard the proof of the state and was given the opportunity to
        consider whether to continue with trial or enter the plea agreement. A
        review of the record reflects that trial counsel did a thorough job of cross
        examination of the State’s witnesses. Further, there is no evidence to
        support the petitioner’s contention that he had used marijuana while
        incarcerated on the day prior to trial or that his ability to understand the
        proceedings w[as] impaired.

Analysis

       When determining the merits of a post-conviction petition, the Post-Conviction
Procedure Act requires the post-conviction court to make written findings of fact and
conclusions of law. A trial court’s final disposition of a petition for post-conviction relief
“shall set forth in the order or a written memorandum of the case all grounds presented,
                                            -8-
and shall state the findings of fact and conclusions of law with regard to each such
ground.” T.C.A. § 40-30-111(b) (emphasis added). The use of the word “shall” clearly
indicates the Tennessee General Assembly intended that the duty of the post-conviction
court to make findings of fact is mandatory. Donald Mays v. State, No. W2003-02761-
CCA-R3-PC, 2004 WL 2439255, at *6 (Tenn. Crim. App. Oct. 28, 2004). Not only do
the post-conviction court’s findings of fact facilitate appellate review but, in many cases,
are necessary for such review. Id. Where the post-conviction court fails to make “a clear
and detailed finding of fact,” either orally or on the record, the appellate court is “at a
complete loss to know the basis of the trial judge’s decision and judgment; assignments
of error and appellate review are seriously frustrated if not completely thwarted by lack
of a definitive finding of fact by the trial judge.” Brown v. State, 445 S.W.2d 669, 671
(Tenn. Crim. App. 1969).

       In the case before us, the record is devoid of several findings of fact and
conclusions of law critical to our review. These include: 1) whether trial counsel
correctly advised Petitioner as to the sentence he would receive under the negotiated plea
agreement; (2) whether Petitioner understood that his sentence would be served at 85
percent; 3) whether trial counsel adequately addressed any DNA issues at trial; 4)
whether trial counsel responded to Petitioner’s letters; 5) whether trial counsel pressured
or coerced Petitioner into pleading guilty; 6) whether trial counsel was ineffective for
failing to raise the issue of defense of a third party; 7) whether the trial court failed to
adequately advise Petitioner of the maximum penalty or that evidence of his prior
convictions may be considered before sentencing; 8) whether Petitioner initialed
handwritten changes to the plea forms; and 9) whether Petitioner suffered prejudice as a
result of any alleged errors at the guilty plea hearing or as a result of any deficient
performance by trial counsel. We also note that the post-conviction court failed to make
any explicit credibility determinations.

        We take this opportunity to point out again that a mere recitation or summary of
the testimony of the witnesses at a hearing is not a “finding of fact” as is required. Such a
summary only sets forth the testimony, which is usually contradictory. A “finding of
fact” is the post-conviction court’s opportunity to fulfill its responsibility to sort through
all the evidence and set forth what actually happened, as opposed to just each witness’s
version of what happened. See Charles Bradford Stewart v. State, No. M2015-02449-
CCA-R3-PC, 2017 WL 2645651, at *14 (Tenn. Crim. App. June 20, 2017), perm. app.
denied (Tenn. Oct. 4, 2017).

       Without sufficient factual findings and conclusions of law, we are unable to
properly address the merits of Petitioner’s claims.



                                            -9-
                                     CONCLUSION

       Accordingly, we reverse the judgment of the post-conviction court and remand for
further proceedings consistent with this opinion. After an order is entered in compliance
with the requirements of the post-conviction statutes and this opinion, the losing party
shall be entitled to initiate an appeal in accordance with the Tennessee Rules of Appellate
Procedure.

                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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