                                                                                          08/17/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 10, 2018

             DARAMIS SHARKEY v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
       Nos. 12-02841, 12-02842, 12-02843, & 12-02844     Chris Craft, Judge


                             No. W2017-01961-CCA-R3-PC


The Petitioner, Daramis Sharkey, appeals as of right from the denial of his petition for
post-conviction relief, wherein he challenged the validity of his guilty pleas to three
counts of aggravated rape and four counts of aggravated burglary. On appeal, the
Petitioner contends that he did not enter into his original guilty plea knowingly and
voluntarily because his attorney provided ineffective assistance of counsel by
inappropriately pressuring the Petitioner to enter into a plea deal rather than proceed with
the jury trial. Following our review, we affirm the judgment of the post-conviction court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ALAN E. GLENN
and CAMILLE R. MCMULLEN, JJ., joined.

Eric Mogy, Memphis, Tennessee, for the appellant, Daramis Sharkey.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith; Amy P. Weirich,
District Attorney General; and Melanie Cox, Assistant District Attorney General, for the
appellee, State of Tennessee.


                                        OPINION

                              FACTUAL BACKGROUND

       On May 31, 2012, a Shelby County grand jury indicted the Petitioner for one
count each of aggravated rape and aggravated burglary in three separate indictments, as
well as one count of aggravated burglary in a fourth indictment. On July 1, 2014, the
Petitioner entered an open guilty plea for one count each of aggravated rape and
aggravated burglary in case number 12-02841. The Petitioner pled guilty to the
remaining charges in cases 12-02842, 12-02843, and 12-02844 on November 12, 2014,
and he received a total effective sentence of sixty years’ incarceration on all cases.

       The following facts were stipulated to at the beginning of the guilty plea hearing
on July 1, 2014:1

              On September 4, 2011, . . . [the victim] was in her home alone. . . .
       She heard a noise that sounded like something falling and she went to
       investigate that noise and was met by [the Petitioner] coming out of the
       bathroom where he had come in through a window. And he put his hands
       on her and pushed her across the hall into another bedroom or really walked
       her across the hall backwards into another bedroom where he raped her.

              During the course of the rape[,] she was able to get her cell phone
       and punch a speed dial button on it which dialed her daughter. . . . And her
       daughter . . . called back and when her mother did not answer she became
       concerned and called the land line phone to [the victim’s] home. And that’s
       when [the victim] answered it and . . . [said, “I]n the name of Jesus I’m
       being raped.[”] And her daughter who lives a maximum of five minutes
       walking distance from her home immediately loaded up her family and
       went to her mother’s home.

              When [the Petitioner] grabbed the phone out of [the victim’s] hand,
       she was able to escape and ran . . . out into her yard and hid until her
       daughter arrived. She was taken to the Rape Cris[i]s Center where [a
       doctor] examined her, found her to have gen[ital] injuries including several
       lacerations . . . as well as . . . redness and swelling to that area.

               Fingerprints were obtained from the bathroom window in two
       different areas, the air conditioner outside the bathroom window and from
       the phone that [the Petitioner] touched. And those fingerprints were
       compared to a fingerprint card belonging to [the Petitioner] and were all
       shown to be his fingerprints at the scene. The rape kit collected by [the
       doctor] was sent to the TBI and tested. [The Petitioner’s] DNA was found
       on the vulva swab as well as on a swab on her back where she stated he had
       touched her with his mouth.


1
  We note that the Petitioner’s sole issue on appeal is his claim that trial counsel was ineffective in
reference to case number 12-02841. Therefore, we will only include the underlying facts for case number
12-02841.

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             [The Petitioner] gave a statement to [police officers] admitting that
      he had entered her home on that date and that he was mistaken as to who
      she was or thought he was going to hook up with someone and realized it
      was not the person he intended to see but went ahead and proceeded with
      the sexual act anyway. He confirmed [the victim’s] testimony by saying
      that during that time she continued to pray. He confirmed that the phone
      rang and that she told the person on the phone she was being raped.

       During his guilty plea submission hearing, the Petitioner told the court that trial
counsel had advised him of his rights and that he understood the rights he was waiving by
entering a guilty plea. The Petitioner affirmed that he did in fact commit the crimes of
which he was accused. The court asked the Petitioner the following questions:

      Q. Okay. Let’s talk about [trial counsel] for a minute. [Trial counsel] has
      been working on this case for way more than a year. We were in here
      before and you were given an offer of settlement. You turned that down
      and said you wanted a trial. Now, today we started your trial and you’re
      saying you don’t want a trial. Why is that?

      A. I didn’t want to see my victim come up here suffering. I didn’t want
      her to relive what happened. So I didn’t . . .

      Q. Do you understand that she had to relive it to get ready for trial?

      A. Yes, sir.

      Q. Okay. Has [trial counsel] done everything for you that you wanted him
      to do to get ready for trial?

      A. Yes, sir.

      ....

      Q. Okay. So from what I understand, you’re pleading guilty. You want to
      spare the victim the testimony. You’re pleading guilty because you are
      guilty; is that correct?

      A. Yes, sir.

      Q. Do you have any other questions you want to ask me at all about what
      you’re doing?

      A. No, sir.
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       The Petitioner timely filed a pro se petition for post-conviction relief from the
judgments. Upon appointment of counsel, the Petitioner filed an amended petition,
wherein he alleged ineffective assistance of counsel. A post-conviction evidentiary
hearing was held on September 5, 2017.

        During direct examination, the Petitioner averred that if he had a different attorney
representing him at trial there was “a substantial chance of a different outcome.” The
Petitioner testified that he did not believe his attorney was “trying to help [him] at all[,]”
rather he simply “want[ed] the money.” When asked about deciding to plead guilty mid-
trial to charges from the first indictment, case 12-02841, the Petitioner responded, “To be
honest, . . . I know [I] said I wanted to plead guilty, but . . . that wasn’t me. I promise that
wasn’t me. I promise that wasn’t me. I took it all the way this far just so I can fight it.”
The Petitioner further explained,

              The only reason I [pled] guilty is because like . . . I was trying to
       explain to you, [trial counsel], deceived me. You know, once – he took me
       out of here and took me to the back room back there and started talking to
       me. Telling me if I was you I would go on ahead and sign for this time.
       This is . . . on one of them. On one of them he said because it will make the
       victims look at you as less of a monster and the prosecutor might work out
       a deal, you know. And then by him being my cousin I’m thinking he had
       my best [interests] at hand. So that’s why I had went on and did it because
       I didn’t want . . . [the victims] to look at me as a monster. You know, this
       charge – this stuff ain’t me. I don’t – I don’t do that stuff. I promise I
       don’t do that stuff.

       The Petitioner testified that after listening to the advice of trial counsel, he did not
believe he had any other choice. When asked why he decided to plead guilty, the
Petitioner said that trial counsel “got up in [his] head[,]” “deceived” him, and “tricked”
him. The Petitioner concluded his testimony by asserting that he did not “feel like [he]
even raped anyone.”

        The Petitioner’s trial counsel testified that the Petitioner was his cousin and that he
represented the Petitioner in the charges related to case number 12-02841. Trial counsel
testified that throughout the different stages of this case, the Petitioner gave no indication
that he was having difficulty understanding the proceedings.

       Trial counsel explained that trial had begun when the Petitioner decided to enter a
guilty plea. Trial counsel said that the State was planning to call the victim to testify and
that as the victim was about to walk into the courtroom, the Petitioner “pulled on [trial
counsel’s] coat and told him he wanted to speak with him.” Trial counsel asked for a
recess, during which time the Petitioner informed him that he wished to plead guilty.
                                             -4-
Trial counsel testified that he advised the Petitioner that he was prepared to move forward
with trial and that entering a guilty plea was the Petitioner’s decision. Trial counsel
stated that he fully explained to the Petitioner that he would be entering an “open plea”
with no sentencing recommendation from the State. Trial counsel said that the Petitioner
insisted on pleading guilty. On cross-examination, defense counsel asked trial counsel
about the Petitioner’s reason for wanting to plead guilty mid-trial, and he responded,

              [The Petitioner] said to me that he did not want to put the victim
       through this process again. And he said it three or four times. And he said
       that he’s not a monster. He didn’t, you know, want people to think he was
       a monster. He didn’t want to put the victim through it.

        The transcript of the Petitioner’s guilty plea proceeding was entered as an exhibit
at the post-conviction hearing.

       The post-conviction court subsequently denied the petition. In its order denying
the Petitioner relief, the post-conviction court found that the Petitioner accredited trial
counsel’s testimony over the Petitioner’s. The post-conviction court found that the
Petitioner failed to show either any deficiency in trial counsel’s performance or any
prejudice to the Petitioner by any alleged deficiency. The post-conviction court
determined that the Petitioner’s guilty pleas to all charges were “freely and voluntarily
made, and knowingly and intelligently entered into, with an understanding of the nature
and consequences of his pleas.”

       The Petitioner filed a timely notice of appeal.

                                       ANALYSIS

       On appeal, the Petitioner argues that he received ineffective assistance of counsel
because his trial counsel improperly influenced him to enter his July 1, 2014 guilty plea.
The Petitioner argues that trial counsel coerced him into entering a guilty plea rather than
moving forward with his trial in case number 12-02841. The Petitioner alleges that trial
counsel “engaged in conduct that simply overcame [the] Petitioner’s will.” The
Petitioner further asserts that he did not enter his guilty plea knowingly because trial
counsel instructed him to “answer yes to everything the judge asked [the] Petitioner
during the guilty plea.” The State responds that the Petitioner received effective
assistance of counsel and entered his guilty plea knowingly and voluntarily.

                                  I. Standard of Review

      Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
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Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The
burden in a post-conviction proceeding is on the petitioner to prove his allegations of fact
supporting his grounds for relief by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). 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
(Tenn. 2001). Additionally, “questions concerning the credibility of the witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence
are to be resolved” by the post-conviction court. Id. 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.

                          II. Ineffective Assistance of Counsel

       Criminal defendants are constitutionally guaranteed the right to effective
assistance of counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S.
Const. amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of
ineffective assistance of counsel is made under the Sixth Amendment to the United States
Constitution, the burden is on the petitioner to show (1) that counsel’s performance was
deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “Because a
petitioner must establish both prongs of the test, a failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.”
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been
applied to the right to counsel under article I, section 9 of the Tennessee Constitution.
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. In reviewing
counsel’s conduct, a “fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective
at the time.” Id. at 689. “Thus, the fact that a particular strategy or tactic failed or even
hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is made to trial strategy

                                            -6-
or tactical choices if they are informed ones based upon adequate preparation. Hellard v.
State, 629 S.W. 2d 4, 9 (Tenn. 1982).

       In the context of a guilty plea, the effective assistance of counsel is relevant only
to the extent that is affects the voluntariness of the plea. Therefore, to satisfy the second
prong of Strickland, the petitioner must show that “there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        As an initial matter, we note that the allegations of ineffective assistance of
counsel in the Petitioner’s original post-conviction petition and his amended petition
differ from the issue he raises on appeal. In his amended petition, the petition alleges that
trial counsel was ineffective for the following reasons: (1) trial counsel failed to properly
investigate the Petitioner’s “altered mental status”; (2) trial counsel failed to ensure the
Petitioner was “transferred to an appropriate mental health facility for proper treatment”;
(3) trial counsel failed to properly “research the victim’s claims including the lack of
injuries sustained by client”; (4) trial counsel failed to properly advise Petitioner about
the nature of the charges against him and potential punishments; (5) trial counsel failed to
properly explain the terms of the negotiated plea agreement with the Petitioner; (6) trial
counsel failed to ensure that the Petitioner “had taken his mental health medication to
ensure [that the] Petitioner was of the right mind to enter a guilty plea”; and (7) trial
counsel failed to “properly question police as to [the] Petitioner’s mental status during the
course of the investigation.” Although the Petitioner presented proof on these issues at
the post-conviction hearing, the Petitioner failed to argue any of these issues on appeal.
Thus, these issues are waived. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R.
10(b).

        Moreover, the Petitioner failed to include his claim that trial counsel was
ineffective for improperly influencing his decision to enter a guilty plea for case number
12-02841 in either his original or amended petition for post-conviction relief. Thus, the
Petitioner has waived review of this issue. See Tenn. Code Ann. § 40-30-106(d) (“The
petition must contain a clear and specific statement of all grounds upon which relief is
sought, including full disclosure of the factual basis of those grounds”); see e.g. Rachris
R. Thomas v. State, W2017-00912-CCA-R3-PC, 2018 WL 3387473, at *6 (Tenn. Crim.
App. July 11, 2018) (holding that the issue the petitioner raised on appeal was waived for
failure to include the claim in his original or amended petitions for post-conviction
relief). Waiver notwithstanding, the Petitioner would not be entitled to relief on the basis
of this issue. This issue was developed at the post-conviction hearing, and the State
failed to object to this issue being presented, despite its omission in the original and
amended petitions for post-conviction relief. The post-conviction court considered the

                                            -7-
testimony given during the hearing regarding the Petitioner’s claim, decided that he did
not believe the Petitioner’s will was overridden, and ruled that trial counsel did not
improperly influence the Petitioner regarding his guilty plea for case number 12-02841.
The post-conviction court accredited trial counsel’s testimony over that of the Petitioner,
and the Petitioner failed to meet his burden of demonstrating any deficient performance
or that he was prejudiced by any alleged deficiency in counsel’s advice regarding the
original guilty plea. Therefore, the Petitioner is not entitled to relief.

                                 CONCLUSION

      Based upon consideration of the foregoing and the record as a whole, the post-
conviction court’s denial of the petition for post-conviction relief is affirmed.



                                                     ___________________________________

                                                      D. KELLY THOMAS, JR., JUDGE




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