                                                                                          06/05/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 21, 2017

               STATE OF TENNESSEE v. MARTIN E. HUGHES

                Appeal from the Criminal Court for Hamblen County
                No. 15CR284        Alex E. Pearson, Presiding Judge
                      ___________________________________

                            No. E2016-01415-CCA-R3-PC
                       ___________________________________


The Petitioner, Martin E. Hughes, pled guilty to two counts of aggravated assault;
introducing contraband into a penal institution; facilitation of possession of a schedule II
controlled substance; possession of marijuana with the intent to sell or deliver; possession
of drug paraphernalia; a second offense of driving under the influence of an intoxicant;
possession of a firearm while intoxicated; and vandalism of property valued under $500.
The Petitioner received an aggregate five-year sentence, with credit for time he had
served in prison and the remainder of the sentence to be served through the community
corrections program. The Petitioner violated the terms of his alternative sentence, and he
was sentenced to serve the remainder of the five years in prison. The Petitioner then filed
a petition for post-conviction relief. At the hearing on the petition, the Petitioner sought
to establish that he had received the ineffective assistance of counsel and that he was
entitled to withdraw his guilty pleas as not knowingly and voluntarily entered based on
newly discovered evidence in the form of a victim recanting an earlier statement. The
post-conviction court found that the Petitioner was not entitled to relief because he
received the effective assistance of counsel and because the victim’s testimony at the
hearing established that the material elements of her statement to police were accurate.
On appeal, the Petitioner argues that a delay in the post-conviction proceedings
attributable to the State resulted in the loss of a witness’s testimony and that his due
process right to present his post-conviction claims was violated. After a thorough review
of the record, we conclude there is no basis to disturb the Petitioner’s guilty pleas, and we
affirm the judgment of the post-conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which TIMOTHY L.
EASTER and J. ROSS DYER, JJ., joined.

Jonathan Sevier Cave, Greeneville, Tennessee, for the appellant, Martin Ellison Hughes.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Dan E. Armstrong, District Attorney General; and Connie G. Trobaugh, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                               OPINION

                        PROCEDURAL AND FACTUAL HISTORY

        The Petitioner entered his guilty pleas on January 21, 2014, in Hamblen County.
As relevant to this appeal, the Petitioner’s aggravated assault convictions were based on
an incident in which he pointed a rifle at his ex-girlfriend and her daughter. According to
a letter from the supervisor of the community corrections program, a violation warrant
was signed on March 12, 2014, after the Petitioner was arrested for multiple aggravated
assaults committed in Hawkins County. The Petitioner waived a revocation hearing.1
His community corrections sentence was revoked on October 14, 2014, and his sentence
of five years in confinement was reinstated. He was ultimately convicted of the charges
which were the basis of the revocation. See State v. Marty E. Hughes, No. E2015-01907-
CCA-R3-CD, 2016 WL 7428733, at *1 (Tenn. Crim. App. Dec. 23, 2016) no perm. app.
filed (vacating sentences based on violation of the right to counsel at sentencing and
remanding for the opportunity to file a new motion for a new trial).

       On March 20, 2015, the Petitioner filed a petition for post-conviction relief,
seeking to overturn his guilty pleas based on the ineffective assistance of counsel and on
newly discovered evidence. He alleged that the statements of the two victims of the
Hamblen County aggravated assaults had been changed by law enforcement and that his
attorney improperly advised him to plead guilty. He also raised errors with the
revocation procedures and with the conditions of his confinement.

        1
           While the issue is not raised on appeal and the Petitioner at the post-conviction hearing
specifically stated that he did not seek a new revocation hearing, we note that we have concerns regarding
the circumstances of the Petitioner’s waiver of the revocation hearing. According to the Petitioner’s
allegations and the testimony of the Petitioner and the supervisor of the community corrections program,
the Petitioner was advised by the community corrections officer that he could either waive the revocation
hearing and serve his sentence or request a hearing and attorney. When the Petitioner asked for the
advice of counsel regarding the waiver of the hearing, he was told that if he requested counsel, he would
no longer be able to waive the hearing and his sentence could be increased to the maximum allowed by
law. While the post-conviction court found that the Petitioner “ultimately had a hearing,” the transcript of
that hearing in the record shows that the Petitioner was not represented by counsel but simply had a
colloquy with the trial court regarding a motion he filed for a hearing and regarding the basis of his
revocation.
                                                   -2-
        The post-conviction court appointed counsel to represent the Petitioner.2 On
October 7, 2015, the State moved to dismiss the petition based on the statute of
limitations. The record contains the post-conviction court’s order documenting the
Petitioner’s complaint that his first post-conviction attorney refused to have contact with
him and mandating that the attorney receive a copy of the Petitioner’s complaint. On
February 1, 2016, the post-conviction court dismissed the petition based on the
limitations period because the Petitioner had failed to assert any basis for finding that the
petition was timely filed. The Petitioner objected to the dismissal of his post-conviction
petition, asserting that his mail was being thrown away at the jail, that his first two
attempts to file handwritten post-conviction petitions were “lost, destroyed, or thrown
away,” and that his outgoing legal mail was recovered on two occasions from a trashcan.
On February 19, 2016, the post-conviction court entered an order allowing the post-
conviction action to proceed and appointing new counsel for the Petitioner.

       The Petitioner’s new counsel amended the post-conviction petition, asserting that
due process should toll the statute of limitations, that the pleas were not knowingly and
voluntarily entered because the Petitioner’s decision was based on law enforcement’s
malfeasance in changing witness statements, and that he received the ineffective
assistance of counsel when his attorney advised him to plead guilty.

        The Petitioner’s post-conviction hearing was held on June 24, 2016, and the court
first addressed the issue of timeliness. The Petitioner testified that he first attempted to
file a post-conviction petition on October 22, 2014. He introduced into evidence an
envelope with a handwritten date and testified that the handwritten date was his only
means of tracking his mail in the local jail. The hearing transcript reflects that, although
missing from the record on appeal, the contents of the envelope were also introduced.
The post-conviction court found that the Petitioner attempted to file a timely petition and
accordingly proceeded to consider the merits of the Petitioner’s claims.

       The Petitioner’s aggravated assault convictions were based on displaying a rifle to
the two victims, the Petitioner’s ex-girlfriend and her teenage daughter, and causing them
to reasonably fear imminent bodily injury. The Petitioner alleged that his trial counsel
did not share discovery with him and that his plea was based on a statement from the
victims which had been either coerced or altered by law enforcement.

       The Petitioner testified that in late May or early June 2014, his ex-girlfriend
visited him in jail and asserted she had never made the statement that he had pointed a
gun at her and threatened her. He identified the statement as one which had been “read to

       2
          The post-conviction court later found that the performance of the Petitioner’s first post-
conviction attorney “was unsatisfactory.”
                                               -3-
[him] in open court.” The Petitioner testified that he pled guilty based on the State’s
anticipated evidence as outlined in his ex-girlfriend’s statement. The Petitioner further
testified that the delay occasioned by his inability to file a post-conviction petition due to
the jail’s negligence and that the further delay occasioned by his first post-conviction
counsel’s refusal to contact him caused him to lose the testimony of Steve Johns, who
died in “late May.” The year in which Mr. Johns died was not specified. The Petitioner
asserted that Mr. Johns could have testified about the circumstances of the crime and
could have confirmed that the Petitioner did not make a threatening statement and was
not found with a weapon. We note that, at the plea colloquy, the Petitioner stated that he
was not arrested with the rifle but it was “found … in the yard later.” According to the
Petitioner, Mr. Johns could, moreover, have testified that the Petitioner’s ex-girlfriend
told him during a jail visit that she never made the statement in question.

        At the hearing, the Petitioner was shown the statement that his ex-girlfriend made
to law enforcement. According to the statement, the Petitioner came up his ex-
girlfriend’s driveway at around 11:30 p.m. on April 12, 2012, and she asked him to leave.
The Petitioner then started “mumbling,” and she and her daughter, who had been in the
doorway, retreated into the house as he approached. The two victims discussed calling
the police, then heard a tapping on the glass part of the door. The Petitioner “was
standing there aiming a gun in [their] direction.” The Petitioner’s ex-girlfriend stated that
the Petitioner had undergone changes since becoming addicted to crack cocaine, that he
was “mentally unstable,” and that she thought “he was going to kill us” and was in fear
for herself and her daughter.

        The Petitioner then testified that he had never seen his ex-girlfriend’s statement to
police prior to the post-conviction hearing. Instead, he referenced another statement that
was “read in open court and that appeared on the front page” of the newspaper. This
statement apparently quoted him as having said he would “blow[] the baby out of” his ex-
girlfriend’s daughter, who was pregnant.

        The Petitioner reiterated that he never received a hard copy of the statement made
to law enforcement in discovery but acknowledged that trial counsel reviewed the
statement with him and that he decided to plead guilty based on the statement. He
testified that he decided that he should plead guilty even if he was not guilty of the
charges because he anticipated that the State would introduce the statement at his trial.
The Petitioner acknowledged that at the plea hearing, he agreed that the discovery
materials were a fair indication of the State’s case against him, but he explained that he
was “just saying ‘yes’ to everything.”

      The Petitioner stated he was not told the full consequences of his plea and did not
understand them. The Petitioner did not deny that he was told at the plea hearing that if
                                            -4-
he violated the terms of his community corrections, he could be resentenced and serve
time in prison. He stated that he accepted the plea agreement because he thought the
State would be able to use the statement purportedly made by his ex-girlfriend.

       The Petitioner’s ex-girlfriend testified that she made a statement to Detective Bob
Ellis on April 13, 2012. She identified the statement, and she confirmed that her
statement to Detective Ellis was true. However, she clarified her statement by saying that
while she “probably” told Detective Ellis that the Petitioner “might have mumbled,” she
did not believe that the Petitioner actually said anything to her. She stated that the
Petitioner’s mouth was moving, but she did not hear him say anything.

       The Petitioner’s ex-girlfriend acknowledged visiting him in jail around April
2014, but she did not recall telling him about a statement she made which was untrue.
She testified, however, that the account of events published in the newspaper was “blown
out of proportion.” She did not know the source of the statement which appeared in the
newspaper that the Petitioner had threatened to “blast the baby out of” her pregnant
daughter, but agreed that the newspaper account was “exaggerated.”

       The Petitioner’s ex-girlfriend’s daughter, who was sixteen or seventeen at the time
of the assault, stated that she could hardly recall the events of the night and never gave a
statement to the police. She recalled that some portion of the story which was printed in
the newspaper was not true. She did not know who had made the statements to the
newspaper.

        The Petitioner’s trial counsel testified that the Petitioner had wanted to dispute the
two aggravated assault charges because he did not believe that the victims would testify
against him. The Petitioner contested the statement which his ex-girlfriend gave police.
The prosecution offered a plea agreement which included pleading guilty to these charges
and serving a three-year sentence on them which was concurrent with a three-year
sentence for introducing contraband into a penal institution. The bulk of the Petitioner’s
sentence was to be served on community corrections. The Petitioner chose to plead
guilty to the assault charges because they were part of the plea package. Trial counsel
testified that he did not specifically recall reviewing discovery with the Petitioner but that
it was his normal practice to do so, and he agreed that he told the trial court at the plea
hearing that he had gone over the discovery with the Petitioner “many times.”

        Larry Yount, the District Supervisor for the community corrections program,
testified regarding the circumstances of the Petitioner’s waiver of the revocation hearing.

       The post-conviction court denied relief. The court found that the Petitioner had
presented nothing to impeach the credibility of the victims or to indicate they were not
                                            -5-
telling the truth. The post-conviction court further found that trial counsel had reviewed
the discovery, including the Petitioner’s ex-girlfriend’s statement to police, with him.
The court found that trial counsel discussed the consequences of the plea with the
Petitioner. The post-conviction court concluded that trial counsel’s performance was not
deficient, that the pleas were knowingly and voluntarily entered, and that the Petitioner
was not entitled to relief.

                                           ANALYSIS

       On appeal, the Petitioner now asserts that he was denied his due process right to
present evidence which would support his claims for post-conviction relief, pointing to
the death of Mr. Johns while post-conviction proceedings were pending. He asserts that
he is entitled to have his convictions set aside because the State occasioned the delay that
resulted in a due process violation. The State, in its response, conflates the Petitioner’s
due process argument on appeal with his argument in front of the post-conviction court
that his late-filed post-conviction petition was entitled to due process tolling. The State
argues that the Petitioner was granted the relief he requested, making his argument moot.
The State also notes that the Petitioner received a full and fair hearing and that the
evidence did not establish that he received the ineffective assistance of counsel or that his
pleas were not knowing and voluntary.

       A petitioner is entitled to post-conviction relief when a conviction or sentence is
“void or voidable because of the abridgment of any right guaranteed by the Constitution
of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. The
petitioner bears the burden of proving the allegations of fact in the petition by clear and
convincing evidence. T.C.A. § 40-30-110(f). Evidence is clear and convincing when the
correctness of the conclusions drawn from the evidence admits no serious or substantial
doubt. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009).

       The findings of fact made by a post-conviction court are conclusive on appeal
unless the evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465
(Tenn. 2010). This court may not substitute its own inferences for those drawn by the
post-conviction court, and questions concerning the credibility of witnesses, the weight
and value of the evidence, and the factual issues raised by the evidence are to be resolved
by the post-conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001).
A claim of ineffective assistance of counsel raises a mixed question of law and fact which
this court reviews de novo. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). The trial
court’s conclusions of law are reviewed under a purely de novo standard with no
presumption of correctness. Id.



                                            -6-
       We observe initially that the Petitioner testified that Mr. Johns witnessed the
victim’s alleged statement that law enforcement altered or coerced her statement to
police. However, the Petitioner at no time presented the post-conviction court with the
argument that the proceedings were unreasonably delayed by the State and that this delay
amounted to a due process violation which prejudiced him through the loss of the
witness.

       “A ground for relief is waived if the petitioner personally or through an attorney
failed to present it for determination in any proceeding before a court of competent
jurisdiction in which the ground could have been presented” except when it is based on a
new constitutional right requiring retroactive application or if it was not presented due to
State action which constitutes a constitutional violation. T.C.A. § 40-30-106(g). This
court generally does not consider issues which were not presented to the post-conviction
court and are raised for the first time on appeal. See Butler v. State, 789 S.W.2d 898, 902
(Tenn. 1990); see also Johnny O. Clark v. State, No. W2001-02856-CCA-R3-PC, 2002
WL 1841630, at *7 (Tenn. Crim. App. Aug. 8, 2002) (“Issues not presented in a post-
conviction petition and raised for the first time on appeal are waived.” (citation omitted));
State v. Townes, 56 S.W.3d 30, 35 (Tenn. Crim. App. 2000), overruled on other grounds
by State v. Terry, 118 S.W.3d 355, 359 (Tenn. 2003). While this court has reviewed
issues when they were not raised in the petition but presented to the post-conviction
court, we have has also refused to review issues raised for the first time on appeal. See
Timothy Lamont Thompson v. State, No. M2015-00846-CCA-R3-PC, 2016 WL 496996,
at *4 n.1 (Tenn. Crim. App. Feb. 9, 2016), perm. app. denied (Tenn. June 23, 2016)
(citing cases where appellate review was granted to an issue raised in post-conviction
hearing but denied when the issue was not raised at the hearing).

       We conclude that the issue here was waived. The post-conviction court was not
given the opportunity to make any factual determinations regarding the length or cause of
any delay or regarding any prejudice which may have accrued to the Petitioner. We note
here that the Petitioner cites no authority for granting a new trial based on the violation of
a due process right to present evidence in a post-conviction hearing which was
occasioned by a delay in the proceedings. Instead, the Petitioner cites to cases that stand
for the proposition that a post-conviction petitioner may have a due process right to
present a claim to the post-conviction court, as the Petitioner here was able to do. See
Reid v. State, 197 S.W.3d 694, 702 (Tenn. 2006) (“Due process requires only that a
petitioner be provided an opportunity for the presentation of claims at a meaningful time
and in a meaningful manner.”); Burford v. State, 845 S.W.2d 204, 210 (Tenn. 1992).

       The Petitioner in the case at bar did not present the post-conviction court with an
opportunity to make any findings regarding the delay, its cause, or the prejudice, if any,
occasioned by the delay. Moreover, the Petitioner cannot demonstrate prejudice because
                                            -7-
his ex-girlfriend’s testimony at the hearing was that her statement to Detective Ellis was
true in all material respects.3 The proof at most showed that a newspaper printed an
inaccurate account of the assaults and that the victims acknowledged that the newspaper
account was incorrect. Mr. Johns may have been able to impeach the credibility of the
Petitioner’s ex-girlfriend regarding her statements at the jailhouse but could not have
contradicted her sworn affirmation that the Petitioner pointed a rifle at the victims on the
night of the offense, causing them to fear imminent bodily injury. While we accordingly
note that the Petitioner cannot demonstrate prejudice, we conclude that the issue is
waived for failure to present it to the post-conviction court.

       The post-conviction court found that trial counsel was not deficient and that the
pleas were knowing and voluntary because trial counsel reviewed the victim’s statement
to Detective Ellis with the Petitioner and because the Petitioner acknowledged that he
was aware of the contents of the statement, which his ex-girlfriend affirmed was true at
the hearing, at the time he entered his pleas. The Petitioner does not contend that the
post-conviction court erred in determining that his trial counsel was not deficient in his
representation, see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011), or that his pleas
were knowingly and voluntarily entered, see Blankenship v. State, 858 S.W.2d 897, 904
(Tenn. 1993). We accordingly affirm the denial of relief.

                                              CONCLUSION

         Based on the foregoing analysis, we affirm the judgment of the post-conviction
court.




                                                ______________________________________
                                                JOHN EVERETT WILLIAMS, JUDGE




         3
           The post-conviction court specifically found that the victims may have been upset that the
Petitioner was imprisoned and that they may have told him something “outside of court or…when [he
was] in some room with them,” but that their testimony under oath was consistent with the discovery that
the Petitioner received.
                                                 -8-
