Lewis v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 23, 1997
• Docket: 03C01-9704-CR-00132
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED AUGUST 1997 SESSION December 23, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

MARCUS N. LEWIS, ) No. 03C01-9704-CR-00132 ) Appellant ) ) KNOX COUNTY V. ) ) HON. RAY L. JENKINS, STATE OF TENNESSEE, ) JUDGE ) Appellant. ) (Post-Conviction) ) )

For the Appellant: For the Appellee:

Leslie M. Jeffress John Knox Walkup 1776 Riverview Tower Attorney General and Reporter 900 S. Gay Street Knoxville, TN 37902 Peter M. Coughlan Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

Randall E. Nichols District Attorney General

Robert L. Jolley, Jr. Assistant District Attorney City-County Building, Suite 168 400 Main Avenue Knoxville, TN 37901

OPINION FILED: ___________________

AFFIRMED PURSUANT TO RULE 20

William M. Barker, Judge OPINION

The appellant, Marcus N. Lewis, appeals as of right the dismissal by the Knox

County Criminal Court of his petition for post-conviction relief. On appeal, he argues

that the trial court erred in dismissing his petition without an evidentiary hearing.

Pursuant to Tennessee Court of Criminal Appeals Rule 20, we affirm the trial court’s

order of dismissal.

Appellant was indicted for first degree premeditated murder and felony murder

for the 1992 robbery and murder of Michael Yeary. As part of a plea agreement, the

appellant pled guilty to second degree murder. He also consented to an amendment

to the indictment to include a charge of especially aggravated robbery, to which he

also pled guilty. 1 The agreement recommended a sentence of twenty-five (25) years

on each count to be served consecutively for an effective sentence of fifty (50) years

as a Range I offender. On April 5, 1993, the trial court accepted the plea agreement

and sentenced appellant accordingly.

On February 7, 1996,2 appellant filed a pro se petition for post-conviction relief

alleging the ineffective assistance of counsel and that his plea was coerced. After the

appointment of counsel, the petition was amended to include two factually specific

grounds. The amended petition alleged that appellant’s guilty plea on the amended

offense of especially aggravated robbery was coerced because the trial court failed to

adequately advise the appellant about waiver of the right to a grand jury proceeding

on that charge. Furthermore, the petition alleged that counsel was ineffective for

failing to object to the trial court’s inadequate explanation of that right.

1 Appellant’s guilty pleas were entered as best interest pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 17 L. Ed. 2d 162 (19 70).

2 Appellant’s petition was timely filed under our supreme court’s ruling in Arnold C arter v. State , No. 03S 01-961 2-CR -00117 (Tenn . at Knox ville, Septem ber 8, 19 97). Und er the pre vious po st- conviction act, appe llant had thre e years fro m the date of his conviction to file a post-c onviction p etition. Tenn. Code Ann. §40-30-102 (repealed 1995). Because that time frame had not expired when the 1995 Post-C onviction A ct took e ffect, app ellant had o ne year fro m its eff ective da te, May 10 , 1995, in w hich to file his petition. Carter, Slip. op. at 6.

2 Prior to the submission of proof at the evidentiary hearing, the State moved for

dismissal of the petition, asserting that appellant’s claims relating to the amendment of

the indictment did not allege a constitutional violation and that the remaining claims

were not supported by the requisite factual allegations. See Tenn. Code Ann. §40-30-

206(d) (Supp. 1996). After hearing the arguments of counsel, the trial court dismissed

appellant’s petition and later entered a written order of dismissal.

A review of the record indicates that the trial court did not err in failing to hold

an evidentiary hearing. The transcript of the guilty plea hearing clearly reflects that the

trial court fully explained and advised the appellant about his right to grand jury review

of the especially aggravated robbery charge. The transcript from that hearing

indicates that the trial court explained the right of grand jury review to the appellant on

three separate occasions during the hearing, that counsel explained it to appellant in

open court, and that appellant conferred with his counsel privately on several

occasions. Near the conclusion of the guilty plea hearing, the court made a final

explanation to ensure the appellant’s understanding. Appellant’s affirmative

responses to the trial court’s questions indicated an unequivocal waiver of the right to

grand jury review in exchange for the plea agreement.

The remaining grounds of ineffective assistance of counsel and coercion were

not supported by the requisite factual basis and were properly dismissed. Tenn. Code

Ann. §40-30-206(d) (Supp. 1996). Although appellant had the benefit of counsel, the

original grounds for relief were not amended to include particular factual allegations.

Moreover, the trial court noted that any testimony the appellant could offer at a

hearing would be contradictory to his previous statements at the guilty plea hearing

and, therefore, insufficient to sustain his allegations by clear and convincing evidence.

See Tenn. Code Ann. §40-30-210(f) (Supp. 1996). We agree.

Finding that no error of law was committed by the trial court and that an opinion

would have no precedential value, the dismissal of appellant’s post-conviction petition

is affirmed pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

3 _______________________________ William M. Barker, Judge

____________________________ Gary R. Wade, Judge

____________________________ Paul G. Summers, Judge