### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A ugus t 5, 200 8

MON TAR IUS C OX v. ST ATE OF TEN NES SEE

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. P-27843 Jam es M. Lamm ey, Jr., Judge

No. W2008-00190-C CA-R 3-PC - Filed November5, 2009

Petitioner, Montarius Cox, appea ls the dismis sal of his petition for post-convic tion relief in which he all eg ed that his guilty pleas wer e not knowing and voluntary due to ineff ective a ssistance of counsel. Spec ifically, Petitioner contends that he did not understand the sentenc e that he was fa cing when he e n te r e d th e g u il ty p le a s b e c a u s e tria l c o u n s e l f a il e d to a d e q u a te ly e x p lain th e p le a agre ement or the sentenc e to him. After a thorough revie w of the rec ord, we conclude that Petitioner has fa iled to show that his trial counsel re ndere d ineffe ctive assist an ce o f counse l and af firm the judgment of the post-convic tion court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

T H O M A S T. W O O D A LL , J ., delivere d the opinion of the cour t, in which N OR MA M C G EE O G LE and D. K EL L Y T HOMAS , J R ., J J ., joined.
Paul K. Guibao, Memphis, Tenne ssee, f or the a ppellant, Montarius Cox.

Robert E. C o o p er , Jr., Attorney G ener al and Reporter; Rache l West Ha rmon, Assistant Attorney Gene ral; William L. Gibbons, District Attorney Ge nera l; and Muriel Malone, As s istant District Attorney Ge nera l, for the a ppellee, the State of Tenne ssee.

OP IN ION

I. Bac kgr ound

On Feb ru ar y 5, 2002, Petitioner was indicted f or one c ount of attempted fir st degree preme ditated murder , one count of aggra vated kidnapping, a nd four counts of aggravate d robbery. The tra nscript of the ple a hea ring is not included in the rec ord on appeal; however , trial counsel provided the f

ollowing testim ony at the post-convic tion hearing a bout the fact u al basis for the

c ha rg e s:

This is a case wher e a young w oman was a bducted, put in the trunk of he r ca r at gunpoint. The ca

r wa s then rolled i nto a lake, as she was nea rly drowning, she, by-2-

the gra ce of

God, kicked ope n the trunk and swam to safe t y as t h e car sank to the bott o m o f th e la k e

. M r

. Co x w a s th e n o b s e r v e d o n th e c a me r a u s in g th e victim’s

cre dit card - her A TM car d. And when he was arr ested, seventy-two hour s later, he provided a

full confe ssion.

On April 28, 2003, Petitioner entere d guilty pleas to attempted first degr ee pr emeditated murder, f or which he was sentenced to forty years, especially aggr avate d kidnapping, for whic h he was sente nced to f

orty yea rs, and thre e counts of a ggravated robbe ry, for which he w as sentenc ed to twenty year s for eac h count. The trial court or dere d the sentenc es to be served conse cutively for an ef fe ct i ve sente nce of

one hundre d and forty year s. Petiti oner the n filed this timely petiti on for p o st-conviction re lief on Nove mber 5, 2003, a lleging that his guil ty pleas we re not knowing or voluntary due to the ineffe ctive assist ance of t rial counsel. Counsel was appointed, a nd a hea ring was held on the petition.

II. Po st -C onv ic ti on H e ar ing

P et i t i o ner te stified that at the time of his pleas he had ca ses in both state and fe dera l court involving basically the same fac ts. He said that he was suffe ring from mental health problems at the time of his arre st in the present c ase, a nd he still suffers f rom tho s e proble ms. Petit ioner testified that when he was eight or nine ye ars old, he be gan see ing doctors for me ntal health issues, and a s a tee nag er , h e s p en t time at Charter La keside a nd St. F ranc is Hospital. He said that he w as diagnosed as being para noid sc hizophre nic, and he had beha vioral problems. He said that he wa s
a lso de pr e sse d a ndha vin g s uic ida l th ou gh ts. P e t iti on e r t e sti fi e d th a t hi s “ pa rano ia ” make s it

dif fi c ult fo r h im t o c omm un ic a te wi th o the rs . H e a dmi tt ed th at his me nta l he a lth iss ue s w e re re vie we d in gener al sessions court, a nd although he wa s found to ha ve a mental defe ct, he was de emed c ompetent to stand trial. Petitioner further admitted that the doctor who evalua ted him found that he unde rstood the cha rges a gainst him and that he see med ca pable of assisting his attorney. Petitioner testified that he a dv ise d tria l c ou ns e l of his me nta l he a lth iss ue s, a nd that he sp ok e to c ou ns e l a bo ut i t e ve ry tim e the y w e nt t o c ou rt . H e fe lt tha t tria l c ou ns e l sh ou ld ha ve sp e nt mor e tim e famil iari z ing him se lf wi th Petitioner’s mental hea lth recor ds.

Petitioner testified that he enter ed the open plea beca use he lost the case i n fe d er al co urt inv olv ing the sa me fa c ts, a ndtr ia l c ou ns e l to ld h im that he wo uldbe se nte nc e d to fe de ra l priso n if he p led gu il ty in stat e c ou rt . H e sa id that c ou ns e l a lso tol d h im that he wo uldbe se nte nc e d to tw e nty -f ive ye ars a t e igh ty- fi ve pe rc e nt andthat he c ou ld se rv e his state se nte nc e c on c ur re ntl y w ith his feder al sentenc e. The ref ore, he felt that counse l t h reatened him into acc epting the plea. Pe tit ion e r e xp la ine d th a t he wa nte d to se rv e his tim e on bo th his fe de ra l c a se a ndthe pr e se nt c a se in fede ral prison beca

use he wanted to be closer to his ailing mother

. He said that trial counsel ne ver
a dv ise d h im tha t he fa c e d a se nte nc e of

on e hu nd re d a ndfo rt y y e ars by a llo wi ng the tr ia l c ou rt to decide his se ntence , and counsel told him that the court would show merc y if h e p l ed g u i lty. Howeve r, Petitioner admitted that he told the trial c ourt during his plea he aring that no one had ma de any assur ance s as to how much time he would r ece ive or whe re the sentenc e would be serve d. He

a lso tol d th e c ou rt

that he und e rs too d the ple a a nd his ri gh ts. Pe tit ion e r fe lt tha t hi s me nta l he a lth issues preve nted him f

rom working with trial counsel to unde rstand the plea. H e testified that at the sentenc ing hearing, he told the trial court a nd counsel that he did not want to acc ept the plea

.-3-

Tria l c ou ns e l te sti fi e d th a t Pe tit ion e r r e c e ive d a me nta l he a lth e va luatio n a t c ou ns e l’ s r e qu e st in Ju ne of 20 02

. He no te d that Pe tit ion e r re c e ive d a tot a l of thr e e me nta l he alt h ev aluat ion s. Pe tit ion e r w a s f

ou ndc omp e te nt t o s ta ndtr ia l a nda ssist in hi s defens e . T ri a l c ou ns e l sp ok e wi th Petitioner about the ca se more tha n fiftee n times, and th ey t al k ed ex tensively about whe ther Petitioner wanted to go to trial. Counsel ultimately told him that it was his decision. Tria l counsel te sti fi e d th a t th e Sta te ’s ini tia l pl e a of fe r w a s se ve nty -f

ou r y e ars . H e state d:

Mr . Co x d id no t w a nt t o a c c e pt the se ve nty -f ou r- ye ar o ff

e r. He did n’ t w a nt t o g o to trial; he didn’t want the off er; a nd, there fore , in June of 2002, the c ase w as re set for tr ia l. I n M arc h of 20 03
, e ve ntu a lly Mr

. Ma nis a nd the n Mr . A nd e rs on , w ho we re his la wy e rs in f

e de ra l c ou rt

ne go tiate d a

se ttl e me nt - po ssibl y thir ty- fi ve , mayb e fo rt y year s in feder al court. And if Mr. Cox wer e to plead g u i l t y i n fede ral c ourt to that forty-ye ar se ntence , then the st ate charge s would be dis missed; and he f ailed to plead guilty in federa l court and w as convic ted.

After Petitioner failed to plea d guilty in federa l court, the State’s offe r to dismiss t he state c harge s
was re voked. Trial counsel testified that Petitioner’s options wer e then to go to trial or plea d guilty.

Tria l c ou ns e l te sti fi e d th a t he pr ov ide d Pe tit ion e r w ith dis c ov e ry a ndre vie we d it wi th h im. He al s o communicated w ith Petit ioner’s attorney in his fede ral c ase. The y exchanged discove ry materia ls, including mental health eva luations. Trial counsel testified tha t he discussed Petitioner’s rights with him, and Petit ioner wa s able to assist in making decisions. They also discussed the proof in the case , including the victim’s statement. Petitioner told trial counsel that his co nfession wa s
coer ced, a nd they filed a

motion to s uppress the statement. Trial counsel testified that Petitioner’s guilty pleas were enter ed on the day of the suppression hea ring. He sa id that Petiti oner ha d alre ady been c onvicted in fe dera l court and kne w that he wa s fac ing a life sente nce.

Trial counse l testified that Petitioner wanted to se rve his time in a Tenne ssee f acility in order to be c los e to his fa mil y. He sa id that Peti tio ne r ch os e to en te r t he ple a s to the state c ha

rg e s b e c a us e of wha t happene d in fede ral court. Trial counsel told Petitioner that he would rec eive a sentenc e of no less than twenty-f

ive yea rs. He sa id that he “pr obably” told Petitioner that if he e xpresse d

remorse and acce pted responsibil ity for his conduct, the judge m ight be inclined to give him a lesse r
se nte nc e . H e didno t pr omi se Pe tit ion e r a tw e nty -f ive -y e ar s e nte nc e . T ri a l c ou ns e l te sti fi e d th a t it was obvious from the sentenc ing tr anscript that Petitioner had no remorse for his crimes. Counsel said that he made no promises to Petiti oner a bout whether

the state a nd fede ral sente nces w ould run

concur rently. He did a dvise Petitioner that, knowing the judge’s sente ncing philosophy, there wa s a l ik e li h o o d th a t th e s tate s e n te n c e w o u ld ru n c o n s e c u ti v e ly to th e f e d e r a l s e n te n c e

. T rial counse l also advised Petitioner that if he showed no remorse , the judge would “likely hammer him.” Trial counsel testified tha t Petiti oner unde rstood his constituti onal rights, and that he indicated that he

un de rs too d th e ple a s. Pe tit ion e r a lso tol d the jud ge that no on e ma de a ny a ssu ranc e s r e ga rd ing his fede ral sente nce. Counsel testified that during their conve rsations, Petitioner never displayed any signs of mental hea lth problems.

III. Stand ard of Re view-4-

A petitioner see king post-conviction relief must establish his allegations b y clea r and

c on vin c ing e vid e nc e

. T. C.A

. 40 -3 0- 21 0( f)

. Th e tr ia l cou rt ’s a pp lic a tio n of the la w to th e fa c ts i s revie wed de novo, without a presumption of corr ectne ss. Fields v. State, 40 S.W.3d 450, 458 (Te nn. 2001). A c laim that counsel render ed ineffec tive assistance is a mixed question of fa ct and law and there fore also subject to de novo revie w. Id.; State v. Burns, 6 S.W.3d 453, 461 (Te nn. 1999).

When a petitioner see ks post-conviction relief o n t h e basis of ineffe ctive assistanc e of counsel, he must establish that counsel’s pe rformance fell below the range of compe tence demande d of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In additi on, he must show that co u n s el ’s ineff ective pe rformance actua lly adverse ly impacted his defe nse. Strickland v. Wa shington, 466 U.S. 668, 693, 104 S . Ct. 2052, 2067, 8 0 L

. E d

. 2 d 674 (1984). I n
re vie wi ng c ou ns e l’ s p e rf

or ma nc e , th e dis tortio ns of hin ds igh t must be a vo ide d, a ndthi s Co urt w ill

n o t s ec o nd-guess c ounsel’s dec isions regarding tria l strategies a nd tactics. He llard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)

. The reviewing court, there fore
, should not conclude that a particular a ct or omission by counsel is unreasonable me rely be cause the strategy w as unsucc essful. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged err ors shou l d b e j u d g ed fr om counsel’s pe rspec tive at the time they were made i n light of all the fa cts and c ircumstance s at that time. Id. at 690, 104 S. Ct. at 2066.
A petitioner must satisfy both prongs of the St rickland te st before he or she may pre vail on a cla im of ineffe ctive assistanc e of c ounsel. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997)

. Th a t is, a pe tit ion e r mus t no t on ly sh ow that his c ou ns e l’ s pe rf orma nc e fe ll be low accept able standards, but that such pe rformance was pre judicial to the petitioner. Id. Failure to satisfy either prong will result in the denial of r elief. I d. Acc ordingly, this C ourt nee d not addre ss one of the components if the petitioner fa ils to establish t he other . Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. In ca ses involving a guilty plea, the petitioner must show prejudice by demonstrating that, but fo r c ou ns e l’ s e rro rs, he or sh e wo uldno t ha ve ple a de d g uil ty b ut w ou ld h a ve ins ist e d o n g oin g to trial. See Hill v. Lockha

rt, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991)

.
IV . A nal ys is

Petitioner contends that he r ece ived the ineffe ctive assistance of counsel beca use he did not understand the “impact of the sentenc e to be imposed if he pled guilty to the cha rges.” He a

rgues that he wa s su ff

e ri ng fr om s e ri ou s me nta l il lne ss at th e ti me of th e ple a s a ndwa s u na ble to

un de rs ta nd the c on se qu e nc e s o f the ple a a gr e e me nt. Pe tit ion e r f

urthe r c on te nd s th a t tria l c ou ns e l di d not adequately explain the plea s or sentenc e to him and that counse l told him that the trial court would “have merc y” on him and sente nce him to “twe nty-five ye ars at eighty-five pe rce nt.”
At the post-conviction hea ring, trial counse l testified that Petitioner had a total of three mental health eva luations, and he wa s found compete nt to stand trial and assist in his defense. Counsel testified that during their conve rsations, Petitioner never displayed any signs of menta l health proble ms. Trial counsel spoke with Petiti o n er about the ca se more tha n fiftee n times, and they talked e xtensively about whe ther Petitioner wa nted to go to trial. They also discussed-5-

Petitioner’s rights. Trial counsel testified t hat he pr ovided Petitioner with discovery a nd revie wed it with him . They a lso discussed the proof in the c ase, inc luding the victim’s statement.

Trial counse l testified that Petitioner chose to e nter the pleas to the state c harge s because of his convictions in f

eder al court. Trial counsel told Petitioner that he would rec eive a sentenc e of no le ss tha n tw e nty -f

ive ye ars . H e sa id that he “ pr ob ably ” tol d Peti tio ne r that if he e xp re sse d r e mor se and ac cepte d responsibility for his conduct, the judge m ight be inclined to give hi m a lesser sentenc e. He did not promise Petitioner a twe nty-five- year sentenc e. Tria l counsel testified that it was obvious from the se ntencing tra nscript that P eti tioner had no r emorse f or his crimes. Counsel said that he made no p ro m i s es to Petitioner about whethe r the state and fede ral sente nces w ould run

concur rently. He did advise Petitioner that, knowing t he judge’s sentenc ing philosophy, there was a likelihood that the state sente nce w o u l d run conse cutive to the fe dera l sentence . Trial counse l testified that Petitioner understood his constitutional rights, and he indicated that he unde rstood the pleas. Petitioner also told the judge that no one made a ny assura nce r egar ding his feder al sentenc e.

Pe tit ion e r ad mit te d tha t he kne w he wa s ent e ri ng a n ope n ple a wi th the jud ge to d e c ide his sent en ce s

. He a lso admitted that during the guilty plea hearing, he told the trial court that no one

ma de a ny a ssu ra nc e s a s to ho w muc h tim e he wo uldre c e ive or ho w h e wo uldse rv e his se nte nc e s. He a lso tol d th e c ou rt

that he un de rs too d th e ple a s a ndhis ri gh ts.
The post-c onviction court fo u n d that this was an “atrocious” c ase a nd that there was no ine ff e c tiv e a ssi sta nc e of

c ou ns e l. T he c ou rt

fu rthe r not e d tha t cou ns e l “di d ev e ry thi ng he po ssi bly could to help this indivi dual . . .” The post-conviction court fo u n d t h at there was nothing in the

rec ord to indicate tha t Petiti oner w as “suf fering from any mental disorder,” and the court stated that Petitioner was the one “making the de cisions.”

Ba se d o n th e re c or d, we c on c lud e that the e vid e nc e do e s not pr e po nd e rate a ga ins t the po stconviction court’s determination that petitioner failed to establish that counsel’s pe rformance was ineffe ctive and that his guil ty pleas we re unknow i n g an d involuntary as a r esult of counse l’s perf ormanc e. The judgment of the post-convic tion court is affirmed.

___________________________________ THOMAS T. WO ODALL, JU DGE