IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

December 17, 2013 Session

JEREMIAH R. KEY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 100204 Jon Kerry Blackwood, Judge

No. E2013-00744-CCA-R3-PC - Filed February 14, 2014

Petitioner, Jeremiah R. Key, sought post-conviction relief from his guilty-pleaded

convictions for aggravated robbery, second degree murder, and coercion of a witness. The

post-conviction court denied relief after an evidentiary hearing. On appeal, petitioner raises

the following issues: (1) ineffective assistance of counsel for failure to adequately

communicate with petitioner; (2) ineffective assistance of counsel for failure to ensure that

his guilty pleas were voluntarily entered; and (3) involuntariness of his guilty pleas.

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

ROGER A. PAGE,J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and

NORMA MCGEE OGLE, J., joined.

Forrest L. Wallace, Knoxville, Tennessee, for the appellant, Jeremiah R. Key.

Robert E. Cooper, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Randall

Eugene Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

This post-conviction case stems from petitioner’s guilty-pleaded convictions for

aggravated robbery, second degree murder, and coercion of a witness, for which he received

consecutive sentences of ten years, twenty years, and four years, respectively. Pursuant to

the plea agreement, petitioner entered a guilty plea to second degree murder, a lesser included

offense of the indicted charge of felony murder. The State also dismissed the additional

counts of the indictments in each case.
I. Facts

A. Facts from the Guilty Plea Submission Hearing

At the January 10, 2012 plea submission hearing, the State submitted that its proof

against petitioner in support of the aggravated robbery charge consisted of the victim’s

testimony, in which he would have identified petitioner, although masked, by his “very

distinctive eyes” that were visible through the ski mask. One of the victim’s neighbors

witnessed two individuals in a black Jeep Cherokee who were behaving suspiciously. He

observed them change the vehicle’slicense plate before fleeing the scene. This neighbor also

obtained a partial license plate number from the Jeep that matched the vehicle owned by

petitioner’s brother. Petitioner’s brother gave a statement to police that placed petitioner at

the crime scene. Finally, when questioned about his involvement in a subsequent unrelated

murder, petitioner commented to an officer that he did not commit the murder but that he

robbed the victim in this case.

With regard to the second degree murder charge, the State’s evidence at trial would

have established that the victim, a known drug dealer, was shot and killed. A witness was

present in the victim’s residence when a masked intruder entered and demanded that the

victim lie on the ground. The victim resisted and was shot during the ensuing struggle.

Petitioner’s brother drove him to that location knowing that petitioner’s intent was to rob the

victim. He witnessed petitioner in possession of a mask, gloves, and a silver weapon. The

mask and gloves were recovered, and DNA evidence confirmed that they belonged to and

had been worn by petitioner.

The evidence underlying the charge of coercion of a witness consisted of an

investigator’stestimony with regard to placing petitioner’s brother,Joe Key, undersubpoena,

Mr. Key’s failure to appear in court as directed on the first day of trial, and the summary of

the telephone call that petitioner placed to his grandmother on the night before the trial

began, wherein he encouraged his grandmother to assist Joe Key in leaving the area.

At the plea submission hearing, petitioner acknowledged that he understood hisrights,

that he voluntarily waived his rights, that he had no complaints about trial counsel’s

representation of him, and that he had no questions.

B. Procedural History

Petitioner filed the instant petition for post-conviction relief on August 29, 2012.

Appointed counsel did not file an amendment. The post-conviction court held a hearing on

the petition on February 25, 2013.

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C. Facts from Post-Conviction Hearing

Petitioner testified that he filed the instant petition for post-conviction relief because

he felt “forced” into accepting the State’s plea offer. He stated trial counsel informed him

that his younger brother Joe Key, who had failed to appear as a witness on the first day of

trial, and his grandmother were going to be arrested immediately if he did not accept the

State’s offer.

Petitioner recounted that trial counsel was appointed to represent him at the general

sessions level. He recalled that his robbery case was dismissed following the preliminary

hearing due to a flawed eyewitness identification. He was surprised when he was indicted

because he thought that the dismissal marked the conclusion of the matter. According to

petitioner, trial counsel had never indicated that he could be indicted in criminal court

following the dismissal in general sessions court. Despite his case being dismissed,

petitioner remained in jail due to a detainer against him issued by North Carolina.

Petitioner agreed that he was indicted for robbery on May 3, 2011, and for an

unrelated felony murder on May 31, 2011. Prior to the setting of the first trial, counsel

visited petitioner approximately five or six times at the jail for around twenty to thirty

minutes each time, but he was always accompanied by another person or persons.

Petitioner stated that his defense at the robbery trial, which was scheduled first, was

going to be that he was not guilty of the charges. Trial counsel discussed some of the State’s

evidence against him, namely a mask and gloves that contained his DNA as well as DNA

from others. Petitioner testified that he was not aware of any proof that trial counsel planned

to offer. Moreover, he said that he was not advised about the strengths and weaknesses of

his cases.

Petitioner recalled that prior to trial, the State offered to settle his cases in exchange

for a ten-year sentence for robbery and a twenty-year sentence for second degree murder, but

he declined the offer. On the second day of the trial, the State offered the same agreement

but added a charge of coercion of a witness and an additional four-year sentence for that

offense. He claimed that trial counsel told him that if he did not accept the State’s offer, his

grandmother and younger brother, both of whom were present in court, would be arrested for

coercion and obstruction of justice. He did not have sufficient time to consider the offer, but

he accepted it in an effort to “protect [his] family.” Petitioner stated that he did not want to

accept the offer because he was innocent of the charges.

Petitioner testified that prior to his entering the plea, he and trial counsel reviewed

some of the plea agreement documents. Petitioner said that he had no questions for trial

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counsel at that time. He did not recall reviewing each of the seven pages of the plea

agreement. Petitioner stated that he answered affirmatively during the plea submission

hearing because “if [he] would have answered any different[ly], then [he] wouldn’t have

been able to accept the plea and [his] family would have been locked up . . . .” In sum,

petitioner explained that he felt “let down” because he had been prepared to go to trial.

Petitioner confirmed that trial counsel instructed that if petitioner did not accept the

plea agreement on the second day of trial, the State would have his grandmother and younger

brother arrested. He said that trial counsel conveyed that the State would arrest his brother

on the same charges for which petitioner was arrested. In addition, his grandmother would

be arrested on charges of coercion of a witness and obstruction of justice. Petitioner

maintained that the basis for the charges stemmed from a telephone call he placed on the

night before trial. Petitioner claimed that in the call, he told his grandmother that his brother

did not want to come to court and that he asked her to give his brother some money with

which he could leave the area. Petitioner said that his brother had confided in him during a

visit that the State “was trying to make him say things that he didn’t want to say[] [and] that

he didn’t want to come to court.” Petitioner recalled that when trial counsel explained the

new developments to him, his voice sounded calm.

The State called trial counsel as a witness. Trial counsel testified that he had been a

criminal defense attorney for seventeen years and that he had handled over thirty-six first

degree murder cases and over 150 jury trials. During the course of his representation of

petitioner, trial counsel prepared him for his trial both personally and by use of an

investigator, to whom he entrusted the responsibility of reviewing the evidence with

petitioner. In response to petitioner’s complaint that trial counsel was always accompanied

by someone else, he stated that the first thing he would do when visiting a client in the

presence of a third party was to remind the client that attorney/client privilege extended to

the third party, as well. By doing so, he sought to make the client feel more comfortable

speaking to an investigator.

Trial counsel testified that he prepared petitioner for both of his cases and reviewed

all of the evidence with him, including DNA evidence and witness statements. He recalled

that his opinion was that the State’s case was strong and that he thought petitioner would be

convicted in both cases. As such, he believed that the plea offer was generous, considering

petitioner’s status as a Range II offender. Trial counsel thought, at one time, that petitioner

was going to accept the offer, but petitioner then decided that if he could prevent his brother

from appearing, “that would change the tide.” However, trial counsel opined that even

without the testimony of petitioner’s brother, they were going to lose both cases. Trial

counsel recalled:

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I remember doing voir dire, we were aware [petitioner’s brother] wasn’t there.

Frankly, I remember thinking, now I know why we’re going to trial. And I

remember [the State] telling the Court that this was a critical witness and that

[the State] wanted time – [the State] didn’t want the jury sworn, so we . . .

agreed that we would pick the jury, send them home[,] and the State would

have that afternoon and evening to try to find this witness.

And . . . I met with him and said, “I hope you know what you’re doing.

Because they are going to find [him]. And if they do, God help us.”

Trial counsel stated that the following morning, the State approached him with a

computer disk containing a recording of a telephone call between petitioner and his

grandmother the Sunday night prior to trial, during which he instructed his grandmother to

“get Joe out of town.” Futhermore, trial counsel recalled that when the trial judge saw

petitioner’s brother in the courtroom on Tuesday morning, he was very upset. Pursuant to

the court’s order, Joe Key was placed in handcuffs. Trial counsel retreated to the holding cell

adjacent to the courtroom where he told petitioner that his brother was present and that the

State had a recording of the telephone call he had placed. According to trial counsel,

petitioner reacted with his “[m]outh open like, [‘][O]h.[’] All right. No denial. I mean, you

know, a taped phone call is a taped phone call.”

Trial counsel recalled that at that time, he did not tell petitioner that his brother or

grandmother would be arrested. Before the trial resumed, trial counsel met with the State and

asked for the plea offer to be extended again. Trial counsel was surprised when the State

agreed and only added four years for the coercion charge. He communicated the offer to

petitioner, who, at that point, only knew that his brother was present in the courtroom.

Petitioner asked if his brother would be in trouble for not appearing the previous day, and

trial counsel responded that he would not, pursuant to his discussion with the assistant district

attorney general. Trial counsel explained that because of the last-minute nature of the plea

agreement, he and the State had to seek approval from the trial court. During that

conversation, trial counsel recalled that he asked that Joe Key be released from handcuffs

because, if not, petitioner would later attack his guilty plea by claiming that it was coerced.

He said, “I was very careful about that.” According to trial counsel, petitioner never knew

that his brother had been in handcuffs or that he was in custody.

On cross-examination, trial counsel stated that he prepared for the robbery case by

meeting with petitioner, reviewing the warrant, educating himself about the State’s evidence,

and conducting a preliminary hearing. After the case was dismissed in general sessions

court, trial counsel explained to petitioner “right away” that he could still be indicted in

criminal court. He communicated this in person, as it was his policy to not write letters. The

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State ultimately indicted petitioner on the robbery charge and obtained an additional

indictment for felony murder in an unrelated case.

Trial counselstated that he represented petitioner at the arraignments. The first matter

he undertook was explaining the charges and the ranges of punishments for each charge. He

secured funds for a private investigator and accompanied him to the jail to meet petitioner.

Trial counsel confirmed that although petitioner did not receive a copy of the motion for

discovery, petitioner had an opportunity to review all of the discovery they had received.

Based on his review of the case, trial counsel prepared a “pros and cons” list of the

case to discuss with petitioner. He opined that the list in favor of the State’s case was much

longer than the list in favor of the defense. He reviewed all of the evidence with petitioner.

Together, trial counsel and petitioner decided that he would not testify at either trial because

of his extensive criminal record.

With regard to the plea agreement, trial counsel testified that in his opinion, “when

[petitioner] knew his brother was here, he caved . . . he knew the problem. When he knew

his brother was here, he resigned to it.” He remembered that petitioner’s response to the

State’s having learned of the content of the telephone call was “shock.” When petitioner

accepted the plea offer, trial counsel reviewed the plea documents with him, though “not

word for word.” After the trial court accepted the plea, petitioner was removed from the

courtroom. At that time, the trial court addressed Joe Key and petitioner’s grandmother and

“politely chastised” them for their conduct. Petitioner was not in the room to witness any

interaction between the trial court and his family members.

At the close of the proof, the post-conviction court announced that it found

petitioner’s guilty pleas to be voluntary and that trial counsel was not ineffective. The postconviction court summarized its holding in a written order dated March 4, 2013. This appeal

follows.

II. Analysis

In this appeal, petitioner raises three issues: (1) ineffective assistance of counsel in

failing to adequately communicate with petitioner and advise him of developments in his

case; (2) ineffective assistance of counsel in failing to ensure that petitioner’s guilty pleas

were voluntarily entered; and (3) involuntariness of his guilty pleas.

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A. Standard of Review

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that

his or her “conviction or sentence is void or voidable because of the abridgement of any right

guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.

Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her

factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).

“‘Evidence is clear and convincing when there is no serious or substantial doubt about the

correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,

562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

Appellate courts do not reassess the trial court’s determination of the credibility of

witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245

S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted

to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on

appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d

160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.

1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions

of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d

450, 453 (Tenn. 2001)). As mixed questions of law and fact, this court’s review of

petitioner’s ineffective assistance of counsel claims is de novo with no presumption of

correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

The Sixth Amendment to the United States Constitution, made applicable to the states

through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution

require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,

145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930

(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,

he must demonstrate both that his lawyer’s performance was deficient and that the deficiency

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,

226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that

either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,

126 S.W.3d 879, 886 (Tenn. 2004).

To prove that counsel’s performance was deficient, petitioner must establish that his

attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing

professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,

116 (Tenn. 2006)). As our supreme court held:

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“[T]he assistance of counsel required under the Sixth Amendment is counsel

reasonably likely to render and rendering reasonably effective assistance. It is

a violation of this standard for defense counsel to deprive a criminal defendant

of a substantial defense by his own ineffectiveness or incompetence. . . .

Defense counsel must perform at least as well as a lawyer with ordinary

training and skill in the criminal law and must conscientiously protect his

client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s

performance, this court “must make every effort to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct

from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.

2006) (citing Strickland, 466 U.S. at 689).

To prove that petitioner suffered prejudice as a result of counsel’s deficient

performance, he “must establish a reasonable probability that but for counsel’s errors the

result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing

Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,

petitioner must establish that his attorney’s deficient performance was ofsuch magnitude that

he was deprived of a fair trial and that the reliability of the outcome was called into question.

Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

Strickland’s two-part test also applies to guilty pleas. See Hill v. Lockhart, 474 U.S.

52, 58 (1985). Pursuant to Hill, the issue with regard to guilty pleas is whether, absent

counsel’s deficiency, petitioner would not have pleaded guilty but would have insisted upon

going to trial. Id. at 59.

B. Claims

1. Failure to Adequately Communicate with Petitioner

Petitioner argues in his brief that trial counsel failed to adequately communicate with

him and advise him of developments in his case. In denying relief on this claim, the postconviction court credited the testimony of trial counsel:

Trial counsel testified that he constantly communicated with Petitioner

and kept him informed of the developments in the case. He explained to

Petitioner that his case would be taken to the grand jury on the robbery charge

and that a felony murder charge would be added. Trial counsel further

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testified that he devoted the entire week before trial working with Petitioner

on his case. More importantly, trial counsel explained in his testimony the

evidence against Petitioner and his discussion with him.

The post-conviction court was in the better position to assess the credibility of

witnesses, and we will not disturb the court’s determination in this regard. Dellinger, 279

S.W.3d at 292. Moreover, petitioner has not demonstrated that he was prejudiced by trial

counsel’s alleged failure to adequately communicate with him or apprise him of

developments in his cases. Moreover, even if trial counsel had visited more often, “[b]ecause

. . . petitioner has failed to satisfactorily prove how this lack of communication might have

affected the results of the trial, no relief can be granted on this basis.” Brimmer v. State, 29

S.W.3d 497, 511 (Tenn. Crim. App. 1998). Petitioner is not entitled to relief on this claim

of error.

2. Failure to Ensure that the Guilty Pleas Were Voluntarily Entered

Petitioner further posits that he reluctantly accepted the plea agreement because trial

counsel advised him of his family members’ possible incarceration. To that end, we glean

that he is asserting that trial counsel rendered ineffective assistance of counsel by failing to

ensure that his guilty pleas were voluntarily entered. The post-conviction court denied relief,

stating:

Petitioner was aware that his only hope in light of the overwhelming evidence

was that his brother would not appear. To that end, he devised the scheme to

get his brother out of town. Faced with the reality of his failed ploy, the

Petitioner entered a plea that was very advantageous to him in light of the

evidence.

Trial counsel testified that the State’s plea offer was generous, especially in light of

petitioner’s criminal history. At some point, trial counsel believed that petitioner would

accept the plea, but he later ascertained that petitioner intended to go to trial on the belief that

his brother would not appear to testify. When petitioner learned that his brother had, indeed,

appeared on the second day of trial, he appeared “shocked” and “resigned,” as characterized

by trial counsel. Moreover, trial counsel testified that petitioner never saw his brother in

handcuffs. He also stated that petitioner’s grandmother was never handcuffed. Trial counsel

assured petitioner that his family members would face no legal repercussions. Petitioner’s

testimony that he believed that his family members were subject to impending criminal

charges and incarceration was not credited by the post-conviction court, and we will not

disturb its credibility findings. Dellinger, 279 S.W.3d at 292. Petitioner is not entitled to

relief on this claim.

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C. Voluntariness of Guilty Pleas

Petitioner also advances a free-standing claim challenging the voluntariness of his

guilty pleas. A guilty plea must be entered knowingly, voluntarily, and intelligently. Lane,

316 S.W.3d at 562; see North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v. Alabama,

395 U.S. 238, 242-44 (1969). If a plea is not knowingly, voluntarily, and intelligently

entered, the guilty plea is void because appellant has been denied due process. Lane, 316

S.W.3d at 562 (citing Boykin, 395 U.S. at 243 n.5). To make such a determination, the court

must examine “whether the plea represents a voluntary and intelligent choice among the

alternative courses of action open to the defendant.” Id. “[A] plea is not voluntary if it

results from ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or

blatant threats.’” Id. at 563 (quoting Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.

1993)). Thus, the transcript of the plea colloquy must affirmatively show that a defendant’s

decision to plead guilty was both voluntary and knowledgeable. Id. The trial court must

ensure that the defendant entered a knowing and intelligent plea by thoroughly “‘canvass[ing]

the matter with the accused to make sure that he has a full understanding of what the plea

connotes and of its consequences.’” Id. (quoting Blankenship, 858 S.W.2d at 904).

Petitioner concedes that the plea submission hearing satisfied constitutional muster.

However, he asserts that trial counsel conveyed that his family members would possibly be

incarcerated if he did not accept the plea, which violated the prohibition against use of

coercion. The record does not support this factual allegation.

Moreover, petitioner’s testimony at the post-conviction hearing was in direct conflict

with his testimony at the guilty plea hearing. “A petitioner’s testimony at a guilty plea

hearing ‘constitute[s] a formidable barrier’ in any subsequent collateral proceeding because

‘[s]olemn declarations in open court carry a strong presumption of verity.’” Bruce S. Rishton

v. State, No. E2010-02050-CCA-R3-PC, 2012 WL 1825704, at *17 (Tenn. Crim. App. May

21, 2012) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). In this case, the postconviction court credited petitioner’s testimony during the guilty plea hearing over his

testimony at the post-conviction hearing. In sum,

[t]he evidence does not preponderate against the findings of the

post-conviction court. It appears the petitioner is suffering from a classic case

of ‘Buyer’s Remorse,’ in that he is no longer satisfied with the plea for which

he bargained. A plea, once knowingly and voluntarily entered, is not subject

to obliteration under such circumstances.

Robert L. Freeman v. State, No. M2000-00904-CCA-R3-PC, 2002 WL 970439, at *2 (Tenn.

Crim. App. May 10, 2002). Petitioner is not entitled to relief on this issue.

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CONCLUSION

Based upon the arguments of counsel, the parties’ briefs, applicable legal authority,

and the record as a whole, we affirm the judgment of the post-conviction court.

_________________________________

ROGER A. PAGE, JUDGE

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