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 

08/17/2018
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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 midtrial 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. 
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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 
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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 
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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 postconviction court’s denial of the petition for post-conviction relief is affirmed. 

___________________________________

 D. KELLY THOMAS, JR., JUDGE