Calvert v. State

• Decision Date: 28 April 2011
• Citation: 342 S.W.3d 477
• Parties: Jason CALVERTv.STATE of Tennessee.
• Court: Tennessee Supreme Court

342 S.W.3d 477

Jason CALVERT

v.STATE of Tennessee.

Supreme Court of Tennessee, at Nashville.

April 28, 2011.

Dumaka Shabazz, Nashville, Tennessee, for the appellant, Jason Calvert.Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; J. Ross Dyer, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

CORNELIA A. CLARK, C.J., delivered the opinion of the Court, in which JANICE M. HOLDER, GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

We granted the defendant's application for permission to appeal in this post-conviction proceeding to determine whether the defendant received ineffective assistance of counsel in conjunction with his guilty pleas to multiple sex offenses, because his counsel did not inform him about the mandatory lifetime community supervision consequence of some of his convictions. After a hearing, the post-conviction court denied relief upon its determination that the defendant's legal representation was competent; the Court of Criminal Appeals affirmed. We hold that the defendant has demonstrated by clear and convincing proof that (1) his counsel's performance fell below the objective standard of reasonableness because counsel did not advise him that, in addition to his effective ten-year sentence, a mandatory sentence of community supervision for life was a consequence of his guilty pleas; and (2) there was a reasonable probability that, but for counsel's failure to properly inform him, the defendant would not have pled guilty and would have insisted on going to trial. We therefore reverse the judgment of the Court of Criminal Appeals and remand this matter to the original trial court for further proceedings consistent with this opinion.

BACKGROUND

Jason Calvert (“Defendant”) was indicted in July 2006 on six counts of sexual battery by an authority figure, Tenn.Code Ann. § 39–13–527 (2006); two counts of providing pornography to a minor, id. § 39–17–911 (2006); two counts of rape, id. § 39–13–503 (2006); four counts of solicitation of a minor, id. § 39–13–528 (2006); and two counts of attempted aggravated sexual battery, id. § 39–13–504 (2006). In response to these charges, Defendant pled guilty on November 14, 2006, to three counts of sexual battery by an authority figure; two counts of providing pornography to a minor; two counts of rape; and three counts of solicitation of a minor.¹ Pursuant to the plea agreement, Defendant was sentenced as a Range I standard offender to three years on each count of sexual battery by an authority figure; nine months on each count of providing pornography to a minor; ² ten years on each count of rape (as a violent 100% offender); and one year on each count of solicitation of a minor. All the sentences were to be served concurrently for an effective sentence of ten years. As a condition of Defendant's plea agreement, all but nine months of the ten-year term were suspended, to be served on probation. In setting forth the possible punishment and the terms of the plea bargain agreement, Defendant's “Petition to Enter Plea of Guilty” (“plea petition”) makes no reference to lifetime community supervision.

Two attorneys jointly represented Defendant in the trial court proceedings that culminated in the guilty pleas. The plea petition and the transcript from the plea hearing reflect that Defendant originally intended to plead guilty in Counts 5 and 6 to aggravated sexual battery instead of rape. However, while Defendant was still engaged in his plea colloquy and the trial court was confirming his sentences, the trial court realized that the proposed sentence was illegal because aggravated sexual battery is an offense for which probation is not available.³ The transcript indicates that a pause took place while defense counsel conferred with Defendant and the prosecutor. One of Defendant's lawyers then indicated to the court a desire to amend the offense from aggravated sexual battery to rape. The trial judge addressed Defendant: “it's still your voluntary decision to plead guilty to the rape charge as it's now going to have to be instead of [a]ggravated [s]exual [b]attery. Do you understand that?” Defendant answered, “Yes.” On the judgment forms ultimately completed for both counts of rape, the box is checked next to the statement, “Pursuant to 39–13–524 the defendant is sentenced to community supervision for life following sentence expiration.” However, the trial court did not inform Defendant about any such lifetime community supervision requirement.⁴ Defendant accepted the terms of the plea petition and served his nine months in jail accordingly.

After his release, Defendant was charged with a violation of his probation. In August 2007, the trial court found Defendant in violation of the terms of his probation and ordered him to serve the entirety of his original ten-year sentence in confinement.⁵

Defendant filed a petition for post-conviction relief on November 9, 2007, and then filed an amended petition on January 18, 2008. The amended petition alleged that Defendant received ineffective assistance of counsel in violation of his rights pursuant to the United States Constitution and the Constitution of the State of Tennessee. Defendant's amended petition enumerated fourteen alleged deficiencies in counsel's performance: pressuring Defendant into taking the plea, informing Defendant that he could not receive a fair trial, using semantics and vague terms, pressuring Defendant to enter a plea under time constraints, failing to inform Defendant of all the consequences of pleading guilty, failing to investigate the facts of the case adequately, failing to inform Defendant of a reasonable trial defense, failing to inform Defendant of the facts and evidence, failing to give Defendant full and adequate advice of his rights, failing to give Defendant full and adequate advice about available strategies or defenses, failing to develop a reasonable trial strategy or defense, failing to file necessary pretrial motions, failing to give sufficient advice for Defendant to make an informed and conscious decision whether to plead guilty or go to trial, and failing to consult with Defendant during proceedings leading up to the guilty pleas.

The post-conviction court conducted a hearing on Defendant's amended petition on February 1 and 5, 2008.⁶ Defendant and one of his defense lawyers from the trial court proceedings (“Lead Counsel”) testified at this hearing.

Defendant testified that, counting meetings at both the county jail and the courthouse, he met with his lawyers six or more times during the case. They provided him with discovery materials and went over the materials with him. Defendant was aware that he “was facing a lot of years” if a jury convicted him on the multiple charges. However, Defendant testified that his lawyers did not talk with him about going to trial, and that one of his lawyers told him that he would not get a fair trial because he was gay. Defendant testified that a motion to reduce bond was the only pretrial motion filed. He also stated that, until he read the transcript from the plea hearing, he was not aware that the burden of proof in criminal proceedings required the State to prove his guilt, and he did not understand the right of confrontation meant that witnesses would actually appear in the courtroom, rather than on videotape. Defendant testified that, if his attorneys had discussed going to trial and explained his rights at trial, that information “definitely would have made [him] make a different decision” about whether to accept or reject the plea agreement.

Concerning events on the day of the plea hearing, Defendant testified there was “a lot of confusion that was going on” regarding the proper classification of the various charges and the length of the sentences. When the trial court explained that amending the rape charge to aggravated sexual battery would render Defendant ineligible for probation, Defendant testified that he said to “go ahead and go with rape” because he was “completely exhausted” and “just ready to end that day.” Although Defendant admitted that he answered “yes” when the trial court asked if he understood the proceedings, Defendant testified that he “was in a fog at the time” because he “c [ould]n't believe [he was] pleading guilty to these charges” and because his “mother was kind of hysterical in the back of the courtroom.” The plea hearing transcript contains no indication that Defendant ever communicated his confusion to the court or that his mother made any reaction that disrupted the proceedings.

Defendant also testified that he felt time constraints on the day of the plea. During his meetings with counsel, court personnel repeatedly interrupted and said that the court was ready for them or that they only had a certain number of minutes left. These interruptions made Defendant feel that he was “very rushed” and faced a “now or never” situation in deciding whether to plead. However, Defendant also testified that his plea hearing “had been a long day” and “really seemed to drag on.”

Defendant testified that he was not made fully aware of the nature and consequences of his pleas. Although Defendant recalled entering a best interest plea, he did not understand the definition of such a plea and felt that counsel “was getting aggravated with” him for asking questions about this kind of plea. While Defendant knew that his name would be placed on the sex offender registry, he did not realize that he would be classified as a “violent” sex offender. He testified that he was told probation would cost approximately $45 a month, but the actual costs turned out to be approximately $345 per month. Defendant also testified that, when he expressed his reluctance to plead guilty to rape, counsel said the differences in charges...