Merritt v. State
| Decision Date | 18 November 2022 |
| Docket Number | W2021-01448-CCA-R3-PC |
| Parties | BRANDON NATHANIEL MERRITT v. STATE OF TENNESSEE |
| Court | Tennessee Court of Criminal Appeals |
Assigned on Briefs October 4, 2022
Appeal from the Criminal Court for Shelby County Nos. C1704303 1702688 Lee V. Coffee, Judge
The Petitioner, Brandon Nathaniel Merritt, pled guilty to attempted rape and sexual battery and agreed to an effective sentence of six years. Pursuant to the plea agreement, the trial court was to determine how the sentence would be served. After the trial court imposed a sentence of full confinement, the Petitioner timely filed a petition for post-conviction relief asserting that he received the ineffective assistance of counsel regarding his guilty pleas and at his sentencing hearing. He also asserted that his guilty pleas were not knowingly and voluntarily entered. After an evidentiary hearing, the post-conviction court denied the petition for post-conviction relief. On appeal, we affirm the judgment of the post-conviction court.
Tenn R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
Shae Atkinson, Memphis, Tennessee, for the appellant, Brandon Nathaniel Merritt.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Fouche, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
In May 2017, the Shelby County Grand Jury indicted the Petitioner for two counts of sexual battery and one count of attempted rape. On March 2, 2018, the Petitioner pled guilty to the offenses of sexual battery and attempted rape, with the other charge being dismissed pursuant to a plea agreement.
At the guilty plea hearing, the State discussed the basic terms of the proposed agreement. First, the State recommended that the Petitioner be sentenced as a Range I, standard offender and receive concurrent sentences of two years for the sexual battery conviction and six years for the attempted rape conviction. Next, the State noted that the parties asked for a separate sentencing hearing for the trial court to decide the manner in which the sentence would be served. Finally, the State affirmed that the Petitioner would be required to register as a violent sex offender and would be subject to community supervision for life.
Upon questioning by the trial court, the Petitioner agreed that he had graduated from college and that he could read and write. He also agreed he had signed the written plea agreement. The Petitioner said that he had no complaints about plea counsel and that plea counsel reviewed discovery with him and went "over those things that the State would try to prove" if the case went to trial.
As relevant to this appeal, the trial court informed the Petitioner that the offense of attempted rape was a violent sexual offense and that he would be required to register as a violent sex offender due to that conviction. The trial court also informed the Petitioner that he would be placed on community supervision for life after serving his sentences. The Petitioner acknowledged he understood the terms of the plea agreement and the rights he was waiving by entering his guilty pleas.
The trial court held a sentencing hearing on June 1, 2018, to determine the manner in which the six-year sentence would be served. At the hearing, the State called the victim of the attempted rape. She testified that on the morning of January 6, 2017, she returned home from driving her son to work. While getting out of her car, she noticed a white truck stopped in the middle of the street in front of her house. After she went inside the house with her dog, she saw the Petitioner get out of the truck and start "messing . . . under the hood." The Petitioner then walked up her driveway.
The victim opened her door to ask if she could help, and the Petitioner asked her for booster cables. She could not find booster cables, and the Petitioner thanked her for trying to help. He started walking back down her driveway.
However, upon nearly reaching the sidewalk, the Petitioner turned around and walked back to the house. Because her dog was trying to get outside, the victim stepped onto the front porch and asked if she could do something else to help. The Petitioner offered to pay her a couple of dollars for gas if she agreed to drive him to the store, saying that he did not know what was wrong with his truck. She "started feeling a little weird" and said she would call her neighbor to help. The Petitioner agreed, and she made the call.
The Petitioner repeatedly thanked her for her help and said he would wait in his truck so she could go inside. As she turned to go inside the house, he grabbed her around the throat and pulled her behind her car, "trying to get [her] to the passenger side of [her] car." Additionally, he was "pulling [her] pants down, and grabbing at [her]."
Eventually, the victim managed to escape and ran inside her house. She called her neighbor and told him to follow the Petitioner. She opened her door and yelled to the Petitioner that he was going to jail. The Petitioner responded either, "'You white b***h,' or 'You crazy b***h.'" He then walked down the driveway as if nothing had happened, started his truck, and left. The victim said that she had been "scared to death" ever since the offense, noting that "[h]e had no remorse, no anything." She asked the court to "please lock him up."
On the Petitioner's behalf, plea counsel submitted letters from Samantha Hammonds and Amanda Young, counselors with Professional Care Services of West Tennessee who had been working with the Petitioner; Caleb Hollingsworth, who had worked with the Petitioner in the insurance business and vouched for the Petitioner's character; and a letter from David Leavell, a senior pastor at Millington First Baptist Church, who stated that the Petitioner had been assigned to power wash exterior walkways and entrances at the church and that he "provided exceptional services" to the church.
Brad Merritt, the Petitioner's father, testified that the charges against the Petitioner shocked him. Mr. Merritt said that the Petitioner was "driven and disciplined," that he had been "raised in church," and that he had "a heart for service." Despite having a "small frame," the Petitioner had excelled in sports in school. The Petitioner was deeply affected when his parents divorced in his late teenage years.
The Petitioner also testified at the sentencing hearing. He stated that he was twenty-nine years old. Although he had been married for six years, the Petitioner noted that his wife was in Puerto Rico because of a "career opportunity." He testified that he was self-employed in a concrete business and that he worked to "resurface pool decks, stain concrete, epoxy coating, [and] things of that nature."
To seek help for his "psychological issues," the Petitioner stated that he met periodically with his pastor, Mr. Leavell and that he received treatment at Professional Care Services. He said that the treatment was helping and that he was also attending "sex and love addiction" meetings.
The Petitioner apologized to the victim of the attempted rape, believing that she and her family felt anger and fear. He also apologized to the court "for adding to the problems."
On cross-examination, the Petitioner acknowledged that "[t]his isn't the first time [he had] done this" and mentioned "another instance" of "[j]ust flirting with a female." He explained that due to his "heavy pornography addiction," he "got into this habit of flirting with random women at gas stations or stores" and convincing them to take a "selfie" with him. As he was "flirting," he would touch the woman's "rear end" without her permission. During his psychosexual evaluation, he said that he had performed the "selfie routine" with women at least ten times. He admitted that he pled guilty to a simple assault after purposefully bumping into a woman "with [his] groin area" in a Kroger grocery store.
The Petitioner acknowledged that he had been arrested previously for marijuana possession, public intoxication, disorderly conduct, and driving under the influence. The Petitioner conceded that it would be difficult for him to continue being in his "decorative concrete" business once he was on the sex offender registry and that he would probably have to find a new job.
The Petitioner conceded that on the same day of the attempted rape, "[t]here was a woman walking down the street that I stopped and talked to and was flirting with." The woman who was the victim of the sexual battery conviction screamed and ran away. Thereafter, the Petitioner "started to head home," but he saw the victim of the attempted rape leaving Walgreens, and he followed her home. He agreed with her version of events, saying that he had "no desire to go against anything that she said[.]"
Upon questioning by the trial court, the Petitioner acknowledged that his prior assault conviction was originally charged as sexual battery and that he was placed on probation for that conviction. The Petitioner said that he successfully completed the probationary sentence.
In sentencing the Petitioner, the trial court found that the Petitioner had committed the two offenses on the same day while on probation for similar conduct, namely the sexual battery charge that was reduced to an assault conviction. The trial court noted that the Petitioner testified at the sentencing hearing "that there [was] only one other instance...
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