Phillips v. Johnson, Case No. 3:15-cv-1039

• Decision Date: 27 September 2017
• Docket Number: Case No. 3:15-cv-1039
• Parties: JARROD PHILLIPS, Petitioner, v. DEBRA K. JOHNSON, WARDEN, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

JARROD PHILLIPS, Petitioner,
v.
DEBRA K. JOHNSON, WARDEN, Respondent.

Case No. 3:15-cv-1039

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

September 27, 2017

Chief Judge Waverly D. Crenshaw, Jr.
Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits. Petitioner filed the Petition (ECF No. 1) and a Traverse (ECF No. 49). Respondent filed the state court record (ECF No. 27) and the Answer/Return of Writ (ECF No. 28).

Phillips pleads the following Grounds for Relief:

GROUND ONE: "As a general rule, a trial judge may correct an illegal, as opposed to a merely erroneous sentence at any time, even if it has become final." State v. Burkhart, 566 S.W. 2d 871, 873 (Tenn. 1978); Davis v. State, 313 S.W. 3d 751, cert. den. (2010), WL 3321488; Hart v. State, 21 S. W 3d 901, 902 (Tenn. 2000). The challenge to Petitioner's sentence is not that he could plead guilty to a sentence of thirty-two (32) years for a Class A felony. It is abundantly clear that the State of Tennessee's position is that a Class A felony sentence "range" is from "not less than 15 years to not more than 60 years." [Tenn. Code Anno. Section 40-35-111 (b)(J)]

However, the Sentence Reform Act of 1989 specifically provides that sentences fall under one of three categories, and this condition is based on the number and severity of his priors and the offense for which the defendant is found guilty. The Petitioner is found guilty of 2^nd degree murder. He had one prior for a Class C felony, for which he received probation.

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The fact that ordinarily, considering the relevant requirements of the law applicable to "Range I" sentences, is that because he had only one ''prior" offense, his sentence range is "not less than 15 nor more than 25 years" [Tenn. Code Anno. 40-35-112(a)(J) But, the usurpation of due process is to be compared to the other relevant fact that Petitioner received a sentence within Range II, which the State of Tennessee describes as a ''best interest plea", of 32 years for 2^nd degree murder.

The sentence he received is challenged because of the denials of due process attendant to the guilty plea hearing which resulted in his guilty plea. Petitioner would add however, that the essential question is latent in the nature of the guilty plea, that resulted in him being sentenced outside Range I. The Sentencing Reform Act of 1989 factors governing sentences in the state of Tennessee for a Range I sentence, provide that Petitioner's sentence may fall within one of three categories of Range I, Range II or Range III, depending on his priors and the validity of a waiver of the defendant's right to be sentenced according to the lawful Range. T.C.A. § 40-35-210(b). See State v. Ashby, 823 S. W. 2d 166 (Tenn. 1991). Further, for a Class A sentence for the offense of 2nd degree murder, to exceed 25 years it must fall in Range II or Range III. Range II sentences begin at 25 years to 40 years. According to law, petitioner had to be sentenced as a Range I offender, unless he was informed he was being sentenced as a Range II or Range III offender felony class, for 2nd degree murder, even though Range II "multiple" offender requires ''2-4 priors", according to the Sentence Reform Act. [T.C.A. § 40-35-106(a)].

GROUND TWO: ''A 'knowing' waiver is one that is "made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." State v. Stephenson, 878 S. W 2d 530, 544-45, citing, Fare v. Michael C., 442 US. 707 (1970); North Carolina v. Butler, 441 U.S. 369 (1979). In petitioner's case, there is no evidence on the record that he waived his rights knowingly and intelligently, as there was no discussion of the nature of the "best interest" sentence's illegality that was being waived. Further, the 32 year sentence at 100% is equivalent to a LIFE sentence in 2009. Life sentences in Tennessee equal thirty-six calendar years with a minimum of twenty-five years before release eligibility. {T.C.A. §§ 40-28-116; 40-35-501 (h)(l): "Release eligibility for each defendant receiving a life sentence of imprisonment for first degree murder shall occur after service of sixty (60%) of sixty (60) years less sentence credits earned and retained by the defendant, but in no event shall a defendant sent to imprisonment for life be eligible for parole until

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the defendant has served a minimum of twenty-five (25) full calendar years of the sentence.... "

In Tennessee, "... waiver will not be presumed where there is no evidence ... to indicate that the appellant was made aware of the issue. " See also United States v. Young, 73 F. Supp. 2d 1014, 1024 (N.D. Iowa 1999); State v. McClintock, 732 S. W. 2d 268 (Tenn. 1987); State v. Mackey, 553 S. W. 337 (Tenn. 1977); Boykin v. Alabama, 395 US 238, 89 S.Ct. 1709. In Mackey, supra, the court found that under Boykin v. Alabama, a defendant waives numerous constitutional rights upon a plea of guilt. These rights cannot be waived unless there is an affirmative showing that the guilty plea was intelligent and knowingly made.

The affirmative showing can only be met by the trial court's questioning and advising the accused of the significant consequences of a guilty plea. In Tennessee, Mackey imposed on trial court's even stricter standards than those mandated by the gold standard in Boykin, which included specific warnings and advice which the defendant must receive as part of his plea. See Tenn. Rule of Criminal Procedure Rule 11. See also Brady v. United States, 397 US. 742, 747 (1990). Best interest was written at some point in time on the judgment form, but the 4 comers of the form do not contain any signature or proof that Rule 11 was complied with. According to Rule 11, T.R.Crim. P., a sentence is a form of trial... as such the Defendant's right to be heard, to have the sentence of "best interest" explained to him, to have the "waiver" explained to him. A defendant cannot waive rights he didn't know he had. Cf. Taylor v. State, 2013 WL 6797398, citing, State v. Muse, 967 S. W. 2d 764, 768; Tears v. State, 2013 WL 6405734 (12-6-13). T.R. Crim. P. 11 (b)(J)(H)(l).

Petitioner submits that the sentencing judge did not "insure that the plea was voluntary". Id. T.R. Crim. P. 11 (b)(2). This omission constitutes a denial of due process of law. Petitioner is not contending that he could or could not be sentenced to the "statutory minimum and maximum sentences for a particular sentencing range...: See Phillips v. State, No. M2013-02026-CCA-R3-HC; 4-2314) Petitioner[sic] claim is that no one explained the real meaning of his so-called "Best Interest" plea and especially the meaning of his waiving his right to be sentenced within the Range II sentence range for a conviction of 2nd degree murder.

Tennessee judicial system has strong legal structure for substantive and procedural due process in order for a defendant to plead guilty, in particular to the particular plea known as a ''best interest" plea

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outside the sentence range provided by law for the defendant. See State v. McClintock, 732 S.W. 2d 268 (Tenn. 1987) In this case, the state's prosecutor was the only source for which any reference to a ''best interest plea" was made:

Judge, on his plea of guilty to-- I think he is going to plead this as a best interest plea of guilty of second degree murder. The defendant would also waive his range of punishment on that for a total sentence of 32 years at 100 percent.

[pg. 8, Ins. 4-8, Guilty Plea Hearing Transcript, Case No. 2009-D-3454; Criminal Court for Davidson County, Tennessee, Division IV]

The State claims "A defendant who is a multiple offender shall receive a sentence within Range II which is 25 to 40 years for a Class A felony. Tennessee Code Annotated § 40-35-106 ©[sic], - 112(b)(l)." However, the law requires that a "multiple offender must have that classification found by the court beyond a reasonable doubt", (Id.), and the district attorney general was required to file a statement that he believes the defendant should be sentenced as a multiple offender" See T.C.A. § 40-35-202(a)

GROUND THREE: Petitioner had not received constitutionally effective assistance of counsel during the penalty phase in part because of Defense Counsel's failure to adequately investigate and present mitigating circumstances during the penalty hearing.

The issue of ineffectiveness of counsel goes directly to sentencing. One of the most important functions of the defense lawyer is to represent the client zealously at the sentencing hearing. Cf Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527 (2003): [counsel's failure to investigate and present mitigating circumstances during the penalty phase deprived defendant of effective assistance of counsel]. A defendant can be sentenced within Range II only if he is found to be a "multiple offender", or is found to have committed an especially aggravated offense. T.C.A. § 40-35-202(b)(2). The Petitioner's trial attorney Public Defender Ms. Dykes, the State's attorney and the trial Court are all state actors. In Coffman v. Bomar, 220 F.Supp. 343, the court held that "any default of court appointed counsel in Tennessee criminal case must be attributed to State in testing application of Fourteenth Amendment". U.S.C.A. Const. Amend 14. Petitioner plight fell under either a "mitigated" offender or at the most a "standard" Range I offender.

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GROUND FOUR: A guilty plea must be voluntarily, understandingly and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709 (1969); State v. Mackey, 553 S. W. 2d 337 (Tenn. 1977); Lane v. State, 316 S. W. 3d 555, 562 (Tenn. 2010). A plea is not "voluntary" if it results from ignorance, misunderstanding ...." Blankenship v. State, 858 S.W. 2d 897. In that sense, petitioner's sentence was not voluntary.

Petitioner was by law a "Range I" offender, even facing the charge of 1st degree murder. When he

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