State v. Turner

• Decision Date: 20 September 1995
• Citation: 919 S.W.2d 346
• Parties: STATE of Tennessee, Appellee, v. James Howard TURNER, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 346

919 S.W.2d 346

STATE of Tennessee, Appellee, v.James Howard TURNER, Appellant.

Court of Criminal Appeals of Tennessee at Nashville.

Sept. 20, 1995.

Davidson County, Walter C. Kurtz, Judge (Aggravated Kidnapping and Murder Second Degree).

John E. Herbison, Nashville (Appeal Only), Edward M. Yarbrough, Nashville (Trial Only), Christine A. Freeman, Nashville (Trial Only), for Appellant.

Charles W. Burson, Attorney General & Reporter, Charlotte H. Rappuhn, Assistant Attorney General, Victor S. Johnson, III, District Attorney General, John C. Zimmerman, Assistant District Attorney General, Nashville, for Appellee.

OPINION

JONES, Judge.

The appellant, James Howard Turner, was convicted of two counts of aggravated kidnapping and one count of accessory before the fact to murder in the second degree following his pleas of guilty to those offenses.The trial court imposed a sentence of confinement for forty-five (45) years in the Department of Correction in each count.The three sentences are to be served concurrently.

Four issues are presented for review.The appellant contends that:

1) [T]he trial court erroneously decided that the State had rebutted a presumption of unconstitutional vindictiveness with regard to prosecuting attorneys' recision of a pretrial plea offer favorable to the Defendant, which offer was rejected by the Defendant prior to trial as a result of prior counsel's proven ineffectiveness.

2) [T]he trial court erroneously refused to permit withdrawal of Defendant's pleas of guilty.

3) [The] application of Tennessee Code Annotated § 40-35-117(c) to this Defendant offends equal protection guaranties of Article 1, § 8 of the Constitution of the State of Tennessee and/or the Fourteenth Amendment, § 1, to the United States Constitution.

4) [T]he sentence imposed by the trial court is excessive.

The judgment of the trial court is affirmed.

On December 8, 1980, the Davidson County Grand Jury indicted the appellant, Sam John Passarella, and Lloyd Earl Carroll, Jr., for two counts of aggravated kidnapping.The victims were Elizabeth R. Hudson and Monty Allen Hudson.Ms. Hudson was released unharmed.Mr. Hudson was murdered.On July 24, 1981, the Davidson Grand Jury indicted the appellant for two counts of aggravated kidnapping and one count of murder in the first degree.

The state made an offer of settlement to the appellant prior to trial.If the appellant entered pleas of guilty to lesser included offenses, the state agreed to recommend that the trial court impose a sentence of two (2) years.The appellant rejected the offer upon the advice of counsel.A jury convicted the appellant of two counts of aggravated kidnapping and one count of murder in the first degree.The jury sentenced the appellant to life in the Department of Correction for murder and confinement for forty (40) years in the Department of Correction in each count of aggravated kidnapping.

The appellant moved the trial court for a new trial following his conviction.One of the grounds was the denial of his constitutional right to the effective assistance of counsel.The trial court, finding that trial counsel advised the appellant to reject the plea bargain agreement without adequately informing him of "all the aspects of the case and of the risks involved in rejecting the plea," granted the appellant a new trial.The state appealed the judgment of the trial court.This Court affirmed the trial court's decision to grant a new trial.State v. James Howard Turner, Davidson CountyNo. 83-287-III(Tenn.Crim.App., Nashville, August 7, 1984), per. app. denied (Tenn.1984).

Defense counsel and the district attorney general discussed the settlement of the three offenses following the appeal.The district attorney general made an offer of twenty (20) years, the minimum punishment for aggravated kidnapping.The appellant rejected the offer.The appellant then moved the trial court to require the district attorney general to reinstate the original offer of settlement, two (2) years.The trial court ordered the district attorney general to reinstate the original offer of two (2) years.This Court, holding that the trial court abused its discretion, reversed the judgment of the trial court.State v. Turner, 713 S.W.2d 327(Tenn.Crim.App.), cert. denied, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 360(1986).

The appellant subsequently sought habeas corpus relief in the United States District Court for the Middle District of Tennessee.The District Court ordered the district attorney general to reinstate the original offer of settlement unless he could overcome a presumption of vindictiveness.Turner v. Tennessee, 664 F.Supp. 1113, 1126(M.D.Tenn.1987).The Sixth Circuit Court of Appeals affirmed the District Court.Turner v. Tennessee, 858 F.2d 1201(6th Cir.1988).The Sixth Circuit held that the district attorney general was required to reinstate the original offer unless it could establish that its failure to do so was "not the product of prosecutorial vindictiveness."858 F.2d at 1209.The United States Supreme Court granted the writ of certiorari.Tennessee v. Turner, 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559(1989).The Supreme Court entered a summary order and remanded the case to the Sixth Circuit for further consideration in view of its decision in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865(1989).The Sixth Circuit in turn remanded the case to the District Court for reconsideration in view of Smith.

The District Court abandoned the prosecutorial vindictiveness analysis following remand.The court held that the appropriate remedy was to require the State to reinstate the original offer of two (2) years.Turner v. Tennessee, 726 F.Supp. 1113, 1117-18(M.D.Tenn.1989).The Sixth Circuit agreed with the district court that Smith did not effect the remedy.Turner v. Tennessee, 940 F.2d 1000-01(6th Cir.1991).However, the Sixth Circuit reinstated the "vindictiveness" analysis.The Sixth Circuit said that "the case[should] be returned to the state forum where the prosecution may rescind its original plea offer only upon overcoming a presumption of vindictiveness."940 F.2d at 1002.The United States Supreme Court denied certiorari.Tennessee v. Turner, 502 U.S. 1050, 112 S.Ct. 915, 116 L.Ed.2d 815(1992).The district court subsequently entered an order requiring that the trial court conduct a hearing to determine if the district attorney general could overcome the presumption of vindictiveness.

The trial court held an evidentiary hearing pursuant to the order of the District Court.The court concluded that the district attorney general overcame the presumption of vindictiveness.The appellant subsequently entered pleas of guilty to the three offenses as previously indicated.

I.

A.

The appellant was faced with the option of pleading not guilty, guilty, or nolo contendere.¹Pleading not guilty and going to trial was not a viable option.The state's case against the appellant was overwhelming.As previously stated, the appellant went to trial and was convicted of (a) murder in the first degree and sentenced to life and (b) two counts of aggravated kidnapping and sentenced to serve forty years for each count.

Although the state was not required to engage in plea bargaining with the appellant, ² defense counsel requested an offer of settlement.The state subsequently made alternative offers.First, the state agreed to recommend an aggregate sentence of twenty-five years if (a)the appellant entered a plea of guilty to two counts of aggravated kidnapping and one count of accessory before the fact to murder in the second degree, and (b)the appellant would agree to forfeit the credit for the time he spent in jail before he was granted a new trial.Second, the state agreed that the appellant could plead guilty to two counts of aggravated kidnapping and one count of accessory before the fact to murder in the second degree without a recommendation of punishment.The appellant was not required to forfeit the jail credit he had amassed if he opted for the second offer.

The appellant was represented by a seasoned and able defense attorney.Counsel provided the appellant with a copy of the letter containing the state's alternative offers.The appellant and counsel had numerous discussions about the two offers.Counsel advised the appellant that he would explain the ramifications of each offer, but the appellant had to determine which offer he wanted to accept.Both agreed that the appellant could not risk going to trial given the overwhelming evidence of his guilt.

The appellant accepted the offer to plead without a recommendation as to sentence so that he could receive credit for the time he had previously served.In other words, the appellant chose to gamble on the sentence that the trial court might impose.Apparently, the appellant thought that the trial court would impose a sentence in the vicinity of thirty years.The credit for time served would make a sentence of thirty years more beneficial than a twenty-five year sentence without the credit.

The appellant entered pleas of guilty to two counts of aggravated kidnapping and one count of accessory before the fact to murder in the second degree ³ without a recommendation of punishment at the submission hearing.Later, the trial court sentenced the appellant to an aggregate sentence of forty-five years at the conclusion of the sentencing hearing.

B.

When the appellant announced his intention to enter the pleas of guilty, the trial court was required to determine whether the pleas were being voluntarily, understandingly, and knowingly entered.⁴Pursuant to Rule 11(c),Tennessee Rules of Criminal Procedure, and our Supreme Court's decision in State v. Mackey, ⁵the trial court was required to personally address the appellant in open court and explain the following:

a) the nature of the offenses to which the pleas are offered;⁶

b) the mandatory...