Womac v. State

• Decision Date: 02 July 2018
• Docket Number: No. E2017-00660-CCA-R3-PC,E2017-00660-CCA-R3-PC
• Citation: Womac v. State, No. E2017-00660-CCA-R3-PC (Tenn. Crim. App. Jul 02, 2018)
• Parties: JENNIFER WOMAC v. STATE OF TENNESSEE
• Court: Tennessee Court of Criminal Appeals

JENNIFER WOMAC v. STATE OF TENNESSEE

No. E2017-00660-CCA-R3-PC

COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

February 27, 2018 Session

July 2, 2018

Appeal from the Circuit Court for Meigs County

No. 2009-CR-55A

Jeffrey Wicks, Judge

The petitioner, Jennifer Womac, appeals the denial of her petition for post-conviction relief, which petition challenged her 2012 guilty-pleaded conviction of second degree murder.In this appeal, the petitioner contends that her guilty plea was not knowingly and voluntarily entered, pointing to deficiencies in the plea colloquy, and that she was denied the effective assistance of counsel.Discerning no error, we affirm the denial of post-conviction relief.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Jonathan S. Edwards, Oak Ridge, Tennessee, for the appellant, Jennifer Womac.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Assistant Attorney General; Russell Johnson, District Attorney General; and Lauren Bennett, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

In 2009, the Meigs County Grand Jury charged the petitioner with one count of first degree premeditated murder for her role in the death of her father, Grady Nichols, Jr.In February 2010, the State filed notice pursuant to Tennessee Rule of Criminal Procedure 12.3 that it intended to seek the death penalty, specifically alleging that the petitioner employed co-defendant"James L. Landers to commit the murder for remuneration or the promise of remuneration."

On February 2, 2012, the petitioner executed a written waiver of her right to trial by jury and a request that the trial court accept her plea of guilty to the lesser included offense of second degree murder.Pursuant to a plea agreement with the State, the petitioner received a Range II sentence of 40 years' incarceration.During the guilty plea submission hearing, the State provided the following summary of the circumstances of the offense:

[I]n Meigs County, during the days leading up to September 19th of 2009, [the petitioner] approached James Landers and solicited and inquired of him, of his willingness to kill Grady Nichols, Jr., [the petitioner's]father.

They did in fact reach an agreement for the killing of Mr. Grady Nichols, Jr., and Mr. Landers did in fact shoot and kill him.Intentionally causing his death on September the 19th of 2009 in Meigs County.

On January 28, 2013, the petitioner filed a timely petition for post-conviction relief, which petition alleged that the petitioner was deprived of the effective assistance of counsel and that her conviction was based upon the use of a coerced confession.The post-conviction court appointed counsel on November 7, 2013.Original post-conviction counsel moved to withdraw in December 2014, and the post-conviction court appointed current post-conviction counsel to represent the petitioner on December 19, 2014.

On September 8, 2016, the petitioner filed an amended petition for post-conviction relief and a memorandum of law in support of her claims for post-conviction relief.The petitioner argued that her guilty plea was not knowingly and voluntarily entered because she was deprived of the effective assistance of counsel and because the trial court failed to follow the requirements of Tennessee Rule of Criminal Procedure 11andState v. Mackey, 553 S.W.2d 337(Tenn.1977), when accepting the petitioner's guilty plea.Specifically, the petitioner claimed that lead trial counsel"made threats and derogatory comments" to her in the months leading up to her guilty plea, that lead trial counsel improperly recruited the petitioner's mother to pressure her into accepting the plea offer, that lead trial counsel failed to adequately explain the terms of the plea offer, and that lead trial counsel intimidated and coerced the petitioner into pleading guilty.The petitioner claimed that the trial court failed to ensure that her guilty plea was knowingly and voluntarily entered by failing to follow the Rule 11 colloquy exactly.

At the January 13, 2017 evidentiary hearing, the petitioner testified that she pleaded guilty only because she"felt like [she] didn't have a choice."She claimed, "[M]y attorney . . . told me that if I took it to trial that I would get the death penalty, and that at the very least I would get life without parole."She said that her counsel also"described in vivid detail what death row was like."She claimed that her trial counsel had called her "a whore once" and "a liar" when she tried to tell him something her previous counsel had told her.The petitioner said that counsel"never had . . . a nice word to say to" her and that he appeared "repulsed by being in the same room with" her.She claimed, "[H]e told me that my children hated me, that my family hated me, and that they would never want anything to do with me.And that the only reason my mother cared anything about me was because I shared D.N.A. with her."According to the petitioner, she chose to plead guilty instead of going to trial because she did not think that counsel"would have been for" her or that "he would have represented [her] the way [she] should have been represented."When confronted with the fact that the petitioner stated during the plea colloquy that she was satisfied with the representation offered by her attorneys, the petitioner said,

To be honest I don't remember saying that but I know the record shows that and I know that I said that.And that whole day was just kind of like a fog, like I was on auto-pilot.I don't even remember saying that - most of what happened that day I don't even remember.

The petitioner claimed that lead trial counsel"was very happy about"the State's offer of a 40-year sentence in exchange for a plea of guilty to second degree murder.She insisted that she was less than thrilled with the offer because she"would rather to just have life than the 40 years because it would be more human[e] to [her] than for [her] to try to find somewhere to go at 76."She said that, at that point, counsel told her that that was not "his problem or the State's problem."The petitioner testified that lead trial counsel told her that the plea offer would not "be on the table forever" and that she"needed to act fast."

The petitioner said that she did not read the plea documents and that neither lead trial counsel nor associate trial counsel read the documents to her.She said that neither attorney discussed the documents with her, saying that "the only thing that was discussed . . . was that in order for [her] to take 40 years at second degree, that they had to have [her] permission."She insisted that no one told her about her right to appeal her conviction should she be convicted at trial.She also claimed that neither her attorneys nor the trial court inquired into the voluntariness of her plea.Had they done so, she claimed, she"would have told them no" because "it was not voluntary."

During cross-examination, the petitioner acknowledged that she had graduated high school and had no difficulty reading and writing.She said that the trial court had appointed two attorneys to represent her and that both attorneys had met with her on more than five occasions prior to the entry of her plea.The petitioner admittedthat the attorneys discussed the charged offense and the potential punishments for that offense.She denied speaking to either attorney about any possible defenses in the case.She could not recall whether her attorneys had discussed "all the evidence" with her but stated that "they had went over the recording" wherein her co-defendant had worn a recording device while discussing the details of the victim's murder with the petitioner.The petitioner said that she was aware that the co-defendant had confessed to the victim's murder and that he had told investigators that the petitioner"actually . . . had planned for him . . . to kill" the victim and "had promised him 30 percent of [the] take."The petitioner could not recall whether her attorneys had told her that the co-defendant told investigators that the petitioner told him where and when to find the victim and that the petitioner told him she would inherit one million dollars from the victim's estate.

The petitioner acknowledged that her attorneys provided her with "a big stack of papers, which was discovery," and asked her "to read through ever[y] page" and mark any inconsistencies.She could not recall, however, whether the discovery materials included the information that she had dropped the co-defendant off to shoot the victim and had picked him up after he completed the job or that she had disposed of the murder weapon.The petitioner admitted that her attorneys went over the transcript of the audio recording of her conversation with the co-defendant but claimed that she could not recall hearing that portion of the recording where she told the co-defendant that she would pay any amount necessary to create a fake alibi for the co-defendant.The petitioner insisted that she had reviewed all the discovery materials provided to her and admitted that the contents of those materials would have been fresh in her mind when she entered her plea.

The petitioner identified her signature on the plea documents filed on February 2, 2012, but she said that she did not "recall it being read to" her and that she did not "recall reading it" before signing it.She agreed, however, that she typically did not "sign random things."She said that it was possible that she had read the documents or that they had been read to her but that she did not recall their contents.Later, she claimed she had no recollection of ever having seen the plea documents.She claimed that although she recalled coming to court on the day she entered her plea and having a discussion with...