Justin Diana v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 1, 2012

JUSTIN DIANA v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County
No. W11-00228 Lee V. Coffee, Judge

No. W2012-00998-CCA-R3-PC - Filed April 17, 2013

The petitioner, Justin Diana, pled guilty in the Shelby County Criminal Court to one count
of attempted solicitation of sexual exploitation of a minor by electronic means and three
counts of statutory rape. He received a total effective sentence of four years. Thereafter, the
petitioner filed a petition for post-conviction relief, alleging that his trial counsel were
ineffective and that his guilty pleas were not knowingly and voluntarily entered. The post-
conviction court denied the petition, and the petitioner appeals. Upon review, we affirm the
judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and R OGER A. P AGE, J., joined.

James P. DeRossitt, IV, Memphis, Tennessee, for the appellant, Justin Diana.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Greg Gilbert, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On April 19, 2011, the petitioner pled guilty to attempted solicitation of sexual
exploitation of a minor, a Class C felony, and to three counts of statutory rape, a Class E
felony. The plea agreement provided that the petitioner, as a standard, Range I offender,
would receive concurrent sentences of four years for the Class C felony conviction and two
years for each Class E felony conviction. The parties stipulated to the following factual basis
for the pleas:

[On] November 20th , 2010, officers responded to . . . 667 North
Holmes here in Shelby County. They were attempting to locate
a victim in this matter, [BB,1 ]. When the officers spoke with
[BB they] noticed that she had slurred speech after speaking
with her. She relayed to officers she’d been over at [the
petitioner’s] home along with two of her friends also who were
15 and 16 years of age.

The [petitioner] had given them Xanax, alcohol to drink
and had had sex with all three of these victims. In addition, . .
. [the petitioner] took videos and cell phone pictures while this
was happening, thus the solicitation of exploitation of a minor.

Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his
counsel were ineffective. Specifically, he maintained that counsel should have pursued a
motion to suppress evidence derived from an illegal search of his cellular telephone. He also
complained that his guilty pleas were not knowingly and voluntarily entered because counsel
did not explain that as a result of the guilty pleas, he would be required to remain on the
sexual offender registry for life.

At the post-conviction hearing, the twenty-four-year-old petitioner testified that he had
attended school through the tenth grade and that he had received a general equivalency
diploma (GED). The petitioner acknowledged that as a result of his having sexual relations
with three minor females, he was arrested and charged on November 20, 2010, with three
counts of statutory rape, three counts of soliciting sexual exploitation of a minor by electronic
means, three counts of contributing to the delinquency of a child, and three counts of
especially aggravated sexual exploitation of a minor. When police arrived at his residence,
two of the victims were in the petitioner’s bed. Additionally, the petitioner had used his
cellular telephone to record his sexual relations with at least one of the victims. Eventually,
he pled guilty to one count of attempted solicitation of sexual exploitation of a minor and
three counts of statutory rape.

The petitioner said that in general sessions court, he was represented by two attorneys.
First, he was represented by privately retained counsel for approximately three weeks.
Thereafter, the trial court appointed his first appointed counsel, who was a public defender.

1
It is the policy of this court to refer to minor victims of sexual crimes by their initials.

-2-
The petitioner signed a “waiver by information”2 in general sessions court. His case
proceeded to criminal court where he was represented by his second appointed counsel and
substitute counsel, both of whom were public defenders.

The petitioner said that he and first appointed counsel discussed the charges and
sentences he was facing. The petitioner said that he was initially charged with “regular
exploitation of a minor . . . but then my charges were amended to especially aggravated.” He
said that the amended charges were Class B felonies and that, if convicted, he faced a
potential sentence of eight to thirty years, with one hundred percent of the sentence to be
served in confinement. He acknowledged that the trial court could have ordered the
sentences to be served consecutively.

The petitioner said that he and retained counsel discussed whether the evidence
derived from his cellular telephone might be suppressed due to an illegal search. The
petitioner explained:

The cell phone was around my neck when I was placed
under arrest, and I took my cell phone off my neck and set it on
the livingroom [(sic)] table when they put me in handcuffs
because I didn’t want it to come to jail and somebody try to steal
it from me. It was a brand new cell phone. Once I was placed
under arrest, the officer picked my cell phone up; and for no
reason at all, just started going through everything in my phone.
And all of a sudden, he just went and looked; and he was like,
“What is this?” And then more police officers arrived at the
scene, and the case went from there.

The petitioner said that although he had given police consent to search his bedroom, the
consent did not extend to the place where the cellular telephone was located. He said that
retained counsel requested a preliminary hearing because of the suppression issue. After first
appointed counsel was appointed, retained counsel wanted to speak with him. The petitioner
did not know if they ever spoke. The petitioner told first appointed counsel that he and
retained counsel had discussions about the suppression issue. The petitioner said that first
appointed counsel disregarded his concerns and told the petitioner about a plea agreement
involving a sentence of four years. The petitioner said first appointed counsel was not
willing to discuss anything except the plea agreement. The petitioner said that he did not
demand a motion to suppress hearing or a preliminary hearing because first appointed

2
The petitioner agreed to waive his right to a preliminary hearing and agreed to allow the State to
proceed by information.

-3-
counsel “basically made what I was saying like it was not important – like this was not going
to prevail; that it was not an important issue; that we basically needed to disregard it because
it was in my best interest to take the four years.” First appointed counsel gave the petitioner
the impression that he should plead guilty instead of risking a trial and a sentence of eight
to thirty years at one hundred percent.

The petitioner acknowledged that first appointed counsel advised him that he would
be required to register as a sexual offender. The petitioner maintained, however, that first
appointed counsel told him that he could be removed from the registry in five or ten years.
First appointed counsel did not inform him that the registry requirement was for life. The
petitioner said if he had known of the lifetime requirement, he would not have signed the
agreement.

The petitioner said that when his case was set in criminal court, he was assigned a new
public defender, second appointed counsel. He said that he did not meet second appointed
counsel until after his guilty plea. He stated that on his first day in criminal court, substitute
counsel gave him a business card bearing second appointed counsel’s name. Substitute
counsel told him that they would proceed with the plea agreement negotiated by first
appointed counsel. The petitioner did not discuss the sexual offender registry with substitute
counsel. However, at the guilty plea hearing the trial court “mentioned the sex-offender
registry implications.” The petitioner said that he entered the guilty pleas believing he would
be on the registry for five to ten years and could then petition to be removed from it. He said
he “got sidetracked” during the guilty plea hearing after he noticed his mother crying, and
he did not understand that he was going to be placed on the sexual offender registry for life.

The petitioner said that following the guilty plea hearing, he was sent for a
psychosexual evaluation. At the sentencing hearing, at which he was represented by second
appointed counsel, the trial court denied probation.

The petitioner acknowledged that if the post-conviction court granted him relief, he
could be convicted at trial and potentially serve a longer sentence.

On cross-examination, the petitioner said that when the police came to his house, two
minor females were in his bed. He conceded that he signed a consent to search his house.
He denied confessing to police or saying that he would plead guilty.

The petitioner acknowledged that first appointed counsel informed him that he could
be charged with offenses related to a fourth minor female victim from a separate incident and
that if the petitioner accepted the plea agreement, the State would not prosecute him for that
incident. The petitioner said that having the charge dismissed was a factor in his decision

-4-
to plead guilty. However, he again complained that he did not realize he would be unable to
have his name removed from the sexual offender registry.

Initially, the petitioner maintained that he and substitute counsel never discussed the
sexual offender registry. Nevertheless, he later said that he and substitute counsel “briefly
discussed” the sexual offender registry but that she never told him that he would be placed
on the registry for life. The petitioner acknowledged that the guilty plea form and the
information charging him with the offenses provided that he would be required to register
as a sexual offender.

The petitioner maintained that he wanted post-conviction relief because “these charges
that make me have to register, they were obtained illegally. My civil rights were violated –
my constitutional rights were violated. My due process was all violated.”

Following the petitioner’s testimony, the court advised the petitioner that under
Tennessee Code Annotated section 40-39-207, “no sooner than ten years after the termination
of your active supervision . . . you may apply to be discharged” from the sexual offender
registry. The court asked the petitioner if, knowing he could petition for removal from the
registry, he still wanted to pursue post-conviction relief. The petitioner said that he did.

First appointed counsel testified that he began representing the petitioner after retained
counsel withdrew. The petitioner originally faced a sentence of at least eight years for Class
B felony convictions involving each of three victims, with potential charges regarding a
fourth victim. The petitioner was aware he would be placed on the sexual offender registry.
The petitioner did not want to be on the registry, and they “talked about ways you can
potentially get off the registry – things of that nature. The law is somewhat confusing.”

The night before the preliminary hearing, first appointed counsel visited the petitioner
in jail and informed him of the State’s plea offer. First appointed counsel stated that it was
the petitioner’s decision to have a preliminary hearing or to accept the plea offer. First
appointed counsel noted that the information provided that the petitioner would be subject
to the sexual offender registry. The petitioner understood the registry requirement and
wanted to plead guilty. First appointed counsel asserted that he would not have let the
proceedings continue if the petitioner had expressed concerns regarding the registry.

On cross-examination, first appointed counsel stated he advised the petitioner that he
had the option to accept the plea offer or to pursue a preliminary hearing. First appointed
counsel did not advocate for one option over another. During discussions about the sexual
offender registry, first appointed counsel told the petitioner that “there’s a ten-year time
period of whether or not you can get it removed. It wasn’t part of our information. The

-5-
information reflected that he would be place[d] on the registry.” First appointed counsel
asserted that he did not promise the petitioner that he would be removed from the registry.

First appointed counsel said the petitioner was concerned about search and seizure
issues after the waiver. First appointed counsel advised the petitioner that he had not yet
entered a guilty plea and could still pursue a suppression motion in criminal court. First
appointed counsel maintained, “I think, to this day, he has potential search and suppression
issues he could pursue. . . . I mean, every hearing we have has search and suppression
issues.” First appointed counsel stated that even if the petitioner had successfully suppressed
the evidence gathered from the cellular telephone, he still faced statutory rape charges
regarding three or four victims. First appointed counsel did not encourage the petitioner to
agree to be charged by information and forego the preliminary hearing, asserting that there
was no incentive for him to encourage that result. First appointed counsel asserted that the
petitioner made the decision to sign the “waiver by information.”

Substitute counsel testified that cases were assigned in the public defender’s officer
on a rotational basis. When the trial court appointed counsel to represent the petitioner in
criminal court, second appointed counsel “was next up on the information list . . . [but that
substitute counsel] got the information because [second appointed counsel] was out; but
[second appointed counsel] was technically his lawyer.” Substitute counsel acknowledged
that she handled the petitioner’s waiver and the guilty pleas. Substitute counsel reviewed the
information and the plea offer with the petitioner, specifically discussing the sexual offender
registry requirement. The petitioner had believed he could be removed from the registry after
ten years, but substitute counsel advised him that he could not be removed from the registry.
She informed the petitioner that the plea agreement was not yet binding and that he could
choose not to enter the guilty pleas. Nevertheless, the petitioner never discussed with her any
suppression issues. The petitioner did not seem distracted or confused during the guilty plea.

Transcripts of the petitioner’s guilty plea hearing and the sentencing hearing were
submitted as exhibits to the hearing. Notably, the guilty plea hearing transcript reflects that
the trial court asked the petitioner if he and substitute counsel had signed a waiver of
indictment and presentment, and the petitioner said yes. The petitioner acknowledged that
substitute counsel had reviewed and explained the waiver and the pleas to him and that he
understood them. The petitioner said that he was pleading guilty freely and voluntarily, that
he had made the decision to plead guilty, and that he was satisfied with his representation.
The trial court advised the petitioner that because of his conviction for attempted solicitation
of sexual exploitation of a minor, he was required to register as a sexual offender and to
remain on the sexual offender registry for the rest of his life. The petitioner said that he
understood the requirement. The petitioner told the court that he did not have any questions,
and the trial court accepted the guilty pleas.

-6-
 After hearing the proof and reviewing the exhibits, the post-conviction court
accredited the testimonies of first appointed counsel and substitute counsel. The court
observed that the petitioner gave inconsistent testimony regarding his understanding of the
sexual offender registry. The court further noted that a transcript of the guilty plea hearing
revealed that after the trial court advised the petitioner of the requirement that he remain on
the sexual offender registry for life, the petitioner said he understood. Further, first
appointed counsel and substitute counsel advised the petitioner about the sexual offender
registry, and the petitioner nevertheless chose to plead guilty. The post-conviction court
found that first appointed counsel “worked out an outstanding resolution of these charges.”
Therefore, the court found that the petitioner was properly advised of the consequences of
his guilty pleas and knowingly and voluntarily chose to plead guilty.

The post-conviction court stated:

I cannot believe that [the petitioner] is dissatisfied with
the result that he got on the case in which, when the police
arrived, he had two underage girls in his bed; got statements
from these girls; found drugs in a bedroom; made statements of
admission to the police that he did it; and, in fact, had some of
this videotape. And he now says, “Well, I think some of this
should have been suppressed.”

The court stated that after the petitioner and first appointed counsel discussed suppression
issues, the petitioner decided to waive those issues and enter guilty pleas. Accordingly, the
post-conviction court ruled that the petitioner failed to prove ineffective assistance of counsel
or that his guilty pleas were not knowingly and voluntarily entered. On appeal, the petitioner
challenges this ruling.

II. Analysis

To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to

-7-
substantial deference on appeal unless the evidence preponderates against those findings. See
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Further,

[b]ecause a petitioner must establish both prongs of the
test, a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any
particular order or even address both if the [petitioner] makes an
insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Moreover, in the context of
a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s
errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks
v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S.
52, 59 (1985).

When a defendant enters a plea of guilty, certain constitutional rights are waived,
including the privilege against self-incrimination, the right to confront witnesses, and the
right to a trial by jury. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in order
to comply with constitutional requirements a guilty plea must be a “voluntary and intelligent
choice among the alternative courses of action open to the defendant.” North Carolina v.
Alford, 400 U.S. 25, 31 (1970). In order to ensure that a defendant understands the
constitutional rights being relinquished, the trial court must advise the defendant of the

-8-
consequences of a guilty plea, and determine whether the defendant understands those
consequences. Boykin, 395 U.S. at 244.

In determining whether the petitioner’s guilty pleas were knowing and voluntary, this
court looks to the following factors:

the relative intelligence of the defendant; the degree of his
familiarity with criminal proceedings; whether he was
represented by competent counsel and had the opportunity to
confer with counsel about the options available to him; the
extent of advice from counsel and the court concerning the
charges against him; and the reasons for his decision to plead
guilty, including a desire to avoid a greater penalty that might
result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

Regarding the ineffective assistance claims, the petitioner complains that his counsel
failed to pursue a motion to suppress evidence derived from the illegal search of his cellular
telephone. He maintains that of the three attorneys appointed to represent him, none were
present at his guilty plea hearing; instead, a fourth attorney, who “provided only the most
cursory legal advice,” was present at the plea hearing. The petitioner also asserts that his
guilty pleas were not knowingly and voluntarily entered because counsel did not explain that
as a result of the guilty pleas, he would be required to register as a sexual offender for life.
In response, the State contends that despite the petitioner’s complaints, he suffered no
prejudice by having multiple attorneys, that he was at all times represented by counsel, and
that counsel were not ineffective.

The post-conviction court specifically accredited the testimony of substitute counsel
and first appointed counsel and discredited the testimony of the petitioner, finding the
petitioner to be “wholly incredible.” The post-conviction court found that counsel advised
the petitioner that if he pled guilty, he would remain on the sexual offender registry for life.
Additionally, the trial court explicitly informed the petitioner that he was subject to being on
the sexual offender registry for life, and the petitioner told the court that he understood the
requirement.

First appointed counsel testified that he and the petitioner discussed filing a motion
to suppress. First appointed counsel informed the petitioner that he could pursue suppression
and have a preliminary hearing or waive by information and have his case transferred to
criminal court but did not encourage the petitioner to choose one option over the other. In

-9-
general sessions court, first appointed counsel advised the petitioner that the plea agreement
was not yet binding and that he could withdraw his agreement and pursue suppression at any
time. Regardless, the petitioner expressed his desire to accept the plea offer. After the case
was transferred to criminal court, substitute counsel reiterated first appointed counsel’s
statement that the petitioner was not yet bound to the plea agreement. The petitioner never
informed substitute counsel or the trial court that he was concerned about suppression issues.
Additionally, the trial court gave the petitioner an opportunity to express dissatisfaction with
his representation, but the petitioner said that he was satisfied with counsel’s performance.
Moreover, the petitioner acknowledged that if he had gone to trial, he faced the risk of a
considerably longer sentence and additional charges relating to another victim. The post-
conviction court found that the petitioner’s counsel were not ineffective and that the
petitioner knowingly and voluntarily entered his guilty pleas. We agree with the post-
conviction court.

III. Conclusion

In sum, we conclude that the petitioner did not prove his post-conviction claims by
clear and convincing evidence. Accordingly, the judgment of the post-conviction court is
affirmed.

_________________________________
NORMA McGEE OGLE, JUDGE

-10-