02/26/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 16, 2020
DELMAR L. MACK, JR. v. STATE OF TENNESSEE
Appeal from the Criminal Court for Washington County
No. 43472 Lisa Rice, Judge
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No. E2019-00273-CCA-R3-PC
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Petitioner, Delmar L. Mack, Jr., appeals the Washington County Criminal Court’s denial
of his petition for post-conviction relief. Petitioner contends that his guilty pleas to
attempted first degree murder, aggravated kidnapping, and aggravated assault were not
knowingly, intelligently, and voluntarily entered because, at the time he entered his plea
agreement, he was suffering from “severe mental distress and anxiety,” resulting in an
inability to understand the nature and details of the agreement. Following a thorough
review, we affirm the denial of post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and J. ROSS DYER, JJ., joined.
Caleb C. McDaniel, Elizabethton, Tennessee, for the appellant, Delmar Lamar Mack, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Ken C. Baldwin, District Attorney General, Pro-Tem; and Erin
McCardle, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural Background
Guilty Plea Submission Hearing
On February 8, 2017, Petitioner pled guilty to attempted first degree murder and
aggravated kidnapping in Washington County case number 40457 and to aggravated
assault in Washington County case number 40672. Pursuant to a plea agreement, the trial
court sentenced Petitioner, as a Range I standard offender, to concurrent terms of eighteen
years with a thirty percent release eligibility for attempted first degree murder, eight years
with a one hundred percent release eligibility for aggravated kidnapping, and three years
with a thirty percent release eligibility for aggravated assault, for a total effective sentence
of eighteen years’ incarceration.1
The State provided the following factual basis for Petitioner’s guilty pleas:
In case number 40457, on that case on the date in question, . . . Ms.
Mack at the time, was subjected to a continued beating by her husband. The
proof would be that there was an instance that started earlier in the evening
and continued on through the night, the culmination of the shooting in the
bedroom. She would testify that she was kicked and hit or punched, she was
drug to the basement of the house, was shot at in the basement, was drug
back upstairs over a period of hours, and in the bedroom an AR rifle was
placed on her hip and was shot, which injured her severely. She was in the
hospital for approximately a month thereafter recovering. That would be the
basis for the [Aggravated] Kidnapping would be the confinement, and the
shooting for the Attempted First Degree Murder.
....
In [case number 40672], between the dates of August of 2013, the two
(2) days that are mentioned, that, again [Petitioner] . . . had kicked and hit
[Ms. Mack] in the stomach and back area causing injuries that were -- that
she could only see since they were covered by her clothing. She proceeded
to heal from those injuries but they got to a point where she was feeling
completely sick and having issues. At that point in time when [Petitioner]
was out of town, she went to the hospital and received treatment. They did
diagnose upon X-ray that she had a lacerated spleen in that case and that
would be the basis for the Aggravated Assault[.]
During the plea colloquy, Petitioner confirmed that he was not under the influence
of alcohol, drugs, or any mind-altering substance that would affect his ability to understand
the proceedings. Petitioner agreed that trial counsel went over the contents of the plea form
with him, and Petitioner indicated that he understood the form. The trial court advised
Petitioner of the maximum and minimum penalties for each of the offenses to which
1
Based on the plea agreement, the State dismissed charges of especially aggravated kidnapping
and two counts of attempted aggravated rape in counts 2, 3, and 5 in case number 40457.
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Petitioner was pleading guilty, and the court explained the agreed sentence for each
offense. Petitioner told the trial court that he had no questions about the minimum and
maximum punishment and fines that could be imposed. Petitioner indicated that he
understood he had the right to enter a plea of not guilty and proceed to trial and that, by
entering the plea agreement, he was waiving his right to trial. Petitioner agreed that, if he
proceeded to trial, he had the right to confront witnesses against him, to present evidence
in his defense, and to testify in his own behalf. Petitioner said that he understood he had a
Fifth Amendment privilege against self-incrimination and the right to appeal if he was
convicted at trial. Petitioner indicated that he was not threatened, coerced, or harassed
regarding his plea and that he was entering a guilty plea to each offense freely and
voluntarily. Petitioner affirmed that it was his decision to enter the plea agreement after
“going over the options with [his] attorneys[.]” Petitioner agreed that, if the cases had gone
to trial, the State could have produced witnesses to testify in accordance with the factual
basis for the pleas provided by the State. Trial counsel explained, “I’ve discussed this with
[Petitioner] as it relates to the stipulation. We would stipulate this would be the State’s
proof, not that we necessarily agree with each and every thing that was said, but just for
the basis of the plea, he does stipulate that that would be State’s proof at trial.” The trial
court found that the plea agreement was “appropriate” and, based on its colloquy with
Petitioner, accepted the guilty pleas.
Post-Conviction Proceedings
On December 12, 2017, Petitioner filed a timely pro se petition for post-conviction
relief. Following the appointment of counsel, Petitioner filed an amended petition. At an
evidentiary hearing, Petitioner testified that he had served in the United States Air Force
for seven years, from 1987 to 1995. Petitioner testified that he had a BS in
“interdisciplinary studies” from ETSU, which included “humanities, legal studies, and
information technologies[.]” He said that he was a “disabled veteran” with “chronic
muscular problems and neurological muscle problems,” as well as arthritis and
“degenerated disk problems.” Petitioner said that he also suffered from “chronic anxiety
problems, chronic depression.” He testified that he had been diagnosed with attention
deficit disorder (ADD), which caused him to have problems retaining and comprehending
information. Petitioner also claimed that he had been diagnosed as having bipolar disorder.
Petitioner testified that he had received treatment for his various conditions from the VA
Medical Center and Frontier Health. He said that he had been previously prescribed
“Strattera, Wellbutrin, [and] Remeron” and that the VA had “given [him] Seroquel before.”
Regarding his “[a]nxiety problems[,]” Petitioner stated:
[I]f I get . . . in a situation where I feel highly pressured, I may make
erratic decisions basically due to mental anguish that press on me where I --
I want to flee the situation I’m in. And also, it also causes me physical pain
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if I get highly -- in severe anxiety. I have [a] chronic pain situation that
affects me where basically I’m not -- not to be able to think incoherently
(sic). I just [--] the pain overwhelms me and I just want to leave the situation.
Petitioner said that, after retaining trial counsel, he primarily communicated with
counsel by sending counsel letters. Petitioner explained that he wrote six or seven letters
to trial counsel but claimed that trial counsel did not respond. He said that he addressed
the issues concerning his mental health and the VA medical records in some of the letters.
He also suggested to trial counsel that he raise “the issue of diminished capacity and the
issue of Miranda warning that I didn’t sign” as part of Petitioner’s defense. In another
letter, Petitioner suggested that trial counsel request a change of venue. Petitioner agreed
that he discussed some of these concerns with trial counsel but said that the issues were not
“appropriately addressed” and that trial counsel did not “ease [his] concerns.” He
explained that he reviewed discovery materials with trial counsel “a little bit” but that trial
counsel did not review it to Petitioner’s satisfaction. He said that they did not “go over
everything . . . in detail[.]” He said that they reviewed some of the video of Petitioner’s
police interview but that they did not go over the whole two hours and did not review the
911 call in detail.
Regarding the plea agreement, Petitioner said that he was presented with the plea
offer the day before he entered the plea agreement. Petitioner testified that trial counsel
explained the agreement to him and that he “thought [he] understood some part of it.” He
testified that trial counsel tried to explain the judgment sheets but that he did not fully
understand them. Petitioner stated, “I was feeling bat-sh** crazy.” He said that he had
been in jail for two years prior to his entering the plea agreement and that, while he was
incarcerated, he was not receiving mental health treatment. Petitioner recalled that, before
the plea submission hearing, he asked trial counsel if he could enter an Alford plea but that
trial counsel informed him that such a plea “would not be a good thing in the eyes of the
parole [board.]” Petitioner said that he thought it was in his best interest to accept the plea
deal because “if [he] went to trial [he] didn’t feel confident [trial counsel] would represent
[him] to the point that [he] would get a fair trial.”
On cross-examination, Petitioner stated that, prior to the offenses in February 2015,
he was not receiving mental health treatment but that he “did talk to that mental health
counselor . . . probably several months before.” He agreed that the diagnostic impressions
in his May 2014 VA records stated that he had “[u]nspecified anxiety disorder; alcohol use
disorder, moderate.” He agreed that he had declined “early intervention help” for mental
health issues and that he had been taking no medication to address his anxiety prior to the
February 2015 offenses.
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Petitioner testified that, when he met with trial counsel, he told counsel to obtain
medical records from the VA. Petitioner agreed that trial counsel obtained those records,
plus records from “other entities that [Petitioner had] talked to outside the VA.” Petitioner
acknowledged that he and trial counsel discussed the contents of the records. Petitioner
stated, “The medical records were received . . . but it wasn’t gone over in detail [as] far as
my understanding and as far as my request.” Petitioner acknowledged that he reviewed
discovery with trial counsel and that they listened to “part of” the 911 call. Petitioner
explained that he was “not prepared to listen to the whole thing” at that time. He recalled
telling co-counsel that he did not want to see any photographs contained in discovery. He
said that he did not recall watching a video of the victim in the hospital.
Petitioner recalled that he underwent a mental health evaluation at Frontier Health
at the request of trial counsel. He agreed that he was able to discuss his mental health
issues with the evaluators but that they determined that Petitioner had “no need for
additional treatment [or] additional testing” and that Petitioner was competent to consult
with trial counsel. Petitioner noted that the evaluation report recommended that he receive
treatment for depression, anxiety, and substance abuse.
Petitioner acknowledged that, before he entered the plea agreement, trial counsel
went over the agreement with him. Trial counsel reviewed the charges against him, the
sentence for each offense, and the percentage that Petitioner would serve on each offense
before becoming parole eligible. Petitioner recalled that the trial court went over, in detail,
his constitutional rights, and he agreed that he signed a form stating he understood his rights
and was waiving his rights by entering the guilty pleas. Petitioner agreed that the trial court
gave him the opportunity to ask questions during the plea colloquy but that he did not ask
questions or show any concerns about the plea agreement. When asked if it was a fair
statement that he understood the plea agreement at the time it was entered, Petitioner
responded, “I said I did, but I did not.” He explained, “[B]ascially I did it of my own free
will, but I felt that, like I said, if I had not taken the plea, if I took it to trial, I did not have
adequate representation to defend me[.]” He said that he did not express these concerns to
the trial court at the time of the guilty plea because he was under “severe anxiety.”
Trial counsel testified that he had seventeen years’ experience in the practice of law.
He explained that he began representing Petitioner in April 2016, after being retained by
Petitioner. Trial counsel stated that he represented Petitioner for ten months—until his
guilty plea on February 8, 2017—and that he met with Petitioner at the jail numerous times.
Trial counsel testified that, each time he received a letter from Petitioner, he would go to
the jail “and talk to [Petitioner] about whatever he had said in the letter[.]” Trial counsel
said that it was “more productive” to visit Petitioner at the jail and address his concerns in
person rather than responding in writing.
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Trial counsel stated that Petitioner always appeared to understand their discussions.
He said that Petitioner “was always very inquisitive. He asked lots of questions.” Counsel
continued, “[Petitioner] was emotionally tied to this at times, and that . . . was my main
reason for asking for a mental evaluation and . . . because he’d told me he had a past
history.” Trial counsel explained that Petitioner would cry at times when talking about
what happened on the date of the offenses. Counsel explained that, based on his
conversations with Petitioner and Petitioner’s affect at times in jail, he requested a mental
health evaluation for Petitioner, which the trial court granted.
Trial counsel said that Petitioner “steadfastly refuse[d]” to testify if the case went to
trial and that Petitioner did not want to dispute what the victim said about the situation.
Trial counsel testified, “I explained to him it was his absolute right that he didn’t have to
testify, but absent his testimony as to something else happening, the jury was simply going
to be left with his wife’s testimony that he had held her hostage all day and shot her.” Trial
counsel recalled that he filed a motion to dismiss due to a defect in the indictment but that
the State obtained a superseding indictment over counsel’s objection. Trial counsel said
that Petitioner felt that he should have been charged with aggravated assault rather than
attempted first degree murder because he shot the victim below the waist. Trial counsel
testified that he investigated every concern raised by Petitioner.
Trial counsel testified that he talked with Petitioner about Petitioner’s medical
conditions, military service, mental health issues, and past alcohol and drug addiction.
Trial counsel said that he obtained Petitioner’s medical records from the VA and that co-
counsel went over the medical records and summarized them for trial counsel. Trial
counsel said that he and co-counsel thoroughly investigated Petitioner’s medical conditions
to determine if there was anything they could use in Petitioner’s defense. He stated that he
saw no evidence of Petitioner having a “diminished ability to think” during his
representation of Petitioner.
Regarding the plea agreement, trial counsel recalled that he met with Petitioner
“either on the day before his plea was entered or the morning of[.]” He went over the plea
form, judgments, and a “Waiver of Rights” form with Petitioner. Trial counsel explained
each of Petitioner’s charges, the offense class, and potential punishment Petitioner faced,
and co-counsel created a graph of the plea offer for Petitioner. Trial counsel explained to
Petitioner that, if he were convicted after a trial, the trial court could find that Petitioner
was a dangerous offender and impose consecutive sentencing on this basis. Trial counsel
stated that he had “a clear memory of . . . spending a lot of time with [Petitioner] going
over the plea forms.” He said that it was “obvious” that Petitioner “had a very clear grasp
of what was going on.” Trial counsel explained that Petitioner had an “above-adequate
level of intelligence” and a college education. Counsel stated that Petitioner entered the
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plea about a week before the trial was scheduled to begin. He testified that neither he nor
co-counsel pressured Petitioner to enter the plea agreement.
Co-counsel testified that she was employed by trial counsel beginning in January
2017 and worked on Petitioner’s case with trial counsel until Petitioner’s guilty plea in
February 2017. Co-counsel testified that she was with trial counsel when he met with
Petitioner at the jail on January 10, 2017; January 27, 2017; February 1, 2017; February 7,
2017; and February 8, 2017. She recalled that she brought her laptop to the jail so that she
could listen to the 911 call with Petitioner. She stated that Petitioner refused to look at
photographs and that he did not want to watch the video of his police interview. On her
January 27th visit, they watched the video of the victim’s interview at the hospital, and co-
counsel reviewed the photographs with Petitioner. Co-counsel said that she wanted
Petitioner to see the strength of the State’s case against him so that he could make an
informed decision regarding any potential plea offers.
Co-counsel testified that she met with Petitioner at the jail on several occasions
without trial counsel. During these meetings, co-counsel went over the elements of each
of the charged offenses “to show him what could be used to convict him even on the lesser
offenses.” She said that, in her discussions with Petitioner, she had no reason to question
Petitioner’s mental capabilities or his level of understanding. Co-counsel recalled that she
went with trial counsel to the jail to discuss the plea offer with Petitioner. She said that,
during their discussions, Petitioner “always seemed to understand.”
On cross-examination, co-counsel agreed that Petitioner’s medical records showed
he had been diagnosed with major depressive disorder, polysubstance abuse disorder, and
ADD. She noted that Petitioner was found competent to stand trial but that the evaluation
report suggested that he have “follow-up mental health and substance abuse treatment.”
Co-counsel stated that she did not know what kind of treatment Petitioner received in jail.
Co-counsel testified that, based on her interactions with Petitioner, she believed that he
understood “everything that was going on.” She further stated that Petitioner never
appeared to be under the influence during the jail visits.
Co-counsel testified that she reviewed over 400 pages of medical records from the
VA, Blue Ridge Family Practice, and Frontier Health. She reviewed the records to try to
confirm any documentation that Petitioner was diagnosed with bipolar disorder or post-
traumatic stress disorder (PTSD). However, she could not find any such diagnosis; she
saw only “self-reported” claims. She stated that, although Petitioner had been assessed for
PTSD multiple times, he had never been diagnosed as having the disorder.
Following the hearing, the post-conviction court entered a written order denying
relief. This timely appeal follows.
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II. Analysis
Petitioner asserts that his guilty pleas were not knowingly, intelligently, and
voluntarily entered because, (1) although intelligent, Petitioner was under severe mental
distress and suffered with mental health and substance abuse issues and had lost all hope
that trial counsel was willing and able to adequately represent him at trial; (2) he was
“wholly unfamiliar” with criminal proceedings; (3) trial counsel did not adequately explore
Petitioner’s mental health concerns; (4) Petitioner did not understand the consequences of
his guilty pleas or the trial court’s advice during the plea colloquy because of his severe
mental distress and hopelessness at the time of the entry of his guilty pleas; and (5)
Petitioner felt that he had no choice but to plead guilty due to his hopelessness and
diminished confidence in counsel.
Whether a guilty plea is knowing and voluntary is a mixed question of law and fact.
Jaco v. State, 120 S.W.3d at 828, 830-31 (Tenn. 2003). Therefore, in such cases we review
the post-conviction court’s findings of fact de novo with a presumption of correctness. Id.
The post-conviction court’s findings of law are reviewed purely de novo. Id.
When reviewing a guilty plea, this court looks to both the federal standard as
announced in the landmark case Boykin v. Alabama, 395 U.S. 238 (1969), and the state
standard as announced in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on
other grounds by Tenn. R. Crim. P. 37(b) and Tenn. R. App. P. 3(b). Don Allen Rodgers
v. State, No. W2011-00632-CCA-R3-PC, 2012 WL 1478764, at *5 (Tenn. Crim. App. Apr.
26, 2012). Under the federal standard, there must be an affirmative showing that the plea
was “intelligent and voluntary.” Boykin, 395 U.S. at 242. Likewise, the Tennessee
Supreme Court has held that “the record of acceptance of a defendant’s plea of guilty must
affirmatively demonstrate that his decision was both voluntary and knowledgeable, i.e.[,]
that he has been made aware of the significant consequences of such a plea . . . .” Mackey,
553 S.W.2d at 340. “[A] plea is not ‘voluntary’ if it is the product of ‘[i]gnorance,
incomprehension, coercion, terror, inducements, [or] subtle or blatant threats . . . .’”
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-
43).
In order to determine whether a plea is intelligent and voluntary, the trial court must
“canvass[] the matter with the accused to make sure he has a full understanding of what
the plea connotes and of its consequence.” Boykin, 395 U.S. at 244. The trial court looks
to several factors before accepting a plea, including:
[T]he relative intelligence of the defendant; 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;
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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, 858 S.W.2d at 904; Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006).
Once the trial court has conducted a proper plea colloquy, it discharges its duty to
assess the voluntary and intelligent nature of the plea and creates an adequate record for
any subsequent review. Boykin, 395 U.S. at 244. Statements made by a petitioner, his
attorney, and the prosecutor during the plea colloquy, as well as any findings made by the
trial court in accepting the plea, “constitute a formidable barrier in any subsequent
collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
In denying relief, the post-conviction court found that Petitioner’s guilty pleas were
knowingly, intelligently, and voluntarily entered. The post-conviction court accredited the
testimony of both trial counsel and co-counsel that Petitioner understood the nature of the
charges against him and the nature and consequences of his guilty pleas. The court found
that Petitioner was “a college[-]educated individual, had competent, experienced counsel .
. . and was able to confer with them about his case and his alternatives.” Additionally, the
post-conviction court found that, during the plea colloquy, Petitioner “clearly indicated that
he committed the offenses to which he pled and that he understood the proceedings.” The
post-conviction court found that trial counsel and co-counsel adequately investigated
Petitioner’s mental health history and treatment and took “all appropriate measures to have
his competency determined” prior to entry of the plea agreement. The court concluded that
Petitioner’s mental health evaluation did not support a claim of diminished capacity or
mental disease or defect, that evaluators concluded Petitioner was competent to stand trial,
and that Petitioner “failed to present any evidence from a mental health professional or
mental health records to substantiate that he was either suffering a mental disease or defect
or suffered from any psychological deficiency that made his plea invalid.”
The record fully supports the post-conviction court’s finding that Petitioner’s guilty
pleas were knowing and voluntary. Both trial counsel and co-counsel testified that they
were aware of Petitioner’s mental health issues. Trial counsel obtained Petitioner’s
medical records from the VA, Frontier Health, and Blue Ridge Family Medicine, and co-
counsel went over the medical records and summarized them for trial counsel. Trial
counsel said that he and co-counsel thoroughly investigated Petitioner’s medical conditions
to determine if there was anything they could use in Petitioner’s defense. Additionally,
trial counsel requested that Petitioner undergo a mental health evaluation, and Petitioner
was found to be competent.
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Trial counsel testified that Petitioner had an above-average level of intelligence, was
college-educated, and discussed his case intelligently. Trial counsel stated that it was
obvious that Petitioner had a “very clear grasp” of what was going on. Co-counsel,
likewise, testified that, in her discussions with Petitioner, she had no reason to question
Petitioner’s mental capabilities or his level of understanding.
Trial counsel testified that he thoroughly explained the plea offer to Petitioner and
went over the plea form, judgments, and “Waiver of Rights” form with Petitioner. Trial
counsel explained each of Petitioner’s charges, the offense class, and potential punishment
Petitioner faced, and co-counsel created a graph of the plea offer for Petitioner. The record
reflects that the trial court had conducted a thorough plea colloquy with Petitioner.
Petitioner said that he understood the rights he was waiving and that he understood the
terms of his plea agreement and the sentences he would receive, and Petitioner repeatedly
said that he had no questions about his plea agreement.
Under these circumstances, Petitioner’s testimony at the post-conviction hearing
that he did not understand the plea agreement, by itself, does not overcome the “formidable
barrier” created by Petitioner’s statements at the guilty plea submission hearing. Id. We
conclude that the post-conviction court properly determined that Petitioner’s guilty pleas
were knowing and voluntary and that Petitioner is not entitled to relief.
III. Conclusion
Based on the foregoing reasons, we affirm the judgment of the post-conviction
court.
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ROBERT L. HOLLOWAY, JR., JUDGE
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