Flemming v. State

NATHAN G. FLEMMING v. STATE OF TENNESSEE

No. E2021-00928-CCA-R3-PC

Court of Criminal Appeals of Tennessee, Knoxville

December 13, 2022

Assigned on Briefs August 23, 2022.

Appeal from the Criminal Court for Knox County No. 117860 Kyle A Hixson, Judge.

The Petitioner, Nathan G. Flemming, appeals from the Knox County Criminal Court's denial of his petition for post-conviction relief from his convictions for attempted first degree murder, especially aggravated robbery aggravated robbery, employing a firearm during the commission of a dangerous felony, carjacking, and employing a firearm during the commission of carjacking, for which he is serving an effective sixty-eight-year sentence.^[1] On appeal, the Petitioner contends that: (1) the post-conviction court erred in applying an incorrect legal standard to deny relief on the Petitioner's ineffective assistance of counsel claim, and (2) the Petitioner is entitled to relief under the cumulative errors doctrine. We affirm the judgment of the post-conviction court.

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

Gerald L. Gulley, Knoxville, Tennessee, for the Appellant, Nathan G. Flemming.

Herbert Slatery III, Attorney General and Reporter; Hannah-Catherine Lackey, Assistant Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., P.J., and Camille R. McMullen, JJ., joined.

OPINION

ROBERT H. MONTGOMERY, JR., JUDGE.

The Petitioner's convictions arise from his actions on December 26, 2013, at and around the home of Derek Marsh. The Petitioner had arranged to purchase marijuana at Mr. Marsh's home. When the Petitioner arrived, he produced a gun, held Mr. Marsh at gunpoint, and disarmed Mr. Marsh. Mr. Marsh fled the home after being disarmed. The Petitioner then shot James Reed Daniels, Mr. Marsh's associate, and took marijuana from the home. The Petitioner left, went across the street, and approached Mateo Gaspar, who was in his SUV. The Petitioner shot Mr. Gaspar twice as the Petitioner took the SUV from Mr. Gaspar. The Petitioner was convicted by a jury of two counts of attempted first-degree murder, two counts of carjacking, two counts of aggravated robbery, two counts of especially aggravated robbery, and four counts of employing a firearm during the commission of a dangerous felony. He received an effective sentence of sixty-eight years. He appealed, and this court denied relief. See State v. Nathan G. Fleming, No. E2019-00078-CCA-R3-CD, 2020 WL 1875240, at *1 (Tenn. Crim. App. Apr. 15, 2020), perm. app. denied (Tenn. July 17, 2020).

On August 21, 2020, the Petitioner filed a pro se petition for post-conviction relief alleging a violation of his rights to due process and to a jury trial, the ineffective assistance of trial counsel, and the ineffective assistance of appellate counsel. The post-conviction court appointed post-conviction counsel, who filed an amended petition.

The Petitioner testified at his post-conviction hearing that his sentencing hearing was "around" August 21, 2016. He stated that he was not present when a written sentencing order and judgment were filed around September 2017. The Petitioner asserted that trial counsel did not object to the Petitioner's absence when the sentencing order was entered. He also asserted that counsel did not object to the delay in sentencing. The Petitioner stated that he learned of his sentence from Tennessee Department of Correction records.

The Petitioner testified that during the intervening period between the sentencing hearing and before the issuance of the sentencing order and judgments, trial counsel filed a motion to withdraw due to the deterioration of the relationship with the Petitioner. The trial court granted the motion to withdraw and appointed appellate counsel for the motion for a new trial.

The Petitioner testified that appellate counsel sent the Petitioner a copy of the appellate brief but did not communicate otherwise. The Petitioner asserted that appellate counsel did not raise the issues of jury tampering, sentencing delay, and the Petitioner's absence for the entry of the sentencing order. The Petitioner said that he would have received a lesser sentence if he had received the effective assistance of trial counsel. To support his claim, the Petitioner stated that in his appeal from the conviction proceedings, the appellate court said that appellate counsel should have pursued a sufficiency of the evidence claim.

On cross-examination, the Petitioner testified that trial counsel could have more effectively convinced the jury that the Petitioner should have been convicted of attempted voluntary manslaughter as a lesser included offense of attempted first degree murder. The Petitioner acknowledged that counsel did his best to defend the especially aggravated robbery charge. The Petitioner said that he wanted to be present for the entry of the sentencing order for the trial court to see his remorse. The Petitioner admitted that he was allowed to address the court at the sentencing hearing and that he declined to address the court. The Petitioner conceded that he was given an opportunity to state his "feelings" when he was interviewed for the presentence report.

The Petitioner testified that when he learned of the appointment of appellate counsel, he informed counsel of claims related to jury tampering, insufficient evidence, and sentencing. The Petitioner remembered that his first conversation with counsel occurred after the motion for a new trial hearing and that the conversation was short and about strategy.

The Petitioner testified that appellate counsel had given the Petitioner a copy of the appellate brief. The Petitioner stated that after this court affirmed the convictions, counsel informed the Petitioner that the Tennessee Supreme Court denied the application for permission to appeal. The Petitioner said that the final communication he received from counsel stated the Petitioner would be appointed new counsel for post-conviction proceedings.

The Petitioner maintained that had appellate and trial counsel represented him differently, he would have been convicted of attempted voluntary manslaughter, rather than attempted first degree murder, and he would not have been convicted of especially aggravated robbery.

Trial counsel testified that he focused his trial strategy on challenging the sufficiency of the evidence for the carjacking and the attempted first degree murder charges. Counsel stated that he discussed with the Petitioner the strategy of arguing that the Petitioner was overcharged.

On cross-examination, trial counsel testified that he asked to withdraw from representation before the motion for a new trial was filed due to an irreparable breakdown in the attorney-client relationship. Counsel could not recall if he had conversations with the Petitioner about the delay between the sentencing hearing and the filing of the sentencing order and judgments. Counsel testified that he asked the trial court about the status of the Petitioner's judgments and sentencing order and encouraged the court to issue the order. Counsel also could not recall if after the sentencing hearing he informed the Petitioner that the judgments would not take long to be filed.

Trial counsel could not recall any incident in which someone reportedly video recorded the jury. Counsel maintained that if he had witnessed the video recording of a juror, he would have brought it to the trial court's attention. Even though he could not recall the details of the alleged recording event, counsel acknowledged that the trial transcript correctly reflected any actions he took.

Appellate counsel testified that he was appointed to the Petitioner's case after trial counsel was allowed to withdraw. When appellate counsel reviewed the transcript, he determined that the Petitioner's mens rea was a disputed legal issue. Counsel focused his appellate strategy on the sufficiency of the evidence to support the attempted first degree murder and especially aggravated robbery convictions. Counsel also identified excessive sentencing as a viable issue on appeal.

Appellate counsel testified that he wrote the Petitioner at least five times and that he communicated with the Petitioner's family throughout the appeal process. Counsel said he explained to the Petitioner that a delay in sentencing was not unusual for the trial court. Counsel said that when the Petitioner mentioned raising on appeal the video recording incident, counsel advised the Petitioner that no legal issue was apparent from the trial transcript. Counsel testified that in his opinion, trial counsel had not performed deficiently in not asking for a mistrial after the recording incident. Appellant counsel said the trial transcript contained no evidence to support a mistrial or a claim of jury tampering.

Appellate counsel testified that he raised the same issues in the motion for a new trial and on appeal. Counsel said that when this court affirmed the convictions, he filed a Tennessee Supreme Court Rule 11 application, which was denied.

On cross-examination, appellate counsel testified that he learned of the Petitioner's sentences before the motion for a new trial was filed. Counsel said he obtained the sentencing order during the summer of 2017 before obtaining the trial transcript. Counsel said that he informed the Petitioner a delayed sentencing order was not a speedy trial issue, that a delay in issuing a written sentencing order was not uncommon for the trial court, and that he believed the delay did not...