State v. Sewell

1

STATE OF TENNESSEE v. GLENN SEWELL

No. W2021-00023-CCA-R3-PC

Court of Criminal Appeals of Tennessee, Jackson

November 2, 2022

Session September 7, 2022

Appeal from the Criminal Court for Shelby County No. 12-03950 Jennifer Johnson Mitchell, Judge

Petitioner Glenn Sewell, appeals the denial of his post-conviction petition, arguing that the post-conviction court erred in denying his claim of ineffective assistance of counsel at trial. Following our review of the entire record and the briefs and oral arguments of the parties, we affirm the judgment of the post-conviction court.

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

Josie S. Holland, Memphis, Tennessee (on appeal); David Huggins (at trial) for the appellant, Glenn Sewell.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant District Attorney General, for the appellee, State of Tennessee.

Jill Bartee Ayers, J., delivered the opinion of the court, in which J. Ross Dyer, and John W. Campbell, Sr., JJ., joined.

OPINION

JILL BARTEE AYERS, JUDGE

Petitioner was indicted by the Shelby County Grand Jury for two counts of aggravated assault (counts one and two), three counts of vandalism over $1,000 but less than $10,000 (count three, four, and seven), one count of theft of property over $1,000, but less than $10,000 (count five), and one count of vandalism of over $500 but less than $1,000 (count six). A jury trial was held on the seven counts. The facts of this case as summarized on direct appeal are as follows:

This case arose after Suzie Doyle's 1994 black Chevrolet Silverado pickup truck was stolen. Ms. Doyle testified that on February 14, 2012, she parked her truck in a Kroger parking lot before going to work. When she finished work and returned to the parking lot, she discovered that her truck was not there. Ms. Doyle had one set of keys to the truck, and her husband had the spare set. She did not leave the keys in the ignition of the car, and her husband did not use his spare set of keys to take the vehicle. She called police to report the truck as stolen.

Officers of the Shelby County Sheriff's Office in the "Alert Unit," which dealt with retail and other types of theft, developed [Petitioner] as a suspect and began to investigate various locations where [he] was either known to frequent or had family members. Detective Raoul Gonzalez testified that when he drove by an address on Beowolf Glade Cove, he spotted the stolen pickup truck in a driveway. Detective Gonzalez immediately notified members of the Alert Unit that he had located the vehicle. Officers arrived at the scene to set up surveillance of the vehicle and to arrest [Petitioner] once he entered the vehicle. Detective Gonzalez, along with Detective David Ballard, Sergeant Barry Clark, and other officers, parked on Glen Birnie, a street perpendicular to Beowolf Glade Cove. Sergeant Clay [Aitken] parked at the end of Beowolf Glade Cove to observe the vehicle. Detective Gonzalez was driving a silver Chevrolet Silverado truck, and Sergeant [Aitken] was driving a black Chevrolet Silverado truck.

When Sergeant [Aitken] observed [Petitioner] walking toward the vehicle, he issued the "take-down signal." Detectives Gonzalez and Ballard testified that the plan was to use their own vehicles to box [Petitioner] into the driveway and prevent him from fleeing, with Detective Ballard to pull in behind the truck and Detective Gonzalez to pull in front of the truck. Detective Gonzalez began driving across the yard to get in front of [Petitioner]'s vehicle once he received the take-down signal. He saw [Petitioner] get into the stolen vehicle, made eye contact with [Petitioner] while he was in the truck, and heard "the engine at wide open throttle." Detective Gonzalez testified that once he pulled in front of [Petitioner], [Petitioner] accelerated forward, hitting Detective Gonzalez's driver's side door with Ms. Doyle's vehicle.

Detective Ballard testified that once he received the take-down signal, he pulled into the driveway behind the stolen pickup truck, stopping about "three inches from the bumper" of the pickup. Detective Ballard exited his vehicle and began to give commands to [Petitioner], at which point [Petitioner] gave Detective Ballard "kind of a grin" and "jumped in the truck." Detective Ballard got back into his vehicle and applied the brake, believing that [Petitioner] was going to strike his vehicle. Instead,

[Petitioner] placed the truck in drive and started toward the house before making a sharp left turn to cut across the yard. Detective Ballard testified that Detective Gonzalez had not arrived in front of [Petitioner]'s vehicle before [Petitioner] started driving but that he was instead pulling along side of the truck when his car was hit. Although Detective Gonzalez testified that he had driven in front of [Petitioner]'s vehicle before [Petitioner] began driving, both detectives agreed that [Petitioner] struck Detective Gonzalez's vehicle.

After striking Detective Gonzalez's truck, [Petitioner] continued driving, proceeding through the yard of James Smithmier and toward the street. Detectives Ballard and Gonzalez drove through the yard as well in pursuit of [Petitioner]. [Petitioner] hit Mr. Smithmier's mailbox before driving onto Beowolf Glade Cove, where Sergeant [Aitken] had initially set up surveillance. Both detectives testified that [Petitioner] struck Mr. Smithmier's mailbox.

When [Petitioner] began his flight, Sergeant [Aitken] had started to drive toward [Petitioner] from the end of Beowolf Glade Cove. As a result, the two vehicles were on a collision course once [Petitioner] drove his truck onto the street. Sergeant [Aitken] swerved his vehicle to avoid a head-on collision, but [Petitioner] struck the side of Sergeant [Aitken]'s vehicle.

After striking Sergeant [Aitken]'s vehicle, [Petitioner] proceeded to drive through the yard of James Walker. He smashed through a ten-foot section of Mr. Walker's fence and caused damage to the side of the house, the gutter, flower beds, and a wooden swing before crashing the pickup truck into a tree and attempting to flee on foot. Officers apprehended [Petitioner] shortly after he exited his vehicle.

After [Petitioner]'s arrest, officers contacted Ms. Doyle to inform her that they had recovered her pickup truck. She testified that she paid "about $5,400" for the pickup truck and estimated that she spent "at least $3,000" repairing the truck after it was stolen and damaged.

Both Mr. Smithmier and Mr. Walker testified regarding the damage to their property. Mr. Smithmier testified that on the day of the incident, he viewed his mailbox in the street with mail strewn everywhere. Mr. Smithmier spent $98 on a new mailbox, and he purchased concrete and dug a hole for the mailbox. Mr. Walker testified that a photograph of Ms. Doyle's truck wrecked into a tree was taken in his backyard. He estimated that the cost of repairs to his damaged property was "roughly" $3,250. The State introduced an invoice showing that the total cost of the repairs to Mr. Walker's property was $3,215.64.

Tim Albin testified that he worked for the Shelby County Sheriff's Office Fleet Operations. He testified that the vehicles driven by Detective Gonzalez and Sergeant [Aitken] were fairly new vehicles that did not have any prior wrecks or dents. The State introduced an itemized bill showing that the cost of the parts, labor, and paint supplies to repair Detective Gonzalez's vehicle was $1,870.53. The State also introduced an itemized repair bill for Sergeant [Aitken]'s vehicle, and the total cost of the parts, labor, and paint supplies was $1,497.78. ^[1]

State v. Glenn^[2] Sewell, No. W2014-00984-CCA-R3-CD, 2015 WL 1932287, at *1-2 (Tenn. Crim. App. Apr. 29, 2015) (footnote omitted).

The jury found Petitioner not guilty of aggravated assault of Detective Gonzalez and of Sergeant Aitken in counts one and two. In count three, the jury found Petitioner guilty of the lesser offense of vandalism of $500 or more to Detective Gonzalez's truck. In count four, the jury convicted Petitioner as charged of vandalism of $1,000 or more to Sergeant Aitken's truck. In count five, the jury convicted Petitioner as charged of the theft of Ms. Doyle's truck. In count six, the jury convicted Petitioner of the lesser offense of vandalism less than $500 to Mr. Smithmier's mailbox. And in count seven, the jury found Petitioner guilty as charged of vandalism to Mr. Walker's property in an amount more than $1,000but less than $10,000.

At sentencing, Petitioner's presentence report was introduced and revealed that Petitioner had been "accepted into the Warriors Center Program." While Petitioner provided the probation officer preparing the report with the acceptance letter from Charles Leichner dated February 2, 2013, the letter was not attached to the presentence report. Petitioner also reported that he first consumed alcohol at age eleven and began smoking marijuana at age thirteen. He began using heroin at age eighteen and continued to use it daily until February 2012. He had not undergone any treatment program.

The State submitted copies of certified judgments reflecting twelve prior felony convictions and relied on seven of the prior felonies for purposes of enhanced punishment. Petitioner's criminal record began at age seventeen and continued nearly unabated to age thirty-two. The judgments also reflected two separate instances of probation being revoked. During his allocution, Petitioner pleaded for "mercy" and referenced his issue with drugs "I've never robbed nobody, beat up nobody, and like [trial counsel] said, I've got a drug...