Ray L. Morehead v. State of Tennessee

                                                                                          12/27/2023
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 7, 2023

               RAY L. MOREHEAD v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 17-02533, C1704521 W. Mark Ward, Judge
                      ___________________________________

                           No. W2022-01215-CCA-R3-PC
                       ___________________________________


The Petitioner, Ray L. Morehead, appeals the denial of his petition for post-conviction
relief, arguing that he received ineffective assistance of trial counsel and that his guilty
pleas were unknowing, unintelligent, and involuntary. Based on our review, we affirm the
judgment of the post-conviction court denying the petition.

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

JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, P.J., and JILL BARTEE AYERS, J., joined.

Roberto Garcia, Jr., Memphis, Tennessee, for the appellant, Ray L. Morehead.

Jonathan Skrmetti, Attorney General and Reporter; Katharine K. Decker, Senior Assistant
Attorney General; Steve Mulroy, District Attorney General; and Gavin Smith, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

        On June 1, 2017, the Shelby County Grand Jury returned a two-count indictment
that charged the Petitioner with rape, a Class B felony, and sexual battery by an authority
figure, a Class C felony, based on acts committed against the Petitioner’s stepdaughter. On
June 5, 2020, the Petitioner pled guilty to both counts in the Shelby County Criminal Court.
Pursuant to the terms of his negotiated plea, he was sentenced to ten years for each
conviction with the sentences to be served concurrently with each other and concurrently
with his sentence for a prior Nebraska conviction involving the same victim as well as a
second victim. At the guilty plea hearing, the Petitioner’s trial counsel stipulated to the
following factual basis for the pleas:

              Had this matter gone to trial, State’s proof would have been that on or
       about June 10, 2016, while visiting Memphis for a conference, the victim in
       this case advised that her step dad [the Petitioner] and she were at the
       Peabody Hotel between April 1st and April 7th of 2015. He forced her to
       perform oral sex by sticking his penis in her mouth and moving it backwards
       and forwards. This happened twice. He also touched her breasts and her
       vaginal area.

        On May 10, 2021, the Petitioner filed a pro se petition for post-conviction relief in
which he raised several claims, including ineffective assistance of counsel and involuntary
and unknowing guilty pleas. In the pro se petition, he alleged that trial counsel was
deficient in his representation, leading to the entry of involuntary and unknowing guilty
pleas, by not ensuring that the profoundly deaf Petitioner received a battery for his hearing
aid or otherwise establishing adequate communications with him. The Petitioner alleged
that his inability to communicate with trial counsel, to hear the guilty plea proceedings, or
to understand the American Sign Language (“ASL”) interpreter provided for him resulted
in his entry of involuntary and unknowing guilty pleas. In an amended petition filed after
the appointment of post-conviction counsel, the Petitioner alleged that “his skillset in ASL
was limited[,]” and that his “right to have an attorney represent him at critical stages was
violated [by] his inability to properly communicate with trial counsel.” He further alleged
that, were it not for trial counsel’s failure to provide a battery for his hearing aid, he would
have gone to trial.

        At the post-conviction evidentiary hearing, the Petitioner testified that he and trial
counsel, who represented him through the public defender’s office, had a communication
problem. He explained that his hearing aid battery was dead when he arrived at the jail
and that without it, he was unable to hear. When asked if he would be able to hear if
someone was one foot in front of him, he responded that he “would hear a noise.” He said
his first meeting with trial counsel was frustrating because he had to repeatedly ask trial
counsel to speak up. He stated that he met with trial counsel six or seven times but was
unable to communicate with him in their meetings. He was unable to call trial counsel on
the telephone due to his hearing problem, so he tried to communicate with him by writing
letters. He recalled that he sent a total of four letters to trial counsel. He testified that trial
counsel gave him a discovery packet but never discussed it with him because they were
unable to communicate. Trial counsel also never told him he was going to get an



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investigator and never told him whether he had communicated with the victim and the
victim’s mother.

        The Petitioner testified that trial counsel eventually used an ASL translator for their
final three meetings, which included the guilty plea hearing. He said he could function
with ASL but was not fluent and in a legal setting was “not good at it at all.” He stated
that he learned ASL in early 2018 in an informal setting from a deaf friend, with whom he
communicated at only a basic level. Moreover, by the time he entered his guilty pleas after
spending over a year in jail, his ASL skills had diminished. Therefore, although an ASL
interpreter was present at the guilty plea hearing, he “had difficulty understanding the
translator and [ ] just wasn’t comfortable with the idea of taking it to trial at that time.”
When asked if he felt that trial counsel provided ineffective assistance because he did not
provide a hearing aid, the Petitioner responded, “[a]bsolutely.”

       On cross-examination, the Petitioner testified that trial counsel tried to talk to him
during their six or seven meetings, but he was unable to hear trial counsel. He then said
that when they were discussing the charges, trial counsel showed him the paperwork.
Asked to explain what he meant by “discussing,” he replied that “[d]iscussing it in this case
would be I’m basically reading his body language or whatever.” Upon questioning by the
post-conviction court, the Petitioner testified that he could speak without his hearing aid
and tried to talk to trial counsel but was unable to hear trial counsel’s responses.

       The Petitioner testified that when trial counsel showed him the discovery packet, he
asked trial counsel questions about what was going on. He said that trial counsel tried to
explain it to him but he had to ask trial counsel to raise his voice so that he could hear him.
Trial counsel raised his voice “[f]or a little while” and he could hear trial counsel “[f]or
just a tiny bit[.]” The Petitioner acknowledged that he and trial counsel had some
discussion about his guilty plea conviction in Nebraska that involved similar facts. Upon
questioning by the post-conviction court, the Petitioner testified that, in the Nebraska case,
he was represented by an attorney and entered a guilty plea to sexual assault of a child in
exchange for a five-year sentence. He said he had a hearing aid at that time, and that his
attorney explained to him his constitutional rights. He stated that the Nebraska trial judge
probably also explained his rights but indicated that he could not recall due to the passage
of time.

        At the request of the post-conviction court, the Petitioner marked with a yellow
highlighter on a transcript of the guilty plea hearing the sections that he had not understood
at the time he entered his pleas. The transcript, admitted as an exhibit to the hearing, shows
that the Petitioner highlighted the portion in which the trial court asked if he understood
that he would have to register as a sex offender and would be subject to community

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supervision for life. The Petitioner then testified that he originally thought he would be
subject to community supervision for ten years and did not understand that it was for life
until the trial court explained it to him at the guilty plea hearing. Upon further questioning
by the post-conviction court, the Petitioner acknowledged that he understood the plea
agreement, including that he would be subject to community supervision for life. He said,
however, that he “didn’t feel like [he] had any choice but to accept it.” The Petitioner
explained that if he had not accepted the plea agreement, he would have “gone back to jail
and sat there for another year.”

        Upon further direct examination, the Petitioner testified that his conversations with
trial counsel lasted less than five minutes. He said he did not think he had any other option
than to plead guilty due to trial counsel’s ineffective representation. Upon questioning by
the post-conviction court, the Petitioner testified that he had a high school diploma and a
two-year associate’s degree in “[c]omputer technology, telecommunications.” He stated
that after he pled guilty in the instant case, he returned to Nebraska to complete the
approximate six weeks that remained on his five-year sentence for his Nebraska conviction.
When the post-conviction court asked if his testimony was that he pled guilty because he
did not want to delay the court process, he agreed, testifying:

              That’s correct, sir. I mean, again, I’d already been sitting in jail for a
       year. I couldn’t hear anything, right? So, I’m sitting there, I can barely have
       conversations with people. It’s - - it wears on you. Okay? It’s
       psychologically exhausting.

        The Petitioner testified that he did not ask the trial court for a hearing aid because
he did not know what he was allowed to say to the trial court. Furthermore, he thought that
trial counsel was supposed to “look out for [his] interests.”

        Trial counsel, a twenty-four-year employee of the public defender’s office who was
called as a witness by the Petitioner, testified that he represented the Petitioner through the
entry of his guilty pleas in 2020. He said he had problems communicating with the
Petitioner due to the Petitioner’s inability to hear him. The Petitioner told him that he
needed a battery for his hearing aid, and trial counsel asked the chief jailer if he could bring
batteries into the jail for the Petitioner. The chief jailer said no, and trial counsel then asked
if there was anyone at the jail who could provide the Petitioner with a battery. The response
was that “they would look into it but it just never got done.” Trial counsel testified that he
eventually got an ASL translator to help in his communications with the Petitioner,
although the Petitioner told him that he was not very good at ASL. He said he still had
problems communicating even with the interpreter, and that he and the Petitioner “ha[d] to
write stuff down, send notes back and forth.” Trial counsel identified his handwriting on

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a note he wrote to the Petitioner during the guilty plea hearing, which stated: “I’m
explaining to you the rights you’re giving up in order to settle the case. You can testify at
trial or not, and if you did not, the jury could not use your silence to convict you.” Trial
counsel acknowledged that the note did not include a complete list of the Petitioner’s
constitutional rights but said it was “the one [the Petitioner] didn’t understand.”

       Trial counsel testified that he met with the Petitioner “[s]everal times, some with
interpreters, some not.” He said the meetings varied in length, with the meetings that
involved interpreters lasting twenty minutes or more. He stated that he had an interpreter
with him when he advised the Petitioner of his rights, and that the Petitioner appeared to
understand. He elaborated that he and the Petitioner together reviewed the written plea
waiver in detail: “Yeah. I mean, everything is written in the plea waiver[,] and we went
over that, basically, word-for-word. And when he said he didn’t understand something,
that’s when I would either ask the interpreter or write a note to him.” Trial counsel could
not remember if he used an investigator in the case. He said he did not contact the victim,
but he did reach out via email to the Petitioner’s attorney in Nebraska.

        On cross-examination, trial counsel testified that it was the Petitioner’s decision to
plead guilty. He said he did not pressure or influence the Petitioner into accepting the plea
deal; had the Petitioner wanted to proceed to trial, he would have set the case for trial.
When asked by the post-conviction court whether he thought the plea deal was in the
Petitioner’s best interest, trial counsel replied that he did, and that the crux of the plea
negotiations was whether the Petitioner could have his Tennessee sentence run
concurrently with his sentence for his Nebraska case involving essentially the same facts.
He stated that he told the Petitioner that he could “get something on the paperwork”
reflecting concurrent sentences in Tennessee but could not control what happened in
another state. The Petitioner “was trying to get the best possible deal, but he didn’t seem
too keen on fighting the case either.”

       On August 18, 2022, the post-conviction court entered an order denying the petition,
concluding that the Petitioner failed to meet either the deficiency or prejudice prong of his
ineffective assistance of counsel claim and that the Petitioner’s guilty pleas were
knowingly, intelligently and voluntarily entered. Thereafter, the Petitioner filed a timely
notice of appeal to this court in which he argues that the post-conviction court erred in
denying the petition.

                                        ANALYSIS

      Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of

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Tennessee or the Constitution of the United States.” 

. The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.

(f). When an evidentiary hearing is held in the post-
conviction setting, the findings of fact made by the court are conclusive on appeal unless
the evidence preponderates against them. Wiley v. State, 

 (Tenn.
2006). When reviewing factual issues, the appellate court will not reweigh the evidence
and will instead defer to the post-conviction court’s findings as to the credibility of
witnesses or the weight of their testimony. Phillips v. State, 

, 400 (Tenn.
2022) (citations omitted). However, review of a post-conviction court’s application of the
law to the facts of the case is de novo, with no presumption of correctness. 

 (citing
Fields v. State, 

 (Tenn. 2001) and Mobley v. State, 

(Tenn. 2013)). The issue of ineffective assistance of counsel, which presents mixed
questions of fact and law, is reviewed de novo, with a presumption of correctness given
only to the post-conviction court’s findings of fact. Phillips, 647 S.W.3d at 400 (citing
Dellinger v. State, 

 (Tenn. 2009)).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 

 (1984); see State v. Taylor, 

 (Tenn.
Crim. App. 1997) (noting that the same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland standard
is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial whose
       result is reliable.

.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 

 (Tenn. 1996)
(citing Strickland, 

; Baxter v. Rose, 

 (Tenn. 1975)).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 

, and

                                             -6-
may not second-guess the tactical and strategic choices made by trial counsel unless those
choices were uninformed because of inadequate preparation. See Hellard v. State, 

 (Tenn. 1982).

       The prejudice prong of the test is satisfied by showing a reasonable probability, i.e.,
a “probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,

.

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”

; see Goad, 

 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”). In the context of a guilty plea, the petitioner must show a reasonable
probability that were it not for the deficiencies in counsel’s representation, he would not
have pled guilty but would instead have insisted on proceeding to trial. Hill v. Lockhart,

 (1985); House v. State, 

 (Tenn. 2001).

       When analyzing a guilty plea, we look to the federal standard announced in Boykin
v. Alabama, 

 (1969), and the state standard set out in State v. Mackey, 

 (Tenn. 1977). State v. Pettus, 

 (Tenn. 1999). In Boykin,
the United States Supreme Court held that there must be an affirmative showing in the trial
court that a guilty plea was voluntarily and knowingly given before it can be accepted.
Boykin, 

. Similarly, our Tennessee Supreme Court in Mackey required an
affirmative showing of a voluntary and knowledgeable guilty plea, namely, that the
defendant has been made aware of the significant consequences of such a plea. Pettus, 

.

        A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 

 (Tenn. 1993). The
trial court must determine if the guilty plea is “knowing” by questioning the defendant to
make sure he or she fully understands the plea and its consequences. Pettus, 

; Blankenship, 

. Because the plea must represent a voluntary and
intelligent choice among the alternatives available to the defendant, the trial court may look
at a number of circumstantial factors in making this determination. Blankenship, 

. These factors include: (1) the defendant’s relative intelligence; (2) the
defendant’s familiarity with criminal proceedings; (3) whether the defendant was
represented by competent counsel and had the opportunity to confer with counsel about
alternatives; (4) the advice of counsel and the court about the charges against the defendant



                                            -7-
and the penalty to be imposed; and (5) the defendant’s reasons for pleading guilty,
including the desire to avoid a greater penalty in a jury trial. 

.

       In denying the petition, the post-conviction court found, among other things, that
the Petitioner was “exaggerating his claimed deficiency with ASL[,]” that the Petitioner
was a well-educated individual who had previously pled guilty to molesting the same
victim after being fully informed of his rights, and that it was clear from the Petitioner’s
own testimony that he knew he had the option of going to trial but chose to plead guilty
simply to avoid sitting in jail. The post-conviction court noted that trial counsel took steps
to address the communication problems by engaging an ASL translator and communicating
with the Petitioner in writing. The post-conviction court further noted the times during his
evidentiary hearing in which the Petitioner acknowledged that he understood everything
that occurred at the guilty plea hearing and indicated that he chose to plead guilty in order
to avoid spending more time in jail. The post-conviction court, therefore, concluded that
the Petitioner failed to prove either ineffective assistance of counsel or that his guilty pleas
were coerced or involuntary.

        The record supports the findings and conclusions of the post-conviction court. The
transcript of the guilty plea hearing demonstrates that the Petitioner assured the trial court
that he was entering his pleas knowingly, intelligently, and voluntarily and that he was
satisfied with the representation of trial counsel. An admission by the petitioner that he
entered his guilty plea voluntarily weighs in favor of finding a voluntary guilty plea. See
Franklin v. State, No. M2021-00367-CCA-R3-PC, 

, at *4 (Tenn. Crim.
App. Mar. 23, 2022) (affirming finding of a knowing and voluntary guilty plea, in part,
when “Petitioner told the court that he understood the plea agreement and the rights he
waived by pleading guilty, that he was satisfied with counsel's performance, and that he
was pleading guilty voluntarily.”), no perm. app. filed. The Petitioner asked a question of
the trial court about the lifetime supervision aspect of his guilty pleas, expressing that he
thought it was a ten-year year period of supervision. However, when the trial court clarified
that it was lifetime supervision, the Petitioner indicated that he understood and accepted
that condition.

       At the post-conviction evidentiary hearing, the Petitioner acknowledged that he
understood everything that was said during the guilty plea hearing. He further
acknowledged that he had previously pled guilty in Nebraska to a similar charge at a time
when he was represented by counsel and had the benefit of a working hearing aid, and that
his Nebraska attorney, as well as likely the Nebraska judge, reviewed with him his
constitutional rights. The Petitioner testified that he wrote trial counsel letters, and trial
counsel testified that he passed notes back and forth with the Petitioner and reviewed “word



                                             -8-
for word” the written guilty plea waiver. Finally, trial counsel testified that it was the
Petitioner’s decision to plead guilty and that he appeared to understand his guilty pleas.

        The Petitioner argues on appeal that the prejudice prong of his ineffective assistance
of counsel claim should be presumed due to his hearing disability. Specifically, he asserts
that his hearing disability, which prevented him for communicating with trial counsel or
hearing the proceedings, “made it so that not even a competent attorney could effectively
advise and represent [him].” In United States v. Cronic, 

 (1984), the
United States Supreme Court described three situations in which prejudice should be
presumed because the circumstances “are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified.” 

 (1984). Those
circumstances include when the conditions are such that “the likelihood that any lawyer,
even a fully competent one, could provide effective assistance is so small that a
presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.”

.

       We disagree that such circumstances existed in this case. The Petitioner’s testimony
established that he was, in fact, able to communicate with trial counsel, either by having
trial counsel raise his voice, through writing, or through the ASL interpreter. The
Petitioner’s testimony also established that he understood his negotiated plea and what
transpired in the guilty plea hearing and made the informed choice to plead guilty to avoid
having to spend more time in the county jail. We, therefore, conclude that the post-
conviction court properly denied the petition for post-conviction relief.

                                      CONCLUSION

       Based on our review, we affirm the judgment of the post-conviction court denying
the petition for post-conviction relief.



                                                  _________________________________
                                                  JOHN W. CAMPBELL, SR., JUDGE




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