Calvin Ellison v. State of Tennessee
W2016-01784-CCA-R3-PC
| Tenn. Crim. App. | Jun 7, 2017Background
- Petitioner Calvin Ellison was tried for shooting at Joshua and Princess Cathey; jury convicted him of reckless endangerment (misdemeanor), aggravated assault, and employing a firearm during the commission of a dangerous felony; acquitted of a second aggravated assault count.
- Petitioner’s direct appeal failed; he then filed a timely post-conviction petition alleging ineffective assistance of trial and appellate counsel and moved to set aside fines and costs.
- At the post-conviction evidentiary hearing petitioner claimed counsel omitted many desired appellate issues, failed to challenge consecutive sentencing, failed to challenge duplicity/double jeopardy, failed to move to suppress an alleged illegal arrest/evidence tampering, and failed to raise prosecutorial misconduct.
- Trial/appellate counsel testified he reviewed discovery (including the surveillance video), filed motions (to suppress statement and to remove a prosecutor), believed consecutive sentencing was mandated by statute, and raised the issues he could given procedural rules.
- The post-conviction court accredited counsel’s testimony, denied relief (except waiving fines), and ruled petitioner failed to prove deficient performance or prejudice; this appeal followed.
Issues
| Issue | Ellison's Argument | State's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not challenging consecutive alignment of sentences | Counsel failed to raise or argue consecutive sentencing; alignment illegal and sentences should have run concurrently | Counsel and trial court believed consecutive sentences were mandated; if mistaken, petitioner cannot show prejudice | Denied — even if counsel erred, petitioner failed to show prejudice; no reasonable probability the outcome would differ |
| Whether convictions violated double jeopardy (duplicitous indictment / multiple description) | Firearm offense and aggravated assault punish same conduct; counsel should have raised double jeopardy | Offenses have distinct elements; Blockburger/multiple description test allows both convictions | Denied — offenses require proof of different elements; counsel not deficient for not raising claim |
| Whether counsel was ineffective for not moving to suppress arrest/evidence (claims of tampering / missing video) | Police mishandled scene and video; counsel should have moved to suppress illegal arrest/evidence | Petitioner produced no record showing evidence resulted from illegal arrest or was tampered; counsel reviewed discovery and video with petitioner | Denied — petitioner failed to prove facts showing a suppressible illegality or counsel deficiency |
| Whether counsel ineffectively failed to preserve/raise prosecutorial misconduct and to create an adequate appellate record | Counsel ignored alleged vindictive/prosecutorial misconduct and declined to raise multiple issues on appeal | No evidence of prosecutorial vendetta; many issues were procedurally defaulted or not viable on appeal; counsel pursued appealable issues | Denied — petitioner presented no clear and convincing evidence of misconduct or that counsel performed deficiently |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance standard: deficiency and prejudice)
- Baxter v. Rose, 523 S.W.2d 930 (defense counsel must meet range of competence in criminal cases)
- State v. Watkins, 362 S.W.3d 530 (adopts Blockburger test for multiple description/double jeopardy analysis)
- Henley v. State, 960 S.W.2d 572 (post-conviction factual findings given deference on appeal)
- Kendrick v. State, 454 S.W.3d 450 (strong presumption counsel provided adequate assistance; burden on petitioner)