Eric Demond McCathern v. State of Tennessee, M2016-02143-CCA-R3-PC

Background

McCathern was tried twice for aggravated burglary, possession of ≥26g cocaine with intent to sell within 1000 ft of a school, and possession of drug paraphernalia; first trial hung, second resulted in convictions and a 35-year sentence.
Police found small quantity of cocaine and scales by a window and a large quantity of cocaine in the oven of a sparsely furnished apartment that appeared used as a drug site; McCathern entered through a window and was with a co-defendant.
At the first trial McCathern told the jury he would plead guilty to burglary; after a mistrial, at the second trial he (without colloquy or entry of judgment) told the jury he pled guilty to aggravated burglary, then the jury convicted him on all counts.
Post-conviction petition alleged ineffective assistance: counsel was deficient in advising the in-court guilty plea (which conceded mens rea relevant to the drug charge), failing to seek severance, and failing to assert standing to move to suppress evidence.
Post-conviction court denied relief; the Court of Criminal Appeals reviewed counsel’s performance under Strickland and related Tennessee precedent and affirmed, finding deficiency on the plea-advice claim but no prejudice, and no deficiency or prejudice for severance or suppression claims.

Issues

Issue	McCathern's Argument	State's Argument	Held
Whether counsel was ineffective for advising McCathern to confess (tell jury he pled guilty) to aggravated burglary, thereby conceding elements of the drug charge	Counsel’s advice caused McCathern to concede intent/knowledge and possession elements of the cocaine charge	The in-court confession was not a formal plea; counsel’s advice was a strategic attempt to dissociate McCathern from the drugs; even if deficient, no prejudice shown	Counsel’s advice was deficient, but McCathern failed to show a reasonable probability of a different outcome; relief denied
Whether counsel was ineffective for failing to move to sever the aggravated burglary plea from the drug charge	Severance was required or should have been sought because the plea prejudiced the drug count	Offenses were mandatorily joined; no evidence severance would have been granted; the plea was part of trial strategy	No deficient performance shown; severance motion unlikely to succeed; relief denied
Whether counsel was ineffective for failing to assert McCathern’s possessory interest (standing) to move to suppress evidence from the apartment search	If counsel had admitted McCathern was the leaseholder under an alias, he could have moved to suppress the recovered cocaine	Admitting leaseholder status would concede inculpatory facts and undermine defense; the apartment appeared abandoned so suppression likely would fail	No deficiency or prejudice; motion to suppress unlikely to succeed; relief denied

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance test of deficiency and prejudice)
Boykin v. Alabama, 395 U.S. 238 (guilty plea is a conviction and voluntary confession requiring formal colloquy to accept plea)
Florida v. Nixon, 543 U.S. 175 (distinguishes counsel’s concession of guilt from a guilty plea where State still must prove elements)
United States v. Cronic, 466 U.S. 648 (prejudice inquiry and when trial reliability is undermined)
Kendrick v. State, 454 S.W.3d 450 (Tenn. 2015) (standard of review for post-conviction factual findings and ineffective assistance issues)
Vaughn v. State, 202 S.W.3d 106 (Tenn. 2006) (tactical decision not to file suppression motion when it would contradict defense)
State v. Talley, 307 S.W.3d 723 (Tenn. 2010) (abandonment/expectation of privacy factors affecting suppression)
State v. Ross, 49 S.W.3d 833 (Tenn. 2001) (disclaimer of interest may eliminate expectation of privacy and suppressibility)