Jerome Johnson v. State of Tennessee
W2016-02349-CCA-R3-PC
| Tenn. Crim. App. | Sep 15, 2017Background
- Jerome Johnson was indicted for attempted second-degree murder, aggravated assault, and solicitation of a false police report for assaults on his girlfriend in June 2010; he was convicted at trial of reckless endangerment (lesser included of Count One), aggravated assault (Count Two), and solicitation (Count Three).
- Sentences: 15 years (Range III persistent offender) for aggravated assault, and 11 months/29 days each for reckless endangerment and solicitation; one concurrent and one consecutive for an effective sentence of 15 years, 11 months, 29 days.
- Between indictment and trial, Tennessee adopted the Blockburger same-elements test in State v. Watkins, replacing the state-specific Denton multi-factor test; the trial court informed Johnson about Watkins before trial.
- Johnson asserted at trial and in post-conviction proceedings that counsel was ineffective for not arguing Denton (and for not advising or objecting based on double jeopardy and ex post facto concerns regarding Watkins), and appellate counsel was ineffective for not raising those issues on direct appeal.
- The post-conviction court denied relief, finding trial counsel’s conduct reasonable (Watkins applied, aggravated assault not a lesser-included of attempted murder under Blockburger), appellate decisions tactical and proper, and many claims waived for not being asserted properly; the Court of Criminal Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance of trial counsel for not arguing Denton/doctrine that convictions should merge | Johnson: counsel should have advocated applying Denton so convictions would merge (double jeopardy) | State: Watkins (Blockburger) governs; trial counsel reasonably concluded Denton no longer applied; no deficient performance | Denied — counsel’s choice reasonable; Watkins applied; no prejudice shown |
| Failure to advise re: Watkins / ex post facto waiver | Johnson: counsel failed to advise him and he didn’t consent to Blockburger application or waive ex post facto concerns | State: trial court informed Johnson about Watkins; counsel not ineffective for not repeating court’s advisement | Denied — trial court had informed Johnson; no prejudice |
| Ineffective assistance of appellate counsel for not raising double jeopardy/ex post facto on appeal | Johnson: appellate counsel omitted these issues on direct appeal | State: claim waived because not raised in post-conviction petition; issues lack merit | Denied and/or waived — issue waived and, in any event, meritless |
| Merger / double jeopardy and ex post facto claims as independent bases for relief | Johnson: convictions should merge; Watkins retroactive application violates ex post facto | State: substantive legal basis lacking; claims were not pleaded as independent grounds in post-conviction petition | Denied — claims waived and meritless under applicable precedent |
Key Cases Cited
- State v. Watkins, 362 S.W.3d 530 (Tenn. 2012) (adopted the Blockburger same-elements test in Tennessee)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (same-elements test for multiple punishments)
- State v. Denton, 938 S.W.2d 373 (Tenn. 1996) (previous Tennessee multi-factor double jeopardy test)
- State v. Feaster, 466 S.W.3d 80 (Tenn. 2015) (held Watkins’ abandonment of Denton may be applied retroactively)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part ineffective assistance of counsel test)