Arthur Turner v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED AUGUST SESSION, 1998 September 23,1998

Cecil W. Crowson

Appellate Court Clerk

ARTH UR R . TUR NER , ) C.C.A. NO. 01C01-9707-CR-00274 )

Appe llant, )

) DAVIDSON COUNTY

V. )

)

) HON. THOMAS H. SHRIVER, JUDGE STATE OF TENNESSEE, )

)

Appellee. ) (POST-CONVICTION)

FOR THE APPELLANT: FOR THE APPELLEE:

DAVID A. COLLINS JOHN KNOX WALKUP 211 Printers Alley Building Attorney General & Reporter Fourth Floor Nashville, TN 37203 TIMO THY F . BEHAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North

Nashville, TN 37243

VICTO R S. JO HNS ON, III District Attorney General

NICHOLAS A. BAILEY

Assistant District Attorney General Washington Square

222 Second Avenue North, Suite 500 Nashville, TN 37201-1649

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

The Petitioner, Arthur R. Turner, appeals as of right the trial court’s dismissal of his petition of post-conviction relief. Petitioner raises the following two iss ues in this appeal: (1) whether he received the effective assistance of counsel and (2) whether it was plain error for the trial court to run his aggravated rape sentence conse cutive to his other se ntence s. W e affirm the judgm ent of the tria l court.

Defendant was indicted on four counts of aggravated rape, one count of espe cially aggravated kidnapping, one count of aggravated robbery, and one count of attempted aggravated rape. Petitioner pled guilty to especially aggravated kidnapping, aggravated robbery and two counts of aggravated rape. The sentences were to run concu rrent, except for the rap e sentence s which were to run conse cutive to each other for an effective sentence of forty years.

The trial court, following the post-conviction hearing, summarized the facts as follows:

On March 15, 1995, Petitioner Anthony Turner approached [victim] at a fitness center near the Hermitage area, forced her into her ca r at gun point, took her to a nearby location in Davidso n County a nd raped h er.

Petitioner then p laced [victim] in the trunk of the car, drove her to a location near the Rivergate area in Davidson Coun ty and raped her again. He subsequently placed [victim] back into the trunk and took a nap in her car. He awoke som etime the follo wing m orning and drove to McD onald ’s where he bought [victim] something to eat and permitted her to use the restroo m. Petitioner then put her back into the trunk and drove to his girlfrie nd’s h ouse in Smyrna. Wh ile he w as slee ping in side, [victim] escaped and contacted the police. Shortly thereafter, petitioner was arrested.

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The trial cou rt furthe r found the follo wing in regard to Petitio ner’s tria l coun sel:

[He] personally met with petitioner on eight or nine occasions and sp oke with him on the phone several times.

He explained that the original offer of (50) years was negotiated down to forty (40). [Trial counsel] mentioned the possibility of a sentencing hearing to petitioner, but felt that such a hearing would not have been helpful. [Trial coun sel] added that petitioner did not want a trial, that the case was pa rticularly bad in that the activities continued over the course of a twelve (12) hour period, and that there was really no good solution for petitio ner. [C ouns el]

did not rem emb er disc ussin g State v. Anthony, 817 S.W .2d 299 (Te nn. 1991), with pe titioner.

I. Assistance of Counsel

Petitioner argues that he received ineffective assistance of counsel because he was allowed to plead guilty to aggravated robbery an d esp ecially aggravated kidnapping in violation of State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). He also argues that his trial counsel allowed him to p lead o utside his sentencing range.

In post-conviction proceedings, the petitioner bears the burden of proving the allegations in his petition by a prep ondera nce of the evidenc e. See McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). This Court must give the findings of the trial court the weight of a jury verdict, and the judgment of the trial court will not be reversed unless the evidence contained in the record preponderates against the findings of fact made by the trial court. State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). Our supreme court has held:

If the transcript shows that the petition er was aware of his constitutional rights, he is not entitled to relief on the grounds that the mandated advice was not given. A lso, if all the proo f presen ted at the post-conviction hearing, including the transcript of the guilty plea hearing, shows

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that the petitioner was aware of his constitutional rights, he is not entitled to relief.

Johns on v. State , 834 S.W .2d 922, 926 (Tenn. 199 2).

In determining whether counsel provided effective assistance at trial, the court must decid e whe ther co unse l’s perfo rman ce wa s within the range of competence demanded of attorneys in criminal ca ses. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975 ). To s ucce ed on a claim that his coun sel was ineffective at trial, a petitioner bears the burden of showing that his counsel made errors so serious that he was not functioning as counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced the petitioner resulting in a fa ilure to produc e a reliable result. Strickland v. Washington, 466 U.S . 668, 693 , 104 S. C t. 2052, 80 L. Ed . 2d 674 , reh’g denied, 467 U.S. 12 67 (1984); Coope r v. State, 849 S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W.2d 898, 899 (Ten n. 1990). To satisfy the second prong the petitioner must show a reason able pro bability that, but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le doubt regardin g petitione r’s guilt. Strickland, 466 U.S . at 695. This reas onab le probab ility must be “sufficient to undermine confidence in the outcome.” Harris v. State, 875 S.W.2d 662, 665 (T enn. 19 94) (citation omitted) . In regard to guilty pleas, the petitioner m ust estab lish a reas onable probab ility that, but for the errors of coun sel, he wo uld not have entered into the plea. Adkins v. State, 911 S.W.2d 334, 349 (Ten n. Crim. App . 1994).

When reviewing trial counsel’s actions, this Court shou ld not u se the bene fit of hindsigh t to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard v. State, 629 S.W.2d 4, 9 (Te nn. 19 82). C ouns el’s alleg ed erro rs sho uld be judged at

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the time they were made in light of all facts and circumstances. Strickland, 466 U.S. at 690; see Cooper, 849 S.W.2d at 746.

Petitioner claim s that th e robb ery in this case was incidental to the kidnapping.

In State v. Anthony, our supreme court explained the proper analysis for this issue as “whether the confinement, movement, or detention is essentially incidental to the accompanying felony and is not, therefore, sufficient to support a separate convictio n for kidnapping, or whether it is significant enough, in and of itself, to warrant independent prosecution and is, therefore, sufficient to suppo rt such a c onviction.” 817 S.W .2d at 306. T he Co urt wen t on to s ay that “ one m ethod of reso lving this question is to ask w hethe r the de fenda nt’s conduct ‘substantially increased [the] risk of harm over and above that ne cessarily presen t in the crime of robb ery itself.’” Id. (citation om itted).

Defendant also argues th at the kidnapp ing and robb ery charges should be merged into the rap e. The T ennes see Su preme Court re cently held that “Anthony and its progen y . . . are no t mea nt to pro vide the rapist a free kid napp ing m erely because he also committed rape [footnote omitted]. The Anthony decisio n sho uld only prevent the injustice which would occur if a defendant could be convicted of kidnapping where the only res traint utilized w as that ne cessar y to complete the act of rape or robbery. Accordingly, any restraint in addition to that which is necessary to consummate rape or robbery m ay support a sepa rate con viction for kidn apping .” State v. Dixon, 957 S.W .2d 534 -35 (Te nn. 199 7).

In the case sub judice, Petitioner took the victim’s car by gunpoint. He then forced her into the trunk of her own car, drove her aroun d, and raped her rep eated ly

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over a twelve hour period. The risk of harm to the victim beyond the robbery itself was certainly increased as Defendant chose to lock the victim in the car trunk for hours at a time, and the res traint ap plied to the victim went w ell beyond that which was necessary to complete the rape or robbery. Clearly, these are all separate and distinct crimes and they are not incide ntal to one anothe r in this case . Therefore, we agree with the trial court’s finding that Petitioner’s trial counsel wa s not ineffective for failing to make an Anthony challeng e.

Petitioner also argues that his trial counsel was ineffective for allowing h im to plead outside his sentencing range. Our review of the record indicates that he pled within the range but ab ove the presumptive sentence. Petitioner does not challenge the voluntariness of his plea. Therefore, since his plea was entered knowingly and voluntarily, the sente nce is valid . Hicks v. S tate, 945 S.W.2d 706 (Tenn. 1997). Furthermore, the trial judge noted in his order that had Petitioner gone to tria l and been convicted he c ould have face d a sentenc e of fifty years on jus t partially enhanced and co nsecu tively-run se ntence s. The trial judge went on to say that the trial court could have even enhanced all the sentences and run them a ll consecutively for a total of seven ty-five ye ars in confin eme nt. W ithout P etitione r’s trial counsel having negotiated with the State, P etitioner would not likely ha ve received the forty year sentence that he d id. W e find that P etitioner ha s failed to present any evidence that shows that his attorney represented him in any other mann er than c ompe tently.

II. Consecutive Sentencing

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Petitioner argues that co nsecutive sentencing was illegal because the crime spree was one continuing criminal episode. We agree with the trial court’s finding that these were multiple crimes. In fact, each rape was a separa te crime . See State v. Phillips, 924 S.W .2d 662 (Tenn . 1996). T hus, ther e is no pla in error.

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THOMAS T. W OODALL, Judge

CONCUR:

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JOHN H. PEAY, Judge

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L.T. LAFFERTY, Special Judge