IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JANUARY 1998 SESSION March 23, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk WESLEY BARNES, ) ) Appellant, ) No. 03C01-9702-CR-00068 ) ) Hamilton County v. ) ) Honorable Douglas A. Meyer, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )
For the Appellant: For the Appellee:
Ardena J. Garth John Knox Walkup District Public Defender Attorney General of Tennessee and and Richard Heinsman and Michael J. Fahey, II Donna Robinson Miller Assistant Attorney General of Tennessee Assistant Public Defenders 450 James Robertson Parkway 701 Cherry Street Nashville, TN 37243-0493 Chattanooga, TN 37402 (AT TRIAL) William H. Cox District Attorney General Ardena J. Garth and District Public Defender Leland Davis and Assistant District Attorney General Donna Robinson Miller 600 Market Street Assistant Public Defender Courts Building Suite 300 Chattanooga, TN 37402 701 Cherry Street Chattanooga, TN 37402 (ON APPEAL)
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton Judge OPINION
The petitioner, Wesley Barnes, appeals as of right from the denial of his
petition for post-conviction relief by the Hamilton County Criminal Court. He seeks relief
from his conviction upon a guilty plea for attempt to commit aggravated arson resulting
in an eight-year sentence. He claims that the trial court incorrectly found that he
received the effective assistance of counsel. Particularly, the petitioner asserts that his
trial attorney failed to investigate the case, intervened into negotiations without retained
counsel’s permission, pressured him into pleading guilty, and misadvised him that he
was facing a life sentence on the original aggravated arson charge. We affirm the trial
court.
This case presents a rather disjointed, incomplete picture of the
circumstances surrounding the petitioner’s guilty plea to attempt to commit aggravated
arson. The record reflects that the petitioner was charged in separate cases for two
offenses of selling cocaine and one offense of aggravated arson. Attorney Phil Floyd
was originally appointed to represent the petitioner on the cocaine charges, and Arvin
Reingold was originally retained on the aggravated arson charge.
The record reflects that the petitioner was convicted in a jury trial of the
sale of cocaine in one case, receiving an eight-year sentence. He subsequently pled
guilty in one hearing to the second cocaine sale and to attempted aggravated arson,
receiving an eight-year sentence for each. At some point, he was also serving time on
a federal sentence. The two cocaine cases were to run concurrently to each other, but
the attempted aggravated arson case was to run consecutively, for an effective state
sentence of sixteen years. The state sentences were to run concurrently with the
federal sentence.
2 The gist of the petitioner’s complaint is that Mr. Floyd, although not
counsel of record, intervened in the aggravated arson case and got the petitioner to
plead guilty even though Mr. Floyd knew nothing about the case, while the petitioner
claimed that he was innocent. However, the post-conviction evidentiary hearing reveals
little in support of the petitioner’s claims.
Mr. Floyd’s testimony reflects that he had no independent recollection of
the case other than recognizing the petitioner and remembering the petitioner’s name.
He identified the appointment order for him to represent the petitioner in a cocaine
case. He identified his signature on the petition to enter guilty pleas to the sale of
cocaine and to the attempted aggravated arson. He also identified on the judgment of
conviction for the attempted aggravated arson that Mr. Reingold’s name was typed
while his own was written after Mr. Reingold’s. He testified that he would not touch
another attorney’s case, although he mentioned several ways another attorney could
become involved, such as a defendant resolving multiple cases involving several
attorneys.
Mr. Reingold testified that he represented the petitioner at the aggravated
arson preliminary hearing but that the petitioner could not retain him for the drug cases.
He recalled learning from either the petitioner or Mr. Floyd that appointed counsel was
going to handle the pending cases because something was being worked out on them.
Mr. Reingold did not recall formally withdrawing from representation, but he believed it
to be understood that he had withdrawn. He did not remember whether he discussed
any investigation of the arson case with Mr. Floyd. He recalled, though, that the
petitioner asserted his innocence. Finally, he stated that if he had still been
representing the petitioner at the time, he would have been at the guilty plea hearing.
3 Charles Baker testified that his mother’s house was burned as the result
of the arson and that his brother, German, said at the time that he saw the petitioner do
it. He testified that he was aware that the petitioner had argued with German before the
fire. Mr. Baker stated that he had learned on the streets that the petitioner did not do it
and that he told German of this. However, German “wanted to believe what he saw.”
He provided German Baker’s address to the court. Mr. Baker testified that about a year
before the hearing, he heard a person named Lonnie admit to burning the house.
The petitioner testified that he retained Mr. Reingold for the arson case
and that Mr. Floyd was appointed to the cocaine cases. He testified that he had been
offered a misdemeanor conviction and a one-year sentence for the arson case, but he
refused it because he was innocent. He indicated that he was unaware that he was
pleading guilty to attempted aggravated arson, thinking that Mr. Reingold was going to
handle it.
At this point in the hearing, the trial court stopped the testimony because
the guilty plea hearing had not been transcribed. Subsequently, the petitioner failed to
appear at two hearing dates,
and the trial court dismissed the case. However, pursuant to agreement of the parties
on appeal, this court remanded the case for further record development, including
findings of fact and conclusions of law.
Upon remand, the petitioner added the claim that he was misadvised
about his sentence exposure, noting that the guilty plea petition had a maximum
sentence of life imprisonment, instead of twenty-five years which was applicable to the
Range I, Class A felony of aggravated arson. However, no further testimony from the
petitioner or other witnesses was presented.
4 The transcript of the guilty plea hearing reflects that the petitioner was
advised of his rights and made aware that he was pleading guilty to attempted
aggravated arson pursuant to a plea agreement. The petitioner said that he understood
what was going on and that he did not want a jury trial. He said that he agreed to the
punishment of sixteen years that would run concurrently with his federal time of fifty-one
months.
The trial court found that the petitioner’s claim that the state could not
make a case against him was not persuasive. It noted that the petitioner did not
present German Baker as a witness, but called Charles Baker, whose testimony the
trial court found unconvincing.
As for counsel, the trial court found that the petitioner acquiesced in Mr.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JANUARY 1998 SESSION March 23, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk WESLEY BARNES, ) ) Appellant, ) No. 03C01-9702-CR-00068 ) ) Hamilton County v. ) ) Honorable Douglas A. Meyer, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )
For the Appellant: For the Appellee:
Ardena J. Garth John Knox Walkup District Public Defender Attorney General of Tennessee and and Richard Heinsman and Michael J. Fahey, II Donna Robinson Miller Assistant Attorney General of Tennessee Assistant Public Defenders 450 James Robertson Parkway 701 Cherry Street Nashville, TN 37243-0493 Chattanooga, TN 37402 (AT TRIAL) William H. Cox District Attorney General Ardena J. Garth and District Public Defender Leland Davis and Assistant District Attorney General Donna Robinson Miller 600 Market Street Assistant Public Defender Courts Building Suite 300 Chattanooga, TN 37402 701 Cherry Street Chattanooga, TN 37402 (ON APPEAL)
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton Judge OPINION
The petitioner, Wesley Barnes, appeals as of right from the denial of his
petition for post-conviction relief by the Hamilton County Criminal Court. He seeks relief
from his conviction upon a guilty plea for attempt to commit aggravated arson resulting
in an eight-year sentence. He claims that the trial court incorrectly found that he
received the effective assistance of counsel. Particularly, the petitioner asserts that his
trial attorney failed to investigate the case, intervened into negotiations without retained
counsel’s permission, pressured him into pleading guilty, and misadvised him that he
was facing a life sentence on the original aggravated arson charge. We affirm the trial
court.
This case presents a rather disjointed, incomplete picture of the
circumstances surrounding the petitioner’s guilty plea to attempt to commit aggravated
arson. The record reflects that the petitioner was charged in separate cases for two
offenses of selling cocaine and one offense of aggravated arson. Attorney Phil Floyd
was originally appointed to represent the petitioner on the cocaine charges, and Arvin
Reingold was originally retained on the aggravated arson charge.
The record reflects that the petitioner was convicted in a jury trial of the
sale of cocaine in one case, receiving an eight-year sentence. He subsequently pled
guilty in one hearing to the second cocaine sale and to attempted aggravated arson,
receiving an eight-year sentence for each. At some point, he was also serving time on
a federal sentence. The two cocaine cases were to run concurrently to each other, but
the attempted aggravated arson case was to run consecutively, for an effective state
sentence of sixteen years. The state sentences were to run concurrently with the
federal sentence.
2 The gist of the petitioner’s complaint is that Mr. Floyd, although not
counsel of record, intervened in the aggravated arson case and got the petitioner to
plead guilty even though Mr. Floyd knew nothing about the case, while the petitioner
claimed that he was innocent. However, the post-conviction evidentiary hearing reveals
little in support of the petitioner’s claims.
Mr. Floyd’s testimony reflects that he had no independent recollection of
the case other than recognizing the petitioner and remembering the petitioner’s name.
He identified the appointment order for him to represent the petitioner in a cocaine
case. He identified his signature on the petition to enter guilty pleas to the sale of
cocaine and to the attempted aggravated arson. He also identified on the judgment of
conviction for the attempted aggravated arson that Mr. Reingold’s name was typed
while his own was written after Mr. Reingold’s. He testified that he would not touch
another attorney’s case, although he mentioned several ways another attorney could
become involved, such as a defendant resolving multiple cases involving several
attorneys.
Mr. Reingold testified that he represented the petitioner at the aggravated
arson preliminary hearing but that the petitioner could not retain him for the drug cases.
He recalled learning from either the petitioner or Mr. Floyd that appointed counsel was
going to handle the pending cases because something was being worked out on them.
Mr. Reingold did not recall formally withdrawing from representation, but he believed it
to be understood that he had withdrawn. He did not remember whether he discussed
any investigation of the arson case with Mr. Floyd. He recalled, though, that the
petitioner asserted his innocence. Finally, he stated that if he had still been
representing the petitioner at the time, he would have been at the guilty plea hearing.
3 Charles Baker testified that his mother’s house was burned as the result
of the arson and that his brother, German, said at the time that he saw the petitioner do
it. He testified that he was aware that the petitioner had argued with German before the
fire. Mr. Baker stated that he had learned on the streets that the petitioner did not do it
and that he told German of this. However, German “wanted to believe what he saw.”
He provided German Baker’s address to the court. Mr. Baker testified that about a year
before the hearing, he heard a person named Lonnie admit to burning the house.
The petitioner testified that he retained Mr. Reingold for the arson case
and that Mr. Floyd was appointed to the cocaine cases. He testified that he had been
offered a misdemeanor conviction and a one-year sentence for the arson case, but he
refused it because he was innocent. He indicated that he was unaware that he was
pleading guilty to attempted aggravated arson, thinking that Mr. Reingold was going to
handle it.
At this point in the hearing, the trial court stopped the testimony because
the guilty plea hearing had not been transcribed. Subsequently, the petitioner failed to
appear at two hearing dates,
and the trial court dismissed the case. However, pursuant to agreement of the parties
on appeal, this court remanded the case for further record development, including
findings of fact and conclusions of law.
Upon remand, the petitioner added the claim that he was misadvised
about his sentence exposure, noting that the guilty plea petition had a maximum
sentence of life imprisonment, instead of twenty-five years which was applicable to the
Range I, Class A felony of aggravated arson. However, no further testimony from the
petitioner or other witnesses was presented.
4 The transcript of the guilty plea hearing reflects that the petitioner was
advised of his rights and made aware that he was pleading guilty to attempted
aggravated arson pursuant to a plea agreement. The petitioner said that he understood
what was going on and that he did not want a jury trial. He said that he agreed to the
punishment of sixteen years that would run concurrently with his federal time of fifty-one
months.
The trial court found that the petitioner’s claim that the state could not
make a case against him was not persuasive. It noted that the petitioner did not
present German Baker as a witness, but called Charles Baker, whose testimony the
trial court found unconvincing.
As for counsel, the trial court found that the petitioner acquiesced in Mr.
Floyd’s representation in the negotiation and plea in the attempted aggravated arson
case. It stated that Mr. Floyd worked out a good deal for the petitioner and that it was
in the petitioner’s best interest to accept the state’s offer. It concluded that Mr. Floyd
provided the effective assistance of counsel.
If a petitioner seeks to vacate a conviction based upon his guilty plea on
the ground that the plea resulted from the ineffective assistance of counsel, the
petitioner must show (1) that his attorney rendered deficient representation and (2) “that
there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
58-59, 106 S. Ct. 366, 370 (1985). Under the law controlling in this case, the burden
rested on the petitioner to prove his allegations by a preponderance of the evidence.
Long v. State, 510 S.W.2d 83, 86 (Tenn. 1982). On appeal, the findings of fact of the
trial court are conclusive unless the evidence preponderates against them. Butler v.
State, 789 S.W.2d 898, 899 (Tenn. 1990).
5 The central failure of the petitioner in this case is that he submitted no
credible evidence that he would have withdrawn his guilty plea and proceeded to trial
on the aggravated arson case. Although he intimated that he was unaware that he was
pleading guilty in the arson case, the transcript of the guilty plea hearing conclusively
reflects otherwise. As for his claim that he was misadvised as to his maximum
exposure, the petitioner did not testify that it had any effect upon his decision to plead
guilty. Similarly, although the petitioner professed his innocence on the arson charge,
the record supports the trial court’s determination that the state had an eyewitness who
claimed to have seen him commit the offense.
Although we note that the record is devoid of any evidence that Mr. Floyd
investigated the arson, there is also no evidence that such affected the petitioner’s
guilty plea. Rather, the guilty plea transcript indicates that the petitioner was interested
in resolving all his cases and proceeding with serving his time.
We conclude that the record does not preponderate against the trial
court’s findings of fact and determination of the case. The judgment of the trial court is
affirmed.
______________________________ Joseph M. Tipton, Judge
CONCUR:
__________________________ Gary R. Wade, Judge
__________________________ William M. Barker, Judge