Brady v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 21, 1997
• Docket: 03C01-9604-CR-00166
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MARCH 1997 SESSION FILED April 21, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk NORWOOD BRADY, ) ) C.C.A. No. 03C01-9604-CR-00166 Appellant, ) ) Hamilton County V. ) ) Honorable Douglas A. Meyer, Judge ) STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

Johnny D. Houston, Jr. John Knox Walkup Attorney at Law Attorney General & Reporter Suite 202, Flatiron Building 707 Georgia Avenue Timothy F. Behan Chattanooga, TN 37402 Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493

William H. Cox III District Attorney General

Leland Davis Assistant District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge OPINION

The appellant, Norwood Brady, was indicted for first degree murder. He

pled guilty to the lesser offense of second degree murder. 1 He received a fifty-

year sentence.

The appellant filed a petition for post-conviction relief alleging that he

received ineffective assistance of counsel which resulted in an involuntary and

unknowing plea. In his petition he claimed his trial counsel was ineffective for

failing to allow him to participate in his defense and for failing to adequately

explain the consequences of his guilty plea. After a hearing, the trial court

dismissed the petition finding the appellant's trial counsel effective and the

appellant's plea knowing and voluntary. He appeals the dismissal of his petition.

Upon review, we affirm.

In order for the appellant to be granted relief because of ineffective

assistance of counsel, he must establish that the advice given or the services

rendered were not within the competence demanded of attorneys in criminal

cases and that, but for his counsel’s deficient performance, the result of his trial

would have been different. Strickland v. Washington, 466 U.S. 668 (1984).

This two-part standard, as it applies to guilty pleas, is met when the appellant

establishes that, but for his counsel’s error, he would not have pled guilty and

would have insisted on a trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

The appellant testified at the post-conviction hearing that he was not

allowed to participate in his defense and was not properly advised of the terms of

his guilty plea. Furthermore, he claimed he could not read and did not

understand what he was signing. 2 The appellant's trial counsel testified that he

1 The appellan t was classified as a Range II offend er. As part of the plea a greement, however, he a greed to be senten ced as a Rang e III persistent offende r.

2 The appellant testified that, although he had a twelfth-grade education, he could not read at the time he entere d his guilty plea. He stated that he learned to read in prison.

-2- met with the appellant on several occasions and allowed him to make the

decision on whether to plead guilty or go to trial. Furthermore, he stated that he

was never informed about the appellant's inability to read. He stated that

regardless of the appellant's reading ability, he orally explained the plea

agreement to the appellant and felt confident he understood its consequences

and voluntarily chose not to proceed to trial.

The hearing judge found that the appellant's trial counsel fully informed

and advised him during plea negotiations. Moreover, the hearing judge felt that

the appellant was not credible. He stated that he did not find the appellant's

allegations to be "true at all."

The factual findings of the trial court in post-conviction proceedings are

conclusive on appeal unless this Court finds that the evidence preponderates

against the judgment. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). We

find nothing in the record that does so. The appellant has not met his burden.

__________________________ PAUL G. SUMMERS, Judge

CONCUR:

-3- ______________________________ JOHN H. PEAY, Judge

______________________________ CORNELIA A. CLARK, Special Judge

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