Devito S. Polk v. State of Tennessee

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 27, 2008
• Docket: 02C01-9602-CR-00065
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY 1997 SESSION FILED March 27, 2008

Cecil Crowson, Jr. Appellate Court Clerk

DEVITO S. POLK ) ) C.C.A. No. 02C01-9602-CR-00065 Appellant, ) ) Shelby County V. ) ) Honorable Bernie Weinman, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee.

FOR THE APPELLANT: FOR THE APPELLEE:

A C Wharton Charles W. Burson Shelby Co. Public Defender Attorney General & Reporter

Diane Thackery M. Allison Thompson Assistant Public Defender Counsel for the State 201 Poplar, Second Floor 450 James Robertson Parkway Memphis, TN 38103 Nashville, TN 37243-0493

Edward G. Thompson John W. Pierotti Assistant Public Defender District Attorney General 212 Adams Street Memphis, TN 38103 Reginald R. Henderson Asst. Dist. Attorney General 201 Poplar, Third Floor Memphis, TN 38103

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge

OPINION The appellant, Devito Polk, pled guilty to second degree murder1 and was

sentenced to 35 years as a Multiple Range II offender. His sentence was to be

served concurrently with seven pending aggravated robbery charges. He,

thereafter, filed a post-conviction petition alleging ineffective assistance of

counsel and an unknowing and involuntary plea. He appeals the denial of the

petition. He raises the following issues for our review: (1) whether he knowingly

and intelligently entered his plea of guilty; and (2) whether he received

ineffective assistance of counsel. We affirm.

I

The appellant first alleges that he would not have entered a guilty plea

had the trial judge advised him of his right against self-incrimination. He claims

he was confused and did not intentionally waive a known right. The record

before us does not contain a transcript of the hearing at which the guilty plea was

entered. This Court is one of review and cannot properly address this issue

without a transcript of the proceeding. The appellant is responsible for preparing

a transcript containing an accurate and complete account of what transpired with

respect to those issues that form the basis of his appeal. Tenn. R. App. P. 24(b).

In failing to do so, the appellant has waived this issue.

II

The appellant next contends that he received ineffective assistance of

counsel. In support of this claim the appellant contends that his trial counsel

was ineffective by failing to: (1) effectively communicate with him regarding the

status of pending charges; (2) investigate his case; and (3) keep him informed

about status of his appeal on a robbery conviction. He alleges that because of

his counsel's ineffectiveness, he felt that he had no choice but to plead guilty.

1 Appellant was indicted originally for capital murder. He also had prior felony convictions on his record.

-2- The appropriate test for determining whether counsel provided effective

assistance at trial is whether his or her performance was within the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930 (Tenn. 1975). Appellant must establish by a preponderance of the

evidence that: (1) the services rendered or the advice given by counsel fell

below "the range of competence demanded of attorneys in criminal cases," and

(2) but for counsel's errors, he would not have pled guilty and would have

insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985); Porterfield v.

Tennessee, 897 S.W.2d 672, 677-78 (Tenn. 1995).

The burden of proving ineffective assistance of counsel is not sustained

by the appellant's uncorroborated testimony when the judgment is regular on its

face and entitled to a presumption of validity. Morgan v. State, 445 S.W.2d 477

(Tenn. Crim. App. 1969). Furthermore, the findings of fact of the post-conviction

hearing judge are conclusive on appeal unless the evidence preponderates

against the judgment. Brooks v. State, 756 S.W.2d 288 (Tenn. Crim. App.

1990).

The appellant's allegation consists of his own uncorroborated testimony.

The post-conviction hearing judge resolved conflicting testimony in favor of the

appellant's trial counsel and found that he received adequate representation

under the law. We agree.

Not only do we find this issue without merit, it appears from the record that

the appellant's trial counsel managed to negotiate a very favorable plea

agreement. The dismissal of the appellant's petition is affirmed.

__________________________ PAUL G. SUMMERS, Judge

CONCUR:

-3- __________________________ JOE B. JONES, Presiding Judge

__________________________ DAVID G. HAYES, Judge

-4-