IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JANUARY, 1998 SESSION April 2, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
WILLIE L. HICKS, ) No. 03C01-9707-CR-00242 ) Appellant, ) ) Sullivan County vs. ) ) Honorable R. Jerry Beck, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
GERALD STANLEY GREEN JOHN KNOX WALKUP 147 Jefferson Avenue, Suite 115 Attorney General & Reporter Memphis, TN 38103
SANDY C. PATRICK Assistant Attorney General Criminal Justice Division 2nd Floor Cordell Hull Building 425 Fifth Ave. North Nashville, TN 37243-0943
H. GREELEY WELLS District Attorney General
BARRY STAUBUS Assistant District Attorney General P.O. Box 526 Blountville, TN 37617
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE OPINION
The petitioner, Willie L. Hicks, appeals pursuant to Rule 3, Tennessee
Rules of Criminal Procedure, from the Sullivan County Criminal Court’s denial of
post-conviction relief. The petitioner pleaded guilty in 1994 of the first-degree
murder of Yolanda Riley and the second-degree murder of her sister, Jennifer Riley.
In accordance with the plea agreement, he received a life sentence with the
possibility of parole in the first-degree murder conviction and a consecutive
sentence of fifteen years for second-degree murder. On March 27, 1996, retained
counsel filed a timely petition for post-conviction relief alleging that the attorneys1
who represented the petitioner during the plea bargaining and the submission of the
plea were ineffective and that the guilty plea was entered involuntarily. After an
evidentiary hearing, the post-conviction judge 2 entered a thorough and detailed
memorandum order finding that Hicks had received effective assistance of counsel
and that the guilty pleas were entered knowingly and voluntarily. Therefore, the
lower court denied Hicks’s petition for post-conviction relief.
In this appeal, Hicks contends (1) that his attorneys were ineffective
in that they did not investigate and assert all apparently substantial defenses and
that they failed to communicate properly with a defendant whose intelligence and
understanding were well below average, and (2) that the record does not
affirmatively demonstrate that he knowingly, intelligently, and voluntarily waived his
right to trial and the privilege against self-incrimination.
For the reasons discussed below, we affirm the judgment of the trial
court.
1 Stephen M. Wallace, the public defender, and Mark Slagle, a private attorney, represented Hicks throughout the pretrial proceedings. 2 The Hon. Frank G. Slaughter, the trial judge who accepted Hicks’s guilty pleas, was no longer on the bench at the time of the post-conviction hearing. Judge R. Jerry Beck was appointed to hear the case because Judge Phillis H. Miller was an assistant district attorney at the time of the original indictments.
2 We begin with a brief summary of the facts as they appear in the
transcripts of the post-conviction hearing, the submission hearing, and the
preliminary hearing. The two victims and the petitioner were from Clarksdale,
Mississippi. When Yolanda Riley decided to enter the Job Corps training program
at Bristol, Tennessee, Hicks became upset. Three times he came to Tennessee to
persuade her to return with him to Mississippi. The third time, Yolanda’s sister,
Jennifer, and Jennifer’s two small children accompanied him. After spending the
weekend with the petitioner and her sister, Yolanda agreed to return to Mississippi.
However, after returning to the Job Corps site and meeting with her advisor and two
other students, she changed her mind. She and the two students were sitting in a
small inner office. The door was locked. Hicks, who was in the outer office, spoke
to Yolanda on the telephone. When the conversation ended, Hicks kicked open the
locked door, entered the office, and shot Yolanda several times, once execution-
style in the back of the head. Then, he fired a single shot at Jennifer who had
entered the office. Both women died.
The grand jury indicted the petitioner on two counts of premeditated
and deliberate murder, and the state indicated that it would seek the death penalty. 3
When defense counsel traveled to Clarksdale, they discovered that, according to
an intelligence test taken before he was eighteen, Hicks had an I.Q. of 59 and
deficits in adaptive behavior. Although other test results yielded somewhat higher
scores, the state apparently concluded that seeking the death penalty would be
problematic under Tennessee Code Annotated section 39-13-203.4 Hicks was
allowed to plead guilty to first-degree murder in the shooting of Yolanda Riley and
to second-degree murder in the shooting of Jennifer Riley.
3 A third count charged Hicks with the aggravated assault of Troyan Ford, one of the students in the office. The state dismissed this count after Hicks pleaded guilty. 4 This statue precludes the death sentence for those who have a functional intelligence quotient of seventy (70) or below and deficits in adaptive behavior if the mental retardation manifested itself during the developmental period or before the defendant reached the age of 18. Tenn. Code Ann. § 39- 13-203(a)(1), (2), (3) (1997).
3 At the guilty plea submission hearing, Hicks acknowledged that he
fired the shots that killed the women but denied that he intended to kill them. He
also disputed the number of shots that were fired and denied firing directly into
Yolanda’s head. When the trial judge questioned him more closely, he insisted that
he shot the women accidentally. The trial judge then said, “Well, gentlemen, the
Court’s duty is pretty clear.” The district attorney then suggested that the court
accept the plea as an Alford plea.5 The district attorney and defense counsel once
again summarized the state’s evidence for the court. The evidence would
demonstrate that Hicks had brought the gun from Mississippi, that he carried it
loaded into the Job Corps offices where he kicked open the locked door, and that
one eye-witness heard him say, “I love her. I’m going to kill her.” The trial judge
then resumed his questioning of the petitioner who agreed that he wanted to waive
his rights and plead guilty according to the plea agreement. Nothing more was said
about an Alford plea. The trial court accepted the plea and sentenced the
petitioner.
The petitioner, his mother, and attorney, Mark Slagle, testified at the
post-conviction hearing. Hicks said that his attorneys told him that if he went to trial
he would receive the death penalty. Hicks testified that he thought the submission
hearing was actually a trial, that the other people in the courtroom were the jury, and
that when the trial judge said, “Well, gentlemen, my choice is clear,” he thought he
had lost his case. Later, he responded “guilty” to the trial judge’s question because
he thought he had lost. He also said that his attorneys had visited him more than
five times and had told him about life sentences and the “lockdown” at Riverbend
where he would never see his family. He complained that he had never seen the
autopsy photographs proving that he had shot Yolanda in the back of the head. On
5 In Alford, the United States Supreme Court ruled that there was no constitutional error in accepting a guilty plea which contained a protestation of innocence if the defendant had intelligently concluded that it was in his best interests to plead guilty and the record before the judge contained strong evidence of actual guilt. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). This court recognized the validity of an Alford or “best interests” plea in Dortch v. State, 705 S.W.2d 687 (Tenn. Crim. App. 1985).
4 cross-examination he admitted he had signed the guilty plea documents, two before
the hearing and one in the court room.
Bertha Hicks, the petitioner’s mother, described her son as having a
hard time understanding things. He was in special education classes at school.
She and other members of her family came up to see him a few days prior to the
submission hearing to talk to him about accepting the plea. She said that she told
him that it was his decision and that he would have to make up his own mind.
Mark Slagle testified to his experience in handling capital cases as
well as other first-degree murder cases. He described the trip that he, Stephen
Wallace, and the investigator made to Clarksdale where they interviewed the
petitioner’s family and friends and obtained his school, medical, and psychological
records.6 The defense moved for and the trial court granted funds so that a
psychologist or psychiatrist could examine the petitioner.7 Defense counsel had
complete access to the prosecutor’s files. They met with the medical examiner,
interviewed available witnesses, and reviewed the investigative reports. Slagle
agreed that he sometimes had a difficult time communicating with Hicks. However,
he said that when he took his time and explained things carefully, Hicks seemed to
understand. He and Wallace explained the terms of the plea agreement very
carefully, including maximum and minimum sentences, consecutive sentencing,
lesser included offenses, and the rights the petitioner would be waiving. According
to Slagle, the defense team took extra pains because of the petitioner’s limited
intelligence. Slagle believed that the petitioner understood that he was not having
a trial and that he was aware of the significance of the guilty plea proceeding. On
cross-examination, Slagle agreed that the hearing was unusual, and that he had his
doubts as to Hicks’s ability to follow the proceedings. He couldn’t recall another
6 Steven Wallace, the public defender, went to Clarksdale a second time. 7 Apparently, the expert found that Hicks was competent to stand trial and that he did not qualify as insane under Tennessee law.
5 time when a prosecutor suggested that the court accept an Alford plea. He
conceded that the petitioner seemed to be confused at times.8 However, Slagle
believed that Hicks knew he was entering a guilty plea and that he wanted to do it.
The post-conviction judge took the case under advisement, and on
February 24, 1997, he filed his “Finding of Fact, Memorandum of Law, Judgment
Order” denying petitioner’s request for post-conviction relief. In the memorandum,
the court recognized that the petitioner’s intelligence was a factor that must be
considered. The post-conviction judge concluded that the trial judge had satisfied
the requirements of Rule 11, Mackey, and Boykin and that the guilty plea had not
been coerced. He also found that the trial court had adequately explained the
Alford plea and that it was not improper for a district attorney to suggest that the
court accept a “best interests plea” as long as there was a strong factual basis for
the conviction and the defendant was represented by competent counsel. With
respect to the effectiveness of trial counsel, the court specifically accredited Slagle’s
testimony. He found that both defense attorneys were experienced in criminal law
and in capital cases, that they had traveled to Mississippi in an attempt to find useful
information, that they met with the petitioner on many occasions, and that they were
cognizant of the petitioner’s intelligence level and had advised him accordingly. The
court concluded that trial counsel had generally represented their client effectively
according to the standards established in Strickland v. Washington, 466. U.S. 487,
104 S. Ct. 2052 (1984) and Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). Based
on the facts before the court, the trial court concluded that, notwithstanding the
petitioner’s lack of mental development, the petitioner knowingly and voluntarily
entered his guilty pleas and received effective assistance of counsel.
8 For example, at one point, the petitioner told the trial court that he had to prove that Troyan Ford was lying. Ford was one of the two students in the room when the petitioner shot Yolanda. Ford was the victim named in the aggravated assault charge. Slagle said that he had no idea why Hicks made that statement. The record indicates that Ford lied when he said that the petitioner hit him with the gun.
6 Standard of Review
Because this petition was filed on March 27, 1996, it is governed by
the provisions of the 1995 Post-Conviction Procedure Act. Accordingly, the
petitioner bears the burden of establishing, at the evidentiary hearing, his
allegations by clear and convincing evidence.9 Tenn. Code Ann. § 40-30-
210(f)(1997). Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the
evidence. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901, n. 3 (Tenn. 1992). An
appellate court is bound by the trial court’s findings of fact unless we conclude that
the evidence in the record preponderates against those findings. Black v. State,
794 S.W.2d 752, 755 (Tenn. 1990).
Effective Assistance of Counsel
The Sixth Amendment of the United States Constitution and Article I,
section 9 of the Tennessee Constitution both require that a defendant in a criminal
case receive effective assistance of counsel. Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975). When a defendant claims ineffective assistance of counsel, the
standard applied by the courts of Tennessee is "whether the advice given or the
service rendered by the attorney is within the range of competence demanded by
attorneys in criminal cases." Summerlin v. State, 607 S.W.2d 495, 496 (Tenn. Crim.
App. 1980).
In Strickland v. Washington, the United States Supreme Court defined
the Sixth Amendment right to effective assistance of counsel. 466 U.S. 668, 140
S. Ct. 2052 (1984). First, the appellant must show that counsel's performance fell
9 We note that the post-conviction judge found that the petitioner had not proven his allegation by a preponderance of the evidence. The preponderance of the evidence was the quantum of proof required prior to the adoption of Tennessee Code Annotated section 40-30-210(f)(1997). See, e.g., McGee v. State, 739 S.W.2d 789 (Tenn. Crim. App. 1989); Clenny v. State, 576 S.W.2d 12 (Tenn. Crim. App. 1978). Although the use of the incorrect standard constitutes error, the petitioner was not prejudiced. If his proof did not reach the preponderance level, it could not be considered “clear and convincing.”
7 below an objective standard of reasonableness under prevailing professional norms,
and must demonstrate that counsel made errors so serious that he was not
functioning as "counsel" guaranteed by the Constitution. Strickland, 466 U.S. at 687,
104 S. Ct. at 2064. Second, the petitioner must show that counsel's performance
prejudiced him, that the errors were so serious as to deprive the defendant of a fair
trial, and call into question the reliability of the outcome. Id.
A reviewing court must indulge a strong presumption that counsel's
conduct falls within the range of reasonable professional assistance and must
evaluate counsel's performance from counsel's perspective at the time of the
alleged error and in light of the totality of the evidence. Strickland, 466 U.S. at 695,
104 S. Ct. at 2070. The petitioner must demonstrate that there is a reasonable
probability that but for counsel's deficient performance, the result of the proceeding
would have been different. Id.
To establish ineffective assistance of counsel in Tennessee, evidence
stemming from a failure to prepare a sound defense or present witnesses must be
significant. However, a reasonable probability of being found guilty of a lesser
charge, or a shorter sentence, satisfies the prejudice requirement of Strickland.
State v. Zimmerman, 823 S.W.2d 220, 227 (Tenn. Crim. App. 1991). In cases
involving a guilty plea or plea of nolo contendere, the petitioner must show
“prejudice” by demonstrating that, but for counsel’s errors, he would not have
pleaded guilty but would have insisted upon going to trial. See Hill v. Lockhart, 474
U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215
(Tenn. Crim. App. 1991).
In the instant case, all the proof in the record demonstrates that the
trial attorneys were effective advocates. They interviewed the witnesses, reviewed
the investigative reports, and had access to the district attorney’s file. Because the
petitioner killed the victims in front of two eye-witnesses, defense counsel decided
8 that the best defense hung on mental capacity and state of mind. They went to
Mississippi twice to investigate the petitioner’s competence and his familial and
educational background. An expert performed additional psychological testing; an
MRI revealed no abnormalities. Mark Slagle testified that he spent several hours
with the petitioner questioning him about his thought processes. He carefully
explained the crimes, the maximum and minimum penalties, the terms of the plea,
the length of time the petitioner would have to serve, and consecutive sentencing.
Keeping in mind the petitioner’s limited mental capacity, he took great care to
explain the constitutional rights that would be waived. Defense counsel arranged
for the petitioner to have a four-hour visit with his family a few days before the
submission hearing. Nothing indicates that petitioner’s attorneys were incompetent
or that they were in any way ineffective. The evidence in the record totally supports
the trial court’s conclusion that the petitioner received effective assistance of
counsel during the pre-trial discovery, investigations and negotiation that resulted
in his guilty pleas.
Voluntariness of the Guilty Pleas
When the accused opts to plead guilty, the plea must be voluntarily,
understandingly, and knowingly entered to pass constitutional muster. Boykin v.
Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 1713 (1969). In Tennessee, a plea
must be made voluntarily and with full understanding of its consequences. State v.
Neal, 810 S.W.2d 131, 134-135 (Tenn. 1992); State ex rel. Barnes v. Henderson,
220 Tenn. 719, 727, 423 S.W.2d 497, 501 (1968). Entry of a guilty plea constitutes
a waiver of constitutional rights including the privilege against self-incrimination, the
right to confront witnesses, and the right to a trial by jury. Boykin, 395 U.S. at 243,
89 S. Ct. at 1714. Waiver of constitutional rights may not be presumed from a silent
record. Id.
The petitioner contends that his plea was not voluntarily entered.
According to his testimony, he believed that he was having a trial on the date of the
9 submission hearing. He acknowledged that he signed the plea agreement and the
waiver form; however, he alleges that his attorneys told him that he had to sign the
papers so that he could go to trial. The petitioner claims that he was coerced into
pleading guilty and that his plea violates the principles of North Carolina v. Alford,
400 U.S. 25, 91 S. Ct. 160 (1970). We disagree.
In Alford, the United States Supreme Court allowed the defendant to
enter a plea of guilty despite his protestation of innocence. 400 U.S. at 37, 91 S.
Ct. at 167. The Court held that “an individual . . . may voluntarily, knowingly, and
understandingly consent to the imposition of a prison sentence even if he is
unwilling or unable to admit his . . . crime [or protests his] innocence.” Id. The
standard remains “whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.” Id.
The Alford or “best interests” plea has been recognized in this state.
See, e.g., Dortch v. State, 705 S.W.2d 687, 689 (Tenn. Crim. App. 1985); State v.
Williams, 851 S.W.2d 828, 830 (Tenn. Crim. App. 1992). Before a Tennessee court
can accept any guilty plea, the court must determine that the defendant is pleading
guilty voluntarily and with an understanding of the nature of the plea and its
consequences. Williams, 851 S.W.2d at 830-831. A trial judge may accept a guilty
plea even when the defendant says that he is innocent so long as there is a factual
basis for the plea. Williams, 851 S.W.2d at 831. Therefore, we must determine
whether the record demonstrates that the petitioner entered his guilty pleas
voluntarily and knowingly and whether there was an adequate factual basis for the
pleas.
In determining whether a plea of guilty was voluntarily,
understandingly, and intelligently entered, this court, like the trial court, must
consider all of the relevant circumstances that existed at the entry of the plea. State
v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). A reviewing court may
10 look to any relevant evidence in the record to determine the voluntariness of the
plea. Id. Rule 11 of the Tennessee Rules of Criminal Procedure and our supreme
court’s decisions in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), and State v.
McClintock, 732 S.W.2d 268 (Tenn. 1987), control the guilty plea process in
Tennessee. Trial judges are required to adhere substantially to the procedure
prescribed in the rule. A submission hearing transcript must establish on its face
that the trial court substantially complied with the requirements of Rule 11, Boykin
v. Alabama and the teachings of Mackey and McClintock. State v. Turner, 919
S.W.2d at 352.
In this instance, the transcript of the submission hearing indicates that,
although the trial judge did not adhere to a standard litany of advice, he substantially
complied with the mandates of Rule 11 as well as the additional requirements found
in Mackey and McClintock.10 The trial judge advised the petitioner of the
constitutional rights under Boykin and specifically asked him if he were waiving
those rights. The petitioner responded affirmatively in each instance. We
recognize, as did the post-conviction judge and the trial judge, that this petitioner
needed some extra assistance in understanding the proceedings. The transcripts
of both proceedings demonstrate that in each instance the judge gave due
consideration to this defendant’s special needs. Moreover, the post-conviction
judge accredited the testimony of defense counsel who testified that he and his
colleague had carefully and meticulously discussed the plea agreement and the
waiver form before the petitioner signed them.
10 The trial court did not advise the petitioner that he was required to answer the court’s questions under oath and that his answers could later be used against him in a prosecution for perjury, Tenn. R. Crim. P. 11(c)(5), nor did the court specifically ask whether the plea was the result of conversations with his attorney and the district attorney and not the product of force or coercion. Tenn. R. Crim. P. 11(d). However, these are supervisory rather than constitutionally based requirements. Non-constitutional error cannot be addressed under the Post-Conviction Procedure Act. Tenn. Code Ann. § 40-30- 203 (1997); State v. Neal, 810 S.W.2d 131, 137 (Tenn. 1991). Moreover, the petitioner has not alleged any prejudice that he incurred because the trial judge did not specifically address him concerning these matters.
11 The petitioner contends that he did not know and the trial court did not
explain the concept of a “best interests” or Alford plea. The record supports this
contention. All of the remarks concerning a possible Alford plea were between
counsel and the trial judge. The trial court could have and probably should have
addressed the petitioner directly and explained the meaning of the terms. However,
we cannot see how the failure to understand a legal term such as Alford or how the
inability to follow the discussion between counsel and the bench would render the
guilty plea involuntary. A “best interests” plea is treated exactly like any other guilty
plea except for the defendant’s protestation of innocence. It made no difference to
the petitioner whether the trial court accepted his plea as an Alford plea or a garden-
variety guilty plea.11 If the petitioner had the information required to make an
intelligent decision and if he understood the consequences of pleading guilty to
first-degree and second-degree murder, then he entered his plea knowingly and
intelligently despite his lack of specific knowledge of North Carolina v. Alford. We
find that the record supports the post-conviction court’s finding that the petitioner
knowingly entered his pleas and that he understood the consequences of his
actions.
The record also demonstrates that neither the trial court nor defense
counsel coerced the petitioner into pleading guilty. The entry of a plea of guilty to
avoid a death sentence or the risk of greater punishment does not, standing alone,
make a plea involuntary. Parham v. State, 885 S.W.2d 375, 381 (Tenn. Crim. App.
1994). The petitioner’s mother testified that when she and other members of the
family discussed the plea bargain with him they made it clear that the choice was
his. In fact, the petitioner testified that his mother left the decision to him. Nor does
the petitioner’s statement that he pleaded guilty because he had no choice
necessarily indicate that the plea was obtained by force or coercion. The statement,
“I have no choice,” may result from awareness of the undesirable aspects of going
11 In fact, from reading the record, we cannot say for certain that the trial court, after questioning the petitioner more closely, considered this to be an Alford plea.
12 to trial. The response may well mean that, after considering the options before him,
the petitioner concluded that the only intelligent choice was to plead guilty. We
have carefully reviewed the record before us, and we have found no evidence that
the petitioner was forced, coerced, or even cajoled into pleading guilty.
Having decided that the petitioner entered his guilty pleas knowingly
and voluntarily, we must determine whether there was an adequate factual basis for
the acceptance of an Alford plea. See State v. Williams, 851 S.W.2d 828, 831
(Tenn. Crim. App. 1992). We are convinced that the factual basis in this case was
more than adequate to prove that the petitioner was guilty of first- and second-
degree murder. At trial, the state would have proved that Hicks brought a loaded
weapon from Mississippi to Tennessee and that he took the weapon with him into
the Job Corps building. Then, after kicking down a locked door, Hicks first shot
Yolanda and then turned the gun on her sister. Two students witnessed the killings.
One witness would testify that Hicks said that he was going to kill Yolanda. The
autopsy would show that Yolanda was shot four times and that a shot to the head
was fired from close range. At the submission hearing, the petitioner insisted that
he shot Yolanda only once. However, it makes little difference whether he shot her
once or four times. Even if the petitioner’s statement were accepted as true, the
other evidence is sufficient to support a finding of premeditation and deliberation.
The evidence in the record demonstrates that, although the trial judge
did not follow the exact wording of Boykin, Mackey, and Rule 11, the petitioner
knowingly and voluntarily pleaded guilty. The pleas were acceptable as “best
interest” or Alford pleas despite the petitioner’s protestation of innocence. See
Dortch v. State, 705 S.W.2d 687, 689 (Tenn. Crim. App. 1985); State v. Williams,
851 S.W.2d at 830.
Conclusion
The evidence in the record overwhelmingly supports the post-
13 conviction court’s findings. The petitioner received effective assistance of counsel
and entered his guilty pleas intelligently, knowingly and voluntarily. We affirm the
post-conviction court’s denial of the petitioner’s request for post-conviction relief.
__________________________ CURWOOD W ITT, Judge
CONCUR:
______________________________ GARY R. WADE, Judge
______________________________ WILLIAM M. BARKER, Judge