IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs, May 8, 2012 Session
ISIAH BUCKLEY v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County No. 2004-C-2273 Mark J. Fishburn, Judge
No. M2011-01868-CCA-R3-PC - Filed August 10, 2012
The petitioner, Isiah Buckley, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief. Pursuant to a negotiated plea agreement, the petitioner pled guilty, as a Range I offender, to facilitation of second-degree murder, a Class B felony, and received an out-of-range sentence of fifteen years, with the manner of service to be determined. After a hearing, the petitioner was ordered to serve the sentence. In the instant appeal, the petitioner contends that his plea was not entered knowingly and voluntarily because he was deprived of the effective assistance of counsel. Specifically, he contends trial counsel was ineffective by: (1) failing to inform the trial court of withheld exculpatory evidence; and (2) failing to investigate and to interview witnesses. Following review of the record, we affirm the denial of post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT, JR., J., and J EFFREY S. B IVINS, J., joined. .
Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Isiah Buckley
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Tory Johnson, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee
OPINION
Procedural History The relevant facts underlying the petitioner’s conviction, as recited by the State and
stipulated to by the defendant at the guilty plea hearing, are as follows:
In this case, if the State had gone to trial today, the proof would’ve . .
. shown that on June 27 of 2006, the [petitioner] . . . and his friend, Dante
Nelson, were both talking and complaining about the fact that neither one of
them had very much money and were trying to come up with ways in which to
solve that particular problem. It was this [petitioner] . . . who was familiar
with the victim in this case, Jeremiah Evans, from having bought from him in
the past, some marijuana. He mentioned Jeremiah Evans’ name to Dante
Nelson as someone who would likely have both drugs and cash.
They left the place that they were having this discussion at and drove
down to Steven Lewis’s house who is the cousin, I believe, of Mr. Nelson.
There was a discussion with Mr. Nelson about the plan to get money from
Jeremiah Evans. According to [the petitioner’s] statement, Mr. Lewis went
into the house for a few minutes; he did not go into the house with Mr. Lewis.
Once Mr. Lewis came back and was in the car, he saw the gun that Mr. Lewis
had with him. They then went to Jeremiah Evans’s house on the pretense of
buying some drugs and money, and Mr. Evans let them in the house because
-2- he knew the [petitioner] . . . . Once inside, they had some conversations,
everything seemed okay for a moment and then it’s not entirely clear what
happened, although it may be that Mr. Lewis felt that Jeremiah Evans might
have been reaching for something at that point, Mr. Lewis said something to
the effect of, “Come on with it,” and shot him.
[The petitioner] and Mr. Lewis ran out of the apartment, which was on
Bell Road in Davidson County. [The petitioner] leaped over some stairs
causing him to break a leg. They all eventually got into the car. Some way or
another [the petitioner] ended up with the murder weapon and he has told
police that he threw it in the river. It has never been found.
The petitioner, along with Lewis and Nelson, was indicted for two counts of first
degree murder for his involvement in the death of Mr. Evans. Thereafter, the petitioner pled
guilty, as a Range I offender, to facilitation of second degree murder in exchange for an out-
of-range sentence of fifteen years. The agreement provided that the manner of service of the
sentence was to be determined by the trial court. After a sentencing hearing, the trial court
ordered that the sentence be served in the Department of Correction. No direct appeal of the
sentence was filed.
-3- On June 26, 2007, the petitioner filed a pro se petition for post-conviction relief
alleging that his plea was not entered knowing and voluntarily based upon the ineffective
assistance of counsel. Post-conviction counsel was appointed, and a motion for extension
of time to file an amended petition was filed. However, no amended petition appears in the
record before this court. An evidentiary hearing was held in December, 2008, at which only
the petitioner and trial counsel testified.
The petitioner testified that he retained trial counsel to represent him following the
preliminary hearing. He further stated that she represented him for about a year and a half
prior to his accepting the plea. According to the petitioner, however, he met with trial
counsel during this period only on three or four occasions, despite the fact that he was
released on bond during part of this period. The petitioner indicated that trial counsel had
failed to relay any information to him regarding her investigation, and he further stated that
he did not believe that she had talked to any witnesses. He did testify that he had never
presented trial counsel with the idea of a possible alibi for a defense.
The petitioner acknowledged that trial counsel did discuss the elements of the crime
for which he was charged and told him that his co-defendants’ statements would be used
against him. He further testified that trial counsel had informed him that if he went to trial,
he could very well lose because the co-defendants would testify against him. He stated that
-4- trial counsel explained that his co-defendants’ testimony would be used against him to
establish the element of premeditation, but he claims trial counsel never discussed the
element of intent. The petitioner also testified that he was not aware until after he reached
the penitentiary that no witness, other than his co-defendants, could positively identify him
or that there was tape recordings and video of the statements made by his co-defendants.
However, he contradicted himself by admitting that he was aware of the statements given and
that they were taped because all three men had been at the police station together. The
petitioner, nonetheless, maintained that he had never seen or heard the video of the
statements and faulted trial counsel for that omission, as well as for failing to share the 911
tape.
The petitioner next testified and acknowledged that when he accepted the plea
agreement, his case had been set for trial and he “felt pressure” from that. He stated that trial
counsel told him that if he accepted the fifteen-year sentence, he would be out of prison in
one year, because he would get parole. The petitioner stated that trial counsel did not inform
him that this parole release was not guaranteed and that he counted on that in making his
decision to plead. In fact, he was denied release by the parole board, who indicated they
would reconsider his release in two years.
The petitioner also complained that trial counsel failed to explain to him that he was
-5- accepting a sentence length outside of his range. He indicated that he first heard that when
he was before the court at the plea hearing. While he acknowledged that the court had
addressed the out-of-range sentence, he maintained that he did not comprehend the
ramifications of his decision. Nonetheless, he did acknowledge that the trial court had gone
to great lengths to cover the plea agreement with him. However, he indicated that he relied
upon trial counsel, who had advised him to take the plea offer because if he went to trial, he
would lose. He faulted trial counsel for failing to explain the term “out of range,” for failing
to explain in which class of felony charges facilitation of second degree murder fell, and for
failing to explain that if convicted at trial of the facilitation charge, he could not receive a
fifteen-year sentence.
On cross-examination, the petitioner confirmed that trial counsel had explained the
charged crime of felony murder and indicated he was aware that he was facing a possible life
sentence. In fact, he admitted that at the time the offer was made, he believed it was a good
deal. However, at the post-conviction hearing, he asserted that trial counsel should have
talked to the co-defendants in person because their stories were inconsistent. Nonetheless,
he acknowledged that all the statements were taped and that trial counsel had possession of
those tapes during her trial preparation. He went on to state that trial counsel knew about all
the evidence both from discovery and because she had sat in on a co-defendant’s trial.
-6- Upon examination by the court, the petitioner testified that he wished he had not pled
guilty. He insisted that he thought he would accept the agreement and be out in one year
under split confinement; however, he acknowledged that there was no specific agreement
with regard to split confinement. He also admitted that prior to the acceptance of the plea,
trial counsel had covered the various possibilities that the trial court could impose with
regard to the sentence after acceptance of the plea. The petitioner again stated that, at the
time of acceptance, he believed the plea was a good deal. However, he decided it was a bad
deal after he looked over his case, and he now felt like he could have gotten a better deal.
Trial counsel also testified and stated that she was retained by petitioner and that she
met with him as often as she could. Trial counsel indicated that the petitioner had
transportation problems and could not get to her office often. However, she felt that they
spoke often enough for her to adequately advise the petitioner of the evidence and relevant
law. Trial counsel indicated that she received discovery in the case and shared the materials
with the petitioner. She indicated that she spoke in detail with the petitioner about the
discovery materials. She also provided the defendant with transcripts from his co-
defendant’s trial, which had occurred prior to the acceptance of this plea agreement. The
petitioner had testified at that trial, admitting his involvement in the planned robbery but
denying that he was the shooter. The testimony given by the petitioner at trial was
corroborative of the statement he gave to police during the investigation. Trial counsel
-7- indicated that she believed that the petitioner’s own testimony supported a finding of guilty
of felony murder. It was his testimony against his co-defendant that caused the State to offer
the petitioner the plea agreement.
Trial counsel testified that the petitioner had given her no additional names to
interview as possible defense witnesses. She indicated that she was well-aware of the proof
which would be presented, having witnessed and reviewed the co-defendant’s prior trial. She
saw no need to personally interview the State’s witnesses, because she was already aware of
what their testimony would be based upon the prior trial. Moreover, both co-defendants were
represented by counsel and would not likely have been allowed to converse with her. She
agreed that no witness, other than the co-defendants, put the petitioner at the scene of the
crime; however, the petitioner’s own testimony at trial, as well as his police statement, put
him at the crime scene. Trial counsel indicated that she did not believe that, based upon the
proof, the petitioner could get a lesser-charge conviction had he gone to trial.
After she received the offer, trial counsel went over the offer with the petitioner and
advised him that it was a good deal. She specifically covered the fact that the sentence was
out of range. She gave the petitioner copies of the plea documents to take with him to ensure
that he read and understood the agreement. Trial counsel informed the petitioner that he was
eligible for parole, but she did not guarantee that he would receive it, because that was a
-8- decision made by the Board of Parole. She further explained to the petitioner that any trouble
he got into while on bond or once sentenced would be a factor in the Board’s decision.
Trial counsel also testified that, during the trial preparation period, the petitioner was
released on bond. She indicated that he was continually getting into additional trouble with
the law and had to appear multiple times before the court on bond issues. The petitioner’s
bond was eventually revoked, and he was returned to jail.
After hearing the evidence presented, the post-conviction court took the matter under
advisement and later issued a written order denying relief. This appeal followed.
Analysis
On appeal, the petitioner contests the post-conviction court’s denial of his petition for
relief. He contends that the evidence presented established that he was denied his right to
effective assistance of counsel. Specifically, he contends that: (1) trial counsel failed to bring
to the trial court’s attention that the State failed to provide the petitioner with exculpatory
evidence; and (2) failed to investigate and interview witnesses. While raised at the post-
conviction hearing, on appeal, he does not specifically contest that his plea was entered
unknowingly and involuntarily. However, as has been noted, once a guilty plea has been
-9- entered, effectiveness of counsel is relevant only to the extent that it affects the voluntariness
of the plea. Thus, any such claims of ineffective assistance necessarily implicate that guilty
pleas be voluntarily and intelligently made. Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing
North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
In evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that, “[t]he standard was and remains whether the plea represents
a voluntary and intelligent choice among the alternative courses of action open to the
defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). In making this determination,
the reviewing court must look to the totality of the circumstances. State v. Turner, 919
S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534,
542 (Tenn. Crim. App. 1990). Indeed, a
court charged with determining whether . . . pleas were ‘voluntary’ and ‘intelligent’ must look to various circumstantial factors, such as the relative intelligence of the defendant; the degree of his familiarity with criminal proceedings; whether he was represented by competent counsel and had the opportunity to confer with counsel about the options available to him; the extent of advice from counsel and the court concerning the charges against him; and the reasons for his decision to plead guilty, including a desire to avoid a greater penalty that might result from a jury trial.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).
To succeed in a challenge for ineffective assistance of counsel, a petitioner must
-10- demonstrate that counsel’s representation fell below the range of competence demanded of
attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under
Strickland v. Washington, 466 U.S. 668, 687 (1984), the petitioner must establish (1)
deficient representation and (2) prejudice resulting from the deficiency. In the context of a
guilty plea, to satisfy the second prong of Strickland, the petitioner must show 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.” Lockhart, 474 U.S. at 59; see also Walton v. State,
966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). The petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a
sound, but unsuccessful, tactical decision made during the course of the proceeding. Adkins
v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This deference to the tactical
decisions of trial counsel, however, is dependant upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).
The issues of deficient performance by counsel and possible prejudice to the defense
are mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A
trial court’s findings of fact underlying a claim of ineffective assistance of counsel are
reviewed on appeal under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State,
-11- 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d). However, conclusions of
law are reviewed under a purely de novo standard, with no presumption of correctness. Id.
at 458. Questions concerning the credibility of witnesses and the weight to be given their
testimony are for resolution by the post-conviction court. Black v. State, 794 S.W.2d 752,
755 (Tenn. Crim. App. 1990).
In a memorandum opinion, the post-conviction court denied relief, finding, in relevant
part, as follows:
First, Petitioner claims that [trial counsel’s] representation was
ineffective, because she failed to interview witnesses. [Trial counsel] stated
that although she did not interview any witnesses, that she did observe various
aspects of the trial of his co-defendant Lewis, and knew what would be
required of each witness were the matter to proceed to trial. Moreover, [trial
counsel] stated that she provided transcripts of his co-defendants’ trial to
Petitioner. The Court finds that [trial counsel] fulfilled her obligation to
adequately advise [the petitioner] of the evidence against him, trial strategies
available so that he could make an informed decision whether to plea or go to
trial.
Additionally, the petitioner alleges that [trial counsel] did not
-12- adequately explain the consequences of his plea and the anticipated sentencing
hearing. . . . [Trial counsel] asserts that . . . she discussed all the forms in
which his sentence could be imposed by the court, including the time at which
he would be eligible for parole. At no time did she guarantee that the
Petitioner would receive alternative sentencing; rather, she sought to explain
all options available to Petitioner. The Court accredits the testimony of [trial
counsel] in all respects. As such, the Court finds no basis for Petitioner’s
claim of ineffective assistance of counsel.
Petitioner also claims that he did not enter a guilty plea knowingly and
voluntarily, thus denying him a jury trial.
....
In the present case, Petitioner claims that he had no knowledge of the
class of felony to which he was pleading, and moreover, that he was pleading
outside of the sentencing range proscribed by the State of Tennessee.
Although he conceded that the Court informed him that his plea was out of
range, the day it was tendered by the Court, he alleges that it was the first time
that he had heard of it, and that he did not fully understand the implication of
-13- the plea. [Trial counsel] asserts that she did in fact explain the plea agreement,
specifically that he was pleading out-of-range.
Petitioner was informed of these implications during the plea in open
court, and he affirmed to the Court that he fully understood these rights, and
that he was fully aware that he was waiving such rights. The court finds no
merit on Petitioner’s issue that he did not enter his guilty plea knowingly and
voluntarily.
The petitioner urges us to find that the evidence in the record preponderates against
the post-conviction court’s findings. Again, he asserts ineffective assistance of counsel was
established because: (1) trial counsel failed to bring to the court’s attention exculpatory
evidence withheld by the State; and (2) trial counsel failed to investigate the case and
interview witnesses.
Initially, we are constrained to note that we are perplexed by the alleged ineffective
assistance of counsel with regard to exculpatory evidence. No where in the petition filed or
in the transcript of the hearing in the post-conviction court is this contention mentioned.
Indeed, in the appellate brief, the petitioner merely makes the bare assertion and then cites
to applicable law. He fails to even mention what the alleged exculpatory evidence is.
-14- Because the petitioner has failed to raise the issue in the post-conviction court and failed to
support his assertion in the brief with adequate facts, we decline to address this contention.
See T.C.A. §§ 40-30-106(g), 40-30-110(f) (2010); Tenn. R. App. P. 27; Tenn. R. Ct. Crim.
App. 10(b).
Turning to the trial counsel’s alleged deficiency in failing to investigate and interview
witnesses, we must conclude that nothing in the record preponderates against the findings
made by the post-conviction court. The petitioner, however, contends that trial counsel failed
to “put forth any effort” to interview witnesses, instead relying solely on the investigative
work of the State . He contends that “information relevant to the defense might have been
obtained through better pre-trial investigation of the witnesses, and a reasonable lawyer
would have made some effort to investigate the eyewitness’ testimony.” He asserts that trial
counsel’s “failure to investigate was not part of a calculated trial strategy, but is likely the
result of incompetence.” We disagree.
Trial counsel testified that she met with the petitioner, provided him with relevant
discovery, and discussed the facts of the case, the State’s evidence, and available trial
strategies. She testified that she believed that the petitioner was adequately prepared to make
an informed decision on whether to accept the plea or proceed to trial. The post-conviction
court specifically accredited this testimony, and we will not reweigh or re-evaluate such a
-15- determination on appeal. See Black, 794 S.W.2d at 757.
Trial counsel’s testimony established that, contrary to the petitioner’s assertions, she
did not simply rely upon the State’s discovery file. In this case, a co-defendant was tried
first, and trial counsel availed herself of the opportunity to sit in on portions of that trial and
hear the testimony which was given. Thus, she was already aware of what each witness was
going to testify to. Trial counsel further obtained complete trial transcripts, which she shared
with the petitioner. At the post-conviction hearing, she testified that she would not have been
able to interview the co-defendants because they were represented by counsel and would
likely not have been allowed to speak with her.
Regardless, the petitioner failed to put forth any witness or evidence at the post-
conviction hearing which would have been beneficial to his case. He claims trial counsel
could have discovered a better defense strategy had she interviewed the witnesses, but wholly
fails to substantiate that with witness testimony. “When a [post-conviction] petitioner
contends that trial counsel failed to discover, interview, or present witnesses in support of
his defense, these witnesses should be presented by the petitioner at the evidentiary hearing.”
Black, 794 S.W.2d at 757. The post-conviction court may not speculate “on the question of
. . . what a witness’s testimony might have been if introduced.” Id. Because the petitioner
failed to put forth this evidence, he failed to establish ineffective assistance of counsel.
-16- We further conclude that nothing in this record preponderates against the post-
convictions court’s finding that the plea was entered knowingly and voluntarily. Trial
counsel testified that she covered the ramifications of the plea agreement with the petitioner
prior to his acceptance. She specifically denied that she ever informed him that he was
guaranteed an alternative sentence or that he was guaranteed release on parole. She also
indicated that she informed the petitioner that the fifteen-year sentence was outside of his
range. Again, the post-conviction court accredited this testimony, and we do not disturb that
finding.
Moreover, review of the plea hearing transcript reveals that the court, prior to
acceptance of the plea, explained the agreement to the petitioner in great detail. The court
specifically covered that the sentence was outside the applicable range. The petitioner
indicated on the record that he understood the agreement and had no questions. The
petitioner testified that he fully understood the consequences of the plea agreement. “A
petitioner’s sworn responses to the litany of questions posed by the trial judge at the plea
submission hearing represent more than lip service.” Alfonso Camacho v. State, No. M2008-
00410- CCA-R3-PC (Tenn. Crim. App., at Nashville, Aug. 18, 2009). A petitioner’s sworn
statements and admissions of guilt stand as a witness against the petitioner at the post-
conviction hearing when the petitioner disavows those statements. Id.
-17- On this record, the petitioner has failed to show an entitlement to relief. It appears
that he was appropriately advised of the consequences of the plea agreement and all other
possible alternatives. The petitioner, facing a possible life sentence, was offered the
opportunity to testify against his co-defendants and receive a guaranteed sentence of fifteen
years. The petitioner chose to accept that offer. The petitioner testified that he “felt
pressure” because of the impending trial and felt that it was “a good deal” at the time to
accept the plea. That he now believes he “had a better chance [of getting a lesser sentence]
if [he] went to trial” does not entitle him to a second chance to make the decision. He has
failed to meet his burden of establishing that he is entitled to relief.
CONCLUSION
Based upon the foregoing, the denial of post-conviction relief is affirmed.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
-18-