James Lane v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9611-CR-00468
• Status: Published

Opinion

FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE November 6, 1997 OCTOBER 1997 SESSION Cecil W. Crowson Appellate Court Clerk

JAMES D. LANE, ) ) NO. 01C01-9611-CR-00468 Appellant, ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER, JUDGE ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

J. ROBIN MCKINNEY, JR. JOHN KNOX WALKUP 214 2nd. Ave. N. Attorney General and Reporter Suite 103 Nashville, TN 37201 ELIZABETH B. MARNEY Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

VICTOR S. JOHNSON, III District Attorney General

PAMELA S. ANDERSON Assistant District Attorney General Washington Square, Suite 500 222 2nd Ave. N. Nashville, TN 37201-1649

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

The appellant, James D. Lane, appeals the dismissal of his petition for post-

conviction relief by the Davidson County Criminal Court. At issue is whether

appellant’s prior guilty plea was knowingly and voluntarily entered, and whether

appellant was deprived of effective assistance of counsel. We affirm the judgment

of the trial court.

PROCEDURAL HISTORY

On October 25, 1993, appellant pled guilty to two counts of simple robbery,

each a Class C felony. He was sentenced by agreement to three (3) years on each

count to be served consecutively on community corrections after an initial four (4)

months in the drug and alcohol program in the Corrections Corporation of America

institution. The effective sentence was six (6) years on community corrections. In

exchange, he was the beneficiary of dismissed charges to include one count of abuse

of an elderly person and one count of abuse of a child. After his incarceration for

violations of his community corrections sentence, appellant filed a petition for post-

conviction relief claiming his original attorney had failed to interview witnesses and

had used his mother’s influence to convince him to plead guilty to the original

charges. The trial court dismissed the petition after an evidentiary hearing.

STANDARD OF REVIEW

The trial judge's findings of fact on post-conviction hearings are conclusive on

appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d

898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim. App.

1995). The trial court’s findings of fact are afforded the weight of a jury verdict, and

this Court is bound by the trial court’s findings unless the evidence in the record

preponderates against those findings. Dixon v. State, 934 S.W.2d 69, 72 (Tenn.

2 Crim. App. 1996). This Court may not reweigh or reevaluate the evidence, nor

substitute its inferences for those drawn by the trial judge. Massey v. State, 929

S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990). Questions concerning the credibility of witnesses and the

weight and value to be given to their testimony are resolved by the trial court, not this

court. Black v. State, 794 S.W.2d at 755. The burden of establishing that the

evidence preponderates otherwise is on petitioner. Id.

POST-CONVICTION HEARING

The transcript of the the post-conviction hearing reveals that trial counsel filed

a motion to withdraw the guilty plea on November 8, 1993, concurrent with his motion

to withdraw as counsel. The record shows that appellant decided not to seek

withdrawal of the guilty plea. Counsel testified that appellant acknowledged his

abandonment of the motion in open court. Appellant testified he could not recall.

In the case before us, the trial court found the testimony of the attorney

credible and found the testimony of the appellant to be contradictory to past

proceedings. The trial court found that counsel’s performance met the standards of

Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). The trial court further found the guilty

plea was voluntarily entered. There is nothing in the record to preponderate against

the trial court’s findings.

ABSENCE OF GUILTY PLEA TRANSCRIPT

We note that there was no transcript of the guilty plea proceeding admitted

into evidence at the post-conviction hearing, and there is no supplement to the

record. The trial judge relied on his memory and his standard procedure in taking

guilty pleas. We cannot review the memory of the trial court, and this deficiency

would generally hamper our ability to effectively review the record. However,

appellant’s claim of undue influence by his mother causing him to plead guilty was

3 negated by appellant’s post-conviction testimony when he admitted he pled guilty of

his own free will, that he could have pled “not guilty,” and that there were no threats

or promises made in exchange for his plea. His mother, who was also his victim in

one count of robbery, died prior to the post-conviction hearing.

The Post-Conviction Procedures Act of 1995, specifically Tenn. Code Ann.

§ 40-30-208(b), does not expressly mandate that the district attorney general obtain

“records or transcripts, or parts of records or transcripts that are material to the

questions raised . . .”; rather it empowers the district attorney general to do so. The

filing of these records is now more permissive in that the district attorney general

“may file them with the responsive pleading or within a reasonable time thereafter.”

Id. (emphasis added). In the previous codification of this section, these were clearly

the mandatory responsibility of the district attorney general. See Tenn. Code Ann.

§ 40-30-114(b) (1990); Allen v. State, 854 S.W.2d 873, 875 (Tenn. 1993).

Tenn. R. Sup. Ct. R. 28, § 6 specifically addresses the obligation for

procurement of material documentation. Within thirty days of filing of the petition, the

judge to whom the case is assigned must review the petition and all documents to

determine whether the petition states a colorable claim. In the event of a colorable

claim, the judge shall enter a preliminary order which:

(a) appoints counsel, if petitioner is indigent; (b) sets a deadline for the filing of an amended complaint; (c) directs disclosure by the state of all that is required to be disclosed under Rule 16 of the Tennessee Rules of Criminal Procedure, to the extent relevant to the grounds alleged in the petition, and any other disclosure required by the state or federal constitution; (d) orders the state to respond and, if appropriate, to file with the clerk certain transcripts, exhibits, or records from the prior trial or hearing; and (e) makes other orders as are necessary to the efficient management of the case.

Id. (emphasis added).

The preliminary order herein failed to follow (d) above, and no transcript was

produced. However, as set out earlier in this opinion, the error was harmless due to

appellant’s post-conviction testimony which indicated that his plea was voluntarily

entered. See Hogan v. State, C.C.A. No. 01C01-9604-CC-0061, Dickson County

(Tenn. Crim. App. filed March 13, 1997, at Nashville).

4 CONCLUSION

The judgment of the trial court is affirmed.

JOE G. RILEY, JUDGE

CONCUR:

JOE B. JONES, PRESIDING JUDGE

WILLIAM M. BARKER, JUDGE