IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JANUARY SESSION, 1997 April 24, 1997
Cecil W. Crowson
KENNY D. COVINGTON, ) Appellate Court Clerk C.C.A. NO. 01C01-9604-CR-00149 )
Appe llant, )
)
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT, JR.
STATE OF TENNESSEE, ) JUDGE )
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT J. MENDES CHARLES W. BURSON 209 T enth Av enue S outh Attorney General and Reporter Suite 511 Nashville, TN 37203 CLINTON J. MORGAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
CHERYL BLACKBURN
Assistant District Attorney General Washington Square, Suite 500 222 Se cond A venue N orth Nashville, TN 37201-1649
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
The Petitioner a ppeals the trial cour t’s denial of h is petition for p ost-
conviction relief pursuant to Rule 3 of the Tennesse e Rules of Appe llate Procedure. He was convicted by a guilty plea of three counts of selling over .5 grams of cocaine, one count of selling over 26 grams of cocaine, one count of possession for sale of over 26 grams of cocaine, one count of possession for sale of over .5 grams of cocaine, one count of possession of drug paraphernalia, and one count of a felon possessing a weapon. He was sentenced by the trial court as a R ange I offende r to thirty (30) years imprison ment. In this appeal, the Petitioner contends that counsel rendered ineffective assistance and that his gu ilty plea was not entere d voluntarily, knowin gly, or und erstand ingly. W e affirm the judgm ent of the tria l court.
The Petitioner filed a pro-se petition for post-conviction relief on August 4, 1995. Counsel was appointed and filed an amended petition on Oc tober 2, 1995. A hearing in the trial court was conducted on October 23, 1995 and an order was issued on November 17, 1995, denying the petition. The Petitioner now a ppeals the trial court’s ord er.
As his first issue, the Petitioner argues that he was d enied the effective assis tance of counsel. In de termining wh ether couns el provided effective assistance at trial, the court mus t decid e whe ther co unse l’s performance was within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W .2d 93 0, 936 (Ten n. 197 5). To succe ed on a claim
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that his coun sel was in effective at trial, a petitioner bears the burden of showing that his counse l made errors so serious that he was not functioning as counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced the petitioner resulting in a failure to produce a reliable result. Strickland v. Washington, 466 U.S . 668, 687 , reh’g denied, 467 U.S. 1 267 (1984 ); Coop er v. State, 849 S.W .2d 744, 747 (Tenn. 199 3); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy the second prong the petitioner mus t show a reas onab le proba bility that, b ut for co unse l’s unrea sona ble error, the fact finder would have had reasonable doubt regarding petitioner’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable probability must be “sufficie nt to unde rmine c onfiden ce in the o utcom e.” Harris v. S tate, 875 S.W .2d 662, 665 (Tenn. 199 4).
When reviewing trial counsel’s actions, this court should not use the bene fit of hindsight to second-guess trial strategy and c riticize c ouns el’s tactics. Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be ju dged at the time they were made in light of all facts and circumstances. Strickland, 466 U.S. at 69 0; see Cooper, 849 S.W.2d at 746.
This two part standard of measuring ineffective assistance of counsel also applies to claims a rising out o f the plea p rocess . Hill v. Lockhart, 474 U.S. 52 (1985). The prejudice requirement is modified so that the petitioner “must show th at there is a reason able pro bability that, bu t for cou nsel’s errors he would not ha ve plea ded g uilty and would have in sisted on go ing to tria l.” Id. at 59.
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In the case sub judice, the Petitioner was represented by three attorneys and he alleges that all three had a role in failing to provide effective assistance. The Petitioner was arrested on August 14, 1993 based on a warrant for his arrest for possessing and selling cocaine. A police informant had made several controlled buys of cocaine from the Petitioner and the police had made audio tapes of telephone calls involving discussions about drug sa les.
His first attorney, Glen Funk, represented the Petitioner when he was arrested. Mr. Funk went to the jail and met with him , represented h im the next day when the case was bound over to the grand jury and was making preparations to represent him at a Community Corrections revocation hearing. Mr. Funk’s assessment of the case was that the State had very strong proof against the Petitioner. Mr. Funk reviewed with the Petitioner the search warran t, the execution of the search warrant, and the po tential penalties for the alleged crimes . Mr. Funk advised him to waive a preliminary hearing because the Petitioner had indicated that he was going to c oopera te with the police and give information about other drug dealers. Mr. Funk testified that he advised him to waive the he aring be cause the Petition er wante d to cooperate with the police and th e Com mun ity Corre ctions hearin g would serve the purpose of a preliminary hearing in terms of presenting and cross- examining witnesses . The Petitioner claims that he did not understand the purpose of a preliminary hearing, yet he had been previously represented by Mr. Funk and had extensive meetings regarding another case. Before the hearing, the Petitioner’s family told Mr. Funk that another attorney, Jack Butler, would be as sum ing his represe ntation. W e cannot conclude, from the
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evidence before us, that Mr. Funk’s representation fell belo w the a ccep table range of competence. Furthermore, the Petitioner has presented no evidence regarding any prejudice he suffered because of Mr. Funk’s representation.
Jack Butler , the Pe titioner’s seco nd atto rney, re prese nted h im through his arraignm ent. Mr. Butler investigated the case, interviewed witnesses, and made reque sts for d iscove ry. His paralegal reviewe d the discovery mate rials with the Petitioner. Mr. Butler testified that he did not listen to the audiotapes becau se they w ere set o ut in the se arch wa rrant. He also stated that would have listened to the tapes had the case gone to trial, but that the case at that point was focu sed on settling. He also concluded that the State’s proof was extrem ely strong. T he Petition er conte nds an d Mr. Bu tler testified that the State offered a plea agreement of twenty-four years if both he and his co- defend ant, his girlfrie nd, wo uld ag ree. S he ap paren tly refused the offer. The State counters that the only offer that was made to the Petitioner was for thirty years as a R ange II offende r.
The Petitioner contends that he was advised to refuse the offer.
Howeve r, Mr. Butler testified that he did not so advise the Petitioner because he had a lready indica ted he would not agree. M r. Butler filed a motion to withdraw from represe ntation after discovering that the Petitioner had been communicating on his own with his co-defendant’s attorney. Although Mr. Butler did not advise the Pe titioner o n his option s, he te stified th at he w ould not have recommended going to trial because the proof was so strong, and that his other options were to accept the plea agreement or plead guilty and
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subm it to sentencing by the trial judge. He would have recommended taking the thirty-yea r agreem ent.
The Petitioner was represented by his third attorney, Mr. R.N . Taylor, through his guilty plea and sentencing. Mr. Taylor requested the file from Mr. Butler and reviewed the evidence against the Petitioner. He also concluded that the proof wa s very stron g and th at he wo uld not rec omm end a trial. He did, however, advise the Petitioner to plead guilty and leave the sentence open to be determined at a sentencing hearing. He asse ssed the Pe titioner’s case and advised that he might do better than the fixed thirty-yea r, Rang e II sentence at 35% offered by the State. At the hearing, the Petitioner was sentenced to thirty years as a Range I offender at 30%. He claims that the advice of his attorney was erroneous and that he would have proceeded to trial. However, the outcome after the sentencing hearing was better than the State ’s offer. T herefo re, this a rgum ent m ust fail.
The Petitioner also ass erts that both Mr. Butler and Mr . Taylor faile d to investigate the ca se ad equa tely. It is well-established that defense counsel must condu ct an app ropriate inv estigation into both the facts and the law to determine what matters of defe nse ca n be de veloped . See e.g., Baxter v. Rose, 523 S.W .2d at 936 ; McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, our supreme court recognized in Baxter that the American Bar As sociation Standa rds for Criminal Justice provide useful guidance with regard to the function and responsibilities of defen se co unse l. The American Bar Association standard s explain d efense couns el’s duty to investigate with the following language:
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It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of con viction. T he inve stigation should always include efforts to secure information in the possession of the prosecution and law enfor ceme nt autho rities. The d uty to investig ate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or the accuse d’s stated desire to plead guilty.
ABA S tandards for C riminal Justice § 4-4 .1 (2d ed. Sup p. 1986).
Specifically, the Petitioner argues that his attorneys failed to review the surveillance tapes with him. Furthermore, he contends that Mr. Taylor failed to request independent testing of the substances seized or challenge the validity of the warrant. However, there is evidence that Mr. Butler reviewed the tape transcripts. Furthermore, Mr. Ta ylor ha d the ta pes in his possession, although he did not sp ecifica lly recall reviewing them. There is also evidence that both attorneys reviewed the search warrant and the nature of the informa tion supporting that warrant. Finally, the Petitioner had all along admitted to the police, the Assistant District Attorney, and to his attorneys that he had made the drugs sales in question and he initially indicated a desire to become an informant. The focus of the representation, in the face of such strong proof, was to obtain a favorable plea agre ement. All the a ttorneys agreed that a trial wa s not in the Petitioner’s best intere st.
W e are reluctant to, and indeed precluded from , second-gu essing Mr.
Butler’s and M r. Taylo r’s actio ns. Fro m a re view of th e surro undin g circumstances, we cannot conclude that any failure by the attorneys to review the tapes rende red their represe ntation deficient. The attorneys did evalua te the strength of the case against the Pe titioner a nd co nclud ed tha t a trial wo uld
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not be in his best interest. There was no evidence suggesting that the substances obtained from the Petitioner were not cocaine nor did the warrant appear defective. Although the Petitioner claims that he w ould ha ve gone to trial, he has presented no evidence that suggests how further investigation would have benefitted him ; his allegatio ns are m erely spe culative. W e note that under th e provision s of the P ost-Co nviction P rocedu re Act of 1 995, a petitioner bears the burden of proving the allegations in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-2 10(f) (Su pp. 199 6). In reviewing post-conviction proceedings, "the factual findings of the trial court are conclus ive unless the evide nce pre ponde rates ag ainst such findings ." Cooper v. State, 849 S.W .2d 744 , 746 (T enn.19 93); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn.1990). Under these circumstances, we cannot conclude that the evidence preponderates against the trial court’s findings.
Second, the Petitioner argues that he did no t know ingly or in telligen tly enter into his guilty plea because: (1) he relied on erroneous legal advice; (2) a full investigatio n was not conducted; (3) he waived a preliminary hearing; and (4) counsel failed to make two motions requested by him. A defendant must be advised o f his constitutional rights befo re he is allowed to ente r a guilty plea. Boykin v. Alabama, 395 U.S. 238 (1969 ). Among those rights are the right again st self-incrim ination, the right to confront witnesses and the right to a trial by jury. Id. at 243. The record must show that a guilty plea was made voluntarily, understa ndingly, an d know ingly. Id. at 242. In State v. Mackey, 553 S.W .2d 337 (Te nn. 1977), the T ennesse e Suprem e Court imposed stricter standards than those mandated in Boyk in. Included in the Mackey requirements:
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A. Before accepting a plea of guilty, the court must address the defend ant pers onally in op en cou rt . . . . . . . .
D. A verbatim record of the proceedings at which the defendant enters a plea shall be made and, if there is a plea of guilty, the record shall include, without limitation, (a) the court’s ad vice to the defendant, (b) the inquiry into the voluntariness of the plea including any plea agreement and into the defendant’s understanding of the consequences of his entering a plea of guilty, and (c) the inquiry into the accuracy of a guilty plea.
Id. at 341.
In State v. Neal, 810 S.W.2d 131 (Tenn. 1991), our supreme court stated that the purp ose for the se guide lines is to "seek to insulate guilty pleas from coercion and relevant defendant ignorance. They are d esigned to insu re that guilty pleas are voluntary a nd kno wing." Id. at 135. The Tennessee Supre me C ourt has also state d:
For the plea to be a ccep table it must be voluntary. That does not mean that the de fenda nt wou ld want to plead guilty if he or she had the option av ailable to g o free. The option available is to go to trial, with its unc ertainties, o r to plead g uilty. The knowledge that is most relevant to this decision of the ac cused pertains to the rights that are available to him or her up on a trial that are given up by plea ding guilty.
Id.
The Petitioner cites Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (19 85), for the propos ition that a gu ilty plea may be made involun tarily because of the ineffective assistance of counsel. We iterate that we have determ ined that the trial court did not err in finding that he was provided effective assistance of counsel. Therefore, the Petitioner’s argument
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that his plea was not knowingly or intelligently entered fails on this ground. Furthermore, the trial court reviewed with the petitioner the consequences of waiving a jury trial at the time he pleaded guilty and the Petitioner indicated that he understood. In Hill, the attorney wrongly advised the defendant about his parole e ligibility upon which he relied in choo sing to plead gu ilty. Hill, 474 U.S. at 60, 106 S.Ct. at 371. Here, the attorneys did not provide incorrect information, but instead rendered legal advice considering the circumstances of the case. There was no guarantee of the outcome, which unfo rtunate ly was not to the Petitioner’s liking. However, he was informed of his options and their po tential ris ks an d the P etitione r then m ade a choice . Although there was some failure to fully investigate, the Petitioner has not demonstrated how this prejudiced him. As for the preliminary hearing waiver and the failure to make motions, the Petitioner has only made conclusory allegations. Without more, we cannot adequately review these claim s. This issue is w ithout me rit.
Accord ingly, we affirm the judgm ent of the tria l court.
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DAVID H. WELLES, JUDGE
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CONCUR:
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JERRY L. SMITH, JUDGE
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JOE G. RILEY, JUDGE