Mintz v. State

808 S.W.2d 459, 1990 Tenn. Crim. App. LEXIS 863
CourtCourt of Criminal Appeals of Tennessee
DecidedDecember 20, 1990
StatusPublished
Cited by1 cases

This text of 808 S.W.2d 459 (Mintz v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mintz v. State, 808 S.W.2d 459, 1990 Tenn. Crim. App. LEXIS 863 (Tenn. Ct. App. 1990).

Opinion

OPINION

BIRCH, Judge.

The petitioner, David Mintz, appeals the judgment of the Criminal Court of Sullivan County dismissing his petition for post-conviction relief.

To set the case in its proper procedural aspect, in 1985, Mintz entered pleas of guilty to eleven counts of robbery accomplished by the use of a deadly weapon. The trial court accepted a plea agreement and sentenced him to the agreed term of twenty-five years for each of the eleven counts. The trial judge ordered the sentences to be served concurrently except for one, providing for Mintz the effective sentence of fifty years to which he had agreed.

Some four years later, Mintz filed the instant petition for post-conviction relief, contending that the eleven guilty pleas were entered without the effective assistance of counsel. He urges, consequently, that the guilty pleas were not knowingly, intelligently, or voluntarily entered and should be vacated.

Following a full evidentiary hearing in which Mintz was represented by appointed counsel, the trial court concluded that the representation afforded Mintz by trial counsel during the guilty plea proceedings was within the range of competence required in criminal cases and ruled that the pleas had been entered without constitutional violation.

We have thoroughly examined the entire record. For the reasons stated below, the judgment of the trial court is affirmed.

I

When a post-conviction petitioner is afforded an evidentiary hearing, the trial court’s findings of fact are conclusive unless the evidence preponderates against them. Turner v. State, 698 S.W.2d 90 (Tenn.Crim.App.1985); State v. Swanson, 680 S.W.2d 487 (Tenn.Crim.App.1984); Janow v. State, 470 S.W.2d 19 (Tenn.Crim.App.1971).

When the petitioner contends, as he does here, that trial counsel failed to provide effective assistance, the petitioner must establish by a preponderance of the evidence that the services rendered or the advice given by counsel fell below the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975). In addition to this, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requires that the petitioner prove that he suffered prejudice because of sub-standard representation. The Supreme Court of Tennessee adopted this latter component in State [461]*461v. Harbison, 704 S.W.2d 314, 319 (Tenn.1986); see Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (approving use of Strickland test to resolve allegations of ineffective assistance of counsel arising from the entry of guilty pleas).

Inasmuch as the trial court found that Mintz failed to establish his assertions regarding the effectiveness of his counsel’s assistance, this court must review the record to determine whether the evidence preponderates against this finding.

The trial court distilled the general allegations into three issues: namely,

1. Whether trial counsel advised petitioner of the possibility of a sentencing hearing during which mitigating evidence could have been presented;
2. Whether trial court was familiar with the law regarding consecutive sentencing so as to be able to advise Mintz of his exposure to consecutive sentencing; and
3. Whether trial counsel advised Mintz that consecutive sentences could be made concurrent through the prison system once he was in the penitentiary.

To understand these issues in context, a brief factual review will be helpful.

Mintz and Michael Haynes 1 committed a series of armed robberies in the Kingsport area. The first was committed on April 11, 1985, and took place in a convenience market. Haynes wielded a deadly weapon and robbed a clerk of approximately $300. Mintz did not enter the store, but drove the car in which they escaped. Mintz shared in the proceeds of this robbery.

The second occurred on the following day as Mintz accosted a man about to use an after-hours bank depository. At gunpoint, Mintz took $3,000 from this man and left him handcuffed to the steering wheel of his car. Mintz wore a ski mask while accomplishing this robbery. Haynes, though not the principal actor on this occasion, participated.

On May 1, 1985, Mintz and Haynes, each wearing a stocking mask and wielding a deadly weapon, took approximately $1,200 from the manager of a Kingsport food establishment. In addition to robbing the manager, they robbed eight patrons and herded them into a rest room.

Haynes and Mintz confessed their crimes, and at no time has Mintz denied his guilt of these offenses.

Mintz’s family retained an experienced attorney to represent Mintz. Based upon his initial investigation, counsel determined that the state could, indeed, prove the eleven charges against Mintz. Because of this, counsel decided to negotiate for the very best plea agreement possible. This decision apparently met with the approval of Mintz and his family. Counsel’s intensive efforts to extract from the prosecutor a suitable plea bargain offer met with success, and Mintz ultimately accepted the state’s offer. The trial court approved it and sentenced Mintz as we have outlined earlier in this opinion.

II

Of the three issues upon which Mintz introduced proof at the evidentiary hearing, he obviously views counsel’s decision regarding the sentencing hearing as most important. It is well to note at this point that the trial judge is not required to conduct a sentencing hearing following the acceptance of a plea agreement which includes an agreed sentence.2 In any event, petitioner cannot lay claim to a sentencing hearing as a matter of right under the circumstances this case presents.

Mintz argues that counsel’s failure to advise him of the availability of a sentencing hearing deprived Mintz of an opportunity to present mitigating evidence to the trial judge. For Mintz to meet the prejudice requirements of Strickland, he must demonstrate his readiness to forsake the certainty of the predetermined sentence in favor of the opportunity to present these [462]*462“mitigating” aspects of his life. With this choice comes a sentence undeterminable in advance. We have carefully scrutinized the evidence of record on this point and find that Mintz has not made this necessary showing.

First, trial counsel carefully explained to Mintz (and his parents) that Mintz could reject the fifty-year offer and “throw himself upon the mercy of the court.” This meant, as trial counsel clarified for the Mintz’, that he could gamble in hopes that the sentence imposed by the trial "judge would not exceed the fifty years offered. As we understand the record, this is exactly what Mintz did not want. He preferred to accept the fifty-year sentence rather than risk receiving a lengthier one.

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Related

State v. Turner
919 S.W.2d 346 (Court of Criminal Appeals of Tennessee, 1995)

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Bluebook (online)
808 S.W.2d 459, 1990 Tenn. Crim. App. LEXIS 863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mintz-v-state-tenncrimapp-1990.