Ricky Rutledge v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH SE SSION, 1998 July 2, 1998

Cecil W. Crowson

RICKY RUTLEDGE, ) Appellate Court Clerk C.C.A. NO. 01C01-9706-CC-00201 )

Appe llant, )

)

) BEDFORD COUNTY

VS. )

) HON. WILLIAM CHARLES LEE STATE OF TENNESSEE, ) JUDGE )

Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF BEDFORD CO UNTY

FOR THE APPELLANT: FOR THE APPELLEE:

ROBERT H. STOVALL, JR. JOHN KNOX WALKUP P.O. Box 160 Attorney General and Reporter Charlotte, TN 37036 CLINTON J. MORGAN

Assistant Attorney General 425 5th Avenu e North

Nashville, TN 37243-0493

MIKE McCOWN

District Attorney General

ROBERT G. CRIGLER

Assistant District Attorney General One Public Square, Suite 300 Shelbyville, TN

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE

OPINION

The Petitioner, Ricky Rutledge, appeals from the order of the trial court dismissing his Petition for Post C onviction Relief. Pe titioner sou ght post- conviction relief asserting that he received ineffective assistance of counsel prior to entering his plea of guilt. In addition, Petitioner maintains that because of coun sel’s deficient represe ntation, his guilty plea was not knowingly, intelligently, and voluntarily given. Following an evidentiary hearing, the trial court denied relief and we affirm.

In April 1990, Petitioner was indicted on six counts of aggravated rape1 and one count of aggravated sexual battery . The v ictim a s set fo rth in the indictment was the 9-ye ar-old da ughter o f the Defe ndant. P etitioner en tered a “b est interes t” guilty plea on December 17, 1990, to the first count of aggravated rape; and the State retired all other counts of this indictment as well as a prior indictment for multip le coun ts of pa ssing worth less ch ecks . Judg e Cha rles Le e of the Circu it Court for Bedford Coun ty sentenced Petitioner to twenty-five years as a Range I standard offend er.

Petitioner filed a pro se Petition for Po st Con viction Relief in the Cir cuit Court for Bedford County on November 22, 1993; the trial court appointed counsel on March 24, 1994; and an amended Petition was filed with the court on

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Petitioner was indicted for five counts of aggravated rape in violation of Tennessee Code Annotated § 39-2-603 (1982 & Supp. 1988), and one count of aggravated rape in violation of Tennessee Code Annotated § 39-13-502 (1990).

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May 26, 1994. The trial cou rt held an evidentiary hearing over the course of May 26 and 2 7, 199 4, and dism issed the Pe tition at th e con clusio n of this hearing. On February 17, 1997, the trial court entered its Order Dismissing Post Conviction Petition, from which th e Petitione r appea ls.

I. INEFFECTIVE ASSISTANCE OF COUNSEL The first issue for review is whether Petitioner suffered ineffective assistance of counsel in violatio n of his Sixth A men dme nt right to coun sel. 2 The Petition presents several claims for post-conviction relief based upon ineffective assistance of couns el, yet only certain of these claims were pursued at the evidentiary hearin g. Bec ause the Pe titioner b ears th e burd en of p roving his factual allegation s in this proc eeding , Tenn. C ode An n. § 40-30-2 10(f) (1997), we will address only those claims for which proof was offered.

A. Failure to Investig ate First, Petition er ass erts tha t coun sel faile d to ad equa tely inve stigate his case—spec ifically, by failing to d etermin e the m eaning and sign ificance o f a diagn osis made following a medical examination of the victim. To be entitled to post-conviction relief on the basis of ineffective assistance of counsel, Petitioner must show both that his counsel’s representation was “deficient” and that “the

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The State raises two “preliminary” issues that may be addressed here. First, the State argues that this Court should affirm “instanter” the decision of the trial court, due to the Petitioner’s failure to prepare a complete record for appeal. The trial court’s findings of fact, incorporated by reference in its Order, were not attached to the Order in preparation for the hearing of this appeal. The record reflects, however, that the State did not respond to a motion by Petitioner to permit supplementation of the record pursuant to Tennessee Rule of Appellate Procedure 24(e); and the motion was granted on October 1, 1997.

Second, the State urges that the Petitioner’s Amendment to Petition for Post-Conviction Relief be stricken from the record as an “unauthorized pleading.” Although this pleading was not signed by appointed counsel, it was signed by Petitioner himself; and in the interest of justice, we choose to consider its allegations, noting the objection by the State.

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deficient performan ce prejudiced the defense .” Strickland v. Washington, 466 U.S. 668, 687 (1984). Because Petitioner h as failed to satisfy e ither pro ng, this claim lac ks me rit.

This Court has been provided extensive guidance by which to review contentions that conduct was below competence when judged by “an objective standard of reasonab leness.” See id. at 688; see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (“We b elieve a bette r stand ard . . . is s imply whether the advice given, or the services rendered by the attorney, are within the range of com petenc e dem anded of attorney s in crimin al cases .”). We be gin with the princip le that fin dings of fact m ade b y the tria l court fo llowing Petition er’s evidentiary hearing are conclusive and binding on this Court unless the evidence preponderates against th ose findin gs. Coop er v. State , 849 S.W.2d 744, 746 (Tenn. 1993) (citing Butler v. S tate, 789 S.W .2d 898, 899 (Tenn. 199 0)). In this case, the trial court was “convinced, based upon his demeanor and based upon his answe rs to the qu estions,” th at John Norton , one of P etitioner’s prior attorneys, was “fam iliar with those terms o f art” that Petitioner now claims were not invest igated . We h old tha t the ev idenc e doe s not p repon derate again st this determination and we exam ine the ev idence with resp ect to failure to investiga te the medical diagnosis of the victim.

To support his first claim, Petitioner entered two exhibits into the record of the evidentiary hearing. The first exhibit was a letter from Dr. Frank Jayakody of Shelb yville to Brenda Bramlett, Petitioner’s other attorne y at the time o f his guilty

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plea. This letter stated that upon examination of the victim on February 27, 1990, Dr. Jayakody found “no abrasions or discoloration in [the victim’s] perineal area and her hymen appeared intact.” Furthermore, “[a]ttempts to inse rt a ped iatric speculum into her vagina was [sic] unsuccessful due to pain,” and “based upon her exa mination . . . I could not co nclusive ly say tha t any abu se had occurre d.” The second exhibit relevant to this iss ue, a “C hild Ab use B odyg ram” of the v ictim signed by Registered Nurse LeeAnne McInnis at Metropolitan General Hospital in Nashville, revealed “Findings [consistent with] past his tory of traum a to hymen =category 3 findings.”

The crux of Petitioner’s argument is that Brenda Bramlett and John Norton shou ld have researched the term “category 3 findings” to determine whether such trauma can result from causes other than sexual abuse. Specifically, Petitioner argues that Br amle tt and N orton c ould h ave d iscovered that D r. Jaya kody ’s frustrated attempts to insert a pediatric speculum into the victim three days earlier3 were within the range of potential causes. At the evidentiary hearing, however, Petitioner presented no evidence to support his hypothesis; counsel mere ly motioned to continue the proceeding until su ch tim e as e viden ce co uld be presented.4

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Thoughthe bodygramis not dated, the State does not seem to dispute the date of the victim’s examination at General Hospital.

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Petitioner recounted difficulty in locating Nurse McInnis for interview and requested that the trial court provide funds for an expert. We note that our Supreme Court “is of the opinion that the state is not required to provide expert assistance to indigent non-capital post-convictionpetitioners.” Davis v. State, 912 S.W.2d 689, 696-97 (Tenn. 1995); and we accept the decision of the trial court to deny Petitioner’s request for an expert as correct.

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As noted by this Court in Black v. S tate, 794 S.W.2d 752 (Tenn. Crim. App.

1990),

When a petitione r conten ds that trial co unsel failed to discover, interview, or present witnesses in support of the defense, these witnesses should be presented by the petitioner at the evidentiary hearing. . . . It is elementary that neither a trial judge nor an appellate court can speculate or guess on the question of whether further investigation would have revealed a material witness or what a witness’s testimony might have been if introduced by defense counsel. . . . In short, if a petitioner is able to establish that defense coun sel wa s defic ient in th e inve stigation of the facts . . ., the petitioner is n ot entitled to re lief from his con viction on this ground unles s he ca n prod uce a mate rial witness who (a) cou ld have been found by reasonable investigation and (b) would have testified favorably in support of his defense if called.

Id. at 757-58 (footnote omitted). Although Black involve d a co nvictio n after tr ial, its import is also well-taken in the context of guilty pleas. Petitioner bears the burden to demonstrate (1) that Bramlett and Norton failed to investigate “categ ory 3 findings” of trauma and such failure was unreasonable “considering all the circum stance s,” Strickland, 466 U.S. at 688; and if so, (2) that “there is a reaso nable probability that, but for counsel’s errors, he would not have pleaded guilty and wou ld have insisted o n going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Petitioner must do more than merely present evidence tending to show incompetent representation and prejudice; he must prove his factual allegations by a prepo nderan ce of the e vidence . Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim . App., 1988). 5

5 For post-conviction petitions filed after May 9, 1995, petitioners have the burden of proving factual allegations by clear and convincing evidence. Tenn. Co de Ann. § 40-30-210(f).

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As recognized, Pe titioner h as pre sente d no a ffirmativ e evid ence on this issue other than to show on cross exam ination that Norton never spok e with Dr. Jayakody or Nurse McInnis and did not investigate their findings, and that Bram lett only spoke with Nurse McInnis by telephone. By explanation, Norton testified that he did not sp eak w ith Dr. J ayak ody b ecau se, in h is experien ce, if a “doctor really wants his opinion to be credible, he puts everything in it that he did, and you get back a report” that is “graphic” and detailed. For this reason, Norton stated that he “did not have any reason to believe that [Dr. Jayakody] would have been any m ore enligh tening in p erson th an he w as on the written pa ge.” In addition, Norton testified that he did not speak with Nurse McInnis because he presumed she would not change her opinion and because he believed, even from his admittedly limited medical know ledge, that Dr. Jayakody could not have cause d the injury that Nurs e McIn nis found .

Petition er’s other counsel, Brenda Bramlett, testified at the ev identiary hearing that while she had not spoken with Dr. Jayakody personally, she had consulted another doctor about Jayakody’s findings. This consultant doctor spoke personally with Dr. Jayakody and subsequently offered Bramlett her opinion—that the victim’s injury “could not have been caused by anything other than abuse” and that the location of the scarring was “consistent with what you find in sexual abu se cases.” Furtherm ore, Bram lett instructed her inves tigator to perso nally interview Nurse McInnis, and the investigator complied and reported back to B ramlett.

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With respect to rationalization of attorney conduct in an ineffective assistance of counsel case, the Supreme Court of the United States instructed,

Judicial scrutin y of co unse l’s perfo rman ce m ust be highly defere ntial. It is all too tempting for a defendant to second-guess coun sel’s assistan ce after conviction or ad verse se ntence . . . . A fair assessment of attorn ey perform ance requ ires that every effort be made to elimina te the disto rting effects of hin dsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.

Strickland v. Washington, 466 U.S. 668, 688 (1984). The courts of this state also have long “recognized that it is not our function to ‘second-guess’ tactical and strategical choices pertaining to defense matters or measu re a defense attorney ’s representation by ‘20-20 hindsight’ when deciding the effectiveness of trial couns el.” Coop er v. State , 849 S.W.2d 744, 746 (Tenn. 1993) (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). We find counsel’s conduct to be reason able un der the c ircums tances .

As the State commented at the evidentiary hearing, “There are other sources of research that [sic] the medical books, other doctors, criminal defenses association resources, where [present counsel] could have resea rched this matter hims elf and not co me in to [the] h earing saying , ‘Well, it may have , it could have been.’” The trial court agreed, finding that “there has not been a showing to the Court that there would be the likelihood that would a ssist the D efenda nt.” In the absence of sufficient evidence to support either Strickland prong, and with the presence of evidence supporting reasonable conduct by counsel, we must hold that the evidence does not preponderate against the trial court’s finding of

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no ineffective assistance of couns el based upon fa ilure to inves tigate the medical eviden ce.

B. Failure to Advise/Misinformation Petitioner next claims that he suffered ineffective assistance of counsel because prior co unse l incorre ctly inform ed him that he would be released from incarceration after servin g seve n and o ne-half to e ight years of his sen tence w ith good beh avior. As noted above, Pe titioner was sente nced to twe nty-five years as a Range I offender. Eligibility for parole arises for Range I offenders after completion of thirty percent of the actual sentence imposed. Tenn. Code Ann. § 40-35-5 01(c) (19 90). Petitioner testified at the evidentiary hearing that he will not be re leased from inca rceration until after serv ice of eigh teen ye ars.

Although the rea son fo r prolon ged c onfine men t is not p resen ted in Petition er’s brief or his testimony, we assume it results from Tennessee Code Anno tated § 40-35-503(c) (1990), which reads: “No person convicted of a sex crime shall be releas ed on parole until a p sych iatrist or licensed clinical psychologist has examined and evaluated such inmate and certified that, to a reaso nable medical certainty, the inmate does not pose the likelihood of committing sexual assaults upo n release from confineme nt.” Id. For whatever reason , there are two distinc t issues tha t we m ust cons ider.

First, did counsel promise or otherwise misinform Petitioner regarding the actual date h e wou ld be re lease d? Th e trial co urt spe cifically fo und th at they did not: “[T]he Court credits the witnesses for the State, or credits the witnesses for

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the State in tha t no prom ises were made to the Defendant that he would be released, guaranteed at a particular time.” Upon examination of the testimony at Petitioner’s evidentiary hearing, we conclude that the evidence does not prepondera te again st this fin ding. B oth N orton a nd Br amle tt testified uneq uivoc ally they did not guarantee or represent to Petitioner that he would be released at any certain time. Moreover, they testified they did not indicate to him that he would be released at a certain time, although they agree d that h e was told he would be “eligible for parole” after serving thirty percent of his sentence. Furthermore, the transcript of Petitioner’s plea acceptance hearing reflects the following colloquy between the trial judge and P etitioner:

THE COURT: M r. Rutledge, has anyone made any threats against you, other than to prosecute you, to make you plead guilty?

THE DEFE NDA NT: N o, sir.

THE COURT: Has anyone made any promises to you other than those announced in court today to make you plead guilty?

THE DEFE NDA NT: N o, sir. I just ask ed for o ne thin g, and he told me he couldn’t d o that.

THE COURT: Pardon me?

THE DEFENDANT: I asked him for one thing, and he said he could n’t do that. I wanted one more thing in the plea bargain, and he could n’t com e abo ut that. I a sked him -- to report myself in after the holidays to the Bedford C ounty She riff’s Office --

THE COURT: That’s a decision that is left up to the Co urt and not to the --

THE DEFENDANT: -- and he said he couldn’t make that arrange ment. T hat’s the o nly thing.

Based upon this evidence, we conclude (1) that Petitioner was not promised or given the info rmatio n that h e wou ld be released after serving seven and one-h alf

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years or any other s pecific length of his sentence, and (2) that this Court has no basis upon which to determine the information provided to Petitioner—that he would b e “eligible for re lease” afte r serving th irty percen t—w as incorre ct. 6

The second q uestion to con sider is: Did coun sel’s failure to advise Petitioner that he would not be released after serving th irty perc ent of h is sentence constitute ineffective assistance of counsel? Initially, we note that Petitioner has fa iled to p rovide evide nce o ther tha n his own testimony of inadm issible hearsay statements by Department of Correction officers to show that he will in deed not be releas ed afte r havin g serv ed thirty perc ent of h is sentence, although the trial cou rt agreed that release at that tim e wou ld be h ighly unlikely. Next, Petitioner testified he was actually advised prior to pleading guilty that he would be requ ired to com plete a se x offende rs’ treatme nt progra m as a condition of his paro le.

This Court has previously determined that “silence by counsel” on “any collateral consequences of a plea” does not “fall below the range of competence demanded of attorneys in criminal cases.” Adkins v. State, 911 S.W.2d 334, 350 (Tenn. Crim. App. 1994). Specifically, failure of cou nsel to discus s paro le eligibility or the parole condition of successfully completing a sexual offender treatment program does not constitute ineffective assistance of couns el. Wade v. State, 914 S.W.2d 97, 103-04 (Tenn. Crim. App. 1995); Wilson v. State, 899

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This is not a case, as in Hill v. Lockhart, 474 U.S. 52, 54-55 (1985), in which counsel has given erroneous advice.

See id. (counsel told defendant he would be eligible for parole after serving one-third of sentence, when defendant was actually not eligible for parole prior to serving one-half of his sentence); see also Donald F. Walton v. State, C.C.A. No. 01C01-9603-CR- 00110, Davidson County (Tenn. Crim. App., Nashville, Jan. 30, 1997) (finding that “erroneous advice regarding parole that induces a defendant to forego his or her right to a jury trial can be used to establish a claim for ineffective assistance”). As just discussed, the trial court found that Petitioner was advised only that he would be eligible for parole at thirty percent. Although Petitioner may have other parole conditions such as psychological evaluation, he remains “eligible for parole” at thirty percent.

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S.W.2 d 648, 652-53 (Tenn. Crim. App. 1994). In light of these decisions, we cannot conclude that counsel had a duty to advise Petitioner of consequences even more collateral an d certainly indefinite— the length of time it cou ld take to fulfill conditions of parole. We conclude that Petitioner has not suffered ineffective assista nce o f coun sel ba sed u pon m isadvice or failure to advise regardin g cond itions of pa role eligibility.

II. VOLUNTARY AND INTELLIGENT PLEA Because we have determined that Petitioner’s ineffective assistance of counsel claims lack merit, because ineffective assist ance was th e only basis upon which he claimed his plea w as involu ntary or u nintelligent, and because we find no other basis to conclude that his plea was not rendered volun tarily, w e hold that this claim mus t also fa il.

The judgment of the trial court denying the Petitioner post-conviction relief is affirmed.

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DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOSEPH M. TIPTON, JUDGE

___________________________________

JOE G. RILEY, JUDGE