IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JANUARY SESSION, 1997 April 24, 1997
Cecil W. Crowson
ROO SEV ELT J OHN SMIT H, ) Appellate Court Clerk C.C.A. NO. 01C01-9604-CR-00135 JR., )
)
Appellant, )
)
) DAVIDSON COUNTY
VS. )
) HON . SETH N ORM AN
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:
SHAW N A. TIDWELL CHARLES W. BURSON 209 T enth Av enue, S outh Attorney General and Reporter Suite 511 Nashville, TN 37203 LISA A. NAYLOR Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
SHARON L. BROX
Assistant District Attorney General Washington Square, Suite 500 222 Se cond A venue N orth Nashville, TN 37201
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
The Petitioner appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure from the trial cour t’s denial of h is petition for p ost- conviction relief. On S eptember 8 , 1994, th e Petitio ner ple aded guilty to s ix counts of aggravated burglary and one count of possession of cocaine with intent to sell or deliver. As specified in the plea agreement, the trial court sentenced him to fifteen years imprisonment for each aggravated burglary conviction, all running concurrently, and to twenty years for the drug conviction. The drug sentence was ordered to run conse cutively to the burglary sentences, resulting in an effective senten ce of thirty-five years in the Department of Correction. The Petitioner was classified as a Range III Persistent Offender. He filed a pro se petition for post-conviction relief on July 11, 1995, which was amended with the assistance of counsel on October 20, 1995. In his petition for post-conviction relief, the Petitioner argued that he was denied effective assistance of counsel at his guilty plea procee ding. After condu cting an evidentiary hearing, the trial court found that the Petitioner had received effective assistance of counsel and denied the petition . We affirm the ju dgme nt of the trial co urt.
Although the record contains little information concerning the circumstances of the offen ses, we begin by setting forth the releva nt facts pertaining to the Petitioner’s issue. The Petitioner was charged with several offenses through three separate indictm ents. Indictmen t number 94-B-884 charged him with one count of aggravated burglary and one count of theft of property valued between one thousand dollars ($1,000) and ten thousand dollars
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($10,000). Indictment number 94-B-886 charged him with two counts of aggravated burglary and two counts of theft of property valued between one thousand dollars ($1,000) and ten thousand dollars ($10,000). Indictment number 94-B-887 charged him with three counts of aggravated burglary and three co unts of the ft of property valued between one thousand dollars ($1,000) and ten thous and do llars ($10,0 00). In addition, the Petitioner was charged by information with one count of possession of cocaine with intent to sell or deliver. It appears that the Petitioner was on parole at the time of the alleged commission of the offenses.
Larry Hoover was appointed to represent the Petitioner. Hoover consulted the Petitioner and began negotiating with the district attorney’s office. The initial offer allowed the Petitioner to plead guilty to the aggravated burglaries as well as the drug offense a nd receive an effective sentence of forty-five years to be served as a career offender at sixty percent (60%). Hoover eventually convinced the assistant district attorney to offer a sentence of thirty-five years to be served as a persistent offen der at fo rty-five pe rcent (4 5%). The P etitione r acce pted th is offer and, on September 8, 1994, entered guilty pleas to six counts of aggravated burglary and o ne count of po ssession of co caine with intent to se ll or deliver.
On July 11, 1995, the Petitioner filed a pro se petition for post-conviction relief, challenging only his drug conviction. The petition was amended with the assistance of counsel, but the amended petition still challenged only the drug conviction. The Petitioner argued that his attorney at the guilty plea proceeding, Larry Hoover, rendered ineffective assistance of counsel in two respects. The Petitioner first con tende d that h is trial co unse l errone ously informed him that the
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sente nce for the drug conviction would run concurrent with his sentences for aggravated burglary. Secondly, he contended that his trial counse l failed to investigate the circumstances surrounding the drug offens e. The trial court conducted an evidentiary hearing on October 20, 1995.
The Petitioner testified in his own behalf at the evidentiary hearing. He stated that he ha d met w ith his attorney approximately four times before pleading guilty. According to the Petitioner, he was not present at the plea negotiations. His attorney informed him that, under the plea agreem ent, he would re ceive fifteen year sentences for the burglaries and a twenty year sentence for possession of coc aine w ith inten t to sell or deliver. He and his attorney spent only five to ten m inutes go ing over th e plea ag reeme nt, and h e did n ot com pletely read it before signing it. The Petitioner understood his effective sentence to be twenty years. He stated that he wou ld have p roceed ed to trial if he had realized that his effective sentence was thirty-five years.
The Petitioner’s testimon y also provided the o nly facts in the record pertaining to the drug offense. He testified that he was driving a van which was titled in the name of Karen Wills. There were apparently other individuals in the van. The Petitioner pulled into a car wash and knocked on the door of the service booth. He heard a voice ask him to wait for a minute. He waited and event ually knocked on the door again. Accord ing to the Petitioner, the door opened and a police officer put a gun to his head, pulled him inside, and handcuffed him. The officer searched him for weapons and contraband but found none. Officers then searched the van and found cocaine. The Petitioner testified
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that he had not given consent to search the van and the officers did not have a warran t.
The Petitioner informed his attorney of these facts and stated that he was not guilty of the d rug offen se. He m aintained that the drugs belong ed to someone else. He admitted that he had committed the burglaries, and he even cooperated with police officers on tho se cases. H e never m ade any s uch admissions with regard to the drug offense though. In fact, he testified that he wanted to proce ed to trial on that charg e beca use he was inno cent.
On cross-examination, the Petitioner admitted that he had been through a plea process before and was actually on parole at the time of the burglaries and drug offense. He stated th at his a ttorney talked with him abou t the po ssible range of his sentence and informed him that he probably faced a greater sentence if he proceede d to trial. He te stified further that he sig ned the guilty plea form fre ely and voluntarily and that he did not dispute the facts supporting the offenses as the y were read by the assistant district attorney at the guilty plea proceeding.
The Petitioner’s attorney at the guilty plea proceeding, Larry Hoover, also testified at the post-conviction hearing. Hoover stated that he was lice nsed in 1992 and that his practice was thirty to forty-five percent (30%-45%) criminal law. He had h andle d approximately forty to sixty criminal cases, including seven or eight jury trials. Hoover recalled that he met with the Petitioner four times. He discussed the cases with the Petitioner and came to conclusion that he had no viable defenses. According to Hoover, he and the Petitioner came to a mutual
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understanding that the res olution of h is cases was m ore abo ut the time to be served rather than defenses. Given that the Petitioner had nine prior felony convictions, Hoov er’s m ain co ncern beca me a poten tially large effective sentence. Hoover stated that the State’s initial plea offer was forty-five years at sixty percent (60%). He negotiated with the assistant district attorney and received an offer of thirty-five years at forty-five percent (45% ). He explained the offer to the Petitioner, and the Pe titioner u nders tood th at his effective sentence was thirty-five years.
On cross-examination, Hoover stated that the number of sentences at issue could have been confusing to the Petitioner. In fact, Hoover himself was unsure prior to the post-conviction hearing ab out which sen tences were supposed to run concu rrently and which w ere to run con secutively. Upon reviewing the plea agreement, howeve r, it was clear to him that the drug sentence was to ru n cons ecutive to th e burgla ry senten ces. He testified further that it was his normal practice to go over plea agreements very carefully with defendants.
Upon additio nal qu estion ing, Ho over a dmitted that he was unaware of what had occurred at the preliminary hearing concerning the drug offense. He stated that he had not requ ested for mal disc overy with regard to the drug offense. He also did not interview any o f the police officers involved in the search of the van, nor did he interview any of the other individuals who were in the van at the time of the search. Hoover stated that his main focus was on the burglary offenses and, more specifically, the potential sentence associated with those offenses.
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Hoover did, however, acquire a copy of the lab report indicating that the substance found in the van was cocaine.
At the conclusion of the hearing, the trial court found Hoover’s testimony to be credible and found that the plea had been fully explained to the Petitioner. As a result, the trial court conclud ed that the Pe titioner was aware that he wo uld serve an effective sentence of thirty-five years under the plea agreeme nt. According ly, the trial court denied the petition, stating that Hoover had provided effective as sistance of couns el. The P etitioner the n appe aled to this Court.
In determining whether or not counsel provided effective assistance a t trial, the court must decide whether or not counsel’s performance was within the range of competence dem anded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930 (T enn. 19 75). To succee d on a cla im that his counsel was ineffective at trial, a petitioner bears the burden of showing that his counsel 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 produ ce a reliab le result. Strickland v. Washington, 466 U.S. 668, 68 7, reh’g denied, 467 U.S . 1267 (1 984); Cooper v. State, 849 S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy this second prong the petitioner must show a reaso nable p robability tha t, but for cou nsel’s unreasonable error, the fact finder w ould h ave ha d reas onab le doubt regarding petitioner’s g uilt. Strickland, 466 U.S. at 695. T his rea sona ble probab ility must be “su fficient to undermine confidence in the outcome .” Harris v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).
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When reviewing trial counsel’s actions, this court should n ot use the be nefit of hindsight to second-guess trial strategy and criticize coun sel’s tactics. Hellard v. State, 629 S .W .2d 4, 9 (Ten n. 198 2). Co unse l’s allege d error s sho uld be judged at the time it was mad e in ligh t of all facts and circums tances . Strickland, 466 U .S. at 690 ; see Cooper, 849 S.W.2d at 746.
This two part standa rd of meas uring ineffective assistance of counsel also applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52 (1985). The prejudice requirement is modified so that the petitioner “must show that there is a reasonable probability that, but for counsel’s errors he would not have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.
W e note that under the provisions of the Post-Conviction Procedure Act of 1995, a petitioner bears the burden of proving the allegations in the petition by clear and convincin g eviden ce. Ten n. Cod e Ann. § 40-30-2 10(f) (Supp. 199 6). In addition, the factual findings of the trial court are conclusive on appeal unless the evidence in the record p repond erates a gainst the m. State v. Buford, 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).
With regard to the P etitione r’s con tention that his trial cou nsel e rrone ously informed him th at the tw enty-ye ar drug sente nce w ould ru n con curren t with his fifteen-year burglary senten ces, we believe tha t the Petition er has fa iled to establish that his counsel’s representation was constitutionally deficient. The Petitioner testified at the post-conviction hearing that his trial counsel, Larry Hoover, led him to believe that his drug s enten ce wo uld run conc urren t with his burglary sentences . Hoover, on the other hand, testified that it was his practice
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to review the terms o f plea agre emen ts carefu lly with defendants and that the Petitioner was fully aware th at his effec tive senten ce was thirty-five years. After hearing testimony and evaluating the credibility of the witnesses, the trial judge specifically found Hoover’s testimony to be persuasive. From our review of the record, we cannot conclude that the evidence preponderates against the finding of the trial court. Accordingly, we conclude that counsel Hoover’s representation with regard to the Petitioner’s sentence was within the range of competence demanded of attorneys in criminal cases.
The Petitioner also contends that Hoover rendered ineffective assistance by failing to investigate the circumstances surrounding the drug offense. The testimony at the post-conviction hearing reveals that Hoover was unaware of any facts pertaining to the drug offen se which we re developed at the preliminary hearing. Hoover did not request formal discovery with regard to the drug offense, did not interview the police officers involved in the search of the van, and did not intervie w any of the other individuals allegedly present at the time of the discovery of the cocaine. It appears that Hoover’s investigation of the drug offense was limited to examining the lab report analyzing the drugs found in the van. According to Hoover himself, his primary focus was on the Petition er’s burglary offenses.
It is well-estab lished that defe nse co unsel m ust cond uct an ap propriate investigation into both the facts and the law to determine what matters of defense can be deve loped. 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 Association Standards for
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Criminal Justice provide useful guidance with regard to the function and responsibilities of defense counsel. The American Bar Association standards explain defense counsel’s duty to investigate with the following language:
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all aven ues lead ing to facts relevant to the merits of the case and the penalty in the event of conviction . The inve stigation sh ould alwa ys include efforts to secure informa tion in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statem ents to the lawyer of fa cts constituting guilt or the acc used’s stated d esire to plead gu ilty.
ABA Standa rds for Crim inal Justice § 4-4.1 (2 d ed. Su pp. 1986). Applying the foregoing principles to the case sub judice, we believe that cou nsel Hoove r’s representation was a rguab ly deficie nt in tha t he faile d to investigate the drug offense ade quately.
Even if we were to find cou nsel Ho over’s rep resenta tion deficient, however, we do not b elieve that the Petition er has d emon strated su fficient prejud ice to satisfy the second prong of the Strickland standard. It appears that the Petitioner argues that he was p rejudic ed be caus e a pro per inv estiga tion of the facts surrounding the drug offense may have indicated the evidence was unco nstitutio nally obtained and co uld have been s uppres sed. We note that the prejudice analys is app licable to this typ e of alle ged e rror of c ouns el close ly resembles the prejudice an alysis applicable to jury co nvictions. See Hill v. Lockhart, 474 U.S. at 5 9, 106 S.C t. at 370. As the U nited States S upreme Court explained in Hill v. Lockhart, whether such an error prejudiced the defendant by causing him to plead guilty often depends on the likelihood that a correction of the error would have led counsel to ch ange the rec omm endation to plea d guilty. Id. This assessment, in turn, depends on a prediction of whether the evidence
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discovered through a full inve stigatio n wou ld have c hang ed the outco me o f a trial. Id.
The Petitioner suggests that a more thorough investigation of the circumstances of the drug offense might have led to suppression of the cocaine seized from the van he was driving. At the post-conviction hearing, however, the Petitioner offered no evidence to support this speculation. Neither the police officers involved in the search nor the other individuals in the va n were called to testify. Instea d, the o nly evid ence offered to sup port this contention came from the Petitioner himself, whose testimony the trial judge found to be unpersuasive. Given these circum stances, we cannot spe culate that a m ore thorough investigation of the drug offense would have revealed that the cocaine was uncons titutiona lly seized and, therefore, would have led counsel Hoover to change his recommendation to plead guilty. See Wa de v. State , 914 S.W.2d 97, 102 (Tenn . Crim. A pp. 199 5); Black v. S tate, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990). As a result, we conclude that the Petitioner has n ot carrie d his burden of establishing sufficient prejudice stem ming from h is coun sel’s alle gedly deficient representation.
For the reasons set forth in the discussion above, we conclude that the Petitioner has failed to demonstrate that the trial court erred in denying the petition for post-conviction relief. We therefore affirm the judgment of the trial court.
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____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
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JERRY L. SMITH, JUDGE
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JOE G. RILEY, JUDGE