IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1999 SESSION FILED July 16, 1999
Cecil Crowson, Jr. Appellate Court Clerk ANTONIO CHANEY, ) ) C.C.A. NO. 02C01-9807-CR-00223 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. JOHN P. COLTON, JR., STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT B. GAIA PAUL G. SUMMERS Suite 3201-100 N. Main Bldg. Attorney General & Reporter Memphis, TN 38103 PATRICIA C. KUSSMANN Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
JAMES CHALLEN Asst. District Attorney General 201 Poplar Ave., 3rd Fl. Memphis, TN 38103
OPINION FILED:
AFFIRMED
JOHN H. PEAY, Judge OPINION
The petitioner pled guilty to theft of property, especially aggravated robbery,
and attempted first-degree murder. Pursuant to a plea bargain agreement, the petitioner
was sentenced as a Range I standard offender to concurrent sentences of two years for
theft, twenty-five years for especially aggravated robbery, and twenty-five years for
attempted first-degree murder. In May 1997, the petitioner filed a petition for post-
conviction relief which was denied by the post-conviction court after an evidentiary
hearing. The petitioner now appeals and contends that he was denied the effective
assistance of counsel and that his guilty pleas were not knowingly and voluntarily made.
Finding no error, we affirm the denial of relief.
Under the Post-Conviction Procedure Act of 1995, the petitioner has the
burden of proving the factual allegations in his or her petition by clear and convincing
evidence. T.C.A. § 40-30-210(f). Furthermore, the factual findings of the trial court in
hearings “are conclusive on appeal unless the evidence preponderates against the
judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).
The petitioner first contends that his trial counsel, Marc Sorin, was
ineffective. In reviewing the petitioner’s Sixth Amendment claim of ineffective assistance
of counsel, this Court must determine whether the advice given or services rendered by
the attorney are within the range of competence demanded of attorneys in criminal
cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of
ineffective counsel, a petitioner “must show that counsel’s representation fell below an
objective standard of reasonableness” and that this performance prejudiced the defense.
There must be a reasonable probability that but for counsel’s error the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88,
2 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).
To satisfy the requirement of prejudice, the petitioner would have had to
demonstrate a reasonable probability that, but for counsel’s errors, he would not have
pled guilty and would have insisted on going to trial. See Hill v. Lockart, 474 U.S. 52, 59
(1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).
The petitioner claims that Mr. Sorin was ineffective because Mr. Sorin had
a conflict of interest with regard to the petitioner’s case. The issue of a possible conflict
of interest was not raised in the petition for post-conviction relief or at the hearing
thereon. Since an appellant cannot change theories from the trial court to the appellate
court, these grounds, as a basis for ineffective assistance of counsel, are, therefore,
waived. State v. Matthews, 805 S.W.2d 776, 781 (Tenn. Crim. App. 1990); State v.
Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988). However, absent waiver, this
issue is still without merit.
Mr. Sorin was a private attorney who was appointed to represent the
petitioner. However, approximately four months before he was appointed to represent
the petitioner, Mr. Sorin was employed at the Public Defender’s office. The record
indicates that one of the petitioner’s co-defendants was represented by an attorney with
the Public Defender’s office. The petitioner claims that these facts are evidence of a
conflict of interest sufficient to render Mr. Sorin’s representation ineffective. In support
of this contention, the petitioner cites Netters v. State, 957 S.W.2d 844 (Tenn. Crim. App.
1997). In Netters, this Court held that:
The mere fact that counsel might have a potential conflict of interest in representing multiple clients does not authorize a presumption of ineffective assistance of counsel. . . . However, if an attorney actively represents conflicting interests, prejudice
3 is presumed. . . . The proper focus is solely upon whether counsel’s conflict affected counsel’s actions and the defendant’s decision; therefore, it is inappropriate to consider whether another attorney, untainted by a conflict of interest, would also have recommended a guilty plea.
Id. at 847-48 (citations omitted).
In the case at bar, Mr. Sorin was not representing multiple clients with
regard to this case. The mere fact that Mr. Sorin was previously employed by the Public
Defender’s office and the petitioner’s co-defendant was represented by an attorney from
that office is not evidence that Mr. Sorin was actively representing conflicting interests.
Mr. Sorin was in private practice when he was appointed to represent the petitioner. In
contrast to Netters, in the case at bar there was absolutely no evidence presented that
Mr. Sorin worked in conjunction with the Public Defender’s office or counsel for the
petitioner’s co-defendant to secure plea bargain agreements for the petitioner and his co-
defendant. In addition, there is no evidence that the petitioner’s plea bargain agreement
was in any way contingent upon any plea bargain agreement with the petitioner’s co-
defendant. These facts do not support a finding that Mr. Sorin had a conflict of interest
while representing the petitioner.
The petitioner also contends that such alleged conflict of interest is further
evidenced by the fact that the petitioner’s plea bargain agreement sentenced the
petitioner to the maximum sentence within the applicable range. The petitioner argues
that “[i]t is incomprehensible that . . . [the petitioner] would have received any more time
than that to which he pleaded. Thus . . . prejudice . . . should be presumed.” However,
the petitioner cites no applicable authority for this contention. In addition, the petitioner’s
plea bargain allowed for concurrent sentencing rather than consecutive. This allowed the
petitioner’s aggregate sentence of fifty-two years to be served as an effective sentence
4 of twenty-five years.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1999 SESSION FILED July 16, 1999
Cecil Crowson, Jr. Appellate Court Clerk ANTONIO CHANEY, ) ) C.C.A. NO. 02C01-9807-CR-00223 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. JOHN P. COLTON, JR., STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT B. GAIA PAUL G. SUMMERS Suite 3201-100 N. Main Bldg. Attorney General & Reporter Memphis, TN 38103 PATRICIA C. KUSSMANN Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
JAMES CHALLEN Asst. District Attorney General 201 Poplar Ave., 3rd Fl. Memphis, TN 38103
OPINION FILED:
AFFIRMED
JOHN H. PEAY, Judge OPINION
The petitioner pled guilty to theft of property, especially aggravated robbery,
and attempted first-degree murder. Pursuant to a plea bargain agreement, the petitioner
was sentenced as a Range I standard offender to concurrent sentences of two years for
theft, twenty-five years for especially aggravated robbery, and twenty-five years for
attempted first-degree murder. In May 1997, the petitioner filed a petition for post-
conviction relief which was denied by the post-conviction court after an evidentiary
hearing. The petitioner now appeals and contends that he was denied the effective
assistance of counsel and that his guilty pleas were not knowingly and voluntarily made.
Finding no error, we affirm the denial of relief.
Under the Post-Conviction Procedure Act of 1995, the petitioner has the
burden of proving the factual allegations in his or her petition by clear and convincing
evidence. T.C.A. § 40-30-210(f). Furthermore, the factual findings of the trial court in
hearings “are conclusive on appeal unless the evidence preponderates against the
judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).
The petitioner first contends that his trial counsel, Marc Sorin, was
ineffective. In reviewing the petitioner’s Sixth Amendment claim of ineffective assistance
of counsel, this Court must determine whether the advice given or services rendered by
the attorney are within the range of competence demanded of attorneys in criminal
cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of
ineffective counsel, a petitioner “must show that counsel’s representation fell below an
objective standard of reasonableness” and that this performance prejudiced the defense.
There must be a reasonable probability that but for counsel’s error the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88,
2 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).
To satisfy the requirement of prejudice, the petitioner would have had to
demonstrate a reasonable probability that, but for counsel’s errors, he would not have
pled guilty and would have insisted on going to trial. See Hill v. Lockart, 474 U.S. 52, 59
(1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).
The petitioner claims that Mr. Sorin was ineffective because Mr. Sorin had
a conflict of interest with regard to the petitioner’s case. The issue of a possible conflict
of interest was not raised in the petition for post-conviction relief or at the hearing
thereon. Since an appellant cannot change theories from the trial court to the appellate
court, these grounds, as a basis for ineffective assistance of counsel, are, therefore,
waived. State v. Matthews, 805 S.W.2d 776, 781 (Tenn. Crim. App. 1990); State v.
Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988). However, absent waiver, this
issue is still without merit.
Mr. Sorin was a private attorney who was appointed to represent the
petitioner. However, approximately four months before he was appointed to represent
the petitioner, Mr. Sorin was employed at the Public Defender’s office. The record
indicates that one of the petitioner’s co-defendants was represented by an attorney with
the Public Defender’s office. The petitioner claims that these facts are evidence of a
conflict of interest sufficient to render Mr. Sorin’s representation ineffective. In support
of this contention, the petitioner cites Netters v. State, 957 S.W.2d 844 (Tenn. Crim. App.
1997). In Netters, this Court held that:
The mere fact that counsel might have a potential conflict of interest in representing multiple clients does not authorize a presumption of ineffective assistance of counsel. . . . However, if an attorney actively represents conflicting interests, prejudice
3 is presumed. . . . The proper focus is solely upon whether counsel’s conflict affected counsel’s actions and the defendant’s decision; therefore, it is inappropriate to consider whether another attorney, untainted by a conflict of interest, would also have recommended a guilty plea.
Id. at 847-48 (citations omitted).
In the case at bar, Mr. Sorin was not representing multiple clients with
regard to this case. The mere fact that Mr. Sorin was previously employed by the Public
Defender’s office and the petitioner’s co-defendant was represented by an attorney from
that office is not evidence that Mr. Sorin was actively representing conflicting interests.
Mr. Sorin was in private practice when he was appointed to represent the petitioner. In
contrast to Netters, in the case at bar there was absolutely no evidence presented that
Mr. Sorin worked in conjunction with the Public Defender’s office or counsel for the
petitioner’s co-defendant to secure plea bargain agreements for the petitioner and his co-
defendant. In addition, there is no evidence that the petitioner’s plea bargain agreement
was in any way contingent upon any plea bargain agreement with the petitioner’s co-
defendant. These facts do not support a finding that Mr. Sorin had a conflict of interest
while representing the petitioner.
The petitioner also contends that such alleged conflict of interest is further
evidenced by the fact that the petitioner’s plea bargain agreement sentenced the
petitioner to the maximum sentence within the applicable range. The petitioner argues
that “[i]t is incomprehensible that . . . [the petitioner] would have received any more time
than that to which he pleaded. Thus . . . prejudice . . . should be presumed.” However,
the petitioner cites no applicable authority for this contention. In addition, the petitioner’s
plea bargain allowed for concurrent sentencing rather than consecutive. This allowed the
petitioner’s aggregate sentence of fifty-two years to be served as an effective sentence
4 of twenty-five years. The mere fact that the petitioner’s plea bargain agreement
sentenced the defendant to the maximum sentence within the applicable range does not
support an automatic inference that the petitioner’s attorney had a conflict of interest
which prejudiced the petitioner. As such, this contention is without merit.
The petitioner next contends that his guilty plea was not knowingly and
voluntarily entered. The petitioner argues that he was not adequately informed of the
sentencing aspects of this case because he received the maximum sentences within the
applicable range for all three convictions and “[n]owhere in the record of this case, does
it indicate that [the petitioner] was advised that he had nothing to lose by going to trial.”
However, the post-conviction court found that Mr. Sorin had “specifically discussed” the
sentencing possibilities with the petitioner. The evidence does not preponderate against
this finding. As such, the petitioner’s contention is without merit.
Accordingly, we affirm the post-conviction court’s denial of the petitioner’s
post-conviction petition.
_________________________________ JOHN H. PEAY, Judge
CONCUR:
______________________________ JOE G. RILEY, Judge
______________________________ THOMAS T. W OODALL, Judge