State v. Eric Shaw

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 21, 1999
• Docket: 02C01-9809-CC-00267
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY 1999 SESSION FILED April 21, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk ERIC D. SHAW, ) ) C.C.A. NO. 02C01-9809-CC-00267 Appellant, ) ) OBION COUNTY VS. ) ) HON. WILLIAM B. ACREE, JR., STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR. JOHN KNOX WALKUP 113 North Court Square Attorney General & Reporter P.O. Box 26 Waverly, TN 37185 DOUGLAS D. HIMES (On Appeal) Asst. Attorney General Cordell Hull Bldg., 2nd Fl. JOSEPH P. ATNIP 425 Fifth Ave., North District Public Defender Nashville, TN 37243-0493 P.O. Box 734 121 East Main St. THOMAS A. THOMAS Dresden, TN 38225 District Attorney General

JIM CANNON Asst. District Attorney General P.O. Box 218 Union City, TN 38281-0218

OPINION FILED:

AFFIRMED

JOHN H. PEAY, Judge OPINION

The petitioner pled guilty to aggravated robbery and was sentenced as a

Range I standard offender to a term of eight years to be served in the Tennessee

Department of Correction. The petitioner’s subsequent petition for post-conviction relief

was denied by the trial court. The petitioner now appeals and contends that he did not

receive the effective assistance of counsel. After a review of the record and applicable

law, we affirm the judgment of the trial court.

The petitioner’s conviction stemmed from his involvement in a robbery

outside of a Wal-Mart store. At the post-conviction hearing, the petitioner’s former

counsel, Charles Kelly, testified that both he and his criminal investigator investigated the

petitioner’s case. Mr. Kelly testified that he filed motions for discovery and received

copies of the statements of the three charged individuals. He also interviewed a possible

alibi witness who later decided that it was not in her best interest to testify in favor of the

petitioner. With regard to another possible alibi witness, Angela Scott, Mr. Kelly testified

that he had not interviewed Ms. Scott because the petitioner had “confessed to being with

these people in the statements he gave to the law enforcement officials.” At the hearing,

Andy Gibson, an investigating officer of the robbery, testified that he believed Ms. Scott

had been interviewed by another investigator assigned to the robbery.

The petitioner now contends that he did not receive the effective assistance

of counsel because Mr. Kelly did not interview all potential witnesses and his services

therefore were outside the range of competence demanded of criminal attorneys.

In reviewing the petitioner’s Sixth Amendment claim of ineffective

assistance of counsel, this Court must determine whether the advice given or services

2 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, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).

To satisfy the requirement of prejudice, the petitioner must 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).

In the case at bar, the petitioner has offered no evidence that he would not

have pled guilty absent Mr. Kelly’s failure to interview Ms. Scott. In fact, the petitioner

testified that he pled guilty because he thought the sentences for several recent

convictions, including the conviction in the case at bar, were to run concurrently rather

than consecutively. 1 In addition, there is absolutely no evidence in the record that Ms.

Scott could have provided an alibi, or any other exculpatory information, for the petitioner.

As the petitioner has failed to carry his burden of proof, this contention is without merit.

Accordingly, we affirm the trial court’s denial of the petitioner’s post-

conviction petition.

JOHN H. PEAY, Judge

1 This issue was not appealed.

3 CONCUR:

________________________________ JOE G. RILEY, Judge

________________________________ JAMES C. BEASLEY, Sr., Special Judge