IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON AUGUST SESSION, 1997
FILED GEORGE EDWARD RAYFORD, ) October 8, 1997 ) No. 02C01-9705-CR-00172 Appellee ) Cecil Crowson, Jr. ) SHELBY COUNTY Appellate C ourt Clerk vs. ) ) Hon. W. FRED AXLEY, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellant )
For the Appellant: For the Appellee:
RICHARD F. VAUGHN JOHN KNOX WALKUP 1928 - 100 N. Main Attorney General and Reporter Memphis, TN 38103 ELIZABETH T. RYAN Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493
WILLIAM GIBBONS District Attorney General
MS. RHEA CLIFT Asst. District Attorney General Criminal Justice Complex Suite #301, 201 Poplar St. Memphis, TN 38103
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, George Edward Rayford, appeals as of right from the trial
court’s dismissal of his petition for post-conviction relief. Specifically, the
appellant contends that he was deprived of the ability to enter intelligent and
voluntary guilty pleas due to the ineffective assistance of counsel. After an
evidentiary hearing, the Criminal Court of Shelby County concluded that the
appellant failed to show by a preponderance of the evidence that he received
ineffective assistance of counsel at his guilty plea hearing.
After a review of the record, we affirm the post-conviction court’s dismissal
of the appellant’s petition.
On January 31, 1989, the appellant pled guilty to four counts of robbery
with a deadly weapon, two counts of robbery, and one count of unlawful
possession of a controlled substance with the intent to sell. Pursuant to a plea
agreement between the appellant and the State, the trial court sentenced him to
an effective sentence of forty years in the Department of Correction as a range II
offender. In particular, the trial court imposed sentences of forty years for each
robbery with a deadly weapon, ten years for each robbery, and ten years for
possession with intent to sell. These sentences are concurrent but consecutive
to the sentences for which the appellant was on parole at the time these crimes
were committed.
The background of the case is as follows: On March 1, 1988, the
appellant was released on parole after serving four years of a ten year sentence
for two counts of simple robbery, three counts of armed robbery, one count of
grand larceny, and one count of receiving stolen property. The series of
2 robberies to which the appellant pled guilty occurred between May 20 and May
31, 1988. The appellant was arrested on June 8, 1988, when he was
apprehended, along with a co-defendant, for possession of cocaine.
In his petition for post-conviction relief, the appellant argues that
ineffective assistance of counsel caused him to enter uninformed and involuntary
guilty pleas. Specifically, with regard to the ineffective assistance of counsel
claim, the appellant contends that his initial trial counsel, Tommy Jagendorf,
failed to inform him that he had associated another attorney, Ronald Riggs, to
assist in his defense. Second, the appellant alleges that Mr. Riggs did not
conduct an adequate pre-trial investigation because he failed to interview all
potential witnesses and failed to visit the crime scenes. Additionally, the
appellant contends that trial counsel failed to keep him informed as to the
developments in his cases.
At the post-conviction hearing, the State established that Mr. Riggs met
with the appellant five or six times in jail to discuss the charges against him. The
district attorney had informed Mr. Riggs that he would first proceed against the
appellant on the Esquire Cleaners robbery charge. Trial counsel also testified
that discovery was obtained from the State on all of the seven charges pending
against the appellant. Mr. Riggs further testified that, because this charge was
the first case pending against the appellant, he concentrated his efforts on this
offense. The State’s proof in this case included a positive identification of the
appellant by the victim and the appellant’s fingerprints found on the door to the
cleaners. Trial counsel attempted to interview the victim of the Esquire Cleaners
robbery, taped an interview he had with the appellant concerning that particular
robbery, and investigated the scene of that particular crime. He further
investigated the appellant’s alibis and found that none could be substantiated.
Additionally, Mr. Riggs obtained the appellant’s elementary and high school
3 records and had the appellant evaluated by the Memphis Mental Health Center.
The State offered the appellant an effective forty year sentence for all
charges against him. The record reflects that, if convicted, the appellant faced a
sentence of “thirty-five years to life” on each of the four aggravated robbery
charges. Consequently, based on the overwhelming evidence of the appellant’s
guilt and that a conviction would likely occur, Mr. Riggs advised the appellant that
a forty year sentence was a “fair settlement” for all the cases, “considering what
was at risk.” The decision to plead rested with the appellant. During the guilty
plea hearing, the trial court fully advised the appellant of his rights and informed
him of the consequences of his pleas. Based upon the evidence presented to
the trial court and the proof shown at the post-conviction hearing, the post-
conviction court found that the appellant’s pleas were knowing and voluntary.
The post-conviction court concluded that the appellant’s claims of ineffective
assistance of counsel were not supported by a preponderance of the evidence.
On appeal, we must determine whether the evidence presented at the
post-conviction hearing preponderates against that court’s findings. In North
Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970), the United States
Supreme Court held, “The standard was and remains whether the plea
represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant.” In evaluating the knowing and voluntary nature of
the appellant’s pleas, this court must look to the totality of the circumstances.
State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995), perm. to appeal
denied, (Tenn. 1996). See also Chamberlain v. State, 815 S.W.2d 534, 542
(Tenn. Crim. App. 1990), perm. to appeal denied, (Tenn. 1991). We may
consider any relevant evidence in the record of the proceedings, including post-
conviction proceedings. Id. The evidence before the post-conviction court
included the appellant’s prior record, the overwhelming evidence against him,
4 and the appellant’s exposure to lengthy multiple sentences. 1 Based on the
totality of these circumstances, the post-conviction court concluded that the
appellant’s guilty pleas were knowing and voluntary.
The record also supports the post-conviction court’s finding that
appellant’s counsel rendered effective assistance. As noted earlier, on appeal,
this court is bound by the post-conviction court’s findings of fact unless the
evidence in the record preponderates against those findings. Davis v. State, 912
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON AUGUST SESSION, 1997
FILED GEORGE EDWARD RAYFORD, ) October 8, 1997 ) No. 02C01-9705-CR-00172 Appellee ) Cecil Crowson, Jr. ) SHELBY COUNTY Appellate C ourt Clerk vs. ) ) Hon. W. FRED AXLEY, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellant )
For the Appellant: For the Appellee:
RICHARD F. VAUGHN JOHN KNOX WALKUP 1928 - 100 N. Main Attorney General and Reporter Memphis, TN 38103 ELIZABETH T. RYAN Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493
WILLIAM GIBBONS District Attorney General
MS. RHEA CLIFT Asst. District Attorney General Criminal Justice Complex Suite #301, 201 Poplar St. Memphis, TN 38103
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, George Edward Rayford, appeals as of right from the trial
court’s dismissal of his petition for post-conviction relief. Specifically, the
appellant contends that he was deprived of the ability to enter intelligent and
voluntary guilty pleas due to the ineffective assistance of counsel. After an
evidentiary hearing, the Criminal Court of Shelby County concluded that the
appellant failed to show by a preponderance of the evidence that he received
ineffective assistance of counsel at his guilty plea hearing.
After a review of the record, we affirm the post-conviction court’s dismissal
of the appellant’s petition.
On January 31, 1989, the appellant pled guilty to four counts of robbery
with a deadly weapon, two counts of robbery, and one count of unlawful
possession of a controlled substance with the intent to sell. Pursuant to a plea
agreement between the appellant and the State, the trial court sentenced him to
an effective sentence of forty years in the Department of Correction as a range II
offender. In particular, the trial court imposed sentences of forty years for each
robbery with a deadly weapon, ten years for each robbery, and ten years for
possession with intent to sell. These sentences are concurrent but consecutive
to the sentences for which the appellant was on parole at the time these crimes
were committed.
The background of the case is as follows: On March 1, 1988, the
appellant was released on parole after serving four years of a ten year sentence
for two counts of simple robbery, three counts of armed robbery, one count of
grand larceny, and one count of receiving stolen property. The series of
2 robberies to which the appellant pled guilty occurred between May 20 and May
31, 1988. The appellant was arrested on June 8, 1988, when he was
apprehended, along with a co-defendant, for possession of cocaine.
In his petition for post-conviction relief, the appellant argues that
ineffective assistance of counsel caused him to enter uninformed and involuntary
guilty pleas. Specifically, with regard to the ineffective assistance of counsel
claim, the appellant contends that his initial trial counsel, Tommy Jagendorf,
failed to inform him that he had associated another attorney, Ronald Riggs, to
assist in his defense. Second, the appellant alleges that Mr. Riggs did not
conduct an adequate pre-trial investigation because he failed to interview all
potential witnesses and failed to visit the crime scenes. Additionally, the
appellant contends that trial counsel failed to keep him informed as to the
developments in his cases.
At the post-conviction hearing, the State established that Mr. Riggs met
with the appellant five or six times in jail to discuss the charges against him. The
district attorney had informed Mr. Riggs that he would first proceed against the
appellant on the Esquire Cleaners robbery charge. Trial counsel also testified
that discovery was obtained from the State on all of the seven charges pending
against the appellant. Mr. Riggs further testified that, because this charge was
the first case pending against the appellant, he concentrated his efforts on this
offense. The State’s proof in this case included a positive identification of the
appellant by the victim and the appellant’s fingerprints found on the door to the
cleaners. Trial counsel attempted to interview the victim of the Esquire Cleaners
robbery, taped an interview he had with the appellant concerning that particular
robbery, and investigated the scene of that particular crime. He further
investigated the appellant’s alibis and found that none could be substantiated.
Additionally, Mr. Riggs obtained the appellant’s elementary and high school
3 records and had the appellant evaluated by the Memphis Mental Health Center.
The State offered the appellant an effective forty year sentence for all
charges against him. The record reflects that, if convicted, the appellant faced a
sentence of “thirty-five years to life” on each of the four aggravated robbery
charges. Consequently, based on the overwhelming evidence of the appellant’s
guilt and that a conviction would likely occur, Mr. Riggs advised the appellant that
a forty year sentence was a “fair settlement” for all the cases, “considering what
was at risk.” The decision to plead rested with the appellant. During the guilty
plea hearing, the trial court fully advised the appellant of his rights and informed
him of the consequences of his pleas. Based upon the evidence presented to
the trial court and the proof shown at the post-conviction hearing, the post-
conviction court found that the appellant’s pleas were knowing and voluntary.
The post-conviction court concluded that the appellant’s claims of ineffective
assistance of counsel were not supported by a preponderance of the evidence.
On appeal, we must determine whether the evidence presented at the
post-conviction hearing preponderates against that court’s findings. In North
Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970), the United States
Supreme Court held, “The standard was and remains whether the plea
represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant.” In evaluating the knowing and voluntary nature of
the appellant’s pleas, this court must look to the totality of the circumstances.
State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995), perm. to appeal
denied, (Tenn. 1996). See also Chamberlain v. State, 815 S.W.2d 534, 542
(Tenn. Crim. App. 1990), perm. to appeal denied, (Tenn. 1991). We may
consider any relevant evidence in the record of the proceedings, including post-
conviction proceedings. Id. The evidence before the post-conviction court
included the appellant’s prior record, the overwhelming evidence against him,
4 and the appellant’s exposure to lengthy multiple sentences. 1 Based on the
totality of these circumstances, the post-conviction court concluded that the
appellant’s guilty pleas were knowing and voluntary.
The record also supports the post-conviction court’s finding that
appellant’s counsel rendered effective assistance. As noted earlier, on appeal,
this court is bound by the post-conviction court’s findings of fact unless the
evidence in the record preponderates against those findings. Davis v. State, 912
S.W.2d 689, 697 (Tenn. 1995). See also Black v. State, 794 S.W.2d 752, 755
(Tenn. 1990). In other words, in post-conviction proceedings, the appellant must
prove the allegations in his petition by a preponderance of the evidence. Davis,
912 S.W.2d at 697. Specifically, when a claim of ineffective assistance of
counsel is raised, the appellant bears the burden of showing that (a) the services
rendered by trial counsel were deficient and (b) the deficient performance was
prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064
(1984); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993); Butler v. State, 789
S.W.2d 898, 899 (Tenn. 1990). With respect to deficient performance, the court
must decide whether or not counsel’s performance was within the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). To satisfy the prejudice prong of the Strickland
test, the appellant must show a reasonable probability that, but for counsel’s
ineffective performance, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Accordingly, when the appellant
seeks to set aside a guilty plea on the ground of ineffective assistance of
counsel, he must demonstrate a reasonable probability that, but for counsel’s
deficiency, he would have insisted upon proceeding to trial. Hill v. Lockhart, 474
U.S. 52, 59, 106 S.Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215
1 The post-conviction court noted that the appellant faced sen tences which could have totaled 190 years.
5 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991); Manning v. State, 883
S.W.2d 635, 637 (Tenn. Crim. App. 1994). The post-conviction court found that
Mr. Riggs adequately prepared for and investigated the cases against the
appellant. Moreover, the trial court found that the performance of counsel was
within the range of competence demanded of attorneys in criminal cases.
We conclude that the evidence in the record does not preponderate
against the post-conviction court’s findings. Accordingly, the judgment of the
post-conviction court dismissing the appellant’s petition is affirmed.
____________________________________ DAVID G. HAYES, Judge
CONCUR:
_________________________________ JERRY L. SMITH, Judge
________________________________ THOMAS T. W OODALL, Judge