State v. George Tucker

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 21, 1998
• Docket: 02C01-9707-CR-00249
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

APRIL 1998 SESSION FILED April 21, 1998

Cecil Crowson, Jr. GEORGE W. TUCKER, ) Appellate C ourt Clerk ) NO. 02C01-9707-CR-00249 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. L. T. LAFFERTY, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

MARK A. MESLER JOHN KNOX WALKUP Ballin, Ballin & Fishman, P.C. Attorney General and Reporter 200 Jefferson Avenue, Suite 1250 Memphis, TN 38103-2328 PETER M. COUGHLAN Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493

WILLIAM L. GIBBONS District Attorney General

ROSEMARY S. ANDREWS Assistant District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

The petitioner, George W. Tucker, appeals the order of the Shelby County

Criminal Court denying his petition for post-conviction relief. He is presently serving

an effective sentence of twelve (12) years following his guilty pleas to the offenses

of theft of property over $10,000, theft of property over $1,000 and leaving the

scene of an accident. In his post-conviction petition he seeks to set aside his

convictions based upon ineffective assistance of counsel and involuntariness of the

guilty pleas. After an evidentiary hearing, the trial court denied relief. We find no

error and AFFIRM the judgment of the trial court.

FACTS

In 1996, petitioner pled guilty to one (1) count of theft of property over

$10,000, one (1) count of theft of property over $1,000 and one (1) count of leaving

the scene of an accident. The trial court sentenced him as a Range III offender to

concurrent terms of twelve (12) years for each theft offense and eleven (11) months

and twenty-nine (29) days for leaving the scene of an accident. Kelly Rayne of the

Shelby County Public Defender’s Office represented petitioner.

Petitioner testified that on the day that he was to go to trial, his attorney

coerced him into pleading guilty. He claimed that she and her supervisor, Sherrye

Brown, pressured him to plead guilty when he actually wanted to go to trial. They

convinced him that the state would prove him guilty, and he was “worn down” by

their insistence that he plead guilty. He also suggested that Rayne did not conduct

an adequate investigation, including locating witnesses. He did, however,

acknowledge that Rayne appeared prepared to try the case on the day he pled

guilty. He also admitted that he had ten (10) prior felony convictions, nine (9) of

which were guilty pleas.

Rayne testified that she and Brown approached petitioner with a negotiated

plea agreement on the day trial was to begin. Rayne had asked Brown to assist her

2 with petitioner’s trial because Brown had more experience than she. Rayne met

with petitioner several times in preparation for trial. She testified that three (3)

separate investigations were performed on petitioner’s behalf, and numerous

attempts were made to contact witnesses. On the day petitioner pled guilty, Rayne

reviewed the state’s case with petitioner and explained the amount of prison time

he might receive if convicted after a trial. Rayne denied that she and Brown

coerced petitioner into pleading guilty and stated that he chose to plead guilty.

Brown also testified at the hearing. She had worked with the Public

Defender’s Officer for approximately twelve (12) years at the time petitioner entered

his guilty pleas and was assisting Rayne with several cases as co-counsel. She

reviewed petitioner’s entire file prior to meeting him. She discussed the various

aspects of petitioner’s case with him on the day of his guilty pleas. Although she

advised him that pleading guilty would be in his best interest, she denied coercing

petitioner to plead guilty.

FINDINGS OF TRIAL COURT

Honorable L.T. Lafferty entered an order denying post-conviction relief.1 This

written order is a model for trial judges and is exactly the type order contemplated

by Tenn. Code Ann. § 40-30-211(b). The order clearly and specifically sets forth all

grounds raised by the petitioner. The order further makes findings of fact as to all

the grounds, and does not merely summarize testimony.2 The trial court then stated

the applicable law, applied this law to the findings of fact and concluded that

petitioner was entitled to no relief.

1 The petition for post-conviction relief was filed on November 5, 1996. The trial court promptly entered the required preliminary order on November 14, 1996. The state filed its written response on December 12, 1996. The evidentiary hearing was conducted on January 31, 1997, and the case was taken under advisement. The trial court entered a six- page written order dismissing the petition on February 5, 1997. A trial judge must dispose of all judicial matters promptly, efficiently and fairly. Canon 3B(8), Tennessee Supreme Court Rule 10. The handling of this case by the trial judge epitomizes the high standards placed upon a court in fulfilling its responsibilities to the litigants and society. 2 A summary of testimony does not constitute findings of fact.

3 Specifically, the trial court found that petitioner entered knowing and

voluntary guilty pleas, and neither Rayne nor Brown coerced him into pleading guilty

against his will. In the order, Judge Lafferty stated:

[t]his petitioner is no stranger to the criminal justice system. He had gone through a jury trial and had entered maybe 9 or 10 guilty pleas to felonies in the past. He was represented by attorneys in each prior proceeding. From his past experience in the system and observing his demeanor, the court found it difficult to believe that these two attorneys overwhelmed the petitioner.

The trial court found that counsel performed “well within the criteria as demanded

by Baxter v. Rose, 523 S.W.2d 390 (Tenn. 1975).” Moreover, the court found that

petitioner had failed to establish prejudice from any of the alleged instances of

deficient representation. Therefore, the trial court denied post-conviction relief.

POST-CONVICTION STANDARD OF REVIEW

The trial judge's findings of fact on post-conviction hearings are conclusive

on appeal unless the evidence preponderates otherwise. Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim.

App. 1995). The trial court’s findings of fact are afforded the weight of a jury verdict,

and this Court is bound by the trial court’s findings unless the evidence in the record

preponderates against those findings. Henley v. State, S.W.2d (Tenn.

1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State,

934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not reweigh or

reevaluate the evidence, nor substitute its inferences for those drawn by the trial

judge. Henley v. State, S.W.2d at ; Massey v. State, 929 S.W.2d 399, 403

(Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.

1990). Questions concerning the credibility of witnesses and the weight and value

to be given to their testimony are resolved by the trial court, not this Court. Henley

v. State, S.W.2d at ; Black v. State, 794 S.W.2d at 755. The burden of

establishing that the evidence preponderates otherwise is on petitioner. Henley v.

State, S.W.2d at ; Black v. State, 794 S.W.2d at 755.

4 INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner claims that trial counsel was ineffective because she and her

supervisor coerced him into pleading guilty. He maintains that she was not

prepared to go to trial and, therefore, insisted that he plead guilty. He further argues

that had it not been for counsel’s insistence that he plead guilty, he would have

gone to trial.

A.

This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;

Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d

6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).

The test in Tennessee in determining whether counsel provided effective

assistance is whether his performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The

petitioner must overcome the presumption that counsel’s conduct falls within the

wide range of acceptable professional assistance. Strickland v. Washington, 466

U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim.

App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the

Supreme Court applied the two-part Strickland standard to ineffective assistance of

counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice

requirement by requiring a defendant to show that there is a reasonable probability

that, but for counsel's errors, he would not have pleaded guilty and would have

insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370.

B.

5 The trial court found it implausible that Rayne and Brown had coerced

petitioner into pleading guilty due to petitioner’s prior experience with the criminal

justice system. The court found that Rayne had thoroughly investigated the state’s

case against petitioner and fully advised petitioner on her investigation. Indeed, the

trial court found no deficiency on the part of Rayne or Brown in their representation

of petitioner in this case. The trial court accredited the testimony of Rayne and

Brown. The burden is on the petitioner to establish that the evidence preponderates

against the trial court’s findings. See Alley v. State, 958 S.W.2d at 147; Dixon v.

State, 934 S.W.2d at 72. The petitioner has failed to meet his burden.

This issue is without merit.

VOLUNTARINESS OF GUILTY PLEA

Petitioner further contends that his guilty pleas were involuntary because he

was coerced into pleading guilty. He concedes that the state made an “affirmative

showing that [his] plea was knowing and voluntary” under the standards set forth in

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and State

v. Mackey, 553 S.W.2d 337 (Tenn. 1977). However, he suggests that his pleas

were involuntary because he was forced to plead by his attorneys.

Whether a defendant’s plea of guilty was voluntarily, understandingly and

knowingly entered is determined by looking at the totality of the circumstances.

State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). The trial court, as

well as this Court, must consider all of the relevant circumstances that existed at the

time the plea was entered. Id.

The trial court found no evidence that petitioner’s attorneys forced him into

pleading guilty. The court looked at petitioner’s past experience with the criminal

justice system and noted that petitioner had entered approximately nine (9) guilty

pleas to felonies in the past. The court concluded that petitioner’s guilty pleas were

not involuntary. Petitioner has not demonstrated that the evidence preponderates

otherwise.

6 This issue has no merit.

CONCLUSION

The trial court, after hearing testimony and observing the appearance and

demeanor of each witness, entered extensive findings. The trial court dismissed the

petition based upon these findings. We find that the evidence does not

preponderate against the trial court’s findings that petitioner’s guilty pleas were

voluntary and that he received effective representation at the trial level.

Accordingly, the judgment of the trial court is affirmed.

JOE G. RILEY, JUDGE

CONCUR:

DAVID G. HAYES, JUDGE

WILLIAM M. BARKER, JUDGE