State v. Kevin Robertson

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 02C01-9608-CR-00259
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED JUNE 1997 SESSION July 2, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk KEVIN D. ROBERTSON, ) ) NO. 02C01-9608-CR-00259 Appellant, ) ) SHELBY COUNTY VS. ) ) Hon. Bernie Weinman, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

A.C. WHARTON, JR. JOHN KNOX WALKUP District Public Defender Attorney General and Reporter

DIANE THACKERY (hearing) SARAH M. BRANCH WALKER GWINN (appeal) Assistant Attorney General Assistant District Public Defenders 450 James Robertson Parkway Shelby County Public Defender’s Office Nashville, TN 37243-0493 201 Poplar Avenue, Suite 201 Memphis, TN 38103 JOHN W. PIEROTTI District Attorney General

REGINALD HENDERSON Assistant District Attorney General 201 Poplar Avenue, 3rd Floor Memphis, TN 38103

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

The petitioner, Kevin D. Robertson, appeals an order of the Shelby County

Criminal Court dismissing his petition for post-conviction relief. Petitioner is

presently serving concurrent 50-year sentences after he pled guilty to two (2) counts

of second degree murder. In his petition, he alleges that trial counsel did not

adequately prepare for trial and misrepresented certain facts in order to coerce him

into pleading guilty; therefore, he claims that counsel was ineffective. After a

hearing, the trial court denied post-conviction relief. We AFFIRM the judgment of

the trial court.

I

The record indicates that petitioner was indicted on two counts of murder in

the first degree in connection with a shooting that occurred in January 1993. The

state was seeking the death penalty in the matter. Attorney Jeffrey Jones was

retained to represent petitioner at trial.

On the day that petitioner’s trial was to begin, the state and Jones attempted

to negotiate a plea. At the post-conviction hearing, petitioner testified that when

Jones related the offer to him, he asked Jones to confer with his mother about the

plea offer. Jones told him that his mother thought that he should take the plea offer.

Acting on this representation, petitioner pled guilty to second degree murder.

Petitioner also testified that he felt that Jones was unprepared for trial. He

claimed that Jones and his investigator only met with him three (3) or four (4) times

during his 15 months of incarceration after he was arrested. He did not think that

Jones had contacted any witnesses in preparation for the trial. He further alleged

that Jones had not discussed any defense to the pending charges.

Petitioner’s mother also testified at the hearing. Ms. Robertson stated that

she told Jones that petitioner should not take the offer of 50 years.

Jones testified that he and his investigator had done extensive preparation

2 for the trial. Subpoenas for several witnesses had been issued, and they met with

petitioner on at least twenty (20) occasions. Furthermore, he filed a motion to

suppress the statement that petitioner had given to the police.

Jones stated that petitioner did not want to go to trial on the charges. When

the state made its offer, petitioner wanted to take the offer. He asked Jones to “run

this by his mother and see what she thought.” Ms. Robertson did not like the offer,

but told Jones that if “that’s what he wants to do tell him to go ahead, then I’m not

going to say no.” Jones told petitioner what his mother said. Petitioner accepted

the plea agreement.

During the guilty plea hearing, the trial court confirmed that petitioner was

aware of his constitutional rights and was knowingly and voluntarily pleading guilty.

The court also questioned petitioner on his satisfaction with his lawyer’s advice and

services. Petitioner indicated to the court that he understood the implications of the

guilty plea. There was no indication that petitioner was dissatisfied with his

attorney.

After the post-conviction hearing, the court denied relief, finding that

petitioner “freely and voluntarily” entered his guilty plea. The trial court further found

that trial counsel’s advice and services were within the range of competence

demanded of an attorney in a criminal case.

II

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

on appeal unless the evidence preponderates otherwise. Tidwell v. State, 922

S.W.2d 497, 500 (Tenn. 1996); Cooper v. State, 849 S.W.2d 744, 746 (Tenn.

1993); Butler v. State, 789 S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State, 911

S.W.2d 334, 354 (Tenn. Crim. App. 1994). 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.

Dixon v. State, 934 S.W.2d 69, 71-72 (Tenn. Crim. App. 1996).

3 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 at 899.

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; 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

prong by requiring a petitioner 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.

III

In the present case, we find that petitioner has not met his burden. The trial

court found that petitioner’s guilty pleas were knowingly and voluntarily entered.

The court further found that Jones was adequately prepared and met the standards

set forth in Baxter v. Rose. Implicit in this finding is that the trial court found Jones’

testimony to be credible. The evidence does not preponderate against these

findings.

4 The judgment of the trial court is AFFIRMED.

JOE G. RILEY, JUDGE

CONCUR:

PAUL G. SUMMERS, JUDGE

DAVID H. WELLES, JUDGE