IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
SEPTEMBE R SESSION, 1997
RAY D. RUCKER, )
FILED
C.C.A. NO. 02C01-9610-CR-00375 ) November 5, 1997 Appe llant, )
) Cecil Crowson, Jr.
) SHELBY COUNTY Appellate C ourt Clerk VS. )
) HON. ARTHUR T. BENNETT STATE OF TENNESSEE, ) JUDGE )
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
LEE WILSON JOHN KNOX WALKUP 200 Jefferson, Suite 800 Attorney General and Reporter Memphis, TN 38103 CLINTON J. MORGAN
Assistant Attorney General 425 5th Avenu e North
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
DAVID SHAPIRO
Assistant District Attorney General Criminal Justice Complex, Suite 301 201 Poplar Street
Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
The Petitioner, Ray D. Rucker, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure from the trial court’s denial of his petition for post-co nviction relief. On May 29, 199 2, the Pe titioner plea ded gu ilty to one count of coercion of a witness and one count of attempted aggravated assau lt.1 As specified in the negotiated plea agreement, he was sentenced as a Range I standard offender to two years on each co unt, with the senten ces to run concu rrently. In addition, b oth sen tences were ord ered to ru n conc urrent with a three-year sentence he received upon a plea of guilty to a drug offense.2 He filed a pro se petition for post-conviction relief on January 25, 1994, which was amended with the assista nce o f coun sel on April 24, 199 5. In his petition for post-conviction relief, the Pe titioner argued that he was denied effective assistance of counsel at his guilty plea proceeding for a number of reasons. The trial court conducted an evidentiary hearing on January 16 and February 8, 1996. After considering the evidence, the trial court issued an order denying the petition on Ma rch 21, 1 996. W e affirm the judgm ent of the tria l court.
The record does not fully detail the circum stance s of the offe nses. It appears that the Petitioner and Derrick Rogers allegedly knocked an individual by the nam e of Ellie O wens o ff of his bicycle and threatened him. Owens was appa rently cooperating with and giving information regarding drug transactions to the Co llierville Po lice De partm ent. T he rec ord ind icates that O wens initially
1 Tenn. Code Ann. §§ 39-16-507, 39-12-101, and 39-13-102.
2 Although the record is somewhat confusing, it appears that the guilty plea to the drug offens e occu rred at the sam e time a s the guilty plea s which are the su bject of the case a t bar. In addition, it appears that the State agreed to nolle prosequi another drug charge aga inst the Petitioner.
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gave a statem ent imp licating the P etitioner in the attack. In ad dition, the State had statements from witnesses to the attack who implicated the Petitioner. As a result, on Jan uary 3 0, 199 2, the P etitione r and D errick R ogers were jo intly indicted on charges of coercion of a witness and aggravated assault. The Petitioner negotiated a plea agreement with the district attorney general’s office and, on May 29, 1992, pleaded guilty to coercion of a witness and attempted aggrava ted assa ult.
On January 25, 1994, the Petitioner filed a pro se petition for po st-
conviction relief, arguing that defense counsel at the guilty plea proceeding was ineffective. Counsel was appointed and amended the petition on April 24, 1995. Through the am ende d petitio n, the P etitione r argue d that h is attorney at the guilty plea proceeding, Bretran Thompson, rendered ineffective assistance of counsel in a number of ways, all of which revolve around three central issues:
(1) That counsel did not adequately communicate with him;
(2) that counsel failed to conduct adequate discovery or an appropriate investigation of the case; and (3) that coun sel failed to a dvise him of the future implications of pleading gu ilty.
With regard to the first issue, the Petitioner asserted that counsel never conducted an office in terview and vis ited him in jail only twice. He claimed that counsel did not co nsult with h im durin g the de velopm ent of the case excep t to discuss paym ent of c ouns el’s fee. Furthermore, he stated that counsel waived a preliminary hearing although the Petitioner had expressed a desire to have one. With regard to the second issue, he compla ined th at cou nsel fa iled to file discovery or suppression motions. In addition, he alleged that couns el failed to interview the victim of the attack, Ellie Owens, even though the Petitioner had informed counsel that Owens would exonerate him. W ith regard to the third
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issue, he asserted that counsel failed to advise him of the potential for enhanced punishment for subsequent offenses. Moreover, he contended that counsel improperly advised him to plead guilty while there were other charges pending against him in federal court, th ereby resultin g in an enha nced sente nce fo r his federal conviction.
The trial cou rt cond ucted an evid entiary hearin g on th e petitio n for post-
conviction relief on January 16, 1996. At the hearing, the Petitioner testified that counsel coerced him into pleading guilty. He stated that he initially told counsel that he did no t want to ple ad guilty. In response, counsel informed him that the prosecutor would not agree to the three-year sentence on his drug offense if he decided to take the co ercion and a ssau lt charg es to tria l. The Petitioner testified that he felt like he had no choice b ut to plead guilty because he knew that he was guilty of the drug offense and feared a harsher punishment should he take the coerc ion an d ass ault ch arges to trial.
The Petition er testifie d furthe r that co unse l did no t com mun icate w ith him adequa tely. He stated tha t he met with co unsel a total of five times, three while he was out on bond and two while he was incarcerated. According to the Petitioner, counsel did not discuss strategy with him, did not discuss the evidence which the State intended to offer, and d id not inform him of his rights. In particular, the Petitioner complained that counsel never discussed the right to a preliminary hearing. He testified that counsel waived his preliminary hearing without his conse nt.
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In addition, the Petitioner com plained that coun sel failed to file either a motion for discovery or a motion to suppress. He testified that he informed counsel that he was innocent of the assault charg e and that the victim w ould testify on his behalf. According to the Petitioner, the victim even went so far as to come to court on one occasion, bu t counsel did no t inform the prosecutor that the victim wished to testify for him. At the post-conviction hearing, the Petitioner introduced an affidavit purportedly signed by the victim stating that the Petitioner did not participate in the attack on the victim. The affidavit is dated March 10, 1994, shortly after the filing of the pro se petition for p ost-con viction relief.
The Petitioner also testified that couns el did not inform him abou t the future consequences of his guilty pleas. More specifically, it appears that, in addition to his other charges, the Petitioner was charged with another drug offense, possession of a controlled substance with intent to distribute. Counsel informed him that as part of the plea agreement, the State had agreed to nolle prosequi that charge. The Petitioner complains that counsel did not alert him to the fact that two weeks after his guilty pleas, a federal grand jury would indict him on a drug charge, apparently stemming from the conduct which was the subject of the nolle prosequi state charge. Upon his subsequent federal conviction, the Petition er’s state convictions were used to enhance his federal sentence. The Petitioner testified that h ad he k nown h is state con victions co uld be us ed to enhance his subsequ ent federal sen tence, he wo uld not have ple aded guilty.
The only other witness to testify at the post-conviction hearing was the Petition er’s attorney from the guilty plea proceeding, Bretran Thompson. Thompson testified that he communicated with the Petitioner about every aspect
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of the case and me t with him in excess of fifty times. He stated that he did not file a motion for discove ry beca use th e pros ecuto r’s office had a n ope n-file discovery policy. Thompson testified that he gaine d acc ess to all of the State’s information on the case through open-file discovery and shared that information with the Pe titioner. T he op en-file d iscove ry policy also led him to waive the Petition er’s preliminary hearing. He stated that, with the Petitioner’s permission, he signed th e waiver fo rm on b ehalf of the Petitioner. In conjunction with the waiver of the preliminary he aring, Thom pson secu red a bond reduction for the Petitioner.
In the course of investigating the case, Thompson spoke with witnesses to the attack on the victim a nd review ed police reports su mm arizing sta temen ts given by the witnesses. Thompson’s investigation revealed that the State had enough evidence to secure convictions against the Petitioner. Thompson testified that the nature of the evide nce wa s such th at a mo tion to suppress was inapplicable. Thompson indicated that the Petitioner did not inform him of the victim’s willingness to give a statem ent exo neratin g him . He ex plaine d his opinion of the strength of the State’s evidence to the Petitioner and stated that there was a “50-50" chance of conviction. According to Thompson, the decision to plead guilty was made by the Petitioner. Thompson then negotiated a plea agreement with the prosecutor. It appears that as part of that agreement, the State agreed to nolle prosequi one of the drug charges ag ainst the Petitioner.
Thompson testified that he informed the Petitioner that the convictions could later be used for enhancement purposes. He also testified that he was unaware of any potential federal charges being filed against the Pe titioner.
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Thompson stated that if he had known of federal charges pending against the Petitioner, he would have tried to consolidate the charges with the state charges or somehow limit the Petitioner’s exposure on the federal charges.
At the conc lusion of T homp son’s tes timony, the post-conviction hearing was continued to February 8, 1996, in order to allow the Petitioner to locate the victim, Ellie Owens. The Petitioner intended to introduce testimony from Owens concerning the sta teme nt in the affidavit that he would have exonerated the Petitioner. On February 8, 1996, the Petitioner informed th e trial court that he had been unable to locate Owens because Owens no longer lived in Tennessee. Instead, he offered the testimony of his own mother, Linda Faye Richardson. Richardson testified that she accompanied Owens to court for one of the proceedings involving her son. According to Richardson, Owens acknowledged that he had signed the affidavit s tating th at the P etitione r had n ot partic ipated in the attack upon him.
After considering the evidence presented at the post-conviction hearing, the trial court entered detailed findings of fact and c onclusio ns of law. In short, the trial cou rt did no t find the Petition er’s testimon y to be persuasive and instead accredited Bretran Tho mps on’s te stimo ny in all respects. With regard to the first central issue (failure to communicate), the trial court found that Thompson had met with the Petitioner a sufficient number of times and had fully discussed the case. Moreover, the trial court noted that the Petitioner did not allege how more meetings w ith counsel wo uld have affected his decision to plea d guilty.
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With regard to the second central issue (failure to investigate), the trial court accredited T hom pson ’s testim ony tha t he ha d the b enefit o f open -file discovery. As such, the waiver of the preliminary hearing was a reasonable strateg ic decision. Furthermore, the trial court found that the proof presented at the post-conviction hearing indicated that the Petitioner had not informed counsel regarding the victim’s willingness to give a statement exonerating him. Given the circumstances of the offenses and the Petitioner’s inability to present live testimony from the victim, the trial court found the affidavit, purportedly signed by the victim, to be unpersuasive.
With regard to the third ce ntral issue (failure to advise con cerning future enhance ment), the trial court found that Thompson had properly advised the Petitioner that his convictions could be used a gainst him in the future. Moreove r, the trial cou rt noted that the transc ript of the guilty plea p rocee ding c learly demonstrates that the Petition er was mad e awa re that h is convictions could later be used for enhancement purposes. The trial court pointed out that the transcript revealed the Petitioner had s tated th at he w as volu ntarily p leadin g guilty, th at his decision was not the result of coercion, and that he was s atisfied with co unse l’s performance.3 The trial court also found that the evidence presen ted at the p ost- conviction hearing indicated that Thom pson was unaware of any federal charges against the Petitioner at the time of the guilty plea proceeding.
3 As the State points out on appeal, the transcript of the guilty plea proceeding was not included in the reco rd on ap peal. Of c ourse, it is the duty of the a ppellant to p repare a n adeq uate record to allow a m eaningf ul review on appea l. Tenn. R . App. P. 24 (b); State v. Bunch, 646 S.W.2d 158, 160 (Tenn . 1983); State v. R oberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Given the absence of the transcript of the guilty plea proceeding from the record, we must presume the trial court’s find ings with re spect to the transc ript are cor rect. State v. Richardson, 875 S.W.2d 671, 674 (Tenn . Crim. A pp. 1993 ); State v. Boling, 840 S.W .2d 944, 951 (Tenn. Crim . App. 1992).
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As a result, the trial court concluded that Thompson’s representation fell within the range of competence demanded of attorneys in criminal cases. Given that Thompson had provided effective assistance of counsel, the trial court concluded that the Petitioner had entered his gu ilty pleas know ingly, inte lligently and voluntarily. The trial court there fore denied the petition for post-conviction relief. It is from the order of denial that the Petitioner now appeals.
In determining whe ther or not co unse l provide d effec tive ass istanc e at trial, the court must decide whether or not counsel’s performance was within the range of competence demanded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). To succeed on a claim that his counsel was ineffective at trial, a petitioner bears the burden of showing that his counsel made errors so serious that he was not functioning as counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced the petitioner resulting in a failure to produce a reliable re sult. Strickland v. Washington, 466 U.S. 668, 68 7, reh’g denied, 467 U.S. 1267 (1984); Coop er v. State , 849 S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy this second prong the petitioner m ust show a reaso nable p robability tha t, but for counsel’s unreasonable error, the fact finder would have had reaso nable doubt regarding petitioner’s g uilt. Strickland, 466 U.S. at 695. T his rea sona ble probab ility must be “su fficient to undermine confidence in the outcome .” Harris v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).
When reviewing trial couns el’s actions , this court shou ld not use the be nefit of hindsigh t to second-guess trial strategy a nd criticize c ounse l’s tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be
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judged at the time it w as ma de in light of a ll facts and circu mstan ces. Strickland, 466 U .S. at 690 ; see Cooper, 849 S.W.2d at 746.
This two part standard of measuring ineffective assistance of counsel also applies to claims arising ou t of the plea process. Hill v. Lockhart, 474 U.S. 52 (1985). The prejudice requirement is modified so that the petitioner “must show that there is a reaso nable proba bility that, but for counsel’s errors he wo uld not have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.
W e note that under the Post-Conviction Procedure Act applicable to the present case, a petitioner bears the burden of proving the allegations in his or her petition by a prepon deranc e of the ev idence . McBe e v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthe rmore, the factu al findings of the trial court in post-c onvictio n hea rings are conclusive on appeal unless the evidence preponderates against th em. See State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App . 1983).
Applying the Strickland standard to the case sub judice, we believe that the Petitioner has failed to establish that defense counsel’s representation at the guilty plea proceeding was constitutionally deficient. The Petitioner testified at the post-c onvictio n hea ring tha t defen se co unse l failed to com mun icate w ith him sufficiently, failed to conduct adequate discovery and a sufficient investigation of the case, and failed to advise him of the future imp lications of a guilty plea. In contras t, defen se co unse l Thom pson testified that he com mun icated with the Petitioner regardin g all aspe cts of the case, conducted a thorough investigation of the case, an d fully explained the co nsequen ces of pleading guilty.
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After hearing all of the evidence and evaluating credibility, the trial court accredited the testimony of defense counsel, Bretran Thompson. Thus, the trial court found that the evidence did not support the Petitioner’s allegations of ineffective assistance of counsel. The trial court was in a much better position to evaluate the cred ibility of the witne sses tha n this Co urt. The trial court found Tho mps on’s testimony to be persuasive and therefore concluded that the Petitioner had not estab lished that Tho mpson ’s representation was cons titutiona lly deficient. From the record before us, we cannot conclude that the evidence preponderates against the trial court’s findings.
For the reasons set forth in the discussion above, we conclude that the Petitioner has failed to demonstrate that the trial court erred in denying the petition for post-conviction re lief. We therefore affirm the judgment of the trial court.
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DAVID H. WELLES, JUDGE
CONCUR:
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JOE B. JONES, PRESIDING JUDGE
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JOE G. RILEY, JUDGE