IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED MAY SESSION, 1998 June 15, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STEP HAN A. T HOR PE, ) C.C.A. NO. 02C01-9709-CR-00357 ) Appe llant, ) ) SHELBY COUNTY V. ) ) ) HON. JOSEPH B. DAILEY, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST-CONVICTION)
FOR THE APPELLANT: FOR THE APPELLEE:
ETAND RA DOU GLAS JOHN KNOX WALKUP 46 North Third Street, Suite 725 Attorney General & Reporter Memphis, TN 38103 MAR VIN E. C LEM ENT S, JR. Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenu e North Nashville, TN 37243
JOH N W. P IERO TTI District Attorn ey Ge neral
JAMES M. LAMMEY Assistant District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Petitioner, Stepha n A. Thorp e, appeals from the order denying his petition
for post-conviction relief. Petitioner was indicted on four (4) counts of aggravated
sexual battery. Pu rsuant to an agreem ent with the State, Pe titioner pled guilty to
attempt to commit aggravated sexual battery in violation of Tennessee Code
Annotated sections 39-12-101 and 39-13-504 in the Criminal Court of Shelby
County. Petitioner a lso pled g uilty to three (3 ) counts of indecent exposure, although
these pleas are no t the su bject o f his pe tition for post-conviction relief. According
to the agreement, he was sentenced as a Range II Offender to serve eight (8) yea rs
for the attempted aggravated sexual battery conviction. In his petition for post-
conviction relief, Petitione r claimed that his Fifth A mend ment rig ht agains t self-
incrimination was vio lated a nd his Sixth Amendmen t right to the effective assistance
of couns el was de nied. Following an evidentiary hearing, the trial cour t denied re lief.
Petitioner appealed to this court strictly on the issue of ineffective assistance of
counsel based upon his involuntary guilty plea. We affirm the judgment of the trial
court.
“In post-conviction relief proceedings the petitioner has the burden of proving
the allegations in his petition by a preponde rance of the evide nce.” McBee v. State,
655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of
the trial court in hearings “are conclusive on appeal unless the evidence
preponderates against th e judgm ent.” State v. Buford , 666 S.W.2d 473, 475 (Tenn.
Crim. App. 19 83). In review ing the P etitioner’s S ixth Ame ndm ent cla im of ineffective
assistance of counsel, this court must determine whether the advice given or the
services rendered by the attorney are within the range of competence demanded of
-2- attorneys in criminal c ases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To
preva il on a claim of ineffec tive cou nsel, a petition er “mu st sho w that c ouns el’s
representation fell belo w an o bjective stand ard of re ason ablen ess” a nd tha t this
performance prejudiced th e defense. To satisfy the requirement of prejudice,
petitioner would have had to demonstrate a reasonable probability that, but for
coun sel’s errors, he wou ld not have pled guilty and would h ave insisted on going to
trial. See Hill v. Lockhart, 474 U.S . 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203
(1985); Banks ton v. State , 815 S.W .2d 213, 215 (Tenn. Crim . App. 1991 ).
Petitioner argues that his guilty plea was uninformed and involuntary based
upon trial couns el’s failure to info rm him of the effec t of his status as a Rang e II
Offender on his parole eligibility as a sex offender. At the evidentiary hearing,
Petitioner testified that during his meetings with trial counsel they discussed the eight
(8) years as being the minimum sentence for the attempted aggravated sexual
battery charge. Petitioner claimed that counsel advised him that his status as a
Range I or Ra nge II O ffende r did no t matte r either w ay as fa r as the length of
sentence was concerned. Petitioner did not know that a R ange II Offen der ord inarily
has two (2) to four (4) felony convictions. This was Petitioner’s first felony conviction.
W hile Petitioner did not understand, he did not ask his attorney any questions. He
admitted that he ple d guilty freely and voluntarily, although he felt that he did not
have the proper in formatio n to ma ke the de cision to ple ad guilty.
On cross -exam ination , Petition er adm itted tha t he res pond ed affirmatively
when questioned by the trial court at the guilty plea hearing as to whether his plea
was ma de voluntarily.
-3- Trial coun sel tes tified tha t from th e day h e me t the Pe titioner, P etitione r said
that he had a problem, he was guilty, and he did not want to go through a trial and
bring these childre n into c ourt. P etitioner asked counsel to get the best offer he
could get as Petitioner did not have any felony convictions. When the offer was
made for eight (8) years in exchange for his guilty plea, counsel met with Petitioner
and explained to him that he was not going to be able to be paroled on these sex
offenses. Also, counsel advised him that the difference between eight (8) years as
a Range I Offender would probably not be any different than a Range II Offender
because counsel did not think that Petitioner could get parole on either one.
In its order denying the Petitioner’s petition for post-conviction relief, the trial
court found that the Petitioner was interested at all times in settling the case and not
submitting to a trial. It specifically held that trial counsel fully explained the
difference between Range I and Rang e II senten ces an d that by p leading to criminal
attempt as opposed to the charged offense of aggravated sexual battery, Petitioner
would have the opp ortunity to petition the court for probation. Th e trial court found
that trial cou nsel thoroughly and professionally handled all aspects of the
representation from which Petitioner complains and that Petitioner received
outstanding representation as required by Baxter v. Rose, 523 S.W.2d 930 (Tenn.
1975).
In light of th e reco rd and the brie fs, the e videnc e in the case sub judice does
not prepon derate again st the tria l court’s finding s. As th e trial co urt poin ted ou t in
its order, the Petitioner was interested in gettin g a de al and not go ing to tria l.
Equa lly clear is the fact that Petitioner was advised of his rights, both prior to the
guilty plea hearing and during the guilty plea hearing. The record demonstrates that
-4- the guilty ple a was made voluntarily, understandingly and knowingly, and that the
trial court complied with the conditions of State v. Mackey, 553 S.W.2d 337 (Tenn.
1977). See Boykin v. Alabama, 395 U.S . 238, 242 (1969).
In effect, the relief Petitioner truly seeks is a reduced sentence. During the
evidentiary hearin g, the P etitione r respo nded as follows to th e trial co urt’s
questioning:
W ell, Judge, it really boils down to - - the simplicity of it is, I’ve been down for almost three ye ars.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED MAY SESSION, 1998 June 15, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STEP HAN A. T HOR PE, ) C.C.A. NO. 02C01-9709-CR-00357 ) Appe llant, ) ) SHELBY COUNTY V. ) ) ) HON. JOSEPH B. DAILEY, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST-CONVICTION)
FOR THE APPELLANT: FOR THE APPELLEE:
ETAND RA DOU GLAS JOHN KNOX WALKUP 46 North Third Street, Suite 725 Attorney General & Reporter Memphis, TN 38103 MAR VIN E. C LEM ENT S, JR. Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenu e North Nashville, TN 37243
JOH N W. P IERO TTI District Attorn ey Ge neral
JAMES M. LAMMEY Assistant District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Petitioner, Stepha n A. Thorp e, appeals from the order denying his petition
for post-conviction relief. Petitioner was indicted on four (4) counts of aggravated
sexual battery. Pu rsuant to an agreem ent with the State, Pe titioner pled guilty to
attempt to commit aggravated sexual battery in violation of Tennessee Code
Annotated sections 39-12-101 and 39-13-504 in the Criminal Court of Shelby
County. Petitioner a lso pled g uilty to three (3 ) counts of indecent exposure, although
these pleas are no t the su bject o f his pe tition for post-conviction relief. According
to the agreement, he was sentenced as a Range II Offender to serve eight (8) yea rs
for the attempted aggravated sexual battery conviction. In his petition for post-
conviction relief, Petitione r claimed that his Fifth A mend ment rig ht agains t self-
incrimination was vio lated a nd his Sixth Amendmen t right to the effective assistance
of couns el was de nied. Following an evidentiary hearing, the trial cour t denied re lief.
Petitioner appealed to this court strictly on the issue of ineffective assistance of
counsel based upon his involuntary guilty plea. We affirm the judgment of the trial
court.
“In post-conviction relief proceedings the petitioner has the burden of proving
the allegations in his petition by a preponde rance of the evide nce.” McBee v. State,
655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of
the trial court in hearings “are conclusive on appeal unless the evidence
preponderates against th e judgm ent.” State v. Buford , 666 S.W.2d 473, 475 (Tenn.
Crim. App. 19 83). In review ing the P etitioner’s S ixth Ame ndm ent cla im of ineffective
assistance of counsel, this court must determine whether the advice given or the
services rendered by the attorney are within the range of competence demanded of
-2- attorneys in criminal c ases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To
preva il on a claim of ineffec tive cou nsel, a petition er “mu st sho w that c ouns el’s
representation fell belo w an o bjective stand ard of re ason ablen ess” a nd tha t this
performance prejudiced th e defense. To satisfy the requirement of prejudice,
petitioner would have had to demonstrate a reasonable probability that, but for
coun sel’s errors, he wou ld not have pled guilty and would h ave insisted on going to
trial. See Hill v. Lockhart, 474 U.S . 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203
(1985); Banks ton v. State , 815 S.W .2d 213, 215 (Tenn. Crim . App. 1991 ).
Petitioner argues that his guilty plea was uninformed and involuntary based
upon trial couns el’s failure to info rm him of the effec t of his status as a Rang e II
Offender on his parole eligibility as a sex offender. At the evidentiary hearing,
Petitioner testified that during his meetings with trial counsel they discussed the eight
(8) years as being the minimum sentence for the attempted aggravated sexual
battery charge. Petitioner claimed that counsel advised him that his status as a
Range I or Ra nge II O ffende r did no t matte r either w ay as fa r as the length of
sentence was concerned. Petitioner did not know that a R ange II Offen der ord inarily
has two (2) to four (4) felony convictions. This was Petitioner’s first felony conviction.
W hile Petitioner did not understand, he did not ask his attorney any questions. He
admitted that he ple d guilty freely and voluntarily, although he felt that he did not
have the proper in formatio n to ma ke the de cision to ple ad guilty.
On cross -exam ination , Petition er adm itted tha t he res pond ed affirmatively
when questioned by the trial court at the guilty plea hearing as to whether his plea
was ma de voluntarily.
-3- Trial coun sel tes tified tha t from th e day h e me t the Pe titioner, P etitione r said
that he had a problem, he was guilty, and he did not want to go through a trial and
bring these childre n into c ourt. P etitioner asked counsel to get the best offer he
could get as Petitioner did not have any felony convictions. When the offer was
made for eight (8) years in exchange for his guilty plea, counsel met with Petitioner
and explained to him that he was not going to be able to be paroled on these sex
offenses. Also, counsel advised him that the difference between eight (8) years as
a Range I Offender would probably not be any different than a Range II Offender
because counsel did not think that Petitioner could get parole on either one.
In its order denying the Petitioner’s petition for post-conviction relief, the trial
court found that the Petitioner was interested at all times in settling the case and not
submitting to a trial. It specifically held that trial counsel fully explained the
difference between Range I and Rang e II senten ces an d that by p leading to criminal
attempt as opposed to the charged offense of aggravated sexual battery, Petitioner
would have the opp ortunity to petition the court for probation. Th e trial court found
that trial cou nsel thoroughly and professionally handled all aspects of the
representation from which Petitioner complains and that Petitioner received
outstanding representation as required by Baxter v. Rose, 523 S.W.2d 930 (Tenn.
1975).
In light of th e reco rd and the brie fs, the e videnc e in the case sub judice does
not prepon derate again st the tria l court’s finding s. As th e trial co urt poin ted ou t in
its order, the Petitioner was interested in gettin g a de al and not go ing to tria l.
Equa lly clear is the fact that Petitioner was advised of his rights, both prior to the
guilty plea hearing and during the guilty plea hearing. The record demonstrates that
-4- the guilty ple a was made voluntarily, understandingly and knowingly, and that the
trial court complied with the conditions of State v. Mackey, 553 S.W.2d 337 (Tenn.
1977). See Boykin v. Alabama, 395 U.S . 238, 242 (1969).
In effect, the relief Petitioner truly seeks is a reduced sentence. During the
evidentiary hearin g, the P etitione r respo nded as follows to th e trial co urt’s
questioning:
W ell, Judge, it really boils down to - - the simplicity of it is, I’ve been down for almost three ye ars. I have a little six year old son tha t I’ve missed the last thre e years o f his life. I have a family to take care of that -- well, my w ife doesn ’t work. Sh e teach es my s on at ho me. And stuff like that. They have financial problem s and prob lems with the ca rs and different thin gs that I could help out with if I was there. And I haven ’t had any write-ups. No disciplinary actions at all since I’ve been locked up. And I was just w onderin g if, you kno w, if I could as k the mercy of the court, that I could get some type of time reduction or something to help m e out with being ab le to go ba ck, you know , to help my family out. That was -- as far as the time goes, you know, I’ve been in the arm y. I can do, you know, I can do the time. A nd, you know , I’m not changing my -- I’m not interested in chang ing my p lea. But I would just like to see if there was any possibility of being ab le to get ou t to my family any soon er.
When asked on cross-examination if all he wanted was a “time cut,” the Petitioner
agreed . The cou rt does not have the authority to reduce the Petitioner’s sentence
under this petition for post-conviction relief as this is not a proper ground for
consideration. Tenn. Code Ann. §§ 40-30-202, -203. If Petitioner’s plea was made
voluntarily, knowingly and understandingly, then there is no basis regarding relief for
the length of his sentence.
We affirm the ju dgme nt of the trial co urt.
____________________________________ THOMAS T. W OODALL, Judge
-5- CONCUR:
___________________________________ JOHN H. PEAY, Judge
___________________________________ PAUL G. SUMMERS , Judge
-6-