IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED MARCH 1999 SESSION April 20, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk TONEY N. SMITH, ) ) Appellant, ) No. 02C01-9806-CR-00200 ) ) Shelby County v. ) ) Honorable Joseph Dailey, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )
For the Appellant: For the Appellee:
William C. Gosnell John Knox Walkup 100 North Main Street, Ste. 3010 Attorney General of Tennessee Memphis, TN 38103 and (AT TRIAL) J. Ross Dyer Assistant Attorney General of Tennessee Toney N. Smith, Pro Se 450 James Robertson Parkway Turney Center 4-B-49 Nashville, TN 37243-0493 Route No. 1 Only, TN 37140-9709 William L. Gibbons (ON APPEAL) District Attorney General and J. Robert Carter John Sorrell Assistant District Attorneys General 201 Poplar Ave., Ste 301 Memphis, TN 38103-1947
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton Judge OPINION
The petitioner, Toney N. Smith, pro se, appeals as of right from the denial
of post-conviction relief by the Shelby County Criminal Court. He contends that he
received the ineffective assistance of counsel and that the negotiated settlement of his
sentences was not knowingly and voluntarily entered. We disagree.
The petitioner was convicted in 1994 of second degree murder and
aggravated child abuse. He entered into an agreement with the state at his sentencing
hearing to receive a thirty-year sentence on each count as a Range II, multiple
offender, to be served concurrently. Pursuant to the agreement, the petitioner waived
his right to a motion for a new trial and his right to appeal.
At the post-conviction evidentiary hearing, the petitioner claimed that his
trial attorney failed to meet with him in jail adequately, failed to interview and call
character witnesses, failed to object timely to an amendment of the indictment, failed to
file certain motions, failed to pursue a motion to suppress his statements to the police,
failed to make certain objections, and failed to advise him that he would forfeit his right
to appeal if he accepted the effective sentence of thirty years. On cross-examination,
the petitioner admitted that his attorney tried to keep his statement to the police out of
the trial. He also acknowledged that he had a twelfth-grade education and had entered
guilty pleas on several occasions.
The only other witness called on the petitioner’s behalf was his mother.
Essentially, she stated that the petitioner’s attorney had said that he would use her as a
witness, but she was not called to testify.
2 The trial attorney testified that he replaced the petitioner’s original attorney
five months before the trial. He said that he met with the petitioner in jail on two
occasions and saw him when they would go to court. He stated that he filed a set of
motions one month after taking the case, including a motion to suppress the petitioner’s
written statement to the police in which he admitted that he shook the victim. He said
that a hearing on the motion occurred the day before trial and that the trial court ruled
that the statement could be used. He acknowledged that the petitioner gave an earlier
oral statement that was not the subject of the motion, but he noted that in the oral
statement, the petitioner denied abusing the child. The attorney also said the oral
statement was less significant because it was given before the written one which
incriminated him.
The attorney acknowledged that he did not call any character witnesses
during the trial. He said that even if the petitioner’s character had become an issue, he
would have recommended against such witnesses because of the petitioner’s criminal
record. He noted that the petitioner did not testify. The attorney stated that he
explained to the petitioner his concerns about the petitioner taking the stand and using
any character witnesses.
The attorney testified that when he was appointed to the case, there were
already two indictments. He said the indictment was not amended, and he saw nothing
wrong with the procedures used.
The attorney testified that the victim’s mother’s use of cocaine was
proven. He said that no one gave him any witnesses who could testify to the mother
abusing the child or to the fact that other people may have had access to the child.
However, he said that the petitioner admitted to shaking the victim and being
responsible for her death.
3 Relative to sentencing, the attorney testified that he fully explained to the
petitioner his rights to a motion for a new trial and to an appeal but that he did not see
any reversible error. He said that there was little controverted evidence that would
make a difference. He said that he explained to the petitioner that he was exposed to
seventy years in prison and that the petitioner willingly agreed to the thirty-year offer.
The transcript of the sentencing hearing reflects that the trial court fully
discussed with the petitioner his rights to a motion for a new trial and to an appeal and
explained that pursuant to the agreement, the petitioner would be waiving and giving up
his right to appellate review of the conviction. Also, the trial court told the petitioner that
it considered him to be eligible for consecutive sentencing and that he was eligible for
Range III sentencing for the aggravated child abuse offense. The petitioner was made
aware that he was exposed to a maximum sentence of seventy years for the two
convictions.
In its order denying relief, the trial court stated that it considered the
convicting case record as well as the testimony at the evidentiary hearing. It found, in
pertinent part, as follows:
[The trial attorney] interviewed witnesses, filed motions, conducted a thorough suppression hearing on the date prior to the trial, vigorously argued that the confession should be suppressed, fully represented Mr. Smith at trial to the best of his ability, and gave him the best advice he could at the sentencing hearing. In [the attorney’s] judgment as an experienced trial attorney the likelihood of his getting a much greater sentence if they proceeded with a sentencing hearing in front of the judge was great. It was his opinion that the best possible sentence Mr. Smith could receive under the circumstances given his prior record and nature of these cases was the 30 year sentence that had been negotiated. [The attorney] stated that he fully advised his client of what he would be giving up in exchange for accepting that agreed upon sentence. In this Court’s opinion, the transcript of the trial fully bears out [the attorney’s] assertion. In the opinion of this Court, the Petitioner was thoroughly and properly represented at his trial and at his sentencing hearing.
4 The trial court concluded that the petitioner had failed to meet his burden of
demonstrating that his attorney was ineffective in his representation.
The petitioner had the burden in the trial court of proving his allegations by
clear and convincing evidence. T.C.A. § 40-30-210(f). On appeal, he has the burden
of showing that the evidence of record preponderates against the trial court’s judgment
before we can reject the trial court’s determinations. See Black v. State, 794 S.W.2d
752, 755 (Tenn. Crim. App. 1990).
Under the Sixth Amendment, when a claim of ineffective assistance of
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED MARCH 1999 SESSION April 20, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk TONEY N. SMITH, ) ) Appellant, ) No. 02C01-9806-CR-00200 ) ) Shelby County v. ) ) Honorable Joseph Dailey, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )
For the Appellant: For the Appellee:
William C. Gosnell John Knox Walkup 100 North Main Street, Ste. 3010 Attorney General of Tennessee Memphis, TN 38103 and (AT TRIAL) J. Ross Dyer Assistant Attorney General of Tennessee Toney N. Smith, Pro Se 450 James Robertson Parkway Turney Center 4-B-49 Nashville, TN 37243-0493 Route No. 1 Only, TN 37140-9709 William L. Gibbons (ON APPEAL) District Attorney General and J. Robert Carter John Sorrell Assistant District Attorneys General 201 Poplar Ave., Ste 301 Memphis, TN 38103-1947
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton Judge OPINION
The petitioner, Toney N. Smith, pro se, appeals as of right from the denial
of post-conviction relief by the Shelby County Criminal Court. He contends that he
received the ineffective assistance of counsel and that the negotiated settlement of his
sentences was not knowingly and voluntarily entered. We disagree.
The petitioner was convicted in 1994 of second degree murder and
aggravated child abuse. He entered into an agreement with the state at his sentencing
hearing to receive a thirty-year sentence on each count as a Range II, multiple
offender, to be served concurrently. Pursuant to the agreement, the petitioner waived
his right to a motion for a new trial and his right to appeal.
At the post-conviction evidentiary hearing, the petitioner claimed that his
trial attorney failed to meet with him in jail adequately, failed to interview and call
character witnesses, failed to object timely to an amendment of the indictment, failed to
file certain motions, failed to pursue a motion to suppress his statements to the police,
failed to make certain objections, and failed to advise him that he would forfeit his right
to appeal if he accepted the effective sentence of thirty years. On cross-examination,
the petitioner admitted that his attorney tried to keep his statement to the police out of
the trial. He also acknowledged that he had a twelfth-grade education and had entered
guilty pleas on several occasions.
The only other witness called on the petitioner’s behalf was his mother.
Essentially, she stated that the petitioner’s attorney had said that he would use her as a
witness, but she was not called to testify.
2 The trial attorney testified that he replaced the petitioner’s original attorney
five months before the trial. He said that he met with the petitioner in jail on two
occasions and saw him when they would go to court. He stated that he filed a set of
motions one month after taking the case, including a motion to suppress the petitioner’s
written statement to the police in which he admitted that he shook the victim. He said
that a hearing on the motion occurred the day before trial and that the trial court ruled
that the statement could be used. He acknowledged that the petitioner gave an earlier
oral statement that was not the subject of the motion, but he noted that in the oral
statement, the petitioner denied abusing the child. The attorney also said the oral
statement was less significant because it was given before the written one which
incriminated him.
The attorney acknowledged that he did not call any character witnesses
during the trial. He said that even if the petitioner’s character had become an issue, he
would have recommended against such witnesses because of the petitioner’s criminal
record. He noted that the petitioner did not testify. The attorney stated that he
explained to the petitioner his concerns about the petitioner taking the stand and using
any character witnesses.
The attorney testified that when he was appointed to the case, there were
already two indictments. He said the indictment was not amended, and he saw nothing
wrong with the procedures used.
The attorney testified that the victim’s mother’s use of cocaine was
proven. He said that no one gave him any witnesses who could testify to the mother
abusing the child or to the fact that other people may have had access to the child.
However, he said that the petitioner admitted to shaking the victim and being
responsible for her death.
3 Relative to sentencing, the attorney testified that he fully explained to the
petitioner his rights to a motion for a new trial and to an appeal but that he did not see
any reversible error. He said that there was little controverted evidence that would
make a difference. He said that he explained to the petitioner that he was exposed to
seventy years in prison and that the petitioner willingly agreed to the thirty-year offer.
The transcript of the sentencing hearing reflects that the trial court fully
discussed with the petitioner his rights to a motion for a new trial and to an appeal and
explained that pursuant to the agreement, the petitioner would be waiving and giving up
his right to appellate review of the conviction. Also, the trial court told the petitioner that
it considered him to be eligible for consecutive sentencing and that he was eligible for
Range III sentencing for the aggravated child abuse offense. The petitioner was made
aware that he was exposed to a maximum sentence of seventy years for the two
convictions.
In its order denying relief, the trial court stated that it considered the
convicting case record as well as the testimony at the evidentiary hearing. It found, in
pertinent part, as follows:
[The trial attorney] interviewed witnesses, filed motions, conducted a thorough suppression hearing on the date prior to the trial, vigorously argued that the confession should be suppressed, fully represented Mr. Smith at trial to the best of his ability, and gave him the best advice he could at the sentencing hearing. In [the attorney’s] judgment as an experienced trial attorney the likelihood of his getting a much greater sentence if they proceeded with a sentencing hearing in front of the judge was great. It was his opinion that the best possible sentence Mr. Smith could receive under the circumstances given his prior record and nature of these cases was the 30 year sentence that had been negotiated. [The attorney] stated that he fully advised his client of what he would be giving up in exchange for accepting that agreed upon sentence. In this Court’s opinion, the transcript of the trial fully bears out [the attorney’s] assertion. In the opinion of this Court, the Petitioner was thoroughly and properly represented at his trial and at his sentencing hearing.
4 The trial court concluded that the petitioner had failed to meet his burden of
demonstrating that his attorney was ineffective in his representation.
The petitioner had the burden in the trial court of proving his allegations by
clear and convincing evidence. T.C.A. § 40-30-210(f). On appeal, he has the burden
of showing that the evidence of record preponderates against the trial court’s judgment
before we can reject the trial court’s determinations. See Black v. State, 794 S.W.2d
752, 755 (Tenn. Crim. App. 1990).
Under the Sixth Amendment, when a claim of ineffective assistance of
counsel is made, the burden is upon the petitioner to show (1) that counsel's
performance was deficient and (2) that the deficiency was prejudicial in terms of
rendering a reasonable probability that the result of the trial was unreliable or the
proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 369-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied, as well, to the right to
counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court
decided that attorneys should be held to the general standard of whether the services
rendered were within the range of competence demanded of attorneys in criminal
cases. Further, the court stated that the range of competence was to be measured by
the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,
in reviewing counsel's conduct, a "fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct, and to evaluate the conduct from
5 counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will not be measured
by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic failed or even
hurt the defense does not, alone, support a claim of ineffective assistance. Deference
is made to trial strategy or tactical choices if they are informed ones based upon
adequate preparation. See Hellard, 629 S.W.2d at 9; DeCoster, 487 F.2d at 1201.
Also, we note that the approach to the issue of the ineffective assistance
of counsel does not have to start with an analysis of an attorney's conduct. If prejudice
is not shown, we need not seek to determine the validity of the allegations about
deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
The record fully supports the trial court’s findings. The fact that the
attorney did not meet with the petitioner in the jail more than twice does not indicate
deficient performance. Moreover, the petitioner has not shown that prejudice resulted
from the lack of more meetings. Also, the attorney’s decisions and ultimate advice to
the petitioner regarding the petitioner testifying and the use of character witnesses were
proper matters of trial strategy. The record reflects that no last minute amendment to
an indictment occurred, and it otherwise shows that the petitioner was put to trial on two
valid indictments. The attorney vigorously sought to suppress the petitioner’s statement
in which he admitted that he shook the victim, and nothing in the record indicates that
the petitioner was entitled to suppression. Also, the record reflects that the attorney
fully discussed with the petitioner his rights and options relative to the sentencing
agreement.
The petitioner also contends in his brief that there were other problems at
his trial relative to improper vouching by the state in its closing argument, to the jury’s
exposure to his prior record, and to the use of hearsay evidence of guilt. However, we
6 view the closing argument and the reference to the defendant having been in jail to be
harmless. The hearsay about which the petitioner complains was admissible because it
consisted of his own statements to other witnesses. In sum, we conclude that the
record shows that the petitioner received the effective assistance of counsel.
Relative to the sentencing agreement, the transcript of the sentencing
hearing belies the petitioner’s claim that he was unaware of the fact that he was giving
up the right to appeal his conviction by accepting an effective sentence of thirty years.
The record justifies the conclusion that the defendant knowingly, understandingly, and
voluntarily waived his rights to a motion for a new trial and appellate review of his
convictions in exchange for the sentences he received.
In consideration of the foregoing and the record as a whole, the judgment
of the trial court is affirmed.
____________________________ Joseph M. Tipton, Judge
CONCUR:
____________________________ Gary R. Wade, Presiding Judge
____________________________ Thomas T. Woodall, Judge