IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBE R SESSION, 1998
WALTER JAMES WILSON,
Appe llant, ) ) ) FILED C.C.A. NO. 02C01-9710-CR-00412
) December 10, 1998 ) SHELBY COUNTY VS. ) Cecil W. Crowson ) HON. JOSEPH B. BROWN, JR. Clerk Appellate Court 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:
MARY CAY JERMANN JOHN KNOX WALKUP P.O. Box 3410 Attorney General and Reporter Memphis, TN 38173 DOUGLAS D. HIMES Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493
WILLIAM GIBBONS District Attorney General
MICHAEL H. LEAVITT Assistant District Attorney General Criminal Justice Complex, Suite 301 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION The Petitioner, W alter W ilson, was convicted of second degree murder
based upon a guilty plea. H e now appeals as of right the trial court’s denial of
post-conviction relief, pursu ant to Tennessee Code Annotated § 40-30-216 and
Rule 3(b) of the Tennessee Rules of Appellate Procedure. We affirm the
judgm ent of the tria l court.
Petitioner presents one issue on appeal: whether his guilty plea was
know ingly and voluntarily made with the effective ass istanc e of co unse l.1
Specifically, Petitioner contends that his attorney failed to explain sentencing
ranges and that she fa iled to inform him that had he been convicted at trial, he
could have been sentenced as a Range I offender, rather than a R ange II
offender. Petition er also conte nds th at his a ttorney failed to adeq uately
investigate Petitioner’s men tal state prior to the guilty plea proceeding. He
argues that his co unsel sh ould ha ve reque sted a m ental eva luation for the
purpos e of deter mining his com petenc y.
Petitioner was indicted by the Shelby County Grand Jury on a charge of
first degree murder. On September 11, 1995, Petitioner pleaded guilty to second
degree murder and received a twenty-eight year sentence as a multiple Range
II offender. Petitioner filed a pro se petition for post-conviction relief on May 31,
1 In his brief, Petitioner actually presents three issues for our review: (1) whether Petitioner’s guilty plea was knowingly and voluntarily made; (2) whether Petitioner’s guilty plea was made with ineffective assistance of counsel; and (3) whether Petitioner was prejudiced by his attorney’s failure to request an independent medical evaluation to determine his capacity to understand and knowingly enter a guilty plea. However, because we believe that these three issues are interrelated, we have consolidated them into one issue for purposes of this opinion.
-2- 1996. Following appoin tment o f counse l, amended petitions were filed on
October 4, 1996 and October 25 , 1996. Eviden tiary hearings were conducted on
July 17, 1997, September 18, 1997, and September 22, 1997. The trial court
denied Petitioner’s petition for post-conviction relief by written order filed
Septem ber 24, 1 997.
At the post-conviction hearing, Petitioner’s mother testified that Petitioner
was beaten while living in Atlanta in the early 1980s and tha t upon h is return to
Memphis, he acted “strange .” She also testified that while living in Memphis,
Petitioner was hit on the head with a shovel, a brick, and a beer bottle. She
reported that on one occasion in 1991 or 1992, Petitioner was found lying drunk
in the mid dle of a stre et in Mem phis.
Both Petitioner’s mother and his step-mother testified that Petitioner
attempted to kill him self follo wing th e dea th of his grandmother in 1983.
Howeve r, neither Petitioner’s mothe r nor his ste p-moth er were a ble to articu late
any specific mental conditions from which Petitioner suffered, and neither of them
told Petitioner’s attorney about the mental problems they each claimed Petitioner
experienced.
Petitioner also testified at the post-conviction hearing. He stated that he
attempted suicide after the death of his grandmother and that he had
contemplated attempting suicide w hile in jail charg ed with m urder. He claimed
to have told his trial counsel about his suicide attempt. In addition, he testified
that he was hit with a beer bottle and shovel four years “or longer” before the
murder. He also reported that he suffers from headaches and depression.
-3- With regard to his guilty plea, Petitioner maintained that he remembered
pleading guilty but did not understand what was meant by “twenty-eight years at
thirty-five percent,” the sentence which he received. He testified that his attorney
did not explain the sentencing range for second degree murder. He also testified
that his attorney failed to explain the difference between a Range I and Range
II offender.
Petitioner testified that he understood that by pleading guilty, he was
waiving his right to trial; and he stated that he plead ed gu ilty beca use h is attorney
told him that unless he did so, he would “get life [imprisonment].” He stated that
he wanted to plead guilty at th e time of his plea and that he understood he was
pleading gu ilty to second degre e murde r.
Betty Tho mas , Petition er’s atto rney a nd an assista nt pub lic defender, was
called to testify at the hearing conducted on September 18, 1997. She stated
that she explained the plea agreement to Petitioner, including the sentencing
range, and she reported that Petitioner indicated to her that he understood. She
stated that Petitioner was interested in avoiding trial and wanted to dispose of the
case. She testified that she filed thirty-two or thirty-three motions in his case and
that she visited him in jail several times.
She further testified that she never observed any behavior on the part of
Petitio ner to cause her to question his mental competency. She stated that
Petitioner specifically told her he did not suffer from mental problems or take
mental health medications. She also stated that Petitioner’s family never
informed her of any mental problems from which Petitioner suffered, despite a
-4- questionna ire adm inistere d by he r office to Petition er and his fam ily to gath er
background information on Petitioner, including informa tion abou t menta l health
and head injuries. She reported that she was unaware that Petitioner had
attempted suicide or been hit on the head.
In determining whether counsel provided effective assistance at trial, the
Court must decide whether counsel’s performance was within the range of
competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523
S.W.2d 930, 93 6 (Ten n. 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 she was not functioning as counsel as guaranteed under
the Sixth Amendment and that the deficie nt representation prejudiced the
petitioner, resulting in a failure to produce a reliable res ult. Strickland v.
Washington, 466 U.S. 66 8, 687, (1 984); Coop er v. State , 849 S.W.2d 744, 747
(Tenn. 1993); Butler v. State, 789 S.W .2d 898 , 899 (T enn. 19 90). To satisfy the
second prong, th e petitione r must s how a re asona ble prob ability that, but for
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
SEPTEMBE R SESSION, 1998
WALTER JAMES WILSON,
Appe llant, ) ) ) FILED C.C.A. NO. 02C01-9710-CR-00412
) December 10, 1998 ) SHELBY COUNTY VS. ) Cecil W. Crowson ) HON. JOSEPH B. BROWN, JR. Clerk Appellate Court 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:
MARY CAY JERMANN JOHN KNOX WALKUP P.O. Box 3410 Attorney General and Reporter Memphis, TN 38173 DOUGLAS D. HIMES Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493
WILLIAM GIBBONS District Attorney General
MICHAEL H. LEAVITT Assistant District Attorney General Criminal Justice Complex, Suite 301 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION The Petitioner, W alter W ilson, was convicted of second degree murder
based upon a guilty plea. H e now appeals as of right the trial court’s denial of
post-conviction relief, pursu ant to Tennessee Code Annotated § 40-30-216 and
Rule 3(b) of the Tennessee Rules of Appellate Procedure. We affirm the
judgm ent of the tria l court.
Petitioner presents one issue on appeal: whether his guilty plea was
know ingly and voluntarily made with the effective ass istanc e of co unse l.1
Specifically, Petitioner contends that his attorney failed to explain sentencing
ranges and that she fa iled to inform him that had he been convicted at trial, he
could have been sentenced as a Range I offender, rather than a R ange II
offender. Petition er also conte nds th at his a ttorney failed to adeq uately
investigate Petitioner’s men tal state prior to the guilty plea proceeding. He
argues that his co unsel sh ould ha ve reque sted a m ental eva luation for the
purpos e of deter mining his com petenc y.
Petitioner was indicted by the Shelby County Grand Jury on a charge of
first degree murder. On September 11, 1995, Petitioner pleaded guilty to second
degree murder and received a twenty-eight year sentence as a multiple Range
II offender. Petitioner filed a pro se petition for post-conviction relief on May 31,
1 In his brief, Petitioner actually presents three issues for our review: (1) whether Petitioner’s guilty plea was knowingly and voluntarily made; (2) whether Petitioner’s guilty plea was made with ineffective assistance of counsel; and (3) whether Petitioner was prejudiced by his attorney’s failure to request an independent medical evaluation to determine his capacity to understand and knowingly enter a guilty plea. However, because we believe that these three issues are interrelated, we have consolidated them into one issue for purposes of this opinion.
-2- 1996. Following appoin tment o f counse l, amended petitions were filed on
October 4, 1996 and October 25 , 1996. Eviden tiary hearings were conducted on
July 17, 1997, September 18, 1997, and September 22, 1997. The trial court
denied Petitioner’s petition for post-conviction relief by written order filed
Septem ber 24, 1 997.
At the post-conviction hearing, Petitioner’s mother testified that Petitioner
was beaten while living in Atlanta in the early 1980s and tha t upon h is return to
Memphis, he acted “strange .” She also testified that while living in Memphis,
Petitioner was hit on the head with a shovel, a brick, and a beer bottle. She
reported that on one occasion in 1991 or 1992, Petitioner was found lying drunk
in the mid dle of a stre et in Mem phis.
Both Petitioner’s mother and his step-mother testified that Petitioner
attempted to kill him self follo wing th e dea th of his grandmother in 1983.
Howeve r, neither Petitioner’s mothe r nor his ste p-moth er were a ble to articu late
any specific mental conditions from which Petitioner suffered, and neither of them
told Petitioner’s attorney about the mental problems they each claimed Petitioner
experienced.
Petitioner also testified at the post-conviction hearing. He stated that he
attempted suicide after the death of his grandmother and that he had
contemplated attempting suicide w hile in jail charg ed with m urder. He claimed
to have told his trial counsel about his suicide attempt. In addition, he testified
that he was hit with a beer bottle and shovel four years “or longer” before the
murder. He also reported that he suffers from headaches and depression.
-3- With regard to his guilty plea, Petitioner maintained that he remembered
pleading guilty but did not understand what was meant by “twenty-eight years at
thirty-five percent,” the sentence which he received. He testified that his attorney
did not explain the sentencing range for second degree murder. He also testified
that his attorney failed to explain the difference between a Range I and Range
II offender.
Petitioner testified that he understood that by pleading guilty, he was
waiving his right to trial; and he stated that he plead ed gu ilty beca use h is attorney
told him that unless he did so, he would “get life [imprisonment].” He stated that
he wanted to plead guilty at th e time of his plea and that he understood he was
pleading gu ilty to second degre e murde r.
Betty Tho mas , Petition er’s atto rney a nd an assista nt pub lic defender, was
called to testify at the hearing conducted on September 18, 1997. She stated
that she explained the plea agreement to Petitioner, including the sentencing
range, and she reported that Petitioner indicated to her that he understood. She
stated that Petitioner was interested in avoiding trial and wanted to dispose of the
case. She testified that she filed thirty-two or thirty-three motions in his case and
that she visited him in jail several times.
She further testified that she never observed any behavior on the part of
Petitio ner to cause her to question his mental competency. She stated that
Petitioner specifically told her he did not suffer from mental problems or take
mental health medications. She also stated that Petitioner’s family never
informed her of any mental problems from which Petitioner suffered, despite a
-4- questionna ire adm inistere d by he r office to Petition er and his fam ily to gath er
background information on Petitioner, including informa tion abou t menta l health
and head injuries. She reported that she was unaware that Petitioner had
attempted suicide or been hit on the head.
In determining whether counsel provided effective assistance at trial, the
Court must decide whether counsel’s performance was within the range of
competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523
S.W.2d 930, 93 6 (Ten n. 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 she was not functioning as counsel as guaranteed under
the Sixth Amendment and that the deficie nt representation prejudiced the
petitioner, resulting in a failure to produce a reliable res ult. Strickland v.
Washington, 466 U.S. 66 8, 687, (1 984); Coop er v. State , 849 S.W.2d 744, 747
(Tenn. 1993); Butler v. State, 789 S.W .2d 898 , 899 (T enn. 19 90). To satisfy the
second prong, th e petitione r must s how a re asona ble prob ability that, but for
coun sel’s unreasonable error, the fact find er wou ld have had re ason able doubt
regarding petitioner’s guilt. Strickland, 466 S .W .2d at 6 95. Th is reas onab le
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 counsel’s actions, this Court should not use the
bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics.
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors shou ld
be judged at the time they were made in light of all facts and circumstances.
Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746.
-5- This two-part standa rd of meas uring ineffective assistance of counsel also
applies to claims arising out of the plea process. Hill v. Lockart, 474 U.S. 52
(1985); Banks ton v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). The
prejudice requirem ent is mo dified so th e petitione r “must s how that there is a
reaso nable probab ility that, but for counsel’s errors, he would not have pleaded
guilty and would h ave insisted on g oing to trial.” Hill, 474 U.S. at 59.
In reviewing the case now before us, we observe initially that the record on
appeal does not co ntain a transc ript of the guilty ple a proc eedin g. It is
Petition er’s duty to preserve an adequate record for purposes of appeal. Tenn.
R. App. P . 24(b); State v. B ennett, 798 S.W.2d 783, 790 (Tenn. Crim. App.
1990). Althou gh Pe titioner h as faile d to fully preserve for appeal the proceedings
in the court below, we believe that there is adequate inform ation in the record
before us, including excerpts from the guilty plea proceeding quoted by the post-
conviction judge, upon which to base our decision. We note, however, that our
decision is based solely upon the record before us.
In arguing ineffective assistance of counsel, Petitioner first claims that his
attorney failed to expla in sen tencin g rang es to h im. Ho weve r, it is clear from the
record that Petitioner was offered ample opportunities and sufficient information
to understand the terms o f his sente nce an d plea ag reeme nt. At the po st-
conviction hearing, Petitioner’s attorney testified that she met with Petitioner
several times before he ple aded . She s tated th at she did explain sentencing
ranges to him, including the difference between Range I and Range II and why
that was part of the plea agreement. She also testified tha t she exp lained to
-6- Petitioner what was meant by “twenty-eight years at thirty-five percent” and that
Petitioner indicated to her that he understood.
In addition, the trial judge clarified Pe titioner’s plea agreem ent before
Petitioner pleade d guilty. Petitioner admitted that he remembered the dialogue
in which he en gage d with th e trial jud ge be fore m aking his plea . Durin g this
discussion, Petitioner stated he understood that he was receiving a sentence of
twenty-eight years, that he would be classified as a multiple offender, and that he
must serve thirty-five percent of his sentence before being eligible for release
classification. The judge continued his questioning:
QUESTION: And you’re going to have to serve thirty-five percent before you’re eligible for release classification. You understand that? ANS WE R: Righ t. QUE STIO N: Do you understand that you may or may not be release d after thirty-five p ercent? ANSW ER: Huh? QUESTION: Do you un derstand tha t you may or m ay not be release d after thirty-five p ercent? ANS WE R: No, I did n’t under stand tha t. QUESTION: We ll, do you unde rstand that tha t’s the va rious c redit [sic] that you’ll receive during your incarceration. Do you understand that? That the Court can make no promises exactly when you’ll be release d. Do you unders tand tha t? ANSW ER: Oka y.
When Petitioner was called to testify at the post-conviction hearing, he was
asked wheth er his attorney explained sentencing ranges to him. He first stated
that he could not recall whether she had done so. However, under continued
questioning, he changed his mind and stated that she did not do so.
Petitioner also a rgues that his attorne y failed to adeq uately investigate his
mental condition . The record shows otherwise. Petitioner’s trial counsel testified
-7- that during her numerous visits with Petition er prior to his plea, she never had any
indication that Petitioner suffered mental problems. In fact, she testified that she
and a mitigation specialist from the Public Defender’s office asked Petitioner and
his family numerous and specific questions about Petitioner’s mental health, and
no one in forme d her o f any m ental h ealth p roblem s or ind icated that Pe titioner
might not be competent to enter his plea.
Petition er’s testimony that he “thought” he informed his attorne y of his
suicide attemp ts presen ts a classic q uestion o f fact for reso lution by the post-
conviction judge. Having heard testimony from both sides, the judge concluded
that Petitioner’s testimony was not reliable:
[The Petitioner] doesn’t appear to be any on e [sic] w ho’s m entally ill to the Court, just som ebod y who is manip ulative and attemp ting to play “Mr. P itiful,” at this point in tim e. He has been characterized by his family as being without the truth in him. An d it is clear by lo oking at the transcript that all of these things that he claims did not occur, were, in fact, discussed on the record. If not by his attorney, at least in his presence with the attorney contrib uting to that, along with the Court and the prosec ution. He says he doesn ’t remem ber. Now, no one tells Ms. Thomas these things. And he indicates that he never told her these things. So how is she su ppose [sic] to develop this intuitive sense that he’s got mental illnesses that wo uld rise to the level of either com petency [sic] or insan ity?
In conclusion, viewing the actions of Petitioner’s attorney in light of all facts
and circumstanc es at the time of h is plea, we cann ot find any deficiency in
Petition er’s represe ntation prio r to or during his guilty plea procee ding. Howeve r,
even assu ming that Pe titioner’s repres entatio n was ineffective, Petitioner has
failed to dem onstrate prejudice . Petition er has simp ly failed to show that ha d his
attorne y’s action s and advice been differen t, there is a reaso nable p robability that
-8- he would n ot have pleade d guilty and insisted on going to tria l. See Strickland,
466 U .S. at 690 ; Cooper, 849 S.W.2d at 746.
The judgment of the trial court is accordingly affirmed.
____________________________________ DAVID H. WELLES, JUDGE
CONCUR:
___________________________________ PAUL G. SUMMERS, JUDGE
___________________________________ JOE G. RILEY, JUDGE
-9-