William H. Horton v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 13, 1999
• Docket: 01C01-9704-CR-00132
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JULY 1999 SESSION October 13, 1999

Cecil Crowson, Jr. Appellate Court Clerk WILLIAM H. HORTON, * C.C.A. # 01C01-9704-CR-00132

Appellant, * DAVIDSON COUNTY

VS. * Honorable Seth Norman, Judge

STATE OF TENNESSEE, * (Post-Conviction Relief Denied)

Appellee. *

FOR THE APPELLANT: FOR THE APPELLEE:

MICHAEL J. FLANAGAN PAUL G. SUMMERS 95 White Bridge Road, Suite 208 Attorney General & Reporter Nashville, TN 37205 ELIZABETH T. RYAN 425 Fifth Avenue North Nashville, TN 37243

VICTOR S. (TORRY) JOHNSON III District Attorney General

JOHN C. ZIMMERMAN Assistant District Attorney Washington Square 222 Second Avenue North Nashville, TN 37201

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIAMS, Judge OPINION

The petitioner, William H. Horton, appeals the trial court’s denial of his

petition for post-conviction relief. The petitioner contends that he received

ineffective assistance of counsel at trial and on direct appeal, as well as

prosecutorial misconduct. After careful review, we AFFIRM the judgment of the

trial court.

Procedural History

On November 10, 1992, a Davidson County jury convicted the petitioner

of possession for resale of over 26 grams of cocaine. He was sentenced to the

Department of Correction for 21 years as a Range III persistent offender. His

direct appeal from that conviction and sentence was affirmed. See State v.

William Howard Horton, Davidson County, No. 01C01-9312-CR-00435 (Tenn.

Crim. App., filed October 6, 1994), app. perm. appeal denied January 30, 1995.

On August 4, 1995, the petitioner filed this pro se petition. After appointment of

counsel, an amended uncounseled petition, two judge’s recusals, and two

hearings, the final order from which this appeal is taken was entered September

9, 1998.

BACKGROUND

Dennis Hughes represented the petitioner on the charges which are the

basis of this appeal. The post-conviction court considered all pleadings filed by

petitioner’s counsel, the trial transcript with the exhibits, the transcript from the

January 24, 1996 post-conviction evidentiary hearing, and the testimony

presented on September 9, 1998, in reaching its judgment. The witnesses

testifying at both hearings were the petitioner; Dennis Hughes, the petitioner’s

attorney; John Zimmerman, prosecuting attorney; and Terry J. Canady,

appointed counsel for petitioner’s direct appeal. In its judgment, the trial court

made several pertinent findings:

-2- 1. Dennis Hughes was retained counsel for the petitioner at all times pertinent to the issue of ineffective assistance of counsel, both at trial and on appeal.

2. The state offered the defendant an offer of an eight (8) year sentence if the defendant would plead guilty on the first settlement day prior to trial.

3. That offer could not be accepted by the defendant because he had voluntarily left the courthouse.

4. The petitioner did not wish to accept any offer made by the state and wished to force the state to try him.

5. The petitioner apparently had some belief that the informant necessary to the state’s case would not show up for trial.

6. The petitioner’s trial counsel did everything he could to see that the petitioner received the most favorable plea bargain arrangement, yet he did not get the cooperation necessary from his client.

7. The petitioner was well aware of the plea bargain offer, possibly even prior to leaving the courthouse when it was originally made, but regardless of whether the defendant was aware of the offer prior to leaving the courthouse, the record is clear that the petitioner was well aware of the offer and of subsequent offers and rejected all of them.

ANALYSIS

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

conclusive on appeal unless the evidence preponderates otherwise. See Butler

v. State, 789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334,

341 (Tenn. Crim. App. 1995). 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. See Henley v.

State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147

(Tenn. Crim. App. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App.

1996). This Court may not reweigh or reevaluate the evidence, nor substitute its

inferences for those drawn by the trial judge. See Henley, 960 S.W.2d at 578-

79; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v.

State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerning the

-3- credibility of witnesses and the weight and value to be given to their testimony

are resolved by the trial court, not this Court. See Henley, 960 S.W.2d at 579;

Black, 794 S.W.2d at 755. The burden of establishing that the evidence

preponderates otherwise is on the petitioner. See Henley, 960 S.W.2d at 579;

Black, 794 S.W.2d at 755.

Having reviewed the record, we conclude that the evidence does not

preponderate against the findings of the trial court. The trial court’s findings are

consistent with the testimony of Dennis Hughes and the prosecuting attorney.

The petitioner has failed to demonstrate otherwise. Therefore, we deny the

petitioner’s claims of ineffective assistance and prosecutorial misconduct.

CONCLUSION

Accordingly, we AFFIRM the trial court’s order denying post-conviction

relief.

_____________________________ JOHN EVERETT W ILLIAMS, Judge

CONCUR:

______________________________ JOSEPH M. TIPTON, Judge

_______________________________ JAMES CURWOOD WITT, JR., Judge

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