IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1997 SESSION
FILED
March 27, 2008
Cecil Crowson, Jr.
Appellate Court Clerk
DEVITO S. POLK )
) C.C.A. No. 02C01-9602-CR-00065
Appellant, )
) Shelby County
V. )
) Honorable Bernie Weinman, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee.
FOR THE APPELLANT: FOR THE APPELLEE:
A C Wharton Charles W. Burson
Shelby Co. Public Defender Attorney General & Reporter
Diane Thackery M. Allison Thompson
Assistant Public Defender Counsel for the State
201 Poplar, Second Floor 450 James Robertson Parkway
Memphis, TN 38103 Nashville, TN 37243-0493
Edward G. Thompson John W. Pierotti
Assistant Public Defender District Attorney General
212 Adams Street
Memphis, TN 38103 Reginald R. Henderson
Asst. Dist. Attorney General
201 Poplar, Third Floor
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Devito Polk, pled guilty to second degree murder1 and was
sentenced to 35 years as a Multiple Range II offender. His sentence was to be
served concurrently with seven pending aggravated robbery charges. He,
thereafter, filed a post-conviction petition alleging ineffective assistance of
counsel and an unknowing and involuntary plea. He appeals the denial of the
petition. He raises the following issues for our review: (1) whether he knowingly
and intelligently entered his plea of guilty; and (2) whether he received
ineffective assistance of counsel. We affirm.
I
The appellant first alleges that he would not have entered a guilty plea
had the trial judge advised him of his right against self-incrimination. He claims
he was confused and did not intentionally waive a known right. The record
before us does not contain a transcript of the hearing at which the guilty plea was
entered. This Court is one of review and cannot properly address this issue
without a transcript of the proceeding. The appellant is responsible for preparing
a transcript containing an accurate and complete account of what transpired with
respect to those issues that form the basis of his appeal. Tenn. R. App. P. 24(b).
In failing to do so, the appellant has waived this issue.
II
The appellant next contends that he received ineffective assistance of
counsel. In support of this claim the appellant contends that his trial counsel
was ineffective by failing to: (1) effectively communicate with him regarding the
status of pending charges; (2) investigate his case; and (3) keep him informed
about status of his appeal on a robbery conviction. He alleges that because of
his counsel's ineffectiveness, he felt that he had no choice but to plead guilty.
1
Appellant was indicted originally for capital murder. He also had prior felony convictions on
his record.
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The appropriate test for determining whether counsel provided effective
assistance at trial is whether his or her performance was within the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930 (Tenn. 1975). Appellant must establish by a preponderance of the
evidence that: (1) the services rendered or the advice given by counsel fell
below "the range of competence demanded of attorneys in criminal cases," and
(2) but for counsel's errors, he would not have pled guilty and would have
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985); Porterfield v.
Tennessee, 897 S.W.2d 672, 677-78 (Tenn. 1995).
The burden of proving ineffective assistance of counsel is not sustained
by the appellant's uncorroborated testimony when the judgment is regular on its
face and entitled to a presumption of validity. Morgan v. State, 445 S.W.2d 477
(Tenn. Crim. App. 1969). Furthermore, the findings of fact of the post-conviction
hearing judge are conclusive on appeal unless the evidence preponderates
against the judgment. Brooks v. State, 756 S.W.2d 288 (Tenn. Crim. App.
1990).
The appellant's allegation consists of his own uncorroborated testimony.
The post-conviction hearing judge resolved conflicting testimony in favor of the
appellant's trial counsel and found that he received adequate representation
under the law. We agree.
Not only do we find this issue without merit, it appears from the record that
the appellant's trial counsel managed to negotiate a very favorable plea
agreement. The dismissal of the appellant's petition is affirmed.
__________________________
PAUL G. SUMMERS, Judge
CONCUR:
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__________________________
JOE B. JONES, Presiding Judge
__________________________
DAVID G. HAYES, Judge
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