Marlon R. Jackson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 8, 2001

MARLON R. JACKSON v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County
No. P22511 James C. Beasley, Jr., Judge

No. W2000-01887-CCA-R3-PC - Filed May 31, 2001

The petitioner filed a pro se petition for post-conviction relief, later amended by appointed counsel,
claiming that his 1999 pleas of guilty in the Shelby County Criminal Court were involuntary and that
he received ineffective assistance of counsel. Following a hearing, the post-conviction court denied
relief, and the petitioner timely appealed, raising the same two issues. We affirm the judgments of
the trial court dismissing the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which L. TERRY LAFFERTY, SR.J., joined.
DAVID H. WELLES, J., Not Participating.

Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Marlon R. Jackson.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul Goodman, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

The petitioner, Marlon R. Jackson, entered pleas of guilty on October 11, 1999, in the Shelby
County Criminal Court to three counts of aggravated burglary and one count of especially aggravated
robbery. He was sentenced, as a Range II offender, to ten years in each burglary case and twenty
years in the robbery case, all sentences to be served concurrently.

On January 25, 2000, the petitioner filed a pro se petition for post-conviction relief, claiming
that the pleas were involuntary because he had suffered a nervous breakdown prior to their entry and
that his then counsel had been ineffective in a number of areas. Following a hearing on the petition,
the post-conviction court denied relief. The petitioner timely appealed, presenting the same issues
on appeal.
 DISCUSSION

The transcript of the petitioner’s pleas of guilty sets out the circumstances of the charges
against the petitioner as well as of the pleas themselves:

This cause came on to be heard and was heard on the 11th day of
October, 1999, before the Honorable Joseph B. Dailey, Judge,
holding the Criminal Court for Shelby County, at Memphis,
Tennessee, and the following proceedings were had to wit:

(This case was set for trial and a motion in limine was heard
prior to the guilty plea being entered, not made a part of this
transcript).

THE COURT: I’ll deny your motion in limine.

MR. JOHNSON: Thank you, Your Honor.

THE COURT: I see that there’s been a notice of intent and notice of
impeachment filed in this matter, do you want to have a Morgan
hearing at this point, I assume, or review these matters?

MR. JOHNSON: Your Honor, we can wait until after the state’s
proof.

MR. BYER: Judge, just as a matter of clean-up, Your Honor, I know
the Court will have that on occasion in four plea agreements after the
fact based on the defendant’s understanding at the time so I’d like to
be certain that we have a clear understanding.

This man’s before the Court on four different indictments. Three
of which are aggravated burglary, one of which is a criminal attempt
aggravated robbery. His plea up until today has been twenty years to
resolve all of those cases. His record will reflect that he is high-end,
range II, and it is the state’s intention today that if we go forward in
trial, after today, once we begin the trial, this man will have no offer
and the twenty year offer will be revoked and we will, at some point,
perhaps, reconsider when we get beyond thirty years if, in fact, we do.

But, until we get to thirty years, after we start trial on this matter,
I’d like the Court to accept that, at this point, everybody knows the
offer’s revoked.

-2-
THE COURT: I assume you’ve conveyed that to your client, Mr.
Johnson?

MR. JOHNSON: Yes, Your Honor.

(A brief pause was had in the proceedings.)

Your Honor, would you indulge me for sixty seconds in the back?

THE COURT: That’s fine. Take a recess.

(Whereupon, a recess was had, after which time the following
proceedings were had:)

THE COURT: Is this matter resolved?

MR. JOHNSON: Yes, Your Honor, I’m filling the paperwork out
now. I’m sorry, I really didn’t expect this to happen.

THE COURT: Do you need a few more minutes to finish that up?

MR. JOHNSON: Yes, Your Honor.

THE COURT: We’ll stand in recess.

(Whereupon, a recess was had, after which time the following
proceedings were had, to-wit:)

MR. BYER: Your Honor, in indictment numbers 98-10209, 98-
10210, 98-10211 and 98-10929, in the first three indictments he’s
charged with three separate incidences of aggravated burglary and in
the last one he’s charged with criminal attempt, to-wit; especially
aggravated robbery.

Should Your Honor accept his plea of guilt to each of the
aggravated burglaries, it’s the state’s recommendation that he pay no
fine and serve ten years at the state penitentiary. All that time
concurrent.

On the criminal attempt, to-wit; especially aggravated robbery,
it’s the state’s recommendation he be sentenced to serve twenty years
at the state penitentiary. That concurrent with the three burglaries, for
a total time of twenty years.

-3-
THE COURT: What range?

MR. BYER: All that, range II, Your Honor.

BAILIFF HALL: Mr. Jackson step around and come forward.

MARLON JACKSON was called, sworn, examined and testified as
follows:

EXAMINATION BY THE COURT:

Q. All right. Mr. Jackson, do you understand that you don’t have to
plead guilty, you have the right, of course, to plead not guilty and go
to trial, today, in front of the jury. The jurors are outside of the
courtroom as we speak. You’d be represented at that trial by your
attorney, Mr. Johnson. He could cross-examine the state’s witnesses.
You could subpoena your own witnesses. You could testify on your
own behalf, although you would not be required to. You could appeal
those cases if you loss [sic]. You’re giving up all of your pre-trial,
trial and appellate rights be [sic] entering these guilty pleas, you
understand that?

A. Yes.

Q. Are you pleading guilty freely and voluntarily?

A. Yes.

Q. Have you discussed your cases, thoroughly, with Mr. Johnson,
your attorney?

A. Yes.

Q. Have you reviewed this paperwork that I have in my hand, and
specifically – first, let me ask you – how far did you go in school?

A. Eleventh.

Q. So you can read and write without any problem?

A. Uh-uh.

Q. Is that your signature at the bottom of that document, (indicating)?

-4-
A. Yes.

Q. Did you review that document?

A. Yes.

Q. Do you have any questions about anything that’s contained
therein?

A. No.

Q. Do you have any questions, at all, about any aspect of this
procedure?

A. No.

Q. All right. Step back down.

BAILIFF HALL: Return to your seat, behind your attorney.

(Defendant complied.)

MR. BYER: Judge, had we gone to trial, first, beginning with the
indictment ending in 0-9, the state’s proof would be that while
researching various pawn transactions made by Marlon Jackson, a
Sergeant Bolt located a pawn he had made at Cash America Pawn
Number 12, on 12/3/97, where a Sharp, 19-inch color television,
serial number 4-2-7-1-9-9 was pawned. Home address listed for
Marlon Jackson on the pawn ticket was 5579 Crape Myrtle.

Sergeant Bolt researched all burglaries which occurred within a
mile radius of that address up to one month prior to the pawn date.

Sergeant Bolt located a residential burglary filed by a Ronald
Dodson of 5581 Crape Myrtle, which is next door to Mr. Jackson’s
listed home address.

On the many items listed as stolen by Mr. Dodson was a Sharp
television. Sergeant Bolt submitted a pawn shop recovery request to
Sergeant Wurling. They kept the television. Sergeant Wurling did
recover the television and under the original pawn card, both were
tagged as evidence.

-5-
 On 4/17/98, Sergeant Bolt asked for a fingerprint comparison and
the print from the pawn card came back to Marlon Jackson.

On 5/1/98, Sergeant Bolt contacted a Ronald Dodson. Was
unable to give a serial number for the television but described a
prominent crack located on the right front side where in fact he had
dropped the television on a prior occurrence.

When Sergeant Bolt went and looked at the tagged television the
pre-described crack was exactly as had been described.

With regards to the indictment ending in 1-0, on 3/17/98, between
8:50 and 10:10 a.m., Pamela Sparks residence, located at 2783 Senora
Drive was forcibly entered by prying open a sliding glass door.
Among the items stolen were several complete computer systems.

A neighbor witness, a Mary Hobinique (phonetically), observed
a male fitting this defendant’s description with three gold ear rings in
his left ear, driving an ‘89 Chevy Camaro, or Pontiac Trans-Am type
vehicle with T-top, parked at 2783 Senora with a male loading
computer assessories [sic] into the rear hatch-back.

That suspect information was included in a residential burglary
report. On 3/19 Officer Quinn observed a 1989 Pontiac Trans-Am
with T-top at Barbwood near Villawood, which matched the
suspect[’]s vehicle description.

After stopping the vehicle for traffic violations, Officer Quinn
found Marlon Jackson driving. He matched the physical description,
exactly, and he found in the back of that car, or observed in the back
of that car, computer keyboards. Marlon Jackson was arrested on that
case at that time.

In regards to the indictment ending in 1-1, the state’s proof would
be that while investigating Marlon Jackson, involving residential
burglaries, Sergeant Bolt noticed that he had made numerous, recent
pawn transactions. And one such transaction was a Cash American
Pawn Number 4, in which a 19-inch Zenith television was pawned.
Researching the burglary reports which were submitted on or about
that date, a residential burglary report of a home owned by Bernice
Brown at 5668 Los Gados Drive, number one, on 1/14/98, where her
residence was forcibly entered by removing a glass window and
among the items stolen was a Zenith television.

-6-
 Sergeant Bolt obtained one card of prints from the west side
bedroom window, which had marked as the likely point of entry.
When those prints were submitted they came back to match this
defendant, Marlon Jackson.

Had we gone to trial on those three matters we’d expect that
would be our proof. As to the criminal attempt, especially aggravated
robbery. On Thursday, June 19, 1997, at about 9:15 a.m. two males
entered the V. F. Pawn Shop located at 3261 North Watkins, owned
and operated by a James and Barbara Fenton.

One of the males asked Ms. Fenton to see wedding rings. The
males left, but indicated that they would return to purchase the
jewelry. Ms. Fenton saw the two males get into a small white vehicle
and a few minutes later Ms. Fenton left the business. Shortly
afterwards, the males returned and asked to see the same rings shown
earlier. One of the males pulled a handgun, pointed it at James
Fenton, demanded money. Mr. Fenton attempted to knock the
suspect[’]s weapon away, at which point the gun man fired, striking
Mr. Fenton three times. Mr. Fenton then attempted to retrieve his
own gun. The unarmed male alerted the gun man and more shots
were fired before the suspects left in a small white vehicle.

James Fenton was transported to the Med in critical condition.
Fingerprints were recovered by crime scene from the glass display
case where the males viewed the jewelry. Mr. Fenton was later
interviewed and indicated that that jewelry case was cleaned every
evening and no one had been in the business prior to the two males
that had come in that morning.

On April 30, 1998, investigators were notified that the prints
matched up with Marlon Jackson. May 16th Marlon Jackson was
interviewed and denied that he had ever been to that pawn shop or in
a pawn shop in that area of town.

Had we gone to trial we would expect that to be our proof. I’d
ask counsel to stipulate.

MR. JOHNSON: Your Honor, as to the three aggravated burglaries,
we would stipulate that those would have been the facts presented had
this matter gone to trial. As to the criminal attempt, especially
aggravated robbery, Your Honor, that’s basically been the stick up
and the hold up in this entire plea negotiations set on these cases.

-7-
 Your Honor, we would plead under Alford. My client denies this
and we’ve discussed this at length. If the state, frankly, did succeed
on two of these aggravated burglaries my client would be looking at
the same amount of time to which he’s pleading now, even if we were
successfully [sic] in defending the criminal attempt, especially
aggravated robbery and one of the aggravated burglaries, we’d still be
looking – my client would be looking at, basically, the same amount
of time that he’s pleading to today.

For those reasons, Your Honor, my client has always denied, all
along, about his complicity in the criminal attempt, especially
aggravated robbery. In light of all that, Your Honor, in light of the
facts that the state would have proceed[ed] today on the very
strongest case that they had, in light of all that we’d ask the Court to
accept the negotiated plea.

THE COURT: Stand up, Mr. Jackson.

(Defendant complied.)

I’ll accept your guilty plea as being freely and voluntarily entered.
To your plea of guilty to indictments 98-10209, 10 and 11, to the
offense of aggravated burglary in each of those cases, I find you
guilty, I fix your punishment in each case at confinement for ten years
as a range II offender.

And in cause number 98-10929 to the offense of criminal attempt,
to-wit; especially aggravated robbery, twenty years, range II, all to be
served concurrently with each other.

Step out.

ANALYSIS

The petitioner and his trial counsel were the only two witnesses testifying during the hearing
on the petition for post-conviction relief.

The petitioner testified that he had completed the eleventh grade and later received his GED.
He had been convicted in 1992 of one count of aggravated robbery and three counts of aggravated
burglary. He agreed with the prosecutor that this amounted to “significant experience in the
Criminal Courts.”

-8-
 The petitioner described his mental problems as “a slight mental nervous breakdown.” He
testified that his symptoms were paranoia, depression, hyperactiveness, and insomnia, and that he
was still suffering from these same problems. He said that although these problems had existed
before his arrest on the charges which are the subject of his post-conviction petition, he had not
sought any treatment for them and had not received treatment, prior to his arrest, for any mental
health problems. At the time of the hearing, he was incarcerated at the Northwest Correctional
Facility and was not then under a doctor’s care, nor was he taking any medication. He said that he
had been placed on Elavil approximately a week after his pleas of guilty.

As for his complaints against his trial counsel, the petitioner testified that counsel did not
visit him in the jail, although the petitioner asked that he do so; that he would provide no legal advice
other than that the petitioner should accept the State’s offer of guilty pleas; that he did no
investigative work; that he talked to no witnesses; and that he did not file a pro se motion which the
petitioner had prepared and sent to trial counsel for filing. He testified that he asked trial counsel
to provide him with a transcript of the preliminary hearing, but did not receive it. He said that this
transcript would have proven him innocent. The petitioner said that his trial counsel was not ready
for trial on the day that the first trial was set and that he refused to accept clothing for the trial which
the petitioner’s wife had brought several months before the trial date.

The petitioner amplified on some of these claims by testifying that he faulted his trial counsel
for not interviewing the State’s witnesses. He said that he had not given names of witnesses whom
he wanted to testify in his behalf other than his wife, who would have provided an alibi as to the
robbery charge. He said that he had not told his trial counsel what his defense was as to the burglary
cases. The petitioner prepared a motion for a speedy trial or to dismiss the charges and sent this to
his trial counsel, but counsel did not file it. He said that his trial counsel had not asked for his
explanation of having stolen merchandise in his car at the time of his arrest, and he had not
volunteered information about it. He wanted trial counsel to “investigate” the prosecution witnesses
on the robbery case, but he neither talked with trial counsel about the witnesses on the burglary cases
nor discussed any defense to them. He told trial counsel that he wanted to get the robbery case “out
of the way first and then tackle the burglaries.”

The petitioner testified that he pled guilty because trial counsel and a bailiff had taken him
into the hallway and “were urging [him] to take the time over and over again.”

The petitioner’s trial counsel testified that he had been employed as a Shelby County
Assistant Public Defender for approximately five years and had been trial counsel in forty to fifty
cases during that time. He said that the petitioner had neither done nor said anything which indicated
the need for a mental evaluation, and there was nothing in his background which indicated a need
for one to be done. He said that the petitioner was able to assist him in the trial preparation. The
petitioner told him the day the trial was set that he had a nervous breakdown, and counsel then
explained to the petitioner that the only issue in a mental evaluation would be the petitioner’s
competency. Counsel told the petitioner that it would be difficult to have such an evaluation since
the petitioner was not having trouble communicating. Nevertheless, on the day of trial, counsel did

-9-
ask that the petitioner be evaluated, and the request was denied by the trial court, as was his request
for a continuance.

Trial counsel responded to the other claims made by the petitioner as to ineffective assistance
of counsel. He said that the public defender’s office did not prepare transcripts of preliminary
hearings until the matter was actually set for trial. Although the petitioner wanted the robbery case
to be tried first, the prosecutor had elected to try the burglary charges, which had the best prosecution
proof, before trying the robbery case. As to the robbery case, he said that the petitioner’s fingerprints
were found at the scene, the testimony would be that the store’s counters were cleaned each night,
and that evidence, coupled with the petitioner’s statement that he had never been inside of the store,
would be the proof against him. He said that the petitioner’s wife had brought street clothes to his
office for a previous setting of the trial and that he had asked her to bring them back the next time
the trial was set because he did not have any place to keep them. He said that he did not remember
that the petitioner’s wife was going to provide an alibi for the robbery charge. He said that he filed
a discovery motion and a request for notice of the State’s intention to use evidence, although such
evidence was always given to him on the day of arraignment. He provided a copy of the discovery
he had received to the petitioner. No other motions were filed because there were no issues requiring
such motions. He did not respond to the State’s motion requesting notice of an alibi defense because
he did not have evidence to support such a defense. He did not file the pro se motion to dismiss
which the petitioner had prepared and sent to him because it was not his practice to file “frivolous
motions.” There was no legal basis for such a motion until, perhaps, the conclusion of the State’s
proof during the trial. He did not believe that it was necessary to request additional investigation as
to the robbery charge because he knew from the discovery what the State’s evidence was, and he did
not expect the case to come to trial any time soon. The petitioner had not told him of any proof
which he believed warranted an investigation and had not given him an explanation of how his
fingerprints came to be found at the scene of the robbery, after telling the police that he had never
been there. Trial counsel was prepared for the burglary trial on the day that trial was to begin.

As for the guilty pleas, he said that the decision to plead guilty was that of the petitioner. The
petitioner pled guilty reluctantly, but both of his options, to plead guilty or go to trial, were “bad.”
Counsel surmised that the problems in the cases may have resulted from the fact that the petitioner,
and others whom counsel had represented, were assigned to the major violators’ unit of the district
attorney general’s office, and, as a result, the guilty plea offers which they were then receiving bore
“no similarity to things they’ve been offered in the past.” He said that the sentence which the
petitioner had received as the result of the guilty pleas was about what he would have received had
he gone to trial and been convicted of two of the aggravated burglaries.

Following the evidentiary hearing on the post-conviction hearing, the court made the
following finds of fact and conclusions of law:

DECISION

-10-
BY THE COURT:

Well, I have reviewed the transcript of Mr. Jackson’s testimony
and I have reviewed the transcript of the Guilty Plea Proceedings, and
I have listened to the testimony of Mr. Johnson in here today.

This Court is of the opinion, after reviewing all of that, that this
is one of those circumstances in which Mr. Jackson unfortunately
finds himself as – and I think Mr. Johnson summed it up fairly well
– has been dealt with by the criminal justice system in the past and in
a way whether you want to call it leniently or not.

And especially in Mr. Jackson’s case his prior convictions were
as charged, but they were for three years, four years and eight years,
all run concurrently back in 1992. And because of his four prior
convictions when he comes in now with three aggravated burglaries
and an attempt to especially aggravated robbery, which is three C
felonies and a B felony he qualifies for extensively more time. And
when faced with that it’s an uncomfortable predicament.

I’m satisfied from the testimony from Mr. Jackson that he gave at
the last hearing that he didn’t have a defense to the aggravated
burglary cases, that his chief argument and his chief attack wanted to
be on the more serious attempted especially aggravated robbery
because that was the basis of the 20 year offer.

If he said that he had a defense to that or that he didn’t do it, he
didn’t want to plea to it, he wanted to go to trial on that, that was his
emphasis, that was his issues with Mr. Johnson, those were the areas
he wanted explored, those were the areas he wanted attacked, but
there was no defense to the aggravated burglaries. And it appears that
that was his position then, that’s still his position.

So the only area at the question was the attempt to especially
aggravated robbery. Well, based on the testimony the case that was
going to be tried, the first three cases that were going to be tried were
the aggravated burglaries where there was a better than good
possibility that Mr. Jackson would have ended up with a total
sentence of very possibly 30 years or higher, and then and only then
would the attempt to especially aggravated robbery have been tried.

As a result and frankly the State was in the bargaining position,
they had brought the Charges, they had the strongest cases, they were

-11-
going to try the strongest cases first, which is not what Mr. Jackson
wanted, it’s not what his lawyer wanted, but unfortunately they don’t
get to call the shots.

I’m satisfied that Mr. Johnson is a good attorney, does his job,
properly investigates his cases, properly represents his clients. I know
how much Mr. Johnson agonizes over these kinds of offers that he is
saddled with, and I know how individuals like Mr. Jackson feel when
their lawyer tells them your offer is 20 years and there’s nothing I can
do about it – they want to blame the lawyer. The lawyer is the bearer
of bad tidings and he’s the one who gets saddled with the attack.

I feel that on October 11th of 1999 Mr. Jackson didn’t like his
deal, he didn’t like his plea, he didn’t like his offer but he felt it was
in his best interest. That’s the kind of guilty plea he entered, that’s
what he told Judge Daley “I didn’t do this but it’s in my best interest,
it’s what I want to do, I’ve conferred with my lawyer, I have
examined the pros and cons, I know what I’ve got to lose, I know
what I’ve got to gain, I’ve got 20 years in the hand, I don’t like it but
it’s the best deal I’m going to get and it’s what I’m going to plead
guilty to.” In effect that’s what he told Judge Daley. They entered
this plea.

No question as to the aggravated burglaries, but as to the attempt
to especially aggravated robbery it was an Alfred [sic] Plea, that issue
was explained to Mr. Jackson, he understood it, he still denied his
guilt in that case but he said it was in his best interest to take the deal
that he was offered, and that’s what he did.

It’s unfortunate Mr. Jackson finds himself in that position, but I
don’t find any basis to indicate to me that Mr. Jackson didn’t fully
understand what he was doing, entered this guilty plea freely and
voluntarily with full knowledge of the amount of punishment that he
was getting, the full knowledge of what was involved, that Mr.
Johnson had represented him up to that point to the fullest extent
available, that he represented him properly under the guidelines that
was set out in the law, that had he been able to try the case I’m
convinced Mr. Johnson would have defended Mr. Jackson with every
fiber of his body and would have done whatever he could.

But under the circumstances Mr. Marlon Jackson found himself
backed into an unfortunate corner based upon his own actions, and
the 20 year offer that was put before him may have not been to his

-12-
 liking but it was something he fully acknowledged and understood he
knew what he was doing when he accepted it. And that’s the criteria.

And for those reasons I’m going to find that Mr. Jackson did
freely and voluntarily enter his guilty plea, knew what he was doing,
knew the consequences of his actions, was fully advised of his rights,
not only by Mr. Johnson but by Judge Daley, and as a result I’m going
to find that the Petition for Post-Conviction Relief is not well taken
and should be denied.

Mr. Jackson, you have a right to appeal the ruling of this Court,
you have to perfect that appeal within 30 days. If you cannot afford
a lawyer to represent you on your appeal I’ll be glad to appoint Mr.
Gilchrist to represent you on that appeal. But I need to advise you
that you have to perfect your appeal within 30 days, sir. Do you
understand that?

MARLON JACKSON: Yes, uh-huh (nodded head affirmatively).

THE COURT: Alright [sic]. You may be seated.

MR. GILCHRIST: Your Honor, if I may accept that appointment.

THE COURT: Alright [sic], sir, I’ll appoint you for purposes of
appeal.

MR. GILCHRIST: Thank Your Honor. Also I’d like to pass forward
to Your Honor an Order having Mr. Jackson sent back as soon as
possible, I believe his ride’s here.

THE COURT: Alright [sic].

We will now consider the claims set out in the petition for post-conviction relief.

-13-
 SCOPE OF REVIEW

The findings of fact of the post-conviction court are conclusive on appeal, unless the
evidence preponderates against the findings, see State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)
(citing State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)), and the appellate court cannot “reweigh
or reevaluate” the evidence. Id.; see also Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997), cert.
denied, 525 U.S. 830, 119 S. Ct. 82, 142 L. Ed. 2d 64 (1998). However, the appellate court’s review
of the application of the law to the facts is de novo, without a presumption of correctness. See
Burns, 6 S.W.3d at 461; Harries v. State, 958 S.W.2d 799, 802 (Tenn. Crim. App. 1997).
Additionally, issues as to whether counsel was ineffective and whether prejudice resulted are mixed
questions of law and fact. Burns, 6 S.W.3d at 461 (citing Goad v. State, 938 S.W.2d 363 (Tenn.
1996)).

In elaborating upon the requirement that an accused is entitled to constitutionally effective
assistance of counsel, the United States Supreme Court, in Strickland v. Washington, 466 U.S. 668,
686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), stated that the “benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just result.” The
Tennessee Supreme Court has often recited the two-prong test set forth in Strickland to be applied
to ineffective assistance claims:

To prevail on a claim of ineffective counsel in this proceeding, the
appellant must prove by a preponderance of the evidence that the
advice given or services rendered by his counsel fell below the range
of competence demanded of attorneys in criminal cases. Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975). He must also demonstrate
prejudice by showing a reasonable probability that but for counsels'
error, the result of the trial proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674 (1984); Goad v. State, 938 S.W.2d 363, 369 (Tenn.
1996).

King v. State, 989 S.W.2d 319, 330 (Tenn. 1999).

Specifically, the courts have been counseled against overdependence on hindsight in
assessing counsel’s performance. In fact, courts must be “highly deferential”:

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 counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range

-14-
 of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action “might be considered sound trial strategy.” See
Michel v. Louisiana, 350 U.S., at 101, 76 S. Ct., at 164.

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982) (holding that counsel should not be measured by “20-20 hindsight”). Appellate courts must
recognize that “[t]here are countless ways to provide effective assistance in any given case” and that
“the best criminal defense attorneys would not defend a particular client in the same way.”
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

Further, the reasonableness of counsel’s decision not to investigate possible defenses is
affected and guided by the client’s own statements or actions:

In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.

The reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or actions.

Burns, 6 S.W.3d at 462 (citing Strickland, 466 U.S. at 691, 104 S. Ct. at 2066).

The Strickland court explained that the need to further investigate a particular line of defense
“may be considerably diminished or eliminated altogether,” depending upon information supplied
by the client to counsel. Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. “In short, inquiry into
counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s
investigation decisions, just as it may be critical to a proper assessment of counsel’s other litigation
decisions.” Id.

Additionally, since the petitioner entered pleas of guilty as to the charges against him, there
are additional required showings which he failed to make. “In cases involving a guilty plea or plea
of nolo contendere, the petitioner must show ‘prejudice’ by demonstrating that, but for counsel's
errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks v. State,
983 S.W.2d 240, 246 (Tenn. Crim. App. 1998) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct.
366, 370, 88 L. Ed. 2d 203 (1985), and Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App.
1991)). Hill explains the showing of prejudice which must be made by a petitioner who entered a
guilty plea:

In many guilty plea cases, the “prejudice” inquiry will closely
resemble the inquiry engaged in by courts reviewing ineffective-
assistance challenges to convictions obtained through a trial. For
example, where the alleged error of counsel is a failure to investigate

-15-
 or discover potentially exculpatory evidence, the determination
whether the error “prejudiced” the defendant by causing him to plead
guilty rather than go to trial will depend on the likelihood that
discovery of the evidence would have led counsel to change his
recommendation as to the plea. This assessment, in turn, will depend
in large part on a prediction whether the evidence likely would have
changed the outcome of a trial.

Hill, 474 U.S. at 59, 106 S. Ct. at 370.

Voluntariness of Pleas of Guilty

In a nutshell, the situation presented here is that the petitioner, who had previous substantial
experience in the criminal process as the result of prior serious felony convictions, was represented
by a well experienced assistant public defender faced with strong proof of guilt against his client in
at least three of the four cases against him. Trial counsel was then presented on the day of trial with
the claim by his client, who had no prior history of mental problems of any sort and had not
evidenced any such problems, that the trial be reset so that the client could receive a mental
evaluation. The petitioner claims that his plea was involuntary because of the mental problems
which he later described as “a slight mental nervous breakdown.”

The test which we employ, in ascertaining the voluntariness of a guilty plea, was set out by
our supreme court in Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Brady v.
United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472, 25 L. Ed. 2d 747 (1970)):

[A] plea of guilty by one fully aware of the direct consequences,
including the actual value of any commitments made to him by the
court, prosecutor, or his own counsel, must stand unless induced by
threats (or promises to discontinue improper harassment),
misrepresentation (including unfulfilled or unfulfillable promises), or
perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor’s business (e.g. bribes).

Applying this standard, we cannot conclude that the trial court erred in determining that the
petitioner’s pleas of guilty were not free and voluntary. The petitioner has presented no evidence,
save his unsupported claim of a nervous breakdown just before the first trial setting, of any mental
problems or of an inability to understand and participate in the trial process. Trial counsel had not
noticed any communication problem with the petitioner, and the guilty plea proceedings bear this
out. Accordingly, we concur with the finding of the post-conviction court that the petitioner has
failed to show that his pleas of guilty were not free and voluntary.

-16-
 Ineffective Assistance of Counsel

As to the petitioner’s second claim, our analysis is similar. The petitioner failed to show how
any of the alleged deficiencies of trial counsel affected the outcome of the proceedings. In fact, the
prosecution had elected to proceed first in a case in which the proof was overwhelming. His trial
counsel’s problems in trying to explain this proof to a jury would have been compounded by the fact
that the petitioner had several prior serious felony convictions for similar offenses. The petitioner
has failed to show how, even if trial counsel had done exactly what he claims he wanted trial counsel
to do, it would have improved the predicament he was in. Likewise, the petitioner has failed to show
that the alleged deficiencies affected his decision to plead guilty. Accordingly, we concur with the
post-conviction court that the petitioner has failed to show that his trial counsel was ineffective.

CONCLUSION

Based upon the foregoing authorities and analysis, we affirm the judgment of the post-
conviction court dismissing the petition for post-conviction relief.

___________________________________
ALAN E. GLENN, JUDGE

-17-