IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
JANUARY SESSION, 2000
THOMAS FREEMAN, ) NO. M1999-00177-CCA-R3-PC
)
Appe llant, )
VS.
)
)
)
MARSHALL COUNTY FILED
) HON. CHARLES LEE February 25, 2000
STATE OF TENNESSEE, ) JUDGE
) Cecil Crowson, Jr.
Appellee. ) (Post Co nvict ion - Clas s C F elon y) Clerk
Appellate Court
FOR THE APPELLANT: FOR THE APPELLEE:
N. ANDY MYRICK, JR. PAUL G. SUMMERS
116 West Market Street Attorney General & Reporter
Fayetteville, TN 37334
TODD R. KELLEY
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
MIKE MCCOWEN
District Attorney General
WEAKLEY E. BARNARD
Assistant District Attorney
407 M C Courthouse
Lewisburg, TN 37091-3373
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On December 3, 1997, pursuant to a plea agreement, Thomas Freeman, the
defendant and ap pellant, ple d guilty in the Marshall County Circuit Court to five (5)
Class C felonies involving the sale, delivery and possession of schedule II drugs for
which he rece ived an e ffective twelve (12) year s entenc e. He filed a petition for
post-conviction relief in November of 1998, and the trial court dismissed the petition.
On appeal, the defendant argues that the trial court erred in holding that the
defen dant re ceived the effe ctive as sistan ce of c ouns el.
After a revie w of the re cord, we affirm the ju dgme nt of the po st-convictio n court.
FACTUAL BACKGROUND
On May 6, 1997, the defendant was stopped by police officers for not
displaying a tax sticker on his car. After police dogs alerted officers that the
defendant was carrying drugs, the officers observed the defendant throw a medicine
bottle, later found to contain crack cocaine, on the ground. Ove r two month s later,
on three separate dates, July 25, 1997, July 27, 1997, and July 31, 1997,
confidential informants purchased crack cocaine from the defendant. Finally, when
police officers went to the defendant’s home to arrest the defendant on August 27,
1997 for the above activity, they found a pill bottle containing crack cocaine.
The defendant was then indicted for five sepa rate offen ses. Michael Randles,
then of the Public Defender’s Office, was appointed to represent the defend ant.
Soon thereafter, Mr. Randles entered into plea negotiations with the District
Attorn ey’s Office. Mr. Randles informed the District Attorney’s office that he
intended to move to suppress the cocaine obtained a s a res ult of an autom obile
stop. The Assistant District Attorney assigned to the case informed Mr. Randles that
he would b e willing to negotiate a plea-bargain on all of the cases only if Mr. Randles
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refrained from moving to suppress the evide nce. After investigating all of the
charges against the defendant and considering his chances of succeeding on the
suppression motion , Mr. Ran dles inform ed the d efenda nt that, in his o pinion, a plea
barga in would be desirable. The defendant agreed, and, following brief negotiations
between the District Attorney’s Office and Mr. Randles, the defend ant pled g uilty to
the cha rges in ex chang e for an e ffective twelve (12) year p rison sen tence.
In November of 1998, the defendant challenged the convictions, claiming that
he had entered into the plea agreement involuntarily because he had been denied
the effective as sistance of couns el. More s pecifically, the defend ant claim ed that Mr.
Randles failed to move to suppress the evidence obtained as a result of the search
of the de fenda nt’s car; that Mr. Ran dles failed to mo ve to sup press the de fenda nt’s
confession; that Mr . Ran dles fa iled to m ove to s uppre ss the audio tapes made b y a
confidential informant; and, finally, that Mr. Randles erroneously advised the
defendant to stay in jail, rather than to mak e bon d, so th at the d efend ant co uld
receive medical treatment. The trial court found that the defend ant had failed to
carry his burden of proving that Mr. Randles had been ineffective.
INEFFECTIVE ASSISTANCE OF COUNSEL
When a petitio ner seeks post-conviction relief on th e basis of ineffective
assistance of counsel, the petitioner bears the burden of showing that (a) the
services rendered by trial counsel were deficient and (b) the deficient performance
was prejudicia l. Powe rs v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.19 96). In
order to demonstrate deficient performance, the petitioner must show that the
services rendered o r the advice given was below "the range of competence
demanded of attorney s in crimin al cases ." Baxte r v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). In order to demonstrate prejudice, the petitioner must show that there
is a reas onab le prob ability tha t, but for c ouns el's de ficient p erform ance , the res ult
of the proceeding would have been different. Strickland v. Washington, 466 U.S.
668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984). "Because a petitioner
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must establish both prongs of the test to prevail on a claim of ineffective assistance
of counsel, failure to prove either deficient performance or resulting prejudice
provides a suffic ient ba sis to deny re lief on the cla im." Henley v. State, 960 S.W.2d
572, 580 (Ten n.1997) "Indeed , a court ne ed not a ddress the com ponen ts in any
particular order or even address both if the defendant makes an insufficient showing
of one co mpon ent." Id. "More over, o n app eal, the findings of fact made by the trial
court are conclusive and will not be disturbed unless the evidence contained in the
record prepon derates against th em." Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). "The burden is on the petitioner to show that the evidence
prepon derated against th ose findin gs." Id.
In this case, testimony at the post-conviction hearing revealed that the
defendant had not made a statement to police; thus, the re was n o confe ssion to
suppress. Furthe rmor e, altho ugh M r. Ran dles o riginally c onsid ered trying to
suppress the cocaine found as a result of the automobile stop, he decided against
it for tactical reasons relating to the plea negotiations. The defendant has not
demonstrated that any further investigation would have yielded any evidence helpful
to the de fenda nt. Fina lly, the trial c ourt im plicitly found th at the d efend ant’s
testimony, that he was coerced into confessing because Mr. Randles told the
defendant that he would receive medical care in prison, was incredible.1
In short, the petitioner has not established that his attorney provided
deficient performance at trial or on appeal. Moreover, he has not demonstrated a
reasonable probability that, due to his attorney's alleged deficiencies, the result of
the pro ceed ing wo uld ha ve bee n differe nt. Acc ording ly, the tria l court p roper ly
denied the petition for post-co nviction relief.
The trial court's judgment is AFFIRMED.
___________________________________
JERRY L. SMITH, JUDGE
1
Although the trial court did not specifically find the defendant’s testimony incredible on the record, Mr.
Randles’ testimony directly contradicted the defendant’s on this point, and the trial court held that the
defend ant did no t carry his bu rden.
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CONCUR:
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THOMAS T. WOODALL, JUDGE
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L. T. LAFFERTY, SENIOR JUDGE
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