IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 2000 SESSION February 22, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
THOMAS ALLEN CLARK, * C.C.A. # E1999-00362-CCA-R3-CD
Appellant, * KNOX COUNTY
VS. * Hon. Ray L. Jenkins, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
For Appellant: For Appellee:
Albert J. Newman, Jr. Paul G. Summers
Attorney Attorney General and Reporter
Suite 500, Burwell Building
602 South Gay Street R. Stephen Jobe
Knoxville, TN 37902 Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
Robert L. Jolley
Assistant District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The petitioner, Thomas Allen Clark, appeals the trial court's denial of
post-conviction relief. The single issue presented for review is whether the
petitioner was denied the effective assistance of counsel.
We affirm the judgment of the trial court.
On October 5, 1998, the petitioner, who had been charged with five
counts of especially aggravated kidnaping, one count of custodial interference, and
two counts of aggravated assault, entered pleas of guilt to three counts of
aggravated assault. The other charges were dismissed. In accordance with the
terms of a plea agreement, the trial court imposed a Range I sentence of six years
on each count. Because two of the counts were ordered to be served
consecutively, the effective sentence was 12 years.
On February 1, 1999, the petitioner filed this petition for post-
conviction relief, alleging that the pleas were neither knowingly nor voluntarily made,
that his counsel was ineffective, and that his sentence was excessive. Later, the
petitioner was appointed counsel and the petition was amended. The petition and
the amendment included assertions that trial counsel failed to conduct an adequate
investigation, failed to adequately inform the petitioner about the possible length of
the sentence, and, among other things, failed to develop any possible theory of
defense.
At the conclusion of the evidentiary hearing, during which the petitioner
and his trial counsel both testified, the trial court concluded that the petitioner had
not been denied his right to the effective assistance of counsel. In particular, the
trial court determined that trial counsel had interviewed all witnesses, sought
discovery material from the state, and ascertained petitioner's versions of the
offenses. The trial court also concluded that the petitioner's trial counsel had
disclosed all possible penalties before arriving at a negotiated plea agreement which
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included a 12-year sentence, "a considerable concession to the previously offered
bargain." The trial court also determined that the petitioner had been advised of all
of his constitutional rights before entering his pleas of guilt. It also observed that the
petitioner had not addressed or otherwise complained about the application of
enhancement factors or any other issue relating to the excessiveness of the
sentence.
In order for the petitioner to be granted relief on grounds of ineffective
counsel, he must establish that the advice given or the services rendered were not
within the range of competence demanded of attorneys in criminal cases and that,
but for his counsel's deficient performance, the result of his trial would have been
different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); Baxter v.
Rose, 523 S.W.2d 930 (Tenn. 1975). This two-part standard, as it applies to guilty
pleas, is met when the petitioner establishes that, but for his counsel's errors, he
would not have pled guilty and would have insisted on trial. Hill v. Lockhart, 474
U.S. 52, 106 S. Ct. 366 (1985).
Under the terms of the Post-Conviction Procedure Act, a petitioner
bears the burden of proving the allegations by clear and convincing evidence.
Tenn. Code Ann. § 40-30-210(f). The credibility of the witnesses and the weight
and value afforded to their testimony are appropriately addressed in the trial court.
Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). On appeal, the
burden is on the petitioner to establish that the evidence preponderated against the
findings of the trial judge. Clenny v. State, 576 S.W.2d 12 (Tenn. Crim. App. 1978).
Otherwise, the findings of fact by the trial court are conclusive. Graves v. State, 512
S.W.2d 603 (Tenn. Crim. App. 1973).
Essentially, the petitioner here complained that the only reason he
entered into the negotiated plea agreement was because his trial counsel had
advised that he had no other choice. The petitioner maintained that he had a valid
defense and that he gave up his right to a jury trial only because his counsel
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directed him to do so.
The convictions were based upon an incident involving the petitioner's
former girlfriend, Ora Mae Rivers, her two children, who were six and thirteen years
old at the time of the offense, and her mother, Stella Bishop. All four were at the
apartment of Ms. Bishop when the petitioner, already under a court order of
protection, armed himself with a pistol and assaulted and attempted to abduct Ms.
Rivers. When Ms. Rivers, once outside the apartment, struggled and was able to
free herself, the petitioner returned to the apartment where he detained Ms. Bishop
and Ms. Rivers' two daughters. The petitioner held the three hostage for about 30
minutes while he threatened to kill himself. The three aggravated assault pleas
pertain to Ms. Rivers, Ms. Bishop, and the thirteen-year-old daughter.
The petitioner's primary complaint is that his trial counsel did not seem
to be interested in anything other than a plea agreement. While the petitioner
insisted that he had a valid defense, the record of the evidentiary hearing does not
suggest what that might have been. Trial counsel informed the petitioner that he
would likely receive a twenty-five-year sentence if he chose to have a trial. Trial
counsel testified that the petitioner, faced with little other in the way of alternatives,
wanted to enter a guilty plea from the outset. The trial judge, who saw and heard
the witnesses firsthand, accredited the testimony of trial counsel. In our view, the
trial court appropriately determined that the petitioner had failed to establish by clear
and convincing evidence that the performance of his trial counsel was deficient and
that, but for the deficiency, the petitioner would have insisted on a trial.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
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Joseph M. Tipton, Judge
_____________________________
James Curwood Witt, Jr., Judge
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