IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 2000 SESSION February 22, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
ROBERT W. BREEDEN, * C.C.A. # E1999-00363-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, Jr.
Assistant District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The petitioner, Robert W. Breeden, appeals the trial court's dismissal
of his petition for post-conviction relief. In this appeal of right, the single issue
presented for review is whether the petitioner was denied the effective assistance of
counsel at trial.
The judgment of the trial court is affirmed.
In November of 1995, the petitioner was convicted of attempt to
commit murder in the first degree. The trial court imposed a Range I sentence of 23
years. The conviction was a result of an altercation between the petitioner and the
victim, Calvin C. Stinnett. After an argument, the petitioner, armed with a .22 caliber
semi-automatic rifle, confronted the victim and fired several times at him. One of the
projectiles struck the victim's head. The victim suffered permanent injuries which
include paralysis to his right side, lost sensation in his legs, and a loss of memory.
This court affirmed the conviction and sentence on direct appeal. State v. Robert
William Breeden, No. 03C01-9606-CR-00217 (Tenn. Crim. App., at Knoxville, Sept.
30, 1997). Permission to appeal to the supreme court was denied on November 2,
1998.
On March 1, 1999, the petitioner filed this petition for post-conviction
relief, alleging, among other things, that his trial counsel was ineffective by failing to
raise issues related to the indictment, by failing to challenge a witness at trial, and
by failing to present questions regarding the sentence. The trial court appointed
counsel who amended the petition, alleging that trial counsel had failed to
adequately investigate, had failed to regularly confer with the petitioner and to
communicate an offer of a plea agreement, had failed to consider possible theories
of defense, and had neglected to adequately advise the petitioner of his right to
either testify or remain silent at trial.
At the evidentiary hearing, the petitioner testified that he had only met
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with his trial counsel on one occasion for a period of about twenty minutes. He
asserted that his trial counsel never discussed possible theories of defense and that
defense witnesses were available at trial but never called by his trial counsel. The
petitioner insisted that he learned only after the trial that the state had made a
twelve-year plea offer, an offer which he said he would have accepted had he been
aware of it. The petitioner asserted that he did not hear from his trial counsel from
the time of the jury verdict until the sentencing hearing and that his trial counsel
offered no evidence in the latter proceeding.
Trial counsel testified that he had met with the petitioner on several
occasions and presented supporting documents as corroboration. He specifically
recalled advising the petitioner of his right to either testify or to remain silent.
He acknowledged that the state had, in fact, made an offer of a twelve-year
sentence for attempted second degree murder, and he presented a document
signed by the petitioner just before the trial began wherein the petitioner specifically
rejected the proposal made by the state. Although denying that he ever signed such
a document, the petitioner acknowledged that the signature indicating a rejection of
the offer appeared to be in his own handwriting.
At the conclusion of the evidentiary hearing, the trial court ruled in
favor of the state, specifically accrediting the testimony of trial counsel and rejecting
that of the petitioner, which was described as "confabulation or outright mendacity."
The trial court ruled that there was no deficiency on the part of trial counsel
regarding the indictment, the alleged "illegal" witness, the degree of his preparation,
or the claim pertaining to the sentence. Most importantly, the trial court specifically
rejected the petitioner's claim that trial counsel had not communicated the offer of
plea agreement extended by the state.
There is a constitutional right to the effective assistance of counsel at
all critical stages of criminal prosecution. Tenn. Const., art. I, § 9; Powell v.
Alabama, 287 U.S. 45 (1932). In order for the petitioner to be granted relief on
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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 (1984);
Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975).
The petitioner must prove his factual allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f). It is the duty of the trial
court to determine the credibility of the witnesses. Byrge v. State, 575 S.W.2d 292,
295 (Tenn. Crim. App. 1978). On appeal, the burden is on the petitioner to show
that the evidence preponderates 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).
In this appeal, the petitioner complains primarily of the lack of
communication with his trial counsel and the failure of his trial counsel to inform him
of the state's offer of a twelve-year sentence in exchange for a plea of guilty to
attempted second degree murder. Not only did the trial court accept as true the
testimony of trial counsel, but exhibits presented at trial also corroborated trial
counsel's claims that he had met regularly with the petitioner, was prepared for trial,
and that the petitioner had specifically rejected the offer made. In our view, the
evidence does not preponderate against the findings made by the trial court.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
Joseph M. Tipton, Judge
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_____________________________
James Curwood Witt, Jr., Judge
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