IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE August 24, 1999
Cecil Crowson, Jr.
APRIL SESSION, 1999 Appellate C ourt
Clerk
STANLEY P. POSLEY, ) C.C.A. NO. 03C01-9809-CR-00307
)
Appe llant, )
)
) HAMILTON COUNTY
VS. )
) HON . STEP HEN M. BE VIL
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
STANLEY P. POSLEY JOHN KNOX WALKUP
Pro-Se Appellant Attorney General & Reporter
C/O B.M.C.X.
P. O. Box 2000 ELLEN H. POLLACK
Wa rtburg, T N Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
BILL COX
District Attorney General
BARRY A. STEELMAN
MARK HOOTEN
Assistant District Attorn eys
600 Market Street
Chattanooga, TN 37402
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On Febru ary 23 , 1996 , Petition er Sta nley P . Posle y pled g uilty in the
Hamilton County C riminal Court to five counts of selling cocaine. That sam e day,
the trial court sentenced Petitioner as a Range I standard offender to a term of
eight years for each c onviction and the trial court ordered th e sentences to run
concurren tly. Petitioner filed a petition for post-conviction relief on May 10, 1996,
and an amended petition for post-conviction relief on O ctober 17, 199 6. After a
hearing on September 29, 1997, the post-conviction court dismissed the petition.
Petitioner challenges the dismissal of his petition, raising the following issues:
1) whe ther P etitione r receiv ed ine ffective a ssista nce o f coun sel;
2) whether Petitioner’s guilty pleas were voluntary; and
3) whether the post-conviction judg e was biase d against Pe titioner.
After a review of the record, we affirm the judgment of the post-con viction cou rt.
I. BACKGROUND
At the gu ilty plea hearing, Petitioner stated that he had read and
understood the request to plead guilty form. When the trial court asked Petitioner
whether he had discuss ed the ch arges a gainst him with his counsel, Petitioner
stated that he had. W hen the trial court asked Petitioner whether he understood
that the total sentence could be anywhere between eight and thirty years,
Petitioner stated that he did. The trial court then advised Petitioner that he had
the right to plead not guilty and insist on a jury trial, that he had the right to be
represented at trial, that he had the right to confront the witnesses against him,
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that he had the right to subpoena witnesses on his behalf, that he had a privilege
against self-incrimination, that he had the right to appeal if he was convicted at
trial, that he had th e right to coun sel on appeal, and th at his co nviction s in this
case could be used to enhance punishment in subsequent cases. After
explaining each right, the trial court asked Petitioner whether he understood the
right, and P etitioner sta ted that he did.
After the trial court explained Petitioner’s rights, the court asked Petitioner
whether he had be en tak ing an y med ication or drug s that w ould a ffect his
decision making. Petitioner stated that he had not. The trial court then asked
Petitioner whether he had been forced, coerced, or threatened into pleading
guilty and Petitioner stated that h e had not. T he trial court then asked Petitioner
whether the decision to plead guilty was his own, and Petitioner stated that it was.
In addition, the trial court asked Petitioner whether he had discussed the matter
with his counsel and whether he was satisfied with the work of his coun sel.
Petitioner indicated that he had discussed the matter with his counsel and that
he was satisfied w ith his coun sel’s perfo rmanc e.
Richard Mabe e, Petitione r’s trial couns el, testified at the post-convic tion
hearing that he ha d told Pe titioner that h e had th e right to insist on a trial an d if
he did so, he would be represented by counsel. Mabee testified that although he
did not specifically remember what he ha d done in this ca se, he always to ld every
client everything he knew about the State’s case, what the proof might be, and
what the possible defenses were and then gave the client the option of whether
to insist on a trial.
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Mabee testified that he had advised Petitioner that if he went to trial, he
faced the possibility of being convicted, of being sentenced in a higher range, and
of receiving a higher sentence than the State had offered in the plea agreem ent.
Mabee also testified that he had explained the plea agreement to Petitioner and
believed that Petition er had u ndersto od the e xplanation .
Mabee denied telling Petitioner that if he insisted on trial, he had no chance
of winning. Mabee also denied telling Petitioner that if he we nt to trial, he w ould
likely receive a sixty year sentence. In addition, Mabee denied that he refused
to show Petitioner certain discovery materials when Petitioner asked to see them.
Petitioner testified that before he pled guilty, he had asked Mabee to show
him various materials obtained during discovery and Mabee had stated that he
did not need to see them. Petitioner testified that even though he knew that he
had the right to insist on a trial, he had decided to plead guilty because Mabee
had told him that he h ad no pos sibility of winning and that he would receive a
sentence of sixty years. P etitioner also testified that to the best of his knowledge,
Mabe e had n ever inves tigated his case.
Petitioner testified that when he entered his guilty plea, he understood
everything that happened and he understood the judge’s questions. Petitioner
testified that he lied to the judge when he an swere d the q uestio ns be caus e he fe lt
that Mabee was providing inadequate repre sentation and wo uld contin ue to
provide in adequ ate repre sentation if the case went to trial.
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On cross-examination, Petitioner admitted that he had pled guilty to other
offenses in the pas t. Petitioner also admitted that before he pled guilty, he had
refused a previous plea offer and insisted that the case be set for trial and Mabee
had co mplied with his req uest.
When the post-c onviction c ourt que stioned P etitioner ab out why he had
pled guilty, Petitioner stated:
I just wanted to cop out for the eight and just say forget it because I was
tired of going back and forwards and staying at the county jail, so I just
wanted to get me some air. I just went and pled guilty for it. Nobody
pressured me into it. I just pleaded guilty just to get o ut [of] the coun ty jail.
When the post-conviction court asked Petitioner whether he had “told [the trial
court] just a bunch of lies so you could get out of the county jail,” Petitioner stated
that that wa s what h e had d one.
At the conclusion of the hearing, the p ost-conviction cou rt found that there
was absolutely no evidence to substantiate Petitioner’s claim that he received
ineffective assistan ce of cou nsel. In ad dition, the co urt found that Pe titioner’s
guilty pleas were e ntered volunta rily, know ingly, an d intelligently. Finally, the
court found that Pe titioner’s testim ony as to Mab ee’s performance was simply not
credible.
II. ASSISTANCE OF COUNSEL
Petitioner contends that the post-conviction court erred when it determined
that Petitioner did not receive ineffective assistance of counsel. We disagree.
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When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of couns el, the petitioner bears the burden of showing that (a) the
services rendered by trial counsel were deficient and (b) the deficient
performance was prejudicial. 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 or the advice given was below “the range of
competence deman ded of attorneys in criminal cases.” Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner
must show th at there is a reason able pro bability that, but for counsel’s deficient
performance, the result of the proceeding would have been different. Strickland
v. Washington, 466 U .S. 668, 6 94, 104 S.Ct. 2052, 206 8, 80 L.Ed.2d 674 (1984 ).
“In the case of a guilty plea, to satisfy the requirement of prejudice, the petitioner
must demonstrate a reasonable probability that, but for counsel’s errors, he
would not have pled guilty and would have insisted on going to trial.” Bentley v.
State, 938 S.W.2d 706, 710–11 (Tenn. Crim. A pp. 199 6). “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 preponderates ag ainst them .”
Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). “The burden is
on the petitioner to show that the evidence preponderated against those
findings.” Id. In addition, “questions concerning the credibility of witnesses and
weight and value to be given their testimony are for resolution by the
post-conviction court.” Bates v. S tate, 973 S.W.2d 615, 631 (Tenn. Crim. App.
1997).
Petitioner contends that he received ineffective assistance of counsel
because Mabee failed to investigate this case by interviewing witnesses and
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because Mabe e failed to sh ow the d iscovery m aterials to Petitioner when he
asked to see them. The post-conviction court found that Petition er had fa iled to
produce any evidence that supported these claims. The record supports the
post-conviction court’s finding s. Inde ed, M abee testified that he had filed
discovery requests in this case and he had also talked to the pros ecutor to
determine what the proof would be and who would testify at tr ial. Mabee testified
that although he could not sp ecifica lly recall whether he or his investigators had
interviewed witnesse s in this cas e, his standard procedure in cases where a
witness was equivocal about an identification of the defendant would involve an
attempt to locate and interview the witness. Further, Mabee expressly denied
that he had eve r refused to hon or Petitioner’s request to see items obtained
during discovery. Finally, when the trial court asked Petitioner during the guilty
plea hearin g whe ther he was s atisfied with Ma bee’s perfor man ce, Pe titioner
stated tha t he was .
The Petitioner has failed to support his allegations that he received
ineffective assistance of coun sel with an y evidenc e other th an his ow n self-
serving testimony which the post-conviction court found was simply not credible.
Thus, Petitioner has failed to s how that his gu ilty pleas were the result of
receiving ineffective a ssistanc e of coun sel. This is sue ha s no m erit.
III. VOLUN TARINE SS OF THE G UILTY P LEAS
Petitioner contends that the post-conviction court erred when it determined
that his guilty pleas were entered voluntarily, knowingly, and intelligently. W e
disagree.
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In order to sa tisfy constitutional standards, a guilty plea must be entered
knowingly, voluntarily an d intelligently. Boyk in v. Alabama, 395 U.S. 238, 243,
89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); Johns on v. State , 834 S.W.2d 922,
923 (Tenn. 199 2). A defendant enters a knowing and voluntary plea when he or
she understands the rights and circumstances involved and nevertheless
choos es to wa ive or relinqu ish those rights. State v. Mackey, 553 S.W.2d 337,
340 (Tenn. 1977). The relinquishment of these rights will not be presumed from
a silent reco rd. Bates v. S tate, 973 S.W .2d 615, 624 (Tenn. Crim . App. 1997 ).
However, “ [t]he standard was and remains whether the plea represents a
voluntary and intelligent choice among the alternative c ourses of action o pen to
the defend ant.” Powe rs v. State, 942 S.W.2d 551, 556 (Tenn. Crim. App. 1996)
(citation and internal qu otations om itted). In determining w hether a petition er’s
guilty plea was knowing and voluntary, this Court must look at the totality of the
circumstances. State v. Turner, 919 S.W .2d 346, 353 (Tenn. Crim . App. 1995 ).
In so do ing, this Court can review any relevant evidence in the record, including
the pos t-conviction procee dings. Id.
W e conclud e that und er the totality o f the circum stances, the pos t-
conviction court did not err when it found that Pe titioner’s guilty pleas were
entered voluntarily, kn owingly, a nd intelligen tly. As we have p reviou sly
discussed, Petitioner was represented by competent counsel who explained the
consequences of pleading guilty to Petitioner. In addition, whe n the trial court
informed Petitioner that if he pled guilty the total sentence could be anywhere
between eight and thirty years, Petitioner stated that he understood. Further, the
record indica tes tha t the trial c ourt ad vised P etitioner that h e had th e right to
plead not guilty and insist on a jury trial, that he had the right to be represented
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at trial, that h e had the righ t to con front the witnes ses a gains t him, that he had
the right to subpoena witnesses on his behalf, that he had a privilege against self-
incrimination, that he had the right to appeal if he was convicted at trial, that he
had the right to counsel on appeal, and that his convictions in this case could be
used to enhance punishment in subsequent cases. After the trial court explained
these rights, Petitioner stated that he understood them. Petitioner then indicated
that he had not been forced, coerced, or threatened into pleading guilty and the
decision to plead guilty was his own. During the post-conviction hearing,
Petitioner testified that when he entered his guilty plea, he understood everything
that happened and he und erstood the jud ge’s questions . Finally, the record
indicates that when the post-conviction court questioned Petitioner about why he
had pled guilty, Petitioner testified that “Nobody pressured me into it. I just
pleaded guilty jus t to get o ut [of] the coun ty jail.” In sh ort, the r ecord fully
suppo rts the finding of the p ost-co nviction court th at Petitio ner wa s well advised,
was aware o f his cons titutional rights , and that he entere d his guilty pleas
voluntarily, kn owingly, a nd intelligen tly. This issu e has n o merit.
IV. BIAS AGAINST PETITIONER
Petitioner claims that the allegation that the post-conviction judge was
biased against him and for this reason dismissed his petition is proven by the
following events he claims occurred during the post-conviction hearing: the judge
told Mabe e that h e did not have to answer a question about whether he wanted
Petitioner to receive the maximum sentence so that he could collect a payment
from the Victim’s Compensation Fund, the judge told Mabee that he did not have
to answer a question about whether he would be paid more if Petitioner pled
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guilty than he would be paid if the case went to trial, the judge refused to grant
a continuance when Petitioner’s counsel reported that Mabee had refused to turn
over the file on Petitioner’s case, and the judge refused to answer the questions
of Petitioner’s counsel about why the judge was interfering with his questioning
of Mabe e.
W e have reviewed the transcript of Petitioner’s post-conviction hearing,
and the transcript fails to reflect that these events ever happe ned. Quite simply,
there is no ind ication in the re cord th at the p ost-co nviction judge had any
subjective or objective bias or prejudice against P etitioner. On the contrary, the
record indicates that rather than dismissing the petition for post-conviction relief
because he was biased against Petitioner, the post-conviction judge dismissed
the petition becau se it had n o merit w hatsoe ver. This iss ue has no me rit.
Accordingly, the judgment of the post-conviction court is AFFIRMED.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOE G. RILEY, JUDGE
___________________________________
NORMA MCGEE OGLE, JUDGE
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