IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1999 SESSION
April 8, 1999
Cecil W. Crowson
Appellate Court Clerk
HAROLD DAVID JONES, )
) NO. 01C01-9805-CC-00222
Appellant, )
) ROBERTSON COUNTY
VS. )
) HON. JOHN H. GASAWAY III
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL R. JONES JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
109 South Second Street
Clarksville, TN 37040 MARVIN E. CLEMENTS, JR.
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
JOHN WESLEY CARNEY, JR.
District Attorney General
DENT MORRISS
Assistant District Attorney General
500 South Main Street
Springfield, TN 37172
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Petitioner, Harold David Jones, appeals from the dismissal of his petition for
post-conviction relief by the Circuit Court of Robertson County. Previously, he
entered a nolo contendere plea to second degree murder and received a Range II
sentence of 35 years. The following issues are presented for our review:
1. whether the petition was filed within the applicable statute of
limitations; and
2. whether the nolo contendere plea was the result of ineffective
assistance of counsel.
We find no reversible error and AFFIRM the judgment of the trial court.
STATUTE OF LIMITATIONS
Petitioner entered a nolo contendere plea to second degree murder on March
8, 1993, and was sentenced on May 14, 1993, to a term of 35 years as a Range II
offender. This Court affirmed the conviction and sentence. State v. Harold David
Jones, Jr., C.C.A. No. 01C01-9401-CC-00008, Robertson County (Tenn. Crim. App.
filed February 8, 1995, at Nashville). Application for permission to appeal was
denied by the Tennessee Supreme Court on May 30, 1995.
Petitioner had one year from May 30, 1995, to file a petition for post-
conviction relief. Tenn. Code Ann. § 40-30-202(a). Inexplicably, the petition bears
two separate filing dates; namely, May 21, 1996, and August 6, 1996. The state
correctly contends that a filing on August 6, 1996, would be untimely. However, we
conclude the August 1996 filing date was a clerical error. The Uniform Affidavit of
Indigency filed with the petition was stamped “filed May 21, 1996”. Therefore, we
conclude that the May 21, 1996, filing date on the petition was the correct date. The
petition was timely filed.
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INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner contends trial counsel failed to properly investigate the facts and
erroneously advised petitioner that he would receive a 25-year sentence, which led
to an invalid nolo contendere plea.
A. Standard of Review
The trial judge's findings of fact on post-conviction hearings are conclusive
on appeal unless the evidence preponderates otherwise. Butler v. State, 789
S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim.
App. 1995). The trial court’s findings of fact are afforded the weight of a jury verdict,
and this Court is bound by the trial court’s findings unless the evidence in the record
preponderates against those findings. Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State,
934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not reweigh or
reevaluate the evidence, nor substitute its inferences for those drawn by the trial
judge. Henley, 960 S.W.2d at 578-79; Massey v. State, 929 S.W.2d 399, 403
(Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.
1990).
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner
has the burden to prove that (1) the attorney’s performance was deficient, and (2)
the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d
6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d at 899.
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the
Supreme Court applied the two-part Strickland standard to ineffective assistance of
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counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice
requirement by requiring a defendant to show that there is a reasonable probability
that, but for counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370; Hicks v. State, 983
S.W.2d at 240, 246 (Tenn. Crim. App. 1998). The same rationale applies to a nolo
contendere plea.
B. Post-Conviction Testimony
At the post-conviction hearing the petitioner testified he only met with trial
counsel, Lionel Barrett, on one occasion prior to the plea. He told trial counsel the
names of the eyewitnesses to the homicide; yet, counsel did not interview all the
eyewitnesses. Petitioner testified that on the morning of trial, his counsel entered
into plea negotiations with the state. According to petitioner, counsel advised
petitioner he would receive a 25-year sentence if he pled to second degree murder.
Petitioner’s brother also testified he heard Barrett state that petitioner should “take
the second degree at the 25.”
Barrett’s testimony contradicted the testimony of petitioner in all material
respects. Barrett testified he met with petitioner on numerous occasions, performed
an appropriate investigation, and suggested that petitioner enter an open plea of
guilty to second degree murder. Barrett steadfastly denied that he told petitioner he
would receive a 25-year sentence. Although Barrett talked with petitioner on several
occasions after sentencing, petitioner never contended in those conversations that
he expected an agreed 25-year sentence.
The record reveals that upon entering the plea of nolo contendere, petitioner
was specifically advised by the trial judge that the range of punishment was from 25
years to 40 years.1 Petitioner stated he understood. Subsequently, at the
1
Although the nolo contendere plea transcript was admitted into evidence as an exhibit
in the post-conviction hearing, it is not a part of the record in this Court. Ordinarily, this might
preclude effective appellate review. However, the transcript of the post-conviction hearing
contains numerous quotes from the plea transcript. Accordingly, we are able to effectively
review this matter.
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sentencing hearing the trial court sentenced petitioner to a term of 35 years. This
Court affirmed the sentence.
C. Findings of Post-Conviction Court
The post-conviction court found that Barrett conducted an appropriate pre-
trial investigation. The post-conviction court’s recitation from the transcript of the
nolo contendere plea reveals petitioner was specifically advised, and stated he
understood, that the range of punishment was from 25 years to 40 years. The post-
conviction court further found Barrett did not advise petitioner that he would receive
a sentence of 25 years. Finally, the court concluded trial counsel was not
ineffective, and petitioner understood the consequences of his nolo contendere
plea.
D. Conclusion
Essentially, this issue revolved around the credibility of the witnesses at the
post-conviction hearing. The post-conviction court discredited the testimony of
petitioner and accredited the testimony of trial counsel. Questions of credibility are
resolved by the post-conviction court, not this Court. Henley v. State, 960 S.W.2d
at 579. The evidence does not preponderate against the post-conviction court’s
finding that petitioner failed to establish ineffective assistance of counsel. As to
petitioner’s contention that trial counsel was deficient in failing to interview other
witnesses, petitioner has also failed to establish prejudice. None of these witnesses
testified at the post-conviction hearing. See Black v. State, 794 S.W.2d at 757.
This issue is without merit.
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CONCLUSION
Based upon our review of the record, we AFFIRM the judgment of the trial
court.
___________________________
JOE G. RILEY, JUDGE
CONCUR:
______________________________
DAVID H. WELLES, JUDGE
______________________________
JOHN EVERETT WILLIAMS, JUDGE
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