IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
FEBRUARY 1999 SESSION
March 19, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
RODNEY E. AYERS, )
) C.C.A. No. 02C01-9805-CR-00149
Appellant, )
) Shelby County
v. )
) Honorable Carolyn W. Blackett, Judge
STATE OF TENNESSEE, )
) (Post-Conviction Relief)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Richard F. Vaughn John Knox Walkup
100 North Main, Suite 1928 Attorney General & Reporter
Memphis, TN 38103 425 Fifth Avenue North
Nashville, TN 37243
J. Ross Dyer
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
James J. Challen, III
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED: _______________________________
AFFIRMED
JAMES C. BEASLEY, SR., SPECIAL JUDGE
OPINION
Under indictment for first-degree murder, the petitioner, Rodney E. Ayers, pled guilty
to second-degree murder and received a sentence of forty (40) years in the Tennessee
Department of Correction as a Range II multiple offender. On June 21, 1994, the petitioner
filed a pro se petition for post-conviction relief. With the assistance of appointed counsel,
an amended petition was filed. After an evidentiary hearing, the trial court filed a
comprehensive findings of fact and conclusions of law denying relief and dismissing the
petition.
Appealing the trial court’s dismissal of his post-conviction petition, the petitioner
raises three issues for our review. He contends that his trial counsel was ineffective,
alleges that his plea of guilty was not knowingly and voluntarily entered, and claims that he
was incorrectly sentenced as a Range II offender. After carefully considering the issues
and reviewing the record, we affirm the lower court’s findings.
Petitioner’s claim of ineffective assistance is based on counsel’s failure to: make
the necessary trial preparations for his defense; properly confer with and advise petitioner
about his case; properly investigate the case and interview witnesses; review discovery
material with petitioner; interview the state’s witnesses listed on the indictment and
examine their statements; investigate and assert all available defenses; and investigate the
victim. Petitioner further alleges that his trial counsel erroneously advised him that: he
would get the electric chair if he went to trial; he “would be out” in five or six years if he took
the forty-year guilty plea; five percent of the thirty-five percent as a Range II offender would
be dropped once he was in the system; and, finally, there was no self-defense law in
Tennessee.
At the hearing, the petitioner gave his version of the shooting. He stated that
Charles Black, the victim, had robbed him on two prior occasions. He described the fatal
encounter as follows:
And so at that time when I saw him, you know it was kind of
frightening to me cause I was thinking that, you know, maybe
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he was going to try to do something else to me. So when I
saw him he was coming at me, you know, and my partner
named Chucky had give me a gun and they told me to watch
out, and all I know is the gun went off and I shot him.
When asked by post-conviction counsel if the victim was armed, the petitioner
responded:
He was going in his jacket like -- like he was fixing to come out
with something but, like I said, at the time, someone told me --
they was hollering, “Watch out,” you know, kind of spooked me
and somehow I pulled the trigger.
The petitioner admitted that trial counsel had visited him three or four times at the
jail. He said most of their discussions dealt with a “cop-out plea.” When he asked about
self-defense, his attorney told him there was no self-defense law in Tennessee.
Petitioner said he was not shown a copy of his indictment nor made aware that five
fact witnesses were listed thereon. He responded, “Yes, sir,” when asked by his post-
conviction attorney:
If you had known that at least four of these five witnesses had
given these statements and may have indicated that the victim
was armed with a whiskey bottle or that they, in fact, didn’t see
what had occurred -- knowing what we know now about at
least four of these individuals -- would that have made a
difference in your decision to enter this guilty plea?
Petitioner introduced four of these statements during the evidentiary hearing. Katana
Leverston who had accompanied petitioner to the scene of the shooting described the
encounter as follows:
There was a lot of drinking and confusion going on, and the
man that got killed had a bottle in his hand, and Chucky, Rod,
other guys I don’t know where drinking and picking with each
[other]. I looked back and seen the man who got killed with a
bottle and he was facing Rod, and him and Rod were arguing.
Then I saw Rod walk to the car, and he was saying, “I’m gone
[sic] shoot this m----- f-----. I ain’t no boy. I’m tired of these m--
--- f-----s playing with me,” and then hit [the] hood with his fist,
and the hood popped up, and when he came up from under
the hood, he had a gun in his hand. Then he closed the hood,
and walked over to the man that got killed and they was
arguing, the man had the bottle in hand and was gone [sic] hit
Rod with it. Then Rod pulled the pistol up and told the man,
“You better get on your knees and tell me you sorry,” and the
man told Rod, “Man, you need to put that gun away.” The man
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who got killed was off from the end of the car to about the
driver side of the car, and then I heard the gun [go] off and saw
some fire, and the man fell beside the car.
Jerrico Collins was in the car with Katana Leverston and his statement was
substantially the same as hers, but added that Charles Black, the deceased, had turned
and was walking away when the petitioner shot him.
Witness Nathan Lewis was at the scene and heard the shot, but did not see the
shooting. The fourth witness, Sammie Bowman, said he heard a shot and saw Charles
Black fall. He said Charles Black robbed people. Before the shooting, the witness said
Black was patting the pockets of “the dude.” He heard “the dude” say, “[M]an, don’t be
patting on my pocket like that. Man you gonna have to apologize to me.”
Petitioner further testified that he was told by Mr. Hall that if he went to trial he would
receive either the death penalty or life in prison. He denied any discussion about the
possibility of being convicted on a lesser charge. As to the guilty plea sentence of forty
years at thirty-five percent, the petitioner said he was told by attorney Hall that the thirty-
five percent would drop by five percent once he entered the system and that he would be
back on the street after five or six years.
Assistant Public Defender Trent Hall testified that he was appointed to represent the
petitioner approximately one year prior to entry of the guilty plea. During that time, he
obtained full discovery of the state’s entire file, including statements of five witnesses, and
furnished copies to the petitioner. Mr. Hall stated that he met with petitioner on eleven
occasions and discussed possible defense strategy, including self-defense and accidental
shooting. Attorney Hall denied telling petitioner that there was no self-defense law in
Tennessee, but did advise that self-defense would be extremely weak in that the victim
was shot in the back after petitioner reportedly told him, “Get on your knees and beg me
not to shoot you.” Counsel suggested a better defense would be accidental shooting
based on the petitioner’s statement to police.
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Attorney Hall denied telling petitioner that if he was convicted of first-degree murder
he could receive the electric chair, but informed him that his punishment would be life in
prison. He said he also explained the range of punishment for the lesser grades of
homicide. Counsel denied telling the petitioner that he would only have to serve five or six
years or that the thirty-five percent required for a Range II offender would be reduced by
five percent once he entered the system. The investigator for the public defender’s office
was unable to locate witnesses, Nathan Lewis and Sammie Bowman. Katana Leverston
and Jerrico Collins refused to give the investigator a statement, but were interviewed by
attorney Hall before trial. Tyrone Calvin gave the investigator a statement which was
damaging to the defense.
Additionally, trial counsel testified that he had investigated the victim’s background
and found that he had been arrested fifteen times, including several arrests for assault.
In determining whether counsel provided effective assistance at trial, the Court must
decide whether counsel’s performance was within the range of competence demanded of
attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To
succeed on a claim that his counsel was ineffective at trial, a petitioner bears the burden
of showing that his counsel made errors so serious that he was not functioning as counsel
as guaranteed under the Sixth Amendment and that the deficient representation prejudiced
the petitioner, resulting in a failure to produce a reliable result. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cooper v. State, 849 S.W.2d 744,
747 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy the
second prong, the petitioner must show a reasonable probability that, but for counsel’s
unreasonable error, the fact finder would have had reasonable doubt regarding petitioner’s
guilt. Strickland, 466 U.S. at 695. This reasonable probability must be “sufficient to
undermine confidence in the outcome.” Harris v. State, 875 S.W.2d 662, 665 (Tenn.
1994).
This two-part standard of measuring ineffective assistance of counsel also applies
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to claims arising out of the plea process. Hill v. Lockart, 474 U.S. 52, 106 S.Ct. 366, 88
L.Ed.2d 203 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).
The prejudice requirement is modified so the petitioner “must 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.” Hill, 474 U.S. at 59.
Furthermore, the petitioner has the burden of proving the allegations in his petition
by a preponderance of the evidence, McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim.
App. 1983), and the factual findings of the trial court are conclusive on appeal unless the
evidence preponderates against the judgment. State v. Buford, 666 S.W.2d 473, 475
(Tenn. Crim. App. 1983).
In dismissing the petition, the trial court carefully examined every allegation of
ineffectiveness and found each to be without merit. In effect, the court determined that the
charges by petitioner had been met and refuted by the credited testimony of trial counsel.
The court concluded that the petitioner had received effective assistance of counsel at trial.
Having reviewed the evidence presented, we conclude that it fully supports the
findings of the trial court and, thus, the petitioner has failed to meet his burden of proof on
this issue.
The petitioner next contends that his guilty plea was not entered voluntarily and
knowingly in keeping with the mandates of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 274 (1969), and State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), and
therefore must be set aside.
In Boykin, the United States Supreme Court required that a defendant be warned
of his constitutional rights to trial by jury, to the right of confrontation, and to protection
against self-incrimination as mandatory prerequisites to the finding that a guilty plea was
“intelligent and voluntary.” The Court further required an affirmative showing of such
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warnings and admonished that such important constitutional rights could not be presumed
from a silent record. Rounsaville v. Evatt, 733 S.W.2d 506 (Tenn. 1987). Therefore,
unless there is an affirmative showing that the plea was knowing and voluntary, a guilty
plea may be vacated upon collateral attack. Johnson v. State, 834 S.W.2d 922 (Tenn.
1992).
Mackey mandated advice by the trial judge about the consequences of a guilty plea
that went beyond the requirements of Boykin. Any omissions not required in Boykin may
be relied upon on direct appeal in appropriate cases, but have no validity in a post-
conviction proceeding. State v. Prince, 781 S.W.2d 846 (Tenn. 1989).
Citing Rounsaville v. Evatt, supra, the petitioner claims that at no time did the trial
judge or the defense attorney advise him of his constitutional right not to be a witness
against himself or ascertain whether or not he fully understood the consequences of a
waiver of that right. The post-conviction court found otherwise and, from our review of the
record, we find ample support for those rulings.
During the guilty plea hearing, discussions between the trial judge and the petitioner
included the following:
Q. All right. You want to enter a plea of guilty and accept
the negotiated settlement that your lawyer has worked
out which is forty years in Department of Correction
confinement?
A. Yes, sir.
Q. You want to do that?
A. Yes, sir.
Q. All right. Are you doing so voluntarily?
A. Yes, sir.
Q. You know what voluntarily means, don’t you?
A. (No Verbal Response)
Q. That you’re doing it on your own. Nobody’s forcing
you to do it.
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A. Yes, sir.
Q. How old are you?
A. Eighteen.
Q. All right. You satisfied with your lawyer’s services?
A. Yes, sir.
Q. Did he tell you you can have a trial before a judge or
a jury?
A. Yes, sir.
Q. Did he tell you if you went to trial you could not be
compelled to testify?
A. Yes, sir.
Q. Sir?
A. Yes, sir.
Q. Did he tell you and do you understand that if you went
to trial through your lawyer you could cross-examine
the witnesses?
A. Yes, sir.
In addition to the above, the transcript shows that petitioner was advised of
additional rights as required by State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). Also at
the post-conviction hearing, counsel testified that the petitioner had stated that he did not
want a trial but, if his case went to trial, he probably would not testify. This record fully
supports the findings of the court below that the petitioner was well advised and aware of
his constitutional rights and that he freely, voluntarily, understandingly, and knowingly
waived those rights and entered his guilty plea. We find no basis on which to disturb those
findings.
In his final issue, the petitioner contends that he was incorrectly sentenced as a
Range II offender. He claims that since he had no prior criminal record he is not a multiple
offender as defined in Tenn. Code Ann. § 40-35-106 and therefore should have been
sentenced as a Range I offender.
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In State v. Mahler, 735 S.W.2d 226 (Tenn. 1987), our Supreme Court ruled that an
accused could agree as a part of a plea bargain agreement to be sentenced as a Range
II offender although meeting the criteria for Range I, as long as the sentence fell within
statutory limits fixed for the offense.
The range of punishment for murder in the second degree is not less than fifteen
(15) nor more than sixty (60) years. The forty (40) year sentence agreed to by the
petitioner is clearly within the statutory limits and thus is not illegal. The record reflects that
this is the only offer made by the District Attorney General and the proof shows that, prior
to entering the guilty plea, the petitioner was advised by counsel that he would be
sentenced outside and above his statutory classification. While we have examined this
complaint and found that it has no merit, we note that the issue addressing the sentencing
range of the petitioner’s sentence is not cognizable in post-conviction proceedings. Tenn.
Code Ann. § 40-35-401; Brooks v. State, 756 S.W.2d 288 (Tenn. Crim. App. 1988).
For the reasons stated, the judgment of the trial court, dismissing the petition for
post-conviction relief, is affirmed.
________________________________________
JAMES C. BEASLEY, SR., SPECIAL JUDGE
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CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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