IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER SESSION, 1998 February 4, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
RAYFORD B. MARTIN, ) C.C.A. NO. 03C01-9707-CR-00286
)
Appe llant, )
)
) KNOX COUNTY
VS. )
) HON. RICHARD BAUMGARTNER
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF KNOX COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
MARK E. STEPHENS JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
JOHN HALSTEAD MICH AEL J . FAHE Y, II
PAULA R. VOSS Assistant Attorney General
Assistant Pu blic Defende rs 425 Fifth Avenu e North
1209 Euclid Avenue Nashville, TN 37243
Knoxville, TN 37921
RANDALL E. NICHOLS
District Attorney General
MARSHA SELECMAN
Assistant District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED ________________________
AFFIRMED IN PART; DELAYED APPEAL GRANTED
DAVID H. WELLES, JUDGE
OPINION
This is an appeal as of right from the trial court’s denial of post-conviction
relief from convictions based upon guilty pleas. The Defen dant en tered gu ilty
pleas, with sentencing left to the discretion of the trial judge, to two counts of
aggravated kidnapping, two counts of aggravated rape, and four counts of armed
robbery. At the sentencing hearing conducted on April 3, 1989, he received a
total effective sentence of 150 years. This Court affirmed his sentences on direct
appe al. 1 The Defendant filed a petition for post-conviction relief in December of
1991; and fo llowing appo intme nt of co unse l, he filed a sup plem ental p etition in
June of 199 7. The trial cou rt cond ucted a hea ring an d den ied the petition in July
of 1997. The Defe ndan t now a ppea ls the tria l court’s ruling. We affirm, but we
grant D efend ant relie f in the fo rm of a delaye d app eal.
The Defendant contends that he received ineffective assistance of counsel
and asserts four gro unds in sup port of h is claim . He ar gues that his counsel (1)
impro perly advised him to plead guilty to two counts of aggravated kidnapping,
which he co ntend s were mere ly incidental to the aggravated robbery and rape
charges; (2) erred by failing to object to the trial court’s ex parte confere nce with
one of the victim s and h er moth er at the sentencing hearing; (3) erred by
cons istently failing to challenge at the trial or appellate level the enhancement
1
State v. Derrick Willis Gilbert & Rayford Bernard Martin (alias Billy Ray Morgan), No.
1265, 1990 WL 41554 (Tenn. Crim. App., Knoxville, April 11, 1990, perm. to appeal on behalf
of Derrick Willis Gilbert denied (Tenn. 1990).
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factors which were a pplied in sen tencin g; and (4) ineffe ctively re prese nted h im
on ap peal. 2
For a better understanding of the issues, it is necessary to briefly review
the facts of the underlying offenses as presented in the record before us.
According to the pre sente nce re port, w hich in clude s a len gthy an d grap hic
confession by the Defendant, the Defendant and his co-defendant, Derrick
Gilbert, accosted a young couple who were sitting in a pa rked ve hicle in Kno xville
on June 7, 1988. Armed with a pistol and knife, the two m en rob bed th e cou ple
of a stereo equalize r and pu rse.
Later that same evening, the Defendant and his co-defendant approached
another young couple sitting in a parked vehicle. Again using the pistol and knife,
they robbed the couple of jewelry, a stereo, and other items, and then forced the
coup le to fully disrobe, throwing articles of their clothin g into the nearby woods.
They forced the male victim to lie nude in the floorboard of the car, threatening
to kill the female victim if he moved. The two men then transported the nude
fema le victim in their vehicle to a more isolated location in the woods, where they
each raped her repeatedly, both orally and vaginally, while, according to the
Defen dant, she “just [lay] there . . . like she wa s dead .” At one point, they placed
a pistol in her m outh and threatened to kill her if she vomited on them. After the
assau lt, the Defendant and his co-defendant left the female victim, who was nude
and bleeding, alone in the woods and drove away. As they departed, they were
met by a rriving police officers, wh o placed them u nder arre st.
2
For purposes of clarity and brevity, we will address the issues presented in a slightly
different order than that suggested by the Defendant.
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In determining whether counsel provid ed effective assista nce a t trial, this
Court mus t decid e whe ther co unse l’s performance was within the range of
competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that counsel was
ineffective at trial, a petitioner bears the burden of showing that his counsel made
errors so serious that he or she was not functioning as co unse l as guaranteed
under the Sixth Amendment and that the deficient representation prejudiced the
petitioner resulting in a failure to produce a reliable re sult. Strickland v.
Washington, 466 U .S. 668, 6 87; Coop er v. State, 849 S.W.2d 744, 747 (Tenn.
1993); Butler v. State, 789 S.W .2d 898, 899 (Tenn. 199 0). To satisfy the second
prong, the petitioner must show a reasonable proba bility that, b ut for co unse l’s
unrea sona ble error, the fact finder would have had reasonable doubt regarding
petition er’s guilt. Strickland, 466 U.S. at 695. T his reaso nable p robability must
be “sufficient to undermine confidence in the outcom e.” Harris v. S tate, 875
S.W .2d 662, 665 (Tenn. 199 4).
When reviewing trial counsel’s actions, this Court should not use the
bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics.
Hellard v. State, 629 S.W .2d 4, 9 (Tenn . 1982). Coun sel’s alle ged e rrors sh ould
be judged at the time they were made in light of all facts and circumstances.
Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746.
This two-part standard of measuring ineffective assistance of counsel also
applies to claims arising ou t of the plea proces s. Hill v. Lockart, 474 U.S. 52
(1985); Bankston v. State, 815 S.W .2d 213 , 215 (T enn. C rim. App . 1991). The
prejudice requirement is mod ified so that the petition er “mu st sho w that th ere is
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a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would h ave insisted on g oing to trial.” Hill, 474 U.S. at 59.
The Defendant first argues that he received ineffective assistance of
counsel because he was improperly advised to plead guilty to two counts of
aggravated kidnapping. He argues that the proof does not support h is
kidnapping convic tions a nd tha t his attorney fa iled to properly advise him about
the law of kidnapping. He contends that his kidnapping convictions were
esse ntially incide ntal to h is rape and robbe ry conv ictions and th erefor e that h is
convictions for kidnapping violate his due process rights.
In support of this argu ment, the D efendant re lies on the Tennessee
Supre me C ourt case of State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), which
sets forth the standard for determining whether movement or confinement
incidental to a crime such as robbery o r rape is su fficient to sus tain a sep arate
kidnapping conviction . In Anthony, the suprem e court concluded that the proper
inquiry is
whether the confinement, movement, or dete ntion is esse ntially
incidental to the accompanying felony and is not, therefore,
sufficient to support a separate conviction for kidnapping, or whether
it is significan t enoug h, in and o f itself, to warrant independent
prosecution and is, therefore, sufficient to support a conviction. . . .
[O]ne method of resolving this question is to ask whether the
defen dant’s conduct “substantially increased [the] risk of harm over
and ab ove that n ecessa rily present in the crime of robbe ry itself.”
Id. at 306. Simply stated, to uphold a conviction for kidnapping which
accompanies a related crime, the kidnapp ing “[m]u st . . . make[] the other crime
subs tantially easier of c omm ission or s ubstan tially lessen[] th e risk of de tection.”
Id.
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W e first note that the Defendant entered his guilty plea in 1989, two years
before the release o f Anthony in 1991. The Defendant, however, argues that the
ruling in Anthony was based at least in part on previous cases which were
availab le to his cou nsel at the time. See id. at 304-0 6. The Defendant would
have us conclud e that had his coun sel inform ed him of a poten tial Anthony-type
defense, either the State would have dropped all kidnapping charges against him,
or he would have proceeded to trial and prevailed on the Anthony issue. W e find
neither o f these ou tcome s likely.
The Defenda nt confessed to horrific crimes. The facts which we have
gleaned from the record, the majority of which come from the Defendant’s own
statem ents to police, though not tantamount to all evidence which would likely be
produced at a co mple te trial, ind icate e xtrem ely stron g proo f again st the
Defen dant. Furthermore, as our supreme court noted in Anthony, “despite the
rules, there is inevitably some unevenness in the application of the law to the
facts, even within jurisdictions, principally because the determination of whether
a detention or movement is incidental to another offense is highly dependent on
the facts in each ca se.” Id. at 306. Thus, it is totally uncertain whether, if the
Defendant had proceeded to trial, he would have prevailed with an Anthony
defens e.
Based upon a review of the proof before us, we cannot conclude that the
Defe ndan t’s representation was deficient with regard to the Defe ndan t’s
kidnapping convictions. Moreover, even assuming that the re was deficie ncy in
the Defendant’s representation, the Defendant has failed to show prejudice. He
simp ly has not demonstrated that “but for coun sel’s errors he wo uld not have
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pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52 , 59 (198 5). This iss ue is there fore witho ut merit.
The Defendant next argues that his counsel should have objected to the
trial court’s ex parte conference with one of the victims and her mother at the
senten cing hearing. This victim, who did not testify at the sentencing hearing,
was the victim of one of the aggravated robberies, an aggravated kidnapping, and
both aggravated rapes. The re is no record of the private conversation between
the judge, the victim, and her mother. However, the trial judge testified at the
post-conviction proceeding and denied having been unduly influenced by the
conversation.
It is not w ithin ou r realm of review to second-guess trial strategy decisions.
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Suffice it to say that there are
numerous possible reasons for Defendant’s counsel to choose not to o bject to
the ex parte conference. As the post-conviction judge pointed out, “[the
Defe ndan t’s counsel] knew the emotional nature of the case. He had th e
opportu nity to see [this victim] testify at the preliminary hearing. He knew the
impact that testimony could have at the sente ncing he aring. There was nothing
for him to gain by o bjecting to this sugg ested me eting.” We therefore decline to
find that the lack of an objection to the conference resulted in deficient
representation for the Defendant. In addition, there is no showing of prejudice.
Third, the Defendant argues that he received ineffective assistance of
counsel due to his attorney’s failure to challenge an y of the enhan cemen t factors
at the senten cing hea ring or on appea l. In respon se to this a rgume nt, we no te
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that this Court fully reviewed the Defendant’s sentence on appeal and affirmed
the sentences imposed by the trial court. The re cord shows that this Court
considered all enhancement factors and noted that som e of the factors we re
inappropriately ap plied. This Co urt, however, upheld the sentence imposed by
the trial court, concluding, “[W]e are satisfied that [the Defendant’s] sentences as
fixed by the trial judg e are of a length co mm ensura te with his crimes.” Therefore,
the Defendant has s hown no prejudice cau sed by his cou nsel’s failure to
challeng e the ap plied enh ancem ent factors , and this iss ue is witho ut merit.
Finally, the Defendant claims that his counsel was ineffective on appeal
and lists a number of reasons to support his claim. He states that
[w]hen the [appe llate] brief first became due, counsel did not file a
brief, and the Court of Criminal Appeals issued a show ca use order.
In response to the sho w caus e order, c ounse l attempte d to
withdraw. The Court refused to allow him to withdraw and ordered
him to file a brief. The attorney then file d a brie f which subs tantive ly
is five page s long. T he attorn ey did no t file a reply brief.
In addition, he states that his counsel “failed to file a motion to reconsider the
Court of Crimin al Appe als opinio n, affirming the sentence after the enhancing
factors were found to be inapplicable, and failed to file a Motion For Permission
to Appeal to the Suprem e Court.”
Reviewing the record before us, w e are unab le to find ineffective
representation concerning the appellate brief. Although Defendant’s counsel filed
the brief late, the Court of Criminal Appeals nevertheless accepted the brief and
considered it. For this reason, the Defendant has not shown prejudice resulting
from the late filing o f the brief. Furthermore, the submission of a five-page brief
does not constitute ineffective assista nce o f coun sel per se. From a review of the
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record, we do not find any deficiency of representation regardin g the brief itse lf.
Howeve r, even assuming deficiency of representation, the Defendant has failed
to show prejudice resulting fro m the len gth or co ntent of the brief.
However, with regard to counsel’s failure to file an application for
permission to appeal to the Tennessee Supreme Court, we conclude that the
Defendant should b e grante d a delay ed opp ortunity to appeal. Tenn. R. Sup . Ct.
28 § 9(D). Rule 14 of the Rules of the Supreme Court requires that counsel for
an indigent defendant obtain the consent of this Court before withdrawing as
counsel following first-tier review. Tenn . R. Sup . Ct. 14. Rule 14 also states that
counsel must forward a copy of his motion to withdraw and written notification
contain ing certain sp ecific inform ation to the defend ant. Id. “[U]nilateral
termination of a direct appeal following first-tier review entitles a prospectiv e
Defendant to relief in the form of a de layed appea l.” Pinksto n v. State, 668
S.W .2d 676, 677 (Tenn. Crim . App. 1984 ).
In the case before us, Defendant’s counsel testified at the post-conviction
proceeding that he sent to the Defend ant a copy of the opinion from this C ourt
accompanied by a letter explaining the Defendant’s options. He testified that the
Defendant never responded. However, Defendant’s counsel did not file an
application for permission to app eal to th e sup reme court, n or doe s it appear that
he filed a mo tion to withd raw as c ounse l. Although we find that this error alone
does not necessarily rise to the level of ineffective assistance of counsel, we
conclude that the Defendant should be granted the opportunity to pursue a
delayed appeal to the Tennessee Supreme Court. See Tenn. R. Sup. Ct. 28 §
9(D).
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In conclusion, in the words of the post-conviction judge, the Defendant
gave a deta iled ac coun t of his p articipa tion in this brutalization of the
[rape victim] in the pre-sen tence re port. He went on for some three
pages describing the sexual acts that he himself committed, and
that the other individual co mm itted, and fully acknowledged the
horrend ous na ture of this cr ime to the pre-sen tence o fficer . . . .
Based on the fac ts presen ted to us, w e simp ly canno t conclud e that but fo r his
coun sel’s alleged deficiencies, the Defen dant wo uld have elected to procee d to
trial on these charges.
W e accordingly affirm the judgment of the post-conviction court regarding
ineffective assistan ce of cou nsel. Ho wever, the Defen dant sh all have sixty days
to seek supre me c ourt re view of th is Cou rt’s decision affirming h is senten ce. See
Ten. R. Sup. Ct. 28 § 9(D); Tenn. R. App. P. 11.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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