IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
January 28, 1999
Cecil W. Crowson
TOD J. WALLER, * Appellate Court Clerk
C.C.A. # 01C01-9712-CR-00565
Appellant, * DAVIDSON COUNTY
VS. * Hon. Ann Lacy Johns, Judge
STATE OF TENNESSEE, * (Post-conviction)
Appellee. *
For Appellant: For Appellee:
Judson W. Phillips John Knox Walkup
315 Deaderick Street, Suite 2395 Attorney General and Reporter
Nashville, TN 37238-2395
Daryl J. Brand
Senior Counsel
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
Patty Ramsey
Assistant District Attorney General
Washington Square Building
222 Second Avenue North
Nashville, TN 37201
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The petitioner, Tod J. Waller, appeals the trial court's denial of his
petition for post-conviction relief. In this appeal of right, the petitioner claims that his
trial counsel was ineffective and that the judgment of conviction should be set aside.
We find no error and affirm the judgment of the trial court.
On October 17, 1996, the petitioner entered negotiated pleas of guilt to
two counts of attempted aggravated rape and two counts of attempted aggravated
kidnapping. As a part of the plea agreement, the state did not prosecute a third
count of aggravated rape and two additional counts of aggravated kidnapping. The
trial court imposed consecutive, ten-year Range I sentences for each attempted
aggravated rape conviction and five-year Range I sentences for each of the two
attempted aggravated kidnapping convictions. The sentences for attempted
aggravated kidnapping were concurrent to each other but ordered to be served
consecutively to the sentences for attempted aggravated rape. Thus, the effective
sentence was twenty-five years.
In this petition for relief, the petitioner claimed that his pleas of guilty
were not knowing or voluntary, that his trial counsel had been ineffective, and that,
but for the advice of trial counsel, he would not have entered pleas of guilt and
would have insisted on proceeding to trial.
At the evidentiary hearing, the petitioner testified that he had
attempted suicide a number of times up to and including the day of his arrest. He
claimed that he was intoxicated on the day of his arrest and admitted to an alcohol
addiction. He recalled that he discussed with his trial counsel the possibility of a
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psychological defense. He claimed that he had wanted a trial but that his trial
counsel had told him that a trial was not in his best interest. While he remembered
that his trial counsel had informed him of his constitutional rights, he claimed at the
evidentiary hearing that he had not understood his rights entirely. In particular, the
petitioner believed that he would be released after serving thirty percent of his
twenty-five-year sentence because his trial counsel did not inform him that he was
merely parole eligible at that time.
The petitioner maintained that he was just "going through the motions"
and responding to the questions imposed by the trial judge as he was instructed:
"[J]ust say yes." The petitioner claimed that, had he gone to trial, there was a
possibility that the some of the kidnapping charges could have been dismissed, a
fact his trial counsel had failed to point out. See State v. Anthony, 817 S.W.2d 299
(Tenn. 1991).
Trial counsel, who had been employed by the public defender's office
for approximately twelve years and had represented thousands of defendants,
testified that he met with the petitioner before the preliminary hearing and several
other times throughout the course of his representation. He testified that he met
with the petitioner's mother, obtained discovery from the state, investigated the
facts, and advised the petitioner that, if he proceeded to trial, he would likely be
convicted of some of the charges. Trial counsel recalled that the victim had been an
effective witness at the preliminary hearing and that the petitioner's version of
events did not entirely refute the charges. Trial counsel remembered informing the
petitioner of the sentencing ranges and parole eligibility. He maintained that he had
no difficulty communicating with the petitioner. Trial counsel testified that he
obtained the petitioner's medical records from Middle Tennessee Mental Health
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Institute and that he obtained the results of a separate mental evaluation arranged
by the petitioner's parents. Trial counsel recalled discussing the results of the
evaluation with the psychologist. He also testified that he was aware of the 1991
supreme court opinion in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), and had
considered the opinion in his assessment of the case.
Trial counsel testified that on the day of the guilty plea, he
communicated with the petitioner for thirty to forty-five minutes and that the
petitioner gave no indication that he did not understand their discussion. He did not
deny advising the petitioner to "hold it together a little longer" during the submission
hearing, explaining that the petitioner was "high strung" and tended to be overly
emotional. Trial counsel claimed that his advice was aimed to discourage the
petitioner from becoming overcome by his anxieties.
The trial court denied post-conviction relief, concluding that trial
counsel had provided competent representation. In its findings of fact, the trial court
determined that trial counsel was "highly attuned to ... [the] psychological and
emotional issues" in the case, that he had maintained adequate contact with the
petitioner, and that he had advised petitioner of the legal consequences of the plea
"in detail." The trial court also concluded that, from the factual excerpt presented at
the submission hearing, this was "not a clear cut situation where there would have
been merger" under the rule established in Anthony.
When a petitioner seeks post-conviction relief on the basis of
ineffective assistance of counsel, he must first establish that the services rendered
or the advice given was below "the range of competence demanded of attorneys in
criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he
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must show that the deficiencies "actually had an adverse effect on the defense."
Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, no relief is warranted. As to guilty pleas, the petitioner must
establish a reasonable probability that, but for the errors of his counsel, he would
not have entered the plea and would have insisted on going to trial. Hill v. Lockhart,
474 U.S. 52, 59 (1985).
Under our statutory law, the petitioner bears the burden of proving his
allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On
appeal, the findings of fact made by the post-conviction trial court are conclusive
and will not be disturbed unless the evidence contained in the record preponderates
against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The
burden is on the petitioner to show that the evidence preponderated against those
findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
In our view, the testimony at the evidentiary hearing does not
preponderate against the post-conviction trial court's conclusion that trial counsel
rendered effective assistance to the petitioner. The petitioner has neither identified
any investigative step that his trial counsel failed to undertake nor presented any
material evidence that his trial counsel failed to discover.
The petitioner also alleged that his trial counsel should have obtained
an additional psychological evaluation. At the evidentiary hearing, however, trial
counsel established as fact that he had reviewed the mental evaluation obtained by
the parents of the petitioner and had discussed the results with the psychologist who
conducted the evaluation. Trial counsel, who had prior experience in advancing a
defense based upon mental condition, determined that such a defense was not a
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viable in this case. The record establishes that the petitioner was unable to present
any testimony to controvert that conclusion and this court may not second-guess the
tactical and strategic choices made by trial counsel unless those choices are
uninformed because of inadequate preparation. Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982).
The petitioner also asserts that his trial counsel's acknowledgment that
he "did not have a particularly good memory" supports a conclusion that the trial
court erred in accrediting the testimony of trial counsel. We disagree. This court
may not reweigh or reevaluate the evidence or substitute its inferences for those
drawn by the trial court and may not reassess the credibility of witnesses or the
weight and value to be given their testimony. Black v. State, 794 S.W.2d 752, 755
(Tenn. Crim. App. 1990).
Next, the petitioner alleges that the transcript of the plea submission
hearing demonstrates that his emotional instability at the time of the plea would
negate the validity of his guilty pleas. He asserts that trial counsel's advice to "hold
it together just a little longer" supports his quest for post-conviction relief. The
explanation by trial counsel and his testimony that he had seen no indication that
the petitioner had problems understanding the proceedings was satisfactory. The
transcript of the submission hearing supports the trial court's conclusion that the
petitioner knowingly and voluntarily entered his pleas and does not support his claim
that he would have insisted on going to trial but for erroneous advice of trial counsel.
Finally, the petitioner argued during his post-conviction proceeding that
his trial counsel was ineffective by failing to advise him regarding the possibility of
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either dismissing altogether or merging some of the aggravated kidnapping
convictions with the aggravated rape convictions under the rationale expressed in
Anthony. In this appeal, however, the petitioner has omitted all reference to this
issue and has provided no supporting argument. In consequence, this issue must
be treated as waived. Tenn. Ct. Crim. App. R. 10(b).
Accordingly, the judgment is affirmed.
_________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
John H. Peay, Judge
_____________________________
Jerry L. Smith, Judge
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