IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1998 SESSION
September 30, 1998
Cecil W. Crowson
Appellate Court Clerk
TERRY L. HALL, )
) NO. 01C01-9710-CC-00448
Appellant, )
) CHEATHAM COUNTY
VS. )
) HON. ALLEN W. WALLACE,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
CLIFFORD K. MCGOWN, JR. JOHN KNOX WALKUP
113 North Court Square Attorney General and Reporter
P.O. Box 26
Waverly, TN 37185 KAREN M. YACUZZO
(Appeal Only) Assistant Attorney General
Cordell Hull Building, 2nd Floor
STEVE STACK 425 Fifth Avenue North
Assistant District Public Defender Nashville, TN 37243-0493
P.O. Box 160
Charlotte, TN 37036-0160 DAN MITCHUM ALSOBROOKS
District Attorney General
ALAN R. BEARD
150 2nd Avenue North, Suite 315 JAMES. W. KIRBY
Nashville, TN 37201 Assistant District Attorney General
105 Sycamore Street
Ashland City, TN 37015-1806
OPINION FILED:
AFFIRMED
LEE MOORE,
SPECIAL JUDGE
OPINION
Petitioner, Terry L. Hall, was indicted on twenty-seven (27) counts of
aggravated rape. On April 8, 1991, petitioner pleaded guilty to four (4) counts of
rape. He agreed to accept an eight (8) year sentence on each of the four (4) counts
of rape with manner of service (concurrent, consecutive or probated) to be
determined by the trial court at a sentencing hearing. The sentencing hearing was
conducted on May 28, 1991. Petitioner was ordered to serve four (4), eight (8) year
sentences. The trial court ran each eight (8) year sentence consecutive to the
others. The issue of the sentence was appealed. The Court of Criminal Appeals
affirmed the decision of the trial court by order filed on August 5, 1993.
Petitioner subsequently filed a post-conviction petition alleging ineffective
assistance of counsel. Petitioner filed a motion for appointment of counsel on July
22, 1994. The motion bears the date of July 15, 1994. The petition for post-
conviction relief was forwarded for filing with the motion, although the petition bears
a separate date filed stamp. On July 1, 1994, an order was filed appointing the
District Public Defender to represent the petitioner. The state filed an answer to the
petition for post-conviction relief on August 11, 1994. A hearing was conducted on
the petition on April 30, 1997. The trial court dismissed the petition by order entered
on May 12, 1997. Notice of appeal was timely filed on May 27, 1997.
After a review of the post-conviction record on appeal and the applicable law,
the Court affirms the judgment of the trial court for the reasons stated below.
Petitioner alleges the assistance rendered by trial counsel was ineffective for
the reasons stated below.
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INEFFECTIVE ASSISTANCE OF COUNSEL- STANDARD OF REVIEW
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 898, 899 (Tenn. 1990).
The test in Tennessee in determining whether counsel provided effective
assistance is whether his performance was within the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The
petitioner must overcome the presumption that counsel's conduct falls within the
wide range of acceptable professional assistance. Strickland v. Washington, 466
U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim.
App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).
Therefore, in order to prove a deficiency, a petitioner must show that counsel's acts
or omissions were so serious as to fall below an objective standard of
reasonableness under prevailing professional norms. Strickland v. Washington,
466 U.S. at 688, 104 S.Ct. at 2065; Henley v. State, 960 S.W.2d 572, 579 (Tenn.
1997); Goad v. State, 938 S.W.2d at 369.
In reviewing counsel's conduct, a "fair assessment. . . requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." Strickland v. Washington, 466 U.S. at 689, 104
S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurt the defense,
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does not, standing alone, establish unreasonable representation. However,
deference to matters of strategy and tactical choices applies only if the choices are
informed ones based upon adequate preparation. Goad v. State, 938 S.W.2d at
369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley v. State, 958 S.W.2d at
149; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 203 (1985), the
Supreme Court applied the two-part Strickland standard to ineffective assistance of
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.
FACTS
At the post-conviction hearing, petitioner indicated that his trial counsel met
with him four (4) or five (5) times when he was going through court. According to
petitioner, trial counsel also met with petitioner's parents and family members.
Although he indicated that he did not understand all the time the things that trial
counsel was telling him, he did remember the guilty plea hearing. He remembered
the judge explaining to him his rights. He remembered the judge telling him he had
the right to assistance of counsel and that he had the right to cross-examine the
witnesses that the state would call to testify against him. He also remembered
reading this information but indicated that he did not understand it when he read it.
He later indicated that he could not remember whether the judge had advised him
of his rights. He thought he could remember trial counsel talking to him about
having particular witnesses who would testify if he went to trial. He did not recall
whether or not his trial counsel talked to him concerning whether or not he would
testify. He did remember pleading guilty to four (4) counts of rape. He admitted
having oral sex with his six (6) year old daughter and advised the judge accordingly
4
at his guilty plea hearing. He understood from talking to trial counsel that he was
going to get eight (8) years on each count and that it would be up to Judge Wallace
as to whether or not he would serve all those eight (8) years at one time or whether
they would be stacked on top of each other. He indicated, however, that he thought
he was going to have an effective eight (8) year sentence. His complaint at the
post-conviction hearing was that he got too much time. It appears at the post-
conviction hearing that the amount of time to which he was sentenced was his only
complaint.
Trial counsel, Allen Beard, indicated that he was an experienced lawyer in
criminal defense work in sex crimes while in the service. This case, however, was
his first major criminal case after being discharged from the service. He was
advised by petitioner's family that petitioner was either retarded or borderline
retarded. He requested an evaluation. The evaluating psychiatrist indicated that
petitioner was borderline but was not incompetent to stand trial. Petitioner was
charged with twenty-seven (27) counts of aggravated rape. He negotiated a plea
for four (4) counts of rape with the judge determining whether or not the sentences
were to run concurrently, consecutively or to be probated. Trial counsel indicated
that he discussed this disposition of the various cases with petitioner and his family.
He indicated that at the same time Mr. Hall's family also tried to explain to him what
was going on. Trial counsel was pretty satisfied that petitioner had an
understanding of the eight (8) year sentences and his family understood perfectly.
His plan of defense was toward mitigation of sentencing as he was satisfied that
there was "liability." He felt like the effective sentence would probably be eight (8)
to sixteen (16) years although he indicated that he advised petitioner that he could
be looking at thirty-two (32) years as a realistic possibility.
When questioned as to whether or not he should have pursued a motion to
suppress that he had filed, he indicated that he would probably pursue the motion.
He felt as if it were pretty strong. He indicated that at some point during questioning
5
that Mr. Hall had requested an attorney. He later indicated that at the point when
the request was made there was probably enough on the record that Mr. Hall was
damaged. There was certainly a danger of conviction even if they had stopped the
questioning at that point. His only other option other than the plea bargain would
have been to go to trial where there was a substantial liability or exposure to his
client. He felt like Mr. Hall knew the options as well as he could. He also indicated
that a lot of times Mr. Hall would surprise you with what he knew and other times
you might think he would know nothing.
After petitioner was sentenced to consecutive eight (8) year sentences, he
filed a Rule 31 motion to reconsider at which time the trial court heard proof from
another psychiatrist. The proof from the other psychiatrist, however, was not in the
post-conviction record. The court thereafter denied the petition indicating that trial
counsel had done a good job in that the situation was mitigated greatly because
petitioner had originally been charged with twenty-seven (27) counts of aggravated
rape and entered a plea to four (4) counts of rape with an agreed eight (8) year
sentence on each count.
CONCLUSION
Although there were several issues raised in the original petition for post-
conviction relief, the only issue raised on appeal is ineffective assistance of counsel
regarding the plea of guilty of petitioner. Any other issues raised in the original
petition were not briefed or argued on appeal and are, therefore, waived. The
essence of the issue raised on appeal centers around whether or not petitioner
understood his rights at the time of entering his plea of guilty. The proof in the post-
conviction record is clear that trial counsel felt that there was major exposure for
petitioner if he went to trial and was convicted. It is also clear that trial counsel felt
there was a grave danger of conviction. Trial counsel, therefore, negotiated a plea
bargain agreement at a reduced charge. Petitioner was indicted on twenty-seven
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(27) counts of aggravated rape. The plea bargain agreement was for a plea of
guilty to four (4) counts of rape with an agreed eight (8) year sentence on each
count. The court was to determine whether the sentences were to run concurrently
or consecutively or to be probated. The record is clear that petitioner was advised
of the possibility of an effective thirty-two (32) year sentence. Although there is no
record of the guilty plea hearing, petitioner admits that he was advised by the trial
judge of his constitutional right to trial, counsel and confrontation of witnesses. The
only real issue is whether or not petitioner was capable of understanding his rights.
The only evidence before this Court is that although petitioner was borderline
retarded with an effective I.Q. of 72, he was competent to stand trial. This
information also was the only evidence before the trial court at the time the court
accepted the guilty plea.
From a review of the post-conviction record, the petitioner has failed to carry
his burden of proving that his attorney's performance was deficient or that any such
deficient performance resulted in prejudice to the defendant so as to deprive him
of a fair trial. Petitioner has further failed 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. In fact, the evidence before us strongly suggests
that the petitioner had admitted the facts tantamount to aggravated rape and that
he was subject to a possible sentence totaling more than 1,000 years had he gone
to trial.
Accordingly, the judgment of the trial court is AFFIRMED.
LEE MOORE, SPECIAL JUDGE
CONCUR:
7
JOE G. RILEY, JUDGE
CURWOOD WITT, JUDGE
8
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
TERRY L. HALL, )
) C.C.A. No. 01C01-9710-CC-00448
Appellant, )
) Cheatham County No. 10995
vs. )
) (Post-Conviction)
STATE OF TENNESSEE, )
) AFFIRMED
Appellee. )
JUDGMENT
Came the appellant, Terry L. Hall, by counsel, and the state, by the Attorney
General, and this case was heard on the record on appeal from the Circuit Court
of Cheatham County; and upon consideration thereof, this Court is of the opinion
that there is no reversible error in the judgment of the trial court.
It is, therefore, ordered and adjudged by this Court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Circuit Court of
Cheatham County for execution of the judgment of that court and for collection of
costs accrued below.
It appears that appellant is indigent. Costs of appeal will be paid by the State
of Tennessee.
Per Curiam
Lee Moore, Special Judge
Joe G. Riley, Judge
Curwood Witt, Judge