IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1998 SESSION
July 15, 1998
Cecil W. Crowson
Appellate Court Clerk
DEON BRADEN, )
) NO. 01C01-9708-CC-00351
Appellant, )
) MAURY COUNTY
VS. )
) HON. JIM T. HAMILTON,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
HERSHELL D. KOGER JOHN KNOX WALKUP
131 North First Street Attorney General and Reporter
P.O. Box 1148
Pulaski, TN 38478 LISA A. NAYLOR
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
T. MICHAEL BOTTOMS
District Attorney General
STELLA L. HARGROVE
Assistant District Attorney General
10 Public Square
P.O. Box 1619
Columbia, TN 38402-1619
OPINION FILED:
REMANDED
JOE G. RILEY,
JUDGE
OPINION
The petitioner, Deon Braden, appeals the trial court's denial of his petition
for post-conviction relief. He alleges his original guilty plea was involuntary and
trial counsel rendered ineffective assistance by failing to inform him of the
potential sentence he could receive. After a thorough review of the record, we
REMAND to the trial court with instructions to enter findings of fact and
conclusions of law. Alternatively, if the trial court is unable to make findings of
fact due to the passage of time, a new hearing should be held.
I.
The petitioner pled guilty on April 27, 1994, to one (1) count of aggravated
assault, one (1) count of attempted aggravated assault and two (2) counts of
possession of cocaine for resale. He was given an effective sentence of fifteen
(15) years to be served consecutively with an earlier sentence for which the
petitioner was on probation at the time of the instant offenses.
The petitioner filed a petition for post-conviction relief on August 3, 1995.
A hearing on the petition was held on September 13, 1996. The testimony at the
hearing was conflicting as to whether counsel made the petitioner aware of the
potential sentences he faced upon pleading guilty. At the conclusion of the post-
conviction hearing, the trial court stated, “All right. I’m going to read this
transcript, and I’ll get an order out.” No order was entered. On July 24, 1997,
the petitioner filed a motion for clarification of judgment. A hearing was held
August 5, 1997, on the motion to clarify. The trial court ruled at the conclusion of
that hearing, “All right. I’m going to overrule the PCR and dismiss it. Draw me
an order.” The trial court then entered a form judgment which stated in pertinent
part, “This PCR has no merit and is denied and dismissed.” There were no
findings by the trial court.
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II.
The transcript of the guilty plea reveals that the trial court did not advise
the petitioner of the range of punishment for the offenses to which he pled as
required by Tenn. R. Crim. P. 11(c)(1). However, this obligation of the trial court
is not constitutionally based and cannot provide the basis for post-conviction
relief. Sneed v. State, 942 S.W.2d 567, 568 (Tenn. Crim. App. 1996).
Nevertheless, counsel should advise a person pleading guilty as to the range of
punishment he or she faces. A failure to do so should be considered in
determining whether the person received effective assistance of counsel.
III.
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).
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 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.
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IV.
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). However, in the instant case, there are no findings of fact for
this Court to review. The petitioner claims he was not informed by his attorney of
the possible sentences and would have proceeded to trial if he had been so
informed. The petitioner’s attorney testified he could not remember what he
advised the petitioner.
CONCLUSION
This case is, therefore, remanded for the trial court to set forth written
findings of fact and conclusions of law, pursuant to Tenn. Code Ann. § 40-30-
211(b), regarding the petitioner’s claim of ineffective assistance of counsel.
Alternatively, should the trial court find itself unable to make findings of fact due
to the passage of time, a new hearing should be conducted.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
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________________________________
CURWOOD WITT, JUDGE
________________________________
LEE MOORE, SPECIAL JUDGE
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