IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1998 SESSION
FILED
April 30, 1998
Cecil Crowson, Jr.
MARIO BOYD, ) Appellate C ourt Clerk
) C.C.A. NO. 02C01-9703-CR-00110
Appellant, )
) SHELBY COUNTY
VS. )
) HON. L. T. LAFFERTY,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS C. FILA JOHN KNOX WALKUP
200 Jefferson Ave., Suite 925 Attorney General & Reporter
Memphis, TN 38103
GEORGIA BLYTHE FELNER
Counsel for the State
450 James Robertson Pkwy.
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
J. ROBERT CARTER
Asst. District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar St.
Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The petitioner was charged with first-degree murder and pled guilty to
second-degree murder pursuant to a negotiated plea agreement. As part of the plea
bargain, he was sentenced as a Range II multiple offender to thirty-five years
incarceration. Absent the plea agreement, the petitioner would have been sentenced as
a Range I offender. A little over a year after his plea, the petitioner filed for post-
conviction relief alleging that he had received ineffective assistance of counsel and that
his plea had not been knowingly and voluntarily entered. Following an evidentiary
hearing, the court below denied relief and this appeal as of right followed. We affirm the
court below.
“In post-conviction relief proceedings 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). Furthermore, the factual findings
of the trial court in hearings “are conclusive on appeal unless the evidence preponderates
against the judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).
This Court should not second-guess trial counsel’s tactical and strategic
choices unless those choices were uninformed because of inadequate preparation,
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be deemed to
have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 280 (Tenn. Crim. App.
1980).
In reviewing the petitioner’s Sixth Amendment claim of ineffective
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assistance of counsel, this Court must determine whether the advice given or services
rendered by the attorney are within the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a
claim of ineffective counsel, a petitioner “must show that counsel’s representation fell
below an objective standard of reasonableness” and that this performance prejudiced the
defense. There must be a reasonable probability that but for counsel’s error the result
of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).
To satisfy the requirement of prejudice, he would have had to demonstrate
a reasonable probability that, but for counsel’s errors, he would not have pled guilty and
would have insisted on going to trial. See Hill v. Lockart, 474 U.S. 52, 59 (1985);
Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).
At the hearing on the petitioner's claim for relief, both the petitioner and his
former lawyer testified. The petitioner's main complaint, as found by the court below, is
that neither his lawyer nor the trial court had informed him that the minimum sentence
available for second-degree murder was fifteen years, had he been convicted of that
offense by a jury and subsequently sentenced as a Range I offender. He claims that,
had he known this fact, he would not have pled guilty and would have gone to trial, in
spite of the fact that he would have been tried for first-degree murder, and, had he been
convicted of that offense, would have received a life sentence, albeit with the possibility
of parole. The petitioner's former lawyer testified that he was sure he had informed the
petitioner about the entire range of punishment for second-degree murder. The court
below found that the lawyer's testimony was “more credible [on] this issue” and that “the
State has proven by extrinsic evidence that the petitioner was aware of the range of
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punishment for murder second degree.” As the proof does not preponderate against
these findings, this issue is without merit.
The petitioner further alleged that his lawyer did not adequately investigate
the case, failed to prepare a defense, failed to confer with and inform him sufficiently, and
failed to request expert services In its findings on these allegations, the court below
stated:
[The petitioner's lawyer] met with [him] eight (8) times from
arraignment to March 15, 1995. . . . [His lawyer] did not find
it necessary to have the petitioner mentally examined since
the Juvenile Court did this routinely. [The petitioner's
attorney] was aware that the petitioner had a [7th] grade
education. [He] . . . mailed to the petitioner copies of motions
and discovery he had obtained from the State. The petitioner
corroborated this testimony. [The petitioner's lawyer] was not
able to prepare a defense to the charge of murder, as there
were numerous scene witnesses; the two defendants gave
implicating statements to the police; and the [petitioner] did
not deny his involvement, but denied the shooting. The State
advised [the petitioner's attorney] that in the event of trial, the
co-defendant Anthony Jackson, would be a witness for the
State and claim the petitioner was the shooter. [The
petitioner's lawyer] was able to get the State to reduce the
offer of settlement from 45 years to 35 years, always in
Range II. The petitioner felt it was in his own best interest to
plead guilty and accept 35 years in lieu of life.
Thus, the court below concluded that the petitioner “failed to prove factually and legally
that [his former lawyer] violated the holdings [of Strickland v, Washington and Baxter v.
Rose]”. Again, the proof does not preponderate against this finding, and this issue is
therefore also without merit.
Upon our review of the entire record of this matter, the evidence does not
preponderate against the lower court's findings. Given these findings, the denial of relief
was proper and we therefore affirm the court below.
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______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOE B. JONES, Judge
______________________________
THOMAS T. WOODALL, Judge
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