IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
AUGUST SESSION, 1997 October 28, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
ANTH ONY L. WAS HING TON , ) C.C.A. NO. 02C01-9610-CR-00373
)
Appe llant, )
) SHELBY COUNTY
)
V. )
) HON . JAME S C. B EASLE Y, JR.,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (POST-C ONVIC TION)
FOR THE APPELLANT: FOR THE APPELLEE:
GERAL D SKAH AN JOHN KNOX WALKUP
140 North Third Street Attorney General & Reporter
Memphis, TN 38103
KENNETH W. RUCKER
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
JANET SHIPMAN
Assistant District Attorney General
201 Poplar Street, Suite 301
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
Petitioner, Antho ny W ashin gton, a ppea ls the trial cou rt’s den ial of his
petition for post-co nviction relief. P etitioner wa s charg ed with the crimes of first
degree murder, theft, aggravated robbery (four counts) and especially aggravated
robbery (two cou nts). He pled guilty in October 1995. Petitioner was sentenced
to life imprisonment on the first degree mu rder charge, fou r (4) years
incarceration on the theft charge, four (4) sentences of twelve (12) years
incarceration on the aggra vated robbe ry charges, an d two (2) sentences of
twenty-five (25) years incarceration for each especially aggrava ted robbery
conviction, with all sentences to run con currently. Petitioner only challenges the
conviction for first degree murde r. He argu es that he was de nied his S ixth
Amendment right to the e ffective ass istance o f counse l. We affirm the judgment
of the trial cou rt.
“In post-conviction relief proceedings the petitioner has the burden of
proving the allegations in his pe tition by a preponderance of the e vidence .”
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 preponde rates against the judgmen t.” State v. Buford , 666 S.W .2d 473,
475 (Tenn . Crim. A pp. 198 3). In reviewing the Sixth Amendment claim of
ineffective assistance of counsel by Petitioner, this court must determine whether
the advice given or services rendered by the attorney are within the range of
competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523
S.W.2d 930, 936 (T enn. 1975 ). To pr evail on a claim of ineffective assistance of
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counse l, a petitioner “must show that counsel’s representation fell below an
objective standard of reasonableness” and that this performance prejudiced the
defense. To satisfy the requ irement of prejud ice, Petitioner would h ave to
demo nstrate a reasonable probability that, but for counsel’s errors, he would not
have pled guilty and would h ave insiste d on go ing to trial. See Hill v. Lockhart,
474 U.S. 52 , 59 (198 5); Banks ton v. State , 815 S.W.2d 213, 215 (Tenn. Crim.
App. 1991 ).
Two witnesses testified at the hearing on the petition for post-conviction
relief. First, the Pe titioner testified reg arding his claim s of trial c ouns el’s
ineffectiveness. He stated tha t counse l only me t with him s even tim es prior to
trial, for a period of five (5) to ten (10) min utes pe r visit. Due to the short nature
of the meetings, in which Petitioner felt rushed, he did not have time to
adeq uately confer with his coun sel. Petitioner then testified that he had provided
names of poten tial alibi witnesses, including his grandmother, Bertha Woods, and
an unidentified neighbor, but counsel failed to interview or subpoena them for
trial.
Petitioner further testified that coun sel failed to provide him with copies of
any discovery information. Another allegation by Petitioner was th at counsel
failed to file pre-trial motions, specifically including a motion to suppress
Petition er’s statement. Petitioner stated that he was seventeen (17) years old at
the time he was questioned by the police, and that he made the statement
admitting the above acts only because the police were threatening him. When
Petitioner questioned counsel regarding the motion to suppress, he told Petitioner
he was “pu tting it off until further notice.”
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On the issue of his plea agreem ent, Petition er stated that coun sel failed to
correc tly inform him of the consequences of that plea as counsel advised him that
he would only serve a period of sixteen (16) and one-half (½) years incarceration.
When Petition er told c ouns el he d id not wan t to plead g uilty to the murder charge,
but only to the remaining charges, counsel informed Petitioner that the plea was
“all or nothing.” As a result of all of the above, Petitioner claims that counsel was
inade quate ly prepared for trial and that he was, therefore, forced to plead g uilty.
Trial counsel testified for the State regarding his representation of
Petitioner. He wa s appo inted to rep resent P etitioner an d worke d closely w ith
Petitioner’s mother, Jacqueline Washington, throughout the case. Counsel
stated that it was his practice to confer on Sunday afternoons with clients who
were in jail, and therefore he normally met with Petitioner on that particular day
of the we ek. He a lso me t with Petitioner on various occasions when they were
in court. Counsel reported that in his claim for attorney’s fees, he was
reimbursed for 12.7 hours in co urt and 14.5 h ours of time spent out of court on
Petition er’s case. Also, counsel stated that any short meetings betwe en him self
and Petitioner, of a dura tion les s than half an hour, w ere no t record ed on this
sheet a s he did n ot ask for c ompe nsation fo r that am ount of tim e.
Counsel interviewed the only alibi witness Petitioner named, Bertha
Woods. Ms. Woods, Petitioner’s grandmother, was in poor health and had no
spec ific recollection of the events that took place on the day in question, therefore
counsel was not able to use her as an alibi witness. Counsel recalled that
Petitioner told him an up stairs n eighb or wou ld also serve as an alibi witness, but
Petitioner could not recall that neighbor’s name. The attempts of counsel and
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Petitioner’s mother to locate this witness were to no avail. Counsel recollected
that Petitioner got copie s of all of th e disco very info rmatio n whic h was availab le
to him prior to tr ial.
On the issue of pre-trial motions, counsel stated that he filed ap proxim ately
ten (10) to fifteen (15) motions prior to trial, including a brief motion to suppress.
The prose cutor in forme d cou nsel th at if he elected to a rgue the motion to
suppress, then the negotiated plea agreem ent offer w ould be revoked . Because
trial counsel knew that he could defer argument on the motion to suppress until
the time of trial, he chose not to argue the motion at that time. Regarding the
plea bargain, coun sel did not recall stating tha t Petitioner would serve only
sixteen (16) and one-ha lf (½) years , but stand ardly advis ed clients that with a life
sentence it is difficult to ascertain how long the actual incarceration time will be.
W hile counsel did advise Petitioner that he would either h ave to ta ke the State’s
offer and p lead g uilty to all charges or go to trial on all the charges, he did not
coerce or force Petitioner into pleading guilty.
Upon review of the re cord, in cludin g Petitioner’s gu ilty plea h earing , this
court finds that the Petitioner was not de nied th e effec tive ass istanc e of co unse l.
The judge chose to accredit the testimony of trial counsel over that of P etitione r’s
testimony, and the evidence does not preponderate against these findings. From
the testimony of trial counsel, his preparation was more than sufficient to provide
Petitioner with effective representation. In addition to meeting with the Petitioner
on numerous occasions, counsel interviewed any and all witnesses which
Petitioner was able to iden tify. The complaint regarding the “unidentified”
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neighbor is completely unjustified, particularly in light of the testimony that
counsel and Petitioner’s mother attempted to locate this unnamed alibi witness.
On the issue of alibi witnesses, a petitioner is not entitled to any relief “unless he
can produ ce a m aterial w itness who (a ) could have been found by a reaso nable
investigation and (b) would have testified favorab ly in sup port of h is defe nse if
called.” Black v. State, 794 S.W .2d 75 2, 758 (Ten n. Crim . App. 1 990). T his
court may not speculate on whether further investigation would have revealed
a material witness or what a witness’s testimony might have been, a nd it was
Petitione r’s duty to pre sent this w itness at th e eviden tiary hearin g. Id. at 757.
Another claim by Petitioner which was not proven by a preponderance of
the evidence is that of counsel’s failure to file pre-trial motions. Counsel testified
that he filed ten (10) to fifteen (15) p re-trial mo tions, includ ing a brief m otion to
suppress Petitioner’s statemen t. Wh en que stioned a s to why h e chos e not to
argue the motion to suppress, counsel stated that he was advised that if he
argued such motio n, then any offe rs for a p lea ba rgain would be revoked by the
State. This court should not second-guess trial counsel’s tactical and s trategic
choices unless those choices were un informe d beca use of ina dequa te
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). While a different
strategy might have been employe d by counsel, counsel may not be deemed
ineffective because he chose not to argue the motion . See William s v. State, 599
S.W .2d 276, 280 (Tenn. Crim . App. 1980 ).
Petitioner has failed to demonstrate that he would not ha ve entered a guilty
plea were it not for the ineffective assistance of his counsel. Petitioner was
prope rly advised of his rights by trial counsel and the trial judge prior to entering
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a plea of guilty, which he did volunta rily and kno wingly. In the judge’s findings of
fact, he correctly reasoned that trial counsel recommended the plea to Petitioner
after extensive cons ideration of all factors involved and lengthy n egotiation s with
the State, and the “ultimate decision” to plead guilty was made by Petitioner after
conferrin g with his m other an d his trial cou nsel.
A thorough review of the record reflects that the trial court properly denied
Petitioner’s post-con viction petition . We affirm the ju dgme nt of the trial co urt.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
DAVID G. HAYES, Judge
___________________________________
JERRY L. SMITH, Judge
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