IN THE COURT OF CRIMINAL APPEALS
AT NASHVILLE FILED
AUGUST 1997 SESSION
September 30, 1997
Cecil W. Crowson
Appellate Court Clerk
LORENZO C. WATERS )
) C.C.A. NO. 01C01-9609-CR-00402
Appellant )
) DAVIDSON COUNTY
VS. )
) Hon. Ann Lacy Johns
STATE OF TENNESSEE ) Judge
)
Appellee. ) (Post Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
W. CASEY REED JOHN KNOX WALKUP
211 Printers Alley Building Attorney General and Reporter
Suite 400
Nashville, Tennessee 37201 DARYL J. BRAND
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
VICTOR JOHNSON
District Attorney General
ROGER MOORE
Assistant District Attorney General
Washington Square Building-Suite 500
222 Second Avenue, North
Nashville, Tennessee 37201
OPINION FILED:_____________________
AFFIRMED
JOE H. WALKER, III
Sp. JUDGE
OPINION
The appellant, Lorenzo C. Waters, appeals as of right from a judgment of the trial court
denying his petition for post-conviction relief, following an evidentiary hearing. Appellant
alleges that he received ineffective assistant of counsel when he entered a plea of guilty to
murder in the second degree and received a sentence of forty years as a Range II offender.
Procedural History
Petitioner was indicted on charges of first degree murder and aggravated rape. An
assistant public defender was appointed to represent the petitioner. On May 27, 1994, the
petitioner entered a plea of guilty to second degree murder, on the negotiated agreement that he
would be sentenced as a Range II offender to forty years, and the State would move to dismiss
the aggravated rape charge.
Within one year of entry of the plea, petitioner filed for post-conviction relief, alleging
ineffective assistance of counsel. Counsel was appointed to assist petitioner and filed an
amended petition for post-conviction relief.
The trial court conducted an evidentiary hearing, and announced findings of fact and
conclusions. It determined that petitioner failed to carry the burden of proof with the respect to
allegations of ineffective assistance of counsel. It found from testimony presented at the hearing
that petitioner’s counsel fully investigated the matter, well represented the petitioner prior to the
entry of a plea, investigated the case, interviewed witnesses, and was diligent, effective and able
to negotiate a favorable plea settlement. The trial court further found that petitioner voluntarily
plead guilty to second degree murder and that the plea was intelligently and knowingly entered.
Factual Background
On October 2, 1993, police were called by the live-in boyfriend of the victim, Ms.
Stewart. The boyfriend had come home and found the nude body of Ms. Stewart. She had been
strangled and had multiple knife wounds. Witnesses placed the petitioner trying to break into the
apartment. The petitioner signed a written waiver of his rights and told officers what he had
done. Petitioner termed the multiple knife wounds and strangulation as overkill, because he
wanted to make certain the victim was dead when he left her. The victim was pregnant.
I.
After petitioner was indicted on charges of first degree murder and aggravated rape, a
senior assistant public defender, Mike Engle, was appointed to represent petitioner. Attorney
Engle had been licensed to practice law in Tennessee for approximately twenty years and had
served several years in the Public Defender’s Office. He had handled numerous criminal cases,
including cases involving charges of first degree murders.
Attorneys from the Public Defender’s Office met and discussed the facts of the case with
petitioner twenty-two times. Engle testified that they met with petitioner more frequently than
some other clients due to the seriousness of the case.
The attorneys obtained full discovery from the state, including both the audio and video
tapes of petitioner’s statements, as well as the transcripts. Mr. Engle played the tapes for
petitioner, so that petitioner could review the tone and inflections of his statements as well as the
content. He discussed the statements with petitioner several times. At the preliminary hearing,
Attorney Engle was allowed to examine witnesses about the circumstances of the statements, and
after a thorough investigation and discussion, Attorney Engle concluded that there did not exist
sufficient legal or factual grounds for a motion to suppress the statements.
Petitioner alleges that the attorneys failed to interview two potential witnesses. However,
Attorney Engle testified that the witnesses were interviewed and that the testimony would not
help the defense. One witness would have testified that he drove petitioner to the scene of the
crime at approximately the time the murder occurred. The other witness would have testified
that she spoke with petitioner after the murder, before he spoke to police, and told him that there
was street talk about his involvement in the murder.
His attorneys explained to petitioner the potential exposure to conviction and the possible
punishments. Attorney Engle testified that petitioner appeared to understand. The attorneys
obtained petitioner’s consent to attempt plea bargain negotiations. They were able to secure a
plea bargain to second degree murder, rather than first degree, with the provision that the
aggravated rape charge would be dismissed. The transcript of the plea proceeding was made an
exhibit to the post-conviction petition hearing and reveals that when entering the plea of guilty,
petitioner assured the court that he fully understood the proceedings, that he was waiving his
right to a trial, waiving his right to appeal, and agreed to the plea arrangements. He further told
the court that he had had no problems communicating with his attorney and had no complaint
about the job that the attorney had done in this case.
II.
On appeal, the trial court’s decision on a petition for post-conviction relief is
given the weight of a jury verdict, and the findings of fact are conclusive on appeal absent a
finding the evidence preponderates against the judgment. Clenny v. State, 576 S.W.2d 12, 14
(Tenn.Crim.App. 1978), cert. denied, 441 U.S.947, 99 S.Ct.2170 (1979); Taylor v. State, 875
S.W.2d 684, 686 (Tenn.Crim.App. 1993), perm. to appeal denied (Tenn. 1994).
When a petition challenges the effective assistance of counsel, the petitioner has the
burden of establishing (1) deficient representation and (2) prejudice resulting from the deficiency.
Strickland v. Washington, 466 U.S. 668, 686 (1984); Fredrick v. State, 906 S.W.2d 927 (Tenn.
Crim. App. 1993).
Deficient representation occurs when counsel provides assistance that falls below the
range of competence demanded of criminal defense attorneys. Bankston v. State, 815 S.W.2d
213, 215 (Tenn.Crim.App. 1991). Prejudice is the reasonable likelihood that, but for deficient
representation, the outcome of the proceeding would have been different. Overton v. State, 874
S.W.2d 6, 11 (Tenn. 1994).
In order to prove prejudice in the context of a guilty plea, the petitioner must demonstrate
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. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct.
366, 370, 88 L. Ed. 2d 203 (1985); see Bailey v. State, 924 S.W.2d 918, 919 (Tenn.Crim.App.
1995); Wade v. State, 914 S.W.2d 97, 101 (Tenn.Crim.App.1995).
III.
The petitioner has failed to establish that the evidence preponderates against the judgment
of the trial court. He did not establish that his representation was deficient, nor did he show
prejudice resulting from a deficient representation.
We agree with the trial court that the petitioner’s claim of ineffective assistance of
counsel is without merit. Accordingly, we affirm the trial court’s judgment.
__________________________
JOE H. WALKER, III
Sp. JUDGE
CONCUR:
_______________________
JOE G. RILEY, JUDGE
______________________
J. CURWOOD WHITT, JR., JUDGE
Lorenzo C. Waters v. State
Combined Opinion