IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
SEPTEMBER 1997 SESSION
September 26, 1997
Cecil Crowson, Jr.
SAMMIE NETTERS, ) Appellate C ourt Clerk
) NO. 02C01-9610-CR-00322
Appellant, )
) SHELBY COUNTY
VS. )
) HON. BERNIE WEINMAN, JUDGE
STATE OF TENNESSEE, )
) (Post-conviction)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
HOWARD B. MANIS JOHN KNOX WALKUP
200 Jefferson, Suite 1313 Attorney General and Reporter
Memphis, TN 38103
ELIZABETH T. RYAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
REGINALD HENDERSON
Assistant District Attorney General
201 Poplar Ave., Suite 301
Memphis, TN 38103
OPINION FILED:
REVERSED AND REMANDED
JOE G. RILEY,
JUDGE
OPINION
This is an appeal from the dismissal of appellant’s petition for post-conviction
relief. The sole issue is whether appellant was deprived of effective assistance of
counsel at the time of entry of his prior guilty plea. Based upon the factual findings
of the trial court, we conclude that appellant’s counsel had a conflict of interest.
Since this conflict is presumptively prejudicial to appellant, we must set aside the
guilty plea and remand for further proceedings.
PROCEDURAL HISTORY
Appellant originally pled guilty to attempted second degree murder and
aggravated burglary. Defendant was sentenced to eight (8) years on the first count
with six (6) years concurrent on the second count, both to be served in TDOC. His
co-defendant on the burglary charge, Vincent Sims, pled guilty to aggravated burglary
and was sentenced to three (3) years in the local workhouse. All counts arose out
of the same incident.
FACTS
Appellant, indicted for two counts of attempted first degree murder and one
count of aggravated burglary, was appointed Assistant Public Defender, Melvin
Turner, as his counsel. His co-defendant on the burglary count, Vincent Sims, was
appointed Assistant Public Defender, Bethel Alan Newport. It is undisputed that
appellant had always expressed a desire to go to trial. The trial date was to be
Monday, January 25, 1993. However, on Friday, January 22, 1993, the co-
defendant’s assigned counsel, Newport, discussed a possible plea agreement with
appellant. Appellant’s assigned attorney, Turner, was not present. Newport told
appellant that Sims could not plead guilty unless appellant did, and Sims had to go
to trial if appellant did. Sims preferred to plead guilty rather than go to trial.
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Sims had stated that appellant shot at the alleged victims. Appellant had
maintained he shot into the air to scare them.
Attorney Newport questioned appellant regarding the facts of the case and,
subsequently, advised him it would be in his best interest to take an offer of eight (8)
years for one count of attempted second degree murder and six (6) years for
aggravated burglary, to run concurrently. 1 Newport testified that Turner had given
him permission to speak to appellant. Turner testified to the contrary. This factual
dispute was not resolved by the trial court.
Newport told appellant his decision to go to trial was going to “mess up” the
co-defendant, but it was appellant’s choice. He told him that he needed to make a
decision that day since the court did not like to accept pleas on the date of trial.
Appellant decided to plead guilty pursuant to the plea offer although he told Newport
that he did not like it. Appellant signed the guilty plea, and Newport signed “Melvin
Turner by B. A. Newport.”
Both defendants entered guilty pleas. The state’s recital of facts
encompassed both defendants and recommended that the plea agreements be
accepted as to both. Newport asked the court to accept the negotiated sentences
for both defendants. Following the entry of the guilty plea by appellant, the co-
defendant entered his guilty plea pursuant to a plea agreement. The co-defendant
received a sentence of three (3) years for aggravated burglary.
GUILTY PLEA PROCEEDING
During the taking of appellant’s plea, on the constructive eve of trial, the judge
learned that appellant’s assigned attorney, Melvin Turner, was not in the courtroom.
Appellant further stated that he had not discussed the facts with Turner and had not
seen him in the previous two weeks. The judge asked “. . . how . . . can you plead
guilty to something if you haven’t really intelligently talked to your attorney about [your
1
Newport testified that he saw no conflict in repre sen ting bo th defendan ts. It is unclear from
Newport’s testimony whether he conceded that he was aware of Sims’ statement inculpating
appellant. Regardless, the trial court found that counsel had a “conflict that would mak e it
inapprop riate for the s am e lawyer to repres ent both persons cha rged in this ca se.”
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case]?”
A. [APPELLANT] He told me I had no chance of
winning. So I feel like I — if I couldn’t win, I’m on
my way. I’m ready to give myself eight rather than
let him give me eight.
Q. Well, I’m not sure based on your statements I can
accept the plea from this man if he hasn’t talked to
Mr. Turner about the facts.
MR. NEWPORT: Mr. Netters, have we talked
about the facts?
A. Yeah, me and you talked about it.
....
THE COURT: Well, I’m going to cross out Melvin
Turner’s name here.
The court wrote in “Bethel Newport” beside “Melvin Turner,” which he lined
through, thus appointing co-defendant’s counsel to appellant also.
After the court discussed the plea agreement with appellant, the court asked:
Q. Do you clearly understand that you are admitting
that you are guilty? That you admit that you did
this when you plead guilty?
A. Well, I did something, but I don’t think I did what
the State says I did.
Q. Okay. You take issue with what they say. Well,
I’ll talk to you about that. But in the eyes of the
law, when you plead guilty to criminal attempt, to
wit[:] murder second degree, that’s what the law
says you did. . . . . You claim you’re not guilty
under these facts and circumstances?
A. No, sir.
Q. Okay. We have a principal [sic] of law called
Alford v. North Carolina. That’s a United States
Supreme Court opinion that said you can plead
guilty if you feel it’s in your own best interest.
....
Q. Ordinarily I can’t take a guilty plea from an
individual who says he’s not guilty. The only way
I can do that is if you feel that’s — if you want to
go ahead and plead guilty knowing fully the
consequences and if you feel in your own best
interest you should do this.
A. Yes, it is [in] my best interest.
Attorney Turner entered the courtroom at some point after the proceedings
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had begun. After the judge had interrogated the appellant concerning his plea,
Turner then sought permission to and did question appellant on the record about his
remarks that Turner had not properly represented him. In spite of his dissatisfaction
with Turner, appellant subsequently stated he still wanted to plead guilty. The trial
court accepted the plea agreement.
POST-CONVICTION COURT FINDINGS
The post-conviction court made the following findings:
(1) appellant had denied shooting a gun at the alleged victims;
(2) co-defendant Sims’ statement was to the contrary, alleging appellant
fired at the alleged victims;
(3) the conflicting statements of the co-defendants made it “inappropriate”
for the same lawyer to represent both persons;
(4) the appellant, nevertheless, freely and voluntarily entered the guilty
plea;
(5) appellant believed the plea to be in his best interest; and
(6) the plea was not the result of counsel’s errors.
The court, therefore, concluded that appellant suffered no prejudice and
dismissed the petition.
INEFFECTIVE ASSISTANCE OF COUNSEL
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
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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. Id. at 59.
POST-CONVICTION STANDARDS FOR REVIEW
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
at 899-900; Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim. App. 1994). The trial
court’s findings of fact are afforded the weight of a jury verdict, and this Court is
bound by the trial court’s findings unless the evidence in the record preponderates
against those findings. Dixon v. State, 934 S.W.2d 69, 71-72 (Tenn. Crim. App.
1996). This Court may not reweigh or reevaluate the evidence, nor substitute its
inferences for those drawn by the trial judge. Massey v. State, 929 S.W.2d 399, 403
(Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.
1990). Questions concerning the credibility of witnesses and the weight and value
to be given to their testimony are resolved by the trial court, not this Court. Black v.
State, 794 S.W.2d at 755. The burden of establishing that the evidence
preponderates otherwise is on the petitioner. Id.
PUBLIC DEFENDER’S OFFICE
In determining whether counsel had a conflict in representing both defendants,
we first address whether the appointment of two separate attorneys, both of whom
are assistant public defenders, solved any potential conflict. We think not. Since
both attorneys were employed by the local public defender’s office, the issue is
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whether the public defender’s office had a conflict. The fact that two separate
attorneys were actually named does not resolve a conflict. Whether Newport did or
did not have Turner’s permission to speak with appellant on the date of the plea is
not determinative of this issue.
CONFLICT OF INTEREST
The mere fact that counsel might have a potential conflict of interest in
representing multiple clients does not authorize a presumption of ineffective
assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d
333 (1980); State v. Parrott, 919 S.W.2d 60 (Tenn. Crim. App.1995). However, if an
attorney actively represents conflicting interests, prejudice is presumed. Strickland
v. Washington, 466 U.S. at 692; Cuyler v. Sullivan, 446 U.S. at 349-50; State v.
Thompson, 768 S.W.2d 239, 245 (Tenn. 1989), cert. denied 497 U.S. 1031, 110
S.Ct. 3288, 111 L.Ed.2d 796 (1990). The proper focus is solely upon whether
counsel’s conflict affected counsel’s actions and the defendant’s decision; therefore,
it is inappropriate to consider whether another attorney, untainted by a conflict of
interest, would also have recommended a guilty plea. Thomas v. Foltz, 818 F.2d 476
(6th Cir.), cert. denied, 484 U.S. 870 (1987).
In this case the trial court expressly found that counsel from the public
defender’s office had a conflict of interest making it inappropriate for one attorney to
represent both appellant and his co-defendant. This finding is certainly supported by
the following facts: (1) the plea offer was contingent upon both appellant and his co-
defendant pleading guilty; (2) the co-defendant desired to plead guilty, whereas
appellant had consistently desired to go to trial; (3) assigned counsel for the co-
defendant advised appellant that his failure to plead guilty could “mess up” the co-
defendant’s desire to plead guilty; (4) co-defendant had stated the appellant fired at
the alleged victims, whereas appellant insisted he had fired shots into the air; (5)
counsel who represented co-defendant was actually substituted as counsel for
appellant at the guilty plea proceeding; and (6) appellant at the guilty plea proceeding
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denied guilt on the attempted murder charge and, at the suggestion of the trial court,
entered a “best interest” plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91
S.Ct. 160, 27 L.Ed. 2d 162 (1970).
The trial court’s finding that defense counsel had an actual conflict of interest
limits our legal inquiry. In view of this finding, which is clearly supported by the
record, there is a presumption of prejudice relating to ineffective assistance of
counsel. Strickland v. Washington, 466 U.S. at 692; Cuyler v. Sullivan, 446 U.S. at
350; State v. Thompson, 768 S.W.2d at 245.
It is undisputed that appellant entered his guilty plea after having been advised
by counsel with a conflict of interest. Furthermore, under the testimony presented in
this record, there is certainly a reasonable probability that appellant would not have
pled guilty if he had conflict-free counsel. Hill v. Lockhart, 474 U.S. at 57-58.
CONCLUSION
We conclude that the judgment of the trial court must be reversed; counsel
other than the public defender’s office must be appointed; and the cause should be
remanded for further proceedings.2
JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
DAVID H. WELLES, JUDGE
2
All original charges, including the charges of attemp ted first degree m urder, are reinstated.
Appellant stated at the post-conviction he aring that he was aw are this would occur if he were
succe ssful in this post-conviction m atter.
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