IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1996 SESSION
June 30, 1997
Cecil W. Crowson
WILLIAM LEE BRAMLETT, ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9506-CC-00207
)
) Humphreys County
v. )
) Honorable Allen W. Wallace, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Shipp R. Weems Charles W. Burson
District Public Defender Attorney General of Tennessee
and and
Robbie T. Beal Sarah M. Branch
Assistant Public Defender Assistant Attorney General of Tennessee
P.O. Box 160 450 James Robertson Parkway
Charlotte, TN 37036 Nashville, TN 37243-0493
Dan Mitchum Alsobrooks
District Attorney General
Court Square, P.O. Box 580
Charlotte, TN 37036-0580
George C. Sexton
Assistant District Attorney General
Humphreys County Court House
Waverly, TN 37185
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, William Lee Bramlett, appeals as of right from the
Humphreys County Criminal Court’s dismissal of his petition for post-conviction relief.
The petitioner pled guilty to four counts of grand larceny, two counts of obtaining money
under false pretenses, statutory rape, contributing to the delinquency of a minor,
vandalism, forgery, passing a forged instrument, and three counts of passing worthless
checks. In exchange for his pleas, he received an effective sentence of ten years for
the various convictions, to be served under the Community Corrections Act of 1985,
and the state agreed to the dismissal of several other charges. His community
corrections sentence was eventually revoked, and the trial court ordered that he serve
his ten-year sentence in the Department of Correction. On July 19, 1991, the petitioner
filed a pro se petition for post-conviction relief. Although somewhat rambling, the
petition alleged that the petitioner received ineffective assistance of counsel and
entered an involuntary plea. The trial court summarily dismissed the petition. This
court reversed the summary dismissal and remanded the case for the appointment of
counsel. William Lee Bramlett v. State, No. 01C01-9202-CC-00049, Humphreys
County (Tenn. Crim. App. May 19, 1994). After the appointment of counsel and an
evidentiary hearing, the trial court denied the petition because it concluded that the
petitioner understood the terms of his original plea and that his original counsel was
effective in his pretrial preparation. The petitioner contests these findings and claims
that the trial court improperly refused to grant his request for a copy of the transcript
from his guilty plea submission hearing.
The petitioner was the only person to testify at the post-conviction
hearing. He complained that his trial attorney failed to explain the specifics of his
community corrections sentence. He said that his attorney never told him that he could
be resentenced if he violated the terms of his sentence. Although he recalled meeting
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with his attorney and a corrections officer at his attorney’s office, he said that the
corrections officer only told him that he would be required to serve ninety days on
house arrest and would be required to enroll in a GED program. He said that his
attorney told him that once he served ninety days on house arrest, paid restitution, and
performed two hundred hours of public service, the rest of his sentence would be
served on probation. The petitioner also complained that his attorney failed to
investigate the facts of his case adequately.
During cross-examination, the petitioner recalled that when he entered his
plea he knew what the charges were against him and knew the charges to which he
was pleading guilty. He said that he understood that he had the right to a jury trial, the
right to choose whether to testify and the right to cross-examine witnesses. He also
said that he understood that there would not be a trial if he pled guilty. The petitioner
testified that he understood that in exchange for his plea he would receive two five-year
sentences “run together” with all of his other sentences to be served concurrently. He
again criticized his attorney for telling him that he would only have to serve ninety days
on house arrest and that the rest of his sentence would be on probation. He said that
the trial judge never informed him that he may end up serving the entire ten-year
sentence.
The petitioner recalled being told that he would serve ten years at thirty
percent when he violated house arrest. He said that he thought he would have to serve
thirty percent of his sentence but complained that he had already served four years and
would not be eligible for parole again for another two years.
Under questioning from the court, the petitioner testified that he entered
the plea in order to take care of his family and avoid going to prison. He admitted that
the trial court explained to him that he was receiving a community corrections sentence
3
and not a probationary sentence. However, he said that he did not remember the court
ever explaining the difference between the two. He also admitted that he signed the
last page of the presentence report, a behavioral contract agreement, and a restitution
agreement. The paragraphs directly above the defendant’s signature on the
presentence report and the restitution agreement warn that a violation of the terms of
the agreements can result in incarceration and termination from the community
corrections program.
The trial court concluded that the petitioner had been fully advised and
well represented by counsel when he entered his plea. In reaching its decision, the
court noted that it did not increase the petitioner’s sentence when he violated the terms
of his community corrections sentence, although an increase would have been justified.
I
The petitioner contends that the trial court erred by denying him post-
conviction relief based upon his claim of ineffective assistance of counsel. He argues
that in the absence of proof from the state, the trial court should have granted him relief
on the ineffective assistance of counsel claim based on the allegations in the pro se
petition and on the petitioner’s testimony concerning his attorney’s failure to investigate
possible defenses and failure to advise him of his rights.
The burden was on the petitioner in the trial court to prove his allegations
that would entitle him to relief by a preponderance of the evidence.1 Brooks v. State,
756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial
court’s findings unless we conclude that the evidence preponderates against those
findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,
1
For pos t-conviction petitions filed after May 10, 1995 , petitioners have the burd en of
proving factual allegations by clear and convincing evidenc e. T.C.A. § 40-30-2 10(f) (Supp. 1996 ).
4
the petitioner has the burden of illustrating how the evidence preponderates against the
judgment entered. Id.
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court
decided that attorneys should be held to the general standard of whether the services
rendered were within the range of competence demanded of attorneys in criminal
cases. Further, the court stated that the range of competence was to be measured by
the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973), cert.
denied, 444 U.S. 944 (1979). Also, in reviewing counsel's conduct, a "fair assessment
of attorney performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct,
and to evaluate the conduct from counsel's perspective at the time." Strickland v.
Washington, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982) (counsel's conduct will not be measured by "20-20 hindsight"). Thus, the
fact that a particular strategy or tactic failed or even hurt the defense does not, alone,
support a claim of ineffective assistance. Deference is made to trial strategy or tactical
choices if they are informed ones based upon adequate preparation. Hellard, 629
S.W.2d at 9; DeCoster, 487 F.2d at 1201.
Also, we note that the approach to the issue of the ineffective assistance
of counsel does not have to start with an analysis of an attorney's conduct. If prejudice
is not shown, we need not seek to determine the validity of the allegations about
deficient performance. Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.
In this vein, the petitioner had the burden of demonstrating that, but for his counsel’s
errors, he would have insisted on having a trial. See Hill v. Lockart, 474 U.S. 52, 59,
106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App.
1991).
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The petitioner argues that his trial counsel was deficient for failing to
advise him of his rights and failing to investigate his cases. However, he has failed to
demonstrate that he was prejudiced by the alleged deficiencies. According to the
petitioner’s testimony, he understood that he was waiving his right to a trial, right to
cross-examine witnesses against him, and the right not to testify when he entered his
plea. The petitioner also testified that the trial court informed him he was receiving a
community corrections sentence and that he pled guilty to avoid going to prison. The
petitioner does not claim that his counsel’s errors caused him to plead guilty. To the
contrary, the petitioner’s attorney informed the court during the post-conviction hearing
that if the petition for post-conviction relief was granted, the petitioner would seek to
enter into another plea agreement.2 Under these circumstances, the trial court did not
err in denying post-conviction relief on the ground of ineffectiveness of trial counsel.
II
The petitioner also contends that the trial court erred by denying his post-
conviction petition because the record does not demonstrate that he was adequately
advised by the court as to his rights or his understanding of the terms of the plea
bargain. He argues that in the absence of proof to the contrary, this court must assume
that the trial court failed to advise him. The state counters that the petitioner failed to
meet his burden of proving that his plea was involuntary and that the petitioner’s own
testimony was sufficient to establish that he entered a knowing and voluntary plea. We
agree.
The issue concerning invalid guilty pleas is controlled by State v. Neal,
810 S.W.2d 131 (Tenn. 1991) and Johnson v. State, 834 S.W.2d 922 (Tenn. 1992),
2
As a matter of fact, the record reflects that the petitioner’s real complaints dealt with,
according to him, how the Department of Correction was computing his parole eligibility for his sentences
in a manner differently than he had expected. Thus, his “goal” in this proceeding was to have the trial
cou rt vacate his conviction s in order for him to renego tiate and res tructu re a p lea ag reem ent.
6
which bear upon the procedural and substantive requirements for the entry of a guilty
plea in order that a valid judgment of conviction may be obtained and for subsequent
review of the validity of a conviction based upon a guilty plea. These cases stem, in
part, from Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969) in which
the Supreme Court stated that entry of a guilty plea effectively constituted a waiver of
certain constitutional rights: the right against compulsory self-incrimination, the right to
confront one's accusers, and the right to trial by a jury. Boykin held that a valid waiver
of such a right required the intentional relinquishment or abandonment of a known right
and that such a waiver may not be presumed from a silent record. Id. The petitioner’s
testimony reflects that he understood at the time he entered his plea that he was
waiving his constitutional rights to be free from compulsory self-incrimination, to a trial
by jury, and to confront and cross-examine witnesses. Therefore, no Boykin violation
occurred.
Also, there is nothing in the record before us to indicate that the petitioner
was coerced into entering his plea. When the post-conviction court asked the petitioner
how he was coerced into pleading guilty, the petitioner replied that he pled guilty
because he wanted to take care of his family and avoid going to prison. The
presentence report and the restitution agreement the petitioner signed explicitly warned
the petitioner that he could be incarcerated if he failed to comply with the terms of his
sentences. The record supports the trial court’s finding that the petitioner knowingly
and voluntarily entered his pleas.
III
Finally, the petitioner contends that the trial court erred by not granting his
request for a transcript of his guilty plea submission. When the post-conviction court
inquired as to why the petitioner needed a transcript of the guilty plea submission, the
petitioner’s attorney responded that the transcript was needed to show that the
7
petitioner was not advised that he could be resentenced if he violated his community
corrections sentence. The trial court refused to grant the transcript because it
concluded that the petitioner was not entitled to relief even if the court failed to give him
such advice. We agree with the trial court’s conclusion under the circumstances in this
case.
Under T.C.A. § 40-30-113(1990) [repealed 1995], a post-conviction court
has the authority to furnish an indigent petitioner with “certified copies of such
documents or parts of the record on file in his office as may be required.” However, the
trial court is not obligated to furnish an indigent petitioner a transcript unless it “may be
of reasonable assistance to the petitioner in establishing his right to the relief sought.”
Dotson v. State, 477 S.W.2d 763, 64 (Tenn. Crim. App. 1971). Obviously, once the trial
court assumed the truth of the only fact that the petitioner sought to prove with the
transcript, in the present case, the transcript was not needed.
In the context of this case, the trial court’s failure to advise the petitioner
that he could be resentenced for violating the terms of the community corrections
program does not rise to the level of constitutional error that would entitle the petitioner
to post-conviction relief. As previously noted, the petitioner’s testimony established that
he understood that he was receiving an effective ten-year community corrections
sentence. The presentence report and the restitution agreement the petitioner signed
explicitly warned the petitioner that he could be incarcerated if he failed to comply with
the terms of his sentence. Although the petitioner sought a copy of his guilty plea
submission transcript to prove that he was not advised of the potential for resentencing
under the Community Corrections Act, it is significant that his resentencing was for the
same term of years. Moreover, he never claimed that he would not have pled guilty if
he had been advised of the potential for resentencing upon revocation. We agree with
the trial court’s assessment that the petitioner entered a knowing and voluntary plea
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even if the trial court failed to advise him that he could be resentenced under the
Community Corrections Act. Thus, the trial court was justified in denying the
petitioner’s request for a transcript of the plea submission hearing.
In consideration of the foregoing and the record as a whole, the judgment
of the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
Paul G. Summers, Judge
David H. Welles, Judge
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