IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
FEBRUARY SESSION, 1997 FILED
June 26, 1997
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) No. 01C01-9602-CR-00077
Appellee )
) DAVIDSON COUNTY
vs. )
) Hon. J. RANDALL WYATT, JR., Judge
RONNIE C. TURNER, )
) (Aggravated Rape)
Appellant )
For the Appellant: For the Appellee:
JOHN B. BLAIR, III CHARLES W. BURSON
176 2nd Avenue, North Attorney General and Reporter
Suite 406
Nashville, TN 37201 PETER COUGHLAN
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN. 37243-0493
VICTOR S. (TORRY) JOHNSON III
District Attorney General
WILLIAM R. REED
Asst. District Attorney General
Washington Square, Suite 500
222-2nd Avenue, N
Nashville, TN. 37201-1649
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Ronnie C. Turner, appeals from the dismissal of his
petition for post-conviction relief. The appellant was indicted on six counts of
aggravated rape by a Davidson County Grand Jury. Pursuant to a plea
agreement, three of the counts were dismissed, with the appellant pleading guilty
to the remaining three counts of aggravated rape. Under the terms of the plea
agreement, the appellant received an effective sentence of fifteen years
confinement in the Department of Correction. On April 4, 1995, the appellant
filed for post-conviction relief alleging that his pleas were not voluntary and that
his trial counsel was ineffective. The post-conviction court conducted an
evidentiary hearing and denied relief. The appellant now appeals this denial
alleging that trial counsel was ineffective for (1) failing to subpoena a witness at a
suppression hearing; (2) failing to require the State to respond more specifically
to his requested bill of particulars; and (3) failing to correctly inform him as to the
amount of time it would take to "flatten his sentence."
In denying relief, the post-conviction court concluded that the appellant
had not met his burden of proving that he had been deprived of the effective
assistance of counsel and that his guilty pleas were voluntarily entered. To
prove that he was denied the effective assistance of counsel, the appellant must
show, by a preponderance of the evidence, Taylor v. State, 875 S.W.2d 684, 686
(Tenn. Crim. App. 1993), perm. to appeal denied, (Tenn. 1994), first, that
counsel's representation fell below the range of competence demanded of
attorneys in criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975),
and, second, that, but for these errors, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
2068 (1984); State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied,
493 U.S. 874, 110 S.Ct. 211 (1989). On post-conviction review, there is a strong
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presumption of satisfactory representation, Barr v. State, 910 S.W.2d 462, 464
(Tenn. Crim. App. 1995).
First, the appellant contends that trial counsel failed to subpoena a
potential witness in support of his defense. The appellant bears the burden of
presenting that witness at the evidentiary hearing. Black v. State, 794 S.W.2d
752 (Tenn. Crim. App. 1990)(emphasis added). The appellant failed to present
such witness, thus, he fails to establish the prejudice prong mandated by
Strickland v. Washington, supra. Black, 794 S.W.2d at 753. Second, the
appellant argues that trial counsel’s failure to require the State to more
specifically answer his bill of particulars, citing Burlison v. State, 501 S.W.2d 801
(Tenn. 1973), constitutes deficient performance. Assuming, for argument’s
sake, that Burlison is applicable to guilty pleas, the appellant has failed to show
prejudice resulting from trial counsel's failure to obtain a more specific bill of
particulars. Third, the record indicates that both the appellant's trial counsel and
the trial court informed him as to the nature and consequences of his guilty pleas
including the fact that he would become "parole eligible at thirty percent." This
issue is without merit.
When this court undertakes review of a lower court's decision on a petition
for post-conviction relief, the lower court's findings of fact are given the weight of
a jury verdict and are conclusive on appeal absent a finding that 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). After
reviewing the record, we cannot conclude that the evidence preponderates
against the post-conviction court's findings. Moreover, we find no error of law
mandating reversal of the court's judgment. The post-conviction court's
dismissal of the appellant's petition for post-conviction relief is affirmed.
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
________________________________________
GARY R. WADE, Judge
________________________________________
CURWOOD W ITT, Judge
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