Rick Vaulton v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED APRIL SESSION, 1997 May 30, 1997 Cecil W. Crowson RICK F. VAULTON, ) Appellate Court Clerk C.C.A. NO. 01C01-9606-CR-00276 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. ANN LACY JOHNS STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction) ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY FOR THE APPELLANT: FOR THE APPELLEE: THERESA W . DOYLE CHARLES W. BURSON 211 Printer’s Alley Building Attorney General & Reporter Suite 400 Nashville, TN 37201 PETER COUGHLAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 VICTOR S. JOHNSON District Attorney General ROGER MOORE Assistant District Attorney General Washington Square, Suite 500 222 Se cond A venue, N orth Nashville, TN 37201-1649 OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE OPINION The Defendant appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure from the trial cour t’s denial of h is petition for p ost- conviction relief. The Defendant was originally indicted on eleven counts of aggravated robbery and three counts of especially aggravated kidnaping. He subs eque ntly pleaded guilty to four co unts of aggravated robbery and one count of especially aggravated kidnaping. Pursuant to the plea agreement, he was sentenced as a Ran ge II multiple offende r to twenty years for each of the aggravated robbe ry conv ictions and tw enty-five years fo r the es pecia lly aggravated kidnaping conviction, all to be served concurrently. After conducting a hearing on the post-conviction petition, the trial judge denie d the D efend ant’s claim of ineffective assistance of counsel relative to his guilty pleas and dismiss ed his pe tition. W e affirm the judgm ent of the tria l court. In the Defendant’s pro se petition for post-conviction relief, numerous general allega tions o f ineffec tive ass istanc e of co unse l are alleged. The allegations relate p rimarily to improper and inadequate investigation, counseling and advice concerning the charge s and the conse quenc es of the g uilty plea. At the hearing on the post-conviction petition, the Defe ndan t testified that his main concern was with the aggravated kidnaping conviction because it carried five more years than the robbery convictions. He testified that concerning the kidna ping charge, his attorn ey “told me that if I went a head and pleaded gu ilty, we could come back and he could g et it took off of m e.” Th e Def enda nt’s attorney testified that he did not “recall any discus sion of that nature.” -2- In determining whether cou nsel provided e ffective assista nce a t trial, the court mus t decid e whe ther co unse l’s performance was within the range of competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was ineffective at trial, a petitioner bears the burden of showing that his counsel made errors so serious that he was not functioning as counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced the petitioner resulting in a failure to produce a reliable res ult. Strickland v. Washington, 466 U.S. 668, 68 7, reh’g denied, 467 U.S . 1267 (1 984); Coop er v. State , 849 S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy the seco nd pron g the pe titioner mu st show a reaso nable p robability tha t, but for coun sel’s un reaso nable error, th e fact fin der wo uld have h ad rea sona ble doubt regardin g petitione r’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable probab ility must be “su fficient to undermine confidence in the outcome .” Harris v. State, 875 S.W .2d 662, 665 (Tenn. 199 4). When reviewing trial cou nsel’s action s, this co urt sho uld no t use th e ben efit of hindsight to second-guess trial strategy and criticize couns el’s tactics. Hellard v. State, 629 S.W .2d 4, 9 (Ten n. 1982). Co unsel’s alleged e rrors should be judged at the time they were made in light of all facts and circumstances. Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746. This two part standard of measuring ineffective assistance of counsel also applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52 (1985). The prejudice requirement is modified so that the petitioner “must show -3- that the re is a re ason able probab ility that, but for counsel’s errors he would not have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59. The Defenda nt and his attorne y were the only witnesses at the hearing on the petition for post-conviction relief. Noting that to some extent the issue was one of credibility, the trial judge found that based on the evidence presented, the Defe ndant had no t carried his burden of proving that coun sel was in effective. The evidence supports the findings of the trial judge. We find no error of law requir ing rev ersal. The judgment of the trial court is affirmed. ____________________________________ DAVID H. WELLES, JUDGE CONCUR: ___________________________________ GARY R. WADE, JUDGE ___________________________________ J. CURWOOD WITT, JR., JUDGE -4-