IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 1997 April 24, 1997
Cecil W. Crowson
ROO SEV ELT J OHN SMIT H, ) Appellate Court Clerk
C.C.A. NO. 01C01-9604-CR-00135
JR., )
)
Appellant, )
)
) DAVIDSON COUNTY
VS. )
) HON . SETH N ORM AN
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:
SHAW N A. TIDWELL CHARLES W. BURSON
209 T enth Av enue, S outh Attorney General and Reporter
Suite 511
Nashville, TN 37203 LISA A. NAYLOR
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
SHARON L. BROX
Assistant District Attorney General
Washington Square, Suite 500
222 Se cond A venue N orth
Nashville, TN 37201
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Petitioner 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. On S eptember 8 , 1994, th e Petitio ner ple aded guilty to s ix
counts of aggravated burglary and one count of possession of cocaine with intent
to sell or deliver. As specified in the plea agreement, the trial court sentenced
him to fifteen years imprisonment for each aggravated burglary conviction, all
running concurrently, and to twenty years for the drug conviction. The drug
sentence was ordered to run conse cutively to the burglary sentences, resulting
in an effective senten ce of thirty-five years in the Department of Correction. The
Petitioner was classified as a Range III Persistent Offender. He filed a pro se
petition for post-conviction relief on July 11, 1995, which was amended with the
assistance of counsel on October 20, 1995. In his petition for post-conviction
relief, the Petitioner argued that he was denied effective assistance of counsel
at his guilty plea procee ding. After condu cting an evidentiary hearing, the trial
court found that the Petitioner had received effective assistance of counsel and
denied the petition . We affirm the ju dgme nt of the trial co urt.
Although the record contains little information concerning the
circumstances of the offen ses, we begin by setting forth the releva nt facts
pertaining to the Petitioner’s issue. The Petitioner was charged with several
offenses through three separate indictm ents. Indictmen t number 94-B-884
charged him with one count of aggravated burglary and one count of theft of
property valued between one thousand dollars ($1,000) and ten thousand dollars
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($10,000). Indictment number 94-B-886 charged him with two counts of
aggravated burglary and two counts of theft of property valued between one
thousand dollars ($1,000) and ten thousand dollars ($10,000). Indictment
number 94-B-887 charged him with three counts of aggravated burglary and
three co unts of the ft of property valued between one thousand dollars ($1,000)
and ten thous and do llars ($10,0 00). In addition, the Petitioner was charged by
information with one count of possession of cocaine with intent to sell or deliver.
It appears that the Petitioner was on parole at the time of the alleged commission
of the offenses.
Larry Hoover was appointed to represent the Petitioner. Hoover consulted
the Petitioner and began negotiating with the district attorney’s office. The initial
offer allowed the Petitioner to plead guilty to the aggravated burglaries as well as
the drug offense a nd receive an effective sentence of forty-five years to be served
as a career offender at sixty percent (60%). Hoover eventually convinced the
assistant district attorney to offer a sentence of thirty-five years to be served as
a persistent offen der at fo rty-five pe rcent (4 5%). The P etitione r acce pted th is
offer and, on September 8, 1994, entered guilty pleas to six counts of aggravated
burglary and o ne count of po ssession of co caine with intent to se ll or deliver.
On July 11, 1995, the Petitioner filed a pro se petition for post-conviction
relief, challenging only his drug conviction. The petition was amended with the
assistance of counsel, but the amended petition still challenged only the drug
conviction. The Petitioner argued that his attorney at the guilty plea proceeding,
Larry Hoover, rendered ineffective assistance of counsel in two respects. The
Petitioner first con tende d that h is trial co unse l errone ously informed him that the
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sente nce for the drug conviction would run concurrent with his sentences for
aggravated burglary. Secondly, he contended that his trial counse l failed to
investigate the circumstances surrounding the drug offens e. The trial court
conducted an evidentiary hearing on October 20, 1995.
The Petitioner testified in his own behalf at the evidentiary hearing. He
stated that he ha d met w ith his attorney approximately four times before pleading
guilty. According to the Petitioner, he was not present at the plea negotiations.
His attorney informed him that, under the plea agreem ent, he would re ceive
fifteen year sentences for the burglaries and a twenty year sentence for
possession of coc aine w ith inten t to sell or deliver. He and his attorney spent
only five to ten m inutes go ing over th e plea ag reeme nt, and h e did n ot com pletely
read it before signing it. The Petitioner understood his effective sentence to be
twenty years. He stated that he wou ld have p roceed ed to trial if he had realized
that his effective sentence was thirty-five years.
The Petitioner’s testimon y also provided the o nly facts in the record
pertaining to the drug offense. He testified that he was driving a van which was
titled in the name of Karen Wills. There were apparently other individuals in the
van. The Petitioner pulled into a car wash and knocked on the door of the
service booth. He heard a voice ask him to wait for a minute. He waited and
event ually knocked on the door again. Accord ing to the Petitioner, the door
opened and a police officer put a gun to his head, pulled him inside, and
handcuffed him. The officer searched him for weapons and contraband but found
none. Officers then searched the van and found cocaine. The Petitioner testified
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that he had not given consent to search the van and the officers did not have a
warran t.
The Petitioner informed his attorney of these facts and stated that he was
not guilty of the d rug offen se. He m aintained that the drugs belong ed to
someone else. He admitted that he had committed the burglaries, and he even
cooperated with police officers on tho se cases. H e never m ade any s uch
admissions with regard to the drug offense though. In fact, he testified that he
wanted to proce ed to trial on that charg e beca use he was inno cent.
On cross-examination, the Petitioner admitted that he had been through
a plea process before and was actually on parole at the time of the burglaries and
drug offense. He stated th at his a ttorney talked with him abou t the po ssible
range of his sentence and informed him that he probably faced a greater
sentence if he proceede d to trial. He te stified further that he sig ned the guilty
plea form fre ely and voluntarily and that he did not dispute the facts supporting
the offenses as the y were read by the assistant district attorney at the guilty plea
proceeding.
The Petitioner’s attorney at the guilty plea proceeding, Larry Hoover, also
testified at the post-conviction hearing. Hoover stated that he was lice nsed in
1992 and that his practice was thirty to forty-five percent (30%-45%) criminal law.
He had h andle d approximately forty to sixty criminal cases, including seven or
eight jury trials. Hoover recalled that he met with the Petitioner four times. He
discussed the cases with the Petitioner and came to conclusion that he had no
viable defenses. According to Hoover, he and the Petitioner came to a mutual
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understanding that the res olution of h is cases was m ore abo ut the time to be
served rather than defenses. Given that the Petitioner had nine prior felony
convictions, Hoov er’s m ain co ncern beca me a poten tially large effective
sentence. Hoover stated that the State’s initial plea offer was forty-five years at
sixty percent (60%). He negotiated with the assistant district attorney and
received an offer of thirty-five years at forty-five percent (45% ). He explained the
offer to the Petitioner, and the Pe titioner u nders tood th at his effective sentence
was thirty-five years.
On cross-examination, Hoover stated that the number of sentences at
issue could have been confusing to the Petitioner. In fact, Hoover himself was
unsure prior to the post-conviction hearing ab out which sen tences were
supposed to run concu rrently and which w ere to run con secutively. Upon
reviewing the plea agreement, howeve r, it was clear to him that the drug
sentence was to ru n cons ecutive to th e burgla ry senten ces. He testified further
that it was his normal practice to go over plea agreements very carefully with
defendants.
Upon additio nal qu estion ing, Ho over a dmitted that he was unaware of what
had occurred at the preliminary hearing concerning the drug offense. He stated
that he had not requ ested for mal disc overy with regard to the drug offense. He
also did not interview any o f the police officers involved in the search of the van,
nor did he interview any of the other individuals who were in the van at the time
of the search. Hoover stated that his main focus was on the burglary offenses
and, more specifically, the potential sentence associated with those offenses.
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Hoover did, however, acquire a copy of the lab report indicating that the
substance found in the van was cocaine.
At the conclusion of the hearing, the trial court found Hoover’s testimony
to be credible and found that the plea had been fully explained to the Petitioner.
As a result, the trial court conclud ed that the Pe titioner was aware that he wo uld
serve an effective sentence of thirty-five years under the plea agreeme nt.
According ly, the trial court denied the petition, stating that Hoover had provided
effective as sistance of couns el. The P etitioner the n appe aled to this Court.
In determining whether or not counsel provided effective assistance a t trial,
the court must decide whether or not counsel’s performance was within the range
of competence dem anded of attorney s in crimin al cases . Baxter v. Rose, 523
S.W.2d 930 (T enn. 19 75). To succee d on a cla im 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 produ ce a reliab le result. Strickland v. Washington, 466
U.S. 668, 68 7, reh’g denied, 467 U.S . 1267 (1 984); Cooper 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 this second prong the petitioner must show a reaso nable p robability tha t,
but for cou nsel’s unreasonable error, the fact finder w ould h ave ha d reas onab le
doubt regarding petitioner’s g uilt. Strickland, 466 U.S. at 695. T his rea sona ble
probab ility must be “su fficient to undermine confidence in the outcome .” Harris
v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).
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When reviewing trial counsel’s actions, this court should n ot use the be nefit
of hindsight to second-guess trial strategy and criticize coun sel’s tactics. Hellard
v. State, 629 S .W .2d 4, 9 (Ten n. 198 2). Co unse l’s allege d error s sho uld be
judged at the time it was mad e in ligh t of all facts and circums tances . Strickland,
466 U .S. at 690 ; see Cooper, 849 S.W.2d at 746.
This two part standa rd of meas uring 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
that there is a reasonable probability 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.
W e note that under the provisions of the Post-Conviction Procedure Act of
1995, a petitioner bears the burden of proving the allegations in the petition by
clear and convincin g eviden ce. Ten n. Cod e Ann. § 40-30-2 10(f) (Supp. 199 6).
In addition, the factual findings of the trial court are conclusive on appeal unless
the evidence in the record p repond erates a gainst the m. State v. Buford, 666
S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).
With regard to the P etitione r’s con tention that his trial cou nsel e rrone ously
informed him th at the tw enty-ye ar drug sente nce w ould ru n con curren t with his
fifteen-year burglary senten ces, we believe tha t the Petition er has fa iled to
establish that his counsel’s representation was constitutionally deficient. The
Petitioner testified at the post-conviction hearing that his trial counsel, Larry
Hoover, led him to believe that his drug s enten ce wo uld run conc urren t with his
burglary sentences . Hoover, on the other hand, testified that it was his practice
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to review the terms o f plea agre emen ts carefu lly with defendants and that the
Petitioner was fully aware th at his effec tive senten ce was thirty-five years. After
hearing testimony and evaluating the credibility of the witnesses, the trial judge
specifically found Hoover’s testimony to be persuasive. From our review of the
record, we cannot conclude that the evidence preponderates against the finding
of the trial court. Accordingly, we conclude that counsel Hoover’s representation
with regard to the Petitioner’s sentence was within the range of competence
demanded of attorneys in criminal cases.
The Petitioner also contends that Hoover rendered ineffective assistance
by failing to investigate the circumstances surrounding the drug offense. The
testimony at the post-conviction hearing reveals that Hoover was unaware of any
facts pertaining to the drug offen se which we re developed at the preliminary
hearing. Hoover did not request formal discovery with regard to the drug offense,
did not interview the police officers involved in the search of the van, and did not
intervie w any of the other individuals allegedly present at the time of the
discovery of the cocaine. It appears that Hoover’s investigation of the drug
offense was limited to examining the lab report analyzing the drugs found in the
van. According to Hoover himself, his primary focus was on the Petition er’s
burglary offenses.
It is well-estab lished that defe nse co unsel m ust cond uct an ap propriate
investigation into both the facts and the law to determine what matters of defense
can be deve loped. See, e.g., Baxter v. Rose, 523 S.W .2d at 936 ; McBee v.
State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, our supreme
court recognized in Baxter that the American Bar Association Standards for
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Criminal Justice provide useful guidance with regard to the function and
responsibilities of defense counsel. The American Bar Association standards
explain defense counsel’s duty to investigate with the following language:
It is the duty of the lawyer to conduct a prompt investigation of the
circumstances of the case and to explore all aven ues lead ing to
facts relevant to the merits of the case and the penalty in the event
of conviction . The inve stigation sh ould alwa ys include efforts to
secure informa tion in the possession of the prosecution and law
enforcement authorities. The duty to investigate exists regardless
of the accused’s admissions or statem ents to the lawyer of fa cts
constituting guilt or the acc used’s stated d esire to plead gu ilty.
ABA Standa rds for Crim inal Justice § 4-4.1 (2 d ed. Su pp. 1986). Applying the
foregoing principles to the case sub judice, we believe that cou nsel Hoove r’s
representation was a rguab ly deficie nt in tha t he faile d to investigate the drug
offense ade quately.
Even if we were to find cou nsel Ho over’s rep resenta tion deficient, however,
we do not b elieve that the Petition er has d emon strated su fficient prejud ice to
satisfy the second prong of the Strickland standard. It appears that the Petitioner
argues that he was p rejudic ed be caus e a pro per inv estiga tion of the facts
surrounding the drug offense may have indicated the evidence was
unco nstitutio nally obtained and co uld have been s uppres sed. We note that the
prejudice analys is app licable to this typ e of alle ged e rror of c ouns el close ly
resembles the prejudice an alysis applicable to jury co nvictions. See Hill v.
Lockhart, 474 U.S. at 5 9, 106 S.C t. at 370. As the U nited States S upreme Court
explained in Hill v. Lockhart, whether such an error prejudiced the defendant by
causing him to plead guilty often depends on the likelihood that a correction of
the error would have led counsel to ch ange the rec omm endation to plea d guilty.
Id. This assessment, in turn, depends on a prediction of whether the evidence
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discovered through a full inve stigatio n wou ld have c hang ed the outco me o f a trial.
Id.
The Petitioner suggests that a more thorough investigation of the
circumstances of the drug offense might have led to suppression of the cocaine
seized from the van he was driving. At the post-conviction hearing, however, the
Petitioner offered no evidence to support this speculation. Neither the police
officers involved in the search nor the other individuals in the va n were called to
testify. Instea d, the o nly evid ence offered to sup port this contention came from
the Petitioner himself, whose testimony the trial judge found to be unpersuasive.
Given these circum stances, we cannot spe culate that a m ore thorough
investigation of the drug offense would have revealed that the cocaine was
uncons titutiona lly seized and, therefore, would have led counsel Hoover to
change his recommendation to plead guilty. See Wa de v. State , 914 S.W.2d 97,
102 (Tenn . Crim. A pp. 199 5); Black v. S tate, 794 S.W.2d 752, 757-58 (Tenn.
Crim. App. 1990). As a result, we conclude that the Petitioner has n ot carrie d his
burden of establishing sufficient prejudice stem ming from h is coun sel’s alle gedly
deficient representation.
For the reasons set forth in the discussion above, we conclude that the
Petitioner has failed to demonstrate that the trial court erred in denying the
petition for post-conviction relief. We therefore affirm the judgment of the trial
court.
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____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JERRY L. SMITH, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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