IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCH 1997 SESSION FILED
April 17, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
DONNIE RAY SEALS, )
) C.C.A. No. 03C01-9605-CC-00188
Appellant, )
) Hamblen County
V. )
) Honorable Ben K. Wexler, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
William A. Zierer John Knox Walkup
Attorney at Law Attorney General & Reporter
124 W. Main Street
P.O. Box 1276 Robin L. Harris
Morristown, TN 37816-1276 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
C. Berkeley Bell, Jr.
District Attorney General
Victor J. Vaughn
Assistant District Attorney General
109 S. Main Street, Suite 501
Greeneville, TN 37743
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Donnie Ray Seals, pled guilty to one count of second
degree murder and three counts of aggravated assault. He was sentenced to
fifteen years for second degree murder and three years for each aggravated
assault conviction at 30% as a standard offender. The sentences were ordered
to run concurrently. The appellant filed a pro se petition for post-conviction relief
alleging ineffective assistance of counsel, and counsel was appointed for the
appellant’s post-conviction hearing. The hearing court denied relief. The
appellant appeals this denial. We affirm.
The appellant was involved in a head-on collision with another vehicle.
The appellant, who at the time of the incident had a blood alcohol level of .28,
was traveling in the wrong direction and struck an oncoming vehicle. One
person was killed, and three others were injured.
The appellant alleges that he was denied effective counsel because (1)
his counsel disregarded a potential defense to his second degree murder
charge; (2) his counsel based his plea recommendation on the assumption that,
if the appellant stood trial, any convictions to the charges would run
consecutively; and (3) his counsel allowed him to rely on receiving a relatively
early release if he would enter a guilty plea.
To be granted relief on the ground of ineffective assistance of counsel, an
appellant must establish that the advice given or the services rendered were not
within the competence demanded of attorneys in criminal cases and that, but for
counsel’s deficient performance, the result of his or her trial would have been
different. Strickland v. Washington, 466 U.S. 668 (1984). This two-part
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standard, as it applies to guilty pleas, is met when the appellant establishes that,
but for counsel’s error, he or she would not have pled guilty and would have
insisted on trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). In Tennessee, the
appropriate test is whether counsel’s performance was within the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975).
In post-conviction proceedings, petitioners bear the burden of proving
their allegations by a preponderance of the evidence. Black v. State, 794
S.W.2d 752, 755 (Tenn. Crim. App. 1990); McBee v. State, 655 S.W.2d 191,
195 (Tenn. Crim. App. 1983). Furthermore, the trial court’s findings of fact in
post-conviction hearings are conclusive on appeal unless the evidence
preponderates against those findings. Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990); State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983);
Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
First, the appellant alleges that his counsel disregarded a potential
defense to his second degree murder charge. The appellant contends that he
was in a “blacked-out” mental state when he drove his vehicle head-on into the
car in which four persons were riding. The appellant, an admitted alcoholic,
suggests through his expert witness on addiction medicine that his intoxication
was not voluntary. In his brief, the appellant alleges that while he “voluntarily
consumed that first beer, he was not voluntarily intoxicated,” and thus did not
“knowingly” kill the victim. However, the appellant, who already had three prior
convictions for driving under the influence and had had his driver’s license
revoked, knowingly and voluntarily took that first drink and proceeded to drive.
The appellant asks this Court to disregard well-settled law that voluntary
intoxication is not a defense to second degree murder. State v. Butler, 900
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S.W.2d 305, 310-11 (Tenn. Crim. App. 1994); State v. McKinney, 603 S.W.2d
755, 760 (Tenn. Crim. App. 1980). This Court is not prepared to do so. From
the record, counsel was not ineffective for failing to use voluntary intoxication as
a defense for the appellant’s second degree murder charge. This claim is
baseless.
Second, although the appellant could not recall a discussion with his
attorney regarding consecutive sentencing, he alleges that his counsel advised
him that if he stood trial, any convictions to the charges could run consecutively.
Counsel admitted that he did so advise the appellant. Although the hearing court
noted that it would have advised that the sentences run concurrently, the
prosecutor stated that the appellant could have received consecutive sentences
as “an offender whose record of criminal activity is extensive.” Tenn. Code Ann.
§ 40-35-115(b)(2) (1990).
The appellant has a lengthy record of traffic and driving under the
influence charges. Furthermore, the prosecutor noted that had the appellant
gone to trial, his record and the facts of the case would have resulted in six
enhancement factors for sentencing purposes with no mitigating factors. Thus,
according to the prosecutor, the appellant could have received as much as
eighteen years on the lesser offenses of vehicular homicide and vehicular
assault had he gone to trial; and had he been convicted of the charges as
indicted, he could have received as much as forty-three years. Consequently,
counsel’s advice regarding consecutive sentencing was not only correct but also
prudent. This issue is without merit.
Third, the appellant was sentenced to fifteen years at 30% as a Range I
standard offender. His release eligibility date is four and one-half years. The
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appellant contends that his trial counsel mistakenly represented that his fifteen-
year sentence could be served in only two years. He claims that his reliance on
early release led him to plead guilty. Trial counsel admitted that he told the
appellant that he would be eligible for release in 4.7 years, and perhaps earlier
because of the overcrowding conditions in prison. Trial counsel, however,
denied that he told the appellant that he would be eligible for release in only two
years. In his brief, the appellant admits that counsel “made no promises of early
release before what he said would be 4.7 (sic) years (15 years times 30%).”
The record reveals that at the time he entered his plea, the appellant
admitted that he understood that his sentence was fifteen years at 30% release
eligibility. The appellant also admitted that he had completed the eleventh grade,
and although he stated at the post-conviction hearing that he could not multiply
30% times 15 at the time he entered his plea, he admitted that he could now do
this multiplication. The record does not indicate that counsel’s apparent
mathematical error inured to appellant’s detriment; the miscalculation was on the
conservative side. This issue is without merit.
This Court finds that the appellant has failed to establish that he received
ineffective assistance. Because the evidence does not preponderate against the
hearing court’s findings, we affirm that court’s judgment.
______________________________
PAUL G. SUMMERS, Judge
CONCUR:
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______________________________
JOHN H. PEAY, Judge
______________________________
CORNELIA A. CLARK, Special Judge
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