Austin Eugene Lineback v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 4, 2003

AUSTIN EUGENE LINEBACK v. STATE OF TENNESSEE

Appeal from the Circuit Court for Tipton County

Nos. 4129 and 4264 Joe H. Walker, III, Judge

No. W2002-01938-CCA-R3-PC - Filed April 8, 2003

Through a 2001 Tipton County Circuit Court post-conviction petition, Austin Eugene Lineback

challenges his 2001 convictions in that court of statutory rape and especially aggravated sexual

exploitation of a minor. The convictions resulted from his guilty pleas, which the petitioner now

alleges are involuntary and unknowing due to ineffective assistance of counsel. Following an

evidentiary hearing, the lower court denied post-conviction relief, and the petitioner now appeals.

Upon our review of the record, the parties’ briefs, and the applicable law, we affirm.

Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and

DAVID H. WELLES, JJ., joined.

Gary F. Antrican, Somerville, Tennessee, for the Appellant, Austin Eugene Lineback.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;

Elizabeth T. Rice, District Attorney General; and Walt Freeland, Assistant District Attorney General,

for the Appellee, State of Tennessee.

OPINION

The petitioner, who apparently operated a teen modeling agency, was originally

charged with the rape of a fifteen-year-old boy based upon the boy performing fellatio. The

petitioner photographed the boy performing the act. Apparently, the petitioner entered the

photograph into his computer, and this action resulted in federal charges. The petitioner and his

family engaged counsel to defend him against both the state and federal charges.

As part of an August 17, 2001 plea agreement, the petitioner consented to a charge

by information of especially aggravated sexual exploitation of a minor, based upon the petitioner

photographing the act of fellatio. The state agreed to reduce the rape charge to statutory rape, and

the petitioner agreed to concurrent sentences of two years for statutory rape and ten years for the

exploitation conviction. The parties agreed that the petitioner would serve the effective ten-year

sentence at 30 percent as a Range I, standard offender. Finally, the plea agreement acknowledged

a disposition of the federal cases, in which the petitioner pleaded guilty prior to pleading in the

Tipton County cases. He received an effective federal sentence of approximately ten years, and the

Tipton County disposition provided that the state sentences would be served concurrently with the

federal sentences.

The post-conviction evidentiary hearing consisted of testimony given by counsel and

the petitioner, and it is difficult to imagine more divergent accounts of the attorney-client

relationship leading up to the guilty pleas in federal court and later in Tipton County.

The petitioner testified in the hearing that his counsel failed to consult with and advise

him and failed to proceed with a preliminary hearing. He testified that, if he had been afforded a

preliminary hearing, he would have understood the facts of the case.

The petitioner assailed counsel for failing to pursue a motion to suppress evidence

obtained by the police during a warrantless search of the petitioner’s residence. Even though the

search was based upon a written consent signed by the petitioner, the petitioner complained that,

when he signed the consent, he had already been arrested without probable cause or a warrant. The

petitioner testified that, when he called counsel to inquire about progress on the motion to suppress,

counsel told him that the motion had been heard in the petitioner’s absence and denied.

The petitioner claimed that counsel failed to interview witnesses and that even though

the defense investigator interviewed witnesses, the interviews belatedly occured seven months after

the petitioner’s arrest when the news coverage had already poisoned the attitudes of the witnesses

against the petitioner. The petitioner testified that counsel refused his requests for copies of motions,

other court documents, and statements of prosecution witnesses.

The petitioner claimed that when he was transported to Tipton County for court on

August 17, 2001, he thought he was going to trial. He testified that the new charge of especially

aggravated sexual exploitation of a minor was a surprise to him and that counsel did not explain the

nature and elements of the charge. He testified that he was confused by the new charge and that, in

the absence of adequate advice and counsel, he was intimidated into pleading guilty. He testified

that counsel did not explain that he would have to waive his right to a grand jury determination of

probable cause. He testified that counsel read the sentencing ranges to him fifteen minutes before

the plea was submitted to the court. He testified, “I was fighting a losing battle because I had a

lawyer [who] kept telling me I was going to lose and I was a liar. So I had no choice but to make

my plea. None.”

The petitioner also testified that counsel failed to secure credit for jail time served

between October 20 and December 5, 2000.

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Trial counsel testified that, from the time he accepted employment in the cases, the

petitioner was preeminently concerned with the coercion element of the rape charge and did not want

to plead to any offense predicated on coercion. The petitioner admitted to counsel that the petitioner

was indeed the person who was being fellated by the minor in the photograph. The petitioner

maintained that the act was not coerced, despite the victim’s statement that the petitioner entreated

the victim to fellate him in exchange for the petitioner not publishing on the internet nude photos that

the petitioner had taken of the victim. Counsel described a conundrum wherein the petitioner

refused to plead to the rape charge and yet the state had a strong case via coupling the victim’s

testimony and the graphic picture of the boy fellating the petitioner. In addition, counsel was

troubled by the knowledge that a sentence for rape carried a release eligibility of 100 percent, as well

as the knowledge that the petitioner had admitted to being the other person in the photograph, thus

complicating any plans to have the petitioner testify in his own defense.

Counsel testified that he obtained a mental evaluation of the petitioner, which failed

to support any diminished capacity defense. He hired an investigator, who interviewed as many of

the petitioner’s witnesses whom he could locate. “Anyone who would talk to him,” counsel testified,

“he talked to.” However, not only was the investigator denied access to the victim, but the

investigation generally uncovered no information helpful to the defense. In fact, counsel testified

that at least one of the persons named by the petitioner harbored outrageously damaging opinions

of the petitioner. When the investigation was complete, counsel felt that he had no bases upon which

to build a credible defense.

Counsel testified that he held several lengthy meetings with the petitioner. The

petitioner persisted in seeking detailed information, and counsel testified that they “discussed

everything in immense detail.” He testified that he furnished the petitioner with copies of all

documents and statements that the petitioner requested, although the flow of the materials was

hampered by the petitioner’s institutional, in-custody status.

Counsel testified that, prior to the scheduled preliminary hearing in Tipton County,

he extensively interviewed the investigating officers and his own investigator and opined to the

petitioner that there was no need to have a preliminary hearing for discovery purposes. He suggested

to the petitioner that, because there was no strategic need for a preliminary hearing, the petitioner

might wish to avoid the public disclosure of the details of the offense, and for this reason, the

petitioner agreed to waive the preliminary hearing.

In the final analysis, counsel proposed that a plea to the state charges be arranged so

that any conviction offenses would not be predicated upon coercion. He testified that he negotiated

and coordinated plea agreements with both the federal and state prosecutors. The state prosecutor

agreed to reduce the rape charge to statutory rape, which had the desired effect of reducing release

eligibility from 100 percent of the sentence to 30 percent, but the state would agree only if the

petitioner also would plead guilty to especially aggravated sexual exploitation of a minor and accept

an effective ten-year sentence that featured a 30 percent release eligibility. The state also required

that the suppression motion be abandoned. Counsel secured a plea agreement for the federal charges

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that yielded an effective sentence of slightly more than ten years, and he arranged for the federal

disposition to occur first so that the state sentences could be imposed to run concurrently with the

federal sentences, as the state prosecutor had agreed.

Counsel maintained that the petitioner was informed of the emerging plea structure

several weeks before the pleas were submitted and had agreed to the disposition in view of the

elimination of coercion as an element. Counsel testified that he met with the petitioner for two hours

before the federal plea was submitted and explained in detail the various components of the

agreement, including the nature and severity of the especially aggravated sexual exploitation of a

minor charge, which the state would bring by information and which was the keystone to the overall

agreement. He testified that he explained the meaning of charging the offense by information and

believed that he advised the petitioner that he would have to waive grand jury consideration of the

new charge. In addition, the federal judge conducted a rigorous, exhaustive voir dire of the petitioner

to verify the petitioner’s understanding of the plea agreement.

Following the federal plea hearing, the Tipton County Circuit Court conducted a plea

submission hearing on August 17, 2001, pursuant to Tennessee Rule of Criminal Procedure 11(c).

The transcript of this plea submission hearing, which was exhibited to the post-conviction

evidentiary hearing, reveals that the petitioner acknowledged his understanding of his rights and his

waiver of same, including the right to be tried by a jury and the right to appeal, in favor of pleading

guilty. He acknowledged his understanding of the plea agreement and confirmed that he was

satisfied with the services of his attorney.

Counsel testified that, although he had moved to suppress evidence gained through

the officers’ warrantless search of the petitioner’s residence, he abandoned the motion because (1)

the officers had obtained the petitioner’s consent in writing to search the residence and (2) the state

ultimately conditioned its plea offer upon the suppression issue being abandoned. Counsel believed

that, because of the consent document, the odds were against the petitioner on the suppression issue:

“[We had] a case where he gave explicit permission for the officers to search and seize any property

in his trailer. He did it himself.” The consent form signed by the petitioner was exhibited to the

evidentiary hearing. On cross-examination, counsel admitted that he had not formed an opinion

about whether the petitioner had been arrested before he signed the consent form.

On cross-examination, counsel was asked whether he informed the petitioner that,

if the victim was an accomplice or consenting participant in the fellatio, the victim’s testimony

would have to be corroborated. Counsel did not claim that he imparted this information; rather, he

explained that, in his view, the extortion wrought against the victim would have been viewed by the

court as vitiating the consent of the victim.

The post-conviction court entered extensive findings of fact and conclusions of law,

the gravamen of which is that the petitioner’s guilty plea was knowingly and voluntarily entered and

that the petitioner established neither deficient performance of counsel nor prejudice from counsel’s

performance. Of particular interest to this court on appeal is the lower court’s specific finding that

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it accredited the testimony of counsel over that of the petitioner as to the many points on which the

two differed. The judge opined that, had the suppression motion been pressed and heard, the trial

could would have denied the motion.

On appeal, the petitioner’s main ineffective-assistance-of-counsel focus is directed

to the claims that (1) trial counsel did not inform the petitioner that a consent to search following an

illegal arrest might have been tainted and voidable and that the damning photograph found might

have been suppressed; and (2) with the photograph suppressed, the state might not have been able

to corroborate the victim’s consensual act of fellatio.

In post-conviction proceedings, the petitioner has the burden of proving by clear and

convincing evidence the claims raised. Tenn. Code Ann. § 40-30-210(f) (1997). On appeal, the

lower court's findings of fact are reviewed de novo with a presumption of correctness that may only

be overcome if the evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001).

When a petitioner challenges the effective assistance of counsel, he has the burden

of establishing (1) deficient representation and (2) prejudice resulting from that deficiency.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel’s services fall below

the range of competence demanded of attorneys in criminal cases. Bankston v. State, 815 S.W.2d

213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but for deficient

representation, the outcome of the proceedings would have been different. Overton v. State, 874

S.W.2d 6, 11 (Tenn. 1994). When it is alleged that the ineffective assistance of counsel resulted in

a guilty plea, the burden is upon the petitioner to establish the prejudice prong of Strickland by

proving that "there is a reasonable probability that, but for counsel's errors, he would not have

pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.

Ct. 366, 370 (1985). On review, there is a strong presumption of satisfactory representation. Barr

v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).

When reviewing the entry of a guilty plea, the overriding concern is whether the plea

is knowingly, voluntarily and understandingly made. Boykin v. Alabama, 395 U.S. 238, 242-44, 89

S. Ct. 1709, 1712 (1969). "[A] plea is not 'voluntary' if it is the product of 'ignorance,

incomprehension, coercion, terror, inducements, [or] subtle or blatant threats. . . .' " Blankenship v.

State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43, 89 S. Ct. at 1712).

Moreover, a plea cannot be voluntary if the defendant is "incompetent or otherwise not in control

of his mental facilities" at the time it is entered. Id. at 904-05 (quoting Brown v. Perini, 718 F.2d

784, 788 (6th Cir.1983)). A defendant's plea of guilty is not constitutionally infirm or coerced

merely because the defendant opted to plead guilty as a means of avoiding a more severe sentence

following a trial. See, e.g., Brady v. United States, 397 U.S. 742, 751, 90 S. Ct. 1463, 1471 (1970).

Our review of the record and the applicable law gives us no pause in agreeing that the

petitioner failed to establish his post-conviction claims by clear and convincing evidence.

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We defer to the lower court’s credibility assessments. Because counsel’s testimony

thus accredited adequately addressed most of the issues raised by the petitioner, the denial of post-

conviction relief on those issues was proper.

Counsel did not, however, squarely controvert (1) the claim that he failed to analyze

and inform the petitioner about the post-arrest consent issue or (2) the claim that he failed to inform

and advise the petitioner regarding the corroboration rule.

First, we look at whether counsel was ineffective in failing to inform the petitioner

of the possibility of suppressing the evidence seized in the residence, especially in light of a claim

that the petitioner was under arrest at the time he signed the consent form. See, e.g., Bentley v. State,

552 S.W.2d 778, 780 (Tenn. Crim. App. 1977) (holding that a search “under the circumstances

shown in this record was a far cry removed from a free consent search,” when the defendant had

refused “to permit a search when arrested and placed in custody in the squad car. His consent came

about only when told they (police) would go get a warrant if he did not consent and started the squad

car to do so”). Although the lower court determined that, as the trial court, it would not have

sustained the motion to suppress, we need not determine whether the petitioner voluntarily consented

to the search of his residence because, as a post-conviction petitioner alleging ineffective assistance

of counsel, he has failed to prove this claim by clear and convincing evidence.

To be sure, the petitioner testified that the officers came to his residence and arrested

him without a warrant and that he consented to the search only after he was arrested. The record is

devoid, however, of any proof of the circumstances of the officers’ visit, whether they had probable

cause to arrest the petitioner without a warrant, whether the petitioner was in custody when he signed

the consent form, and whether the totality of the circumstances vitiated the petitioner’s consent to

the search. See id. (applying “totality of the circumstances” test to determine whether the defendant,

who was in custody, voluntarily consented to the search of his residence). The absence of these

circumstances precludes a post-conviction court from determining that trial counsel was remiss in

not discussing the issue more fully with the petitioner, especially when trial counsel testified that he

believed the suppression motion was doomed and that abandoning it was a small price to pay to gain

concessions in plea bargaining. We stress that we are not suggesting that a defendant complaining

of a warrantless search bears any burden to establish the unreasonableness of the search; rather, when

the task at hand is to demonstrate ineffective assistance of counsel, the burden is on the petitioner

to establish a matrix of facts from which counsel’s performance and any resulting prejudice can be

judged. The petitioner has failed to carry this burden in the case before us.

Next, we examine the issue of counsel’s performance in not discussing with the

petitioner the accomplice corroboration rule.

In Tennessee, a conviction may not be based upon the uncorroborated testimony of

an accomplice. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). An accomplice is an individual

who knowingly, voluntarily and with common intent participates with the principal offender in the

commission of an offense. State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990).

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Although “‘[a] common test [of complicity] is whether the alleged accomplice could have been

indicted for the offense,’” State v. Anderson, 985 S.W.2d 9, 16 (Tenn. Crim. App. 1997) (quoting

State v. Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992)), this court has viewed the consenting

victim of a statutory rape as an accomplice. See State v. McKnight, 900 S.W.2d 36, 48 (Tenn. Crim.

App. 1994). At any rate, when the facts are undisputed regarding an individual’s participation in the

crime, whether she is an accomplice is a question of law for the trial court. Perkinson, 867 S.W.2d

at 7. However, when the facts are disputed or susceptible to different inferences, it is a question for

the jury, Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975), and the jury determines

whether an accomplice's testimony has been sufficiently corroborated, Pennington v. State, 478

S.W.2d 892, 898 (Tenn. Crim. App. 1971).

From the post-conviction record, all we can discern about the claim that the young

participant consented to the fellatio is that the consent issue would have been disputed, creating a

jury question at trial whether the petitioner committed the charged offense of rape or, alternatively,

the lesser offense of statutory rape. In his evidentiary hearing testimony, trial counsel forcefully

opined that a jury considering a charge of rape would be sympathetic to and persuaded by the

juvenile victim that the petitioner extorted the “consent” through threatening to publish nude

photographs of the victim. See Tenn. Code Ann. §§ 39-13-503(a)(1) (1997) (rape is committed, inter

alia, by one who unlawfully sexually penetrates a victim when “[f]orce or coercion is used to

accomplish the act”), -501(1) (1997) (“‘Coercion’ means threat of kidnapping, extortion, force or

violence to be performed immediately or in the future . . . .”) (emphasis added); see also id. § 39-14-

112 (1997) (at least for purposes of property crimes, “[a] person commits extortion who uses

coercion upon another person with the intent to: (1) Obtain property, services, any advantage or

immunity; or (2) Restrict unlawfully another’s freedom of action.”) (emphasis added). In the face

of trial counsel’s testimony and the applicable statutory law, the petitioner’s bald assertion that the

victim consented to fellatio falls short of the mark in showing that counsel was remiss in not

explaining that the victim’s trial testimony would have required corroboration. In other words, we

believe that the petitioner failed to prove by clear and convincing evidence that counsel performed

deficiently or that he was prejudiced by counsel’s performance.

In view of the record and the applicable law, we affirm the denial of post-conviction

relief.

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JAMES CURWOOD WITT, JR., JUDGE

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