Gabriel Bryan Baggett v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 3, 2002

GABRIEL BRYAN BAGGETT v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 2000-A-457 Steve R. Dozier, Judge

No. M2002-00591-CCA-R3-PC - Filed March 20, 2003

The petitioner, Gabriel Bryan Baggett, pled guilty to second degree murder and especially aggravated

robbery, receiving sentences of fifty years and twenty-five years, respectively, at 100%. He filed a

petition for post-conviction relief, alleging ineffective assistance of counsel and that his pleas of

guilty were involuntary. Following a hearing, the post-conviction court dismissed the petition, and

this appeal followed. We affirm the order of the post-conviction court dismissing the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.

WOODALL, JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Gabriel Bryan Baggett.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Pamela S. Anderson, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Because a portion of the petitioner’s complaints is based upon his pleas of guilty, we first will

review the proceeding at which the pleas were entered.

The petition to enter pleas of guilty provides, as to the murder charge, that the charge was

“reduced to 2nd degree murder, 50 years at 100% (85% eligibility), defendant waives range,” and, as

to the robbery charge, “especially aggravated robbery – 25 years at 100% (85% eligibility),

concurrent to count 1.”

At the guilty plea submission hearing, the court questioned the petitioner about the sentences

to be imposed, following the announcement by the State as to the agreement:

[THE STATE]: Your Honor, the State would recommend as to

Count I of the indictment, that the defendant enter a plea to the

offense of second degree murder. The State would further

recommend that the defendant, by agreement, plead out of range to

second degree murder and receive a sentence of fifty years at one

hundred percent. He would otherwise be a standard offender.

The State would further recommend as to Count II of the

indictment, that the defendant receive a sentence of twenty-five years

at one hundred percent to the offense of especially aggravated

robbery. And that that conviction would run concurrently with [the]

second degree murder conviction.

....

THE COURT: All right. It’s being recommended, Mr. Baggett, on

your plea of guilty to a reduced charge of second degree murder

against the victim . . . in Count I, that you receive a fifty year sentence

to serve with the Department of Corrections at one hundred percent.

Is that your understanding?

DEFENDANT BAGGETT: Yes, sir.

THE COURT: All right. It’s being recommended in Count II on

your plea of guilty to especially aggravated robbery that you receive

a twenty-five year sentence at one hundred percent to run concurrent

or together with Count I for an effective fifty year sentence at one

hundred percent. Is that your understanding?

DEFENDANT BAGGETT: Yes, sir.

....

THE COURT: All right. Do you understand, Mr. Baggett, that the

sentences are at one hundred percent? You’ve put in this plea

petition that – and the statute allows a reduction to eighty-five

percent, but that is up to the parole board. In other words, this

sentence is being composed at one hundred percent, one hundred

percent of this fifty year sentence you are subject to serving. Do you

understand that?

DEFENDANT BAGGETT: Yes, sir.

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At the post-conviction hearing, the petitioner explained his complaints. He testified that he

had not understood that his sentences were to be served at 100%:

Q Okay. And what, to your understanding, was [sic] the

conditions of that guilty plea?

A My understanding was that I was to enter a guilty plea of second

degree murder and especially aggravated robbery, fifty years at

eighty-five percent with the twenty-five to run concurrent with the

fifty.

Q All right. Now, you said on the murder, fifty years at eighty-

five percent.

A Yes, sir.

Q During the plea, Judge Dozier asked you if you understood that

this was a one hundred percent plea, not an eighty-five percent. Do

you remember that?

A I remember him asking me if I was entering a plea and

everything. Everything was just happening so quick I was just like,

yeah, yeah, yeah. I was just trying to get out of Court, right.

Q Okay. Now, at what point in time had you – before the plea,

had you heard the terms, eighty-five and a hundred percent? When

had you heard those?

A Upstairs that morning when I was talking with my lawyers . . .

. They were telling me that if I entered the plea, it would be at eighty-

five percent. And that’s why I consented to it. That’s why I signed

the papers on. That’s – they say, here’s the papers, it’s at eighty-five

percent, sign it, we’ll go downstairs and it will be official.

Q Now, if the plea agreement, though, shows that you signed one

saying a hundred percent and if you agreed in Court to accept a

hundred percent, how do [you] explain that to the Court?

A I’m confused, man, you know, everything was happening real

quick.

Q What led you to believe it was eighty-five?

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A These lawyers kept telling me it’s at eighty-five, it’s eighty-five.

Both of them were telling me that.

He complained also in his post-conviction petition that trial counsel had not shown him the

evidence against him, and was questioned at the hearing about this assertion:

Q Now, let’s talk more about before the plea agreement. Let’s talk

about the evidence in your case.

A What evidence?

Q What – what evidence did you see?

A That’s why I’m asking you, what evidence. I’ve never seen

anything besides my indictments. You know –

Q Did they ever show – didn’t they show you the discovery?

A No, I never seen my discovery. All I had was the copy of my

indictments.

Q Didn’t they show – didn’t they show you – or didn’t they

explain to [you] then, if they didn’t show it to you, what proof the

State would bring to show to a Jury during a Jury trial?

A Not that I remember.

Q So it’s your contention that they never showed you or told you

what the Jury would see in a Jury trial?

A I never seen anything.

Q Okay. Did you feel like you were very involved in your

defense?

A No, not really. Because, you know, I only seen them about four

or five times the whole entire time I was up at CJC.

The petitioner testified that his trial counsel had explained that he could file a post-conviction

petition within a year and that he would receive a trial:

A Basically, he said, if I go on and enter this plea of guilty, I could

go on and file this post conviction as long as I did it within a year.

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Q Okay. What did you know about the term, post conviction,

before [trial counsel] mentioned it to you?

A I never heard of it.

Q Okay. Did he explain anything more about what post

conviction was?

A He told me it’d be like I’m suing him to get a new trial.

Q Okay.

A That was basically it.

Q And so that led you to believe that if you . . . filed a post

conviction motion within one year of accepting the plea, that you

would come back into the Court and Judge Dozier would give you a

new trial?

A Right.

One of the petitioner’s trial counsel testified at the hearing, explaining her assessment of the

proof which would have been presented against the petitioner at trial:

A It was not a good case for Mr. Baggett, for a bunch of reasons.

Obviously, he had – there was a full statement that he made. He had

also made statements to his family and his girlfriend. There was a

video tape also of him walking away from the car that was burning.

Q Would that be the deceased victim’s car?

A The victim’s car. Yeah, yeah.

Q And were there items that were taken from the victim’s car?

A Yes. The speakers were and they were recovered at his

girlfriend’s house. And she was also one of the people who he had

made some statements to about what had happened and she was

subpoenaed.

Q Generally, what type of statements did he make to those

individuals?

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A If I recall, when we talked to the girlfriend . . . she told us that

when he gave her the speakers, he told her that he had killed the

fellow over drugs and money or some such thing. So that was almost

as bad if not worse than what he told the police. And his mother,

obviously, he just told her what he had done. And there were some

extenuating circumstances about, if he had testified, what he would

say.

Q What was that situation?

A Well, he had issues with his father. And he viewed, sort of, this

killing as like a practice run for when he had hoped to kill his father.

To see if he could just kill someone who didn’t necessarily . . . if

there was someone with his dad who he had to kill, as well, if he

could just go ahead and do it. So when we heard about that, that’s

when we got Dr. Caruso involved, hoping that there would be some

basis for a diminished capacity defense. And [other trial counsel]

actually had most of the dealings with Dr. Caruso, talked to him

most. But, you know, obviously, since there’s no report, he didn’t

have anything good to say for [the defendant’s] case.

Q So his testimony –

A Wouldn’t have been helpful.

Q Most likely would not have been favorable and would not have

supported a defense in this case?

A Right. Right.

Additionally, upon questioning, she explained that counsel had met with the petitioner to

discuss the evidence against him:

Q But you remember specifically going over the contents and

having a copy in your presence while you were doing such.

A That, I do remember. I am pretty sure, though, that we didn’t

actually watch the video tapes with him. We told [him] what they

said, you know, what they showed us. But I don’t recall actually

sitting and watching them with him and I don’t think we did that.

Q Would that have had, perhaps, something to do with the

logistics with where he was presently being held?

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A Partially, at least.

Q And in the discovery that you were going through with him and

discussing with him, was there, in fact, a detailed summary made by

the police officer concerning the contents of that tape?

A I believe so.

Q And did he seem to have any difficulty at all remembering

having given that statement or the general contents of that statement?

A I don’t think so.

In order to determine the competence of counsel, Tennessee courts have applied standards

developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)

(noting that the same standard for determining ineffective assistance of counsel that is applied in

federal cases also applies in Tennessee). The United States Supreme Court articulated the standard

in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is

widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s

assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that

is “critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at

2063. The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so serious

that counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient

performance” in the first prong of the test in the following way:

In any case presenting an ineffectiveness claim, the performance

inquiry must be whether counsel’s assistance was reasonable

considering all the circumstances. . . . No particular set of detailed

rules for counsel’s conduct can satisfactorily take account of the

variety of circumstances faced by defense counsel or the range of

legitimate decisions regarding how best to represent a criminal

defendant.

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Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell

below an objective standard of reasonableness under prevailing professional norms.” House v. State,

44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.

State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a

reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been

different”).

Courts need not approach the Strickland test in a specific order or even “address both

components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,

104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency

or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of

proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-

210(f) (1997). A petition based on ineffective assistance of counsel is a single ground for relief,

therefore all factual allegations must be presented in one claim. See Tenn. Code Ann. § 40-30-

206(d) (1997).

We note that when post-conviction proceedings have included a full evidentiary hearing, as

was true in this case, the trial judge’s findings of fact and conclusions of law are given the effect and

weight of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we

conclude that the evidence contained in the record preponderates against the judgment entered in the

cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must

indulge a strong presumption that the conduct of counsel falls within the range of reasonable

professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-

guess the tactical and strategic choices made by trial counsel unless those choices were uninformed

because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact

that a strategy or tactic failed or hurt the defense does not alone support the claim of ineffective

assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997).

Finally, a person charged with a criminal offense is not entitled to perfect representation. See

Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in State v. Burns, 6

S.W.3d 453, 462 (Tenn. 1999), “[c]onduct that is unreasonable under the facts of one case may be

perfectly reasonable under the facts of another.”

Our supreme court explained in Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002), the

showing which a petitioner must make to establish that he was prejudiced by the action or inaction

of counsel:

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To establish that a deficiency resulted in prejudice, a petitioner

"must show that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Strickland, 466

U.S. at 694, 104 S. Ct. at 2068. In short, a petitioner must establish

that the deficiency of counsel was of such a degree that it deprived the

defendant of a fair trial and called into question the reliability of the

outcome. State v. Burns, 6 S.W.3d at 463. In cases involving a guilty

plea, a petitioner must establish that but for counsel's deficiency, he

would have gone to trial instead of entering the plea of guilty. Hill v.

Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203

(1985).

Following the hearing on the post-conviction petition in this matter, the court concluded in

writing both that the petitioner had received effective assistance of counsel and that his pleas of

guilty were “knowing, intelligent, and voluntary,” detailing its findings:

The petitioner testified that while being represented by [trial

counsel], he was neither shown any evidence against him nor did

counsel explain it to him. The defendant also stated that [trial

counsel] advised him to enter the guilty plea and he could then file a

petition for Post Conviction in order to receive a new trial. However,

the defendant’s testimony on cross-examination was in sharp contrast

with his testimony offered on direct examination. Specifically, when

questioned by the State, the petitioner testified that he had given a full

confession to police in this case. The petitioner also stated that he

was aware that the evidence against him was not in his favor and if

convicted, he could receive a considerable amount of time. More

importantly, the petitioner testified that he was aware that he could

get a 15% reduction of his sentence if he was entitled to good and

honor time.

Noting that the petitioner had signed the guilty plea petition setting out the sentences which

would be imposed and that it provided as to each sentence “100% to serve (85% eligibility),” the

court set out its question of the petitioner and his response as to the percent of the sentences to be

served:

The Court: All right. Do you understand, Mr. Baggett, that the

sentences are at one hundred percent? You’ve put in this plea

petition that – and the statu[t]e allows a reduction to eighty-five

percent, but that is up to the parole board. In other words, this

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sentence is being composed at one hundred percent of this fifty-year

sentence you are subject to serving. Do you understand that?

Defendant Baggett: Yes, Sir.

Detailing the testimony of petitioner’s trial counsel, and accrediting her testimony rather than

that of the petitioner, the post-conviction court then concluded that the petitioner had failed to show

that but for counsel’s alleged errors, he would not have pled guilty to the two offenses. Thus, the

court concluded that the petitioner received effective assistance of counsel and that his pleas of guilty

were knowing and voluntary.

The record fully supports these findings and conclusions of the post-conviction court. The

guilty plea petition was clear as to what sentences would be imposed, as was the questioning of the

petitioner by the court before the sentences were imposed. The petitioner does not suggest what

further explanations could have been given as to the fact that the sentences were imposed at 100%,

but he could serve as little as 85%, within the discretion of the parole board.

Accordingly, we conclude that the post-conviction court did not err in dismissing the petition

for post-conviction relief.

___________________________________

ALAN E. GLENN, JUDGE

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