The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1999 SESSION FILED
July 16, 1999
KENNETH BROWN, * No. 02C01-9805-CR-00130
Cecil Crowson, Jr.
Appellant, * SHELBY COUNTY Appellate Court Clerk
VS. * Hon. Bernie W einman, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
For Appellant: For Appellee:
Tony N. Brayton John Knox Walkup
Assistant Public Defender Attorney General and Reporter
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103 J. Ross Dyer
(on appeal) Assistant Attorney General
Criminal Justice Division
Of counsel: 425 Fifth Avenue North
A.C. Wharton, Jr. Nashville, TN 37243
Shelby County Public Defender
Alanda Horne
Donna Armstard Assistant District Attorney General
Assistant Public Defender 201 Poplar Avenue, Third Floor
201 Poplar Avenue, Second Floor Memphis, TN 38103
Memphis, TN 38103
(at trial)
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The petitioner, Kenneth Brown, appeals the trial court's denial of post-
conviction relief. The issue presented for review is whether the petitioner was
provided effective assistance of trial counsel before entering a guilty plea.
We find no error and affirm the judgment of the trial court.
Following several days of trial in 1996, the petitioner pled guilty to thirty
indictments for aggravated burglary, all of which were Class C felonies. Tenn. Code
Ann. § 39-14-403. Pursuant to the plea agreement, the trial court imposed
concurrent, Range III fifteen-year sentences for twenty-nine of the convictions. On
the remaining conviction, the trial court imposed a Range I, five-year sentence to be
served consecutively to the fifteen-year sentences. The effective sentence was,
therefore, twenty years.
On August 1, 1997, the petitioner filed a pro se petition for post-
conviction relief. The trial court appointed counsel and conducted an evidentiary
hearing. At the conclusion of the proceeding, the trial court determined that the
petitioner had been provided the effective assistance of counsel and had knowingly
and voluntarily entered each of the guilty pleas.
At the evidentiary hearing, the petitioner complained that his trial
counsel failed to provide him with a copy of his statement to police as he had
requested. He argues that his trial counsel failed to file a motion to suppress the
statement and failed to adequately investigate the accuracy of the statement with
law enforcement officers. The petitioner claimed that he did not recall providing
information about twenty-nine burglaries and was unaware of many important
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details. He maintained that he had been involved in only thirteen or fourteen
burglaries and denied having confessed to sixty burglaries.
The petitioner testified that he agreed to stop the trial because he had
lost confidence in his trial counsel and felt that his representation was ineffective.
He stated that his trial counsel had visited him at the jail before the trial to discuss
the plea offer but that the two had never discussed the cases. The petitioner
maintained that his trial counsel did not discuss the discovery procedures, did not
provide copies of the indictments, and only allowed him to see the motion to
suppress after his decision to plead guilty. The petitioner testified that he had
wanted separate trials on each indictment but that his trial counsel had informed him
the trial court would not agree. He insisted that there should have been a hearing to
determine whether separate trials were warranted.
On cross-examination, the petitioner acknowledged that he had
decided to plead guilty after hearing eight witnesses testify favorably for the state.
He conceded that he was aware that the prosecutor planned to introduce his
confession. The petitioner admitted that he had discussed his options with his trial
counsel, had informed the judge that he understood his right to continue with the
trial, and that he concluded that it was in his best interests to plead guilty. The
petitioner testified that he was aware that he could receive a sentence of 90 to 180
years had he chosen to allow the trial to proceed. He acknowledged that he was not
coerced or pressured into accepting the terms of the plea agreement.
The petitioner's trial counsel had practiced law for thirty-seven years.
He testified that he had visited the petitioner twenty to thirty times at the jail and that
the meetings lasted from five minutes to two hours, depending on the need. Trial
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counsel recalled that the petitioner had confessed to fifty-four burglaries and was
likely to be indicted for another sixty-five. He acknowledged that the petitioner had
been involved in a burglary ring and after his arrest, agreed to serve as a witness for
the state against his co-defendants. Trial counsel recalled that prior to trial the
petitioner had not challenged the accuracy of the confession.
Trial counsel admitted that he did not file a motion to suppress the
petitioner's confession before trial because he thought there was no basis for its
exclusion. He stated that he offered to provide the petitioner with a copy of the
confession but that the petitioner did not want it. Trial counsel testified that he had
ordered two mental evaluations of the petitioner due to his concern about the
petitioner's competency. He stated that there were no witnesses to investigate. He
recalled that the defendant had appeared to enter the guilty pleas knowingly and
voluntarily and with an understanding of the consequences.
The trial court denied relief for the following reasons:
The Court finds that the petitioner freely and
voluntarily entered the guilty plea after being fully advised
of all his rights by his counsel and the trial judge. The
petitioner wanted to avoid the possibility of receiving
more punishment if convicted at trial. In addition he
wanted to avoid the possibility of being indicted on
additional charges of aggravated burglary.
The Court finds that the advice given and the
services rendered by the [petitioner's trial] counsel were
within the range of competency demanded by an
attorney in a criminal case and that [trial counsel's]
representation of the [petitioner] at his guilty plea
complied with the requirements set out by the Supreme
Court of Tennessee in the case of Baxter v. Rose, 523
S.W.2d 930.
When a petitioner seeks post-conviction relief on the basis of
ineffective assistance of counsel, he must first establish that the services rendered
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or the advice given was below "the range of competence demanded of attorneys in
criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he
must show that the deficiencies "actually had an adverse effect on the defense."
Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, he is not entitled to relief. Our supreme court described the
standard of review as follows:
Because a petitioner must establish both prongs of the
test, a failure to prove either deficiency or prejudice
provides a sufficient basis to deny relief on the ineffective
assistance claim. Indeed, a court need not address the
components in any particular order or even address both
if the defendant makes an insufficient showing of one
component.
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). On claims of ineffective counsel,
the petitioner is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy, and cannot criticize a sound, but unsuccessful,
tactical decision made during the course of the proceedings. Adkins v. State, 911
S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions
of counsel, however, applies only if the choices are made after adequate
preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).
The standard announced in Strickland, as it applies to guilty pleas, is
met when the petitioner establishes that, but for his counsel's error, he would not
have pleaded guilty and would have insisted on trial. Hill v. Lockhart, 474 U.S. 52,
59 (1985). In Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court ruled
that the trial courts must establish a record at the submission hearing that all guilty
pleas are knowingly and voluntarily entered. In order to meet constitutional
standards, the plea must represent "a voluntary and intelligent choice among the
alternative choices of action [available]." North Carolina v. Alford, 400 U.S. 25
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(1970); Clark v. State, 800 S.W.2d 500 (Tenn. Crim. App. 1990).
Under our statutory law, the petitioner bears the burden of proving his
allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On
appeal, the findings of fact made by the trial court are conclusive and will not be
disturbed unless the evidence contained in the record preponderates against them.
Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on
the petitioner to show that the evidence preponderated against those findings.
Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
In our view, the evidence does not preponderate against the trial
court's finding that the petitioner entered knowing and voluntary guilty pleas and
received the effective assistance of counsel. The trial court accredited the
testimony of trial counsel rather than that of the petitioner. In essence, the proof
demonstrated that the petitioner was dissatisfied with the length of his sentence but
that he had been aware of the consequences of the plea agreement prior to
pleading guilty. The submission hearing record demonstrates that the petitioner
responded intelligently to a variety of questions posed by the trial judge. The
petitioner clearly acknowledged that the plea was free and voluntary and that he
willingly accepted the state's offer of twenty years. From all of this, it appears that
trial counsel performed his duties well within the established professional guidelines.
Accordingly, the judgment of the trial court is affirmed.
__________________________________
Gary R. Wade, Presiding Judge
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CONCUR:
_______________________________
Joseph M. Tipton, Judge
________________________________
Thomas T. W oodall, Judge
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