The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
JUNE SESSION, 1998 FILED
August 17, 1998
Cecil Crowson, Jr.
FREDRICK L. BROWN, ) Appellate C ourt Clerk
) No. 03C01-9701-CR-00034
Appellant )
) HAMILTON COUNTY
vs. )
) Hon. Stephen M. Bevil, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )
For the Appellant: For the Appellee:
Ardena J. Garth John Knox Walkup
District Public Defender Attorney General and Reporter
Donna Robinson Miller Todd R. Kelley
Asst. District Public Defender Assistant Attorney General
Suite 300 - 701 Cherry Street Criminal Justice Division
Chattanooga, TN 37402 450 James Robertson Parkway
Nashville, TN 37243-0493
William H. Cox III
District Attorney General
Bates Bryan
Asst. District Attorney General
600 Market Street, Suite 300
Courts Building
Chattanooga, TN 37402
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Fredrick L. Brown, Jr., appeals the post-conviction court’s
denial of his petition for post-conviction relief. On April 23, 1993, pursuant to a plea
agreement, the appellant pled guilty to two counts of first degree murder and, in
accordance with the State’s recommendation, received two concurrent sentences of
life imprisonment. A charge of aggravated robbery was dismissed.1 On appeal, the
appellant argues that ineffective assistance of counsel caused him to enter
uninformed and involuntary guilty pleas.
After review, we affirm.
BACKGROUND
The record before us establishes that, on April 27, 1993, the appellant
entered guilty pleas to the September 5, 1991, murder of Samuel R. Scott and the
March 24, 1992, murder of Corey C. Strickland. The victim, Scott, was shot seven
times while attempting to flee from the appellant. Three witnesses observed the
shooting. The second victim, Strickland, was murdered by the appellant during the
course of a robbery. Again, eyewitnesses were present at the murder scene.
The appellant’s petition for post-conviction relief was filed on February 8,
1994.
1
Additionally, the State agreed not to pursue aggravated assault charges against the
eighteen year old appellant which he allegedly committed while a juvenile.
2
ANALYSIS
When a claim of ineffective assistance of counsel is raised, the appellant
bears the burden of showing that (a) the services rendered by trial counsel were
deficient and (b) the deficient performance was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Cooper v. State, 849
S.W.2d 744, 746 (Tenn. 1993). With respect to deficient performance, the court
must decide whether or not 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). When a defendant makes a claim of ineffective counsel
within the context of a guilty plea, the defendant must demonstrate a reasonable
probability that, but for counsel’s deficiency, the defendant 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); Manning v. State, 833 S.W.2d 635, 637 (Tenn.Crim.App.
1994).
In his petition, the appellant claims that his two pleas to first degree murder
were involuntary because his trial counsel misled him as to the length of sentences
that would be imposed. Specifically, in his petition he alleges:
During the plea negotiations on the two murder counts, the petitioner
was advised by his attorney that the prosecution was willing to settle
the case(s) for a thirty-six (36) year sentence in exchange for the
petitioner’s guilty plea. Unknown to the petitioner, this 36 year
sentence was in fact a life term that offered the petitioner no
opportunities for a release consideration until he had served at least
thirty-six years in the Tennessee Department of corrections. (sic)
The appellant did not testify at the post-conviction hearing. The appellant’s
father, Fredrick Brown, Sr., and his grandmother, Louise Minafee, testified on behalf
of the appellant. Also testifying was appellant’s trial counsel, Jerry Summers. The
post-conviction court’s summarization of the respective witnesses’ testimony is as
follows:
3
Mr. Brown, Sr. testified that he was under the impression that
petitioner was getting thirty-six years at thirty percent (30%). He also
testified that the petitioner told him he was getting two (2) life
sentences. He also testified that there was conversation with the
petitioner about thirty-six (36) and sixty (60) years. Ms. Minafee
testified that she talked to petitioner about pleading guilty to thirty-six
years. Neither Mr. Brown, Sr. nor Ms. Minafee was present in court
when the petitioner entered his plea of guilty.
Attorney, Jerry Summers, testified that he had met with the petitioner
and the petitioner’s father. He never specifically represented to the
petitioner exactly how much time he would serve because of the
changes in the law, the overcrowding of the penitentiary, and other
factors. He did testify that he thought the petitioner would “flatten out”
the sentence in thirty-six (36) years, and it might be less than that. It
was Mr. Summers’ understanding that a life sentence meant thirty-six
(36) years. He further testified that in his years as an attorney, he had
never plead anyone to first degree murder before, but the fact that
there were two (2) murder cases against the petitioner was a strong
incentive for the petitioner to plead.
The transcript of the guilty plea hearing clearly reflects that, at least on four
specific occasions, appellant was informed that he would be pleading to two
concurrent life sentences. Those instances occurred during (1) the district attorney
general’s recommendation of punishment, (2) the trial court’s advisement of the
penalties provided by law, (3) the statement by trial counsel before sentencing, and
(4) the imposition of sentences by the trial judge.
We do not view the appellant’s responses, which were entered under oath at
the plea hearing, as hollow expressions which may later be casually disregarded
and held for naught. Indeed, we conclude, as observed by the post-conviction court,
that “the transcript of the original plea removes any ambiguity as to the petitioner’s
plea of guilty.”
The trial court, at the guilty plea hearing, and the post-conviction court found
that the appellant’s guilty pleas were knowingly and voluntarily entered. On appeal,
this court is bound by the post-conviction court’s findings of fact unless the evidence
in the record preponderates against those findings. Clenny v. State, 576 S.W.2d 12,
14 (Tenn.Crim.App. 1978). The record is clear that the appellant was repeatedly
4
advised that he would be receiving sentences of life imprisonment for each of the
murders to which he pled guilty.
After review of the record, we conclude that the evidence does not
preponderate against the post-conviction court’s findings.
Accordingly, the judgment of the post-conviction court dismissing the
appellant’s petition is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
_______________________________
JOHN H. PEAY, Judge
_______________________________
JOSEPH M. TIPTON, Judge
5