The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL 1998 SESSION
FILED
April 21, 1998
Cecil Crowson, Jr.
GEORGE W. TUCKER, ) Appellate C ourt Clerk
) NO. 02C01-9707-CR-00249
Appellant, )
) SHELBY COUNTY
VS. )
) HON. L. T. LAFFERTY,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
MARK A. MESLER JOHN KNOX WALKUP
Ballin, Ballin & Fishman, P.C. Attorney General and Reporter
200 Jefferson Avenue, Suite 1250
Memphis, TN 38103-2328 PETER M. COUGHLAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
ROSEMARY S. ANDREWS
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The petitioner, George W. Tucker, appeals the order of the Shelby County
Criminal Court denying his petition for post-conviction relief. He is presently serving
an effective sentence of twelve (12) years following his guilty pleas to the offenses
of theft of property over $10,000, theft of property over $1,000 and leaving the
scene of an accident. In his post-conviction petition he seeks to set aside his
convictions based upon ineffective assistance of counsel and involuntariness of the
guilty pleas. After an evidentiary hearing, the trial court denied relief. We find no
error and AFFIRM the judgment of the trial court.
FACTS
In 1996, petitioner pled guilty to one (1) count of theft of property over
$10,000, one (1) count of theft of property over $1,000 and one (1) count of leaving
the scene of an accident. The trial court sentenced him as a Range III offender to
concurrent terms of twelve (12) years for each theft offense and eleven (11) months
and twenty-nine (29) days for leaving the scene of an accident. Kelly Rayne of the
Shelby County Public Defender’s Office represented petitioner.
Petitioner testified that on the day that he was to go to trial, his attorney
coerced him into pleading guilty. He claimed that she and her supervisor, Sherrye
Brown, pressured him to plead guilty when he actually wanted to go to trial. They
convinced him that the state would prove him guilty, and he was “worn down” by
their insistence that he plead guilty. He also suggested that Rayne did not conduct
an adequate investigation, including locating witnesses. He did, however,
acknowledge that Rayne appeared prepared to try the case on the day he pled
guilty. He also admitted that he had ten (10) prior felony convictions, nine (9) of
which were guilty pleas.
Rayne testified that she and Brown approached petitioner with a negotiated
plea agreement on the day trial was to begin. Rayne had asked Brown to assist her
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with petitioner’s trial because Brown had more experience than she. Rayne met
with petitioner several times in preparation for trial. She testified that three (3)
separate investigations were performed on petitioner’s behalf, and numerous
attempts were made to contact witnesses. On the day petitioner pled guilty, Rayne
reviewed the state’s case with petitioner and explained the amount of prison time
he might receive if convicted after a trial. Rayne denied that she and Brown
coerced petitioner into pleading guilty and stated that he chose to plead guilty.
Brown also testified at the hearing. She had worked with the Public
Defender’s Officer for approximately twelve (12) years at the time petitioner entered
his guilty pleas and was assisting Rayne with several cases as co-counsel. She
reviewed petitioner’s entire file prior to meeting him. She discussed the various
aspects of petitioner’s case with him on the day of his guilty pleas. Although she
advised him that pleading guilty would be in his best interest, she denied coercing
petitioner to plead guilty.
FINDINGS OF TRIAL COURT
Honorable L.T. Lafferty entered an order denying post-conviction relief.1 This
written order is a model for trial judges and is exactly the type order contemplated
by Tenn. Code Ann. § 40-30-211(b). The order clearly and specifically sets forth all
grounds raised by the petitioner. The order further makes findings of fact as to all
the grounds, and does not merely summarize testimony.2 The trial court then stated
the applicable law, applied this law to the findings of fact and concluded that
petitioner was entitled to no relief.
1
The petition for post-conviction relief was filed on November 5, 1996. The trial
court promptly entered the required preliminary order on November 14, 1996. The state filed
its written response on December 12, 1996. The evidentiary hearing was conducted on
January 31, 1997, and the case was taken under advisement. The trial court entered a six-
page written order dismissing the petition on February 5, 1997. A trial judge must dispose
of all judicial matters promptly, efficiently and fairly. Canon 3B(8), Tennessee Supreme
Court Rule 10. The handling of this case by the trial judge epitomizes the high standards
placed upon a court in fulfilling its responsibilities to the litigants and society.
2
A summary of testimony does not constitute findings of fact.
3
Specifically, the trial court found that petitioner entered knowing and
voluntary guilty pleas, and neither Rayne nor Brown coerced him into pleading guilty
against his will. In the order, Judge Lafferty stated:
[t]his petitioner is no stranger to the criminal justice system. He had
gone through a jury trial and had entered maybe 9 or 10 guilty pleas
to felonies in the past. He was represented by attorneys in each prior
proceeding. From his past experience in the system and observing
his demeanor, the court found it difficult to believe that these two
attorneys overwhelmed the petitioner.
The trial court found that counsel performed “well within the criteria as demanded
by Baxter v. Rose, 523 S.W.2d 390 (Tenn. 1975).” Moreover, the court found that
petitioner had failed to establish prejudice from any of the alleged instances of
deficient representation. Therefore, the trial court denied post-conviction relief.
POST-CONVICTION STANDARD OF REVIEW
The trial judge's findings of fact on post-conviction hearings are conclusive
on appeal unless the evidence preponderates otherwise. Butler v. State, 789
S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim.
App. 1995). The trial court’s findings of fact are afforded the weight of a jury verdict,
and this Court is bound by the trial court’s findings unless the evidence in the record
preponderates against those findings. Henley v. State, S.W.2d (Tenn.
1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State,
934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not reweigh or
reevaluate the evidence, nor substitute its inferences for those drawn by the trial
judge. Henley v. State, S.W.2d at ; Massey v. State, 929 S.W.2d 399, 403
(Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.
1990). Questions concerning the credibility of witnesses and the weight and value
to be given to their testimony are resolved by the trial court, not this Court. Henley
v. State, S.W.2d at ; Black v. State, 794 S.W.2d at 755. The burden of
establishing that the evidence preponderates otherwise is on petitioner. Henley v.
State, S.W.2d at ; Black v. State, 794 S.W.2d at 755.
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INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner claims that trial counsel was ineffective because she and her
supervisor coerced him into pleading guilty. He maintains that she was not
prepared to go to trial and, therefore, insisted that he plead guilty. He further argues
that had it not been for counsel’s insistence that he plead guilty, he would have
gone to trial.
A.
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner
has the burden to prove that (1) the attorney’s performance was deficient, and (2)
the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d
6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).
The test in Tennessee in determining whether counsel provided effective
assistance is whether his performance was within the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The
petitioner must overcome the presumption that counsel’s conduct falls within the
wide range of acceptable professional assistance. Strickland v. Washington, 466
U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim.
App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the
Supreme Court applied the two-part Strickland standard to ineffective assistance of
counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice
requirement by requiring a defendant to show 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. 474 U.S. at 59, 106 S.Ct. at 370.
B.
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The trial court found it implausible that Rayne and Brown had coerced
petitioner into pleading guilty due to petitioner’s prior experience with the criminal
justice system. The court found that Rayne had thoroughly investigated the state’s
case against petitioner and fully advised petitioner on her investigation. Indeed, the
trial court found no deficiency on the part of Rayne or Brown in their representation
of petitioner in this case. The trial court accredited the testimony of Rayne and
Brown. The burden is on the petitioner to establish that the evidence preponderates
against the trial court’s findings. See Alley v. State, 958 S.W.2d at 147; Dixon v.
State, 934 S.W.2d at 72. The petitioner has failed to meet his burden.
This issue is without merit.
VOLUNTARINESS OF GUILTY PLEA
Petitioner further contends that his guilty pleas were involuntary because he
was coerced into pleading guilty. He concedes that the state made an “affirmative
showing that [his] plea was knowing and voluntary” under the standards set forth in
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and State
v. Mackey, 553 S.W.2d 337 (Tenn. 1977). However, he suggests that his pleas
were involuntary because he was forced to plead by his attorneys.
Whether a defendant’s plea of guilty was voluntarily, understandingly and
knowingly entered is determined by looking at the totality of the circumstances.
State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). The trial court, as
well as this Court, must consider all of the relevant circumstances that existed at the
time the plea was entered. Id.
The trial court found no evidence that petitioner’s attorneys forced him into
pleading guilty. The court looked at petitioner’s past experience with the criminal
justice system and noted that petitioner had entered approximately nine (9) guilty
pleas to felonies in the past. The court concluded that petitioner’s guilty pleas were
not involuntary. Petitioner has not demonstrated that the evidence preponderates
otherwise.
6
This issue has no merit.
CONCLUSION
The trial court, after hearing testimony and observing the appearance and
demeanor of each witness, entered extensive findings. The trial court dismissed the
petition based upon these findings. We find that the evidence does not
preponderate against the trial court’s findings that petitioner’s guilty pleas were
voluntary and that he received effective representation at the trial level.
Accordingly, the judgment of the trial court is affirmed.
JOE G. RILEY, JUDGE
CONCUR:
DAVID G. HAYES, JUDGE
WILLIAM M. BARKER, JUDGE
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