The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER 1997 SESSION FILED
December 4, 1997
CHARLES AUSTIN, ) Cecil Crowson, Jr.
Appellate C ourt Clerk
)
APPELLANT, )
) No. 02-C-01-9611-CR-00386
)
) Shelby County
v. )
) Joseph B. Brown, Jr., Judge
)
) (Post-Conviction Relief)
STATE OF TENNESSEE, )
)
APPELLEE, )
FOR THE APPELLANT: FOR THE APPELLEE:
Craig B. Floyd, II John Knox Walkup
Attorney at Law Attorney General & Reporter
100 North Main Bldg., Suite 2400 500 Charlotte Avenue
Memphis, TN 38103 Nashville, TN 37243-0497
Clinton J. Morgan
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
John W. Campbell
Assistant District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
OPINION FILED:_________________________________
AFFIRMED PURSUANT TO RULE 20
Joe B. Jones, Presiding Judge
OPINION
The appellant, Charles Austin (petitioner), 1 appeals as of right from a judgment of
the trial court denying his action for post-conviction relief following an evidentiary hearing.
While the petitioner presents two issues for review, the gist of these issues is that the
petitioner was denied his constitutional right to the effective assistance of counsel.
The evidence adduced during the hearing conflicts as to every material fact, and
these conflicts cannot be reconciled. The petitioner testified he entered pleas of guilty
pursuant to a plea agreement because he was afraid he would receive a death sentence
if he went to trial. He further testified his retained counsel coerced him to plead guilty. The
submission hearing reveals the assistant district attorney general advised the trial court the
state did not have grounds to seek a death sentence due to recent decisions of the
Supreme Court. The petitioner’s trial counsel testified that the state never gave notice or
indicated it would seek a death sentence; and he emphatically denied he told the petitioner
he could receive a death sentence if he went to trial. Furthermore, defense counsel stated
the decision regarding whether the petitioner should enter guilty pleas was made by the
petitioner and his mother.
Counsel’s main concern was the imposition of consecutive sentencing. An assistant
district attorney general told counsel the petitioner could enter pleas of guilty and the state
would recommend the sentences be served concurrently. However, if the petitioner went
to trial, the assistant district attorney general asserted the state would make every effort
to have the trial court order that the sentences be served consecutively.
When questioned about the proceedings during the submission hearing, the
petitioner stated he was there physically but not mentally; and he committed perjury during
the hearing. He claimed he gave the answers his attorney suggested.
The trial court found the petitioner failed to prove the grounds alleged in the petition
by a preponderance of the evidence. Given the preposterous answers he gave during his
testimony, it is doubtful the trial court believed him or a former co-defendant who testified
1
The petitioner was indicted as “Charles E. Austin,” “Charles Edward Austin,” and
“Charles Austin.” He initiated this action as “Charles Austin.” All of these names refer to
the same person.
2
in support of the petitioner’s theory of how the murder occurred.
After a thorough review of the record, the briefs submitted by the parties, and the
law governing the issues presented for review, it is the opinion of this court that the
petitioner has failed to establish the evidence preponderates against the judgment of the
trial court. Thus, the judgment of the trial court is affirmed pursuant to Rule 20, Tennessee
Court of Criminal Appeals.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
DAVID H. WELLES, JUDGE
______________________________________
JOE G. RILEY, JUDGE
3