Walter George Glenn v. State of Tennessee

10/01/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 28, 2018

WALTER GEORGE GLENN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

No. 295738 Thomas C. Greenholtz, Judge

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No. E2017-02019-CCA-R3-PC

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Petitioner, Walter George Glenn, appeals the denial of his petition for post-conviction

relief from his conviction for second degree murder. On appeal, Petitioner argues that he

received ineffective assistance of counsel. After thorough review, we determine that

Petitioner received effective assistance of counsel and affirm the judgment of the post-

conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.

WOODALL and CAMILLE R. MCMULLEN, JJ., joined.

Wencke West, Cleveland, Tennessee, for the appellant, Walter George Glenn.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;

Neal Pinkston, District Attorney General; and AnCharlene Davis, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

In December 2009, Petitioner fatally stabbed his seventeen-year-old stepson with a

knife. State v. Walter George Glenn, No. E2013-01852-CCA-R3-CD, 2014 WL

3056162, at *1 (Tenn. Crim. App. July 7, 2014), perm. app. denied (Tenn. Nov. 20,

2014). The Hamilton County Grand Jury indicted Petitioner for first degree premeditated

murder. A petit jury found Petitioner guilty of the lesser included offense of second

degree murder. Id. at *3. The trial court imposed a Range II sentence of thirty-five years

of incarceration. Id. This Court affirmed Petitioner’s conviction and sentence. Id. at

*10. On July 16, 2015, Petitioner filed his post-conviction relief petition alleging

ineffective assistance of trial and appellate counsel. Two different attorneys withdrew

from representing Petitioner on his post-conviction claims. Eventually, post-conviction

counsel was appointed and represented Petitioner at his post-conviction hearing.

At the time that Petitioner was indicted for first degree murder, trial counsel was

representing Petitioner on a violation of probation charge. Inevitably, trial counsel, “a

seasoned attorney,” was appointed to also represent Petitioner on this case. When

describing his relationship with Petitioner, trial counsel stated, “I wouldn’t call it a

working relationship.”

When trial counsel and Petitioner first appeared in court, trial counsel discussed

Petitioner’s arraignment and Petitioner’s violation of probation with him. During that

discussion, Petitioner insisted that he had a suspended three-year sentence rather than a

four-year sentence, as reflected in the paperwork. Nevertheless, Petitioner told trial

counsel to stipulate to the violation of probation, but trial counsel explained to the

Petitioner that it would be ill advised to do so. So, the probation violation hearing was

postponed. Again, trial counsel spoke with Petitioner, and Petitioner said that he wanted

his probation to be revoked. Trial counsel believed that Petitioner “was under the

misapprehension that he would receive more credit time than in fact he was going to

receive.” Trial counsel was also concerned with the implications of Petitioner’s

admission to the probation violation in Petitioner’s first degree murder case. Petitioner

maintained that he did not take trial counsel’s advice regarding pleading to the violation

of probation because Petitioner had just met him and did not trust him. According to

Petitioner, trial counsel’s explanation of the problem with pleading to the violation of

probation “went in left field.” Without regard for trial counsel’s concerns, Petitioner

stipulated to the violation of probation. Trial counsel described Petitioner as taking an

“adamant position with respect to stipulating to the probation violation against [trial]

counsel’s advice.” As a result, Petitioner’s probation was revoked, and a four-year

sentence of incarceration was imposed.

Later, Petitioner called trial counsel and expressed his wish to withdraw his guilty

plea on the probation violation because Petitioner had misunderstood the credit that he

would receive. Trial counsel met with Petitioner the day after the phone call and filed a

motion to withdraw the plea. The probation violation was set aside by the trial court.

Petitioner believed that his decision to stipulate to the probation violation should

have been a red flag indicating to trial counsel that his mental health might be an issue.

To the contrary, trial counsel noted, “[There was] nothing in my interaction with

[Petitioner,] even at the beginning of the case[,] that lead me to believe he was having

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trouble understanding the nature of the charge against him [or] the nature of the

proceeding. He seemed to have a rational understanding of both of those things.” Trial

counsel perceived “reluctancy” and “distrust” on the part of Petitioner when it came to

communication, but not an inability to communicate. Because of Petitioner’s

“resistance,” trial counsel claimed Petitioner “was probably one of the more challenging

clients I had.” Trial counsel did not perceive any indication that Petitioner was unable to

assist with his defense.

Trial counsel sent Petitioner a total of twelve letters throughout the course of his

representation. Toward the beginning of his representation of Petitioner, trial counsel

made two jail visits to see Petitioner and spoke with Petitioner at four or five intervening

court dates. However, trial counsel’s communication with Petitioner lapsed for a few

months until he received a letter from the Petitioner asking for more communication and

explanations. Subsequent to receiving Petitioner’s letter, trial counsel met with Petitioner

at the jail. Over the course of his representation, trial counsel made nine jail visits to

speak with Petitioner. In both the letters and private conversations, trial counsel

discussed the validity of the first degree murder indictment, jury instructions, plea offers,

trial strategy, likelihood of conviction, and sentencing exposure in various scenarios.

Additionally, trial counsel disclosed that he represented the mother of the prosecutor for

the State in an unrelated civil matter. Trial counsel believed that he did not have a

conflict of interest when it came to representing Petitioner.

Trial counsel recalled that his meetings with Petitioner were not “terribly fruitful

endeavor[s]” and that Petitioner seemed focused on ineffective assistance of counsel

rather than focusing on defending his murder charge. To trial counsel, it appeared that

Petitioner was attempting to build a record for post-conviction proceedings. Of trial

counsel’s meetings with Petitioner, only two were for less than one hour.

Petitioner claimed that he would have cooperated with trial counsel if he had

trusted him. However, Petitioner did not feel that trial counsel was acting in Petitioner’s

best interest. Petitioner testified that he asked trial counsel to file motions for him but

trial counsel refused. Petitioner stated that he wanted to be a part of his defense, but trial

counsel did not discuss strategies with him. “We had disagreements,” said Petitioner.

Petitioner disagreed with trial counsel on trial strategy and the witnesses to be called.

Trial counsel communicated to the Petitioner an offer of a seventeen-year sentence

at one hundred percent for a guilty plea to second degree murder. Trial counsel perceived

that Petitioner made it very clear that he would not accept the offer. According to trial

counsel, Petitioner believed that he did not commit second degree murder. Trial counsel

informed the State that Petitioner rejected the offer. Trial counsel maintained that if

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Petitioner had asked for time to consider the offer, rather than rejecting it outright, trial

counsel would have told the State that they need more time to consider the offer.

Petitioner recollected the conversation about the plea offer differently. Petitioner

contends that he did not reject the State’s plea offer. Petitioner wanted to speak with his

family about the offer. Petitioner said, “I didn’t directly refuse it. That was [trial

counsel’s] assumption because we didn’t have no communication.” Petitioner

maintained that he would have taken the seventeen-year plea offer from the State if he

had been given time to consider it.

Eventually, Petitioner complained to the Board of Professional Responsibility

about trial counsel’s representation. Trial counsel responded with a letter to Petitioner

and met with Petitioner. In trial counsel’s letter to Petitioner, trial counsel sheds some

light on the difficulty of representing Petitioner by stating, “You still do not wish to

disclose to me or your investigator the events of what occurred on the day in question,

which is your right, but continues to make it difficult to come up with a plausible defense

to the charges.” Trial counsel closed the letter by saying, “I reiterate to you that your

unwillingness to communicate meaningfully with myself and the investigator regarding

what happened and plausible defenses is undermining your case.” Trial counsel

expressed his opinion that his representation of Petitioner would have been better if

Petitioner had been willing to communicate.

Multiple times, Petitioner asked trial counsel to withdraw. Petitioner recalled,

“Throughout the whole period I was constantly asking him to withdraw.” Trial counsel

testified, “In retrospect[,] maybe I should have.” However, trial counsel never filed a

motion to withdraw because he did not perceive an “inability to communicate” with

Petitioner, but rather a refusal by Petitioner to communicate about certain things. Trial

counsel hoped that he and Petitioner would be able to build some trust and a relationship.

Because trial counsel did not withdraw, Petitioner wrote a letter to the trial court.

Petitioner’s reason for asking for the withdrawal was that the communication between he

and trial counsel “broke down.” After trial, Petitioner filed a pro se motion to have trial

counsel withdraw. Trial counsel followed with his own motion to withdraw. The trial

court granted the motion. Appellate counsel was appointed to represent Petitioner on his

direct appeal.

In its oral ruling on the Petitioner’s post-conviction claims, the post-conviction

court “[did] not credit most of the testimony, candidly, from [Petitioner]” and credited the

testimony of trial counsel. The post-conviction court held that Petitioner had failed to

show that trial counsel was aware that a mental evaluation was warranted and the

Petitioner had failed to put on any proof of prejudice consisting of an expert testifying

that Petitioner suffered from a mental health issue. The post-conviction court found that

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trial counsel communicated with Petitioner and concluded trial counsel was not

ineffective in that regard. The post-conviction court added that even if the alleged

deficiency existed, there would have been no prejudice because Petitioner’s withholding

of information from trial counsel severed any causal link between the alleged deficiency

and any alleged prejudice. The post-conviction court also held that an actual conflict of

interest did not exist in this case. According to the post-conviction court, a potential

conflict may have existed, but the potential conflict did not result in ineffective assistance

of counsel because no actual prejudice was shown. With regard to Petitioner’s claim that

trial counsel was ineffective for not filing a motion to withdraw, the post-conviction court

found that no prejudice could have resulted from trial counsel’s failure to file the motion

because Petitioner sent a letter to the trial court and ultimately received a hearing on the

issue of whether trial counsel should have withdrawn. Accordingly, the post-conviction

court denied the petition. This appeal followed.

Analysis

Petitioner argues that he received ineffective assistance of counsel when trial

counsel failed to adequately communicate with Petitioner, failed to timely disclose that

he represented a close family member of the prosecutor at the time, and failed to timely

move to withdraw or zealously advocate for Petitioner regarding the motion to

withdraw.1 The State contends that Petitioner has failed to prove that trial counsel was

ineffective. We agree with the State.

Post-conviction relief is available for any conviction or sentence that is “void or

voidable because of the abridgment of any right guaranteed by the Constitution of

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to

prevail in a claim for post-conviction relief, a petitioner must prove his or her factual

allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18

S.W.3d 152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no

serious or substantial doubt about the correctness of the conclusions drawn from the

evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a

post-conviction court’s findings of fact are conclusive unless the evidence preponderates

otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions

concerning witness credibility, the weight and value to be given to testimony, and the

factual issues raised by the evidence are to be resolved by the post-conviction court, and

1

In his brief, Petitioner expressly waived any claims of ineffective assistance of appellate counsel

that were raised in his petition. Additional claims of ineffective assistance of trial counsel were contained

in the petition for post-conviction relief but were not argued on appeal. Therefore, they are waived. See

Tenn. R. Ct. Crim. App. 10(b) (stating “Issues which are not supported by argument, citation to

authorities, or appropriate references to the record will be treated as waived by this [C]ourt.”); State v.

Thomas, 158 S.W.3d 361, 393 (Tenn. 2005).

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an appellate court may not substitute its own inferences for those drawn by the post-

conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However,

the post-conviction court’s conclusions of law and application of the law to the facts are

reviewed under a purely de novo standard, with no presumption of correctness. Fields v.

State, 40 S.W.3d 450, 458 (Tenn. 2001).

Both the Sixth Amendment to the Constitution of the United States and article I,

section 9 of the Tennessee Constitution guarantee the right of an accused to the effective

assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In

order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate

that counsel’s representation fell below the range of competence demanded of attorneys

in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two

prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner

must prove that counsel’s performance was deficient and that the deficiency prejudiced

the defense. 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 applied in federal

cases also applies in Tennessee). Because a petitioner must establish both elements in

order to prevail on a claim of ineffective assistance of counsel, “failure to prove either

deficient performance or resulting prejudice provides a sufficient basis to deny relief on

the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “Indeed, a court need

not address the components in any particular order or even address both if the [petitioner]

makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370

(Tenn. 1996) (citing Strickland, 466 U.S. at 697).

The test for deficient performance is whether counsel’s acts or omissions fell

below an objective standard of reasonableness under prevailing professional norms.

Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the

questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance,” State v. Burns,

6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use hindsight to second-guess a

reasonable trial strategy, even if a different procedure or strategy might have produced a

different result. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994);

Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this

deference to the tactical decisions of trial counsel is dependent upon a showing that the

decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528

(Tenn. Crim. App. 1992).

Even if a petitioner shows that counsel’s representation was deficient, the

petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain

relief. The question is “whether counsel’s deficient performance renders the result of the

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trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.

364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient

to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting

Strickland, 466 U.S. at 694). “An error by counsel, even if professionally unreasonable,

does not warrant setting aside the judgment of a criminal proceeding if the error had no

effect on the judgment.” Id. (quoting Strickland, 466 U.S. at 691).

I. Adequacy of Communication

Trial counsel’s testimony, which was accredited by the post-conviction court,

reveals that trial counsel made nine jail visits to see the Petitioner, sent twelve letters to

the Petitioner, and spoke with the Petitioner at various court dates. In all of that

communication, trial counsel broached a number of subjects including: the validity of the

indictment, jury instructions, plea offers, trial strategy, likelihood of conviction, and

sentencing exposure. It is unquestioned that this communication included the seventeen

year plea offer extended by the State. Trial counsel’s accredited testimony was that

Petitioner rejected that offer. We perceive no deficiency in trial counsel’s efforts to

communicate with Petitioner. Petitioner has failed to carry his burden of establishing by

clear and convincing evidence that trial counsel did not communicate with him or that

there was reason to distrust trial counsel. In light of our determination that trial counsel

was not deficient, we need not conduct further analysis on this issue. See Goad, 938

S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

II. Conflict of Interest

Trial counsel represented the mother of the prosecutor in an unrelated civil matter.

Petitioner claims that trial counsel “had a responsibility to notify [Petitioner] of this

conflict at the outset of the case” and that the “late disclosure [of this alleged conflict]

further severed the relationship between” trial counsel and Petitioner. However,

Petitioner never establishes, or even argues, that an actual conflict of interest existed.

“Before a petitioner may obtain post-conviction relief on the ground of a conflict

of interest, he must establish by a preponderance of the evidence that: (a) an actual

conflict of interest existed; and (b) the conflicting interest adversely affected the

performance of counsel. Antoine Cardet Smith v. State, No. M2017-000600-CCA-R3-

PC, 2017 WL 4861955, at *3 (Tenn. Crim. App. Oct. 26, 2017) (citing Cuyler v. Sullivan,

446 U.S. 335, 348-50 (1980)), no perm. app. filed. “A mere ‘potential conflict of

interest’ serves as no basis for a claim of ineffective assistance of counsel.” Clifton D.

Wallen v. State, No. E2000-02052-CCA-R3-PC, 2001 WL 839533, at *1 (Tenn. Crim.

App. July, 25, 2001), perm. app. denied (Tenn. Dec. 27, 2001). Under the Tennessee

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Rules of Professional Conduct, a concurrent conflict of interest exists if “the

representation of one client will be directly adverse to another client” or “there is a

significant risk that the representation of one or more clients will be materially limited by

the lawyer’s responsibilities to another client, a former client, or a third person or by a

personal interest of the lawyer.” Tenn. Sup. Ct. R. 8, RPC 1.7(a).

First, trial counsel’s representation of the prosecutor’s mother was not directly

adverse to his representation of Petitioner. Though little information was disclosed

regarding the civil matter, trial counsel testified that it was unrelated to Petitioner’s

murder trial. Second, Petitioner has shown no substantial risk that trial counsel’s

representation of Petitioner would be materially limited. Thus, Petitioner has failed to

prove the existence of an actual conflict of interest. Accordingly, trial counsel was not

deficient in his disclosure of his representation of the prosecutor’s mother to Petitioner.

III. Withdrawal

It is clear from the record that Petitioner did not want trial counsel to represent

him. Trial counsel admitted that Petitioner asked him to withdraw multiple times. Now,

Petitioner argues that trial counsel was ineffective for not complying with his request, or

at the very least, not supporting Petitioner’s request for new counsel to the trial court.

The right to counsel does not include “the right to appointment of counsel of

choice, or to special rapport, confidence, or even a meaningful relationship with

appointed counsel. The essential aim of the Sixth Amendment is to guarantee an

effective advocate, not counsel preferred by the defendant.” State v. Carruthers, 35

S.W.3d 516, 546 (Tenn. 2000) (internal citations omitted). Absent an actual conflict of

interest or a complete roadblock to effective representation, we are unaware of any duty

on attorneys to withdraw from representation simply because a client requests withdrawal

or to support a client’s request for new counsel. If such a duty existed, criminal

defendants manipulating that duty would inundate our court system with motions to

withdraw, bringing our justice system to an unproductive halt. Trial court dockets would

jam and trial judge’s hands would be unduly tied. In hindsight, trial counsel admitted

that perhaps he should have withdrawn. However, at the time that he represented

Petitioner, he did not perceive an inability to communicate with Petitioner and had hope

for building a better relationship with Petitioner. It was reasonable for trial counsel to

continue representing Petitioner. We perceive no deficiency on the part of trial counsel.

At any rate, Petitioner also failed to show that he was prejudiced by trial counsel’s

refusal to withdraw. Petitioner sent a letter to the trial court about trial counsel’s

representation. The trial court held a hearing on the matter and denied Petitioner’s

request for new counsel. Had trial counsel filed a motion to withdraw, the trial court

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would have held a hearing and conducted the same analysis. Thus, Petitioner has failed

to show that he was prejudiced.

Conclusion

For the aforementioned reasons, the judgment of the post-conviction court is

affirmed.

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TIMOTHY L. EASTER, JUDGE

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