Opinion
C.C.A. No. 02C01-9807-CR-00214.
August 12, 1999.
SHELBY COUNTY, Hon. James C. Beasley, Jr., Judge, (Post-Conviction)
AFFIRMED
For Appellant:
Rodney Jeffries, Pro Se.
For Appellee:
John Knox Walkup, Attorney General and Reporter.
Clinton J. Morgan, (on appeal) Counsel for the State.
Monica Simmons, Attorney (at trial).
Scott Gordon, Assistant District Attorney General, Shelby County District Attorney General's Office.
OPINION
The petitioner, Rodney L. Jeffries, appeals the trial court's denial of several petitions for post-conviction relief. In this appeal of right, the petitioner claims that his guilty pleas were neither knowing nor voluntary and were made without the effective assistance of counsel.
We affirm the judgment of the trial court.
On March 11, 1998, the petitioner filed a series of post-conviction petitions attacking convictions resulting from guilty pleas entered February 3, 1997:
Offense Sentence
Attempted aggravated robbery Three years
Aggravated robbery Eight years
Aggravated assault Three years
Aggravated assault Three years
Aggravated burglary Three years
Aggravated burglary Three years
Especially aggravated kidnaping Fifteen years
First degree murder Life
Counsel was appointed, the petitions were amended, and the state filed a response. At the evidentiary hearing, the petitioner testified that his trial counsel spoke with him only ten to fifteen minutes before the pleas were entered. He claimed that when he entered his pleas he was depressed and did not understand the consequences of his pleas. He maintained that his trial counsel advised him to tell the truth and that the trial court would "go easy" on him. The petitioner stated that he did not realize that he had pleaded guilty to first degree murder until he appeared at the sentencing hearing. He stated that he did not voice his confusion and concern at the plea proceeding because he trusted his attorney who had told him what to do.
On cross-examination, the petitioner conceded that the trial court had imposed the minimum sentence for each conviction and ordered them to be served concurrently. He admitted to having familiarity with the criminal justice system, having entered pleas of guilt on four prior occasions, and he made no claim that he misunderstood the rights he had waived in those proceedings. He acknowledged that the trial court had informed him that he was not required to testify; that if he proceeded through a trial, he would have had an appeal as of right; and that by entering guilty pleas, he waived his right to appeal the convictions. He admitted that he had no complaints with his trial counsel at the plea proceeding and he had been informed by the trial court of the range of punishment for each conviction.
Trial counsel testified that he began practicing law in 1961 and had tried many murder cases. He recalled having made eighteen court appearances on behalf of the petitioner and having visited him in jail at least ten times. He specifically remembered explaining to the petitioner the range of punishment for first degree murder and asserted that the petitioner had voluntarily confessed. Trial counsel stated that there were no alibi witnesses and that the petitioner entered his plea because he wanted to "get this matter behind him and get on with his life." While trial counsel did recall that the petitioner appeared to be depressed because the murder victim had been a distant relative, he expressed certainty that the petitioner had understood his choices and was aware that the minimum sentence was a life term. Trial counsel testified that the state never offered the opportunity of a plea agreement on reduced charges.
The post-conviction court determined that the petitioner had been advised of the range of punishment at the submission hearing and that the resultant convictions could be used against him in the future. It determined that the petitioner had understood his right not to testify and that he relinquished that right when he entered his pleas of guilt. The post-conviction court found that the petitioner knew that his right to appeal extended only to his sentences and not the convictions; that if trial counsel had failed to inform the petitioner that he could appeal his sentences, the trial court had done so; and that the indictments were facially valid. The trial court also determined that the "heart" of the petitioner's complaint was his displeasure with the life sentence:
The question of credibility comes to play in whether or not Mr. Jeffries was advised that by cooperating, by pleading guilty to the judge, by testifying, that he would get a sentence less than life in prison. And, from an overall view of the transcript, very specifically Judge Craft points out that by pleading guilty to murder the only punishment available is life or life without parole in this case. That the possibility of consecutive sentencing still existed when he entered the plea. The range[s] of punishment were thoroughly explained to Mr. Jeffries. . . . And an extensive voir dire for a guilty plea, one of the most extensive ones I think I have ever seen. And, that there is no question that Mr. Jeffries was aware of and advised that by pleading guilty to the charge of murder, the question of sentencing was going to be left to the judge. And, the range of punishment for the murder charge was either life or life without parole.
The trial court then made several observations about the quality of the petitioner's trial counsel taking into account his reputation, his ability, and trial skills. It ruled that the guilty pleas were freely, voluntarily, and knowingly entered and based upon the effective assistance of counsel:
[It further appears to the court] after a full evidentiary hearing on defendant's petitions, testimony from defendant, Ronald Jeffries, his original Attorney, James v. Ball, and the evidence adduced at the hearing, consisting of the Plea Petition and Waiver, the Transcript of the Plea Proceedings, and the Sentencing hearing, that the Petitioner's petitions are not well taken and should be denied.
In Boykin v. Alabama, 395 U.S. 238 (1969), the United States Supreme Court ruled that defendants should be advised of certain of their constitutional rights before entering pleas of guilt. Included among those required warnings are the right against self-incrimination, the right to confront witnesses, and the right to trial by jury. Id. at 243. The overriding Boykin requirement is that the guilty plea must be knowingly and voluntarily made. Id. at 242-44. The plea must represent a "voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25 (1970). If the proof establishes that the petitioner was aware of his constitutional rights, he is entitled to no relief.Johnson v. State, 834 S.W.2d 922, 926 (Tenn. 1992). "[A] plea is not voluntary if it is a product of 'ignorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats.'" Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43).
In order to be granted relief on grounds of ineffectiveness assistance of counsel, the petitioner must establish that the advice or the services provided were not within the range of competence demanded of attorneys in criminal cases and that, but for his counsel's deficient performance, the result of his trial would have been different. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668 (1984). This two-part standard, as it applies to guilty pleas, is met when the petitioner establishes that, but for his counsel's errors, he would not have pled guilty and would have insisted on a trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
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).
Here, the record supports the finding of the trial court. The petitioner has been unable to establish that he would not have pled guilty or would have insisted on a trial absent deficiencies in the performance of his trial counsel. In our view, the proof clearly establishes that the guilty pleas were knowingly and voluntarily made. Despite his prior record, the petitioner received concurrent minimum sentences. The transcript confirms that the petitioner was fully aware of the consequences of his pleas. Accordingly, the judgment of the trial court is affirmed.
______________________________ Gary R. Wade, Presiding Judge
CONCUR:
______________________________ Joseph M. Tipton, Judge
See separate concurring opinion
SEPARATE CONCURRING OPINION
I concur in the result reached in the majority opinion authored by Presiding Judge Gary R. Wade. I write separately, however, to express my concern that appointed counsel for the Appellant at the trial court level did not proceed to represent Appellant in the appeal to this court from the trial court's dismissal of the petitions for post-conviction relief.
In this case, the Appellant filed pro se petitions for post-conviction relief attacking each conviction in a separate petition. On August 11, 1998, the trial court entered an order nunc pro tunc for March 18, 1998 appointing counsel to represent Appellant. The order provides as follows:
Be it remembered that the Court ascertained in the absence of the Petitioner, that the above Petitioner is financially unable to employ counsel as a result of his present incarceration, and that it is incumbent upon the Court to appoint counsel to represent said Petitioner's interests in his absence.
And further, the Court is of the opinion that the Public Defender of Shelby County, Tennessee, should not be appointed to represent the Petitioner herein, for good cause shown.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Monica Simmons, a licensed Attorney in the State of Tennessee, be appointed to represent the Petitioner in the above-captioned cause.
The record reflects that after the trial court made its findings of fact and ruling dismissing the petitions on the record in open court, it requested counsel for the Appellant to draft the order reflecting the court's ruling. Counsel agreed to comply with this request. The order was entered. There was no request by counsel to withdraw from further representation of Appellant. Appellant filed a pro se notice of appeal. While no motion was filed by Appellant for appointment of counsel on appeal, he did type in "*ATTORNEY REQUESTED*" at the bottom of the front page of the "Docketing Statement" filled out by him and returned to the clerk of this court. The "Docketing Statement" is not required by any rule of procedure or rule of any court, but is sent by the clerk of the appellate courts to appellants in order to obtain information about cases.
In any event, Appellant did not bring to the attention of this court by motion, any desire to have counsel appointed to represent him on appeal. However, in cases where an attorney is properly appointed to represent a petitioner in post-conviction proceedings in the trial court, I feel that it is incumbent upon the trial court and appointed counsel to ensure that counsel remains attorney of record in the direct appeal of the dismissal of the first post-conviction petition, unless appointed counsel is properly permitted to withdraw and other counsel is appointed.
Tenn. Sup. Ct. R. 28, § 10(a) states that "[a]n appeal from the dismissal or denial of a post-conviction petition shall be in accordance with the Tennessee Rules of Appellate Procedure." Rule 18(a) of the Tennessee Rules of Appellate Procedure provides the following:
A party who has been permitted to proceed in an action in the trial court as a poor person (which includes a person who has been permitted to proceed there as one who is financially unable to obtain adequate defense in a criminal case) may proceed on appeal as a poor person unless, before or after the appeal is taken, the trial court finds the party is not entitled so to proceed, in which event the trial court shall state in writing the reasons for such finding.
In the Post-Conviction Procedure Act, Tennessee Code Annotated section 40-30-215 states that "[i]ndigency shall be determined and counsel and court reporters appointed and reimbursed as now provided for criminal and habeas corpus cases by chapter 14, parts 2 and 3 of this title."
Tennessee Code Annotated section 40-14-205 allows an attorney appointed by the trial court to withdraw as counsel of record upon good cause shown, but requires the trial court to immediately appoint another attorney in the former attorney's place. Furthermore, Tennessee Code Annotated section 40-14-203, made applicable to post-conviction cases by Tennessee Code Annotated section 40-30-215, entitles a petitioner to appointed counsel on the direct appeal from the denial of a first petition for post-conviction relief.
Despite the failure of the trial court and appointed counsel in the post-conviction proceedings to ensure that Appellant was represented by counsel in this direct appeal, the particular facts of this case, in my opinion, do not justify a reversal of the trial court's order, or appointment of counsel to file a substituted brief on behalf of Appellant in this court. Appellant's brief was adequate to convey his arguments. The proof in the record overwhelmingly justifies the affirmance of the trial court's judgment dismissing the petitions for post-conviction relief.
Most cases, however, would require, at a minimum, that counsel be appointed to file a substituted brief on appeal. Under normal circumstances, the State would need to file a brief in response thereto. Of course, the resultant delay in disposition of post-conviction cases would be contrary to the prompt disposition of post-conviction cases and the administration of justice.
I am authorized to state that both Presiding Judge Wade and Judge Tipton join in with me in this concurring opinion.
______________________________ THOMAS T. WOODALL, Judge