Opinion
C.C.A. No. 02C01-9507-CR-00192.
May 24, 1996.
Appeal from SHELBY COUNTY, Hon. Bernie Weinman, Judge.
For Appellant:
Paula Skahan, Attorney at Law.
For Appellee:
Charles W. Burson, Attorney General Reporter, Christina S. Shevalier, Assistant Attorney General, Criminal Justice Division Reginald R. Henderson, Asst. District Attorney General.
AFFIRMED
OPINION
The petitioner, Nathaniel B. Henderson, appeals the trial court's denial of post-conviction relief. Two issues are presented for review: whether the petitioner received the effective assistance of counsel and whether ineffective assistance of counsel, combined with other factors, rendered his guilty plea unknowing and involuntary.
We find no error and affirm the trial court's judgment.
The petitioner was indicted for murder during the attempted perpetration of robbery and first degree murder. On December 13, 1993, he pled guilty to second degree murder. Under a plea agreement, he was sentenced to fifty years as a Range III offender. Almost a year later, the petitioner filed this petition for post-conviction relief, alleging that he was denied the effective assistance of counsel and that his plea was neither knowingly nor voluntarily made. Following an evidentiary hearing, the trial court denied relief, issuing detailed findings of fact and conclusions of law.
The petitioner claims that he had appeared on the date of his plea under the impression that the court would consider pretrial motions only. In fact, the trial was scheduled to begin. The petitioner informed the trial judge that he wanted to change attorneys. The trial judge, in response to the request, revoked bail. The petitioner asserts that these factors unduly influenced him to change his mind and decide to enter the guilty plea.
I.
In order to be granted relief on the grounds of ineffective assistance of counsel, the petitioner must establish that the advice given or the services rendered 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. Strickland v. Washington, 466 U.S. 668, 693 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). 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 going to trial. Hill v. Lockhart, 474 U.S. 52, 53 (1985).
At the post-conviction hearing, the petitioner testified that his trial counsel was ineffective for several reasons. First, he asserts she generally failed to prepare any type of defense for him, claiming that three days before the scheduled trial date, his attorney told him he would "have to get another lawyer [if he went to trial] . . . [b]ecause she didn't have a defense for [him]." Next, petitioner asserts his trial counsel was ineffective for failing to investigate his alibi defense. He testified that his attorney failed to pursue this defense even though the petitioner had informed her that he was with his wife at the time of the murder. Finally, petitioner asserts that his counsel failed to file a motion to suppress an incriminating statement he had given to police. The petitioner testified that he had told his attorney that the police had threatened him and that one of the officers had assaulted him in order to obtain the statement.
The petitioner's trial counsel testified that she would have received a continuance of the trial had the petitioner rejected the plea offer by the state. She related that the petitioner had not been cooperative with her in preparing for trial and "had not given [her] any information that would be useful to his defense." She also stated that she had discussions with the petitioner about the state's offer well in advance of the trial date. She claimed that the petitioner agreed to accept the offer three days before his plea. Trial counsel also testified that she investigated the alibi defense but determined it was not viable because the petitioner's wife gave inconsistent statements. She claimed that the petitioner would not give her any reliable information as to the whereabouts of possible alibi witnesses. Counsel claimed that she would have sought a hearing on a motion to suppress had the petitioner sought one. She testified that the first time she had heard the petitioner say anyone had struck him or threatened him in an effort to extract a statement was at the post-conviction hearing.
The trial court found no merit to any of the claims. The burden, of course, is on the petitioner to show that the evidence preponderates against the findings of the trial judge. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.Crim.App. 1978). Otherwise, findings of fact made by the trial court are binding on this court. Graves v. State, 512 S.W.2d 603, 604 (Tenn.Crim.App. 1973). Here, the trial court accredited the testimony of trial counsel and concluded that the petitioner had failed to demonstrate that he would not have entered his guilty plea were it not for the deficient performance of his counsel. Hill v. Lockhart, 474 U.S. at 53. We agree. In short, the evidence does not preponderate against the findings of the trial court.
II.
The petitioner also claims that his guilty plea was neither knowing nor voluntary. He argues that his counsel's ineffectiveness, combined with various occurrences on the day of his guilty plea, left him with no choice other than to plead guilty. He specifically points out that he was scheduled for trial on the date of his court appearance. The petitioner claims that the revocation of bail, when he asked for permission to hire new counsel, and trial counsel's advice that he had no defense unduly influenced him to enter into the plea agreement.
The overriding determination on the validity of a guilty plea rests upon whether it was knowingly and voluntarily entered. State v. Neal, 810 S.W.2d 131, 139-140 (Tenn. 1991). 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 the product of '[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats. . . .'" Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)). Revocation of bail because the petitioner sought new counsel or a delay in trial would not necessarily render a plea involuntary. Courts must consider all of the surrounding circumstances. Here, the petitioner testified at the submission hearing that his plea was knowing and voluntary. The trial court so found. The record establishes that the petitioner sought the advice of his wife and mother before entering his plea. The proof in the record simply does not preponderate against the finding of the trial court.
Accordingly, we affirm the judgment of the trial court.
____________________________ Gary R. Wade, Judge
CONCUR:
_____________________________ Joe B. Jones, Presiding Judge
_____________________________ Jerry L. Smith, Judge