FILED

February 20, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY SESSION, 1998

FREDERICK A. BUTLER, ) C.C.A. NO. 02C01-9705-CR-00191

)

Appellant, )

) SHELBY COUNTY

V. ) 

)

) HON. ARTHUR T. BENNETT, JUDGE

STATE OF TENNESSEE, ) 

)

Appellee. ) (POST-CONVICTION) 

FOR THE APPELLANT: FOR THE APPELLEE:

GARLAND ERGUDEN JOHN KNOX WALKUP 

242 Poplar Avenue Attorney General & Reporter

Memphis, TN 38103 

JANIS L. TURNER 

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

JOHN W. PIEROTTI 

District Attorney General 

PAUL GOODMAN 

Assistant District Attorney General

201 Poplar Avenue - Third Floor

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Appellant, Frederick A. Butler, appeals as of right from the trial

court’s dismissal of his petition for post-conviction relief following an evidentiary

hearing. The issue presented for review, as stated in Appellant’s brief, is as follows:

“The trial judge erred in finding that Petitioner’s guilty plea was knowing and

voluntary and not the product of ineffective assistance of counsel.” After a review

of the entire record on appeal, the argum ents of counsel, and the applicable law, we

affirm the judgment of the trial court.

In July, 1994 the Shelby County grand jury returned an indictment

charging the Appellant and his co-defendant with the first degree murder of

Appellant’s infant son. The Appellant was tried prior to his co-defendant. The

Appellant’s case was originally set for trial May 1, 1995, but was continued to May

30, 1995. During the State’s case-in-chief, the matter was resolved by a negotiated

plea agreement wherein Appellant pled guilty to second degree murder and received

a Range 2 sentence of forty (40) years. The sentence was ordered to be served

concurrently with another conviction wherein Appellant had previously been

sentenced.

The State was seeking the death penalty in the event of Appellant’s

conviction of first degree murder following a jury trial. Accordingly, two attorneys

were appointed to represent Appellant. Although the reason is not clear in the

record, Appellant was alleging at the post-conviction hearing that only the lead trial

counsel was ineffective. 
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It is clear from the record that the transcript of the trial proceedings up

to the guilty plea, and the transcript of the guilty plea hearing were available to the

parties and the trial court prior to and during the post-conviction hearing. However,

these transcripts are not included in the record on appeal, even though references

to excerpts from the transcripts are referred to during examination of witnesses. In

his brief, Appellant makes references to a transcript which is apparently the guilty

plea hearing and the evidence adduced at trial prior to the guilty plea, but as stated

above, these transcripts are not a part of the appellate record.

The Appellant, his sister, and his lead counsel in the original

proceedings testified at the post-conviction hearing. Regarding ineffectiveness of

counsel, Appellant made several complaints about his lead counsel. Specifically,

Appellant testified that his trial counsel did not develop proof to show that his codefendant actually killed the child with a pair of sandals, did not develop proof

through an independently appointed pathologist to contradict the testimony of the

State’s expert medical examiner who performed the autopsy, and did not develop

proof regarding his co-defendant’s prior history of abuse to other children. In

addition, Appellant testified that his trial counsel stated that he would not call

material and necessary witnesses to testify, specifically Appellant’s sister and aunt.

Moreover, Appellant complained that his trial counsel did not discuss the possibility

of a conviction on lesser included offenses and did not want Appellant to testify even

though it was Appellant’s desire to testify in his defense. Appellant also wanted his

co-defendant to be compelled to testify and he alleged that trial counsel refused to

take necessary steps to have the co-defendant testify at trial. 
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Trial counsel testified that he filed approximately twenty (20) pre-trial

motions on behalf of Appellant. Also, counsel prepared for trial on both occasions

that the matter was set. He spent in excess of 180 hours in his representation of

Appellant. Furthermore, trial counsel stated that Appellant, from the very beginning,

indicated that he did not want to go to trial but wanted to obtain the best negotiated

plea agreem ent possible. Appellant initially turned down an offer to plead guilty to

first degree murder and receive a term of life imprisonment. Later, on two (2)

occasions prior to trial, he rejected the plea offer he ultimately accepted during the

course of the trial. While the medical examiner was testifying, the court took a

recess and Appellant asked his trial counsel to inquire as to whether or not the offer

of pleading to second degree murder and receiving a forty (40) year, Range 2

sentence was still available. Trial counsel met with the Assistant District Attorneys

who were prosecuting the case as well as the District Attorney General for Shelby

County during the recess to reach the negotiated plea agreem ent.

Trial counsel testified that he discussed in length the witnesses who

Appellant wanted to use at trial, and that he was prepared to call these witnesses to

testify at trial. Counsel also investigated the juvenile court records of the codefendant and the medical records of the victim. He could not determine any causal

relationship between any alleged striking of the victim with sandals by the codefendant and the ultimate cause of death. Trial counsel interviewed witnesses,

including the medical examiner, prior to trial. Furthermore, counsel reviewed the

entire file of the prosecutor as well as the physical evidence located in the evidence

storage room. Appellant informed lead counsel and co-counsel that he had no

complaints about their services as attorneys and that what they did or did not do had

not caused him to change his mind regarding his plea of not guilty. Counsel was
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also aware of the fact that the State had in its possession a letter written by

Appellant to his co-defendant admitting his guilt and exonerating the co-defendant.

Counsel was cognizant of the fact that the State did not plan to call the co-defendant

as a witness in its case-in-chief, but would call her as a rebuttal witness in the event

Appellant’s proof indicated that it was his co-defendant, and not himself, who had

comm itted the homicide. 

The trial court made detailed written findings of fact and conclusions of

law which accredited the testimony of trial counsel and rejected the testimony of

Appellant. The trial court specifically found that counsel rendered assistance which

was within the range of competence expected of an attorney in a criminal case.

In determiningwhether counsel provided effective assistance at trial, the

court must decide whether counsel’s performance was within the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). To succeed on a claim that his counsel was ineffective at

trial, a petitioner bears the burden of showing that his counsel made errors so

serious that he was not functioning as counsel as guaranteed under the Sixth

Amendment and that the deficient representation prejudiced the petitioner resulting

in a failure to produce a reliable result. Strickland v. Washington, 466 U.S. 668, 687,

reh’g denied, 467 U.S. 1267 (1984); Cooper v. State, 849 S.W.2d 744, 747 (Tenn.

1993); Butler v. State, 789 S.W .2d 898, 899 (Tenn. 1990). To satisfy the second

prong the petitioner must show a reasonable probability that, but for counsel’s

unreasonable error, the fact finder would have had reasonable doubt regarding

petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable probability must be
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“sufficient to undermine confidence in the outcome.” Harris v. State, 875 S.W.2d

662, 665 (Tenn. 1994).

When reviewing trial counsel’s actions, this court should not use the

benefit of hindsight to second-guess trial strategy and criticize counsel’s tactics.

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the time they were made in light of all facts and circum stances. Strickland,

466 U.S. at 690; see Cooper 849 S.W.2d at 746.

This two part standard of measuring ineffective assistance of counsel

also applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must 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.” Id. at 59.

On the appeal from a post-conviction relief hearing, the trial court’s

findings of fact are conclusive unless the evidence preponderates against those

findings. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990); State v. Cook, 749

S.W.2d 42, 45 (Tenn. Crim. App. 1987). The burden is on the appellant to show that

the evidence preponderates against the findings of the trial court. Cook, 749 S.W.2d

at 45; Goodner v. State, 484 S.W.2d 364, 365 (Tenn. Crim. App. 1972). Questions

concerning the credibility of witnesses and the weight and value to be given their

testimony are resolved by the trial court, not the appellate court. Parham v. State,

885 S.W.2d 375, 379 (Tenn. Crim. App. 1994); Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990).
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The trial court heard the testimony from the Appellant and his witness,

as well as his trial counsel. The trial court made specific findings of fact which were

contrary to Appellant’s assertions. The evidence in the record does not

preponderate against these findings by the trial court. Accordingly, this issue is

without merit.

Appellant also complains that he did not enter a knowing and voluntary

guilty plea. He argues in part that his guilty plea was not knowing and voluntary

because of the ineffective assistance of his lead counsel. In effect, Appellant argues

that his guilty plea was coerced by both his counsel directly insisting upon a plea of

guilty and by his failing to provide a proper defense. Furthermore, Appellant argues

that he was scared by certain comments made by the trial judge at the guilty plea

submission hearing. He submits that he was therefore prevented from stating on the

record at that time: (1) that he desired to proceed with the trial and (2) that he had

serious problems with the way his counsel had been representing him.

It is sufficient to state here that the record available clearly reflects that

the trial court properly found that Appellant entered a knowing and voluntary guilty

plea. Furthermore, since the guilty plea hearing was not made a part of the record

on appeal, we are required to assume that the trial court made proper findings

regarding this issue. It is the duty of the appellant to prepare a record which conveys

a fair, accurate, and complete account of what transpired in the trial court with

respect to the issues which form the basis of an appeal. Tenn. R. App. P. 24(b):

State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). When an appellant

fails to include necessary portions of the record on appeal regarding an issue, an

appellate court is precluded from considering the merits of the issue. See Tenn. R.
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App. P. 24(b); State v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993). Accordingly, this

issue is without merit.

Finding that the trial court properly dismissed the Appellant’s petition for

post-conviction relief, we affirm the judgment of the trial court.

____________________________________

THOMAS T. W OODALL, Judge 

CONCUR:

___________________________________

JOSEPH B. JONES, Presiding Judge

___________________________________

JOHN H. PEAY, Judge