# FILED February 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON FEBRUARY SESS ION, 1998

FREDERICK A . BUTLER, ) C.C.A.NO. 02C01-9705-CR-00191 ) Appe llant, ) ) SHELBY COUNTY V. ) ) ) HON.ARTHUR T. BE NNETT, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST-C ONVIC TION)

FOR THE APPELLANT : FOR THE APPELLEE : GARLAND E RGUDEN JOHN KNOX WALKUP 242 Poplar Avenue Attorney General& Reporter Memphis, TN 38103 JANI S L. TURNE R Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 JOH N W. P IERO TTI District Attorn ey Ge neral PAUL GOODMAN Assistant Distri ct Attor ney General 201 Poplar Avenue - Third Floor Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINIO N

The Appellant, Fre derick A . Butler , appeals as of right f rom the tri al court’s dismiss al of his pe tition for post-c onvicti on r elief following an eviden tiary hearing. The issue presented for revie w, as s tated in Appe llant’s brief, i s as follows: “The trialjudge erred i n findin g th at Petit ioner’s g uilty plea was knowing and voluntary and not

the pr oduct of i neff ecti ve assi stanc e of co unsel .” Af ter a revi ew of the entir

e record on appeal , the argum ents o f coun sel, an d the a pplica ble law, we affirm the ju dgme nt of the trial co urt.

In July, 1994 the S helby Coun ty grand jury retur ned an indict ment charging the Appellant and his co-defend ant wi th the fi rst degree murder of Appe llant’s infant s on. The Appellant was tried pr ior to hi s co-defendant . The Appellant’ s case was origina lly set for t rial May 1 , 1995, but was continued to May 30, 1995. During t he State’s case-in-chi ef, thematter was resolved by a negotiated ple a agreement wherein Appel lant ple d guilty to second degree murder and received a Rang e 2 sentence of forty (40) years. The sentence was ordered to be se rve d conc urren tly with another convicti on w he rein Appell ant had previ ously been sentenced.
The State was seeki ng the death penal ty in t he event of Appe llant’s convicti on of fir

st degree murder f

ollowing a jury t rial . Acc ordingly, two attorneys were appointed to repres ent Appellant . Although t he reason is not clear i n the record, Appe llant wa s alleg ing at th e pos t-conv iction h earing that on ly the lead t rial couns el was ine ffective.-3- It is clear

from the record that

the transc ript of

the tri al proceedi ngs up to the gui lty pl ea, and the t ranscript of the gui lty pl ea hearing were availabl e to the partiesand the trialcourt pri or to and during the pos t-conviction hearing . However, these transcripts are not inc luded in t he record on appeal, even t hough references to excerpts from the transcripts are referre d to during examin ation of witn esses. In his brief, A ppellant make s referen ces to a tra nscript wh ich is app arently the guilty plea hearing and t he evidence adduced at tri al prior to the gui lty pl ea, but as stated above, these t ranscript s are not a part

of the appel late recor d.

The Appellant, hi s sister, and his lead co unsel in t he original proceedingstestif ied at thepost-convi ction he ar ing. Regardi ng ineffec tiveness of co unse l, Appellant m ade severa l complaints ab out his lead cou nsel. Specifically, Appellan t testif ied that his trialcounsel did not

develop proof

to show that

his codefendant actua lly kil led the chi ld with a pair of san dals, di d not develop pr oof through an inde pende ntl y appointed pat hologist to contradi ct the testimony of t he St ate’s e xpert medicalexaminer who performed the autopsy, and did not develop proofregarding his c o-defen dant’s prio r history of ab use to oth er children . In addition, Appellant testifi ed thathis tr ial cou nsel st ated th at he w ould n ot call material and nece ssary witnes ses to testify, sp ecifica lly Appella nt’s sister an d aunt. Moreover, Appellant complained that his tr ial counsel did not di scuss the poss ibility of a convict ion on lesser includ ed offe nses and d id not want Appell ant to testify even though it was Appellant’s de sire to testify in h is defe nse. A ppella nt also wante d his co-defendant

to be compelled t

o testif y and he all eged thattrial couns el refused to take ne cessar y steps to h ave the c o-defen dant testify a t trial.-4- Trial coun sel t est ified t hat he fil ed approximatel y twenty (20) pre-t rial motions on behalf of

Appellant. Also, counselprepared for trialon both occasions thatthe mat ter was set. He spent in exce ss of 180 hours i n his repres entation of Appe llant. Furthermore, trialcounsel stated thatAppellant, from the ver y beginning, indicated that he did notwant to go to trialbut wanted to obtain the best negoti ated plea a greem ent po ssible . Appe llant initia lly turned down an offer to plea d guilty to first degree murder and receive a term of l ife impri sonment. Later, on two (2) occasions prior to trial , he rejected the pleaoffer he ultimately accepted during the course of the trial. W hile the m edical exa miner w as testifying , t he cou rt took a recess and Ap pellant as ked his tria l counse l to inquire as to whether or

not the offer of pleading to second degree murder and r eceiving a forty (40) y ear, Range 2 sentence was stil l avail able. Trial counsel m et with the Assistan t District Attorneys who were prosecuti ng the case as wellas the District AttorneyGeneral for Shelby Coun ty during the recess to reach th e nego tiated plea agreem ent.

Trial counsel test ified t hat he discussedin lengt h the witness es who Appellant

wanted to use at

trial , and that

he was prepared to call these witnesse s to testify at trial. Co unse l also in v estigated the juveni le court r ecords of t he codefendantand the medic al record s of the victim
. He could not det ermine any causal relation ship between any all eged strik ing of thev ictim wi th sandals by t he codefendantand the ultimate cause of death. Trial co unse l in terviewed witnesses, includi ng the medical examiner, pri or to t rial. F urthermore, counsel revi ewed the entire file of the prosec utoras well as the physicalevidence located in t he evidence storage room. Appellant informed le ad counsel and co-counsel that he had no comp laints about their ser vices as at

torneys and t hat what they did or di d not do had not caused h im to chang e his mind regar ding his pl ea of not gui lty. Counsel was-5-

also aware of the f

act that t he State had in its possessi on a lette r writ ten b y Appellant

to his co -defen dant a dmittin g his guilt and e xoneratin g the co- defend ant. Counsel was cognizant of the fact tha t the State did not pl an to callthe co-defenda nt as a witness in its case-in- chief, b ut would cal l her as a rebuttal witness i n the event Appellan t’s proo f indicated that it was his co- defendant, and not himself , who had comm itted the ho micide.

The trialcourt made detai led writ ten findi ngs of fact

and conclusions

of law which accredi ted the testimony of t rial coun sel and rej ected t he t est imo ny of Appe llant. The trialcourt speci fically found that counsel rendered assistance which was within the range of competence expected of an attorney

in a cri minal case.

In determining whether counsel provided effect ive assi stance at t rial, the court must decide whether couns el’s pe rformance was wit hin the range of competence dema nded o f attorneys in crimina l cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975 ). To su cceed on a clai m that his counselwas ineffective at trial, a petiti on er bears t he burden of showing that his counsel made errors so serious that he was not functioni ng as c ou nsel as g uarante ed und er the Sixth Amendment and that th e defici ent representation prej udiced the pet itioner resulti ng in a failure to produce a reliable re sult. Strickl and v. Washington , 466 U.S. 668, 687, reh’g denied , 467 U.S . 1267 (1 984); Coope r v. State , 849 S.W.2d 744, 747 (Tenn. 1993); Butler v. Sta te , 789 S.W .2d 898 , 899 (T enn. 19 90). T o satisfy the second pron g the p etitione r mus t show a reas onab le prob ability tha t, but for c ouns el’s unrea sona ble error, the fact f inder would hav e had reasonable doubt regarding petition er’s guilt. Strickl and , 466 U .S. at 695 . This rea sonab le proba bility must be-6-

“suffi cientto undermine c onfi dence in the o utcome.” Harris v. S tate , 875 S.W.2d 662, 665 (T enn. 1994 ).

When reviewing tri al counsel’s acti ons, this co urt s hould not use t he bene fit of hinds ight to s econd-guess trial str ategy and criti cize counsel’s tact ics. Hellard v. State , 629 S.W .2d 4, 9 (Ten n. 1982). Co unsel’s alleged e rrors should be judged at the time they we re made in light of all facts a nd circum stance s. Strickl and , 466 U .S. at 690 ; see Cooper 849 S.W.2d at 746.

This two part

standard of measuring inef fectiv e assistance of

counsel also applies to claims ari sing out of the p lea proce ss. Hill v. Lockhart , 474 U.S. 52 (1985). The prejudice requirement is modified so that the peti tioner “mustshow that there is a reasonabl e pr obab ilit y that, but for counse l’s errors he would n ot have pleaded gu ilty and would have insisted on going to trial.” Id. at 59.

On the ap peal fro m a p ost-co nviction relie f hearin g, the tria l court’s findings of fact are conclusive unless the evi dence preponderates against those findings. Butler v. Sta te , 789 S.W .2d 898 , 899 (T enn. 19 90); State v. Cook , 749 S.W.2d 42, 45 (Tenn . Cr im. App. 1987). The bur den is on theappellant to show that the evidence preponderates againstthe findi ngs of the trial cour t. Cook , 749 S.W.2d at 45; Good ner v. State , 484 S.W.2d 364, 365 (Tenn. Crim. App. 1972). Questions concerning the cre dibility of w itness es an d the w eight a nd valu e to be given th eir testimony

are resolv

ed by the trial co urt, not the a ppellate c ourt. Parha m v. State , 885 S.W .2d 375 , 379 (T enn. C rim. App . 1994); Black v. S tate , 794 S.W.2d 752, 755 (Tenn. C rim. App. 199 0).-7- The trialcourt heard t he testi mony from the Appellant and his witness, as well as hi s trialcounsel. The t rial cour t made specifi c findi ngs of factwhich were contrary to Appe llant’s asse rtions. The evidence i n the record does not prepon derate against these findings by the trial court
. Acco rdingly , this issu e is without m erit.

Appellant

also complains that

he did not enter a knowing and voluntary guilty plea. He ar gues in part that his guilty plea was not knowing and voluntary because of the in effective assista nce o f his lea d cou nsel. In effect , Appellant argues thathis gu ilty plea w as co erced by both his cou nsel d irectly insist ing upon a plea of guilty and by his failingto provi de a prope r defens e. Furthermore, Appellant ar gues that he was scared by cer tain comments made by the t rial j udge at the gui lty pl ea submission hearing. He submi ts that he was therefor

e prevented f rom stating on the record at

that time: (1 ) that he de sired to proceed with the tri al and (2) t hat he had ser iou s probl ems w it h th e way his cou nselhad been rep res ent ing him
.
It is sufficient to s tate here that the reco rd availabl e clearly reflect s that the trialcourt pro perly foun d that Ap pellant en tered a k nowing and volu ntary guilty plea. Furthermore, since the gui lty pl ea hearing was not made a part of the record on appea l, we are re quired to assum e that the tria l court made p roper findings regarding this issue. It is the duty of the app ellant to prepare a record which conveys a fair, accurate, and co mplete acc ount of what tra nspired i n t he trial cou rt with respect to the i ssues which form the basis of an a ppeal . Tenn. R. App. P. 24 (b): State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App . 1991). When an appellant fails to incl ude necessary port ions of t he recor d on appeal regardi ng an issue, an appellate court is preclude d from c onside ring the m erits of the issu e. See Tenn. R.-8-

App. P. 24(b); State v. Ballard , 855 S.W .2d 55 7, 561 (Ten n. 199 3). Acc ording ly, this issue is w ithout me rit.

Finding that the trial cou rt prop erly dismissed the Appellant’s peti tion for post-co nviction relief, w e affirm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ JOSEPH B. JONES, Presiding Judge

___________________________________ JOHN H. PEAY, Judge