# FILED
May 18, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE APRIL 1999 SESSION

HAROLD L. FITTS, ) ) C.C.A. NO. 01C 01-9807-CR-00297 Appellant, ) ) DAVIDSON COUNTY VS. ) ) HON. CHERYL A. BLA CKBURN, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE: RICHARD HEDGEPATH, JR. JOHN KNOX WALKUP 4800 Charlotte Pike Attorney General & Repor ter Nashville, TN 37209 MARVIN E. CLEMENTS, JR. Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General ROGER MOORE Asst. District Attor

ney General Washington Square, Suite 500 222 Second Ave., North Nashville, TN 37219-1649

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The petitioner was charged with aggrava ted rape, incest, s exual bat tery, assault, an d two counts of rape. In June 1997, he entered a best inte rest ple a t o attempted aggravate d rap e and was sentenced as a Range I standard offender to ten years in the Department of Correction. All other charges w ere dismissed. In September 1997, he filed a petition for post-conviction rel ief and a subsequent amendment allegi ng ineffe ctive assistance of counsel. The trial court entered an or der denying relief, and the petitioner appealed. Fi nding no mer it to the peti

tioner’s ar

guments, w

e affirm.
According to the plea submission hearin g transcript, the S tate was prepa red to prove that in the early morning hour s of February 16, 1997, the peti tioner climbed into his thirteen-year-old daughter’s bed, undressed her, and sexua lly penetrated her. The police were called to the res idence, where the petitio ner, whowas intoxicated, w as placed under arrest. When the petitioner “had sobered up some,” he told a detect ive that “he
was just playing with her, that he put his hands on her, and pulled his peni s out, but that he had notpenetrated her.” According to the State’s discovery respons

e, the victim was examined in a hospital within hours of the inci dent. Although there are suggestions in the p arties’ argument and the record that the results of the rape kit tes t were neg ative, th e poor quality of the copy of

the discovery response p revents this Court from so conclu ding. Even so, the medical exami nation records indicate the victim sustained anal tr auma.

At th e post-conviction hearing, Donnie Whitley, one of the petitioner’s relatives by marriage, testified

that he spent the evening of February 15drinking alcohol with the petitioner at Veronica Fi tts’ apartme nt, where the petitioner was staying. Ms. Fitts, the petitioner’s wife and the vic tim ’s stepmother, was not home at the time.3

According to Mr. Whitley , the petiti oner became so intoxicatedhe was “knocked out” and wentto bed in another room. Mr. Whitley testi fied that meanwhile, he went to sleep on the living room couch. H e testified h e later wo ke to the petitioner’s da ughter, the victim, crying hystericall y. According to Mr. Whitley, he tried to wake the peti tioner, but it was diff icult because the petitioner was still in a drunken “s

tupor.” Mr. Whitley admitted h e was not present when the petiti oner told a det ective he had touched the victim’s vagina with his hand and placed his penis on her.

Ms. Fitts testified she retur ned to her

apartment, where the petitioner, the victim, his other children, and M r. Whitley were staying,at 1:30 or 2:00 a .m. on February 16. According to Ms. Fi tts, everyone in the ap artme nt had been sleeping before she arrived at the apartment, especially the petitioner, who was “kno cked out, asleep, cold drunk.” Ms. Fitts testified her return caused them to

awaken, and someone told her the victim was upset and had claimed “someone was trying to feel on her.” According to Ms. Fitts, she then talked to the vic tim, who was upset and t old her she had had a dream about sex. Ms. Fitts tes tified the victim denied any one had touched her. Ms. Fitt s admitted talking to Richard Tennent, the petitioner’s trial at torney, and testified she had told hi m every thing that happened that eveni ng, including that the v ictim had denied anyone had touched her . She also testified that Mr. Tennent had told her it was in the petitioner’s best interest to plead guilty becaus e the victim’s antici pated testimony that the petitioner had sexuall

y penetrate

d her would

be enough to convict hi m.

The petit ioner testified that Mr. Tennent never discussed with him the State’s discovery respons e, his “alleged confession, ” the anticipated trial ev idence, the victi m ’s medical r ecords, o r the pote ntial witn esses. He testifie d that if he had kn own about his wife’s potential te stimony, the medical evi dence, and the results of the rape kit4

test, he would not h ave pled gu ilty.

Mr. Tennent testified he review ed with the petitioner th e medical repor ts an d the State’s discovery

response and explained the petitioner’s potential defenses to hi m. He recalled talking to M s. Fitts on several occasions, but he did not remember her telling him that the victim had clai med the rape never occurred , even though he recalled telling Ms. Fittsand the petitioner to notify hi m if the victim changed her story and insisted he would have remembere d learning w hether the victim changed her st ory. He admitted there was no objecti

ve sci entific

eviden ce speci

fically identif y ing the p etitioner as his daughter’s rapist and he did not know whether the results from the rape kit test and the TBI crime lab tests had been neg ative. Nevertheless, he testified he told the petition er that the vic

tim wou ld testi

fy he tried to penetrate her anal ly and that the medical evidence of anal tr

auma wou ld corr

oborate her tes timony . He tes

tifi ed he se nt a letter to the petitioner

describing the evi dence against him andthe defenses available to him, and this letter was entered into evi dence. He also testified that the peti tioner claimed to

have no recollect ion of what had occurred, which was one of the reasons he entered a best interest plea. According to Mr. Tennent, a plea was in the peti tioner’s best interest,even though he would have gone to trial had the petitioner so chosen.

In her writtenorder, the post -conviction court judge specifically accredi ted Mr. Tennent’s testimony over that of Mr. Whitley, Ms. Fitts, and the petitio ner. The judge found, based on the letter Mr. Tennent s ent to the petitioner, that Mr. Tennent had discussed with the petitioner all possible defenses, including intoxication and a claim that the offenses never occurred. The judge also found that Mr. Tennent had rev iewed with the petit ione r the facts of the case, the testimony of pote ntial witnesses, and all of his options. Moreover, the judge found that Mr. Tennent adeq uately investigat ed the case5

byinterviewing

witnesses, receiv

ing discovery i nformation from the State, and reviewing the case with the petit ioner . Based on these findings, the p ost-conviction co urt judge concluded the petitioner had not prov en ineffective assistance of counsel and accordingly denied h im reli ef.

Under the Post-Conviction Pr ocedure Act of

19 95, the petitioner has the b urden of proving the factual all egations in his or her petition by clear and con vincing evidence. T.C.A. § 40-30-210(f). Furthermore, the factual f indings of the trial court in hearings “are conclusive on appeal unless the evidence preponderates ag ainst the judgment.” State v. Buford , 666 S.W.2d 473, 47 5 (Tenn. Crim. App. 1983).

To succe ed on his Sixth Amendment clai m of ineffective assistance o f counsel, the petitioner must prov e that the advice given or services rendered by his attorney were below the range of competence demanded of attorneys in cr iminal cases. Baxter v . Rose , 523 S.W.2d 930, 936 (Tenn. 1975). He “must show that counsel ’ s represe ntation fell below an objectiv e standard of reasonableness” and that thi s performance prejudiced the defense. There must be a reasonable probability that but for counsel’s error the result of the proceedi ng would have been different. Stricklan d v. Washington , 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State , 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). To satisfy the requirement of prejudice, he must demonstrate
a reasona ble proba bility tha t, but fo r counsel ’s errors, he would no t have pled guilty and
wou ld have insisted on going to trial. See Hill v. Lockart , 474 U.S. 52, 59 (1985); Bankston v. State , 815 S.W.2d 213, 21 5 (Tenn. Crim. App. 1991).

The petitioner claims that M r. Tennent’s represen tation f ell below the applicable range of competence because Mr. Tennent did not discuss with him the6

potential defense of “nonoccurrence” and did not attempt to discover

evidence that might support this defense. The petitioner’s c laim ignores the letter

from Mr. Tennent t o the petitioner

that was entered into evidence. According to this letter, the petitioner had told Mr. Tennent thathe could not remember what had happened, but he could not explain why the victim “would make such an awful thing up.” As the post-conviction court found, this portion of the letter

confirms that Mr. Tennent and the peti tioner had, to some extent, discussed the possibility of clai ming that the rape never oc curred, but that

there was no evidence to support such a claim. Ev en assuming that Mr. Tennent failed to discuss this potential defense with the petitioner and discover evidence to support thi s potentia l defens e a nd that such failures fell below the applicable range of competenc e, the petitioner

has not sh own resulting prejudice,thus precluding post-c onviction relief on this point. Strickland , 466 U.S. at 687-88, 692, 694; Best , 708 S.W.2d at 422.

The petitioner also claims th at Mr. Tennent failed to tell him that Ms. Fitts had said the victim had denied the rape occurred and failed to discuss with him the lack of objective scientific evidence. Mr. Tennent’s testimony,which thepost-conviction court found to be more credible than the peti tioner’s, casts doubt on w hether Ms. Fitts ever

told him that the victim had denied a rape had occurred. Mr. Tennent testified that he asked Ms. Fitts to tell him if t he victim changed her s tory and that he would s urely remember such a development in the case, but he did not remember Ms. Fitts telling

him that. Moreover, Mr. Tennent testified he told th e petitioner that there w as evidence of anal trauma, but no evidence specificall y identifying the peti

tioner as the cause of

the trauma.

Bu t even assuming that Mr. Tennent did not discuss the victim’s allege d statem en t and the “lack of objective scientific evidence” w ith the petitioner, and eve n assuming that such a failure fell below the applicable range of competence, the petitioner7

has not shown resulting prejudice. The record shows that the victim would have testified at trial that the petitioner penetrated her anally, w hich would have been cor roborated by the evidence of anal trauma. Moreover, t he petit ioner adm itted to a police de tective that he had placed his hand on the vi ctim’s vagina, pull ed his penis out, and placed it on the victim. In light of this evi dence, even though the petiti oner claims he would not h ave pled guilty had he been fully informed, he has not shown how the resu lt of the p roceedings woul d have been different had he not entered a best interest plea. Thus, he has no t shown a reasonable probability that he suffered prejudi ce as a result of Mr. Tennent’s conduct and is not entitled to post-conviction relief. See Bankston , 815 S.W.2d at 215.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID H. W ELLES, Judge

______________________________ J. CURWOOD WITT, JR., Judge