# FILED
December 23, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE NOVEMBER 1997 S ESSION

WILLIE JOSEPH LAGANO, ) ) Appellant, ) No. 01C01-9701-CC-00009

) ) Lincoln County v. ) ) Honorable Charles Lee, Judg e ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : N. Andy Myrick, Jr. John Knox Walkup 116 West Market Street Attorney General of Tennessee Fayetteville, TN 37334 and Elizabeth B. Marney Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 W. Mic hael McCo wn District Attorney General and Weakley E. Barnard Assistant District A

ttorney General 215 E. College Street P.O. Box 904 Fayetteville, TN 37334

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Willie Joseph Lagano, appeals as of right from the judgment of the Lincoln County Circuit Court deny

ing him post-conviction relief. He was convicted in September 1995 upon his guilty pleas for the offenses of aggravated burglary, a Class

C felony, and theft of property worth over one thousand dollars, a Class D felony. He w

as sentenced to six and thr ee years, respectiv

ely, to be served concurrently to each other but consecutively t

o a revoked suspended sentence of four years. He contends that hi s pleas resulted from the ineffectiv e assistance of counsel and were not knowing ly and voluntarily entered. We disagree.
At the evidentiary hear ing, the petitioner complai ned about the fact that his former attorney on the cas e joined the district attor ney general’s office duri ng the prosecution and that his tri al attorney did nothing about it. He testified that he o nly met with his trial atto rney two or three t imes and told him that there w ere alibi witnesses

. However, the attorney

never talked to the witnesses and kept urging him to plead guilty. He said that the attorney did not investigate the case. The petitioner denied telling his attorney that his wi

tnesses would testify to anything that the petit ioner wanted them to say.
The petitioner testified that on the day of the pleas, he kept telli ng the attorney that he did not w ant to plead guilty, but

the attorney wanted him t o plead. The petitioner also said that befor e the pleas, the assistant pr osecutor talked to him about his pleas without his attorney present. He sai d that he was pressured to plead guilty. The petitioner denied reading the petition to plead guilt y or the guilty plea document, although he signed them. When asked if he committed perjury in his answ ers to the trial court’s questi ons about those documents at the gui lty plea hearing, the petitioner said that his attorney had told him to say yes to everything he asked

.3 The trial attorney testified that he met with the petiti oner four times and that the petitioner mentioned ali bi witnesses, but it w as to the effect that they would say anything for him. The attorney did not interview the witnesses because he thought it involved perjury . However, he talk ed to the arresting officer w ho found a stolen shirt on the petitioner. He had a dis covery conference with the prosecutor and went over the preliminar

y hearing

tape. He sta

ted that he w

ent to the tw

o pawn shops

in Alabama where stolen items had been found. At one shop, the person specifica lly described the petitioner. At the other, the pawn ticket had the petiti oner’s social securit y number on it. The attorney said that the petitioner also told him that ther e were other items not y et found by the police.

The attorney testified that the pet itioner did not tell him abo ut his former attorney presenting a c onflict of interest. Also, he r ecalled the assistant prosecutor talking to the petitioner on the day of the pleas, but it w as mainly casual conv

ersation taking about two minutes.He denied walking away during the con versation.
The attorney acknowledg ed that the petitioner had a difficult time deciding what to do. Howev

er, he denied putting any pressure on him to plead. He stated that he went over the petiti on to plead guilty in detail with the petiti oner and explained to the petitioner his rights . He believed that the peti tioner understood every thing. Also, he denied telling the petiti oner to answer yes t o all of the trial court’s

questions at the hearing.
The petitioner’s attorney at the preliminary heari ng testified that the former attorney who joined the district attorney g eneral’s office took no part in the hearing. The district attorney g eneral testified that the petiti oner’s former attorney w as shielded from the rest of the staff with strict orders not to comm unicate about the case. He said that he knew of no improper communi cation.1 The petiti oner was origi nally charged with two burglar ies and two t hefts. 4 Stacey Atchley testified that she had known the petiti oner for three years. She said that the nights the bu rglaries 1 were supposed to have happened, the petitioner was with her. She s

tated that he did not bring any thing into her house and ther e was nothing in her car, w

hich the petitioner used. She said that she would not li e for the petitioner and that she had been available to testify on his beh alf. She described their relationship as more than jus t friends, but she denied any r omantic involvement.
In a post-conviction case, the burden is on the petitioner to prove his grounds for relief by cl ear and convincing ev idence. T.C.A. § 40-30-210(f). Relative to a claim that the ineffective ass istance of counsel resulted i n an invalid guilty plea, a petitioner must prove that counsel performed def iciently and that but for counsel’s errors, the petitioner w

ould not have pleaded guilty and would have i nsisted upon going to trial. Hill v. Lockhart , 464 U.S. 52, 59, 1 06 S. Ct. 3 66, 370 (1 985). On a ppeal, we are bound by the trial cou rt’s findings unless the evidence of record preponderat es against those findings. See Cooper v. State , 849 S.W.2d 744, 746 (Tenn. 1993).

In this case, the trial c

ourt entered detailed findings that discredited the petitioner’s testimony and accredited that of the trial attorney. In pertinent par t, the findings and conclusions reached by the trial court are as follows:

The court must first determine the c red ibility of the witnesses

that have appeared before it today because there are issues that cannot be rec onciled. The defendant alleges certain ev ents to have occurred, c ertain conversations to have occu rred, certain representation s to have been m ade to him which the State’s position is contrad ictory. The defendant comes in first and says that he didn’t tell the court the truth the first ti me. So he wants the court to believe him this time. Even after being advised that

if he made5 a false statement concerning a mater ial fact that he c ould be charged wit h perjury. He lied to the court on sev eral different occasions during the plea acceptance hearing. He tries to explain that by saying t hat he wa s only doing what his lawyer told h im to do and his lawyer told him to answer “yes” r egardless of what the question was and the transcript contains two “no” answers which obviously

is not what transpir

ed. It has also been brought ou t [peripherally] that Mr. Lagano prior to the entry of thi s plea had bee n previ ously convicted of felonies. Therefore that has a grea t bearing on the court and also upon his credibility as a witness. The court finds Mr. Lagano’s credibility before this court to be virtually [ni l]. It is difficult for this cour t to understand how it is that you can explain to someone that they will be char

ged with perjury if they make a false statement co ncerning a material fact and [then] get up and lie. Mr. Lagano either lied today or he li ed on Septe mber 19, 1995. Th ere [are] no two ways around it.

. . . The court finds Mr. Lagano’s credibility to be [n il]. The court accepts credibility and f inds [the trial attorney’s] statements before the court are t he mor e credible and accreditshis tes timony an d so find s that [th e trial att orney] consulted with Mr. Lagano on several different occasions ; he conducted an in depen dent investigation to v erify what the State’s theory of the case was which was recent

possession of stolen pr operty. The court finds that

[the tria l attorne y] did not insist upon a plea f rom Mr. Lagano. The court finds that . . . [the trial attorne y] did not suggest to Mr. Lagano that he would be released in a specific peri od of time. With regard to the issue of w hethe r Mr. Lagano would have entered a plea

had h e had available Ms. Atchley’s testimo ny, [the trial attorney’s] e xplanation as to why

he did not contact Ms. Atc hleyis that he had the impression that the defendant was offering up perjured t estimony. Unless an attorney knows the testimony i s perjured, then he has a duty to interview the w

itnesses to e valuate their testimony to determine if whether or not it is perjured testi mony and if it is then he d oes not h ave a duty t o offer that test imony. In this case . . . the testimony before the court does not indicate that the attorney knew the testim ony w as perjured; that he had a very strong suspicion it was perjured. That calls upon whether or not that is a tactical decision made by the attorney not to [pursue] that an d the court cannot really call that a tactical decision.6 The inquiry does not end there. The court must go further to determine whether

or not if this testimony had been available if the attorney had interviewed this witness it would have had a bearing upon the out come of the case. It would not. This witness th at app eared before this court today has a close, and [the trial attorney] was correct, a very suspicious r

elationship with the

defendant. She made a poor witness on behalf of defendant today. The court had an opportunity

to sit and judge her demeanor in ans wer ing the State’s questions as well as those of the court. Qu ite f rankly she pr oba bly would have hur t the defendant more than she would have helped him had it gone to trial. That is not the issue before court.N ot w hether or not this witness was beli evable o r n ot. The court finds in the court’s mind she woul d not hav e had an [effect] upon the outcomeof the case and therefore the failure to interview her was not fatal to Mr. Lag ano’s defense. The questio n b efore the court is whether Mr. Lagano entered his pleavoluntarily and kn owingly. He tol d me he did. He told me no threats had been made agai nst him. He t old me he broke into these people’s house s an d stole their s tuff. Today he says he didn’t. The court finds this plea wa s entered into freely and voluntarilyby the defendant. He knew what his choices before him were and that the attorney gave to him the only advice that he could. Here are your choices. It is up to y

ou to decide.

. . . For those reasons the [petitioner’s] . . . petition is respectfully denied.7 Our review of the rec

ord finds nothing that woul d give rise to a q uestion about the trial court’s findings and conclusions. The judgment o f the trial court is affirmed.

_____________________________ Joseph M. Tipton, Judge CONCUR:

________________________ John H. Peay, Judge

________________________ David H. Welles, Judge