# FILED
August 13, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JUNE 1998 SESSION

WILLIAM CHARLES PARKER, ) ) NO. 02C01-9711-CC-00432 Appellant, ) ) HENRY COUNTY VS. ) ) HON. JULIAN P. GUINN, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT : TERESA McCAIG MARSHALL 308 W. Washington Street P.O. Box 459 Paris, TN 38242-0459 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter CLI NTO N J. MOR GAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General STEVEN L. GARRETT Assistant

DistrictAttorney

General 111 Church Street P.O. Box 686 Huntingdon, TN 38344-0686

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION
The petitioner, William Charles Parker, appeals the trial court’s denial of his petition for post-conv iction relief. He recei

ved a life sentence after pleadin g guilty to f irst degre e murder and now cla ims the pl ea was the result of ineffe ctive assistance of counsel. The judgment of the trial court is AFFIRMED.

I.
The petitioner, accompanied by two (2) uncles, pres ented himself at the Henry County jail

and stated he wished to confess to a murder. The petitioner had previously admitted to his uncles his involvement in the murder. The off icers present instructed the petitioner not to make any statement u ntil counsel had been obtained.
The petitioner’s appointed counsel arrived at the jail

a short time later. The attorney was informed by the officers that they had been tol d by several persons that the defendant had admitted his involvement in the murde r, and that the defendant had been seen with the v ictim within hours of the murder. The petitioner informed counsel that he was worried about his “soul” and wis hed to confess to clear his conscience. Counsel informed the p etitioner that he could not be forced to give a stat ement or testify against hi mself, and that the state would be forced to prove their case against him w ithout that evidence. Couns el also discussed possible defenses with petitioner, including presenting evidence of diminished capacity. Co unsel testified that he advis ed the petitioner that if he gave a statement, he should t ell the truth.
The petitioner insisted upon maki ng a statement and admitted1 Unfortunately, the statement given by the defendant is not in the record. Based upon t he entire rec ord, we assu me the stat ement was in criminati ng. 3 involvement in the murder after being read his Mirandarights by the officers. 1 After giving the stat

ement, the petitioner was formal ly arrested and later pled guilty to first deg ree murder. Pursuant to a ple a agreement, the petitioner w as sentenced to life imprisonment w ith the possibility of parole.

II.
The pet itioner c ontends that his gu ilty plea wa s the resu lt of ine ffecti ve assistan ce of cou nsel. Th e petitio ner claim s his coun sel shoul d not have allowed him to giv

e a statement to the police without an investigati on to determine whether such a statement was in the petitioner’s best interests.

A.

This Court review

s a claim of ineffective assist ance of counsel under the standar ds of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Stricklan d v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984). The petitioner has the burden to pr ove that (1) the attorney ’s performance was deficient, and (2) the deficient per formance resulted in prejudice to the defendant so as to deprive him of a fair trial. Strickland v. Washington , 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990).

The test in Tenne ssee in de terminin g whether co unsel pro vided eff ective assistance is whether his performance was within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d at 936. The petitioner must overcome the presumption tha t counsel’s conduct falls within4

the wide range of acceptabl e professional assistance. Strickland v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065; Alley v. State , 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997); State v. Williams , 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996). Therefore, in order to pr ove a deficiency, a petitioner must show that counsel ’s acts or o missions were so seri ous as to f all below a n objecti ve standard of reasonableness under pr evailing professional

norms. Stricklan d v. Washington , 466 U.S. at 688, 104 S.Ct. at 2065 ; Henley v. State , 960 S.W.2d 572, 579 (Tenn. 1997); Goad v. State , 938 S.W.2d at 369.
In reviewing counsel's conduct, a "fair assessment . . . requires that every effort be made to eliminate the distorti ng effects of hindsight, to recons truct the circumstances of counsel's challenged conduct, and to e valuate the conduct from counsel's perspectiv e at the time." Strickland v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065. The fact that a pa rticular strategy or tactic failed or hurt the defense, does not, standing alone,establish unreasonable repr esentation. However, deference to matte rs of strategy and tacti cal choices applies only if the choices are informed ones based upon adequate preparation. Goad v. State , 938 S.W.2d at 369; Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982); Alley v. State , 958 S.W.2d at 149; Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

In Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.E d.2d 203 (1985), the Supreme Court applied the tw o-part Strickland standard to ineffective assistance of counsel claims arising out of a guilty plea. The C ourt in Hill modified the prejudice requirement by requiring a defendant to show that there is a reasonable probability that, but for counsel's error s, he would not have ple aded guilty and would h ave insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370.5 B.
The petitioner’s counsel did not specifically advise the petitioner against making a statement. The failure to do so at least raises the question of the first Strickland prong, deficient performance. However, counsel’s performance must be judged in the light of the circumstances at the time, not from hindsight. Strickland v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065

. Counsel was summoned to the jail on a Sunday afternoon and informed he had been appointed to represent a per son who wished to confess to a murder in order to clear his c

onscience. Counsel had been appr ised by the officers of other evidence implicati ng the petitioner in the mur der. Counsel fully ex

plained to the petitioner his consti tutional right agains

t self-incrimination, y

et the petitioner insisted upon maki ng a statement. Counsel adv ised the petitioner that if he insisted upon making a statement, to be truthf ul in doing so as it would inure to his benefit in sentencing. Counsel realized that petitioner faced the possibili ty of the d eath pen alty.

In his excellent f indings of fac t, Judge Julian P. Guinn noted th e following:

Some fi ve days fol lowing the k illing tha t gave rise to the underlying case, petitioner revealed his involvement to two of his uncles. Followi ng discussion, the uncles took him to the county jail for questioning. It w

as during this questi oning that petitioner indicated that he wanted “get it off (his) conscience” by admitting guilt. Questioning was halted at that time and counsel contacted. Petitioner was not under arrest at that time. Counsel immediately came to the jail and conferred with both petitioner and his uncles. Petitioner was insi stent upon adm itting guil t and did so after being fu lly, properly and completely informed of his constitutional right against self-i ncrimination. An inves tigation that revealed every iota and scintilla of evidence available at that time would have bee n of no avail in view of the petitioner’s adamant insist ence upon admitting guilt. This Court is bound by thes e findings unless the evi dence preponderates6

otherwise. Henley v. State , 960 S.W.2d at 578; Dixon v. State , 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996).
Based up on the cir cumstan ces surrou nding the petition er’s stat ement, we are reluctant to find counsel’s performance deficient. Counsel w as faced with a client who, according

to the trial court, w

as “adamant” in confessing to the murder. Under the totality of the circumstances, we ar e unable to determine that counsel was deficient.

This issue is without merit.

C.
In addition, the petitioner bears the burden of demonstrating that he would not have entered a plea of guil ty had he not given the statement. See Hill v. Lockhart , 474 U.S. at 59, 106 S.Ct. at 320. The substance of petitioner’s argument in this regar

d is that the statement was g iven before his cooperation could be used as a bargaini ng tool for a lighter s entence.
Petitioner’s cooperation was apparently helpful in securing evidence agains t his co-defenda nt. The d efendant was offe red and,in fact,receiv ed a life sentence with the possibi lity of parole. Consider ing the evidence agai nst the defendant at the time of his statem ent and the possibility of the death penalty if he went to trial, the peti tioner has failed to show that he would not have pled guilty absent this s

tatement.

This issue is without merit.7 CONCLUSION
The evidence does not preponderate against the trial cour t’s finding that counsel was not deficient. Further, petitioner has fail ed to demonstrate prejudice. Accordingly, the judgment of the trial court is AFFIRMED.

_________________________ JOE G. RILEY, JUDGE

CONCUR:

_________________________ PAUL G. SUMM ERS, JUDGE

_________________________ DAVID H. WELL ES, JUDGE