### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs D

ecember 13,

2000

LAVERNE M. LAIN, JR. v. STATE OF TENNESSEE

Appeal from the Circuit Court for Coffee County No. 29,701 L. Craig Johnson, Judge

No. M2000-00605-CCA-R3-PC - Filed May 11, 2001

The petitioner appeals from the denial of his post-conviction petition, contending that his guilty plea

was not en tered voluntarily and intelligently and that he received the ineffective assistance of counsel. We affirm the trial court’s denial of the petition.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which T HOMAS T. W OODALL and A LAN E. G LENN , JJ., joined.

Timothy S. Priest, Winchester, Tennessee, for the appellant, Laver ne M. Lain, Jr.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; and Charles Michael Layne, District Attorney General, for the appellee, State of Tennessee.

OPINION

The petitioner, Laverne M. Lain, Jr., appeals as of right from the denial of his post-conviction petition. The petitioner was indicted for aggravated sexual battery, a Class B fe lony. On May 19, 1998, he pled guilty

to attempted agg

ravated sexual batt ery, a Class C felony, and ag reed to be sentenced as a Range III, persistent offen der to ten ye

ars at forty

-five percent.

The petitioner time

ly filed a po st- con vic tio n pe tit ion , an d an evi den tia ry hea rin g was hel d on Febr uary 8 , 2000, at the conclusion of which the trial court denied the petitioner relief. The petitioner contends (1) that his guilty plea was not ente

red voluntarily

and intelligently

and (2) th at he received the ineffective assistance of co

unsel.

At the guilty plea hearing, the state said that

it would have presented the following evidence at trial: A ten-y

ear-old victim wo

uldhave testified that the petitioner put his hands on her vagina. Officer Tracy Alexander, who intervi ewed th e petitioner, would have testified that the petitioner admitted to committing the act but gave various explanations for his actions.-2-

At the evidentiary hearing, the petitioner testified as follows: He was for ty-four years old, married, and had two daughters. He could read print writing pretty we ll but could not read cursive writing well. He was a great-uncle of the ten-year-old victim and lived about two or three miles from her. One day whe

n he got home fro

m work, his wife told

him that their children w ere having a problemat school. At the school, Off icer Tracy

Alexander accus

ed him of sexually molesting the victim, which he de

nied. Officer A

lexander wrote so

mething on a pape

r and asked him

to sign it. He said that he could not read it because it was in cursive and asked Officer Alexander what it said. Officer Alexander told him thatit was what they had been talking about and not to worry ab

out it. Because he had told Officer Alexander that he had not done anything, he sig ned the statement. He was arrested, and the public defender was appointed to represent him.

The petitioner testified that he talked to his attorney three times before his case went to the grand jury and that he told his attorney that he was innocent and that he did not read the statement he had signed. He said that his attorney did not request a preliminary hearing and never discussed withhim moving to suppress his statement. After he was indicted, h e received a letter from the victim, which included the statement, “I am sorry I told them what Sharon told me to say.” He asked his wife if

anyone helped the victim write the letter, and she said that no one had. He made copies of the letter and gave them to his attorney.

The petitioner testified that his attorney brought paperwork to him before trial but that he gaveit to his wife because he did not have time to read it overnight. He stated that his atto

rney told him that the possible ra

nges of punishme

nt were twenty

years to life in prison but said that if the case went to trial, he would get life in prison without parole. His attorney also said that if

the case went to trial, he would not cross-examine the victim or any of the o

ther witnesses.

The petitioner stated that when he entered his guilty pl ea, the judge asked him, “Do you have any questions, second thoughts, hes ita ncy, res ervations, or anything you wa nt to ask or say about the proceeding?” He responded, “Any

thing I say

ain’t going to

help me out,” meaning that he had no choice but to plea guilty because his attorney was not going to cross-examine any witnesses andif c onv ict ed b y a ju ry, he would get life in prison.

On cross-examination, the petitioner acknowledged that at the guilty plea hear ing, he stated that no one had done an

ything to ca

use him to plead gu

ilty against his will and that he was entering the plea voluntarily of

his own free will. The

petitioner admitte

d that his attorney

discussed with him the possi bili ty of rec eivin g a Ran ge II sent ence because of prior convictions and that a conviction

on aggravated sexual battery required se rvice of eighty-five percent of the sentenc e. The petitioner acknowledged

that his signed statement said that he had the victim lie on a bed naked and that he then put his hand on her vagina and told her not to let a boy do this to her beca

use it would cause

a rape. He stated that the statemen t was false an d that he told Officer Alexander only that he was innocent.

Dale Conn, an investigator for the public defender, testified as follows: He investigated the petitioner’s case, which incl uded copyin

g the petitioner

’s entire file fr

om the district a

ttorney’s of

fice and talking with Tra

cy Alexande

r and the petitione

r’s wife. He als

o met wit h the pe titioner three-3-

or four times, and they discussed the contents of the file, including the petitioner’s confession. They also talked about the vi ctim’ s subs equen t lett er and the po ssib ilit y of Ran ge II sentencing bec ause of the petitioner’s prior convictions. Mr. Conn testified that hewas present on two occasions when the petitioner and his

attorney me

t, and he stated tha

t the attorney never g

uaranteed any sentence, never mentioned l

ife in prison, and n

ever refused to

cross-examine an

y witnesses.

On cross-examination, Mr. Conn testified that the petitioner had a limited ability to read and write. He said that the pe titioner denied tou

ching the victim

while she was naked

but said that he may have touched her

vagina over he

r clothes. He stated that a letter signed by the victim stated, “I miss you a lot. I hope y

ou will be out soon. I am sorry that Sharon lied about y

ou. I am sorry

I said what Sharon told me to say.” He said that although the letter on its face did not say that the

victim had lie d, the petitioner’ s family had told the petitioner

that the victim had c

hanged her st

ory. H e admitted that he did not interview the victim.

The petitioner’s trial counsel testified as follows: He had been the Coffee County Public Defend er for over ten y

ears. He never

told the petitioner

that he would ref

use to cross -examin e witnesses or that

the petitioner wou

ld get life in pris

on if the case

went to trial. He explained to the petitioner the o ffense with which he was charged and the potential sentencing rang es he faced, including that if

convicted of aggravated sexual battery, he would be required

to serve eighty-five percent of his sentence. He gave the petitioner a sentencing chart, a copy of the statute, and a copy of everything that was in the district attorney ’s file. He talked with the petitioner about the victim’s subsequent

letter, although he questioned whethe r the victim wrote it. The petit ioner admitted to him that he touched the victim on her vagina over her clothes because he was trying to teach her a lesson about what could happen to her if she did not behave.

The public defender testified that the original plea offer was for e ight years at eighty -five percent but that, in part because of the let ter , he was abl e to nego tia te a n of fer f or t en yea rs a t fo rtyfive percent. Hesaid that he did not file a motion for discovery because the district attorney had an open file policy. He stated that after talking to Officer

Alexander, he bel

ieved a motion to sup

press would have b een unsuccessful. He testified that he told the petitioner he thought the state had enough evidence to get a con vic tio n bu t th at h e di d no t pr ess ure t he p eti tio ner i nto ple adi ng gu ilt y. He stated that the petitioner seemed to understand everything that they did.

On cross-examination, the petitioner’s counsel testified that he did not issue any subpoenas for the preliminary

hearing. He stated that he discussed the case with the petitioner, the petitioner’s wife, the victim’s mother, and Officer Alexander. He sa

id that he discusse

d the victim’s lette

r with the petitioner but not with the victim or with “Sharon,” whom he could not remember. He said that the petitioner

told him that he did not do what was in his statement. However, the petitioner stated that he touched the victim’s vagina through her clothes. He told the petition e r that this fact made no difference in defending against a charge of aggravated sexual battery.

Based upon this evidence, the

trial court found

that the petitioner

’s counsel was not

deficient. The court also found that the petitioner entered his guilty plea knowingly and voluntarily.-4- I. VOLUNTARINESS OF THE GUILTY PLEA

The petitioner argues that he did not enter his guilty plea voluntarily and intelligently

because the trial court failed to inform him in open court, as required by Tenn. R. Crim. P. 11(c)(1), of the nature of the charges to which he was pleading, the mandatory minimum penalty, and

the possible maximum penalty . This issue is without merit.

We note that this issue was not raised in the petitioner’s post-conviction petitio n or at the post-conviction hearing. Moreover, only constitutional errors can be addr essed in a post-conviction proceeding. SeeTenn. Code Ann. § 40-30-203; Overton v. State , 874 S.W.2d 6, 12 (Tenn. 1994). The trial court’s mer

e failure to explai

n the minimum and maximu m penaltie s to t he petitioner in open court is not constitutional error. See Sneed v. State , 942 S.W.2d 567, 568-6 9 (Tenn. Crim. App. 1996). Finally, the record reveals that the trial court did inform the petitioner in open court of the nature of the charge to which he pled.

II. INEFFECTIVE A

SSISTANCE OF COUNSEL

The petitioner also co

ntends that his gui

lty plea was involuntary in that it resulted from the ineffective assistance of

counsel. The petitioner argues that his attorney coerce d him into pleading guil ty, telling him that he would not cross-examine witnesses and that the petitioner would receive life in prison if the case went to trial.

When a claim of ineffective assistance of counsel is made under the Si

xth Amendment, the burden is upon the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficiency was

prejudicial in terms of rendering a reasonable probability that the result of the tr ial was unreliable or the proceedings fundamentally unfa ir. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. F retwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). Th e Strickland stand ard ha s been appli ed to t he rig ht to couns el und er Art icle I, Section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989). When a petitioner claims that ineffective assistance of counsel resulted in a guilty plea, the petitioner must prove that counsel performed deficiently and that but for counsel’s errors, the petitioner would nothave pled guilty and would have insisted upon going to trial. Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

In Baxter v. Rose , 523 S.W.2d 930, 936 (T enn. 1975), our su

preme cou rt h eld tha t at tor neys should be held to the general standard of whethe r th e services rendered were within the range of competencedemanded of attorneys in criminal cases. Further, the cour t st ated that the range of competence was to be measured by the duties and criteria set forth in Beasley v. United States
, 491 F.2d687, 696 (6th Cir. 1974) and United Sta tes v . DeCoster , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance re quires that every effort be made to eliminate the distorting effec ts of hindsight, to reconstruct the circumstances of counsel’s cha llenged conduc

t, and to evaluate

the conduct from c ounsel’s-5-

perspective at thetime.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

The petitioner has the burden in the trial court to prove by clear and convincing evidence the factual allegations that would entitle him to relief. Tenn. Code Ann. § 40-30-210(f). On appeal, we

are bound by the trial

court’s findi ngs of fact unless we conclude that the evidence in the record preponderates against those findings. Jehiel Fields v. State, No. E1999-00915-SC-R11-PC, Bradley Cou nty, slip op. at 6

(Tenn. Feb. 20, 2001) (for publication). We review the trial court’s conclusions of law – such as whether counsel's performance was def i cient or whether that deficiency was prej udi cia l – u nde r a pu rel y de novo standard. Id. at 6-7.

In the pres ent ca se, the trial cour t found that the pet

itioner’s attorne

y represe nted him effe cti vel y, noting that the petitioner’s attorney inv estigated the case and discussed with the petitioner the state’s theory, his possible defenses, and the possible sentences that he could receive. The pe ti tioner’s attorney stated that he never told the petitioner that he would not cross-examine witnesses and that the petitioner would receive life in prison i f the case went to trial. Questions concerning the cred ibi lit y of t he w itn ess es, the wei ght a nd v alu e to be gi ven the ir t est imo ny, and the factual issues raised by

the evidence ar

e to be resolved b

y the tr ial court

. Henley v. Sta

te , 960 S.W.2d 572, 579 (Tenn. 1997). We conclude that the trial court properly found that the petitioner’s attorney w

as not deficient.

Based upon the foregoing and the record as a whole, we affirm the trial court’s denial of the petitioner’s post-conviction petition.

___________________________________ JOSEPH M. TIPTON, JUDGE