IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 2000

THOMAS FREEMAN, ) NO. M1999-00177-CCA-R3-PC

 ) 

Appellant, )

)

) MARSHALL COUNTY

VS. )

) HON. CHARLES LEE

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post Conviction - Class C Felony)

FOR THE APPELLANT: FOR THE APPELLEE:

N. ANDY MYRICK, JR. PAUL G. SUMMERS

116 West Market Street Attorney General & Reporter

Fayetteville, TN 37334

TODD R. KELLEY

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

MIKE MCCOWEN

District Attorney General

WEAKLEY E. BARNARD

Assistant District Attorney

407 M C Courthouse

Lewisburg, TN 37091-3373

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE

FILED

February 25, 2000

Cecil Crowson, Jr.

Appellate Court Clerk
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OPINION

 On December 3, 1997, pursuant to a plea agreement, Thomas Freeman, the

defendant and appellant, pled guilty in the Marshall County Circuit Court to five (5)

Class C felonies involving the sale, delivery and possession of schedule II drugs for

which he received an effective twelve (12) year sentence. He filed a petition for

post-conviction relief in November of 1998, and the trial court dismissed the petition.

On appeal, the defendant argues that the trial court erred in holding that the

defendant received the effective assistance of counsel.

After a review of the record, we affirm the judgment of the post-conviction court.

FACTUAL BACKGROUND

On May 6, 1997, the defendant was stopped by police officers for not

displaying a tax sticker on his car. After police dogs alerted officers that the

defendant was carrying drugs, the officers observed the defendant throw a medicine

bottle, later found to contain crack cocaine, on the ground. Over two months later,

on three separate dates, July 25, 1997, July 27, 1997, and July 31, 1997,

confidential informants purchased crack cocaine from the defendant. Finally, when

police officers went to the defendant’s home to arrest the defendant on August 27,

1997 for the above activity, they found a pill bottle containing crack cocaine.

The defendant was then indicted for five separate offenses. Michael Randles,

then of the Public Defender’s Office, was appointed to represent the defendant. 

Soon thereafter, Mr. Randles entered into plea negotiations with the District

Attorney’s Office. Mr. Randles informed the District Attorney’s office that he

intended to move to suppress the cocaine obtained as a result of an automobile

stop. The Assistant District Attorney assigned to the case informed Mr. Randles that

he would be willing to negotiate a plea-bargain on all of the cases only if Mr. Randles
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refrained from moving to suppress the evidence. After investigating all of the

charges against the defendant and considering his chances of succeeding on the

suppression motion, Mr. Randles inform ed the defendant that, in his opinion, a plea

bargain would be desirable. The defendant agreed, and, following brief negotiations

between the District Attorney’s Office and Mr. Randles, the defendant pled guilty to

the charges in exchange for an effective twelve (12) year prison sentence. 

In November of 1998, the defendant challenged the convictions, claiming that

he had entered into the plea agreement involuntarily because he had been denied

the effective assistance of counsel. More specifically, the defendant claimed that Mr.

Randles failed to move to suppress the evidence obtained as a result of the search

of the defendant’s car; that Mr. Randles failed to move to suppress the defendant’s

confession; that Mr. Randles failed to move to suppress the audio tapes made by a

confidential informant; and, finally, that Mr. Randles erroneously advised the

defendant to stay in jail, rather than to make bond, so that the defendant could

receive medical treatment. The trial court found that the defendant had failed to

carry his burden of proving that Mr. Randles had been ineffective.

INEFFECTIVE ASSISTANCE OF COUNSEL

When a petitioner seeks post-conviction relief on the basis of ineffective

assistance of counsel, the petitioner bears the burden of showing that (a) the

services rendered by trial counsel were deficient and (b) the deficient performance

was prejudicial. Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.1996). In

order to demonstrate deficient performance, the petitioner must show that the

services rendered or the advice given was below "the range of competence

demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). In order to demonstrate prejudice, the petitioner must show that there

is a reasonable probability that, but for counsel's deficient performance, the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S.

668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984). "Because a petitioner
 

1Although the trial court did not specifically find the defendant’s testimony incredible on the record, Mr.

Randles’ testimony directly contradicted the defendant’s on this point, and the trial court held that the

defend ant did no t carry his bu rden. 

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must establish both prongs of the test to prevail on a claim of ineffective assistance

of counsel, failure to prove either deficient performance or resulting prejudice

provides a sufficient basis to deny relief on the claim." Henley v. State, 960 S.W.2d

572, 580 (Tenn.1997) "Indeed, a court need not address the components in any

particular order or even address both if the defendant makes an insufficient showing

of one component." Id. "Moreover, on appeal, the findings of fact made by the trial

court are conclusive and will not be disturbed unless the evidence contained in the

record preponderates against them." Adkins v. State, 911 S.W.2d 334, 347 (Tenn.

Crim. App. 1994). "The burden is on the petitioner to show that the evidence

preponderated against those findings." Id.

In this case, testimony at the post-conviction hearing revealed that the

defendant had not made a statement to police; thus, there was no confession to

suppress. Furthermore, although Mr. Randles originally considered trying to

suppress the cocaine found as a result of the automobile stop, he decided against

it for tactical reasons relating to the plea negotiations. The defendant has not

demonstrated that any further investigation would have yielded any evidence helpful

to the defendant. Finally, the trial court implicitly found that the defendant’s

testimony, that he was coerced into confessing because Mr. Randles told the

defendant that he would receive medical care in prison, was incredible.1

 

In short, the petitioner has not established that his attorney provided

deficient performance at trial or on appeal. Moreover, he has not demonstrated a

reasonable probability that, due to his attorney's alleged deficiencies, the result of

the proceeding would have been different. Accordingly, the trial court properly

denied the petition for post-conviction relief. 

The trial court's judgment is AFFIRMED.

___________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

THOMAS T. WOODALL, JUDGE

___________________________________

L. T. LAFFERTY, SENIOR JUDGE