IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 28, 2012

ROGER HATHAWAY, JR. v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Knox County

No. 96280 Steven W. Sword, Judge

No. E2011-02175-CCA-R3-PC - Filed September 20, 2012

Petitioner, Roger Hathaway, Jr., pleaded guilty to attempted aggravated arson, attempted

second degree murder, and possession of a firearm during the commission of a felony and

received a total effective sentence of 12 years to be served at 30 percent. Petitioner appeals

the trial court’s denial of his petition for post-conviction relief, in which he alleged that he

received the ineffective assistance of counsel and that his plea was not voluntarily and

knowingly entered. After a careful review of the record, we affirm the judgment of the postconviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON,

P.J., and CAMILLE R. MCMULLEN, J., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Roger Hathaway.

Robert E. Cooper,Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald,

Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION

Facts

The following is a summary of the stipulated facts as stated by the prosecutor at

Petitioner’s plea submission hearing:
On March 21, 2009, at approximately 11:30 p.m., a man known as “Rog” drove sisters

Lekeya Allen and Latoya Allen from the home of a mutual friend to the Morningside

Apartments in a 1980’s model dark blue Chevy Caprice. Latoya Allen later identified

Petitioner in a photo lineup as the person who drove them home. The women told Petitioner

that they would pay him gas money when they arrived at the apartments; however, when they

arrived, they went inside and did not take Petitioner any money. Petitioner went to their

apartment, and their mother, Debra Allen, answered the door. He asked where the women

were and demanded his money, and Ms. Allen told him that the women were inside. He then

“got angry, smacked his fist into his hand several times, and said he would be back and that

he had something for them.”

The following day, at approximately 7:30 p.m., the same man, whom Latoya Allen

later identified as Petitioner, knocked on the Allens’ door. The women told Andre Emery,

the father of Lekeya Allen’s children, to answer the door and tell him that they were not there

because they owed him money. When Mr. Emery opened the door, a young black male

wearing a white hat and white sunglasses was standing there holding a match. Petitioner

dropped the match and the door, the floor, and the ceiling caught on fire. He then ran toward

the exit to the building. The women and Lekeya’s child crawled out of the apartment

window, and Mr. Emery ran after Petitioner.

Several witnesses in the courtyard of the building saw a black male wearing a white

hat and white sunglasses run from the building toward the parking lot. They then saw smoke

coming from the building. The witnesses saw the man seated in the passenger seat of an

older dark blue car. He fired several shots at the witnesses from the car. A seven-year-old

victim suffered a gunshot wound to his leg.

Police officers found four shell casings in the parking lot, near the exit, where the

witnesses reported they saw the man flee. Investigators viewed a security video, which

showed a 1980’s model dark blue Chevy Caprice drive into the complex on the night of

March 21, 2009, at approximately 11:24 p.m. with multiple occupants inside. It left the

parking lot at 11:35 p.m. The video taken on March 22, 2009, showed the same vehicle enter

the complex at approximately 7:48 p.m. The driver was wearing a white shirt and a white

hat.

On March 31, 2009, police officers stopped a blue Chevy Caprice. Petitioner was

detained for driving on a suspended license. In the trunk of Petitioner’s vehicle, police

officers found a Winchester .380 bullet. Ballistics testing determined that the bullet was

consistent with shell casings recovered from the scene, and that the bullet and shell casings

were created by the same bunter instrument around the same time.

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Post-conviction hearing

At the evidentiary hearing, Petitioner testified that his trial counsel was courtappointed to represent him. He met with counsel prior to entering his guilty pleas. Petitioner

testified that trial counsel reviewed with him some “minor issues” concerning the State’s

discovery response, but he “did [not] receive all of [his] paperwork.” Trial counsel hired an

investigator to assist in his case. Petitioner testified that he was not aware that witnesses

claimed that he was at the apartment complex on the day of the incident and that he had been

there the previous night. He was aware that shell casings were found at the scene and was

aware of the results of the ballistics testing. He was also aware that there was a security

video of the apartment complex parking lot, but he did not view it.

Petitioner testified that trial counsel hand delivered a letter to him three days prior to

his plea submission hearing. Petitioner testified that trial counsel “misadvised [him] of the

[sentencing] ranges that [he] was facing,” and that trial counsel did not “fully” explain the

charges against him and the penalties. He testified that the State initially offered a sentence

of 14 years to be served at 30 percent. Petitioner told trial counsel that if the sentence was

12 years, he would sign, but he changed his mind because of “certain circumstances that [he]

. . . wasn’t comfortable with.” He ultimately signed the plea agreement and a waiver of his

rights because trial counsel was “pressuring” him and “inflicting bad faith upon [him].”

When he signed the plea agreement, Petitioner “thought it was a good deal” and that

“everything was going right.” Petitioner later felt pressured into signing it, and he testified

that he felt he did not have a choice because trial counsel advised him that he “was in major

danger of being sentenced to 20 years.” Petitioner believed that the minimum sentence he

could receive was 15 years to be served at 100 percent.

Petitioner testified that trial counsel advised him that the State’s case had “strong

spots” and “weak spots” and that it was circumstantial. Petitioner testified that after he

pleaded guilty, the Assistant District Attorney stated the facts underlying the offenses, and

Petitioner asked trial counsel if he could withdraw his guilty pleas, but trial counsel told him

that “it was too late.” Petitioner was concerned by the prosecutor’s statement that the

eyewitnesses stated that the perpetrator wore a hat and sunglasses. Petitioner explained that

a hat and sunglasses would have prevented witnesses from positively identifying him as the

perpetrator. He testified that trial counsel had not previously told him about the witnesses’

statements that the perpetrator wore sunglasses. Petitioner also testified that trial counsel did

not explain to him the elements of the offenses for which he was charged and that if he had

known, he would not have accepted the plea offer. He testified that he did not know that he

was pleading guilty to attempted second degree murder and that trial counsel should have

filed a motion to sever the offenses.

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Petitioner acknowledged on cross-examination that the trial court inquired about the

voluntariness of his pleas and that he had an opportunity to tell the trial court that he was

being pressured by counsel. Petitioner testified that he felt “[n]o pressure from the [trial

court] judge.” Petitioner also acknowledged that he signed a waiver of rights form, but he

testified he “never read that form.”

Petitioner’s trial counsel did not testify at the post-conviction hearing.

Analysis

The post-conviction court’s findings of fact are conclusive on appeal unless the

evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

During our review of the issues raised, we will afford those findings of fact the weight of a

jury verdict, and this Court is bound by the post-conviction court’s findings unless the

evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d

572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This

Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those

drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.

2001). However, the post-conviction court’s conclusions of law are reviewed under a purely

de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001).

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) that 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. See Strickland v. Washington, 466 U.S.

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

As noted above, this Court will afford the post-conviction court’s factual findings a

presumption of correctness, rendering them conclusive on appeal unless the record

preponderates against the court’s findings. See id. at 578. However, our supreme court has

“determined that the issues of deficient performance by counsel and possible prejudice to the

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defense are mixed questions of law and fact. . . ; thus, [appellate] review of [these issues] is

de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

Furthermore, on claims of ineffective assistance of counsel, the petitioner is not

entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).

This Court may notsecond-guess a reasonably-based trialstrategy, and we cannot grant relief

based on a sound, but unsuccessful, tactical decision made during the course of the

proceedings. See id. However, such deference to the tactical decisions of counsel applies

only if counsel makes those decisions after adequate preparation for the case. See Cooper

v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Once a guilty plea has been entered, effectiveness of counsel is relevant only to the

extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective

assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently

made. See Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (citing

North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)). As stated

above, in order to successfully challenge the effectiveness of counsel, Petitioner must

demonstrate that counsel’s representation fell below the range of competence demanded of

attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. Under Strickland v. Washington,

466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), Petitioner must establish: (1)

deficient representation; and (2) prejudice resulting from the deficiency. However, in the

context of a guilty plea, to satisfy the second prong of Strickland, Petitioner must show that

“there is a reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59; see also Walton v.

State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

When analyzing a guilty plea, we look to the federal standard announced in Boykin

v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and the State standard

set out in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on other grounds by

Tennessee Rule of Criminal Procedure 37(b) and Tennessee Rule of Appellate Procedure

3(b). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin, the United States

Supreme Court held that there must be an affirmative showing in the trial court that a guilty

plea was voluntarily and knowingly given before it can be accepted. Boykin, 395 U.S. at 242.

Similarly, our Tennessee Supreme Court in Mackey required an affirmative showing of a

voluntary and knowing guilty plea, namely, that the defendant has been made aware of the

significant consequences of such a plea. Pettus, 986 S.W.2d at 542.

A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,

inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial

court must determine if the guilty plea is “knowing” by questioning the defendant to make

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sure he fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;

Blankenship, 858 S.W.2d at 904.

At the conclusion of the evidentiary hearing, the post-conviction court found that

Petitioner “for the most part” was a credible witness and that trial counsel did not testify to

contradict Petitioner’s testimony. Based on Petitioner’s testimony at the post-conviction

hearing, the transcript of the plea submission hearing, and the letter written by trial counsel

to Petitioner, the post-conviction court found that there was adequate communication

between counsel and Petitioner and that trial counsel “accurately reported the evidence” to

Petitioner. The court also found that Petitioner was aware of what the State’s witnesses

would have testified to at trial, and the court did not find credible Petitioner’s statement that

he was not aware that witnesses had stated that the perpetrator wore sunglasses. The postconviction court further found that if Petitioner and his trial counsel had not discussed that

fact, that it would not have made a difference.

The post-conviction court found that trial counsel accurately stated the potential

penalties Petitioner would face if he was found guilty of the crimes. The court also found

that trial counsel did not pressure Petitioner to accept the pleas based on the letter from trial

counsel to Petitioner, in which trial counsel stated, “Based on my 21 years of criminal

defense experience, I’d encourage you to at least consider it.” Additionally, the postconviction court found that Petitioner

did raise concerns at the plea [hearing] multiple times about the

representation. Ironically, I think that cuts against him in his argument here

because what happened when [Petitioner] expressed concerns about the plea

deal, he calls the judge to do the proper thing, and that is, to inquire further

about what your concerns were, and I find that [the trial court] did, in fact,

do the proper thing and ask [Petitioner] repeatedly what [he] wanted to do,

if [he] wanted to withdraw this plea, which is the right thing to do. And I

have no doubt that [the trial court] would have done that had [Petitioner] at

least once stated that [he] did not want to accept this deal.

The post-conviction court concluded that the evidence was clear and convincing that

Petitioner was not pressured to accept the plea agreements and that trial counsel provided

effective assistance. The court further concluded that Petitioner was not prejudiced by

counsel’s representation and that there was a reasonable probability that the result would

have been the same had trial counsel done what Petitioner claims counsel did not do.

Although trial counsel did not testify at the post-conviction hearing, the evidence

shows that trial counsel met with Petitioner prior to Petitioner’s plea hearing and that he

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discussed with Petitioner the evidence against him and communicated the charges against

him and the possible sentences. Petitioner testified at the post-conviction hearing and at the

plea submission hearing that he did not know that he was charged with attempted second

degree murder; however, the letter from trial counsel to Petitioner clearly states that

Petitioner was charged with attempted second degree murder. In the letter, sent two months

prior to Petitioner’s guilty pleas, trial counsel also evaluated the evidence against Petitioner,

stated the potential sentences, and made a recommendation to Petitioner to consider

accepting the plea agreement.

The transcript of the guilty plea hearing clearly shows that the trial court apprised

Petitioner of his rights and the rights he was waiving by entering his guilty pleas. The trial

court allowed Petitioner opportunities to withdraw his guilty pleas. At the outset of the plea

submission hearing, Petitioner presented to the trial court a document which apparently

purported to indicate other individuals were involved in or responsible for the crimes. The

following exchange was then had between Petitioner and the court:

THE COURT: Well, you know, of course, I don’t know all the facts

around this. You know, I’m here today to take a plea.

You know, you’re pleading to a couple of serious

charges here. You know, it’s up to you whether or not

you want to – you want to accept this – take this plea

or not.

[PETITIONER]: Yes, sir. I didn’t understand that I was taking a plea

deal to attempted second-degree murder. I thought it

was attempted aggravated arson. My lawyer didn’t

inform me –

THE COURT: Well, it is attempted aggravated arson, and also

attempted second-degree murder, and they’re going to

run concurrent with each other.

[PETITIONER]: My lawyer didn’t inform me of the attempted murder.

I just found it out when [the Assistant District

Attorney] started talking about it.

THE COURT: [Petitioner], you know, my function here today is to

either – is to either take this plea from you or not and

–

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[PETITIONER]: My –

THE COURT: I mean, that’s it. Now, if you want – if you don’t want

to take the plea and you want to go to trial, we’ll do

that.

. . . .

THE COURT: You know, it sounds to me, [Petitioner], like you’ve

got some serious questions about whether or not you

want to plead here, and I’m reluctant to take a plea

from somebody who has serious questions. Maybe

you need to – maybe you need to think about this [ ] a

little more.

[PETITIONER]: I’ll take – I’ll take the plea deal, sir.

THE COURT: Excuse me.

[PETITIONER]: I’ll take the plea deal.

THE COURT: You want to go forward with this?

[PETITIONER]: Yes, sir.

At the plea submission hearing, Petitioner testified that he did not graduate high

school but that he had obtained his GED while in custody. Petitioner responded that he

understood his rights and that he was waiving those rights freely and voluntarily. Petitioner

responded that no one had forced him, threatened him, or pressured him in any way to accept

the plea agreement. Petitioner responded that he was not satisfied with trial counsel’s

services. Trial counsel then proposed to the trial court that Petitioner be appointed new

counsel and not enter the pleas, and counsel stated that he “was surprised [Petitioner] got an

offer like [that], given the state of the evidence.” Petitioner responded, “I just said I wasn’t

satisfied with my lawyer. I didn’t say I don’t want to take the plea deal.” The trial court then

gave Petitioner another opportunity to decline the plea offer and stated, “[Petitioner], do you

want to go through with this plea or not?” Petitioner again responded that he wanted to

accept the plea offer:

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[PETITIONER]: I take the deal, sir. I just – I just said I wasn’t satisfied

with my lawyer. I mean, I keep it, you know, honest.

But, sir, I take –

THE COURT: Well, it’s not a question of whether or not you

personally like the individual. The question is

whether or not they’ve performed – they’ve performed

services on your behalf that are – that are appropriate

–

[PETITIONER]: Then – then –

THE COURT: – and sounds to me like he has.

[PETITIONER]: Yes, sir.

We conclude that Petitioner has failed to show that trial counsel’s performance was

deficient or that he was prejudiced by counsel’s alleged deficient performance. Petitioner

has not shown that he would not have pleaded guilty and insisted on going to trial had trial

counsel informed him of the only evidence that he claims counsel did not communicate, that

witnesses stated that the perpetrator wore sunglasses. Finally, we conclude that the evidence

does not preponderate against the trial court’s finding that Petitioner was not pressured by

trial counsel to accept the plea agreement. Petitioner is not entitled to relief.

CONCLUSION

For the foregoing reasons, the judgment of the post-conviction court is affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

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