# FILED
May 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MARCH 1998 SE SSION

NATHAN L. DRAPER, ) ) Appellant, ) No. 01C01-9706-CR-00225

) ) Davidson County v. ) ) Honorable Seth Norman, Judg e ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Brent Owen Horst John Knox Walkup 42 Rutledge Street Attorney General of Tennessee Nashville, TN 37201 and Clinton J. Morgan Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and Roger Moore Assistant District A

ttorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Nathan L. Draper , appeals as of right from the Da vidson County Criminal Cour

t’s denial of post-convic tion relief. He is presently in the custody of the Department of Correction ser ving a Range I sentenc e of ten years for his 1994 conviction upon a guilty plea for aggrav ated robbery, a Class B felony. The petitioner contends that he received the ineffective assistance of counsel resulting in his g uilty plea not being entered know ingly and voluntar

ily. He argues tha

t his trial counsel faile

d to discuss possible tri al strategy with him and failed to advise him that his ten-year sentence would run consecut ively to a sentence he was serving on pa role when he committed the present offense. We affirm the trial court’s denial of post-convictio n relief.
The record reflects that the petitioner and a codef endant were originally charged with especial ly aggravated r obbery, a Class A felony . The petitioner pled guil ty to the offense of aggravated robber y for an agreed Range I sentence of ten years.
At the post-conviction h earing, the petitioner tes tified that his counsel discussed the case with him only when he appeared in court. He conceded that his counsel told him that the vi ctim could not identify him fro m a lineup. The petitioner stated that although his counsel told him that the codef endant and the codefendant’s girlfriend had giv

en the police a statement implic ating the defendant, counsel did not discuss the details of the stat ements, whether the codefendant had been g iven a plea offer, or whether counsel conducted an indepen dent investigation. The petitioner said that counsel did not tell hi m that the robbery occurr ed six hours before he w as arrested for possession of the victim’ s stolen credit cards. He admitted that counsel discus sed with him how the codefendant’ s credibility coul d be attacked. The petitioner tes tified3

that counsel did not discuss any trial strategies and that he would not have pled guilty if trial strategy had been discussed with him.

Regarding the nature of the pl ea, the petitioner testified that he believed that the sentence was to be se rved concurrently with a sentence for whi ch he was on parole when the robbery occurred. He said that c ounsel told him that he woul d be released in no more than three y ears. He stated that he w ould not have pled guilt y had he known that his sentences would be served consec utively or that he w

ould not be released in approximately three years.

On cross-examination, t he petitioner conceded that his constitutional rights were careful ly explained to him by the trial court before he enter ed the guilty plea. He acknowledged that the trial court explaine d the elements of the charged offense and that he stated that he understood. He also acknowledged that th e court asked him whether the evidence ag ainst him had been explained to him and he said that it had. The petitioner testified that the tr ial court explained the sentencing ranges and the possible fines for especially aggravated robbery

and aggravated robber y. The defendant admitted that he stated at the gu ilty plea hearing t hat counsel had consulted with him before entering the plea and that he was satisfied with counsel’s representation. He said tha t he was aware that he could have received a much greater sentence because he had several prior felony convictions, including theft of a car, receiving s tolen pro perty, aggr avated ro bbery, ass ault with t he inten t to comm it robber y, breaking into a vehic

le, and selling a contr

olled substance. He stated th at he understood that especially aggravated robbery

was a more severe cr

ime than aggravated robbery , the offense to which he pled gui lty.

The petitioner acknowledg ed that the trial court rul ed against the motion to suppress filed by counsel, finding that a gun, ski mas k, and the victim’s cr edit cards4

located in the defendant’s car w ere seized pursuant to a s earch to which the petiti oner consented. He also acknowledged that he was aware that the codefendan t and his girlfriend were i n the car with him w hen he was stopped by the pol ice. However, the petitioner claimed that counse l could have investi gated the scene, given him the victim’s initial report, given him the s tatements of the witnesses, re viewed the statements of the codefenda nt and his girlfriend, and visited him in jail.

The petitioner’s counsel test ified that he negotiated a plea for a ggravated robbery and a Range I sentence of ten years. He stated that the petitione r was at least a Range II, multiple offender. He said that he had focused on negotiat ing a plea. The petitioner’s counsel test ified that he spoke to both the petiti oner and the prosecutor at each of the eight court appearances. He believed that the state had a very strong case against the petitioner, tho ugh consisting of circ umstantial evidence. He ex pressed the opinion that the defendant would be c onvicted if he went to tr ial and would receiv

e a sentence as a Range II offender.

The petitioner’s counsel testified that he learned of the evidence against the petitioner by rev

iewing the state’s fil e with the prosecutor’ s permission. He said tha t he reviewed sever

al documents, including an ex tensive police case r

eport, medical records, and statements. He s tated that his investig ation revealed that the v ictim was attacked by a black male w earing a ski mask ov

er his face and carrying a handgun. It showed that the victi m was beaten and robbed, requ iring that she be taken to the hospital to receive tr

eatment. The petitioner’s counsel testified that he learned that l ater that evening, the defendant, the codef endant, and the codefendant’s girlfriend were stopped at a ma rket in east Shelby Cou nty because they wer

e trying to purchase items with the credit cards

stolen from the victim. H e stated that all three w ere arrested, and the codefendant informed the police that ther e was a secret compartment u nder the dash behind the glove compartment of the def endant’s car in which the three were5

riding. He said that a

fter obtaining the defendant’s consent to search the car, the officers found in the secret compartment two ski masks and a pis tol consistent with those used during the robber y. The petitioner’s couns el testified that the codefendant and his girlfriend then gave a statement implicating the petitioner. He said that he also learned that there were no other witnesses to the crime and that the victim was unable to identify the petitioner as the robber. He stated that he sent th e petitioner a memorandum and, at one point, a complete copy of his file.
The petitioner’s counsel test ified that he filed a motion to suppres s the evidence seized pursu ant to the search of the defendant’s car , but the motion was denied. He said that the defendant nev er provided an alibi or

names of witnesses to be interviewed. The peti tioner’s counsel stated that he was aware that the petitioner had violated his parole con ditions, but he did not recal l discussing the effect of the petitioner’s parole v

iolation if he entered a guil ty plea. He said that he fully explained to the petitioner his elig ibility for release, including that the ultimate decision to release the petitioner rested wit h the Board of Paroles and that the r elease eligibility

could be adjusted downward becaus e of prison overcrowd ing. He testified that he tol d the petitioner that it was not guaranteed that he would be released when he had serv ed thirty percent of his sent ence. The petitioner’s counsel admitted that the petitioner w as reluctant to plead guilty because the petitioner believed that the circumstant ial evidence was not sufficient for a conv iction.

On cross-examination, t he petitioner’s counsel tes tified that he could not remember whether he talked to the petitioner about an alterna te theory if he proceeded to trial. He admitted that it was possible that the codefendant committed the robbery because he was a passenger in the car. He conceded that there was no evidence linking the gun and the mask to the crime. The petitioner’s counsel testif ied that he did not interview the codefendant, the codefend ant’s girlfriend or the victim. He also6

conceded that he did not sign t he guilty plea submiss ion form certifying that he had explained the plea to the petitioner. The petitioner’s c ounsel believed that he w as successful in plea negotiati ons because there was some q uestion as to whether the injuries suffered by the v ictim constituted serious bodily injury.
The trial court denied the petitioner post-convicti on relief. It held that the petitioner failed to show t hat he received the ineffectiv e assistance of counsel. It found that the petitioner discuss ed with his counsel the facts of the case before entering the plea. The trial court also found that the trial court w as extremely thoroug h in explaining to the defendant his rights before a ccepting his plea.
On appeal, th e petitioner challenges

his convi ctions based

upon claims that he received ineffectiv e assistance of counsel that caus ed him to enter unknowing and involu ntary guilt y pleas. Un der the Si xth Amend ment, whe n a claim o f ineff ective assistance of counsel is made, th e burden is upon the petitioner to show (1) that counsel's p erformance w as deficient and (2) that the deficienc

y was pre

judicial i n terms of rendering a reasonable prob ability that the result of the trial was unrel iable or the proceedings fundamentally unfair

. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strickland standard has been applied, as w ell, to the right to counsel under Article I, Section 9 of the Tennessee Constituti on. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989). Relative to a claim that the ineffective assi stance of counsel resulted in an inv alid guilty plea, a petitioner must prove that counsel performed deficiently and that but for couns el’s errors, the petiti oner would not have pled guilty and would have insisted upon going to trial. Hill v. Lockhart , 464 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).7 In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court decided that attorneys shoul d be held to the general standar d of whether the servic es rendered were withi n the range of competence demanded of attorney s in criminal cases. Further, the court stated that the range of competence w as to be measured by the duties and criteria se t forth in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing c

ounsel's conduct, a "fair asses sment of attorney performance req uires that every effort be made to eliminate the distorting eff ects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to ev aluate the conduct from counsel's perspective at the time." Strickland v. Washington , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982) (counsel's conduct will not be measured by "20-20 hindsight"). Thus, the fa ct that a particular strategy or tactic failed o r even hurt the def ense doe s not, alo ne, supp ort a claim of inef fective assistance. Deference is made t o trial strategy o r tactical choices if they are informed ones based upon adequate preparati on. See Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201.

The burden was on the petitioner in the trial court to pr

ove his allegations that would entitle him to r elief by clear and conv incing evidence. T.C. A. § 40-30-210(f). On appeal, we are bound by the trial court’s finding s unless we conclude that the evidence preponderates aga inst those findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The petitioner has the burd en of illustrating how the evidence preponderates against the ju dgment entered. Id

.

In this case, the petitioner has failed to meet his burden of show ing that the evidence preponderates against the judgment entered with respect to either of his claims of ineffective assistanc e of counsel. First, the petitioner argues that tria l counsel was ineffective for failing to discuss any trial

strategy with the petitioner. He argues that8

the most obvious defense avail able to the petitioner that shoul d have been discussed with him was that the codefendant actually committed the r obbery without the petitioner’s knowledg e and that the codefendant and his gir lfriend implicated the petitioner to avoid pros ecution. At the post-conv iction hearing, the petit ioner’s counsel testified that the state had a v ery substantial case ag ainst the petitioner. He bel ieved that the petitioner would have been convicted and w ould have received a g reater sentence if he went to trial . He said that as a result he focused on plea negotiations. As acknowledged by the petitioner at the post-conviction hearing and on appeal, his trial counsel negotiated a very favorable pl ea bargain. We do not use the benefit of hindsight to second-gues s trial strategy

by counsel and critic

ize trial counsel’s

tactical decisions. Hellard , 629 S.W.2d at 9. The petitioner has failed to demonstr ate deficient performance by counsel.

The petitioner also has failed to establish that counsel w as ineffective by failing to advise the petitioner the effect of his pa role violation upon his sentence. This claim is not supported by the record. Though the petiti oner claimed that trial cou nsel told him that his sentences w ould run concurrently, the petitioner’s trial counsel testified that he did not remember discuss ing the effect of the petitioner’s pa role violation on the sentence imposed. Also, the petitioner’s trial counsel stated th at he explained his eligibilty for release and told him that it was not guaranteed that he would be released in three years as the decis ion to release the petitioner ultimately rested w

ith the Board of Paroles. The trial court obviously accredi ted the testimony of the petitioner ’s trial counsel. In this respect, this court has held that tr ial counsel is not ineffectiv e for failing to inform the petitioner that a g uilty plea could lead to revocation of parole and the imposition of consecutive s entencing. Bailey v. State , 924 S.W.2d 918, 918-19 (Tenn. Crim. App. 1995).9 In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

Joseph M. Tipton, Judge

CONCUR:

David H. Welles, Judge

Joe G. Riley, Judge