### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs May 10, 2 00 6

RICKY B UTLER v . STATE O F TENNESSE E

Appeal f rom the Circ uit Court for Maury County No. 11825 Jim T. Hamilton, Judge

No. M2004- 01543-CCA -R3-P C - F iled Jul y 31, 2006

The appellant, Ricky Butler
, filed a petition to rehe ar in acc ordanc e with Rule 39 of the Tenne ssee Rules of Appellate Procedur e on J une 29, 2006, following the re lease of t he opini on of t his Court

on J une 27, 2006. The opinion of this Court dismiss ed th e p eti tioner’s appea l beca use the appellant’ s notice of a

ppeal wa s filed outside the thirty day time limi t.

The g rant or denial of a petition to rehe ar r emains solely in the discretion of this Court. Howeve r, Rule 39 of the Tenne ssee Rules of Appellate Procedur e provides gu i d an ce as to the “cha rac ter of

rea sons that will be considere d” b y t h e C o u rt in making its deter mination. Such circ umstances include the following : (1) the court’s opinion incorre ctly states the materia l fac ts established by the evidence an d s et fo rth in the rec ord; (2) the court’s opinion is in conflict with a statute, prior decision, or other principle of law; (3) the court’s opinion overlooks or misapprehe nds a materia l fac t

or proposition of law; and (4) the court’s opinion relies upon matters of fac t or law upon which the parties have not been hear d and that are open to rea sonable dispute. See Tenn. R. App. P. 39(a) ; see also Advisory Comm’n Comments, Tenn. R. App. P. 39. A petition to rehe ar is intended to call attention of the Court to matters overlooke d, not things wh i ch counsel supposes wer e improperly decide d afte r full consideration. Clover Bottom Hosp. & Sch. v. Townsend, 513 S.W .2d 505, 508 (Tenn. 19 7 4). Fur

ther, a petition for rehe aring which mere ly rea rg ues the appellant’ s orig inal position will not be g rante d. New J erse y Z inc Co. v. Cole, 532 S.W .2d 246, 253 (Tenn. 1975); State

v. Thomas Dillon, No. 03C01-9304-CR-00124, 1994 WL 615748 (Tenn. Crim. App., at Knoxvi lle, Nov. 7, 1994); see also Tenn. R. App. P. 39.

The appellant arg ues t h at t his Court’s dismiss al of his appea l was incorre ct beca use this Court g rante d a Motion to Acc ept L ate Filed Notice of Appea l on J uly 15, 2005. We have revie wed

our opinion and the rec ord. Appar ently m i s s i n g fr o m the Court’s file in this case when it was orig inally g iven to the panel was indeed an order from this Court g ranting the appellant’ s reque st to file a late notice of appea l. There fore
, we will g rant the appellant’ s p eti tion to rehe ar and will addre ss the appellant’ s issues on the merits.Tenn. R. App . P . 3 Appeal as of Right; P etition to Re hear G ranted; Judgm ent of the Trial Court Affi rm ed.

J E R R Y L

. S M I T H , J
., delivere d the opinion of the court, in which G A R Y R. W A D E , P.J
., and A L A N E. G L E N N , J ., joined.

Dwig ht E. Scott, Nashville, Tennesse e for the appe llant, Ricky

Butler

.

Paul G. Summers, Attorney Gene ral and Reporter ; Br ent C. Cherry
, Assistant Attorney Gene ral; Mike Bottoms, District Attorney Gene ral; and L arr y Ni ck el l
, Assistant District Attorney Gene ral, for the a ppellee, State of

Tenne ssee.

OP INION ON P ETIT ION TO REH EAR

The petitioner was indicted for rape of a child and ag g rava ted sexual battery

. He enter ed into

a g uilty plea for two counts of ag g rava ted sexual batter y

. As p ar t o f the plea ag ree ment, the petitioner was to serve two concur rent eig ht-y ear sentenc es which would also be serve d concur rently
to a previous four- y ear sentenc e. The petitioner filed a petition for post-conviction relief arg uing that his plea was unknowing and involuntary and that he was aff orded the ineffec t i v e as s istance of counsel. The post-conviction cour t held a hea

ring and denie d the petition. The petitioner appe als this decision. We affirm the de cision of the post-convic tion court.

F ACTUAL BACK GR OUND

The petitioner’s written statement g iven to the police upon his arr est s t at ed the events as follows:

On Sunday around 12:00 in the afte rnoon I was around to [si c] littl e g irls around 11 and 13. We was w atching a movie whe n I felt like doing it. I then ask [sic] one of them to come and r

ub me af ter I saw see [si c] was intere sted afte r she talke d to her sister and she wanted to. I let both of them touch me, Then I tried to insert into them when I couldn’t, I pumped their Ba ckside. I put my p en i s in the cra ck of their but [si c]. I rub their vag ina and but [si c] chee ks. We hear d somebody comin[g] so thats [si c] why we stop.

-2-The petiti oner was charg ed with rape of a child an d aggr av at ed sexual battery

. He ag ree d

with the District At t o rn ey ’s o ffice in Maury County to enter an Alford plea to two counts of 1
ag g rava ted sexual battery . As part of his plea ag ree ment, the petitioner would serve eig ht y ear s at 100 perc ent for eac h count to run concur rently and also run concur rently to a sentenc e he was serving for a nother off ense. The petitioner’s plea was e ntere d on Dec ember 17, 2001.

The petitioner filed a petition for post-conviction relief on September 18, 2002, arg uing that his plea was not enter ed voluntarily and that he was aff orded the ineffe ctive assistance of counsel. The post-conviction court held a hearing on May 8, 2003, and entered an order the nex t day
, May 9, 2003, deny ing the petition. The petitioner filed a pro se notice of appe al on J une 17, 2004.

P ost-c onviction Hearing

The only two witnesses at the post-conviction hear ing wer e trial counsel and the petitioner. Trial counsel stated that the petitioner had a history of mental health problems. Her office
, the public defe nder’ s office
, had repr esente d the petitioner on previous occa sions. For this trial, trial counsel had difficulty finding the victims beca use they had moved. She decide d not to sear ch for the victims

so as not to “roc k the boat.” Tria l counsel thought that the State might not be able to locate the victims, and she thought it would be better for the petitioner if his counsel was not the source of their location. She also spoke with a witness whose name the petitioner g ave to her, and she spoke with the investig ating office r. Tria l counsel also filed f or and rec eived discovery . The State submitted a written offe r for a plea that was to expire on De ce m b er 14. The trial was set for Dece mber 17. Howeve r, trial counsel was unable to speak with the petitioner befor e the trial date. There fore
, she
prese nted the offe r to the petitioner immediately befor e trial. She stated that she told the petitioner that it wa s a fair offe r. There had been a motion to suppress the petitioner’s written statement that

was schedule d immediately before the trial. The petitioner’s plea was acc epted by the trial court befor e the suppression hear ing beg an. Theref ore, there was no suppression hear ing. At the plea colloquy
, the petitioner voiced reluc tance to acc ept the plea and stated that he wanted to g o to trial. Trial counsel did not intervene at this time, beca use the petitioner was speaking with the trial court. The pe titioner later state d multipl e times that he wa nted to acc ept the plea

.

The petitioner also testified at the post-conviction hear in g

. T h e p e ti ti o n e r has been diag nosed

as bipolar and schizophrenic. He was on medication at the time he made his plea. The medication

s l o ws down his thinking, and he has a harde r time understanding things. Howeve r, he d i d understand what was g oing on at the post-conviction hea ring during his testimony

. He stated that he thought trial counsel was do i n g a go od job. He did not have any conce rns that she was not investiga ting en o u g h. He did not want to plead g uilty beca use he did not want to serve the eig ht
y ear s they wer e g oing to g ive him. He understood the sentenc e structure that eff ectively
, he was only
g oing to serve four additional y ear s on top of a f our-y ear sentenc e for

his probation violation. He

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S u p r e m e C o u r t d i s c u s s e d t h e r i g h t o f a n a c c u s e d t o p l e a d g u i l t y i n h i s b e s t i n t e r e s t w h i l e p r o f e s s i n g h i s a c t u a l i n n o c e n c e

.

-3-decide d to take the plea beca use he was scar ed of a potential thirty -seve n y ear sentenc e had he g one to trial and been convicted of the orig inal char g es. He stated that he did write t h e statement confe ssing to the crime, but he wrote down wh at t h e d i strict attorney told him to write. The petitioner stated t h at the district attorney offe red to g et him mental help instead of jail time if he wrote the statement. When asked if he was coer ced to acc ept t he pl ea, the petitioner st ated that it

was h i s judgme nt to take the plea. He stated that he brought thi s petition beca use he wants t o g et out of prison and that completing eig ht y ear s is hard. He is still unsure about the wisdom of enter ing into the plea bec ause he should go to trial a nd “g et his innocenc e.”

ANALYSIS

The petition er ar g ues that his plea was involuntary
, that he was aff orded the ineffe ctive assi stance of counsel and that the post-conviction court’s order did not meet the require ment s o f Tenne ssee Code Annotated section 40-30-111. The State arg ues that the plea was voluntary and the petitioner re ceive d eff

ective a ssistance of c ounsel.

Tennessee Code Annotate d Section 40-30-111(b)

The pe titioner arg ues that the post-c onviction court’s orde r and me morandum do not meet the require ments under Tenne ssee Code Annotated secti on 40-30-111( b). Tenne ssee Code Annotated se ction 40-30-111( b) states:

Upon the fi nal dispositi on of ever y petition, the court shall enter a final order
, and except wher e proce eding s for delay ed appea l are allowed, shall set forth in the order

or a written memorandu m o f t h e case all g rounds prese nted, and shall state the finding s of fa ct and c onclusions of law with re g ard to e ach suc h g round.

I t is true that the post-conviction court’s order and memorandum are some wh at meag er. Howeve r, the post-conviction court did make oral finding s of fac t and conclusions of law at the conclusion of the post-conviction hear ing. We have stated on previous occa sions that the inclusion of oral finding s by a post-conviction court is sufficie nt to rende r such an err or harmless. See State

v. Hig g ins, 729 S.W .2d 288, 290-91 (Tenn. Crim. App. 1987), perm. app. denied, (Tenn. Mar. 30, 1987); State v. Swanson, 680 S.W .2d 487, 489 (Tenn. Crim. App. 1984), perm. app. denied, (Tenn. Sept. 12, 1984).

Stand ard of Review

The post-conviction cour t ’s finding s of fac t are conclusive on appea l unless the evidenc e preponde rate s otherwise. See State v. Bur ns, 6 S.W .3d 453, 461 (Tenn. 1999). During our revie w of the issue ra ised, we w ill afford those f indings of f

act the w eig ht of a jury verdic t, and this court is bound by the court’s finding s unless the evid en ce i n the rec ord preponde rate s ag ainst those

-4-finding s. 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 rew eig h or re- evalua te the evi d ence, nor substitut e its infere nces for those draw n by t h e post-conviction court. See State v. Honey cutt, 54 S.W .3d 762, 766 (Tenn. 2001). Howeve r, the post-conviction court’s conclusions of law are revie wed under a purely de novo standard with no presumption of corr ectne ss. See Fields v. State, 40 S.W .3d 450, 458 (Tenn. 2001)

.

The post-conviction co u rt made the following finding s at the conclusion of the postconviction hea

ring :

I ’m g oing to dismiss the PCR for these rea sons:

During the time that the Public Def ender ’s Offic e repr esente d Mr. Butler
, not only on these char g es, but on some prior, unrela ted char g es of burg lary , and I think
may be a pr obation revoc ation.

Mr. Butler was evalua

ted twice; that is, he had two mental evalua tions. Both of those found him capa

ble of standing trial and assisting in his d ef en se, and both found that a de fense of insanity would not stand in his cases.

Now, Mr. Butler has signe d a confe ssion, wher e he admits in his confe ssion that he did these things to these two littl e g irls. For want of a better term, Mr. Butler

was g iven a brother- in-law deal by the State, when they reduc ed these ch arge s to ag g rava ted sexual battery
, I think it was – y es; ag g rava ted sexual battery – and allowing him to enter a plea of guilty to that reduc ed cha rg e and ta ke an eig ht-y ear sentenc e.

And i f I rea d it corr ectly
, on eac h char g e, thos e s en t ences to be concurre nt,

no t o nly with eac h other, but also with another case number 11,

. . . let me get that rig ht for the rec ord. Not only was h e al l o we d to have these two eig ht-y ear sentenc e[s] be concur

rent one with the other, but a lso concur rent with c ase number 11, 117, which I don’t have that file in front of me, but I have to assume that was the burg lary case wher e his probation had been revoke d and he was then serving a sentenc e, and the eig ht-y ear sentenc es that he g ot in these case s, he’s serving – Mr. Butler
, y ou are serving those at the same time that y ou are serving another sentenc e that is unrelated to this.

What y ou have, in eff

ect, is a deal wher e y ou don’t have to serve any time for these two pleas that y ou enter ed in these two case s. You are serving these two eig hty ea r sentenc e[s] at the same time y ou are serving the sentenc es that have b ee n imposed on y ou for violation of y our proba tion, which I believe is burg lary

. . . .

-5-. . . .
Well, theft or a theft-ty

pe char g e. So what y ou’ve g ot here
, y ou are not doing
any time on these sex offe nses. You are serving these eig ht-y ea r s en t en ce s at the

same time y ou are serving these sentenc es for y our theft char g es. Do y ou understand that?

. . . .

I t’s almost a situation wher e the Court is almost obliga ted to prot ec t y ou ag ainst y ourself, for fea

r that y ou might g et a new trial on these cha rge s an d g et convicted, and leave this courtroom with an horre ndous sentenc e, wher eas rig ht now, in three- and-a -half y ear s, y ou would have se rved a ll of these sente nces.

Plus, I just don’t find any

thing wrong with either. I ’ve rea d the transcr ipt on the plea that the Court took. I will have to a dmit this, that I ’m prone to do. Ma y be I shouldn’t say

so y ou would be taking an aw ful cha nce if y ou went to trial.

Howeve r, I don’t know but what a Circuit J udg e doesn’t owe that duty to a defe ndant who has be en off ere d a dea l.

And then, wher e the Court is otherwise satisfied with ever y thing, and then halfwa y throug h the plea, Mr . Butler decide he doesn’t want to do this; he wants to g o to trial, and in the fac e of two mental eva luations that found him competent and a conf ession.

We didn’t have a suppression hear ing on it, but I think we can all take judicial notice that suppression motions – y ou’ve g ot to have an almost perf ect set of fac ts to win one of those. And when I say win one of those things, to g et the Court to g rant an [sic] suppression.

We have a s Ex hibit 3 in t his case the Miranda r ights that we re g iven to Mr. Butler
, befor e he g ave this statement. I j u s t d o n ’t find any thing wrong with what happene d to Mr. Butler

. I n fac t, I think Mr. Butler was handed one of the better deals that I ’ve se en, since I ’ve be en sitting up he re.

So for these rea sons – and I think [t rial counsel] did ever y thing t h at co u l d possibly be done. As far as the business of the trial date coming and g oing, it’s my understanding from her testimony that she was advised that, we’ ll make this offe r to
y ou. We’re not g oing to bring the jury in. I f we don’t settle it today
, then y ou’ll be
prepa red to g o to trial in the very near future, which would have been a delay of very littl e time, if any , if this plea ag ree ment had not bee n acc epted by Mr. B utler.

-6-So, if y ou’ll draw tha t order, I ’m g oing to ove rrule y our petition.

Involu ntary G uilty Plea

When evalua ting the knowing and volun tary nature of a g uilty plea, the United States Supreme Court has held that “[t] he standard was and rema ins whether the plea repr esents a voluntary and intelligent choice among the alterna tive course s of action open to the d efe ndant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). The c ourt revie wing the voluntariness of a g uilty plea
must look to the totality of the circ umstances. See S t ate v. Turner
, 191 S.W .2d 346, 353 (Tenn. Crim. App. 1995); see also Chamberlain v. State, 815 S.W .2d 534, 542 (Tenn. Crim. App. 1990). Specifica lly
, a revie wing court must consider “the rela tive intelligenc e of the defe ndant; the deg ree of his familiarity with criminal proce eding s; whether he was repr esente d by competent counsel and had the opportunity to c onfer with c ounsel about the options a vailable to him; the extent of advice from counse l and the court conce rning the char g es ag ainst him; and the rea sons f or his decision to plead g uilty
, including a desire to avoid a g rea ter penalty t h at m i g ht result from a jury trial. Bla nkenship v. State, 858 S.W .2d 897, 904 (Tenn. 1993)

.

The petitioner arg ues that his plea was involuntary and unk n o wi ng beca use he was not prese nted with the plea offe r until the morning of trial and beca use he was on anti-psy chotic medication at the time he acc epted the ple a.

The sole evidenc e at the post-conviction hear ing conce rning the petitioner’s medication and its effe cts was the pe titioner’s testimony

. I n Robert A. Hay den v. State, No. M2004-00856-CCAR3-PC, 2004 WL 2853477 (Tenn. Crim. App., at Nashville, Dec

. 10, 2004), perm. ap p

. d en ied, (Tenn. Mar. 28, 2005), a petitioner arg ued that his g uilty plea h ad b een involuntary beca use of medication he w as taking at the time of his ple a. Robert A. Hay den, 2004 WL 2853477, at *6. I n that case , the petit ioner submi tted an ex cer pt from the Phy sician’s Desk Refer ence as evidence of the eff ects of the medication. I d. There was no expert proof as to why the petitioner was taking the medication, nor was there proof as to the side-ef fec ts of the medication. I d. We held that this proof alone was not sufficie nt to establish that the medication would rende r the petition er ’s gu i l t y plea involuntary

. I d. The same can be s aid for this case. The only evidenc e presented concer ning the ty pe of medication and its side-ef fec ts was from the petitioner’s testi m o n y

. This is not sufficie nt evidenc e for

us to conclude tha t his guilty plea wa s involuntary

beca use of his medica

tion.

The fac t that the plea was prese nted to him the morning o f t h e t ri al does not support an arg ument that his plea was not voluntary and knowing

. Although the petitioner did vacillate betwee n g oing to trial and acc epting the plea, the final decision was to acc ept the plea. The petitioner testified that the judgme nt to acc ept the plea was his own. He als o testified that he was not coer ced into taking the plea. He specific ally stated that the rea son he acc epted the plea was to avoid a potential thirty -seve n-y ear sentenc e. He also stated that the rea son he wanted post-conviction relief is beca use he did not even want to se rve the eig ht y ear s he rec eived as part of the plea barg ain. The evidenc e

-7-at the post-conviction hear ing supports the post-conviction c o u r t’ s d e te r mi n a ti o n that the petitioner’s plea wa s voluntary

and knowing

.

There fore , this iss ue is without merit.

Ef fective Assistance of Cou nsel

When a pet i t i oner seeks post-conviction relief on the basis of ineffe ctive assistance of counsel, the petitioner bear s the burden of showing that (a) the service s rende red by trial counsel

wer e defic ient and (b) that the defic ient perf ormanc e wa s p re

j u d i cial. See Powers v. State, 942 S.W .2d 551, 558 (Tenn. Crim. App. 1996). I n order to demonstrate defic ient perf orm an ce , the petitioner must show that the service s rende red or the advice g iven was below “the rang e of competenc e demande d of attorney s in crimi n al case s.” Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn.1975) . “B eca

use a pe titioner must establish both prong s of t he test to preva il on a claim of ineffe ctive assistance of counsel, failure to prove either defic ient perf ormanc e or resulting prejudice provides a suf

ficient ba sis to deny

relief on the claim.” H enley , 960 S.W .2d at 580.

As noted above, this Court will aff ord the post-conviction court’s fac t u al finding s a p re s umption of correc tness, rende ring them conclusive on appea l unless the record preponder ates ag ainst the court' s finding s. See id. at 578. Howeve r, our supreme court has “dete rmined that issues of defic ient perf

ormanc e by counsel and possible prejudice to the defe nse are mix ed questions of law and fac t

. . .; thus, [appellate] revie w of [t hese is s u es] is de novo” with no presumption of

corr ectne ss. State v. Burns, 6 S.W.3d 453, 461 (Tenn.1999).

Fur thermore , on claims of inef fec tive assistance of counsel, the petitioner is not entitled to the benef it of hindsight. See Adkins v. State, 911 S.W .2d 334, 347 (Tenn. Crim. App. 1994). This Court may

not second-g uess a r easona bly -base d trial strateg y , and we cannot g rant relief based on

a sound, but unsucce s s fu l
, t ac tical decision made during the course of the proce eding s. See id. Ho weve r, such defe renc e to the tactica l decisions of counsel applies only if counsel mak es t h o s e decisions afte r adequate prepa ration for the case

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

Once a guil t y p lea has been entere d, eff ectivene ss of counsel is rele vant onl y to the ex tent that it aff ects the voluntariness of the plea. I n this respe ct, such claims of ineffe cti v e as s i s t an ce

nece ssarily implicate the principle that g uilty pleas be voluntarily and intelligently made. See Hill

v. L ockhar

t, 474 U.S. 52, 56 (1985) (c i t i n g Alford, 400 U.S. at 31). As stated above, in order to

succe ssfully challeng e the eff ectivene ss of counsel, the petitioner must de monstrate that counsel’s
repr esenta tion fell below the rang e of competenc e demande d o f attorney s in criminal case s. See Ba x ter, 523 S.W .2d at 936. Under Strickland v. Washington, 466 U.S. 668, 694 (1984)
, the
p e ti ti o ner must establish: (1) defic ient repr esenta tion; and (2) pr e ju d ic e r e s u lt in g f

r o m th e d e f

ic ie n c y

. Howeve r, in the context of a g uilty plea, to satisfy the second prong of Strickland, the petitioner must show that “ther e is a rea sonable probability that, but for counsel’s err ors, he would not have pleade d

-8-g uilty and would have insisted on g oing to trial.” Hill, 474 U.S. at 59; see also Walton v. State, 966

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

.

When analy

zing a g uilty plea, we look to the fede ral s t an d ar d announce d in Boy kin v. Alabama
, 395 U.S. 238 (1969), and the State standard set out in State v. Macke y , 553 S.W .2d 337 (Tenn.1977)

. State v. Pe t t u s , 9 8 6 S .W.2d 540, 542 (Tenn.1999)

. I n Boy kin, the United States Supreme Court held that there must be an aff irmative showing in the trial court that a g uilty plea was voluntarily and knowing ly g iven befor e it can be acc epted. Boy kin, 395 U.S. at 242. Simi larly
, our Tenne ssee Supreme Court in Macke y require d an aff irmative showing of a voluntary and knowledg eable g uilty plea, namely
, that the defe ndant has been made awa re of the signific ant conseque nces of

such a ple a. Pettus, 986 S.W .2d at 542.

A plea is not “voluntary ” if it results from ignor ance , misunderstanding
, coer cion, inducements, or thr eats. B lankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The tria l court must determine if the g uilty plea is “knowing ” by questioning the defe ndant to make sure he fully understands the plea and its conseque nces. Pettus, 986 S.W .2d at 542; Bla nkenship, 858 S.W .2d at 904.

On appe al, the petitioner arg ues that his trial counsel f ailed to investig ate a

nd consult with him. Trial counsel testified t hat s h e located t he witness he indi cate d was present at the s cene and discovere d that the victims h ad m o v ed an d wer e not rea dily available

. She also testified that she visited him twice while he was incar cer ated and she confe rre d with him conce rning the g uilty plea offe r befor e trial. The petit i o n er h i m self testified at the post-conviction hear ing that he had no problems with the investiga tion completed by his trial counsel. He stated that the rea son he acc epted the plea was beca

use of his fea

r of a potential thirty -seve n-y ear sentenc e. The post-conviction court’s deter

mination that there was no defic ient perf ormanc e on the part of trial counsel is supported by the rec ord. I n addition, even if trial counsel’s perf ormanc e was defic ient, it does not appea r that the petitioner would ha ve not pled g uilty and g one to trial.

There fore , this iss ue is without merit.

CONCLUSION

For the fore g oing r easons, we aff irm the judg ment of the post-c onviction court.

___________________________________ J ERRY L . SMI TH, JUDGE

-9-