# FILED

December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE SEPTEMBER 1997 SESSION

ROGER LEE ACUFF, ) No. 03C01-9611-CR-00436 ) Appellant ) ) HAMILTON CO UNTY V. ) ) HON. STEPHEN M. BEVIL, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction) ) )

For the Appellant: For the Appellee: Neal Thompson John Knox Walkup 615 Lindsay Street Attorney General and Repor ter Suite 150 Chattanooga, TN 37403 Peter M. Coughlan Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493

William H. Cox, III District Attorney General Rebecca J. Stern Assistant District A

ttorney 600 Market Street Suite 310 Chattanooga, TN 37402

OPINION FILED: ___________________

AFFIRMED

William M. Barker, Judge2 OPINION
The appellant, Roger Lee Acuff, appeals as of right from the judgment of the Hamilton County Crimi nal Court denying his petition for post-convic tion relief. On appeal, appellant contends that he r eceived the ineffective assi stance of counsel and that his guilty plea

was involuntary . Finding that the evi dence does not preponderate agains t the tr ial cou rt’s ju dgment, we affir m the deni al of rel ief. On February 18, 1994, while on trustee status at a work release center in Chattanooga, appellant escaped from his work detail and fled to Knoxville. He w as recaptured thirty-si

x (36) hours later. At the time of his escape, appellant was serving a twenty-eight (

28) year sentence for second degree murder and robbery . He was later indicted on one count of felony escape. Pursuant to a plea ag reement, appellant pled guilty to felony

escape with an agreed s entence of six (6) year

s as a Range III persistent offender. Although the plea agreeme nt reflected the maximum sentence within the range for the offense, it permitted appellant to be se ntenced one classification lower

than the career offender status for w hich he qualified. On September 15, 1994, the trial cour t accepted appellant’s gui lty plea and sentenced him accordingly. On July 25, 1995, appellant fil ed a pro se post-conviction petit ion alleging that his plea was invol untary and that he receiv ed the ineffective assistance of cou nsel. The petition was amended after the appoi ntment of counsel. The trial court held an evidentiary hearing

on appellant’s claims and dete rmined them to be without meri t. It found that appellant received the effective assistance of counsel a nd that his plea was voluntary and knowin g. In reviewing the appellant’s Sixth Amendment cl aim of ineffective assistance of counsel, this Court must det ermine whether the advi ce given or serv ices rendered by the attorney are wit hin the range of competence demanded of attorn eys in criminal

cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of3

ineffective counsel, an appellant “must show that counsel’ s representation fell below an objective standard of reas onableness” and that this performanc e prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687-88, 692, 694, 104 S .Ct. 2052, 2064, 2067-68, 80 L.Ed.2d 674 (1984); Best v. State , 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). The inabili ty to prove either pr

ong results in failure of the claim. See Strickland , 466 U.S. at 697. The most difficult burden on an appellant i s demonstrating the prejudi ce he has suffered by the alleged error. In order to prevail on that ground, the appellant m ust show a reasonable probabil ity that but for counsel’s error the result of the proc eeding would have been different. Id. In the context of a guilty plea, the appellant must show that but for c ounsel’s errors he wo uld not h ave pled gu ilty and wou ld have insisted on going to tr

ial. Hill v. Lockhart , 474 U.S. 52, 53, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). See also Wade v. State , 914 S.W.2d 97, 101 (Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1995); Wilson v. State , 899 S.W.2d 648, 653 (Tenn. Crim. App. 1994), perm. app. denied (Tenn. 1995). In order to sustain his post-conviction petition, the appellant must prove his allega tions of fact by clear a nd convincing

eviden ce. Tenn . Code An n. §40-3 0-210(f) (Supp. 1996). Upon revi ew, this Court cannot r e-weigh or re-ev

aluate the evidence. We give deference to questions about the cr edibility of the wit nesses, the weight and value to be given thei r testimony, and the factual i ssues raised by the ev idence as they are resolved by

the trial court. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Furthermore, the factu al findings of the trial cour t are conclusive on appeal unless the evidence pr eponderates against the judg ment. Id. See also Davis v. State , 912 S.W.2d 689, 697 (Tenn. 1995) (citations omitte d); Cooper v. State , 849 S.W.2d 744, 746 (T enn. 1993) (citation omitted). Appellant first contends that hi s counsel was ineffectiv e for failing to investi gate the defense of necessity. At the ev identiary hearing, appellant testified that he escaped from the work releas e center in order to help a p regnant woman he knew1 In fact, this particular ground of inef fective assistance rel ative t o the necessit

y defense was not included i n either the origi nal or amended peti tions. 4 whose life was in danger because she was being beaten by her boyfriend. He testified that he believed he ex plained these circumstances to counsel. Counsel, on the other hand, testified that appell ant merely told her that he “was out on pass on trustee job and walked off the jobsite” and provided no other de tails. He never told her about this woman he intended to help. As a result, she knew of no facts to support a defense of necessity. E ven had she been armed with such information, counsel stated her doubts about the utility of such a def ense under those circumstances. Crediting counsel’s testimony, the trial court found that app ellant did not inform counsel of any factual ci rcumstances to support the defense of nec essity and she was not ineffective i n that regard. The trial court also alluded to the futil ity of that defense in appellant’s case. Upon review, w

e too are unable to say that c ounsel was ineffective for fail ing to investigate a defense of whi ch she was unaware. Of course, counsel in a cri minal case has an obligation to i nvestigate all factual a nd legal defenses. Baxter v. Rose , 523 S.W.2d 930, 933 (Tenn. 1975). However, w here a client does not cooperat e by providing counsel w

ith pertinent facts and circumstances, counsel cannot be ex pected to hypothesize a possi ble defense. Other proof in the record before us lends support to the trial court’s credibility determination. Several l etters appellant wrote, which were a part of counsel’s file, reflect appellant’s repeated claim that he merely “w alked off the jobsite.” Appellant provided the same recitati on of facts in his original petition. Appellant’s test imony at the evidentiary heari ng was the first mention o f a friend who needed assistance. 1 As a result, appellant’s testimony failed to provide clear and convincing proof of co unsel’s deficiency. Appellant also complains that counsel failed to meet with hi m adequately. However, his accounts were inconsistent in that respect. Appellant’s pro se petition5

stated that he met with counsel twice for about five minutes each. At th e evidentiary hearing, he first testified that counsel only met with him on one occasion at the j ail for approximately five mi nutes. Later in his testimony, appellant stated that counsel talked with him three ti mes before he entered his plea. Counsel testified that the day she spoke to appellant at the j ail, the meeting lasted much longer than fiv e minutes. At that meeting, she discussed appellant’s pri or criminal record and he ack nowledged at least fiv

e prior felonies. They als o discussed information he provided on a standard questionnaire used by the public defender’s office. She further testified that she listened to the transcript of appellant’s preliminary hearing. Prior to enter

ing the plea, counsel testi fied that she and the appellant discussed his rights , specifically the ri ght to a jury trial and his prior record for purposes of enhancement. At the guilty plea hear

ing, appellant stated that he was satisfied with c ounsel and that there was nothing more counsel should have done to prepare his case. Considering appellant’s statements at the guilty plea hearing and the testimony at the evidentiary hearing, the trial court determined that counsel fully and adequately represented her client and th at there was nothing that she failed to do. That determination endorsed counsel’ s account of her activiti es and we must defer to the trial court’s resol ution of the contradictory t estimony. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Finally, appe llant al leges t hat coun sel took advant age of th reats on

his lif e made while in jail by insisting that appellant plead guilty. He testified that while confined in the Hamilton County Jail numerous inmates threatene d his life. Appellant stated that on one occasion, someone i njected him with battery acid in an attempt to kill him. As a result, he was interested in pl eading guilty as q uickly as possible s o that he would be returned to pri son. Counsel testified that appellant did tell her he was di ssatisfied with the conditions at the Hamilton C ounty Jail. Appellant al so told her that his life w as being6

threatened, but failed to give any specific details, such as being injected with battery acid. Counsel also stated that appellant told her he w anted to dispose of the case as soon as possible and encouraged her to plea bargain with the district attorney. Letters that appellant wrote to cou nsel reflect that desire and appellant admitted at the evidentiary hearing

that he gave counsel that directive. The trial court found that appellant’s plea was v

oluntarily and knowingly entered. The record fully supports the trial court’s concl usions in this respect. Commun ications between a ppellan t and cou nsel dist inctly ref lect appe llant’s in itiative in choosing to plead gui lty to the escape charg e. Appellant, familiar wi th the plea process, even suggested certain mitigating circumstances for counsel to utilize in bargaining with the district attorney. Appellant never expr essed a desire to go to tr ial upon this charge and counsel made every effort to negotiat e an acceptable agreement for the appellant. When counsel received the offer from the assistant d istrict attorney, s he conveyed it to appellant , at which time he direc ted her to make a specific counter offer. When the assistant district attorney rejected the counteroffer the next day, appellant decided to accept the origi nal offer and the guilty plea hearing was held that d ay. Little more than two weeks elapsed between the appointment of counsel, the first meeting with appe llant, and the entry of a guilty plea . At the guilty plea h earing, appellant stated that he was not being pressured or co erced into pleading gui lty. Considering all the circumstances, it is cl ear that appellant was eag er to enter a guilty plea. Our review of the transcript from the guil ty plea hearing, indi cates that appellant’s plea was certainly voluntary and knowing and that counsel did not exert any undue influence on appellant. In sum, appellant has failed to demonstrat e by clear and convincing evidence that his counsel was i neffective or that his guil ty plea was invo luntary. We affirm the trial c ourt’s denial of post- convic

tion re lief.7 _______________________________ William M. Barker, Judge

____________________________ John H. Peay, Jud ge

____________________________ David G. Hayes, Judge