FILED

July 16, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MARCH 1999 SESSION

KENNETH BROWN, * No. 02C01-9805-CR-00130

Appellant, * SHELBY COUNTY

VS. * Hon. Bernie Weinman, Judge

STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant: For Appellee:

Tony N. Brayton John Knox Walkup 

Assistant Public Defender Attorney General and Reporter

201 Poplar Avenue, Suite 2-01

Memphis, TN 38103 J. Ross Dyer 

(on appeal) Assistant Attorney General

Criminal Justice Division

Of counsel: 425 Fifth Avenue North 

A.C. Wharton, Jr. Nashville, TN 37243

Shelby County Public Defender

Alanda Horne 

Donna Armstard Assistant District Attorney General

Assistant Public Defender 201 Poplar Avenue, Third Floor

201 Poplar Avenue, Second Floor Memphis, TN 38103

Memphis, TN 38103

(at trial)

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE
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OPINION

The petitioner, Kenneth Brown, appeals the trial court's denial of postconviction relief. The issue presented for review is whether the petitioner was

provided effective assistance of trial counsel before entering a guilty plea. 

We find no error and affirm the judgment of the trial court. 

Following several days of trial in 1996, the petitioner pled guilty to thirty

indictments for aggravated burglary, all of which were Class C felonies. Tenn. Code

Ann. § 39-14-403. Pursuant to the plea agreement, the trial court imposed

concurrent, Range III fifteen-year sentences for twenty-nine of the convictions. On

the remaining conviction, the trial court imposed a Range I, five-year sentence to be

served consecutively to the fifteen-year sentences. The effective sentence was,

therefore, twenty years. 

On August 1, 1997, the petitioner filed a pro se petition for postconviction relief. The trial court appointed counsel and conducted an evidentiary

hearing. At the conclusion of the proceeding, the trial court determined that the

petitioner had been provided the effective assistance of counsel and had knowingly

and voluntarily entered each of the guilty pleas.

At the evidentiary hearing, the petitioner complained that his trial

counsel failed to provide him with a copy of his statement to police as he had

requested. He argues that his trial counsel failed to file a motion to suppress the

statement and failed to adequately investigate the accuracy of the statement with

law enforcement officers. The petitioner claimed that he did not recall providing

information about twenty-nine burglaries and was unaware of many important
3

details. He maintained that he had been involved in only thirteen or fourteen

burglaries and denied having confessed to sixty burglaries. 

The petitioner testified that he agreed to stop the trial because he had

lost confidence in his trial counsel and felt that his representation was ineffective. 

He stated that his trial counsel had visited him at the jail before the trial to discuss

the plea offer but that the two had never discussed the cases. The petitioner

maintained that his trial counsel did not discuss the discovery procedures, did not

provide copies of the indictments, and only allowed him to see the motion to

suppress after his decision to plead guilty. The petitioner testified that he had

wanted separate trials on each indictment but that his trial counsel had informed him

the trial court would not agree. He insisted that there should have been a hearing to

determine whether separate trials were warranted. 

On cross-examination, the petitioner acknowledged that he had

decided to plead guilty after hearing eight witnesses testify favorably for the state. 

He conceded that he was aware that the prosecutor planned to introduce his

confession. The petitioner admitted that he had discussed his options with his trial

counsel, had informed the judge that he understood his right to continue with the

trial, and that he concluded that it was in his best interests to plead guilty. The

petitioner testified that he was aware that he could receive a sentence of 90 to 180

years had he chosen to allow the trial to proceed. He acknowledged that he was not

coerced or pressured into accepting the terms of the plea agreement. 

The petitioner's trial counsel had practiced law for thirty-seven years. 

He testified that he had visited the petitioner twenty to thirty times at the jail and that

the meetings lasted from five minutes to two hours, depending on the need. Trial
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counsel recalled that the petitioner had confessed to fifty-four burglaries and was

likely to be indicted for another sixty-five. He acknowledged that the petitioner had

been involved in a burglary ring and after his arrest, agreed to serve as a witness for

the state against his co-defendants. Trial counsel recalled that prior to trial the

petitioner had not challenged the accuracy of the confession. 

Trial counsel admitted that he did not file a motion to suppress the

petitioner's confession before trial because he thought there was no basis for its

exclusion. He stated that he offered to provide the petitioner with a copy of the

confession but that the petitioner did not want it. Trial counsel testified that he had

ordered two mental evaluations of the petitioner due to his concern about the

petitioner's competency. He stated that there were no witnesses to investigate. He

recalled that the defendant had appeared to enter the guilty pleas knowingly and

voluntarily and with an understanding of the consequences. 

The trial court denied relief for the following reasons:

The Court finds that the petitioner freely and

voluntarily entered the guilty plea after being fully advised

of all his rights by his counsel and the trial judge. The

petitioner wanted to avoid the possibility of receiving

more punishment if convicted at trial. In addition he

wanted to avoid the possibility of being indicted on

additional charges of aggravated burglary. 

The Court finds that the advice given and the

services rendered by the [petitioner's trial] counsel were

within the range of competency demanded by an

attorney in a criminal case and that [trial counsel's]

representation of the [petitioner] at his guilty plea

complied with the requirements set out by the Supreme

Court of Tennessee in the case of Baxter v. Rose, 523

S.W.2d 930.

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

ineffective assistance of counsel, he must first establish that the services rendered
5

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). Second, he

must show that the deficiencies "actually had an adverse effect on the defense." 

Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to

establish either factor, he is not entitled to relief. Our supreme court described the

standard of review as follows:

Because a petitioner must establish both prongs of the

test, a failure to prove either deficiency or prejudice

provides a sufficient basis to deny relief on the ineffective

assistance claim. 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.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). On claims of ineffective counsel,

the petitioner is not entitled to the benefit of hindsight, may not second-guess a

reasonably based trial strategy, and cannot criticize a sound, but unsuccessful,

tactical decision made during the course of the proceedings. Adkins v. State, 911

S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions

of counsel, however, applies only if the choices are made after adequate

preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.

1992). 

The standard announced in Strickland, as it applies to guilty pleas, is

met when the petitioner establishes that, but for his counsel's error, he would not

have pleaded guilty and would have insisted on trial. Hill v. Lockhart, 474 U.S. 52,

59 (1985). In Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court ruled

that the trial courts must establish a record at the submission hearing that all guilty

pleas are knowingly and voluntarily entered. In order to meet constitutional

standards, the plea must represent "a voluntary and intelligent choice among the

alternative choices of action [available]." North Carolina v. Alford, 400 U.S. 25
6

(1970); Clark v. State, 800 S.W.2d 500 (Tenn. Crim. App. 1990).

Under our statutory law, the petitioner bears the burden of proving his

allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). 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. 

Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on

the petitioner to show that the evidence preponderated against those findings. 

Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

In our view, the evidence does not preponderate against the trial

court's finding that the petitioner entered knowing and voluntary guilty pleas and

received the effective assistance of counsel. The trial court accredited the

testimony of trial counsel rather than that of the petitioner. In essence, the proof

demonstrated that the petitioner was dissatisfied with the length of his sentence but

that he had been aware of the consequences of the plea agreement prior to

pleading guilty. The submission hearing record demonstrates that the petitioner

responded intelligently to a variety of questions posed by the trial judge. The

petitioner clearly acknowledged that the plea was free and voluntary and that he

willingly accepted the state's offer of twenty years. From all of this, it appears that

trial counsel performed his duties well within the established professional guidelines. 

Accordingly, the judgment of the trial court is affirmed. 

__________________________________

Gary R. Wade, Presiding Judge
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CONCUR:

_______________________________

Joseph M. Tipton, Judge

________________________________

Thomas T. Woodall, Judge