### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE August 19, 2003 Session BOBBY D. CAN

ADA v. STATE O F TENNESSEE Direct Appeal from the Criminal Court for Cam pbell County No. 11078 E. Shayne Sexton, Judge

No. E2 003-0 0804- CCA-R3 -PC December 11, 2003
The petitioner was indicted for first degree murder and aggra

vated arson. Pursuan t to a ple a agree ment, he pled gu il ty to second deg ree murder and setting fire to per sonal property. The petitioner filed for post-conviction relief, contending that he r eceived ineffective assistance of counsel and that his guilty plea w as not knowing and voluntary. The post-conviction court denied the petitioner relief. The judgment of the post-conviction cour t is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERE TT W IL LI AMS , J., delivered the opini on of the cour t, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ., joined. Robert S. Asbury, Jacksboro, Tennessee, for the appellant, Bobby D. Canada. Paul G. Summers , Attorne y General and Repor

ter; Br ent C. Cher

ry , Assistan

t Attorne y General ; William Paul Phillips, District Attorney General; and Michael O. Ripley, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION The petitioner, Bobby D

. Canada, was indicted for first degree murder and aggra vated arson. Pursuant to an agreement, he pled g uilty to second deg

ree murder

(C la ss A f

el on y) and setting fire to personal property

(Class E felony) a

nd agreed to a se ntence of twenty years a nd five yea

rs re sp ec ti ve ly, to be served consecutive ly f or an effective sentence of twe nty-five y ears. The petitioner filed for post-conviction relief, contending that he received ineffective assistance of counsel and that his guilty plea

was not knowing and voluntary . The post-conviction court denied the petitioner relief. He now appeals the denial of relief. The judg ment of the post-conviction court is affirmed.-2- Facts At the plea hearing, the State and the petitioner stipulated and agreed to the following fa ctual accoun t: That in Campbell County, Tennessee, on or about the 15 th of December of 1998, that the [petitioner], did aid and abetJo seph Prewitt in the unlawful, felonious, and intentiona

l killing o f Charle s Way

ne Bry ant. Furthermore, that on the same date in Campbell County, Tenne ssee, that [petitioner] didaid and abet Joseph Prewitt in the unlawful, felonious, and knowingly damaging of personal property , an automobile, by fire, with the in tent to de stroy

the prope

rty for an unlawful purpose. Analysis The petiti oner contends on appeal that he receive d ineffective assistance of counsel. T hi s Courtreviews a claim of

ineffective assistance of counsel under the standards of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052 (1984). The petitioner has the burden to prove that (1) th e attorney’ s performance was deficient, and ( 2) the deficient perfor mance r esult ed in prejudic e to the de fendant so as to de

prive him o f a fair

trial. Strickland , 466 U.S. at 687, 10 4 S. Ct. at 20 64; Goadv. State , 938 S.W.2d 363, 369 (Tenn. 1996); Butler v. State , 789 S.W.2d 8 98, 899 (T enn. 1990 ). The fa

ilure to pr

ove either d eficiency

or prejudice justifies denial of r elief; therefore, the court need not addre ss the components in any particular order or even addre ss both, if one is insufficient. Goad , 938 S.W.2d a t 370. I n order t o establish prejudic e, the pe

titioner m ust est ablish a “ reasonable probability that, but for counsel’s unprofessional errors , the res ult of the p roceed ing woul d have been diffe rent. A r

easonab le probabil ity is a proba bility sufficient to undermine confidence in the outcome.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068. When a petitioner claim s ineffe ctive as sistance of counse

l in relat ion to a guilty plea, the

petitioner must prove that counsel performed defici ently, and, but for c ounsel’s errors , the petitioner

would not h ave pled

guilty but would h ave, inst

ead, insi sted upon g oing to trial. Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). The test in Te

nnessee to determine whether counsel provided effective assistance is whether his or her performance was within the ra nge of competence demanded of attorne ys in crimina

l cases. Baxter , 523 S.W.2d at 936. The petitione r must overcome the presumption that counsel’s conduct falls within the wide range of acce ptable professional assistance. Strickland , 466 U.S. at 689, 104 S. Ct. at 2065 ; State v. H oneycutt , 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove a deficiency , a petitioner must show “that counsel’s acts or omissions were so serious as to fall below an objective standar

d of rea sonableness under prevailing professional norms.” Goad , 938 S.W.2d at 369 (citi ng Strickland , 466 U.S. at 688, 104 S. Ct. at 2065)

.-3-

In reviewing counsel’s conduct, a “f air assessment

. . . requires that every

effort be made to eliminate the distor ting ef fects of hindsigh t, to rec onstruct

the circums t ances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Nichols v. State , 90 S.W.3d 576, 587 (Tenn. 2002) (citi ng Strickland , 466 U.S. at 689, 104 S. Ct. at 2065 ). The fact that a particular strategy

or tactic failed or hurt the defense does not, stand i ng alone, estab lish unreaso nable

representation. However, deference to matter s of strategy and tactical choices applies only if the choices are informed ones based upon adequate preparation. Henley v. State , 960 S.W.2d 572, 579 ( Tenn. 199 7); Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). The pet itioner bears the burden of proving by clear and convincing evidence the factual allegations that would entitle petitioner to relief. Tenn. Code Ann. § 40 -30-2 10(f). T his Court is bound by t

he post-c onviction

court’s finding s of fac t unless the evidenc e preponderate s again st those findings. Fields v. State , 40 S.W.3d 450, 456-57 (Tenn. 2001). The petitioner first argues that his counsel was inef fective by f ailing to pursue a motion that was filed all eging

lack of j urisdicti on beca use the mu

rder oc curred

in Kentuc

ky. A moti on to dismiss the murder charge was f iled by de fe ns e c ou ns el on Fe br ua ry 4 , 2 00 0. Ap pa re nt ly, the motion was never ruled on. Counsel has failed to show how he was prejudiced by the lack of a ruling on

the motion. The record contains no evidence that the pe tition er would h ave prevailed on the motion. In fact, it is likely that the motion woul d have been denied, and the State would have bee n allowed to prove the location of the murder at trial. Counsel informed the petitioner that if the y did n ot prevail on the jurisdiction issue, he might be convicted of first degree murder

and sentenced to death. The plea agreement would no long er be available at that point. Ad di ti on al ly, the petiti oner ag reed to a stipulatio n at the pl ea hear ing that the mur der occurred in Tennessee. A forensic examination of the site where the petitioner claims the murder occurred did not reveal any

evidenc e that the

murder o ccurre d in Kentucky. The only indication that the murder did not occur in Tennessee is the denial by the def endant. Coun sel made a tactical decision based on the slight likelihood thatthey would preva il on the motion and the possible severe consequences if they did not. The denial by the petitioner that the murde r occurr ed in Ten nessee will notsuffice as clear and convincing evidence that the petitioner was prejudiced by

the lack of a ruling on the motio n to dismiss. The petitioner also argues that his counsel was deficie nt by failing to proc

ure the services of an independ

ent fore nsic exper

t. The forensic expert relied on by counsel was actually

hired by the petitioner’s co-def

endant. The petitione

r claims t hat the c o-defe

ndant’s interestswere a

ntagon istic to his intere sts. While th is may be true, he has fa

il ed to show that the tests by the independe nt forensi c expert were in any way def icient. The petitioner has failed to show that he was prejudiced by c ounsel’srelianc e on an ind epende nt foren sic exper

t obtaine d by

the co-d efenda nt. The petitioner next argues that his guilty plea was not knowing and voluntary. Sp ec if

ic al ly, he argue s that he isentitled t o relief because counsel did not remember reviewing the p lea for

m with the petiti oner an d counsel impermissibly coerc ed the petitioner to plead guilty . In order for a-4-

conviction based up on a gui lty p lea to co mport with due proc ess, the p le a must be vo lu nt ar il y, kn ow in gl y, and unde

rstandin gly

entered. Boy

kin v. Ala bama , 395 U.S. 238, 242-44, 89 S. Ct. 1709, 1712 (1969). A guilty

plea is not voluntary “if it is the pr oduct of ‘ignorance, incomprehe nsion, coercion, terror, induceme nts, [or] subt

le or blatant threats . . . .’” Blanke nship v. Sta

te , 858 S.W.2d 897, 904 (Tenn. 1993) (quot ing Boy kin , 395 U.S. at

242-43, 89 S. Ct. at 1712). Furthermore, if an accused is incompetent, then the guilty plea is involuntary. Blanke

nship , 858 S.W.2d at 904. The st and ardfor assessing the validity of a guilty ple a is “whether the plea represents a voluntary and intelligent

choice among the alternative courses of

action open to the defendant.” North Carolina v. Alford , 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970). To assess whether a guilty plea

wa s v ol un ta ry, we must “consider all of

the relevant circumstances that existed when the plea was entered.” State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). These circumstances include the relative intelligence of the defendant; the degree of his fa miliarity with criminal proceeding s; whether he was represented

by c ompetent

counsel a nd had the

opportuni

ty to confer with counsel about the options availab le to him; the extent of advice from counsel and the court concer ning the char

ges ag ainst him; and the rea sons for h

is decisio n to plead

guil ty, incl uding a desire to avoid a grea ter penalty that might result from a jury

trial. Blanke

nship , 858 S.W.2d at 904.
As the United States Supreme Court has noted, a petitioner’s testimony at a guilty ple a hearing “constitu

tes a formidable barrier” in any subsequent collateral procee ding be cause “ solemn declarations in open court carry a strong presumption of verity .” Blackledge v. Allison , 431 U.S. 63, 73, 97 S. Ct. 1621, 1629 (1977). The p lea a greement was executed on January 5, 2001. The post-conviction hearing was held on March 7, 2003. During the plea hearing, the petitioner agreed that counsel hadreviewed the plea agree ment with h

im. Counsel ’s failur

e to remembe

r specif ically reviewing the plea form with the petitioner over two years la ter d oes not prove by c lear and convincing evidence that the petitioner is entitled to relief. During the plea hearing, the petitioner stated tha t he could read and write. He further indicatedthat

he had read and understood the plea ag reement. The record reflects that the petitioner was thoroughly que stioned during the entry of his gu ilty plea and answered in a fashion that left no questions as to his knowing and voluntary act. The answers given by the petitioner in the entry of his guilty plea a

re incompatible with his post-con victio n claim. T he petitio ner volun

tarily pled guilty and denied any c oercion. He acknowledged tha t he understood the terms of the plea bargain and desiredto plead guilty. The petitioner also expressed his satisfaction with tr ial counsel. The trial court credite d the petitioner’stestimony at his gu ilty plea hea ring ove r his post- convicti o n testi mo ny. Nothing in the record before us dispels the reliability of the petitioner’s testimony at his guilty plea hearin g. The petitioner has failed to prove by clear and convincing evidence that his guilty pleas we re no t k no wi ng or vo lu nt ar y.-5- Conclusion The petit ioner ha s failed t

o prove by cle ar and

convincing evidence that he was pre judiced by any alleg ed d eficiencies or that his guilty plea wa s not knowing and voluntary . Based on the foregoing and the rec ord as a whole, the judgment of the post-conviction court is aff irmed.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE