# FILED September 12, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRI MINAL APPEA LS OF TENNESSEE ATJA CKSON JULY SES SION, 1997
JOHN C. RHEA UME, ) C.C.A. NO. 02C01-9607-CR-00246 ) Ap pella nt, ) ) ) SHELBY COU NTY VS. ) ) HON. JOSEPH B . B ROWN, J R. STATE OF TENNESSEE, ) JUDGE ) Appell ee. ) (Post- Convict ion)

ON AP PEA L FROM THE J UDGMENT OF THE CRIMINAL COURT OF SHELBY CO UNTY
FOR THE APP ELLA NT : FOR THE APPELLEE : JAMES A. COHEN JOHN KNOX W ALKUP 200 Jeff erson Avenue, Suit e 925 Attor ney General and Reporter Memphis, TN 38103 JANI S L. TURNER Assist ant Attor ney General 425 5th A ven ue, N orth Nashvil le, TN 37243 JOHN W. PI EROTTI Dist ri ct Attor ney General ALANDA HORNE Assist ant Di str ictAtto rney Gener al Criminal Justi ce Complex, Suit e 301 201 PoplarStreet Memphis, TN 38103
OPINION FILED ________________________ AFFI RMED DAVI D H. WELLES, JUD GE-2- 

# OPINION

The Peti ti oner appeal s as of ri ght t he tr ial court ’s deni al ofhis pet it ion f or post- convi cti on relief. T he P etitione r plea ded guilty pu rsua nt to a plea agreement to one cou nt of a ggra vated rape and one cou nt of a ggra vated robb ery. He was sentenced to twenty yea rs incarc erati on for the aggra vated ra pe an d twelve ye ars for the agg rava ted ro bbe ry, to be serve d co ncu rren tly.

The Petit ioner was convict ed o n S epte mber 21, 1992. He fi led a pro se peti ti on for post -co nvic ti on rel iefon January13, 1995, wit hin t he three-year statu te of l imit ati ons appli cable t o peti ti ons fi led bef ore May10, 1 995
. See Tenn. Cod e Ann. § 4 0-30-102 (repe aled 1995) ; § 40- 30-201 ( Supp. 1996) . Counsel was appoint ed and an amended peti ti on was f il ed on May 15, 1996. The t ri al cour t dismis sed the pet it ion afteran evi denti ary hear ing conducted on Janua r y 4th and 24th, 199 6. Th e P etitio ne r no w a pp ea ls the trial c ou rt’s d en ial of his peti ti on and raises two issu es : (1) That he was denied the effect ive assi stance ofcou ns el; a nd (2) th at h e d id n ot vo lu nta rily , kn ow ing ly an d u nd ers tan din gly waive his r ight s when he entered his g uil ty p lea. W e aff ir m the judgmentofthe trial cou rt.

The fac ts su pp ortin g th e P etitio ne r’s g uilt reveal thata whit e male fi tt ing t he Pe tition er’s des cription acc oste d a wo ma n a s sh e w as lea ving he r ho m e in Mem phis, Tennessee atapproxi mately6:45 in th e m orn ing . Sh e d es crib ed him as a whit e male weari ng a sk i ma sk, wh o a pp ea red to b e in his e arly to m id twenti es. He was approxi mately5'6" to 5' 7" t al l. He wore a bl ue basebal l cap-3-

with an insi gnia, a brown leat herjacket, brown and green camo flauge pants, wh ite Co nve rse te nnis sho es, a brow n gu n ho lster a nd b lack glove s.

The perp etrato r had a silver re volver and force d the wom an to go b ack into herho us e. W hile the re, h e rifle d her pur se and took two gasoli ne credi t cards and two tw enty d ollar b ills. He fo rced the w om an a t gunpointto w alk t hrough every room in t he house. In one r oo m, he directed t he vi cti m to get t elephone cord with which he ti ed her up. The assail ant putthe woman on the bed and put a pil lowcase over herhead. He f ondled h er but tocks and genit als ov er her clothes, then f ondled her breast s. He al lowed t he vi cti m to go to t he bathroom and tookoffthe pi ll owcase and t he cord around her hands because she agreed to cooperate. He s moke d a c i garet te
. He made the vi cti m take offher t op and put on a camisol e he found i n a drawer . The perpe tra tordigi tal lypenetrated t he victim ana ll y, h ad her perfor m fell ati o twi ce, and pene tra ted t he vi cti m with h i s pe nis thre e tim es . Th e vic tim noted her clock duri ng the assaul t, which oc curr ed between 8 :07 a. m. and 8:17 a. m. Aft er t he sexual assaul t, the per petr ator inst ruc ted the vi cti m not t o lo ok athim whi le h e dre ssed hi mself . He t hrew a towel to th e vic tim an d to ld h er to pu ll up h er pa nts a nd g et a shi rtfo r h ers el f. At ap pro xim ate ly9:30 a. m., he putthe v ict im in astorage clos et f ace down wit h her ar ms an d le gs bo un d. S he rem ain ed the re u ntil approxi mately12:45 p.m. The victim no ted tha t he r ca r ha d re ce ntly been stol en and recov ered t hree ti mes and she had noti ced the s mell ofsmoke and a body odor li ke her ass ail ant’ s in t he car when itwas ret urned.

The perpet rat or l eftthe house in t he vi cti m’s car, a 1991 maroon Mazda Pro teg e, b ut re turn ed itlat erthatmorning. W hil e the v ict im’s ne ighbor was car-4-

pooli ng his c hild ren to sc ho ol, h e sa w th e p erp etra tor in the victim ’s ca r as it pull ed into her d rivew ay. He saw the m an lea ve th e ca r in th e d rivew ay a nd wa lk down the s treet. The neighbor call ed 911 and gave a descri pti on ofthe man as whit e, between 5' 7" and 5' 9" t all , wi th dar k hair and a s lig ht mustache , who appeared to be i n his ea rl y twent ies. The perpet rat or was wear ing combat type boots, gre en pa nts an d a bro wn jack et. P oli ce offic ers m et th e n eig hb or a t his ho me to investigate th e repo rt. After leavi ng h is hous e and going to hi s off ice, the neighb or saw the sus pect at a local sup erm arket. Po lice officers wer e contact ed again and they arres ted t he Pet it ioner . Bot h the v ict im and the neighbor

ide ntifie d th e P etitio ne r as the ass aila nt. P olic e offi cers recovere d a blue ba se ba ll cap, ten nisshoes, a bro wn lea the r jac ke t, da rk b row n g love s, a pa ir ofcamoflauge pants, a sl eeveless shirt , whit e underwear and a Halloween ma sk fro m a search ofthe Pet it ioner ’s home.

In the Pet it ioner ’s f irst i ssue, he contends t hat hi s appoint ed counse l provi ded ineffec tive as sistan ce. H e no tes th at the State prov ided cou nse l with an ext ensiv e li st ofwit nesses and t hat counse l di d notcon tac t m os t of th e S tate ’s witnesses. He next c onten ds th at a fter co uns el rec eived item s from the S tate through a d i sc ov ery r eq ue st , sh e me rely tol d the Pet it ioner thattheywere t he
m ate rials she had rec eiv ed. He cl aims thatcouns e l di d not ex plai n any ofthe docum ents to him . Th e P etitione r also allege s tha t defe nse cou nse l failed to discuss resul ts ofblood and hair sample t ests. Furt hermore, he argues thathe pleaded guilty only beca use d efens e cou nsel “threa tened ” him with an eigh tyyearsentence. Final ly , he cont ends thathe was notproperlyinfor med beca use he attended only two court proceedings.-5- In determ ining wh ether co unse l provided e ffective ass ista nc e a t trial, the court m us t de cid e w he the r co un se l’s perf or mance was wit hin t he range of competence dem and ed o f attorn eys in crim inal ca ses . Baxter v. Rose , 523 S.W .2d 930, 936 (Tenn. 19 75). To s ucceed on a cl aim thathis c ounsel was ineffective at tria l, a peti ti oner bears the burden ofshowing t hat hi s counsel made errors so seri ous thathe was not funct ioni ng as counsel as guarant eed under t he Sixth Amendm ent and t hat t he defi cientrepre sentat ion prejudi ced the peti ti oner resul ti ng in a fail ure t o produce areliab le res ult. Strickland v. W ashingt on , 466 U.S. 668 , 687 , reh ’g denied , 467 U.S . 126 7 (19 84); Co ope r v. Sta te , 849 S.W .2d 744 , 747 (Te nn. 1 993 ); Bu tler v. Sta te , 789 S. W .2d 898, 899 (Te nn. 199 0)
. To satisfy the s eco nd p rong the p etitione r mu st sh ow a rea son able prob ability tha t, but forcou ns el’s u nre as on ab le e rror , the fac t find er w ou ld ha ve h ad rea so na ble doubtrega rding petition er’s g uilt. Stri ckland , 46 6 U .S. a t 69 5. T his rea so na ble prob ability mu st be “su fficient to unde rmine confide nce in the outcom e.” Ha rris v. Sta te , 875 S .W .2d 66 2, 665 (Ten n. 199 4).

W hen revi ewing tr ial co un se l’s ac tion s, th is co urt s ho uld no t us e th e b en efit ofhindsi ght t o second-gues s tr ial strategyand criticize c oun sel’s ta ctics. He llard
v. State , 629 S .W .2d 4, 9 (T enn . 1982 ). Coun sel’s alleged errors sho uld be judged att he t i me t he y we r e ma de in li ght of al l f acts and circumstances. Stri ckland , 466 U.S . at 69 0; see Cooper849 S.W.2d at 746.

Th is two part st andard ofmeasuring ineff ectiv e assistance of counsel al so appli es to cl aims ari sing outof t he plea proces s. Hill v . Lockh art , 474 U. S. 52 (1985 ). The prej udice requirement is modifi ed so thatthe pet it ioner “must show-6-

tha t the re is a re as on ab le prob ability tha t, but f or counsel ’s er rors he would not have pleade d guilty and wou ld have ins isted on going to trial.” Id. at 59.

At t he heari ng on the pet it ion, counsel test if ied t hat she requested and recei ved discoveryfrom the State. She me t wit h the Petit ioner, discusse d th e meaning of t he it ems receiv ed as well as the theo ry of t he case. She test if ied thatthe Pet it ioner

sent her

a letterdetai li ng his versi on ofth e f acts. He clai med thathe had a personal rel ati onship wi th t he vi cti m and that t hey were i nvol ved in a scheme to steal computer equi pment from a school. W hen the Pet it ioner backed o ut of t he pl an , t he v i ct i m t he n f ab r i ca t ed t he ch ar ge s a ga i ns t hi m. Counsel att empted to cont act a person the Pet it ioner had named in t he letterbut co uld not l ocate any one wit h the name she was given. Counsel di d contact several other

wit nesses t he Peti ti oner gave , buttheywere ofno assi stance i n the case. Fina lly, coun sel a dm itted to n ot co ntac ting the police off icers l ist ed as witne sse s for th e S tate because “t he poli ce off icers don’twant t o tal k to us and we general lydon’tcontactthem.”She did st ate t hat she c ontact ed per sons a t the rap e crisis cen ter and the U niversity of Te nne ssee toxicology lab oratory.

Counsel noted t hat t he Peti ti oner was unc oo pera tive an d thre aten ed to with ho ld the names of possi ble wi tnesses. Counsel sentthe Pet it ioner a lengt hy letterthatref ers t o the Pet it ioner ’s l ack ofcoo pera tion w ith her. The letterstat ed: “I hope thatyou wi ll make an att empt to t ry t o help me def end you aga inst a case in wh ich you are fac ing a p os sib le forty ( 40) year consecut iv e to f orty (40) years sentence. Th e st ate ’s proofis v ery s tro ng.” The Petit ioner contends thatcounsel misrepresented the poss ibl e sentence s he wou ld receiv e ifhe went t o tr ial and was convi cted and thatthe abov e stat ement in c ounsel’ s lettersuggested he may-7-

receive an eighty-y ear sent ence. Counsel was not a ske d to e xplain the c onte nts ofthe l ett er on director cross-ex aminati on at t he post- convi cti on heari ng. Counsel did t esti fy t hat her calcu lat ion ofthe sent encing ranges and the pos sibility of conse cuti ve sentenci ng were f ifteen t o twenty-f iv e yearsfor aggravat ed rape as a rang e I off ender and twelve to twenty y ears f or t he aggravat ed robbe ryas a range I I offender . Counsel test if ied thatshe dis cussed with the Pet itioner these poten tial sentenc es an d the p ossibility of conse cutive sentenci ng for

an e ffective term of forty-five year s. Furth ermore, the t ranscr ipt ofthe Pet it ioner ’s gui lty pl ea proceedi ng ref lect s thathe was aware t hat “ [e] it her I acceptthis [plea ag reem ent] or I take a c hance of getti ng 45 years.”Alt hough the lettersug ge sts an eig hty- yea r se nte nc e, th ere is oth er e vide nc e in the reco rd thatcontradict s the i nfor mation i n the l ett er, namely, thatcounsel calcu lat ed a po ssib le forty- fi ve year sentence and thatthe Pe tition er w as aw are of th is when he entered his gu ilty plea. W e are mindf ul t hat t here must be proof t hat counse l made errors so seri ous thatshe was notfunct ioni n g as counsel as guarant eed underthe S ixth Am end m ent. Stri ckland , 466 U.S. at 687. There is evi dence that counsel took measur es to co rrect a pr iorerror in cal culat ing t he potent ial sen tenc e.

The Peti ti onerclaim s th at c ou ns el d id n ot in form him of t he for ensic test ing thatwa s co nd uc ted an d th at th e se m en sam ple ob tain ed from the victim did not conclus iv elyprove he was the per petr ator . However , counsel test if ied t hat she discus sed po ssib le DN A a nalys is with the Pet it ioner to conf ir m the ident ity ofthe assail ant and als o inf ormed him of t he negati ve consequence s ifhe, i ndeed, matched the sam ple. Th e reco rd refl ects thatcounsel requested ti me to discuss DNA test ing wi th her

cli ent. Counsel t esti fi ed thatthe P etitione r refus ed th e tes t.-8- Finally, counsel test if ied t hat she met wit h the Pet it ioner sixteen t imes i n addit ion to hi s courtappearances. She also s tat ed thatshe was prepared to go to trial on the c ase whe n a p lea a gree m ent w as re ach ed th at sa m e da y.

The tr ial courtfound t hat “ Ms. Brown, counsel forthe def endant, had conducted ordid conduct an above-average defense of this p articu lar ind ividua l.” In a post- conv i cti on proceedi ng under t he Act appl icabl e to t his ca se, t he peti ti onermust prov e the al legat ions i n the pet it ion bya prepond erance o f t he evi de nce. Da vis v. Sta te , 912 S.W .2d 6 89 (T enn . 199 5); Ad kins v. State , 911 S.W .2d 334, 341 (Tenn. Cri m. App. 1994). In appel lat e revi ew of post -convi cti on proceedings, the tri al court ’s f indings offactare conclusi ve unless the evi dence in the reco rd pre pon dera tes a gain st the finding s. Co ope r v. State , 849 S.W .2d 744, 746 (Te nn. 1 993 ); Butler v. State , 789 S. W .2d 898, 89 9 ( Ten n. 19 90 ). On its face , cou nse l’s letter pr ese nts a pote ntial senten ce that is in erro r. How ever, the tri al courtfound that t he evidence showed thatthe Pe titioner d iscu sse d with counsel his pot enti al sent ences thathe was “reasonablyput on noti ce” r egardi ng the corre ct ran ge o f sen tenc es to be im pos ed if h e went t o tr ial and was convi cted. Consequently, no prej udice resulted from coun sel’s erron eou s letter. The cou rt fou nd tha t co un se l ad eq ua tely in ves tiga ted rele van t wit nes ses and noted the Peti ti oner’ s fai lur e to cooperate wi th counsel . Al so, couns el cons ult ed with the Pe titioner on nu me rous o ccas ions. Fina lly, the cou rt concl uded thatthe Peti ti onerwas famili ar wit h the cri minal just ice syst em from his p ri or conv ict ions and that“[ t] he court , qui te f rankl y, d oes not bel iev e many of t he assert ions gi ven by the defendant duri ng the course of these proce eding s.” W e cannot c onclude thatthe ev idence presented by t he Peti ti oner pr eponderat es agains t t he fi ndings ofthe trial court. Th erefore , we ag re e that th e P etitione r has failed to-9-

dem ons trate thatcoun sel’s perform ance fell below the re quired s tanda rd or t hat he w as p rejud iced by co uns el’s ac tions . Th is issu e is w ithou t me rit.

Ne xt, the P eti ti oner asserts t hat he di d not v olunt ari ly , knowi nglyor inte llige ntly enter

his pl ea of gui lty. In Bo yk i n v . Al ab ama , 395 U. S. 238 (1969 ), the Unite d Stat es Sup reme Cour t held that th e rec ord m ust s how that a guilty plea wa s m ad e vo lun tarily, u nd ers tan din gly and kno wing ly. In Bo ykin , the Co urt he ld thatan entry ofa guil ty p lea e ffectively c onsti tut ed a waiver ofthe con stitu ti onal ri ghts agai nst compul sory self -i ncri minati on, t he ri ght t o confront on e's accusers, and the rig ht to trial b y jury. Id. at 243. Ifa guil ty p lea i s not
v olunt ary and knowing, ithas been entered in vi olati on of due process and is, ther efor e, i nval id.

A v ol un t ary pl ea ca nn otbe f ou nd f r om asilent re cord
. Bo ykin , 3 95 U. S. at 242. Pur sua nt to its supe rvisory pow er, our su prem e cou rt has im pose d m ore str ingentstan dard s for trial c ourts to em ploy w hen advis ing d efen dan ts duri ng guilty pleas to provi de an adequate record thatwil l i nsure const it uti onal complianc e. State v. Mackey , 553 S .W .2d 33 7 (Te nn.19 77). Ho weve r, post- convi cti on relief ma y be gra nted onl y i f a conv ict ion or sentence is void or void ab le bec aus e of a violation of a co nstitutio nal rig ht. Te nn. C ode An n. § 40-30-10 5 (repe aled 1995) . As was poi nted outin State v. Neal , 810 S. W .2d 131 (Tenn. 19 91 ), viola tion of th e a dvic e li tan y required by either Mackey or Tennessee Rule ofCrimina l Proc edure 11 whi ch is not l inked t o a speci fi ed consti tut ional righ t is not cogni zable i n a suitforpost- convi cti on relief. See Sta te v. Pri nce , 781 S. W .2d 846 ( Tenn.1989). Moreover , i t i s the result , notthe-10-

process, that is e sse ntial to a valid p lea. Johnson v. State , 834 S.W.2d 922, 923- 24 (Tenn. 1992) . The cr it ical inq uiry is whetherthe Pet it ioner had knowled ge of ce rtain ri ghts and wa ived tho se righ ts kn ow ing lyand vol untar il y, n ot whet her t he tri al court was t he source of thatknowledge.

The Peti ti oner’ s fi rstcontent ion regardi ng his g uil ty p lea i s tha t he felt coerced int o the plea ag re ement because counsel “t hreat ened” hi m with an eighty-y earsentence. Alt hough there is ev idence of a letterfrom co unsel t hat sug ges ts an eighty-y ear sent ence, coun sel t esti fi ed thatshe dis cussed t he app ropr iate sen tenc es w ith the P etitione r. The trans cri pt ofthe gui lty pl ea proceedi ng reflec ts thatthe Pet it ioner was concerne d with a t rial in which “ I take a chance ofgett ing 45 y ears. ” The Peti ti oner was accu rat elyinf ormed of t he possible punishment before him if he went t o tri al and he chose inst ead to take the effect ive sentence of twenty y ears purs uan t to the plea agre em ent. Ce rtainly, the pros pec t of servi ng forty- fi ve years inca rcer ati on is da unti ng, but the optio n to g o thro ugh a trial or to plea d gu iltydoes not cons ti tut e coerci on that
m ake s a p lea inv olun tary. See Neal , 810 S. W .2d at135. Thi s iss ue is wi thout
m erit.

S e cond ly, the Pet it ioner clai ms that he did notunderst and the r ight s he wa s su rren derin g in h is gu ilty plea. At t he proceedi ng in t he tr ial court , t he tr ial judge and t he Peti ti oner had t he fol lowi ng exchange:

BY THE C OURT: Q: Do you underst and thatyou have a ri ght t o plead notguil ty a nd go to t ri al befo re a jury and be represented by your lawyer, crossexamine, subpoena, t esti fy o n your own behalf , al though y ou would not be requi red t o, appea l if you lo st, be repre sente d free of ch arge b y a-11- lawyer on appeal, chall enge the suffi ciencyof t he Stat e’s ev idence, the manner in whi ch theyobtai ned thei r evi dence. You’re giv ing up al l t hese ri ghts bypleadi ng guil ty. Do you und ersta nd th at? A: N o. I was i nfor med by my publi c defender thatI woul d not be pleadi ng guil ty, thatI woul d justbe accept ing t he ti me.
At th at p oin t, the t ri al court and t he Peti ti oner ent ered i nto a l engthy coll oquyexpl aini ng tha t he was e nter ing a pl ea pursuantto No rth Ca rolina v. Alford , 400 U.S . 25, 9 1 S . Ct. 16 0 (19 70). Alford provi des that“[ a]n i ndiv idual accused ofcrime ma y voluntarily, know ingly, and underst andingl y consentto t he imposit ion of a pri son sentence eve n if h e is u nw illing o r un ab le to ad m it his part ici pati on in t he acts consti tut ing t he cri me.” 400 U. S. at37; 91 S. Ct. at167. After the t ri al court expl ained t he Alford plea, a recesswas had i n which c ounsel met wit h the Pet it ioner to revi ew the pl ea agree m ent. However, the Pet it ioner contends thathis ans wer “no”was in response t o whetherhe underst ood the ri ghts he was rel inqui shing.

Alt hough a revi ew of t he guil ty p lea proceeding reveal s thatthe focus o f t he extend ed dial ogue regarded the Pet it ioner ’s understan ding hi s Alford plea, the tri al court did state on the record t he ri ghts he was rel inqui shing. The record fro m the Pe tition er's gu ilty ple a sh ow s th at th e P etitio ne r wa s ad dre sse d p ers on ally in open courtby t he tr ial judge and was advi sed of al l hi s const it uti onal rights as mandated by Bo ykin . It does ap pea r that the trial court fai led t o comply wi th t he Mackey an d R ule 1 1(c) re quire m ents . Th e P etitione r argu es th at his a nsw er to the que stion s de m ons trates th at he was not en tering into his p lea kno wingly, volu nta rily and int ell igent ly . However , afterrevi ewing t he record, t he Pe tition er's state m ents seem to st em more from a desire to be uncooperat iv e than f rom not-12-

underst anding. The Peti ti oner l ateranswered t hat he freelyand vol untar il y was choosing not to go to trial. Co uns el for the Sta t e voi r di red t he Peti ti oner at le ngth, going o ver his wa iver of rights form and th e judgm ent form s for th e offenses. Th e P etitio ne r ind ica ted his un de r st an di ng ofan d a ss en t t o t he t er ms and thus, chose t o proceed wi th t he gu ilty plea. T he P etitione r was allow ed to con ferwith cou ns el to revie w th e fo rm s an d th e g uilty p lea he sig ned
. Th e Peti ti onerack no wle dg ed in open court thathe had read, underst ood and si gned his w aiver o f rights form
. The Petit ioner was informed both aboutthe nat ure of his plea and sentencesand about t he cons equences ofhis a ctio ns . Th is is suff ici ent to demonstrate t hat t he Peti ti oner al so knowing lyand inte ll ige ntly enter ed his p lea.

At the po st-c on victio n h ea rin g, the tr ial courtfound t hat f rom an examinat ion of th e p roo f, the Pe tit i oner di d vol untar il y ent er a gui lty pl ea. Further more, the t ri al j udge expres slystat ed thatthe Peti ti oner’ s credi bil ity was extrem ely lack ing . Th e tria l cou rt fou nd tha t by a sse ssin g th e te stim on y in th e record and assessi ng the Pe tition er’s demeanor, regardi ng the v olunt ari ness of his guil ty p lea, “[ i] t wasn’ t t hat he di d notknow whatwas going on. He di dn’twant to accept what was goi ng o n. ” Th e evi dence in the r ecord cl earl y does not prep ond erate aga inst the trial cou rt’s findin gs. T his iss ue h as n o m erit.

Therefore, we aff ir m the judgmentofthe t ri al court deny ing t he peti ti on for pos t-con viction re lief.-13- ____________________________________ DAVI D H. WELLES, JUD GE

CONCUR:

___________________________________ JOE B. JONE S, PRES I DI NG JU DGE

___________________________________ JOE G. RI LEY , JUD GE