# FILED
February 19, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER, 1997 SESSION

HENRY S. BAKER, ) ) No. 02C01-9704-CR-00160 Appellant, ) ) Shelby County vs. ) ) Honorable Bern ie Weinm an, Judge STATE OF TENN ESSEE, ) ) ) (Post-conviction) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Robert Gaia JOHN KNOX WALKUP P.O. Box 11381 Attorney General & Repor ter Memphis, TN 38111 KENNETH W. RUCKER Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General GLENN BAITY REGINALD HENDERSON Assistant District Attorney Generals 201 Poplar Ave. Ste. 301 Memphis, TN 38103

OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE1 The grand jury issued three separate indictments: #91- 11341 (attempted

aggravated robbery , #91-11342 (theft of a motor vehicl e), #93-02601 (robbery)

. The trial court sentenced him to five years, four years, and five years, respectively. The j udge ordered that the sentences be served concurrently to each other, but consecutive to an escape conviction that was handled in genera l sessions court.
2 Baker did not file a direct appeal.
3 At the conclusion of the post-conv iction hearing, defense counsel voluntarily w

ithdrew the post-conv

iction petition to the ex

tent it challenged the convictions for theft and robber y. The defendant was not prese nt at the time; however, the attorney

stated that he had written authorization from his cl ient to limit the post-convic

tion petition to the attempted ag gravated robbery c ase, and the trial court permitted the withdrawal. Al though the record contains n o further discussion, the technical record reflects that Baker later contested counsel’sauthority to withdraw the petition because the withdrawal was based on a miscommunication with defense counsel . On January 9, 1997, the tr ial judge denied Baker’s request to rei nstate the claims and formally dismissed the claims. Bak er has not raised the dismissal as an issue in this appeal.

2 OPINION

The defenda nt, Henry S. Baker, appeals pursuant to R ule 3 of the Tennessee Rules of Criminal Procedure from the Sh elby County Crimi nal Court’s denial of post- convic

tion re lief. On December 5, 1991, the gran d jury indicted the defendant forattempt ed aggravat ed robbe ry, theft of a motor veh icle, and robbery. He pleaded guilty to all three charges on April 22, 1993 and received a n effec tive sentence of five years as a Ra nge I offender to be served consec utively to a sentence received in convictions unrelated to these. 1 Baker filed a timely petition requesting post-conviction relief in all three conviction s on February 8, 1996. 2 In this appeal, however, Baker chal lenges only the validity of

his conviction for attempte d aggravated robbery. 3 He contends that, his gui lty plea was entered involunta rily, and that, but for the errors of counsel , he would not have pleaded guilty to attempted aggravated robber y. We disagree.

The transcri pt of the guilty plea sub mission hearing indicates that while Baker and Jimmy High were on escape status from the county wor khouse, they4 High was tried and convicted of attempted aggr avated robbery. Baker testifi ed agains t High at tri al. Later , High plea ded guilt y to the oth er two indictments.
5 The pair were more succes sful at the second store. Ev en though Baker displayed no weapon, the c lerk turned over $28.00 i n response to his demand. Five days later, B

aker stole a 1989 Ford truck. When he was stopped for driving under the influence, a routine li cense plate check uncover ed the theft. Baker gave a statement admitting the robbery of the second conv enience store and implicating Jimmy H igh.
6 Baker is currently serving a life sentenc

e in federal prison pursuant to the federal “three-strikes an d you’re out” provi sion. 3 decided to rob a convenience store in order to buy drugs. 4 High remained outside in his truck while Baker en tered and threatened the clerk with a knife. The clerk refused to open the cash drawer, an d when a customer walked in, Baker fled with the clerk and the customer in pursuit. 5 Ultimate ly, Baker accepted the state’s pl ea bargain and agreed to testify against Jimmy Hi gh in this case.

Baker’s pro s e petition fo r post-conviction r elief alleges that he entered his guilty plea inv

oluntarily as

he was not informed that the conv iction could be used to enhance a sentence in federal court and that his trial coun sel was ineffective in variousways. 6 Court-appointed counsel file d an amend ed petition in which he alleged that, in addition to the allegations in the original petition, the guilty plea was the product of counsel’s threats and coercion, that counsel failed to investi gate the facts and interview the w itnesses, and that counsel faile d to communicate with his client. At the ev i dentiary hearing, Baker was the only defense witness. After his testimo ny, th e hearing was continued,and the assistant public defender who negotiated the plea agreement was the sole witness when the hearing reconvened.

In its writtenorder denying reli ef, the trial court found that Baker had wanted to enter a guilty pl ea from the very beginning and that, at the time he entered his plea, he was satis fied with the negotiated plea agreement. The court also found that trial counsel had done everything he c

ould to ascertain the facts and to advise his client pr operly. The court conclu ded that “the advice gi ven and4

services rendered by

the defenda nt’s counsel were with in the range of competency demanded by an attorney in a criminal case and that Mr. Moore’s representation of the defendant at his guilty plea c omplied with the requi rements of . . . Baxter v. Rose , 523 S.W.2d 930.”

On ap peal, Baker alleges that h e received ineffective ass istanc e o f counsel because his attorney failed to inform him that the victim had been unable to identify him in a lineup and that no eyewitnesses were available to testi fy against him with respect to this

case. He also contends that his guilty plea was involuntary and unknowing because he w as unaware that this conviction could be used t o enhance sentences he received in federal court.

Under Tennessee law, post-conv iction relief

may be granted when the conviction is void or v o idable because it was obta ined in violation of any right guaranteed by the Constitution of Tennessee or t he Constitution of the United States. Tenn. Code Ann. § 40-30-203 (1997). In order to sustain a petiti on under the 1995 Post-Conviction Procedure Act, an appellant must prove the “ allegations of fact by clear andconvincing evidence.” Tenn. Code Ann. § 40-30-210(f) (1997). This court may not reweigh or reevaluate the evidence , and we de fer to the trial court’s resolution of questions concerning the credibility of witnesses and the weight and value of their testimony

. Black v. Stat e , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). When reviewing the di smissal of a post-convic tion petition, this court must affirm the judgment of thetrial cou rt unless the evidence in the record preponderatesagainst the ju dgment. Cooper v. State , 849 S.W.2d 744, 746 (Tenn.1993). With these standards in mind, w e address the issues present ed.

We begin with Baker’s second issue in w hich he alleges that he p leaded gu ilty unknowingl y and involuntarily

due to the failure of his attorney and the trial court to inform him th at the conviction could be used t o enhanc e a future conviction in federal court. This iss ue is notc ognizable in a post-c onviction7 We note that the trial court’s order dis missing the petition contai ns no

specific finding that the defendant ha d knowingly and voluntarily entered his guilty plea. The only

relevant finding incl uded in the order is that the de fendant had wanted to plead guilty from the very beginni ng. Tennessee law req uires that, upon final disposition of a post -conviction petition,the trial court “shall set forth in the order or a wr itten memorandum of the case all gr ounds presented, and shall state the findings of fact and conclu sions of law with regard to each such ground.” Tenn. Code Ann. § 40-30-211(b). However, even if the trial court failed to comply with this duty, a revers al or remand to the trial c ourt is not warranted if the record c learly reflects the r

easons for the dismissal. State v. Swanson , 680 S.W.2d 487, 48 9 (Tenn. Crim. App. 1984). We have carefully reviewed the transc ript of the guilt y plea submission hearing. The tria l judge carefully and thoroughly examined the defendant and complied w ith both the constitutional

requir ements of Boykin v . Alabama , 397 U.S. 742, 90 S.Ct. 1463 (1970) and the non-constituti onal requirements found in Mackey v. State , 553 S.W.2d 337 (Tenn. 1977) and McClintock v. State , 732 S.W.2d 268 (Tenn. 1987), as well as Rule 11, Tennessee Rules of Criminal Procedure. In this appeal, the defendant does not allege that the trial judge failed t o satisfy any constitutional requir

ement nor has our review uncovered any inadequa cies that would render the defendant’s g uilty plea voidable. 5 proceeding.

The Tennessee Supreme Court has mandated that “any court accepting a plea of guilty must make i t clear to the defendant that the res ulting judgm ent of conviction may be used i n a subsequent proceeding t o enhance the punishment for subsequent offe nses.” State v. McClintock , 732 S.W.2d 268, 273 (Tenn. 1987). However, the req uirement that th e court notify a defendant that the conviction resulting from his gui lty plea can be used to enhance future punishments is not constitutionally based. State v. Neal , 810 S.W.2d 131, 138 (Tenn. 1991)

. Omissionsof advice or

questions required by

the Tennessee Supreme Court in the exercise of its superv isory du ty and authority may be reviewed only upon direct appeal. Id . at 139. Thus, the all eged failure to address the sentenci ng enhancem ent iss ue does n ot prov ide gro unds for post-co nvicti on reli ef. 7

Moreover, the trial informed Baker that his convic tion could be used against him “in any court o f law in the future.” Baker acknowl edged that he understood the specific consequences of hi s plea. Baker’s attorney also advised him that the conviction could result in the enhancement of future sentences. Althou gh neithe r the trial judge nor the attorney referred specifically to possible8 With respect to this issue, Baker argues that th e trial judge failed to make

specific fac tual findings re levant to the issu e on appeal. Howe ver, the trial judge found that the defendant’s attorney had di scussed his case with his client and that he had done everything that was necessary to ascertain the facts. The judge also found that the defendant had stat ed at the guilty plea hear ing that he was satisfied with the plea and with his attor ney’s services. Although detailed findings are generally desirable and would have facilitated our review in this case, we find that the recor d in this case is sufficient for meaningful appellate review and requi res no remand to the trial c ourt. See State v. Swanson , 680 S.W.2d 487, 489 (T enn. Crim. App. 1984). 6 sentencing enhancement under federal law, the trial judge’s colloquy satisfies the requirements

of Rule 11 of the Tennessee Rules of Cri minal Procedure, the constitutions

of both the Un ited Sta tes and the State of Tennessee, and the additional procedures imposed by our supreme court in Mackey v. State , 55 3 S.W.2d 337 (Tenn. 1977) and McClintockv. State , 732 S.W.2d 268 (Tenn. 1987). The fact that Baker was unaware of a specific federal enhancement factor does not entitle him to the revers al of his conviction.

Baker’s contention that he received ineffectiv e assistance of

counsel during the plea negotiations is also w ithout merit. On appeal, Baker argues that he
was denied effective assistance of counsel because the assistant public defender failed to inform him that the victim had been un able to identify him at the li ne-up. Baker also argues that he was forced to accept the state’s plea bargain because his attorney was not prepared to go to trial and th at, b ut for the errors of counsel, he would have proceeded to t rial on this charge. 8 We disagree.

When an appeal challenges the effective assist ance of counsel, the appellanthas the burden of establis hing (1) deficient representati on and (2) prejudice resulting from that deficienc y. Strickland v. Washing ton , 466 U.S. 668, 686, 104 S. Ct. 2052, 2065 (1984); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel provides assistance that falls below the range of competence demanded of attorneys in c riminal cases. Bankston
v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prej udice is the
rea sonab le likelihood that, but for defici ent representation, the outcome of the9 The record contains three letters written by Baker to his attorney in which

he describes his feelings toward High and dis

cusses his desire to plea d guilty and to testify against Hi gh. 7 proceedings would have been different. Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994). On review, there is a strong presumption of satisfactory representation. Barr
v. St ate , 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995). As to guilty pleas, th e petitioner

must establish a

reasonable probability

that, but for the errors of counsel, he would not have entered i nto the plea. Hill v. Lock hart , 474 U .S. 52, 59, 106 S. Ct. 366, 370 (1985); Adkins v. State , 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994); Wilson v. State , 899 S.W.2d 648, 653 (Tenn. Crim. App. 1994).

A reviewing court must indulge a strong presumption that counsel's conduct falls within the range of reasonable pro fessional assistance and must evaluate counsel' s p erformance from counsel's perspecti ve at the time of the alleged error and in light of the totality of the evide nce. Strickland , 466 U.S. at 695, 104 S. Ct. at 2068-2069.

In this case, Baker has not carried his burden of showing that he would not have pleaded guilty but for the alleged errors of counsel.

The record strongly su p ports the trial judge’ s finding that the defendant intended from the beginning to plead guilty to al l three charges. Baker and his co-defendant were obviously at each other’s throats, and Baker was not at all reluct ant to te stify against High at his trial. 9 Although the attorney’ s testimony at the post-conviction heari ng indicate s that he had not realized that the victim had failed to identify his client at the line-up, thi s error was of little consequence because the co-defendant had implicated Baker i n hi s statement to the police. Baker received a very favorable ple a bargain in which he was s entenced as a Range 1 offenderwh en h e clearly could hav e been sentenced, at least, at Range 2. For three felonies committed after he had es caped fro m jail, he received a n effec tive
sen tence o f five years. The judgment forms give him credit for 24 6 days or10 The judgment form contains the notation that his parole was re voked on August 10, 1995. 8 approximately half the time he would be required t o serve before becoming eligible forparole. 10 Nothing in the reco rd has con vinced us t hat Bake r would have jeopardized his plea bargain on the othe r two counts by g oing to t rial on this one.

The record also supports the c onclusion that defense counse l adequately investigated the case and negoti ated on behalf of the defendant. According to counsel’s testimony, he had full access to the district attorney’s fil e s which included th e statements o f all the vi ctims. He a

ttempted to co ntact the victims personally but they r

efused to speak to him. Once the trial court severed Baker’s trial from that of High at the prosecutor’ s request, the way was clear for Baker to testify against his co-defendant in exchange for the plea bargain. Of course, it also made High’s testimony available against Baker. Baker’s counsel was not prepared to go to trial bec ause Baker had told him over and over again that he w anted to p le ad gu il ty

an d b ecau se

th e p le a w

as obvi ou sl y adv

an ta ge ou s to h is

cl ie nt . We
concur in the trial court’s conclusion that the advice and service s of defense counsel were within the r

ange of competency demanded in cri minal cases of this nature.

We find that the trial court properly denied post-conviction relief and dismissed the defendant’s petition.We affirm the judgment of the trial court.

__________________________ CURWOOD W ITT, Judge CONCUR:

______________________________ JOE B. JONES, Pres iding Judge

______________________________ JERRY L. SMITH, Jud ge9