### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs M arch 4, 2 003
AUSTIN EUGENE

LINEBACK v. STA TE OF TENNESSEE
Appeal from the Circuit Court for Tipton County Nos. 4129 and 4264 Joe H. Walker, III, Judge

No. W2002-01938-CCA-R3-PC - F iled April 8, 2003

Throu gh a 2001 Tipton County Circuit Court post-convict ion petit ion, Austin Eugene Linebac k challeng es his 2 001 convictions in that court of statutory ra pe and especially

aggravated sexual exploitation of a minor . The con victions r esulted f rom his g uilty pleas, which the petitioner now alleges are invo luntary

and unkno wing due

to ineffective as sista

nce of counsel. Following an evidentiary he aring, thelower court denied post-conviction relief, and the petitioner now appeals

. Upon our r

eview of the rec ord, the p arties’ briefs, and the a pplicabl e law, we

affirm. Tenn. R. App.P. 3; Judg ment of t he Circui t Court is

Affirme d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AVID H. W ELLES , JJ., joined. Gary F . Antrican, Somerville, Tennessee, for the Appellant, Austin Eug ene Lineback.

Paul G. Summers , Attorne y General and Repor

ter; Br ent C. Cher

ry , Assistan

t Attorne y General ; E lizabeth T. Rice, District Attorney Ge neral; and Walt Freeland, Assistant Distri ct Attorney General , for the Appellee, State of Tennessee.

OPINION

The petitioner, who apparently operated a teen modeling ag ency, wa s original l y charged with the rape of a fifteen-y ear-ol d boy based upon the boy perf orming fellatio. The petitioner p hoto graphed the boy

performing the act. Apparently , the petitioner entered the photograph

into his comput

er, and t his action resulted in feder al char ges. Th e petitioner and hi s family engag ed couns el to def

end him ag ainst both

the state and fede ral cha rges.
As part of an Au gust 1 7, 200 1 plea agreeme nt, t he pet itio ner con sente d to a c harge by informat ion of esp ecially

aggr avated s exual exploit

ati on of a minor, based upon the petitioner photographing the act of

fellatio. The state agreed to reduc e the rape charge to statutory rape, a

nd-2-

the pet itioner agre ed to concurrent sentences of two y ears for statutory

rape and ten years for the exploitation conviction. The parties agreed that the petitioner would ser ve the effective ten-y

ear sentence at 30 percent as a Range I , standard offender. Finally , the plea agreement acknowledged
a disposition of the federal cases, in which the petitioner plea ded gu ilty prior to pleading in the Tipton County

cases. He rece

ived an effectiv e feder

al sente nce of a pproximate

ly ten years, a

nd the Tipton County disposition provided that the state sentenceswould be s erved c oncurre ntly withthe federal sentences.

The post-conviction evidentiary he aring consisted of testimony give n by counsel and the petitioner, and it is diffi cult to imagine more divergent acc ounts of the attorney- client
re la ti on sh ip le ad in g u p t o t he gu il ty p le as in fe de ra l c ou rt an d l at er in Ti pt on Co un ty.

The petiti oner testifi ed in the h earing that his co

unsel fa iled to co nsult with a

nd advise him and failed to proceed with a preliminary hearing. H e tes tified that, if he had been afforded a preliminary hea

ring, he would have understood the facts of the case. The petitioner assailed counsel for failing to pursue a motionto suppress evidence obtainedby the police during a warrantless search of the petition er’s reside nce. Even though the search was based upon a

writte n consen

t signed by t he petitio ner, the

petitione r compla ined that , when he signed the consent, he had alrea dy been a rrested without probable cause or a warrant. The petitioner testified that, when he called counsel to inquire about progre ss on the motion to supp ress, counsel told him that the motion had been heard in the petitioner’s absence and de nied.

The petitioner claimed that counsel failed to interv iew witnesses and th at even thou gh the defense

investigator interviewed witnesses, the interviews belatedly occ ured seven months after the petiti oner’s a

rrest when the news coverage had already

poisoned the attitudes of the witnesses agains tthe petitioner. The petitioner testified that counsel refused his requests for copies of motions, other court documents, and statements of prosecution witnesses.

The petit ioner cl aimed tha

t when he was tran sported t

o Tipton Cou

nty for court on August 17, 2001, he thought he w a s going to trial. He testifi ed that the new ch arge o f espec ially aggravated

sexual exploitation of a minor was a surprise to him and that counsel did not explain the nature and el ement s of th e charge. He tes tifi ed tha t he wa s conf used b y the new ch arge and that, in the absence of adequate advice and counsel, he was intimidated into pleading guilty . He tes tifie d that counsel did not explain that he would have to waive his right to a grand jury

determination of probable cause. He testified that counsel rea d the sentencing ranges to him fifteen minutes before the plea was submitted to the court. He testified, “I w as fighting a losing battle beca use I had a lawyer [who] kept

telling me I was g oing to lose and I was a liar. So I had no choice but to make my plea. None.”

The petitio ner a lso testified that counsel failed to secure credit for jail time served between October 20 and Decembe r 5, 2000.-3- Trial counsel testified that, from the time he accepted employ ment in the cases, the petitioner was pre eminently

concerned with the coercion element of the rape charg e and did not want to plead to any off

ense predicated on coercion. The pe titioner admitted to counsel that the petitioner
wa s indeed the person who was being fellated by the minor in the photogr aph. The pe titione r maintainedthat the act was not coerced, despite the victim’s statement that the petitioner entreated the victim to fellate him in exchange for the petitioner not publishing on the internet nude photos that the petitione

r had tak en of the victim. Cou

nsel described a conundrum wherein the petitioner refused to plead t

o the rap e charge and y

et the sta te had a s trong c ase via c ouplin g the victim’s testimonyand the graphic pict ure of the boy fe

llating the petitioner. In addition, counsel wa s troubled by the knowledg e that a sentence for rape c arried a releas e eligi

bility of 100 pe rcent, a s well
as the knowledge that the petitioner had admitted to being the other person in the photograph, thus complicating any

plans to have the petitioner testify in his own defense.

Counsel testified that

he obtained a mental evaluation of the petitioner, which failed to support any diminished capacity defense. He hired an investigator, who interviewed as many of the petitioner’s witnesses whom he could locate. “Any one who would talk to him,” counsel testified, “he talked to .” However, not o nly was the in

vestiga to r denie d access to the victim, but the investigation generally

uncovered no information helpful to the defense. In fa ct, counsel testified that at least one of the persons named by the petitioner h arbore d outrageously damaging opinions of the petitioner. When the investigation was complete, counsel felt that he had no bases upon which to build a credible defense.

Co u nsel testified that he held several lengthy meetings with the petitioner. The petitioner persiste d in seeking deta iled infor mation, a nd counse

l testif ied that t hey “discussed everything in immense detail.” He testified that he furnished the petitioner with copies of a l l document s and stat ements that the petitioner requested, although the flow of the ma terials was hampered by

the petitioner’s institutional, in-custody status.

Counsel testified that, prior to the sc he du le d p re li mi na ry h ea ri ng in Ti pt on Co un ty, he extensive ly in

terviewed the investigating office rs and his own investigator and opined to the petitioner that there was no need to have a preliminary hearing for discovery

purposes. He suggested to the pet itioner that, because there was no strateg ic need for a preliminary

hearing, the petitioner might wish to avoid the pu blic disclosure of the details of the offense, and for this rea son, the petit ioner agreed t o waiv e the p relim inary hear ing.

In the final an aly sis, couns el propos ed that a plea tothe state

charg es be ar

range d so that any convicti on offen ses would not be predicated

upon coercion. He testified that he negotiated and coor dinated p lea ag

reemen ts with both the f

ederal and state prosecu tors. The state prosecutor agreed to reduc e the ra

pe char ge to sta tutory rape, w hich had t he desir ed effect of re ducing

releas e eligibil ity from 100 percent of the sentence to 30 perc ent, but the state would agree only if the petitioner also would plead guilty to e specially ag gravated sexual exploitation of a minor and accept
an effective ten-y

ear sentence that featured a 30 percent release eligibility

. The state also required that the suppression motion be abandoned. Counsel secured a plea agreement for the fede

ral charges-4-

that yielded an e

ffective sentence of slightly more than ten ye ars, and he arranged for the federal disposition

to occur first sothat the state sentences could be imposed to run concurrently

with the federal sentences, as the state prosecutor had agreed.

Counsel maintained that

the petitioner was informed of the emerging plea structure seve ral weeks before the pleas were submitted and had agreed to the disposition in view of the elimination of coercion as an element. Counsel testified that he met with the petitioner for two hours before the federal plea was submitted and explained in detail the various components of the agree ment, including

the natur e and sev erity

of the es pecially

aggr avated s exual e xploita tion of a minor charg e, which

the state would bring by inf

ormation and which was the key stone to the overa

ll agree ment. He testified that he explained the meaning of charging the offense by

information and believedthat

he advised the petitioner that he would have to waive g rand jury c onsideration of the
new charge. I

n addition, the federaljudge conducted a rigorous, e xhaustive voir dire of the petitioner to verify the petiti oner’s u

ndersta nding of the plea agree ment. Following the fed eral pl ea heari ng, the Tipton County Circuit Court conducted a plea submission hearing on August 17, 2001, pursuant to Tennessee Rule of Criminal Procedure 11(c). The transcript of this plea submission hearing, which was ex hibite d to the post-conviction evidentiary

hearing , revea

ls that the petitione r acknowledged

his under standing

of his rights and

his waiver of same, including the right to be tried by a jury and

the right to appe al, in favor of pleading gu il ty. He acknowledged his understanding of the plea

a greement and confirmed that he wa s satisfied with the services of his attorney

.

Counsel testi fied t hat, a ltho ugh he had mo ved to suppr ess ev idenc e gained throu gh the officers’ warrantless searc h of the petitioner’s residence, he abandoned the motion because (1) the officers had obtained the petitioner’s consent in writing to search the residenc e and(2) the s tate ultimately

conditioned its plea offer upon the suppression issue being abandoned. Counsel believed that, because of the consent document, the odds were against the petitioner on the suppre ssion issue: “[We had] a case where he ga

ve explicit permission for the officers to search and seize any propert y in his trailer. He did it himself.” The consent form signed by the petitione r was exhibited to the evidentiary

hearing . On cros s-examina ti on , counsel admitted that he had not formed an opinion about whe

ther the petitione r had bee n arres ted befo

re he sig ned the c onsent fo

rm.
On cross-e

xamination, counsel w as asked whether he infor med the pe

ti ti oner tha

t, if the victim was an accomplice or consenting par ticipant in the fel lati o, the victim’s testimony would have to be corroborated. Counsel did not claim that he imparted this information; rather, he explained that, in his view, the extortion wrought against the victim would have been viewed by the court as vitiating the consent of the victim.

The post-conviction court entered extensive findings of fact and c onclusions of law, the grava men of wh

ich is that the petiti oner’s g

uilty plea wa s knowingly

and voluntarily enter

edand that the petitioner established neither deficient performanc e of counsel nor prejudice from counsel’s performance. Of parti cular in terest to this cour t on appea

l is the lower court’s specific finding that-5-

it accredited the testimony

of counsel over that

of the petitioner as to the many points on which the two di ffered . The j udge opined that, had the suppressionmotion been pressed and heard, the trial could would have denied the motion.

On appeal, the petitioner’s main ineffective-a ssistance-of-counsel focus is directed to the claims that (1) trial counsel did not inform the petitioner that a consent to search following an illegal arrest migh t have been tainted and voidable and that the damning photog raph found might have be en suppre ssed; and (2) with the photograph

suppress ed, the st

ate might not have

been ab le to corroborate the victim’s consensual act of fellatio.

In post-con

viction pr oceedings, the petitioner has the burden of proving by clear and convincing evidence the claims raised. Tenn. Code Ann . § 40-30-210( f) (1997). On appeal, the lower court's findings of fact are reviewed de novo with apresumpt ion of cor rectne ss that may

only be overcom

e if the evidence p

reponde rates a gainst t hose find ings. Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001).

When a petitioner

challenges the

effec tive assis tance of

counsel, he has the burden of establi shing (1) de fi ci en t r ep re se nt at io n a nd (2 ) p re ju di ce re su lt in g f

ro m t ha t d ef

ic ie nc y. Strickl and

v. Washington , 466 U.S. 6 68, 686, 10 4 S. Ct. 2052, 2064 (198 4); Baxter v. Rose , 5 2 3 S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel’s services fall below the rang e of comp etence

demande d of attor

ney s in crimin al case s. Bankston v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but fo r deficien t representation, the outcome of the proceedings woul d have been different. Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994). When it is alleged that the ineffective assistance of counse

l resulte d in
a gu il ty p lea, the burden is upon the petitioner to establish the prejudice prong of Strickland by proving that "the

re is a re asonable

probabil ity t hat, but f or counse l's e rrors, he would not have pleaded guilty and would ha

ve insisted on going to trial." Hill v. Lockhart , 474 U.S. 5 2, 59, 106 S. Ct. 366, 370 (1985). On review, there is a strong pr esumption of satisfactory r epresentation. Barr v. State , 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).

When reviewing the entry of a guilty plea , the overriding concern is whether the plea is knowingly, voluntarily

and understandingly

made. Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 1712 (1969). "[A] ple a is not 'voluntary ' if it is the product of 'ignoranc e, incomprehension, coercion, terro r, ind ucemen ts, [ or] s ubtl e or bl atant threat s. . . . ' " Blankenship v. State , 858 S.W.2d 897, 904 (T enn. 1 993) ( quot ing Boykin , 395 U.S. at 242-43, 89 S. Ct. at 1712). Moreover, a plea c annot be v oluntary if the defendant

is "inco mpetent o

r otherwise not in

cont rol of his mental

facilitie s" at the

time it is entered. Id . at 904-05 (quot ing Brown v. Perini , 718 F.2d 784, 788 (6th Cir.1983)). A defen dan t's plea of guilty is not constitutionally infirm or coerced merely bec ause the defendant opted to plead guilty as a means of avoidinga more severe sentence following a trial. See, e.g., Brady v. United States , 397 U.S. 742, 751, 90 S. Ct. 1463, 1471 (1970).

Our review of the record

and the applicable law gives us no pause in ag reeing that the petitioner failed to establish his post-conviction claims by c lear and convincing evidence.-6- We defer to the lowe

r court’ s credib ility

assessme nts. Because counsel’s testimony thus accre dited adequately addressed most of the issues raised by the petitioner, the denial of postconviction relief on those issues was proper.

Counsel did not, how ever, sq uarely controvert (1) the claim that he failed to an alyze andinform the petitioner about the post-arrest consent issue or (2) the claim that he failed to inform and advise the petitioner regarding the corroboration rule.
First, we look

at whether counsel was ineffective in fa iling to inform the petitioner of the possibility of suppressing the evide nce seized in the re sidence , especi ally in light o f a claim that the petitioner was under

arrest at the time he signed the consent form. See, e.g., Bentley v. State , 552 S.W.2d 778, 780 (Tenn. Crim. App. 1977) (holding that a search “under the circumstanc es shown in this record was a far cry removed from a free consent sea rch,” when t

he defend ant had refused “to perm it a search when arrested a

nd placed in custody

in the squa

d car. H is consen t came about only when told

they (police ) would g o get a

warrant if he did not consent and started the squad
car to do so”). Although the lower court determined tha t, as the trial court, it would not have sustained the motion to suppress, we need not determine whether the petitioner vol untarily cons ented to the search of his residence because, as a post-conviction petitioner alleging ineffective assistance of counsel, he has failed to prove this claim by clear and convincing evidence

. To be sure, the petitioner testified that the officers came to his residence and a rrested him withouta warrant and that he consented to the sea rch only after he was ar

rested. The rec ord is devoid, however, of any

proof of the circumstance s of the of ficers’ visit, whe

ther the y ha d probab le
cause to arrest the petitioner without a warrant, whether

the petitioner was in custody whe n he signed the consent f

orm, and whether the totality of the circumstances vitiated the petiti oner’s c onsent to the search. See id. (apply

ing “tot ality of the circumstances” test to determine whether the defenda nt, who was in custody, voluntarily consented t o the sea

rch of hi s reside

nce). T he absen ce of the se circumstances precludes a post-conviction court from determining that trial counsel w as remissin notdiscussing the issue more fully with the petitioner, especially whe n trial counsel testified that he believedthe suppression motion was doomed and that abandon ing it wa s a small pr

ice to pa y to gain concessions in plea bargaining. We stress that we are not suggesting

that a defendant complaining of a warra ntless search bears any

burden to establish the unreasonableness of the searc h; rather, when the task at hand is to demonstrate ineffective assistance of counsel, the burden is on the petitioner to establish

a matrix of facts from which counsel’s performanc e and any resulting prejudice

can be judged. The petitioner has failed to carr y this burden in the case

before us.

Next , we exami ne the issue of counsel’s performance in not discussing with the petitioner the accomplice corroboration rule.

In Tennessee, a conviction may not be based upon the uncorroborated testimony of
an accomplice. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). An accomplice is an individual who knowing ly, voluntar

ily a nd with common intent participates with the principal offender in the commission of an offense. State v. Lawson , 794 S.W.2d 363, 369 (Tenn. Cri m. App. 1990).-7-

Althou gh “ ‘[a] common test [of complicity] is whether the alleged ac complice could have been indicted for the offense,’” State v. Anderson , 985 S.W.2d 9, 16 (Tenn. Crim. App. 1997) (quoting State v. Perkinson , 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992)), this court has viewed the consenting victim of a statutory ra

pe as an accomplice. See State v. McKnight , 900 S.W.2d 36, 48 (Tenn. Crim. App. 1994). At any ra

te, when the facts are undisputed regar ding an individual’s participation in the crime, whether she is an accomplice is a question of law for the trial court. Perkinson , 867 S.W.2d at 7. Howev er, whe

n the facts are dis puted or s usceptib le to diff erent in ferenc es, it

is a question for the jury, Conner v. State , 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975), and the jury determines whether an accomplice's testimony has been sufficiently

corroborated, Pennin gton v. State , 478 S.W.2d 892, 898 (Tenn. Crim. App. 1971).

From the post-conviction record, all wecan discern about the claim that the young participan t c onsen ted to the fel lati o is t hat th e cons ent is sue wo uld h ave bee n dis puted , creat ing a jury question at trial whether

th e p et it io ne r c om mi tt ed th e c ha rg ed of fe ns e o f r ap e o r, al te rn at iv el y, the lesser offens e of statut ory rape. I n his evide

ntiary hearing testimony , trial co

unsel for cefully opined that a jury consider i ng a charge of rape would be sympathetic to and per suaded by the juvenile victi m that the pe titi oner ex torte d the “ conse nt” th rough t hreate ning t o publi sh nude photographs of the victim. See T e nn. Code Ann. §§ 39-13-503(a)(1) (1997) (rape is committed, inter alia , by o ne who unl awfully sexually penetra tes a vic tim when “ [f]orce or coerci on is used t

o accompl ish the act”), -501(1) (1997) (“‘Coer cion’ m eans threat of kidnapping, extortion , force or violence to be per

formed im

mediatel y or in the futur e . . . .”) (emphas is added) ; see also id. § 39-14- 112 (1997) (at least for purposes of property crimes, “[a] person commits extortion who uses coercionupon anot

her per son with the

intent to: ( 1 ) Obtain property , services, any advantage or immunity; or (2) Restrict u nlawfully another’s freedom of action .”) (emphasis added). In the face of trial counsel’s testimony and the a pplicable statutory law, the petitioner’s bald assertion that the victim consent e d to fellatio falls short of the mark in showing that counsel was remiss in not explaining that the victim’s trial testimony would have requir edcorroboration. In other w ords, we believe that the petitioner failed to prove by clear and convincing evidence that counsel performed deficiently or tha

t he was prejudiced by

counsel’s performance.

In view of the record

and the applicable law, we affirm the denia l of post-conviction relief.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE