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

arch 7, 2001

MARCUS D. POLK v. STATE OF TENNESSEE

Appeal as of Right from the Criminal Court for Shelby County

No. P-20491 Joseph B. Dailey, Judge

No. W2000-01057-CCA-R3-PC - Filed July 13, 2001

The petitioner, Marc

us D. Polk, pled gui

lty in the Shel

by County

Criminal Court to

criminal attempt to commit first degree murder, especially aggravated robber y, and first degree murder and rece ived

a total effective sentence of life imprisonment plus twenty years. Subsequently , the petitioner filed

a petition f

or po st-conviction relief alleging the ineffective assistance of his plea counsel, which petition was denied by the post-conviction court. Upon review of the record and

the parties’ brie

fs, we affirm the jud

gment of the post-

conviction court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which G AR Y R. W ADE , P.J., and D AVID H. W ELLES , J., joined.

R. Price Harris, Memphis, Tennessee, for the appellant, Marcus D. Polk.

Paul G. S umm ers , At tor ney G ener al a nd R epo rte r; J . Ro ss D yer, A ssi sta nt A tto rney G eneral ; William L. Gibbons, District Attorney General; and Da

n Byer, As sistant District Att orney Gene

ral, for the appellee, State of Tennessee.

OPINION

I. Factual Backgr

ound On April20, 1998, the petitioner, Marcus D. Polk, pled guilty in the Shelby C

ounty Criminal Court to criminal at tempt to commit first d

egree murder

, especially

aggravate

d robber y, and first degree murder. The trial court sentenced the pe

titioner to twenty

years incarceration in the Tennessee Depart ment of Correction for the criminal attempt to commit first degree murder conviction and to fifteen years inca rceration for th

e especially

aggravated

robbery c

onviction with the sentences to be se

rved concurre

ntly. The tri

a l court furt her sentenced the petitioner to life imprisonment for the first degree murder convictio

n, which sentence

is to be served con

secutively to the other sentenc

es for a total eff

ective sentence

of life imprisonme

nt plus twenty

years. Sub seq uen tly, the petitioner filed a petition for post-conviction relief alleging that (1) he received-2-

the ineffective assistance of his plea counsel because his plea counsel

did not adequately

investigate the petitioner’s cas

e or keep the petitioner apprised of information concerning his case, (2) counsel failedto inform the petitioner that the instant convictions could be used to enhance future sentences

or impeach the p et itioner at later proceedings, and (3) counsel strongly encouraged him to plead guilty and coerced him

into pleading guilty by bring ing the petitioner’s mother to the courtroom on the day of trial. After an evidentiary hearing, the post-conviction court denied the petition for

relief. On appeal, the petitioner presents the following issue for our review: whether the post-conviction court erred by failing to grant the petition for re lief.

II. Analysis The petitioner

m ust prove all factual allegations contained in his post-conviction petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). “Evidence is clear and convincing when there is no serious or s ubstantia l doubt about the correctness of the conclusions drawn from the evidence.” Hicks v. State , 983 S.W.2d 24 0, 24 5 (Tenn. Crim. App. 1998). Generally

, the post-convict

ion court, not the a

ppellate courts,

must determine witn

ess
cre dibility

as well as the weight and value to be accorded their testimony. Black v. St ate , 79 4 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Accordingly, this court will confer the weight of a jury verdict upon the findings made by the post-conviction c

ourt at a hearing after observing witnesses testify and considering conflicting testimony. Bratton v. State , 477 S.W.2d 754, 756 (Tenn. Crim. App. 1971).

As to the specific issue raised by the petitioner, our supreme court rece ntly clarified the standard for reviewing claims of ineffective assistance of counsel by stating that

a [post-conviction] court’s conclusion as to whether a petitioner has been denied the effective assistance of counsel is an issue th at presents a mixed questio n of law and fact . . . that is reviewed [on appeal] under a de novo standard of review, consistent with the standards set forth in the Rule s of Appellate Pr

oce dure. As such, a [post-convicti

on] court’s findings of fact underlying a claim of ineffective assistance of cou nsel are reviewed on appeal under a de

novo standard, accompanied with a presu mption th at those fi ndings

are correct unless the preponderance of the evidence is otherwise. However, a [post-conviction ] court’s c onclus ions of law-- such as whether counsel’s performance was deficient or whether that deficiency

was prejudicial--are reviewed under a purel y de novo standard
, wi th no presumption of correctness g

iven to the [postconviction] court’s conclusions. Fields v. State

, 40 S.W.3d 450, 458 (Tenn. 2001).

A. Ineffective Assistance of Counsel In order to establish ineffective assistance of co unsel, the petitioner must de monstrate that the performance of counsel was deficient and that such deficiency prejudiced the petitioner by creating a reasonable pr

obability tha

t the result of his tr

ial is unreliable or the proceedings were1 The reco rd indicates th at the petitioner was represe nted at the time of the guilty plea by Ron Johnson and

Betty Thomas. However, the peti tioner’s testimony a

t the post

-convic tion hearing and the argume nts in the petitione r’s brief clear

ly show that

he is only complaining of t he ineffect

ive assis tance of Johnson,

the lead counsel

in his cas e.

-3- fundamentally

unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To this end, this court must decide whether counsel’s performance was within the range of competence requir

ed of attor neys in criminal cases in evaluating whether or not counsel’s performance

was deficient. Baxter v. Rose , 523 S. W.2d 93 0, 936 (Te nn. 1975).

Moreover

, “[i]n

cases involving a guilty plea . . ., the petitioner mu st show ‘prejudice ’ by demonstr ating that,but for counsel's errors, he would not have pleaded

guilty but w

ould have insis ted upon going to trial.” Hicks
, 983 S.W.2d at 246; see also Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

i. Failure to I

nvestigate The petitioner claims that his couns el was ineffective for failing to a

dequately investigate

his case, specif

ically alle ging that couns

el did not interview

all available

witnesses. 1 The petitioner testified at the post-conviction hearing that he gave counsel a list of the names of potential witnesses, on ly two of whom the petitioner claimed were actually interviewed by counsel. The petitioner alleg

ed that he had spok

en with the remain

ing people on the

list and had confirmed that they were never contacted by counsel. However, none of these potential witnesses testified on the petitioner’s behalf at t

he post-conviction hearing. See Thompson v. State , 958 S.W.2d 156, 164 (Tenn. Crim. App. 1997) (finding that this court is not permitted to speculate as to what a potential witness’ testimony might have been); William A. Holt, Jr. v. Sta te , No. M2000-01603-

CCA-R3-PC, 2000 WL 1612352, at *3 (Tenn. Crim. App. at Nashville, October 30, 2000), perm. to appeal denied
, (Tenn. 2001). Moreover, the petitioner did not state what evidence these witnesses would have offered had

counsel spoken with them. See Clonte Thomas v. Stat e , No. 02C01-9408-CR-00167, 1995 WL 120220, at *2 (Tenn. Crim. App. at Jackson, March 22, 1995).

The petitioner additionally maintained that he met with counsel infreque ntly, that during those meetings c

ounsel did not share

with him information regarding the petitioner’s case, and that counsel failed to discuss all aspec ts of a guilty plea with the petitioner. The petitioner testified that he informed the trial judge during the guilty plea hearing that he

was not satisfied w

ith the representation of counsel, but conceded that his only specific complaint to the trial court wa s that he did not like counsel’s demeanor. The petitioner admitted that he did not tell the trial court that counsel had provided ineffective assistance during the course of counsel’s repre sentation.

In direct contrast with the petitioner ’s tes tim ony, the petitioner’s plea counsel testified that he had thoroughly investigated the petitioner’s case. Counsel maintained that either he or the investigator

associated with his office spoke with every potential witness on the list provided by the petitioner. He asserted t hat he met wi th the petitioner more times than the petitioner claimed. Counsel testified th

at he discussed the

case at length w

ith the petitioner andmade information the petitioner requested available to him. Moreover, couns el stated that he explained all of the petitioner’s rights to the petitioner and reviewed every piece of informat ion relatin g to the plea agreement with the petitioner.-4- The post-conviction court chose to accredit the testimony of counsel that he had thoroughly

investigated th

e petition er’s case, that he was prepared to go to trial, and that he had sufficiently

discussed the case with the petitioner. See Thomas , No. 02C01-9408-CR-00167, 1995 WL 120220, at *2. We can fi nd no evidenc e in the record to preponderate a

gainst the postconviction court’s findings because “[t]he [post-conviction] court was in a much better position to evaluate the credibility of the witnesses than this Court.” Tyrone Henderson v. State , No. 02C01- 9610-CR-00376, 1997 WL 566053, a t *6 (Tenn. Crim. App. at Jackson, September 12, 1997). This issue is without meri

t.

ii. Prior Record In his brief

on appeal, the petitioner co ntends that the post

-conviction cour

t erred in failing to grant relief because counsel “failed to advise [the petitioner] of the State’s abi lity to use his prior record ag

ainst him both at this tr

ial and in the future to eithe

r impeach his

credibility and/or enhance punishment.” However, in the petitioner’s original petition for post-conviction relief, he argues that “he was not informed that the [instant] convict

ions could

be used to enhance punishment for subsequent convic

tions.” Regardl

ess of how the issue is phrased, the record clearly shows that the petitioner did not p

resent any

evidence conce

rning this issue a

t the post- c onviction hearing. Acco rdi ngly, the petitioner ha s waiv ed this issue. See Michael L. Gr ibble v. State , Nos. 02C01- 9303-CC-00039, 02C01-9303-CC-00045, 1995 WL 46379, at *5 (Tenn. Cri m. App. at Jackson, February 8, 1995) (stating that “[i]ssues . . . cannot be raised on appeal unless th

ey have be

en fully litigatedat the [post-conviction] court level”) ; see also Willie L. Pegues v. State , No. 02C01-9705- CR-00182, 1998 WL 155441, at *3 (Tenn. Crim. App. at Jackson, April 6, 1998)

.
iii. Coerced Plea The petitioner’s third claim of ineffective as sist ance of counsel stems from his attorney’sperformance during the guilty plea proceedings. However, we note that the petitioner has failed to include in the record for our review a transcript of the guilty plea hearing. The transcript of the guilty p

lea hearing wa

s before the post-

conviction court,

and the po st-conviction court’s decision was heavily based upon the contents of that transcript. I

t is the petitioner’ s duty

to make

sure that a complete and accurate record is before this cou

rt on appeal;

otherwise, the issues raised by the petitioner

may be considered waived. See Thompson , 958 S.W.2d at 172; State v.William Ricky Wayne Herr

ell , No. M1999

-02475-CC

A-R3-CD,

2000 WL 804712, at

*4 (Tenn. Crim. App. at Nashville, June 23, 2000). However, based upon the testimony at the post-conviction hearing, we

can conclude that t he weight of the evidence does not preponderate against the post-conviction court’s findings of fact.

The petitioner testified at

the post-conviction hearing that he was displeased with the representationof his attorney because he had specifically instructed counsel not to bring petitioner’s mother to court on t

he day of tr

ial. The petitione

r explained that he

made this request

because his mother had repeatedly asked him to plead guilty instead of going to trial to avoid the risk of receiving

a sentence of death. However, counsel testified he was prepar ed t o go to trial and he foresaw a possible need for the petitioner’s mother to testify after trial should a sentencing hearing be held that day. Accordingly, c

ounsel requested that the petitioner’s mother be present in court on the day of-5-

the petitioner’s trial. The petitioner testified that, when he entered the courtroom and saw his mother crying, he became so upset that he immediately made the decision to plead guilty

. No tably, the petitioner repeatedly testified at the post-conviction hearing that the decision to plead guilty was his. See Donald Robert Smith, Jr. v. State , No. 02C01 -9111-CR- 00244, 199

2 WL 361344, at *1 (Tenn. Crim. App. at Jackson, December 9, 1992).

The petitioner also co

ntends that he pled gu ilty becaus e of pressure fr

om counsel. He testified that he felt that his counsel did not want to represent him at trial and did not discuss all aspects of the case with him. However, the petitioner admitted that he had told the trial court during his guilty plea hear

ing that he had entered the guilty pleas free ly and voluntarily and of his own accord. See Darrell Rittenberry v. State , No. 89-2 78-II I, 1990 W L 124559, at *8 (Tenn. Crim. App. at Nashville, August 29, 1990). Thepetitioner also testified that he knew he had the option of going to trial. Sp eci fic all y, when asked by his post-conviction counsel if, based upon his current knowledge of his case, he would have done anything differentl y during the guil ty plea hearing, the petitioner conce

ded, “ I rea

lly–I re ally can’t say because if I ha

d a choice to do anything different, I could have did

it while I was on the stand.” Additionally, the petitioner stated that, while he may nothave known all of t

he information re

lating to his

guilty plea until he was

informed b y the judge prior to the plea, he nevertheless understood all the legal aspects of his decision.

Again, petitioner’s plea c ounsel testified that he thoroughly investigated the petitioner’s case. Counsel testified that he had worked for

the public defender’s office for eighteen years, approximately seven of which he spent working on the capital defense team through which he encountered the petitioner . H e maintained that he was prepared to go to trial on the day of the petitioner’s guilty plea. He averred that he talked

with the petitioner

at length conce

rning his case and the petitioner was aware of all aspects of the case. He contended that the

petitioner was “i

n full control”on the day of the guilty plea a nd was no more “stressed” than the typical defendant in the petitioner’s position. Counsel did admit that he advised the petitioner against going to trial because of the strength of the State’s case, but noted that he made the petitioner aware that the decision to plead guilty

or proceed to tri

al was ultimately

the petitioner’s.

The post-conviction court found: [I]t is very apparent to this Court that [petitioner’s counsel] provided excellent representation

for [the petitioner

]. [Counsel] did

everything that could have been reasonably expected.... and w

ere in fact rea

dy to proceed with trial. . . . It was [the petitioner] who chose to change his plea from not guilty

to guilty on that date. It is abundantly clear from the tran script of the guilty plea that [the petitioner] freely a nd volu nta rily

entered that ple

a after having

been fully a

dvised of his rights. It is this Court’s opinion that [counsel’s] representation of [the petitio ner] w as outstanding in every regard and clea rly met the standard s of [effe ctive rep resentat ion]. We conclude that because “the pe titioner follow ed the advice of . . . his mother . . . and his trial counsel does not mean that the plea was involuntary.” Adrian Waite v. Stat e , No. 03C01-9809-CR

--6-

00343, 1999 WL 642927, at *3 (Tenn. Crim. App. at Knoxville, August 25, 1999), perm. to appeal denied , (Tenn. 2000).

iv. Cumulative Error

Fin all y, the petitioner claims that the cumulative effect of the fo regoing errors “serve[s] to show that he did not receive the lev el o f rep res ent ati on r equ ire d by [ Strickland and Baxter ].” However, because we have found no error, we deem the petitioner’s final allegation to be without merit.

III. Conclusion

Based upon the f

oregoing, we

affirm the judg

ment of the post-c

onviction court.

___________________________________ NORMA McGEE OGLE, JUDGE