IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 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, Marcus D. Polk, pled guilty in the Shelby County Criminal Court to criminal attempt

to commit first degree murder, especially aggravated robbery, and first degree murder and received

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

a petition for post-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’ briefs,

we affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

DAVID H. WELLES, J., joined.

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

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Dan Byer, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Factual Background

On April 20, 1998, the petitioner, Marcus D. Polk, pled guilty in the Shelby County

Criminal Court to criminal attempt to commit first degree murder, especially aggravated robbery,

and first degree murder. The trial court sentenced the petitioner to twenty years incarceration in the

Tennessee Department of Correction for the criminal attempt to commit first degree murder

conviction and to fifteen years incarceration for the especially aggravated robbery conviction with

the sentences to be served concurrently. The trial court further sentenced the petitioner to life

imprisonment for the first degree murder conviction, which sentence is to be served consecutively

to the other sentences for a total effective sentence of life imprisonment plus twenty years.

Subsequently, 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 case or keep the petitioner apprised of information concerning his case, (2) counsel

failed to inform the petitioner that the instant convictions could be used to enhance future sentences

or impeach the petitioner at later proceedings, and (3) counsel strongly encouraged him to plead

guilty and coerced him into pleading guilty by bringing 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 relief. 

II. Analysis

The petitioner must 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 substantial doubt about the correctness of the

conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.

1998). Generally, the post-conviction court, not the appellate courts, must determine witness

credibility as well as the weight and value to be accorded their testimony. Black v. State, 794

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 court 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 recently 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 that

presents a mixed question of law and fact . . . that is reviewed [on

appeal] under a de novo standard of review, consistent with the

standards set forth in the Rules of Appellate Procedure. As such, a

[post-conviction] court’s findings of fact underlying a claim of

ineffective assistance of counsel are reviewed on appeal under a de

novo standard, accompanied with a presumption that those findings

are correct unless the preponderance of the evidence is otherwise.

However, a [post-conviction] court’s conclusions of law--such as

whether counsel’s performance was deficient or whether that

deficiency was prejudicial--are reviewed under a purely de novo

standard, with no presumption of correctness given 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 counsel,the petitionermust demonstrate

that the performance of counsel was deficient and that such deficiency prejudiced the petitioner by

creating a reasonable probability that the result of his trial is unreliable or the proceedings were
1

 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 petitioner’s testimony at the post-conviction hearing and the argume nts in the petitione r’s

brief clearly show that he is only complaining of the ineffective assistance of Johnson, the lead counsel in his case.

-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 required of attorneys in criminal cases in evaluating whether or not counsel’s

performance was deficient. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Moreover, “[i]n

cases involving a guilty plea . . ., the petitioner must show ‘prejudice’ by demonstrating that, but for

counsel's errors, he would not have pleaded guilty but would have insisted 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 Investigate

The petitioner claims that his counsel was ineffective for failing to adequately

investigate his case, specifically alleging that counsel 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, only two of whom the petitioner claimed were actually interviewed by counsel. The

petitioner alleged that he had spoken with the remaining 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 the 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. State, 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. State, 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 infrequently, that

during those meetings counsel did not share with him information regarding the petitioner’s case,

and that counsel failed to discuss all aspects 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 with

the representation of counsel, but conceded that his only specific complaint to the trial court was 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 representation.

In direct contrast with the petitioner’stestimony, 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 that he met with the petitioner more times than the petitioner claimed.

Counsel testified that he discussed the case at length with the petitioner and made information the

petitioner requested available to him. Moreover, counsel stated that he explained all of the

petitioner’s rights to the petitioner and reviewed every piece of information relating to the plea

agreement with the petitioner. 
-4-

The post-conviction court chose to accredit the testimony of counsel that he had

thoroughly investigated the petitioner’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 find no evidence in the record to preponderate against 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, at *6 (Tenn. Crim. App. at Jackson, September 12, 1997). This

issue is without merit.

ii. Prior Record

In his brief on appeal, the petitioner contends that the post-conviction court erred in

failing to grant relief because counsel “failed to advise [the petitioner] of the State’s ability to use

his prior record against him both at this trial and in the future to either 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] convictions could be used to enhance punishment

for subsequent convictions.” Regardless of how the issue is phrased, the record clearly shows that

the petitioner did not present any evidence concerning this issue at the post-conviction hearing.

Accordingly, the petitioner has waived this issue. See Michael L. Gribble v. State, Nos. 02C01-

9303-CC-00039, 02C01-9303-CC-00045, 1995 WL 46379, at *5 (Tenn. Crim. App. at Jackson,

February 8, 1995) (stating that “[i]ssues . . . cannot be raised on appeal unless they have been fully

litigated at 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 assistance of counsel stems from his

attorney’s performance 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 plea hearing was before the post-conviction court, and the post-conviction court’s

decision was heavily based upon the contents of that transcript. It is the petitioner’s duty to make

sure that a complete and accurate record is before this court 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 Herrell, No. M1999-02475-CCA-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 the 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

representation of his attorney because he had specifically instructed counsel not to bring petitioner’s

mother to court on the day of trial. The petitioner 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 prepared to 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, counsel 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. Notably, 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, 1992 WL 361344, at *1 (Tenn.

Crim. App. at Jackson, December 9, 1992). 

The petitioner also contends that he pled guilty because of pressure from 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 hearing that he had entered the guilty pleas freely and voluntarily and of his own

accord. See Darrell Rittenberry v. State, No. 89-278-III, 1990 WL 124559, at *8 (Tenn. Crim. App.

at Nashville, August 29, 1990). The petitioner also testified that he knew he had the option of going

to trial. Specifically, when asked by his post-conviction counsel if, based upon his current

knowledge of his case, he would have done anything differently during the guilty plea hearing, the

petitioner conceded, “ I really–I really can’t say because if I had 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

not have known all of the information relating to his guilty plea until he was informed by the judge

prior to the plea, he nevertheless understood all the legal aspects of his decision.

Again, petitioner’s plea counsel 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. He 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 concerning his case

and the petitioner was aware of all aspects of the case. He contended that the petitioner was “in full

control” on the day of the guilty plea and 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 trial 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 were in fact ready 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 transcript of the guilty plea that [the petitioner] freely and

voluntarily entered that plea after having been fully advised of his

rights. It is this Court’s opinion that [counsel’s] representation of [the

petitioner] was outstanding in every regard and clearly met the

standards of [effective representation].

We conclude that because “the petitioner followed the advice of . . . his mother . . . and his trial

counsel does not mean that the plea was involuntary.” Adrian Waite v. State, 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

Finally, the petitioner claims that the cumulative effect of the foregoing errors

“serve[s] to show that he did not receive the level of representation required 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 foregoing, we affirm the judgment of the post-conviction court.

___________________________________ 

NORMA McGEE OGLE, JUDGE