### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ja nuary 11, 200 5

JOSHU A P ATR ICK T HOMP SON v. S TAT E OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Henderson Coun ty

No. 03-085 Roge r P age, Judge

No. W2004-00752-C CA-R 3-P C - F iled March 22, 2005

The pe titioner appea ls the denial of hi s petition for post-conviction re lief. Specific ally , he conte nds that the trial court erre d (1) in failing to find ineffe ctive assistanc e of tria l counsel, and ( 2) in denying the pe tit ion e r’ s mo tio n f

or a c on tin ua nc e . F oll ow ing ou r r e vie w, w e affi rm the de nia l of

po stconviction re lief.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OHN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the court, in which D AVI D G. H AYES a ndJ.C. M C L IN , J J ., joined.

Geor g e Morton Goog e, District Public De fende r, and D avid H. Crichton, Assistant Public Defe nder, for the a ppellant, J oshua Patrick Thompson.

Paul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; B re nt C . Ch e rry , A ssi stant A tto rn e y Ge ne ra l; J ames G. Woodall, District Attorney Gene ral; and A lfred L . Earls, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

Fa cts and Proce dural History

On Oc tob e r 2 9, 20 01 , th e pe tit ion e r, Joshu a Pa tr ic k T ho mps on , e nte re d p le a s o f g uil ty to three counts of attempted first deg ree murder and one count of ag g ravated robbery

. Pursuant to the ple a a g re e me nt, the tr ia l c ou rt se nte nc e d th e pe tit ion e r to an e ff e c tiv e se nte nc e of

thi rt y y e ars a s a R an ge Ioffe nder. O n October 28, 2002, the petitioner filed a pro s e p e ti ti o n f o r p o s t- conviction relief ; the re af

ter, the post-c onviction court appointed c ounsel and a n amende d petition was filed. I n the a me nd e d pe tit ion , the pe tition e r c la ime d: (1 ) that tr ia l c ou ns e l wa s ine ff e c tiv e in fai li ng to requ es t a for ensic psy chiatric evaluation of the petitioner prior to his plea s; and (2) that his pleasT h e pet i t i o ner doe s n ot c h al l en g e t h e pos t

- con v i ct i on c ou r t ’ s f i n di n g of

a k n owi n g a n d v ol u n t ar y pl ea on 1

a p p e a l.

-2- wer e not enter ed knowing ly and voluntarily

. The post-c onviction court held a n evidentiary hearing 1 on Fe bruary

24, 20 0 4 , an d there afte r denie d relief . The pe titioner now appe als to this C ourt contending that the post-conviction court err ed in: (1) failing to f ind ineffe ctive assistanc e of tria l counsel; and ( 2) fa iling to g rant a continuance to allow the petitioner the opport u n i t y t o hire a n
e xpe rt to d e te rm ine c omp e te nc y a t the tim e of the ple a s a nd

/or wh e the r the de fe ns e of

ins a nity c ou ld have be en sustained. F ollowing our revie w, we af

firm the trial c ourt’s denia l of post-conviction relief

. At the post-conviction hea ring , trial counsel testified t h at she discussed the pe titioner’s mental hea lth issues with hi m and that she understood the petitioner suffe red f rom depre ssion and de pe nd e nc y

iss ue s. She a c kn ow le dg e d, ho we ve r, that sh e wa s un a wa re the pe tit ion e r h a d p re vio us ly be e n s uic ida l. S he fu rthe r s ta te d that sh e re vie we d me dic a l re c or ds the pe tit ion e r’ s mo the r h a d in her posse ssion. Moreover , trial counsel testified that she knew the petitioner had be en tre ated at Cumberland He ights, but stated that she was unaw are he had r ece ived treatment as Parthenon Pavilion. Trial c ounsel also stated that she explained the possibili ty of convic tion and went over the various sente ncing issues s u ch as m itigating and enhanceme nt fac tors and the diff ere nce be tween Rang e I and Rang e I I

offe nders.

On cr oss-examination, trial counsel testified that she had no trouble communi cating with the pe tit ion e r. She fu rthe r t e sti fi e d t hat sh e fo rw ard e d c op ie s o f a ll d isc ov e ry to the pe tit ion e r f

or his

re vie w. Mo re ov e r, tr ia l c ou ns e l st a te d th a t sh e a ndthe pe tit ion e r we nt ov e r the dis c ov e ry ma te ri a ls toge ther and that he corr esponded with he r throug h articulate letters in w hich he asked q u es tions reg arding the ca se. F inally , she stated that she responde d to the petitioner’s que stions through letter s and that she ha d no trouble under standing what he w anted.
The pe titioner then testified that he told t rial counse l he had be en pre scribed me dicine for depre ssion while being treated at the Vita Psy chiatric Hospital. He further testified that he told trial counsel he had also be en tre ated at both Cum berla nd Heig hts and Parthenon Pavilion, but later stated that he “[couldn’t] say that [he] told he r every place that [he’d] bee n treated.” He also stated that he informed tria l counsel that, since be ing inc arc erated, he ha d not rec eived his medication and was experiencing depre ssion, lac k of sleep, and was “just space y .” He stated that when t ri al co u n sel learned of this she “ made c alls,” af ter whic h the peti t ioner be g an re ceiving his medication ag ain. More o v e r , h e s tate d th a t h is la s t tr e a tm e n t f o r me n ta l p r o b le ms w a s in 2 0 0 0

. F in a ll y , he acknow ledg ed that trial counsel forwa rded copies of all discovery to him and that he and his trial counsel c orre sponded re g arding the ca se throug h letters.

On c ro ss- e xami natio n, the pe tit ion e r a dmi tte d th a t he kne w an d und e rs too d the of fe ns e s w ith which he w as cha

rg ed. He further

reiter ated that he rec eived c opies of discove ry documents fr om tr ia l c ou ns e l a ndthat he wr ote le tte rs to t ri a l c ou ns e l di sc us sin g va ri ou s w itn ess es andthe ir testimony . Moreove r, the pe titioner testified that trial counse l responded in l et t er s and that he-3-

un d e r s to o d th e le tt e r s h e r e c e iv e d f r o m h e r

. F in a ll y , h e s tate d th a t, p r io r to b e in g c h ar g e d in the prese nt case , he wa s self-e mploy ed in a f inish dry wall business that he a nd his stepfather owned.

At the conc lusion of the hearing, the post-conviction cour t overr uled the petitioner’ s previously

introduced r equest to kee p the re cord ope n to obtain a fore nsic eva luation of the peti t i o n er ’s co mpetency . Specifica lly , the trial court opined, “[b] ased on the evidenc e I ’ve he ard today , I don’t think that I ’ve heard anything that would g ive m e a conce rn about Mr. Thompson’s competenc e at the time that he pled g uilty .”
Following the hea

ring , the post-conviction court dismi ssed the petition. The c ourt first fo und that the petitioner ha d failed t o p rove trial counsel’s re prese ntation fell below the r ang e of competenc e re quired of attorney s in criminal case s. I n support, the court noted that the petitioner’ s last treatment f

or substance abuse a nd depre ssion occurr ed two y ear s befor e the plea and one y ear be fo re the date of the su bje c t of fe ns e s. Th e c ou rt

a lso fo un d th a t tria l c ou ns e l w a s a ble to e ff e c tiv e ly

com m u nicate w ith the petitioner and that the pe titioner was able to participate in his defense

. Reg arding the involuntary pleas, the court found that no evidence was pre sented to show the plea s
wer e not knowing and voluntary ; rather , the court concluded that the petitioner made a dec ision that was in his best interest a nd avoided a longe r sentenc e. In sum, the court found that nothing showe d the pe tit ion e r w a s in c omp e te nt. F oll ow ing the dis mis sa l of the pe tit ion , the pe tit ion e r fi le d a tim e ly

app e a l to thi s Co urt.

An a ly sis

I . I neff ective A ssistance of Counsel

Th e pe tit ion e r f

ir st c on te nd s th a t he re c e ive d in e ff e c tiv e a ssi stanc e of c ou ns e l. Wh e n a c la im of ineff ective a ssistance of c ounsel is mad e u n d er t h e Six th Amendment, the petitioner be ars the burden of provin g (1 ) t hat counse l’s perf ormanc e wa s deficie nt, and (2) that the defic iency was pr e jud ic ia l in te rm s o f r e nd e ri ng a re a so na ble pr ob abil ity that th e re su lt o f the tr ia l w a s u nr e lia ble or the proc eeding s were fundame ntally unfair. Strickla nd v. Washington, 466 U.S. 668, 687, 104 S. Ct . 2 05 2, 20 64 , 8 0 L . E d. 2d67 4 (19 84 ). Th is s ta nd ardha s a lso be e n a pp lie d to the ri g ht t o counsel unde r Article I , Section 9 of the Te nnessee Constit ution. State v. Me lson, 772 S.W .2d 417, 419 n.2 (Tenn. 1989) . When a petitioner c laims ineffe ctive assistanc e of co u n s el i n relation to a g uiltyplea, the pe titioner must prove that counsel performed def iciently , and, but for c ounsel’s

e rr or s, the pe tit ion e r w ou ld n ot h a ve ple d g uil ty bu t wou ld ha ve , in ste a d, ins ist e d u po n g oin g to t ri a l. Hill v. L ockhart, 474 U.S. 52, 59, 106 S. C t. 366, 370, 88 L . Ed. 2d 203 (1985).

I n Ba x ter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) , our supre me court require d that the

s e r v i c e s b e r e n d e r e d w i t h i n t h e r a n g e o f c o m p e t e n c e d e m a n d e d o f a t t o r n e y s i n c r i m i n a l c a s e s

. In revie wing counsel’s c onduct, a “ fair assessment of attorney perf ormanc e require s that every eff ort be made to eliminate the distorting e ffe cts of hindsig ht, to rec onstruct the cir cumstance s of counse l’s challeng ed conduct, and to e valuate the conduct f rom counsel’ s perspe ctive at the time.” Strickland, 466 U.S. at 689, 104 S. Ct . at 2065; see Nichols v. State, 90 S.W .3d 576, 587 (Tenn. 2002)

.-4-

The petitioner bear s the burden of proving by clea r and convincing evidenc e t h e fac tual

a lle g a tio ns that w ou ld e nti tle the pe tit ion e r to re lie f. Te nn

. Cod e An n. § 4 0- 30 -1 10 (f ) ( 20 04 ). Th is Court is bound bythe post-conviction court’s finding s of fa ct unless the evide nce pr eponder ates ag ainst those finding s. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

I n th e pr e se nt c a se , th e pet it ion e r c on te nd s th a t tria l c ou ns e l w a s in e ff e c tiv e in f

a ili ng to
re qu e st a ps y c hiatr ic e va luatio n p ri or to the e ntry

of his g uil ty plea s. Spe c if

ic a lly , h e a ve rs that, be c a us e he ha d pr e vio us ly a tte mpt e d su ic ide a ndwa s d ia g no se d w ith “ ho mic ida l id e a tio n” up on his

e ntry a t Pa rthe no n Pa vil ion , d efense c ou ns e l sh ou ld h a ve re qu e ste d a ps y c ho log ic a l e va luatio n in order to assess any

exis ting menta l defe ct which mig ht have a ffe cted his def ense.

Ho we ve r, the po st- c on vic tio n c ou rt didno t f indthat tria l c ou ns e l’ s a c tio ns amo unte d to ine ff e c tiv e a ssi sta nc e . Rathe r, the c ou rt fo un d th a t tria l c ou ns e l w a s a ble to c ommun ic a te e ff

e c tiv e ly with the petitioner and that the petitioner was able to participate in his defense . Further, the c ourt found that the pe titioner’s substanceabuse and depre ssion problems were far remove d in time from the subj e c t o f

f e n s e s a n d th e g u il ty p le a a n d th a t h e w a s p r o p e r ly tr e a te d f o r d e p r e s s io n d u r in g the pertinent time period. Ba sed on these f indings, the post-c onviction court held that trial c ounsel’s failure to reque st a mental eva luation did not amount to i neff ective a ssistance of c ounsel.
Upon re view o f t h e re cord, w e conc lude that the evide nce pr esente d on appea l does not preponde rate ag ainst the finding s of the post-conviction court. I nitially , we note that the petitioner’s

a lle g a tio ns of

“ ho mic ida l id e a tio n” are no t su pp orte d in the me dic a l r e c or ds fi le d at th e po stconviction hea

ring . I n fac t, the medical r ecor ds from Cumberland H eig hts (collectively Ex hibit 1) indicate that the pe titioner denied curr ent homicidal or suicidal ideation and that he was tre ated f or drug and alc ohol abuse. More over, rec ords from Parthenon Pavilion (c ollectively Ex hibit 2) refle ct that the petitioner was treated for depre ssion a nd substance abuse. Also included in those rec ords

was a discharg e form that stated that the petitioner wa s “not psy chotic – not suicidal.”
Although the petitioner wa s previously hospitaliz ed for

depre ssion and depende ncy , it was

rea sonable that trial c ounsel did not call his competenc e into question. As the trial court noted, the instances of hospitaliz ation occur red long befor e the subject offe nse. Moreove r, tri al co u nsel

ensure d that the petitioner prope rly rec eived his medication and, by all acc ounts, was able to c arry
on a mea ningf

ul attorney -client re lationship with hi m. The re cord r efle ct s t h at all discovery was forward ed t o and discussed w ith the petitioner and that he was a ctively involved in his defense

. Mo re ov e r, the te sti mon y

re ve a ls that th e lin e s o f c ommun ic a tio n w e re op e n a ndus e d b y bo th p art ie s, allowing the petitioner to make well-informed dec isions. I n sum, the petitioner has fa iled to show by c le ar an d co nv inc ing e vid e nc e that tria l cou ns e l’ s f a ilu re to r e qu e st a

me nta l e va luatio n p ri or

to his pleas constituted defic ient perf ormanc e.

I I . Denial of

Continuance

The petitioner also challeng es the trial court’s denial of a continuance to obta in an ex pert opinion on the pe titioner’s competenc y and a potential insanity defe nse. I nitially , we note that the-5-

petitioner did not reque st a continuance , as such. Rathe r, the trial transcript re flec ts the following state me nt b y

de fe ns e c ou ns e l: Now, we can e ither ask this Court to a llow him [to have a f orensic e valuation] – And I ’m not sure if we’ re e ntitled to that. Ihaven’ t expl ained this to Mr. Thompson at thi s st a g e . I

do n’ t th ink

we ’r e e nti tle d to that. So a s a n a lte rn a tiv e we wo uld a sk to a llo w t o b e able to k e e p th e re c or d o pe n u nti l such time that if they

can a ffor d to have him evaluated out of t heir own funds, they

c a n d o th a t th e n s ub mit

that to the Cou rt

. The c ourt went on to t ake the petitioner’s “motion” under advisement unt il afte r t he proof was he ard. Ultimately

finding that a for ensic e valuation was unne cessa ry , the trial court overrule d the petitioner’s motion.

I n the prese nt c ase, the post-conviction court found that the testimony elicited at the hea ring did not “g ive [the court] a conce rn about [the petitioner’s] competenc e at the time that he pled g ui l ty ” and, thus, de nied the petitioner’ s motion for time to submi t further proof r eg arding

c omp e te nc e . We a g re e a ndc on c lud e that th e po st- c on vic tion c ou rt didno t a bu se its dis c re tio n in deny ing the petitioner’s re quest.

Th e re c or d r e fl e c ts that le ng thy te sti mon y

wa s e lic ite d f

ro m th e pe titio ner re g ard ing his knowledg e of right f

rom wrong , his mental health history , his c ommunication w ith tria l c ounsel up to the time of his pleas, and his under standing of the c harg es and evidenc e against him. Moreove r, the petitioner ha d more than f our months betwee n the fil ing of the amended petition and the hea ring in which to obtain an eva luation or to reque st a continuanc e; howeve r, he f ailed to do so.
Finally , we que stion whether a fore nsic eva luation at the time of the post-conviction hea ring would have she d any

light on the pe titioner’s mental state at the time of the offe nse. We theref ore conclude that the trial court was within its dis cre tion in overruling the petitioner’s motion and

re s o l v i n g t h e i s s u e o f c o m p et en ce o n t h e t es t i m o n y p re s en t ed at t h e h ea ri n g.

Conclusion

Ba sed on the fore g oing, and the re cord a s a whole, w e af firm the denia l of post-conviction relief

.

___________________________________ J OHN EV ERETT WI LL I AMS, J UDGE