### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d onBr ie fs Ja nua ry 23, 200 7

JEREM Y WA YN E P ITTA RD v. S TAT E OF TEN NES SEE

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

No. F -58102 Don R. Ash, Judge

No. M2006- 01834-CCA -R3-P C - F iled on Ju ne 21, 2007

P e t i t i o n e r , J e r e m y W ayn e P i t t ar d , w a s i n d i c t e d o no n e c o u n to f

r a p e o f a c h i l d , a

C l a s s A f

e l o n y. P e t i t i o n e r e n t e r e d a b e s ti n t e r e s tp l e a

t o t h e o f f e n s e o f a t t e mp t e d r a

p e o f a c h i l d , a

C l a s s B f e l o n y, and ag ree d to a sentenc e of twelve y ear s as a Rang e I standard of

fende r. Petitioner ar g ues on appe al that the t rial court err ed in denying him post -convic tion relief. Af ter a thoroug h revie w, we a ffirm the jud g me nt o f t

he po st- c on vic tio n c ourt

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

T H O M A S T. W O O D A LL , J

. , d el i v er ed the opinion of the cour t, in which D AVI D H. W EL L ES and R OB E R T W. W EDEMEYER , J J ., joined.

Dale O . Quillen, Nashville, Tenne ssee, f or the a ppellant, J ere my

Way ne Pittard.

Rob e rt E. Coo pe r, Jr., Attor ne y Ge ne ra l and

Re po rt e r; Pr e sto n Sh ipp , A ssi sta nt A tto rn e y

Ge ne ra l; Wil liam C. W hitesell, J r., Di strict Attorney Gene ral; and L aure l Nutt, Assist ant District Attorney Gene ral, for

the appe llee, the State of Tenne ssee.
OP IN ION

I. Bac kgr ound

Th e min or

vic timwi ll b e re fe rr e d to by he r ini tia ls, L .P. Ac c or din g to t he state me nt o f f

a c ts pr e se nte d b y

the State a t Pe tit ion e r’ s ple a su bmi ssi on he ari ng , Pe tit ion e r t ho ug ht t hat L .P. wa s h is daug hter whe n she wa s born b u t s u b sequent DN A testing reve aled that Petitioner wa s not L .P.’s fathe r. Pe tit ion e r c on tin

ue d, ho we ve r, to s pe nd

tim e wi th L .P. Pe tit ion e r p ic ke d u p thre e -ye ar- old L .P. fr om h e r m oth e r’ s h ome and dr ov e he r t o Pe tit ion e r’ s h ome in R uth e rf or d County . A t so me po int duri ngthe ri de to Pet iti on e r’ s home , Peti tio ne r an d L .P. sto pp e d to us e the re str oo m. T he State p r o v i d e d t h e f o l l o w i n g s u m m ar

y:-2-

And eve nts occurr ed whe rea s the l ittle g irl was pe netrated and wa s bleedingand hurt and wa s eventua lly

taken to the do ctor, a

nd it was established that she ha d been sexually penetr ated. And there was some medical damag e. [L .P.] was [three] y ear s old at the t ime. She did not make a state ment beca use of he r ag e, but she did make some excited utteranc es identifying the defe ndant [as the one] who penetrated her

. At the plea submissi on hear ing, the trial court questioned Petitioner as re quired by Rule 11 of the Te nnessee Rules of Criminal Procedure . Petitioner acknow ledg ed that no one ha d forc ed or
coer ced him into enter ing his be st interest plea, and he did not indicate any disag ree ment with the State ’s state me nt o f t

he fa c ts s up po rt ingthe c ha rg e d o ff e ns e . Pe tit ion e r a c kn ow le dg e d th a t c e rt a in constitutional rights we re w aived as a re sult of the entry of his plea. Petitioner infor med the trial court that he had r eviewe d the plea a g ree ment with his counsel, and that his counsel ha d explained to h im the ra

nge of puni sh me nt f

or the c ha rg e d o ff e ns e , w hat th e State wo uld have to p ro ve to
su pp or t a c on vi c tio n, and

any de fe ns e s h e mig ht h a ve . Pe tit ion e r a c kn ow le dg e d th a t he and his counsel ha d discussed the c ase “ extensively .”

Trial counse l informed the trial court at the plea submissi on hear ing that Petiti oner ha d been mentally evaluated by

the Guidanc e Center while i ncar cer ated on the current cha rg es and ha d been found compe tent to enter into his neg otiated plea a g ree ment. Petitione r ac knowledg ed that he understood the results of hi s mental evaluation. Trial counsel asked Petitioner whe ther Petitioner
was c onfident that he had understood all of the leg al terms that had a risen duringtheir conve rsations
a bo ut t he c a se , a nd Pe tit ion e r r e sp on de d, “ Ye s, sir .” Th e tr ia l court c on c lud e d th a t th e fa c tua l ba sis prese nted by

the State was suf

ficient to support a be st interest plea to the charg e of attempted rape of a c hild.

II. P os t- Co nvi c ti on H e ar ing

D r

. K i mb e r l y B r o w n , d i r e c t o r o f t h e f o r e n s i c e v a l u a t i o nt e a ma tV an d e r b i l tU n i v e r s i t y, testif ie d o n Pe ti ti o n e r ’ s b e h a lf

. D r

. B r o w n w a s qu a li f

ie d a s an e xp e rt in h e r f

ie ld

. Dr. B rown testified that at post-convic tion counsel’s re quest, she had r eviewe d Petitioner’s numerous medic al
rec ords, administered psycholog ical tests to Petitioner on April 10, 2006, and conducted a c linical fore nsic interview. D r. B rown said that as par t of her e valuation she a lso reviewe d the videotape and
corr esponding transcr ipt of Petiti oner’ s statement to the investig ating o ff i ce rs about the cha

rg ed of fe ns e wh ic h h a d b e e n ta

ke n o n N ov e mbe r 2 4, 20 03 . Ba se d on Peti tio ne r’ s inte rv ie ws , te st r e su lts , and the r eview of

the videotape of Petitioner’s stateme nt to the poli ce , Dr

. Br own conc luded that Petitioner was “of

border line intellectual functioning,” and that his statement to the police w as not knowing ly

or intellige ntly

made.

Dr. B rown a cknowledg ed that her evalua t ion occur

red more than a y ear

afte r Petitioner’s g uilty plea submission hearing . Dr. B rown said that he r eva luation o f P et i t i o ner’ s competenc y during the taking of his state ment to the police was based solely on her revie w of the transc ript and videotape of

the eve nt. Dr. B rown a cknowledg ed that she also eva luated Petitioner’s c ompetency to s tand tr ia l, b ut t

hat r e po rt wa s n ot i nc lud e d in t he report i ntr od uc e d a s a n e xhibi t at th e po st--3-

conviction hea

ring

. Dr. Brown said that it was her conclusion that Petitioner was competent to enter int o a ne g oti a te d p le a

a g re e me nt.

Pe tit ion e r’ s tr ia l c ouns e l id e nti fi e d th e vid e ota pe and tr ans c ri pt o f Pet iti on e r’ s st a te me nt t o the p o l i ce

. On cross-examination, trial counsel testified that both he and Petitioner w atche d the videotape, and t hey discussed P etitioner’s int ervie w wit h the i nvestig ating office rs. Trial counsel tol d Pe tit ion e r t

hat he c ou ld fi le a mot ion to su pp re ss the state me nt, but tr ia l c ouns e l sa id t hat he did not see a “g reat likelihood” that Petiti oner w ould preva il on the motion. Trial counsel said that he discussed the State’s e vidence wh i ch i n cl u ded L .P.’s medical re cords. Tr ial counsel stated that Pe tit ion e r d e c ide d to e nte r a be st i nte re st p le a

ba se d o n a ll o f t

he e vid e nc e , n ot j us t his s tate me nt t o the police. Petitioner did not testify

at the post-convic tion hearing . The trial c ourt noted that a me ntal evaluation of Pe t i t i o ner ha d been c onducted pr ior to the g uilty plea submission hearing , and that Petitioner was found competent to enter into a neg otiated plea a g ree ment. The trial c ourt found that Petitioner’s trial counse l had re ndere d eff ective a ssistance of c ounsel duringthe neg otiation of Pe tit ion e r’ s p le a

. Th e tr ia l court fo un d that eve n if tri a l cou ns e l’ s ass ist anc e wa s def

ic ie nt i n s ome re g ard , Pe tit ion e r h a d f

a ile d to sh owthat th e re su lt o f t he pr oc e e din g wo uld

have be e n d if

fe re nt.

III . A nal ys is

I n his appea l, Petitioner argues that trial counsel’s a ssistance wa s deficie nt beca use he f ailed to adequately

investigate Petitioner’s mental c apac ity at the time Petitioner g ave his stateme nt to the po lic e , w hic h ev a luatio n Peti tio ne r co nte nd s w ou ld h a ve sh ow n th a t hi s w a ive r o f h is Miranda ri g hts was not knowing ly

or voluntarily

made. Petitioner a

rgues that but for tria l counsel’s de ficient perf ormanc e, ther e is a re asonable probability that he would not have enter ed into a plea ag ree ment based on the three -y ear -old victim’s inability to provide more than “e x cited uttera nces” as evide nce ag ainst him and her inability to provide a spe cific time fr ame f or the off ense. When a petitioner see ks post-conviction relief on the b as is of ineffe ctive assistanc e of counsel, the pe titioner bear s the burden of showing that the service s rende red by trial counsel we re defic ient and that the de ficient pe rfor mance was pre

judicial. Se e Po we rs v. Sta te , 942 S.W .2d 551, 558 (Tenn. Crim. App. 1996). When a pe titioner claims ineffe ctive assistanc e of c ounsel in relation to a g uilty plea, the pe titioner must prove that counsel pe rfor med def iciently and, “but for counse l’s
err ors, he would not have plea ded guilty and would have insisted on goingto trial.” Hi ll v . Lo c k ha rt , 474 U.S. 52, 59 (1985). I n order to demonstrate deficie nt perfor mance , the petitioner must show that t h e s e r v i c e s r e n d e r e d

o r t h e a dv i c e g i v e nw a s b e l o w “ t h e r an g e o f c o mp e t e n c e d e m an d e d

o f a t t o r n e ys in criminal ca ses.” Ba

x te r v . R os e , 5 23 S.W. 2d

93 0, 93 6 ( Te nn . 1 97 5) . “ B e c a us e a pe tit ion e r m

us t
e sta bli shbo th p ro ng s o f t

he te st t o p re va il o n a

c la im o f i ne ff

e c tiv e a ssi sta

nc e of c ouns e l, f

a ilure to prove e it h e r d e f ic ie n t p e r f

o r ma n c e o r r e s u lt in g p r e

ju d ic e p r o v id e s a

s u f f ic ie n t b a s is to d e n y

r e lief on the claim.” State v. He nley , 960 S.W .2d 572, 580 (Tenn. 1997)

.-4-

This Court will afford the post-c on v i ct i o n court’s factua l findings a presumption of
corr ectne ss, rende ring them conclusive on a ppeal unless the rec ord pre ponderates ag ainst the court’ s finding s. Se e id . at 578. Howe ver, our supreme court has “ deter mined that issues of def icient perf ormanc e by counsel and possible pr ejudice to the defe nse are mix ed questions of law and f act

.. . thu s, [ap pe llate ] r e vie w of [the se iss ue s] is de novo “ with no presumption of cor rec tness. Sta te v. Burns , 6 S.W .3d 453, 461 (Tenn.1999) . Fur t hermore , on claims of inef fec tive assistance of counsel, the pe titioner is not entitl ed to the bene fit of hindsight. Ad k ins v . S tate , 9 1 1 S.W .2d 334, 3 4 7 ( T e n n

. C r i m

. A p p

. 1 9 9 4 )

. T h i s C o u rt m ay n o t s e c o n d

- g u e s s a r e a s o n a b l y- b a s e d t r i a l s t r a t e g y, and we cannot g rant re lief based o n a sound, but unsuccessf ul, tactical de cision made duringthe
course of the proc eeding s. Se e id . Howeve r, such de ference to the tactica l decisions of counse l applies only if counsel makes those decisions afte r ade quate pr epar ation for the c ase. See Cooper v. Sta te , 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

. Petitioner argues that Dr. B rown’s c onclusion that he was incapa ble of c omprehe nding the
c on se qu e nc e s o f w a ivi nghis Miranda ri g hts ind ic a te s th a t tr ia l co un sel’ s inve sti g a tio n a s to Petitioner’s mental ca

paci ty was de ficient. Petitioner conte nds that trial counsel should have conducte d a more extensive evaluation.

Dr. B rown intervie wed Petitioner for approximately

four a nd one-ha lf hours at the DeB err y Special Ne eds F acility

in Nashville. During the i nterview , Dr. B rown a dminist ere d to Petiti oner the Mini-Mental State Examination, t he Wechsler Adult I ntellige nce Sca l e, an d the Test of Me mory Maling ering . Dr. B rown’s c onclusion that Petiti oner misunder stood the conseque nces of waiving his Miranda rig hts and that h i s s tatement to the police w as not intellige ntly made wa s based g ener ally on what she be lieved to be the evasive ness of Petitioner’s a nswers dur ing the interview, his acc eptanc e of the evidenc e aga inst him “that a brig hter indi vidual would have been able to more
c ri tic a lly e va luate fo r we akn e sse s and bia s, ” and Pe tit ion e r’ s app are nt be lie f that if h e ta lke d w ith the police of

fice rs, he would be rele ased on bond. D r. B rown, howe ver, a lso concluded that Petitioner was co m p et en t at the time he e ntere d into his negotiate d plea a g ree ment based on he r e va luatio n o f P e tit ion e r’ s me dic a l r e c or ds , h is t e st s c or e s, and his pe rs on a l in te rv ie ws

. Trial counse l testified that he discussed Petitioner’ s case with him on several oc casions, and that they discussed all of the e vidence ag ainst him. P eti t i o n er ac k nowledg ed at the g uilty plea submissi on hear ing that he knew that h e had been f ound competent to stand trial, a nd he did not voice a ny disag ree ment with that conclusion. Petitioner does not sug g est wh at fu rt her me ntal evaluations should, or could, have been done. Petitioner did not present a ny proof that a

ny further mental eval u at i o n would have a ffe cted his dec ision to enter a be st interest plea to the c harg ed of fe ns e s, or

that su c h fu rt her e va luatio n w ou ld h a ve arr ive d at a dif fe re nt c on c lus ion

a s to P e t i t i o n e r ’ s c o mp e t e n c y.

Ba sed on the for eg oing, w e conc lude that the evide nce doe s not prepon d er at e against the post-conviction court’s finding that trial counsel’s assistance was not deficie nt, or that Petitioner had shown that but for the co n d uct of trial c ounsel, he would not have enter ed into a neg otiated plea ag ree ment and would have proceede d to trial. Be cause Petitioner did not testify at the evide ntiary-5-

hear ing, the re is no evide nce that if a mot ion to suppress P etitioner’s statement had been filed a nd argued, Petitioner would have elec ted to proce ed to trial on a Class A f elony char ge i n stead of enter ing a best interest plea

of guilty to a Class B felony char g e. P etitioner is not entitled to relief on this iss ue.
CO NC LU SION

Af te r r e vie w, we a ff

ir m th e jud g me nt o f t

he po st- c on vic tio n c ourt

.

___________________________________ THOMAS T. WOODAL L , J UDGE