# FILED
April 7, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON FEBRUARY

1997 SESSION

RONALD COLLIER, ) ) C.C.A. NO. 02C01-9608-CC-00284 Appellant, ) ) LAUDERDALE COUNTY VS. ) ) HON. JON KERRY BLACKWOOD, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
TROY L. BROOKS CHARLES W. BU RSON 127 S. Third St. Attorney General & Repor ter Clarksville, TN 37040 (On appeal) DEBORAH A . TULLIS Asst. Attorney General 450 Jame s Roberts on Pkwy. D. MICHAEL DUNAVA NT Nashville, TN 37243-0493 Bank of Ripley Bu ilding, P.O. Box 150 ELIZABETH T. RICE Ripley, TN 38063 District Attorney General (At hearing) MARK DA VIDSON Asst. District Attor

ney General Criminal Justice Comple x Ripley, TN 38063

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge O P I N I O N2 The petitioner was indicted on charges of especiall y aggravated kidnapp ing, especially aggr

avated robbery, escape, aggravated assault, and theft. On October 15, 1993, without the benefit of a plea agr eement, the petitioner pled gui l ty to especially aggravated kidna pping, especially ag gravated robbery, and escape. The State dismisse d the remaining charges. After a hearing, the trial cour t sentenced the petitioner to thi rty years for the especially aggravated kidnapping, thirty-seven years for the especially aggravated robbery, and four years for the escape. The first two sentences a r e concurrent, but the four year sentence is consecutive

.

In September

1995, the petitioner filed a pro se petition for post-conv iction relief. Counsel was appointed and three amended petitions were filed. After a hearing, his claim for relief was

denied. It is from this denial that he now appeals. The petitioner first claims that his due process rights were v

iolated by the multi-count ind ictment. He further claims that he received ineffectiv e assistance of

counsel in that his counsel failed to file a written motion to dismiss a portion of the indic tment and that his counsel failed to adequately investi gate his case. After a review of the record , we find no merit to either of these claims. Ac cordingly, we affirm the judgm ent of th e court be low.

In May 1993, thepetitioner was an inmate at Fort Pillow Mi nimum Security Annex. He had been assigned to wor k as a partsstock clerk in the near by high security
annex under the supervision of a pr ison employee. On May 14, the defendant struck his supervisor

approximately eighttimes with a pipe w rench. He then ordered the supervisor to surrender his car keys and his clothing. The supervisor did as instructed, and the petitioner

then tied the supervisor ’s hands an d fee t and left him bleeding and badly injured. The supervisor was able to free his hands b ut could not remove the rest raints3

on his feet. He hopped outside and y elled for help. Prison gua rds answered his call for help and alerted prison officials of the petitioner’s escape. The peti tioner was apprehended shortly thereafter.

As his first issue, the petitioner argues t hat his due process rights were violated by the multi-count indi ctment. He argues th at under State v. Anthony , 817 S.W.2d 299 (Tenn. 1991), he should not hav e been indicted for

both especially aggravated k idnapping and especially aggravated robbery because the especially aggravatedkidnapping was “essentially incidental” to the esp ecially aggr avated ro bbery. Thus, he alleges, to convi ct him of both counts is a vi olation of his due process ri ghts.

However, because he pled gu ilty to the charges, h e cannot now d i rectly attack the indictment in his request for post-convi ction relief. “[A] gui lty plea represents
a break in the chain of even ts which has preceded it in the cri minal process. When a criminal defendant has solemnly admitted in open court tha t he is in fact guilty of the offense with which he is charge d, he may not thereafter raise i ndependent claims relating to the deprivation of

constitutional rights

that occurred prior

to the entry of the guilty plea.” T ollett v. Hen derson , 411 U.S. 258, 267 (1973). A plea tha t is enter ed volunt arily, understandingly and intelligently c onstitutes a waiver of all procedural and constitution al defects in the proceedings that may have occurred prior to the entry of the pl ea. State
v. Turner , 9 19S. W. 2 d 346, 354 (Tenn. Crim. App. 1995). Thus, the petitioner has waived this issue and he cannot now complain that the indictment was defectiv e.

The petitioner can, however, complain that his counsel was ineffective for not challengingthe ind ictment and for not seeking to hav e one count dismissed under Anthony

. This is essentially whatthe petitioner complains about in his second issue. He4

claims that his counsel was ineffective because she failed to file a motion to dismiss the especially aggr

avated kidnapping charg e.

In review ing t he petit ioner’s S ixth Amen dment cl aim of in effect ive assis tance of counsel, this Court must determine whether the advice given or servic e s rendered by the attorney are withi n the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 5 23 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of ineffective counsel, a petitio ner “must s how that counsel’s representation fell below an objective standard of reasonableness” andthat this performance prejudic ed the defense. There must be a reasonable probability that butfor counsel’s error the result of the proceeding would hav e been different. Strickland v. Washington , 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State , 708 S.W.2d 421, 422 (Te nn. Crim. App. 1985).

To satisfy the requirement of prejudice, the petitioner must demonstrate a reasonable probability that, but for counsel’s errors, he w ould not have pl ed guil ty and would have insisted on going to trial. See H ill v. Locka rt , 474 U.S. 52, 59 (1985); Bankston v. State , 815 S.W.2d 213, 21 5 (Tenn. Crim. App. 1991).

At his post-convictio n hearing, the petitioner testified that he never denied that the incident at the prison had occurred. He simply

felt that he should not have been charged with multiple counts for the si ngle episode. He further tes tified that he was
aware of the Anthony

doctrine and that he and his cou nsel had discussed the possibility of dismissing the especial ly aggravated k idnapping count. He also te stified that he understood what it meant to ple ad gu ilty and that it had been hi s decision not to go to trial.5 The petitioner’s trial c

ounsel, Julie P illow, testified at the post-convi ction he aring that she and the petitioner had di scussed the number of charges on severa l occasions. She testified that she had planned to make the Anthony

argument on the day of the trial. Ultimately , the petitioner decided to plead guilty on the day for which the t rial
was set. Ms. Pillow admitted that her failure to file a written motion may have been an oversight

on her pa r t. However, she thou ght the trial judge w ould only rule on such a motion after hearing the proof of the case and tha t waiting to file the motio n was no t inappropriate. Ms. Pillow also testified that on theday the petitioner entered his plea, she attempted to work out the kidnappi ng and robbery charg es, but that she wa s unsuccessful. Additionally, she tes tified that she and the State had agreed to an earlier plea agreement whereby the petitioner would plead g uilty to especial ly aggrav ated robbery and escape only. How ever, the trial court judge refused to accept such a plea.

In its findings of fact, the post-c onviction court concluded that Ms. Pillow and the petitioner had discussed Anthony and its implications on numerous occas ions and that Ms. Pillow w as prepared to argue at tr ial that the especially

aggravated k idnapping charge sho uld be dis missed. The court then con cluded th at Ms. Pill ow’ s failure to file an Anthony motion was not prejudici al because the especially aggravated kidnapping charge would not hav e been dismissed. The court found that “the kidnapping did not begin until after the rob bery victim had been bea ten and sub dued. Thereafter, the petitioner tied up the v ictim in order to facilit

ate his escape.”

In post-conviction relief pro ceedi ngs, the factual findings of the trial court in hearings “are conclus ive on appeal unles s the evidence preponderates ag ainst the judgment.” State v. Buford , 666 S.W.2d 473, 47 5 (Tenn. Crim. App. 1983). We see no reaso n to di sturb the court’s findings of fact. Furthermore, we accept the cou rt’s6

conclusion of law a

fter a ca reful ap plicat ion of the princi ples of Anthony

to the facts of this case.

In Anthony , two criminalcases were consolidated in w hich each defendant had been convicted of armed robbery and aggravated

kidnapping as a result o f a single incident. The Tennessee Supr eme Court addressed the issue o f whether either defendant’s due process rights had been viol ated when he was conv icted ofthese two crimes. The Court formulated the followi ng test to determine wheth er each conviction can stand on its own:

[W]hether the co nfi nement, movement, or detention is essentially incidental to the accompanying felony and is not, therefore, suffici ent to support a separate convic tion for kidnapping, or wh eth er it is significant enough, in and of itself, to warrant independent pro secut i on and is, therefore, sufficient to support such a convic tion. . . . [O]ne method of reso lving this question is to ask whether the defendant ’ s conduct ‘substanti ally incr eased [the] r

isk of harm o

v er and above that necessarily pres ent in the crimeof robbery itself.’
81 7 S.W.2d at 306 (citation omitted). In Anthony , the Court found that the kidnapp in g convict ions of the two defendants could not stand o n their own because none of th e victims were subjected to any substanti ally increased ris k of harm in addition to that harm which was necessarily

present in the crime of robbery itself. 817

S.W.2d at 307. None of the victims was i n any way harmed. In one case, the victims w ere placed in a restroom, and in the other case, one gr oup of victims was held inside arestaurant while another group was detained behin d the restaurant. None ofthese detentions increased the vic tims’ r isk of ha rm beyo nd the ro bbery itself.

In the present case, the petitioner repeatedly s truck his supervis

or on the head with a

pipe wrench. The petitione r then stole the superviso r’s clothe s and car k eys7

before tying the supervi sor’s handsand feet. The petitioner left the super visor bleeding from wounds on his head and ear. Because of his injuries, the supervisor later r

eceived sixty-four

stitches. The fact that th is victi m’ s hand s and feet were bound certainly substantially increas

ed the risk of harm in that he w ould be unable to seek assistanc e. Thus, we co nclu de that the petitioner’s conduc t substantially incr

eased the risk to the supervisor

be yo nd that risk necessaril y present in the robbery itself. See State v. Rolland , 861 S.W.2d 840 (Tenn. Crim

. App. 1992)(finding a substantial increase in risk of harm where victims w ere locked in restaurant freezer). Independent prosecution for especially aggr

avated kidnapping is w arranted in this case.

It is unnecessary for us to determine w hether Ms. Pillow’s failure to file a motion to dismiss the es pecially agg ravated kid napping constituted ineffective assistance of counsel s ince the p etitione r obviousl y canno t prove the prejudice pr ong of the Strickland test. The petitioner was not prejudiced by

his counsel’s failure to fil e a motion because such a motion would not have been successful. This i ssue is without merit.

As the petitioner’s final arg ument, he contends that his trial counsel was ineffe ctive because she failed to adequately i nvestigate his case. Specifically, he alleg es that she fai led to inter

view a witness

who would have tes

tified that the petitioner w as under duress when he escaped from the prison. At the post-conv iction hearing, the petitioner

testified that he had told Ms. Pillow about a prison disciplinary hearing in which he had testified on behal f of a f ellow inma te. As a re sult of t his testi mony, the petitioner said he had been harassed in the prison and had been assigned tasks different from his normal work assignments.

William Crockett, the inmate that was involved in the disciplinary he aring,8

testi fied at the petitioner’s post-conviction hearing that Ms. Pillow nev er contacted h i m about testifying if the petiti oner went to trial. He further testified that if she had, he would have told her abo ut the pro blems he and the petitioner had had i n regard to the safety of their work at

the prison and his result ing disciplinary hearing. He further

testified that he and the petitioner had been told t o do their work or “

suffer the consequences.”

Ms. Pillow testified

that she and the petitioner had discussed C rockett and that she had determined that his testimony would not support a defense of duress. She testified that she based this decision on the facts relate d to h er by the petitioner, w ho
never indicated that he felt he was in dang er of i mminent serious bodily i njury if he remained in prison.

The post-convictioncourt found that Ms. Pillow cor rectly determined that
a defense of duress could not be supported by Crockett’s testimony . Thus, the fact that she did not interview him was not ineffective assistance of counsel. We agree with this conclusion. Crockett’s testimony would h ave added v ery little to the petitioner’s case. We cannot conclude that the petiti oner was in any w ay prejudiced by the

fac t that Crockett was not inter

viewed. This issue is without merit.

The pet ition er’s complaints that his r ight to due process and his right to effect ive assistance of counsel wer e violated are with out m erit. The ruling of the court below is affirmed.

JOHN H. PEAY, Judge

CONCUR:9

JOE B. JONES, Jud ge

JOE G. RILEY, Judge