# FILED February 4, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1998
RAYFORD B. MARTIN, ) C.C.A. NO. 03C01-9707- CR-00286 ) Appe llant, ) ) ) KNOX COUNTY VS. ) ) HON. RICHARD BA UMGARTNER STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF KNOX COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : MARK E. STE PHENS JOHN KNOX WALKUP Public Defender Attorney Generaland Reporter JOHN HALSTEAD MICH AEL J . FAHE Y, II PAULA R. VOSS Assistant Attorney General Assistant Pu blic Defende rs 425 Fifth Avenu e North 1209 Euclid Avenue Nashvill e, TN 37243 Knoxvill e, TN 37921 RANDALL E. NICHOLS Distri ct Attorney General MARSHA SELECMAN Assistant Distri ct Attorney General City-County

Building Knoxvill e, TN 37902
OPINION FILED ________________________ AFFIRMED IN PART; DELAYED APPEAL GRANTED DAVID H. WELLES , JUD GE1 State v. Derrick Willis Gilbert & R ayford Bernard Martin (al ias Billy Ray Morgan) , No. 1265, 1990 WL 41554 (Ten n. Crim. App ., Knoxvi lle, April 11, 1990, perm. to appeal on behalf of Derrick Willis Gilbert denied (Tenn. 1990).

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# OPINION

This is an appeal as of ri ght from the trial court’s denialof post-co nvicti on relief from convict ions based upon gui lty pl ea s. The Defen dant en tered gu ilty pleas, with sentencing lef t to the di scretion of the trial j udge , to two cou nts of aggravated kidnapping, two counts of aggravated r

ape, and fourcounts of armed robbery. At the senten cing heari ng conducted on Apri l 3, 1989, he r eceived a total effective sentence of 150 years. Thi s Court aff irmed his sentences on direct appe al. 1 The Defendant fi led a peti tion for post-convi ction relief in December of 1991; and fo llowing appo intme nt of co unse l, he filed a sup plem ental p etitio n in June of 199 7. The trial cou rt cond ucted a hea ring an d den ied the petition in July of 1997. The Defe ndan t now a ppea ls the tria l court’s ruli ng. We affi rm, but we grant D efend ant relie f in the fo rm of a delaye d app eal.

The Defendant contends that he received inef fective assist

ance of counsel and asserts four gro unds in sup port of h is claim . He ar gues that his counsel (1) impro perly advised hi m to plead guil ty to t wo counts of aggr

avated kidnappi ng, which he co ntend s were mere ly i ncidentalto the aggrav ated robbery

and rape charges; (2) erredby failing to object to the trial court’ s ex parte confere nce with
one of the victim s and h er moth er at t he s entencing hear ing; (3)erred by
cons istently faili ng to ch allenge at the tri al or appel late lev el the enhancement2 For purposes of clarity and brevity, we w ill address the

issues presented in a slightly different order

than that suggested by th e Defendant. -3- factors which were a pplied in sen tencin g; and (4) ineffe ctively re prese nted h im on ap peal. 2

For a better underst anding of the issues, it is necessary to briefl y review the facts o f the u nderlying offenses as presented in the record before us. According to the pre sente nce re port, w hich in clude s a len gthy an d grap hic confession by the Defend ant, the Defendant and his co-defendant, Derrick Gilbert, accosted a young coupl e who were sitt ing in a pa rked ve hicle in Kno xville
on June 7, 1988. Ar med with a pistol and knife, the two m en rob bed th e cou ple of a stereo equalize r and pu rse.

Laterthat same eveni ng, the Defendant and his co-defendant approached another young couple si tting i n a parked vehic le. Again us ing the pistol and knife, theyrobbed the coupl e of jewel ry, a stereo, and other items, and then forced the coup le to fully disrobe, throwing ar ticles of their clothin g into the nearby woods. They forced the mal e victi m to lie nude i n the floo rboard of t he car, threateni ng to kill t he femal e victi m if he moved. The two men t hen transported the nude fema le victim in their vehicle to a more isolated locati on in the woods, where they each raped her repeatedly, bot h orally and vaginally, whil e, accordi ng to the Defen dant, she “just [l ay] there . . . likeshe wa s dead .” At one point, they placed
a pistol in her m outh and threatenedto kil l her if she vomited on t hem. After t he
assau lt, the Defendant and his co-defendant left t he female vic tim, who was nude and bleeding, alone in t he woods and drove away. As they departed, they were met by a rriving police officers, wh o placed them u nder arre st.-4- In determining whethercounsel provid ed effective assista nce a t trial, this Court mus t decid e whe ther co unse l’s pe rformance was wit hin the range of competence dema nded o f attorneys in crimina l cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975) . To succeed on a clai m that counsel was ineffective at trial, a petiti oner bears the bur den of showing that

his counsel made
errors so serious t hat he or she was not functio ning as co unse l as guaranteed underthe Sixt h Amendment and that thedefici ent representation prej udiced the petiti oner resulti ng in a fai lure to p roduce a reliable re sult. Strickland v. Washington , 466 U .S. 668, 6 87; Coop er v. State , 849 S.W.2d 744, 747 (Tenn. 1993); Butler v. State , 789 S.W .2d 898, 899 (Tenn. 199 0). To satisfy the second prong, the petit ioner must show a r easona ble proba bility that, b ut for co unse l’s
unrea sona ble error, the fact finder would hav e had reasonable doubt regarding petition er’s guilt. Strickl and , 466 U. S. at 695. T his reaso nable p robability must be “suffi cient to

undermine confi de nce in the outcom e.” Harris v. S tate , 875 S.W .2d 662, 665 (Tenn. 199 4).

When reviewi ng trialcounsel ’ s actions, this Court should not use t he bene fit of hindsi ght to second- guess tri al strategy and critici ze counsel’s tacti cs. Hellard v. State , 629 S.W .2d 4, 9 (Tenn . 1982). Coun sel’s alle ged e rrors sh ould be judged at the time they were made in li ght of all facts a nd circumstances. Strickl and , 466 U.S . at 690; see Cooper , 849 S.W.2d at 746.

This two-part

standard of measuring inef fectiv e assistance of

counsel also appliesto claims arising ou t of the plea proces s. Hill v. Locka rt , 474U. S. 52 (1985); Bankston v. State , 815 S.W .2d 213 , 215 (T enn. C rim. App . 1991). The prejudice requirement is mod ified so that the petition er “mu st sho w that th ere is-5-

a reasonable prob abilit y that, but for

counsel’s er rors, hewould not have pl eaded guilty and would h ave insisted on g oing to trial.” Hill , 474 U.S. at 59.

The Defendant fi rst argues t hat he recei ved ine f fectiv e assistance of counsel bec ause he was improperly advised to plead guil ty to t wo counts of aggravated kidnapping. He argues that the proof does not su pport h is kidnapping convic tions a nd tha t his attorney fa iled to properly advise hi m about the law of ki dnapping. He contends that hi s kidn apping con victions were
esse ntially incide ntal to h is rape and robbe ry conv ictions and th erefor e that h is convictions for

kidnapping violate his due process rights.

In support of this argu ment, the D efendant re lies on the Tennessee Supre me C ourt case of State v. Anthony , 817 S.W.2d 299 (Tenn. 1991), which sets forth the standard for d et ermining whether movement or confin ement inc idental to a crime such as robbery o r rape is su fficient to sus tain a sep arate kidnapping conviction . In Anthony , the suprem e court concluded that the proper inquiry is whetherthecon fi nemen t, move me nt , or dete ntion is esse ntially i ncid ental to the accompanyi ng felony and i s not, the refore, suffic ientto support a separate co nvic tion for kidnapping, or whether it is significan t enoug h, i n and o f itself , to warr ant independent prosecution and is, t herefore, suffic ient to s upport a convi ction.
. . . [O]ne method of resol ving thi s question i s to ask whether the defen dant’s conduct “substantially increased[the] ri sk of harm over and ab ove that n ecessa rily present in the crime of robbe ry itself.” Id. at 306 . Simply stated, t o uphold a conviction for kidnapping which accompanies a related c rime, thekidnapp ing “[m]u st .
. . make [] theoth er c ri me subs tantially easier of c omm ission or s ubstan tially lessen[] th e risk of de tection.” Id.-6- We first note that t he Defendant enteredhis gui lty p lea in 1989, t wo years before the release o f Anthonyin 1991. The Defendant, however, argu es that th e rul ing in Anthonywas based at least in part on previous case s which wer e availab le to his cou nsel at the time. See id. at 304-0 6. The Defendant would have us conclud e that had his coun sel inform ed him of a poten tial Anthony -type d efense, eit her

theState woul d hav

e droppe d al l k idn appi ng c harges agai nst him , or he would have proceededto tri al and prevai led on the Anthonyissue. W e find neither o f these ou tcome s likely.

The Defenda nt confessed to horrific crimes. The facts which we have gleaned from the record, the majorit y of which come from the Defendant ’s own statem ents to poli ce, though not tantamountto all evi dence which would li kely be p roduced at a co mple te trial, ind icate e xtrem ely stron g proo f again st th e Defen dant. Furthermore, as o ur supreme court noted in Anthony , “despite the rules, there is inevitably some unevenness i n the appli cation of the law t o the facts, even withi n jurisdi ctions, principa lly becaus e the determinat ion of whether
a detention or movement is i ncidental to another of fense is hi ghly dependent on the facts in each ca se.” Id. at 306. Thus, it is totally uncertain whether, i f the Defendant had proceede d to tr ial, he would have prevailed wi th an Anthony defens e.

Based upon a review of the proof bef

ore us, we cannot

conclude that

the Defe ndan t’s representat ion was defi cient wi th regard to the Defe ndan t’s kidnapping convictions. Moreover, even assuming that the re was deficie ncy in the Defendant’s r

epresentati on, the Defend ant h as fa il ed toshow p rej udice. He simp ly has not demonstrated that “but forcoun sel’ s errors he wo uld not have-7-

pleaded guilty and wou ld have insisted on going to trial.” Hill v. Lockhart , 474 U.S. 52 , 59 (198 5). This iss ue is there fore witho ut merit.

The D ef endant next ar gues that hi s counsel shoul d have objecte d to the trialcourt’s ex parte conference with one of the vi ctims and her mother at the
s enten cin g hearing. Thi s victi m, who did not testify at the sentencing heari ng, was the v ic tim of one of the aggravated robberies, an aggravated ki dnapping, and both aggravated rapes. The re is no recor d of the private conver sation bet

ween the judge, th e victi m, and her mother. However, the t rial j udge testi fied at t he post-convi ction proceeding and deni ed having been undul y infl uenced by the conversati on.

It is not w ithin ou r realm of revi ew to second-guess trial st rategy decisions. H ellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982) . Suffi ce it to say that t here a r e numerous possible r

easons for Defendant’s counsel to choo se not to o bject to the ex p arte con ference. As t he post-convi ction j udge pointed out , “[t he Defe ndan t’s couns el] knew t he emot iona l nat ure o f th e case . He had th e opportu nity to see [thi s victi m] testif y at the pr

eliminary

hearing. He knew t he impact that test imony could have at the sente ncing he aring. There was nothing forhim to gain by o bjecting to this sugg ested me eting.” We therefore decline to find that the l ack of an object ion to theconference res ulted in defici ent representat ion for t he Defendant. I n additi on, there i s no showing of pr ejudice.

Thi rd, the Defendant ar gues that he received inef fectiv e assistan ce o f counsel due to his attorney’s failure to challenge an y of the enhan cemen t factors at the senten cing hea ring or on appea l. In respon se to this a rgume nt, we no te-8-

that this Court ful ly revi ewed the Defendant’ s sentence on appeal and affirmed the sentences imposed by the trial court. The re cord shows that this Court considered all enhancement f actor s and noted that som e of the factors we re inappropriately ap plied. This Co urt, however, upheld the sentence imposed by the trialcourt, con cluding, “[W]e are satisfied that [the Defendant’s] sentences as fixed by the trial judg e are of a length co mm ensura te with his crimes.” Therefore, the Defe ndant has s hown no prejudice cau sed by his cou nsel’s failure t o challeng e the ap plied enh ancem ent factors , and this iss ue is witho ut merit.
Finally, the Defendant claims that his co unsel was ineffective on appe al and lists a number of reasons to support hi s claim. He states that [w]hen the [appe llate] brief f ir st became due, counseldid not f ile a brief, and the Court of Cri minal Appeals i ssued a show ca use order. In re s ponse to the sho w caus e order, c ounse l attempte d to withdr aw. The Court refus ed to all ow him to wit hdraw and ordered him to file a brief. The attorney then file d a brie f which subs tantive ly is five page s long. T he attorn ey did no t file a reply brief. In additio n, he states that hi s counsel “failed to file a motion to re consider t he Court of Crimin al Appe als opinio n, affi rming the sentence af ter the enhanci ng factors were found to be i napplicabl e, and fai led to fi le a Motion For Permis sion to Appeal to the Suprem e Court.”
Reviewing the rec or d before us, w e are unab le to find ineffective representat ion conce rning the appellate brief. Alt hough Defendant’s counsel file d the brief l ate, the Court of Criminal Appeal s neverthel ess accepted the brief and considered it. For

this reas on, the Defen dant has not shown prejudice resulti ng from the late filing o f the brief. Furthermore, the submission of a fiv e-page brief does not constitute ineffective assista nce o f coun sel per se . From a revi ew of the-9-

record, we do not fi nd any defici ency of repr esentation regardin g the brief itse lf. Howeve r, even assuming deficiencyof representation, t he Defendant has fai led to show prejudice resulting fro m the len gth or co ntent of the brief.

However , with regar d to counsel’ s fail ure to fi le an appli cation fo r permission to appeal to the Tennessee Supreme Court, we conclude that the Defendant should b e grante d a delay ed opp ortunity to appeal. Tenn. R. Sup . Ct. 28 § 9(D). Rule 14 of the Rul es of the Supreme Court requires t hat counsel for an indigent

defendant obtain the consent of this Court before withdrawi ng as counsel foll owing fi rst-tier revi ew. Tenn . R. Sup . Ct. 14. Rule 14 also states that
c ounsel must forward a copy of his moti on to withdr aw and written notifi cation
c ontain in g certain sp ecific inform ation to the defend ant. Id. “[U]ni lateral terminati on of a direc t appeal following first-tier review ent itles a pros pectiv e Defendant to relief in the form of a de layed appea l.” Pinksto n v. State , 668 S.W .2d 676, 677 (Tenn. Crim . App. 1984 ).

In the case befor

e us, Defendant’ s counsel testified at thepost-convi ction proceeding that he se nt to the Defend ant a copy of the opinion from this C ourt accompanied by a letter explaini ng the Defendant’s opt ions. He test ified t hat the D efendant never responded. However, Defendant ’s counsel di d not fil e an applicat ion for permissi on to app eal to th e sup reme court, n or doe s it appear that he filed a mo tion to withd raw as c ounse l. Although we fi nd that thi s error alone does not necessari ly ri se to the l evel of i neffective assistance of couns el, w e conclude that the Defendant should be granted the opportunity to pur sue a del aye d app eal to t he Te nnes see Supr eme Court. See Tenn. R. Sup. Ct. 28 § 9(D).-10- In conclusi on, in thewords of the p ost-convi ction j udge, the Defendant gave a deta iled ac coun t of his p articipa tion in this brut alizat ion ofthe [rape victi m] in the pre-sen tence re port. He went on for some th ree pages describi ng the sexual acts that he himself committed, and thatthe other individual co mm itte d, and full y acknowledged t he horrend ous na ture of this cr ime to the pre-sen tence o fficer . . . . Ba sed on the fac ts presen ted to us, w e simp ly canno t conclud e that but fo r hi s coun sel’s alleged defici encies, t he Defen dant wo uld have elected to procee d to trial on t hese charges.

We accordingl y affi rm the judgmentof the post-convict ion court r egarding ineffective assistan ce of cou nsel. Ho wever, the Defen dant sh all have sixty days to seek supre me c ourt re view of th is Cou rt’s decision affirming h is senten ce. See Ten. R. Sup. Ct. 2 8 § 9(D); Tenn. R. App. P. 11.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ THOMAS T. WOODALL, J UDGE