FILED

April 3, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

NOVEMBER SESSION, 1996

KELVIN A. TAYLOR, )

) No. 02C01-9512-CC-00387

Appellant )

) WEAKLEY COUNTY

vs. )

) Hon. William B. Acree, Jr., Judge

STATE OF TENNESSEE, )

) (Post-Conviction)

Appellee )

SEPARATE CONCURRING OPINION

I join with the majority in affirming the trial court's dismissal of the

appellant's petition. As I read the majority's opinion, its holding, with respect to

the appellant’s allegation of ineffective assistance of counsel, rests upon the

appellant's failure to establish the prejudice prong of Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052 (1984). I agree. I write separately, however, to

emphasize that this court's ruling should not be perceived as an endorsement of

trial counsel's performance during the plea proceedings. Rather, I find that trial

counsel's apparent failure to conduct any investigation of the appellant’s case or

render any advice to the appellant prior to the entry of his plea was not within the

range of competence demanded of attorneys in criminal cases. Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975).

The record clearly reflects that, prior to the appellant’s entry of his guilty

plea, trial counsel made no effort to familiarize himself in any way with the facts

of the appellant’s case. Additionally, at the post-conviction hearing, the appellant

testified that his appointed counsel did not engage him in any discussion of his 
1

The record indicates that, prior to the hearing on September 30, 1994, the appellant

failed to appear for one scheduled conference at the Public Defender’s Office. The scope of an

attorney’s duty to investigate may be limited by a defendant’s lack of cooperation. However, the

reco rd do es no t othe rwise reflec t any fa ilure b y the appellant to coop erate sufficient to forfeit his

right, pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and

Artic le I, se ction 9 of th e Te nnessee Co nstitu tion, to the effec tive as sista nce of co unsel.

2

case prior to the entry of his plea. The State’s proof at the post-conviction

hearing did not materially conflict with this testimony.1

At the post-conviction hearing, the Public Defender described his "policy

position" relating to the entry of guilty pleas, a position that tends to confirm the

appellant’s allegation of ineffective assistance:

(Post-Conviction Counsel)

Q. Would it be important to interview potential alibi witnesses prior

to making a plea bargain, or advising a client to plead guilty to a

crime?

(Public Defender)

A. It would certainly be better to do that.

(Post-Conviction Counsel)

Q. Is it absolutely necessary?

(Public Defender)

A. Not if the client demands to plead guilty, not if he thinks, "Well,

I've got a good plea offer here. I better take it and jump on it.”

 When an appellant alleges that he received the ineffective assistance of counsel

during guilty plea proceedings, "the key ... is whether [counsel’s] shortcomings

resulted in an involuntary or unintelligent plea." Santos v. Kolb, 880 F.2d 941,

944 (7th Circ. 1989). Therefore, contrary to the Public Defender’s “policy

position,” because a guilty plea is valid only if it represents a voluntary and

knowing choice among alternatives, “a client’s expressed intention to plead guilty

does not relieve counsel of their duty to investigate possible defenses and to

advise the defendant so that he can make an informed decision.” Savino v.

Murray, 82 F.3d 593, 599 (4th Cir.), cert. denied, U.S. , 117 S.Ct. 1

(1996)(emphasis added). See also Standards Relating to the Defense Function

§ 4.1 (1971)(“[t]he duty to investigate exists regardless of the accused’s ... stated

desire to plead guilty”). Counsel in the instant case “provided perfunctory

representation by appearing in court at [the appellant’s] side. Beyond that, he

ignored his duty as [an] advocate.” Thomas v. Lockhart, 738 F.2d 304, 308 (8th
3

Cir. 1984).

Nevertheless, although I find the question close, I agree that the appellant

has failed to carry his burden of demonstrating a reasonable probability that, but

for counsel's deficient performance, he would not have plead guilty and would

have insisted upon proceeding to trial. Accordingly, I would affirm.

____________________________________

DAVID G. HAYES, Judge