# FILED

April 3, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON NOVEMBER SESSION, 1996

KELVIN A. TA

YLOR , )

) No. 02C01-9512-CC-00387 Appellant ) ) WEAKLEY COUNTY vs. ) ) Hon. Will iam B. Acree, Jr. , Judge STATE OF TENN ESSEE , ) ) (Post-Conviction) Appellee )

SEPARA

TE CONCURRING OPIN ION I join with the majority in affirming the trial court's dismissal of the appellant's petition. As I read the majority's opi nion, its holding, w ith respect to the appellant’s allegati on of ineffective assistance of counsel , rests upon the appella nt's fai lure to

establi sh the pr

ejudice prong o f Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052 (1984) . I agree. I write separately, howev er, to emphasize that this court's ruling should not be per ceived as an endorsement of trial counsel's performance during the plea proceedings. Rather, I find that trial counsel's apparent failure to c onduct any investig ation of the appellant’s case or render any advice to the appellant prior to the entr y of his plea was not w ithin the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975).

The record clearly re

flects that, prior to the appel lant’s entry of his gui lty plea, trial counsel made no effort to familiarize himself in any way with the facts of the appellant’s case. Additi onally, at the post-conv iction hearing, the appell ant testified that his appointed counsel did not engage him in any discussion of his1 The record indi cates that,prior t o the heari ng on September 30, 1994, the appell ant failed to appear for

one scheduled confer ence at the Publ ic Defender’ s Office. The scope of an attorney ’s duty to invest igate may be l imited by a defendant’ s lack of cooperat ion. However,the reco rd do es no t othe rwise reflec t any fa ilure b y the a ppe llant to coop erate suff icient to for feit his right, pursuant to the Sixth and Fourteenth Amendments to t he United Stat es Constitut ion and Artic le I, se ction 9 of th e Te nne sse e Co nstitu tion, to the e ffec tive as sista nce of co uns el. 2 case prior to the entry

of his plea. The State’s proof at the p ost-conviction hearing d id not ma terially co nflict wit h this tes timony. 1

At the post-conviction hearing, the Public Defender described his "policy position" relating to the entry of guilty ple as, a position that tends to confirm the appellant’s allegation of i neffective assistance: (Post-Conviction Counsel) Q. Would it be important to interview potential alibi witnesses prior to making a plea bargain, or advising a cli ent to plead guilty to a crime? (Public Defender) A. It would certainly

be better to do that. (Post-Conviction Counsel) Q. Is it abs olutely ne cessary? (Public Defender) A. Not if the client demands to plead guilty, not if he thinks, "W ell, I've got a good plea offer her e. I better take it and jump on i t.” When an appellant alleges that he receiv ed the ineffective assistance of cou nsel during guilty plea pro ceedings, "the key ... is whether [cou nsel’s] shortco mings resulted in an involuntar y or unintelligent plea." Santos v. Kolb , 880 F.2d 941, 944 (7th Circ. 1989). Therefore, contrary to the Public Defende r’s “policy position,” because a guil ty plea is valid o nly if it represents a v oluntary and knowing choice among alternatives, “a cli ent’s expressed intenti on to plead guilty does not relieve counsel of their duty to investiga

te possible defenses and to advise the defendant so that he can make an inf ormed 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 exi sts regardless of the accu sed’s ... stated desire to plead guilty”). Counsel in the instant case “provided perfunctory representation by appeari ng in court at [the appella nt’s] side. Beyond that, h e ignored his duty as [an] advocate.” Thomas v. Lockhart , 738 F.2d 304, 308 (8th3

Cir. 1984).

Nevertheless, althoug h I find the question close, Iagree that the appellant has failed to carry his burden of demonstrating a reasonabl e probability that, but for counsel's deficient performance, he would not have plead guilty and would have insis

ted upon proc

eeding to tr

ial. Accor

dingly, Iwould affir

m.

____________________________________ DAVID G. HAYES, Jud ge