FILED

April 24, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1997

ROOSEVELT JOHN SMITH, ) C.C.A. NO. 01C01-9604-CR-00135

JR., )

)

Appellant, )

)

) DAVIDSON COUNTY

VS. )

) HON. SETH NORMAN

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF DAVIDSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

SHAWN A. TIDWELL CHARLES W. BURSON

209 Tenth Avenue, South Attorney General and Reporter

Suite 511

Nashville, TN 37203 LISA A. NAYLOR

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243

VICTOR S. JOHNSON

District Attorney General

SHARON L. BROX

Assistant District Attorney General

Washington Square, Suite 500

222 Second Avenue North

Nashville, TN 37201

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Petitioner appeals as of right pursuant to Rule 3 of the Tennessee

Rules of Appellate Procedure from the trial court’s denial of his petition for postconviction relief. On September 8, 1994, the Petitioner pleaded guilty to six

counts of aggravated burglary and one count of possession of cocaine with intent

to sell or deliver. As specified in the plea agreement, the trial court sentenced

him to fifteen years imprisonment for each aggravated burglary conviction, all

running concurrently, and to twenty years for the drug conviction. The drug

sentence was ordered to run consecutively to the burglary sentences, resulting

in an effective sentence of thirty-five years in the Department of Correction. The

Petitioner was classified as a Range III Persistent Offender. He filed a pro se

petition for post-conviction relief on July 11, 1995, which was amended with the

assistance of counsel on October 20, 1995. In his petition for post-conviction

relief, the Petitioner argued that he was denied effective assistance of counsel

at his guilty plea proceeding. After conducting an evidentiary hearing, the trial

court found that the Petitioner had received effective assistance of counsel and

denied the petition. We affirm the judgment of the trial court.

Although the record contains little information concerning the

circumstances of the offenses, we begin by setting forth the relevant facts

pertaining to the Petitioner’s issue. The Petitioner was charged with several

offenses through three separate indictments. Indictment number 94-B-884

charged him with one count of aggravated burglary and one count of theft of

property valued between one thousand dollars ($1,000) and ten thousand dollars
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($10,000). Indictment number 94-B-886 charged him with two counts of

aggravated burglary and two counts of theft of property valued between one

thousand dollars ($1,000) and ten thousand dollars ($10,000). Indictment

number 94-B-887 charged him with three counts of aggravated burglary and

three counts of theft of property valued between one thousand dollars ($1,000)

and ten thousand dollars ($10,000). In addition, the Petitioner was charged by

information with one count of possession of cocaine with intent to sell or deliver.

It appears that the Petitioner was on parole at the time of the alleged commission

of the offenses.

Larry Hoover was appointed to represent the Petitioner. Hoover consulted

the Petitioner and began negotiating with the district attorney’s office. The initial

offer allowed the Petitioner to plead guilty to the aggravated burglaries as well as

the drug offense and receive an effective sentence of forty-five years to be served

as a career offender at sixty percent (60%). Hoover eventually convinced the

assistant district attorney to offer a sentence of thirty-five years to be served as

a persistent offender at forty-five percent (45%). The Petitioner accepted this

offer and, on September 8, 1994, entered guilty pleas to six counts of aggravated

burglary and one count of possession of cocaine with intent to sell or deliver.

On July 11, 1995, the Petitioner filed a pro se petition for post-conviction

relief, challenging only his drug conviction. The petition was amended with the

assistance of counsel, but the amended petition still challenged only the drug

conviction. The Petitioner argued that his attorney at the guilty plea proceeding,

Larry Hoover, rendered ineffective assistance of counsel in two respects. The

Petitioner first contended that his trial counsel erroneously informed him that the
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sentence for the drug conviction would run concurrent with his sentences for

aggravated burglary. Secondly, he contended that his trial counsel failed to

investigate the circumstances surrounding the drug offense. The trial court

conducted an evidentiary hearing on October 20, 1995.

The Petitioner testified in his own behalf at the evidentiary hearing. He

stated that he had met with his attorney approximately four times before pleading

guilty. According to the Petitioner, he was not present at the plea negotiations.

His attorney informed him that, under the plea agreement, he would receive

fifteen year sentences for the burglaries and a twenty year sentence for

possession of cocaine with intent to sell or deliver. He and his attorney spent

only five to ten minutes going over the plea agreement, and he did not completely

read it before signing it. The Petitioner understood his effective sentence to be

twenty years. He stated that he would have proceeded to trial if he had realized

that his effective sentence was thirty-five years.

The Petitioner’s testimony also provided the only facts in the record

pertaining to the drug offense. He testified that he was driving a van which was

titled in the name of Karen Wills. There were apparently other individuals in the

van. The Petitioner pulled into a car wash and knocked on the door of the

service booth. He heard a voice ask him to wait for a minute. He waited and

eventually knocked on the door again. According to the Petitioner, the door

opened and a police officer put a gun to his head, pulled him inside, and

handcuffed him. The officer searched him for weapons and contraband but found

none. Officers then searched the van and found cocaine. The Petitioner testified
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that he had not given consent to search the van and the officers did not have a

warrant.

The Petitioner informed his attorney of these facts and stated that he was

not guilty of the drug offense. He m aintained that the drugs belonged to

someone else. He admitted that he had committed the burglaries, and he even

cooperated with police officers on those cases. He never made any such

admissions with regard to the drug offense though. In fact, he testified that he

wanted to proceed to trial on that charge because he was innocent.

On cross-examination, the Petitioner admitted that he had been through

a plea process before and was actually on parole at the time of the burglaries and

drug offense. He stated that his attorney talked with him about the possible

range of his sentence and informed him that he probably faced a greater

sentence if he proceeded to trial. He testified further that he signed the guilty

plea form freely and voluntarily and that he did not dispute the facts supporting

the offenses as they were read by the assistant district attorney at the guilty plea

proceeding.

The Petitioner’s attorney at the guilty plea proceeding, Larry Hoover, also

testified at the post-conviction hearing. Hoover stated that he was licensed in

1992 and that his practice was thirty to forty-five percent (30%-45%) criminal law.

He had handled approximately forty to sixty criminal cases, including seven or

eight jury trials. Hoover recalled that he met with the Petitioner four times. He

discussed the cases with the Petitioner and came to conclusion that he had no

viable defenses. According to Hoover, he and the Petitioner came to a mutual
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understanding that the resolution of his cases was more about the time to be

served rather than defenses. Given that the Petitioner had nine prior felony

convictions, Hoover’s main concern became a potentially large effective

sentence. Hoover stated that the State’s initial plea offer was forty-five years at

sixty percent (60%). He negotiated with the assistant district attorney and

received an offer of thirty-five years at forty-five percent (45%). He explained the

offer to the Petitioner, and the Petitioner understood that his effective sentence

was thirty-five years.

On cross-examination, Hoover stated that the number of sentences at

issue could have been confusing to the Petitioner. In fact, Hoover himself was

unsure prior to the post-conviction hearing about which sentences were

supposed to run concurrently and which were to run consecutively. Upon

reviewing the plea agreement, however, it was clear to him that the drug

sentence was to run consecutive to the burglary sentences. He testified further

that it was his normal practice to go over plea agreements very carefully with

defendants.

Upon additional questioning, Hoover admitted that he was unaware of what

had occurred at the preliminary hearing concerning the drug offense. He stated

that he had not requested formal discovery with regard to the drug offense. He

also did not interview any of the police officers involved in the search of the van,

nor did he interview any of the other individuals who were in the van at the time

of the search. Hoover stated that his main focus was on the burglary offenses

and, more specifically, the potential sentence associated with those offenses.
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Hoover did, however, acquire a copy of the lab report indicating that the

substance found in the van was cocaine.

At the conclusion of the hearing, the trial court found Hoover’s testimony

to be credible and found that the plea had been fully explained to the Petitioner.

As a result, the trial court concluded that the Petitioner was aware that he would

serve an effective sentence of thirty-five years under the plea agreement.

Accordingly, the trial court denied the petition, stating that Hoover had provided

effective assistance of counsel. The Petitioner then appealed to this Court.

In determining whether or not counsel provided effective assistance at trial,

the court must decide whether or not counsel’s performance was within the range

of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930 (Tenn. 1975). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produce a reliable result. Strickland v. Washington, 466

U.S. 668, 687, reh’g denied, 467 U.S. 1267 (1984); Cooper v. State, 849 S.W.2d

744, 747 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy this second prong the petitioner must show a reasonable probability that,

but for counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable

probability must be “sufficient to undermine confidence in the outcome.” Harris

v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
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When reviewing trial counsel’s actions, this court should not use the benefit

of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the time it was made in light of all facts and circumstances. Strickland,

466 U.S. at 690; see Cooper, 849 S.W.2d at 746.

This two part standard of measuring ineffective assistance of counsel also

applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show

that there is a reasonable probability that, but for counsel’s errors he would not

have pleaded guilty and would have insisted on going to trial.” Id. at 59.

We note that under the provisions of the Post-Conviction Procedure Act of

1995, a petitioner bears the burden of proving the allegations in the petition by

clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (Supp. 1996).

In addition, the factual findings of the trial court are conclusive on appeal unless

the evidence in the record preponderates against them. State v. Buford, 666

S.W.2d 473, 475 (Tenn. Crim. App. 1983).

With regard to the Petitioner’s contention that his trial counsel erroneously

informed him that the twenty-year drug sentence would run concurrent with his

fifteen-year burglary sentences, we believe that the Petitioner has failed to

establish that his counsel’s representation was constitutionally deficient. The

Petitioner testified at the post-conviction hearing that his trial counsel, Larry

Hoover, led him to believe that his drug sentence would run concurrent with his

burglary sentences. Hoover, on the other hand, testified that it was his practice
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to review the terms of plea agreements carefully with defendants and that the

Petitioner was fully aware that his effective sentence was thirty-five years. After

hearing testimony and evaluating the credibility of the witnesses, the trial judge

specifically found Hoover’s testimony to be persuasive. From our review of the

record, we cannot conclude that the evidence preponderates against the finding

of the trial court. Accordingly, we conclude that counsel Hoover’s representation

with regard to the Petitioner’s sentence was within the range of competence

demanded of attorneys in criminal cases.

The Petitioner also contends that Hoover rendered ineffective assistance

by failing to investigate the circumstances surrounding the drug offense. The

testimony at the post-conviction hearing reveals that Hoover was unaware of any

facts pertaining to the drug offense which were developed at the preliminary

hearing. Hoover did not request formal discovery with regard to the drug offense,

did not interview the police officers involved in the search of the van, and did not

interview any of the other individuals allegedly present at the time of the

discovery of the cocaine. It appears that Hoover’s investigation of the drug

offense was limited to examining the lab report analyzing the drugs found in the

van. According to Hoover himself, his primary focus was on the Petitioner’s

burglary offenses.

It is well-established that defense counsel must conduct an appropriate

investigation into both the facts and the law to determine what matters of defense

can be developed. See, e.g., Baxter v. Rose, 523 S.W .2d at 936; McBee v.

State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, our supreme

court recognized in Baxter that the American Bar Association Standards for
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Criminal Justice provide useful guidance with regard to the function and

responsibilities of defense counsel. The American Bar Association standards

explain defense counsel’s duty to investigate with the following language:

It is the duty of the lawyer to conduct a prompt investigation of the

circumstances of the case and to explore all avenues leading to

facts relevant to the merits of the case and the penalty in the event

of conviction. The investigation should always include efforts to

secure information in the possession of the prosecution and law

enforcement authorities. The duty to investigate exists regardless

of the accused’s admissions or statements to the lawyer of facts

constituting guilt or the accused’s stated desire to plead guilty.

ABA Standards for Crim inal Justice § 4-4.1 (2d ed. Supp. 1986). Applying the

foregoing principles to the case sub judice, we believe that counsel Hoover’s

representation was arguably deficient in that he failed to investigate the drug

offense adequately.

Even if we were to find counsel Hoover’s representation deficient, however,

we do not believe that the Petitioner has demonstrated sufficient prejudice to

satisfy the second prong of the Strickland standard. It appears that the Petitioner

argues that he was prejudiced because a proper investigation of the facts

surrounding the drug offense may have indicated the evidence was

unconstitutionally obtained and could have been suppressed. We note that the

prejudice analysis applicable to this type of alleged error of counsel closely

resembles the prejudice analysis applicable to jury convictions. See Hill v.

Lockhart, 474 U.S. at 59, 106 S.Ct. at 370. As the United States Supreme Court

explained in Hill v. Lockhart, whether such an error prejudiced the defendant by

causing him to plead guilty often depends on the likelihood that a correction of

the error would have led counsel to change the recommendation to plead guilty.

Id. This assessment, in turn, depends on a prediction of whether the evidence
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discovered through a full investigation would have changed the outcome of a trial.

Id.

The Petitioner suggests that a more thorough investigation of the

circumstances of the drug offense might have led to suppression of the cocaine

seized from the van he was driving. At the post-conviction hearing, however, the

Petitioner offered no evidence to support this speculation. Neither the police

officers involved in the search nor the other individuals in the van were called to

testify. Instead, the only evidence offered to support this contention came from

the Petitioner himself, whose testimony the trial judge found to be unpersuasive.

Given these circumstances, we cannot speculate that a more thorough

investigation of the drug offense would have revealed that the cocaine was

unconstitutionally seized and, therefore, would have led counsel Hoover to

change his recommendation to plead guilty. See Wade v. State, 914 S.W.2d 97,

102 (Tenn. Crim. App. 1995); Black v. State, 794 S.W.2d 752, 757-58 (Tenn.

Crim. App. 1990). As a result, we conclude that the Petitioner has not carried his

burden of establishing sufficient prejudice stemming from his counsel’s allegedly

deficient representation.

For the reasons set forth in the discussion above, we conclude that the

Petitioner has failed to demonstrate that the trial court erred in denying the

petition for post-conviction relief. We therefore affirm the judgment of the trial

court.
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____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JERRY L. SMITH, JUDGE

___________________________________

JOE G. RILEY, JUDGE