# FILED April 24, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1997
ROO SEV ELT J OHN SMIT H, ) C.C.A. NO. 01C01-9604- CR-00135 JR., ) ) Appellant , ) ) ) DAVIDSON COUNTY VS. ) ) HON . SETH N ORM AN STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : SHAW N A. TIDWELL CHARLES W. BURSON 209 T enth Av enue, S outh Attorney Generaland Reporter Suite 511 Nashvill e, TN 37203 LISA A. NAY LOR Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243 VICTOR S . JOHN SON Distri ct Attorney General SHARON L. BROX Assistant Distri ct Attorney General Washington Square, Suite 500 222 Se cond A venue N orth Nashvill e, TN 37201

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Peti tion er appeals as of right pur

suant to Rule 3 of the Tennessee Rules of Appellate Pr

ocedure from the trial cour t’s denial of h is petition for p ostconvicti on relief. On S epte mber 8 , 1 994, th e Petitio ner ple aded guilty to s ix counts of aggravated burglary and one count of poss ession of cocaine wit h intent to sell or

deliver . As spec ified i n the plea agreement , the trial court sentenced him to fifteen years imprisonment for each aggravated burglary convict ion, a ll running concurrently, and to t wenty years for the drug convict ion. The drug sentence was ordered to run conse cutively to the burglar y sentences, resulti ng in an effective senten ce of thirty-five years in t he Department of Corr ection. The Petit ioner

was classif ied as a Range II I Persistent Offender. He filed a pro se petiti on for post-convict ion relief on July 11, 1995, which was amended with the assist a nce of counsel on October 20, 1995. In his pet ition f or post-conv iction relief, the Petitioner a rgue d that he was deni ed effective assistance of counsel at his guilty plea procee ding. After condu cti ng an evidenti ary heari ng, the trial court found that the Petit ioner had received ef

fectiv e assistance of

counsel and denied the petition . We affirm the ju dgme nt of the trial co urt.
Although the record cont ains li ttle i nformation con cerning the circumstancesof the offen ses, we begin by setting forth the releva nt fa c ts pertaini ng to the Petiti oner’s i ssue. The Petiti oner was charged wi th several offensesthrough three separate indictm ents. Indictmen t number 94 -B-884 char ged him with one count of aggravated burglary and one count of

theft o f property valued between one thousand dollars ($1,000) and ten thousand dollars-3-

($10,000). Indict ment number 94-B-886 charged hi m with two counts of aggrava ted bu rglary a nd two counts of theft of property valued between one thousand dollars ($1,000) and ten thousand doll ars ($10,000) . Indic tment number 94-B-887 charged hi m with three counts of aggrav ated burgl ary and three co unts of the ft of propert y valued between one thousand dol lars ($1, 000) and ten thous and do llars ($10,0 00). In additi on, the Peti tioner was charged by informati on with one count of possession of cocaine wi th intent to sell or deliver. It appears that the Pet it ion er w as o n par oleat t he t ime of the al leged commission of the offenses.
Larry Hooverwas appointed to represent t he Petiti oner. Hoover consulted the Petiti oner and began negotiat ing with t he distri ct attorney’s off ice. The initi al offer allowed t he Petiti oner to plead gui lty to the aggravated burglari es as well as the drug offense a nd receive an effective sentence of forty-five years to be ser ved
as a career offender at si xty percent (60%). Hoover

event ually conv inced the assistant dist rict attorney to offer a sentence of thir ty-five years to be served as
a persist e nt offen der at fo rty-five pe rcent (4 5%). The P etitione r acce pted th is offer and, on September 8, 1 994, entered gui lty pl eas to six counts of aggr

avated burglary and o ne count of po ssession of co caine with intent to se ll or deliver.

On July 11, 19 95, the Peti tioner filed a pro se petiti on for post- convicti on relief , chall enging only hi s drug convic tion. The petiti on was amended with the assistance of c ounsel, but the amended petit ion sti ll chal lenged only t he drug convicti on. The Petiti oner argued that his attorney at t he guilty plea proceedi ng, Larry Hoover, render

ed ineffec

tive assi stance of counselin two respe cts. The Petiti oner first con tende d that h is trial co unse l errone ously informed him that t he-4-

sente nce for the drug convict ion would run concurrent wit h his sentences fo r aggravated burglary. Secondly, he contended that his tri al co unse l fail ed to investigate the circ umstances surroun ding the drug offens e. The trial court conducted an evi dentiary hearing on October

20, 1995.

The Petiti oner testified in his own b eh alf at t he evi dent iar

y hearing. He stated that he ha d met w ith his attorneyapproximatel y four t imes before pl eading guilty. According to the Peti tioner, he was not present at the plea negotiations. His attorney

informed hi m that, under t he ple a agreem ent, he would re ceive fifteen year sentences for the bur

glaries a nd a twenty year sentence for possession of coc aine w ith inten t to sell or deliver. He and his atto rney spent only five to ten m inutes go ing over th e plea ag reeme nt, and h e did n ot com pletely read it before signing it. The Pet itioner understood hi s effect ive sentenceto be twenty years. He stated that he wou ld have p roceed ed to trialif he had realized that his effective sentence was thir ty-fiv e years.

The Petitioner’s testimon y a ls o provided the o nly facts in the record pertaini ng to the drug of fense. He test ified t hat he was dri ving avan which was titl ed in the name of Karen Wills. There were apparently other i ndividual s in the
van. The Petiti oner pulled int o a car wash and knocked on the door of the service booth. He heard a voice as k him to wait for a minute. He waited and event ually knocked on the door ag ain. Accord ing to thePetiti oner, the door opened and a police of ficer put

a gun to his head, pulled hi m ins ide, and handcuffed him. The offi cer searched hi m for weapons and contr aband but found
none. Officers then searched t he van and found cocai ne. The Petiti oner testified-5-

that he had not

given consent

to search t he van and the officers did not have a warran t.

The Petiti oner informed his attor ney of these facts and stated t hat he was not guilty of the d rug offen se. He m aintained that th e drugs belong ed to
someone else. He admit ted that he had committed theburglari es, and he even c ooperated with police officers on tho se cases. H e never m ade any s uc h admissions with regar d to the drug offense thoug h
. In fact, he testi fied that he wanted to proce ed to trial on that charg e beca use he was inno cent.

On cross-examinat ion, the Pet itioner admitted t hat he had bee n throu gh
a plea process befor

e and was actually on parole at the time of

the burglaries and drug offense. He stated th at his a ttorney talked with him abou t the po ssible range of his sentence and inf ormed h im that he pro bably faced a greater sentence if he pro ceede d to trial. He te stified further that he sig ned the guilty plea form fre ely and voluntarily and t hat he did not di spute the facts support ing the offenses as the y were read by the assistant di strict attorney

at the gui lty pl ea proceeding.

The Petiti oner’s att

orneyat the guilty pl ea proceeding, Larry Hoover, al so testif ied at the post-convict ion hearing. Hoover stated that he was lice nsed in 1992 and that hi s practice was thir ty tofort y-five percen t (30%-45%) crimin al law. He had h andle d approxi mately for ty to sixty cri minal cases, i ncluding seven or eightjury trials. Hoover reca ll ed th at hemet wi th t he Pet iti oner four time s. He discussed the cases with the Pet itioner and came to conclusi on that he had no viable d efenses . According t o Hoover, he and t he Petiti oner came to a mutual-6-

unde rstanding that the res olution of h is cases was m ore abo ut the time to b e served rather t han defenses. Giv en that the Petiti oner had ni ne prior felony convi ctions, Hoov er’s m ain co ncern beca me a poten tially large effectiv e sentence. Hoover stated that the State’s i nitialplea offer was forty-five years at s ixty pe rcent (60%). He negotiated with the assi stant di strict attorney

and received an offer of

thirt y-fiv e years at

forty-five percent (45% ). He explained t he offer to the Petit ioner, and the Pe titioner u nders tood th at his effective sentence was thirty-f ive years.

On cross-examina tion, Hoover stated th at the number of sentences at issue could have bee n confusing to the Petit ioner. I n fact, Hoover himself was unsure prior to the post-conv ict ion hearing ab out which sen tences were supp osed to run concu rrently and which w ere to run con secutively. Upo n reviewi ng the plea agreem ent, howeve r, it was clear to him that t he drug sentence was to ru n cons ecutive to th e burgla ry senten ces. He testif ied furt her that it was hi s normal pract ice to go over plea agreements very caref ul ly wit h defendants.
Upon additio nal qu estion ing, Ho over a dmit ted that he was un aware of what had occurred at the prel iminary hearing concerni ng the drug off ense. He stated thathe had not requ ested for mal disc overy with regard to t he dr ug offens e. He also did not interview any o f the police officers involved in the sear ch of the van, nor did he interview any of the other i ndividual s who were in thevan at t he t ime of the search. Hoover stated that his m ain focus was on t he burglary offenses and, more specifi cally, the potenti al sen tence associated with those off enses.-7-

Hooverdid, how ever, acqui re a copy of t he lab report indicat ing that t he substance found i n the van was cocai ne.

At the conclusi on of the heari ng, the trial court found Hoover’s testimony to be credibleand found that the plea had been f ully ex plained to the Petitioner. As a result, the trial court conclud ed that the Pe titioner was aware thathe wo uld
serve an effect ive sentenceof thir ty-five years under

the pleaag reeme nt. According ly, the tri al court de nied the pet ition, statingthat Hoover had provided effective as sistance of couns el. The P etitioner the n appe aled to this Court.

In determining whether or not counsel prov ided effectiv e assi sta nce a t trial, the court must deci de whether or not counsel’s per

formance was within t he range of competen ce dem anded of attorney s in crimin al cases
. Baxter v. Rose , 523 S.W.2d 930 (T enn. 19 75). To succee d on a cla im that his counsel was ineffective at trial, a petitioner bears the burden of showing that his counsel made
errors so serious t hat he was notfunctio ning as counsel as guaranteed under the Sixth Amendment and that the defici ent representation prej udiced the pet itioner resulti ng in a failure to produ ce a reliab le result. Strickl and v. Washington , 466 U.S. 668, 68 7, reh’g denied , 467 U.S . 1267 (1 984); Cooper v. State , 849 S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te , 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy this second pr

ong the peti tioner must show a reaso nable p robability tha t, but for cou nsel’s unreasonable error, the fact finder w ould h ave ha d reas onab le doubt regarding petitioner’s g uilt. Strickl and , 466 U.S. at 695. T his rea sona ble probab ilitymust be “su fficient to undermine confidence in the outcome .” Harris v. State , 875 S.W .2d 662, 665 (Tenn. 199 4).-8- When reviewing tri al counsel’s acti ons, this court sh ould n ot use the be nefit of hindsight to second-guess tr ial strategy and critici ze coun sel’s tactics. Hellard
v. State , 629 S .W .2d 4, 9 (Ten n. 198 2). Co unse l’s allege d error s sho uld b e judged at the ti me it was mad e in ligh t of all facts and circums tances
. Strickl and , 466 U .S. at 690 ; see Cooper , 849 S.W.2d at 746.

This two part standa rd of meas uring ineffective assistance of counsel also appliesto claims arisi ng out of the plea process
. Hill v. Lockhart , 474 U.S. 52 (1985). The prejudice r equirement is

modified so t hat the petitioner “ must show thatthere is a reasonable pr obabili ty that , but for

counsel’s er rors he would not have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.

We note that u nder the provisi ons of thePost-Convict ion Procedure Act of 1995, a petiti oner bears the bur den of provi ng the all egations i n the peti tion by clear and convincin g eviden ce. Ten n. Cod e Ann. § 40-30-2 10(f) (Supp. 199 6). In additio n, the factu al findi ngs of thetrial court are conclusive on appeal unless the evidence in the record p repond erates a gainst the m. State v. Buford , 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).

With regard to the P etitione r’s con tention that his trial cou nsel e rrone ously informed him th at the tw enty-ye ar drug sente nce w ould ru n con curren t with his fifteen-year

burg lary senten ces, we believe tha t the Petition er has fa iled to establish that his

counsel’s r

epresentati on was constit ut ionally defici ent. The Petiti oner testified at thepost-convi ction hear ing that his trial counsel, Larry Hoover, led him to believe that his drug s enten ce wo uld run conc urren t with his burglary sentences . Hoover, on the other hand, testi fied that i t was his practice-9-

to review the terms o f plea agre emen ts carefu lly wi th d efendants and t hat the Petiti oner was fully aware th at his effec tive senten ce was thirty-five years. After hearing test imony and evaluati ng the credibil ity of the witnes ses, the t rial j udge specifi cally f

ound Hoover’s testimony to bepersuasive. From our revi ew of the record, we cannot concludethat theevidence preponder ates against

the findi ng of the tri al court. Accordingl y, we concludethatcounsel Hoover’s repr esentation with regard to th e Petitioner’ s sentence was within the range of competence demanded of attorneys in criminal cases.

The Petiti oner also contends that Hoover rendered inef fective assist

ance b y faili ng to invest igate the circumstances su rrounding t he drug offense . The testimony

at the post-convicti on hearing reveals that Hoover was unaware of any facts per tain ing to the drug offen se which we re developed at the preliminary hearing. Hooverdid notrequest formal discovery with regar

d to the drug offense, did not inter

view thepolice of

ficers i nvolved i n the search of the van, and di d not intervie w any of the ot her indiv iduals al legedly pr esent at t he time ofth e discovery of the cocaine. It appears that Hoover’ s investi gation of the drug offense was limited to examining the lab repor t analyzi ng the drugs fo und in the
van. According to Hoover himself, hi s primary focus was on the Petition er’s burglary offenses.

It is well-estab lished th at defe nse co unsel m ust cond uct an ap propriate investi gation into both the facts and the law to determine what matters of defense can be deve loped. Se e, e.g . , Baxter v. Rose , 523 S.W .2d at 936 ; McBee v. State , 655 S.W.2d 191, 195 (Tenn. Cri m. Ap p. 1 983) . Fu rt her more , ou r su pre me court recognized i n Baxter that t he Ame ric an Bar Associati on Standards for-10-

Criminal Justice pr

ovide usefulguidance with reg ard to the f unction and responsibi liti es of de fense counsel. The American Bar Associat ion standards explain defense counsel’s duty to i nvestigate with the f ollowing language: It is the duty of

the lawyer

to conduct a pr

ompt investi gation of the circumstancesof the case and to exp lore all aven ues lead ing to facts relevant

to the merit

s of the case and the penalty in the event of conviction . The inve stigation sh ould alwa ys include efforts to secure informa tion in th e possession of the prosecuti on and law enforcementauthorities. The duty to investi gate exists regardl ess of theacc used ’s admi ssions o r statem ents to the lawyer of fa cts constituting guilt or the acc used’s stated d esire to plead gu ilty. ABA Standa rds for Crim inal Justice § 4-4.1 (2 d ed. Su pp. 1986) . Applyi ng the fore going principl es to the case sub judice , we believe that cou nsel Hoove r’ s representat ion was a rguab ly deficie nt in tha t he faile d to invest igate the drug offense ade quately.

Even if we were to find cou nsel Ho over’s rep resenta tion deficient, howe ver, we do not b elieve t ha t the Petition er has d emon strated su fficient prejud ice to satisfy the second prong of t he Strickl and standard. I t appears that the Petiti oner argues that he was p rejudic ed be caus e a pro per inv estiga tio n of the facts surrounding the drug o ffense may have i ndicated t he evidence was
unco nstitutio nally obtained and co uld have been s uppres sed. We note that the pre ju dice analys is app licable to this typ e of alle ged e rror of c ouns el close ly resembles the prejudice an alys is applica ble to jury co nvictions. See Hill v. Lockhart , 474 U.S. at 5 9, 106 S.C t. at 370. As the U nited States S upreme Court explained in Hill v. Lockhart , whether such an error pr

ejudiced the defendant by causing him to plead guilt y often depends on the li kelihood t hat a correct ion of the error

would have ledcounsel to ch ange the rec omm endation to plea d guilty. Id. This assessment, in turn, depends on a predicti on of whether the evidence-11-

discovered through a full inve stigatio n wou ld have c hang ed the outco me o f a trial. Id.

The Petiti oner sugge sts that a more tho rough invest igation of the circumstancesof the drug off ense might have l ed to suppressi on of the cocai ne seized from the van he was driving. At the post-convi ction heari ng, however, the Petiti oner offered no ev idence to suppor t this speculat ion. Neither the police officers involved in the search nor the other individuals in the va n were called to testify. Instea d, the o nly evid ence offered to sup port this contenti on came from the Petitioner hi mself, whose testimony t he trialjudge found to be unpersuasive. Given these circum stances, we cannot spe culate that a m ore t horough investi gation of the drug of fense would have reve aled that the cocaine was
un cons titutiona lly seized and, t herefore, would have led counsel Hoover t o change his recommendation t o plead guilty. See Wa de v. State , 914 S.W.2d 97, 102 (Tenn . Crim. A pp. 199 5); Black v. S tate , 794 S. W.2d 752, 757-58 (Tenn. Cri m. App. 19 90). As a result, we conclude that the Petit ioner

has n ot carrie d his burden of establishi ng sufficient prejudice stem ming from h is coun sel’s alle gedly defici ent representation.

For the reasons set

forth in the discussi on above, we concl ude that the Petiti oner has fail ed to demonstrate that the t rial cour t erred in denying t he petiti on for post- conv iction rel ief. We therefore affi rm the judgment of the tri al court.-12- ____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JERRY L . SMI TH, J UDGE

___________________________________ JOE G. RILE Y, J UDGE