### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A pril 9, 200 2 NAKIA RUMP

H v. STATE OF TEN NESSEE Direct Appeal from the Circuit Court for Madison County No. C-01-44 Clayburn Peeples, Judge

No. W2001-02066-CCA-R3-PC - Filed April 19, 2002

The Appellant, Nakia Rumph, appeals from the dismissal of

his petition for post-conviction relief. In 2000, Rumph pled guilty to tw o counts of aggrava ted sexua l battery and was s entence d to eight years imprisonme

nt on each count. O n appea l, Rumph challenges the validity of his guilty plea upon grounds of: (1) voluntariness and (2) ineffective assistance of counsel. After review, we affirm the judgment of the Madison County Circuit Court dismissing the petition.

Tenn. R. App.P. 3; Judgm ent of the Circuit C ourt Aff

irmed. D A VID G. H AYES , J., delivered the opinion of the court, in which D AVID H. W ELLES and J AME S C URWOOD W ITT , J R .,JJ., joined. Mechelle Story, Taylor and Associates, Jackson, Tennessee, for the Appellant, Nakia Rumph. Paul G. Summers, Attorney General and Reporter; Michael Moore , Solicitor General; Braden H. Boucek, Assistant Attorney General; James G. (Jerry) Wooda ll, District At tor ney General; and Alfred Earls, Assistant District Attorney General, for the A ppellee, State of Tennessee.

OPINION Factual Ba

ckground In August 1999, the Appellant was indicted on two counts of aggravate d sexual battery. He was declared indigent, and the public defender’s office was a ppointed to represent him. Thereafter, conflic ts arose between

the Appellant and his attorney . On January 31 , 2000, the day bef ore trial was to begin, the Appellant requested that his attorney be discharged and

another lawyer be

appointed to represent him. The trial court refused to discharge the Appellant’s attorney . Later that same day , the Appellan

t entere d a gu il ty p lea to two counts of aggrava ted sexual battery and received eight1 Becau se the A ppe llant failed to incl ude in t he recor d the pl ea agre ement documents or t he judgmentof convict ion form s, we are u nab le to determine wh ether the Appellant’s eight-year sentences were ordered to be s erved con curr ently or co nsec utive ly. -2- yearson each

count. 1 The Appe

llant’s pro se petition f

or post-c onvicti on relie f was filed on February 1, 2001. After

counsel was appointed to assist the Appellant, an evidentiary hearing was conducted

on July 24, 2001. Thereafter, the post-conviction c ourt dismi ssed the Appellant’s petition. This timely appeal followed. ANALYSIS In order to

succeed on a post-conviction claim , the A ppell ant be ars th e burd en of s howin g, by clear and convincing evidence, the alleg ations set forth in his petition. Tenn. Code Ann. § 40-30- 210(f) (1997). The Appellan t’s claim of ineff ectiveness of counsel and

involunta riness of his guilty plea, asset forth

in his petit

ion, stem f

rom the fo llowing a

llegat ions: (1) the Appellant was intimidated by trial counsel and a s a result of this intimidation he entered into a plea agreement with the State; and (2) the Appellant wasnot give n the oppo

rtunity to review his discovery

materials and as a result he was not a

ware of the evide nce that would have be en prese

nted ag ainst him if the matter proceeded to trial. In evaluating theknowing and voluntar y na ture of a guilty plea, the United Sta

tes Supre me Courthe ld th at , " [t ]h e s ta nd ar d w as an d r em ai ns wh et he r t he pl ea re pr es en ts a v ol un ta ry a n d intelligent

choice among the alte rnative cours es of action o pen to the de fendant ." North Carolina v. Alford , 400 U.S. 2 5, 31, 91 S. C t. 160, 164 (1970). In making this deter mination, the reviewing court mus t look to the totality of the circumstanc es. State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also Ch amberlain

v. State , 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). Indeed, a "court charge d with determining whether . . . pleas were'volunta ry ' and ' intellig ent' mus t look to various circumst

antial fa ctors, such as the relative intelligence of the de fendant; the degree of his familiarity with criminal proceedings; whether he was represented

by competent counse

l and had the opportunity to confer with counsel about the options available to him; the extent of advice from counsel and the court concer ning the charg es aga

inst him; an d the rea sons for h is decisio n to pleadgu ilty, inc luding a desire to avoid a grea ter penalty that mig

ht result from a jury tria l." Blanken ship v. Sta te , 858 S.W.2d 897, 904 (Tenn. 1993). Once a guilty

plea hasbeen en

tered, e ffectiv eness of

counse l is relevant only to the e xtent that it affects the volunt ariness of th e plea. In this respec t, such claims of ineffective assistance necessa rily implicate the principle that guilty pleas be voluntarily a

nd intelligently made. Hill v. Lockhart, 474 U.S. 52, 56,106 S. Ct. 366, 369 (1985) (citing North Carolina v. Alford , 400 U.S. at 31, 91 S. Ct. at 164).-3-

To succee d in a cha

llenge for inef fective assista nce of counsel, the Appellant must demonstr ate that counsel’s representation fell below the range of co mp et en ce de ma nd ed of at to rn eys in criminal cases. Baxter v . Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 20 64 (1984), the Appellant must establish: (1) deficient repres entation

and (2) p rejudic e result

ing fromthe defi ciency . In th e context o f a guil

ty plea, to satisfy the second prong of Strickland , the Appellant must show that“there

is a rea sonable probabil ity that, but f

or counse l’s erro rs, he wouldnot have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. a t 59, 106 S. Ct . at 370; Walto n v. State , 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). The issues of defic ie nt performance by counsel and possible prejudice to the defense are mixed questions of law and fact. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s findings of fact

underlying

a claim of ineffective assistance of counse l are reviewed on appeal under a de novo standard, accompanied with a presumpt

i on that those findings are correct unless the preponderance

of the evidence is otherwise.” Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. A

pp. P. 13(d

)); Henley

v. State , 960 S.W.2d 572, 578 (Tenn. 1997). How ever , conclusions of law ar e r ev ie we d u nd er a p ur el y de novo standar d, with no presumption of correctness. Fields , 40 S.W.3d at 458. I. Intim idation by Tr

ial Counsel In the present case, the Appellant first contends that his plea was involuntary because his trial counsel co er ce d h im in to pl ea di ng gu il ty. Specific ally , the Appe llant con tends tha t his attorne

y to ld him on the day bef

ore trial was to begin, he was going to “lose the trial and to be a manabout it and take” the plea offer. Thereafte r, the Appellant requested that his attorney be discha rged. The trial court denied this request. The Appellant subsequently pled guilty to two counts of a ggravated sexual ba tt er y. After

review, the post- convicti on court found the Appellant's plea to be voluntary and explained its reaso ning as f

ollows: 1. The Petitioner has failed to demonstrate by clear and convincing evidence that he was in any way

denied a right or had any

right infringed that is guaranteed unde r the Constitution of the United States or of the State of Tennessee. 2. The court finds that the Petitioner made a knowing and voluntary

guilty plea a

nd that the plea was in no way

the result of pressure placed upon him by counsel or the Court. 3. Counsel’s advice to the Petitioner to take the State’s offer was entirely within the realm of counsel’s legal obligation and c annot be undue influence.-4-

4. The Petition er was fully a dvised of all constitutional rights and the State’s plea offer and fully understood his ac tions in pleading guilty a nd understood the consequ ences of

those ac tions. 5. Both cou

nsel and t h e co urt fully explained the Petitioner’s rig hts and the plea agreement and the conseque nces of the plea. The record

indicate s that the t

rial cou rt questio ned the A

ppellant extensively a s to whether his plea w as mad e with knowl edge and under stand ing. At the po st-co nvict ion h earing, trial counsel testified that she did not force the Appellant to take the plea, but rather , told the Appellant that, in her profess ional opin

ion, it washis in “be st intere st” to accept the State’s offer. The post-conviction court ob vi ou sl y cr ed it ed tr ia l c ou ns el ’s te st im on y that she did not place undue influence upon the Appellant to plead guilty. B ecause we do not revisit the issue of c redibilit y on appeal, we defe

r to the post-conviction court 's ruling in that regard. Black v. State , 794 S.W.2 d 752, 755 (Tenn. Cri m. App. 1990). We conclude that the record fully supports the findings of

the post-conviction court that the Appell ant has not proven by c lear and convincing evidence tha t his guilty pleas wer

e involuntarily made. There fore, this issue is without merit. II. Discov

ery Mat erials Second, the Appellant contends that he did not receive effective assistance of counsel, and thus his plea w as not volu ntary , becau se he “di d not have good communications with his attorney at the trial

level an d as a re sult, the A ppellant was not a

dequate ly a dvised of the evidence to b e presented agains t him at a tr

ial in th is matt er.” The post-conviction court concluded that the Appellant received the competent assistance of counse l, and consequently, e

ntered his plea knowing ly

and volun

tarily , finding

that, “counsel obtained

discover y a nd discuss ed the Sta

te’s ca se with the Petitioner. And discussed the Petitioner’s options and would have continued to fully and competently repr

esent the Petitioner had he opted to go to trial.” The proo f does not

prepond erate against these findings. Trial counsel testifie d at the po stconvi ction hearin g that s he went throu gh discovery mate rials “piece by

piece” with the Appellan t, and that the A

ppellant “did not want h

is discove ry materia ls in the jail because of the nature of the offense; . . . he didn’t want the inmates to discover materials that would implicate him in an aggravated

sexual battery.” The post-c onviction court obviously credited tria l counsel’s testimony that she reviewe d disco very mater ials with the Appellant, and therefore, the Appellant was adequa tely a dvised of the evidence to be presented ag ainst him at a trial in this matter. Again, because we do not r

evisit the issue of cred ibility on appea l, we defe r to th e post -conv icti on cou rt's ruling in that regard. Black , 794 S.W.2d at 755. Ac co rd in gl y, we find that the Appellant has not proven by clear and convincing evidence that trial counsel’s performance was outside the ra nge of competence demande d of attorneys in cr iminal cases. The Appellant

certain ly h as faile d to show evidence that “but for coun sel’s er

rors, he would-5-

nothave ple aded guilty

and would have insisted on going to trial.” I n sum, the Appellant

has failed to prove ineffective assis tance of counsel. CONCLUSION Based upon the foregoing, we find that the post-conviction court did not err in ruling that the Appellant’s plea was knowing ly, inte lligently, and voluntarily entered or that he received the effectiveassistance of counsel. Accordingly , the judgment of the post-conviction court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE