### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A ugus t 1, 200 6

DA NN Y L . F ISH, JR. v. S TAT E OF TEN NES SEE

Appeal f romthe Circ uit Court for Hardem an Coun ty No. 05-01-0083 J. We ber Mc Craw, Jud ge

No. W2006-00309-C CA-R 3-P C - F iled Augu st 22, 2006

Th e pe titio ner, Dan ny L . F ish , Jr. , a pp e a ls the Ha

rd e ma n Co un ty

Cir c uit Cou rt ’s dis mis sa l of

his pe ti ti o n f o r p o s t- c o n v ic ti o n r e li e f f r o m h is c o n v ic ti o n f

o r s e xu a l b a tt e r y b y a n a u th o r it y f ig ure, a Class C felony , and his result i n g sentenc e of f ive y ear s in the Depa

rtment of Corre ction. The petitioner conte nds that he re ceive d ineffe ctive assistanc e of counsel, rende ring his no contest plea unknowing and involuntary . We affirm the judgme nt of the trial court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , J ., delivere d the opi nion of t he court, in which D AVI D G. H AYES and R OB E R T W. W EDEMEYER , J J ., joined.

Kar en T. F leet, B olivar, Tenne ssee, f or the a ppellant, Danny

L . Fish, Jr.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l and Re port e r; Sop hia S. L e e , A ssi sta nt A tto rn e y Ge ne ra l; El iza be th T . Ri c e , D ist

ri c t A tt o rne y

Ge ne ra l; a ndJoe V a n D yke , A ssi sta nt D ist ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

T h i s ca s e ar i s es fr o m ch ar ges t h at t h e p et i t i o n er ra p ed h i s t h i rd co u s i n , a c h i l d o v ert h e a ge of thi rt e e n. Th e pe tit ion e r wa ive d ind ic tme nt a nd app e are d be fo re the Ha rd e ma n Cou nty

Ci rcuit Court by c r im in a l i n f

o r mati o n

. T h e r e c o r d o n ap p e a l i s u n c le ar a n d r e f le c ts th a t th e p e titioner

e nte re d e ith e r a

“ be st i nte re st” g uil ty

ple a , s e e No rth Ca

ro lin a v. Al fo rd , 4 00 U. S. 2 5, 37 -3 8, 91 S. Ct. 160, 167- 6 8 (1 9 7 0 ), o r a n o contest plea , see Te nn. R. Crim. P . 11(a) , to the char g e of se x ual battery by an authority

fig ure, T.C.A. § 39-13-527, a Class C felony . The pe titioner was sente nced to serve f ive y ear s at thirty

perc ent.

On Novembe r 21, 2005, the pe t i t i o n er fi l ed a pr o se petition for post-c onviction relief,

a lle g ing tha

t hi s p le a wa s n ot e nte re d in to v olunt ari ly , k no wi ng ly , a ndun de rs ta nd ing ly a ndthat it-2-

was the r esult of the inef

fec tive assistance of counsel. The trial court appointed counsel to re prese nt the petitioner a nd held a hearing on the petitioner’s reque st f or post-conviction relief

. The trial c ourt denied post-c onviction relief.

First, we note that the re cord on appea l doe s not include a tra nscript of the pe titioner’s plea hearing or

sentenc ing he aring or court reco rd s predating the pe tition for post-conviction relief

. Evidence offe red at the post-conviction heari n g established that the pe titioner was re prese nted by thr e e dif fe re nt atto rn e y s f

ro m th e pu bli c de fe nd e r’ s of fi c e be fo re his se nte nc ing

. Th e pe tit ion e r d id
not rec al l wh o re prese nted him at the pre liminary hearing, but the e vidence indicated that he was repr esente d by

two public defe nders. At some point on the day of the pre liminary

hearing, one of the attorne y s informed the pe titioner that the state had of fer ed him a plea agr ee m ent whereby he would enter either a “best interest plea” or no contest plea to the lesser c harg e of se x ual battery by an authority

fig ure, w ith a maxi mum sentenc e of f ive y ear s at thirty

perc ent. The pe titioner testified that he inf or me d th e a tto rn e y

that he didno t w a nt to tak e the ple a of fe r an d wou ld r a the r p ro c e e d to trial. The pe titioner testified that no further discussions reg arding the plea of fer occur red a nd that
an attorne y

then informed him that a differ ent public def ender would be re prese nting him in further proce eding s. The petitioner a lso testified that afte r the pre liminary hearing, he discussed the plea offe r with other jail inmates a nd Har deman County Sheriff’ s Deputy

Billy Davis.

The pe titioner, who had been held in jail since his ar rest on April 26, 2005, did not have any further contac t w ith his counsel until he appea red in court on June 1, 2005. The petitioner stated tha t he and his wife made unreturned telephone calls to his new attorney befor e June 1. I n court, the ne w attorney discussed the plea

ag ree ment with the petitioner. The petiti oner testified that he expressed do ub ts t o th e a tto rn e y abo ut e nte ri ng the ple a a nd that he ma int a ine d his inn oc e nc e thr ou g ho ut h is meeting with th e a tt o r n e y

. H e te s ti f ie d th a t th e r e w e r e s e v e r a l w e a k n e s s e s in th e s tate ’ s c a s e, including that the victim’s testimonyat the pre liminary hearing w as not co n s i s t ent with previous
statemen ts , th a t th e v e h ic le in w h ic h th e c r im in a l c o n d u c t a ll e g e d ly o c c u rr e d w a s n o t f

u n c ti o n ing at the time, and that the vi ctim had sex ually transmitted diseases w here as the pe titioner did not. The petitioner also stated tha t he was intox icated on drug s and alc ohol at the time that he told the police that he ha d co ns e ns ua l sex wi th the vic tim

. Th e pe tit ion e r sa id that he tri e d to expla in the se fa c ts to his attorney

but that the attorney

took no notes and only

encour ag ed him to acc ept the plea offe r.
The petiti oner testified that he under stood that “by signing the plea tha t I

would be g etting pr ob a tio n o r h ou se arr e st. ” At on e po int on c ro ss e xami na tio n, the pe tit ion e r s ta te d th a t he wa s to ld that if convicte d of rape he would ser ve betwe en two and twe nty y ear s. L ater , howeve r, he a dmitted that he under stood the differ ence betwee n eig ht y ear s at o n e h undred pe rce nt, which was the minimum sentenc e for a rape conviction, and five y ear s at thirty perc ent, which wa s the maxi mum sentenc e he w ould rec eive unde r the plea ag ree ment. He a lso stated that his attorney told him that it was ultimately up to the trial judge to de termine his se ntence . He a lso testified that the attorney told him “to jus t go a

head a nd answe r all the [

judge ’s] questions y es and no like e very one else had done and that w as it.” The petitioner stated that his attorney did not make any reque sts for proba tion or house a rre st at the plea he aring or at the l ater sentenc ing hearing, w here he wa s sentence d to serve fi ve y e ars a t th irty

pe rc e nt. He a lso te sti fi e d th a t no ps y c ho log ic a l e va luatio n wa s pe rf or me d on him

.-3-

The a ttorney

repr esenting the petitioner a t the plea he aring testified at the post-c on v i cti on hearing. H e t es t i fi ed that he had no contac t with the petitioner until after it wa s ag ree d that the criminal information would be filed. H e also testified tha t because a c riminal information had be en file d, he un de rs too d th a t a ple a a g re e me nt h a d b e e n a

rr a ng e d a ndthat hi s jo b “ wa s b a sic a lly jus t proce ssing the pa

perw ork and ta lking to [the petitioner] and explaining what we we re g oing to be doing toda y .” He said that despite the pe titioner’s rese rvations about entering a plea, the pe titioner appea red to unde rstand the be nefits of plea ding no c ontest. He testified tha t he listened to some of the pe tit ion e r’ s c on c e rn s a bo ut the we a kn e sse s in the state ’s c a se a nda dv ise d h im tha t it wo uldsti ll be possi b l e for

the state to g et a c onviction for ra pe. The attorney

indicated, howe ver, tha t he believed that because the pe titioner had a virtua lly clea n criminal re cord a nd t h e state’s c ase w as rela t i v el ywea

k, the petitioner’s c ase w arr anted “ relief .” He also stated that he inf ormed the petitioner that the ultimate dec ision as t o the petit ioner’s se ntence would be made by the court. He fu rthe r t e sti fi e d th a t th e tr ia l ju dg e wa s k no wn to be “ mor e c a uti ou s th a n mo st” jud g e s w he n it c a me to determining the voluntariness of a plea a nd that the petitioner a ppear ed to under stand and appropriately

responde d to the judge ’s questions.

The a ttorney

testified t hat he did not reme mber being at the s entenc ing he aring but that he did reme mber viewing the petitioner’s presentenc e report. He also testified that the petitioner ne ver

rec eived a

psy chosexual evalua tion to be included in the pre sentenc e rep o rt . Acc ording to the attorney , the psy chosexual evalua tion was waive d at sentenc ing.

I n deny ing the petition for post-conviction re lief, t h e t ri al court found that the petitioner
enter ed a ple a knowing ly

and voluntarily

and that the pe titioner actua lly understood the sig nificanc e and conse quence s of the plea . The trial c ourt furthe r held that the pe titioner failed to e stablish that the servic es re ndere d by

trial counsel we re de ficient or that any defic ient perf ormanc e prejudice d the petitioner.

On appea l, the petitioner contends that due to the ineffe ctive assistanc e of c ounsel, his plea was involuntary

and ente red w ithout his understanding of the nature and conse quence s of the plea

. He a lso arg ues t h at the trial attorne y ’s fa ilure to reque st a psy chosexual evalua tion for use a t sentenc ing a mounted to the ineffe ctive assistanc e of c ounsel. The state responds that the pe titioner has wa ived all i ssues rela ted t o the plea a nd sentenc ing be cause he has f ailed to provide a

transcript of the plea

hearing or s entencing he aring in the rec ord. The sta te furthe r conte nds that the trial court’ s d ec i s i o n should be aff irmed bec ause the petitioner voluntarily enter ed his plea w ith the eff ective a ssistance of c ounsel, and the pet i t i o n er was unable to prove other wise by clea r and convincing evidenc e.

The burde n in a post-conviction procee ding is on the pe titioner to prove his g rounds for r elief by clea r and convincing evidenc e. T.C.A. § 40-30-110( f). On appea l, w e are bo u n d b yt h e trial

c ou rt ’s fi nd ing s o f f

a c t un le ss w e c on c lud e that th e e vid e nc e in the re c or d prepo nd erat e s a g a ins t those finding s. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Be cause they rela te to mix ed questions of l aw an d fa ct , we r eview the trial court’ s conclusions as to whethe r counse l’s pe rf or ma nc e wa s d e f

i c ie nt a ndwh e the r tha t de fi c ie nc y wa s p re jud ic ia l un de r a

de no vo sta nd ardwi th-4-

no presumption of corr ectne ss. I d. at 457. Post-conviction relief ma y only be g iven if a c onviction
or sentenc e is void or voidable bec ause of a violation of a c onstitut ional rig ht. T.C.A. § 40-30-103.

The a ppealing party

has the oblig ation of pre par i n g a re cord tha t includes transc ripts of

ev i d en ce and proc eeding s “nec essary to provide a f

air, a ccur ate, a nd complete a ccount of what transpire d” with re spect to the issues on a p p ea l

. T en n

. R. App. P. 24(b). Fa ilure to provide a n adequate re cord w ith respec t to an issue on appea l will result in a presumption that the trial court’ s

ru lin g s w e re su pp orte d b y su ff ici ent e vid e nc e . St a te v. Oo dy , 8 23 S.W. 2d55 4, 55 9 ( Te nn . Crim. App. 1991). The petitioner has not provided a transcript of t he plea hearing or sentenc ing he aring in the re c or d, a lth ou g h th e re c or d indi c a te s tha t the tr ia l cou rt ha d th e ple a

he ari ng tr a ns c ri pt. Th us , our re view is quite restric ted.

Under the Six th Amendment, when a claim of inef

fec tive assistance of counsel is ma de, the burden is on the pe titioner to show (1) that counse l’s perf ormanc e wa s deficie nt and (2) that the def i ci en cy wa s prejudicia l. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct . 2052, 2064 (1 9 8 4 ); s ee L o c kh ar t v

. F r e tw e ll
, 5 0 6 U

. S. 3 6 4
, 3 6 8

- 7 2
, 1 1 3 S. Ct

. 8 3 8
, 8 4 2

- 4 4 ( 1 9 9 3 )

. I n other words, a show ing that counsel’s perf ormanc e falls below a

rea sonable standa

rd is not enoug h; rather
, the petitioner must a lso show that but f or the substandard perf

ormanc e, “the result of the proc eeding would have be en diffe rent.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The Strickland standa rd ha s b e e n a pp lie d to the ri g ht t o co un se l unde r a rt ic le I , s e c tio n 9 of

the Te nn e sse e Con sti tut ion . St a te

v. Melson, 772 S.W .2d 417, 419 n.2 (Tenn. 1989) . I n Ba x ter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided t hat attorney s should be held to a gene ral standa rd of whe ther the

se rv ic e s r e nd e re d w e re wi thi n th e ra nge of c omp e te nc e de ma nd e d o f atto rn e y s in c ri min a l c a se s. When a petitioner c laims tha t the ineffe ctive assistance of counsel re sulted in a plea, the petitioner

mus t pr ov e that c ou ns e l pe rf or me d d e fi c ie ntl y a nd that but fo r co un se l’ s e rr or s, the pe tit ion e r w ou ld not have e ntere d the plea a nd would have insisted upon g oing to tria l. Hill v. L ockhart, 474 U.S. 52, 59 , 1 06 S. Ct . 3 66 , 3 70 (1 98 5)

. F a ilu re to sa tis fy e ith e r the de fi c ie nc y or pr e jud ic e pr on g re su lts in the denial of

relief . Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

The pe titioner cites seve ral a spects of his trial c ounsel’s per formanc e that h e claims wer e defic ient. The pe titioner asserts t h at h i s trial attorney failed to intervie w him, failed to re turn telephone c alls from hi m and his wife, a nd disreg arde d information re lated to the we akness of the state’s c ase. The petition er al s o arg ues that the a ttorney ’s fa ilure to insist on a psy chosexual

e va luatio n a mou nts to de fi c ie nt re pr e se ntatio n. He arg ue s that his a tto rn e y e sse nti a lly

c oe rc e d h im into acce pting the sta te’s plea offe r.

Th e pe tit ion e r a

rg ue s th a t th e a lle g e dly

de fi c ie nt r epre sen tation c omb ine d w ith his e ig hth g rade education and limit ed criminal ex perie nce amounted t o an invol untary g uiltyplea unde r the totalityof the c ircumstance s. The post-convic tion testim ony of both the petitioner a nd the attorne y indicates, howe ver, tha t the petitioner understood the plea that he ente red. The petitioner testified that he under stood the differ en ce b et we en a f ive y ear sentenc e at thirty

perc ent, which wa s the maxi mu m s e n te n c e h e w o u ld g e t u n d e r th e p le a a g r e e me n t, a n d a n e ig h t y e ar s e n te n ce a t one hundred pe rce nt, which was the minimum sentenc e h e wo u l d g et for a rape conviction. The tria l-5-

court a ccr edited the testimony of the attorney , who stated that he explained the differ ence betwee n a g uiltyplea a nd a no conte st plea to the petitioner a nd that he listened a nd respo n ded to the petitioner’s c oncerns. The attorne y testified that while he disc ussed the possibilitythat the petitioner might re ceive probation or house arr est, he also informed the petitioner that “the re’ s no g uara ntee of anything.” Furthermore , as the trial c ourt found:

At the plea he aring , th e defenda nt testified under oath. He
t est ified that he w ent over the plea f

orm, the wa iver of a

trial and waiver of appe al forms with his at t o rney and sig ned them. He testified he unde rstood what he w as doing

. . . .

The defe ndant was asked if he was satisfied wi t h the repr esenta tion of the Public Defe nder a nd he st at ed h e was. The defe ndant testified that no one had forced him to enter this plea, a nd that he d i d not have a ny questions about the proc eeding . He understood that the Court would indi ca t e a finding of g uiltybased upon his best interest plea.

The e vidence does not preponde rate agai n st the trial court’s f indings that the pe titioner
enter ed a ple a knowing ly and v o l u n t ar ily

and that the pe titioner understood the na ture a nd conseque nces of

the plea. Moreover
, the petitioner ha s failed to esta blish that but for his attorney ’s alleg edly defic ient perf

ormanc e h e wo uld not have ente red the plea. The fac ts indicate that the petitioner ente red the plea hoping to rec eive a light sente nce a nd that his attorney , while expressing a belief that the petitioner mig ht rec eive pr obation or house a rre st, did n o t gu ar antee that the petitioner w o u l d re ce i v e a pa rticular se ntence . The pe titioner has fa iled to establish that he was prejudice d by

his attorney ’s alleg edly

defic ient perf

ormanc e.

The petitioner also contends that his tria l attorney ’s failure to insist o n a p s y chosexual evaluation amounted to the ineffe ctive assistanc e of c ounsel bec ause a psy chosexual eval u ation could have led to a lesser sentenc e. Howeve r, the petitioner did not offe r any evidenc e of w hat an evaluation would have shown or that it would have likely resulted in a dif

fer ent sentence. The peti t i o n er h as, t here fore , failed to e stablish a fac tual basis for this claim by clea r and c onvincing evidenc e.

B a se d o n th e fo re g oin g a ndthe re c or d a s a wh ole , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

_________________________________ J OSEPH M. TI PTON, J UDGE