# FILED
March 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER, 1997 SESSION

RANDY L. CARTER, ) ) No. 02C01-9701-CR-00028 Appellant, ) ) Shelby County vs. ) ) Honorable W . Fred Axley, Judge STATE OF TENN ESSEE, ) ) ) (Post-Conviction) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: BARBARA D. MACINTOSH JOHN KNOX WALKUP Peppel, Gomes & MacIntosh Attorney General & Repor ter Suite 205 474 Perkins Extended CLINTON J. MORGAN Memphis, TN 38117 Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General ALANDA HORNE Assistant District A

ttorney General 201 Poplar Ave. Third Floo r Memphis, TN 38103

OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE1 The indictment for first-degree murder was the second indi ctment. The

record indicates that the g rand jury originally indicted Carter for second-degree murder. The state later dismi ssed this indictment and obtain ed the indictment under which the petitioner ultimately pleaded guilty to second-degree murder.
2 Appointed counsel filed an amended petition on Dec. 16, 1994 and an amendment to the amended petition on Marc h 7, 1996. 2 OPINION

The petitione r, Rand y L. Carter, appeals pur suant to Rule 3 of the Tennessee Rules of Criminal Procedure from the Sh elby County Crimi nal Court’s denial of post-conviction reli ef. On M arch 5, 19 92, the grand jury ind icted the petitioner

for the premedit ated and deliberate murder in th e shooting death of Robert Milton. 1 He pleaded guilty to second-degree murder on Apr il 27, 1992 and received a sentence of thirt y-five years as a Range II offender pursuant to a plea agreement. Carter filed no direct appeal. A timely petition req uesting postconviction relief was

filed on September 20, 1994. 2 The trial court held an evidentiaryhearing on June 6, 1996 and denie d post-conviction rel ief in a written order filed on August 27, 1996. In this appeal, Carter contends that he entered his guilty plea involuntaril y, an d that, b ut for th e errors of counsel, he would no t have pleaded guilty to second -degree murder.

We have carefullyreviewed the recor d in this case. Finding no error requiring rever

sal, we affirm the judgment of the t rial court.

The facts to which Carter stipulated at his guilt y plea submission hearing are as follows: On Aug ust 1, 199 1, the victim, Robert Mi lton, was the security guard for a club located in Shelby County. At approximately 1:00 a.m., a fightbroke out inside the club. The vi ctim attempted to break up the fight, and when he was unable to do so, he spr ayed the participants w ith mace. The peopl e invo lved then fle d outside into the parking lot. A short time later, the victim went outside the club where he was confront ed b y Rico Mickens. Mickens took a3 Rico Mickens, Jimmy Ford and Timothy Brown submitted guilty pleas at the same hearing. The record does not indicate the crimes t o which they entered their pleas. 3 nightstickfrom the victim and began hitting him on th e he ad. Others entered the fray, and the guard was throw n to the ground. Randy Cart er and Ti mothy Bro wn produced pistols as the victi m was lying face down in the parking lot andshot him several times i n the back

. 3 Three of the shots hit the vic tim in his buttocks. One shot in the back caused his death.

Carter’s pro se petition for post-conviction re lief alleges that he did not plead guilty knowi ngly and vol untarily a nd that h e wa s denied t he effe ctive assistance of counsel. In the amended petition, Carter clai med that his plea was involuntarybecause he had not understood the element s of the crime, because he
was unable to read the waiv er, and because stress and fear rendered him incapable of making a rational decision. With respect to the ineffective ass istance of counsel claim, he contended that counsel failed to communi cate or share information with him, that counsel never exp lained the plea bargaining process to him, that counsel failed to inv e stigate and create a vi able defense, and that counsel agreed to an illegal sentence.

At the evidentiary hear

ing, Carter was the only defense witness. After hi s testimony, the court rec essed briefly. When the hearing reconv ened, th e tria l court denied defe nse counsel’s re qu est to b ring the petitioner back into the courtroom. The trial judge said, “No. He’s finished testifying. That’s a Court rule. That’s not your rule, but it’ s a Court rule . . . . This is civil in nature and he’s just a witness.” Af ter the assistant public defender w ho represented Carter duri ng the plea process testified for the s tate, the court took the matter und er advisement.

In its written order denying relief, the t rial court found that the petitioner’s guilty plea was constitutionally valid under the constitutions of the United States and the State of Tennessee and that trial counsel’s perfo rmance was within4 We note that, although the hearing in the matter was held in 1996, the petition was filed in 1994. The Post-Conviction Pr ocedure Act of 1995 applies to petitions filed after May 10,1995. See Tenn. Code Ann. § 40-30-201, compiler’s notes. Therefore, the clear and conv incing standard of proof requ ired by Tennessee Code Annotated section 40-30- 210(f) is inapplicable in this case. 4 the range of competence demanded of attorneys in criminal cases. On appe a l, Carter argues that the

attorney’s failure to i nvestigate, to inform his client, to explain the re-indictment, and to resol ve the confusion about t he s entencing range constituteineffective assistance of counsel , and thatthe errors of counsel resul ted in an involuntary guilty plea. He also contends that the trial court err ed in excluding him from the court room during the testimony of his former attor ney.

Under Tennessee law, post-conv iction relief may be

granted when the conviction is void or voidabl e because it was obtained i n violation of an yright guaranteed by the Constitution of Tennessee or the Co nstitution of the United States. Tenn. Code Ann. § 40-30-105 (1990) (repealed May 10, 1995). In order to sustain a post-conviction petition, an appellant must prove the all egat ions of constitutional violations by a preponderance of the evi dence. 4 Clark v. State , 800 S.W.2d 500, 506 (Tenn. Crim. App. 1990). This court may not reweigh or reev

aluate the evidence, and we defer to the trial court’s resol ution of questions concerning the credibility

of witnesses andthe weight and value of thei r testimony. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 19 90 ). Wh en reviewing the dismissal of
a post-co nviction petition, this court must affirm the judgment of the trial court unless the evidence in the recor d preponderates against the j udgment. Cooper v. State , 849 S.W.2d 744, 746 (Tenn.1993) . W ith these standard s in mind, we address the issues presented.

The trial court foun d that the petitioner had not met his bur den of proving the allegations in the petition by a preponderance of t he evidence. Specifi cally, the court found that defense counsel (1) took adequate steps to ensure that the petitioner understood the pl ea , (2) met with the petitioner at least seven times, (3) had access to all the witness statements, and (4) had assig ned the case5

to an investi gato r. The trial judge als o found that the petitioner was able to communicate with his attorney and to participate in the plea bargaining process, that there was no evidence that th e petitioner was unable t o appreciate the nature of his position or the conse quenc es of his plea, and that the trial judge and defense counsel had both advised the petitioner that he was bei ng sentenced as a Range II offender.
When an appeal challenges the effective assist ance of counsel, the appellanthas the burden of establishing (1) defi cient representation and (2) prejudice resulting from that deficienc y. Strickland v . W ashington , 466 U.S. 668, 686, 104 S. Ct. 2052, 2065 (1984); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel provides assistance that falls below the range of competence demanded of attorneys in criminal cases. Bankston
v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable li kelih ood that, but for deficient represent ation, the outcome of the proceedings would have been different. Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994). On review, there is a strong presumptionof satisfactory representati on. Barr
v. State , 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995 ). As to guilty pleas, the petitioner

must establish a reasonable pr obability that, but for the errors of counsel, he would not have entered i nto the plea. Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Adkins v. State , 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994); Wilson v. State , 899 S.W.2d 648, 653 (Tenn. Crim. App. 1994).

A reviewing court must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance and must evaluatecounsel's performance from counsel's p ers pective at the time of the alleged error and in light of the totality of the evide nce. Strickland , 466 U.S. at 695, 104 S . Ct. at 2068-2069. The petitioner must demonstrate that th ere is a reasonable probability that but for counsel's deficient

performance, the result of the proceeding would have been different. Id. In this case, Carter has not carried his6

burden of showing that he woul d not have pleaded guilty but for the alleged errors of counsel.

The proof in the record strongly supports the trial judge’s findings. As th e trial judge noted, a tr ial court may grant r

elief only when the conv iction or sentence is void or voidabl e because of the abridgement of a constitutional right. Tenn. Code Ann. § 40-35-105 (1990) (repealed May 10, 1995). A sentencing issue is not a con stituti onal is sue and c

annot se rve as the basi s for pos t-conv iction relief. M cKinley

v . State , 910 S.W.2d 465, 466 (Tenn. C rim. App . 1995).Moreov er, if, pursuantto a plea bargain, a petiti oner agrees to be sentenced i n a higher range than is required by l aw, a trial court may legally impose such a sentence. State v. Mahler , 735 S.W.2d 226, 228 (Tenn. 1987).

In this case, the gravamen of Carter’s complaint is that his attorney failed to clarify the

confusion that exist

ed on the nego

tiated plea a

greement for

m. Apparen tly, in one place the form states that the sentence is a “Range I” sentence; in another it shows the release eligibility dat e as 35%. Carter contends that he did not understand that he had agreed to serve 35% of his sentence. On the other hand, both defense counsel and the transcr ipt of the s ubmission hearing indica te that he was properly i nformed. Atthe hearing, the assistant publ ic defender explained that he had corrected the 30% to 35% prior to reading the form to the petitioner

but that he had neglected to change the “ Range I” portion. During the trial judge’s colloquy with the petitioner, the judge tol d the petitioner thathe would se rve 35% of his sentence b efo re he became eligible for par ole. The petitioner ack nowledg ed that he understood the sentence he was receiving. The trial court credited the statement of defense counsel and the evidence contained in the record. The rec ord suppor

ts a conclusion that the petitioner was well aw are of and had consented to the enhancement of the sentencing range. That finding, therefore , is conclusi ve on appeal. See Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988).7 The evidence also does not pre pon de rate against the trial judge’s findings that the attorney adequately investi gated the case, that the petitioner had ample opportunity to communi ca te with his attorney , and that he was able to participatein the plea

bargaining process.Moreover, nothing i n the record, except the petition er’s own testimony at the post-conviction heari ng, indicates that he w as suffering from confusion about his re-indictment or the differ ence between a Ra nge I and a Range II sen tence. The tria l court did not err in finding t hat t he defense counsel’s services

were within the range of competence demanded of attorneys in criminal cases. See Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975).

The record also supports the conclusion that the petitioner knowingly and voluntarily enter

ed his guilty plea. T h e judge’s colloquy at the submission hearing substantially complies with the requirements of Rule 11 of the Tennessee Rules of Criminal Procedure. State v. Ne wsome , 778 S.W.2d 34, 36 (Tenn. 1989). The trial court’s advice satisfies the constitutions of both the United States andthe State of Tennessee, and the trialjudge carefully obser ved the additional procedures imposed by our supreme court in Mackey v. State , 553 S.W.2d 337 (Tenn. 1977), and McClintockv. State , 732 S.W.2d 268 (Tenn. 1987). After a thorough rev iew of the record on appeal, we find that the petitioner knowingly and voluntarily ente red his guilty plea to second-degree murder.

One further issueawaits our consideration. The petitioner complains about the trial court improper ly removing him from th e c ourtroom before the evidentiaryhearing was concluded. He contends that his removal prevented him from assisting his attorn ey during cross-e xamination of thestate’s onlywitness and deprived him ofa full and fair hearing in hi s case. The state concedes that th e trial court erred in denying post -conviction counsel’ s request that the pe ti tioner be returned to the courtroom. Howev er, the state also contends that the error was harmless in this instance.We agree.5 Parenthetically, w e note that Clark was not just a “witness” at the hearing. He was a party to the proceedings.
6 In fairness to the trial jud ge, we note that the heari ng in this matter was held on June 6, 1996 and the Scottopinion was filed on Augus t 2. 8 Althou gh a post-conviction petitioner has no inherent consti tutional
or statutory right to be present at all stages of the hearing, the mere fact that the constitution does not comman d his pre sence does not necessarily justify his removal. Scott v. State , 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996), perm. app. denied (Tenn. 1996). In Scott , this court stated:

Given t he fact that a post-conviction petitioner has the burden of

proof, the right to appear and testify when disputed facts are at iss ue may well include the nee d for rebuttal testimony to r espond to unexpe cte d details of evidence presented through the testi mony of others. Thus, absent

some appropriatejustification for removal, a peti ti oner appearing at an evidentiary proceeding pursuant to the Post-Conviction Procedure Act should be allowed to remain throu gh the remainder of the presentation of evidence. Id

. As in Scott , the record does not indicat e that the petitioner was disruptive, was
a special security r

isk, o r h ad a detrimental impact on the available facilities. Therefore, we conclude that the trial court should have allowed Carter to return to the courtroom. 5 However, as Clar k has not pointed to any speci fic failure or weakness in his attorney’s cr oss-examination tha

t res ulted from his removal, and
as our review of the rec ord has failed to uncover any evide nce of ha rm, we conclude that the error was harmless. 6

For the reasons d iscussed in this op inion, we affirm the judgment of the trial court.

__________________________ CURWOOD W ITT, Judge CONCUR:

______________________________ JOE B. JONES, Pres iding Judge9

______________________________ JERRY L. SMITH, Jud ge