# FILED

June 18, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE SEPTEMBER 1996 SESSION

CHARLES HARRILL ) NO. 03C01-9605-CC-00185 ) Appellant ) BLOUNT COUNTY ) V. ) HON. KELLY THOMAS, JR.,JUDGE ) STATE OF TENNESSEE ) (Post-Conviction) ) Appellee ) )

FOR THE APPELLANT FOR THE APPELLEE Mack Garner John Knox Walkup District Public Defender Attorney General and Repor ter 419 High Street 450 James Robertson Parkwa y Maryville, Tenness

ee 37801 Nashville, Tennessee 37243-0493 Laura Rule Hendricks Michael J. Fahey, II 810 Henley Street Assistant Attorney Gener al Knoxville, Tennessee 37902 450 James Robertson Parkwa y Nashville, Tennessee 37243-0493 Michael L. Flynn District Attorney General 363 Court Street Maryville, Tenness

ee 37804-5906 Kirk Andre ws Assistant District A

ttorney General 363 Court Street Maryville, Tenness

ee 37804-5906

OPINION FILED:______

AFFIRMED IN PART; DELAYED APPEAL GRANTED

William M. Barker, Judge2 Opinion The Appellant, Charles Harrill, appeals as of right the Blount County Circuit Court’s dismissal of his post-conviction petition. He argues on appeal that his constituti onal right

to effective

assistance

of counsel w

as violate

d. He claim s specifically that: (1) His guilty plea w as not knowing, vol untary, and intellig ent. (2) His lawyer failed to object when the trial court accepted his guilty plea in violation of State v. Mackey , 553 S.W.2d 337 (Tenn. 1977), and Rule 11 of the Tennessee Rules of Criminal Pr ocedure. (3) His lawyer failed to adequately interv

iew potential witn esses prior to the guilty plea hearing. (4) His lawyer failed to in troduce suff icient proof a t the sentencin g hearing. (5) His lawyer failed to object when the distr ict attorney recommended that he serve his sentence in the Department of Correction. (6) His lawyer failed to advise him of his rig ht to appeal his sentence after the sentencing hearing. After a careful review of the record on appeal, we g rant the Appellant a delayed appeal with respect to hi s sentences only. Reg arding all other iss ues, however, the trial court is affirmed. Factual Background On January 11, 1993, the Appell ant raped his thirteen-year old adopted stepdaughter. Around 6:00 a.m. on that day, after the Appellant’s w ife left for work, the Appellant went into the bedr oom where his step-daught er was resting on the bed. The Appellant made the girl take off her panties, f orcibly spread her legs, and sexually penetrated her. When the incident was ov er, approximately thi rty minutes later, the Appellant told the young g irl to take a shower and get ready for school. The Appellant took the girl to school

where she reported the i ncident to friends and school faculty. A medical examination confirmed th at the young girl h ad been vaginally pene trated. The Appellant’s lawyer tried to work out a pl ea bargain agreement wi th the district attorney prior to trial. The Appellant wanted to serve his sentence in3

community corrections or at least get split confinement instead of a full prison sentence. During the plea bargaining process, however, the distri ct attorney learned that the Appellant had a signi ficant previous criminal history and refused to recommend community corrections, but agreed to recomme nd an eight-year sentence to be served in the manner decided by the trial cour t. On October 22, 1993, the Appellant pled guilty

to rape. On February 8,1994, the trial judge sent enced him to eight years impris

onment in the Department of Correction. No appeal was taken,but later the Appellant filed this petition for post-convic tion relief seeking to hav e his guilty plea set aside. The trial c ourt dismissed the petition and the Appellant now appeals.

Argument The Appellant contends that he was denied effective assistance of couns el under both the United States and the Tenn essee Constitutions. In reviewing the claim of ineffective assistance of counsel, this Cou rt must determine whether the advice given or services rendered by the attorney were within the range of competency demanded of attorneys in crimina l cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of ineffective assistance of counsel, a petitioner “must show that counsel’ s representation fell below an objective standard of reasonableness” and that this performance prejudiced the plea pr ocess. Stricklan d v. Washington , 466 U.S. 668, 687-88, 692, 694, 104 S .Ct. 2053, 2064, 2067-68, 80 L.Ed. 674 (1984); Best v. State , 708 S.W.2d 421, 422 (Tenn. Crim.App. 1985). To satisfy the requirement of prejudice, an appellant must demonstrate a reasonable probabi lity that, but for c ounsel’s errors, he would not h ave pled gu ilty and wou ld have insisted on going to tr

ial. See Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 37 0, 88 L.Ed. 203 (1985); Bankston v. State , 815 S.W.2d 213, 215 (Tenn. Crim App. 1991). The Appellant’s two first ineffective assistance of cou nsel claims concern whether his guilty plea was knowing, voluntary, and intelligent. First he claims that his counsel led him to believ e that by pleading gui lty he would recei ve a community corrections sentence inst ead of a prison sentence, and that but for that4

misapprehension he would hav e gone to trial. He further claims that his lawy

er failed to object when the trial judge did not comply with the procedures established in Mackey , 553 S.W.2d 337 and Rule 11 of the Tennessee Rules of Criminal Procedu re when accepting his g uilty plea. Both issue s are without merit. It is well-settled in American jurispr udence that a guilty plea must be knowing, voluntary, and intell igent to be constitutional ly valid. Boykin v . Alabama , 395 U.S. 238, 243, 89 S.Ct 1709, 1712, 23 L.Ed.2d 274 (1969). To insure that criminal defendants’ constitutional rights

are protected, the Tennessee Supreme Court has developed a procedure for trial judg es accepting guilty pleas. Mackey , 553 S.W.2d 337. Th is procedure requires the trial judge to address the defendant person ally in open court and makes sure that he understands the nature of the charges agai nst him and the maximum and minimum penalties provided by law. The trial judge must also make sure that the Defendant knows that he has a right to counsel , that he has a right to not plead guilty, that he has a right to a trial and to confront and cross-examine witnesses, that he has a right to not incrimina te himself, th at there will be no f urther proceed ings except for a sentencing hear ing, that he may be questioned about the offense by the state or the court, that any statements made can be use d against him, that the plea is voluntary and not the r esult of any force, threat, or promise apart from the plea agreement and that there is a factu al basis for the plea. Id at 342. However, a g uilty plea does not necessarily become void or voidabl e because a trial judge does not strictly f ollow Mackey ; substantial adherence will generally s uffice. Id . “It is the result, not the process, that is essential to a valid plea. The critical fact is the defe ndant’s knowledge of certain rights, not that the trial judge was the source of that knowledge.” Johnson v. State , 834 S.W.2d 922, 924-25 (Tenn. 1992); see State v. Montgomery , 840 S.W.2d 900, 90 2 (Tenn. 1992). We find that the trial judge substantially complied with the gui lty plea procedures provided in Mackey and Rule 11 of the Tennessee Rules of Cr iminal Procedure and that the Appellant’ s guilty plea w as knowing, volunt

ary, and intelligent

.5

The record clearly ind icates that the Appellant knew that he was charged w ith rape and that rape carries a sente nce of eight to twelve years. Even thoug h the Appellant claims that he thought he w as going to be sentenced to community corrections unde r his plea agreement, the recor d shows that he knew tha t it was up to the judg e to decide how his sentence w as to be served. The trial judge at the post-convi ction hearing also found that the Appell ant’s counsel had informed the Appell ant that he would not be sentenced to communit y corrections and that h e could be sentenced to eight years impris

onment. The trial court's findi ngs of fact in a post-convi ction hearing are binding on appeal unless the Appellant can show that the evidence preponderates against the trial cour

t’s findings. State v. Lueptow , 909 S.W.2d 830, 831 (Tenn. Crim. App. 1995). The Appellant has failed t o show that the evidence preponderates against the trial cour

t’s findings. The guilty plea hearing transcript also rev

eals that the trial judg e informed the Appellant of his right to not plead guilty, his right to a trial and to confront witnesses, that there would be no tri al and only a sentencing hearing, and that if he plead not guilty he had the rig ht to remain silent. The tri al judge also made sure the A ppellant did not enter the plea because of any force, threat or promise apar t from the plea agreement and that there was a factual basis for the rape ch arges. The Appellant’s argument that his counsel fail ed to object when the trial court did not adhere to the guilty plea procedur

es in Mackey

and Rule 11 of the Tennessee Rules of Cr iminal Procedure is moot since we find that the trial court adhered to those proce dures. The Appellant’s third contenti on is that his lawy er rendered ineffective assi stance of counsel because he failed to adequat ely interview

potential witnesses pr

ior to the guilty plea hearing. The Appellant argues that if his lawyer had interviewed the victim and other potential witnesses it would have become apparent that the victim consented to sexual interc ourse. This, the Appellant cont ends, would have led to a lesser criminal charge and a more favorable plea agreement. The App ellant also6

asserts that but for this failur e to investigate, he w

ould not have pled guilt y and gone to trial. This argument is not wel l taken. The record clearl y shows that the Appell ant specifically asked his lawyer to not interview his step-daughter or his wife to avoid further embarrassment to his ste p-daughter. The trial jud ge also found that the Appellant’s lawyer

thoroughly inves

tigated this case and prov ided excellent counsel t o the Appellant. The Appellant has failed to demonstrate that the evidence preponderates against the tr ial court’s findings. In his fo urth argum ent, the Appellan t claims t hat his la wyer render ed ineff ective assistance of counsel because he fail ed to introduce sufficient proof at the sentencing hearing. This issue is

without merit. The Appellant’s complaint is based on the assertion th at his lawyer failed to call certain witnesses to the sentencing hearing and failed to summon members of the community to write l etters on the Appellant’s behal f to be introduced at the sentencing hearing. “When a petitioner contends that trial counsel failed to dis cover, interview, or present witnesses in s upport of his defense, these witnes ses should be presented by the petitioner at the [post-c onviction] hearing”

to prove that the petitioner suffered prejudice because critic al evidence was omitt

ed from the trial. Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Here, th e Appellant failed to introduce an y of the alleged witnesses or the letters from the community at the post-conviction hearing. This Court cannot speculate as to what proof w ould have been offered had the witnesses and the lett ers been introduced at the heari ng and absent such proof we are unable to find that the Appellant suffered prejudice as is required under the second Strickland inquiry. 466 U.S. at 687-88, 692, 694, 104 S.Ct. at 2064,2067-68, 80 L.Ed.2d 674. The App ellant’s fifth co ntentio n is that h is lawyer ren dered ine ffecti ve assistance of counsel when he failed to object when the dis trict attorney7

recommended that he serve his sentence in the Department of Corr ection. This issue is without merit. During the plea bargai n negotiations, the distr ict attorney agreed to

recommend that the Appellant should serv e an eight-year sentenc e but that it would be for the trial court to decide the manner of serv ice. At the sentencing hear ing the district attor

ney argued that the Appellant shoul d serve his eight- year sentence in the Depar tment of Correction. The Appellant now claims that his lawy

er should have objected to the district attorney’s

argument. The Appellant has failed to state any authority in support of hi s argument and, therefore, has waived this issue. Rules of the Court of Criminal Appeals 10(b); Killebrew , 760 S.W.2d at 231. Moreover, since the di strict attorney nev er promised to not argue in support of an eig ht-year prison sentence , it was within his discretion to argue that the Appellant should be incarcerated and the fact that the Appellant’s lawyer did not objec

t is not constitutional er ror. See Tenn. R. Crim. P. 11(e)( 1)(B). The App ellant’s final co ntentio n is that h is lawyer ren dered ine ffecti ve assistance of counsel because he failed to ad vise him of his right to appeal his sentence after the sentencing hearing. For the same reason, the Appellant also asks this Court to grant hi m a delayed appeal. Immediately before the sentencing hearing, the Appellant’s counsel advised the Appellant that he could appeal any decisions the trial court may make regarding his sentence. In response, the Appell ant stated that he did not want to appeal any sentence the trial court may impose. After the sentencing hearing, the Appellant’s counsel did not have any further contact with the Appellant, except for a letter, which stated in its entirety , “I have fully complete d my legal representati on of you regarding the above captioned matter. I have enjoyed working for you, and if I can be of service to you in the future, please co ntact me.” Tennessee Rule of Criminal Procedure 37(d) provides that an atto rney, before any judgment becomes final, must either file a notice of appeal or a waiver of appeal8

signed by the defendant with the trial court. Tenn. R.Crim. P. 37(d). A techni cal violation of this rule do es not render a judgment inv alid if the record clearl

y and unambiguously shows that the defendant knew of his rig ht to appeal and intended to waive that right

to appeal. Jenkins v. State , C.C.A. No. 01C01-9405-C R-00156 (Tenn. Crim. App., Nashville, Apr. 13, 1995). Here, the evidence show s that before he was sentenced, the Appell ant advised his attorney that he had no i ntention of seeking an appeal. H owever, there is no indication that his attorney later discussed with the Appellant whether or not he had changed his mind and wanted to appeal after he knew the trial cour

t’s sentencing decision. Moreover, there is no waiver of appeal in the record in accordance with Rule 37(d) of the Tennessee Rules of Criminal Procedu re. The appropriate remedy for this deficiency is a delaye

d appeal. Rawlings v. St ate , C.C.A. No. 02C01-9504-C R-00112 (Tenn. Crim. App., Jackson, Ap r. 17, 1996). We, of course, in no way consider the merits,if any, of such a n appeal before g ranting

this re lief. Accordingly, w

e affirm the lower court’s judgment denying post-conviction relief with respect to the Appel lant’s guilty plea and conviction. How

ever, because the Appellant was denied effective assistance of counse l with regard to an appeal of his sentence, we grant the Appellant a delayed appeal w ith respect to his sentence only.9 __________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

__________________________ JOHN H. PEAY, JUDG E

__________________________ DAVID G. HAYES, JUDG E