FILED

August 9, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JUNE SESSION, 1999

CORY MYERS, ) C.C.A. NO. 02C01-9810-CC-00309

)

Appellant, )

)

) GIBSON COUNTY

VS. )

) HON. C. CREED MCGINLEY,

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF GIBSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

MICHAEL R. HILL PAUL G. SUMMERS

1066 S. Main Street Attorney General and Reporter

P.O. Box 679

Milan, TN 38358 PATRICIA C. KUSSMANN

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

CLAYBURN L. PEEPLES

District Attorney General

BRIAN FULLER

Assistant District Attorney General

110 s. College Street

Suite 200

Trenton, TN 38382

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Cory Myers, appeals the Gibson County Circuit Court’s

denial of his petition for post-conviction relief. Defendant confessed to killing a

former mayor of Trenton, Tennessee during perpetration of a burglary. The

Gibson County Grand Jury indicted Defendant for first degree felony murder,

especially aggravated burglary, and attempted especially aggravated robbery; for

which the State provided notice it would seek the death penalty. On October 10,

1997, Defendant pleaded guilty to first degree felony murder, and the trial court

sentenced him to the State’s recom mended term of life imprisonment. 

Defendant filed his petition for post-conviction relief on February 23, 1998.

Following an evidentiary hearing on August 21, 1998, the trial court denied

Defendant’s petition. In this appeal, Defendant argues that the trial court erred

by denying post-conviction relief because (1) he suffered the ineffective

assistance of counsel prior to and during the guilty plea hearing, and (2) his guilty

plea was not knowing and voluntary due to such ineffective assistance. 

I. INEFFECTIVE ASSISTANCE OF COUNSEL

To determine whether counsel provided effective assistance at trial, the

court must decide whether counsel’s performance was within the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the
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Sixth Amendment and that the deficient representation prejudiced the petitioner,

resulting in a failure to produce a reliable result. Strickland v. Washington, 466

U.S. 668, 687 (1984); Cooper v. State, 849 S.W .2d 744, 747 (Tenn. 1993); Butler

v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy the second prong the

petitioner must show a reasonable probability that, but for counsel’s

unreasonable error, the fact finder would have had reasonable doubt regarding

petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable probability must

be “sufficient to undermine confidence in the outcome.” Harris v. State, 875

S.W.2d 662, 665 (Tenn. 1994).

When reviewing trial counsel’s actions, this Court should not use the

benefit of hindsight to second-guess trial strategy and criticize counsel’s tactics.

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should

be judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S. at 690; see Cooper 849 S.W.2d at 746.

This two-part standard of measuring ineffective assistance of counsel also

applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show

that there is a reasonable probability that, but for counsel’s errors he would not

have pleaded guilty and would have insisted on going to trial.” Id. at 59.

If afforded a post-conviction evidentiary hearing by the trial court, a

petitioner must do more than merely present evidence tending to show

incompetent representation and prejudice; he must prove his factual allegations

by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). When an
1

 Defense counsel filed a motion to suppress this confession on the basis of a violation

of Defendant’s Sixth Amendment right to counsel. This motion did not include any other

grounds for suppression.

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evidentiary hearing is held, findings of fact made by that court are conclusive and

binding on this Court unless the evidence preponderates against them. Cooper,

849 S.W.2d at 746 (citing Butler, 789 S.W.2d at 899).

Here, Defendant specifically argues that his trial counsel was ineffective

by failing to move (1) to change venue to another county and (2) to suppress his

confession to police on the grounds that he was incapable of voluntarily giving a

statement.1 The trial court issued written findings accompanying its order

denying post-conviction relief; and on the issue of ineffective assistance of

counsel, the court concluded that 

[t]he record clearly demonstrates that [trial counsel] was very

vigorous in his defense of the Petitioner. A full and thorough

investigation was conducted, as well as extensive communication

between the Attorney and the defendant. The record fully supports

that the defendant was apprised of all his Constitutional rights

including right to trial by jury. Numerous discussions were had

between the Petitioner and his Attorney concerning all of his rights

and whether a plea of guilty might be in his best interest.

Petitioner’s counsel engaged in full and complete discovery and

kept the Defendant informed at all times. The court finds that

tactical decisions were made concerning possible change of venue,

which the defendant fully concurred in. 

Defendant contests the trial court’s findings, however, asserting that

counsel should have moved to suppress his confession because he “suffers from

various mental disorders such as Schizophreniform Disorder, Attention Deficit

Hyperactivity Disorder, and auditory hallucinations.” Furthermore, he attests that

his education ended in the ninth grade and that he can neither read nor write

well. The confession was written by a member of law enforcement and affirmed
2

 More accurately, Defendant stated that a change of venue would have “affected” his

decision to plead guilty. However, to obtain relief based upon ineffective assistance of counsel

involving a guilty plea, Defendant must show a reasonable probability that, but for counsel’s

deficient representation, he would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52

(1985). This shortcoming is not essential, however, to our decision affirming the denial of postconviction relief. 

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by Defendant by signature, and he now claims that he did not have the mental

capacity or intelligence to sign the confession due to his psychological disorders,

limited education, and borderline intellectual functioning. Moreover, he testified

at post-conviction that (1) had he better understood the trial procedures and

discovery motions, (2) had his counsel successfully moved for suppression of his

confession, or (3) had counsel moved for a change of venue to avoid the

passions and prejudices of a Gibson County jury, he would have insisted on

going to trial rather than pleading guilty.2 

The record on post-conviction reflects that, contrary to Defendant’s

allegations, his trial counsel, Tom Crider, testified he did not tell Defendant the

only way to avoid the death penalty was a guilty plea. Crider claimed, “I might

have personally thought that [a guilty plea] would have been the wiser course for

him to have taken in the case, but it always had to be his option on what he

wanted to do.” In addition, Crider attested to having interviewed a number of alibi

witnesses, perhaps the strongest of whom informed the investigator to the effect

that he would not lie for Defendant. Crider also testified that he, his staff, or his

investigators would have discussed with Defendant the results of all discovery,

including the ballistics report showing that the murder weapon had been traced

to Defendant. 
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Crider stated that he and Defendant did discuss filing a motion to change

venue; but after he informed Defendant that a Gibson County jury had never

returned a sentence of death against a member of the community, Defendant

decided against filing such a motion. Crider remembered discussing trial

procedure with Defendant, including the right to testify, because he recalled

warning Defendant he would also be subject to cross examination. In addition,

Crider testified that he advised Defendant about his right to appeal but cautioned

him regarding the rare success of appeals by criminal defendants. Finally, Crider

testified that the defense team explained to Defendant that his trial would be a

two-part process and that a jury would decide whether he received the death

penalty. Crider stated, “I’m absolutely certain that I never . . . told him that all he

could do was plead guilty.” 

When asked whether Defendant had understood his rights and the

considerations involved in a decision to plead guilty or go to trial, Crider stated,

[Y]ou do the best job you can in communicating and we went to—we

put in a lot of extra effort to try to insure as best we could that Cory

[Myers] was understanding and that was a part of the reason that we

had some of his family involved in the process so that while we

might think that we were explaining things and that he understood

them, if there were things that weren’t understood it would be

brought back to our attention or the fam ily could explain them in

ways that he would understand. . . . My impression was that he

understood what we were trying to convey to him about the process

that he was involved in and about the facts and limitations of his

case.

We conclude that the record fully supports the findings of the trial court;

Defendant has not proven otherwise by clear and convincing evidence. 

II. VOLUNTARY AND KNOWING PLEA
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Defendant argues next that because he received the ineffective assistance

of counsel, his guilty plea was neither voluntary nor intelligent. First, we have

concluded above that Defendant did not suffer the ineffective assistance of

counsel; therefore, this related allegation must fail. Second, upon a thorough

review of the post-conviction record, we determine that no other unalleged

infirmity disturbs the voluntary and intelligent nature of Defendant’s plea. 

The “core requirement” of federal constitutional law regarding the validity

of guilty pleas is that “no guilty plea be accepted without an affirmative showing

that it was intelligent and voluntary.” Fontaine v. United States, 526 F.2d 514,

516 (6th Cir. 1975) (citing Boykin v. Alabama, 395 U.S. 238 (1969)). In its

exhaustive and comprehensive evaluation of the requirements for a voluntary,

intelligent plea of guilt, the Tennessee Supreme Court stated,

[A] court charged with determining whether . . . pleas were

“voluntary” and “intelligent” must look to various circumstantial

factors, such as the relative intelligence of the defendant; the degree

of his familiarity with criminal proceedings; whether he was

represented by competent counsel and had the opportunity to confer

with counsel about the options available to him; the extent of advice

from counsel and the court concerning the charges against him; and

the reasons for his decision to plead guilty, including a desire to

avoid a greater penalty that might result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (citing Caudill v. Jago,

747 F.2d 1046, 1052 (6th Cir. 1984)).

Regarding the voluntary nature of Defendant’s guilty plea, the postconviction court found,

A review of testimony taken under oath from the Petitioner at

the time his plea of guilty was submitted reveals he was questioned

at some length prior to the acceptance of the plea by the court. The

court went into some detail to determine if in fact there had been

any coercion or if there was anything to indicate that the plea was
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anything except completely voluntary. The testimony taken under

oath as well as the court’s observations of the defendant during the

taking of the plea indicate that the plea was entered into freely and

voluntarily and there was nothing whatsoever to indicate to the court

that the Petitioner had been coerced in anyway [sic]. The

Petitioner’s testimony in the present hearing is diametrically

opposed to his earlier testimony given under oath and is also

contrary to the testimony given by the attorney that represented him

throughout the entire criminal process. The court finds the

defendant’s present testimony lacks any credibility and further finds

the plea of guilty entered on October 10, 1997, was done knowingly

and voluntarily by the Defendant.

The record fully supports the decision of the trial court. Exhibit 1 to the

post-conviction record consists of a transcript of Defendant’s guilty plea hearing.

Regarding the voluntary nature of the plea, the transcript reflects the following

colloquy between Defendant and the trial judge:

THE COURT: Mr. Myers, it’s been indicated to the Court that you

may wish to enter a plea of guilty to the charges against you. Is that

correct?

MR. MYERS: Yeah. Yes, sir.

THE COURT: First of all, is this what you want to do?

MR. MYERS: Yes, sir.

THE COURT: Are you doing so freely and voluntarily?

MR. MYERS: Yes, sir.

THE COURT: Do you know what I mean when I say freely and

voluntarily?

MR. MYERS: On my own.

THE COURT: Yes, sir. Are you doing this on your own?

MR. MYERS: Yes, sir.

THE COURT: Has anyone forced you to enter this plea against your

will?

MR. MYERS: No, sir.

THE COURT: Are you free of alcohol and drugs today?

MR. MYERS: Yes, sir.

At the evidentiary hearing, Defendant testified that he felt pressured to

plead guilty because of the pressure Crider placed upon Defendant’s

grandmother and the pressure that she, in turn, placed on him. He stated,

“[Crider] was taking her to an early grave by the pressure he was putting on her
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and I got tired of it.” When Crider was asked whether he encouraged

Defendant’s grandmother to persuade him to plead guilty, Crider responded that

he did not—that he merely explained to her the grim chance for success at trial

in light of the weight of evidence against Defendant. 

Testimony by Crider at the evidentiary hearing reveals that Defendant

came before the trial court with the intent to plead guilty prior to the tim e his

actual plea was entered. On that previous day, Defendant reconsidered his

decision to plead guilty, and he did not plead until some months later. We

conclude Defendant has not presented clear and convincing evidence that the

trial court erred by finding the plea rendered voluntarily.

We furthermore conclude that Defendant’s plea was knowing and

intelligent. Though he contends that he did not fully comprehend the proceedings

or the nature of his plea, the record indicates to the contrary, despite his limited

education and alleged disorders. At his plea hearing, Defendant attested to the

following:

THE COURT: Do you fully understand what you’re doing?

MR. MYERS: Yes, sir.

THE COURT: Have you discussed the matter fully and thoroughly

with your attorney, Mr. Crider, of the Public Defender’s Office?

MR. MYERS: Yes, sir.

THE COURT: Do you understand the nature of these charges and

have you discussed with him fully any possible defenses that might

be raised on your behalf?

MR. MYERS: Yes, sir.

THE COURT: . . . Do you understand that you’ve been charged with

first degree murder and what is known as felony murder; that is, the

commission of a homicide during the commission of a felony?

MR. MYERS: Yes, sir.

THE COURT: Do you understand that the range of punishment for

first degree murder in the State of Tennessee could be death by

electrocution?

MR. MYERS: Yes, sir.
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. . . .

THE COURT: Have you talked to your attorney about your

constitutional rights?

MR. MYERS: Yes, sir.

The trial judge proceeded to question Defendant regarding his knowledge and

understanding of each constitutional right which he would waive upon pleading

guilty. Defendant each time responded that he understood and finally affirmed

before the court that he was guilty of the offense at bar. We find that Defendant’s

plea was entered intelligently.

Because we have determined that Defendant suffered no ineffective

assistance of counsel and that his guilty plea was entered both voluntarily and

intelligently, we affirm the decision of the trial court denying post-conviction relief.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

DAVID G. HAYES, JUDGE

___________________________________

NORMA McGEE OGLE, JUDGE