### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d onBr ie fs A ugus t 15 , 200 7

PAUL S. BUS H v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Mac on Coun ty Nos. 04-190, 04-191 J. O. Bond, Ju dge

No. M2006- 02442-CCA -R3-P C - F iled Novem ber 5, 2007

The pe titioner, Paul S

. Bu s h , appea ls the dismis sal of his petition for post-convic tion relief a nd

c o n t e n d s t h a t h e r e c e i v e d i n e f f e c t i v e a s s i s t an c e o f

c o u n s e l r e g ar d i n g h i s g u i l t y p l e a

. S p e c i f i c a l l y, the petitioner a

rgues that counse l met with him onl y three or four

times, failed to suffic iently revie w the ple a a g re e me nt w ithhim , to ld h im he ha d to tak e the ple a , ma de no a tte mpt to h a ve him

me nta lly evaluated, fa iled to file a motion to suppress, and failed to review discove ry materia ls with him prior to enteringhis guilty

plea. Af ter c are ful revie w, we c onclude that no e rror exis ts an d aff

irm the jud g me nt f

ro m th e po st- c on vic tio n c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OHN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the court, in which J ER R Y L. S MI TH and A L AN E. G L EN N , J J ., joined.

Comer L . Donnell, District Public De fende r, and Thomas H. Bilbre y , Assistant Publ ic Def ender , for the appe llant, Paul S. Bush.

Rob e rt E. Coo pe r, Jr., Attor ne y Ge ne ra l and

Re po rt e r; L e sli e E. Pr ic e , A ssi sta nt A tto rn e y

Ge ne ra l; To m P. Th omp so n, Jr., Di str ic t A tto rn e y Ge ne ra l; a

nd L ind a D. W all s and

Ho wa rd L . Ch a mbe rs , Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

The petitioner pled g uilty to one count of ag g ravated burg lary , a Class C felo n y , an d o ne count of burg lary , a Class D fe lony . He wa s sentence d to consec u t i v e fo u r- y ear terms for e ach

c o n v i c t i o na s a

R an g e I, s t an d ar d o f

f e n d e r f o r t h e a g g r a v a t e d

b u r g l ar y c o n v i c t i o nan d

a s a R an g e II, multipl e off

ender for the bur g lary

conviction.

Duri ngthe po st- c on vic tio n h e ari ng , th e pe tit ion e r t e sti fi e d that c ouns e l w a s a pp oin te d to

re pr e se nt h im a

nd tha t, p ri or to e nte ri nghis g uil ty

plea, th ey met at her

of fi c e thr e e or

fo ur tim e s.-2-

The pe titioner said that he left messag es wit h counsel that went unreturned and that, rathe r than make appointments with counsel, he would just g o to her office in hope s of finding her the re. H e advise d counsel that he had a history of mental illness, including ti m e s p en t i n a m ental hospital and the taking of medication. He said coun s el s hould have ha d him evaluated ba sed on his addiction and mental hea lth hist ory

.
He sa id t hat couns e l told him the State ha d a de qu a te e vid e nc e a g a ins t hi m, p ro vid e d h im w ith

a c op y of the dis c ov e ry

mate ri a ls, and a dv ise d him of the c ha rg e s a g a ins t hi m. H e sa id s he tol d h im that he wa s taking the eig ht-y ear plea, r eg ardle ss. He conten d s t h at h e wa n t ed to g o to trial, but counsel told him he had to sig n the plea a g ree ments. He said he signe d them beca use he thoug ht she would know better . He wa s unsure if c ounsel told him he could have a jury trial.

He sa id he did not know what evide nce the State had ag ainst him, but counsel told him it was

“ e no ug h. ” He said counse l di d n ot a dv ise him a bo ut t he ra ng e of se nte nc ing . T he pe tit ion e r a lso testified that he be lieved counse l should have had him menta lly evaluated based on his prior history of drugaddiction and ment al i l l ness. He a lso said a motion to suppress should have bee n filed reg ardinga wa

rra ntless se arc h of some of his pr operty and conce rning statements he made to police. He sa id that he wanted t o have a jury trial if awa

rded post-c onviction relief a nd that he under stood he mig ht rec eive a

more substantial sentenc e than the one he wa s prese ntly serving

. Duringcross-e x amination, the petitioner testifi ed that this was not his first tim e in a courtroom be cause he had pr ior convictions in a diffe rent c ounty . He sa id he enter ed plea s on the prior convic tions but that counsel then did not forc e him to enter the pleas. He said that he did not

un de rs tand

wh a t w a s g oin g on

be c a us e he did no t have a

“ de g re e in atto rn e y ” ; ot

he rw ise , h e wo uld have re pr e se nte d h ims e lf . H e sa id he wa

nte d a tr ia l be c a

us e he did no t fe e l th a t he wa s a de qu a te ly repr esente d. He sa id that he had served e ight y ear s for prior burg lary convictions. He sa id that counsel ne ver told him that his sentence could be e nhance d beca use of his prior c onvictions.

Ne xt, c ouns e l te sti fi e d th a t sh e is p ro pe rl y lic e ns e d. I n June of 20 04 , sh e op e ne d he r f ile in the ins tant c a se . O n July 7, 20 04 , sh e re vie we d the wa rr ants in de ta il wi th t

he pe tit ion e r. She sa id she and the petitioner also re viewed stat em ents made by the co- defe ndants. She spoke with the de te c tiv e wh o inve sti g a te d th e c a se . Sh e and the pe tit ion e r re vie we d his pr ior of fe ns e s and

his pa ro le violations. They discussed the victims a nd the victims’ versions of e vents ag ainst the petitioner’s version. She said that they examined the entire r equest for acc eptanc e of a

g uilty plea a nd made sure the petitioner unde rstood that he had a rig ht to trial. They revie wed the differ ent ra ng es of se ntence s be c a us e the re we re ra

ng e iss ue s w ithho w t

he pe tit ion e r w ou ld p le a d. B e c a us e the pe tit ione r s a id he did not want to g o back to pr i s o n , t h ey set the ca se for

trial. Counsel said it was not her pref ere nce to try

the ca se but, when the client wants a trial, she g ets rea dy

for tria l.

I n pre pa ri ng fo r tr ia l, she c on te mpl a te d fil ing mot ion s to su pp re ss b ut b e lie ve d th e y

wo uld not be helpful be cause the petitioner wa s voluntarily intox icated. She sa id the petit ioner called her

and sa id h e wa

nte d to ent er a pl ea. S he te sti fi e d th a t th e re wa s n o w ay sh e wo uld

e ve r t e ll a defe ndant that they

had to take a

plea.-3-

No thi ngin c ouns e l’ s o bs ervatio n o f t he pe tit ion e r i nd ic a te d th a t he might b e me nta lly ill

. She said, “He ’s not the sharpe st knife in the draw er, but he understood about prison.” He wa s awa re of the prison verna cular

about how much time it would take to complete his sentence s. She believed that his plea wa s his choice a nd that it was fre ely

and voluntarily

enter ed.

Duri ngc ro ss- e xami natio n, sh e te sti fi e d s he c ou ld not re c a ll the numbe r o f t ime s sh e me t w ith the petitioner but knew they met multipl e times. She said he kne w he ha d a trial date set for October 4, 20 05 . She state d that she and the pe tit ion e r re vie we d the state me nts of the pe tit ion e r a nd of his co-de fenda

nts. She had advised him about the c ontents o f the plea and the possible enha

nceme nt of his sentenc e beca

use of his pr ior convictions. Counsel te stified that the petitioner unde rstood the contents of the a g ree ment and under stood that it was his decision to take the plea . She said that they discussed the issues they

had with suppressingthe sea rch be cause the p e titioner’s wife ha d consente d to the sear ch. She said she was sure she told the petitioner that she thought it was a g ood plea due to the number of c harg es alongwith his prior convictions. She did not opine t o the number of y ear s he mig ht be sentenc ed to if convicted at trial. She, along with the petitioner, rea d the plea f orm twice prior to its final entry . I f t he petiti oner had told her on the day the pl ea was entered that he wanted to go to tria l, she would not have e ntere d the g uilty plea.
The post-c onviction court found that the pe titioner had t he represe ntation of an attorney who

was c ompetent to repr es en t h i m and who use d her e x pertise to his bene fit. The cour t found that counsel ha d done all that could be expected and dismissed the pe tition.

An a ly sis

Th e pe tit ion e r a

rgue s th a t th e po st- c on vic tio n c ourt e rr e d in dis mis sin g his pe tit ion fo r p os tconviction re lief. He contends that counsel was ineffe ctive in failing to fully advise him reg arding his guilty plea.

When a claim of i neff

ective assistance of counsel is made unde r the Six th Amendment, the petitioner bea rs t h e b urden of proving that (1) c ounsel’s per formanc e wa s deficie nt, and (2) the defic iency

was pre judicial in terms of re nderinga re asonable probability that the re sult of the trial

wa s unr e lia

ble or the pr oc e e din g s we re fu

nd a me nta lly un fa ir

. Str ic kla nd v. Was hin g ton , 466 U. S. 66 8, 68 7, 10 4 S. Ct. 20 52 , 2 06 4, 80 L

. Ed

. 2d 67 4 ( 19 84 ). Th is s tand ard ha s a lso be e n a

pp lie d to the rig ht to counsel under Article I , Section 9 of the Te nnessee Constit ution. St ate v. Me lson, 772 S.W. 2d 41 7, 41 9 n .2 (T e nn . 1 98 9). Wh e n a pe tit ion e r c la ims ine ff

e c tiv e a ssi sta

nc e of c ouns e l in relation to a guilty

plea, the pe titioner must prove that counsel pe rfor med def iciently , and that, but for c ounsel’s er

rors, the pe titioner would not have ple d g uilty but would have, instea d, insisted upon g oing to tria l. Hill v. L ockhar t, 474 U.S. 52, 59, 106 S. C t. 366, 370, 88 L . Ed. 2d 203 (1985).

I n Bax ter v. Ros e, 523 S.W.2d 930, 936 (Tenn. 1975), our supr eme c ourt requir ed that the

s e r v i c e s b e r e n d e r e d

w i t h i nt h e r an g e o f

c o mp e t e n c e d e m an d e d

o f a t t o r n e y s i nc r i m i n a l c a s e s

. In revie wing counsel’s conduct, a “fa ir assessment of attorne y perf ormanc e re quires that eve ry eff ort be made to eliminate the distorting e ffe cts of hindsight, to rec onstruct the cir cumstance s of counse l’s-4-

challeng ed conduc t, and to evaluate the conduc t f rom counsel’s perspe ctive at the time.” Strickland, 466 U.S. at 689, 104 S. Ct . at 2065; see Nichols v. State, 90 S.W .3d 576, 587 (Tenn. 2002)

. The p e ti ti o n e r

b e ar s th e b u r d e no f

p r o v in g b y

c le ar an d c o n v in c in g e v id e n c e th e f a ctual alleg ations that would entitle the petit ioner to relief. Tenn. Code Ann. § 40-30-210( f). This cour t is b ound by the po st- c onvic tio n c ourt ’s fi nd ing s o f f a c t un le ss t

he e vid e nc e pr e po nd e rate s a g a ins t those finding s. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

Her e, the petitioner contends that counsel was defic ient for failing to meet with hi m enoug h, for not suff

iciently discussing his plea

ag ree ment with him, for telling him he had to take the plea, fo r fail ingto h ave him

me nta lly e va luate d, and

fo r n ot f ili nga mot ion to s up pr e ss. Th e po stconviction cour

t found that the petitioner f ailed to meet his burde n of showing either that counsel was de ficient or that there w as any prejudice

. The testimony

during the post-conviction he aring re veale d that counsel met with the petitioner three or four

ti m es p ri o r to entry

of the guilty

plea. B oth counsel and the petitioner testified that they

m et and discussed the ca se on multiple occa sions. Their meeting s included discussion about the pendingchar g es, the sea rch of the petitioner’s home, the petitioner’s ve rsion of fa cts, his prior convictions, and possible e nhance ment fac tors.

Counsel te stified that she revie wed the ple a agree ment with the petitioner, and she said that it w a s h is d e c isi on

to p le a d guil ty . Sh e ma int a ine d th a t sh e did no t te ll the pe tit ion e r t hat he ha d to ple a d guil ty , th a t th e pe tit ion e r d id n ot a pp e ar t o b e me nta lly

ill , a nd , f ur the r, that he un de rs too d a ll of the pr oc e e din g s. Th e po st- c onvic tio n c ourt fo un d th a t c ouns e l and

the pe tit ion e r d iscuss ed his po te nti a l e xpos ur e , b a se d o n his pr ior c ri min a l re c or d, wh ic h wa s pote nti a lly g re a te r t ha n th e tim e he ag ree d to in his pl ea. T he State ar g ues t h at t h e p et i t i o ner ha s failed to show a ny defic iency

by counsel, a nd we a g ree

. Counsel met with the petit ioner, conveyed to him the information pertinent to h is s itu a tio n s o th at he c ou ld m ake an in fo rm e d d e c isi on , e xpla ine d th e ple a a g re e me nt t o h im, and advise d him reg ardinghis plea. The pe titioner’s alleg ations that counsel wa s ineffe ctive for not
a de qu a te ly

me e tin g wi th h im, no t f

ull y dis c us sin g the ple a a g re e me nt w ithhim , a nd fo r f or c inghim to e nte r a ple a are wi tho ut m e ri t.

Ne xt, th e pe tit ion e r c on te nd s th a t c ouns e l w a s in e ff e c tiv e fo r f

a ilingto h a ve him

me nta lly evaluated prior to ente ring the plea. T he State ar gu es t h at the petitioner f ailed to provide a

ny evidenc e duringthe post-conviction hea ring that he had a

ny sort of m en t al i llness or that he wa s unable to under stand the plea ag ree ment. After

revie w, we a g ree

. Counsel testified that the petitioner did not g ive any appea ranc e that he was mentally ill or that he did not understand the proce ed i n gs

. She did say that he wa s “not the shar pest knife in the draw er” but that he did understand the proce ss. She testified that he ha d been to pr ison before , was familiar with the vernac ular, and knew how much t ime it would take to complete his sentenc e. The State also points out that the post-conviction court re vi ew ed t h e petitioner’ s handwritten letter s reg ardingcounsel’s r ep re s entation and determined that he was “ not unintelligent.” H ere , the-5-

pe tit ion e r h a s n ot m e t hi s burd e n of de mon str a tin g that c ouns e l w a s in e ff e c tiv e fo r f

a ili ngto r e qu e st a mental e valuation. He ha s provi d ed n o d o cumentation or evidence to support his claim and, there fore , has fa iled to meet his burden of proof.

F ina lly , th e pe tit ion e r c on te nd s th a t c ouns e l w a s in e ff e c tiv e fo r f

a ili ngto f ile a mot ion to suppress. Howe ver, he does not state what counsel should have attempted t o suppress in his brief. This issue is waived as the pe titioner has fa iled to argue what should have bee n suppressed.
The pe titioner has fa iled to show that co u n sel was inef fec tive in any

way ; theref

ore, w e
a ff ir m th e jud g me nt f

ro m th e po st- c on vic tio n c ou rt

.
Conclusion

B a se d o n th e fo re g oin g and the re c or d a s a

whol e, we a ff

ir m th e jud g me nt f

ro m th e po stc on vic tio n c ourt

.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE