### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J une 17, 2003

RITA D AVIS v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Marshall County

No. 15079-PC Charles Lee, Judge

No. M2002-02446-CCA-R3-PC-Filed September 25, 2003

Petitioner, Rita Davis, appeals the trial court’s denial of her petition for post-conviction re l i ef. Petitioner entered an open plea of guilt y to felony failure

to appear, a charge

apparently ste

mming from an other ca se in which Petitioner was charged with possession of a schedule II narcotic for resale, a Class B felony. Petitioner wa s convicted by a jur y on the drug possession charge, a nd on August 18, 1999, s he was se

ntenced on both co nvictions

. Petitioner filed a pro se petition for relief from her conviction and sentence in the failure to appear case. The tria l court denied post-conviction relief, but granted a delay ed appeal. Petitioner appealed, and thi s Court affirmed Petitioner’s sentence, but reversed

the denial of post-conviction relief, remanding the ca se for dismissal of the petition without prejudice. Petitioner filed another post-conv ict ion petition, alleging that she received the ineffective assistance of counsel a

nd that he r plea wa s not knowingly and volun

tarily entered. Followin g a hea ring, th e trial c ourt deni ed the pe tition. I n this dire ct appea

l, Pe titione r challenges the trial court’s denial of her petition. After a car eful review of the record, we a ffirm the judgment of the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

J ERRY L. S MITH , J., delivered the op inion of the court, in which J OHN E VERE TT W IL LI AMS and R OBER T W. W EDEMEYER , JJ., joined.

John H. Richa

rdson, Jr., Fayetteville , Tennes see, for the appe llant, Rita Davis.

Paul G. Summers, Attorney Gene ral & Reporter; John H. Bledsoe, Assistant Attorney Ge neral ; William Michael

McCown, D istrict At

torney Genera l; Weakley

E. Bern ard, Ass istant Dist ri ct Attorney Gene

ral, for the appellee, the State of Tennessee

. OPINION

Petitioner pled guilty

to felony failure to appea r, the of fense in this case, on August 9, 1999. On August 1 8, 1999, Pe

titioner w as sente

nced to six yea

rs, to be serv ed at s ixt y percent, as a Ra nge III caree r offender. Also

on Augu st

18, 1999, Petitioner

wa s s en te nc ed to tw en ty- fi ve yea rs at fo rt y--2-

five percen

t as a Ra nge II persistent offender for a felony drug possession conviction. No direct appeal of her sentence in the failure to appear

case was taken. On August 4, 2000, Petitioner filed
a pro se petition for relief from her conviction and sentence in the failure to appear cas e, (1 ) requesting a delayed direct appeal of her sentence; a nd (2) allegingineffe ctive as sistance of counse l. She was appointed counsel, and an evidentiary hearing was conducted. Following the hearing, the trial court g

ranted Pe titioner’ s reques t for a de

lay ed appe al, but concludedthat counsel had rendered effective assistance, and theref ore denied post-conviction relief.

Petiti onerthe reafter appealed to this Court, challenging her six-yea r sentence and the trial court’s denial of her petition. See State v. Rita Da vis , No. M2000 -032 27-CC A-R3 -CD, 2001 W L 1398138, 2001 Tenn. Crim. App. LEXI S 882 (Tenn. Crim. App., Nashville, November 9, 2001), perm. to app. denied

(Tenn., May

6, 2002). On direct appeal, this C ourt affirmed Petitioner’s sentence, but re versed the tr ial co urt’s denia l of po st-co nvict ion re lief, hold ing t hat i t was error, under Gibson v. State , 7 S.W.3d 47 (Tenn. Crim. App. 1998), to consolidate Petitioner’s request for
a delayed a ppeal with the collateral attack of her conviction and sentenc e, and remanded the case for dismissal of the post-conviction petition without prejudice.

On August 7, 2002, Petitioner filed an amended petition for post-conviction relief, alleging ineffectiveassistance of

counsel. The trial court conducted another hearing . The issues presented at the hear ing wer e: (1) wh ether c ounsel fa

iled to pro perly communic ate with

Petitioner throughout the proceedings; (2) whether counsel f ailed to adequately

advise Petitioner of her right to a trial by ju ry; (3) whether counsel advised Petitioner inc orrect lywith regard to the range of sentence; (4) whether counsel failed to advise Petitioner of therange of punishment; (5) whether counsel coerced Petitioner to enter her

plea of guilty ; and (6) whether counsel’s performanc e fell below an objective standardof reasonableness and whether h e provided services outside the range of competency demanded

by a ttorney s in crimin al case s. Petitioner contended that her

plea wa s not volunt

arily and freely made bec ause

counsel did not properly a dvise her of her right

to a trial by j ury and the po ssible range of punishment.
Post-C onviction H earing

A full evide

ntiary hearing was cond

ucted on S eptembe

r 20, 2002 , at which

Petitio ner w as represented

by counsel. At the hea

ring, Petitioner testified that she was convicted and sentenc ed to twenty-five

years in the dr

ug possession case on August 18, 1999. Petitioner testifie d that she

also pled guilty to the cha

rge of failure to appear

and was sentenced to s ix years at sixty percent on August 18, 1999. Petitioner testified that the reason she failed to ap pear for a hearing in the drug possession case was because she had bee n confused about the court dates.

Petitioner testi fied t hat at torne y Andrew J ackso n Deari ng, II I represente d her in bot

h cases. She testified that she met with Mr. Dearing only once before her

trial in the drug possession case. Petitioner testified that she and Mr. Dearing discussed her ple a of guilty to the charg e of fai lure to appear for “ab out three

minutes” between being sentenced for the drug possession conviction and pleading guilty

to failur e to appe ar. Petiti oner tes tified tha t she told Mr. Dearing that she w anted to-3-

go to trial on the charge, but he advised her to “plead open.” Shetestified that when she entered her plea, she “had just received twenty -five ye ars at forty-f ive percent stacked behind eightee n years of parole.” Petitioner testified that she “couldn’t think” and she “was just numb.” Petitioner testified that Mr. Dearing directed

her to answer affirmatively the questions asked by the tria l court at the plea hearin g, but Petitioner “wasn’t really thinking about what

[the judge] was saying

because I ha d just got s entenced to twenty -five at forty -five.” Petitioner admitted that she read the plea acc eptance agreement.
Petitioner testified that she understood that an “open plea” w ouldallow the

trial cou rt to determine her sentence. Petitioner added that Mr. Dear ing told her

that “it won’t carry

no more than
a year.” Petitioner testified that

Mr. Dea ring did not advise

her of th e rang e of punis hment for Class E felony fa

ilure to appear. Petitioner admitted, however, that at the hear ing on he

r first po stconviction petition, s he testif ied th at Mr. Dearing told her that the sentence c ould range from one to six years. Petitioner also testified that Mr. Dear ing told her

that she “didn’t have no chance in this court,” and that “this would be overturned when we got to anothe r court.” Petitioner thought Mr. Dearing would appeal her sente nce to a higher court, but no appeal wa s taken.

Petitio ner stated that she had about twenty -five prior convictions, and that she had been sentenced as a car eer off ender in the past, prior to p leading open in this case . She also

testified that she had acc epted a s i x-year s entence, to be served at sixty percent, for a previous conviction. Petitioner testified that Mr. Dearing told her that the c ourt date s were “ mixed up,” a nd Petitioner told Mr. Dearing that “it wouldn’t have mattered a nyway because I a

m a parole violator, and I

was going to be put in jail any

way .” I n Petitione

r’s pro se petition for post-conviction relief, shestated that she failedto appear not “out of a blatant disregar d of the law, but fear that she would be tried and found guilty of drug s found in her car that were not hers.”

Petitioner’s sister, Linda May s, testified that she helped bond Petitioner out of jail on the drug possession charge. When Petitio ner wasreleas ed on bond , she rec eived two differe nt court d ates. Ms. Ma ys testified that the date Petitioner wa s supposed to appear for a hearing on the dru g possession charge had chang ed and that Petitioner’s bondsman had notified Ms. Mays of the change. Ms. Mays had her self taken off Petitioner’s bond because of thedate change. She no longer wanted to be responsible for Petitioner’s court appearanc es.
Mr. Dearing testified that he represe nted Petitioner in the jury trial on the drug possession charge and at the plea hearing on the fa ilure to appear charge. He testified that Petitioner was arrested duringa traffic stop on an outstanding warrant for failure to appear in court. Also during that traffic stop, the police seized narcotics, leading to the dr ug possession charge. Mr. Dea ri n g testified that the two charges were related, and

he discussed both charges with Petitioner on several occasio ns. Mr. Dearing testified that Petitioner’s failureto appear case had been continued, a nd the date had been changed. Mr. De aring testified, however, reg arding the failure to appear c harge that “[Petitioner] candidly admitted that she didn’t show up in court that day bec ause she was afraid the judge was going to put her in jail, and she ne ver wanted to go to trial on the failure to appea r.”-4-

Mr. Dearing testified that Petitioner indicated “from the very beg inning” that she wanted

to be tried on the drug charge s no matter what the State offered. Mr. Dearing added that Petitioner

told him, “‘I f I c an get r

id of the drug case, I

will be happy to take six y ears – more than happy

to take si x yea rs a t s ix ty pe rce nt on t he f ail ure to app ear .’” In the failu re to app ear ca se, the Sta

te initially offered Petitioner

six years a

tforty-five

percent, which Petitioner understood and chose not to acce pt eve n though th e Sta te made c lear tha t it would te

rminate a ll offer s to plea if

a motion to s uppress evidence seized during the traffic stop wa s filed. Mr. Dearing filed a motion to suppress.

Mr. Dearing testified that he explained howsentenc ing ranges ar e deter mined toPetitioner. He also discussed the possible range of sentence with Petitioner before she entered her plea. Mr. Dearing directed Petitio ner to read the plea agree ment, and after reading it, she did not have a ny questions

. Mr. De aring testified that according to the State’ s enhancement notice, which he reviewed with Petitioner, Petitioner had fifteen prior felony convictions. Petitioner had pled g

uilty to prior offenses as a caree r offender. Mr. Dearing advised Petitioner that she could rece ive six years at sixty percen t, and she appear ed to understand. Finally , Mr. Dea ring te stified th at he adequately
c ommunicated to Petitioner the elements of the crime, the possible defenses, and the pos sibl e punishmen

ts, and he believed that Petitioner understood. Mr. Dearing stated t hat he di d not give Petitioner any advice

that was incorrect.

Petitioner testified that “there is no way [she] would have [taken] six years at sixty perc ent after just [having been] sentenced to twenty -five ye ars at forth-five percent.” Mr. De aring testified, however, that Petiti oner did not plead o pen to the failure to appear charg e on the sa

me day that she
was sentenced for the drug po ssession conv iction. In fact, the rec ord reveals that Petitioner pled guilty to failure to appear

nine day s prior to b eing se ntenced in both ca ses. Petitioner

was appa rently convictedof drug possessionon July 15, 1999. That is the day on which the jury char ge was read, and the pres entence

report a ls o shows t

hat the trial on the drug charge occurred on July 15, 1999. The judgment form in the drug possession case shows that Petitioner was sentenced to twenty -five yearsAugust 18, 1 999. Petit ioner was also sentenced in the failure to appea r case on August 18, 1999. The petition to enter a plea of g uilty and the tr anscrip t of the g

uilty plea hea ring in the failure to appear case, however, a re dated August 9, 1999. Although Petitioner was sentenc ed in both cases
on the same day, she

entered her guilty

plea to failure to appear prior to be in g s en te nc ed to tw en tyfive yea rs on the drug charge

. Following the he aring, the trial court denied post-conviction relief. The trial court found that Petitioner was sentenced

for the drug offense on Aug ust 18, 1999, but that she entered her plea of guilty to the offense of

failur e to appear, on August 9, 1999. The court conc luded, therefore, that Petitioner understood her rights when she entered her plea. The court stated, “I think what happened is, I think Ms. Davi s was in shock w hen she r eceive d the sent

ence tha t she did on

that Class B fe lo ny, but that shock did notcause he r to ente r an unknowing or

involunta

ry plea.” T he court also found that Petitioner did not present an y e vidence that her plea was coerc ed. The trial court concluded

that Petitioner’s plea

was voluntary a

nd knowing and that Mr. Dearing’s r epresentation of Petitioner “surpasse[d] the standards enunciated in Baxter v . Rose .” See Bax ter v. Rose , 52 3 S.W.2d 930, 936 (Tenn. 1975).-5- Standard of Review

The post-conviction court’s findings of fact are afforded the weight of a jury verdict and are conclusive on appeal unless the evidence prepondera tes against them. Henley

v. State , 960 S.W.2d 572, 578 (Tenn. 1997 ) . This cou rt may not rewe igh or r eevalua te the evidence, nor substitute its inferences for those drawn by the trial judge. Id . at 578-7 9; Massey v. State , 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996). Questions concerning the credibility of the witnesses a nd the weight and value to be giv en th eir

testimony are re solved by the trial court, not this court. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).
Ineffective Assistance of Counsel

This Court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner bea rs the burden of proving that (1) the attorney ’s performance

was deficient, and (2) the deficient perfor mance r esulted in prejudice to the defendant
so as to depr

ive him of a

fair tri al. Strickland , 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. St

ate , 938 S.W.2d 363, 369 (Tenn. 1996). In Tennessee, the te st for determining whether counsel provided effectiveassistance is whether hi s performance was within the rang e of competence demanded of at to rn eys in criminal cases. Baxter , 523 S.W.2d at 936. When a claim of ineffective assistance of counsel arises out of a guilty plea, the petitioner has the burden of showing that ther e is a re asonable pro bability

that but for counsel’s errors, he would not have enter ed a guilty

plea and would hav e insisted on going to trial. Hill v. Loc khart , 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).

The thrust

of Petitioner’s argument

is that she pled guilty to failure to appear, out of “shock” at having received a twenty

-five ye ar sentence for her drug possession conviction. We conclude that the record supports the trial court’s conclusion that Petitioner ente red the plea prior to being sentenced on the drug charge. Additionally, we find other evidence that supports the conclusion that Petitioner’s plea was voluntarily a nd knowingly e

ntered. Petitioner

read and signed the

petition to enter a plea of guilty . The guilty plea petition states that defense counsel advised P etit ioner, and Pe titio ner understo od the poss ible punis hment for the offe nse to whic

h she pled

guilty . It c learly states that the o ffense

is a Class E felony, which c arries a range of punishment of one to six y ears. Furthermore, Petitioner is no stranger to the c ourt system. She t estified th at she was se rving a lengthy sentence of probation at the time she was sentence d as a Ran ge II offen der to twenty-f

ive yearsfor posse ssion of a schedule II narcotic. She also testified that she had many prior felony convictions and had b een sent enced a s a Range II I offender in the pa st. Petitioner admitted that she testified at the hearing on the first post-convic tion petiti on that co unsel adv ised her that the p ossible range of sentence for the failure to appea r charge was one to six y ears. We agree with the trial court’s conclusion that Petitioner has not shown that counsel’s performance w as deficient.

Becau se we conc lude that Petitioner

has failed to establish that the evidence preponderates agains tthe trial

court’sfinding s that cou nse l was eff

ecti ve and her plea was voluntarily and-6-

knowing ly

entere d, we n eed no t addr ess th e preju dice p rong of Petition er’s claim of ineffective assistance of counsel. See Goad , 938 S.W.2d at 370.
CONCLUSION The judgment of the trial court is affirmed.

___________________________________ JERRY L. SMITH, JUDGE