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

Briefs O ctober 2, 2001 TIMOTHY POTTS v. ST ATE OF TENNES SEE Appeal from the Circuit Court for Madison County No. C-00-308 Roger A. Page, Judge

No. W2001-00400-CCA-R3-PC - January 23, 2002

The petitioner, Timothy Potts, pled guilty to second degr ee mu rder, a Class A felony, and was sentenced as a Rang e II, mult

iple offe nder to th

irty-five y ears in the Tennessee Department of Correction. He appeals the trial court’s denial of his petition for post-conviction relief, claiming (1) that h is guilty plea was not knowingly, voluntarily, and intelligently made because he did not understandthat he was pleading guilty as a Range II offender and (2) that he received the ineffective assistance of counsel. We affirm the trial cour t’s denial of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OSEPH M. T IPT ON , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and R OBERT W. W EDEMEYER , J., joined. Scott G. Ki

rk, Jack son, Tennessee, f

or the ap pellant, Timothy Pott s. Paul G. Summers, Attorney Gener a l and Reporter; Thomas E. Williams, III, Assistant Attorney Genera l; James G. W

oodall, D istrict A

tt orney General; and Alfred Lynn Ear ls and James W. Thompson, Assistant District Attorneys General, for the appellee, State of Te nnessee. OPINION The petitioner’s underlying conviction rel at es to the murder of Howard G. Bates, a cab driver. The record reflects that the petitioner shot the victim in the back of the he ad at point blank range, killing him instantly. At the post-conviction hearing, t he petitio ner testified that he was originally charged

with first degree murder. He said that he did not have a pr ior criminal record. He said that he pled guilty to second degree murder and that t he trial c ourt sent

enced h im as a Range II offende r to thirty -five ye ars. He

acknowl edged tha

t his trial attorney told him that a second degree murder conviction carried

a thirty-five-year prison

sentenc e. He al so ackno wledged that the st

ate explainedto him at the

guilty plea

hearing that he was pleading guilty to second degree murder and that he would receive a thirty-five-year sentence. However, when the petitioner’s post-conviction attorney asked him if he understood that by pleading guilty he was agreeing to be sentenc ed as a Range II offender instead of a Range I of fender, the petitioner testified, “I ain’t pay no attention to-2-

that.” The petitioner

said that his trial attorney advised him to plead guilty. He said that when he pled guilty, he knew that if he did not accept the state’s plea offer he c ould have beenconvicted of first degree murder and could have re ceived a life sentence. The petitioner testified that he did not give a statement to the police when he was arrested. He said that

an investigator

presented three written statements “out of nowhere ” that the petitioner alleged ly gave to the polic e. He ac knowledg ed that the state in tended to usethe state

ments aga inst him at trial. He said that the statements were not written in his handwriting and that he told his trial attorney that he did not give the statements to the p olice. He said t hat despite what he said, his attorney did not file a motion to suppress the statements. He said that he asked histrial atto rney to have a handwriting expert analyze the statements but that

his trial attorney never hired a handwriting expert. He said that at his preliminary hearing, the state produced an eye witness but that the eyewitne ss could

not “pinpoint” the petitioner as the person who shot the victim. He said that based on what he had learned

about his c ase sinc e pleading guilty, h e would ha

ve gone to

trial. He said he should have been sentenced as a Range I offender instead of a Range II of fender. On cross-examination, the petitioner testified that his trial attorney did not exp lain his guilty plea to him and did not tell him that the trial court was going to sentence him as a Range II offender. He acknowledged signing a written plea agreement that stated, in bold type a

nd upper case letters, “I fully unde

rst and that as part of this negotiated plea . . . the thirty-five (35) year sentence which I am accepting, is outside the range of punishment for a range I offender, w

hich I would be classified a s, notwithstanding the negotiation of this plea.” However, he said that he never r ead the writte n agreement and that his attorney never rea d it to him. He admitted that he knew how to read when he signed the

written p lea agr

eement, but he ass erted th at his tria l attorne y “just told

me to sign it and I signed.” The petitioner acknowledged that when he pled

guilty, he knew that he was agreeing to be sentenced

as a Range II offender. He a lso acknowledged that he knew what he was doing when he pled guilty. The petitioner testified that his preliminary hearing attorney, who was not his trial attorney, tried to have his three writtenstatements suppressed but was unsuccessful. The state then asked the defendant “if the State were to offer you a twenty-f ive year sentence as a range one on second

degree murder would you take it today?” The petitioner answered, “Yes, sir .” The sta te then a sked, “So you don’t want a jury trial, you want a guilty plea?” Again, the petitioner answe red, “Yes, sir.” The defendant’s trial attorney testified that at the time of the post-conviction hearing, he had been licensedto pract

ice law f or ninete en year s. He said that he discovered several problems for the petitioner’s defense. First, he said that the petitioner had given three inconsistent statements to the police about the crime. Second, he said tha t a man by th

e name of

“Washin gton” had

agreed to testify against the petitioner about statements the petitioner made while the petitioner and Mr. Washington were being held in the Madison County Justice Complex. Fin ally, he s aid that several eyewitnesses to the crime positively identified the petitioner. The petitioner’s trialattorney said that he discussed every aspect of the case with the petitioner, including the likelihood that the petitioner would be convicted at trial and receive a life sentence for first degree murde r. He said that at one point, he and the petitioner were prepared to go to trial but that the case was continued. He said that-3-

after a lengthy negotiation, the state agreed to let the petitioner plead guilty to second degree murder and be sentenced as a Range II of fender. The peti tioner’s tr ial attorney testified that he read the plea agreement to the petitioner verbati m. He said that the petitioner had about two and one-half days to decide whether he wanted to accept the plea. He said that an artist’s dra wing of the s hooter resem bled the p etitioner ’s first cousin and that the petiti oner had

the option

to go to tria

l and argue that hi s cousin sh ot the vic tim. He said that t

he petitio ner did no t want to a rgue tha t h is cousin m urdered the victim and that the petitioner decided to plead guilty. He said that had the petitioner gone to trial, he was prepar ed to impeach Mr. Washington. The petitioner’s trial attorney testified that he had part of the written plea agreement typed in bold print in order for the petitioner to understand fully that he was pleading outside of

his range. He said th at it was n ot standa rd proce dure toput parts of writte n plea ag reemen ts in bold type but that he did so specially for this case. He said that he gave the petitioner a

copy of every document he received in the case, including impeachment evidence against Mr. Washington. He said that the petitioner never asked him to do anything about the three sta tements th at the pe

titioner g ave to the police and that t

he petitio ner neve

r indica ted that t he police coerced the petitioner into giving the statemen ts. He said th at the pe

tit i oner never denied making the statements and that the petitioner never asked him to have a handwriting expert examine the statements. He said that he could not think of anything that he would have do ne differently in the case and that he still thought the petitioner did the right thing by accepting the state’s plea offer. The state introduced into evidence a transcript of the petitioner’ s guilty pleahearing. In that hearing, the following exchange occurred:

THE COURT: You’ve gone over [the plea agree m ent] w ith your attorney. And at this point, atleast, you understand what you’re doing this morning? DEFENDANT: Yes, sir.

. . . . [THE S TATE]: . . . . Second degree murder is a Class A felony and carries a range of punish ment from fifteen (15) to six

ty (60) years. Pursuant to our agreement, Mr. Potts is pleading outside of his regular range, which would be Range I, int o Range II. The actual range for Range II -- Letme look at it to be sure -- is twentyfive (25 ) to forty

(40) yea rs. Mr

. Potts is actually a standard Range I offender a nd that range would

be fifte en (15) t

o twenty-five (25). But pursuant to our agreement

-- O f course, he’s faced with a char ge of first degree-4- murder, which carries a possible life sentenc e which w ould

be fiftyone (51) years or a possible life withou t parole . And the State has filed to seek life without parole in this case. So, he’s pleading outside his range as a Range II offender and the agreement was thirty-five (35) yea rs, so that falls within Range II. I want to make that clear.
THE COURT: Mr. Potts, you’ve heard [the state] go over the offense to which you’re pleading and the range of punishmen

t for it. Do you hav e any que stions at a ll about tha

t? DEFENDANT: No, sir.
THE COURT: Do you understand that you’re p lead ing outside yo ur ra nge, which you are allowed to do under our law; do you under stand tha

t? DEFENDANT: Yes, sir. THE COURT: Do you have any questions about that part of it? DEFENDANT: No, sir.

. . . . THE COURT: Is your plea being entered freely and voluntarily? DEFENDANT: Yes, sir.
THE COURT: Has any threat been made or promise made toward you or anything to cause you to plead guilty other than your plea bar gain agr eement? DEFENDANT: No, sir.
THE COURT: You are pl e ading guilty because you think that’s the best cour se for you under all th e circu mstance s and bec ause you are g uilty; is tha

t corre ct? DEFENDANT: Yes, sir.-5- TH E COURT: Are you satisfied with the represent atio n provided by your attorney . . . ? DEFENDANT: Yes, sir.

. . . . The trial court

denied the post-conviction petition, finding that the petitioner voluntarily and understa ndingly entere d his plea

and that h

e did not receive the ineffe ctive as sistance of counse

l. The trial court

noted tha t the state , the tria

l court, and the petitioner’s trial attorney explained to the petitioner that he was pleading outside of his range. In addition, the written plea agreement that the petitioner signed sta

ted that f act in bol d type. As for the p etitioner ’s claim t h at he received the ineffective assistance of counsel, the trial cour t believed the trial attorney’s testimony over that of the petitione

r. In add

ition, it foun d that trial counsel’s representation of the petitioner was “exceptional” a

nd met the

standar d for the effec tive assis tance of

counsel.
In order for

a petitioner to succeed on a post-conviction claim, the petitioner must show the al legations set forth in his petition by clear and convincing evidence. Tenn. Code Ann. § 40-30

- 210(f). A trial court’s findings of fact in a post-con viction he aring ar

e conclu sive on ap

peal unle ss the evidence in the record preponder ates against those findings. See Butler v. St ate , 789 S.W.2d 898, 899 (Tenn. 1990). This court may not rew eigh or reeva luate the evidenc e, nor sub stitute its inferences for those

drawn by the trial court. Henley v . State , 960 S.W.2d 572, 579 (Tenn. 1997). Questions concerning the credibility of witnesses and the weight and value to b e given to their testimony are re solved by t he trial c ourt, not t

his court. Id. Post-conviction relief may only be given if a convic tion or se

ntence i s void or vo idable because of a violatio n of a con stitutiona l right. Tenn. Code Ann. § 40-30-203.

I. KNOWING,

VOLUNTAR

Y, AND IN TELLIGENT GUIL TY PLEA The petitioner contends that he did not knowing ly, volunt arily, a nd intellig ently ent

er his guilty plea bec ause

he did not understand that he was being sentenced as a Range II offender instead of a Range I offender. The state argues that the petitioner made his plea knowingly, voluntarily, and intelligently. We agree with the state.
In order for a

convicti on based

upon a gui lty plea to

comport w ith due proc ess, the p lea must be voluntarily, knowingly, and understandingly entered. Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 1712 (1969). A guilty plea is not voluntary “ if it is the product of ‘[i]gnorance, incomprehension, coerci on, terr or, induc ements, [or] subtle or blatant threats . . . .’” Blankens hip v. State , 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin , 395 U.S. at 242-43, 89 S. Ct. at 1712). The standard for

assessing the validity of

a guilty plea is “‘whether the plea represe nts a voluntary and intelligent choice among the alternative courses of

action open to the defendant.’” Id. (quoting North Carolina v. Alford , 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970)). “[T]he record of acc eptance of a defendant's ple a of guilty must affi rmativel y demonstrate that

his decision was both voluntary and knowledg eable, i

. e., that he has been made aware of the significant consequence s of such a plea;-6-

otherwise, it will not amount to an ‘intentional abandonment of a known right.’” Mackey , 553 S.W.2d 337, 340 (Tenn. 1977). To assess whether a petitioner enter ed a knowing, voluntary, and intelligent guilty plea, this court must consider the totality of the circumstances. State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). Initially, we note that a defendant may be sentenced outside of his range pursuant to a guilty plea. See Hicks v. St

ate , 945 S.W.2d 706 (Tenn. 1997). In this case, the petitioner’s trialattorney testified that

he we nt over the proposed guilty plea with the petitioner verbatim. In addition, the guilty plea hearing transcript shows that the state explained that the petitioner was being sentenced as a Range II offender. The tra nscript also shows that the trial court told the petitioner that he was being sentenced outside of his range and the trial court asked the petitioner if he understood or had any questions abo ut it. At no time did the petitioner indicate that he was confused or did not understandthat

he was being sentenced as a Range II offender. Even more telling is the fact that the petitioner admitted on cross-examination at the post-conviction hearing that he knew he was being sentenced as a Range II offender. Based on the totality of the circumstances, we believe that the trial court properl y found tha t the petitioner entered his guilty plea knowingly, voluntarily, and intelligently. II. INEFFEC TIVE ASSISTAN CE OF COUN SEL Next, the petitioner argues that he received the inef fective assistanceof

counsel. The state contends that trial counsel’s performance wa s not ineffective. We agree with the state. Under the Sixth Amendment, when a claim of ineffective assistance of c ounsel is made, the burden is on the petitioner to show that (1) counsel’s performance wa s deficient, and (2) the deficiency was prejudicial in terms of render ing a reaso nable pr

obability t

hat the r esult of the trial was unreliable or the proceedings fundamenta lly unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 205 2, 2064 (1 984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993) . Th e Strickland standard has been applied to the right to counsel under article I , section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989). When a petitioner claim s that ineffective assistance of counsel resulted in a guilty plea, the petitioner must prove that counsel performed deficiently and that but for counsel’ s error s, the pet

itioner w ould nothave ple d guilty an d would have insisted upon going to trial. Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).
In Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided t hat attorneys should be held to the general standard of whether the se rvices ren dered w ere wit

hin the range of competence demanded of attorneys in cr iminal cas es. Further, the court stated that the range of compe

tence w as to be me asured b y the dutie s and criteria se t forth in B easley v. United States , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCoster , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires that

every effort

be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s-7-

perspective at the time.” Strickland , 466 U.S. a t 689, 104 S. Ct. at 2065 ; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982).
As previously noted, the burden is on the petitioner to prove his grounds for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f ). On appeal, we

are bound by the trial court’s findings of fact unless we co nclude th at the evidence in the rec ord prep onderat es again st th ose findings. Fields v. Sta te , 40 S.W.3d 450, 456 (Tenn. 2001). W e review the trial court's conclusions of law under a purely de novo standard. Id. at 457. A. Failure to Inform as to Range II Offender First, the p etitioner

contendsthat he r

eceive d the inef

fective assistanc e of coun sel beca use his trial atto

rney nev er told him

that he wo

uldbe sentenced as a Range II offe nder. However, the petitioner’s trial attorney testifie d that he w ent over the plea agreem ent with th

e petitioner verb atim, and the trial court found that the attorney’s testimony was credible. Moreover, the petitioner signed a written plea agreement which stated that the petitioner was accepting a thirty-five-year sentence and that the sentence was outside the range of punishment for a Range I, s tandard

offende r. This language appear

ed in bold t

ype, uppe rcase l etters, and just above the petitioner’s signature line. We also note that

th e transc rip t of the post-conviction hearing shows that the following exchange occurred between the petitioner and the sta te: [THE STATE]: When [the state] told you [at the guilty plea hearing that] you

were ple ading to a

range tw o when you

were re ally a range one, you didn’t have any questions then, did you? [PETITIONER]: No, sir. [THE STATE]: You knew you wer e pleading to -- outside your range, didn’t you? [PETITIONER]: Yes, sir. [THE STATE]: You were told? [PETITIONER]: Not by [my trial attorney]. [THE STATE]: Oh, but you still knew. [PETITIONER]: I told him my lawyer he told me -- I agreed what my lawyer told me to do. [THE STATE]: My question to you is at the time you pled guilty you knew [what] you were doing?-8- [PETITIONER]: Yes, sir. [THE STATE]: Your only complaint is who the source of the informat ion was; is that right ? [PETITIONER]: Yes, sir.
We believe that the petitioner’s testimony at the post-conviction h earing s h ows that when he pled guilty, he knew that he was being sentenced outside of his range. Therefore, even a ssuming arguendo that the petitioner’s trial attorney did not explain to the petitioner that he was going to be sentenced as a Range II offender, the pe titioner has not shown how he was prejudiced by his trial attorney’s deficient performance. T hus, he is not entitled to relief. B. Failure

to File a Mo tion to Suppr ess Next, the petitioner

contendsthat he r

eceive d the inef

fective assistanc e of coun sel beca use his trial atto

rney fa iled to fil e a motion

to suppre ss three

statemen ts that t he petitioner gave to the police. Howeve

r, we believe tha

t the def endant ha s failed t

o show tha

t he is enti tled to relief

on this issue. This court has stated that if arguable grounds exist to suppress incriminating evidence, then an attorney, as a zealous advoc ate for the clien t, should mo ve to suppr

ess that evidence. See Robert C. Bellafa

nt v. State , No. 01C01-9705-CC-00183, Maury County, slip op. at 10 (Tenn. Crim. App. May 15, 1998). The petitioner’s trial attorney testi fied that the petitioner never told him that the petitioner didnotmake the statements. Furthermore, the petitioner’s trial attorney testified that the petitioner never indicated that thepo lice coerced or harassed the pe titioner into giving the statemen ts. We note that the petitioner did not claim at the post-conviction hearing that the police obtained the statements in violation of his constitutional rights.
In order t o succeed on this issue, the petitioner would have to demonstrate that counsel’s failure to file a m

otion to suppress the statements not only was deficient performance but that he was prejudiced

by the deficiency. In order to demonstrate prejudice, the petitioner would have to prove that his statements were inadmissible. The petitioner has offered no such proof, and we find nothing in the r ecord toindicate that the petitioner’s statements were inadmissible. Therefor e, he is not entitled to relief. Based upon the foregoing a nd the record as a whole, we aff irm the judgment of the trial court.

_________________________________ JOSEPH M. TIPTON, JUDGE