FILED

December 21, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1998

EDUARDO E. WELLS, ) C.C.A. NO. 02C01-9709-CR-00345

)

Appellant, )

)

) SHELBY COUNTY

VS. )

) HON. ARTHUR E. BENNETT

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

JAMES V. BALL JOHN KNOX WALKUP

217 Exchange Avenue Attorney General and Reporter

Memphis, TN 38105

DOUGLAS D. HIMES

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

WILLIAM GIBBONS

District Attorney General

PAUL GOODMAN

Assistant District Attorney General

Criminal Justice Complex, Suite 301

201 Poplar Avenue

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 1 In his brief, the Petitioner actually presents three issues for our review: (1) whether

the Petitioner entered his plea involuntarily because of coercion in the presence of his attorney

from the prosecutor for his case; (2) whether the Petitioner was denied effective assistance of

counsel; and (3) whether Petitioner was denied effective assistance of counsel because his

attorney had a conflict of interest resulting from a fee dispute between the Petitioner and his

attorney’s son. However, because we believe that these three issues are interrelated, we have

consolidated them into one issue for purposes of this opinion.

-2-

OPINION

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appellate Procedure. The Petitioner, Eduardo E. Wells, appeals from an order

of the trial court denying him post-conviction relief. The Petitioner presents one

issue for our review: whether his guilty plea was knowingly and voluntarily made

with effective assistance of counsel.1

 We affirm the judgment of the trial court.

The Petitioner was indicted by a Shelby County Grand Jury; and on

October 10, 1994, he pleaded guilty to attempted first degree murder, especially

aggravated robbery, aggravated robbery, and aggravated rape. The Petitioner

was sentenced as a Range I standard offender. He received a twelve-year

sentence for aggravated robbery and fifteen-year sentences for aggravated rape,

especially aggravated robbery, and attempted first degree murder. The

aggravated robbery and aggravated rape sentences were ordered to run

concurrent with each other, but consecutive to the especially aggravated robbery

and attempted first degree murder sentences. The especially aggravated

robbery and attempted first degree murder sentences were ordered to run

concurrent with each other. Therefore, the Petitioner’s effective sentence was

thirty years as a Range I standard offender.

At the guilty plea proceeding, in response to questions by the trial judge,

the Petitioner stated that he understood the charges against him, the plea itself,
 2

 In his pro se petition, Petitioner alleged that evidence in his case was obtained by

illegal search and seizure and that the prosecution had failed to disclose exculpatory evidence

to the defense. 

-3-

and both the sentencing ranges for his crimes and the sentence to be imposed

upon him by the trial court. He stated that he understood he was giving up his

right to a trial by jury. He indicated that his legal representation had been

adequate and reported that he had no complaints concerning the representation

he had received. He stated that his attorney adequately interviewed witnesses

or discussed with him testimony of witnesses the Petitioner wished to call on his

behalf. He also reported that he had not been forced or coerced to make his

plea. 

On February 24, 1995, the Petitioner filed a pro se petition for postconviction relief.2

 An amended petition was filed on April 18, 1996, after counsel

was appointed to represent the Petitioner. The amended petition alleged that the

Petitioner’s plea was involuntary due to ineffective assistance of counsel.

Specifically, the Petitioner claimed that his attorney had a conflict of interest at

the time of his representation and that his attorney allowed the prosecutor to

intimidate the Petitioner in the attorney’s presence, which resulted in a coerced

guilty plea. Evidentiary hearings were conducted on March 20, 1997 and May 23,

1997. The trial court denied Petitioner’s petition for post-conviction relief by

written order filed July 25, 1997. 

At the evidentiary hearing conducted on March 20, 1997, the Petitioner

testified that Marvin Ballin was appointed to represent him in July 1994. He said

that prior to the appointment of Marvin Ballin as his attorney, he sought the

representation of Leslie Ballin, Marvin Ballin’s son, with whom Marvin Ballin
-4-

practiced law. The Petitioner stated that Leslie Ballin accepted two hundred

dollars for Petitioner’s representation, subsequently withdrew from the case, and

then refused to refund the money. Although the Petitioner claimed to have filed

a complaint against Leslie Ballin with the disciplinary board, the Petitioner

produced no proof of the complaint at the hearing. He maintained that he did not

know that Leslie and Marvin Ballin practiced law together until after Marvin

Ballin’s appointment as his attorney. He also admitted that he never discussed

with Marvin Ballin the alleged fee dispute or his previous dealings with Leslie

Ballin, but he claimed not to have done so because he did not realize initially that

Leslie Ballin was Marvin Ballin’s son and partner in practice. In addition, contrary

to his statements at the guilty plea proceeding, the Petitioner testified that

although he had given his attorney the names of witnesses, his attorney failed to

interview those witnesses, excepting only the Petitioner’s mother. 

The Petitioner further testified that on October 7, 1994, during his

incarceration pending disposition of this case, he was brought to court to meet

with his attorney and discuss a guilty plea. He testified that his attorney, of his

own accord, brought the prosecutor to the holding room for prisoners in the

courthouse. He stated that his attorney allowed the prosecutor to “badger” him.

He testified that the prosecutor told him that the judge handling his case enjoyed

prosecuting people like the Petitioner. The Petitioner testified that the

conversation left him “somewhat rattled-shaken” and that when the prosecutor

“talked about Judge Blackwood, I already knew based on what [the prosecutor]

had stated that it wasn’t going to be anything fair going on that day.” Petitioner

also reported that on October 10, 1994, the day of his plea, his attorney told him

he needed to take the offer from the prosecution because he “didn’t give a s__t,”
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which the Petitioner interpreted to mean that his attorney “didn’t care about me

or the case.” 

The Petitioner m aintained that as a result of these conversations, he

pleaded guilty. He explained, 

for the most part, it was more or less of me tired of seeing my fam ily

dragged down here. I got tired of being dragged down. It was one

big circus act after another. And I was just basically tired and

drained. . . . I was just looking for some relief. Not necessarily for

me but for my family also.

When asked at the post-conviction hearing why he told the judge at his

plea hearing that his plea had not been forced or coerced, the Petitioner stated

that his answer to the question was “a very, very uneducated statement.” He also

told the post-conviction court that in response to other questions posed by the

judge at his guilty plea proceeding, he entered “unwilling statements.” He

admitted that when the trial judge asked whether he had chosen to plead guilty

freely and voluntarily, he answered yes, but he stated at the post-conviction

proceeding that his answer was “sort of withdrawn.”

 

The Petitioner testified that he decided to plead guilty and that he knew he

was pleading guilty to thirty years. However, he stated that he pleaded guilty

after he “had seen how everything went.” He indicated that although he came to

court on the day of his plea fully prepared to go to trial, he pleaded guilty because

“I was really just afraid, really, of the worse [sic] happening, which was [a possible

sentence of] eighty-seven years.” He stated that he “made a very uncalculated

decision.” He explained that the judge told him he “would have to accept

Attorney Ballin’s services or represent [himself],” which he did not feel prepared
-6-

to do; and he indicated that he was afraid his attorney might not adequately

represent him at trial.

Marvin Ballin, the Petitioner’s attorney, who had practiced criminal law for

approximately thirty years, also testified at the post-conviction proceeding. He

testified that initially he and the Petitioner “had our difficulties,” which they

“ironed out.” Ballin testified, “realizing that Mr. Wells was going to be a most

difficult client, I prepared for that case as best any lawyer could.” He reported

that prior to the Petitioner’s plea, he spent “literally hours at home on the

telephone at night” with the Petitioner’s mother discussing the case. Although the

Petitioner insisted that his mother never wanted him to plead guilty, Ballin

testified that to the best of his recollection, the Petitioner’s mother advised him

to plead guilty.

With regard to the Petitioner’s conflict of interest claim, Ballin testified that

he first became aware of the Petitioner’s complaint when he read about the

alleged fee dispute in the petition for post-conviction relief. He stated that the

Petitioner never mentioned to him that Leslie Ballin had once represented him or

that Leslie Ballin owed him money. He reported that when he discussed the

Petitioner’s allegations with his son, his son told him, “yeah, he was up here, but

I didn’t take the case, and that’s about all I know.” With regard to the two

hundred dollars, Ballin identified a receipt provided by the Petitioner signifying

that his office received the sum of two hundred dollars from the Petitioner on May

27, 1992. However, he stated, ?[the Petitioner has] made an accusation that I did

something about a lousy $200 that affected his life, and that is a consummate

lie.” 
 3 Which the Petitioner ultimately accepted.

-7-

Ballin also testified that he conducted extensive discovery in the

Petitioner’s case. In addition, he testified that he filed a number of motions to

suppress evidence, which were denied by the trial court. He testified that to the

best of his recollection, there were no alibi witnesses in the Petitioner’s case and

the Petitioner’s defense was mistaken identity. 

Ballin reported that on the day that the Petitioner’s trial was to be held, the

Petitioner “wanted to go in the back and talk and discuss the possibilities of a

plea.” He testified that although he told the Petitioner the State was adamant

about its offer,3 the Petitioner was insistent in his belief that Ballin could procure

a better offer for him. He testified he told the Petitioner, “look, if you want to, I’ll

go ask [the prosecutor], and you can see that I’m doing my job, that I have tried

to get you the best thing going, and you can either plead or go to trial. They’re

not going to come off that offer.” He reported that the prosecutor did talk to the

Petitioner, and although he was unsure, he believed that the prosecutor did so

at the Petitioner’s insistence. He testified that the prosecutor “may have raised

his voice, but it was at me rather than Mr. Wells.” He stated that the prosecutor

did not threaten the Petitioner but “told me that if [the Petitioner] got convicted,

he sure as heck was going to max him out or that the judge was going to max him

out, and the chances were there to get consecutive [sentences] to where he’d be

looking at fifty [years]. . . . This case was not a very nice case.” He also testified

that he was present the entire time the prosecutor remained in the room with his

client, which was approximately two to three minutes. 
-8-

Ballin testified that it was his opinion that the Petitioner pleaded guilty

because Ballin told him “there was every possibility that [his] cases could run

consecutive” due to the heinous nature of the crimes with which the Petitioner

was charged. He stated he told the Petitioner that based upon what he knew of

the trial judge’s reputation, the trial judge would likely “max him every way he

could.” He also testified that he believed the Petitioner decided to plead guilty

because he told the Petitioner “that once the evidence went in, we were in

trouble.”

In determining 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 counsel was

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

errors so serious that he was not functioning as counsel as guaranteed under the

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

the petitioner’s guilt. Strickland, 466 S.W.2d 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).
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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. Lockart, 474 U.S. 52

(1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). The

prejudice requirement is modified so 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.” Hill, 474 U.S. at 59.

Turning now to the case before us and the Petitioner’s claim of a conflict

of interest, the trial court stated:

This Court finds that no conflict of interest existed between

Petitioner and his attorney, Marvin Ballin, because Petitioner did not

demonstrate that counsel actively represented conflicting interest

[sic], nor did Petitioner demonstrate that an actual conflict of interest

adversely affected his lawyers [sic] performance. Petitioner

provided no evidence that counsel was conflicted due to a prior

dispute between Petitioner and Leslie Ballin. Petitioner did not even

provide any evidence that his counsel was even aware of the prior

dispute between Petitioner and Leslie Ballin. Furthermore, Ballin,

himself, did not even consider the prior dispute to be a conflict of

interest until well after he entered his guilty plea.

Because this Court finds that no conflict of interest existed,

the Petitioner must demonstrate (1) that counsel’s performance was

deficient and, (2) that there is a reasonable probability that but for

counsel’s deficient performance, Petitioner would not have pleaded

guilty. In the case at hand, Petitioner has failed to meet the burden.

We agree that the Petitioner has failed to provide sufficient proof of a conflict of

interest to support his allegations. In fact, in his brief, the Petitioner concedes:
 4

 In addition, the Petitioner states in his brief “that he was dissatisfied with Attorney,

Marvin Ballin, and has no knowledge if Marvin Ballin interviewed the witnesses that the

Petitioner gave him.” This issue is mentioned only summarily in the Petitioner’s brief and is not

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“While the proof at the evidentiary hearings in this case did not show an actual

conflict it does shed light on the nature of the relationship between Marvin Ballin

and Petitioner . . . .” This issue is without merit.

The Petitioner next argues that he received ineffective assistance of

counsel because his attorney allowed the prosecutor to threaten him, which

resulted in a coerced and involuntary guilty plea. In reviewing this issue, the trial

court concluded that “Petitioner entered his guilty pleas freely and voluntarily.”

Based upon a thorough review of the facts, we are unable to conclude that the

Petitioner received ineffective assistance of counsel or that the Petitioner’s pleas

were made involuntarily. The meeting between the Petitioner and the prosecutor

took place in the presence of the Petitioner’s attorney. While the Petitioner’s

attorney confirmed the Petitioner’s allegations that the prosecutor strongly

advised the Petitioner he would seek the maximum penalty should the Petitioner

proceed to trial and that he believed the trial judge would grant the maximum

penalty in Petitioner’s case, we conclude that the Petitioner has not carried his

burden of showing that this incident forced him to enter a guilty plea. Petitioner’s

attorney arranged this confrontation because Petitioner was unconvinced that the

plea agreement offered was the most favorable one the State would consider.

The incident took place on a Friday, and the Petitioner had a full weekend to

consider his options before deciding to plead guilty the following Monday. He

was also granted ample opportunities by the trial judge to voice his concerns at

the guilty plea proceeding and did not do so. We therefore agree with the

conclusion of the trial court.4
set forth as a complete issue for our consideration. Therefore, we will not address it at length.

However, based upon a review of the record before us, we find that this argument is without

merit in light of the facts of this case. We find that the Petitioner has failed to provide any proof

to support his allegation that his attorney did not interview witnesses for his case. 

-11-

In conclusion, viewing the actions of the Petitioner’s attorney in light of all

facts and circum stances at the time of the guilty plea, we cannot find any

deficiency in his representation prior to or during the guilty plea proceedings.

However, even assuming that the Petitioner’s representation was ineffective, the

Petitioner has failed to demonstrate any prejudice. The Petitioner has simply

failed to show that had his attorney’s actions been different, there is a reasonable

probability that he would not have pleaded guilty and would have insisted on

going to trial. See Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746.

The judgment of the trial court is accordingly affirmed.

 

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

JOE G. RILEY, JUDGE