# FILED
December 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON SEPTEMBE R SESSION, 1998 EDUARDO E. WELLS, ) C.C.A. NO. 02C01-9709- CR-00345 ) Appe llant, ) ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR E. BENNETT STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEA L 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 Generaland Reporter Memphis, TN 38105 DOUGLAS D. HIMES Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 WILLIAM GI BBONS Distri ct Attor ney General PAUL GOODMAN Assistant Distri ct Attor ney General Criminal Just ice Complex, Sui te 301 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 In his brief, the Petitioner actually presents thre e issues for our

review: (1) whether the Petitioner entered

his plea involu ntarily because of coercion in the presence of his attorney from the prosecutor for his case; (2) w hether the Petitioner w

as denied effective assistance of counsel; and (3) whe ther Pet itioner wa s denie d 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, becaus e we believe that these thr ee issues are inte rrelated, we have consolidated them into one issue for purposes of this opi nion. -2- 

# OPINION

This is an appeal as

of right pursuant to Rule 3 of the TennesseeRules of Appell ate Procedure. The Pe tit ioner , Eduar do E. Wells, appeals f rom an order of the trial cour t denying him po st-convictio n relief. The Petitioner p resents one issue for our r eview : wheth er his guilty plea was knowingly andvoluntar ily made with effe ctive as sistan ce of c ouns el. 1 We affirm the ju dgme nt of the trial co urt.

The Petiti on er was indict ed by a Shelby County Grand Jury; and on October10, 1994, he pl eaded guilt y to attempted first

degree murd er, esp ecially aggravated robbery, aggravated r obbery, and aggr

avated rape. The Petiti oner was sentenced as a R ange I stan dard offender . He received a twelve-year sentence for aggravated robbe ry and fifteen-year sentences for aggrav ated rape, espe cially aggravated ro bbery, and at tempted fir

st degree murder. The aggravated robbe r y and aggravat ed rape sentences wer e ordered to r un concurrent

with each othe r, but consecu tive to the e spec ially aggravated robbery and attempted fi rst degree murder sentences. The espe ciall y aggravated robbery and attempted f irst degr ee murder sentences wer e ordered to r un concurrent

with each o ther. Theref ore, the Pet itioner’s effec tive sentence was thirty years as a Ra nge I standa rd offender. At the guil ty plea pr

oceeding, in response to questionsby the tr ial j udge, the Petiti oner stated t hat he understood thecharges 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 pro secution ha

d failed to

disclose exculpato ry evidence to the defense

. -3- and both the sentencing ranges for his cri mes and the sentence to be imposed upon him by the trial c ourt. H e state d that h e und erstoo d he w as givin g up h is right to a trial by jury. H e indicate d that hi s legal representati on had been adequ ate and reported t hat he had no complaints concerning therepresentat ion he had received. He stated that his attorney adequatel y inter viewed wit nesses or discussed wit h him testi mony of witness es the Petit ioner wishedto call on his behalf. He also reported that he had not been forced or coe rced to mak e his plea.

On Februa ry 24, 199 5, t he Peti tioner f iled a pro se petition for p ostconvicti on relief. 2 An amended petiti on was fil ed on April 18, 1996, after counsel
was appointed to represent t he Petiti oner. The amended petit ion all eged that the Pe titi oner’s plea w as invo luntary due to ineffec tive ass istanc e of co unse l. Specifically, the Petition er claime d that his a tt or ney had a confl ict of interest at the time o f his rep resen tation a nd tha t his atto rney a llo wed the prosec utor to intimidate the Petit ioner in the attorney’s presence, which res ulted in a coerced guilty plea. Evi dentiary hearings were conducted on March 20, 1997 and May 23, 1997. The tr ial c ourt den ied Petit ioner’s p etiti on for post- convicti on relief by written ord er filed July 2 5, 1997
.

At the evident iary he aring conducted on March 20, 1997, the Peti tioner testif ied that Ma rvin Ba llin was appointed to represent him in July 19 94. He said thatprior to the a ppointm ent of M arvin B allin as his attorney, he sought the representat ion of Leslie Balli n, Marvin Balli n’s so n, with wh om M arvin B allin-4-

practicedlaw. The Peti tioner stated that Le slie B allin accepted two hundr ed dollars for Peti tioner’ s representat ion, subsequent ly wit hdrew from the case , and then refused to refund the mo ney. Although the Pet itioner claimed to have filed
a complaint againstLeslie Ballin wi th the dis cipli nary board, the Petit ioner produced no proof of t he complaint at the hearing. He maintained t hat he did not know that Lesl ie and M arvin B allin pra cticed law tog ether u ntil after M arvin Ballin’s appoin tment a s his attorn ey. He also admitt ed thathe never disc ussed with Marvin Ball in the al leged fee di spute or hi s previous deal ing s wit h Les lie Ballin, but he claimed not t o have done so because he di d not reali ze init ially that Leslie Ballin was

Marvin Ball in’s son and par tner in pr

actice. In addit ion, contrary t o his statements at the guil ty plea pr

oceeding, t he Petiti oner testi fied that although he had given h is attorney th e nam es of witne sses, his attorney fa iled to interview tho se witnes ses, exce pting only th e Petitione r’s moth er.

The Petition er furth er testif i ed tha t on O ctobe r 7, 199 4, durin g his incarcerat ion pending disposition of t his case, he was brought to cour t to m eet with his atto rney a nd dis cuss a guilt y plea. He tes tified tha t his atto rney, o f his
own accord, brought the prosecutor to the holding room for pri soners in t he courthouse. He sta ted tha t his attorney allowed t he prosecutor to “ badg er”

him
. He testif ied that

the prosecutor told hi m that the j udge handling his case enjoyed prosecutingpeople like the P etitioner. The Pe titioner t estif ied that t he conversati on left hi m “somewhat rattl ed-shaken” and t hat when the pros ecutor “talked about Judge Blackw ood, I already knew based on what [the prose cutor] had stated that it wasn’t goi ng to be anythi ng fair goi ng on that day. ” Petit ioner also reported t hat on October 10, 1994, the day of his ple a, his attorne y told him he needed to take the offer from the pros ecution b ecaus e he “did n’t give a s_ _t,”-5-

which the Peti tioner i nterpreted to mean that his attorn ey “did n’t care abo ut me or the case.”

The Petitioner m aintained that as a re sult of t he se conversati ons, he pleade d guilty. He explained , forthe most part , it was more or les s of me tired of s eeing my fam ily dragged down h ere. I got tired of being d ragged down. It was one big circus ac t aft er anoth er. And I was j ust basical ly ti red and drained. . . . I was justlooking for some relief . Not necessari ly for me but for my family also.
When aske d at the post-c onvictio n hea ring wh y he told the jud ge at h is plea hearingthat his

plea had not been forced or coe rced, the Pet itioner stated thathis answer to the question was “a very, very uneducated statement.” He also told the post-convicti on court that in res ponse to other questi ons posed by the judge at hi s gui lty

plea proc eedi ng, h e ent ered “unwi ll ing stat ements .” He admitted that

when the tri al judge asked whether hehad ch osen to plead gu ilty freely and voluntaril y, he answered yes, but he stated at the post-co nv iction procee ding that h is answe r was “so rt of withdraw n.”

The Petiti oner testi fied that he decided to pl ead guilty and that he knew he
was pleading guilty to thirty yea rs. Howe ver, he sta ted that he pleade d guilty after he “had seen how everything went.” He indic ated tha t although he cam e to court on the day of hi s plea ful ly prepared to go to tri al, he pleaded guilt y because “I was really just

afraid, really, o f the wors e [sic] hap pening , which wa s [a poss ible sentence of] eight

y-seven year

s.” He stated that he “made a very uncal culated decision .” He ex pla ine d th at t he j udgetol d hi m h e “wou ld have to accept Attorney Ballin’ s services

or represent

[himself],” whi ch he did not feel prepared-6-

t o do; and he indi cated that he was afraid his atto rney might not adequat el y repre sent h im at tria l.

Marvin Ballin, the Petit ioner’s attorney, who had practi ced criminallaw for appro ximate ly thirt

y years, also t est ifi ed at the p ost- convi cti on proceed ing. He testif ied that initially he and the Pet itioner “had our dif

ficult ies,” whi ch they “ironed out.” Bal lin testifi ed, “real izing t hat Mr. Wells was going to be a most d ifficult client , I prepar ed for that

case as best any l awyer could. ” He reported thatprior to the Petit ione r’ s plea, he spent “literally

hours at home on the telephone at night”

with thePetition er’s mother discussi ng the case. Al though the Petiti oner insisted that hi s mother never wan te d him to plea d guilty, B allin testif ied that to t he best of hi s recolle ction, th e Petitio ner’s m other a dvised him to plead guilty.

With regard to the Petit ioner’s confli ct of i nte res t cl aim, Ballin testifi ed that h e first became aware of the Pet itioner’s complaint when he read about t he alleged fee dispute in the petiti on for post- convicti on relief . He stated t hat the Petiti oner never mentioned to him that Leslie Bal lin had once represented hi m or that Leslie Ballin owed him money. He reported that when he di scussed the Petition er’s allegat ions wit h his son, hi s son told hi m, “yeah, hewas up here, but I didn’t take the case , and that’s abou t all I know.” With re g ard to t he two hundred dollars, Ballin i dent ified a receipt provided by the Petit ioner sig nifyi ng thathis office received the s um of two h undred do llars from the Peti tioner on May 27, 1992. H oweve r, he stated , 

### ? [the Peti tioner has]made an accu sation tha t I did something about a lousy $200 that af

fected hi s life, and that is a c ons umm ate lie.”3 Which the Petitioner ultimately accepted. -7- Ballin also test ified t h at he conducted ex tensive di scovery i n the Petition er’s case. In addi tion, he testifi ed that he f iled a number of motions t o suppress evidence, whi ch were denied by the trial cour t. He testif ied that t o the best of his recollection, there were no alib i witnesses i n the Petit ioner’s case and the Petition er’s defen se was mistake n identity.

Ballin reported t hat on the day that thePetiti oner’s trial was to be held, t he Petiti oner “wante d to go i n the ba ck and talk and d iscuss th e poss ibilities of a plea.” He t est if ied that al tho ugh h e to ld t he Pe ti ti oner theState was a dama n t about its offer, 3 the Petitioner was insistent in his belief that Ballin cou ld procure
a better of

fer for him. He testified he told the Petitione r, “look, if yo u wan t to, I’ll go ask [the prosec utor], and you can see that I’m doing my j ob, that I hav e tried to get you the best thing go ing, and you can either plead or go to trial. They’re not going to com e off tha t offer.” H e repo rted tha t the pro secu tor did talk to the Petitioner, and altho ugh he was un sure, he believed th at the pros ecutor did so at the P etiti oner ’s insi stence. He test ified t hat the prosec utor “may have r aised his voice, but it was at m e rather than M r. Wells.” He stated that the pr osecutor did not threaten the P etitioner b ut “to ld me that i f [the Pet itioner ] got convi cted, he sure as heck was goi ng to max him o ut or tha t the jud ge wa s goin g to m ax him out, and the cha nces were there to get con secutive [s entenc es] to where he’d be looking at fifty [years]. . . . This case w as not a very nice case.” He also testified thathe was presentthe entir e time the pro secutor remaine d in the room with his client, which was ap proxima tely two to thre e minu tes.-8- Ballin testified that it w as his op inion that th e Petitione r pleade d guilty because Ba llin told him “t here was every p ossibil ity t hat [his ] cases could run consecutive” due to the hei nous nature of the cr imes with whi ch the Petit ioner
was charged. He stated he told t he Petiti oner that basedupon what he knew of the trialjudge’s r

eputation, the tri al judge woul d likel y “max him every way he could.” H e also test ified t hat he beli eved the Peti tioner deci ded to plead gui lt y because he told t he Petiti oner “that once the evi dence went in, we w ere in trouble.”
In determining whether cou nsel provided e ffective assista nce a t trial, the Court must decide whether counsel’s per

formance was wit hin the ran ge of competence dema nded o f attorneys in crimina l cases. Baxter v. Rose , 523 S. W.2d 930, 936 (Tenn. 1975) . To succeed on a clai m that counsel was ineffective at trial, a petitione r bears th e burde n of show ing th at couns el made
errors so serious t hat he was not funct ioning as counsel as guar anteed under the Sixth Amendment and that th e defici ent representation prej udiced the petitioner, resulti ng in a failure to produ ce a re liable result. Strickl and v. Washington , 466 U.S. 668, 68 7 (1984 ); Coop er v. State , 849 S.W.2d 744, 74 7 (Ten n. 1993 ); Butler
v. State , 789 S.W .2d 898, 899 (Tenn. 199 0). To satisf y the second pron g, the petiti oner mu st show a reas onab le prob ability tha t, but for c ouns el’s
unrea sona ble error, th e fact-fin der wo uld have had reasonable doubt regarding the petitioner’s g uilt. Strickl and , 466 S.W .2d at 695 . This rea sonab le proba bility must be “sufficien t to under mine c onfiden ce in the o utcom e.” Harris v. S tate , 875 S.W .2d 662, 665 (Tenn. 199 4).-9- When reviewing trial couns el’s actions , this Cou rt should n ot u se the bene fit of hind sight to seco nd-gu ess tria l strateg y and c riticize c ouns el’s tactics. Hellard v. State , 629 S.W .2d 4, 9 (Ten n. 198 2). Co unse l’s allege d error s sho uld be judged at the ti me they were made in light of all facts and ci rcumstances. Strickl and , 466 U.S . at 690; see Cooper , 849 S.W.2d at 746.

This two-part standard of measuring inef fectiv e assistance of

counsel also appliesto c lai ms arising o ut of the ple a proce ss. Hill v. Lockart , 474 U.S. 52 (1985); Banks ton v. State , 81 5 S. W.2d 2 13, 215 (Ten n. C ri m. App. 19 91). The prejudice requirem ent is mo dified so th e petitione r “must s how th a t there is a
reaso nable proba bility that, b ut for co unse l’s errors, he would not havepleaded guilty and would h ave insisted on g oing to trial.” Hill , 474 U.S. at 59.
Turning now to the case before us an d the P etitione r’s claim of a conflict of inter est, the t rial cour

t stated: This Court fin ds that no conf lict of inter est existed between Petiti oner and his attorney, Marvi n Ballin, because Petiti oner did not d em onstrate that counsel activ ely represented confli cting interest [sic], nor did Peti tioner demonstrate that an actual confli ct ofinterest adverse ly affected his lawyer s [sic]performance. Pet itioner provided no evidence t hat counsel was confli cted due to a pr ior dispute between Petit ioner and Lesl ie Balli n. Petit ioner did n ot even provide any

evidence that

his counsel was

even aware of t he prior dispute betwe en Pe titioner a nd Le slie Ba llin
. Furthermore, Ballin, himse lf, did not even consider t he prior di spute to be a conf l ict of interest until well after he entered hi s guilt y plea. Because this Cou rt finds that n o co nflict of inter est existed, the Petiti oner must demonstrat e (1) that coun sel’s performance was def icient

and, (2) th at there is a reason able pro bability that but fo r coun sel’s defici ent performance, Pet itioner would nothave pleaded guilty. In the case at

hand, Petit ioner has failed to meet the burden
. We agree th at the Pe titioner has failed to provide suffi cient proof of a confl ict of interestto suppo rt his allegati ons. In fact, i n his brief, the Petitioner concedes:4 In addition, the Petitioner states in his brief “that he was dissatisfied with Attorney, Marvin Ba llin, and has no know ledge if Ma rvin Ball in interv iewed the

witnesse

s that t h e Petitioner

gave him.”

This issue is mentioned onlysummarily in the Peti tioner’s brief and is not -10- “W hile the proof at the evide ntiary heari ngs in this case did not sh ow an actual conflict it does shed l ight on the na ture of th e relatio nship betwe en Ma rvin Ba llin and Pe titioner . . . .” This iss ue is witho ut merit.

The Petitioner next argu es that he re ceived inef fectiv e assistance of counsel because his att orney all owed the prosecutor to threaten him, which resulted in a coerced and i nvoluntar y guilt y plea. In revi ewing this issue, t he trial court conclud ed that “P etitioner en tered his g uilty pleas fre ely and vo luntarily.” Based upon a thoro ugh re vie w of th e facts, we are unable to conclude that the Petiti oner received ineffecti ve assistance of counsel or that the Pet itioner’s pleas
were made involuntarily . The meeting between the Petit ioner and the prosecutor tookplace in t he presence of t he Petiti oner’s attorn ey. W hile the Petition er’s attorney confir med the Pe titioner’s allega tions th at the p rosec utor stro ngly advised the Petit ioner he would seek the maxi mum penalty should t he Petiti oner proceed to tri al and that he believed the tri al judg e would grant t he maximum penalty in Petit ioner’s case , we co nclud e that th e Petitio ner ha s not c arried his burden of showing t hat this incident forced him to enter

a guilty plea. P etitione r’s attorney arranged this confron tati on because Petit ioner was unconvi nced that t he plea agree men t offered was th e mo st favor able o ne the State w ould consider. The incident

took place on a Friday, and t he Petiti oner had a f ull weeke nd to consider

his opti ons before deci ding to pl ead guilt y the fol low ing Monday . He
was also granted ample oppor tuniti es by the trial j udge to voice his concernsat the guilty

plea proceedi ng and did n ot do so. We therefor e agree with t he conclus ion of the tria l court. 4set forth as a complete issue for our consideration. Ther efore, we will not address it at length.

However,based upon

a review

of the record before us, we f ind that this argument is w ithout merit inli gh t o

f the fac ts of th is case . We

find thatthe Petitioner has failed to provide any proo

f to support his allegation that his a ttorney di d not interv

iew witnesses for his case. -11- In conclusion, viewing the acti ons of the Pe titioner’s attorne y in light o f all facts a nd circum sta nces at the t ime of the gui lty pl ea, we cannot f ind any deficiency

in his r epresentati on prior to or during t he g uilty plea proceedings. Howeve r, even assuming that the Pet itioner’s represent ation was i neffective, the Petiti oner has failed to demonstrate any prej udice. The Petitioner has s im ply failed to show that

had his a ttorney’s ac tions bee n different, there is a reas onab le probab ilitythat he woul d not have plead ed guilt y and would have i nsisted on going to tria l. See Strickl and , 466 U.S . at 690; Cooper , 849 S.W.2d at 746.
The judgment of the t rial cour t is accor

dingly af firmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ JOE G. RILE Y, J UDGE