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

Briefs N ovembe

r 5, 2002
MICHAEL ANTHONY SCRUGGS v. STA TE OF TENNESSEE

Appeal from the Circuit Court for Williamson County No. 801-261 Timothy L. Easter, Judge

No. M2002-00875-CCA-R3-PC -Filed March 14, 2003

The petitioner, Michael Anthony Scrug gs, pled guilty to forgery and theft under $500. The trial court ordered concurrent sentences of six years for the forgery and eleven months, twenty- nine days, for the theft. No

appeal w as t aken. Later, the petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel. After

a hearing, the post-conviction court denied re lief, finding that the petitioner had failed to prove that his appointed counsel fell below the required level of competency . The judgment of the post-conviction court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which N ORMA M C G EE O GLE and R OBERT W. W EDEMEYER , JJ., joined. Stacey M. Brac keen, F ranklin, Tenness ee, for

the appe llant, Michael Anthony

Scrugg s.
Paul G. Summers, Attorney Gene ral & Reporter; Braden H. Boucek, Assist ant Attorney Ge neral; and Sharon Guffee, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

On October 9, 2000, the petitioner was indic ted for tw o counts of forge ry , Class E fe

lonies, and two counts of theft below $500, Class A misdemeanors. See Tenn. Code Ann. §§ 39-14-103, 39-14-105, 39-14-114. Approximately three months later , the petitioner, as a career o ffender, entered into a plea agreement

which inv olved ple as of gu ilt to one count of forgery and one count of theft. The trial court ordered concurre nt sentences of six years a nd eleven months, twenty-nine da ys, re sp ec ti ve ly.

At the acceptance hearing , the parties stipulated that the sta te’s proof at trial would have shown that

the petitioner cashed a check in the amount of $242.15 at L ittle’s IGA groc ery store. The check, which was made pay able to Little’s and was drawn upon the account of Elizabeth Wood, was-2-

returned with a notation that the account had been closed. Upon investiga tion, it was determined that the check was one of several whic h had been stolen from Ms. Wood.

On August 29, 2001, the petitioner filed a pro se petition for post-conviction relief alleging ineffective assistance of

trial counsel. After the appointment of counsel, an amended petition was filed alleging that t

rial counsel was ineffective for f ailing to file any pre-tri al motions, failing to properl y advise the petitione

r of his ri ghts and

possible d

efense s, failing

to proper ly c ommunica

te withthe petitioner, failing to investigate and pursue the p eti tioner’snotice of alibi, an d failing

to advise the petitioner of the sentencing conseque nces of his prior criminal record.

At the hearing, the

petitioner testified that he did not meet with his appointed counsel until the day that his case

was set for “review.” He claimed that on th e s am e d ay, “a ma n n am ed [E ll er y] Ferrara,” who identified himself as a “state investigator,” convey

ed the plea offer by

the state. The petitioner contended that Fe

rrara did not adv

ise him of h

is constitu

tional rig hts, discuss th

e eleme nts
o f the offen ses, or inform him of the possible sentences. He testified that he signed the plea agreement

even thou gh tria

l counsel had not co nferre d wit

h him about

t he facts of the case or the terms of the plea agreement. The pe titioner claimed that in November of 2000, h e had mai l ed a notice of alibi to the offices of the district attorney and the public defender. He insisted that his trial counsel never made him aware of sentenc ing enhancements and contended that he did notsee the discovery materia l untilafter he had pled guilty . He stated that when helearned of the dates in the discovery materia l, which w ere dif

ferent from the M ay

17 date included in the indictment, he knew that he c ould not ha

ve committ

ed the cr imes.

Dur ing cro ss-examination, the petitioner denied having admitted guilt in genera l sessions court, where he was not represented by counsel. While the petitioner acknowledged that he

did not mention his alibi claim to trial counsel, he did maintain that his notice of alibi was in his “record” and that his appointed counsel should have known that. Thepetitioner denied that his trial counsel had advis ed him tha

t the cas hier who

cashed t he forg ed chec

k could ide

ntify him. Ellery Ferrara, an

investigator with the district public defender’s office , testified that he had present ed plea a greem ent offe rs to jail inmates awaiting trial on“quite a few occasions.” Fer rara, who stated that he typically discussed only the facts of the case with those represented by the public defender, contended that he did not ordinarily advise a defendant of his rights or offer legal advice, as that was the duty of his attorne y. He testified that while he may ha ve convey ed the state’s plea agreement

offe r to the petit ioner in this case, he had no specific recollection of having done so. Ferrara stated that if the petitioner had notified him of a possible alibi defense, he would have investig ated it.1 Th is is presumably the dat e on which the tri al court dete rmin ed whet her t here would be a pl ea agr eement or wheth er the c ase sho uld b e set for tria l.
-3- The petitioner’s trial counsel, who was appointed to represent the petitioner in November of 20 00, testified that he was unable to meet with him prior to his “review date” 1 because he was incarcerated

in west Te

nnessee . He stated th at he h ad neve r seen th e petitioner’s not

ice of a libi, explaining that because the notice was sent prior to his appointment, it would have been returned by his office to the petiti oner or t

he court

. Trial counsel did recall reviewing the state ’s notice of intent regarding enhancement factors and discussing possible sentencing range s with the petitioner before his plea. He stated that he explained thepetitione r’s constitutional rights, the elements of the offense s, and th e ap pl ica bl e pu ni shm ent s. It was his recollectionthat the petitioner fully understood them. Accord ing to trial couns el, th e peti tion er did not wa nt to go to trial. Because the cashier who had cashed t

he chec k could ide

ntify the petiti oner, tr

ial couns el did

not encou

rage g oing to tr

ial. He recalled that the a ssist an t district attorney g eneral who had prosecuted the petitioner in g eneral sessions court hadinformed him that the petitioner “had basically confessed.” While conceding that it was possible that Ellery F errara had conveye d the state’s plea offer to the petitioner, trial counsel comment ed that it was unlikely that he had done so. He acknowledged that Fer rara sometimes presented plea agreements to defenda nts who were in jail, but maintained that it would have been unusual for him to have done so on a review date.

Trial counsel testified tha t the petitioner had never mentioned the possibility of an alibi defense. It was his opinion that the state’s plea ag reement offer was beneficial beca

use the petitioner had committed the offenses while onparole f or a fel ony

and, had he been convicted of both c ounts of fo rgery , face d mandatory consecutive sentencing. Counsel acknowledged that he did not specific ally

discuss with the petitioner the discrepancy betweenthe date of the offenses listed in the indictm ent

and the da

tes conta ined in the

state’s d iscover y. He reca

lled, how ever, th at h e ha d previous ly

noticed the discrepancy

and clarified

with the assistant district attorney g eneral that the dates in the discovery we

re incorrect due to a ty

pe of clerical error. Trial counsel remembered that in February

or March of

2001, he received correspondenc e from the petitioner, who claimed that his prosecution was barred by the applicable statutes of limitations. Later, he spoke with a member of the petitioner’s family a

nd informed him that the prosecution had been timely commenced.

The tria l court ma

de the fo llowing f

indings o f fact:

1. The petitioner met with his appointed counsel and counsel’s investigator on January 5, 2001, the date his case was set for review; prior to that date the petitioner had been incarcerated

in the Department of Correction. Counsel and his investigator advised the petitione

r of the c harge s again st him and th e petition er was “ well info

rmed of a ll his rights.”

2. The petitioner a lleg ed that he had an alibi for February 17, 1997, and February

19, 2000, the dates identified in the state’s discovery response. The date

listed in Counts 1 and 2 of the indictment is May 17, 1997.-4-

3. At the acceptance hearing , the tri al c ourt clearly explained that the petitioner was pleading guilty to offe

nses committed on May 17, 1997. That date was also included in the pro secution ’s rendition of the facts.

4. The petitioner has failed to demonstrate that trial counsel was deficient for failing to investig atean alibi defense. Neither of the dates for which the petitioner now claim s an al ib i i s t he da te of

th e o ff en se s t o w hi ch th e p et it io ne r p le d g ui lt y.
5. The vi de o t ra ns cr ip t o f t he ac ce pt an ce he ar in g s ho ws th at th e p et it io ne r k no wi ng ly, in te ll ig en tl y, and voluntarily waived hi s rights

. The trial court questioned the petitioner appropriately

and the petitioner answered affirmatively to qu estio ns regar ding his understanding of the plea agre ement. The trial court thor oughl y complied with Tennessee Rule of Civil Procedure 11.

6. The petitioner’s allegation that trial counsel did not discuss the state ’s plea o ffer with him is not supported by

the rec ord. The

undispute d evidenc e is that th e petitioner did not want to

go to tri al.

The post-convi c tion court held that trial counsel’s performance was we ll within the range of competency

demanded of attorney s in cr iminal ca ses and th at the pe titioner h ad faile d to demons trate prejudice as a result of any claimed deficiencies in the representation.

In a post -conv icti on pro ceedin g, the petitioner bears the burden of proving his alleg ations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). Claims of ineffective assistance of counsel are regarded as mixed question s of law and fact. State v. H oneycutt , 54 S.W.3d 762, 766-67 (Tenn. 2001 ); State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). On appeal, the findings of fact made by

the trial court are conclusive and will not be disturbed unless the evidence contained in the record preponderates ag ainst them. Brooks v . State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner t o sho w that the evidenc e preponderate d again st those finding s. Clenn y v. Sta te , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). The credibility of the witnesses and the weight and value to be afforded their testimony are questions to be resolved by the trial court. Bates v . St ate , 973 S.W.2d 615 (Tenn. Crim. App. 1997). When reviewing the application of law to

those factua

l finding s, howeve

r, our re view is de novo , and t he tri al cou rt's conclusions of law are given no presum

ption of c orrect

ness. Fields v. State , 40 S.W.3d 450, 457-58 (Tenn. 2 001); see also State v. England , 19 S.W.3d 762, 766 (Tenn. 2000).

When a petitioner seeks post-conviction relief on the basis of ineffective assistance o f counsel, he mus t firs t esta blis h that the se rvices render ed or t he adv ice giv en were below “the ra nge of competence demanded of attorney s in criminal cases.” Baxter v. Rose , 5 23 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the defense.” Strickland v. Washington , 466 U.S. 668, 693 (1984). Sh ould the pe titioner f ail to establish either f actor, h e is not entitled to relief. Our supreme court described the standa rd of review as follow s:-5- Becau se a petitioner must establish both prongs of the test, a failure to prove either deficiency

or prejudice p r ovides a sufficient basis to deny relief on the ineffectiveassistance claim. Indee d, a court need not address the componen

ts in any particular order or even ad dress both if the defendant makes an insufficient showing of one co mponent.
Goadv. State , 938 S.W.2d 3 63, 370 (Tenn. 1996 ). As to g uilty pleas, the petiti oner must establish
a reasonable probability

that, but for the errors of his counsel, he would not have enter ed the plea and would have insisted on going to trial. Hill v. Lockhart , 474 U.S. 52, 59 (1985).

On claims of ineffective assistance of counsel, the pe titioner is not entit

led to the benefit of hindsigh t, may notsecond-guess a reasonably based trial strategy , and cannot criticize a sound, but
unsucce ssful, tactical d ecision made during the course of the proc eedings. Adkins v. St ate , 911 S.W.2d 3 3 4, 347 (Te

nn. Crim. A

pp. 1994) . Such def

erence to the tactical decisions of c ounsel, however, applies only if the choice s are mad e afte r adequate preparation for the c ase. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Here, the petitioner appears to make two separate arguments: (1) that appointed counsel was ineffectivefor allowing an investigator to present the state ’s plea agreement offe r to him; and (2) that his guilty pleas we

re not knowing and voluntary because of appointed counsel’s failure to advise him “of how his prior record would affect his sentence .” The state contends that the petitioner has failed to satisfy the prejudice

prong of Strickland by showing that but for the alleged errors he

would not have ple d guilty

and would

have insi sted on g oing to tr ial.

In our v iew, the record supports the trial court’s denial of re lief. Initially , the trial cou r t accredited

the testimony

of appointedcounsel that he had reviewed the state’s plea a greement offer witht he petitioner . At the acceptance hearing , the petitioner confirmed that he had discussed the plea offer w ith his counsel, including such matters as his constitutional rights, the elements of the of fenses, the applicable ranges of punishment, the state’s notice of intent to seek enhanc e d punishmen

t, and the ramifications of his status as a career of fender. Thepetitioner also testifiedthat his counsel informed him of the conte nt of the p lea-re

lated doc uments and that he u

nderstoo d their terms

. That trial counsel’s investigator may also have been involved in the discussions does not render counsel’s performance deficient. Moreover, the petitioner has failed to allege any prejudice in this regard.
Likewise, the record indicates that trial counsel thoroughly

reviewed with the petitioner the effect of his prior convictions. The record supports counsel’s claim that he informed the petitioner of the possible punishments for the offenses, including consecutive sentencing because the offe nses were committed while the petitioner was on parole for a felony . The record also shows that at the hearin g, the petitioner acknowledged that he had r eviewed with his counsel the state’s enhancement notice, which listed his nine prior felony c onvictions. He co nceded that he had reviewed the applica ble sentencing range s with his counse l and, af ter the tr ial cour t pointed out the poss ible sentencing terms, of

fered n o question s. The petitioner, who had extensive prior experience with the-6-

crimina l j ustice system, was fully advised of all of his constitutional rights, the elements of the offense s, and the possible ranges of punishment. The record s upports the post-conviction court’s finding that the pleas were intelligently , knowingly, a nd voluntarily entere d. Accordingly , the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE