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

Briefs J une 19, 2002
DAVID AND REW JACKSON, JR . v. STATE OF TE NNESSEE
Direct Appeal from the Criminal Court for K nox County No. 72613 Ray L. Jenkins, Judge

No. E2 001-0 2646- CCA-R3 -PC October 9, 2002

The petitione

r, David Andrew Ja

ckson, Jr., was conv

icted by a jury in the Criminal Court of Knox County o f s ix counts of aggravated sexual battery , Class B felonies, and two counts of rape of a child, Class A felonies. Prior to se ntencing , the petitioner a

lso pled g uilty to one pending count of aggravated

sexual battery and

two pending counts of rape of a child. Pursuant t o the plea agree ment, the petitione

r rece ived an effecti ve sentence of twenty years inc arceration in the Tennessee Department

of Corre ction tobe served at one hundred perce nt (100%). The petitioner timely filed for post-conviction relief, alleging ineff ec tive assistance of counsel. The post-conviction court denied his petition. On appeal, the petitioner challenges the post-conviction court’s finding that the petitioner received effective assistance of counsel. Afte r reviewing the record a

nd the parties'

briefs, we affi rm the judg

ment of the

post-con viction c ourt. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.

N O RMA M C G EE O GLE , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined.
Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, David Andrew Jackson, Jr.

Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; Ra nd al l E . N ic ho ls , D is tr ic t A tt or ne y G eneral ; and Leland Pri ce, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

I. Fact ual Backgro

und Th e peti tioner was originally charged with thirty -seven counts of sex offenses involving four different c hildren. On Septem ber 13, 2 000, a jur

y c onvicted

the petiti oner of s ix1 It is the policy of this court to identify minor victims of sex crimes b y their initi als.
-2- counts of aggravated

sexu al batter

y a nd two cou

nts of ra pe of a child for o ffense s involving J.R. 1 Prior to sen tenci ng, the petiti oner ple d guilty to one pending charge of

aggravated sexual battery and two pending charg es of ra pe of a child. The r

emaining charg es were

dismissed. In a

ccorda nce with the plea agreement, the trial court se ntenced the petitioner to eight y ears inca rceration for each aggravated

sexual battery

conviction and twenty y

ears incarceration at one hundre d percent (100%) for each rape of a chi ld convic tion. The trial court further ordered that the sentenc es be served concurrently

for a total effective sentence of twenty y ears at one hundred percent (100% ). The petit ioner time

ly filed a p ro se petition f or post-c onviction

relief, and the po stconviction court appointed counsel to represent the petitioner. An amende d petition was filed, alleging that

the petitioner received

ineffective assistance of counsel beca use his trial counsel failed t o investigate the facts of the case, f ailed to discuss the theories of defense with the pet itioner , insisted that the p etitioner plead g uilty to the cha rges a nd beca me angry when the petitioner refused, failedto prepa

re for tr ial, fail ed to inte

rview po tential w itnesses, failed to advise the petitioner of

the State’s evidence, and ignored the petitioner’s r equest to strike two jurors during jury selection. The post-conviction court subs equen tly held an evi denti ary hearin g, at which the petitioner and his trial counsel testified. The State also entered int o evi dence a transcript of the submission hearing, a transcript of the voir dire

procee dings, a

copy of the ple a agre

ement, a nd other r elated documents

.
At the evide ntiary hearing , the petitioner te stified th at, during the course of counsel’s representation, he met with counsel no more than ten t imes. The petit

ioner fu rther c ontended

that,
w hen he did meet with counsel, counsel failed to share any pleadings, theories of defe nse, or th e State’s evidence with the petitioner. However, the petitioner then testified tha t counsel did inform him that the victims were planning to testify and that the State was going to call witnesses to testify that the petitioner hadconfessed in their presence. The petitioner a lso conceded that he was aware that the State had in its possession a blanket and a tape recording of a conversat ion between the petitione r and his e

x-wife in w

hich the p etitioner

admitted t

hat he co mmitted the

crimes.

The petitione

r testified that cou

nsel advi sed him

to accept the plea

offer made by

the Statethe week before trial and that counsel “g ot mad” when he refused. Additionally, the petitioner testified that, at

trial, counsel failed to call witnesses that the petitioner wanted to testify and ignored the petitione

r’s req uest to str ike two po tentially

biased ju rors, one of whom was a victim of sexual assault. However, the petitioner conceded on cross-examination that the witnesses were character witn esses with no first hand knowledge of the allege d crimes and that, at the conclusion of jury selection, the petiti oner signed a jur y a ccepta nce for m. Accor ding to the petiti oner, “I

done wha t my lawyer told me to do.”

Fi na ll y, the petitioner testified that after the jury convicted

him, he as ked coun sel to “work something ou t.” Th e petitioner testified that counsel approached the State for a plea and returned with an offer of twenty

years. H owever, the p etitioner testified that when he signed the agree ment, he believed that the offer only applied to the tried cases. The petitioner asserted that he-3-

didnot understand t hat he was pleading guilty to any additional char

ges, or that he was receiving concurrent

twenty y ear sentences. Although the petitioner conc ededthat both counsel andthe trial court reviewed the agree

ment with him and that he signed the plea document s setting

forth the terms of the agreement, the petitioner maintained that the a greement was not explained to him in a way that he understood. He contended that counsel told him not to read the agreement, but to “just sign it.” The petitioner testified that had he known that he was plead ing guilty to additional char ges and receiving additiona

l twenty ye ar sente

nces, he would not h ave sig ned the a greem ent, but w ould

have insisted on

going to trial on

those cha rges.
The petitione

r’s tria l counsel testifie d that app

roximately

sixty p ercent

(60%) of his practice was in the area of criminal defense a nd that he had been handling child sexual abuse cases since 197 5. In contradiction to the petitioner’s testimony, counse l testified that he sent the petitioner
a copy of eve

ry pleading

and, although he could not recall the exact number of times he met

with the petitioner, “it was more than adequate.” Counsel testified that he advised the pe titioner of all the St at e’s evidence, including not only the blanket and tape, but also sexual paraphernalia and magazines. Moreove

r, counse l testifie d that, “b ecause

of some un

usual matt

ers that d evelope d in reference to the tape recording[,]” the defens e was able to get evidence from the State be yond the scope of discovery , which counsel discussed with the petitioner.

In regard to the ori ginal plea offer, counsel testified that while he did advise the petitioner to accept the offer, it was the petitioner’s de cision to make. Moreover, counsel insisted that he was prepared to go to trial at the time the offer was made and rejected. When asked why he didnot call the witnesses whom the petitioner requested, counsel responded that he made a strate gic de cision after concluding that the witnesses’ testimony would not benefit the petitioner . Counse l further te st if ie d t ha t j ur y se le ct io n w as al wa ys a “joint effort” between counsel and his client and that he consulted with the petitioner as to each potential juror. Although counsel could not recall which jurors ha d been excused, co unsel sta ted that he believ ed the tr ial cour t excused t

he sexual a ssault victim for cause.

Counsel testified that after the jury conv ict ions, he a

pproach ed the Sta

te about a possible plea offer. Counsel testified that the State made an offer to settle all the cases, conting ent upon the petitioner not appealing the jury convicti ons. When asked whether he believed the petitioner understood the terms of the guilty plea, counsel responded,

. . . I know he did. He understood exactly what was g oing on beca use there’s two documents. . . . One is the court plea papers. The second
one is a plea agreement that we had reduced to writing and went over
w it h [the petitioner], had him sign it, as we did with the court plea papers. . . . I

discussed it with him, and he- -he signed it and he fully understo od it.

At the conclusion of the testimony, the post-conviction court denied the petition for post-conviction relief. Specifically , the post-conviction court found that the petitioner did not prove by c lear an d convinc ing evid ence tha t his trial counsel was ineffective. The post-conviction court-4-

didnot accredit the petitioner’s testimony, but gave g reater weight to the

testimony

of trial c ounsel, finding that counsel’s pre par ation, examination of the witnesses, and voir dire were all within the range of compe

tence r equir ed of criminal defense attorney s. Because the post-conviction court concluded

that t he petiti oner did not prove deficient performance , the court did not address the prejudice prong. The petitioner appea ls the denial of his petition for post-conviction relief.
II. Analysis In a post-conviction proceeding, the petitioner bea rs the burden o f prov ing the grounds raised in thepetition by clear and convincing evidence. Tenn. Code Ann. § 40- 30-210(f) (1997). “Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Hicks v. St ate , 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a claim of ineffective assistance of counsel pre sents a mixed question of law and fact subject to de novo review. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). As such, the post-conviction court’s findings of fact are entitled to a presumption of corr ectness unless the evide

nce pre pondera tes aga inst those f

indings. Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001). The credibility of

the witnesses and the weight and value to be affor ded their testimony are questions to be resolved by the post-conviction court and, on appeal, the burden is on the petitioner to prov e that the evidence preponderates a gainst the post-conviction court’s findings. Henley v. State , 960 S.W.2d 572, 579 (Tenn. 1997) . However, a post-conviction court’s conclusions of law, such as whether couns el’s per formanc e was de ficient o

r whethe r that de ficienc y w as preju dicial, are subject to a purely de

novo review with no presumption of correctness. Fields , 40 S.W.3d at 458.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance of counsel, “the petitioner bears the burden of proving both that counsel’s performance was defic ient and that the deficiency

prejudiced the defense.” Goad v. Sta te , 938 S.W.2d 363, 369 (Tenn. 1996) (citi ng Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (198 4)). To e stablish deficient performance, the petitioner must show that counsel’s performance was below “the ra nge of competence demanded of attorney s in criminal cases.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the petiti oner must show that “counsel’s errors were so ser ious
as to deprive the defendant of a fai r trial, a trial whose result is reliable.” Strickland , 466 U.S. at 687, 104 S. Ct. at 2064. In thecontext of a conviction stemming from a guilty plea, “the petitioner must show ‘prejudice’ by

demonstrating that, but for cou ns el’s errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks v. State , 983 S.W.2d at 246; see also Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). Furthermore,

[b]ecause a petitione r must esta

blish both prongs of the test, a failure to prove either deficiency or prejudic e provide s a suffic ient basisto deny relief

on the ineffectiveassistance claim. Indeed, a cour t need notaddress the components in any particular order or ev en addr ess bothif the [petitioner] makes an insuff icient showing of one componen

t. Goad , 938 S .W.2 d at 37 0 (cit ing Strickland , 466 U.S. at 697, 104 S. Ct. at 2069).-5- In his brief, the petitioner maintains that “the evidenc e support s his allegation that he wantedto have a

jury tria l in all his cases, as he was not guilty of any cr ime and only acc epted a [t we nt y] y ear sentenc e believin g he [woul d the n] hav e a ju

ry tria l on hi s rem ainin g ca ses. ” We disagree. The only evidenc e in the record indicatin g that the petition er was unaware

of the te rms of th e plea agr eement consists of the petitioner’s own testimony . According to the transcript of the submission hearing , not only did the tri al court

explain to

the petitioner that the agreement included guilty pleas to the pending charge s, but the State wen t over in d etail the facts of each ca se to which the petitioner was pleading guilty. When asked by the trial court if he understood the terms of the agree ment, the petitioner

answered in the affirmative. Further more, the State entered

into evidence
a copy of the plea

agreement, signed by

the petitioner, which indicated that the pet itioner was pleading guilty to the additional cha rges. Because the pe

titioner has not

carried his burden of proving that the e

vidence prepond erates agains tthe post-conviction court’s findings of fact, we are bound by the post-conviction court’ s conclusion that the petitioner received effective assistance of counsel.

III. Conclusion

For the f orego ing rea sons, we a

ffirm the judgmen t of the po st-convi ction cou rt.

___________________________________ NORMA McGEE OGLE, JUDGE