### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON May 3, 2005 Session

KENNETH RAY HAYNES v. STA TE OF TENNESSEE
Appeal from the Circuit Court for Carroll County No. 02-CR-1959 C. Creed McGinley, Judge

No. W2004-01947-CCA-R3-PC - Filed July 8, 2005

The petitioner, Kenn et h R ay H ayn es, appeals the denial of his petition for post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel. The judgment is affirmed.

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

G ARY R. W ADE , P.J., delivere d the op inion of the court, in which D AVID H. W ELLES and J OHN E VERE TT W IL LI AMS , JJ., joined.

Matthew M . Maddox, Hu ntingdon , Tennes see, for

the appe llant, Ke

nneth Ray

Hay nes.
Paul G. Su mm er s, At to rn ey G en er al & R ep or te r; J. Ro ss Dye r, As si st an t A tt or ne y General; an d Steven D. Jackson, Assistant District Attorney Gene ral, for the appellee, State of Tennessee

. OPINION

OnNovember 13, 2002, the petitioner entered pleas of guilty to two co un ts of

se xu al ba tt er y, aggravated

burglary , public intoxication, andmisdemeanor evading arrest. Pursuant to a plea agr eement, the petitioner received concurrent sente nces of two ye ars on each sexual ba tter y convicti on, four yea

rs for the burglary

offense, thirty da

ys for the public intoxication, and eleven months and twenty-nine da ys for eva ding arrest. All of the sentences were suspended except for the time served and the petitioner was placed on prob ation. Tw o weeks later, when the petitioner became confrontational with a probation officer and ref used to sign some of the required paperwork, including sex offender directives, a probation violation report was filed. On February

26, 2003, the trial court revoked probation and ordered the pe titioner to serve the four-y ear sentence.

OnNov embe r 20, 2 003, t he pet itio ner fi led a p etit ion fo r post -conv icti on rel ief al leging, among o ther thing s, that his pleas were involuntary

and that his counsel was ineffective. Counsel
was appointed and

an amendment was filed

wherein the petitioner alleged that his trial counsel fa iled-2-

to adequa tely communic ate prio r to the ple a agre ement an d failed to suffic iently

investig ate the f

acts and circumstances of the case.

At the evidentiary he aring, the p etit ioner testified that his trial counsel did not discuss the circumstances of the ca se and on ly c ommunica

ted with hi

m two or th

re e days bef

ore the announcement

of the plea

agree ment. He claimed that he asked his trial counsel to conduct an investigation

and provided him with the names of as many as fif

teen to sixteen po tential witnesses. The petitioner claimed that he did not commit the offenses alleged in the indictment and that each of the witnesses could support an alibi defense.

The petitioner, who had been evaluated shortly after his arrest by

the Wester

n Mental H ealth Institute, had been found competent to stand trial and able to apprec iate the nature and wron gfulne ss of his acts at the time of the offenses. He contended that he had

informed his trial counsel that he preferred a trial to a guilty plea and explained

that he wa s on medic ation pre scribed by a psychiatris t at t he time he

accept ed the of fer of the state. The petit ioner ins isted that

he did not r

ead the p le a agreement

before signi ng i t be cause he was unab le to rea

d or write very well. The

petitione r also stated that he had entered his plea of guilt only because he wanted to

get out of jail to see a doctor and that he did not believe that he had a n attorne y " who would

help [him] fight." He testified that he wanted

to tell his trial counsel about an event that happened in the 1980's wherein something had been "ri gged" in his ear , allowing "people [to] talk to me through my ears." He also claimed that McKenzie

Hospital had

"rigged up something throug h my rectum and, like, peo ple can h ave sex wit

h me." The petit

ioner cl aimed tha

t his trial c ounsel wa s unwilling to communic ate with

him about th

is unusual information.

Trial counsel, who was the only other witness at the evidentiary hearing, testified

that he had visitedwith the petitioner several times prior to the guilty plea. H e acknowledged, however , that he had not discussed

the case in detail with the petitioner before the preliminary hearing, explaining that he had inves tigate d the cas e by talking to witness es to the extent necessary . He stated that he had asked for a preliminary

hearing so that the petitioner could hear firsthand some of the proof that the state intended to present at trial. He conceded that he did not speak with any of the witnesses that the petitioner named

because he was of the opinion that they had no relevant information about the charges.

At the conclusion of the evi d entiary hea ring, the post-conviction court found that the petit ioner 's pleas were knowingly and voluntarily enter

ed and that he was afforded the ef fective represent ation of counse l. The pos t-conviction cour t found the

plea ag reemen t to be "e xtremely advanta geous" in that the petitioner was placed upon

immediate probation and that it was only a fter probation was re

voked tha t the petit ioner challeng ed the ef

fective ness of hi s trial co

unsel.

Inthis app eal, the

petitione r asser ts that his c ounsel wa s ineffe ctive be cause he failed to document the numbe

r of times the two met andfailed to interview potential alibi witnesses. He claims that he would not have entered his guilty pleas but for his counsel's lack of prepar ation.-3-

Under our statutory law, the

petitione r bears the burde n of provi ng the a llegat ions inhis postconvictionpetition by clear a nd convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). Evidence is clear and convincing when there is no serious or substantial doubt about the accuracy of the conclusions drawn from the evidence. Hicks v. State , 983 S.W.2d 2 40, 245 (T enn. Crim. App. 1998). On app eal, t he fin dings of fact made by the post-conviction court are conclusive and will not be disturbe d unless th e eviden ce conta ined in the

record prepond erates agains t the m. Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidenc e prepon

derate d again st those fi

ndings. Clenny

v. State , 576 S.W.2d 1 2, 14 (Te nn. Crim. App. 1978). The credi

bility of the witnesses and the weight and value to be afforded their testimony
are questions to be resolved by the post-conviction court. Bates v . State , 973 S.W.2d 615 (Tenn. Crim. App. 1997).

When a petitioner seeks post-conviction relief on the basis of ineffe c tive assistance of counsel, he must

first establish that the services rendered or the advic e given was bel ow "th e range of compet ence demanded o f attorneys in crimi nal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies "actua lly had an adve

rse effec t on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). The error or err ors must be so serious as to render an unreliable result. Id. at 687.

Should the petitioner fail to establish either factor, he is not entitled to relief. Our supr eme court de scribed

the stand ard of r eview a s follows: Becau se a petitioner

must estab lish both

prongs of the test, a failure to prove either deficiency

or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim. Indee d, a court need not address the components in any particular order or even address both if the defe ndant makes an insufficient showing of one component. Goad v. Sta

te , 938 S.W.2d 363, 370 (Tenn. 1996).

When a petitioner claims ineffective assistance of counse l in relation to a guilty plea , t h e petitioner must prove that counsel performed deficiently and, but for counsel’s errors, the petitioner would nothave ple ad guilt

y a nd would have instead insisted upon going to trial. Hill v. Lockhart , 474 U.S. 52, 59 (1985).

Claims of ineffective assistance of counsel ar e regarded

as mixed questi ons of law and fact. State v. Honey

cutt , 54 S.W.3d 762, 7 66-67 (T enn. 2001 ); State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). When reviewing the application of law to the

post-con viction c ourt’s fa

ctual fin dings, our review is de novo, and the post-conviction court’s conclusions of law are given nopresumption of
correctness. Fields v. State , 40 S.W.3d 45 0, 457-58 (Tenn. 2 001); see also State v. England , 19 S.W.3d 762, 766 (Tenn. 2000).
In this instance, the record de monstrates that trial counsel had explored a possible

insanity defense. On motion of the defense, the petitioner was evaluated both as to his competence to stand trial and as to whether insanity was a sustainable defense. The post-conviction court found as fact-4-

that trial counsel had consulted w ith the petitioner on several occasions and had repre sented the petitioner during the preliminary

hearing. Because the

trial court accredited thetestimony of trial counsel as to the a

dequacy of

the deg ree of c ommunica

tion, it is our view that the petitioner is not entitled t o relief on this bas is.

The petitioner also argues that he would not have enter ed his pleas of

guilt but for the failure of his trial c ounsel to i

ntervie w potentia

l witnesse s. This cla

im is partic

ularly difficul t to assess because the petitioner offered none of these witnesses at the e videntiary hea

ring. In Black v . State , this court placed the duty upon the petitioner to produce any unca lled witness at the post-conviction proceeding

inorder to

determine the mate

riality of the te stimony

and the c redibilit y of the witne ss. 794 S.W.2d 752, 758 (Tenn. Cr im. App. 19 90). While

trial counsel has a duty to investig ate, any inference of prejudice absent the testimony of an uncalled witness would be merespeculation. There is no indication from the proof introduced at the evide ntiary hear ing that any

of the potential witnesse s, had they bee

n int er viewed in advance of trial and made ava ilable as witnesses, would have had an y ef fe ct on th e g ui lt y pl ea . It is th e r es po ns ib il it y o f the petitioner to bring these witnesses forward at the evidentiary hearing. Thus, he is not entitled to relief. Accordingly , the judgment is affirmed.

____________________________________ GARY R. WADE, PRESIDING JUDGE