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

Briefs J anuary

22, 2003 RONNIE LEE HOUC K v. STATE OF TEN NESSEE Appeal from the Criminal Court for Knox County No. 72113 Richard R. Baumgartner, Judge

No. E2 002-0 0642- CCA-R3 -PC February 25, 2003
The Knox County Criminal Court denied petitioner Ronnie Lee Houck p ost-conviction relief following an evidentiary

hearing. The petitioner challeng ed his 2000 conv ict ion of aggravated sexual battery

on the g rounds tha

t his guilt y pl ea to that offense was unknowing and involuntary and the product o f in effe ctive assistance of counsel. From the denial of post-conviction relief, the petitione r appea ls. We find n

o error and aff irm the low er cour

t’s judg ment. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

is Affirme

d.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and N ORMA M C G EE O GLE , JJ., joined. Mike Whalen, Knoxville, Tennessee, for the Appellant, Ronnie Lee Houck.
Paul G. Summers , Attorne y General & Reporter ; Christine

M. Lapp s, Assista

nt Attorne

y General ; Randall E. Nichols, District Attorney Ge neral; and Leland L . Price, Assistant District Attorney General, for the Appellant, State of Tennessee

. OPINION
The petitioner’s guilty plea to aggravated sexual battery disposed of a n indictme nt charginghim not only

withthat offense, but also with two counts of rape of a child. Pursuant to the petitioner’s plea agreement, the trial court imposed a convic tion of ag grava ted sexual battery , a Class B felony, on

April 14, 2000. The court sentenced the petitioner to serve ten y ears in the Department of Correction.

The post-conviction petition, as amended, alleged that trial counsel was ine ffective in failing to (1) adequately investigate the case, (2) interview and subpoena witnesse s, (3) ad

equatel y advise the petition

er about his de fe ns es an d h is ch oi ce to pl ea d g ui lt y, (4) obtain investigative and expertwitness assistance, (5) develop a reasonable tr ial strategy , and (6) consult with the petitioner during crucial stages of

the case . The pet

itioner a lso alleges that the guilty

plea was unknowing and-2-

involunta ry due to the inef

fective ness of hi s counsel and to his mental condition at the time of the plea. The post-conviction court conducted an evidentiary hearing on February

14, 2002. In the hearing , the petitioner te stified th at his mothe r-in-la w had insti gated h

is stepdaug

hter’s c laim that the p etitioner

had sexually a

bused the stepdaug hter as a means of breakingup the petitioner’s marriag e. He testifie d that he a sked tria l counsel to “talk to

[his] family , have [the

victim] reexamined by another doctor.” The petitioner testified that he wanted counsel to depose his mother, who lived in Pe

nnsy lvania and was unable to come to Tennessee. Appare ntly, the petitioner

believed his mother c ould

testify that

his mother-in-law had told his mother that the mother-in-law wanted better for her daughter than to be marr ied to the petitioner. The petitioner complained that he never saw the s tate’s physical e vidence, including a videotape of the victim’s interview with a social worker. Ultimately, c ounsel informed the petitioner that the tape had been lost.

The petitione

r testified that, ea

rly in the atto rney -client r

elationsh ip, counse l told him that he contacts his clien ts tw o weeks before trial as a means of launc hing a final phase of trial preparation; y et, when o ne of the petitioner’s scheduled trial dates was only two days awa

y, the petitioner called counsel and complained that counsel had not called. The petitioner testified that counsel said he had forgotten about the trial date.

The petitioner

complained that he only met with counse l in his office twice and that counsel never “called [him] in to sit down in his office and talk about the case or nothing.”

The petitioner testified that, during the pendency of the charges ag ains t him, h is mother was dying , and his mental health was poor. Twice he attempted suicide by overdosing with pills, and once he cut

his wrist. He state d that he i nformed his counse

l of these attempts t

o take his own life. When

counsel i nformed

him in Marc

h 2000 tha

t the tria l could not

be postp oned , the petitioner responded that he “couldn’t handle” it and ask ed that, if he ple aded guilty , could he go to Lakeshore mental hospital to serve his sentence.
The petitioner testified that he verbally agreed to the plea on Febr uary 16, 2000, but prior to his March 25 plea submission hearing, he contacted counsel and told him he did not want to plead g

uilty . Counsel in

formed h im that he c ould not ba

ck out and

th at, if he tried , the j udge would revoke his bond, hold him until trial, and following a conviction, give him the maximum sentence. The petit

ioner te stified th at counse l told him he cou

ld enter a best-interest plea, but when the petitioner came to court, counsel said that the judge would not allow the be st-intere st plea

. Becau se the petitioner did not arrive at the courthouse on time that day , he was incarcerated, and the hearing was po stpo ned fo r two w eeks. He tes tifi ed tha t he tr ied cal ling c ounsel’s office but that counsel avoided him. He left messages at counse l’s office that he did not wish to plead guilty

. On the next scheduledcourt date, counsel’s associate, whom the petitioner had not met, brought the petitioner the plea pap ers. The petitione r got int o an arg ument with

the assoc iate when the petitioner insisted on talking with his original attorney

. The associate told the petitioner-3-

that he would h ave to ta

ke the ple a or go

to trial th at day . The pet

itioner te stified th at it bothe red him that the associa

te attorney discussed the se matters in the presence of ten or twelve other prisoners in the courthouse holding cell. The petitioner felt that disclosures to ot he r prisoners that the petitioner was accused

of abusing a child would endanger him while in jail, so he signed the papers. Petitioner testified that, despite his inten tion not t o plead guilty a nd his desire to speak withhis original lawy er, he signed the papers as a me ans of g etting th e ass ociate la wy er to quit talking about the

case in f ront of ot her pris oners and becau se the pe titioner w as d epressed. The petitioner testified that he believed that if he did not sign the papers, he would be forced to trial that day and that his attorneys we re not prepared for trial. He denied that he is guilty of the conviction offense and testif ied that, under the

circumst ances on April14, 2000, he had no choicebut to plead guilty.
On cr o ss-examination, the petitioner admitted that, in the weeks prior to February 16, 2000, he w as in Penns ylv ania . He admit ted th at, at the pl ea sub miss ion h earing, the ju dge informed him that he

could notbe forced to plead guilty and that the petitioner had indicated that he understood his rights. He also admitted that he “gritted his teeth” and de nied t hat anyone ha

d threatened or pressured him into pleading g uilty.
The petitione

r’s tria l counsel testifie d for the

state in th

e eviden tiary hearing . Early in his handling of the petitioner’s case, he met with Dr. Trant Nichols concerning the claim that the victim had bee n penetr ated with a penis. T

he victim’ s examinati on revea led that her hy

men was st

ill in tact to some extent but had been opened by some form of penetration or attempted penetra tion

. Counsel testified that the victim’s statement included details that were credible, including a grap hic account of the victim fellating the defendant in which the victim described the appear ance and taste of semen.
Counsel testifie d that he r ealized th at it would

be in the petiti oner’s b est inter ests to negotia te a plea that would avoid a Class A felony conviction. The

petitioner wanted to work the case out and desired an eight-y ear sentence, but

the state’s initial offer was for twelve years. When counsel w as able t

o negot iatea ten-ye ar sentence, the petitioner initially acce pted but later backed outmore than once. The petitione r was in Pennsy lvania du ring thi s time, and

counsel s poke with him by p ho ne al mo st da il y. Counsel denied that the petitioner told him that he had cut his wrist, but counsel admitted that he k n ew that the petitioner was depressed. The petitioner wa nted a continuance, despite that the case was four year s old and counsel had already obtained several continua nces. Counsel i nformed th e petition er that th e prosec utor oppos ed any

further continua nces. Counsel testified that he explained to the petitioner that, if the petitioner told the court that he did not want to plead after agree ing on a plea

and arr anging a plea da te, he wouldbe confined and, through a prohibitive bond, would not be allowed to return to Pennsy lvania to await trial.
Counsel testified that none of his experience with the petitioner indicated a basis for a competency

evaluation.-4- The post -conv icti on cou rt ex hibi ted to the ev ident iary heari ng a transcript of the petit ioner ’s Apr il 14 , 2000 plea s ubmi ssio n heari ng.

At the conc lusion of th

e eviden ce, the p ost-conv

iction court made

th e following finding s from the

bench: (1) Trial counsel properly investigated

and prepared the case, including the exploration of the use of an expert witness. (2) Counsel adequately c ommunicated with the petitioner. Face-to-face

communication between the petitioner and trial counsel was hampered by

the petitioner spending a lot of time in Pe

nnsylvania butthat, nevertheless, counsel frequently com muni cated w ith his client via telephone. (3) Counsel corr ec tl y advised the petitioner that, had he announced

a plea agr eement that caused the excusing of the jurors and then had h

e come to court on the scheduled trial to recant the plea and ask for a trial date, the court would have detained the petitioner and reviewed the bond situation. (4) The p etitioner appeared before the c ourt at the plea submission hearing on

April 14, 2000, and convincingly professed

to unde rstand his rights, acknowledge guilt, and voluntar ily plead gu il ty. The post-conviction court opinedthat, although the petitioner was understandably

reluctant to plead, he
realized the risk of not entering the plea, [ w as] fully apprisedo f t he si tu at io ns , a nd ma de a v ol un ta ry, knowing choice to enter

the plea on that date . . . that this was a voluntary, althoug h maybe not

enthusiastic, plea in this case. (5) If the court wer

e to acc ept the petitioner’s rationale for avoiding his guilty

plea, “there would never be a va lid plea that [the court] could take.” (6) Trial counsel’s p erforma nce waswithin th e rang e of compete ncy demande d of criminal defe nse attor ney s. B asedupon these

finding s, the cou

rt denie d post-co nviction r elief, a nd the pet

i tione r appealed.-5- The post-conviction petitioner bears the burden o f esta blishing, at the evidentiary hearin g, his allegations 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 theevidence. Hodges v . S.C. Toof & Co. , 833 S.W.2d 896, 901, n. 3 (Tenn. 1992). An appellate court is bound by the trial court's findings of fact unless it concludes that the evide nce in the record prepond erates agains t those findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App.1990).

The Sixth Amendment of the United States Constitution and Article I, section9 of the Tennessee Constitution both require that a defendant in a criminal case receive effective assistance of counsel. Baxter v . Rose , 523 S.W.2d 930 ( Tenn. 1975) . When a de fendant claims ineffective assistance of counsel, the stand ard a pplied by the courts of Te nnessee is "whether the advice given or the service render ed by the attorney is within the rang e of competence demanded by attorneys in crimi nal cases." Summerli n v. State , 607 S.W.2d 495, 496 (Tenn. Crim. App. 1980).
In Strickland v. Washington , the United States Sup reme Cour

t defi ned the Sixth Amendment

right to effective assistance of counse l. Strickland, 466 U.S. 668, 1 04 S. Ct. 2052 (1984). First, the appell ant must sho w that cou nsel's p erforma

nce fell below an objective standard of reasonableness under prevailing pr ofessional norms, and must demons trate th at counsel made errors so serious that he was not functioning as "counsel" guaranteed by the Constitution. Id. at 687, 104 S. Ct. at 2064. Second, the petitioner must show that counsel' s perfor

mance pr ejudice d him, that the errors were so serious as to deprive the de fendant of a

fair trial, and call into question the reliability of the outcome. Id. , 104 S. Ct. at 2004.

A reviewing court must indulge a strong presum ption tha t counsel 's cond uct falls within the range of reasonable

professional assistance and must evaluate counsel' s per for mance from couns el's perspective at thetime of the alleged error and in lig htof the totality of the evidenc e. Id. at 695, 104 S. Ct. at 2070. The petitioner must demonstrate a reasona ble prob ability that but for couns el's deficie

nt perfo rmance , the res ult of the p roceed ing woul d have been

different. Id., 104 S. Ct. at 2070.
To establish ineffective assistance of counsel in Tennessee, evidence stemming from a failure to prepare a sound defense or pre sent witnesses must be significant. However, a reaso nable probabil ity of being found

guilty of a lesser charge, or

of receiving a shorter sentenc e, satisfies the prejudice requirement of Strickland

. State v. Zimmerman , 823 S.W.2d 2 20, 227 (T enn. Crim. App .1991). In cases involving a g uilty plea or plea of nolo contendere , the petitioner m ust sho w prejudice by

demonstr ating th at, but fo

r counse l's err ors, he would n ot have pl eaded g uilty but would have insisted upon going to trial. See Hill v. Lockhar t , 474 U.S. 5 2, 59, 106 S. Ct. 366 370 (1985); Bankston v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).
When the accused

op ts to pl ea d g ui lt y, t he pl ea mu st be vo lu nt ar il y, u nd er st an di ng ly, and knowing ly

entered to pass constitutional muster. Boykin v. Alabama , 395 U.S. 238, 244, 89 S. Ct. 1709, 1713 (1969). In Tennessee , a plea must be made volu ntarily and with full understanding-6-

of its consequences. State v. Neal , 810 S.W.2d 13 1, 134-13 5 (Tenn. 1991); State ex rel. Barnes v. Henderson , 220 Tenn. 719, 727, 4 23 S.W.2d 497 , 501 (196 8). Entry of a gu ilty plea con stitutes a waiver of constitutional rights including the privilege ag ai nst self- incrimination, the right to confront witnesse s, and the r

ight to a tr ia l by jury

. Boykin , 395 U.S. at 243, 89 S. Ct. at 1714. Waiver of constitutional rights may not be presumed from a silent record. Id. In determining whe ther a plea of guilty wa s voluntarily, understanding ly, and intelligently entered, this court, like the trial court, must consider all of the relevant circumstances that e xisted at the entry of the plea. State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995).

In the pr esent case, t he reco rd con tains a trans cript of the plea s ubmi ssio n heari ng. It reflec ts th at the trial judge fully administered the litany of explanations and warnings mandated by our constitutions and Te n nessee R ule of Criminal Proc edure 11 . The pet itioner in dicated

his understanding and willingness to waive trial and all the rights attendant to trial. De spite the trial judge asking q

uestions a

nd meanin gfull y prob ing the petitioner’s competence, willingness, and prepar edness to plead g

uilty , thereb y giving him

the oppor tunity to abandon the plea, the petitioner affirma tively acknowledged that he

wished to plead guilty a

nd that he was guilty . We conclude that the record

supports the post- conviction court’s determination that the petitioner submitted a voluntary g

uilty plea.
The record also supports the lower court’s determination tha t the plea was made knowing ly

and that t rial counsel ren dered e

ffectiv e assista

nce. The post-con victio n judge accredited the testimony

of the pe titioner’ s tri al at to rn ey, who testified that he explored the possibility of a defense of innocence and who determined that the state’s c ase was strong and foreboding

. Bas ed upon counsel’s testimony, the petitioner was fully informe d about the status and prospects of his case and was able to make a knowing decision to plead g uilty. Moreover, the petiti oner did not estab lish at the evidentiary

hearing the existence of

witnesses whose information would have benefitted the petitioner at trial.

Upon the rec ord befo

re us, the petitione r failed to establi sh by clear

and convincing evidence that his plea was invalid for any rea son or that his attorney re ndered ineffective assistance. The judgment of the lower court is affirmed.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE