1 Additiona lly, on the same date, the Ap pellant pled guilty to aggrava ted assault, violation of the Motor Vehicle Habitual Offender A ct and DU I. No do cuments rela ting to these offenses ar e included in t

he record. No proof was developed as to these offenses at the post- conviction hearing and the Appellant ’s argu ment of i neffec tivenes s does not encompass t

hese off enses. Accordingl

y, any challen

ge to thos

e convict

ions is waived. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on Briefs A

ugust 7, 2001
EDWARD DRUMMER v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Shelby County No. P-19504 Arthur T. Bennett, Judge

No. W2000-00414-CCA-R3-PC - Filed August 29, 2001

The Appellant, Edwar

d Drummer, appea

ls from the di smissal of his petition for post-conviction relief by the Shelby

County Criminal Court. In September, 1997, Drummer pled guilty to one count of aggravated

rape and was sentenced to fifteen years confinement in the De partment of Correction. 1 In 1998, Drummer filed a petition for post-conviction relief challenging the validity of his guilty plea upon grounds of (1) voluntariness and (2) ineffective assistance of counsel. Th e post-c onviction court, finding the claims unsupported, dismissed the petitio n. On appeal,

Drummer contends that he was denied

the effective a

ssistance of coun

sel. After review, w

e affirm the judg

ment of the postconviction court.

Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court is Affirme

d.
D AVID G. H AYES , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined. Deborah M. Henderson, Memphis, Tennessee, for the Appellant, Edward Drummer.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor Gener al ; Kim R. Helper, Assis tant A ttorn ey Gener al; W illi am L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General, for the Appellee, State of Tennessee.2 The indictment an d t he judgment of conviction reflect dif ferent dates for the commission of t he offense. If the indictment and the transcript of the guilty plea heari

ng are correct, then the

sentencing guidelines

under the prior a

ct
are applicable and th

e Appellant’s

sentence would be served at thi rty percent (30%) as a range I offender. If the judgment form is corre ct, then the App ellant, pursuan t to Tenn. Code Ann. § 40-35-501(i), woul d serve his se

ntence at one hundred percent (100%).

3 The Appellant ’s post

-convic tion pet ition is not included in the record . Howeve r, the petition is inclu ded in the record o f this case in the Ap pellant’s origina l post-convic tion appe al. We a re enti tled to take judi

cial not ice of pleadings c ontained in c ases filed with the c lerk of this Cou rt. -2- OPINION
Procedural Back

ground
This case presents a somewhat protracted procedural history . In November, 1998, the postconv iction co urt conducted an evidentiary

hearing upon the

Appellant’s clai

ms contained in his Febr uary, 1998, peti tion. Foll owing this hearing, the post- conviction court denied relief and dismissed the petition. A pro se appeal was taken and, after review, this court remanded to the po

stconvict ion court fo r (1) appointment of counsel, (2) supplementation of the record, and (3) for a “further hearing” to determine

the correct date of the commission of the offense. 2 See Drummer v. State , 6 S.W.3d 520 (Tenn. Crim. App. 1999) (holding that indigent inmates who seek review of the denial of their petitions for post-conviction relief are entitled to appointed counsel on appeal). Acco rdi ngly, this case is again before this court after apparent compliance with these

directiv es. We emphasize

“apparent” as the record does not reflect that a hearing wa s co nducted to

correct the discrepancy

relating to the date of

the offense. Although the Appellant asserts in his brief, “On June 28, 1999, appointed counsel entered an Amended Judgement sheet correcting the date of the commission of crime and showing Petitioner’s eligibility as a standard rang e I offende r,” no such document is contained in the record.

ANALYSIS
The Appellant’s claim of ineffectiveness of counsel and involuntariness of his guilty plea, as set forth in his pe

tition, stem from the

following factu

al allegations:
Petitioner entered a guilty plea

for asentence Fifteen (15) years, as a Standar d Offender (Range I, at 30%). See Judgment Document, attac hed hereto.
Once petitioner entered the Tennessee Department of Correction, he was informed that his guilty plea for fifteen (15) y ears was in fact, a mandatory 100% and the least amount of time to reduce that 100% would be 15%, resulting in a Release

Eligibility Date (R.E.D.), of 85%, assuming petitioner received all his Sentence Reduction Credits allowed by law. 3-3-

At the Novemb er, 1998, ev identiary hear ing, the Appellant apparently abandoned pursuit of this claim. Instead, the

Appellant focused

upon the involuntariness of his guilty plea based upon trial c ounsel’s overstatement of the risk of conviction and ineffectiveness, and the lack of pre -trial investigation: Q. Well, why did you take the plea?
A. Well, the only reason w hy I took the plea because she told me herse lf, she supposed to be my lawyer, that it wasn’t nothing she could do for me. You might as wellgo on and c op out becaus e they’re going to find y ou guilty because it ain’t nothing I can

do for you. That’s the only reason why I went on and pleaded for that plea bargain a

nd the fifteen y

ears at thirty

percent.

Add iti ona lly, the Appellant testified that trial counsel failed to thorou ghly inves

tigate his case, failed to develop an alibi defense, a

nd failed to

contact witnesse

s. Appellant’s tri

al counsel, testifying at the hearing, related that she had difficulty with the Appellant in meeting the appointment schedules and returning p hone calls. Nonetheless, she met with him twice afte

r he was returne

d to the jail and spoke with him seven times on the phone. Counsel testifiedthat she contacte d allof the potential witnesses p

rovided t o her by the Appellant, however, none supported an alibi defense. Moreover, seve ral of the witnesses would have been extremely prejudicial as they would have testified that the Appellant and the victim of the rape had a “violent relationship.” Trial counsel stated that she had avail

able only two theories of defense (1) alibi, which could not be supported, and (2) consent. With regard to the latter, she further explained, “even if we had been able to say that the sex had been consensual, the injuries she suffered to the head, the blood that was found at the scene, the injuries that she suffered from the sexual assault, did not go along with consensual sex.” Trial counsel also testif

ied that she was su

rpris ed when, after the jury had been select

ed at his scheduledtrial, the Appellant advised bo th she and co -counsel t hat he wante d to change his plea to guil ty. Finally, trial counsel stated that both she and co-c

ounsel advised the

Appellant that he w

ould be eligible for parole consideration in four years base d upon his classification as a Range I standard offender; however, they

also advised the A

ppellant that it wa

s unlikely tha

t he would receiv

e parole when first eligible be

cause of his convictio n as a sexua l offender. At the concl usion of th e hearing, the post-conviction court found: (1) the Appell ant [was] not telling the tru th; (2) the Appella

nt had the opportun

ity when Judge Axley asked him if he wa s freely and voluntarily entering his plea, whether he had any complaints, whether his lawye r investigated the case, investiga ted the witnesses that he had. He indicated that his lawyer did. And, his lawyer testified and[trial counsel] testified that she did investigate the case; . . . (3) [trial counsel] did ren der effective assistance of counsel through out her handling of the case , . . . [and] tha t her representation did meet the standard under Baxter v. Rose and other cases.-4-

On appeal, the Appe

llant again

abandons his claim

of involuntariness and argues solely that the trial court “erred in

ruling that he wa

s not denied effe

ctive assistance

of counsel pursua

nt to the United States Constitution and the Constitution of the State of Tennessee.” He raises three general areas of ineffective

ness: (1) “that his

attorneys f

ailed to investig

atehis case thoroug

hly; (2) tha

t his att orn eys failed to discuss his case with him and offered no defense strategy ; and (3) that he received information from his counsel that he’d be eligible for parole within four year s, if he accepted the State’s offer.”
At this juncture we are constrained to observe that “a defendant who pleads guilty upon the advice of co uns el m ay only attack the voluntary and intelligent character of t he guilty plea by showing that the advice he received from c

ounsel wa s not within the standard set forth in [ Baxter
v. Rose , 52 3 S.W.2d 930 (Tenn. 1975), and that] . . . but for counsel’s errors he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart , 474 U.S. 52, 56-57, 106 S. Ct. 366, 369-70 (1985) (emphasis added) (citations omitted). The prejudice requirement of Hill
v. Lockhart

focuses on whether c ounsel’s constitutionally ineffective performance affected the outcome of the plea process. Id . at 370. In this case, we find no causal connection between the Appellant’s reasons for plea ding guilty

andhis al legat ions o f coun sel’s defic ient p erfor mance . In sum, we find nothing in this record which remotely suggests that couns el’s alleg ed deficiencies affected the outcome of the plea process. Nonetheless, we proceed to examine the Appellant’s claims of ineffectiveness.
To succeed in a challenge for ineffec tive a ssistance of coun

sel, the Appellan

t must demonstrate

that counsel’s representation fell below the range of com pet ence dem and ed o f at tor neys in criminal cases. Baxter v. Rose , 523 S.W.2d at 936. Under Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 20 64 (1984), the App

ellant must establis

h (1) deficient representation and (2 ) prejud ice resulting from the deficiency. I n the context of a guilty plea, to satisfy the second prong of Strickland , the Appellant mus t show, “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and w

ould have insisted on going to trial.” Hill
v. Lockhart , 474 U.S. at 59, 106 S. Ct. at 370; Walton v. State , 966 S.W.2d 54, 55 (T enn. Crim

. App. 1997). The Appellant has the burden of proving the allegations in his or her petition by clear andconvincing evidence. Tenn. Code Ann . § 40-30-210(f) (1997). The issues of deficient performance

by counsel

and possible prejudice to the defense are mixed questions of law

and fact. Statev. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s findings of fact underlying

a claim of ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied witha presumption that those findings are corr ect unless the pre

ponderance of t

he evidence is otherwise.” Fields v. State , 40 S.W.3d 450, 458 (T enn. 2001) (citing

Tenn. R. App. P. 13(d

); Henley
v. State , 960 S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law are reviewed und er a purely de novo standard, with no p resumption of cor

rectness. Fields , 40 S.W.3d at 458. Applying the foregoingprinciples, this court must determine whether the evidence preponderates against the post-conviction court’s finding that theAppellantreceived the ef fective assistan

ce of counsel. Henley , 960 S.W.2d at 580.-5-

Our review of the record

reveals that the Appellant has failed in his burden of overcoming th e fi ndings of the post-conviction court. Although the Appellant identified several names of witnesses at

the hearing which

he contends would have supported an alibi defense, these witnesses were not produced at the hearing. This court is not required to speculate as to what the alleged alibi wi tnesses could have testified to if produced at the hearing. State v. Black , 794 S.W.2d 755, 757 (Tenn. Crim. App. 1990). Mo reover, we ag

ree with the post-

conviction court’ s f

indings that the proof does not establish trial counsel failed to thoroughly conduct pre-trial invest

igation, failed

to develop app rop ria te t ria l st rat egy, or improperly advised the Appellant rega rdi ng pa rol e el igi bil ity.

CONCLUSION

Based upon the foregoing, we find that the post-conviction court did not err in ruling that the Appellant received effe

ctive assistance of counsel. Ac cordingly, the judgment of the post-conviction is affirmed.

___________________________________ DAVID G. HAYES, JUDGE