1 Th e petitio ner un succe ssfully pursu ed a d irect ap pea l of this co nviction

. See id.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on

Briefs J une 5, 2002

ROBERT E. PU GH v. STATE OF TENNESSEE

Post-Conviction Appeal from the Criminal Court for Shelby County

No. P-22240 J. C. McLin, Judge

No. W2001-02349-CCA-R3-PC - F iled April 16, 2003

A Shelby County

grand jury

indicted the petitioner on multiple offenses. At the conclusion of a trial

on the indictment first prosecuted, a ju ry c on vi ct ed th e p et it io ne r o f a ggr av at ed ro bb er y. See State

v. Rober t E. P ugh , No. W1999-01260-CCA-R3-CD, 2000 WL 298697, at *1 (Tenn. Crim. App. at Jackson, Mar. 17, 2000). For this offense he received a twe lve-yea r sentence as a standard offender. 1 Id. He subsequently pled g uilty to ten additional charg es. The trial court the n sentenc ed him as a multiple offender for nine of these counts and a s a violent offender for one count. His ag reed upon
sentences for thes e offen ses in combination with the aforementioned twelve-ye ar sentence resulted in an effective tw enty -six-year sen tence f or all ele ven convictions. However, the petitioner later filed

a pro se post-conviction petition attacking his pleas by allegi ng that h

is counsel at that tim

e provided him ineffe ctive as sistance . The tria l court a ppointe d counsel , who file d an amended petit ion also alleging ineffective assistance at trial. Following a hearing, the trial court found none of the petitioner’s allegations meritorious and denied him relief. Throug h this appeal the pe tition er continues to assert that he received ineffec tive assistance of counsel regarding his g

uilty pleas and the trial at issue. However, after reviewing the record provided a

n d appropriate authorities, we affirm the trial court’s denial of the post-conviction relief.

Tenn. R. App.P. 3; Judg ment of t he Trial Court is Affirm ed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J AMES C URWOOD W ITT , J R ., joined.

Brett B. Stein, Memphis, Tennessee, for the appe llant, Robert Pugh.

Paul G. Summers, Attorney Gene ral & Reporter; Kim R. Helper, As sistant Att orney Genera l; William L. Gibbons, Di strict At torney Gene ral; and Dan Woody, Assistant District Attorney General, for the appellee, State of Te nnessee.-2- OPINION

Factua l Background

While we will include more detail from the post-conviction hearing within our treatment of the individual issues, at the outset we note that the petition er faced numerous charges including aggravated

robbery counts, a rape co unt, a Class D felony e

vading arrest count, etc. Of these the petitioner first faced trial on one

of the ag grava

ted robbe ry counts. At the conclusi on of this tr ial, the jurors convicted the petitioner of this offense. Id. In deciding the pe titioner’s direct a

ppeal of this convicti on, our Cou

rt summar

ized the fa

cts as fo llows:

On April 26, 1996, Joseph Oliver, a co-manager at a Wendy ’s re stauran t on 1593 Union Avenue in Memphis, Tennessee, was robbed at g unpoint. He testified that

he left the restaurant for the First American B ank on Union Av enue at a pproximate

ly 3:30 to 4:30 p.m. t o get coins for the restaurant. When he left the ba nk, he noticed that a car was following him. The car followed him to the Wendy’s and pulled behind him. Oliver testified that the car could have been a Chevrolet Malibu and thought that the vehicle was maroon or a similar color. The vehi cle appr oached him as he le

ft his vehicle. An individual leapt from the car with a revolver and demanded money . He threw the money on the g round an d the individual took it.

At trial, Oliver testified that on the day of the robbery

he identified the defendant from a lineup. Fur

ther , he identified the defendant in court the day of the trial. He also identifie d a gun i ntroduce d in evide nce as be ing simila r, if not th

e same, gun used agains t him in the holdup. Finally, Oliver testified that, afte r the robbery , h e entered the restaurant and activa ted the holdup alarm to which police vehicles responded.

Mark Rewalt, of the Memphis Police Department Crime Scene Unit, testified that he examined a

Chrysler, the ca

r the defendant

abandoned afte

r police pursuit, o n April 26, 1996, for fingerprints. He testified that he obtained two latent prints, one from the drive r's side doo r and o ne from th e back d river’sside door , and pre served t hose prints on the appropriate card medium. He identified those latent prints for th e j ur y.

Cham Payne, a n office

r of the M emphis Polic e Depar tment Crime

Scene Un

it, testified that he lo cated and preserved latent prints from the hood of the vehicle, a Chrysler LeBa ron. He also obtained a latent print from an empty beer bottle found in the floorboard

of that vehicle. Again, Officer Pay ne identified the cards containing those late nt prints in

court.-3-

Jerry Sims, a latent fingerprint examine rfor the M emphis Polic e Depar tment, identifie d these f

our print s as belon ging to the defe ndant.

Lieutenant

Hollis W. Hightower, an investigator on the robbery squad the day of the

ro bb er y, stated tha

t he inter viewed th e defendant and, after a

dvising h im of his ri ghts, took a statement from

the defe ndant in which he a

dmitted to co mm it ti ng th e r ob be ry. The defendant stated that the c ar u sed in the robbery was his brown 1981 Chrysler LeBaron. Further, t

he d efendant explained, on the day of the robbery , he located Dwayne Jones on the

streets of Memphis and at that point, the two agreed to commit

a ro bb er y. The defendant stated that he used a .32 caliber re volver, purchased on the street, to rob Oliver at the Wendy’s. H e testified that appr oximately ten minutes after the robbery he

andDwayne

Jones were pursued in the Chrysle r by the police. When stopped, he leapt from the car and escaped. L ater that same day , he was arrested and identified as the robber.

Id. (footnote omitted). As noted, the trial court sentenced the petitioner to twelve y ears as a standard offender for this conviction. Id.
The ne xt ca se s s et fo r t ri al in vo lv ed a s er ie s o f f iv e o ff en se s a ll eg ed ly committed by the petitioner on March 28, 1997. At the post-conviction hearing, former defense counsel indicated that the State had eve n strong er proof

to present

at this trial than it had in the above-outlined case, and the record

reflec ts that at a

n early stage i n the proc eeding , th e petitione r agreed to plea

d guilty to t hese an d other pe

nding ind ictments. More spe cifically, we note th at the pe titioner p led guil

ty to four counts of aggravated r

obbery, one c ount of robbery, one count of rape, one count of possession of a prohibited weapo n, one co unt of possession of a handgun by a convicted felon, one count of posses sion with intent to sell one half ounce or more of a substance containing cocaine, and o n e Class D felony

count of e

vading arrest. A number of

these offenses were committed while on bond; thus, the trial court noted that the situation required consecutive sentencing

. For all eleve n convictions at issue in this appeal, the petitioner received, as noted earlier, an e ffective sentence of twenty -six y ears. The petitioner’s former attorney who was called to testify

at the post-conviction hearing had assumed the representation of the petitioner from another individual in the public defender’s office and had represented the petitioner throughout the pe titioner’s trial and at the relev an t g ui lt y plea procee ding. Only

he and the

petitione r provide d testimony

at the pos t -convic tion hearing. At the close of the proof the

rein , the trial court denied the petitioner relief. Subsequently, the trial court

more fully set out

its rationale for this denial in an order. Regar ding mat ters rai sed in this a

ppeal, the court determined that the petitioner had failed to provedeficie nt perfo rmance by f ormer c ounsel.-4- Post-Conviction--Standard of Review
When a petitioner brings a post-conviction petition, he or she bears the burde n of proving the allegations asserted in the petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30- 210(f). Moreover, the tri al co urt’s findings of fact “are c onclusive on appeal unless the evidence preponderates against the judg ment.” Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996).

Ineffective Assistance of Counsel
A. Standard of Review
In addition, apetitioner seeking post-conviction relief on the basis of ineff ective assistance
must prove “that (a) the services rende red by trial c ounsel were defi cient a nd (b) the deficient performance

was prejudicial.” Powers v. State , 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). To

s atisfy the deficient performance prong of this test, the petitioner must establish that the service rendered or the advice given was below “the range of competence de

manded of attorney s in criminal cases.” Bax t er v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Furthermore, to demonstrate the prejudice required, the petitioner “must show that there is a reasonable probability that, but for counsel’ s” deficient performance, “the re sult of the proceeding would have been diff eren t .” Strickland v. Washington , 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2 d 674 (1984). “Beca use a petiti on er must establish both prongs of the test to prevail on a claim of ineffe ctive assistance of counsel, failure to prove either

deficient performance or re sulting prejudice provides

a sufficient basis to deny r elief on the claim.” Henley

v. State , 960 S.W.2d 572, 580 (Tenn. 1997). Furthermore, “a court need not addre ss the com

ponents in

any particu lar orde

r or eve n addres s both if the [petitioner] makes an insufficient showing of one component.” Id. B. Alleged I

neffective Assistance at Trial
Throu gh this appeal, the petitioner avers that his trial counsel provided ineffective assistance by failing to attempt

to suppre ss the pet

itioner’ s confes sion. Before co nsiderin g this ma tter, we note

a concern mentioned by

the State through a

footnote in its brief. The Sta

te corr ectly points out that the petitioner’s original petition attacks his convictions arising out of his guilty pleas entered in one proceeding and that the amended petition filed by a ppointed counsel attacks his conviction arising fr om a separate jury

trial. Tennessee Code Annotated section 40-30-204(c) provides that “[t]he petition for post- convicti on relie f shall be limited to th

e assertion o f claims for relief from the judgment or judgm ents entere d in a sing le trial or proceeding. I f the petitioner desires to obtain relief from judgmen ts entered in separ

ate tria ls or proceedings, the

petitioner must file separate petitions.” Tenn. Code Ann. § 40-30-2 04(c). Tennesse e Supreme Court Rule

28, in per

tinent pa rt, echo s this require ment. See Tenn. Sup. Ct. R. 28, § 5(c). Therefore, counsel’s filing of a n amended petition attacking the petitioner’s jury trial c onviction was improper . Trial c ourts should scrupulously honor these provisions and require the filing of separate petitions. We find however, that a post-conviction court, may in its discretion and in the interests of judicial economy, conduct a single hearingwhere there are multiple petitions presenting common issu es of fa ct relat ing to a s ingle

petitione r. Thus, in the instant case a remand at this point for the purpose of en suring c ompli ance with this requirement would amount to little more than a procedural formality

.2 This doc ument was n ot made an exh ibi t t o the recor d.

3 During the hearing the State refer enced an “ar rest tic ket” purportedly indic atin g that the aut horit ies ar

rest ed and charged t

he peti tioner

wit h th is aggr avat ed robber y on Apr il 28 th at 2:30 p.m. Unfortunately, this document was also
not made an e xhi bit . One of the fac tors , t heref

ore, lef t un clea r is whether t

his pa perwork co nstituted a n interna l jail document that did not of itse lf evince a pro bab le caus e finding . Furthe rmo re, acc ord ing to th e dire ct app eal of this conviction, the petitioner had fled the scene of the tried aggra vated rob bery o nly to be arreste d later o n the sam e day, Ap ril 26 , 199 6. Robert E. Pugh , 2000 WL 298697, at *1. Testi mony f

rom the post-conviction hearing suggest s that t he
arrest on th e 26 th

was for a second aggr avated robbery comm itted on that day; however, the direct appeal states t

hat the victim of th e tri ed aggravat ed robbery i dentif ied th e petit

ioner from a line- up on the 26 th

. Id. Basicall y, becau se of a l ack of physica l or ver

bal pr oof, conf

usi on rema ins rega rdin g tw o of t he t hree ti mes ne eded t o be known in or der t o successful ly rai se a claim under Huddles ton

.
-5- More precise

ly s tating th

e issue, t he petitio ner asse

rts that trial counsel should have utilized the rationale of State v. Huddleston , 924 S.W.2d 666 (Tenn. 1996), to suppress the p etitioner’s confession to this crime. Huddleston has been interpreted as holding “that whe n a person confesses after having been detained for 48 h ours without a judicial determination of probable cause, the confession should be excluded unless the prosecution can show that the confession was suff iciently

an act of free

will in order to purge the taint of the unlawful detention.” State v. Webster , 81 S.W.3d 244, 251 (Tenn. Crim. App. 2002). In Huddleston our supre me court employ ed four c riteria to aid in deter min ing whether the statement at issue constituted “an act of free will.” Huddleston , 924 S.W.2d at 674-75. These criteria are: “(1) the presen ce or absence of Miranda

warnings; (2) the temporal proximity of thearrest a nd the con

fession; ( 3) the pr

esence of interv ening c ircumsta

nces; and fi na ll y, of particular significance, (4) the purpose and flagrancy of the official misconduct.” Id. With this i n mind we turn to a consideration of the record in the instant case. Thoug h we have thoroughly r

eviewed the evidence nu merou s times, we are unable to reliably compile a chron ology pin-pointing 1) the time of t he petitio ner’s in carce ration re lative to 2 ) the time

of his confession to the tried aggravated bur glary and to 3) the time of a judicial finding of probable cause

. Among these thr

ee even ts, th e r ecord best offers supportive proof conce rning the time of the petitioner’s confession. Testimony in the hea r in g references a

copy of the state

ment introduced at the petitioner’s trial. Allegedly the document indicates that the petitioner made this statement on April28, 1996, a

t 5:00 p.m. 2 However, the petitioner’s arrest for this offense may ha

ve occurred at 2:30 p.m. on April 28, 1996, or possibly at some time after 4:30 p.m. on Apr il 26, 1996. 3 Furthermore, we can find no informat ion reg arding

the time of a judic ial deter

mination th at proba

ble

cause existed. Former trial counsel c ould not recall such detail with clarity , the petitioner was not questioned concer

ning this matter, and documentation which likely could have established this fact was not submitted to the record. Without proof of the timing of these eve nts, the pe titioner h as faile d to show th at a basi s existed to sup port a Fourth Amendment violation requiring suppression of a statement unde r the rationa le of State v. Huddleston . Absent such a basis, we cannot find that former counsel provided deficient perfor mance by not filing a motion to

suppress the petitioner’s confession on this ground. If there is no showing of

deficient performance, then there ca n be no finding of ineffective assistance of counsel. See, e .g. , Henley , 960 S.W.2d at 580. As previou sl y noted, a p etitionerin a postconviction setting bears the bur den of provi ng the allegations in his or her petition by clear and4 Other allegati ons of counsel’s defi ciencies regarding his a ssi stance in t he peti tioner ’s pl eas were ment ioned in the petitioner’s pro se post- convict ion peti tion a nd at the evident iary heari ng ther eon; howev er, t he assert ion th at counsel spent

ins uff ici ent ti me wit

h th e pet it ioner

in pr eparat

ion f or these cases was t

he sole claim sel ected for argument
regar ding this issu e in the p etitioner ’s brief.

-6- convincing evidence. See Tenn. Code Ann. § 40- 30-210(f ). The pe titioner i n this appe al did

not do so; there fore, hi s claim la

cks merit

. C. Alleged Inef

fective Assistance Concerning the Guilty Pleas

Throu gh his app ellate brief the petitioner avers that former counsel pr ovided ineffective assistance by failing to spe nd sufficient time with the petitioner to prepare for the

cases to which the petitioner pled guilty on September 1, 1999. 4 Regarding this issue, the petitioner testified during the post-conviction hearing that former counsel had only come to see him on two occasions concerning these charg es. The petit

ioner ad ded that t he first o f these

two visits took place on the night before his secondtrial was set to begin. Additiona lly, the petiti oner af

firmed th at his “ma

in complaint” was that he ha d “pled guilty to the r ape charge” but had not intended to do so. The petitioner later acknowledged

that he had be en awar

e that he was plea ding guilty

to this charge prior to entering the plea but claime d that he h ad not kno wn until he arrive d at t

he pe nitentiary that he “ha d all of the time” to serve on that charge. Beyond this, we note information elicited or underscored b y the lower court during the petitioner’s post-conviction testimony. First, the petitione r indica ted that he would no t want to r isk consecutive sentencing on a number of the offenses involved in his plea agreement should the cour t set aside his pleas. In addition, the petitioner acknowl edged

that he wa s not thre atened o r force d into pleading but had done so because he ha d thought that “it was in his best interest at the time.” When called to testify

at the post-conviction hearing, the petitioner’s former counsel stated that he had be en employ

ed with the

public defender ’s offic e for ap proxima tely si x years and had practiced law in Te nnessee for abou t fourtee n ye ars. Former counselrecalled that he had taken over the representation of the petitioner from another attorneyin the public defender’s office. Counsel indicated that he spoke with this attorney brie fly upon rec eiving the petitioner’s file and then “spent

a good deal of time” confer ring wit h her af ter reviewing

it. Neither

party asked former counsel about th e number of t imes he had visited the petitioner to discuss the pleas. However, former c ounsel recounted questioni ng the p etitioner to no avai l on at lea st two occ asio ns conc erning possible grounds for suppressing the petitioner’s confessions and stated that he had reviewed the discovery materia ls with the pe

titioner. Though t

he petitio ner’s c laim was th at h e had not committed the offense s, former counsel underscored the streng th of the prosecution’s evidence on the cases set for resolution in the second trial. Accord ing to former counsel, an off-duty police officer had

observed the petitioner committing the aggrava ted robbery

at issue, pursued the petitioner without losing sight of him, and ultimately apprehended the petitioner in possession of the stolen merchandise. The State also had within

its arsenal the petitioner’s confession since, as above-referenced, c ounsel had been unable to ascertain valid grounds for the suppre ssion thereof. Faced with these facts, former counsel acknowledg ed that he had continued a ttemp ting to negotia te a plea even after the completion of jury selection

. Recei ving a two-year reduction in the-7-

previous offer, counsel relay ed this to the petitioner, who “somewhat reluctantly agreed” to acce

pt it. This witne ss noted th at the pe titioner’ s main concerns ha d been ple ading g

uilty to a coca ine case involving a co-defendant

and to the rape case. Nevertheless, counsel had explained to the petitioner tha t t he petitioner could potentially receive a twenty -year sentence upon conviction for only the aggravated

robbery count in the proce ss of bein g tried at that time

and that t

his sente nce could be ordered to be ser ved cons ecutively

to the twelve-ye ar sentence that the petitioner had received for the previous aggravated r obbery conviction. Counsel admitted that he had not spent a great deal of time prepar

ing a de fense to the rape case since, amon g other

consider ations, the State had indicated that it would be the last tried. Former counsel acknowledged that the rape case was not strong and stated that he had attempted to convince the prosecution to dismiss the rape charg e only to be informed that if the petitioner wanted the offer, the petitioner would have “to plead to every

thing.” We also note former

counsel’s testimony that he had explained to the petitioner the available options and the details of the plea, including the fac t that the s entence on the ra pe offe nse would

be served at one hundred per

cent. For the purposes of this app eal, we also find portions of the transcript recording the petitioner’s guilty pleasto be relevant. With regard to the petitioner’s aforementioned alleged lack of knowledge that

he would not b e eligi ble fo r parol e on th e rape co nvict ion, the fo llow ing ex change took place b etween the pe titi oner an d the j udge pr esidi ng over the gui lty plea p roceed ing:

[Judge:] Now, although . . . you’ re pleading to Range One of rape, it’s also as

a violentoffender so y ou don’t get thirty pe rcent there. You get 100 percen t. You hav e to do tha

t eight y ears. D o yo

u underst and that? [Petitioner :] Yes, sir. [Judge:] You don’t ge t parole for it. No w y ou could g et possibly up to fifteen percent behavior credits o f good time if you’re g ood, but you won’t

ever me et parol e board o n the rap e case. You under stand tha t? [Petitioner :] Yes, sir. [Judge:]

. . . the eight y ear sentence is at 100 percent . . . a total of twenty -six ye ars, eight ye ars of which is at 100 percent, t he rest at thirty-f ive percen t. Is th at your un derst andin g? [Petit ione r:] Yes, sir. We further note the following exchange c oncerning counsel’s represe ntation: [Judge:] Is there any thing about [your attorney ’s] re pres entation that causes you some conc ern? Is t here a nyt hing – a re y ou enter

ing this g uilty plea because he’s not

ready for tria l or beca use he wo n’t talk

to you or any of those a

ttorney problems ? [Petitioner :] No, sir. [Judge:] Okay. You feel like he’s done a good job in representing you? [Petit ione r:] Yes, sir. [Judge:] Has he subpoenaed or calle d every

witness y ou wante d him to in the case? [Petitioner :] Yes, sir. [Judge:] As far a s you know, y ou-all we re rea dy f or trial t oday . Is th at righ

t?5 A var iety of de tails from the po st-conv iction he aring c all into q uestion the pe titioner’s cr edib ility.

-8- [Petitioner :] Yes, sir. [Judge:] Okay . Any complain ts at all? [Petit ione r:] No, sir. [Judge:] Is there anything e lse about this plea that you want to talk to m e about, any

thin g that you’re dissatisfied a bout, anything that y

ou’re upset abo ut? [Petitioner :] No, sir.

After reviewing these and other facts presented in the record, we find that the petitioner

has again failed to show that h

e is entitl ed to relief. Thou gh the p etitioner asserts t hat he did not believe that the trial court would listen to complaints about former counsel, we still find it significant that the petitioner voiced

no compla

int about f

ormer c ounsel’s repres entation at the time

of his ple as. 5 Furthermore, while former counsel conceded that the rape case was the prosecution’s weakest case, counsel had stressed to the petitioner the strength of other State cases. In addition to other damaging proof, the rec ord sug gests th at the pe ti tio ner had g

iven six sep arate c onfessio ns. Former counsel candidly admitted that he had not engaged in much preparation for the rape case pending at the time, in part because the prosecution had indicated that it would be the last of the series to be tried. However, counsel w as clea r with the peti tioner that pros ecution’ s twenty -six-year off er was o nly availab le if the petitioner pled guilty to the rape and that the potential effective sentence that the petitioner could receive upon conviction for the o ffen ses in

volve d gr eatly e xcee ded t he tw enty-sixyear offer. As above-noted, because of the possibility of hi s receiving a longer e ffective sentence, the petitioner admitted during the post-conviction hearing that he would not wa nt to face trial and
sentenc ing on e ach of th

ese cas es were

the trial court to s et aside

his pleas

. Caselaw is clear that for a petitioner to prevail when c l aimi ng t hat ineffective assistance resulted in his or her pleading guilty , “the petitioner must prove

that coun sel perf

ormed deficientl

y and that but for counsel’s errors, the petitioner would not have pled guilty and would ha ve insisted upon going to trial.” Michael Edmondson

v. State, No. W2002 -002 70-CC A-R3 -PC, 2 002 WL 31625087, at *5 (Te

nn. Crim. App. at Jac

kson, Nov. 20, 2002) ; see also Hill v. Lockhart
, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L . Ed. 2d 203 (1985). U nder this set of facts and even assuming that former counsel had provided de ficie nt performance, we remain unconvince d that the petitioner would not have pled guilty . Since the petitioner has failed to prove by clear and convincing evidence both prong s of the te st for ineffectiv e assista nce of c ounsel, th

is claim a lso lacks merit.

Conclusion

For the fore going reasons, we conclude that the petitioner’s claims merit no relief. Accordingly , we AFFI

RM the lower court’s judgment.

___________________________________ JERRY L. SMITH, JUDGE