### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs J

uly 11, 2001 BOBBY J. ARMSTRONG v. STATE OF TENNESSEE Direct Appeal from the Circuit Court for Madison County

No. C00-237 Roy B. Morgan, Judge

No. W2000-02598-CCA-R3-PC - Filed July 19, 2001

The Appellant , Bobby J. Arms trong, appeals from thedismissal of his petition for post-conviction relief. Armstrong’s co

nvictions stem from

his guilty pleas to two counts of felony murder and two resulting consecutive sen tences of life wi

thout the possibility

of parole. In this appeal, Armstrong raises the following issues for our re view: (1) whethe

r the guilty

plea was knowing

ly, intellig

ently andvoluntarily made; and (2) whether trial counsel was inef fect ive for failing

to request a competency

hearing to determine Armstrong’s mental condition. After review, we find Armstrong’ s guilty plea was knowing, intelligent and voluntary and that he rece ived effective as sistance o f counsel. As such,

we affirm the jud

gment of the Madi

son County Circ

uit Court. Tenn. R. App. P. 3; Ju

dgment of the Circ

uit Court is Affirme

d.
D AVID G. H AYES , J., d elivered the opinion of the court, in which J ERRY L. S MITH and A LAN E. G LENN , JJ., joined. Ramsdale O 'DeNeal, Jr ., Jackso n, Tennesse e, for the Ap pellant, Bo bby J. Armstr ong. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor Genera l; J. Ross Dyer, AssistantAttorney Ge

neral; Al Earls, A

ssistant District At

torney Gen

eral, for the Appellee

, State of Tennessee.

OPINION Factual Backgrou

nd On September 4, 1997, Madison County Police Officers found the bodies of victims, Doris andDelois Turner, in

side their home. The cause of dea

th was determined

to be blunt force t

rauma to the head. The victims often hired the App ellant to do “handy-man work” around their home. After questioning from the police, the Appellant confessed to the crimes, explaining that he went to-2-

the Turner residence

to borrow $20 to pur

chase crack c

ocaine but after

he saw that the vic

tims had more than $20 he decided to “ get it all.” The Appella nt then blu dge one d the victims to death by striking them multiple times in the head with

a hammer. Testimony indicated that the Appellant’s prev ious history inclu

ded fourteen fe

lony convic

tions and, at the time

of the offenses,

he was o n probation. Following indict ments for two coun

ts of felony murder, the State gave notice of its intent to s eek t he d eat h pe nal ty. ANALYSIS
In order to succeed on

a post-conviction claim, the Appellant bears the bu rden of show ing, by c lear and co nvincing evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-210(f). When this court undertakes review of a lower court's decision on a petition for post-conviction relief, the lower court's findings of fact are given the weight of a jury verdic t and are conclusive on appeal absent a finding that the evidence preponderates against the judg ment. State v. Keith , 978 S.W.2d 861, 864 (Tenn. 1998). Thi s court may n

ot reweigh or r

eevaluate the evidence orsub stitute its inferences for those drawn by the post-conviction court. Further, ques tion s concerningthe credibility of witnesses and the weight to be given their testimony are for resolution by the post-conviction court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). A. Knowing, Intelligent and Voluntary
In the present case, the Appellant first contends tha t hi s pl ea wa s no t “k now ingl y, intelligently

and voluntarily made, and that he did not have an unde r standing of the nature of the charges and the consequences of his plea.” Specifically, the Appellant asserts that his guilty plea was the “result of ignorance due to his limited intelligence and mental retardation.” When determining whe

ther a guilty

plea was knowing

and volunta

ry, this court must look to the totality of the circumstances. State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App.1995). The established test f

or determining t

he validity

of the guilty

plea is "whethe

r the plea repre

sents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill v. Lockhart , 474 U.S. 52, 56, 106 S . Ct. 366, 369 (ci ting North Carolina v. Alford , 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970) ). In order f

or a plea to

be deemed

knowingly and voluntarily entere d, an accused must be informed of the rights and circumstances involved and ne v ertheless choose to waive or relinquish those rights. State v. Mackey , 553 S.W.2d 3 37, 3 40 (Tenn.1977). Post-conviction relief may

only be gr

anted if a convic

tion or sentence i

s void or voidable b

ecause of a violation of a constitutional right. See Tenn. Code Ann. § 40-30-203. At the hearing, the post-conviction court found the App ellant's guilty plea to have been kno win gly, voluntarily and intelligently mad e. In denying th

e Appellant’s pe

tition, the postconviction court r

easoned as follow

s: As to coercion or pressure, the Court finds speci fic all y that the defendant had discussions with his attorney and with those assisting de

fense counsel,

even coming1 The defense team experts includ ed the head of the Vanderbilt forens ic psychiat

ry department,

a clinical psycholog ist, a neurolog ist and a pha rmacolo gist. -3- from Nashville, a cap

ital case specia

list for example, to

make sure that this

defendant hada thorough understanding of the charges against him, the offer being made by the Stateand the alternatives of going to trial versus entering the plea ag reement. There’s been no indication today by clear a nd convincing evidence that this petitioner didnot unde rstand wha t he was doing, nor did he enter a plea merely bec ause of being pressured or co

erced. The tra

nscript which is

an exhib it to this proceeding today indicates very

clearly th

at the court we nt over with this def endant his rights which included the

right to continue

with a not guilty

plea and procee

d to trial.
We agree with th e post-conv iction cou rt’s reason ing and also find the Appellant’s petition to be without merit. The record indicates that the trial court

questioned the Appellant extensively as to whether his plea was made with knowledge and understanding. When asked if h e was satisfi ed with his counsel's performance, the Appellant replied that he was satisfied. At the post -convicti on hearing, the Appellant offer

ed no expert proof

as to the extent of his

limited intelligen

ce. Although the Appellant now argues that his “mental condition” prevented him from making a knowing, intelligent and vo luntary plea, the record indicates that trial counsel consulted numerous experts who concluded that the Appellant, who had “some mental retardation,” was more than c apab le of understanding r ight fr om wrong, the pro

ceedings aga

inst him, and the con

sequences of his

decisions. 1 Add iti ona lly, trial counsel testified

that he spent “mor

e time with [the Appe

llant] than [he] would ha

ve on just a run-of-the-mill

case.” Although the Appellant testified that he felt “scared” and

“pressured,” h

e also testifiedthat he understood his attorney and the charges ag ainst hi m. Ev en more importantly, the trial court explained the

possible sentencing ranges to the Appellant, who stated that he understood his options, before accepting his p lea. We conclude

that the record f

ully supports the findings of the post-conviction court which found that the Appellant failed t o prove, by clear and convincing evidence, that his guilty

plea was e

ntered in to without knowledg e, intelligence

or voluntariness.

This issue is without meri

t. B. Ineffective Assistance of Counsel
To succeed in a challenge for ineffective assistance of couns el, the Appellant m ust demonstrate

that counsel’s representation fell below the rang e of c omp ete nce d ema nde d of att orn eys in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v. Washi ngton , 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984), the Appellant must establish (1) deficient representation and

(2) prejudice resulting from the deficiency. A reviewing court need not consider the two prongs of Stricklandin any particular order. Strickland v. Washington , 466 U.S. at 697, 104 S. Ct. at 2069. Furthermore, if the Appellant fails to establish one prong, a reviewing court need not consider the other. Id. The issues of deficient performance by counsel and possible-4-

prejudice to the defense are mixe d questions of law a

nd fact; thus,

our review of this

case is de novo

. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). The Appellant conten

ds that trial counse

l was ineffectiv

e for failing to

move the trial court for a competency hearing to determine the Appellant’s menta l condition. Specifically, the Appellant contends that because Dr. Wilson’s report concluded that he had “some me ntal retardation,” trial counsel was ineffective

for neglecting to request a competency hearing. We disagree. At thepostconviction heari

ng, the trial cou

rt found trial cou

nsel to be effec

tive and reasone

d as follows: The court so finds, thatthere was a thorough investigation on behalf of this case by [trial counsel], numerous visits with the defendant, and more importantly, the court finds that defense counsel made every effort to obtain the experts’ ev alu ations and reportsnecessary to make a fair evaluation of this case . There were numerous experts ranging from

pharmacologist

s to mitigation sp

eci alists, to clinical psycholog

ists, notlimited just to those three categories but numerous ones employed on behalf of the [Appellant]. The court finds clearl y that the defendant had competent and ef

fective counsel

that did their job an

d did it well. Trial counsel petitioned the court for several experts whoexamined the Appel lant prior to

the plea hearing. All of these experts agreed that the Appellant was competent to stand trial. Although Dr. Wilson’s report did indica te some retarda

tio n, the repor t also indicated that the Appellant was capable of making clear judgments and could decide between right and wrong . As such, we do not find trial counsels’ decision against requesting a competency hearing to be deficient. Because the Appellant failed t o pr ove the first prong of Strickland , we need not consider t he second pr ong. Strickland v. Washington , 466 U.S. at 697, 104 S. Ct. at 2069. As the trial court properly concluded, trial counsel provided an effective representation

and was in

no manner defici

ent. This issue is al

so without merit. CONCLUSION
We find that the Appellant knowingly, intelligently and voluntar ily entered

his plea of guilty to two counts of felony murder and that trial counsel wa s not deficientfor failing to re quest a competency

hearing. Acc

ordingly, we affirm the jud

gment of the Madi

son County Circ

uit Court.

___________________________________ DAVID G. HAYES, JUDGE