### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs A ugus t 26
, 200 8

LAV ON MA RIO D AV IS v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr iminal Cou rt f or Knox County No. 78216 Mar y Beth Leibowitz, Judge

No. E2007-02797-CC A-R3- PC - Filed February 12, 2009

The pe titioner, Lavon Mario Davis, appe als the denia l of post-conviction rel i ef by the Criminal Court for Knox Count y from his convictions for second degree murder and attempted first degree

mur d e r , b o thCl a s s A f

e lo n ie s

. H e w a s s e n te n c e d to tw e n ty y e ar s f o r th e s e c o n d d e g r e e murder conviction and twe nty-five ye ars f or the at t em p t ed first degree murder c onviction, to be serve d

consec utively, for an e ffe ctive sente nce of forty-f ive yea rs. He c ontends that: he re ceive d ineffe ctive assistanc e of c ounsel; the trial court lacked a uthority to a cce pt the guilty plea to second de gr e e mur de r; a ndthe tr ia l c ou rt la c ke d a su ff ic ie nt f a c tua l ba sis to a c c e pt h is g uil ty p le a to

a tte mpt e d f

ir st d e gr e e mur de r. W e a ff ir m th e jud gme nt f

ro m th e po st- c on vic tio n c ou rt

. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J OHN E VERET T W I L L I AMS , J., delivere d the opinion of the court, in which R OBER T W. W EDEMEYER
a ndJ. C. M C L IN , JJ., joined.

Al be rt J. Ne wm a n, Jr
., Kn ox vil le , T e nn e sse e , f or the app e lla nt, La vo n M ari o D a vis

.
Rob e rt E. Coo pe r, Jr
., At torne y G e ne ra l a ndRe po rt e r; Re ne e W

. T u rn e r , A s s i sta nt A tto rn e y G e ne ra l; Randall Eugene Nichols, District Attorney Genera l; and Kevin J. Allen, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

Duri ngthe po st- c on vic tio n he ari ng , the pe tit ion e r te sti fi e d that his c ouns e l r e pr e se nte d h im fo r a pp ro xima te ly fo ur y e ars wh ile his matte rs we re pe nd ing . H e sa id h e wa s in ja il f ro m 19 98 un til he made a bond in J une 1999. The petitioner estimated that he me t with counsel six times during that period. When c ounsel was appointed, the petitioner was only fac ing a single char g e of f elony murder.

Duringhis init ial meeting with counsel, he told c ounsel that he wa s “ridin’” with two other people whe n they

decide d to rob the vi ctim. One of the m en with him had done y ard work for the vic timand

kn e w “ that th e man ha d mone y .” Th e pe tit ion e r te sti fi e d that he wa ite d outs ide the ho us e-2-

while an a ssociate, “Mr. Siler,” went inside the house. The petitioner hear d a gunshot after no more than five se conds.

Th e pe tit ion e r te sti fi e d that the y on ly pla nn e d to ro b the vic tim ; the re wa s n o p lan to c a us e injury to the victim. The petitioner said that he did not supply the g un to the shooter but was a war e that “Mr. Siler” had a gun when he enter ed the house

.
Th e pe tit ion e r s a id t

hat c ouns e l ne ve r s ho we d h im any pa pe rw or k a nd did no t e xpla in any thing to him. He said counsel did not tell him about lesser included offe nses. Th e p et itioner testified that counse l only discussed that the State ha d made a plea of fer . He sa id that he told counsel that he could not plead to second deg ree murder be cause he wa s not guilty and had not shot anyone. He testified that counsel had not e x plained th at h e d i d n o t have to be the shooter to be guilty of felony murder.

Th e pe tit ion e r t e sti fi e d th a t, i n 2 00 2, he was c ha rg e d w iththe se c on d c ri me , atte mpt to commit first deg ree murder. He also discussed the fac ts of that case with counsel. The pe titioner told counsel that he wa s just “standin’ out” and “d oin’ nothing” with four other s when he asked

so m e o n e f

o r s o m e “ w e e d

. ” T h e y “ c o n t i nu e d t o d o n o t h i n ” u n t i l t h e v i c t i m i n t h e a ssaultc a se stopped his car

near thei r gro u p

. One of

the men appr oache d the victim’s car and talked w ith the victim for appr ox imatel y t wo m inutes befor e he a sked the pe titioner to come over . He discusse d

“ w e e d ” w i t h t h e v i c t i m , b u tt h e v i c t i m d i d n o tw an tt o s e l l h i s “ w e e d

. ” A f t e r t h e v i c t i m dr o v e aw ay, the four me n followed him in their ca r. They g ot the v i ct i m t o pull over, and the petitioner approa c h e d h is c ar to g e t s o me ma r ij u an a

. O n e o f h is g r o u

p a ls o a p p r o a c h e d th e c ar , p r o d

u ced a g un, and told the victim to “g ive him the wee d.” The victim tried to drive off, and the petitioner’s friend shot him. The pe titioner said that, initially , the victim drove stra ight but we nt off cour se and

ran into a ditch. The petitioner said he argued with the shooter and then told one of t h e v i ct i m’s friends to c all for he lp.

Th e pe tit ion e r s a id h e did

no t sh oo t th e vic tim bu t e nte re d a g uil ty ple a to a tte mpt to c omm it first deg ree murder on a dvice of counsel. Couns el advised him that, based on the s tate’s offer , he had to plead guilty

to both charg es or take them both to trial.

The petitioner asked for differ ent counsel be cause they wer e not workingwell tog ether . He testified that the cour

t told him he would not be appointed another attorney . The pe titioner filed a complaint with the Boa

rd of Profe ssional Responsibil ity . He sa id counsel conf ronted him about the complaint and told him that the judge would not remove him fr om the case

. The pe titioner said counsel wa s not prepar ed to proc eed to tria l on either c ase. He said he knew that, if he was succe ssful in his post-conviction, he could be rec harg ed and mig ht rec eive more time than he wa s serving

. Duringcross-e x amination, the petitioner said his charg e par tner fr om the felony

murder of fe ns e we nt to tri a l and

re c e ive d a

lif e se nte nc e . T he pe tit ion e r a g re e d th a t he ma de a state me nt t o-3-

some in v es t igators of the Knoxvill e Police De partment indicating that he was involved a s the lookout in the robbery

that resulted in the homicide of the first victim. The petitioner sa id he thoug ht counsel wa s n o t p re p ar ed for tria l beca use counse l asked him to plead guilty even thoug h he wa s innocent. During redire ct examination, the petitioner said he did not know of any one else who was tried or c onvicted of the attempt to commit first deg ree murder w ith reg ard to the inc ident involving the se c on d v ic tim

. The pe titioner’s counsel testified that he met with the petitioner while he was in jail but saw littl e of him whe n he wa s out on bond. Wit h reg ard to the petitioner’s statements, counse l said that “just about eve ry

thing he said is 100% corr ect.” He testified that he believe d the petitioner kne w that he could be convicted of

felony murder just by being a lookout in the robbery . He sa id he neg otiated the second deg ree murder plea beca use it would be less time tha n felony murder which ca rried the possibili ty

of a life sentenc e. Couns el s ai d t h at based on the petitioner’s c onfession and the codefe ndant’s conf

ession, it was unlikely

that a jury

would find him not guilty of fe lony murder.

Counsel rec alled that the pe titioner maintained he was not at the victim’s car in the attempt to commit first deg ree murder c ase. Howeve r, i t was later reveale d that the petit ioner’s pa lm print

was on the victim’s c ar. He r eca lled there was a discrepa ncy as to who ac tually

shot the victim. He

sa id t hat th e a tte mpt

c a se wa s mo re ne g oti a te d as a me ans of g e tti ng the oth e r ca se do wn fr om f ir st degre e fe l o n y

murder. Counsel testified that the fac t that the petitioner wa s on bond when he committed the second c rime pre vented discussion on conc urre nt sentence s for the pe titioner.

Couns e l sa id t

he pe tit ion e r d id n ot l ike wh a t he ha d to te ll h im b e c a us e it w a s n ot g oo d n e ws

. Counsel said he could not c hang e the fac ts: the victim wa s dead, the petitioner c onfesse d, the codefe ndants confe ssed, and they all ag ree d that the petitioner was the lookout. Counsel testified he would still rec ommend the petitioner not take the felony murder case to trial. He sa id the other c ase, the attempt to commit first deg ree murder, w as not as bad but that they would not ge t the felony murder c harg e wor

ked out without a plea a g ree ment in both cases.

Following the hea

ring , the post-conviction cour t took t h e m att er unde r adviseme nt before i s s u i n g wr i t t e nf i n d i n g s

. T h e c o u rtf

o u n d t h a tt h e p e t i t i o n e r

e n t e r e d h i s p l e a k n o w i n g l y, i n t e l l i g e n t l y, and voluntaril y

. T h e co u rt furthe r found that c ounsel’s re prese ntation was within the rang e of competenc e dema

nded by attorney s in criminal case s.

An a ly sis

First, we consider w hether the trial court err ed in dismissing the petition for post-conviction relief in which the petitioner a lleg ed that counsel wa s ineffe ctive re gardin g h i s g u ilty plea. To sustain a petition f

or post-conviction relief

, a defe ndant must prove his or her fac tual allegations by

c le ar a nd c on vin c ing e vid e nc e a t a n e vid e nti ary he ari ng . T .C. A. § 4 0- 30 -1 10 (f ) ( 20 06 ); Momon v

. State, 18 S.W.3d 152, 156 (Te n n . 1999). Upon re view, an a ppellate c ourt will not reweigh or

ree valuate the evidenc e below; a ll questions concerning the cre dibilit y of witnesses, the w eight and value to be give n their t estimony, and the fac tual issues raised by the evidenc e ar e to be r esolved by the trial judge, not the a

ppellate c ourts. Momon , 1 8 S. W .3 d a t 15 6; He nle y v . S tat e , 960 S.W.2d 572,-4-

578-79 (Te nn. 1997). The trial court’s f indings of fac t on a petition for post-con v i ct i o n relief are aff orded the weight of a jury verdic t and are conclusive on appea l unless the evidenc e pre ponderates

a g a in s t th ose findings

. Momon , 1 8 S. W .3 d a t 15 6; Henley , 960 S.W.2d at 578. The c ourt’s application of the law to the fa cts, howeve r, is revie wed de novo without a n y presumption of

corr ectne ss. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999) . Post-conviction relief ma y only be gr a nte d if a c on vic tio n o r s e nte nc e is v oidor vo ida blebe c a us e of

a vio la tio n of a c on sti tut ion a l r igh t. T.C.A. § 40-30-103 ( 2006).
For a petitioner to succ essfully overturn a convic tion based on ineff ective a s s i s t an ce of counsel, the petitioner must first establish that the service s rende red or the advice given was be low “t h e ra n g e of competenc e dema nded of attorneys in criminal ca ses.” Ba x te r v . R os e , 523 S.W.2d 930, 936 ( T e n n

. 1 9 7 5 )

. Se c o n d
, th e p e ti ti o n e r mu s t s h o w th a t th e d e f ic ie n c ie s “ a c tu a ll y had an adver se ef

fec t on the defe nse.” Strickland v. Washington , 466 U.S. 66 8
, 693, 104 S. Ct . 2052 (1984). A pe titioner must establish both prongs of the test to prevail on a cl aim of ineff ective assistance of counse l.

In Hi ll v . Lo c k

ha rt , 474 U.S. 52, 106 S. C t. 366 (1985), the Supre me Court applied the twopa rt Strickland standard to ine ffe ctive assistance of counsel claims arising out of a guilty plea

. The Court in Hi ll mod if

ie d th e pr e

judi ce requ ir e me nt b y r e qu ir ing a pe tit ion e r t o s ho w tha t th e re is a

re a so na ble pr ob abil ity that, b ut f or c ou ns e l’ s e rr or s, he wo uldno t ha ve ple a de d g uil ty andwo uld ha ve ins ist e d o n g oin g to tr ia l. 4 74 U. S. at 59 , 1 06 S. Ct . a t 370; se e als o Ni c ho ls v . S tat e , 90 S.W.3d 576, 587 (Tenn. 2002)

.

He re , th e pe tit ion e r c on te nd s th a t c ou ns e l w a s in e ff e c tiv e in thr e e are a s: ( 1) he fa ile d to explain the e lements of fe lony murder a nd second de g re e m u rder ; (2) he f ailed to advise the petitioner about his case ; and (3) he failed to discuss possible theorie s of def ense. The State argue s t h at the petitioner ha s failed to demonstrate either that counsel wa s deficie nt or that the petitioner suffe red a ny prejudice

. During the post-c onviction hearing, counsel testified that he discussed t he charge s and the petitioner’s options with him prior to e ntering the guilty plea

. Counsel te stified that the petitioner might have had a

defe nse to the cha

rge of attempted first de gree m u rder but the plea a gree ment offe red did not allow for

a plea to one charge while proce eding t o trial on the other c harge . It was one plea offe r that enc ompassed both cha rges. Counsel t es t i fi ed that he would still advise the pe tit ion e r t o ta

ke the ple a

a gr e e me nt r a the r tha n p ro c e e d to tr ia l a nde xp os e him se lf to the po ssi bil ity of a life sentenc e.

Our re view re flec ts that the petitioner ha s not met his burden of demonstrating that counsel’s repr esenta tion was defic ient. Further, he has not demonstrated that he was pr ejudiced by c ounsel’s repr esenta tion. He ha s not provided any e vidence to support his contention that he would not have pled guilty or insist ed on going to trial. The r ecor d ref lects that the pe titioner told the trial court he understood his plea a gree ment at the time he enter ed his ple a and that he w as satisfied with counse l’s

re pr e se ntatio n. He te sti fi e d a t th e po st- c on victio n hear ing that he ple d g uil ty b e c a us e the Sta te would not allow hi m to plead on one charge and procee d to trial on the ot her. The petiti oner is not entitled to any re lief on this issue.-5-

Next, the pe titioner argue s that the trial court erre d in acc epting a plea of guilty to second degre e murder a s a lesser

included off

ense of first degre e fe lony murder. The offe nse occ urre d on Fe br ua ry 19 , 1 99 8, be fo re se c on d d e gr e e mur de r w a s c on sid e re d a le sse r i nc lud e d o ff

ens e of fi rs t degre e f el o n y m u rder. Specifica lly, the petitioner argue s that the trial court did not have the authority to acc ept the guilty plea.

The Te nnessee Supreme Court conclude d that second de gree murder w as a le sser include d offe nse of felony murder in the decision of Sta te v . Ely , 48 S.W .3 d 710 , 723 (T e nn . 200 1)

. It is w e ll settled that the hol ding in State v. Ely app lie s re tr oa c tiv e ly to c a se s th a t w e re e ith e r i n th e “ app e llate pipeline” or

pending at the ti m e the de cision was announc ed. State v. Frede rick Morrow , No. M2005-00554-CCA-R3-PC, 2006 Tenn. Crim. App. LEXIS 541, at *33 (T enn. Crim. App., at Nashville, July 11, 2006) (c iting State v. Stoke s , 24 S.W.3d 303 (Tenn. 2000) ). The pe ti t i o n er enter ed his plea on September 25, 2002, w hen the holding in El y wa s app lic able

. Th e pe tit ion e r i s not entitled to relief on this issue.
Next, the pe titioner argue s that the t rial court did not have a sufficie nt fac tual basis to acc ept his plea for

attempt to commit first degre e murder and, there fore
, should not have a cce pted his plea. This court has prev i o u s l y conclude d that lack of a fa ctual basis for

a guilty plea is not a basis for post-conviction re lief. Po we rs v . S tat e , 942 S.W.2d 551, 555 (Tenn. Crim. App. 1996). This court ha s a lso c on c lud e d th a t a “ de fe nd a nt wh o ac ts in his ow n be st inte re st, vo lun tari ly a ndint e lli ge ntl y ple a din g g uil ty t o a

c ha rg e fo r w hic h th e re is l itt le fa c tua l f ou nd a tio n, a ndwa ivi ng a ny ob je c tio n to the cha rge, a nd who later

attempts to attack the ple a for whi ch h e b ar g ained, ha s no basis for a

c on sti tut ion a l c ha lle ng e to the c on vic tio n. He ha s, a t be st, inv ite d e rr or , a nd , a t wor st, a tte mpt e d to manipulate the court.” Ke nn eth Kno x Ga dd is v . S tat e , No. 03C01-9303-CR-00064, 1994 Tenn. Crim. Ap p. LEXIS 1, *11 (Te nn. Crim. App. Jan. 4, 1993), perm. to app. denie d (Tenn. Ma y 25, 19 94 ). Th e pe tit ion e r v olu nta ri ly, int e lli ge ntl y, a ndkn ow ing ly e ntered a p le a of gu ilt y b e c a us e it was to his advanta ge. He is entitled to no relief on this issue.

Conclusion

Ba se d o n th e fo re go ing a ndthe re c or d a s a wh ole, we a ff

ir m th e jud gme nt f

ro m th e po stconviction court.

___________________________________ JOHN EVE RETT WILL IAMS, JUDGE