### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE July 15, 2003 Session MATTHEW BRUCE HEN DERSON v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Davidson County No. 2000-D-2031 Cheryl Blackburn, Judge

No. M2002-02501-CCA-R3-PC - Filed August 14, 2003

The petitione

r, Matthew Bruce

Hender son, appe als the de nial of hisp etition for post-conviction relief. The petitioner originally entered best interest guilty pleas to two counts each of rape o f a child, aggravated sexual battery , and statutory rape , and received an effective sent en ce of tw en tyfour years. O n appeal, the petitioner contends (1) he rec eived i neffective assis tance of counsel in entering his pleas; (2) the trial court erred in failing to hold a competency hearing prior to accepting his pleas; and (3) his guilty ple as were not knowingly and voluntarily enter

ed. Upon review of the record and appli cable la

w, we af firm the j udgmen

t of the po st-convi ction cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., deli vered t he opinion of the court, in which J OE G. R ILEY and T HOM AS T. W OODA LL , JJ., joined. Charles E. Walker, Nashville, Tennessee, for the appe llant, Matthew Bruce Henderson. Paul G. Summers , Attorne y General and Report er; Elizab eth B. Ma rney , Assistan

t Attorne y General ; Victor S. Johnson, III , District

Attorney Gene

ral; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION The petitioner was originally char ged with s ix counts of rape of a child, six counts of aggravated

sexual bat

tery , four co

unts of rape where the victim was mentally defective, four

counts of statutory rape, a

nd two counts of especially aggravated sexual

exploitation of a minor. See Tenn. Code Ann. §§ 39-13-503(a)(3) (rape of a mentally defective victim); -504(a) (aggra vated sexual battery); -506(a) (statutory rape); -522(a) (rape of

a child); -17-1 005(a) (especially aggravated sexual exploitation of a minor). The petitioner entered best interest guilty pleas to two counts each of ra pe of a c hi ld , a Cl as s A fe lo ny; ag gr av at ed se xu al ba tt er y, a Cl as s B fe lo ny; and statutory rape, a Class E felony. See id. § 39-13-5 04, -506, -522. Pur suant to the plea a greem ent, the p etiti o ner receiv ed an ef

fective sentenc e of twen

ty- four y ears.-2- FACTS According to the facts presented by the State at the petitioner’s plea hearing, the

petitioner was the mana

ger of an apar tment comp lex where

the victim s ’ family res ided. The three vi ctims were sisters, ranged

in age from six to thirteen, and were all disabled or mentally retarded to vary

ing degre es. The petit

ioner pa id the victims to clean vacant apartments, and the victims had to go to the petitioner’s office, where the incidents occur red, in order to obtain the work.
At the post-conviction relief hearing, the

petitioner testified trial counsel met with him once at the Criminal Justice Center ( “CJC”) for approxima

tely five to te n minutes. Durin g this meeti ng, trial counsel provided the petitioner with the indictment and a list of the ranges of punishment for eachoffen s e. The pe

titioner s tated counsel did n ot provide him with disc overy

materia ls prior to entering the pleas. He maintained that the discovery materials were proof of his innocence, a nd, had he been provided with the documents prior to the plea hearing , he would not have entered the plea s. The petitioner testified trial counsel informed him that the State had an audiotape rec ording of his confession to the police. He denied confessing to the police. The pe titioner further stated he listened to the audiotapes prior to the post-conviction hearing, and he did not hea r a confession on the tape s. The petit ioner te stified tr

ial couns el did

not discuss defense strategies or tactical decisions withhim. He cl aimed counsel inf ormed him

t hat beca use he co nfessed , he would be convicted if the case went to trial. The petitioner stated trial counsel met with him at the courthouse

to discuss a possible

plea. He recalled that the

State fir st offer

ed forty -six y ears but

eventua lly r educed th e offer to twenty-four y

ears. The petitioner was then gra nted a one-wee k continua nce in or der to discuss the plea with his wife. The petition er testif

ie d that when he entered the pleas, his mind was “all scre wed up” because his medication had been changed. The petitioner stated he suffers from depression, bipolar disorder, and diabet es and has pro blems with his heart and lungs. The petitioner testified that altho ugh he had sta

ted durin g his ple a hearing that h e was tak ing Zo loft, his me dicatio n had be en changed prior to the plea hearing, and he had be en taking Celexa instead. He further stated that at the time he en

tered the pleas, he was no longer taking Depakote to trea t his bipolar disorder and, as a result, w as not “th

inking r ight.” T he petitio ner testi fied he w as unable to unders tand the “ full circumst ances”of plead

ing gu ilty because of “stre ss” and “ nerves” and part ly b ecause

of his medication. He stated that, without the medication, he was on the “verg e of a nervous breakdown.” Byron Grizzle, the records manager for the Davidson County Sheriff’s De partment, testified the petitione

r’s visita tion rec ords indic ated tria l counsel vis ited th e petitioner at the CJC on one occasion for approximately thirty -five minut es. G rizz le further stated the department did not maintain records of meetings between tria l counsel and the petitioner which oc curred at the courthouse. DeborahMcDonal d, the hea lth se rvices administrator at the sheriff’s department, testified that the petitioner’s medical records indicated he was taking various medicati ons for me ntal hea lth-3-

problems during h

is incarc eration

at the CJC. He

also met w ith a psy

chiatris ton sever

al occa sions; however, he was not diagnosed by the psychiatrist as suffe

ring from a specific mental health disease

. Trial counsel testifiedhe obtained discov ery from the S tate and

provided the petiti oner with discovery materials. He stated he reviewed audiotape s of the police interview with the p etitioner during which the

petitione r made se veral “ damning ” admissio ns. Trial counsel sta ted he did not file a motion to suppress the statements because, based upon what he heard on the audiotapes and the petitioner’s explanation of the circumstances under which the statements were give n, he beli eved th e s ta te me nt s w er e v ol un ta ry. Trial counsel testifiedthe audiotape revealed that the petitioner confessed to more offenses than were listed in the indictment. Whenever the petitioner m ade an ad mission on the audiotape, trial counsel wrote do wn the offense, the class of the felony , and the range of punishment. He discussed the confession with the petitione r. The pe titioner d id not act ually listen tothe audiotapes because CJC officials did not allow audiotape recorde rs to be bro ught inside the building. The discovery mate

rials also contained a sy

nopsis of the confession. Trial counsel testified he informed the petitioner that he had taken similar cases to trial, and, basedon his experience, a jury is more likely to convict a def en d ant on all counts listed in the indictmentrather than a select few. Counsel further told the petitione r the tria l court c ould impose consecutive sentenc es beca use the c aseinvolved multiple child victims and the mental condition of the victims would likely be an enhanc ement factor. Trial counsel testified he met with the petitioner on several occasions at the courthouse and once at the CJC. He stated the petitioner also frequently c alled him at his office to discuss the case. Trial counsel further stated he informed the petitioner of the progress of plea neg otiations and fully discussed his options and the evidence against him. He testified the St at e o ri gi na ll y of

fe re d a th ir tytwo-year sentenc e, but he s uccessf ully negotia ted a bes t interes t plea wit h a tw en ty- four-ye ar sentence. Trial counsel testified he and the petitioner discussed possible defense strategies. The petitioner advised h

im that due

to health problems and his me dic atio n, he was impotent. Trial counsel informed the petitioner that impotence would not be a defense to the cha rges which did not involve penile penetration. Counsel stated he did not interview any doctors or obta in any medical reports because the petitioner told him wha

t the doct ors’ test imony would be, and he had no reason to doubt the petitioner’s assertions. He stated he would have interviewed the doctors had the c ase been set for tria l. Trial counsel t

estified that the o nly

other pos sible def

ense witness w as the victims’ mother, who stated that

the victim of the child rape offenses frequently lied. He later discovered that on one occasion, the mothe

r had visited the pe

titioner’ s reside

nce acc ompanied

by o ne of the

victims, and the petitioner had taken nude photographs of the mother in the victim’s presence. Counsel opined that the mother would not have made a favorable impression on the jury

.-4-

Trial counsel testified he did notinterview the victims. He stated he believed an interview was unnecessary

at that time and, because the victims had been placed in a special home, arranging an interview would ha

ve been difficul t. Counsel o

pined tha t becaus e the vic tims were mentally impa ired, t he amount of information obtained from the interview would have likely been “negligible.” He acknowledged the victims’ statements containedcontradictions but believed them to be immaterial. Trial counsel stated he did not believe a mental ev aluat ion prior to the plea hearing was ne ce ss ar y. He stated that although the petitioner complained of depre ssion, he was “ver y lucid,” understood the proceedings and the charg es against him, and had no difficulties in com muni catin g. Trial counse l opined th at twenty -four y ears wa s the lowe st sentence upon w hich the St

ate would agree. Once the off er was made, the plea

hearing was continued once or twice to allow the petitioner time to fully consider th e offer . Trial c ounsel sta ted it was the petiti oner’s d

ecision to enter the pleas.
In its extensiv e writte

n finding s, the post-convic tion cour t found tr ial couns el met with

the petitioner on numerous occasions, spoke to him over the telephone, and permitted him to consider the plea offer prior

to the hearing. The court accredited trial counsel’s testimony that the petitioner calledhim at his of

fice on n umerous o ccasion s to discus s his case , and th at he provided the petitioner with all discovery

materia ls p rior to the plea hearing. The post-conviction cour t found the petitioner failed to show trial cou nsel was ineffective in fa

iling to meet, advise, or fully inform the petitioner and failed to establish that he was prejudiced. The post-conviction court found trial counsel was notineffective for failing to file a motion to suppress the petitioner’s confession to the police. The court specifically a

ccredited trial counsel’s testimonythat no g rounds to file a motion to suppress existed. The court further found that the petitioner failed to establish prejudice. The post-conviction court found trial counsel’s failure to interview expert medical witnesses did not constitute ineffective assistance of counsel. The court noted tha t trial counsel testified the petitioner informed him of his me dical co nditions a nd his impotence, and impotence would not be a defense to those sexual offenses in which penile pene tration w as not an e lement. T

he postconviction court further found that the petitioner failed to establish prejudice

. The post-conviction court also found no deficiency

in trial counsel’s failure to interview the victims, noting counsel’s belief that any information obtained from the mentally impaired victims would be negligible. Furthermore , the court accredited counsel’s opinion that the petitioner’s admissions were “damning” and would be diff icult to overcome with defense witnesses. The court noted that although the victims’ mother would have testified that one of the victims frequently lied, trial counsel did not interview her because he knew what her testimony would be, andhe believed she would be a poor defense witness due to her pa rticipat ion in a se xually graph ic photo shoot with the petiti oner in the prese nce of on e of the v ictims.-5-

Regarding trial cou

nsel’s fa ilure to r equest a mental health evaluation of the petitioner, the post-conviction court n oted that during the plea hearing, the trial court questioned the petitioner about hi s m ed ic at io ns an d w he th er th ey i nt er fe re d w it h h is ab il it y t o understa nd the pro ceeding s. The post-conviction court found that the petitioner’s responses indicated he knowingly entered the pleas. The cour

t noted tha

t at the po st-convi ction hea ring, th e petit ioner concede d his pleas were notinfluenc ed by

his medicati on, rathe

r “it was more nerves.” The post-conviction court conc luded the petitione

r did not receive ineffe ctive as sistance of counse

l, and he k

nowingl y a nd volunta

rily entere d his best in

terest pl eas. ANALYSIS

I. Ineffective Assistance of Counsel The peti tioner contends he received ineffective assistance of counsel in entering his be s t interest pleas. We disagree.

A. Ineffect

ive Assist ance of Couns el, Generally When a claim of

ineffe ctive as sistance

of counse

l is made under the Si xth Amendment, the petitioner bears the b urden of p roving (1) that counsel’s performanc e was deficient, and (2) the deficie ncy was pre judicial in terms of

render ing a re asonable

probabil ity that the result of the trial was unreliable or the proceedings were funda mentally unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984) . This standard hasalso bee n applied to the right to counsel under Article I , section 9 of the Tennessee Constitution. State v. Melson , 772 S .W.2d 417, 419 n.2 (Tenn. 1989). When a petitioner claims ineffective assistance of counse l in relation to a guilty plea , the petitioner must prove that counsel performed deficiently , and, but for counsel’s errors , petitione r would no t have ple d guilty but would

have, instead, insisted upon going to trial. Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).
In Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the services be rendered within the range o f compe ten ce d ema nde d of att orn eys i n cr im in al c ase s. In reviewing counsel’ s conduc t, a “fa ir assessment of attorney

performance requires that every e ffort be made to eliminate

the distorting effects of hindsight, to reconstruct the circ umstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. a

t 689, 104 S. Ct. at 2065 ; see Nichols v. State , 90 S.W.3d 576, 587 (Tenn. 2002). The petitioner bears the burden of prov in g b y clear and convincing evidence the factual allegations that would entitle petitioner to rel ief. Tenn. Code Ann. § 40-30-2 10(f). T his court is bound by t

he post-c onviction

court’s finding s of fac t unless the evidenc e preponderate s again st those findings. Fields v. State , 40 S.W.3d 450, 456-57 (Tenn. 2001). B. Failure to Meet with the Petitioner The petitione

r contends trial c ounsel wa s ineffe ctive in f ailing to adequa tely meet with him in order to

investig ate the c ase and a dvise him o f his option s. The petitioner maintains trial counsel-6-

met with him

only once at t he CJC and fa

iled to pro vide him with discove ry materia ls prior to the plea hearing. However, the

post-conviction court accredited trial counsel’s testimony that they met and discussed the case once at the CJC and on several other occa sion s at the cou rthouse, and that the petitioner frequently

called counsel at his office to discuss the case. Trial c ounsel further stated he provided the petitione r with discove ry materia ls prior to

the plea hearing , discusse d defens e strategies with him, a

nd fully advised h im of the a

pplicabl e law an d his option s. The evidence does not prepo nderate

agains t these findings.

C. Failur

e to Fil e a Motio n to Suppress The petitioner contends trial counsel was ineffective for failing to file a m

otion to sup

press his confession. However, the post-c onviction court accredited trial counsel’s testimony that the petitioner’s statemen

ts were v oluntary

and ther e was n o basis to file a motion. Furthermore, the petitioner failed to establish any

basis upon which the motion would have been granted had it been filed. Th is issue is without mer

it. D. Failure to Investigate The p etitioner next takes issue with trial counsel’s failure to interview the victims. Th e victims did not testify at the post-conviction hear ing, and we may

not speculate as to what the ir testimonymight have been. The petitioner has failed

to establi sh that inte

rviews w ith the vic tims would have impa

cted his pleas; therefore, the petitioner has failed to establish prejudice. See Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

E. Failure to Seek Expert Medical Witnesses
Fi na ll y, the petiti oner mai ntains tri al counse l was inef fective in failing to interview expert witnesses regarding his impotence. Howe ver, the petitioner failed to present an exper t witness a

t the post-con

viction re lie f hearing . Therefore, the petitioner has failed to establish pre judice. See id. Furthermore, trial counsel testified that although the petitione r informed him

of his impotence, counsel did not believe an interview with a doctor was necessary at that pointin time. Trial counsel also stated that impotence would be no defense to the offensesin which penile penetration was not an element. The post-conviction court found counsel was not deficient. The evidence do es not prepond erate a gainst t he findin gs of the

post-con viction c ourt. II. Competency

Hearing The petitioner contends the trial court erred in failing to hold a c ompetency he aring prior to accepting his guilty pl eas. H e maintains that the trial cou rt had not

ice of hi s mental he alth deficiencies. We conclude the petitioner is not entitled to relief on this issue. Requiring an accused

to enter a plea or stand trial while mentally incompetent

violates b oth the United States andTennessee Constitutions. SeeU.S. Const. amend. XIV; Tenn. Const. art. 1, § 8; Cl ark v . State , 800 S.W.2d 5 00, 505 (T enn. Crim. App. 1990 ). An ac cused is c ompetent to stand trial if he has “the capacity to understand the nature and object of the procee dings ag ainst him,-7-

to consult with counsel, and to assist in preparing his defense.” Mackey v. State , 537 S.W.2d 704, 707 (Tenn. Crim. App. 1975). Our standard of review is “‘[w]het her a reasonable judge, situated as was the trial judge whose failure to conduct an evidentiar y hearing is being reviewed, should have experienced

doubt with r

espect t o compete

ncy to stand trial’ [or enter a plea of guilty].” Clark , 800 S.W. 2d at 5 06 (qu otin g Pate v. Smit h , 637 F.2d

1068, 1072

(6th Cir. 1981)).
We note that

in his post- convicti on relief petition , the petitioner ini tially frame d this issue as an ineffective a ssistance of counsel claim and the post-conviction court addressed this issue as it related to ineffect ive assistance of counsel. An appellant cannot chang e theories from the trial court to the appellate court. Statev. Alder , 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001); State v. Dooley , 29 S. W.3d 542, 549 ( Tenn. Crim. App. 200 0). Reg ardless , we conc lude this is sue is without me

rit.
At t he plea he aring, the petitioner testified he took medication on a daily basis. The pet itioner info rmed the trial court that the medication did not affect his ability to comprehend the pro ceeding s. When the trial court asked the petitioner whether he clea rly unders tood th e proceedings, the petitioner responded:

Yes , ma’ am. I st ud ie d i t l on g a nd ha rd in th e l as t f ew da ys since last week, and me and [trial counsel] met last week here.

. . . . And I kn[o]w the whole consequences and every thing of what I’ve done and I’m s orry for it, and now I ’ve go t to pay for it. Further, trial counsel testified that he saw no rea son to question the competency of the petitioner. The post-conviction court found no basis to question the petitione r’s ability to

compete ntly enter a guilty plea

. Our review of the plea submission hearing supports this finding. The evidence does not pr

eponder ate ag ainst the f

inding of the post- convicti on court. III. Voluntariness of Guilty Pleas The petitioner also contends his pleas were involuntary and unknowing . Our supreme court has stated: The cases of Boykin v. Alabama and State v. Mackey

are the landmark constituti onal cas es for a naly ses of g

uilty pleas. Boy

kin v. A labama , 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 27 4 (1969 ) (federalstandar

d); State v. Mackey , 553 S.W.2d 337 (Tenn. 1977) (state s tan dard). In Boy

kin , the United States Sup reme Cour

t held that before a trial judge can a ccept a guilty

plea, there m

us t be an affirmative showing that it was given inte ll ig en tl y an d v ol un ta ri ly. Id. at 2 42, 89 S . C t. at 1 711 , 23 L. Ed . 2d at 2 79. In order to findthat-8- the plea wa s entere d “intelli g ently” o r “volunt arily ,” the co

urt must “canva ss[ ] the matte

r with the accuse d to make s ure he ha s a full understanding of what the plea connotes and of its consequ ences. ” Id. at 244, 89 S. Ct. at 171 2, 23 L . Ed. 2d at 280 (emph asis a d ded). Likewise, in Mackey , this Court held that “the record of acceptance

of a def

endant’ s plea of

guilty must affi

rmativel y demonstr ate that his decision was both voluntary and know ledgeable, i.e., that he has been made aware of the significant consequences of such a plea. . . .” 553 S.W.2d at 340. State v. Pettus , 986 S.W.2d 540, 542 (Tenn. 1999). During the plea hearing, the petitioner stated he understo od the plea agreement and maintained it was his decision to enter the pleas. He further stated he a nd trial counsel discussed the elementsof each

offense charg ed, the r

ange o f punishme

nt for ea ch offe nse , the po ssibility of consecutive sentenc ing, the facts of the case , the State ’s discov ery materia ls, defe nse stra tegies , and potential witnesses. Trial counsel testified the petitioner understood the ramifications of his pleas

. The post-c onviction

court de termined the petiti oner kno wingly and volun

tarily entere d the plea s. Likewise, our review of the plea submission hearing supports these f indings. The evidence does not preponderate against the post-conviction cour t’s finding; thus, this issue lacks merit. CONCLUSION
In summary, we c onclude the petitioner failed to establish he received ineffective assistance of counsel. Further

more, the trial cou rt did not e

rr in failing to hold a c ompetency he aring p rior to accepting the pleas, and the post-conviction court did not err in finding the petitioner knowingly and voluntarily entere d the pleas. Accordingly , we affirm the judgment of the post-conviction court.

____________________________________ ALAN E. GL

ENN, JUDGE