### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs November 7, 2001

DERRICK WILLIAMS v. STATE OF T ENNESSEE

Direct Appeal from the Criminal Court for Shelby County No. P23298 Arthur T. Bennett, Judge

No. W2001-00450-CCA-R3-PC - Filed January 4, 2002

The petitione

r, Derr ick Willia ms, pled gu

ilty to three counts of

simple robbery, a Class C felony, and

one count of aggravated robbery, a Class B felony. The trial court sentenced Petitioner as a Range III persis tent offender to fifteen years for e ach of the simple robbery convictions and twenty-five years for the aggravated

robbery c onviction, with the sentences to be served concurrently for an effectivesentence of twenty-five years. Ther eafter, Petitioner filed a p ro se petition, with one amendment

filed by appointedcounsel, for post-conviction relief alleging ineffective a ssistance of counsel. The post-conviction court denied Pe

titioner r elief, w hich res ulted in thi s appeal wherein Petitioner claims ineffective assistance of counsel based on the following: (1) counsel failed to argue that the indictment concerning aggravated robbery w as insufficient whereas it did not allege an essential element of the offense, i.e., that Petitioner used a deadly weapon to commit the crime; and (2) counsel pressured Petitioner to plead guilty, which coercion cause d his plea to be inv oluntary and, therefore, constitutionally infirm. After a review of the record, we affirm the judgment of the post-con viction c ourt.

Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t Affir med.

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OE G. R ILEY , J., joined.

Robert Little, Memphis, Tennessee, for the appellant, Derrick W illiams.

Paul G. Summers, A ttorney G eneral and Repor

ter; Patr icia C. Ku ssman, Ass istant Atto rney Ge neral; W illiam L. Gibbons, District Attorney General; and Alonda Horn Dwyer , Assistan t District Attorne y General, for the appellee, State of Te nnessee.

OPINION-2- Factual Ba

ckground

Petitioner filed a pro se petition for post-conviction relief onMay 12, 2000, and on May 25, 2000, counsel w as appoin ted to re present Petitio ner in this cause. Appointed counsel filed an amended petition on June 29, 2000. The post-conviction hearing occurred on October 19, 2000. The proof present ed at the hearing consis ted sole ly of testimony from Petitioner and the attorney who Petitioner alleged render ed ineff ective a ssistance

during his plea pro ceeding s.

At the post-conviction hearing, Petitioner testified that his attorne y was ineffective in that she failed to commun

icate with him, fai led to inve stigate his case , and also

because she pressured him into plea

ding guilty

when he s aid he wa

nted a jur y trial to d

ecide whether h

e was gui l ty o f aggravated

robbery. Petitioner claimed that he wanted to go to trial from the very beginning and, when he felt th at his cou

nsel was n ot working

in his best interes t, he aske d her to r emove he rself fro m th e case. Accord

ing to Petiti oner, she

refuse d and, ra

ther tha n allow him

to find alt

ernate counsel, she coerced him into pleading guilty by informing him that, if he wasted her time by going
to trial, she would make sure that he receiv ed the maximum punishment of seventy-five years at eight-five percent. Consequent l y, Petitioner believed he must plead guilty, but admitted that the
court made numerous inquiries about his plea at the time he entered it and, further, that he responded that his plea w as both vol

untary a nd not the resu lt of th reats. Pe titioner c laimed at

the postconviction hearing

that this st

atement w as not ac curate , but r ather the result of his fa

ilure to comprehend

the court’s question. Petitioner construed the question as referring on ly to pers o ns outside the courtroom, which did not include his attorney.

Petitioner’s allegati on that his counsel did not investigate was based on the fact that she was unable to prove he did not have a gun, as required for the aggrava ted robbery charge. Theref ore, he asserted, counsel was also unab le to defend h im against

the char ge of agg ravate d robber

y, and this constituted ineffective assistance because “ that is her job.” When asked who Petitioner had intended for his attorney to talk

to in order to disprove this particular fact, Petitioner responded, “w hoever she had to talk to, man. I don’t know.” Petitioner knew that the victim in the aggravated robbery charge testified at the preliminary hearing that Petitioner had shown her the butt of

his gun during

the crime and that she had identified him from a photographic lineup. Pe tit ioner also admitted that he had confessed to the police that he committed the robberies, even though he denied ever having a gun.

During the post-conviction hearing, the trial court asked Petitioner to explain why he did not
state that he wanted to go to trial on the charge of aggrava ted robbery during the plea proceeding when the court explicitly questioned him regarding this precise issue. Petitioner replied only that he did not “understand” until he arrived at the penitentiary’s “ legal room.” Petitioner admitted t

o being familiar

with the pl ea proc ess, cla iming to hav e pled gui lty to appr oximately ten crimes since 1991, including theft, robbery, evading arrest, and various attempt cr imes.

The attorney who assisted Petitioner testified that, after her appointment on May 19, 1999, she met with

Petitioner a

total of seven times. During these meetings, Petitioner’s counsel discussed the charg es again st P etitioner, the ramifications of his statements to the police, and the testimony given by the victim at the preliminary hearing stating that Petitione r showed her a gun during his-3-

commission of the robbery. Counsel also testified that she gave Petitioner copies of the information she received through

the discovery process and a copy of the transc riptof the preliminary hearing.

Counsel further

testifie d that, dur

ing one of their mee tings, Petitioner told counsel he wanted her to speak with the prosecutor and reduce the cha rge from aggravated robbery to simple robber y. He wanted her to n egotiate an eight- year se ntence f or all fou r convic tions. (W

hen clas sified asa Range III offender, a

defendant may be sentenced from ten to fifte en years for a Class C felony, and from twenty to thirty yea rs for a Class B felony.) Conseque ntly, coun sel set up

a meeting

with Ms. Craig, the prosecutor. However, Craig refuse d to reduce the charge, based on the victim’s testimony that Petitioner displayed a gun, and she initially declined to agree to a sentence less than thirty ye ars

on the charge of aggravated robbe ry. Sometime later, on February 9, 2000, Petitioner told counsel that he would a

ccept tw enty-fiv e years

on the agg

ravate d robber

y charge and aske d her to ta

lk to the prosecutor

one more time. Counsel approac hed Craig withPetitioner’s request, and Craig agreed
to twenty-five years but cautioned that the offer was good for one day only. Petitioner accepted the offer and pled guilty.

Counsel claimed she did not pressure Petitioner to plead guilty at an

y time. She

also testified that Petitioner never informed her he wante d another

attorne y to handle

his case ; he mere

ly told her that he wante d the best

deal cou nsel coul d get for h

im and mad

e it clea r that he did not wa

nt to go to trial.

A copy of the transcript of Petitioner’s guilty plea pro ce eding on February 9, 2000, was presented in evidence at the post-conviction hearing. The following excer pts reflect that the trial court que stioned Pe

titioner r egardin g his plea

and the w aiver of

his right to

a jury tri al:

Court: All right. You ’ve hea rd the fa cts in each one of these cases as they

were stated on the record by the state of Tennessee. Are you pleading guilty in ac cordanc e with thos e facts ? Petitioner: Yes, ma’ am. Court: All right. Do you und erstand that you ha

ve a righ t to a jury t

rial? Petitioner: Yes, ma’ am. Court: Do you understand that in that jury trial you have a right to testify as

well as a right to cross-examine and confront witnesses aga inst you at that tr ial? Petitioner: Yes, ma’ am. Court” Is that what you want to do? Petitioner: Yes, ma’ am. Court: Are you sure? Petitioner: Yes, ma’ am. Court: You do understandtha t if this court accepts your guilty pleas, there

will be no a

ppeals? Petitioner: Yes, ma’ am. Court: And you understand f u rther tha t this cour

t cannot c ompel you t

o incriminate yourself?-4-

Petitioner: Yes, ma’ am. * * * Court: 99-12253, you’ve b een indic ted for a ggravat ed robbe ry, whic h is a Class B felony, you’re p leading guilty as ch arged lo oking at 25 years, Tennessee Department

of Correction as a Range III offender a nd no fine; is th at corr

ect? Petitioner: Yes, ma’ am. * * * Court: Are these pleas voluntary? Petitioner: Yes, ma’ am. Court: Has anyone made any promises or threats to you? Petitioner: No, ma’a

m. Court: Has anyone tried to force you to do these guilty pleas today? Petitioner: No, ma’a

m. Court: These guilty pleas are what you want to do? Petitioner: Yes, ma’ am.

After the post-conviction hearing, the trial judge made the following findings: Petitioner had been exposed to t he plea process a number of times via a number of felony ca ses wherein he had pled guilty and, consequently, “he [was] not a novice”and knew what his rights were at the time of his plea; counsel for Petitioner was able to reduc e the sen

tence f or aggra vated ro bbery fr om thirty years to twenty-five through negotiations with the prosecutor’s office and, whe n presented with the offer, Defendant accepted; Petitioner had an opportunity to inform the court he wanted a jury trial
at the plea procee ding and he knew th is, but he d

eclined to do so; the

transcr ip t of the p lea proceedings on February 9, 2000, show that Petitioner did not request a trial and the court in charge of those proceedings had

no reason to doubt that Petitioner’s plea was freely and voluntarily given; the issues of credibility arising from the conflicts between Petition er’s and counsel’s testimony should be resolved

against Pe

titioner; and, bec ause Petitioner did not prove his allegations by clear and convinc ing evidence, the assistance rendere d by counsel could not be found ineffective. On February 7, 2001, the post-conviction court pla ced the a bove find ings and c onclusion s in its order denying Petitioner relief.

Analysis

I. Indictm ent

Petitioner contends that his attorney rendered ineffective assistance by failing to argue that the indictment concerning aggravated robbery wa s insufficient wherea s it

did not allege an essential element of the off

ense, i. e., that Petitioner used a deadly weapon to commit the crime. However
, Petitioner failed to

present this issue d

uring his p ost-conviction he arin g. A groun d for post-conviction relief is waived “if the petitioner personally or through an a ttorney failedto present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented . . . .” Tenn. Code Ann. § 40- 30-206(g ) (1997). Thu s, Petitioner has waivedthis issue by his failure to present it before the post-conviction court. See Workman

v. State
,-5-

868 S.W.2d 705, 709 (Tenn. Cr im. App. 19 93). Eve

n if not wa

ived, this ground wo

uldnot entitle Petitioner to relief.

The indictment for aggravated robbery allege s the following:

THE GRAND JUR ORS of the Sta te of Ten nessee, duly selected, empaneled, sworn and charged

to inquire for the body of the count y of Shelby , Tennes see, upo n their oath, present

t hat: DERRICK WILLIAMS on April 18, 1999, in Shelby County, Tennessee, and before

the findin g of this ind

ictment, d id unlawf ully and knowingly, by use of a deadly weapon, to-wit: a handgun , put Nico le All en in fea r and obta

in from the said Nicole A llen, a su m of money , the prop er goods a nd chatte ls of the sa

id Nicole Allen, in violation of Tennessee Code Annotated 39-13 -402, agai nst the peace and dignity of the State of Tennessee.

(Emphasis added.)

It is diffic ult for thi s Courtto appre hend how t

he words “by use o f a dead ly weapo n, to-wit:

a handgun, ” as state d in the ind ictment, c ould possib ly be more clear in alleging the use of

a deadly weapon. Defendant is not entitled to relief on this issue.

II. Coercion By Counsel

Petitioner also alleges that counsel rend ered ineffective assistance when she pressur ed Petitioner to plead guilty, which coercion caused his plea to b e involuntary and, therefore, not constitutionally valid.

In reviewi ng Petition er’s Sixth Amendment

claim of i neffec tive assis tance of counsel, this Courtmust determine whether the advice given or servi ces ren dered by

the attor ney are within the range of competence demanded of attorneys in cr iminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail, an appellant “must show that counsel’s repre sentation f ell below an objective standard of reasonableness” and that this performance prejudiced the defe nse. Strickland

v. Washington , 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052, 2064, 2067-68, 80 L.Ed.2d 674 (1984); Best v. Stat

e , 708 S.W.2d 421, 422 (Tenn. Cr im. App. 19 85). The

inability t

o prove either prong results in failure of the claim. See Strickland , 466 U.S. at 697.

The most difficult burden on any appellant is demonstrating to the court that he has suffered prejudice because of thealleged error. To satisfy th is prong, t he appellant must s how a re asonable probabil ity that, but f

or counse l’s erro r, the re sult

of the proceeding would have been differ ent. Id. In the conte xt of a guilty plea or a plea of nolo contendere, the a ppellant must show that, but fo r counsel’s errors , he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart
, 474 U.S. 52, 53, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). See also Wade v. State , 914 S.W.2d 97, 101 (Tenn. Crim. App. 1995); Wilson v. St ate , 899 S.W.2d 648, 653 (Tenn. Crim. App. 1994).-6-

Moreover, an appellant alleging ineffective assistance of c ounsel must prove the allegations of fact und erlying h is claim by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997); Fields v. Sta

te , 40 S.W.3d 450, 458 (Tenn. 2001). This Court will not reweigh or re-eva luate the evidenc e or subst

itute our o wn infer

ences f or those drawn by the trial court. Henley v. State , 960 S.W.2d 572, 579 (Tenn. 1997). We must also defer to the trial court on questions of cred

ibility of witnesse s, the weight and value to be given th eir testimony, and the factual issues raised by the evidence. Black v. St

ate , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

Lastly, we recognize that a trial court’s conc lusion as to whether an appellant has been denied the effec tive assis t ance of counsel is an issue that presents a mixed question of law and fact on appeal. Fields , 40 S.W.3d at 458. The stand ard of r eview is de novo , consistent with the standards
set forth in the Rules of Appellate Procedure. Id. Accordingly, our review of a trial court’s fa ctual findings are entitled to a presum ption of cor rectness, which is overcome only when the preponderance

of the evidence is contrary to the trial court’s findings of fact. See Tenn. R. App. P. 13(d); Henley , 960 S.W.2d at 578 . By con trast, the trial court’s application of law to its factual findings to determine whether counsel’s pe rfor mance was deficient or whether the de fendant was prejudiced

by that deficiency, are ac corded n o defer ence or presumpt ion of cor rectne ss. Fields , 40 S.W.3d at 458.

In the case sub judice , we conc ur with the concl usion of the post-conviction court that Petitioner failed to prov e the a llegations of fact underlying his claim by clear and convincing evidence. Resolution of

whether or not Petitioner wa s “press ured” by counsel i nto plead

ing guilty essentia lly turned on which witness’s testimony was found to be the more credible, that of Petitioner

or his counse

l. Becau se questi ons conc erning th e credi bility of w itnesses, the weight and value to be given their testimony, and the factual issues raised by the evidence are resolved by the trial judge,

we als o find that counsel did not coerce Petitioner into pleading guilty to the aggravated robbery charge. As stated by the post-convi ction cou rt, a cr ucial fa ctor in de termining this issue l ay in Petitioner’s testimony during the plea proceedings. Because we find Petitioner’s testimony during that proceed ing une quivocally implies that he entered his guilty plea knowingly, voluntarily, and without coercion or

“pressure,” we find that the preponder ance of the evidence is not contrary to the trial court’s findings of

fact, namely, that Petitioner was not “pressured” by counse l into pleading guilty to the offense of aggravated robbery.

As a summation, we find that Petiti oner fa iled to sho w that his counsel’ s repre sentation fell below an objective standard of reasonableness or that, but for counsel’s alleged error, he would not have pled guilty and would have insisted on going to trial. Thus, we cannot conclude that the advice given or services rendered by Petitioner’s attorney were below the range of competence demande d of attorneys in criminal cases as required u nder B axter v. Rose , 523 S.W.2d 930 (Tenn. 1975). Because we also find Petitioner’s guilty plea was voluntarily entered in accordance with Rule 11(d) of Tennessee’s Rules of Criminal Procedure, Petitioner is not entitled to relief on this issue.

Conclusion

For the forgoing reasons, the judgment of the post-conviction court is AFFIRMED.-7- ___________________________________ THOMAS T. WOODALL, JUDGE