### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs O

ctober 3, 2000 STEPHEN W. MURPHY v. STATE OF TENNESSEE Appeal from the Criminal Court for Davidson County No. 98-B-1111 J. Randall Wyatt, Jr., Judge

No. M2000-00014-CCA-R3-PC - Filed December 7, 2000

The petitioner appea

ls as of right from the

Davidson County

Criminal Court’s de

nial of postconvicti on relief . The petitioner pl ed guilty in

1998 to two counts of

theft and was sen

tenced as a career offender to twelve years for D felony theft and six years for an E felony theft. The sentences were statutorily required to be served consecutively

. Petitioner filed a ti mel y pro se petition seeking post-conviction relief, alleging ineffective assistance of counsel and inv olunt ary and unknowing guilty pleas. After

an evidentiary hearing, the post-conviction court denied relief. Based upon our review, we affirm the post-conviction court’s denial of the petitioner’s request for post-conviction relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and J ERRY L

. S MITH , JJ., joined.
Jef re S . Go ldt rap, Nas hvi lle , Te nne sse e, fo r th e app ell ant , St eph en W . Mu rph y. Paul G. Summers, Attorney Genera l and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Victor S. Johnson, I II, Distr ict Attorney

General; and Phi lip H. W ehb y, Assistant District Attorney General, for the appellee, State of Tennesse e. OPINION The petitioner, Stephe

n W. Murphy, e

ntered a guilty

plea on July

13, 199 8, in Davidson County Criminal Court to theft of property valued at $1,000 or more but less tha

n $10,000, a Class D felony; and theft of property va lued at more than $50 0 bu t le ss t han $1, 000 , a C las s E f elo ny. According to a plea agreement, he was sentenced as a career offender to twelve years for the D1 Petitioner was released on bond for the first thef t when he committed the second theft. Having been convicted of both, t he petit ioner was

subject to the pr

ovision s of

Tennessee Code Annotated Section 40-20-111 (b), which mandates consecutive manner

of service.
2 Neither this mot ion, nor the tra

nscript of the h earing on

the moti on held on Febr

uary 11, 1999, was included in the record on appe al.

3 Controlling law in Tenn essee conc erning the withd rawal of a guilty p lea is set out in Tennessee Rules of Criminal Proced ure as follows:

Withdrawal of Plea of G uilty.—A motion to with draw a plea of guil

ty may be made upon a showing by

the defendant of

any fair a

nd just reason onl

y before sent

ence is imposed; but to correct manifest injust ice, the court after sentence, but before the judgment be

comes fin

al, may set asi

de the judgment of conviction and permit the defendant to wi

thdraw the plea

. Tenn. R. Cr im. P. 3 2(f). Therefore, the trial court, technically, did not have jurisdiction under Rule 32(f), judgment having bee

n final for some six months . In th is case , the i ssue is

not deter

minati ve because pe

titi oner fi led his petiti on seeking post-conv iction relief within the one-year statu te of l imitat ions purs uant to Tenn

essee Code Annot

ated Sect ion 40-30-202(a) (1997).

4 Tennessee Code Annotate d Section 40- 30-206(e) st ates th at “Couns el may f

ile an a mended pe titi on within thirty (30) days of appointment.” The record indicates that the tri al court accepted the amendmen t wel l outs ide th is ti me period. -2- felony theft and six years for the E felony theft, f or an effective sentence of ei ghtee n years in the Dep art men t of Cor rect ion . By s tat ute , th e sen ten ces w ere r equ ire d to be s erve d co nse cut ive ly. 1 On September 8, 1998, the petitioner filed a pro se petition for post-conviction relief, alleging the following:

I. That he received ineffective assistance of counsel; and II. That his guilty plea

was unknowing and involuntary.
New couns el was app ointed. On January 27, 1999, petitioner, through counsel, filed a motion to withdraw his guilty plea, alleging

various grounds

for relief, incl

uding, apparen

tly, his alleged intoxication at the tim

e of the pleas. 2 The judgment, having been entered on July 13, 1998, was final at this point a

nd his motion, there

fore, was not time

ly. The tria

l court chose

to address the m otion on the merits, pursuant to Rule 32(f) of the Tennessee Rules of Criminal Procedure. 3 On February 25, 1999, after a hearing, the trial court denied the mo tion to withdraw guilty plea, concluding that no “manifest i njustice” requir

ed permitting the

petitioner to withd

raw his g uilty plea.
On August 20, 1999, the petitioner resumed his post-conviction petition action and filed an amendment

to his original petition, alleging, in greater detail, that he received ineffec tive assistance of counsel andtha t hi s gui lty p lea was not ent ered kno win gly an d vo lun tar ily. 4 After a full hearing, the post-conviction court entered a memorandum order find ing that the petitioner had received5 The State cl aimed that

the val ue of the vehicl e was $4,000. -3- effectiveassistance of co unsel a nd that t he gu ilt y ple as w ere e nte red k now ingl y and vol unt ari ly. Therefore, the post-conviction court denied the petition on November 29, 1999. It is this denial that is the subject of the present appeal.
After a careful review of the record before this court, we conclude that the petitioner has failedto meet his burden of showing by clear and convincing evidence that he received ineffective assista nce of counsel or that his guilty pleas were entered unknowingly and involuntarily. The judgment of the post-conviction court is affirmed. FACTS
The facts of this c

ase appear in the

transcr ipts of the guilty

plea proceedin

gs; the postconv iction hearing; and the post-c onviction court’s ord er denying the pe tition. A ccording to th e State, in July of 1997, the petitioner was working at the Baptist Sunday School Board, Aramark

Food PreparationService in Davidson County. The victim in this

case, Kathryn Comer, was a coworker. At the end o f her workday, July 11, 1997, Ms. Comer went to the parking lot to leave, on ly t o discover that her 1989 Ford Mustang was missing. 5 She called Metro Police and reported that her vehicle had been stolen. Later

that same evening, two Metro officers spotted the stolen car in an area close to the residence of the petitioner and pulled it over. The petitioner was the driver of the car. The petitioner fi

rst claimed that the car belonged to his brother. After the officers recovered reg istration papers from the glove compartment showing the owners as Mr. and Mrs. Comer, the petitioner changed his story and claimed that he had gotten the ca r from “two dudes.” The petitioner was arrested; a preliminary hearing was he ld; and the petitioner was placed on bond. On August 1, 1997, two events occurred: the petitioner was terminated from his job at the Baptist Sunday School Board, and Ms. Comer’s 1989 Ford Mustang was stolen again. Some three weeks later, Jackson County police stopped a Ford Mustang for speeding in Gainsboro, Tennessee. Registration papers again indicated that the owners were Mr. and Mrs. Comer, and a check revealed that the car was stolen. This time, the petitioner was a passenger

in the car. He stated to police that he knew the owner of the

car, that heworked with the owner, and that she had given him permission to have the car. The victim was prepared to testify that this was not true. The p

etitioner was ag

ain charged with theft and released on bond.
RichardTennent, anassistant public defender in Nashville, was assigned to the petitioner’s case. Ov er the months of his representation of the petitioner, the State made a number of plea bargain offers, each o

ne of which Tenne

nt relayed to the petitioner. T ennent testified a

t the postconviction hearing that

the State’s offe

rs, initially

quite favorable, became increasingly unfa vorable, butthat the petitioner refused to accept any offer until the one he ultimately accepted on

the day of trial—the one for eight een years as a caree r offender th at he is pres ently serving.-4- ANALYSIS Issue I. Ineffective Assistance of Counsel The petitioner argues that he received ineffective assistance of counsel and that, but for that deficient representation, he would not have entered pleas of guilty to the two thef t charges he faced. The petiti oner argues s pecificall y the followin g:

1. That counsel failed to in vestigate cer tain witnesses supp

osedly favorabl e to the defense and therefore counsel was not prepared for trial;
2. That counsel fail

ed to allow suffic

ient t ime to meet with the petitioner;
3. That counsel failed to s top the gui lty plea proceeding when he knew, or should

have known, that

the petitioner was intoxicated; and
4. That counsel incorrectly advised the petitioner c oncerning the admissibility of his past criminal record at trial. In elaborating upon the requirement that an accused is entitled to constitutionally effective assistance of counsel, the Un ited States Supreme

Court, in Strickland v. Washington , 466 U.S. 668, 686, 104 S. Ct. 20 52, 20 64, 80 L. Ed. 2d 674 (1984), stated that the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the advers arial process that the trial cannot be relied on as having produced a just result.” The Tennessee Supreme Court has oftenrecited the two prong test set forth in Strickland

to be applied to ineffective a

ssistance claims:
To prevail on a claim of ineffective counsel in this proceeding, the appellant must prove by

a preponderanc

e of the evidenc

e th at t he advice given or servic

es rendered by

his counsel fell

below the range of competence demanded of attorneys in criminal cases. Bax t er v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). He must also demonstra

te prejudice by

showing a reasonable pr

obability tha

t but for counsels' error, the result of the trial proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1 984); Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996). King v. State , 989 S.W.2d 319, 330 (Tenn. 1999).-5-

When determining wh ether cou nsel’s performance was deficient, “every effort [must] be made to eliminate the distorting effects of hinds ight, to reconstruct the circumstances of counsel’s challenged

conduct, and to ev

aluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. a t 2065. “Thus,

the fact that a particular strategy or tactic f ailed or even hurt the defense does not, alone, support a claim of ineffective assistance.” Coop e r v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). In summary, a reviewing court must indulge a strong presumption that counsel's conduct falls within the range of reasonable profession al assis tance. Moreover, with respect to the prejudice prong of the Strickland analysis, th e petitioner must demonstrate that thereis a reasonable probability that but for counsel's deficient perfor mance, the result of the proceeding would have been different. Id .; Hicks v. State , 983 S.W.2d 240, 246 (Tenn. Crim. App.), perm . app . denied(Tenn. 1998).
Courts need not approach the Strickland test in a specific order or even “

address both components

of the inquiry if

the petitioner

makes an insufficient showing on one.” Id . 466 U.S. at 697, 104 S. Ct. at 2069; see also Goad v. State , 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”). By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of proving the all egations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30- 210(f) (1997). Evidence

is clear and convincing when there is no serious or substantial doubt about the correctness of

the conclusions drawn from the evidence. See Hodges v. S. C. Toof & Co. , 833 S.W.2d 896, 901 n.3 (Tenn. 1992).
We note that

when post-conviction proceedings have included a full evidentiary hearing,as was true in this case, the trial judge’s findings of fact and conclusions of law are given the effect and weight of a jury verdict, and this co urt is “bound by the trial judge’s findings of fact unless we conclude that

the evidence contained in the record preponderates against the judgment entered in the cause.” Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm . app . denied(Tenn. 1990). However, the appellate court’s review of the application of the facts to the la

w is de novo without a presumption of correctness. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). A. Trial Preparedn

ess First, the petitioner ass

erts that counsel

, Richard Tennen

t, faile d to investigate ce rtain witnesses who were friends of the petitioner and could supply alibi testimony and other

generally favorable testimony to corroborate his allegation that hewas simply returning the car on the date of the first theft. Petitio

ner asserts,

additionally, that the victim was prepared to testify on his behalf. Tennent testified that the

petitioner did tell

him of these

potential witnesses, but on Thursday before trial was set for Monday, July 13, he still had no last names, telephone num bers, or addresses. Tennent discussed informally with Assistant District Attorney General Bret Gunn and the trial judge the possibility

of General Gunn ’s trying another case before the

petitioner’s to al

low Tennent time to talk with

the witnesses. He

told the petitioner

to come to his office

on Friday before

trial with all6 The only names of pot ential wi tnesses t he petitione

r advised Tennent of, according to the petitioner, were t he names of his f ormer employer

and of t he vic tim. -6- the missing information. Tennent testified that he planned to work as many hours as necessary over the weekend to be

ready for trial. When asked if the petitioner supplied the necessary information concerning the w itnesses, Tennent testified to the following:

A. No, he didn’t. In fact, he didn’ t show up Friday. And I lost all touch with him

over the weekend, though I repeatedly cal

led all of his phone numbers that I had. And my understanding was he had lef t town. Q. Okay. When was the

next contact you had

with him pertaining

to his trial?
A. He showed up five minutes before the d ocket c all Monday morning. The petitioner’s testimony directly contradicted Tennent’s concerning the Friday meeting. The petitioner testified that he did show up for the meeting but tha

t Tennent told him tha

t he had all the information he needed from the petitioner and that they would meet on Monday morning. 6 The petitioner further testified that he was not out of town but at a family reunion and t hen a housewarming and that when he got the message that Tennent was urgently trying to reach him, he called the only number he had for Tennent, his office number, on Sunday and left a message. The trial court concluded the following concerning Mr. Tennent’s representation:
He kept in contact with the petitioner, reviewe d the discovery and listened to the tape of the preliminary hearing. Any lack of prepara tion for trial, can be imputed to the failure of petitione r t o maintain contact with Mr. T

ennent and su

pply hi m the information necessary to contact the witness’ [sic] which petitioner felt may help his cause.
Not only do we agreethat the petitioner has failed to show that counsel’s assistance in regard to location of witnesses and preparedness for trial was ineffective, but

we further conclude that the petitioner has failed to show that if the witnesses had been available, he would have chosen to go to trial. The victim was in the courtroom at the time of the plea submission, and nothing in the record indicates that the petitioner found this fact of any significa nce as far as hi s choosing to go to trial rather than plead guilty. Alibi testimony seems inappropriate, given the fact that the petitioner does notcontend that he was not the person the police arrested twice in the same stolen Ford Mustang.7 This estimate, as stated i

n petitioner ’s amended post-conv iction petiti on, is i nconsistent wi

th an est imate of duration o f meetings of “fou r or five minutes ,” as stated in pe titioner’s appe llate brief. -7- Moreover, petitioner failed to present any material witness at the post-conviction hearing who either could have been found by reasonable inve stigation or who wou

ld have testified f

avorably in support of his defense. See Black , 794 S.W.2d at 757. T his issue is without me

rit. B. Sufficient Time With Petitioner This issue is closely

related to the pe

titioner’s claim th

at his counsel was

unprepared for

trial. Petitioner asserts that he met with counsel “three or four” times prior to trial and that the meetings were “approximately ten to fifteen minutes long.” 7 P et itioner alleges that this amount of time was insufficient

for counsel to prepare for trial and that, as a result, petitioner wa s fo rced to accept an unfavorable

plea agreement rather than proceed to trial unprepared. Mr. Tennent testified that he and petiti onermet “anumber of times,” but that he could not remember an exact number. Tennent testified that he relayed each of the State’s offers to the petitioner,andthey discussed the petitioner’s version of the facts and reviewed the discovery materials and petitioner’s criminal record. Tennent tried repeatedly to contact the petitioner over the weekend before the trial but was told by someone he assumed to be a fa

mily member at petit

i oner’s home, that petitioner was out of town for the weekend. Tennent considered the petitioner to have “vanished” and was actually surprised that he showed up minutes before his trial was to begin. The petitioner has fa

iled to show that the

number of meetings he had with counse l was so deficient as to constitute ineffective assistance of counsel. Nothing in the re cord indicates that Tennent failedto meet with the petitioner and keep him informed. Altho ugh the petitioner

claims to have met with counsel on the Friday before trial, thepost-conviction court accredited the testimony of Tennen t, whic h was that the petit ioner failed to sh

ow up for the Frida

y meeting and that,

as a result, Tennent

felt underprepared for trial since the possibility of favorable witnesses had not been resolved. The full

names andlocations of these witnesses were information that the petitioner failed to make available to coun sel bef ore trial date. Having created the problem, petitioner cannot now reasonably clai

m prejudice. We c

onclude that this iss

ue is without merit.-8- C. Failure to Halt P

roceedings The petitioner’s third allegation in support of his ine ffective assista

nce of counsel c

laim is that Tennentknew, or should have known, that petitioner was intoxicated on the day of the guilty p le a proceeding. Petitioner testified that he had been drinking heavily all week end prior to his tria

l date on Monday, July 13 , 1998. Tennent testified that the petitioner smelled of alcohol and cigarettes when he arrived a

t the cour thouse prior to his trial. Tennent questioned the petitioner concerning alcohol or drug use and petitioner told him that “he was not under the influence of anything at that time, that he felt c

lear-headed. ” Tennent testifi ed further as fo

llows: Q. Let me ask you this, Mr. Tenn ent: W ould you have allowed Mr. Murphy to enter a pl ea if yo u believed he was intoxicated that morning? A. No, I wouldn’t have. The post-conviction court stated that there was simply no credible eviden ce t o suggest that the lingering effects of alcohol influenced the petitioner’s guilty pleas and that, “[t]he Court remains of the opinion that the plea was not affected by any lingering effect the alcohol may have had.”
We conclude that the

evidence in

the record does not preponderate against the findings of the post-conviction c

ourt. This issue is wi

thout merit. D. Erroneous Advice Concerning Admissibility of Evidence Finally, the petitioner asserts that his counsel failed to explain to him that evidence of

his prior criminal record could come in at his trial only if he testified, and that he had the right to choose

not to testify. This failu

re, according to

petitioner, const

itutes ineffecti

ve assistance of

counsel. Petitioner does not contest the fact that the trialcourt made his rig ht to testify, or not,

perfectly clear to him during the plea submission colloquy.
To meet his burden of

showing that he wa

s prejudiced by wh

at he asserts was

a failure o f counsel, petitioner must show that if he had known that he could chose not to testify and thus keep knowledge of hi s criminal record away from the jury, he would have gone to trial. This assertion presumes that without evidence of his prior convictions, the State would have h ad a difficult time convict ing him. In fact, the record shows that the State’s evidence was substantial. Mr. Tennent testified that, even had he been able to

put on proof that the petitioner was trying to return the car in the first count, “I never did have an adequate defense to explain why he would have taken somebody’s car a second time after being wrongfully accused of stealing it the first time.” We conclude that the petitioner suffered no pre

judice as a resul

t of his suppo sed misunderstanding concerning the admissibility of evidence of his prior criminal record. The post-conviction court stated the following:8 Since Mackey was decided on June 20, 1977, prior to the effective date of the Tennessee Rules

of Criminal Procedure (July 13,

1978), porti

ons of th at decis ion have been supersede d by the rules. See State v. Brandon Wilson , No. E1996-000 06-SC-R11-CD, 200 0WL 133 6633, at *6 (Tenn. Sept. 18, 2000). -9- The Court is of the opinion thatRichard Tennent is an experienced and competent criminal de fense attorney w hose representa

tion of petitione r was well within the range of com petence demanded of criminal de f ense attorneys. It is evident to the Court from testimony at the hearings that, under the circumstances of this case, Richard Tennent performed

conscientiously in his representation of the petitioner. The Courtfurther finds, that Richard Tennent conducted a competent investigation of the petitioner’s case, anddiscussed with the petitioner the State’s evidence, as well as the potential punishment he faced upon conviction. In short, the Court finds no credible evidence to support the petitioner’s assertion of deficient representation and, obviously, n o resultin g preju dice to his decisio n to plead guilty. In

reaching its conclusion, the Cou

rt accredits the

testimony of Richar

d Tennent.
We conclude that the record fully supports the determination of the post-conviction court that the petitioner re

ceived effect

ive assistance of

counsel. Issue II. Knowing and Voluntary Guilty Plea The petitioner

finally asserts that his guilty pleas werenot entered knowi ngly and voluntaril

y because h e was under the influence of alcohol to so great an extent that “his state of mind, being under the influence of alcohol, rendered his plea unknowing and involuntary.”
In determining whether

a plea of guilty was voluntarily, knowingly, and intelligently entered, this court, like the trial court, must consider all relevant circumstances that existed at the entry of the plea. See State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995), perm . app . denied(Tenn. 1996). A reviewi ng court may lo ok to any relevant evidence in the record to determine the voluntariness

of the plea. See id . The guilty plea process in Tennessee is controlled both by Rule 11 of the Tennessee Ru

les of Criminal Proc

edure and by cas

e la w, s pecifically, two decisions of our supreme court, State v. Mackey , 553 S.W.2d 337 (Tenn. 1977) 8 , and State v. McClintock , 732 S.W.2d 268 (Tenn. 1987). Trial judges are required to adher e substantial ly to the procedur e prescribed in Rule 11. A submission hearing transcript must es

tablish on its

face that the tri

al court substantia

lly complied with the requirements of Rule 11, as well as the constit utional standard s

et out in Boykin v. Alabama , 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and the teachings of Mackey and McClintock

. At the guilty plea proce

eding in this case, the trial court questioned the petitioner concerning the petition to enter plea of guilty form petitioner had signed and asked, “Did you go over each and every part of that petiti

on to enter a plea

of guilty, Mr . Murph y, and do you think you understand exactly what you’re doing here this morning?” Petitioner responded affirmatively. That form, signed9 The petitioner points to quest ions th at the trial court f ailed to ask him at the plea submissi on hearing and alleges, without arguing it, that such failure also rendered his guilty plea unkn owing and involuntary. The questi on was whether he agreed with the facts of his case as present ed by the State.

The question noted above i s occasionall y asked by trial courts, but a car eful reading of Tennessee Rule of Criminal Procedure 11(c)-(d) and relevant case law indi

cates that it is not require d. As a supe rvisory, at the mo st, rather than a co nstitutionally base d requirem ent of the trial cou rt, it cannot be addresse d under the Post-Co nviction Pro cedure A ct. See Hicks v. Sta te , 983 S.W.2d 240, 247 n.10 (Tenn. Crim. App.), perm . app . denied (Tenn. 1998) (advising a defendant that answers to the court’s preguilty plea questions must be under oath and false answers can later be used in a perjury prosecution, as well as questions about whether the plea resulted f

rom conversations

with the def

ense atto rney and the dis trict at torney are “s

upervisory rat

her than constitutionally

based requirements”). -10- by the petitioner on July 13, 1998 , incl uded the following declaration: “I

declare that dur

ing my discussion with my lawyer about this case, and whi

le I read and/or

discussed this petit

ion with my lawyer, I was not under theinfluence of any alcoholic beverage or intoxicating drug.” Nothing on the faceof this form indicates that the petitioner was incapacitated by alcohol. Having also concluded above that nothing in

the record as a whole suggests that any lingering effects of alcohol influenced the petitioner’s p

lea, we conclude

that this issue is with

out merit. 9
CONCLUSION
The evidence in the r

ecord fully suppo

rts the findings of t

h e post-conv iction court. We conclude that t

he petitioner received effective assistance of counsel and entered his guilty pleas knowingly

and voluntarily. We affirm the post-conviction court’s denial of the peti tioner’s reques

t for post-conviction relief.

___________________________________ ALAN E. GLENN, JUDGE