IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 4, 2003

IRA MILES v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-26631 Chris Craft, Judge

No. W2003-00784-CCA-R3-PC - Filed November 19, 2003

The Defendant, Ira Miles, brings this appeal from the trial court’s denial of post-conviction relief.

The Defendant pled guilty to especially aggravated robbery and received an agreed sentence of

seventeen years to be served at one hundred percent. In this appeal, he argues that he is entitled to

post-conviction relief because he was denied the effective assistance of counsel during the course

of his plea. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

DAVID H.WELLES,J., delivered the opinion of the court, in which JOE G.RILEY and JOHN EVERETT

WILLIAMS, JJ., joined.

Juni Ganguli, Memphis, Tennessee, for the appellant, Ira Miles.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant AttorneyGeneral;

William L. Gibbons, District Attorney General; and David Pritchard, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

On October 4, 1999, the Defendant pled guilty to especially aggravated robbery and agreed

to serve a fifteen-year sentence. He subsequently filed a petition for post-conviction relief, in which

he alleged that the guilty plea was coerced by his attorney and involuntary and that he did not

understand the nature of the charge against him. On January 29, 2001, the trial court granted the

Defendant post-conviction relief because at the time of the guilty plea, Tennessee Rule of Criminal

Procedure 11 was not substantially complied with; therefore, the Defendant’s plea could not be

deemed voluntary. On remand, the trial court appointed Brett Stein, the attorney who represented

the Defendant on his post-conviction proceeding.
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On May 28, 2002, the Defendant again pled guilty to especially aggravated robbery and

agreed to a seventeen-year sentence, which was to be served at one-hundred percent due to the

Defendant’s status as a violent offender. The Defendant thereafter filed a petition for postconviction relief. After conducting an evidentiary hearing, the trial court denied the Defendant’s

petition. It is from the order of the trial court denying the Defendant post-conviction relief that he

appeals.

The Defendant argues that he was denied the effective assistance of counsel while he was

deciding whether to enter a guilty plea. Both the Sixth Amendment to the United States Constitution

and Article I, section 9 of the Tennessee Constitution guarantee a defendant the right to

representation by counsel. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). This right to counsel includes the right to effective counsel. See

Strickland v. Washington, 466 U.S. 668, 686 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d

at 936.

To sustain a petition for post-conviction relief, a defendant must prove his or her factual

allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-

30-210(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not reweigh or reevaluate the evidence below; all questions concerning the credibility of witnesses, the

weight and value to be given their testimony, and the factual issues raised by the evidence are to be

resolved by the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,

960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for postconviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the

evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d

at 578-79. 

To determine whether counsel provided effective assistance at trial, the court must decide

whether counsel’s performance was within the range of competence demanded of attorneys in

criminal cases. See Baxter, 523 S.W.2d at 936; Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.

App. 1998). To succeed on a claim that his or her counsel was ineffective at trial, a defendant bears

the burden of showing that counsel made errors so serious that he or she was not functioning as

counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced

the defendant resulting in a failure to produce a reliable result. See Strickland, 466 U.S. at 687;

Burns, 6 S.W.3d at 461; Hicks, 983 S.W.2d at 245. To satisfy the second prong, the defendant must

show a reasonable probability that, but for counsel’s unreasonable error, the fact finder would have

had reasonable doubt regarding the defendant’s guilt. See Strickland, 466 U.S. at 694-95. This

reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694; see

also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State, 13 S.W.3d 742, 750 (Tenn.

Crim. App. 1999).

This two part standard of measuring ineffective assistance of counsel also applies to claims

arising out of the plea process. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). The prejudice

requirement is modified so that the defendant “must show that there is a reasonable probability that,
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but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Id. at 59; see also Hicks, 983 S.W.2d at 246.

When reviewing trial counsel’s actions, this Court should not use the benefit of hindsight to

second-guess trial strategy and criticize counsel’s tactics. See Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982); Owens, 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they

were made in light of all facts and circumstances. See Strickland, 466 U.S. at 690; Hicks, 983

S.W.2d at 246.

We now briefly review the facts outlined by the district attorney general at the second plea

acceptance hearing. On September 4, 1998, at about 6:30 p.m., the Defendant entered a service

station. The attendant who was working recognized the Defendant as having been in the store on

prior occasions. The Defendant waited around the market for approximately thirty minutes before

demanding money and attacking the gas station attendant with a knife. The robbery was interrupted

by a customer, and the victim was able to escape after suffering multiple stab wounds. The

Defendant took money from the cash register and fled. He was observed leaving the gas station and

going into nearby woods. The police located the Defendant some time later. In his pockets were

blood-stained money and a knife case. No knife was found. 

The Defendant told the police that he had been in the store, but he did not rob it. In fact, he

said that he helped the wounded victim off the floor, which explained the presence of blood on his

money. Witnesses who saw the Defendant leave the convenience store identified him as the man

they saw.

The Defendant argues that his attorney was ineffective because he failed to adequately

prepare for trial: he did not review the tape of the preliminary hearing or request a transcript of the

preliminary hearing; he did not request the appointment of an investigator or any other expert; he did

not subpoena defense witnesses; he failed to interview the victim or the State’s witnesses; he did not

prepare the Defendant to testify; he relied on discovery from the public defender’s office; he did not

request hearing dates on the pretrial motions he filed; he did not make an effort to suppress the

victim’s identification of the Defendant; he did not file a motion to have the Defendant’s previous

felony convictions ruled inadmissible; and he did not adequately communicate with the Defendant.

The Defendant states in his brief that, while each of the above-enumerated complaints may not

constitute the ineffective assistance of counsel, their cumulative effect creates a “reasonable

probability that the outcome of the cases would have been different.”

The Defendant’s former attorney, Brett Stein, testified at the evidentiary hearing that he

represented the Defendant with respect to hisfirstpost-conviction petition and his second guilty plea.

After the trial court granted the Defendant’s first post-conviction petition, Mr. Stein arranged for a

psychiatric evaluation of the Defendant. In preparation for the Defendant’s trial, Mr. Stein received

a file from the public defender’s office, which had previously represented the Defendant. He also

testified that he had access to the State’s file. Mr. Stein explained that he did not request the

appointment of an investigator because he thought it was unnecessary, given the likely testimony of
1While not raised as an issue on appeal, we note that the trial court determined that the Defendant’s testimony

that he was high on medication at the time of his plea was not credible, a finding to which this Court gives deference.

See Momon, 18 S.W.3d at 156.

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the State’s witnesses. Mr. Stein stated that, due to his prior work for the Defendant at the postconviction stage, he was well-acquainted with the facts of the case and what the witnesses would say.

When asked how much time he spent preparing for the Defendant’s trial, Mr. Stein responded,

“Three or four hours.”

Mr. Stein filed a motion to suppress the statement that the Defendant gave to the police, and

he predicted that, had the case gone to trial, the Defendant would have testified. Mr. Stein stated that

he did not review what the Defendant would say; they simply discussed the facts of the case with the

understanding that the Defendant must be truthful. If the Defendant had chosen to testify, Mr. Stein

would have requested a hearing to determine whether his prior convictions were admissible. Mr.

Stein admitted that he never spoke with the victim, but he explained that he learned everything the

victim was going to say through discovery.

On cross-examination, Mr. Stein testified that the Defendant’s theory was that he was

drinking, smoking crack cocaine, and playing cards at a convenience store. When the victim made

a homosexual advance toward him, the Defendant defended himself by stabbing the victim with a

knife. The Defendant’s position was that he committed an aggravated assault, but not with the intent

to rob the victim.

The Defendant testified that Mr. Stein put a great deal of pressure on him to plead guilty.

He also maintained that he was under the influence of several medications, which rendered his plea

involuntary.1

The order of the trial court denying the Defendant post-conviction relief included extensive

findings of fact regarding each of the Defendant’s allegations. The trial court found that the proof

did not support the Defendant’s factual allegations and that the Defendant’s guilty plea was knowing

and voluntary. The evidence does not preponderate against the findings of the trial court.

The crux of the Defendant’s ineffective assistance of counsel claim is that Mr. Stein failed

to adequately prepare for the Defendant’s trial. However, we conclude that the Defendant has not

satisfied either prong of the Strickland test. First of all, the Defendant has failed to show that Mr.

Stein made errors so serious that he was not functioning as counsel. Although the Defendant alleges

that Mr. Stein was not sufficiently prepared for trial, it is obvious from the record that Mr. Stein

understood the facts of the case and the Defendant’s theory of what happened. Mr. Stein attempted

to suppress the Defendant’s statement to police. Furthermore, he requested a pre-trial psychiatric

evaluation of the Defendant, following which the Defendant was declared competent to stand trial.

Although Mr. Stein admitted that he did not personally attempt to interview the victim or the State’s

other witnesses, he was granted access to the State’s file, and he knew the subject matter of the

witnesses’ testimony. Furthermore, the Defendant failed to demonstrate that anything would have
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been gained by Mr. Stein personally interviewing the witnesses. Likewise, the Defendant failed to

show how Mr. Stein’s failure to request the appointment of an investigator or other expert worked

to his detriment. The Defendant also complains that Mr. Stein did not subpoena any witnesses, but

these witnesses did not testify at the evidentiary hearing. The Defendant simply stated that they

would have explained that the money the police found on him was from a check he cashed.

Second, the Defendant failed to show a reasonable probability that, but for Mr. Stein’s

alleged errors, he would not have pleaded guilty and would have insisted on going to trial. He did

not testify that he would have insisted on going to trial, and he fails to allege such in his brief.

Therefore, the Defendant has failed to show that Mr. Stein committed serious errors as his attorney

or that, but for the errors, he would not have pleaded guilty. Accordingly, this issue is without merit.

The trial court’s denial of the Defendant’s petition for post-conviction relief is affirmed.

 

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DAVID H. WELLES, JUDGE