### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs N ovembe

r 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 - F iled November 19, 2003

The Defendant, I

ra Miles, brings this appealfrom the trial court’s denial of post-conviction relief. The Defend ant pled guilty to espec ially ag gravated robbery and received an agr

eed sentence of seventeenyears to be

served at one hundred

percent. In thi s appeal , he arg ues that h e is entitl ed to post-conviction relief because he was denied the effective assistance of counsel during t he cours e of his ple a. We aff

irm the jud

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

D AV ID H. W ELLES , J., delivered the opinion of the cour t, in which J OE G. R ILEY and J OHN E VERE TT W ILLI AMS , JJ., joined. Juni Ganguli, Memph

is, Tenne ssee, fo

r the app ellant, I

ra Miles.

Paul G. Summers , Attorne y General and Repor

ter; Eliza beth B. M arney , Assistan

t A ttorney Ge neral; William L. Gibbons, District Attorney General; and David Pritchard, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

On October 4, 1999, the Defendant pled guilty to especially ag gravated

robbery a nd agreed to serve a fifteen-y ear sentence. He subsequently filed a petition for post-conviction relief, in which he alleged that the guilty plea was coerced by

hi s attorn ey and involuntary and that he did not und erstandthe natur

e of the c harge agains t him. On Janu ary 29, 2001, t

he trial c ourt g ranted t

h e Defendant

post-conviction relief because at the time of the guilty plea , Tennessee Rule of Criminal Procedure 11 was not substantially complied with; therefor e, the Defendant’s plea could not be deemed voluntary . On remand, the trial court appointed Brett Stein, the attorney who represented the De fendan t on h is po st-co nvict ion p roceed ing.-2-

On May 28, 2002, t

h e Def endant again pled guilty

to especially ag gravated robbery and agreed to a seven teen-ye ar sen tence, which was to be served at one-hundr ed percent due to the Defendant’s status as a vi ol ent offe nder. The Defe

ndant the reafte r filed a petition f

or postconviction relief. After conducting an e videntiary hea

ring, the trial court denied the Defenda nt’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 wa s denied the effective assistance of counse l 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 Te nnessee Constit

ution gua

rantee a defen dant the r

ight to representationby counsel. See Statev. Burns , 6 S.W.3d 453, 461 ( Tenn. 199 9); Baxter v. Rose , 523 S.W.2d 930, 936 ( Tenn. 197 5). This r ight toc ounsel includes the right to effective counsel. See Strickland v. Washington , 466 U.S. 66 8, 686 (19 84); 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 e videntiary hea

ring. 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 be low; all questions concerning the credibility of wi tne sses, the weight and value to be given their testimony , and the factual issues raised by the evidence are to be resolvedby t

he trial j udge, n ot the app ellate courts. See Momon , 18 S.W.3d a t 156; Henley

v. State , 960 S.W.2d 572, 578-79 (Tenn . 1997). The tria l judge’ s finding s of fac t on a petition for p ostconviction relief are afforde d the weight of a jury ver

dict and are conclusive on appeal unless the evidence prepond

erates agains t those findings. See Momon , 18 S.W.3d a t 156; Henley , 960 S.W.2d at 578-79.

To determine whether counsel provided effective as si stance at trial, the court must decide whether counsel’s performance was withi n the ran ge of c ompetenc e demand ed of att orney s in criminal cases. See Baxter , 523 S.W.2d at 936; Hicks v. St ate , 983 S.W.2d 2

40, 245 (T enn. Crim. App. 1998). To succeed

on a claim that his or her counsel was ineffective a t trial, a defendant

bears the burden of showing that counsel made error s so serious that he or she was not fun ction ing 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. Se e Strickland , 466 U.S. at 687 ; Burns , 6 S.W.3d at 461; Hicks , 983 S.W.2d at 245. To satisf y th e second prong, the defe

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

would have had reasona

ble doubt r

egard ing the d efenda nt’s g uilt. See Strickland , 466 U.S. a t 694-95. T

his
reasona ble probabil

ity m ust be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v . State , 875 S.W.2d 6 62, 665 (T enn. 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 appl

ies to cla ims arising out of the

ple a 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 rea sonable p robabilit y th at,-3-

butfor counsel’s errors, he would not have pleaded guilty and would ha

ve 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 hindsig

ht 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 ma de in light of all facts and circumstances. See Strickland , 466 U.S. a t 690; Hicks , 983 S.W.2d at 246.

We now briefly re

view the facts outlined by the district

attorney g eneral at the second plea acceptance

hearing. On Septem

ber 4, 1998 , at about 6:30 p.m., the Defendant entered a servic e station. The attendant who w as working recognized the Def endant as having been in the store on prior occasions. The Defendant waited around the market for approximately thirty minutes before demanding money and attac king the gas station attendant with a knife. The robbe ry was interr

upted by a custome

r, and the

victim wa s able to escape after suffering multiple stab wounds. The Defendant

took money from the

cash register and fled. He was observed leaving the ga s station and going into nea rby woods. The police located the Defendant some time later. I n his pockets were blood-stained money and a knife case. No knife was found.

The Defendant told the police that he had been in th e st ore , bu t h e di d no t ro b i t. In fact, he said that he helped the wounded victim off the floor, which explained the presence of blood on his
mo ne y. Witnesses who saw the Defendant leave the co nvenie nce store identified him as the man they saw.

The Defend ant arg

ues that h

is attorne y w as ineff

ective b ecause

he faile d to adequ ately preparefor trial: he did not review the t ape of th e prelimi nary

hearing or reque st

a transcript of the preliminary

hearing; he did not request the appointment of an investigator

or any other expe

rt; he did notsubpoena defense witnesses; he failed to interview the vic tim or the State’s witnesses; he did not preparethe Defendant to testify ; he relied on discovery fr

om the public defender’s office; he did not request hearing dates on the pretrial motions he filed; he d id not make an effort to suppress the victim’s identification of the Defend ant; he did not file a motion to have the Defendant’s previous felony convictions ruled ina

dmissible; and he did

not adequ ately

communic ate with t

he Defe ndant. The Defendant states in his brief that, while ea ch of t he above-enumerated complaints may not constitute the ineffective assistance of counsel, their c u mu lative ef

fect cr eates a “reaso nable probability that the outcome of the c ases would have been different.”

The Defend ant’s fo

rmer att orney , Brett St

ein, testi f ied at t he evidentiary

hearing that he represented

the Defendant with respect to hi s first pos t-conviction petition and his second guilty ple a. After the trial court granted the Defe ndant’s first post-conviction petition, Mr. Stein arranged for a psy chiatric

evaluation of

the Defendant. In pr

eparation for the Defendant’s trial, Mr. Stein re ceived a file fr om the publ

ic defe nder’s o ffice, which ha

d previou sly

repres ented the

Defend ant. He a

lso testified that he had access to the State’s file. Mr. S tein e xplained that he did not request the appointment

of an investigator because he thoug ht it was unnecessary , given the likely testimony of1 W hile not raised as an i ssue on appeal, we note t hat the tri al court determined that the Defendant’s t estimony that he was hi gh on medicat ion at the ti me of his plea was not credible, a finding to whi ch thi s Court gi ves defe rence. See Momon , 18 S. W.3d at 156.
-4- the Sta te’s witn ess es. Mr. Ste in stated t hat, due t o his prior

work for the Defe ndant at the postconviction stage, he was well-acquainted with the facts of the ca se an d w ha t t he wi tn es se s w ou ld sa y. 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 predict ed that, had the case gone to trial, the Defenda nt 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 De fe nd an t h ad ch os en to te st if y, Mr. Stein would have requested a hearing to determine whether his prior convictions we re admiss ib le. Mr. Stein admitted t

hat he ne ver spoke withthe victim, but he explained that he learned every thing the vi ct im wa s g oi ng to sa y th ro ug h d is co ve ry.
On cross-examination, Mr. Stein testified that the Defendant’s theory was that he was drink ing, smoking crack cocaine, and playing cards at a convenience store. When the victim made a homosexua

l advanc e toward

him, the De

fendant defended himself b y st

abbing the victim

witha knife. The Defend ant’s pos ition was t hat he co mmitted an

aggr avated a ssault, bu

t not with the intent to rob the victim.

The Defendant testified that Mr. Stein put a great dea l of pressure on him to p le ad gu il ty. He also maintained that he was under the influence of several medications, which rendered his plea in vo lu nt ar y. 1

The order of the trial court deny ing the Defendant post-conviction relief included extensive findi ngs of fact regarding each of the Defendant’s alleg ations. The trial court found that the proof didnot supportthe Defe

ndant’s f actual a llegat ions and th at the Defendant ’s guilty plea was knowing and volun tary . The evi dence does not pr eponder ate ag ainst the f

indings o f the tria

l court.

The crux of the Defendant’s ineffective a ssistance of counse l claim is th at Mr. Ste

in failed to adequa tely prepar e for the Defend ant’s tri al. However, we conclude that the Defendant has not satisfied either prong of the Strickland test. Fir st 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 allege s that Mr. Stein w as not suf

ficientl y pr epared for tria l, it is obvious from t

he reco rd that Mr . Stein understood the facts of the case and the Defendant’s theory

of what happened. Mr. Stein attempted to suppressthe Defe

ndant’s s tatement

to police . Furthe

rmo re , he requ ested a p

re-tria l psy chiatric evaluation of the Defend ant, following which the

Defend ant was d

eclare d compete

nt to stand

trial. Alth ough Mr. Stein a

dmitted tha

t he did not perso nally

attempt to

interview the vict

imor the State’s other witnesses, he was granted ac cess to th e State’s file, and he knew the subject matter of the witnesse s’ testimony. Furthermore, the Defendant fa iled to demonstrate that anything would have-5-

been gained by

Mr. Stein personally interviewing the witnesses. Like wise, the Defend ant faile d to show how Mr. Stein’s failure to request the appointment of an investigator or othe r expert worked to his detriment. The Defend ant also c omplains th at Mr. Ste in did not subpoena any witnesses, but these witnesses did not testify at the evidentiar y hearing . The Defendant simpl y st ated that they would have explained that the money the police found on him was from a check he cashe d.

S econd, the Defendant failed to show a reasonable pr obability that, but for Mr. Stein’s alleged errors, he would not have pleaded g uilty and would have insisted on going to trial. He

did nottestify

that he wo

uld have insiste d 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

. Accord ingly , this issue

is without me

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

___________________________________ DAVID H. WEL

LES, JUDGE