### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON September 12, 2000,

Session
JACKIE L. GOOCH v. STATE OF TENNE SSEE
Direct Appeal from the Circuit Court for Lake County No. 98-CR-7752, R. Lee Moore, Jr., Judge

No. W2000-00032-CCA-R3-PC - Decided October 24, 2000

The appellant, Jackie L. Gooch, appeals from the trial court’s denial of his petition f or post

conviction relief. Pursuant to a plea agreement, the appellant entered a “best interest” plea to the charge of voluntary manslaughter. On appea l, the appellant contends: (1) that his guilty plea was coerced and, thus, involuntarily entered; and (2) that trial counsel was ineffective. After review, we affirm the judg

ment of the post-c

onviction court. Tenn. R. App. P. 3; Judgm ent of the Circuit

Court is Affirme

d.

D AVID G. H AYES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and T HOMAS T. W OODALL , J., joined. Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Jackie L. Gooch.

Paul G. Summers, Att

orney Gen eral and Reporter, Michael Moore, Solicitor General, Mark E. Davidson, Assistant Attorney G ene ral, C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

OPINION

The appellant, Jackie

L. Gooch, was indicted by a Lake County Grand Jury for the second degree murder of

his brother, Randy Gooch. On June 22, 1998, pursuant to a plea agreement, the appellant entered a “best interest” or Alford plea to a charge of volu ntary manslaughter and was sentenc ed to six years as a multiple Range II offender. On January 22, 1999, the appellant filed a pro se petition for post-conviction relief. A hearing was held and the post-conviction court entered
an order dismissing the petition. On appeal, the appellant collaterally challenges his conviction and asserts the fol low ing e rro rs: (1) The app ell ant ’s gu ilt y p lea w as not knowingly, voluntarily and intelligently

made; and (2) theappellant’s trial counsel was ineffective. Following review, we find no error. Therefore, the judgment of the Lake County Circuit Court is affirmed. Background1 THE COURT: Have you been advised by your attorney a nd/or M r., as District Attorney Genera l, Mr. Bive ns, as to the proof tha t the State feels that they have in t

his case? MR. GOOCH: Well, they showed me all the evidence that they had - -

. . . THE COURT: You’ve been ov er all the evid ence that th ey have with your

attorney? MR. GOOCH: Well, I seen all of it I wanted to see. THE COURT: What do you mea

n by t hat n ow? MR. GOOCH: I saw - - Th at’s what I seen. That’s all I want - - Ijust am tired

of - - I know - - I know I was involved in it, you kno w. If I hadn’ t been there, c ouldn’t have ha ppened, I know that

. And it’d be in my b est interest to go ahead and take t his six years and go on. THE COURT: Are you tell ing me that wit

h the proof

that you’ve

been shown, that you fee l like they ha ve, the State ha s enough proof i f the
case went to trial

to c onvict you, whet

her you agree wit

h it or not? MR. GOOCH: Oh, yes. See, it’s - - I’ve got enough proof myself

, you know, myself. I k now it. THE COURT: You k now w hat? MR. GOOCH: I know that I’m guilty. So, I d on’t, you know , I just want to do

what I’ve got

to do and move on.

-2- On November 24 , 1998, the appellant and a friend, Gregory Hay es, encountered the appellant’s brother, Randy Gooch, and Randy’s g irlfriend, Jackie Hol list er. The appellant asked Randy for the $30 he owed him, but Randy refu

sed to give it to him. Randy and Hollister then left and went to Hollister’s trailer. As Randy and Hollister were sitting on the couch, the appellant

and Hayesdrove up. Hayes waited outside while the appellant went inside the trailer. Afight ensued betweenthe appellant an d his brother . According to the appellant’s testimony, Randy hit the appellant in the head with a baseball bat, knocking him unconscious. The appellant states that when he woke up, he saw Randy lying on the floor and went to aid him. I t was at this time thathe found that Randy had

been stabbed with

his [appellant’s] poc

ketknife. The vic

tim later died as a result of the stab wounds. The appellant states that he does not recall stabbing his brother. Hollister contends she did not actually see the fight because she went outside to seek Ha yes’ help. I. Guilty Plea The appellant asser

ts that the post-con

viction court err

ed in denyin

g his petit

ion for postconviction relief. Specifically, the appellant contends that his guilty plea “was induced, coerced and notmade voluntarily

and with understanding.” The

State counters his assertion by arguing that the appellant “freely, knowingly

and voluntarily

entered his guil

ty plea and a

greed to the se

ntence he is presently serving.” 1 In order to

succeed on a post-conviction claim, the appellant bears the burden of showing, by clear and convincing evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30- 210(f)(1997). When this courtundertakes review of a lower court ’s decision on a pe

tition for post--3-

conviction relief, the lowe r court’s finding

s of fact are g

iven the weight o

f a jury ver

dict a nd are conclusive on appeal absent a finding that the e

vidence prepond

erates agains

t the judgment. Davis
v. State , 912 S.W.2d 689, 697 (Tenn. 1995) . F urthermore, once a guilty plea has been enter ed, effectiveness

of counsel is relevant only to the extent it affe

cts the voluntariness

of the plea. I

n this respect, such claims of ineffective assistance necessarily implicate the princ iple that guilty pleas be voluntarily

and intelligently made. See North Carolina v. Alford , 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970).

In Hill v. Lockhart , 474 U.S. 52, 106 S. Ct. 366 ( 1985), the United States Supreme Court addressed the issue of alleged involuntary guilty pleas resulting from erroneous or negligent advice by trial counsel. The

result reached was a

formulation of a merger of the Strickland test for ineffec tive assistance of counsel and the traditional requirements for a valid guilty plea . The Strickland test provides that, in order to

prevail on a claim of

ineffective assistance of counsel, the defendan t mus t establish that (1) the services rendered by counsel were de ficient; and (2) the defendant was prejudiced by the deficient performance. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Cooper v. State , 849 S.W.2d 744, 746 (Tenn. 1993). As applied to guilty plea

s, the first prong

above, that the se

rvices rendere

d were deficie

nt, re mains the same. See Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975); Walton v. State , 966 S.W.2d 54, 54-55 (Tenn. Crim. App. 1997). The prejudice requirement, howev er, is different in that it focuses on whether counsel’s ineffective performanc e affected the outcome of the plea process. Hill v. Lockhart , 474 U.S. at 58, 106 S. Ct. at 370. In other words, in order to satisfy the prejudice requiremen t, the appellant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial. Id. ; see also Walton
v. State , 966 S.W.2d at 55. Acc ordingly, the focus is not only

upon the actual “error” committed by counsel, but whether had c ounsel acted comp

ete ntly (1) would counsel

have changed

his recommendationas to the plea, or (2) would the competent performance ha

ve been likely

to change the outcome of a trial. See Hill v. Lockhart , 474 U.S. at 59, 106 S. Ct. at 370-371. In the present case, the appellant first contends that his plea was not vol

untary bec

ause his trial counse l coerced him into pleading guilty. After review, the post-conviction court found the appellant’s plea

to be voluntary

and explained its re

asoning as follow

s:
Petitioner first states that the conviction was based on an unlaw fully induce

d guilty plea or guilty plea involuntarily entered w ithout understanding of the nature or consequences of the plea. Mr. Naifeh [appellant’s trial counsel] an d Dis trict Att orn ey, Phil Bivens, met wit h Mr. Gooc h on Friday before his guilty plea was entered the following Monday. The proof is unrebutted that they discussed all phases of the case including the State’s proof and possible ranges of punishment for second degree murder and manslaughter. On the fol low ing M ond ay, the Petitioner entered
a plea indicating

that it was in his

best interest to enter such a plea. The Petitioner
was adv ised of all his constitutional rights. Range of punishment was explai ned

. Petitioner indicated that he

was completely

sati sfied with his attorney and that his
a ttorney had answered a

ll questions that he h

ad about the case

and his plea. Mr

.-4-

Gooch also testified that Mr. Naifeh had carried out all of the investig ation of this
case and made necessary preparat ions . He was satisfied with the manner in which Mr. Naifeh had represented him. The guilty plea

was entered two (

2) days prio

r to trial. It is clear that Mr. Gooch had considered the possibility of being convictedof seconddegree murde

r or voluntary

manslaughter in

a higher rang

e and with

a much longer sentence than the plea agreement would require. The Court finds the plea to be m ade k now ingl y and und ers tan dab ly (s ic) and give n vo lun tar ily.

The established test for determining the validity of the guilty plea is “whether

the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Hill , 474 U.S. at 56, 106 S. Ct. at 369 (cit ing North Carolina v. Alford , 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970)). We find this test was met in this case.

The record indicate

s that the trial cou

rt questioned the a

ppellant e xten sively as to whether hi s plea was ma

de with knowledg

e and understand

ing. When asked if

he was satisfied w

ith his counsel’s performance, the appellant replied that he was satisfied and had seen all

the information that he wanted to

see. Although the appellant now argues that he was “halfway crazy”

because he
was on medication at the time he made the plea, the record indicates that he told the trial court the only medication he was on at the time of the plea was blood-pressure medicine which had no effect
on his ability to u

nderstand or comp

rehend the proc

eedings. The appellant

further argues that the theory of self-defens

e was never expla

ined to him. Once again, however, the record does not support this contention. Trial counsel testified that he explained the sel f-defense theory on numerous occasions but the appellant refused to accept this defense because he denied murdering his brother. Finally, the appellant argues that his plea was not kno

wingly made because trial counsel informed him that he could

get 50 to 60 years at 85% if he did not plea. However, both trial counsel and the districtattorney’s office met with the appellant two day s before he entered his plea a nd explained the State’s proof and the possible ranges of sentences. Likewise, trial counsel testified that he went
over the possible ranges with the appellant before he ple d gui lty. Most importantly, however, the trial court explained the possible sentencing rangesto the appellant who stated that he understood his options and chose to plead guilty.

We conclude that the record fully supports the findings of the post-conviction court that the appellant has not

proven by clear and convincing evidence that his guilty

pleas were invol

untarily entered. There

fore, this issue is w

ithout merit.
II. Ineffective Assistance of Counsel To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show two things: (1) The lawyer’s pe rformance fell below an “objective standard of reasonableness,” Strickland, 466 U.S. at 687-688 , 104 S. Ct. at 2064-65 ; Baxter , 523 S.W.2d at 936; and (2) “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the procee ding would ha ve been different.” Strickland 466 U.S. at 694, 104 S. Ct. at 2068. In State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999), our supreme court held that “[c]ases that involve mixed questions of law and fact are

subject to de novo review.” (ci ting Harris v. State , 958 S.W.2d 799, 802 (Tenn.-5-

Crim. App.), perm. to appeal denied , (Tenn. 1997)). Specifically, the supreme court determined that issues involving alleg

ed deficient per

formance of cou

nsel and possible

prejudice to the defense are mixed questions of law and fact. See Burns , 6 S.W.3d at 4 61. Althou gh we perform a de novo review of the issue, the appellan t must still establish his allegations by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f)(1997).

The appellant argu

es t hat the post-conviction court erred in finding that he had effective assistance of counsel when h e pled guilty

to voluntary manslaughter. First, the appellant contends that his attorney

was ineffective

because he told th

e appellant his fin

gerprints w

ere found on the baseball bat when no matching prints were, in fact, found. The appellant co ntends he wo uld not have pled guilty had he known his fingerprints were not on the bat. However, the appellant himself introducedtwo witnesses at the post-conviction hearing who testified that they saw the appellant hol ding a bat after the in cident occurre

d. Furthermore

, the appellant’s

brother died fro

m a sta b wound. He was not beaten with a baseball bat. Therefore, no prejudice can be sh own from trial counsel’s error.

The appellant next contends that trial counsel was ineffective because he failed to interview
someof the police officers involved, Gregory Hay es, and Jackie Hollister. Trial counsel, however, testified that he did interview one officer. He also testifiedthat he interviewed Hollister twice and made sev eral unsuc cessful attempts to contact Hayes. Furthermore, trial counsel testified that he viewedall of the evidence collected by the officers and

reviewed all sta

tements made by

witnesses. Add iti ona lly, trial counsel testified that the testimony of Hayes would be of little importance since he was not

in the trailer when the actual stabbing took place and could offer no explanation of what actually happened in the trailer.

The appellant also

argues that trialcounsel was inef fective becaus

e he refused to sp

eak with the medical examiner

who performed th

e autopsy. T

he appellant con

tends that it

would have been difficult for him to stab the vi

ctim under the victim’s left armpit because he is left-handed. Trial counsel, however, testified that he did not see any needto subpoena the me dical examiner be

cause she would simply testify that the victim died as a result of a stab wound.

The appellan

t next asserts that

trial counsel was ineffective because he failed to file a motion to suppressthe appellant’s statements to police. The appellant contends that he requested that an attorney be present before he signed the sta

tement, but was re

fused his request

by the sheriff. The appellant further asse

rts that trial counsel should have made a motion to suppress the appellant’s statements

to police because he

had a knot on his hea

d from the baseba

ll bat at the time

he made the statements. The proof at the post-conviction hearing, however, was that the appellant was read his rights, agreed to

make the s tatements, and did not request an attorney. Furthermore, trial counsel testified that he reviewed

the medical record

s which indicated

that the appellan

t had some blood in his ear, but was not suffering from any he

ad trauma. Conseq

uently, tria

l counsel felt

there was no basis for suppres sing the stateme nts.-6-

The appellant further contends that he received ineffective assistance of counsel because trial counsel failed to pursue a theory of self-defense. Tr ial counsel, however, testified that he had discussed the self-defense theory with the appellant on more than one occasion and felt that “he had
a prett y good case for self-defense,” but the a ppellant would not allow him to pursue that theory because he “did not have anything to d o wi th the stabbing, that someone else killed Randy.” The State also agre

ed that the appell

ant consistently

denied he stabbe

d the victim.

Fin all y, the appellant asserts that he was denied effective assistance of counsel when his trial counsel coerced him into speaking with the district attorney a few day s before he enter ed his plea of guilty. However, the record cle arly reveals that this discussion was made pursuant to the appellant’s req

uest and agains

t the advice of tr

ial counsel.

We conclude that

the appellant has failed to establish, by clear and convincing evidence, that he was denied

effective assis

tance of counse

l. The transcript

of the guilty

plea hearing reveals that the trial court

thoroughly

advised the appe

llant that he was w

aiving his right

s to appeal by pleading guil ty. Additionally, the trial court provided the appe lla nt relevant sentencing information. Moreover, the appell ant

testified that he was satisfied with his counsel’s performance and agreed that the guilty plea was in his “best interest.” Thus, the record supp orts the post-conviction court’s conclusion that th e appellant received competent and effective assistance of counsel when he ente red his plea. Theref

ore, this issue is wi

thout merit.
CONCLUSION

After a thorough review of the record, we find the a pp ellant has failed to establish that he received ineffective assistance of counsel. Furthermore, we find that the appellant’s gui

lty plea was entered into voluntarily

and knowingly

, with full awareness of his constitutional rights. Therefore, the judgment of the Lake County Circuit Court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE