### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs F eb ru ar y 8, 200 5

UN TE HE ND ERS ON v. ST ATE OF TEN NES SEE
Appeal f romthe Circ uit Court for Rutherford Coun ty No. F -54159 Don R. Ash, Judge

No. M2004- 00938-CCA -R3-P C - F iled April 15, 2005

Th e pe tit ion e r, Un te He nd e rs on , app e a ls fr om the Ruthe rf or d Cou nty Cir c uit

Cou rt ’s de nia l of

his pe tit ion fo r p os t- c on vic tio n r e lie f f ro m hi s g uil ty ple a s to sec on d de g re e mur de r an d c on sp ir a c y to commit ag g ravated robbe ry and ef fec tive nineteen- y ear sentenc e. He contends that he rec eived the ineffe ctive assistanc e of c ounsel bec ause his attorne y coer ced him int o pleading g uilty . We affirm the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , J ., delivere d the opi nion of the c ourt, in which N OR MA M C G EE O G LE a n d J. C. M C L IN , J J ., joined.

L arry D. B randon, Mur fre esboro, Te nnessee , for the a ppellant, Unte He nderson.
Paul G. Summers, Attorney Gene ral a nd Reporter ; Eliz abeth B

. Marne y , Senior Counsel; W illiam C. W hitesell, J r., District Attorney Gene ral; and J. Paul Newm an , As s i stant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

This case arises f

rom the robbe ry

and murde r of Cory

Tal l ey

. On J an uary

10, 2003, the petitioner pled g uilty

to se cond deg ree murder and conspirac y to c ommit ag g ravated robbe ry . At the ple a a c c e pta nc e he ari ng , th e state su mma ri zedthe e vid e nc e a g a ins t th e pe tit ion e r a s f oll ow s:

On or abo ut M arc h 1 8, 20 02 , th a t Mr . H e nd e rs on , a lon g wi th Mr. Crawf

ord, did involve themselves in a robbe ry of a vic tim named Mr. Cory T al l ey . The location of this event was, Hooke rs B ait and Tac kle Shop, in Rut herf

ord County , State of Tenne ssee. And that at this particular loc ation wher e this happene d that Mr. Crawf ord, who is the codef

endant, the state believes fata lly shot Mr

. Talley
, t wo times with a 380 caliber

handg un.-2- During part of this alter cation, Mr. He nderson wa s in contact with the vi ctim, Mr. Talley
, and at some point did have his ha nds on him and was holding him. After Mr. T alley had bee n shot the proof

wo uld b e th at it a

pp e ars fr om the e vid e nc e a ndfr om the state me nts g iven that his pockets we re go n e t h roug h. There wer e items taken from his vehicle . And af ter that Mr. H ender son and Mr. Crawford then fl ed the sc ene. T hey wer e deve loped as suspec ts. They wer e interviewe d by

the police. As a

result of t hat interview there was blo od y c lothe s r e c ov e re d f

ro m a tr a sh du mps te r. I n th a t tr a sh dumpster there wer e clothes that appar ently wer e worn by

Mr. Hende rson at the time that did have what the state believed to be the victim’s blood on them. Also a wea pon was rec overe d. I t was found in a local body

of wa ter by

Detec tive J ack K eis l i ng of the sheriff’s de pa rt me nt. Th a t f

ir e arm wa s se nt t o th e la

b a nd wa s d e te rm ine d to be the murde r we apon.

J udg e, both Mr. Craw ford a nd Mr. Henderson we re interviewe d by

the police. And a s a r es ult after those interviews or during t h o s e intervie ws they did tell, although diff

ere nt stories at dif fe re nt time s a

bo ut w hat ha

pp e ne d, the y bo th did make sta te me nts that w e re ve ry

inc ulp a tory

a ndwe ig hs ou t to a c on fe ssi on a s to the ir involvement both in the robbery and in the murde r. Following the state’s pr offe r, the trial court informed the petitioner of his constituti onal rig ht (1) to a spe edy

and public trial, (2) to a jury trial, (3) to the assistance of counse l, (4) to see , hear and

cross-e x amine witnesses, ( 5) to compel the pr oduction of favor able evidenc e, (6) to a pre sumption of inn oc e nc e , ( 7) to r e ma in s ile nt, (8 ) t o h a ve a jury imp os e a ny

fi ne in e xce ss o f $ 50 a nd , if convicted, ( 9) to file a motion for new trial. The trial court asked t he petiti oner if his attorney had

e xpla ine d th e ra ng e of

pu nis hme nt andwh a t th e state wo uldha ve to p ro ve in o rd e r t o c on vic t hi m,
a s w e ll a s d e fe nses ava ila ble , a ndif

the pe tit ion e r h a d g on e ov e r the ple a a g re e me nt w ith his attorney . The pe titioner answer ed these questions in the affirmative. The tria l co u rt asked the petitioner if he ha d been f orce d or coe rce d to enter the plea a nd if the petitioner ha d any “g ripes or complaints” ag ainst his attorney . The pe titioner replied no to each question. The trial court ac cepte d the pe tit ion e r’ s p le a s, fo un d hi m gu ilt y of se c on d d e g re e mur de r andc on sp ir a c y to c omm it ag g ravated robbe ry , and sente nced him to ni netee n y ear s for the se cond deg ree murder and three y ear s for the conspirac y to commit ag g ravated robbe ry , to be serve d concur rently in the Depa

rtment of Corre ction.
The pe titioner filed his petition for post-conviction re lief cla iming that he r ece ived the ineffe ctive assistanc e of counsel beca use he was coer ced by his attorney into pleading g uilty . The p et i t i o n asserts that the petitioner’s attorne y advised him that if he we nt to trial, he would be convicted of first deg ree murder a nd would be sente nced to f ifty -one y ear s. The petition alleg es that the petitioner felt coer ced because he did not rec eive videotapes of witnesses until t he day befor e he-3-

was to ente r his plea. The petition also alleg es t hat t he petiti oner requeste d a chang e of venue, that his attorney

told him he would file the nec essary motion, but t hat he ne ver r ece ived a c opy

. At the post-conviction hea ring , the petitioner testified that he felt coer ced be cause he did not

rec eive videota

pes of witnesse s the state intended to c all until th e d ay b efore the plea acc eptanc e. He sa id the videotapes w ere broug ht to the jail for him to review. He said he r eviewe d the videotapes a nd saw the w itnes s es t h at would be pre sented to testify ag ainst him at trial. The p e t i t i o n e r s a i d t h a th e a n d h i s a t t o r n e y h a d c o n f l i c t i n g v i e w s ab o u to n e o f t h e w i t n e s s ’ s t e s t i m o n y. He sa id t h e at t o rney

believed the testimonywas da mag ing but that he did not. The petitioner testified that his attorney

encour ag ed him to plead g uiltybased on tha t one witness’s testimony . The petitioner testified that he and his attorney did n o t re v i ew the videotape s toge ther. The petitioner also claims that he wa s coer ced be cause he did not r ece ive documents perta ining to his trial until the la st m inu te . H ow e ve r, the pe tit ion e r c on c e de d th a t he ha d th e op po rtun ity to r e vie w the do c ume nts

. Th e pe tit ion e r t e sti fi e d that he wa s g ive n a ll the vid e ota pe s a ndtw o h ou rs to r e vie w the m a t th e ja il. The pe titioner said he did not mak e a co m plaint ag ainst his attorney beca use he thoug ht he was

s u p p o s ed t o go al o n g wi t h ev er y t h i n g.

Th e pe tit ion e r t e sti fi e d th a t he ba se d h is d e c isi on to p le a d g uil ty on his a tto rn e y ’s jud g me nt. H e s a id h e d id n o t f

e e l th a t h e s h o u ld h a v e p le d g u il ty

. T h e p e ti ti o n e r te s ti f ie d th a t he did not understand w hat he wa s d o i n g at t he time he e ntere d his plea. He said he a nswere d “y es” to the questions that he was a sked bec ause he thought if he did not, the plea would be take n away , and he would rec eive a

sentenc e of f

ifty -one y ear s. The petitioner testified that he and his post-conviction attorney had met and g one over the transcript f rom the plea acc eptanc e hearing. He a cknowledg ed that his testimonyat the post-convic tion hearing was diff eren t fr om his testim ony at the plea

ac ce p t an ce h ea ri n g. The pe titioner testified that he met wit h his trial attorney four or five times af

ter he was appointed and that h e u n d erstood what he was c harg ed with. He sa id he did not think he had a chanc e to r eview every thing befor e trial beca use he did not rec eive all of it until the last minute. He said his trial attorney told him that if he did not take the plea, he w ould ge t a worse sentenc e. The petitioner testified that he wanted a chang e of venue beca

use of pretria l publicity

. He sa id he knew of no hea ring reg arding a cha ng e of ve nue. He said his at t o rn ey ’s per formanc e wa s deficie nt for failing to attempt to chang e venue

.
On c ro ss- e xami na tio n, the pe tit ion e r a c kn ow le dg e d that the re wa s on ly on e vid e ota pe he did not watch, that he had no complaints about watching the v i d eo t ap es, and tha t he watc hed the videotapes he wanted to watch. The pe titioner also said that he re ad all the doc uments he re ceive d perta ining to his trial and that he had no complaints about rea ding the docu m en t s

. T h e p etitioner acknow ledg ed he r ece ived letters f rom his attorney

reg arding an off

er, a bout motions, and a

bout the char g es ag ainst him. He said that his attorney discussed the c harg es ag ainst h i m an d t old him he could re ceiveup to fifty -one y ear s. The petiti oner acknowle dg ed that he met with his trial attorney fi ve or six tim e s a ndthat he sp e nt a s mu c h ti me a s nee de d w ith his a tto rn e y wh e n h e me t w ith him

.-4-

The pe titioner acknow ledg ed that he kne w he c ould have g one t o t ri al
, t estified, and subpoe naed wi tne sse s.

Th e pe tit ion e r’ s tria l a tto rn e y te sti fi e d th a t hewa s a

pp oin te d to re pr e se nt the pe tit ion e r i n September 2002. F ollowing his appointm en t , he obtained a copy of the c ourt file, filed pr etrial motions, filed a discovery reque st, and went to see the petitioner. He testified that the first time he met with the petitioner, he spent about three hours with him going over the indictment, review ing the court file, and dis cussing the facts of t he case. He sa id he explained the cha rg es to the petitioner, g ave the petitioner copie s of statutes under which the petitioner was char g ed, as we ll as sentencing statutes for f

irst deg ree murder, a nd revie wed them with the pe titioner.

The trial attorney t es t i fi ed that he and the petitioner did not watc h the witness videotape s tog e the r be c a us e the pe tit ion e r be c a me up se t and re fu se d to watc h th e tape s f urthe r. He sa id h e did dis c us s th e c on te nts of

the vid e ota

pe s w ith the pe tit ion e r andho w the y wo uldbe us e d at tria l.

Th e tr ia l a tto rn e y

te sti fi e d th a t he ne ve r dis c us se d w ith the pe tit ion e r w hat th e le ng th o f h is sentenc e mig ht be. He said he gave the petit ioner a copy of t he sentencing statutes on murder a nd let him derive fr om that his exposure. The trial attorney stated that he ne ver told the pe titioner that proce eding to trial would result in a convic tion. However , he said he did tell him that if he did not win at trial, he w ould fac e a substantial pe riod of time in the penitentiary

. The trial attorney testified that he ne ve r d isc us se d a c ha ng e of

ve nu e wi th the pe tit ion e r. He sa id that he kn e w n oth ing to indicate the pe titioner was coe rce d into pleading g uilty . He sa id the pet i t i oner w as an intellig ent y ou ng ma n, wh o h a d p le nty of tim e to d ig e st h is c ho ic e s.

On cr o s s -e x am i n at i o n , t h e t ri al at t o rn eyac k n o w l e d g e d t h at h e h ad re p re s en t ed a l ar ge number of pe ople cha

rged with serious crimes, conduc ted seve ral trials, a nd tried seve ral murde r
c a s e s

. H e s t a t e d h e b e l i e v e d h e d i d w h a t w a s b e s t f o r t h e p e t i t i o n e r

b y a d v i s i n g h i mt o p l e a d g u i l t y. The attorney said that he revie wed the ple a ag ree ment with the petitioner and tha t the petitioner knew wh a t he wa s d oin g by

e nte ri ng int o th e ple a

a g re e me nt.

Th e tr ia l c ou rt

fo un d th a t th e pe tit ion e r fa ile d to sh ow his tr ia l a tto rn e y ’s pe rf orma nc e fe ll below the standa

rd set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct . 2052, 2064 (1 98 4) . It f

ou ndthe a tto rn e y ’s re pr e se ntatio n to be “ ou tst a nd ing .” I t a lso fo un d n oth in g to underm i n e t h e co nfidenc e and the outcome of the g uiltyplea. It further found that the plea

was voluntarily

enter ed and f

ree from coe rcion ba sed upon petitioner’ s intelligenc e; his familiar a ttitude with criminal proce eding s; the fac t that he was r epre sent ed b y competent counsel and ha d opportunity

to confe r with counsel; the a dvice of counsel and the c ourt about the c harg es ag ainst the petit i o n er ; and the pe titioner’s rea sons for plea ding g uilty , including the desire to a void a g reater pe na lty in a jury tr ia l.

The burde n in a post-conviction proc eeding is on the petitioner to prove his g rounds for relief by clea r and c onvincing evidenc e. T.C.A. § 40-30- 110 (f ). On ap peal, we are bound by the trial

c ou rt ’s fi nd ing s o f f

a c t un le ss w e c on c lud e th at th e e vid e nc e in the re c or d p re po nd e rate s a g a ins t-5-

those finding s. Fields v. State, 40 S.W.3d 450
, 456 (Tenn. 2001) . Be cause they relate to mix ed questions of law a nd fac t, we re view the tria l court’s c onclusi o n s as t o wh ether counsel’s perf ormanc e wa s deficie nt and whethe r that def ic ie n c y was pre judicial under a

de no vo sta nd ardwi th no presumption of cor

rec tness. I d. at 457.

Under the Six th Amendment, when a claim of inef

fec tive assistance of counsel is ma de, the burden is on the pe titioner to show (1) that counse l’s perf ormanc e wa s deficie nt and (2) that the defic iency was prejudicial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see L oc kh art v. F re tw e ll, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). I n other words, a showi n g t h at co u n s el’s perf ormanc e fa lls below a re asonable standard is not enoug h; r ather
, the petitioner must also show that but for the substanda

rd per formanc e, “the result of the pr ocee ding would have be en diffe rent.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. W hen a pe titioner ple ad s gu i lty , he must show a

re a so na ble pr ob abil ity

that, b ut f or the e rr or s of his c ou ns e l, he wo uldno t ha ve ple d g uil ty . Se e Hi ll v. L ockhar t , 4 7 4 U.S. 52, 59, 106 S. C t. 366, 370 (1985); Adkins v. State, 911 S.W .2d 334, 349 (Tenn. Crim. App. 1994)

.
Th e pe tit ion e r c on te nd s th a t he recei ved th e ine ff e c tiv e a ssi sta nc e of

c ou ns e l be c a us e his attorney coer ced him into pleading g uilty instead of g oing to trial. The pe titioner also contends he

wa s c oe rc e d in to p le a din g g uil ty be c a us e he didno t r e c e ive vid e ota pe s o f the state ’s wi tne sse s u nti l the day befor e he was supposed to e nter his g uilty plea. The state cla ims that the petitioner was not

coer ced a nd that he voluntarily enter ed his plea. We a g ree with the state.
At the post-conviction hea ring , the petitioner’s tria l attorney t es t i fi ed he did not know anything to indicate that the petit ioner was coer ced into pleading g uilty . The attorney also stated that h e w o u l d n o th av e le t t h e pe t i t i o n er en t er t h e pl ea i f th e pe t i t i o n erd i d n o tk n o w w h at h e w as d o i n g. During the post-convic t i o n h ea ri ng , the trial court asked the pe titioner the following questions

co n ce rn i n g h i s t es t i m o n y

at t h e p l eaac ce p t an ce h ea ri n g:

THE COURT: Stop there
, on pag e 6, L ine 15, I asked y ou u n d er oath, y ou g ot any g ripes or complaints ag ainst him, what did y ou tell me?

[THE PETI TI ONER]: I said no sir.

T H E CO U RT : On Pag e 6 , L in e 1 , sir, has any one fo rc e d y ou or c oe rc e d y ou to en te r this plea today . What was y our answe r?

[THE PETI TI ONER]: No, sir.-6- TH E CO UR T: S o, wha t am I su pp os e d to do ? Just g ue ss w he the r o r no t y ou ’r e te lli ng me the truth?

[THE PETI TI ONER]: No. I u n derstand w hat y our position is. I just didn’t wa n t y ou to take the plea ba ck fr om me then a t the time. Be cause I

t h o ug ht if y ou did I

was g oing to g et a life sentenc e.

TH E CO UR T: Rig ht. Yo u we re a fr a id if y ou we nt t o
a jury trial, y ou wer e g oing to g et a life

se nte nc e , rig ht?

[T H E PE T I T I O N E R] : Ye s , s ir

. Be cause my lawy er, who

su pp osedto b e de fe nd ing me , th is i s what he is telling me.

THE COURT: He was rig ht, wasn’t he? I f y ou wer e convicted y ou could have g otten a life sentenc e.
[THE PETI TI ONER]: Yes, sir.

TH E CO UR T: I f I set th is asid e a nd we ha ve a tr ia l, y o u u n d e r s tan d y o u ’ d b e g o in g to the penitentiary

for 51 y ear s, never

g etting

ou t.
[ T H E P E T I T I O N E R ] : Yes, s ir

. I ’ m r e a d yto ta k e tha t chanc e, y our Honor.

We con c lu d e th a t th e e v id e n c e d o e s n o t p r e p o n d e r a te a g a in s t th e tria l c o u r t’ s f in d in g th at the petitioner fa iled to show by clea r and c onvincin g ev i d en ce t hat he wa s coer ced into ac cepting the plea a g ree ment.

B a se d up on the fo re g oin g a nd the re c or d a s a wh ole
, we a ff ir m the jud g me nt of the tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE