# FILED

Au gust 27, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE SEPTEMBER 1995 SESSI ON

JAMES RONAL D ROLLINS, ) ) Appellant, ) NO. 03C01-9412- CR-00440 ) ) HAMILT ON COUNTY V. ) NO. 198332 ) ) HON. RUSSELL C. HINSON, JUDGE STATE OF TENNESSEE, ) ) ( Post -con victio n on e spec ially ) aggrava ted r obb ery) Appellee. )

FOR THE APPELLANT : FOR THE APPELLEE : Barton C. Sol omon Charles W. Burson CRUTCHFIE LD & SOLOMON Attorney Gen eral and Repor ter 100 East Tenth Street , Suite 401 Chattanooga, Tennes see 37402 Amy L. Tarki ngton Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, Tennessee 37243 William H. Cox, III Distric t Attorney General David De nny Assistant D istrict A

ttorney Gener

al 600 Market Str

eet, Suite 310 Chattanooga, Tennes see 37402

OPINION FILE D: _______________
Affirmed
Lee Russ ell, Spe cial Judge

OPINION2 The Petitioner ap peals from the tri al court’s dismissal of his Peti tion for PostConvicti on Relief. The P et itioner all eges that he was denied his r ights under the Sixth A mendment to th e Con stit utio n of the U nite d Sta tes b ecau se he rece ived in eff ecti ve assistance of counsel at his sentencin g heari ng followin g a plea of guilty to especially aggravated robb ery. The Petitioner al leges that at the sentencinghearing, hi s attorney failed to ch alle nge o ne of the s ix prior convicti ons that formed the basi s for the sentencing judge’s d etermination that the Petitioner

should be sentenced as a career offender. This court fin ds that the Petit ioner failed to meet his burden of

proof to show that he rec eive d ineffec tiveassistance of counse l, and the cou rt affir ms the dismissal of the P etit ion for P ost- Conv ict ion Rel ief.
Petitioner

James Ronald R ollins was indicted i n Hamilton Coun ty, Tennessee, in 1990, on a charge of especially aggrav ated robbery . On October 9 , 1990, the date on which the Petitioner was scheduled to be tried by a jury in Divis ion II of the Criminal Court of Hamilton Count

y, Tennessee, t he Petitioner entered a plea of guilty to the charg e on which he was in dicted. A sent encing heari ng was conducted on Februar y 1, 1991, and th e Petitioner w

as sentenced to s ixty years at s ixty percent as a ca reer offende r. Th e s entencing judge’s det ermination that the Petitioner was a car

eer offender was b as e d upon Tennessee Code Ann otated § 40-35-108(a)(1), which requires a finding of six prior convictions of class A, B, or C felonies. At the sentenci ng hearing , appointed counsel forthe Petitioner

asked the trial judg e to rule on w hether the State’ s exhibits concerning the Petitioner’ s prior convicti ons were s ufficient to prove six pr ior convi ctions of the classesnecessary

to find the Petiti oner to be acareer offender under Tennessee Code Annotated § 40-35-108(a) (1). Counsel for thePetitioner al so challeng ed the sufficiency of the State’s Notice to Seek En hanced Senten cing.

The trial judge fou nd th at th e Sta te ha d pro ved th e nec essa ry p rior con victions, and the Petitioner

appealed his se ntence to the Cour t of Criminal Appeals. The issue on appeal was t he sufficiency of the Notice to See k Enhanced Sentenci ng. No issue was3

raised on appeal as to t he characteri zation of any of the six pr ior felony convictions . The Court of Criminal Appeals affirmed the sent ence. On September 23, 19 93, the Petitione r filed a Petition for Post-Conv iction Rel ief assertingthat he had been deni ed his rig ht to th e effective assi stance of counsel g uaranteed by t he Sixth Amendment to t h e Constitution of the United States . A hearing was held in the trial court on July18, 1994, and the trial j udge dismiss ed the Petition. The Petitioner ha s appealed the dismi ssal to this court.
The Petition ini tially alleged multiple mist akes by the Peti tioner’s co unsel related to his guil ty

ple a and the subseq uent sentencing hearing. Howeve r, the Petiti oner on appeal now pursue s only a s ingle is sue related to his attorney ’s competence. The Petitioner

claims that on e of his six prior conv ictions, a 198 0 convicti on for burglary in CookCoun ty, Illi nois, should not have been treated as a class A, B, or C fel ony

fo r purposes of de ter mini ng t he Pe tit ione r tobe a career offe nder . Non e of the o ther five prior convicti ons is chall enged. The Petiti oner asserts that his couns el at the sentenc ing phase failed to investigate and research the Illinois convicti on and failed toobject to its introduction at the sentenci ng hearing. The Petitioner asserts that his counsel fail ed to challen ge on appeal the trial judge’s det ermination that the 1980 Illinoi s convic tion was at least a cl ass C felony for purposes of

determining the Petitioner’s status as a career offende r.
It is undisputed that in 1980, the D efendant entered a plea of guilty to burglary in Cook County, Il linois, and r

eceived a

sentence of threeyears. The Petitioner as serts that in 1980, the Stateof Illinois did not distinguish among various classifications of burglary based upon either the nature of the structure entered or the infliction of injury to an
occupant of the str ucture. The Ill inois judg ment is in ev idence, but it does not recite the fac tual basi s fo r the plea to th e cha rge of burgl ary. The only evidence in the record on whatthe factual basis was for the Illinois burglary conviction is the Petitioner’s testimony at the post-conv iction heari ng. The P etiti oner testified th at he was i ntoxicated, that he4

believed himself to be at the do or of his own apartment build ing (wh ich was twent y-five yardsup the street) , that he could not get in and therefore brok e the glass in the door to gain entry , and that the buil ding was in fact an accounti ng office containi ng a few tables and chair

s. Onlytwo witnesse s testif ied at th e post-c onviction hearing. The Petitioner testified that the Illinoi s incident occurred asdescribed abov e. The attorney w ho had represented the Petitioner in his guilty plea and at the sentencing heari ng and appeal in the Tennessee robbery case testified for t he Stat e at the post-conviction hearing. The attorney recalled investigating the six prior convict io ns and concluding that they all qualified as class A, B, or C feloni es. The trial judg e at the post-conv iction heari ng made
an express finding that he did not bel ieve the Peti tioner’s testimony concer ning the facts that led t o the Illin ois co nvict ion, and h e obs erved that the I llino is jud ge mu st no t have believed the Petitioner’s vers ion of the facts if he accepted the P etitioner’s guilty plea and sentenced the Pet itioner to three years. The trial judge at the post-conv iction heari ng concluded that the Illi nois convi ction had been a class C felony and that the assistance by the Petit ioner’s couns el at the sentenc ing hearinghad not been ineffective.
The Sixth Amendment of the United S tates Constit ution and Arti cle 1, § 9 of the Tennessee Constitutio n require that a defendant in a cr imina l case rece ive ef fec tive assistance of coun sel. See Baxter v. Ro se, 523 S.W.2d 930 (Tenn. 1995). The appropriatetest for determining whether counsel provided e ffective assis tance is whe ther his or her performance was within the range of com petence deman ded of attorn eys i n criminal cases. Id. at 936. In Strickland v. Washington, 466 U.S. 668 (1984 ), the United States Suprem e Court a pplied a two-pron g test to deter mine whether effe ctive assistance had been ren der ed. First, a petitioner for post-conv iction rel ief must show t hat the representation was defici ent by showing that counsel made errors so serious that he or she was not functi oning as “counsel” as g uaranteed by t he Sixth Amendment , an d second, that the defic ient represent ation prejudi ced the defense to suc h an extent that the petitioner w

as deprived of a fair resolut ion of the charges a gainst him or her. To5

succeed, the petitioner must show that there is a “reason able probability,” tha t is, a probability

sufficient to undermi ne confidence i n t he outcome, that, but for counsel’s unprofessional errors, t he results of the proceeding w ould have been d ifferent. Id. at 694. The defenda nt must establish that counsel’s perf ormance fell belo w an ob ject ive standard of reasonableness u nder prevailing professi onal norms. Id. at 687. In postconvicti on proceedings , the petitioner has the burden of pr

oving th e allegati ons in his or her petition by

a preponderance of the evidence. See McBee v. State , 655 S.W.2d 191, 195 (Tenn. Crim

. App. 19 83). Th e find ings of t he trial co urt in po st-convict ion hea rings
are conc lusive on appeal unless the evidence preponderates ag ainst the judg ment. See State v. Buford, 666 S.W.2 d 4 73, 475 (Tenn. Cr im. App. 1983); Clenny v. Sta te, 576 S.W .2d 12, 14 (Tenn. Crim. Ap p. 1978).
The Petitioner

contends that hi s 1980 Illinoi s convic tion for burgl ary shoul d not have been coun ted a s one of t he si x p rior convic tions for clas s A, B, or Cfelonies necessaryto qualify

the Defendant as a ca reer offender. Tennessee Code Annota t ed § 40-35-108(b) (5) provides as follows

concerning including felonies in jur isdictions other than Tennessee for purposes of esta blishing career offende r status:
“Prior convicti ons” includes

convicti ons unde r the laws of any other state, government, or cou ntry wh ich, if co mmi tted in th is sta te, s hou ld ha ve constituted an offense cogniz able by the l aws of thi s state. In the ev ent that a felony from a jurisdic tion other than Tennes see is not a named fel ony in this state, the elements of the offense shall be used by th e Tennessee court to determine wh at classification the offense is g iven.
The Petitioner contends that the offe nse in Illinoi s as it ex isted in 1980 w as named simply“burglar

y.” ThePetitioner contends theref ore that the offense is a named felony

in Tennessee and tha t in fact it is the same off ense that is called burglary in Tennessee Code Anno tate d § 39 -14- 402 enti tled “Burg lary. ” T he Tennessee of fense of simp le burglary is a class

D or clas s E fel ony, de pending on w hether the entry is of a buildi ng or a motor vehi cle. The Defendant argues that therefore theIllinois convicti on could not be counted asa class C felony for purpos es of establishi ng career offender status and6

that to have allowed its use was ineffective r epresentation by

defense counsel at t he sentencing hea ring.
The Petitioner contends that in 19 80, Illinois had o nly one g eneral offense of burgl ary, which p roscr ibed entr y w ithou t authority into a “building, house trailer, watercr aft, aircraft, motor

vehicle . . ., rail road car, or any part t her eof, with int ent to commit therein a felony or theft.” Il l. Code 39 § 19- 1. The offense carried thr ee to seven years. No distinc

tion wasmade based on the natur e of the building (a habitation o r not)
or based o n the i nflict ion of i njury on the v icti m. In Tennessee, the“burglary” defined in Tennessee Code Annotated §39-14-402 is that of a building“other than a h abitation” or is burglary

of a motor vehi cle. “Ag gravated Burglary ” as defined in Tennes see Code Annotated § 39-14-403 is thatof “any structure, including buildings, model units, m obile homes, trailers and tents, which is designed or adapted for the ov ernight accommodation of pe rsons . . . .” “ Especially Aggrav ated Burglar

y” is d efined in Tennessee Cod e Annotated § 39-14-404 as a burglary of a habitation in which the victim suffers bodil y inju ry.
There is not merel y a sing le “named”offense of burglary in Tennessee to which the 1980 Illinoi s burglar y statute can be matched under Tennes see Code Annotated § 40-35-108(b)( 5) to classify that prior convicti on. The Petitioner had the burden of proof to prove which of the three versions of burglary in Tennessee has the ele ments of the offense committed by

the Petitioner

in Illinoi s. Introduction of the Illinois judgment did n ot meet this burden because it did not describe the c rime as to thenature ofthe structure entered or as to w hether there was injury of an occupant inv

ol ved . The refo re the Petitioner

had the burden to pr

ove by other evi dence that the convi ctio n did not i nvolve the entry of a ha bitation.
The Petition er atte mpted to meet his bur den by testi fying that h is entry was an accidental entry in to a substantial ly empty busi ness . The trial judge did n ot be lieve this account, and the trial judge’s factu a l fin dings on the credibility of this witness are
conc lusive on appeal unless the evidenc e preponderates ag ainst the finding s. See Blade7

v. State, 794 S.W.2d 725, 755 (Tenn. Crim. App. 1990). The trial judg e was clearly correct when he conclude d that the Petiti oner’s ve rsion of the facts w as incredibl e, especiallyas the trial judge in Il linois had accepted the Petiti oner’s gui lty pl ea a nd sentenced him to three years. It is highly unlikely that the Petiti oner was, as he testified, too intoxi cated to ascert ain the difference bet ween the front door of his own resi dential building and the front door of an accounting bus iness whi le at the same ti me he had the clarity of thought to take note of and recall the contents of that bui lding, in spite of being apprehended by officers as soon as the g lass of the front door was acci dentally br

oken.
It is also noted that nowhere in the record of the post-convi ction hearingwas the Illinois statute as it

existed i n 1980 introduced. The State did not st ipulate the cont ents of that statute. I t is true that the Petitioner appended to his br ief on appeal what purports to be a photostatic

copy of the statute, butit was not introduced at the hearing, and the trial judge did not have the benef it of it in the record upon which he rendered his d ecision. Production of the sta tute was again the burden of the Petitioner.
Because the Petitioner has failed to pr

ove that the I llinois conviction was not a class C felony, he has failed to me et his burden to prove that def ense counsel’s representation was defici ent or that but for the def icien cy the Peti tion er wou ld no t have been sentenced asa career offender. The dismissal of the Petitioner’ s Petition for P ostConvicti on Relief is affirmed.

LEE RUSSELL, SPE CIAL JUDGE

CONCUR:

____________________________ WILLIAM M. BARKER, JUDG E8

____________________________ JOHN K. BY ERS, SENIOR JUDGE