### FILED August 9, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE 1999 SESSION

MARTY PURKEY, ) ) C.C.A. NO. 03C 01-9804-CC-00150 Appellant, ) ) GRAINGER COUNTY VS. ) ) HON. REX HENRY OGL E, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
ROGER A. WOOLSEY PAUL G. SUMMERS 118 South Main St. Attorney General & Repor ter Greeneville, TN 37743 ERI K W. DAAB Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 AL C. SCHMUTZER, JR. District Attorney General W. BROWNLOW MA RSH Asst. District Attor

ney General 339 East Main St. Newport, TN 37821

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The petitioner enter

ed a negotiated guilty plea to second-degree murder and was sentenced to twenty -five years in pri son. He filed a petition for post-c onviction relief, alleging that his attorney was ineffective and that his guilty plea was not knowingly and v oluntari ly g iven because he was in competent at the time he pled. Foll owing an evidentiaryhearing, the post-conv iction court denied the petition, and the petitioner now appeals. Finding no merit to the arguments raised, we affirm the post-conviction court’s judgment.
The parties stipulated to the following facts during

the guilty plea hearing. The petitioner

’s sister became pregnant

by the victim , and the couple in tended t o marry. On March 1, 1993, the petitioner ’s sister and the victim visited her parents’ residence, a small mob ile home . The pet itioner, who had be en drinki ng beer th roughout the day, arrived at the residence after dinner and ask ed to speak with the vi ctim. They began arguing, prompting the petitioner’s mother to tell the petitioner to l eave the victim alone. The petitioner did not, confronting the victim.The petitioner’s mother attempted to keep the petitioner away from the victi m while the

petitioner

’s sister stood near t he victim.The confrontation escalated, culminating i n the petitioner pulling out a semi-automatic pistol
an d firing five bullets. Two of the bullets hit the v ictim, one in his head

and one in hi s upper right arm. The petitioner was arrested a shor

t while later, at which time he repeatedly admitted he shot the victi m. In Febr u ary 1994, the petitioner pl ed guilty to second-degree murder.

In revie wing the petit ioner’ s Sixt h Amendme nt clai m of i nef fective assistance of counsel, this Court must det ermine whether the advi ce given or serv ices1 Accor ding to trial cou nsel, the p etitioner claim ed to be u nable to re call any of the events surrounding t he shooting. 3 rendered by the attorney are w ithin the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of ineffective counsel, a petitio ner “must show th at counsel’s representation fell below an objective standard of reasonableness” and that this performance prejudiced the defense. There must be a reasonable probabi lity that but for counsel ’s error the result of the proceeding would hav e been different. Strickland v. Wash ington , 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State , 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). Because the petitioner here pl ed guilty, in order to satisfy the requir

ement of prejudice, he must demonstrate a reasonable prob ability that

but for counsel’s errors,he would not have pled guilty and w

ould have insisted on a tr ial. See Hill v. Lockart , 474 U.S. 52, 59 (1985); Bankston v. State , 815 S.W.2d 213, 21 5 (Tenn. Crim. App. 1991).

In arguing that his tr

ial attorney

was ineffective, the petitioner complains his attorney failed to interview his two nephews w ho witn essed th e crime and failed to interview his mother, another witness to the crime, mo r e than once, even though, he claims, she had the best view o f the shooting. The record show s that the trial attorney interviewedthe three adult eyewitnesses to the shooting---the petitioner, his mother, and his sister---andthat because they “gave pretty much an identical set of facts as to w hat happened,” 1 the attorney believed it was unnecessary to i nterview the petiti oner’s twelveand thirteen-year-old nep hews. The petitioner pres ented no evidence of thenephews’ potential testimony

or of what information anadditional interview with his mother would have revealed. Because of this, he has not shown prej udice and thus is not entitled to post-convictionrelief on these grounds. Black v. State , 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990).4 The petitioner also complains that his trial a ttorney was ineffe ctive because he never visited the s

cene of the crime, bu t he admits, “It is difficult to speculate what could have been gained from visiting the Purkey home . . . .” The petitioner’s admiss ion makes clear he has failed to show prejudice. Likewis

e, the petitioner’s apparent complaintthat his trial attorney only talked with him on two occasions will not afford him reliefbecause even assuming it is true, he makes no showing of how this preju diced him.

Moreover, the petitioner complains that his attorney failed to ex p lore the possibility

that the shooting may hav e b ee n an accident based upon his mother’s testimony

that when he began firing the gun, her hand was on his a rm and he was not pointing the gun in the victim’s direction. The petitioner’s mother also testified, however, that an argument between the petitioner and the vic tim led t o the shooting, that the petitioner

fired the gun five times at a close range in a small enclos ed space, and that at least two bulle

ts hit the v

ictim. The trial attorney testified thatgiven these circumstances, the only possible defense would have been incompetency or state of mind at the time of the shooting. The record supports this s trategic decision by

counsel. Because counsel’s strategic choice not to claim accident al shooting as

a possible defense was informed a nd not due to inadequate preparation, the petitioner’s argument will n ot afford h im reli ef. See Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982).

Further, the petitioner attempts to fault his trial attorney for failing to pursue the issue ofincompetence at the time of the off ense and for failing to adequately pursue the issue of his competence at the time he pled guilty. The petition er c laims h is attorney’s actions

“had an a

dverse effe ct on his defense,” yet the record cont ains no evidence he was incompetent at the ti me of the offense or when he ple d guilty. In fact, the record reveals onlythat following a psychiatric evaluation in July1993, the petitioner5

was found to have been competent at the time of the offense and that another psychiatric evaluation conducted by the defense-retain ed psychologist the day prior to the guilty

plea hearing resulted in the conclusi on that the petitioner was co mpetent to assist in his defense, participate in plea negotiations, and s tand trial. Because of this, the postconviction court specifically found that the petiti oner was competent at the time he committed the offense and at the time he pled guilty. There is no evidence in the record to suggest otherwise. Because the record does not contain evidence of incompetency either at the time of the offense or at the time the petition er pled gui lty, the petitioner has not show

n prejud ice and therefore is not e ntitled

to post-convic

tion re lief.

In his second issue, the p etition er claims that the post-conv iction court erred in failing to find that he w as incompetent

both at the time of the offense and at the time he pled guilty. With regard to c ompetency at the time he p led guilty, it appears the petitioner

is arguing that

the trial court erred in accepting his guilty plea, i .e., that his guilty plea was not

knowingly and v

oluntarily giv

en due to his supposed incompetency. Again,
we find no e vi dence in the record to support the petitioner’s claim he was incompetent at the time he pled gu ilty, and in fact, all evidence indicates he was competent. Because the petitioner

has notshown that his guilty plea was unknow ingly and involunt

arily given, his argument must fail.

With regard to competency at the time of the offense, we agai n note that there is no evidence in the r ecord to support the petitioner ’s claim he was incompet ent when he killed the victim , but only e vidence to the cont rary, i.e., that he was competent at the time of the offense. Even so, because the record shows the petitioner knowingly and voluntaril y pled guilty, he wa ived all no n-jurisdi ctional d efense s, includ ing insani ty. See, e.g. , Ray v. State , 480 S.W.2d 919, 920 (Tenn. Crim. App. 1972). Accordin gly, the6

petitioner’s arguments must fail.

In sum, the petitioner has not shown entitlement to post-convict i on reli ef. Accordingly, the cou rt’s denial of his post-co nviction petition is affirmed.

_______________________________ JOHN H. PEAY, Judge
CONCUR:

______________________________ DAVID G. HAYES, Jud ge

______________________________ JOHN EVERETT W ILLIAMS, Judge