### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE November

28, 2001 Se ssion DAVID BOESE v. S TATE OF TENNES SEE Direct Appeal from the Criminal Court for Bradley County

No. 98-230 Carroll Lee Ross, Judge

__________________________ No. E2001 -00035-C CA-R3-PC July 8, 2002
Petitioner pled guilty in state court to second degree m urder and aggravated assault. Petitioner contends he was told by trial counsel that a pending first degree murder charge in state c ourt would result in incar ceratio n for life

without pa

role in federal court on related charges. He asse rts that trial counsel’s perfor

mance w as defic ient resu lting in unk

nowing an d involunta

ry guil ty pleas. We disagree and affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERETT W ILL IAMS , J., delive red the o pinion of t

he court , in which G ARY R. W ADE , P.J., and A LAN E. G LENN , J., joined. H. Franklin Chancey, Cleveland, Tennessee, for the a ppellant, David Boese.

Paul G. Summers , Attorne y Gener al and Report er; Mark

A. Fulks, A ssistant A

ttorney G eneral ; Charles M. Corn, District Attorney General; and Sandra N. C. Donaghy, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION

Petitioner David Boese was indicted by a Bradley Count y g rand jur

y on one c ount of fi

rst degree murder and one count of attempt to commit first degree murder. Petitioner pled guilty to the reduced charge of second degree murde r in Count One and the reduce d charge of aggra vated as sault in Count Two. Petitioner was sentenced to nineteen years and te n years respectively. The trial court ordered the sentences be served concurr ent ly. Peti tioner the

n filed his pro se petition for postconviction relief. In his petition, petitione r asser ted that c ertain r

eprese ntations ma

de to him by

his federa l public de

fender were de trimenta l to him. Subsequently, the petition was dismissed by the trial court for its failure to state a claim upon which post-conviction relief c ould be granted.

Petitioner appealed the dismissal of his petition. This Court reversed and remanded for the trial court to consider the issue of ineffective assistance of counsel and any other co gnizable claim. See David L. B oese v. Sta te , No. 03C01-9807-CC-00229 (Te nn. Crim. Ap p., filed at Knoxville, February 2, 2000).-2-

The trial court conducted an evidentiary hearing on July 7, 2000. Subsequent to the hearing, the petition was dismissed, and the petitioner filed a timely notice of appeal.

Facts

Petitioner was charged

with the first degree murder of Linda B rown and the attem pted firs t degree murder of Daniel Long after shooting the victims and leaving their bodies to be found on the side of a road. When the victims were found, Long identified pe titioner as the assailant, and Brown
was dead. After the investigation began, petitioner initially denied his involvement in the shooting, but ultimately confessed. Petitioner claimed that

Brown and Long were riding in the front seat of his car when an argument began, and Long reac hed for petitioner’s gun. Petitioner contended that during the struggle, the gun discharged, killing Brown and wounding Long. Petiti oner also stated that the entir e struggle and shooting occurred within the confines of the ca r. This version of the events differs from Long’s version in thatLong stated that as the three were riding down the road, petitioner stopped the car and ordered Long out of the c ar, shot Brown, and then shot Long.

Petitioner was charged

with first degree murder a nd attemp ted first

degree murder in

state court. He was also charged in federal court with being a felon in possession of a firearm during the commis sion of a felony. Trial counsel was appointed to repre sent petitioner in Bradley Count y Criminal Court. Separate trial counsel was also appointed to represe ntpetitioner in federal district court. During the case, appointed couns el met with each oth er to discuss any ef

fect the state prosecution might have on the federal prosecution. Afterw ards, petitioner pled guilty in state court to second degree murder and aggra vated assault. Post-Conviction Hearing

Petitioner and his sta

te trial c ounsel we

re the on ly witnesses to testify at the post-conviction hearing. Trial counsel tes tified tha t petitione r’s cas e was defensible because there wa s evidenc e to suggest that

petitioner’s version of the events was correct. Physical evidence suggested that Long
was indeed in the vehicle when he was shot. Further, a blood-splatter expert was prepared to testify that blood evid

ence fo und in the vehic le was consistent with petitioner’s story. Trial counsel stated that he was pr epared to try the c ase before a jury and argue that there was no proof of premeditation. To further

support hi s contentions, trial counsel stated that a neighbor of both Long and petitioner
was prepar

ed to testi fy th at the re were no problems between Long and pe titioner earlier in the evening of the incident. Trial counsel statedthat there was an issue concerning the location of the murder in that the area was “lit up like Sodom and Gomorrah.” Trial counsel co ntended that he could show that no one would premeditate a murder in such an open a rea and in plain view.

Trial counsel conceded that petitioner could have been found guilty of first degree murder. He stated that if not for the pressure from federa l trial counsel regarding the federa l case a nd th e amount of time that petitioner faced i n the federal prosecution, trial counsel would have recommended that petitioner present his case to a jury.

State trial counsel testified that his conclusions regarding the state prosecution were re ached-3-

due to representations writtenin a lette r to him by federal trial counsel. In that letter, feder al trial counsel s tated: I talked wi th [the a ssistant U

nited State s att orn ey] and [the district judge] recently. They are in agreeme nt that as long as [petit

ioner] agrees to plead guilty in state court to anything less than first degree murder, that they will give me the plea agr eement wh ich limits [petitioner] to a

Level 34, Category VI, which is the plea agreement we are seeking. Of cours e, if [petitioner] gets acceptance of responsi bility from that , it limit s his se ntence to 19 years and 7 months

. . . I would like to get [petitioner] to Clevela nd to have

him plead guilty in state court to anything other than first degree murder if that is possible.

Trial counsel testified that he explained the plea agreement to petitioner and that petitioner knowingly

and voluntarily accepted it. Trialcounsel also testified that he did not know for sure the sentenc e petitioner fac ed in federal court. He stated that petitioner is an intelligent man and knew exactly what was happening. He further stated that petitioner knew that trial counsel was prepared for trial. Trial counsel explained to petitioner that the plea in state court would not have any control
over the case in federal court and that the only thing the state c ould do was run the sentence
concurr ently with the federal sentence. Petitioner ultimately received a sentence of nineteen years and seve n months in f

ederal court.
Petitioner testifie d that at th

e time he e

ntered h is guilty plea

in state court, he understood that if he were charged

withfirst degree murder, then he would rece ive a sentence of

life witho

ut parole in his federal case. Petitioner stated that he understood that federal trial counsel and state tria l counsel were working together on the cases, and if the state charges were reduced, the federal sentence would also

be reduc ed. Ther

efore, he though

t that if he did not

plead gui lty in state

court, he would receive life withoutparole in federal court. He then testified that he later found this to be untrue. Petitioner asserted he could have only gotten a life sentence in federa l court based upon a first degree mu rde r conviction in state court, and without the state court conviction, his federal sentence would have been much lower. He claimed that if he had known that at the time he entered the guilty plea, he would not have entered the guilty plea.

Petitioner claims tha

t the fed eral ch arges w ere use d to coer ce his gui lty plea in

state court. In essence, petitioner wanted a trial but was told t hat if he did not plead guilty in state court, he would receive a sen tence o f life without parole in federal court. Petitioner claims he was misled because state charges could not be used in federal c ourt until the s tate char ges resulted in a conviction. Petitioner asserts that trial counsel should have checked into the federal law issue more closely and that his failure to do so resulted in ineffective assistance of counsel.

The trial cou

rt dismisse d petitione

r’s petit ion beca use petitioner failed to establish that trial counsel was ineffective and that the guilty plea was unk nowing and involuntary. The trial court further found that trial counsel adv ise d petitione r that a f irst degr ee murde r convic tion was a pos sibilityand that petitioner made a decision to minimize his incarceration resulting from th e federal co urt ch arges. Finally, petitioner received exactly the fede ral sentence he was advised he-4-

would re ceive: n

ineteen years a nd seven months. Analysis

The issue presented by the petitioner in this appeal is whether the post-conviction court erred in finding that he had effe ctive assistance of counsel and that his guilty pleas were knowing and voluntary. Petitioner

asserts that his guilty plea was not ma

de knowin gly and vo luntarily because trial counsel had no independent knowledge of federal criminal law. As such, petitioner claims he received ineffective assistance of counsel. We disa gree and affirm

the judgme nt of the p ostconviction court.

P ost-c onviction petitioners bear the burden of proving their allegations by clea r and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997)

. On appea l, the trial court’s findings of fact are given the weight of a jury verdict and are conclusi ve unlessthe evidence preponderates against them. Henley v . State , 960 S.W.2 d 572, 578- 79 (Tenn . 1997); Bates v. Sta te , 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

In order to receive post-conviction relief on the ba sis of ineffective assistan ce of counse l, petitioner must first establish that the services rendered or the advice given was below “the ra nge of compete nce dema nded of a tto rne ys in criminal cases.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must sho w that the def iciencies “actually had an adverse e ffect on the defense.” Strickland v. Washington , 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 67 4 (1984). In reviewing a claim of ineffective assistance of counse

l, this Cour

t need not addressboth prongs if we determine that the petitioner

has failed to carry his burden with respect to either pr ong. Henley , 960 S.W.2d at 580.

When address ing an att

orney’sperfor

mance, t his Court w ill not“second-guess strategic and tactical choices” made by coun sel, and counsel will not be deemed ineffective eve n if a different strategy might have produced a more favorab le result. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Rather, a court reviewing counsel’s perfor mance should “eliminate the distorting effects of hindsight . . . [and] evaluate the c ondu ct from counsel’s perspective at the time.” Strickland , 466 U .S. at 689, 104 S. Ct. at 2065. However, “deference to matters of strategy and tactical choices applies only if the choices are informed ones based upon adequate preparation.” Goad v. Sta te , 938 S.W.2d 363, 369 (Tenn. 1996). Since petitioner

pled guilty, he must make an additional showing in order to prevail on an ineffective assistan ce of co unsel claim. “I n cases involving a

guilty plea

. . . the pe

titioner m ust show prejudice by demonstrating that, but for counsel’s errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks v. St ate , 983 S.W.2d 240, 246 ( Tenn. Crim. App. 1998).

When reviewing th e entry of a guilty plea, the overrid ing conce rn is whet

her the p lea is knowingly, voluntarily and understandingly made. Boykin v. Alaba ma , 395 U.S. 238, 242-44, 89 S. Ct. 1709, 1712, 23 L . Ed. 2 d 274 (1969). “[A] plea is not ‘voluntary’ if it is the product of ignorance, incomprehension, coercion, terror, inducements, [or ] subtle or blat ant threats . . . .”-5-

Blankens hip v. State , 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin , 395 U.S. at 242-43, 89 S. Ct. at 1712). A court

charged with determining whether a guilty plea was voluntary must look to several factors such as the intelligence of the defe ndant, hisfamiliar

ity with cr iminal pro ceeding s, whether he had the

opportuni

ty to confer with counsel about other options available to him, and the
reasons for his decision to plead guilty, including a desire to avoid a greater penalty that might result from a jury trial. Blankens hip , 858 S.W.2d at 904 (citing Caudill v. Jago , 747 F.2d 10 46, 1052 ( 6th Cir. 1984)).

We conclude

that petit ioner ha s not demon strated t hat the pe rforman ce rend ered by h is state trial counsel w as ineff

ective. In the ins tant cas e, petitio ner sim p ly did not demonstrate how the representationrendered to him by his state trial counsel was prejudicial. Petitioner was offe red a certain plea agreement by the federal prosec utor if petitioner pledto anything less than first degree murder in state court. The promise madeto him was for nineteen years and seven months in federa l court. His state plea agreement allowed him to attain an effect ive sentence of nineteen years concurrent

with the federal sentence. Put simply, petitioner got exac tly what he was promi sed. His acceptance

of the pleas allowed him to avoid a possible first degree murder conviction and life sentences in both stat e and federa l courts. There was no prejudicial performanc e by petitioner’s counsel.

We note that plea

agreem ents are almost always entered into for the sole purpose of limiting the amount of

time that a defendant may be required to serve in inca rceration. Rather than

risking
a guilty verdict, a defendant hedges his bets and, in turn for a lesser punishment, admits committing a lesser crime. It is the defendant’s hope of a voiding a longer sentence that serves as the basis for
a decision t o plead guilty. In this case, petitioner pled guilty in state court so as to re duce hi s exposure to possible incarceration from charges in state and federal court. “[T]he entry of a guilty plea to avoid the risk of greater punishment does not make a plea involuntary.” Bradfor

d v. State , 2000 Tenn. Cri m. App. LE XIS 372, N o. M1998- B00078-CCA -MR3-PC (Tenn. Crim. App., filed May 5, 2000, at Nashville), perm. to appeal denied , (Tenn. 2000); s ee al so Wade v. State , 2001 Tenn. Cri m. App. LE

XIS 687, N o. M2000- 01260-CCA -R3-PC (Tenn. Crim. App., filed Aug. 30, 2001, at Nashville). The record reflects that petitioner is an intelligent person who knew what was going on during the course of the plea negotiations and was well awar e of counsel’s willingness and abi l ity to proceed to trial. Petitioner chose to forego that option and entered the subsequent plea. The record supports the finding that petitioner’s plea was knowingly and voluntarily made

. Finally, we are compelled to comment on an almost complete lack of evidence presente d at petitioner’s post-conviction hearing on the issue of ineff ectiveness of state trial counsel. This lack of evidence contributes to our decision to deny relief. The only testimony in the rec ord is that of petitione r and his s tate tria

l counsel

. Indeed, petitioner’s federal trial counsel did not testify at the evidentiary hearing , and it is not now known exactly what sentence petitioner would have received in federal court had he not pled guilty to second degree murder in state court. Fur

ther, pe titioner d id notpresent any evidence regarding the a pplicability of federal law to either his state or federal case. We agree with the Sta

te that pe titioner f ailed to e stablish w

hat fede ral law w as implica

ted, how it applied, and its subsequent effect on petitioner’s case. Petitioner’s c laim is without merit.-6- CONCLUSION Accordingly, we affirm the judgment of the trial court.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE