### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs February 5 , 2002

DARREL HOWARD v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County No. P-20479 Carolyn Wade Blackett, Judge

No. W2001-00813-CCA-R3-PC - Filed March 21, 2002

Pursuant to a plea agreement, the Petitioner pleaded guilty to nine counts of aggravated robbery and five counts of aggravated assault. The trial court sentenced the

Petitioner to an effective sentence of twenty years in the Tennessee Department of Correction. The Petitioner subsequently filed for post-conviction relief, claiming that hi s plea was constitutionally defective because he wa s inadequa tely represented at the time of the plea and because the plea was not voluntarily, knowingly, and intellige

ntly ente red. The post-con viction c ourt deni ed relie f. After review, we affi

r m the judgment o f the post-convic tion cour t.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which D AVID H. W ELLES and D AVID G. H AYES , JJ., joined.
Bill Anderson, Jr., Memphis, Tennessee, for the Appellant, Darre l Howard.

Paul G. Summer s, Attorne y Gener al and Re porter; J ohn H. Bled soe, Assis tant Attor ney Gene ral; Wil liam L. Gibbons , Distric t Attorne y Gener al; Betsy Ca

rnesale , Assistan

t District Atto rne y Genera l; and Stephanie Johnson, Assistant District Attorney General, for the Appellee, S tate of Tennessee.

OPINION

The Petitioner, Darrel Howard, pleaded guilty to nine counts of aggra vated robbery and five counts of aggra

vated as sault. Pur suant toa plea agreement, the trial court sentenc ed the Petitioner to ten years on each of the aggrava ted robbery convictions and four years on each of the aggrava ted assault convictions. A combination of concurrent and consecutive sentenc ing resulted in an effective sentence of twenty years in the Tennessee Department of Correction.

The Petitioner subsequently filed a petition for post-conviction relief, in which he alleged that his guilty pl eas wer

e consti tutional ly defective because he was inadequately represented by1 As a preli minary matter, the State argues that the Pet iti oner’s noti ce of appea l was not ti mely fi led. By our calcu lations , the no tice of a ppe al wa s time ly. See Tenn. R. A pp. P. 21(a).

-2- counsel and bec ause he d id not volun

tarily, knowingly

and intelligently e

nter the pleas. I n his petition, the Petitioner stated that “counsel intimidated the Defendant by t elling hi m he would receive one hundred years if he didn’t cop-out for twenty ye ars.” In a motion to amend his petition, the Petitioner further claimed that his name was forged on the “conviction papers,” that additional charges were a

dded to the

“guilty ple a paper

” after the Petitio ner had s ig ned i t, and that the Petiti onerw as sentenced “out of [his] range.” The Petitioner also contended that counsel was ineffe ctive in r epresenting him because counsel: (a) did not file pre- trial motions; (b) allowed the Petitioner to be sentenced out of range; (c) used c oercive tactics; and (d) failed to fully discuss the Petitioner’s case with the Petitioner. Following a hearing, at which the Petitioner, his mother, and Petitioner’s trial counsel testified, the post-conviction court denied relief.

The Petitioner argues on appeal that “there we re many t imes during the course of representationin these c ases tha t [the Peti tioner] w as confu sed and a ppeare d to not gra sp the gra vity of the situation he was involved with.” The Petitioner argues that defense counsel fa iled to proper

ly explain “all of th

e proce dures” t

o him and th at this failure, “along with the apparently [sic] immediacy urged by defense counsel to enter the guilty pleas” rendered the Petitioner’s guilty pleas involuntar y. The Pet itioner further argues on appeal that counsel “should ha ve recognized the problems the Defendant was having in accepting the guilty pleas and tha t his failure to do so constituted ineffective assistance of counsel.” The State responds that the Petitioner’s guilty pleas

were not constitutionally defective and that Petitioner’s counsel was not ineffective. 1 We agree with the State . There fore, w e affir m the judgme

nt of the p ost-conviction court.

I. Facts

The evidenc e prese

nted at the post-c onviction hearing consiste d of the te stim ony of th e Petitioner, his mo ther , and Petitioner’s trial counsel. A transcript of the hearing at which the Petitioner entere d his guilty pleas was also introduced as evidence. The Petitioner

testifie d that his attorney did not disc

uss the fa cts of ea ch case separa tely and t horoughly

withthe Petitioner; did not ask the Petitio ner for

a list of w itness es; did not f ile any motions to suppress statements of the Petitioner alleged ly made in

a juvenil e facili

ty; did not in

terview witnesse s; and bec ame hostil e with Petitioner, telling Pet

itioner th at if

the Petitioner

did not accept the twenty years, he would get one hundredyears. The Pe titioner a lso testif ied that he did not understan d that he w as plead ing to fourteensepara

te char ges. Finally, the Petitioner’s mother testified that counsel did not discuss the particular facts of each crime and

confirmed that the

Petitioner

and coun sel were

involved i n a heated discussion immediately prior to the entry of the plea.

The testimony of defense counsel was directly contradictory to the testimony of th e Petitioner

on virtually every point. De fense c ounsel te stified th at he did d iscuss the facts of each case with the-3-

Petitioner and that he basically did all he could for the Petitioner considering the numerous charges and the overwhelming evidence against the Petitioner.

In a detailed “FINDINGS OF FACT AND CONCLUSIONS OF LAW ON PETITION FOR POST-CONVICTION RELIEF,” the post-conviction court concl uded tha t the Petiti oner fa iled to prove any of

his claims by clear and convincing evidence. Relying in part upon the transcript of the guilty plea, the post-conviction court concluded that the Petitioner understood his plea. The court also noted that

the Petitioner heard the statement of facts that the State gave about all of the crimes and that the Pe

titioner a dmitted tha

t those facts were true. The post-conviction court found no me

rit to the Petitio ner’s c la im that he was coerced into pleading guilty. Likewise, the post-conviction court found no merit to the Petitioner’s assertion that his convictions were based on a violation of the pr ivi lege against self-incrimination. Finally, the post-conviction court carefully analyz ed the Petitioner’s claim that he was denied effective assistance of counsel and determ

ined that claim to be meritless as well. With regard to the claim of ineffective a ssistance of counsel, the p ost

convicti on court f

ound in pa

rt as foll ows: Petitioner accuses his attorney of failing to file any motions to suppress, fail ing to discuss the case with him including possible sentences, failing to meet with him and discuss strategies, and taking his money without doing any work. On the contrary, [Counsel] t est ified that he discussed each of Petitioner’s charges with him and the possible sentences. Furthermore, Counsel testified that he that

[sic] did file a motion for a mental evaluation to prepare Petitioner’s defense. Counsel further te stified that he tried to meet with Petitioner while he was out on bond, and

Petitioner

failed to come to the office

for sche duled app ointments. Specifically, Counsel testified that he asked to meet with Petitioner to go over the discovery packet. Howe ve r, Petitioner failed to show and Counsel could not remember giving Petitioner a copy of any of the

discover y materia ls. Although Co

unsel wa s ready t

o go to trial, there

was a lot of evidence against Petitioner including confessions made by himself and his co- defenda

nt, and a re

port-ind icating Pe

titioner h ad a wea

pon. As a r

esult Couns el negotia

ted a good deal for him. [Counsel] testified that Petitioner never indicatedthat he was giving ineffective assistance of counsel, or

that there were other things that [Petitioner] wanted him to do.
II. Analysis

In order to obtain post-conviction relief, a petitioner must show that his or her conviction or sentenc e is void or

voidable because of the abridgment of a constitutional right. Tenn. Code Ann. § 40-30-203. The petitioner bears the burden of proving f actual allega

tions in the

petition for postconviction relief by

clear and convincing evidence

. Id. § 40-30-210(f). A post-conviction court’s factual findings are subject to a de novo review b y th is Court; however, we must accord these factual f indi ngs a presumption of correctness, which is overcome only when a preponderance of the evidence is contrary to the post-c onviction court’s factual findings. Fields v. State , 40 S.W.3d 450, 456 (Tenn. 2 001). A po st -convic ti on co ur t’ s c on cl us io ns of la w a re su bj ec t t o a pu re ly de novo review by this Court, with no presumption of correctness. Id. at

457. The Tennessee Supreme Court-4-

has held that

the issue of ineff ective a ssistance

of counse

l is a mixed question of law and fact and, as such, is subject to de novo review. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).

The right of a criminally accused to representation is guar anteed by bo t h the Sixth Amendment

to the United States Constitution and Article I, Section 9 of the Tennessee Constitution. Id. ; Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the right to “reasonably

effective” assistance. Burns , 6 S.W.3d at 461. In reviewing a claim of ineffective assistanc e of coun sel, this Court must de termine w

hether t he advic e giv en or services rendered by the attorney

are within the range of competenc e demanded of attorney s in criminal cases. Baxter , 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a pe titioner must show that “counsel’s representation fell below an o bjec tive standard of reasonableness,” Strickland v. Wa shington
, 466 U.S. 668, 688 (1984), and that this performance prejudiced the defense, resulting in a failure to produce a reliable result. Id. at 687 ; Cooper v. State , 849 S.W.2d 744, 747 (Tenn.1993). To satisfy the requirement of

prejudice, a petition

er must sho w a rea sonable probabil ity that, but f

or counse l’s unre asonable

error, the fac t finder w ould have had rea sonable doubtregar

ding the petitione r’s gui lt. Strickland , 466 U.S. a t 695. This r

easonab le probabil

ity m ust be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v . State , 875 S.W.2d 662, 665 (Tenn. 1994).

This standard also applies to claims ari sing out of the plea process. Hill v. Lockhart , 474 U.S. 52 , 5 8 ( 19 85 ). To sa ti sf y th e r eq ui re me nt of

pr ej ud ic e i n a ca se in vo lv in g a gu il ty plea, th e petitioner must demonstr ate a re asonable

probabil ity t hat, but for c ounsel’serrors , he or she “would not have pleaded guilty

and would have insisted on going to trial.” Id. at 59.

When evaluating an ineffective assistance of counsel claim, the reviewing cour t shoul d jud ge the attorney’s pe

rformance within the context of the case as a whole, taking into account all relevant circumst ances. Strickland , 466 U.S. at 690 ; State v. Mitchell
, 753 S.W.2d 148, 149 (Ten n. Crim. App. 1988). The revi ewing court must evaluate the questionable conduct from the attorney ’s perspective at the time. Strickland , 466 U.S. at 690; Cooper , 849 S.W.2d a t 746; Hellard

v. State
, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the revie wing co urt m ust be highly def erential and “should indulge a strong presumpt

ion that c ounsel’sconduct f all s within the wide range of

reasona ble professional assistance.” Burns , 6 S.W.3d at 462. Counsel should not be deemed to have been ineffective merely

because a different proce dure or strategy

might have produced a differe nt result. Williams v. Sta

te , 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

The Petitioner has failed to p rove tha t he rece ived inef fective assistanc e of coun sel in this

case. The post-conviction court clearly f ound that the Petitioner’s testimony at the post-conviction hearing was not credible and accredited the testim

ony of trial c ounsel. T

he evide nce supp orts these findi ngs of the post-conviction court. Furthermore, we have concluded from our de novo review that the Pe ti ti on er en te re d h is pl ea s v ol un ta ri ly, knowingly, a nd intelligently. The Petitioner a rgues that the numerous charges ag ainst him and his confusion concerning the char ges re sulted in

involuntary pleas. The transcript of the guilty pleas does not support the Petitioner’s arguments. It re flects no confusion or misunderstanding by the Petitione r. The issue is whether the pleas represented a-5-

voluntary and intelligent choice among the alternative courses of action open to the Petitioner. North Carolina v. Alford , 400 U.S. 25, 31 (1970). The Petitioner was facing potential punishment for nine Class B felonies and five Class C felonies. As the post-conviction court noted, the twent y-y ea r negotiated sentence was a “ good deal.”

We conclude, a s did the post-conviction court, that the Petitioner received effective representationin the trial court and that his guilty pleas w ere entered without any constitutional defect s.

Accordingly , the judgment of the post-conviction court is AFFI RMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE