# FILED

January 27, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE OCTOBER 1997 SESSION

STATE OF TENNESSEE ) ) NO. 01C01-9610-CC-00427 Appellee, ) ) MAURY CO UNTY V. ) ) Hon. James L. Weathe rford JERRY DALE DUFFEY ) ) (Post Conviction) Appellant. ) )

For the Appellant For the Appellee William C. Bright John Knox Walkup Assistant Public Defender Attorney General & Repor ter 22nd Judicial District 209 W. Madison Street Karen M. Ya cuzzo Pulaski, TN. 38478 Assistant Attorney Gener al 2nd Floor Cordell Hull

Building 425 Fifth Avenue North Nashville, TN. 37243-0943 T. Michael B

ottoms District Attorney General P.O. Box 459 Lawrenceburg, TN. 38464 Robert C. Sanders Assistant District A

ttorney General 10 Public Square P.O. Box 1619 Columbia, TN. 38402

OPINION FILED:______________________ AFFIRMED WILLIAM M. BARKER, JUDGE1 In a rela ted case from Marshall County, t he appellant was convicted b

y a jury on twenty

-seven (27) counts of theft of property by fraud and/or deceit. The trial judge, acting as a thirteenth juror, reduced the number of convi ctions to twenty four and sentenced the appell ant to four teen (14) y

ears and one (1) month in t he Tennessee Department of Correct ion. Those convi ctions were af firmed on dire ct appea l to this Cou rt. See State v. Jerry Dal e Duffey , No. 01C01-9501-CC-00017 ( Tenn. Crim. App. at Nash ville, July 26, 1995 ).

2 The appellant

began serving h is two (2)year sente nce in the Tennessee Department of Correction o n May 10, 1994. By the t ime of his post- convicti on hearing on Jul y 23, 1996, he had completed that se ntence. Curren tly , he is st illserving t he fourteen ( 14) year sent ence that he r

eceived from conviction s in Mars hall Coun ty.

3 The appellant ’s peti tion was fi led under t he Post Convict ion Procedure Act of 1995. Tenn. Code Ann. §§ 40 -30-201 -- 310 (Supp. 1996 ). 2 OPINION The appellant, Jerry Dale Duffey, appeals as of right the Maury County Circuit Court’s dismissal of his petition for post-convic tion relief. On May 10, 1 994, appellant entered a plea of nolo contendere on the charges of theft over fiv e hundred ($500) dollars and deceptive bus iness practices. The tri al court sentenced the appellant to two (2) years on the theft conviction and to six (6) months on the conviction of deceptive business practices. The sentences were ordered to run concurrentl y to each other and to sentences that the appellan t was already serving for convictions in Marshall C ounty. 1 No direct appeal was taken from the Maury County convictions at issue in this proce eding. 2 After a careful review of the record, we find no rev ersible error and affirm the judgment of the trial court. On November 22, 1995, the appell ant filed a pro-se petition for post-convic tion relief alleging that: (1) His trial couns el was ineffective in the investigation and development of his case; (2) The State prosecuted him on malicio us grounds; and (3) The trial court failed to follow Rule 11 of the Tenne ssee Rules of Criminal Procedure in accep ting hi s plea of nolo contendere

. 3 Through a newly appoi nted counsel, the appellant filed an amended petition, c ontaining the above stated g rounds. Following an evi dentiary hearing, the trial court dismissed appellant’s petition upon finding no evidence of malicious prosecution and finding that the appellant’s counsel provided the proper assistance as required under Baxter v. Rose , 523 S.W.2d3

930, 936 (Tenn. 1 975). As to appel lant’s

plea of nolo contendere , the trial court found that the appellant was proper ly informed regarding

the nature of the charges, the penalties involved, and his constitutional rights of trial by jury, assistance of counsel, and the right to plead not g uilty. The trial cour t further found that there was a s ufficient determination of fact to support the acc eptance of appellant’s plea. On appeal, the appellant contends that the trial court erred in denying his petition for post-convic

tion relief based upon the ineffectiv e assistance of his trial counsel and his alleged uninte lligent, invo luntary plea of nolo contendere . Under the Post Conviction Procedure Act of 1995, the appellant has th e burden of proving those allegations by clear

and convincing evi dence. See Tenn. Co de Ann. §

40-30-2 10(f) (Supp. 1996). The appellant first contends that he i s entitled to post-convi ction relief based upon the ineffective assistance of hi s trial counsel. He ar gues that counsel provi ded constitutionally defici ent assistance by failing to interview the al leged victims or witnesses and by failing to obtain discovery before advising the appellant to enter a plea agreement. He further ar gues that he would not hav e entered his plea if counsel had properly investigated the case to find that the State’s evidence was weak. This issue is without merit. To prevail on a claim of ineffective assistance of cou nsel, the appellant must demonstrate by clear and conv incing evidence that the advice or servi ces provided by his counsel fell below the range of competence demanded of attorney s in criminal

cases. See Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975). Moreover, he must show “prejudice” by

proving that, but for cou nsel’s incompetence, the resul t of the trial proceeding would hav

e been different. See Strickland v. Washington , 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052, 2064, 2067-68 (1984); Best v. State , 708 S.W.2d4 The Strickl and standard has been appl ied to t he right to counsel under Articl e I, Secti on 9 of the Tenn essee Cons titution. See State v. Melson , 772 S.W .2d 417, 4 19 n.2 (T enn. 198 9), cert. deni ed , 493 U.S. 874 (1989).

5 The charges of theft and deceptive business practices arose from the appellant’s operation of a cemetery and tombstone company i n Marshall Count y, Tennessee. The appel lant owned and op erated the b usin ess from 1992 until O ctob er 19 93. D uring that tim e, twe nty-se ven c usto me rs in M arsh all County and two customers in Maury Count y complained t hat they never recei ved the servi ces or tom bsto nes that th ey had purc has ed. T he ap pellan t’s de fens e in the Mar sha ll Cou nty trial w as th at his com pany sale sme n were s olely respon sible for the theft and d eceptive busines s practice s. 4 421, 422 (Tenn. Crim. App. 1985). 4 In cases involvi ng a guilty plea or plea of nolo contendere , the appellant must show “prejudice” by demonstrating that, but for counsel’s errors, he w

ould not have pled guilt y and would have ins isted upon going to trial. See Hill v. Lockart , 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Bankston v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). The trial court found that the representation p rovided by appellant’s counsel did not fall to the level of ineffectiv e assistance. The trial cou rt based its finding upon evidence that appellant’s counsel provided competent advice and strate gy in explaining to the appell ant the nature of the case, his cons titutional rights, hi s option of entering a plea agreement, and the risks of proceeding at trial. In post-c onviction proceed ings, the trial cour ts findi ngs of fa ct “are con clusive on appeal unless the evidence preponderates against the jud gment.” See State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). In appel lant’s case, we find no evidence to controver

t the findings of the trial cou rt. The record reflects that the appellant’s counsel acted w ith reasonable diligenc

e and competency in representing the appellant before and during th e plea hearing. At the time appellant was i ndicted and charged in Maur y County, his counsel was preparing a motion for a new trial in the r elated case in Marshall County. Counsel advised the appellant that the facts involved in both cases were virtu ally identical and that, in light of his conv ictions in Marshall County, the appellant ris ked being convicted in Maury County if he took the case to trial. 5 Counsel explained to the appellant that by accepting the State’s plea agreement, he would r eceive an effective two (2) year6 In the landmark cas e of Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (196 9), the Uni ted States Supr eme Court held that

in order f

or a guil ty pl ea to be constitu tional ly val id, t he trial court must ful ly advi se the defendant that he i s waiving h is priv ilege agai nst self-incrimination, his right to a t rial by jury , and his right to confront his accusers. Under Boyk in , the defendant must vol untaril y enter his plea wit h the understa nding that he is waiv ing those const ituti onal rights. See id. 5 sentence that would run concurrently to his sentence in Marshall County. Thus, although counsel informed the appel lant of his right to plead no t guilty and to recei

ve a trial b y jury , he enco uraged the appel lant to e nter a pl ea of nolo contender e and eliminate the possibility of receiving additional

jail time. In reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumst ances of counsel’s challenge d conduct, and to evaluate the conduct from the counsel’s prospective at the time.” See Strickland , 466, U.S. at 689, 104 S.Ct. At 2065; Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). We have reviewed counsel’s conduct under those guidelines and we find no ev idence to disturb the trial court’s finding that appell ant’s counsel provided c ompetent representation. Having determined that appellant’s counsel prov ided reasonable and competent representation, we conclude that a review of any alleged prejudice is

unneces sary. The appellant next contends that he is entitled to post-conv iction relief based upon a co nstitut ionally inva lid plea of nolo contendere . He argues that the tri al court failed to determine if a factual basis existed f or his plea, thereby rendering it involuntary and unintel ligent. This issue is without merit. A chall enge to a guilt

y plea o r plea o

f nolo contendere is cognizable in a petition for post-convic

tion relief where the petitioner asserts that his pl ea was made contrary to the constitutional requirements of intelligence and voluntariness. 6 Rule 11 of the Tennessee Rules of Criminal Pr ocedure sets forth strict g uidelines for accepting guilty pleas an d pleas o

f nolo contendere to ensure that those constitutional7 Rule 11 essenti ally adopts the r

equirements establ ished by our supreme court in State v. Mackey , 553 S.W .2d 3 37, 3 41 (T enn . 197 7). Alth oug h tho se re quire me nts a re no t nec ess arily constitutional in nature, they serve to ensure that a plea of guilt or nolo contendere is con stitutio nally sound as being entered into voluntar ily, intelligently, and unde rstanding ly. See State v. Miller , 634 S.W .2d 615, 6 17-18 (T enn. Cr im. Ap p. 1981)

.

8 See also State v. Turner , 919 S.W .2d 346, 3 52 (Te nn. Crim . App. 199 5); Cham berlain v. Sta te , 815 S.W .2d 534, 5 39 (Te nn. Crim . App. 199 0). 6 requirements are upheld. 7 Before a g uilty plea or plea of nolo contendere may be accepted , the trial judge “must ad dress t he defenda nt perso nally in open c ourt and inform the defenda nt of, and determine that he or she unders tands...” the nature of the charg es, the range of penalties associated wi th those charges, and the ri ght to plead not guilty and proceed with a trial by j ury. See Tenn. R. Crim. P. 11(c). The trial judge must inform the defendant that in a trial by j ury, he has the right to receive legal co unsel, to confront and cross-examine wi

tnesses, and to be free from compelled s elf-incrimination. See id . Additionally, the tr

ial judge must explai n to the defendant that by entering a plea of guilt or nolo contendere , the defendant is waiving his rights associat

ed with a trial by jury and may be questi oned by the court regar ding the offense at issue. See id. Rule 11 also requires the trial judge to determine if the defendan t’s plea is voluntary and accurate. To ensure that the plea is voluntary, the trial judge must question the defendant in open court to find whether the plea is the result of any threat, coercion, or promi se apart from a plea agreement. See Tenn. R. Crim. P. 11(d). To ensure accuracy , the trial judge must r eview the facts of the case an d determine if there is a factual bas is for the defendant’s plea. See Tenn. R. Crim. P. 11(f). 8 The appel lant contends th at his p lea of nolo contendere is constitutionally invalid because the tri al court failed to determine if a fact ual basis existed for the p lea. He argues that the trial court’s alleged omission caused him to enter an involuntary and unintelligent plea. We agree tha

t under R ule 11, the tria l judge was required

to deter mine if a7

factual basis ex

isted fo r appell ant’s pl ea of nolo contendere. However, we fin d that the trial judge made a sufficient inquiry of the underly

ing facts before accepting the appellant’s plea. During the plea hearing, the tri al judge questioned the appel lant about the charges and issues involved in the Marshall County case. Appellant’s counsel responded that both the Marshall County case and the Mau ry County case arose from appellant’s operation of a ceme tery and monument company in Marshall County. Counsel further ex plained that the present case i nvolved the same “ty pe” business transaction, except that the victims lived in Maury County. From those facts, the trial judge concluded that there was a sufficient bas is for the appellant’s plea of nolo contendere

. Furthermore, the trial judge exercised great care to address the appellant in open court and to explain the nature of the case, the possible pena lties, and the appellant’s constitutional rights. The trial j udge informed the appellant that he had the right to plead not guil

ty and to proceed with a trial by jury.Appellant was fully informed that in a trial by jury he would have the right to legal counsel, the right to cross examine any witness , and the right to be free of compell ed self-incrimination. Und er oath, the appellant responded that he und erstood the proceedings, including his constitutional rights , the nature of the charges, and the penalties available i n his case. Next, the tria l judge

informed

the appe llant t hat by e ntering a plea of nolo contendere , he was thereby w aiving his rig ht to a jury trial and would be subject to a conviction and sentence by the court. The trial judg e further explained that his plea would allow the cour

t and the State to question him r egarding the charged o ffenses. Appellant responded under oath that he understood the consequences of w aiver and that he nevertheless wished to enter his plea. Appel lant assured the trial cou rt that he was fully capable of unders tanding the proceedings and that his plea was not the product of any threats or coe rcion. Based upon the open court discuss ion, the trial court concluded that the8

appellant’s plea was v

oluntary and intellig ent. We find no evidence to disturb that finding and therefore conclude that the appellant’s petition for pos t-conviction relie

f was properly dis missed. Accordingly, the j udgment of the trial court is affirmed.

____________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

__________________________ JOE B. JONES, Pres iding Judge

__________________________ JOE G. RILEY, JUDGE