### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Jun e 3, 200 8

ELLIS S. BA UC OM, JR. v. S TAT E OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Bedf ord County No. 10532 Robert

Crigler , Judge

No. M2007- 01034-CCA -R3-P C - F iled Novem ber 19, 2008

T h e p e t i t i o n e r , E l l i s S

. B a u c o m , J r

. , p l e d

g u i l t y t o a g g r a v a t e d

b u r g l ar y an d a g g r a v a t e d

r o b b e r y, r e c e i v i n g s e n t e n c e s , r e s p e c t i v e l y, o f f i f t e e n ye a r s an d t h i rt y ye ar s , t o b e s e r v e d c o n c u r

r e n t l y a tf o rt yfive pe rce nt. Subsequently , he filed a petition for post-conviction re lief, ar g uing that trial counsel had bee n ineffe ctive in re prese nting him. Following an evidentiary hear ing, the post-conviction
c ourt dis mis se d th e pe tit ion . We a ff ir m th a t di smi ssa l.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

A L AN E. G L EN N , J. , d e li v e r e d th e o p in io n o f th e c o u rt, in which J OS EP H M. T I PTON , P.J ., and D. K EL L Y T HOMAS , J R ., J ., joined.

Her shell D. Kog er, Pulaski, Tenne ssee, f or the a ppellant, Ellis S. Baucom, Jr. Robert E. Cooper, Jr., Attorney Genera l an d Reporter ; Eliz abeth B . Marne y , Assistant Attorney Gene ral; Charle s Fr ank C raw ford, J r., District Attorney Gene ral; and Micha el D. Randles a nd Ann L . Filer , Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

The ba sis for the petitioner’ s pleas of guilty wa s rec ited by

the State at the submission h ea ri n g:
The fa ctual basis is Mr. C laude Thomas, who l ives out in a very rura l part of the c ounty , wa s kno wn by a Ke nn y Por te r a nd his wi fe . App are ntl y

the y c a me int o information that Mr. Thomas wa s purported to ke ep lar g e sums of ca sh in his home.-2- So Mr. Porter appare ntly came up with the idea of having the home ente red and the money taken. He appa rently discussed this idea with [the petitioner] and Mr. Earl Tr otter. [The petitioner] and Mr. Trotter a g ree d they would g o to the hom e and e nter and stea l the money . So the plan was hatched. On the nig ht that the events occur red, w hich I

believe is June 26, 2004, Mr. Porter in one ve hicle led Mr. T ro t t er and [the petitioner] t o the drivew ay of Mr. Thomas’ home a

nd pointed down the drivew ay , and then [the petitioner] and Mr. Trotter the n proce eded dow n the drivew ay up to the door of the home . They knocked.

Mr. Thomas wa s there

. I t w as at night time. He was in be d aslee p. He wa s awakened by

the knocking

. He asked who it was. And I believe they said something lik e y ou kn owus or

so me thi nglik e tha

t.
So he unlocked the door , at which time these defe ndant[] s entere d. One of them essentially shoved Mr. Thomas bac k on a bed. T hey immediately

g rabbe d up g uns which we re w ithin si g ht of them. Acc ording to Mr. Thomas, [the petition er] g rabbe d a pump s hotgun and actually held it on Mr. Thomas while Mr. Tr otter we nt throug h the home looking for money . That is what they said they wer e ther e for
m o n e y.

Mr . T ho ma s p oin te d to hi s pan ts, wh ic h w e re ha ng ingon a be d p os t. S a id there is my wallet. You take that. One of them said no, we a

re he re f or the big score

. Th e y fe lt l ike the re sh ou ld b e mor e tha n ju st w hat w a s in

the wa lle t. Mr. Thomas would say

that he wa s struck seve ral times with a pistol in the fac e. I t knocked him bac k on the bed, a nd it was during this p o i n t t h at he r ealized there was a

pistol under a pillow, so Mr. Thomas app ar en t l y rea ched f or his pistol
and c a me ou t w iththat.

I t was at that time Mr. Tr otter – he ma y have e ven fire d a shot. Mr. Trotter who was a

rmed with one of

Mr. Thomas’ ow n g uns, fired a shot back that struc k Mr. Th oma s in

the fa c e c a

us ingpr e tty

se ri ou s in

jur y to h is fa c e

. Th e bu lle t, Ibe lie ve , is still lodge d in the back of his neck.

I t was at that time then the def endants de parte d with a number of g uns. Mr. Tr ott e r a pp are ntl y did fi nd se ve ra l thou sa

nd do lla rs in ca shhid de n in

an e nv e lop e in a dra wer and they depar ted, fled.Acc or di n g t o t h e r epor t pr epa r ed by t h e B oar d of Proba t i on an d Par ol e, t h e pet i t i on er wa s c on v i ct ed i n 1992 1
i n t h e D av i ds on Coun t y Cr i mi n al Cour t of f i v e cou n t s of

a g g r av at ed as s au l t , a l l c ommi t t ed on J u n e 13, 1990.
-3- Mr . T ho ma s w a s a

ble to c a ll 9 11 []. Th e y

re sp on de d. He ult imate ly ha d to be c arr ie d to Va

nd e rb ilt to b e tr e a te d d

ue to t he se ri ou sn e ss o f h is i nju ri e s.
Th is m a tte r w a s in ve sti g a te d b y the sh eri ff

’s de pa rtme nt a nd the n a lso assistance was pro vided by the [Tennessee Bur eau of I nvestig ation]. The sheriff’ s d e p artm e n t r e c e iv e d a n u mb e r o f ti p s w h ic h u lt im a te ly le d th e m t o [th e p e ti ti o n e r ].

He wa s int e rv ie we d a t th e tim e wh e n h e wa s in the Rut he rf or d Co un ty

[J] a il. He a dmi tte d to his inv olv e me nt. I t wa s Ke nn y Por te r’ s ide a

. He pa

rt ic ipate d in

it. I t w a s th e Tr ott e r d e fe nd ant w ho sh ot M r. Th oma s.

T h e other two defe ndants also g ave statements implicating the mselves and im p li c a ti n g [th e p e ti ti o n e r ].

At the evidentiar

y hear ing, the peti t i o n er ex p lained his claims that trial counse l had bee n ineffe ctive. He testified that trial counse l did not explain w hat occ urre d at a se ntencinghear ing a nd that he thoug ht if he went to tr ial he would be sentenc ed to forty to six ty y ear s at 100%, rather than the thi rt y y e ars a t 45 % w hic h h e wa s to re c e ive fo llo wi ng ple a s of g uil ty . H e be lie ve d th a t th e State deter mined the ra

ng e at whic h the sentenc e would be se rved but, subseque ntly , lear ned that this was not corre ct.

Th e pe tit ion e r s a id t

hat he un de rs too d f

rom tr ial co un se l th a t, f

or purp os e s o f s e tti nghis sentenc ing rang e, his prior convictions for of fense s occur

ring on the same da

y would count as five separ ate c onvictions, rather than as a single conviction. He sa id that he did not unde rstand that the 1 judge would deter

mine whether the convictions would be counted as one or five fo r s en t en cing purposes a

nd t h at h e would have the rig ht to present proof in this reg ard. A ccor ding to the petitioner’s testim ony , had he known all of t his at t he ti me of the submission hear ing, he would not have ple d g uilty

. Additionally , the petitio n er t es t i fi ed that trial c ounsel was inef fec tive beca

use he did not advise the pe titioner that it was possible he might be sentenc ed for lesser of fense s , wi th lesser punishment. The petitioner testified that he g ave two statements to the police as they initially wer e inv e sti g a tin g the ma tte r w ithwh ic h h e was char ged . H e sa id t hat f oll ow ingthe tw o s ta te me nts , g ive n o n A ugus t 30 , 2 00 4, and Se pte mbe r 7 , 2 00 4, he wa s to ld by po lice of fi c e rs that th e y

wo uld

“ jus t c ha rg e [him ] w ith wh a t [he ] h a d a c tua lly do ne in the c ri me .” Ho we ve r, he wa s c ha rg e d w ith the same of

fe n s es as t h e others. He told trial counsel about this statement made to him by the
o ff i ce rs , as we l l as h i s as k i n g ab o u tan at t o rn ey b ef o re qu es t i o n i n g. During cross-e x amination, the petitioner a cknowledg ed that, in October 2004, he wa s sentenc ed for

theft over $1000 and found to be an habitual motor vehicle offe nder and was c onvicted-4-

in 2003 and 2004 of felony DUI

. As a re sult of these convic tions, he serve d three and one- half y ear s in the penitentiary

. As for w hat proof he would have pr esente d at t he sentencing hear ing, the petitioner said that he “w ould have trie d to prove it was, y ou know, s ingle course of conduct instead of separate fe lony convictions.” He said that there was only “one acc ident” and “ not five sepa rate felony

convictions.” Two people wer e “ser iously injured” as the result of the a ccide nt, and the petitioner w as not “a war e” that the other thre e we re.
Trial counse l testified that he had been licensed to pr actice law for ten y ear s and that “[o]ne hundred pe rce nt” of his pra ctice was “criminal work.” He said that, upon being reta ined to repr esent the petitioner, he talked with the attorne y at the public def

ender ’s offic e who had been r epre senting the petitioner to that point, obtained a c opy of t he attorney ’s file, a

nd revie wed the c ourt’s file. He sp ok e wi th b oth the pe tit ion e r an d his f a mil y re g ard ingthe c a se , w hic h h a d a lr e a dy be e n s e t f or tr ia l. Couns e l e xpla ine d w hat he tol d th e pe tit ion e r d ur ingon e of

the ir me e tin g s:

Ireme mber g oing to the j ai l t o s ee [t he petitioner] and we went over how a tria l prog resse d. I specific ally reme mber doing that with him, but I also will say that Ido that with e very client rig ht be fore a trial. Every thing from how voir dir e w orks thr ou g h th e dif

fe re nt s te ps and I do re c a ll t a lki ngto h im a bo ut h owthe tr ia l is conducte d and if he is found guilty [,] there will be a se ntencinghear ing a nd that afte r that would be a motion for ne w trial.

Trial counse l said that he explained to the petitioner how a se ntencinghear ing w ould proce ed
and that he “would

be a ble to p re se nt a

ny pr oo f, if he ha d a ny , to re fute wh a te ve r t

he State wo uld introduce.” He sa id that the petit ioner “had bee n in so many criminal cour

t case s that he knewa lot of the ter minology that [counsel] was using without [counsel’s] ex plaining the details of the wor d.” Counsel detailed the infor mation he provided to the pe titioner rega rd i n g how, for se ntencing purp os e s, the fi ve c on vic tio ns wo uld be vie we d:

That wa s actua lly

a major co n ce rn befor e – I believe be fore Iactua lly met wi th h im I e ith e r ta lke d wi th him on the ph on e thr ou g h a thr e e -w ay c on ve rs a tio n w ith a fa mily member or

talked to a f

amily member a

bout his concer

ns that these five fr om w hat he ha d h e ard

sh ou ld n ot b e us e d a s f

ive se pa ra te on e s, bu t on e be c a

us e they all occur red w ithin the same criminal tra nsaction. I

did not know the details of tho se , s o at fir st I sa id, [i]f the y are a ll part of the same c ri min a l tr ans a c tio n, un le ss there is an exception in the statute they would be tre ated a s one.
Once Ilooked into them and found out that .

. . althoug h they wer e part of the
same c riminal transac tion, they wer e within the exception under the rule. The Court has alre ady noted. They wer e cr imes of violence which qualifie d them to be counted i n d i v i d u a l l y r a t h e r

t h anc o l l e c t i v e l y.-5-

Counsel s ai d that he “r eca ll[ ed] bringing[t he petitioner] a copy out of the book we all use of the pag e that exp l ai n ed t h at t h ere are exceptions to that ge nera l rule of within 24 hours, that they are no rm a lly c on sid e re d o ne , b ut t

his wa s o ne of th e ei g ht o r s o e xce pti on s w ith in t hat r ule , h is convictions, the ag g ravated assaults.” H e said the pe titioner appeared to unde rstand that the f ive convictions would be c ounted sepa rate ly but “fe lt like it was unfair.”

Tr ia l c ouns e l te sti fi e d th a t th e ple a s o f guil ty we re “ c omp le te l y

v o l u nt ary on [the pe tit ion e r’ s] pa rt .” He sa id that he “f

e lt like [the pe tit ion e r] und e rs too d what he wa s d oin g and he wa s d oin g it voluntarily .” He discussed with the petitioner the notice filed by the State that enha

nced punishment was be ing soug ht. Counsel said that, to deter mine how m any

people in the pr ior ac cident had be en injured, he w ent to the cler k’s office in Nashville and r eviewe d the file. He deter mined that all five of the other

persons in the a ccide nt had bee n injured: [The petitioner] remembers c o rr ectly that only two people we re hospitalized, and
rec eived serious bodily injury

. Howeve r, t he other three wer e injured unde r the law

. They rec eived bodily

injury . Ithink the definiti o n i s bruises, cuts, scr apes c an be considere d bodily

injury , and they

all rec eived some f

orm of bodily

injury [al ]tho ug h[,] a s [the pe tit ion e r] may or may no t re me mbe r,

. . . min or

. Th e y we re a ll injured to some extent. Not hospit alized, I don’t think a ny of them we nt to a doctor. They wer e injured. The y

had scr apes, c uts and bruises that would have applied. That
wo u l d h av e c o m e o u ti na s en t en ci n g h ea ri n g.
Trial counse l said he and the petit ioner discussed the petit ion to plead guilty , and, ac cording to counsel, the pe titioner appea red to unde rstand i t. As for the pe titioner’s statements to police of fi c e rs , c ouns e l sa id h e un de rs too d th a t th e pe tit ion e r h a d w a ive d h is r ig ht t o c ouns e l:

I n my op in i o n , b a s e d

u p o nw h a th e t o l d

m e an d w h a tIr e a d , t h a ti s e xa c tly wh a t ha pp e ne d. An

inq uir y wa s ma de , b ut b e c a

us e he wa sn ’t in c us tod

y , fi rs t of a ll, was I didn’t think it would hol d up. Second of a ll, he seeme d to ag ree with, You are not in custody , what do y ou need one for? He we nt on with the conver sation, didn’t
seem c oerc ed in any

way

. Ac c or din g ly , c ouns e l sa

w n o me ri t in

fi lin g a mot ion to s up pr e ss the st a te me nts . O n c ro ssexamination, counsel said that, as to whethe r the prior convictions should be counted a s one rather than five, “ if there was a

ny proof that could be broug ht – that we could bring it, but [counsel] didn’t see that [ they ] had any

proof to the c ontrary

to bring .”

AN AL YSI S The post-c onviction petitioner bea rs the burde n of provinghis allegat i o n s b y clea r and convincingevidenc e. See T enn. Code Ann. § 40-30-110( f) ( 2006). When an e videntiary hear ing is held in the post-conviction setting, the finding s of fa ct made by the court are conclusive on appea l unless the evidenc e pre ponderates ag ainst them. See Tidwell v. State, 922 S.W .2d 497, 500 (Tenn.-6-

1 9 9 6 ). W h er e ap p el l at e r ev i ew i n v o l v es p u re l y fa ct u al i s s u es , t h e ap p el l at e co u rt s h o u l d n o tre we i gh
or re evaluate the e v i d en ce

. See He nley v. State, 960 S.W .2d 572, 578 (Tenn. 1997) . Howeve r, re vie w o f a tri a l court ’s a

pp lic a tio n of the law to the fa c ts o f t he c a se is de novo , with no presumption of corre c tn e s s

. Se e Ru f f v

. St a te , 9 7 8 S. W. 2 d

9 5 , 9 6 ( T e n n

. 1 9 9 8 )

. T h e is s u e s o f d efic ient perf ormanc e of c ounsel and possible prej udice to the de fense are mix ed questions of lawand fa ct and, thus, subject to de novo revie w by the appe llate cour

t. See State v. B urns, 6 S.W.3d 453, 461 (Tenn. 1999)

. The rig ht to effe ctive assistanc e of c ounsel is safeguarde d by the Constit utions of both the U n i t e d S t a t e s an d

t h e S t a t e o f

T e n n e s s e e

. S e e U

. S

. C o n s t

. A m e n d

. V I; T e n n

. C o n s t

. A rt

. I, § 9

. In order to determine the competenc e of c ounsel, Tenne ssee c ourts have a pplied standards de veloped in f eder al case law. See State v. Taylor, 968 S.W .2d 900, 905 (Tenn. Crim. App. 1997) (noting that the same standa

rd for deter mining inef

fec tive assistance of counse l that is applied in feder al ca ses also applies in T ennesse e). The United States Supreme Court ar ticulated the standa

rd in Strickland
v. Was hin g ton , 466 U. S. 6 68 , 1 04 S. Ct . 2 05 2 ( 19 84 ), wh ic h is wi de ly a c c e pte d a s th e a

pp ro pr ia te standard f or all cla ims of a convicte d petitioner that counsel’s a ssistance wa s defe ctive. The standard is firmly g rounded in the be lief that counse l p l ay s a role that is “critica l to the ability of the adver sarial sy stem to produce just results.” I d. at 685, 104 S. Ct. at 2063. The Strickland standar d is a tw o- pr on g te st:

F ir st, the de fe nd ant m

us t sh owthat c ouns e l’ s p e rf or manc e wa s d e fi cie nt . T his require s showing that counsel made err ors so serious that counsel was not fu nc tio nin g a s th e “ c ouns e l” g ua ra nte e d th e de fe nd ant b y

the Sixth A me ndme nt. Se c o n d , th e d e f

e n d a n t mu s t s h o w th a t th e d e f ic ie n t p e r f

o r ma n c e p r e ju d ic e d the defe nse. This require s showing that counsel’s err ors wer e so serious as to deprive the defe ndant of a

fair tr ial, a trial whose result is reliable.

I d. at 687, 104 S. C t

. at 2 0 6 4. The Strickland Court fur ther e x plained the mea

ning of “def icient p e r f o r m an c e ” i nt h e f

i r s tp r o n g o f

t h e t e s ti nt h e f

o l l o w i n g w ay:

I n any case prese nting a

n ineffe cti veness c laim, the perf ormanc e inquiry

must be whether counsel’s a ssistance wa s rea sonable c onsidering all the circ umstances.

. . . No par ticular set of

detai l ed rules for counse l’s conduct c an satisfa ctorily take
acc ount of the var iety

of circ umstances f

ace d by d ef

ense counsel or the r ang e of le g iti ma te de c isi on s r e g ard ingho w b e st t o r e pr e se nt a c ri min a l de fe nd ant.

I d. a t 68 8- 89 , 1 04 S. Ct. a t 20 65 . T he pe tit ion e r m us t e sta bli sh“ that c ouns e l’ s r e pr e se ntatio n f e ll below an obje ctive standa rd of r easona

bleness under

preva iling

p r o f e s s io nal norms.” House v. State, 44 S.W .3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996))

. As fo r t he pr e jud ic e pr on g of

the te st, the Str ic kla

nd Cou rt state d: “ Th e defe nd ant m us t show that there is a rea sonable proba bility that, but for counse l’s unprofe ssional error s, the re sult of the pr oc e e din g wo uld

have be e n d if

fe re nt. A r e a so na

ble pr ob a bil ity is a pr ob a bil ity su ff ic ie nt t o-7-

undermine c onfidenc e in the outcome.” 466 U.S. at 694, 104 S

. Ct. at 2068; see also Ove rton v. State , 8 74 S.W. 2d

6, 11 (T e nn . 1 99 4) (c on c lud ingthat pe tit ion e r f a ile d to e sta

bli shtha t “ the re is a
rea sonable proba

b ility that, but for counse l’s err ors, the outcome of the proc eeding s would have be en differ ent”)

. The issues of de ficient pe rfor mance o f co u n s el and possi ble pre judice to the def

ense a re mix ed questions of lawand fa ct and, thus, subject to de novo re v i ew b y t h e appellate cour t. See Wil ey , 183 S.W .3d at 325; State v. Bur ns, 6 S.W .3d 453, 461 (Tenn. 1999) . The re viewing court
mus t in du lg e a

str on g pr e su mpt ion that th e c on du c t of c ouns e l f a lls wi thi n th e ra

ng e of re a so na ble profe ssional assistance, se e S t rickland, 466 U .S. at 690, 104 S. C t. at 2066, and maynot secondg uess the tac tical and strateg ic choice s made by trial counsel unless those choice s wer e uninforme d beca use of inade quate pr epar ation. See He llard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The f act that a strat egy o r t actic f

ailed or hur

t the defe nse does not alone support the claim of ine ffe ctive assistan ce o f co u n sel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). Finally , a per son char g ed with a c riminal offe nse is not entitled to perfe ct re prese ntation. See Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996) . As explained in Burns, 6 S.W.3d at 462, “[c]onduct that is unreasona ble under the facts of one case may be perfec tly rea sonable unde r the fa cts of anothe r.”

“In case s involving a guilty plea or plea of n o l o c o n t e nd

e re , t h e p eti tioner must show ‘pre judice’ by

demonstrating that, but for counse l’s err ors, he wou l d n o t have ple aded guilty but would have insist ed upon g oing to trial.” Hicks v. State, 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998) (c iting Hill v. L ockhar t, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Ba nkston v. State, 815 S.W .2d 213, 215 (Tenn. Crim. App. 1991)). Hill ex plains the showing of pre judice which must be made by a petitioner w ho enter ed a guilty plea:

I n many g uilty plea c ases, the “ prejudice ” inquiry will closely rese mble the inquiry eng ag ed in by

courts re viewing ineffe ctive-a ssistance c halleng es to convictions obtained throug h a trial. F or example, wher e the alleg ed err or of counsel is a failure to investigate or discove r po te nti a ll y e xc u lp a to r y e v id e n c e , th e d e te rmination whether the e rr or “ pr e jud ic e d” the de fe nd ant b y c a us ing him to ple a d g uil ty

rathe r t ha n g o to trial will de pend on the likelihood that discovery of the evidenc e wou l d h av e led
c ouns e l to c ha

ng e his re c omm e nd a tio n a s to the ple a

. Th is a sse ssm e nt, in t ur n, wi ll depend in lar g e part on a predic tion whe ther the evidenc e likely would have c hang ed the ou tc ome of

a tr ia l.
474 U.S. at 59, 106 S. Ct . at 370.
On appe al, the petitioner a rg ues that this court should not apply the re quirement that he prove his c la ims by

“ c le ar a nd c onvin c ing ” evi den ce but, r a the r, re qu ir e that he sh owa “ re a so na ble probabilit y ” th a t t

h e o u tc o me w o u ld

h a v e b e e n

d if f e r e n t. H o w e v e r , w e mu s t f o ll o w th e s ta

n d a rd set out in Tennessee Co d e Annotate d section 40-30- 110(f) (2006), whic h provides, in par t, that “[t] he petitioner sha ll have the bur den of pr oving the alleg ations of fa ct by clea r and c onvincing-8-

e vid e nc e .” We c on c lude th at th is s tand ard do e s n ot c on fl ic t w iththe dic ta te of Str ic kla nd that a petitioner show a “ rea sonable proba bility ” t h at, but for the e rror s of counse l, the outcome of the proce eding would have be en diffe rent. As we have se t out, the post-co n v i ct i o n court’s de te rm inatio ns a s to de fi c ie nt p e rf or manc e of c ouns e l a nd pr e jud ic e to the pe tit ion e r a

re su bje c t to de novo revie w on appe al.

At the conc lusion of t he evidentiary hear ing, the post-conviction court made the f ollowing fi nd ing s:
The Court finds that there are two issues, basi cally whether the [petiti oner] knowing ly , u n d er s t anding ly and voluntarily

pled g uilty

on J uly 18th, [ 20]05 and whether the [petiti oner] rec eived inef fec tive assistance in failure of counsel to file a motion to s uppress the [petitioner’s] . . . statement, the first statement. I didn’t think there was a

n attack ma de on the se cond stateme nt. Or I wi l l j u s t addre ss both of the m f or the sake of

c omp le te ne ss.

. . . . The [petitioner] was repr esente d by reta ined co u n s el , . . ., at the time he enter ed his plea. The [petitioner] concede d that he knew that they would be talking about enhanc ed sente ncing . The Court does not acc redit the [petitioner’s] testim ony . Ido
no t be lie ve the [pe tit ion e r] w he n h e sa id h e th ou g ht t he [dis tr ic t a tto rn e y ] wo uld deter mine the ra

ng e. The [petit ioner] did concede th at he knew about the 24-hour rule and that bodily injury was invol ved, that eac h of those five convictions could be used.

I n fac t, the [petit ioner] was familiar en o u gh with the situation about prior felonies that the Public De fende r’s of fi ce was a

ble, when the State said there wer e six , the Public Defe nder’ s office who represe nted hi m prior to [retained counse l] was succe ssful in showing that he did not have all six of those, one w as dismissed.

Iacc redit [trial counsel’s] testimony that he advised the [petiti oner] about the le sse r i nc lud e d o ff

e ns e s.

I t a p p e ar s th a t t

h e [p e ti ti o n e r ] t a lk e d

to th e p o li c e o nA u g u s t 3 0 th , [20] 04 when he was inca

rce rate d in the Rutherford County J ail on other c harg es. That wa s a pp are ntl y De te c tiv e Sa m B ra g g and a TB I a g e nt. Th e [pe tit ion e r] state d that he did
rec eive his Miranda

rig hts from them and that the colloquy went, when they rea d the Miranda r ig h ts th e [p e ti ti o n e r ] s a id , D o In e e d ana tt o r n e y an d la w e n f o r ceme nt responde d, You have n’t bee n char g ed, that is up to y ou.-9- The [petitioner] responde d, Well, if I haven’ t been char g ed, then Idon’t want
ana t t o r n e y.
Th e Court

fi nd s th a t th a t is no t a su ff ic ient accoun t – [tri a l c ouns e l’ s] te sti mony that w ou ld h a ve be e n f

ri vo lou s to pur su e a

mot ion to s up pr e ss o n th e ba sis of those fa cts, conc eded by the [petiti oner], the [petiti oner] did not rece ive ineff ective
a ssi sta nc e be c a us e [tr ia l c ouns e l] di d n ot p ur su e a mot ion t[o] su pp re ss.
On that i s s u e or a lso on the other testimony offe red by

the [petiti oner] that ini t i a l l y s t a t i n g t h e r e w a s a

p r o m i s e m a d e , w h a ti ta p p e ar s o nc ar e f

u l c ro ss examination that the officer s, the interviewing office rs told the [petit ioner] that . . . t h ey wo u l d ad v i s e t h e D i s t ri ct At t o rn ey o f hi s co o p er at i o n an d t h at t h ey wo u l d ch ar ge him wi th w hat he c omm itt e d o r s ome wo rd s to that e ff e c t, bu t the Court ’s fi nd ingis specific ally

that that colloquy

on that subject di d not rende r his statement involuntary
and it w a s no t in e ff

e c tiv e a ssi sta

nc e fo r [tri a l c ouns e l] no t to purs ue a mot ion to suppress with that fa ctual bac kg round. As to the issue of the [petitioner] offere d no proof, a ppare ntly [he] isn’t even arguin g that he didn’t under stand any thing other

than the tre atment of the f ive ag g ravated assaults. On that, the [ petitioner] has not proved at this post -convic tion hear ing that had there been a sentenc ing hear ing that those five convictions would not count as five convictions bec ause the [pe t i t ioner] did not . . . say that those five pe op le we re no t – d id r e c e ive bo di ly injur y . H e sa id t

wo of the m w e re se ri ou sly inj ur e d. He wa sn ’t awa

re or c ou ld no t ans we r the [S]ta te o[n] the oth e r t hr e e inj ur ie s. On the oth e r ha

nd , the Court a c c re dit s [tr ia l c ouns e l’ s] te sti mony that th a t w a s a

big iss ue be tw e e n th e m and

he stu die d th e Da

vid so n County Cir c uit Court fi le s on tho se a g g ra vate d a ssa

ult s and fo un d tha t all fi ve of tho se did re c e ive bo dil y inj ur y . In f a c t, the Court finds that [t rial counse l] did corre ctly advise the [petit ioner] on that issue.

The Court f

urther finds that [t rial counsel] ha s prac ticed criminal l aw 1 00 perc ent for the last ten y ear s both in state and fe dera l court , h as about four or five
mur de r t ri a ls a y e ar; ha s, in f

a c t, h a d o ne thi s y e ar, a

fi rs t de g ree m urd er tr ia l in B e df or d Co un ty . Wh e n h e fi rs t bec a me inv olv e d he ta lke d with

. . . c ouns e l pr ior

to [his ] sub sti tut ion

a s cou ns e l. Al so we nt to the Pub lic De fe nd e r a nd re vie we d th e ir fi le a s w e ll a s the cou rt fi le. He ta lke d to the [pe tit ion e r’ s] f a mil y se ve ra l ti me s, e xpla ine d th e [pe tit ion e r] h a d a ri g ht t o a jur y tr ia l.
The [ petitioner] obviously knew that beca use the c ase w as set for

trial at the time he enter ed the plea

. Also the Court fi n d s t h at the [petiti oner] has ente red ple as on a numbe r of
case s in the past and eve ry time, that wou l d b e t h e ag[g ravated] assault cases, the habitu al motor vehicle offe nder, two se parate fe lony DUI s, and theft ove r one-10-

thousand at which tim e h e wo u ld have he ard the colloquy that appea

rs in the transcr ipt of the plea a cce ptance hear ing in this ca se, all of which would have substantiated that he unde rstood ever y thing that wa s said to him and asked by the Court to e ns ur e his ple a

wa s f re e ly , k no wi ng ly , und e rst and ing ly and vo lun tari ly g iven. The Co u rt does find his plea w as fr eely , knowing ly , understanding ly and
v o l u n t arily

g iven from Exhibit 4 and fr om Ex hibit 8, the petition t o enter a plea of g u i l t y.
The Court finds that [t he petiti oner] and [ trial counsel] thoroug hly discussed the iss ue of

ho w p ri or

fe lon ie s w ou ld c ount.

Ifind that the [petitioner] i s an intellige nt and ar ticulate pers o n , far

above
aver ag e intellige nce of

the publ ic at larg e, quit e fr ankly , and he unde rstood the issue, he didn’t fee l it was fair all five could be used ag ainst him. He under stood the issue. And when he pl ed guilty

he under stood that. And he did enter his guilty pleas
an d a c c e p t e d t h i s s e n t e n c e f

r e e l y, kn o w i n g l y, v o l u n t ar i l y an d u n d e r s t an d i n g l y.

Ifind [trial counsel] di d provide e ffe ctive assistanc e of c ounsel and the petitioner has not me t his burden of proof in establishing that [trial counsel] was not eff ective in r epre senting him, so I respe ctfully deny the petition.

We conclude that the evidenc e supports the deter minations of the post-conviction court. As the cour t found, the petitioner was well-e x perie nced in the criminal justice sy stem, with a number of prior c onvictions. W e no t e that the lis ting in the investig ative re port prepa red by the B oard of Probation and Parole of

the petitioner’s pr ior arr ests is five pag es l ong , with some of the ar rests being for m u l t iple char g es appa rently occur ring on the same da

y . Thus, the re cord suppor ts the de te rm ina tio n o f t he po st- c onvi cti on cou rtth at t he p eti ti on er was ex peri enced in cri mi nal pro c e du re s. Trial counse l testified that he investig ated whe ther a ll five of the other persons involved in the
a c c ide nt w iththe pe tit ion e r h a d b e e n in jur e d a nd de te rm ine d th a t th e y

ha d b e e n. He e xpla ine d th is to the petitioner, telling him this meant that, for sentenc ing pur

poses, the five convictions would be
c ounte d s e pa

rate ly . The pe tit ion e r fe lt this wa s “un fa ir .” Couns e l sa id h e did no t f ile a mot ion to suppress the pe titioner’s two stateme n t s t o police off icer s beca

use the pe titioner had not bee n char g ed at the time a

nd had wa ived his rig ht to counsel. Thus, such a moti o n would have be en without merit. Although the petitioner’s testimony differ ed in many

respe cts from that of tr ial counsel, the c ourt ac cre dited counsel’s te stimony . The post-c onviction court dete rmined t hat the pe tit ion e r f

a ile d to e sta

bli shtha t tr ia l coun sel had be e n in e ff e c tiv e , a nd the re c or d s up po rt s th is deter mination.-11- CO NC LU SION

Ba sed upon the fore g oing a uthorities and re asoning , we a ffirm the post-c onviction court’s dismiss al of the pe tition.

___________________________________ AL AN E. GL ENN, JUDGE