# FILED
May 22, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1997 SESSION

RICHARD GARY HORTON, ) ) Appellant, ) No. 03C01-9604-CR-00161

) ) Hamilton County v. ) ) Honorable Stephen M. Bevi l, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )
For the Appellant : For the Appellee : Robert N. Meeks Charles W. Burson 3505 Brainerd Road Attorney General of Tennessee P.O. Box 8086 and Chattanooga, TN 37414 Sarah M. Branch Counsel for the State 450 James Robertson Parkwa y Nashville, TN 37243-0493 William H., Cox, III District Attorney General and Bates Bryan, Jr. 600 Market Street, Suite 310 Chattanooga, TN 37402

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge1 The petitio n also allege s tha t the p etition er rec eived ineff ective ass istan ce of coun sel

that resulted in an involuntary ple a to anoth er offen se. On appea l, the petitioner d oes no t challenge the trial court’s de nial of pos t-conviction relief with res pect to the other co nviction. 2 O P I N I O N

The petitioner, Richard Gar y Horton, appeals as of ri ght from the Hamilton County Criminal Cour

t’s dismissal of his petit ion for post-conviction relief. The petitioner was conv

icted of attempted second degree murde r and received a ten-y ear sentence. This court affirmed the peti tioner’s conviction. State v. Richard Gary Horton , No. 03C01-9306-CR-00172, H amilton County (Tenn. Cri m. App. Dec. 2, 1993), app
. denied (Tenn. Apr. 4, 1994). On Mar ch 27, 1995, the petitioner filed a pro se postconviction petition. C

ounsel was appointed and filed a n amended petition that alleges that the petitioner’s counsel was ineffective for failing to investigate the f acts of the case and that the petitioner’s due process and equal protection rights were violated because he was initially indicted for reckless endangerment but was indicted for attempted f irst degree mu rder in ret aliation for his re fusal to plead gui lty. 1 The trial court dismiss ed the petition after an evidentiary hearing, concluding that the petitioner failed to establish that he received the ineffectiv e assistance of counsel or that the attempted first degree murder indictment was the result of prosecutorial v indictiveness. The sole issue for our review is w

hether the trial court er red by denying the pet ition on the prosecutorial vindictiveness g round.

The assistant district att orney who prosecuted t he petitioner testified at the post-conviction evidentiary hearing. He recalled that the petitioner was originally indicted for reckless endangerment. He said that after he reviewed the file on the case he decided to seek an indictment for attempted first degree murder b ecause he felt that the reckless endangerment c harge was not an accur ate reflection of the crime that w as committed. He testified that he di d not know whether the ev idence that formed the3

basis for his decision w as in the file at the time the peti tioner was origi nally indicted for reckless endangerment.

He denied offering the petitioner a two-year plea ag reement and explained that he usually writes notes concerni ng plea negotiations on the case file. Copies of the file folders he used as the case file for the reckless endangerment and attempted first degree murder c harges were introduc

ed into evidence. The copy of the reckless endangerment file do es not contain any notations concerning plea negotiations. Bright said that to his recollec tion, he never offered the petitio ner any plea agreement other than for the pet itioner to plead guilty and have a sentencing hearing.

The petitioner’s trial att orney testified that he had thoug ht the petitioner was very lucky when he had only been indicted for reckless endangerment. He said that he and the petitioner knew that the state was goin g to seek another indictment before it happened. He explained that “immediately or v

ery quickly”

after the petitioner was indicted on reckl ess endangerment, the prosecutor told him that the state was going back to the gra nd jury to get another i ndictment on first degree murder . The attorney said that he contes ted the upgrading of the charg e and that the trial court r uled that the state was allow ed to get a new indictment.

With respect to plea negotiations, the tr ial attorney testified that the petition er told hi m that he , the pet itioner, had turne d down an e leven-mo nth and t wentynine-day sentence at the pre liminary hearing i n city court, before his representation of the petitioner began. The attor ney said that he did not remember the petitioner receiving an offer inv

olving a two-y

ear sentence. He said that hi s records indicated that the prosecutor had agreed to consider a plea to aggravated assault. He said that his2 For post-conviction petitions filed after May 10, 1995, petiti oners have the burden o f

proving factual all egations by clear and convincing evidence. T.C.A. § 40-30 -210(f). 4 records also reflect that the prosecutor told him to make an o ffer in the “high numbers” but that the petitioner did not want to plead to anything in the “high numbers.”

The petitioner testified that, in the presence of the trial attor ney, the prosecutor offered him a two-y ear plea agreement for the reck less endangerment charge. The petitioner sai d that he refused the offer because he understo od that reckless endangerment w as a misdemeanor charge carr ying a maximum sentence o f eleven months and twenty -nine days. The petitioner said that he did not learn that the charge against him had been upgraded from reckless endangerme nt to attempted first degree murder until the day of trial.

At the end of the hearing, the tri al court made the following findings with respect to the petitioner’s allegations of prosecutorial vindictiveness:

I see nothing to indicate that [ th e prosecutor] did this out o f vindictiveness other than the fact that he look ed at th e case and felt like based on the facts an d circumstance s the charge was too low a nd went ba ck to the j ury. I find that there is no showing in any way, the defendant has failed to carry the burden of showing the pr osecution acted vindictively

and that the case went back to the Grand Jury for reindictment

for any reason other than the fact t hat it was just a decision on the part of the prosecutor

that the facts merited a higher charge and I find n o other reason.
In the order dismissing

the petitioner’s petition, the trial court also note d that the prosecutor’s decision to upgrade the charge “had nothing to do with Mr. Horton’s failure to plead guilty to the R eckless Endangerment charg e.”

The burden was on the petitioner in the trial court to pr

ove his allegations that would entitle him to r elief by a preponderance of the ev idence. 2 Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). On appeal, we are bound by the tri al5

court’s findings unless we conclude that the evidence preponderates against tho se findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In thi s respect, the petitioner has the burden of il lustrating how the ev idence preponderates against the judgment entered. Id

.

As long as probable cause ex ists to believe that an offense has been committed, it is generall y within the prosec utor’s discretion as to what charge to bring before a grand jury. See Bordenkircher v. Hay es , 434 U.S. 357, 364, 98 S. Ct. 663, 668 (1978). Only when a prosecutor acts to retal iate against a defendant’s ex ercise of constitutional rights or to discriminate against a defendant upon impermissible grounds, such as race or relig ion, will a claim of pr osecutorial vindicti

veness be entertained. See State v. Brackett , 869 S.W.2d 936, 940 (Tenn. Crim. App. 1993). The rec ord before us supports the trial court’ s findings and conclusions that the prosecutor acted in g ood faith upon the belief that the fa cts warranted a higher charge. Thus, no vindictiveness was shown.

The judgment of the trial court i s affirmed.

Joseph M. Tipton, Judge

CONCUR:

Gary R. Wade, Judge

William M. Barker, Judge