# FILED
April 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON APRIL 1998 SESSION
GEORGE W. TUCKER, ) ) NO. 02C01-9707-CR-00249 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. L. T. LAFFERTY, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT : MARK A . MESLER Ballin, Ballin & Fishman, P.C. 200 Jefferson Avenue, Suite 1250 Memphis, TN 38103-2328 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter PET ER M . CO UGH LAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General ROSEMA RY S. ANDREWS Assistant

District Attorney

General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION
The petition er, George W. Tucker, appeals the order of theShelby County Criminal Court denying his petition for post-conviction relief. He is presently servi ng an effect ive sentence of twelve (12) years following his guilty pleas to the offenses of theft of property over $10 ,000, th eft of property over $1,000 and leaving the
scene of an acciden t. In hi s post-conviction petition he seeks to set aside his convictions

based upon ineffective assistance of couns el and involuntariness of the guilty pleas. After an

evidentiary heari ng, the trial court deni ed relief. We find no error and AFFIRM the j udgment of the trial court.

FACTS

In 1996 , petitio ner pled guilty to one (1) count of theft of property ov er $10,000, one (1) count of theft of property ov er $1,000 and one (1) count of leaving the scene ofan accident. The trial cour t sentenced him as a Range III offenderto concurrent

terms of twelve (12)

years for each theft offense and eleven (11) months and twenty-nine (29) days for leaving the scene of an accident. Kelly Rayne of the Shelby County Public Defender’s Office represented petition er. Petitioner

testified that on the day that he w a s to go to trial, his attorney coerced him into p leading gu ilty. He claime d that sh e and her superviso r, Sherrye Brown, pressured him to plead gui lty when he actually w

anted to go to trial. They convinced him that the state would prove him g uilty, and he was “ worn down” by theirinsistence that he plead guilty. He also suggested that Ray ne did notconduct
an adequate investi ga tion, i ncluding locating witnesses. He did, however, ackno wle dge that Rayne appeared prepared to try the case on the day he pled guilty. He also admitted that he had ten (10) prior felony convictions, nine (9)

of which were guilty pleas. Rayne testifie d that sh e and Bro wn approached petitioner wi th a negotiated plea agreement on theday trial was to begin. Rayne had asked Brown to assis t her1 The petition for post-con viction relief was filed on November 5, 1996. The trial

court promptly entered the required preliminary order on November 14, 1996. The state filed its wr itten re sponse on December 12, 1996. The evidentiary hearing was conducted on January 31, 1997, and the ca se was taken under adv

isement. T

he trial c ourt entered a sixpage written order dismissing the petition on February 5, 1997. A trial judge must dispose of a ll judicial matters promptly, efficiently and fairly . Canon 3B(8), Tennessee S uprem e CourtRule 10. The ha ndling of th is case by the trial judge epitomizes the high standards pla ced u pon a cou rt i n fu lfi lli ng it s re spo nsi bil iti es t o th e li tig ant s an d so cie ty.

2 A summary of

testimony doe

s not constitute find

ings of fact. 3 with petitioner’s trial bec ause Brown had more exper ience than she. Rayne met with petitioner several ti mes in prepa rat ion for trial. She testified that three (3) separate investigations were perf ormed on petitioner’s behalf, and numer ous attempts were made to contact wi tnesses. On theday petitioner pled guilty, Ray

ne reviewed the state’s

case with

petitioner

and explai ned the amount o f prison time he might receive if convicted after a trial. Ra yne denied t hat she a nd Brown coerced p etitione r into ple ading guil ty and sta ted that he chose to plead guilty. Brown a lso t estified at the hearing. She had worked with the Public Defender’s Officer

for approximately twelve (12) years at the time petitioner entered his guilty pleas and was assi st ing Rayne with s everal cases as co-c

ounsel. She reviewed petitioner’s entire file prior to meetin g him. She discussed the v arious aspects of petitioner’s case with him on the day of his guilty pleas. Although she advised him that pleading guilty would be in his best interest, she denied coercing petition er to plea d guilty.

FINDINGS OF TRIAL COURT

Honorable L.T. Lafferty entered an order deny ing post-conv iction r elief. 1 This written order is a model for trial judges and is exactl

y the type

order contemplated byTenn. Code Ann. § 40-30-211(b). The order clearly and specifically sets forth all grounds raised by the petitioner. The order further makes findings of fact as to all the grounds, and does not merely summari ze testim ony. 2 The trial court then stated the applicable law, app lied this law to the findings of fact and concluded that petitio ner was

entitl ed to no r

elief.4 Specifi cally, the trial court found th at petitioner entered know ing and voluntaryguilty pleas, and neither Rayne nor Brown coer

ced him into pleading

guilty against his will . In the order, Judge Lafferty stated: [t]his petitioner is no

stranger to the crimi nal justic e system. He had gone through a jury tri al and had entered maybe 9 or 10 guilty pleas to felonies in the past. He was represented by attorneys in each prior pro ceeding. From his past experi ence in the system and observ ing his demeanor, the court found it difficu lt to belie v e that th ese two attorneys overwhelmed the petitioner. The trial court found that counsel performed “well within the criteria as demanded by Baxter v. Rose , 523 S.W.2d 390 (Te nn. 1975).” Moreover, the court found that petitioner

had failed to establish prejudice from any of the alle ged instances of deficie nt repr

esentat ion. The refore, the tri al cour t denied post-c onvict ion rel ief.

POST-CONVICTION STA NDARD OF R EVIEW
The trial judge's finding s of fact on post-c onviction hearings a re conclu sive
on appeal unless the evidence pr eponderates otherwise. Butler v. Stat e , 78 9 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State , 911 S.W.2d 334, 341 (Tenn. Crim. App. 1995). The trial court’s findings of fact are afforded the weig ht of a jury verdict, and this Court is bound by the trial court’s findings unless the evidence in the record preponderatesagainst those findings. He nley v. State , S.W.2d (Tenn. 1997); Alley v. State , 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State , 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not rew eigh or reevaluatethe evide nce, nor s ubstitu te its inf erences f or those d rawn by the tr ial judge. Henley v. State , S.W.2d at ; Massey v. State , 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerning the credibility of witnesses and the wei ght and value to be given to their tes

timony are resolved b

ythe trial court, not this Court. Henley
v. State , S.W.2d at ; Black v. State , 794 S.W.2d at 755. The burden of establishing that the evidence preponderat es otherwise is on petitioner. Henley v. State , S.W.2d at ; Black v. State , 794 S.W.2d at 755.5 INEFFECTIVE A

SSISTANCE OF C

OUNSEL

Petitioner

claims that trial counsel was in ef fective because she and her supervisor

coerced him into pleading gu il ty. He maintains that she was not prepared to go to trial and, therefore, insisted that he plead guilty. He furth er argues that had it not been for counsel’s insistence that he plead guilty, he would h ave gone to trial. A. This Court rev ie ws a claim of ineffective ass istance of counsel under the standards o f Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Stricklan d v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petiti oner has the burden to prove that (1) the attorney’s performance w as deficient, and (2) t he deficient performance resulted in prejudice to the defendant so as t o depriv e him of a fair trial. Strickla nd v. W ashington , 466 U.S. at 687, 104 S.Ct. at 2064 ; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State , 789 S.W.2d 898, 89 9 (Tenn. 1990). The test in Tennessee in determ i ning wheth er counse l provided effect ive assistance is whether his performance was w ithi n the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d at 936. The petitioner

must overcome the presumption that counsel’s con duct falls within the wide range of acceptable pr ofessional assistance. Stricklan d v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065; All ey v. State , 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997); State v. Willia ms , 929 S.W.2d 385, 38 9 (Tenn. Crim. App. 1996). In Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.E d.2d 203 (1985) , th e SupremeCourt applied the two- part Strickland standard to ineffective assis tance of counsel claims

arisin g out of a

guilty plea. The Cour

t in Hill modified the prejudice requirement

by requiring a defendant to show that there is a r

easonable probability tha t, but for counsel's errors, he would not have pleaded g uilty and woul d hav e insisted on going to tr

ial. 474 U.S. at 59, 106 S.Ct . at 370.

B.6 The tr ial court found it implausible that Ray ne and Brown had coerced petitioner

into p leadin g guilty due to petitioner’s prior exper ience with the crimina l justice system. The court found that Rayne had thoroughly investigated the state’s
case against petitioner and fully advised petiti oner on her investigation. Indeed, the trial court found no deficiency on the part of Rayne or Brown in their repr

esentation of petitioner in this case. The tria l court accredited the testimony of Rayne and Brown. The burden is on the petitioner to establish that the evidence preponderat es against the trial c ourt’s findings. See Alley v. State , 958 S.W.2d at 147; Dixon v. State , 934 S.W.2d at 72. The petitioner has failed to meet his burden. This issue is without merit.

VOLUNTARIN ESS OF GUILTY PLEA

Petitioner

further contends that

his guilty pleas were involuntary because he
was coerced into pleading guilty. He concedes

that the state madean “aff irmative showing that [his] plea was kn owing and vo luntary” under the standards set forth in Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and State
v. Mackey , 553 S.W.2d 337 (Te nn. 1977). Howev er, he suggests that hi s pleas were involuntary because he was forced to plead by his attorneys. Whether a defendant’s plea of guilty w as voluntarily, und e rstand ingly and knowingly

entered is determined by looking at the totality of the circumstances. State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). The trial court, as well as this Court, must consi der all of the relevant ci rcumstances that existed a t the time the plea was entered. Id. The trial court found no evidence that petitioner’s attorney s forced him into pleading guilty. The court looked at petit ioner’s p ast experience with the criminal justice system and noted that petitio nerhad entered approximately nine (9) guilty pleas to felonies in the past. The court concluded that

petitioner’s guilty

pleas were not involunta ry. Petitioner has not demonstrate d that the evidence preponderat es otherwise.7 This issue has no merit.

CONCLUSION

The trial court, after hearing testim ony and o bserving the appearance and demeanor

of each witness, entered extensive findin gs. The trial court di smissed the pet ition based upon these findings. W e find that the evidence does no t preponderate against the trial cour t’s findings that pe

tition er’s guilty pleas were voluntaryand that he received effectiv e representation at the t rial level. Accordingly, the j udgment of the trial court is affirmed.

JOE G. RILEY, JUDGE

CONCUR:

DAVID G. HA

YES, JUDGE

WILLIAM M. B

ARKER, JUDG E