FILED

November 5, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1997

RAY D. RUCKER, ) C.C.A. NO. 02C01-9610-CR-00375

)

Appellant, )

)

) SHELBY COUNTY

VS. )

) HON. ARTHUR T. BENNETT

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

LEE WILSON JOHN KNOX WALKUP

200 Jefferson, Suite 800 Attorney General and Reporter

Memphis, TN 38103

CLINTON J. MORGAN

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

JOHN W. PIEROTTI

District Attorney General

DAVID SHAPIRO

Assistant District Attorney General

Criminal Justice Complex, Suite 301

201 Poplar Street

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

 Tenn. Code Ann. §§ 39-16-507, 39-12-101, and 39-13-102.

2

 Although the record is somewhat confusing, it appears that the guilty plea to the drug

offens e occu rred at the sam e time a s the guilty plea s which are the su bject of the case a t bar. In

addition, it appears that the State agreed to nolle prosequi another drug charge aga inst the Petitioner.

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OPINION

The Petitioner, Ray D. Rucker, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for post-conviction relief. On May 29, 1992, the Petitioner pleaded guilty

to one count of coercion of a witness and one count of attempted aggravated

assault.1

 As specified in the negotiated plea agreement, he was sentenced as

a Range I standard offender to two years on each count, with the sentences to

run concurrently. In addition, both sentences were ordered to run concurrent with

a three-year sentence he received upon a plea of guilty to a drug offense.2 He

filed a pro se petition for post-conviction relief on January 25, 1994, which was

amended with the assistance of counsel on April 24, 1995. In his petition for

post-conviction relief, the Petitioner argued that he was denied effective

assistance of counsel at his guilty plea proceeding for a number of reasons. The

trial court conducted an evidentiary hearing on January 16 and February 8, 1996.

After considering the evidence, the trial court issued an order denying the petition

on March 21, 1996. We affirm the judgment of the trial court.

The record does not fully detail the circumstances of the offenses. It

appears that the Petitioner and Derrick Rogers allegedly knocked an individual

by the name of Ellie Owens off of his bicycle and threatened him. Owens was

apparently cooperating with and giving information regarding drug transactions

to the Collierville Police Department. The record indicates that Owens initially
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gave a statement implicating the Petitioner in the attack. In addition, the State

had statements from witnesses to the attack who implicated the Petitioner. As

a result, on January 30, 1992, the Petitioner and Derrick Rogers were jointly

indicted on charges of coercion of a witness and aggravated assault. The

Petitioner negotiated a plea agreement with the district attorney general’s office

and, on May 29, 1992, pleaded guilty to coercion of a witness and attempted

aggravated assault.

On January 25, 1994, the Petitioner filed a pro se petition for postconviction relief, arguing that defense counsel at the guilty plea proceeding was

ineffective. Counsel was appointed and amended the petition on April 24, 1995.

Through the amended petition, the Petitioner argued that his attorney at the guilty

plea proceeding, Bretran Thompson, rendered ineffective assistance of counsel

in a number of ways, all of which revolve around three central issues:

(1) That counsel did not adequately communicate with him;

(2) that counsel failed to conduct adequate discovery or an

appropriate investigation of the case; and

(3) that counsel failed to advise him of the future implications of

pleading guilty.

With regard to the first issue, the Petitioner asserted that counsel never

conducted an office interview and visited him in jail only twice. He claimed that

counsel did not consult with him during the development of the case except to

discuss payment of counsel’s fee. Furthermore, he stated that counsel waived

a preliminary hearing although the Petitioner had expressed a desire to have one.

With regard to the second issue, he complained that counsel failed to file

discovery or suppression motions. In addition, he alleged that counsel failed to

interview the victim of the attack, Ellie Owens, even though the Petitioner had

informed counsel that Owens would exonerate him. With regard to the third
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issue, he asserted that counsel failed to advise him of the potential for enhanced

punishment for subsequent offenses. Moreover, he contended that counsel

improperly advised him to plead guilty while there were other charges pending

against him in federal court, thereby resulting in an enhanced sentence for his

federal conviction.

The trial court conducted an evidentiary hearing on the petition for postconviction relief on January 16, 1996. At the hearing, the Petitioner testified that

counsel coerced him into pleading guilty. He stated that he initially told counsel

that he did not want to plead guilty. In response, counsel informed him that the

prosecutor would not agree to the three-year sentence on his drug offense if he

decided to take the coercion and assault charges to trial. The Petitioner testified

that he felt like he had no choice but to plead guilty because he knew that he was

guilty of the drug offense and feared a harsher punishment should he take the

coercion and assault charges to trial.

The Petitioner testified further that counsel did not communicate with him

adequately. He stated that he met with counsel a total of five times, three while

he was out on bond and two while he was incarcerated. According to the

Petitioner, counsel did not discuss strategy with him, did not discuss the evidence

which the State intended to offer, and did not inform him of his rights. In

particular, the Petitioner complained that counsel never discussed the right to a

preliminary hearing. He testified that counsel waived his preliminary hearing

without his consent.
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In addition, the Petitioner complained that counsel failed to file either a

motion for discovery or a motion to suppress. He testified that he informed

counsel that he was innocent of the assault charge and that the victim would

testify on his behalf. According to the Petitioner, the victim even went so far as

to come to court on one occasion, but counsel did not inform the prosecutor that

the victim wished to testify for him. At the post-conviction hearing, the Petitioner

introduced an affidavit purportedly signed by the victim stating that the Petitioner

did not participate in the attack on the victim. The affidavit is dated March 10,

1994, shortly after the filing of the pro se petition for post-conviction relief.

The Petitioner also testified that counsel did not inform him about the future

consequences of his guilty pleas. More specifically, it appears that, in addition

to his other charges, the Petitioner was charged with another drug offense,

possession of a controlled substance with intent to distribute. Counsel informed

him that as part of the plea agreement, the State had agreed to nolle prosequi

that charge. The Petitioner complains that counsel did not alert him to the fact

that two weeks after his guilty pleas, a federal grand jury would indict him on a

drug charge, apparently stemming from the conduct which was the subject of the

nolle prosequi state charge. Upon his subsequent federal conviction, the

Petitioner’s state convictions were used to enhance his federal sentence. The

Petitioner testified that had he known his state convictions could be used to

enhance his subsequent federal sentence, he would not have pleaded guilty.

The only other witness to testify at the post-conviction hearing was the

Petitioner’s attorney from the guilty plea proceeding, Bretran Thompson.

Thompson testified that he communicated with the Petitioner about every aspect
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of the case and met with him in excess of fifty times. He stated that he did not

file a motion for discovery because the prosecutor’s office had an open-file

discovery policy. Thompson testified that he gained access to all of the State’s

information on the case through open-file discovery and shared that information

with the Petitioner. The open-file discovery policy also led him to waive the

Petitioner’s preliminary hearing. He stated that, with the Petitioner’s permission,

he signed the waiver form on behalf of the Petitioner. In conjunction with the

waiver of the preliminary hearing, Thom pson secured a bond reduction for the

Petitioner.

In the course of investigating the case, Thompson spoke with witnesses

to the attack on the victim and reviewed police reports summarizing statements

given by the witnesses. Thompson’s investigation revealed that the State had

enough evidence to secure convictions against the Petitioner. Thompson

testified that the nature of the evidence was such that a motion to suppress was

inapplicable. Thompson indicated that the Petitioner did not inform him of the

victim’s willingness to give a statement exonerating him. He explained his

opinion of the strength of the State’s evidence to the Petitioner and stated that

there was a “50-50" chance of conviction. According to Thompson, the decision

to plead guilty was made by the Petitioner. Thompson then negotiated a plea

agreement with the prosecutor. It appears that as part of that agreement, the

State agreed to nolle prosequi one of the drug charges against the Petitioner.

Thompson testified that he informed the Petitioner that the convictions

could later be used for enhancement purposes. He also testified that he was

unaware of any potential federal charges being filed against the Petitioner.
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Thompson stated that if he had known of federal charges pending against the

Petitioner, he would have tried to consolidate the charges with the state charges

or somehow limit the Petitioner’s exposure on the federal charges.

At the conclusion of Thompson’s testimony, the post-conviction hearing

was continued to February 8, 1996, in order to allow the Petitioner to locate the

victim, Ellie Owens. The Petitioner intended to introduce testimony from Owens

concerning the statement in the affidavit that he would have exonerated the

Petitioner. On February 8, 1996, the Petitioner informed the trial court that he

had been unable to locate Owens because Owens no longer lived in Tennessee.

Instead, he offered the testimony of his own mother, Linda Faye Richardson.

Richardson testified that she accompanied Owens to court for one of the

proceedings involving her son. According to Richardson, Owens acknowledged

that he had signed the affidavit stating that the Petitioner had not participated in

the attack upon him.

After considering the evidence presented at the post-conviction hearing,

the trial court entered detailed findings of fact and conclusions of law. In short,

the trial court did not find the Petitioner’s testimony to be persuasive and instead

accredited Bretran Thompson’s testimony in all respects. With regard to the first

central issue (failure to communicate), the trial court found that Thompson had

met with the Petitioner a sufficient number of times and had fully discussed the

case. Moreover, the trial court noted that the Petitioner did not allege how more

meetings with counsel would have affected his decision to plead guilty.
3

 As the State points out on appeal, the transcript of the guilty plea proceeding was not

included in the reco rd on ap peal. Of c ourse, it is the duty of the a ppellant to p repare a n adeq uate

record to allow a m eaningf ul review on appea l. Tenn. R . App. P. 24 (b); State v. Bunch, 646 S.W.2d

158, 160 (Tenn . 1983); State v. R oberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Given the

absence of the transcript of the guilty plea proceeding from the record, we must presume the trial

court’s find ings with re spect to the transc ript are correct. State v. Richardson, 875 S.W.2d 671, 674

(Tenn . Crim. App. 1993 ); State v. Boling, 840 S.W .2d 944, 951 (Tenn. Crim . App. 1992).

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With regard to the second central issue (failure to investigate), the trial

court accredited Thompson’s testimony that he had the benefit of open-file

discovery. As such, the waiver of the preliminary hearing was a reasonable

strategic decision. Furthermore, the trial court found that the proof presented at

the post-conviction hearing indicated that the Petitioner had not informed counsel

regarding the victim’s willingness to give a statement exonerating him. Given the

circumstances of the offenses and the Petitioner’s inability to present live

testimony from the victim, the trial court found the affidavit, purportedly signed by

the victim, to be unpersuasive.

With regard to the third central issue (failure to advise concerning future

enhancement), the trial court found that Thompson had properly advised the

Petitioner that his convictions could be used against him in the future. Moreover,

the trial court noted that the transcript of the guilty plea proceeding clearly

demonstrates that the Petitioner was made aware that his convictions could later

be used for enhancement purposes. The trial court pointed out that the transcript

revealed the Petitioner had stated that he was voluntarily pleading guilty, that his

decision was not the result of coercion, and that he was satisfied with counsel’s

performance.3 The trial court also found that the evidence presented at the postconviction hearing indicated that Thompson was unaware of any federal charges

against the Petitioner at the time of the guilty plea proceeding.
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As a result, the trial court concluded that Thompson’s representation fell

within the range of competence demanded of attorneys in criminal cases. Given

that Thompson had provided effective assistance of counsel, the trial court

concluded that the Petitioner had entered his guilty pleas knowingly, intelligently

and voluntarily. The trial court therefore denied the petition for post-conviction

relief. It is from the order of denial that the Petitioner now appeals.

In determining whether or not counsel provided effective assistance at trial,

the court must decide whether or not counsel’s performance was within the range

of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930 (Tenn. 1975). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produce a reliable result. Strickland v. Washington, 466

U.S. 668, 687, reh’g denied, 467 U.S. 1267 (1984); Cooper v. State, 849 S.W.2d

744, 747 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy this second prong the petitioner must show a reasonable probability that,

but for counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable

probability must be “sufficient to undermine confidence in the outcome.” Harris

v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

When reviewing trial counsel’s actions, this court should not use the benefit

of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be
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judged at the time it was made in light of all facts and circumstances. Strickland,

466 U.S. at 690; see Cooper, 849 S.W.2d at 746.

This two part standard of measuring ineffective assistance of counsel also

applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show

that there is a reasonable probability that, but for counsel’s errors he would not

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

We note that under the Post-Conviction Procedure Act applicable to the

present case, a petitioner bears the burden of proving the allegations in his or her

petition by a preponderance of the evidence. McBee v. State, 655 S.W.2d 191,

195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of the trial court

in post-conviction hearings are conclusive on appeal unless the evidence

preponderates against them. See State v. Buford, 666 S.W.2d 473, 475 (Tenn.

Crim. App. 1983).

Applying the Strickland standard to the case sub judice, we believe that the

Petitioner has failed to establish that defense counsel’s representation at the

guilty plea proceeding was constitutionally deficient. The Petitioner testified at

the post-conviction hearing that defense counsel failed to communicate with him

sufficiently, failed to conduct adequate discovery and a sufficient investigation of

the case, and failed to advise him of the future implications of a guilty plea. In

contrast, defense counsel Thom pson testified that he communicated with the

Petitioner regarding all aspects of the case, conducted a thorough investigation

of the case, and fully explained the consequences of pleading guilty.
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After hearing all of the evidence and evaluating credibility, the trial court

accredited the testimony of defense counsel, Bretran Thompson. Thus, the trial

court found that the evidence did not support the Petitioner’s allegations of

ineffective assistance of counsel. The trial court was in a much better position

to evaluate the credibility of the witnesses than this Court. The trial court found

Thompson’s testimony to be persuasive and therefore concluded that the

Petitioner had not established that Thompson’s representation was

constitutionally deficient. From the record before us, we cannot conclude that the

evidence preponderates against the trial court’s findings.

For the reasons set forth in the discussion above, we conclude that the

Petitioner has failed to demonstrate that the trial court erred in denying the

petition for post-conviction relief. We therefore affirm the judgment of the trial

court.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

JOE G. RILEY, JUDGE