# FILED
November 5, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON SEPTEMBE R SESSION, 1997
RAY D. RUCKER, ) C.C.A. NO. 02C01-9610- CR-00375 ) Appe llant, ) ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : LEE WILSO N JOHN KNOX WALKUP 200 Jefferson , Suite 800 Attorney Generaland Reporter Memphis, TN 38103 CLINTON J. MORGAN Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 JOHN W. PIEROTTI Distri ct Attorney General DAVID SHAPI RO Assistant Distri ct Attorney General Criminal Just ice Complex, Sui te 301 201 Poplar Street Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 Tenn. Code Ann. §§ 39-16-507, 39-12-101,and 39-13-102. 2 Although t he record is so mewhat confusing, it appears that the guilty pl ea 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 additi on, it

appears that the State ag reed to nolle prosequi another drug charge aga inst the Petitioner. -2- 

# OPINION

The Petiti oner, Ray D. Rucker, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure from the trial co urt’s deni al of his petiti on for post-co nviction relief. On May 29, 199 2, the Pe titioner plea ded gu ilty to one count of coer

cion of a witne ss and one count of attempted aggrav ated
assau lt. 1 As specifi ed in the neg otiated pl ea agreement, he was sentenced as
a Range I standard of fender to t

wo years on e ach co unt, with the senten ces to
run concu rrently. In addition, b oth sen tences were ord ered to ru n conc urrent with
a three-year

sentence he received upon a plea of guilty to a drug off

ense. 2 He fileda pro s e p etiti on for post- convicti on relief on January 25, 199 4, which was amended with the assista nce o f coun sel on April 24, 199 5. In his pet ition f or post-convi ction relief, the Pe titi oner a rgued that he was denied effective assistance of counsel at his guil ty pleaproceeding for a numberof reasons. The trialcourt conducted an evidenti ary heari ng on January 16 and February 8, 1996. After consideri ng the evidence, the trial court issued an order denyi ng the peti tion on Ma rch 21, 1 996. W e affirm the judgm ent of the tria l court.

The record does not fully detai l the circum stance s of the offe nses. It appears that thePetiti oner and Derrick Rogers a llegedl y knocked an individual by the nam e of Ellie O wens o ff of his bicycle and th reate ned him. Owens was appa rently cooperating with and giving i nformation r egarding drug t ransactions to the Co llierville Po lice De partm ent. T he rec ord ind icates that O wens initially-3-

gave a statem ent imp licating the P etitioner in the attack. In ad diti on, the State had statements from witnesses t o the at tack w ho impl icated the P etit ioner . As
a result, o n Jan uary 3 0, 199 2, the P etitione r and D errick R ogers were jo intly indicted on charges of co e rcion of a witness and aggr avated assaul t. The Petiti oner negotiateda plea agreement with the distri ct attorney general’ s office and, on May 29, 1992, pl eaded guilt y to coerci on of a witn ess and at tempted aggrava ted assa ult.

On January 25, 1994, the Petit ioner fi led a p ro se p etition for po stconvicti on relief , arguing t hat defense counselat the guil ty plea pr oceeding was ineffect ive. Counsel was appointed and amended the petit ion on April24, 1995. Through the am ende d petitio n, the P etitione r argue d that h is attorney at the guilty plea proceeding, Bretran Thompson, rendered inef fectiv e assistance of

counsel in a number of ways, all of which revolve around three cent ral issues: (1) That cou nseldidnot

adeq uat ely

commu nicatewit h hi m; (2) that counselfai led to c onduct adequate di scovery or an appropriate investi gation of the case; and (3) that coun sel failed to a dvise him of the fu t ure implications of pleading gu ilty. With regard to t he first issue, t he Petiti oner asserted t hat counsel never conducted an office in terview and vis ited him in jail only twi ce. He clai med that counsel did not co nsult with h im durin g the de velopm ent of t he cas e excep t to discuss paym ent of c ouns el’s fee. Furt hermore, he stated that counselwaived
a prelimina ry heari ng although t he Petiti oner had expressed a desi re to have one. With regard to t he second issue, he co mpla ined th at cou nsel fa iled to file discovery or suppression moti ons. In addi tion, he a lleged t hat couns el failed to interv iew the vi cti m of the attack, Elli e Owens, even though t he Petiti oner had informed counsel that Owens would exone rate h im. W ith regard to the third-4-

issue, he asserted that counselfailed to advise hi m of the potent ial for enhanced p unish ment for subsequent offenses. Moreover, he contended that counsel im properl y advised hi m to plead guil ty whil e there were ot her charges pendi ng against him in feder

al court, th ereby resultin g in an enha nced sente nce fo r his federal conviction
.

The trial cou rt cond ucted an evid entiary hearin g on th e petitio n fo r postconvicti on relief

on January 16, 199 6. At the hearing, the Petit ioner testified that counsel coerced hi m int o ple adin g gui lty . He stated that he initially told counsel thathe did no t want to ple ad guilty. In response, counselinformed hi m that the prosecutor

would not agree to the thr ee-year sentence on his drug of fense if he decided to take the co ercion and a ssau lt charg es to tria l. The Petiti oner testi fied thathe felt like he had no choice b ut to plead guil ty because he knew that he was guilty of the drug of

fense and feared a harshe r punishment shoul d he take the
coerc ion an d ass ault ch arges to trial.

The Petition er testifie d furthe r that co unse l did no t com mun icate w ith him adequa tely. He stated tha t he met with co unsel a total of five times, t hree while he was out on bond and two whi le he was incar cerated. Accor

di ng to th e Petitioner, counsel did not discuss strategy wit h him, did not discuss the evi dence which the State i ntended to offer, and d id not inform him of his rights. In particular, the Petit ioner complai ned that counselneverdiscussed the right to a preliminary h ea ring. He testifi ed that counselwaived his preliminar y hearing without his conse nt.-5- In additio n, the Peti tione r com pla ined that coun sel failed to file either a motion for discov ery ora motion to suppr ess. He testified that he informed counsel that he was i nnocent of t he a ssault charg e and that the victim w ould testif y on his behal f. Accordi ng to the Petiti oner, the vict im even went so far as to cometo court on one occasion, bu t counsel did no t inform the prosecutor that the victi m wished to test ify for him. At t he post-convi ction heari ng, the Petiti oner introducedan affidav it purpor tedly si gned by the vi ctim stat ing that t he Petiti oner d id not part icipate in the at tack on the v ictim. The affidav it is dated March 10, 1994, shortly after

the fil ing of the pro se petition for p ost-con viction relief.

The Petiti oner also testified that couns el did not inform him abou t the future consequen ces of his gui lty pl eas. More speci fically, it appears that, in addit ion to his other c harges, the Pet itioner was charged wit h another drug of fense, possession of a controll ed substance wit h intent to dist ribute. Counsel info rmed him that as part

of the pl ea agreement, the State had agreed to n olle prosequi thatcha rge . The Petitioner complains t hat counsel did not alert him to the fact thattwo week s after hi s gu ilty pleas, a federal grand j ury would i ndict hi m on a drug charge, apparent ly stemming f rom the conduct whi ch was the subject of the nolle prosequi state c h arge. Upon his s ubsequent federalconvicti on, the Petition er’s state convi ctions were used to enhan ce his federalsentence. The Petiti on er testified that h ad he k nown h is state con victions co uld be us ed to enhance his subsequ ent federal sen tence, he wo uld not have ple aded guilty.

The only other

witness to testif

y at the post-convict ion h earing was the Petition er’s atto rne y from the gui lty pl ea proceeding, Bretran Thompson. Thompson testified that he communicated with the Petitioner about every aspect-6-

of the case an d me t wit h him in excess of fift y times. He stated that he did not file a motion for

d iscove ry beca use th e pros ecuto r’s office had a n ope n-file discovery policy. Thompson testified that h e gaine d acc ess to all of the State’s informati on on the case thr ough open-fil e discovery and shared that

informati on with the Pe titioner. T he op en-file d iscove ry policy also led him to waiv e th e Petition er’s prelimina ry heari ng. He stated t hat, wit h the Petit ioner’s p ermission, he signed th e waiver fo rm on b ehalf of the Petitioner. In conjunct ion with t he waiver of the preliminary he aring, Thom pson secu red a bond re ducti on for the Petitioner.

In the course of

investi gating the case, Thompson spoke with witnes ses to the attack on the victim a nd review ed police reports su mm arizing sta temen ts given by the wit ne s ses. Thompson’s investigati on revealed t hat the State had enough evidence to secure con vict ions against the Petit ioner. Thompson testif ied that the nature of the evide nce wa s such th at a mo tion to suppress was in applicabl e. Thompson indicated t hat the Peti tioner di d not info rm him of th e victim’s willi ngnes s to give a statem ent exo neratin g him . He ex plaine d his opinion of the str ength of the State’s evidence to the Peti tioner and stated that there was a “50-50" chan ce of convicti on. According to Thompson, the decisi on to plead guil ty was made by the Pet itioner . Thompson then negoti ated a p le a agreement with the pr osecutor. It appears t hat as part of that a greement, the State agreed to nolle prosequi one of the drug charges ag ainst the Petitioner.
Thompson testified that h e informed the Petiti oner that t he convicti ons could later be us ed f or enha ncement purposes. He al so testi fied that he was
unaware of any potentialfederal charges being filed against the Pe titioner.-7-

Thompson stated th at if hehad k nown of federalcharges pending agai nst the Petitioner, he would have tried to consol idate the charges with the state charges or somehow limit the Petiti oner’s exposure on the federal char ges.

At the conc lusion of T homp son’s tes timony, t he post-convi ction heari ng was continued to February 8, 1996, in order to all ow the Petit ioner to locate t he vi cti m, Ellie Owens. The Petiti oner intendedto intr oduce testi mony from Owens concerning the sta teme nt in the affid avit t hat he would have exonerated t he Petitioner. On February 8, 1996, the Petit ioner inf or med th e tr ial court

that he had been unable to l ocate Owens because Owens no longer lived i n Tennessee. Instead, he offered t he testi mony of his own mother , Linda Faye Ri chardson. Richardson testified that s he accompani ed Owens to court for one of the proceedingsinvolv ing her son. According to Richardson, Owens acknowl edged thathe had signed theaffidavit s tating th at the P etitione r had n ot partic ipated in theattack

upon him
.
After consideri ng the evidence presented at the p ost- convicti on hearing, the tri al court en tered detai led find ings of fact and c onclusio ns of law. In short, the trial cou rt did no t find the Petition er’s testimon y to be persuasive and instead accreditedBretran Tho mps on’s te stimo ny in all respects. With regard to the first central issue (failure to communicate), t he trialcourt found that Thompson had met with the Petit ioner a suf ficien t number of ti mes and had fully discussed the
case. Moreover, t he trialcourt noted that the Pet itioner did not al lege how more meetings w ith counsel wo uld have affected his decision to plea d guilty.3 As the State points out on appeal, the transcri pt of the gui lty plea proceedi ng 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 t ranscript of the gui lty

plea proceedi ng from the record, we must presume the trial court’s find ings with re spect to the transc ript are cor rect. State v. Richardson , 875 S.W.2d 671, 674 (Tenn . Crim. A pp. 1993 ); State v. Boling , 840 S.W .2d 944, 951 (Tenn. Crim . App. 1992). -8- With regard to t he second c entral i ssue (fai lure to i nvestigate), the t rial court a ccre dited T hom pson ’s testim ony tha t he ha d the b enefit o f open -file disc overy. As such, the wai ver of t he prelimi nary heari ng was a reasona bl e strateg ic decision. Furthermore, the tri al court f ound that the proof presented at the post-convi ction heari ng indicated that the Pet itioner had not informed counsel regarding thevi cti m’swil li ngne ss to gi ve astateme nt exon erati ng hi m. Given the circumstancesof the off enses and the Pet itioner’ s inability to present live testimony

from the victi m, the tri al court f ound the affi davit, purportedl y signed by the vict im, to be unper suasive.

With regard to the third ce ntra l issu e (failure to advise con cerning future enhance ment), the tri al court f ound that Thom pson had properly advised the Petiti oner that his

convicti ons could be used a gainst him in the future. Moreove r, the trial cou rt noted that the transc ript of the guil ty plea p rocee ding c learly demonstratesthat thePetition er was mad e awa re that h is convicti ons could later be used for enhancement purposes. The trialcourt poin ted out that the transc ript revealed the Petiti oner had s tated th at he w as volu ntarily p leadin g guilty, th at his decision was not the re sult of coercion, and thathe was s atisfied with co unse l’s performance. 3 The trialcourt als o found that the evidence presen ted at the p ostconvicti on hearing in dicated t hat Thom pson was unaware of any feder al charges against t he Petiti oner at the t ime of the gui lty pl ea proceeding.-9- As a result, t he trial court concluded that Thompson’s represe ntation fell within the range of competence demanded of attorneys in criminal cases. Given that Th ompson had provided effective assistance of counsel, the tri al co ur t concluded thatthe Petit ioner had enter ed his gu ilty pleas know ingly, inte lligently and voluntarily. The trial court there fore denied the pet ition f or post-conv iction relief. It is f rom the order of denial that the Petitioner now appeals.

In det ermi nin g whe ther or not co unse l provide d effec tive ass istanc e at trial, the court must deci de whether or not counsel’s per

formance was within t he range of compe tence dem anded of attorney s in crimin al cases
. Baxter v. Rose , 523 S .W.2d 930 (Tenn. 1975). To succeed on a claim that his counsel wa s ineffective at trial, a petiti oner bears the bur den of showing that his counsel made
errors so serious t hat he was not funct ioning as counse l as guaranteed under the Sixth Amendment and that the def icient representat ion prejudiced the petit ioner resulting i n a failure to pr oduce a reliable re sult. Strickl and v. Washington , 466 U.S. 668, 68 7, reh’g denied , 467 U. S. 1267 (1984); Coop er v. State , 849 S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te , 789 S.W.2d 898, 899 (Tenn . 199 0). To satisfy this second pr

ong the petitioner m ust show a reaso nable p robability tha t, but for counsel’s unreasonable err or, the fact

finder woul d have had reaso nable doubt regarding petitioner’s g uilt. Strickl and , 466 U.S. at 695. T his rea sona ble probab ilitymust be “su fficient to undermine confidence in the outcome .” Harris v. State , 875 S.W .2d 662, 665 (Tenn. 199 4).

When reviewing trial couns el’s actions , this court shou ld n ot use the be nefit of hindsigh t to second-guess trial strategy a nd criticize c ounse l’s tactics. Hellard
v . St ate , 629 S.W.2d 4, 9 (Tenn. 1982) . Counsel’s alleged er rors should be-10-

judged at the time it w as ma de in light of a ll facts and circu mstan ces. Strickl and , 466 U .S. at 690 ; see Cooper , 849 S.W.2d at 746.

This two part standard of measuring ineffecti ve assistance of counsel also appliesto claims arising ou t of t he plea pr ocess. Hill v. Lockhart , 474 U.S. 52 (1985). The prejudice r equirement is

modified so t hat the petitioner “ must show that there is a reaso nable proba bility that, but for counsel’s errors he wo uld not have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.

We note that u nder the Post -Convicti on Procedure Act appl icable to the presentcase, a peti tioner bear s the burden of prov ing the al legations in his or her petiti on by a prepon deranc e of the ev idence
. McBe e v. State , 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthe rmore, the factu al findings of the trial court in post-c onvictio n hea rin gs are conclusive on appeal unless the evi dence preponderatesagainst th em. See State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App . 1983).
Applying the Strickl and standard to the case sub judice , we believe t hat the Petiti oner has failed to esta bl ish that defense counsel’ s representat ion at the guilty plea proceedi ng w as con stitut ionall y defici ent. The Peti tioner testifi ed at the post-c onvictio n hea ring tha t defen se co unse l failed to com mun icate w ith him sufficiently, failed to conduct adequate discovery and a suffic ient inv

estigati on of the case, and fai led to advise hi m of the future imp lications of a guilty plea. In contras t, defen se co unse l Thom pson testified that he com mun ic ate d with the Petiti oner regardin g all aspe cts of the case, conducted a thor ough investi gation of the case, an d fully explained the co nsequen ces of pleading guilty.-11- After hearing al l of the evidence and eval uat ing cr edibility, the trial court accreditedthe testi mony of defense counsel , Bretran Thompson. Thus, the tr ial
co urt fou nd that the evidence didnot support the Petit ioner’s a llegati ons of ineffective assistance of cou nsel. The t rial cour t was in a much better positi on to evaluate the cred ibility of the witne sses tha n this Co urt. The trialcourt found Tho mps on’s test imony to be persuasive and ther efore concl uded that the Petiti oner had not estab lished that Tho mpson ’s re prese ntation was
cons titutiona lly deficient. From the record bef ore us, we cannot

conclude that

the evidence preponderates against the t rial court’ s findings.

For the reasons set

forth i n the discussi on above, we concl ude tha t the Petiti oner has f ailed to demonstrate that the trial court erred in deny ing the petiti on for post-conviction re lief. We therefore affirm the judgment of t he trial court.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOE B. JONES, PRESI DING J UDGE

___________________________________ JOE G. RILE Y, J UDGE