### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs a t K noxv ill e Ja nua ry 24, 200 6

JEREM Y D . S HIVER S v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty

No. 2004-A- 323 Steve D ozier , Judge

No. M2005- 01406-CCA -R3-P C - F iled Fe bruary 7, 2006

Th e pe tit ion e r, Jer e my D. Shi ve rs , app e a ls the de nia l of his pe tit ion fo r po st- c on vic tio n re lie f. I n th is appea l, he asserts that his trial counsel was inef fec tive and that, as a

result of c ounsel' s deficie nt pe rf or ma nc e , h is g uil ty

ple a s w e re no t kn ow ing ly a ndvo lun tari ly

e nte re d. Th e jud g me nt o f the po stconviction court is affirmed

Tenn. R. App . P . 3; Judgme nt of th e Trial Court Affirm ed

G AR Y R. W ADE , P. J.
, d e li v e r e d th e o p in io n o f th e c o u r t, in w h ic h J OS EP H M. T I PTON and J AM ES C UR WO OD W I TT , J R ., J J ., joined.

Do min ic L e on ard o, Na sh vil le , T e nn e sse e , f or the app e lla nt, Jer e my

D. Shi ve rs

. Paul G. Summers, Attorney Gene ral & Reporter ; J ane L . Be ebe, As s i s t ant Attorney Gene ral; and Amy Eisenbec k, Assistant District Attorney Gene ral, for

the appe llee, the State of Tenne ssee.

OP IN ION

On J uly 1, 2004, the petitioner, who w as orig inally char g ed with espe cially

aggr avate d kidnapping
, ag g ravated assault, domestic a ssault, unlawful possession of a w eapon, ma nufac ture of marijuana , possession of less than ten p o u n d s o f marijuana with intent to sell or deliver, and possession of drug para

pherna lia, enter ed pleas of guilty to one count of kidna

pping, one count of

a g g ra va te d a ssa

ult
, a nd on e c ou nt o f u nla wf ul p os se ssi on of

a we apo n. Pur su a nt t o a

ple a a g re e me nt, the trial court imposed a Rang e I , eff ective se ntence of ten y ear s in the Depa rtment of Corre ction. I n Fe bruary

of 2005, the pe titioner filed a pe tition for post-conviction relief alleg ing that he was denied the e ffe ctive assistanc e of c ounsel and that his g uiltypleas we re n o t knowing ly and voluntarily

enter ed. The post-conviction court appointed counsel and an amende d petition wa s filed.

At the e vid e nti ary

he ari ng , th e pe tit ion e r c la ime d th a t hi s tria l c ou ns e l r e fu se d to pr ov ide him wi th d isc ov e ry

ma te ri a ls, ma te ri a ls h e e ve ntu a lly re c e ive d f

ro m a no the r atto rn e y . T he pe tit ion e r a lso

asserted that his trial counsel re fused to file a motion to di smiss and failed to honor his re quest for-2-

a mental e valuation. The petiti oner insis ted t hat he repe atedly informed trial counsel that he wa s not g uiltyof the c harg ed off

enses a nd that he wished to proce ed to trial. It was his rec ollection that trial counsel informed him prior to the plea that if he we re c onvicted at tria l of m o re t h an o n e of the

c ha rg e d o ff e ns e s, he mig ht r e c e ive c on se c uti ve se nte nc ing

. Th e pe tit ion e r al so c on te nd e d th a t hi s sentenc e viol ated the require ments of B lakely v. Washington, 542 U.S. 296 (2004), be cause it was

" ou t of ra ng e ." F ina lly , th e pe tit ion e r a sse rt e d th at he fel t he ha d b e e n " tr ic ke d" int o e nte ri ng his g uiltyp l eas a nd that he did so only beca use it was his understa nding that he would " max out on

every thing e lse and . . . be consec utively sentenc ed."

Trial counse l, c alled as a witness for the state, testified that she beg an her r epre sentation of the pe tit ion e r p ri or

to the pr e lim ina

ry he ari ng a ndthat sh e me t w ith him a t le a st f ive tim e s p ri or

to the e ntry of the g uil ty ple a s. She a lso re c a lle d h a vin g c omm un ic a te d w ith the pe tit ion e r' s mo the r v ia

e-ma il. Accor ding to tr i al co u n s el, s he informe d the petitioner of the sentenc e ra ng es for eac h offe nse. She confirmed t hat s he had advised him of the potential for consec utive sentenc ing. It was her opinion that the pe titioner would not likely be convic ted on the espe cially ag g ravated kidnapping char g e bec ause the state's ca s e wa s not "pa rticularly strong ." T rial counse l rec alled that she dis c us se d w ith the pe tit ion e r the str e ng ths a ndwe akn e sse s o f e a c h c ou nt.

Trial counse l expl ained that she did not file a motion to dismiss beca use she believed ther e was no ba sis for the claim. Although trial counsel conce ded that there wer e some inconsistenc ies betwee n the victim's te stimonyat a bond hearing and at the preliminary hearing, it wa s her opinion that the discrepa ncies did not support a motion to dismiss

. She acknow ledg ed that the pe titioner

rec eived discove ry

materia ls "late in the g ame," and y et contende d that he wa s fully awa re of the contents bec ause the y

had pre viously discussed them on sever al occa sions. Trial counsel e x plained that she did not seek a

mental eva luation for the pe titioner because the pe titioner appea red to be

me nta lly c omp e te nt.

I n a n e xten siv e writt e n o rd e r, the po st- c on vic tio n co urt den ie d r e lie f. Th e c ou rt sp e c if ic a lly

acc redited the testimony of trial counsel that althoug h the petitioner did not rec eive discovery materia l in a t i m el ymanner , he had be en informe d of all issues with reg ard to discove ry and wa s

awa re of every thing in the materia ls he ultimately rec eived. In addition, the post-conviction court

a c c re dit e d th e te sti mon y of tr ia l c ou ns e l th a t sh e ha d in fo rm e d the pet it ion e r o f the po ssi ble
sentenc es for e ach c harg e and of the potential for c onsecutive se ntencing . The c ourt conc luded that the pe tit ion e r' s te sti mon y wa s n ot cr e dib le in that re g ard a nd that tria l c ou ns e l ha d n ot m isl e d h im

a s to the po te nti a l se nte nc e . T he po st- c on vic tio n c ou rt de te rm ine d th a t a mo tio n to dis mis s w ou ld ha ve be e n frivo lou s a nd that a ps y c ho log ic a l e va luatio n of the pe tit ion e r w a s n ot w arr a nte d. As to the pe tit ion e r' s c la im that he wo uld no t ha ve ple d " ou t of ra ng e " ha d his tr ia l c ou ns e l inf or me d h im of the de cision in Blake ly v. Washington, the post-c onviction court conc lud ed that "the petitioner
enter ed into a knowing and voluntary ag ree ment by

weig hing his options and dec iding to take the plea a s opposed to risking considera ble more exposure at trial." Finally , the post-conviction court determined that the petitioner ha d failed to e stablish that he had bee n prejudice d by any perc eived de fi c ie nc y

of tr ia l c ou ns el andc omp lim e nte d tria l c ou ns e l f or ne g oti a tin g a

ple a a g re e me nt " we ll below the potential se ntence [t he petitioner] was fa cing in the event of a convic tion at trial."-3-

I n th is a pp e a l, the pe tit ion e r a sse rt s th a t hi s tria l c ou ns e l w a s in e ff e c tiv e a ndthat, a s a

re su lt of his counsel' s defic ient perf ormanc e, his g uilty pleas were not knowing ly and voluntarily

enter ed. He spe cifica lly

contends that his t rial counsel was ineffec tive by failing to supplyhim with a copy of discovery

materia ls in a timely fashion, by failing to f ile a motion to dism iss, by failing to seek a psy cholog ical eva luation, by failing to inform him of the implications of Blakely , and by misleading him as to his sentencing exposure.

Un de r o ur statut ory la w, the pe tit ion e r be ars the bu rd e n of pr ov ing the a lle g a tio ns in his po stconvicti o n p etition by

clea r and c onvincing evidenc e. Te nn. Code Ann. § 40-30- 110(f) (2003). Evidence is clea

r and convincing when there is no serious or substantial doubt about the accur acy of the c onclusions draw n from the evidenc e. Hicks v. S tate, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On a

ppeal, the f

indings of f

act made by

the tri al co u rt ar e co n clusive and w ill not be disturbed unless the evide nce c ontained in the re cord pr eponder ates ag ainst them. Br ooks v. State, 756 S.W .2 d 2 8 8 , 289 (Tenn. Crim. App. 1988) . The burde n is on the petitioner to show that the

e vi den ce prepond e rate d a g a ins t th os e fi nd ing s. Cle nn y v. Sta te , 5 76 S.W. 2d12 , 1 4 ( Te nn . Crim. App. 1978).

When a petitioner see ks post-conviction relief o n the basis of inef fec tive assistance of

co u n s el
, h e m u s tfi rs tes t ab l i s h t h at t h e s er v i ce s re n d er ed o r t h e a d v i ce gi v en we re b el o w " t h e r an ge of compe tence demande d of attorne y s in cri m i n al case s." B axter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1 9 7 5 ). Second, he must show that the deficie ncies " actua lly had an a dverse eff

ect on the de fe ns e ." Str ic kla nd v. Was hin g ton , 466 U. S. 668 , 693 (1 98 4) . The e rr or mus t be so se ri ou s a s to rende r an unr eliable result. I d. at 687. Should the petit ioner fail to establish either f actor , he is not

e nti tle d to re lie f. Ou r s up re me c ou rt de sc ri be d th e sta nd ardof re vie w a s f

oll ow s:

Be cause a petitioner must establish both prong s of the test, a fa ilure to prove either de ficienc y

or prejudice provide s a suffic ient basis to deny relief on the ineffe ctive assistanc e cla im. I ndeed, a court ne ed not addr ess the components in any particula r order or even addr ess both if the def endant make s an insufficie nt showing of on e c omp on e nt.

Goad v. State, 938 S.W .2d 363, 370 (Tenn. 1996). When a petitioner cla ims ineffec tive assistance of c ou ns e l in re la tio n to a g uil ty ple a , the pe tit ion e r mus t pr ov e that c ou ns e l pe rf or me d d e fi c ie ntl y and, " but for counse l's err ors, he would not have pleade d g uiltyand would have insisted on going to trial." H ill v. L ockhart, 474 U.S. 52, 59 (1985).

On claims of ineffe ctive assist ance of counsel, the petitioner is not entitled to the benef it of hindsight, may

not second-g uess a reasona bly based tria l strateg y , and ca nnot criticize a sound, but

unsucce ssful, tacti cal decision made during the cour se of the pr ocee dings. A dkins v. St ate, 911 S.W. 2d33 4, 34 7 ( Te nn . Crim. Ap p. 19 94 ). Suc h d e fe re nc e to the ta c tica l de c isi on s o f c ou ns e l, h o we v er , ap p l i es only

if the choic es ar e made afte r ade quate pr epar ation for the c ase. Cooper v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

.-4-

Cla ims of ine ff e c tiv e a ssi sta nc e of

c ou ns e l ar e re g ard e d a s mi xedqu e sti on s o f l a w a ndfa c t. State v. Honey cutt, 54 S.W .3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999). When revie wing the application of law to the post-conv i ct i o n court' s fac tual finding s, our revie w is de novo, and the pos t-conviction court's conclusions of l aw are give n no presumption of

corr ectne ss. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. Eng land, 19 S.W .3d 762, 766 (Tenn. 2000)

.

Th e pe tit ion e r f

ir st as se rt s tha t his tria l c ou ns e l w a s in e ff e c tiv e by fa ili ng to s up ply

him wi th a copy of the discove ry

materia ls until three day s prior to the entry of t he plea. Trial counse l testified that she and the petitioner had discusse d the contents on many occa sions prior to the delivery of the materia ls. She insis ted that there was nothing in the discovery that she had not discussed with the petitioner. The post-conviction court specific ally acc redited the testimony of trial counsel. In our vie w, the pe tit ion e r h a s f

a ile d to e sta

bli sh that th e e vid e nc e pr e po nd e rate s a g a ins t th os e fi nd ing s.
The pe titioner also contends that his trial counsel wa s ineffe ctive by failing to seek a dismi s s al of the c harg es prior to trial. At the e videntiary hearing, the petitioner testified that he asked tria l counsel to file a motion to dismiss based upon the conflicting testim ony provided by the vic tim a t th e bo ndhe ari ng a nda t the pr e lim ina ry he ari ng

. Tria l c ou ns e l te sti fi e d th a t sh e didno t f ile
a mot ion to d is mi s s b e c a u s e it w a s h e r o p in io n th a t s u c h a

mo ti o n w o u ldb e f

r iv o lo u s

. She acknow ledg ed that ther e we re some inc onsistencies in the testimony but it was he r opinion that the proper course was to expose that wea kness in the state' s case duri n g the cr oss-examination of the victim at trial. The post-convic tion court ag ree d with that assessment, c o n cl u ding that "this prior
te sti mon y wo uldha ve be e n used for im peaching the vic tim , b ut n ot a s a ba sis fo r a

mot ion to dismiss ." U nder the se circ umstances, it is our view that the pe titioner has fa iled to e stablish that tria l counsel' s perf

ormanc e wa s deficie nt in this reg ard.

Next, the petitioner asserts that his trial counse l wa s i n effective by failing to seek a psy cholog ical eva luation prior to trial. Other tha n the petition er 's b ar e as sertion that he ha d previously

suffe red f rom " mental hea lth problems," the pe titioner offe red no proof at the evidentiary hearing to support his cla im that trial c ounsel should ha ve soug ht a psy cholog ical examination. The post-conviction court acc redited trial counsel' s testimony that the petitioner had not display ed any behavior that would have indicated that an e valuation was w arr anted. In our view, the petitioner has failed to mee t his burden of proof

. The petiti oner also contends that his trial counsel was ineffe ctive bec ause he was de nied a trial date. B eca

use the re cord e stablishes that the petitioner was, in f act, g iven a tria l date, he is not entitled to relief on this issue.

The pe titioner next contends that his trial counsel mi sled him as to his sentencing exposure. At the evidentiary

hearing, the petitioner testified that his t rial counse l had advised tha t if he we nt to trial, t h e t ri al court would impose the maximum s entenc e on ea ch cha rg e and likely

order

consec utive sentenc ing. H e stated tha t trial counsel had p re dicted a se ntence of twenty -two y ear s in the event of

convi ct i o n. When the post-conviction court pointed out that a conviction for-5-

espec ially ag g ravated kidnapping alone c arried a potential se ntence of twenty -five y ear s, the pe tit ion e r e xpla ine d th a t hi s c a lc ulatio n o f a tw e nty -t wo y e ar se nt ence wa s b a se d u po n h is "unde rstanding that I could beat the

. . . kidnapping char g e at trial; there was no question about that." Trial counse l testified that she di scussed potential sentenc ing with both the petitioner a nd his mother

on mor e tha n o ne oc c a sio n. Th e po st- c on vi cti on c ou rt a c c re dit e d th a t te sti mon y a ndsp e c if

ic a lly found that the pe titioner' s claims wer e not cr edible. Unde r these c ircumstance s, it is our view that the petitioner is not entitled to relief on this g round.

Finally , the petitioner a sserts that if h e had be en informe d of the ruling in Blake ly v. Washington, he w ould not have acc epted a plea a g ree ment that was " out of rang e." The pe titioner did not testify

how the B lakely

ruling might have aff

ecte d his decision making proce ss. Furthe r, the petitioner has f

ail ed t o es tablish that the ruling in B lakely would prec lude a plea

ag ree ment for a
sentenc e outside t he applicable sentencing rang e. See S tate v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987) (appr oving of a plea ag ree ment providing for a Rang e I I sentenc e whe re de fenda nt qualified as a Rang e I offe nder)

. The post-conviction court conclude d that the petitioner enter ed into the plea ag re e me n t k n o w in g ly a n d v o lu n ta r il y b e c a u s e it p r e s e n te d th e b e s t o p ti o n a v a il ab le to h im a t the tim e . Re c e ntl y , in Sta te v. Go me z, 1 63 S.W. 3d63 2, 65 9 ( Te nn . 2 00 5) , a ma jority of ou r s up re me court he ld that "[u]nl ike the statutes at issue in B lakely and B ooker, a j u d i ci al finding of an

e nh a n c e m e n tf

a c t o r i n T e n n e s s e e d o e s n o ta f f e c tt h e r a n g e o f

p u n i s h m e n tt o w h i c h a

d e f e n d a n tis exp o s ed

. " T he majority

conclude d that the 1989 Sentencing Act did not violate constitutional protec tions. Under these circ umstances, it is our view that the petit ioner is not entitled to relief on this iss ue.

Acc ording ly , the judg ment of the post-c onviction court is aff irmed.

___________________________________ GARY R. WADE, PRES I DING JUDGE