### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ma y 3, 200 5

KEU NTR AY HEN SON v. S TAT E OF TEN NES SEE

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

No. P 27402 W. F red Axley, Judge

No. W2004-02164-C CA-R 3-P C - F iled Jul y 27, 2005

The pe titioner challeng es the denial of his post-c onviction pe tition, i n which he a lleg ed inef fec tive

a ssi sta nc e of

c ou ns e l. U po n re vie w, we c on c lud e that the e vid e nc e on app e a l do e s n ot p re po nd e rate ag ainst the post-conviction court’s finding s that: (1) counse l ad eq u at ely informed the pe titioner

re g ard ing the fi lin g of

a mot ion to s up pr e ss; a nd(2 ) no he ari ng wa s n e c e ssa ry on the mot ion be c a us e the petitioner opted to plea d g uilty . There fore , we a ffirm the de nial of post-convic tion relief.

Tenn. R. App . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OHN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J ., and D AVI D H. W EL L ES , J ., joined.

Paul Guibao, Memphis, Tenne ssee, f or the a ppellant, Keuntr ay

Henson.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Da vidE. Coe ne n, As sis ta nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and D ean D eCandia, Assistant Dist rict Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

Fa cts and Proce dural History
The pe titioner, Keuntr ay Henson, wa s indicted by the Shelby

CountyGra nd J ury

on two counts of ag g ravated robbe ry (a Cla s s B f

e lo ny ) and thre e counts of e specia lly ag g ravated kidnapping (a Class A f

elony ). Pursuant to a neg otiated ag ree ment, he pled g uiltyto one count of a g g ravated robbery and three counts of false imprisonment (a Class A misdemea nor), a nd rec eived c oncurr ent

s e n t e n c e s o f

e i g h tye ar s a n d e l e v e n m o n t h s a n d t w e n t y- n i n e d a ys o n t h e c h ar g e s , r e s p e c t i v e l y. There afte r, the pe titioner filed a pro s e petition for post-conviction relief; the post-c onviction court appointed counse l; and an ame nded petiti on was filed. The post-c onviction court hea rd the matter on April 21, 2004, an d s u b s eq u en tly denied r elief by

written orde r issued Jul y 23, 2004. The petitioner filed a

notice of a p p ea l t o t h is court on Aug ust 30, 2004. On appea l, the petitioner-2-

c on te nd s th a t c ou ns e l was in effecti ve in f a ili ng to: (1 ) i nf

orm hi m th a t sh e ha d f

ile d a mot ion to suppress his state ment to police ; a nd (2) hold a hearing on the motion to suppress. H e f u rther contend s th a t th e s e o mi s s io n s in f lu e n c e d h is d e c is io n to p le a d g u il ty

. U p o n th o r o u g h r e v ie w, we aff irm the post-conviction court’s denial of r elief.

At the post-conviction hearing, the petitioner testified that, on the morning of his arr est, he

wa s ta ke n f ro m sch oo l to the po lic e statio n at ap pr oximate ly 9:0 0 a. m.; that off ic e rs c a me in t o ta lk to h im a rou nd 8:0 0 p .m. ; a ndthat he su bmi tte d a state me nt t o p oli c e a t app ro xima te ly 10 :00 p. m. Th e pe tit io ner recal led tha t he wa s n ot a llo we d to c a ll h is f a mil y me mbe rs un til he c omp le te d h is statement, despite r epeated re quests to do so. He further noted tha t he was not repre sented by counsel a t that time. He s t at ed t hat counse l was appointed to re prese nt him in j uvenile court and continued to r epre sent him a fter his tra nsfer to c riminal court, wher e he ultimately pled g uilty to the

c on vic tio n o ff

e ns e s.
Reg arding his contact with counse l, the petitioner re called that he, his mother , and counse l
met ten or e leven times prio r t o h i s plea. He further stated that he w as neve r able to review the statement he ma de to police or the statements of othe rs involved in the incident. The petitioner
te sti fi e d th a t he ple d g uil ty be c a us e “ [co un se l] wa sn ’t g ivi ng the ty

pe of stu ff that I ne e de d to tr y

to

e ve n g o to tr ia l on it. ” He state d th a t, a lth ou g h h e tol d c ou ns e l th a t he wa s in te rr og a te d w ith ou t hi s pare nts or an attorne y

prese nt, she neve r informe d him of how that might impac t his case. The pe tit ion e r t e sti fi e d th a t he wa s n ot m a de a ware t hat c ou ns e l ha d f ile d a mot ion to s up pr e ss h is statement to police prior to his plea. Finally
, he st ated that his belief that counsel ha d not attempted to suppress the stateme nt impacted his dec ision to acce pt the plea of fer

.

O n c r o s s

- e x a m i n a t i o n , t h e p e t i t i o n e r a c k n o w l e d g e d t h a th e s i g n e d t h e w a i v e r o f tr i a l b y j u r y. He f urther a dmitted that he twice answe red aff irmatively

when a sked if he f

elt that counsel ha d done “a g ood job” with his case. O n redire ct examination, the petitioner testified that he was se ventee n
a nd in the nin th g ra de a t the tim e of his arr e st. Th e pe tit ion e r t e sti fi e d th a t he on ly re a lly be g a n to understand his rig hts when he w ent to the penitentiary and beg an to learn from other inmates who

rese arc hed in t h e law libra ry . When asked by

the post-conviction court if there w as anything that he did not understand a

bout his guilty

plea, the pe titioner responde d, “No, sir.”

The pe titioner’s mother, Chanta Roy ston, testified t hat she wa s informed by the petitioner’s princ ip a l th a t th e p e ti ti o n e r h a d b e e n arr e s te d a t s c h o o l. Ro y s to n s tate d th a t s h e s p o k e w ith the petitioner for

the first time at appr ox imately 7:30 p.m. on the day

of his arr est, and that she w as not prese nt w hen the petitioner was interrog ated or when he g ave his state ment to police. She testified that she wa s prese nt with the petitioner in his meetings w ith counsel and that c ounsel informed the m that the petitioner wa s fac ing be tween e ight a nd fiftee n y ear s without a trial or betwee n fiftee n and twenty -five y ear s with a trial.

Roy sto n r e c a lle d th a t sh e a sk e d c ou ns e l if the pe tit ion e r’ s state me nt c ou ld b e us e d a g a ins t him, to which counsel re plied “that she w ould look into i t.” Roy ston further note d that she only saw the motion to suppress “af ter [the petitioner had] signe d for the time.” On cr oss-examination,-3-

Roy ston acknowle dg ed that she w as pre sent at the time of the gu i l t y p l ea and that she heard the jud g e ’s qu e sti on s to the pe tit ion e r a ndthe pe tit ion e r’ s r e sp on se s to tho se qu e sti on s.

As the final witness at the hea ring , counsel testified that the petitioner wa s orig inally indicted in juvenile court but wa s transfe rre d to criminal court be cause of his a g e and the violent nature of the cha rg ed off enses. Counsel explained that she did not file a motion to suppress in juvenile court beca use she kne w t he case was being transfe rre d and she “did not want to give [her] strateg y awa y to the Stat e at th at ti me in te rm s o f w hat [he r] a rg ume nts wo uldbe prior to h a vin g a

he ari ng in criminal court.”

Counsel rec alled that she informed the petition er that he wa s fac ing be tween f ifteen a nd twenty -five y ear s on eac h char g e of ag g ravated kidnapping and betwee n eig ht and twelve y ear s for aggr av at ed ro b b er y

. S h e f u rt h erex p l ai n ed t o th e pe t i t i o n er t h at h e wo u l d b e c l as s i fi ed as a R an ge I , standard offende r and that the S tate could reque st consecutive se ntencing . Counsel stated that she told the petitioner and his mother that she w ould file a motion to suppress the petitioner’ s statement to police and that she filed the motion shortly there afte r. Counsel testified that af ter re ceiving a plea offe r from the S tate, she submitt ed a discovery packe t and the State’s offer for the petitioner’s r eview and discussed those matters with him. On Dec ember 10, 2002, the petitioner informed c ounsel that he wa nted to plead g uiltyand, on January 22, 2003, he did so.

On c ro ss- e xami na tio n, c ou ns e l a c kn ow le dg e d that sh e ne ve r ha d a he ari ng on the mot ion to suppress beca u s e, i n h er ex perie nce, the g ener al policy of the State wa s to withdraw the of fer if a
mot ion is h e ard . Co un se l no te d th a t, h a d th e pe tit ion e r e le c te d to g o to tr ia l, the mot ion to s up pr e ss
wo u l d h av e b ee n s et fo r ah ea ri n g an d wo u l d h av e b ee n h ea rd p ri o r t o tri al

. Fo l l o wi n g t h e h ea ri n g, the post-conviction court denied re lief and dismissed the petition.

An a ly sis

Th e Sta te ini tia lly

c onten ds that th e pe tit ion e r’ s a pp e a l sh ou ld b e dis mis se d f or failu re to timely file his notice of a

ppeal. How ever , an untimely notice of appea l, unlike an untimely motion for ne w trial, is not jurisdictional and can be waived by this court “in the intere st of justice.” Te nn. R. A pp . P. 4( a ). Th e re fo re , c on c lud ing that it is in the int e re st o f j us tic e , w e wi ll w a ive the un tim e ly

no tic e of app e a l a ndpr oc e e d to the me ri ts o f the pe tit ion e r’ s a rg ume nt.
The pe titioner’s contentions on appea l a re g rounded in his rig ht to e ffe ctive assistanc e of counsel. When a claim of ineff ective a ssistance of c ounsel is made under the Six th Amendment, the petitioner bea

rs the bur d en of proving that counsel’s pe rformance was de ficient a nd that the defic iency

was pre judicial in terms of rendering a re asonable probability that the re sult of the trial

wa s u nr e lia

ble or the pr oc e e din g s w e re fu nd a me nta lly un fair

. Str ic kland v. Was hin g ton , 4 66 U. S. 66 8, 68 7, 10 4 S. Ct. 20 52 , 2 06 4, 80 L . E d. 2d67 4 ( 19 84 ). Th is sta nd ard ha s a lso be e n a pp lie d to the rig ht to counsel under A rticle I , Section 9 of the Te nnessee Constit ution. State v. Melson, 772 S.W. 2d41 7, 41 9 n .2 (T e nn . 1 98 9) . Wh e n a pe tit ion e r c la ims ine ff

e c tiv e a ssi sta nc e of co unse l in relation to a guilty

plea, the pe titioner must prove that counsel pe rformed def iciently , an d , but for-4-

counsel’s e rror s, the p et i t i o n er w ould not have pled g uiltybut would have, instea d, insisted upon g oing to tria l. Hill v. L ockhart, 474 U.S. 52, 59, 106 S. C t. 366, 370, 88 L . Ed. 2d 203 (1985).

I n Ba x ter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme c ourt requir ed that the

s e r v i c e s b e r e n d e r e d w i t h i n t h e r a n g e o f c o m p e t e n c e d e m a n d e d o f a t t o r n e y s i n c r i m i n a l c a s e s

. In revie wing counsel’s conduct, a “fa ir assessment of attorne y perf ormanc e re quires that eve ry eff ort be made to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of counsel’s challeng ed conduc t, and to evaluate the conduct from counsel’s perspe ctive at the time.” Strickland, 466 U.S. at 689, 104 S. Ct . at 2065; see Nichols v. State, 90 S.W .3d 576, 587 (Tenn. 2002)

.
The petitioner bear s the burden of proving by clea r and convincing evidenc e th e fac t ual alleg ations that would entitle the petitioner to r elief. Tenn. Code Ann. § 40-30-110( f). This court is b ou ndby

the po st- c on vic tio n c ou rt ’s fi nd ing s o f f a c t un le ss the e vid e nc e pr e po nd e rate s a g a ins t those finding s. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

The pe titioner first contends that counsel wa s ineffe ctive in fa iling to inform him that she had filed a motion to suppress his state ment. Howeve r, at the post-conviction hearing, c ounsel testified that s h e t o l d the petitioner a nd his mother that she would file a motion to s uppress a nd that she subsequently

filed the mo tion. Ultim ately , the post-conviction court acc redited the testimonyof counsel and denied post-c onviction relief. U pon revie w, we c onclude that the e vidence prese nted

on app e a l do e s n ot p re po nd e rate a g a ins t th e po st- c on vic tio n c ou rt ’s fi nd ing that c ou ns e l e ff e c tiv e ly communicated w ith the petitioner reg arding the filing of the motion to suppress.

The pe titioner also alleg es that counse l was ineff ective in f

ailing to hold a h ea ri n g o n the
mot ion to s up pr e ss i n th e tr ia l c ou rt . H ow e ve r, c ou ns e l e xpla ine d th a t sh e did no t g o f or wa rdwi th the m otion hearing because her experience led her to believe that once a motion is hear d, the State’s plea of fer is withdrawn. Af

ter g iving the pe titioner ample t ime to review both the discovery packe t and the plea

offe r, the pe titioner opted to acc ept t he plea and not proc eed to tria l; therefor e, counse l d i d n o t s e t a m o t i o n h e ar i n g

. U p o n t h e p r e s e n t a t i o n o f p r o o f
, t h e p o s t

- c o n v i c t i o n c o u rta g a in

a c c e pte d c ou ns e l’ s te sti mon y a ndfo un d th a t: a Motion to Sup p re s s wa s filed at the tria l level, but its outcome beca me a moot point, as Petiti oner decide d to e nter a g uiltyplea with the State. As suc h, Petitioner’s claim is without merit, and cannot be a basis for relief

. We ag ree and likewise c onclude that the pe titioner has fa iled to show by cl ea r and c onvincing evidenc e that counse l’s actions fe ll below “that dema nded of a n attorney in a criminal case.” See Ba x ter , 5 2 3 S. W. 2 d a t 9 3 6 ( T e n n

. 1 9 7 5 )

. A s s u c h
, h is c laim f o r in e f f e c ti v e a s s is tan c e o f

counsel cannot stand.-5- Conclusion

The de nial of post-convic tion relief is af firmed.

___________________________________ J OHN EV ERETT WI LL I AMS, J UDGE