### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
ALPHONSO BRADFORD v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County No. 95-A-491 J. Randall Wyatt, Jr., Judge

No. M1998-00078-CCA-MR3-PC - Decided May 5, 2000

The petitioner has appealed the denial of his petition for post-conviction relief. He was indicted by the Davidson County Grand Jury for first degree murder and entered a gu

ilty plea to second degree murder, receiving a sentence of sixty years as a Range III offender. In his post-conviction petition, the petitioner allege

d that his counsel was ineffective and his plea was coerced. After a hearing on the post-conviction petition, the trial court denied relief on November 20, 1996. The petitioner filed
a notice of appeal on

January 14, 1999, pursuant to an order of this court allowing a delayed appeal to be filed. We affirm the trial court’s denial of the petitioner’s post-conviction petition. Tenn. R. App. P. 3; Judgm ent of the Crimina

l Court is Affirme

d.

G LENN , J., delivered the opinion of the court, in which R ILEY , J., and W ITT , J., joined. Thomas H. Potter, Nashville, Tennessee, for the appellant, Alphonso Bradford.

Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General, Victor S. Johnson, III, District Atto rney General, and Katrin Novak Miller, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The petitioner, Alphon

so Bradford, appe

als as of right fro

m th e tri al court’s denia

l of his petition for

post-conviction relief on November 20, 1996. On September 12, 1995, the petitioner, who had been charged with first degree murder, entere

d a guilty plea to se

cond degree mur

der with
a waiver of the applicable sentencing range. Pursuant to the plea agreement, the trial court sentenced him as a Range III offender

to sixty years at fo

rty-five perce

nt, rather than the applicable Range II sentence of forty years maximum. On May 29, 1996, the petitioner filed a pro se petition for postconviction relief. In this pe tition, he alleged

that his trial attorneys violated his right to effective counsel in obtaining his plea, because they pressured him to accept the plea through his mother and sister. After couns el was appo inted to represe nt the petitioner on

appeal, an amen

ded postconviction petition was filed. In addition to the coerci on allegations in the pro se petition, the amended petition alleged ineffective assistance of counsel in that his attorneys did not adequately1 This man was identified as Tim Dickerson, an investigator for the Public Defender’s Office.

Ms. Bradford also testified that a “little red-headed lady” may have been present. She was not sure, due to all of the medication that she was taking. This lady was later identified byPublic Defender Karl Dean as Deidre Murray, a law clerk who worked on the defense team.
-2- investigate

his case and

did not explain sentencing law to the petitioner. T he coercion use

d on him and his ignorance of s

entencing law or

other alternati

ves caused him to enter a plea that was not voluntary or knowing. After a hearing on the petition, the trial court denied the p etitioner’s requ

est for relief. The petitioner ap

pealed to this cour

t on two issues:
(1) Whether

the petitioner’s guilty plea was entered voluntarily; and (2) Whether the petitioner was denied effective assistance of

counsel.

After a careful revi

e w of the re cord, we affirm the judgment of the trial court in denying the petitioner’s petition for post-conviction relief.
FACTS

The petitioner’s petition for post-c onviction relief w

as h eard on November 6, 1996. The petitioner’s mother, Tommie Bradford, was the first witness cal led on behalf of the defense. She recalled discussing her son’s case with Ms. Tucker and an African-American man 1 from the Public Defender’s Office during the time the case was being prepared for trial. Ms. Bradford had just been rel eas ed from the hospital after treatment for a severe nervous condition and was taking eleven different medications. She testified that the public defenders talked to herat her home about the shooting and asked for names of any witnesses. The attorneys also spoke with Ms. Bradford and her three daughters on another oc casio n at the Public Def ender’s Office. During this interv iew, Ms. Bradford testified that they were asked about the petitioner’s upbringing and the shooting incident. The public defenders told the family that they could not find any w itnesses, and Dickerson told her that he had been unsuc

cessful in getting t

he individuals, whose names he had been given, to answer their doors. When Ms. Bradford was told that her son would probably receive life without parol

e from a jury, it upset her so much that she was subsequently hospitalized on the verge of a nervous breakdown. She stated that th e attorneys knew she was ill. They told her that her son could get forty-five years at twenty-five percent in a plea agreement.

On t he day the petitioner entered his plea to second degree murder, Ms. Bradford a nd he r daughters went to see the petitioner because they were told he was upset. She testified that he was very emotional. She told the petitioner, in the presence of her daughters,

that he would get life withoutparole if

he went in front of a jury, but the attorneys had told her that he could “cop out” and get forty-five years at twenty-five percent, which she thought was better. Ms. Bradford stated that her daughters suppor

ted her in this. She testified that she later found out her son’s plea was for sixty-3-

or sixty-five year

s at forty-five pe

rcent, and, if

she had known that, she would never have suggested that the petitioner accept it.

On cross-examination, Ms. Bradford stated that the attorneys talked to her about the fact that her son had talked to the victim, then left the scene and came back with a large caliber rifle. The victim was fatally shot three times. The a ttorneys also told Ms. Bradford that some bullets were found at the scene. She was convinced that the victim had a gun, because he

was a noted drug dealer and carried a gun. However, she admitted that no one ever told her that the victim had a gun. She remembered

that her son had three attorneys, Mr. Dean, David Siegel, and Ms. Tucker, and the attorneys told her that the State could file a notice of the death penalty.

The petitioner testified next on behalf of his petition. He tes

tified that his

attorneys came t

o the justice center o

n a Friday or Satur

day to talk to

him about the d istrict attorney’s offer of a sentence of sixty years at forty-five percent for second degree murder. At first, the petitioner was notgoing to accept the

deal. He testified that he asked his attorneys why he was not getting fifteen to twenty-five years at thirty-five pe rcent, since that was the

sentence for se

cond degree mur

der with
one prior felony. The

petitioner admitte

d that his prior felony was also for second degree murder. He stated that his attorneys talked to him about waiving the sentencing hearing, but he did not know anything about

the law at that time. Since then, he has been studying the law books at the prison and has subsequently learned that a Range III offender was out of his category. Acc ording to the petitioner, his attorneys explained why his sentence was being enhanced to a Range III of fender, basedon the fact that this charge was the same as his previous conviction. Although the petitioner told his attorneys that h e understood this, h

e really did not und

erstand what was

meant b y enhancement, because “I wasn’t really in my state of mind.”

The petitioner testified that, on the day his plea was entered, he was “going off upstairs and down in that little room.” During a visit from

his mother and siste

rs, the petitioner

stated that his mother told him, “Baby, 60 years is be t ter than life without parole. You will be able to get out again.” He stated that his

mother was telling him to take the deal, but he wanted to take his chances at trial, “because what’s life if I got 6 0 years at 45 per

cent?” The peti

tioner testified th

at his attorneys explained the sen tencing law to him a

nd that he asked qu

estions but did not und

erstand all of the answers they gave him. He admitted, however, that he never brought his lack of understanding to his attorneys’ attention. He s tated that he never waived his attorney-client privilege to al low his attorn eys to speak to anyone else about his case. The petitioner testified that he had confidencein his attorneys’ ability to prepare his case but thought they shoul d have gotten him a better sentence.

On cross-examination, the petitioner stated t hat the victim shot at him first. At first, the petitioner denied that he shot the victim three times but then admitted it. He also admitted that his attorneys discussed with him th e possibil ity that the State could use his previous conviction for seconddegree murder t

o seek the death p

enalty in this case. In addition, the attorneys discussed the possibility

of his receiving l

ife without parole . The petitioner te stifie d that his att

orneys did not
coercehim through his family into pleading guilty. According to the petitioner, his mother did not2 Ms. Murray was the “little red-headed lady” that the petitioner’s mother referred to in her testimony.
-4- talk him into accepting the deal, and it was not a decision that he made himself. When asked who made the decision for him to plead guilty, the petitioner replied, “I don’t know.”

The prosecutor showe

d the petit

ioner h is plea agreement signed by him on September 9, 1995, three days before he entered his plea. The petitioner testified that

he signed the agreement on that day but told his attorneys that he may not take it. He admitted he knew before his attorneys talked to him about sentencing that he would never make parole on a life sentence. The petitioner admitted he was also somewhat familiar with the criminal justice system from his prior incarceration for second degree murder. When asked about the allegations in his petition tha t the attorneys did notproperly

pursue his defense, the petitioner testified that his attorneys did not do anything to bring up the victim’s violent past, involving murder, assault, and weapons char ges, or tobring up information about a nine millimeter shell found at the scene. He stated that the attorneys told him the victim’s past was irre levant to h is case but admitted that he did not know if they investigated those issues or not.

After the defense rested its case, the State called Karl Dean, Public Defender

for Davidson County, as its only witness. Dean testified that he had been involved with over fifty murder cases and was actively

involved in

the petitioner’s case. He became involved in the case, because there
was a real possibility

that the State would seek the death penalty or life without parole for the petitioner. As a result, the defense team of three attorneys, Mr. Dean, Mr. Siegel, Ms. Tucker; a law clerk, Deidre Murray; 2 and an investigator, Tim Dickerson, were involved in preparing the defense. Even before the State

filed a notice of

its intent t

o seek life witho ut parole, the team had already begun to investigate the p etitioner’s back

ground. Dean re

called that both th

e petitio ner a nd his family mentioned that the

victim, David Collins , had previously sh ot and killed someon

e, but a search for unserved wa

rrants, cri minal records, and the like revealed nothing to substantiate the family’s allegations. Although some shell casings were found at the scene of the shooting which d

id notmatch the petitioner’s rifle, an investigation by the attorneys could not produce any evidence that the victim had a gun when he was shot by the petitioner.

The public defender’s time sheets reflected that either Dean or Seigel and Tu cker had a conversation with the prosecut or on September 6, 1995, and on September 7, they met with the prosecutor. On September 8, the State made an offer of sixty years at forty-five percent, which the defense team took to the pet

itioner on the same day. Dean recalled that the attorneys went over everything with the petitioner and told him to think a

bout i t. They we nt back to see him the next day, September 9, at wh

ich time the petition

er signed the agr

eeme nt. The p lea was entered on September

12, 1995. According to Dean, Siegel was very thorough about going over sentencing issues and was somewhat of an expert on the issue of pleading out of the sentencing range. There
was a chart in the petitioner’s file that set out all of the sentenci ng rang es. Dean testifie d that, althoug h the team went over the reasons why the plea was being done this way, the petitioner’s position was always that he should receive le

ss time for his crime . Dean denied co ercing th e-5-

petitioner’s plea through the u se of his mother’s h

ealth; nor did the p

etitioner tell him th

at he felt coerced in any way. He also stated that the likelihoo d that the petitioner would get life without parole from a jury was substantial. Dean remembered meeting with the petitioner’s family at least two times.

On cross-examinat

ion, Dean recalled that a witness at the preliminary hearing na med Andre w Harris testified that he saw the victim being shot as he was attempting to crawl away from the petitioner. Dean’s office interviewed another witness, who worked in a store. According to Dean, the information from t

his witness

was damaging to

the defense. A third witness, a pregnant woman, gave a taped

statement, but Dean could not remember the substance of h

er statement. He

stated that, to the best of his knowledge, all witnesses were identified and i nterviewed, but he could not be absolutely

sure. Although Dean did n ot have a specifi

c recollection o

f going over possib

le sentences withthe family, he cou

ld not imagine that th

is was not done, because the defense team was working on the sentencing phase and mitigating evidence at the time. When askedif members of the team would have tried to convince the family that the petitioner would be better off if he pled gui lty, Dean explained that the attorneys and possibly Dickerson would have given their opinions if asked. Dean was present when sentencing ranges were explained to the petitioner, although he felt like Siegel probably did most of the talking. It was also the usual practice in his office to read the plea agreement

to the petitioner. It was Dean’s opinion that the petitioner

definitely understood the plea when he signed it. During the three days between the signing of the plea agreement and when the plea was entered, Dean’s office received no communication from the petitioner.

The witness testified t

hat the defense

team was aware

of Ms. Bradford’s health problems and her fear of testifyi

ng at trial. On the day the plea was entered, September 12, Dean recalled that Ms. Bradford and the family arrived after the proceedings had begun, that they spoke with the petitioner, and that the plea went

forward without a

ny holdups or outbur

sts from the petitioner. Dean did not recall any outbur

sts from the petitioner’s holding cell that day and testified that the petitioner was not in a highly agitated emotional state.

The State rested its ca

se. The judge then

took the petition und

er advisement an

d issued his opinion denying the petition on November 20, 1996.
STANDARD OF REVIEW

Because the petitioner fil

ed his pro se petition on May 29, 1996, it is governed by the1995 Pos t-Conviction Procedure Act. At the evidentiary hearing, the defendant bears the burde n o f proving his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f); Hicks
v. State , 98 3 S.W.2d 240, 245 (Tenn. Crim. App.), perm. app. denied (Tenn. 1998). Clear and convincing evidence means that there is “no serious or substantial doubt about the correctnes s of the conclus ions drawn from the evidence.” Hicks , 983 S.W.2d at 245 (citing Hodges v. S.C. Toof & Co. , 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). On appeal, we are bound by the trial court’s findings of fact unless the r

ecord preponde

rates against

those findings. Hicks , 983 S.W.2d at 245. Issues of ineffectiveassistance of counsel and the possibility of

prejudice to the defense are mixed questions-6-

of law and fact, me

aning that appella

te review of suc

h issues is de novo

. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999) (citing Goad v. State , 938 S.W.2d 363 (Tenn. 1996).
ANALYSIS I. Guilty Plea

The petitioner allege s that his guilty plea was obta ined as a result of

the coercion of h

is attorneys,who used his family to convince him to take the prosecutor’s offer. After a review of the record, we conclude that

the evidence doe

s not prepondera

te against the trial court’s finding that the petitioner’s plea

was voluntary and

knowing, and we, th

erefore, aff

irm.

When analyzing a guilty plea, we look to the federal standard an nounced in Boykin v. Alabama , 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and the state standard set out in Statev. Mackey , 553 S.W.2d 337 (Tenn. 1977). Statev. Pettus , 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin , the United States S upreme Court held

that there must

be an affirmativ

e showing in

the trial court that a guilty plea was voluntarily and knowingly given before it can be accepted. Boykin , 395 U.S. at 242. Similarly, our Tennessee S upreme Cou rt in Mackey required an affirmative showing of a voluntary an d knowledgeable

guilty plea, namely, that the defendant has been made aware of the significant consequences of such a plea. Pettus , 986 S.W.2d at 542.

A plea is not “vo luntary” if it results from ignorance, misunderstanding, coercion, inducements,

or threats. Blankenship v. State , 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if

the guilty plea is “knowing” by questioning the defendant to m ake sure he fully understands the plea and it consequences. Pettus , 986 S.W.2d at 542; Blankenship , 858 S.W.2d at 904.

Since the plea mu st repr esent a voluntary and intelligent choice among the alternatives available to the defendant, the trial court may look at a number of circumstantial factors in making this determination. Blankenship , 858 S.W.2d at 904. These factors include: (1) the defendan t’s relative intelligence; (2)

his familiarity with

criminal procee

dings; (3) whether he was represented by competent counse

l and had the oppor

tunity to confer wi

th counsel about a

lt ernat ives; (4) the advice of counsel and the court about the charges against him and the penalty to be imposed; and (5) the defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in a jury trial. Id. at 904-05. If a plea is found to have been knowing and voluntary, the defendant waives any challenge of the offender classification or release eligibility. Pettus , 986 S.W.2d at 543.

A review of the transcripts of the plea proceedings and the post-conv iction hearing re

veals that the petitioner’s plea was knowing and voluntary. At the time the petitioner entered his plea on September

12, 1995, the trial c

ourt to ok great care t o go through the terms of the plea agreement withthe petitioner, including the fact that he was pleading out of range, and explained to him the rights he was waiving by entering a plea. In addition, the judge questioned Dean to make sure that t h e petitioner’s plea

was his own decisio

n and that he under

stood that he was pl

eading out of his-7-

range. The trial court c

omplied with the man

dates of Rule 11 in d

etermin ing that the p lea was voluntarily and knowingly entered.

At the post-conviction hearing, the petitioner gave his reasons for deciding to accept the plea agreement: [Y]ou see, my Mom’s real sick, you know. It’s just like I

already had a burden on he r. And I didn’t wan

t to see my Momma pass because

of me. So I thought I

had done what
was best for

her, to keep my Momma still here. As long as I know I’m breathing, my Momma’s br ea thing, things woul d still be all right. So that’s why I took that time, thinking I’m g o ing to be able to get out and be with my Momma and my sister and my kids again. But it dawned on
me later on, down the road, this ain’t what it’s sup

posed to be.
Q. So you were – you’re stating, then, that you were under the influence of yo ur Moth er’s, not only mental, but her physical state that, in order to spare her, you accept ed the sentence.
A. Yes. Although the petitioner denied making the decision to plea, he could not say who made the decision for him and stated that his attorneys d

id not coerce him i

nto pleading guilt

y. The postconviction judge apparently accredited the testimony of Dean that he and the other members of the defense team had caref

ully discussed the p

lea agreement a

nd th e waiver form with the petitioner before he signed them. It a ppears that the pe

titioner voluntari

ly pled guilty

to avoid a possible life withoutparole sentence but now thinks he should have gotten a better deal. However, the entry of
a guilty plea to avoid the risk of greater punishment does not make a plea involuntary. Hicks , 983 S.W.2d at 248. After considering the options availa ble to him by going to tr

ial and its effec

ts on the health of his mother, the petitioner concluded that the only intelligent choice for him was to plead guilty to second degree

murder in order t

o avoid the trial and the possibility of life without parole. We find nothing in the evidence that shows that this plea was improperly coerced or improp erly entered, and, therefore

, hold that the trial

court did not err in denying the petitioner’s post-conviction petition on this issue.

II. Ineffective Assistance of Counsel-8-

The petitioner alleges that his counsel was ineffective, becau se t hey failed to properly investigate

witnesses for the

defense and coerced h is guilty plea t hrough his family. We have already found no evidence that the plea was coerced by the petitioner’ s attorneys, and, therefore

, will only addressthe alle gati on dealing with trial preparation. After a careful review of the rec ord, we conclude that the petitioner’s attorneys acted reasonably under the circumstances and affirm the trial court’s denial of post-conviction relief on this issue.

When ineffective assistance of counsel is alleged, a con vict ed defendant must show two things before a

reversal of his conviction is required: (1) th

at counsel’s per

formance was de

ficient; and (2) that such deficient performance prejudiced t he defendant

. Strickland v. Washington , 466 U.S. 686, 6 87, 10 4 S. C t. 205 2, 206 4, 80 L. Ed. 2d 674 (1984); Statev. Burns , 6 S.W.3d 453 (Tenn. 1999). To prove deficient performance of counsel, the defendant must show that counsel made such serious errors that he or she was not functi oning as co unsel envisioned b y the Sixth Amend

ment. Id. This inquiry focuses on whether counsel ’ s assistance was reasonable under the circumstances and is treatedvery deferentially by the court. Id. , 466 U.S. at 688-89, 104 S. Ct. at 2065. The

re is
a str ong presumption o

n appeal that cou

nsel’s conduct fa

lls within the rang

e of reasonable professional performance, and we must evaluate counsel’s performance from his or her perspective at the time of the alleged error in the context of the totality of the circumstances. Hicks v. State , 983 S.W.2d 240, 246 (Tenn. Crim. App.), perm
. app
. denied(Tenn. 1998). In Tennessee, the evidence showing that

an attorney failed to prepare a sound defense or to present witnesses must be substantial before ineffective assistance of counsel will be found. Id.

To prove prejudice, the defendant must show that counsel’s erro rs were so se

rious that he
was deprived of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, even if error occurred by counsel, a conviction is not to be set aside i f the error ha d no effect on the outcome of the trial. Id. , 466 U.S. at 691, 104 S. Ct. at 2066. When a guilty plea is involved, a

s in the present case, the defendant must show prejudice by establishing that he would not have plead guilty and would have insisted on going to trial “but for” his counsel’s err ors. Hicks , 983 S.W.2d at 246.

Our

revi ew o f th e rec ord ind ica tes tha t th e pet iti one r’s att orn eys were effective advo cates. The defense team co

nsisted of three a

ttorneys, on

e of whom was t

he elected public defender, an investigator, and a law clerk, all of whom put in many hours of preparation on this case. The team interviewed

witnesses, reviewed repor ts, checked into the petitioner’s background and fam ily h ist ory, an d unsucce ssfully pursued the petitioner’s theory of self- defense. The petitioner’s family was asked to meet with the team a

t least twice in an attempt to ge

t information and w

itnesses’ names th

at would be favorable to the petitioner. The testimony of ey ewitnesses was damaging to the petitioner, and the likelihood that he w

ould be convicted of first degree murder and given life without parole was substantial. When the prosecutor made his offer to

the petitioner, the attorneys fully discussed the plea agreement

and sentencing factors with the petitioner and gave him ample time to think about it. He had an additional three days to change his mind before the plea was actually entered. Arrangements

were made for the petitioner to see and talk with his family before his pl ea was entered.-9-

At the submission hearing, the petitioner answered in the affirmative each time the trial court questioned him as to whether he understood fully what he was doing and whether his attorneys had explained everything

to him. He told the court that he did not have any questions about the plea and did not indicate to either the tria l court or his attor

neys that he

did not understand

the plea or felt coerced in any way. We conclude that the petitioner has not shown that his attorneys’ performance
was deficient or that

he would have go

ne to trial but for their actions. Thus, we affirm the judgment of the trial court in denying the post-conviction petition on these grounds.
CONCLUSION Upon our review of the record, we conclude that the evidence doe

s not prepondera

te against the trial court ’s findings that the petitioner’s guilty plea was voluntarily and knowingly entered. Likewise, we conclude that the evidence does not preponderate against the trial court’s findings that the petitioner’s counsel was effective in preparin g for trial and in the guilty plea phase. We, therefore, affirm the trial court’s denial of the petitioner’s petition for post-conviction relief.