# FILED

September 16, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1998 SESSION

ROY EARL COLLINS, * C.C.A. # 03C01-9709-CR- 00389 Appellant, * KNOX COUN TY VS. * Hon. Mary Beth Leib owitz, Judge STATE OF TENNESSEE, * (Post-Conviction--First Degree Murder) Appellee. *

For Appellant : For Appellee : Kimberly A. Parton John Knox Walkup Attorney Attorney General and Repor ter P.O. Box 116 Knoxville, TN 37901-0116 Ellen H. Pollack Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243 Randall E. Nichols District Attorney General and Robert L. Jolley, Jr

. Assistant District A

ttorney General City-County Building Knoxville, TN 37902

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The petitioner, Roy Earl Collins, appeals the tri al court's denial of postconviction relief. The issues presented for review are as follows:

(1) whethe r the peti tioner was denied t he effe ctive assistance of counsel; and (2) whether the trial court properly denied the petitioner's motion for expert servi ces.
We find no error and affirm the judgment of the trial c ourt.
On February 20, 1984, the petitioner entered a guilty plea to first degree murder. The trial c ourt imposed a life sentence. Thereafter, the petitioner filed a motion to set aside the ple a on several grounds. He alleged that he had been unduly pressured by his family, that he was fearful of unfair treatment by the trial judge, and that he w as under the influence of Valium at the time of his guilty plea. The trial court denied the motion to withdraw the plea. On direct appeal, th is court affirmed, specifically rejecting each of the claims and holding that the plea w as knowingly and v

oluntarily entered. State v. Earl Roy C ollins , No. 1054 (Te nn. Crim. App., at Knoxville, Sep. 24, 1987). Application for per mission to appeal was deni ed by our supreme court on No vember 30, 1987.
In 1989, the p etitioner file d a petition fo r post-conviction relief alleging, among other things, that he ha d not received the effective assistance of counsel before entering a plea. The petiti oner was appointed counsel who filed an amendment alleging that the peti tioner was incompetent at the time of the plea and that his t rial coun sel had be en ineff ective by f ailing "to fully explo re the kno wn existence of petitioner's severe brain injury and its effects...."3 The trial court denied reli ef, holding that the issues pr esented had been either previously

determined or waived.The trial court also held that it had no authority to order medic al testing so as to deter mine whether the injury had any effect upon the voluntariness of the original plea. On d irect appeal, this court reversed and remanded, holdi ng that "the petitioner ha[d] no t yet had the opportunity to present his claim that trial counsel was ineffective for havi ng failed to properly investi gate, consider, or purs ue any possible defenses rela ted to the alleged brain injury ." Roy Earl Collins v. State , No. 03C01-9303-CR-00096, slip op. at 10 (Tenn. Crim. App., at Knox ville, Apr. 8, 1994). This court concluded that whether trial counsel

was ineffective before the entr y of the plea was a different issue than those grounds r eviewed in the direc

t appeal of the conviction. Id.
After remand, the petitioner filed a motion for the appointment of an expert to do a physiol ogical, psycholog ical, and neurological examination. During the course of an evidentiary hearing, the petitioner c laimed that he had suffered a skull fracture, a jaw fracture, and broken ribs and l egs in a mining accident in 1950 while he was incar

cerated at Brushy Mountai n State Penitentiary. No ne of the medical records of the incident are now available. The petitioner stated that after his accident, he had occasional blackouts, some mem ory loss, and headaches. He testified that he was in a c oma for an appreciable period of time and was hospitalized for over a year after the accident. The petitioner specifica lly recalled his plea of guilt and explained that he did so because he believ ed that the trial judge at that time was prejudiced, that he would not get a fair trial, and that it was in his best interest to plead guilty. W hile the p etitione r denied t hat he ha d been eva luated b y a psychiatrist, it w

as established on cross-ex amination that evaluations had been performed by both the Helen Ross-McNabb Center in Knoxville and the Middle Tennessee Mental Health Instit ute. Medical records from an evaluation at the4 Middle Tennessee Mental Health Institute as to the effect of those inju ries on the voluntariness of his cr

iminal acts were made an ex hibit to the evidentiary

hearing. No abnormalities were found in these tests other than alc oholism and an anti-social personality. The petition er was deemed to be competent to s tand trial, found not judicially committabl e, and determined to be able to assi st his counsel in the preparation of his defense. The petitione r's intelligence quo tient was in the avera ge range. No brain damage w as found.

At the conclusion of the evidentiary hearing, the t rial court made detailed findings of fact and conclus ions of law. It determined that the petitioner had suffered no significant brain in juries or damage in the 1950 incident and that the guilty plea was knowingly and v oluntarily entered. The tr ial court refused to grant expert services. In this appeal, the petitioner complains that the evidence preponderates against the findi ngs of the trial court.

I In order f or the pet itioner t o be grant ed relief on ground s of inef fective counsel, he must establish that the advice given or

the services rendered were not within the range of competenc e demanded of attorneys in crimi nal cases and that, but for his counsel's deficient performance, the result of his tr ial would have been different. Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975); Strickland v. Washington , 466 U.S. 668 (1984). This tw o-part standard, as it appl ies to guilty pleas , is met when a pet itioner e stablish es that, but for h is counse l's errors, he would no t have pled guilty and wo uld have insisted on tri al. Hill v. Lockhart , 474 U.S. 52 (1985). Before the 1995 amendments to the Post-Conv iction Procedure Act, the bu rden was on the petitioner to show that the evidence preponderated a gainst the findings of the trial judge. Clenny v. State , 576 S.W.2d 12 (Tenn. Crim. App. 1978). Otherw ise,5 the findings of fact by the tri al court were conclus ive. Graves v. State , 512 S.W.2d 603 (Tenn. Crim. App. 1973).

Apparently, the petitioner had been drinking heavi ly when he killed the victim, Evelyn Faye Hunley. Initi ally, the state sought the death penalty. Trial counsel, aware of the seri ous head injury that petitioner suffered in the 1950 accident, sought and receiv ed mental evaluations of the petitioner. In exchange for a plea of guilt, the state ag reed to a sentence of life imprisonment . The petitioner has been unable to establish how his trial counsel mig ht have been deficient. In fact, the record demonstrates that trial counsel sought and received a pretrial mental evaluation of the petitioner s imilar to that now req uested in the post-convic tion setting. Evidence that

the petitioner was hospi talized for over a y

ear does not, standing alone, alter our view of the quality of trial counsel's performance. It is apparent from the testimony at the e videntiary hearing

that the petitioner entered a guilty plea because it was in his best inte rests to do so. See North Caro lina v. Alford , 400 U.S. 25 (1970). In our assessment, the evidence does not preponderate against the trial court's conclusion that the plea was knowingly and voluntarily entered. Moreover, the pe titioner has failed to establi sh any deficiency in the performance of his counsel.

II

Next, the petitioner ar

gues that he was entitl ed to expert servic es on due process grounds. While recogni zing that post-conv iction procedures are not constitutionally required, the petitioner cites Pennsylvania v. F inley , 481 U.S. 551 (1987), for the proposition that once the state chooses to prov ide a post-conviction remedy, it must do so in a manne r that meets constitutional g uidelines. The petitioner asserts that hi s entitlement to an evidenti ary hearing implies that the6 hearing must be conducted in a meaningful manner and that because his asserted ground for relief would necessarily depend upon the use of an expert witness, his lack of access to an expert becomes an effective bar to reli ef. In the alternative, the petitioner argues that this qualifies as a capital case because the state h ad originally sought the death penalty and i n consequence, our statutory scheme entitles him to expert services. See Tenn. Sup. Ct. Rule 13.

The General Assembly has not authorized funds for experts i n the trial of non-capital cases. Tenn. Code Ann. § 40-14 -207(b). As a result, the trial courts do not have the authority to allow a defense expert in a non-capital case absent a threshold showing of depr ivation of constitutional due process. In State v. Edwards , 868 S.W.2d 682 (Tenn. Crim. App. 1993), a case cit ed by the petitioner but distinguishable because i t was not a post-conv

iction case, it was held that an indigent defendant, in order to receive expert ass istance at state expense, had the burden of establishing a parti cularized need that the ex pert would be of material assistance in the establis hment of his defense theory. Edwards , 868 S.W.2d at 697. Bec ause the standard was deeme d "flexib le and de termine d on a case -bycase basis[,]" whether the accused had met the test was discretionary w

ith the trial court; however, thi s court quoted with app roval certain lang uage in State v. Parks , 417 S.E.2d 46 7 (N.C. 1992) (quot ing State v. Holden , 362 S.E.2d 513, 522 (N.C. 1987)): [M]ere hope or suspicion that favorable evidence is

available is not enough to require that such help be provided. Edwards , 868 S.W.2d at 697.

In Owens v. State , 908 S.W.2d 923 (Te nn. 1995), our supreme court held that, under similar ci rcumstances, an indigent pos t-conviction petition er in a capital case is entitled to expert services at state expense:7 The tria l court

should g rant the

motion [ for assi stance]

if, at [an ex parte] hearing , the petitioner demonstrates that investigative or expert services are necessary to ensure the protection of the petitioner' s constitutional rights.... Specifically, a petitioner must demonstrate by specific factual proof that the services of an expert or an investigator are necessary to establish a ground for post-conviction reli ef, and that the petitioner is unabl e to establish that ground for post -conviction relief by

other available evidence. An unsupported allegation to that effect will not suffice. Id. at 928-29.
Less than one month after the opinion in Owens , the supreme court filed its ruling in Davis v. State , 912 S.W.2d 689 (Tenn. 1995). In Davis , the court ruled that "the state is not r equired to provide ex

pert services to indi gent non-capital post-conviction petiti oners." 912 S.W.2d at 696-97. The court reasoned that "in the absence of a Constitutional ri ght to counsel [in post-c onviction cases], there

can be no Constitutional right

to support services a

t state expense." Id. at 696. Because Owens was decided on statutory grounds, our supreme court specifically refrained from deciding whether capi tal post-conviction petitioners have a rig ht under either the state or federal constituti on to publicly-funded exper t services. Owens , 908 S.W.2d at 926. Whether the observations of this court in Edwardsmight be persuasive on that point r emains to be seen.

The case at issue would not, in our view, merit the appointment of an expert under any argument presented by the petitioner. Initially, the record demonstrates that the petitioner actually received the services of expert s prior to the entry of the guilty p lea. The experts addressed the same concerns expressed by the petitioner in his petition for post-conviction relief. Trial counsel acted within the professional guidelines by seeking expert assistance during the course of his investigation. Of equ al importance is that the rul ing in Davis precludes the8 appointment of state-funded experts for an indigent in a post-conv iction setting. Moreover, the record simply does not support the petitioner's contention that h is right to due process, if one exists in this context, has been violated in these circumstances; a "mere hope ... [for] favorable evidence .. is not enough...." Holden , 362 S.E.2d at 522.

Finally, this no longer qualifies as a capital case. In Beeler v. State , 332 S.W.2d 20

3, 207 (T

enn. 1959

), our s upreme c

ourt ado pted a de

finitio n of a capital cas

e from Black's Law Dictionary , 3d ed., as follows: A capital case or offense is one i n or for which the death penalty may, but need not neces sarily be inflicted. The definition remains unchanged after all of these years. Because the defendant was no longer at ri sk at the time he filed his post- conviction claim, his

petition cannot be classified as a capital c ase. The ruling in Owenswould not a pply.
Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ Joseph M. Tipto n, Judge

_____________________________ David H. Welles, Judge