### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jun e 6, 200 6

CHR ISTOP HERBU SBY v. S TAT E OF TEN NES SEE

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

No. P -27704 W. F red Axley, Judge

No. W2005-01503-C CA-R 3-P C - F iled Jul y 21, 2006

T h e p e t i t i o n e r , C h r i s t o p h e r B u s b y , ap p e a l s t h e d e n i a l o f h i s p e t i t i o n f

o r p o s t

- c o n v i c t i o n r e l i e f

. In this appeal, he asserts that he was de nied the ef fec tive assistanceof counse l and that his g uiltypleas

wer e not knowing ly

and voluntarily enter ed. The judgme nt of the post-conviction court is af firmed.

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

G AR Y R. W ADE , P.J ., delivere d the opinion of the court, in which D AVI D H. W EL L ES a ndJ.C. M C L IN , J J ., joined.

P a u l K e l l i s o n G u i b a o , M e m p h i s , T e n n e s s e e , f o r t h e ap p e l l a n t , C h r i s t o p h e r B u s b y.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l & Re po rt e r; C. D a nie l Lins , A ssi sta nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Tr acy e J o n es, Assi stant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

On Octobe r 7, 2002, the pe titioner entere d pleas o f gu i l t y to three c ounts of ag g ravated robbery , two counts of possession of a handg un by

a convic ted fe lon, attempted first deg ree murder, burg lary of a motor ve hicle, and the ft over $1000. Pursuant to a plea ag ree ment with the state, the petitioner re ceive d a Rang e I
, eff ective sentenc e of twenty -nine y ear s. I n September of 2003, the petitioner filed a petition f or post-conviction relief alleg ing that he had been den i ed t h e e ffective assistance of counse l and asserting that his g uiltypleas were not knowing ly and voluntarily enter ed.

At t h e e v i d e n t i ar y

h e ar i n g , t h e p e t i t i o n e r

t e s t i f i e d t h a th i s c o u n s e l f

a i l e d t o p r op e rl y i n v es t i gat e t h e c as e a n d fa i l ed t o ad eq u at el y co m m u n i ca t e p ri o r t o tri al

. He cl ai m ed t h at ev en t h o u gh he h a d p r o v id e d tria l c o u n s e l w ith in f o r mati o n ab o u t a n a li b i w it n e s s , c o u n s e l f a il e d to loc ate the witness. He c ontended that he informed co u n sel that the witness, whom he kne w only as " Kilo," "h[ung ] out

. . . over there in Ora ng e Mound.

. . . [and] in Fr ay ser, too." The petiti oner, who testified that he desc ribed the w itness as a " [t ]all, bl ack g uy with a fe w g olds in the mouth [ and] . . . a short-2-

ha ir sty le ," a c kn ow le dg e d th a t tria l c ou ns e l ha d in fo rm e d h im that he r i nv e sti g a tor wa s u na ble to locate the wi t n es s wi t h so litt le information. The petitioner conc eded that he later informed tria l counsel that he had lea

rned tha t "Kilo" was " on the run."

The pe titioner asserte d that his c ounsel met with him on onlyone occ asion at the jail and tha t the m ee t i n g wa s b ri ef. While ac knowledg ing that he has a lso met with his t rial counse l during pretria l court appe ara nces, he claimed that the two ne ver ha d a " full discussion" about the case . The petitioner conte nded that trial c ounsel ref used to honor his r equest to f ile certain motions, i ncluding a motion to suppress a pre trial identifi ca tion from a photog raphic lineup. He testified that he had asked h i s t ri al counse l to withdraw fr om the case and had a sked the trial c ourt to appoint another

a tto rn e y . A c c or din g to the pe tit ion e r, he c omp la in ed to the B oa rdof Pr of e ssi on a l Re sp on sib ili ty about his trial counsel but the B oard " found [trial counsel] not t o be at f ault."

The pe titioner testified that he pled gui l t y o n l y beca use he did not wa nt to procee d to trial wi th h is c ou ns e l. It w a s h is b e lie f tha t she ha d not de vo te d "1 00 % of he r time " to his c a se a s a re su lt of the de mands by

other c lients. The pe titioner asserte d that "if [he] had . . . a c ompetent attorne y at that particular ti m e, a person that was g oing to wor k for [his] best interest . . . [he] could have proven [his] case ."

During cross-e x amination, the petitioner a cknowledg ed that counse l ha d announce d to the court that she w as re ady

to proce ed with trial whe n he ente red his g uiltypleas just befor e jury selec tion. He conc eded that he had pr ovided trial cou n s el wi t h only a nickna me and a

g ener al description for his a libi witness. He admitted that it would have be en diffic ult for the investig ator to have located the witness with the information available . The pe titioner admitted that his trial counsel ha d provided him with all of the discove ry materia l from the state and had informed him of the potential sentenc e if he should be convicte d. He a cknowledg ed that it was c ounsel' s opinion that the state' s proof wa s compelling and that he w as likely to be convicte d, which wa s "not what [ h e] wanted to he ar." T h e p et i t i o n er admitted that the state ha d witnesses who c ould place him at the

scene of the c rimes and in possession of a handg un. He a cknowledg ed that his trial counse l, who explained why

she would not file hi s reque sted pretrial motions, presented two plea offe rs from the state, ea ch of w hich he r ejec ted. The pe titioner, who knew that he qualifie d as a Rang e I I offe nder,

c on c e de d th a t he re c e ive d a Ra ng e I se nte nc e pu rs ua nt t o th e ple a agreemen t. He de sc ri be d h is

acc eptanc e of the plea a g ree ment as " the lesser of two evils . . . , 114 [y ear s] or 29." He admitted that he ple d " fr e e ly

a ndvo lun tari ly " a ndkn e w that it wa s in his be st i nte re st.

Trial counse l, who was appointed to r epre sent the petitioner at his arra ignme nt, testified that she re ceive d discovery materia ls at t hat t ime beca use the pe titioner had bee n classified a s "a major vio la tor ." She state d th a t sh e me t w ith the pe titio ner brie fl y on that date a ndthat he tol d h e r " his sid e " a ndpr ov ide d h e r w ith inf or ma tio n r e g ard ing a

pr os pe c tiv e wi tne ss. Ac c or din g to t ri a l c ou ns e l, she we nt throug h the di scovery packa g e with the petit ioner two months later. She te stified that when she informe d the petit ioner that her investigator had been unable to locate his witness, he could not pr ov ide a ny

mor e inf or ma tio n a

bo ut his wh e re abo uts

. She state d that on e mon th l a te r, sh e me t w ith the petitioner a nd the two discussed the r esults of her pr etrial investig ation. Trial counse l rec alled-3-

that she wa s unsucce ssful in her ef forts at re duction of the pe titioner' s bond. She reme mbere d that the petitioner wa s upset when he l ea rned that one of the victims had re fused to spea k to her inv e sti g a tor . T ri a l c ou ns e l e xpla ine d tha t she did no t file a mot ion to s up pr e ss b e c a us e " [t]he on ly thi ng that c ou ld h a ve po ssi bly be e n s up pr e sse d w e re ite ms that

. . . w e wo uldwa nt t o u se a t tria l, t o deal with the identific ation issues." She state d t h at t h e " only other motion he eve r mentioned . . .

was o n e to c o mp e l th e s tate to b r in g a ll th e ir w it n e s s e s , a ll th e ir e v id e n c e to [c ]o urt and ha ve the [j ]udge r eview it to see if he should be he ld." Trial counsel re called that the peti t i oner e x presse d dis sati sfa cti on wh e n s he e xpla ine d to him " tha t th e re wa s n ot s uc h a

mot ion . T hat th a t w a s, essentially , a trial. And tha t he was se t for trial."

Trial counse l testified that when she met at l eng th with the petitioner in Mar ch of 2001, the two discussed the c ase in de tail and also discussed the c omplaint the petitioner had filed w ith the B oa rdof Pr of e ssi on a l Re sp on sib ili ty . Sh e a ssu re d th e pe tit ion e r that sh e wa s no t a ng ry a ndwo uld continue to re prese nt him to t h e best of her abilities. She reca lled that when the pe titioner asked

abo ut p utt ing a n atto rn e y

on re ta ine r b e c a us e he " wa nte d so me on e wh o wo uld de vo te 10 0% of the ir time to repre senting him," she explained that "a reta iner did not mean that an attorne y repr esente d just one person." Trial counse l testified that she attempted to withdra w from the ca s e at the petitioner' s reque st but the trial court re fused to re lieve her . Trial counse l contended that she was fully prepa red f or trial and that more visits with t h e p et i t i oner w ould not have ser ved any further benef it. Trial counsel c onfirmed that the sta te had made two plea of fer s but the p et i t i o n er w as unwilling to ac cept e ither eve n though she had advise d him that the incriminating ev idence was str on g a ndthat he fa c e d a pote nti a l se nte nc e in e xce ss o f o ne hu nd re d y e ars if c on vic te d o n a ll counts."

The post-c onviction court denie d relief , concluding that the petit ioner had not been de nied the ef fec tive as s i s t ance of counse l and determining that his g uiltypleas we re know ingly and

vo lun tari ly

e nte re d. As to the pe tit ion e r' s c la im t hat hi s tria l c ou ns e l ha d f a ile d to a de qu a te ly investigate the c as e an d failed to suff iciently communicate w ith him, t he post-convic tion court

a c c re dit e d tria l c ou ns e l' s te sti mon y that sh e ha d th or ou g hly inv e sti g a te d th e c a se a ndwa s f ull y pr e pa re d to pr oc e e d w ith tr ia l. T he c ou rt c on c lud e d th a t " [t]he re [wa s] no thi ng in the re c or d o r i n [p] etitioner' s testimonythat would substantiate [p] etitioner' s contention that the l ack of number of meetings [c] ounsel had with [p] etitioner direc tly and adve rsely

aff ecte d the outcome of

the trial." The post-c onviction court also rule d that "[t]he l ac k o f specific information provided by the [p] etitioner made it ex tremely difficult for [ t] rial [c]ounsel to l ocate this witness, and as such, counsel c annot be view ed as r endering ineffe ctive assist ance of counsel on this basis." With reg ard
to the pe tit ion e r' s c la im tha t hi s g uil ty ple a wa s not kno wi ng ly a ndvo lun tari ly

e nte re d b e c a us e his trial counsel wa s ineffe ctive, the post conviction court determined that the petitioner' s complaint was "too g ener alized in nature to prope rly addre ss." The court a lso concluded t h at t h e petitioner w as fully apprised of the conse quence s of his pleas, that the pe titioner had admitted that the g uiltypleas

w e r e i n h i s b e s ti n t e r e s t , a n d t h a th e h a d " f r e e l y a n d v o l u n t ar i l y" p l e d g u i l t y.-4-

I n th is a pp e a l, the pe tit ion e r a sse rt s th a t he wa s d e nie d th e e ff e c tiv e ass is tance of

c ou ns e l. He spe cifica lly

asserts that his trial counsel was inef fec tive by failing to locate his alibi witness prior
to t ri a l.

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 h is p os tconviction petition by

cle ar and convincing e vidence . Tenn. Code Ann. § 40- 30-110(f ) (2003)

. Evidence is c lear and convincing when there is no serious or substantial doubt about the ac cura cy of the c onclusions drawn f rom the evidence. Hicks v. State, 983 S.W .2d 240, 245 (Tenn. Crim. App. 1 9 9 8 )

. O n ap p e a l, th e f

in d in g s o f f

a c t ma d e b y th e tria l c o u r t ar e c o n c lu s ive and will not be disturbed unless the evide nce c ontained in the rec ord pre ponderates ag ainst them. Br ooks v. State, 756 S.W .2d 288, 289 (Tenn. Crim. Ap p . 1988). The bur den is on the petitioner to show that the

e vid e nc e pr e po nd e rate d a g a inst th os e find 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 reli ef on 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 criminal case s." Ba x t er v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) . Second, he must show th at the def iciencie s "a ctually

had an a dverse eff

ect on the de fe ns e ." Str ic kla ndv. Was hin g ton , 4 66 U. S. 6 68 , 693 (1 98 4)

. Th e e rr or mus t be so se ri ou s a s to rende r an unr eliable r esult. I d. at 687. I t is not necessary , howeve r, that abse nt the defic iency , the trial would have resulted in an a cquittal. I d. at 6 9 5

. S h ould the petitioner fa il to establish either fa c tor , h e is n ot 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 pr ong s of the test, a f ailure to prove either de ficienc y

or pre jud ice pr ovides a suff

icient basis to deny

relief on the ineffe ctive assistanc e cla im. I ndeed, a court ne ed not addre ss the components in any particula r orde r or e ven addr ess bot h if the def endant make s an insufficie nt showing of on e c omp on e nt.

Goad v. St ate, 938 S.W .2d 363, 370 (Tenn. 1996) . When a petitioner c laims ineffe ctive assistanc e 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 orme d d e fi c ie ntl y and, " but for counse l's e rror s, he would not have ple aded g uiltyand would have insisted on going to trial." H ill v. L ockhart, 474 U.S. 52, 59 (1985).

On claims of inef

fec tive assistance of counsel, the petit ioner is not entitled to the benef it of hindsight, may

not second-g uess a r easona bly based tria l strateg y , and cannot criticize a sound, but

unsucce ssful, tactica l decision made during the course of the proc eedings. Adkins v. S tate, 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 tic a l de c isi on s o f c ou ns e l, howeve r, applies only

if the choic es ar e made afte r ade q u at e p re p ar at ion for the c ase. Cooper v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

.

Cla ims of ine ff

e c tiv e a ssi sta nc e of c ou ns e l are re g ard e d a s mixe d qu e sti on s of la 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.-5-

1999). When revie win g t h e ap plication of law to the post-c onviction court' s fac tual finding s, our revie w is de novo, and the post-conviction court' s conclusions of law a re g iven no pre sumption 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)

. The pe titioner t est ified that he kne w neither the g iven name nor

the addr ess of his alibi witness, "Kilo." The petitioner conce ded that his trial counse l told him that her inve stigator had be en unable t o locate the witness with so lit tle information. Trial c ounsel reque sted additional information from the pe titioner b u t h e was una ble to provide a ny . The post-c onviction court

c on c lud e d th a t th e " la c k of sp e c if ic inf orma tio n" pr e ve nte d tria l c ou ns e l f ro m lo c a tin g the wi tne ss

a ndthat, a s a

re su lt, tr ia l c ou ns e l' s p e rf orma nc e wa s n ot d e fi c ie nt.

Th e pe tit ion e r c a nn ot p re va il f or tw o r e a so ns

. F ir st, he faile d to pr e se nt " Ki lo" a s a wi tne ss at the evide ntiary

hearing. Gener ally
, it is incumbent upon the petitioner to produc e any witnesses

a t th e e vid e nti ary

he ari ng wh o mi g ht h a ve be e n able to pr ov ide fa vo ra ble te sti mon y fo r the de fe ns e

a t tria l. B la c k v . St a te , 79 4 S.W. 2d 75 2, 75 7 (T e nn

. Cr im. Ap p. 19 90 ). Ty pic a lly , th a t is the on ly method of establishing prejudice . I f " Kilo" c ould have pr ovided the petitioner wi th an alibi, he sh ou ld h a ve be e n p ro du c e d a s a wi tne ss a t the e vid e nti ary he ari ng . O the rw ise , th is c ou rt c ou ld o nly sp e c ulate a s to wh a t pr e

jud ic e ma y ha ve re su lte d by tr ia l c ou ns e l' s failu re to loc a te th e wi tn e ss. Secondly , the post-conviction court specifica lly acc redited the testimon y o f t ri al counse l that she attempted to locate the witness but was una ble to do so because of the la ck of specific information. Under these c ircumstance s, the petitioner is not entitled to relief on this issue.

II The petiti oner also contends that his guilty pleas we re not knowing ly and voluntarily

enter ed beca use he w as d en i ed t h e ef fec tive assistance of counse l. I n Boy kin v. Alabama, 395 U .S. 238 (1 96 9) , th e Un ite d St a te s Su pr e me Cou rt ru led that de fe nd a nts sh ou ld b e a dv ise d o f c e rt a in constitutional rights bef

ore entering pleas of g uilt. I ncluded a mong those are admonitions reg arding the rig ht ag ainst self-incrimination, the right to conf ront witnesses, and the rig ht to trial by jury . I d. at 243. " [T] he cor e re quirement of B oykin is ' that no g uilty plea be acc epted without a n aff irmative showing that it was intellige nt and voluntary .' " Bla nkenship v. State, 858 S.W .2d 897, 904 (Tenn. 19 93 ) ( qu oti ng F on ta ine v. Un ite d St a te s, 52 6 F .2 d 5 14 , 5 16 (6 th C ir . 1 97 5) ). T he ple a mus t repr esent a

"voluntary

and i n t el l i g ent choice among the alternative cour ses of a ction open to the defe ndant." North Carolina v. A lford, 400 U.S. 2 5
, 31 (1970). I f the proof establishes that the peti t i o n er wa s aw are of his constitutional rights, he is e ntitled to no relief. Johnson v. S tate, 834 S.W .2d 922, 926 (Tenn. 199 2 ). A plea w hich is the product of "ig noranc e, incompre hension,

coer cion, terr or, induce ments, [or] subtle or blatant threa ts" is not voluntary . Boy kin, 395 U.S. at 242-43.

Her e, the p et i t i o ner te stified that he pled g uiltyonly beca use he w as displease d with trial counsel' s repr esenta tion and he did not want to g o to trial with her as his att orney . He a dmitted, ho we ve r, that he e nte re d th e g uil ty ple a s " fr e e ly

a ndvo lun tari ly " a nd that it wa s in his be st i nte re st to plead guilty

. He concede d that he chose to acc ept t he plea ag ree ment beca

use it repr esente d the-6-

"le sser of two evils." Trial counsel, who ha d ear lier made a futile e ffort to withdraw as r equeste d by the pe tit ion e r, te sti fi e d th a t sh e wa s f ull y pr e pa re d to g o to tr ia l w he n th e pe tit io ner deci ded to
enter the plea a g ree ment. The post-conviction court specific ally acc redited he r testimony . Under these circ umstances, it is our view that the pe titioner has fa iled to establish by clea r and c onvincing

e v i d e n c e t h a th i s p l e a s w e r e i n v o l u n t ar y.

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

___________________________________ GARY R. WADE, PRES I DING JUDGE