### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs O ctober 28, 2003

DAVID JONES v. S TATE OF TENNES SEE

Appeal from the Criminal Court for Claiborne County No. 11092 James E. Beckner, Judge by Designation

No. E2003-00042-CCA-R3-PC December 1, 2003

The petit ioner, D avid Jones, appeals the Claiborne County Criminal Court’s denia l of his petition for post-con viction re lief fro m his convi ctions fo r attempt ed second degr

ee murde r and two counts of aggravated assa

ult and resulting effective sentence of fifteen ye ars. He claims that he re cei ved the ineffective assistance of counsel beca use his trial attorney fa

iled to request a mental evaluation for him and tha

t his g uilty plea s wer

e not know ingl

y, intellige

ntly and v oluntarily e

nter ed. We affirm the trial court’s denial of the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and A LAN E. G LENN , J., joined.

Martha J. Y oakum, Di strict Publ ic Defender, and Daniel

H. Korth, Assistant Public Defender, for the appe llant, Da vid Jones.

Paul G. Summers, Attorney Gene ral and Reporter; Renee W. T urner, A ssistant A

ttorney Genera l; William Paul Phillips, District Attorney General ; and J ared R. Effler, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION

This case relates to crimes the petitioner committed against his father-in-law, mother-in-law, and wife on June 29, 1997. The record reflects that the petitioner pled guilty to attempted sec ond degree murder, a Class B felony , and two counts of aggrava ted assault, a Class C felony, and that the
tr ia l court sentenced him as a Range I , standard offender to ten y ears for the attempted murder conviction and five ye ars for each aggra

vated assault conviction. The five-y ear sen tences w ere to be served concurrently

to each other but

consecu tively to the ten-yea

r sentence. On November 13, 1998, the petitioner filed a petition for post-conviction relief.-2-

At the evidentiary he aring, the petitioner testified that his trial attorne

y ha d repre sented hi m in other matters and was retained to represent him in this case. He said that he had been in four mental institutions and that he last was in a mental hospital in 1996 after he tried to commit suicide. He said that he did not remember talking to his attorney about his mental condition and that he was taking prescribed antipsy chotic or antidepressant medication when he entered his guilty pleas. He said that he to ld his attorney he was takin g the me dication and that h

is attorne y to ld him not to t

ell the trial court about it. He acknowledged that the trial court asked him at the hearing if he wa s taking any medica

tion and that

he told t he trial court no. He also acknowledge d signing a plea agreement form and telling the tr ial court at the guilty

plea hearing that he understood the form.

On cross-examinat ion , the petitioner testified that he told his attorney he wanted a mental evaluation but thathe never received one. He said that he had been receiving psy chiatric treatment while in prison, that he sa

w a psy chiatris tevery

few month s, and tha

t he curr ently was takin g Paxil. He said he d id not know i f he had received a psy chiatric evaluation while in prison. He acknowledged

that he hadbeen ch arged withone count of attempted second degree murder, three
counts of especially

aggravated kidnapping , and one count of unlawful possession of a weapon and that he and hisattorney discussed possible punishments for those c rimes. He said that when the trial
court asked him if he had any

que st ions at the guilty plea he aring, he said no because his attorney told him to lie. He said his attorney told him that he wo ul d not serv e more th an three ye ars in confinement

if he pled guilty. He said he had prior convictions for ag grava ted assa ult, vanda lism, and driving under the influence.

The petitioner’s trial attorney testified that he had represent ed the petitioner in cases involving a

land transaction and a divorce before r epresenting the petitioner in this case. He said he knew about

the petitioner’s mental problems, that the petitioner had tried to commit suicide, and that the petitione

r had spe nt time in a

mental ho spital. He

said that h

e also knew about the petitioner’s other hospi taliz a tions and that the petitioner was taking medication at the time of the guilty plea hearin g. He said that in his regular course of pra ctice, he discussed

mental eval uations wi

th his clients. He said, though, that after the petitioner’s preliminary hearing, the state made a plea offer before they

“got to that point.” He said that the petitioner was intelligent, that he did not have any problem s talking with the petitioner, and that he believed the petitioner understood the pl e a agreeme nt. He denie d tell ing th e peti tion er to l ie to t he tri al cou rt at t he guil ty plea he aring.

On cross-examination, the petitioner’s attorney testified that he had been practicing law f or twenty-one

ye ars and h ad handled hundre ds of cri minal cas es. He sa id that he cross-examined the state’s witn esses at the preli minar y hearing, that he f iled a disc overy

request , that the

state g ave him di sc ov er y, that he talked with police officers involved in the case, and that he met with the petitioner several times in jail. H e said his investigation of the case reveale d that the petitioner shot the petitioner’s father-in-law and committed crimes against the

petitioner’s mother-in-law and wife. He said that the victims were well-respected in the community

and that it would ha

ve been difficul t to get an acquittal. He said healso believed the petitioner would have been impeached with prior convictions if he had testified at a trial. He said he discussed the plea agreement with the petitioner and advised him to accept the state’s fifteen-y ear offer. He said that the petitioner asked questions-3-

about the plea agreement form, that he answered the petitioner’s questions, and that the petitioner appeared to understand the agreement. He said he discussed parole eligibility with the pe titioner and told him that there was no guarantee the pe titioner would be released after serving only thirty

percent of his sentence. He said that he had no reason to doubt that the petitioner was competent and that the petitioner understood what was happening at the guilty plea

hearing. He said that

although the petitioner was taking medication at the time of the hearing , the petitioner told him and the trial court that the medicine did not prevent the petitioner from understanding the he aring. He acknowledg ed that it was poss ible the me dicine c ould have prevented the petitioner from unde

rstandin g the g

uilty plea h earing.

T he trial court accredited the trial attorney , who testified that the petitioner a ppeared t o understandthe guilty plea hearing, and

determined that the guilty plea hearing transcript supported the at torney ’s te stimony. The trial court stated that if the pe titioner had gone to trial, his attorney would have more than likely had the petitioner e valuated. The trial court

noted that the petitioner didnot tell the

trial cou rt at the g

uilty ple a heari n g that the petitioner suffered from any mental prob lems and found that the petitioner was motivated to plead guilty by rece iving a fift een-ye a r sentence. The trial court

ruled that

th e p et it io ne r e nt er ed hi s g ui lt y pl ea s k no wi ng ly, in te ll ig en tl y, and volun tarily and that t he petitio ner had n ot rece ived the i neffective assis tance of counsel.

The petitioner contends that he received the ineffective assistance of counsel because his trial attorney failed to request a mental e

valuatio n for him. In a

ddition, he

claims tha

t his a ttorne y’s performance “worked to produce a plea hearingsetting that was fundamentally unfair.” The state argues that th e petit

ioner ha s failed t

o show tha

t his attor ney was inef fective for fail ing to request

a mental ev aluation

because he prese nted no me

ntal hea lth expertsat the evidentiary hearing. The
state also argues that the record supports the tria l court’s determination that the petitioner entered his guilty pleas knowing ly, intelligently , and voluntarily. We ag ree with the state.

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance wa s deficient and (2) that the deficiency

was prejudicial in terms of rendering a reasonable probability

that the result of the trial was unreliable or the proceeding s fundamentally unfa ir. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 20 64 (1984) ; see Lock hart v. F retwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strick land sta nda rd h as b een app li ed t o t he r igh t t o co uns el u nde r ar ti cle I, section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W.2d 9 30, 936 (Tenn. 1975), our supreme court decided that
at to rn eys sho uld be held to the general standard of w hether the services rendered w ere within the range of competence demanded of attorneys in cr

iminal cases. Further, the court state d that the ran ge of competence was to be measured by the duties and criteria set forth in Beasley v. United States
, 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in

reviewing coun sel’s co nduct, a “ fair assessment of attorney

performance requires that every e ffort be made to eliminate the distorting effects of hindsig ht, to reconstruct the circumstances of cou n sel’s challenged conduct, and to evalua te the conduct from counsel’s-4-

perspective at thetime.” Strickland , 466 U.S. at 689, 104 S. Ct. at 206 5; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Th us, the fact that a particular strategy or tactic f ailed or even hurt the defense does not, alone, support

a claim of ineffective assistance. Deferen ce is m ade to trial strat egy or tactical choices if they

are informed ones based upon adequate pr eparation. See DeCoster
, 487 F.2d at 1 201; Hellard , 629 S.W.2d a t 9

.

In a post-conv iction case, the burden is on the petitioner to prove by clear and convincing evidence his grounds for relief. T.C.A. § 40-30-210(f). O n appeal, we are bound by the trial court’s findi ngs of fact unless we conclude that the evidence in the record

prepond erates agains t those finding s. Fields v. State
, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions of law and fact, we review the trial cour t’s conclusions as to whether cou nsel’s perform ance was deficient and whether

that deficiency

was prejudicial under

a de novo standard with no presumption of correctness. Id. at 457.

As to the petitioner’s claim that he received theineffe ctive as sistance of counse l becaus e his trial atto rney failed to request a mental evaluation for him, the trial court accredited the attorney ’s testimonythat the petitioner was intelligent and appeared to understand the guilty plea ag reemen t. Moreover, although the petitioner testified that he had a history of mental illness, no mental he alth experts testified at the hearing. We conclude that he has f ailed to demonstrate that his attorney was ineffective for fail

ing to request

a mental evaluation. As to the petitioner’s claim that the guilty plea hearin g was “fu ndamentally unfair ,” we interpret the petitioner’s arg ument to be that he did not kn ow in gl y, intellig ently , and voluntarily enter hi s guilty

pleas. H owever , as noted by t he trial c ourt, the guilty plea he aring trans cript shows otherwise. At the hearing, the trial court questioned the petitioner extensively and the petitioner answer ed y es and no

at the ap propria te times. Moreover, the trial court asked the petitioner if he was under the influenc e of any substance

that would interfere wi th his being able to understand the hearing , and the petitioner said, “No, sir.” Th e trial cour t accredited

the petitioner’s attorney
, who testified that he believed the petitioner understood what was happening at the g uilty plea hear ing. We conclude that the petitioner has failed to show that he receiv ed the ine

ffectiv e assista

nce of c ounsel.

Based on the foregoing and the record as a whole, we affirm the trial cour t’s denial of the petition for post-conviction relief.

___________________________________ JOSEPH M. TIPTON, JUDGE