### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 18, 2000 Se ssion JOSEPH WHITWEL

L v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Davidson County No. 98-D-2559 Cheryl Blackburn, Judge

No. M1999-02493-CCA-R3-PC - February 23, 2001

Petitioner, Joseph Whitwell, filed a Petition for Post-C

onviction Relief in

the Davidso

n Coun ty Criminal Court, whic h the post-conviction court subsequently denied. Petitioner challenges the denial of his petition, rai sing the following

issue: whether the

trial court erre

d in dismissing his Petition for Post-Conviction Relief, based upon a ruling that Petitioner’s allegations of ineffective assistance of counsel were without merit. After a thorough review of the r ecord, we find that the Petitioner did not receive the ineffective assistance of counsel. We therefor e affirm the trial court 's denial of the Petitioner's Petition for Post-Conviction Relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODALL , J., delivered the opinion of the court, in which N ORMA M CGEE O G LE and R OBERT W. W EDEMEYER , JJ., joined. Larry B. Felts, Na

shville, Tennesse

e, for the appell

ant, Joseph Whitwe

ll.
Paul G. Summers, Attorne y General and Re

porter; Marvin E.

Cleme nts, Jr. , Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Roger Moore, Assistant District Attorney General; and Sarah Carra n Daughtrey, Assi

stant District Attor

ney General, fo

r the appellee, St

ate of Tennessee.
OPINION I. Background
On December 17, 1998, Petitioner entered a best interest ple

a of guilty

to theft of proper

ty over $1,000 but less than $10,000 (Class D felony) and received a two-year and one month sentence, to be served

consecutively to a sentence for which his parole had been r evoked. On May 29, 1999, Petitioner filed a Petition for Post-Conviction Relief. Counsel was appointed to represent Petitioner. Following a hearing, t

he post-conviction court denied the petition, entering its written findings of fact and conclusions of law on October 12, 1999. Subsequently, on November 22, 1999, Petitioner filed an untimely notice of appeal. This court may waive the time requirement for filing a notice of-2-

appeal "in the interest of justice." Tenn. R. App. P. 4(a); see State v. Scales , 767 S.W.2d 157 (Tenn. 1989). The un timely filing by the petitio

ner has not prejud

iced the state; the

refore, we wa

ive this requirement

in the interest of justice. See Statev. Mullins, 767 S.W.2d 668, 669 (Tenn. Crim. App. 1988). Accordingly, we will address the merits of the petition.
II. Post-Convic

tion Hearing
The post-conviction hearing occurred on September 15 and on Septem b er 29, 1999. Petition er's proof consisted of his testimony and the testimony of Lela Shew maker. The State's only proof was the tes

timony of Petit

ioner's trial c

ounsel.
Petitioner testified that he filed the instant petition based upon the ineffective assistance of counsel. The Petitioner ar gues that he told his counsel that he did not steal the car

and that, if counsel had contacted Pe

titioner’s witness

es, they would have corroborated Petitioner’s innocence. Petitioner gavehis counsel a list

of witnesses, along with the phone number or address he had for eachwitness. On Dece

mber 17, 1998, Petit

ioner met with his c

ounsel for their f

irst dis cussio n. Pe tition er claims that, at that time, counsel told Petitioner that Petitioner’s witnesses were unreliable. Petitioner also stated that his

l awyer drew a graph, on the back of a file, which showed Petitioner what sentence he might

receive at a pos sible trial. Petition er testified that

, because he understood his witnesses to

be unreliable an

d his chances of s

uccess at trial to be slight, he decided to take the advice of his attorney and enter a best interest plea.
Petitioner further testified that he later learned from

his mother that an insurance company tried to contact him regarding the stolen car. Petitioner also learned that the insurance company had a fraud claim pend

ing against

the victim and owner

of the car stolen

by the Petitio

ner. Petitioner a

lso discovered

that the insurance company had contacted many of the same witnesses, whose names had been on the list given to his counsel. Upon learning this newinformation, Petiti oner immediately filed a Petition for Post-Conviction Relief.
Fin all y, Petitioner acknowledged that, on the date of his plea bargain, he agree d to the plea, and he signed all of the necessary forms. Petitioner also acknowledged that he was under oath that da y, and remembe red tellin g the judge acc epting the p lea that he w as satisfi ed with tri al counsel's performance. Petitioner further stated that, if his counsel had not misled him, he would have taken his case to trial.
The Petitioner

also presented the testimony of Lela Renee Shewmake r. Shewmaker testified that she and Petitioner had been neighbors before Petitioner’s arrest. Shewmaker stated that, shortly after Petitioner’s arr

est, Dawn Maddox (the owner of the car stolen by Petitioner) came to her home and told Shewmaker that she had allowed Petitioner to borrow her car and t h at Petitioner had wrecked the car. Shewmak

er testified that

Dawn Maddox told her

that, sh ou ld anyone from an insurance company inquire about the car incident, Shewmaker should deny knowing any thing about the incident . However, Sh ewmaker stated that, before Maddox came to her house, she had no knowledge of Petitioner borrowing the car or wrecking the car

.-3-

Shewmaker

further testified that she had received several phon e calls regarding the car, including a call

from an insuranc

e company.

She told the insurance company what Dawn Maddox told her. However, Shewmaker did not recall receiving a phone call from Petitioner’s lawyer. Not long after Petit

ioner’s arrest,

Shewmaker rece

ived a phone call

from him, during which Petitioner told her he did not steal the Maddox’s car. Shewmaker replied to Petitioner that she knew he had notstolen the car, because Maddox told Shewmaker that she h ad given the car keys to Petitioner. Shewmak erstated that , if someone had subpoenaed her, she would have testified to these facts.

From Shewmaker’s testimony, it is apparent that th

is phone conversa

tion took place pri

or to Petitioner’s “best interes t” p lea of guilty, and the post-conviction court so found in its findings of fact.
The State's only evidence was the test imony of Peti tioner's trial counsel. He testified that he met Petitioner on September 1, 1998, during the felony jail docket. Counsel interviewed Petitioner that day and Petitioner told counsel that he did not steal the car. Petitioner told his lawyer that Dawn Maddox,the owner, had

allowed him to borrow the car. While Petitioner was in possession of the car, he had a wreck. The car was towed back to Dawn Maddox’s home, but no one h a d the sixty dollars to pay for the towing, so the wrecker towed the car to a lot. Onthat same day , counsel also received the names of Pam Warden, Kevin Bush, John Warde n and Jessica Goodman, who were waiting in the gallery of the courthouse. Pam Warden told counsel that the victim had allowedthe Petitioner to borrow the car. Warden also told Petitioner’s counsel that Petitioner had been involved in a head-on collision with her, but that the insurance would not cover the loan, so the owner had to take out a warrant ag

ainst Petitioner, in order for the insurance to pay for the wrecked car. Counsel didnot speak with

any of the other

witnesses waiting in the gallery or with any of the other witnesses provided by the Petitioner.
Counsel testified that Petitioner contacted him three times by letter. In the first and third letters, Petitioner provided the names of possible w itnesses, along w

ith Petitioner’s version of the events surro undi ng the vehicle. In the second

letter, Petitioner

expressed his frus

tration with counsel’s representation. Petitioner accused counsel of not caring about his case and asked counsel nott o wait t o the last minute to work on his case. Petitioner threatened to file an ineffective assistance of counsel claim with the Board of Professional Responsibility.
Counsel further testified that he could not recall if he had

time to investigate Pe

titioner’s case or to interview Petitioner’s witne sses. Yet, counsel testified it was not his practice to mislead someone into believing he had interviewed

witnesses, when h

e had not. Counsel te

stified that he did notand would not

say that the witnesses were unreliable, when he had not interviewed th

e witnesses. He also could

not recall whether he

discussed Petitioner’s trial options, but said it was his practice to discuss such options with a client. He recalled no verbal expressions of dissatisfaction from the Petitioner, but he knew from Petitioner’s letters that Petitioner was unhappy with his representation. Over all, counsel could not remember what was said during hi s limit ed conversations with the Petitioner. However, he stated that he would never force a client to accept a guilty plea. Counsel-4-

testified that the original offer the State presented to Petitioner wa s fo ur years, the next offer was three years at thirty-perc

ent and the final offer was the two years and one month at thirty percent consecutive to Petitioner’s parole violation (which Petition er accep ted). Counsel state d that, if Petitioner had totally r

ejected any

plea offer, the

n he would not h

ave g one forward with plea negotiations, but would have investigated further and taken the case to trial.
At the conclusion of the hearing, the post-conviction court denied Pet i tioner’s Petition for Post-Conviction Relief

and announced certain findings of fact. The Court subsequently ente red an order reflecting its decision, including its findings of fact. In its findings, the trial court accredited the testimon y of the Petiti oner's trial counsel. The trial court found the trial counsel’ s testimony to be more credible than the Petitioner’s, and therefore concluded that Petitioner had not established that his counsel’s representation was constitutionally deficient. The trial court further found that there was no evidence as to whether Petitioner ever to

ld his counsel about the conversation he had withMs. Shewmaker, and therefore coun sel had no kn owledge of the c onversation. The

postconviction court also gave weight to the fact that Petitioner entered his best interest pl ea of guilty on the first day that

his case was set for discussions with the State. Thus, the court found that “the petitioner entered the plea in his best interest after assessing the circumstances and the State’s offer in spite of his

position that he was not guilty of the crime and had witnesses who

might support his position.” The post-conviction court concluded that the Petitioner had not met his burden of establishing the allegations presented in his petition. III. Analysis
Petitioner contends that, but for

his trial counsel’s ineffective assistance, he would not have ent ered a “be st i nte res t” p lea of gu ilt y to c harg es o f th eft of p rop ert y. When a claim of

ineffective as sistance of couns el is made under the Sixth Amendment, the burden is upon the petitioner to show (1) that counsel's performance was deficient and (2) that the deficiency

was prejudicial i

n terms of render

ing a reasonab

le probability

that the result of the trial was unreliable or the proceedings fundamentally unfa ir. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. F retwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993); Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1993) . Th e Strickland standard has been applied to the right

to counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson , 772 S .W.2d 417, 419 n. 2 (Tenn. 1989). Whe

n a petitioner cla

ims that ineff

ective assistance of counsel result ed in a guilty

plea, the petition

er must prove th at counsel performed deficiently

and that but for counsel's errors, the petitioner would not have pled guilty and would have insisted upon going to trial. See Shazel v. State , 966 S.W.2d 414, 416 (Tenn. 1998) ( quoting Hill v. Lockhart , 464 U.S. 52, 59, 106 S. Ct. 366, 370 (1985)).
In Baxter v. Rose , 523 S.W.2d 930, 936 (Ten n. 1 975 ), o ur s upr eme cou rt h eld tha t at tor neys should be held to the general standard of whether the services ren dered were within the range of competencedemanded of attor neys in crim

inal cases. Fur

ther, the court st

ated that the range of competencewas to be measured by the duties and criteria set forth in Beasley v. United States , 491-5-

F.2d 687, 696 (6th Cir. 1974) and United States v. De Coste r , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing counsel's conduct, a "fair assessment of attorney performan ce requi res that every effort be made t

o eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged

conduct, an d to evaluat e the conduc t from coun sel's perspective at the time." Strickland , 466 U.S. at 689, 104 S. Ct. at 20 65; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
The petitioner has the burden in the trial court to prove by clear and convincing e vidence the factual allegations that would entitle him to relief. Tenn. Code Ann. § 40-30-210(f). On appeal, we are bound by the trial court's findings of fact unless we conclude tha t the eviden ce in the rec ord preponderates against

those findings. See Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respec

t, the petitioner, a

s the appellant,

has the burden of illustrating how the evidence preponderates against the judgment entered. Id. However, we review t he t rial court's conclusion regarding the effectiveness of

counsel de novo because it involve s a mixed question of la

w and fact. See State v. Burns , 6 SW 3d 453, 461 (Tenn. 1999).
In the case sub judice , the trial court found that defense counsel had

adequately investigated the case against Petitioner. The court furthe r noted that despit

e Petitioner’s allegations, Petitioner was well aware of the circumstances involved in his case and the possible senten ce he fac ed. Petitioner, decided

that it was in his “best interest” to plead guilty, rather than insist that counsel contact Shewmaker or any of the other witnesses, in order to prove his alleg ed innocence. Therefore, we fin d that the record supports the findings and conclusions of the post-conviction court, that Petitioner failed to show that he was entitled to relief.
IV. Conclusion
Because Petitioner has failed to present any evidence that wo uld prepond erate against the findings of the tr

ial court, we aff

irm the judgment o

f the post-convic

tion court.

___________________________________ THOMAS T. WOODALL, JUDGE