### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned O n Briefs May 21 , 2003

ALDEN JOE DAN IEL, JR. v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Bradley County

No. M-01-392 Carroll L. Ross, Judge

No. E2 002-0 2838- CCA-R3 -PC September 23, 2003

Petitioner, Alden Joe Daniel, Jr ., appea ls the trial court’s denial of his petition for post-conviction relief. In his initial brief filed with the assistance of retained counsel, Petitioner argues that the trial court erred in finding that

Petitioner’s plea of guilty was voluntary and knowing and in finding that Petitioner’s trial counsel ren dered eff ective assistance of counsel during the interva l between P etitioner’s first and

second tr ial and du ring ple a nego tiations. A fter the filing o f his initia

l brie f
, this Court granted Petitioner’s counsel leave to withdraw as counsel and denied Petitioner’s motion for the appointment of substitute counsel. Thereafter, Petitioner filed a motion to reconsider

postjudgment facts p ursuant to Rule 14 of the Tennessee Rules of Appellate Procedure and a pro se supplemental brief. I

n his brief, Petition

er alle ges that

his post-conviction counsel rendered ineffective assistance of counsel and that the trial court based its findings on e rr oneo us facts

. Petitioner requests that this Court

remand the matter to the trial court for an evidentiary hearing as to factual matters not presented at Petitioner’s post-conviction pro ceedin g. For the reasons discussed herein, we deny Petitioner’s motion to consider post-judgment facts and affirm the trial court’s dismissal of the petition for post-conviction relief.

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

T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R

. and N ORMA M C G EE O GLE , JJ., joined.

Cyn thia Fort, Na shville, T ennesse e, and Al den Joe Da niel, Jr., pro se , Wartburg, Tennessee for the appellant, Alden Joe Daniel, Jr.

Paul G. Summers, Attorney Genera l and Repo

rter, B raden H . Bouce

k, Assista nt Attorne

y General
, Jerry N. Estes, District A

ttorney Genera l, and Joseph Hoffe

r, Assista nt Distric t Attorne

y General
, for the appellee, State of Tennessee.

OPINION

a. Backgro

und-2-

Petitioner was indicted on thirteen counts of statutory rape, sexual battery

and rape stemming from allega tions by various m

embers o f the gi

rls’ bask etball team that Petitioner coached during the

summer. A fter he was in dicted, Pe titioner f led the sta

te and wa s appreh

ended a pproximate

ly s ix months later. Following his return to Tennessee to stand tr

ial, Petiti oner wa s convict ed of flig ht to avoid prosecution, but

the jury could not r

each a v erdict a s to the sexual offe nse charges. A second trial commenced later that summer. During the selec tion of the jury, a recess was called to explore the possibility of a p lea settlement. After negotiations, Petitioner pled guilty to five counts of statutory rape, two count s of sexual battery and one c ount of ra

pe with an effective sentence of nine ye ars. This sentence was substantially less than the pote ntial sentence Petitioner faced if he proceeded

to trial and less th an t he t wel ve- year e ffe cti ve s ent enc e in it ial ly of fer ed b y the St ate . In addition, the State agreed not to prosecute Petitioner’s fa ther, mother, former

wife and daughter

for perjury a nd/or for aiding Petitioner while he was a fugitive.

b. Post- convicti on Hearing

Petitioner initially filed a pro se petition for post-conviction relief alleging, among numerous other issues, (1) that his guilty plea was not entered

into voluntarily or knowingly butwas instead

a product of duress and coercion prompted by the State’s threa t to prosecute his family if he did not pleadguilty; (2) that his trial counsel rendered ineffective assistanc e of counsel during the interval betweenthe first

and second trial and during the plea neg otiations; and (3) that the prosecution failed to turn ove

r exculpa tory evidenc e during

the peri od betwe en the fi rst trial a nd the sec ond trial.

In support of his petition, Petition ertestifie d that he o nly talked wi th his coun sel one tim

e betweenthe conclusion of his first trial and the commencement of the se cond tria

l. When he arrived at the cour thouse, Pe

titio n er said that he had every expectation that the trial would begin. In the middle of jury selection, arecess was called, and Petitioner, along with his father, mother and former wife, met with Petitioner’s counsel in a separate room. On the table were several documents which appeared to be warrants containing the names of Petitioner’sfamil y members . Alt hough Petitioner

was aware duringhis first trial thathis family was vulne

rable to prosecu tion for th eir assis tance to him while he was absent

from the state, the State had not pursued the filing of char ges. Petitioner said that his co

unsel ass ured him that the f amily had not done any

thing wrong, so Petitioner was surprised to find out that arrest warrants had actually been prepared.

Petitioner said that the plea negotiations lasted only about fifteen minutes and included an agreement

by the State not to press char ges against hi s family. P etitioner testified that during the plea negotia tions, his only

concer n was his family’s potential arr ests, although he admitted that the family members told Petitioner notto base hi s decisio n on what m ight or m ight not h appen to t

hem. Petitioner denied that trial counsel had discussed the additional incriminating evidence the State had gathered agains t him between the fi r st a nd secon d trials. Sp ecifica lly, Petitioner

denied th at his counsel told

him that James McDonal d, the fr iend who s heltere d Petitione r during part of th e time he was a fugitive, was prepared to testify for the State that Petitioner had a cquired a tattoo below the waist for the sole purp ose of co nfusing the victim s on identi fication . Petitione r also denied th at his-3-

counsel told him that Mr. McDonal d had info rmed the Statethat Petitioner had engaged in sexual intercourse with a fourteen-y ear-old girl while stay

ing at Mr. McDonald’s house.

At Pe titioner’ s first tri al, his fo rmer wif e and da ughter both testif

ied that Pe

titi oner wa s working at Charle ston Hosie

ry Mill at the

time one o f the inc idents allegedly occurred. Petitioner deniedthat his co

unsel told him that the

State subs equently

obtained the company’s sig n-in logs for that time period, and that the records did not support Petitioner’s contention that he was working at Charleston Hosiery Mill at that time. Petitioner testified at the post-conviction hearing that he was working as an inde

pendent c ontract

or and wa s not requ

ired to us e the emp loy ee sign -in shee ts. Petitioner said he was paid in cash and admitted that he did not pay federal incometax on this income. Petitioner also denied that counsel told him he had spoken to Detective Tony Alvarez who provided a summa

ry of the evidence the State had to prosecute both Petitioner’s forme r wife, Darlene Ledford, and his daug hter, Brandy

Daniel, for perjury

pe rtain ing t o their testimony at the first tria l.

Plaintiff, however, admitted that he was aware that the State had obtained the servic es of an expert witness to testify at Petitioner’s second trial that the ha ndwriting on corre spondenc e to one of the victims was Petitioner’s. Petitioner also knew that the State had discovered that a friend of

one of the victim’s had arranged Petitioner’ s rape by th ree or f

our men a

nd that the

State wasin possession of

Petitioner’s medical records resulting from that incident. Petitioner was a lso aware that the secr etary for Coach Pat Hea

d Summit wasprepar

ed to testify at the

second tr ial that a resume submitted by Petitioner

to the University of Tenne ssee’s women’s basketball program conta ined a number of

fraudul ent state

ments. Petitioner , howeve r, denie d that he e

ver sent a resume to Coach Summit.

Petitioner testified that he received a copy of criminal injur ies comp ensation reports submitted by two o f the victims after he was in prison. One of the reports was filed f ive months before trial and indicated that at least one of the victim s intende d to file a civil suit a

gainst Petitioner and had contacted an attorney to act on her behalf. Petition er said tha t the State should have provided his counsel with a copy of the report. One of the victim’ s mothers h ad testif ied at the first trial that she had not filed a lawsuit against Petitioner, and Petitioner argued that the c ompensation report could have been

used to impeach the witness. In addition, Petitioner testified that he would not have p led guil

ty if he had kn own about

the poten tial for a civil law suit.

Finally, Petitioner

testified that

his trial counsel provided ineffective assistance beca use of

a conflict of interest between Petitioner and another client of couns el’s, Dr. Ce cil Kn ight. Alth ough notexactly clear

fr om Petitioner’s testimony, it appears that Petitioner and Dr . Cecil Knight were

on opposite sides of

a lawsuit totally unrelated to Petitioner’s c riminal trial. Petitioner admitted that it was the district attorney who initially raised the issue of

a confli ct of inte

rest. Pet itioner a nd his

cou nsel resis ted th e Stat e’s mo tion to di squal ify Peti tion er’s t rial c ounse l and, after a hearin g, th e trial court concluded that no confl ict of inter est ex isted . Duri ng the h earing, Petitioner waived any conflic t that might exist and e xpressed h

is desire to retain trial cou nsel to as sist him at tr

ial.-4-

Robert Owenby, a

former employee of Charleston Ho sie ry Mill, testified that he knew Petitioner was a se curity

guard at the fa cility some time in 1997 but could not reca ll the exac t time p eriod that Petitioner worked there. Mr. Owenby also said he thought Petitioner was hired as a n independent contractor rather than an e mployee but did not know how Petitioner was paid.

Christal Ward, a me

mber of Pe

titioner’ s basketb all team, said that she was prepared to testify at trial that one o f the vic tim’s mothe rs had ap proached her abo

ut joining a potenti al civil la

wsuit agains tPetitioner. Ms. Ward interpreted the telephone call as an invitation

to lie so that

she could share in any money

recovered from Petitioner. Ms. Ward admitted, however, that once she told the

woman that she had not

been the recipient of

any sexual advance s from Petitioner, she never heard anything more about the potential lawsuit. Ms. Ward was not called as a witness at the first trial nor scheduled as a witness at the second tr ial.

Petitioner’s father, Alden

Joe Daniel, Sr., testified that Petitioner’s counsel told him that the State had prepared

a warra nt for his a

rrest du ring the ir conference on the morning the second trial commenced. Mr. Daniel said that prior to this he and his wife had periodically checked with the court to see if any

warrants had been issued. Mr. Daniel was shocked when he learned that Petitioner

was consi derin g a

plea arrangement, but he did not discuss the proposal with his son. Although Mr. Daniel knew that Petitioner stayed with Mr. McDonald while he was a fugitive, he denied providing his son any

food or money. Dur

ing this time, Mr. Daniel did, however, try to secure the services of an attorney f

or Petitioner.

Darlene Ledford, Pet

itioner’ s ex-wife , testifie d that she saw what

she thoug

ht were a rrest

warran ts the morning the second trial started. Based onthese papers, Ms. Ledfor d felt that she was about to be arrested. She did not b elieve, however , that the Statecould sec

ure a co nviction a

gainst her. Ms. L

edford t old Petitioner not to a

ccept the plea ba sed on the arrest w arrant s.

Petitioner’s tria

l cou nsel t

estif ied th at he

inter view ed ap

proxi ma te ly sixty-eight potential witnesses in preparation for the first trial and emplo ye d Regina

Shepard as a parale gal to a ssist him. He created a detailed calendar chronicling Petitioner’s whereabouts on the dates for the alleged offense s. Counsel explained each elemen t of the c harged offenses to Petitioner as well as the possibility

of conse cutive a s opposed to concur rent sen tences. These

discussions were repeated in the interval between the first trialand the second, and at some point, Petitioner authorized counsel to talk with the State about a possible plea agreement. During this peri od, couns el met with Petitioner twice, a nd Ms. Shepherd als o met with Pe titioner t wo times to

explain the new evidence secured by t he State. The issue

of the fa mily being a rrested as acce ssories a

fter the fact and for perjury was alwa

ys p rese nt, and co unsel, in addition to Mr. and Mrs. Daniel, Sr., checked periodically to see

if an application for a warrant had bee n filed.

Counsel testified that

he was aware prior to Petitioner’s first trial that the victims intended to file a ci vil lawsuit a

gainst p etitioner . Counsel s poke to the attorne y in itially hired by the victim s, butthe attorney late

r withdrew from the case. A civil lawsuit was not filed until some time later and was pen ding at the ti me of t he pos t-con victi on hea ring.-5-

Counsel’s primary

concer n after the first trial was the State’s discov ery of a dditional evidence that was unfavorable to Petitioner. First, Mr . Burrishad initia lly a greed to testify at Petitioner’s fir st trial but changed his mind when he could not find any records to support

his testimony that Petitioner

was working at Charleston Hosiery in 1997. Instead, Mr. Owenby testified about Petitioner’s employment

at the fir st trial. B efore t he second trial, th

e State co ntacted Mr. Burris and obtained the company’s wor

k log, and Mr. Burris told counsel that his testimony at the second trial would not be favorable to Petitioner. Because the sign-in logs raised substantial questions about Petitioner’s employ me nt, counsel was also cognizant that Ms. Le dford, Ms. Daniel, and Mr. Owenby were vulnera ble to per jury charg es.
In addition, Mr. McDonald approac hed counsel before the second trial and told him of

the additions to hi s test imon y that wou ld be p resent ed at t he seco nd tri al inc ludi ng Pe titioner’s motivation behind secu ring his tat too and his sexual activities while staying with Mr. McDona ld. Fi na ll y, counsel s aid that th e victims were now familiar with the w ay

counsel c onducted

his cross

examinatio n and woul d be bette r prepa red at a second tr ial.

The discussio ns betwe en the two trials, c ounsel sa

id, focus ed on th e p otentially neg ative impact of t he State’s newly discove red evidence on a second trial and the substantial sente nce Petitioner was pote ntially facing. Although the

ar re st of fa mi ly m em be rs wa s a lw ays a p os si bi li ty, the family continued to protest that this factor should not be considered in Petitioner’s decision as to whethe r or not to plead g uilty to the cha

rges.
During the recess at

the second trial, counsel initiated a conversation with Detective Alver ez concerning the status of any prosecution against the fa mi ly. Detective Alverez said that he had filled outapplications for warrants, but the warrants had not yet been filed. As a result, counsel and Petitioner were adamant

that the State’s agreement not to prosecute the fa mily members be included in the plea negotiations. After Mr. McDonald indicate d to counsel that the family had supplie d Petitioner wi th mo ne y, counsel f

elt that th e case a gainst t he family members g ave the St

ate at le ast a reasonable opportunity

to secure a conviction.

Counsel testified that he viewed the conflict revolving around his re presentation of

bothDr. Knight and Petitioner

as simply an effo rt by the State to remove him from the case. Petitioner had told the tr ial cour t that he w aived an

y c onflict a

nd wante d counsel to repre sent him at trial.

At the co nclus ion o f the h earing, the trial court concluded that Petitioner failed to prove by clear and convincing evidence his allega tion that his guilty plea was the r esult of coercion. The trial court found that Petitioner appeared intelligent throughout the he aring and was more sophisticated than most peopl e who p assed throu gh the courtroom. The transcript of the plea acc eptance hearing showed that Petiti oner had repeat edly assured the cour t that he f

ully understo od his r

ights and voluntar ily waived those rights by

accep ti ng the State’s plea offer. The issue of the potential prosecution of Petitioner’s family member s either for perjury or as accessories after the fa ct hadbeen present from the beginning. So long as the State violated none of Petitioner’s constitutional rights, an agreement not to prosecute the f amily further wa s a proper factor in the plea

negotiations. The-6-

trial court further found that

petitioner offered no evidence at the post-c onviction hearing that he was prejudiced

by his counsel’s assistance o r that h e would not have pled guilty but for his counsel’s conduct. Finally , the tria

l court c oncluded

that the Sta

te did not commit a

ny a cts that w ould rise

to the level of

prosecutorial misconduct. Based on the foreg oing, the trial court dismissed Petitioner’s petition for post-conviction relief. As to all conflicting testimony , the trial co urt s pecific ally accredited the testimony

of Petitioner’s counsel and did not find Petitioner credible.

Petitioner appealed and arg

ues that th

e trial c ourt err

ed in find ing that his guil ty plea was voluntar ily and knowingly

made and not the product of the State’s coercion. Fur thermore, Petitioner asserts that counsel rendered ineffective assistance because Petitioner did not understand the nature and consequ ences of

his plea, his plea w as unlaw fully obtained because Petitioner

only pled guilty in response

to the State ’s threa

ts against his family, and counse l’s representation of both Petitioner and Dr. K night wa s an imper

missible c onflict of

interest

.
After Pet itione r’s brief was filed, he dismissed his retained post-conviction counsel and moved that

she be allowed to w ithdraw a s his attorney. This Court subsequently entered an order permitting Petitioner ’s post-c onviction counsel t

o wit hdraw. Petitioner then filed a pro se supplemental brief alleging that his post-conviction counsel had re ndered ineffective assistance of counsel because she (1) failed to adequa tely investig ate the c ircumsta nces sur rounding his guilty plea; (2) fail ed to include an allegation in the post-conviction petition that Petitioner’s trial counsel had erroneously a

dvised him as to his eligibility for parole if h e pled gu ilty ; and (3) failed to adequa tely investigate the State’s claim that witnesses from the first trial we re not willing totestify at Petitioner’ s second t

r ial. Petitioner’s supplemental brief also contains a genera l allegation that the trial cou

rt based its decis ion to dismiss Petitioner’s petition for post-conviction relief on

erroneous fac ts . In support of this last allegation, Petitioner filed numerous affidavits obtained after the conclusion of the post-conviction hearing in addition to portions of the record f rom Petitioner’s first trial. None of this information was presented to the post-conviction court.

c. Analysi s

1. Standard of Review

A petitioner seeking post-conviction relief must establish his allega tions by clear a

nd convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). The trial court’s finding s of fact in a post-conviction hearing are aff orded the weight of a jury verdict. Black v. State , 794 S.W.2d 752, 7 55 (Tenn . Crim. App .1990). T herefo re, this Court may

not re-w eigh or

re-eva luate these findings nor substitute its inferences for those of the trial judg e unless the evidence in the record preponderates ag ainst those findings. State v. H oneycu tt , 54 S.W.3d 762, 763 (Tenn. 2001); State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). In addition, questions concerning the credibi lity

of witnes ses and th

e weight and val

ue give n their te stimony

is resolved by

the postconviction court, and not this Court. Id . However, the trial court’s application of the law to the facts is reviewed de novo , without a presumption of correctness. Fields v. State , 40 S.W.3d 450,-7-

458 (Tenn. 2001). A claim that counsel rendered inef fective assistance is a mixed question of fact and law and therefore a lso subject to de novo review. Id. ; Burns , 6 S.W.3d at 461.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance of counsel, he must establish that counsel’s performance fell below “ the range of competence demanded of attorney s in criminal cases.” Baxter v . Rose , 523 S.W.2d 930, 936 (Tenn. 1975). In a ddition, he

must show th at counse

l’s ineff ective p erforma

nce act ually adverse ly im pacted h is defense. Strickland v. Washington , 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674 (1984)

. In the context of a guilty plea, a petitioner must show that he or she would not have pleaded guilty and would

have insi sted on g oing to tr ial had it n ot been f

or the deficienc ies in counsel’s performance. Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203 (1985).

In reviewing

counsel’s performance, the distortions of hindsight must be avoided, and this Court will not second-guess counsel’s decisions regar ding trial strategies and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, theref ore, should not concl ude th at a par ticul ar act o r omis sion by counse l is u nreaso nable merel y because t he str ategy was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged errors should be judged from counsel’s per spective at the point of time they w ere made in light of all the facts and circumstances at that time. Id. at 690, 104 S. Ct. at 2066.

A petitioner must satisfy both prong s of the Strickland test befo re he or she may prevail on a claim of ineffective assistance of counse l. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997), cert. den. 525 U.S. 83 0, 119 S. Ct. 8 2, 142 L . Ed. 2d 64 ( 1998). Th at is, a pe titioner m ust not only show that his counsel’s perfor mance fell below acceptable standa rds, but that such performance was prejudicial to the petitioner. Id. Failure to satisfy either prong will result in the denial of relief. Id. Accordingly , this Court need not address one of the components if the petitioner fails to establish the other. Strickland , 466 U.S. at 697, 104 S. Ct. at 2069.

2. Involuntary

Guilty Plea

Petitioner allege s that his g

uilty plea wa s solely

the produ ct of the

State’s th

reats to prosecute his family me

mbers for harboring a fugitive and for perjury . As a result, Petitioner contends that his guilty plea was not voluntarily or intellige ntly given in violation of the principles enunciated in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

By ente

ring a plea of guilty , the accused waives several constitutional rig hts including the privilege against self-incrimination, the rig ht to a trial by jury , and the right to confront witnesses. Id. at 243, 89S. Ct. at 171 4. For th is waiver to be vali d under th

e Due Pro cess Clause, the plea must be voluntarily, unde rstandingly a

nd knowingly e

ntered. Id. at 243, 89 S. Ct. at 1713; Blanken ship v. Sta te , 8 58 S. W. 2d 89 7, 90 2 ( Te nn . 1 99 3) . A pl ea is no t “ ‘v ol un ta ry’ if it is the product of ‘ignorance, incomprehension, c oercion, terror, inducements, [or] subtle or-8-

blatant threats. . . .’” Blankenship, 858 S .W.2 d at 90 4 (quo ting Boykin , 395 U.S. a t 242-3, 89S. Ct. at 1712). If an acc

used is fully awar

e of the direct consequences of his plea w hich may include t he value of any commitmen

ts made by

the prosecutor, th

en the ple a must stand “unless induced by threa

ts (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by

their nature improper as having no proper relationship to the prosec utor’s business (e.g. bribes).” Brady v. United States , 397 U .S. 7 42, 75 5, 90 S . Ct. 1463, 1472, 25 L. Ed. 2d 747 (1970 ) (quo ting Shelton

v. United Sta tes, 246 F.2d 571, 572 n. 2 (5 th Cir. 1957) (en banc), rev’d on other grounds , 356 U.S. 26, 78 S. Ct. 563, 2 L. Ed. 2d 579 (1958)).

The trial court must ascertain if the petitioner fully understands the significant consequences of his or her plea. Blanken ship , 858 S .W.2 d at 90 4-5 (q uoti ng Brown v. Perini
, 718 F. 2d 784, 788 (6 th Cir. 1983)). When making its determination, the trial court may consider a number of factors including the petitioner’s re lative intelligence, his familiarity with criminal proceedings, whether he wa s represented by competent counsel and had the opportunity to confer with counsel about his options, the advice given by counsel and the trial court about the charg es against him and the penalty to be imposed, and the petitioner’s reasons for pleading g uilty. Blanken ship , 858 S.W.2d at 904-5

. The trial court in this instance found that Petitioner was more than capable of compreh ending the plea processand was f

amiliar w ith court p

roceed ings bec ause he h ad just been through a trial on the very same offenses. Petitioner executed a plea ag reement stating that he understood the charges ag ainst him, that he voluntarily waived his rig ht to a jury trial and an appeal if convicted, and that he fully understood the offer presented by the State. In addition, the trial court reviewed each of these issues with Petitioner personally at the plea submission hearing. Testimony

offered by

Petitioner’s counsel showed that the possibility of prosec ution of Petitioner’s family members e xisted from the beginning. See Ten n. C ode Ann . § 3 9-1 1-4 11. In addition, the State had obtained information in the interval between the first and second tr ial concerning Petitioner’s alibi for one of the alleged offenses that left his former wife and da ughter vulnerable to prosecution for perjury . The trial court concluded that it was not impermissible for the State to use the se potent

ial prose cutions a s a barg aining t ool during

plea neg otiations with Petitioner.

The trial court further found that Petitioner’s counsel had discussed e ach element of the charged offenses and the

potential exposure Petitioner faced if convicted of all charg es. Petitioner’s counsel advised him that the State’s case had grown stronger since the first trial, and some of Petitioner’s witnesses were now unwilling to testify or might even testify

for the State. Based on these findings, the trial court conc luded that Petitioner’s plea was not the result of

co er ci on on th e p ar t o f t he St at e b ut wa s e nt er ed in to vo lu nt ar il y an d i nt el li ge nt ly.

Petitioner argues that the totality of the circumstances surrounding Petitioner’s plea of guilty preponde

rates against the trial court’s finding tha t Petitioner’s plea was not coerced.-9-

Petitioner contendsthat he wa s willing to proce ed to tria

l and only pled gu ilty to save hi s family from prosecution.

An accu sed may

plead g uilty , not guil

ty, or nolo co ntender

e to the charge s again st him and may cha

nge his plea during the course of a trial. Parham v. State , 885 S.W.2d 375, 379 (Tenn. Crim. App. 1994); Tenn. R. Crim. P. 11(a). An accused does not have a c onstitutional right to a plea agree

ment, nor is the State required to enter into plea barga ining. State v. Head
, 971 S.W.2d 49 , 50 (Ten

n. Crim. Ap

p. 1997); Parham , 885 S.W.2d at 382. Nonetheless, the State has a “legitimate interest in encourag ing the entry

of guilty plea s and in facilitating plea bargaining, a proce ss that is mutually beneficial to both the defe ndant and the State.” State v. Mann , 959 S.W.2d 503, 510 (Tenn. 1997), cert. denied 525 U.S. 956, 118 S. Ct. 2376, 141 L. Ed. 2d 743 (1998). Both parties to the plea negotiations nece ssarily have their “own reasons for wanting to avoid trial.” Bordenkircher v. Hayes , 434 U.S. 357, 363, 98 S. Ct. 663, 668, 54 L. Ed. 2d 604 (19 78). Our

supreme court ha s noted, ho wever, that “[p]le a nego tiations of ten give rise to difficult choices for a defendant.” Mann, 959 S.W.2d at 511.

As the State points out, if multiple defendants are involved in the offense, the State may extend an offer of a plea agr eement contingent on all co-defenda nts accepting the offer and pleading guilty

. Parham , 885 S.W.2d a t 382. The

State nee d not extend

the same offer to all defendants. See Head , 971 S.W.2d at 51. Yet, one defendant may be motivated to enter into a plea agreement to secure

leniency for

another co-defendant without such motivation invalidating the otherwise voluntary

nature of the plea. See Parham , 885 S.W.2d at 385 (Defendant voluntarily pled guilty

to save his co-defendant from the possibility of a death sentence.). I

n a series of cases arising out of the killing of f our members of the Lillelid family , this Court determined that the desire of the various co-def endants to save one another from a death sente nce through the entry

of guilty plea s is a legitimate reason to accept a plea agreement. See Risner v. State , No. E200 2-01112- CCA-R3-PC, 2003 WL 21492929, at *7 (Te

nn. Crim. A

pp. Knoxville June 30, 2003). The defendant’s motivation for pleading guilty is only one factor to c onsider when reviewing the totality of the circumstances surrounding the entry of the guilty plea

. Blankenship, 858 S.W.2d at 904-5 ; Parham , 885 S.W.2d at 385.

In this instance, Petitioner’s family members had not ye

t been indicted. So long as the district a ttorney has proba

ble caus e, the de cision of whether to prosec ute and w hat char ges to bring against the accused r ests solely within the discretion of the prosecutor. State v. S pradlin
, 12 S. W.3d 432, 4 36 (Te nn. 20 00) (q uoti ng Ramsey v. Town of Oliver Springs , 908 S.W.2d 207, 210 (Ten n. 1999); see Hayes , 434 U.S. at 364, 98 S. Ct. at 668. Promises, on the other hand, made to persuade the defendant from proc eeding to trial that are not related to the prosec utor’s business invalidate a guilty ple a. Brady v. United States , 397 U.S. at 755, 90 S. Ct. at 1472. “Almost a

nyt hing law fully

within the

power of a prosec utor act ing in g ood faith

can be o ffere d in exchange for a guilty

plea.” United Sta tes v. Pollard , 959 F.2d 1011, 1021 (D.C. Cir. 1992), cert. denied , 506 U.S. 915, 113 S.Ct. 322, 121 L. Ed. 2d 242 (1992). In Hayes , the supr eme court expressly rese

rved judgment on the constitutional implications of a prosecutor’s promises of leniency to a

third party during

plea negotiations. Hayes , 434 U.S. at 365 n.8, 98 S. Ct. at 669.-10-

Since that time, however, the federal circuit cour ts have consistently found that “a plea is not invalid if entere d (a) und

er a ple a agreement tha

t include s lenienc y f

or a third party or (b) in response to a prosecutor’s justifiable threat to prosecute a third party if the plea

is not entered.” United States v. Marquez , 909 F. 2d 738, 741 (2 nd Cir. 1990), cert. denied, 498 U.S. 10 84, 111 S. Ct. 957, 112 L. Ed. 1045 (1991) (citations omitted).

The possibility that Petitioner’s family might be prosecuted for their role in assisting or concealing him during his flight was pre sent during Petitioner’s first trial, and in the ensuing interval between the conclusion of the first trial and the commenc ement of the second trial. See Tenn. Code Ann. § 39-11-411. During this time, Petitioner’s parents as well as his trial counse l periodic ally

checke d with the c ourt cle rk to see if warr ants had b een file d. Althoug h Mr. Dan

iel, Sr. testified that he did not provide his son physical assistance , Mr. McDonald told Petitioner’s counsel that the Daniels provided money to their son. Based on the information he received, counsel testified that he believed the State would have enoug h proof to sustain a conviction, although he felt that the State’s case would not be helped by the credibility problems surrounding Mr. McDo nald. Nonetheles s, counse l was acu tely aware of the Da niels’ expo sure dur

ing cro ssexamination in the event they testified at the sec ond trial and prepared them for trial acc ordingly.

Counsel also testified that the information gathered by the State between trials raised substantial questions about the validity of the testimony of Petitioner’s former wife and daughte r concerning Petitioner’s employ ment at Charleston Hosiery Mill. Despite these factors, each family member re

peatedly urg ed Petitioner not to consider their plight when deciding whethe r or not to plea.

Counsel te stified th at he, Pet itioner, M s. Shephe

rd, Gene ral Hoff er and General

Crump met briefly in a sepa

rate room during the recess on the fir st morning of the second trial to explore the possibility of a plea neg otiation. At some point, counsel left the room and initiated a conversation with Detective Alvarez concerning the status of any prosecution against Petitioner’s family. Detective Alvarez informed counsel that he had completed the nece ssary af fidavits of complaint and applications for warrants for Mr. Danie l, Sr. and Ms. Ledford. Counsel took the paperwork into the conference r oom and requested that the State agree not to prosecute members of the Da niel fami ly a s a part o f the ple a agre ement.
Petitioner was initially indicted on thirteen counts of ra pe, statutory rape

and sexual battery . As a re sult, he f

aced sig nifican t sentenc ing exposu

re if co nvicted. Petitioner pled guilty to five counts of statutory ra pe, two counts of sexual battery a nd one count of rape and received an effective sentence of nine y ears. At the plea submission hearing, Petitioner said that he understo od the ple a agreement an d the cons titutional rights h e was fo regoing by

enterin g a gu

ilty plea. Petitioner testified that no one had threatened or made a ny promises or otherwise coerced him into entering the plea agree ment and admitted that he had committed the offenses outlined by the State in its factual basis for the plea. Furthermore, the trial court spec ifically found Petitioner’s post-conviction hearing testimony to be without credibility. Base d on our review of the totality of the circumstanc es surrounding Petitioner’s guilty plea, we find that the evidence-11-

does not pr

eponder ate ag ainst the t

rial cou rt’s find ing that Petitioner ’s plea w as enter ed into voluntarily and intelligently . Petitioner is not entitled to relief on this issue.

3. Ineffective A ssistance of Counsel

Petitioner allege s that his tr

ial couns el rende

red inef fective assistanc e of coun sel beca use Petitioner did not have a clear understanding of the na ture and consequences of his guilty plea and the plea was unlawfully induced. Petitioner also alleges that his trial counsel provided ineffective assistance because he was acting under a conflict of intere st resulting from the repres entation

of both Pet

itioner a nd Dr. Kn

ight. Pet itioner do es not supp ort his ass ertions w ith any specific proof or citationsto author

ity. We do note, however , that “a n accused is entitle d to zealous representation by an attorney unf

ettered by a

conflicting interest.” State v. Thompson
, 768 S.W.2d 239, 245 (Tenn. 1989), cert. denied
, 497 U.S. 1031, 110 S. Ct. 3288, 1031 L. Ed. 2d 79 6 ( 19 90 ). Ine ff

ec ti ve as si st an ce of

co un se l m ay r es ul t i f c ou ns el ’s pe rf or ma nc e i s a ff

ec te d b y a conflict of interests. Strickland , 466 U.S. at 692, 104 S. Ct. at 2067. This conflict, however, must be more than just a potential conflict of interest. See Cuyler v. Sullivan , 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). “An actual conflict of inter est is usually defined in the context of one attorney re presenting two or more parties with diverg ent interests.” State v. Tate, 925 S.W.2d 548, 552 (Tenn. Crim. App. 1995). Prejudice is presumed “if the defendant demonstrates that counsel ‘actively represented conflicting interests’ a nd that ‘an actual conflict of interest adversely

affected his lawy

er’s performance.’” Strickland , 466 U.S. a t 692, 104 S. Ct. at 2067; Netters v. State, 957 S.W.2d 844, 847 (Tenn. Crim. App. 1997).

The best w e can g leam fro m the rec ord is tha t Petitione

r’s coun sel repr

esented Dr. Ceci l Knight w ho pled g uilty to 23 unspecified f

elony charg es and thr

ee misde meanor c harge s prior to Defendant’s first trial. The charg es apparently arose out of a medical malpractice cla im that involved one of the hospital’s respiratory therapists who was also the wife of an assistant district attorney. De

fendant apparently

was working at the hospital at the time the alleged inc ident occurred and had some information releva nt to the hospital’s culpability. Whether he was eve r calle d to t estify or give a de posi tion in th e matt er is n ot cle ar. At the po st-co nvict ion h earing, Defend ant alleg ed somewhat vag uely that his co

unsel mig ht not call certain witnesse s in his defense because they

would hurt Dr. Knight’s case. He does not say how this dual representation affec ted couns el’s rep

resenta tion durin g the ple a nego tiation pr ocess.
Counsel testified that the District Attorney broug ht the issue of a potential conflict of interest resulting from his r

eprese ntation of Dr. Knig ht to the tr

ial cour t prior to Pe

titioner’ s first trial, and a hear

ing washeld conc erning

the matte r. In his testimo ny, counsel s eems to su gges t that the daughter of the alleged victim of the malpractice claim might have been a potential witness for Petitioner. There is no mention of whether the y oung lady testified or not. Counsel felt that the District Attorney’ s motion was simply an attempt to remove counsel fr om Pe ti ti on er ’s ca se . C ou ns el te st if ie d t ha t t he tr ia l c ou rt de ni ed th e S ta te ’s mo ti on to di sq ua li fy, and during the hearing Petitioner waive d any potential conflict of interest and expressed the desire to retain h im as coun sel.-12-

“The right to counsel includes the qualified rig ht to the counsel of one’s choice.” State v. Parrott, 919 S.W.2d 60, 61 (Tenn. Crim. App. 1995) (citing Wheat v. United States , 486 U. S. 153, 108 S. Ct. 1962, 100 L. Ed. 2d 140, reh’g denied , 48 7 U. S. 124 3, 1 08 S . C t. 291 8, 1 01 L. Ed. 2d 949 (1988)). Counsel generally will not be disqualified absent a showing of an actual conflict rather than the potential for conflict. State v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000). A d

efenda nt who hasretaine d counsel will not be deprive d of the c ounsel of his choic e in a situatio n where

a confli ct of inte

rest is pr esent if t he defe ndant “knowingly

and intelligently affirms his choice.” Parrott , 919 S.W.2d at 61 (citing United Sta tes v. Val enzuela , 521 F. 2d 414, 416 (8 th Cir. 1975), cert. denied , 424 U.S. 916, 96 S. Ct. 1117, 47 L. Ed. 2d 321 (1976)).

Based o n our rev

iew of the record , we can

not concl ude that D efenda

nt has ca rried his burden of proving by

clear and convincing evidence that his trial counsel actively r epresented conflicting interests and that an actual conflict of inter est adversely

affected counsel’s performance. We also find that the evidence doe s not preponderate against the trial court’s finding that counsel provided effective assistanc e during the plea negotiations and plea submission hearing. Defendant is not entitled to relief on this issue.

4. Petitioner’s Supplemental Brief

After his post-conviction counsel was permitted to withdraw from his case, Petitioner filed a pro se supplemental brief in which he alleged that his post-conviction counsel pr ovided ineffective assistance of counsel beca use (1) she failed to adequately investigate Petitioner’s claim that he only pled g

uilty in response to the State’s threa t to prosecute his family; (2) she failed to include within the post-conviction petition an allegation of ineffective assistance of trial counsel based on trial counsel’s failure to properly advise Petitioner about parole eligibility ; and (3) she failed to adequately investigate the State’s claim that witnesses were not willing to testify for Petiti oner at t

he second trial. Pe

titioner a lso alleg es in his su

pplement al brief that the p ostconviction court based its findings on erroneous facts. I n support of his position, Petitioner submitted portions of the first trial’s records and numerous affidavits which he obtaine d after the conclusion of the post-conviction hearing. Petitioner asks us to remand this matter for a new evidentiary he aring so that he may present additional evidence on previously raised issues or present new grounds for relief

.
We first c onsider Pe

titioner’ s reques t that we c onsider w hat he te rms post-j udgmen

t facts to determine “exactly wha t happened in this case.” Petitioner filed a pro se motion pur suant to Rule 14(a) of the Tennessee Rules of Appellate Procedure during the pendency of his appeal. This Court took Petitioner’s motion under advisement.

Under certain limited circumstances, an appellate court may conside

r facts pertaining to a matter which arise after entry of the trial court’s judgment. See State v. Williams , 52 S.W.3d 109, 122 ( Tenn. Crim. App. 200 1). The a uthority of Rule 14

“gene rally will extend

only to those facts, capable of ready

demonstration, affecting the positions of the parties or the subject matter of the action such as mootness, bankruptcy , divorce, death, other judgments or proceedings, relief-13-

from the j udgmen

t reques ted or g

ranted in the tria

l court, a nd other s imilar mat

ters.” T enn. R. App. P. 14( a). Fa

cts which are not a ppropria te for c onsidera

tion under

Rule 14 inc lude those which are merely

cumulative, could be controverted or contested when pr esented to the trial court, and which might lead to differing opinions or c onclusions. Duncan v. Duncan, 672 S.W.2d 765, 767 (Tenn. 1984). Rule 14, therefore, “is not intended to permit a retrial in the appella te court .” Tenn. R. App. P. 14 , Advisor y Co mmission Comm

ents.

Petitioner submitted v arious a

ffidavit s with his su

pplement al brief . One gr oup repr esents statemen ts from the

witnesse s at Petitio ner’s f irst trial that they would hav e testifi ed on his be half at a second trial. Another set of affidavits contain statements fr om individuals that Petitioner worked at Charleston Hosier “for a given time” as support for the testimony of Petitioner’s former wife and daughter dur ing the first trial.

Becau se this Cour

t’s jurisd iction is a ppellate only , we do not

possess the author

ity t o conduct hearings and determine disputed issues of fa ct. See State v. Workman , 22 S.W.3d 807, 808 (Tenn. 2000); Duncan , 672 S.W.2d a t 767; Tenn . Code Ann . § 16-5-1 08. The f acts present ed throug h Petitione

r’s Rule 1 4 motion an d suppleme ntal brief did not a

rise aft er the po stconviction court’s judgment. The affidavits were merely filed post-judg

ment raising issues alread y a ddresse d by

the post- convicti on court. These iss ues go to the merit s of Petitio ner’s c ase and involv e dispute d matterssubject to differing opinio ns. Ther e is no doub t that the f

acts presented and the conclusions drawn in Petitioner’s affidavits would be ope n to contest by the State if presented to the post-conviction court. Accordingly , Petitioner’s motion to consider post-judgment facts is denied.

We turn next to Petitioner’s contention that his post-conviction counsel rendered ineffective assistance of counsel. Petitioner complains that his post-conviction counsel did not adequa tely investig ate whe

ther the State had reasona ble caus e for pr

osecutin g his fa

mily members a

nd faile d to interv

iew Petitio ner’s wi

tnesses a t the firs t trial as to their a menabilit y to testifying a

t the second trial. However, our supreme court ha s clearly he ld that there is no constitutional right to effective assistance of counsel in a post-c onviction proceeding. House v. State , 911 S.W.2d 705, 712 (Tenn. 1995), cert. denied , 51 7 U. S. 119 3, 1 16 S . C t. 168 5, 1 34 L. Ed. 2d 787 ( 1996). Al

though Pe

titioner h as a statu

tory right to counsel t o assist him

with his post-conviction petition and proceeding, there is no statutory right to effective assistance of counsel. Id. As a resu

lt, Petitioner’s cla

ims are w ithout mer

it.

Petitioner finally alleg es that the post-conviction court based its judgment on erroneous facts. E ssentiall

y, Pe titioner a sks us to re

mand this ma

tter so tha t he may relitig ate his po stconviction claims. Post-conviction proceedings are g overned by the Post-conviction Act of 1995. Ten

n. Code An

n. § 40-30 -201. The

Act spec ifically

permits the filing

on onlyone postconviction petition except for certain limited exceptions which are not applicable here. Id. -202. Petitioner was afforded the opportunity at a full and fair hearing to prese nt his evidence and cross-examine witnesses, and he is bound by the action or inaction of his post-conviction counsel. See House , 911 S.W.2d at 714; Tenn. Code Ann. § 40-30-206(h). The allegation of-14-

Petitioner in this cas e that he

should be g

ranted a new post- convicti on hearing bec ause thepostconvicti on court b ased its judgment o n errone ous fact s is without merit.

CONCLUSION

After a careful review of

the record in this matter, we affirm the judgment of the trial court.

___________________________________ THOMAS T. WOODALL , JUDGE