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

Briefs J anuary

22, 2003
JEFFREY WHITAKER v. STATE OF TENNESSEE Appeal from the Criminal Court for Roane County No. 10,920 E. Eugene Eblen, Judge

No. E2 001-0 2399- CCA-R3 -PC June 3, 2003 Aggrieved

that the lower court

denied post-conviction relief following an evidentiary hearing, the petition er, Jef

frey Whitaker, a

ppeals and claims that his convictions resulted from the ineffective assistance of counsel and involuntary guilty pleas. We af

firm the denial of post-conviction relief. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

is Affirme

d.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and N ORMA M C G EE O GLE , JJ., joined. Spence R. Bruner, Kingston, Tennessee , for the Appellant, Jeffrey Whitaker.
Michael E. Moore, So licitor Ge neral; Mark A. Fulks, Assistant Attorney General; J. Scott McCluen, District Attorney Gene

ral; and Frank Harvey , AssistantDistrict Attorney Gene ral, for the Appellee, State of Tennessee.
OPINION

After pleading guilty to multiple

counts o f rape o f a child, the conviction court imposed an effective Department of Correction sentence of 45 years. The

sentence was affirmed on appeal. See State v. Jeff Whitaker , No. 03C01-9509-CC-00256 (Tenn. Crim. App. , Knoxville, Oct. 15, 1996), perm. app. denied (Tenn. 1999). The petitioner thereafter sought post-conviction relief, and following an evidentiary hearing, the lower court denied r elief. Now on appeal, the petitioner claims that his tr

ial couns el rende

red inef fective assistanc e, which

resulted in an involuntary

guilty plea. Testimony at the evidentiary

hearing revealed

that multip le femal e children accused the petitioner of various acts of child rape and ag gravated sexual battery , resulting in a number of felony charges. The petitioner

gave th e author ities an e xtensive, in

culpator y st atement. At the post

conviction evidentiary he aring, the petitioner testified that hi s appointed trial counsel did not adequa tely acquaint him with the facts of the case, did not explain the law or theory of the-2-

prosecution, did not review his or the victims’ statements with him, and did not move to suppre ss the petition er ’s pretrial statement. In addition, he c laims that his pretrial statement was coerced because he gave the statement in exchange f or the officer’ s promi se to ge t him menta

l health assistance. He also ma

intained at the he aring t

hat, during his inc arcer

ation in t he Department of Correction, he has been diagnosed with anxiety disorder and that he now is aware that he was suffering from

anxiety when he g ave the inculpatory statement

and when he pleaded guilty . When askedhow he would hav e defended himself had he gone to trial and the victim s testifie d consiste ntly withthe ir pre trial sta

tements, e

ven if his own state

ment wer e suppre ssed, the

petitione r merely repliedthat

he would not have testified in his own behalf and that it was up to his counsel to devise a defense. Specific ally concerning the guilty

plea, the petitioner testified that he was taking an unspec ified pr es cr ip ti on me di ca ti on th at ca us ed co nf us io n a nd af

fe ct ed hi s a bi li ty t o understand wha t transpiredat the plea submission hearing. He testified that his attorney merely told him to sign the plea papers and

that he complied without reading the papers, based upon counsel’s claim that, if he went to tr ial, the ju ry would con

vict him and impose a

sentenc e of 100 y

ears.
The petitione

r testified that, af

ter the p lea was a

ccepte d, his atto

rney didnotprepare him to be inte

rvi ewed by the

presentence investigator and that, as a result, he supplied the investigator with a damaging ha nd-written statement. Concerning his pretrial statement, the petitioner claimed that he gave the statement while hampered by

an anxiety

attack a nd that the

interrog ating of

ficer tr icked him into confessing by promising to g et him treatment.

The petitioner’s father

testifie d that, when he tal

ked with the petitioner’s trial counsel approxima

tely three ye ars after the guilty plea, counsel admitted that, when he handl ed th e petitioner’s case, he was experiencing a “very he avy ca seload.”
The petitione

r’s tria l counsel testifie d that he m

et with the

petiti oner on sev eral occasions and rec eived and review ed the pe titioner’ s and the v

ictims’ pretria

l stateme nts. Counsel concluded

that the promises made by the inter rogating officer provide d no basis for suppressing the statemen t. He found no evidence of force or coe rcion and determined

that the p etitioner

was not in custody when the statement was given. Accordingly, although c ounsel knew that the petitioner claimedto have been upset and nervous when he ga ve the statement, counsel perceived no basis for a motion to suppress.

Counsel testifie d that his in vestiga tor’s att empts tointerview the minor victims were rebuffed by the victims’ families. He obtained a pretrial mentalhealth evaluation, which resulted in an opinion that the petitioner was comp etent and manifested no mental health sy mptoms that would support an insanity defe

nse. He discerned nothingin the petitioner’s behavior or demeanor to sugge st that the

petitione r was les s than fully

competent. He testified

that he would have asked-3-

the petitioner, before the plea was submitted, whether he was under the influence of anything tha

t might affect his judgment.

Alth ough the petitioner claimed that counsel should have filed a litany of pretr ial motions, including a motion to suppress the pretrial statement and a motion to seek an independent mental evaluat

ion, coun sel explained that he did not file

the motionsbecause

he saw no

bases. Concerning the latter motion, counsel testified that the petitioner had no history of mental illn

ess, and counsel perceived no manifestation of mental illness during his interaction with the petitioner. Furthermore, he saw no le gal or f actual g rounds fo r motions to

dismiss the charges and to obtain a change of venue. He knew of no legal preced ents suppo

rting mo tions to re duce the charg es, to suppressthe victims’statemen ts, and to compel a witness to

coopera te with adversary

counsel prior to trial.
Counsel was aware that, on the day of the scheduled trial, the petitioner was upset and cried. The petitioner was afraid of the jury. Never

theless, the petitioner comprehended the situation, understood the alternatives, and communicated effectively

with counsel. Counsel testified that he would have read

the plea papers to the petitioner verbatim because that was his invariable practice. He explained the plea offer and the range of punishment to the petitioner. The petitioner appeared to fully understand the ter ms, including that the judge would set the actual sentence s and determine whether they would be s erved c oncurre ntly or consecutively

. Counsel testified that he informed the petitioner that he could receive a sentence of up to 45 year s. Following the ev ident iary heari ng, the post-conviction court denied relief and found that the petitioner’s guilty plea s were voluntary and knowing, that trial counsel rendered e ffective assistance, and that i n mattersof fact ual conf lict, the cour t accredited counsel’s testimony and discredited that of the petitioner.

The post- convicti on petitio ner bears the burden of establishing, at the evidentiary hearin g, his allegations by c lear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). Evidence is clear and convincing when there is no serio

us or subst

antial doubt about t

he corr ectness of the conclusions drawn from the evidence. Hodges v . S. C. Toof & Co., 833 S.W.2d 896, 901, n. 3 (Tenn. 1992). An appellate court is bound by the trial court's findings of fact unless we conclude that the evidence in the record preponder ates against those findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

Wh en the post-conviction petitioner raises the issue of ineffective assistance o f counsel, this court must determine whether the evidence prepond erates agains tthe post-conviction court 's findings (1) that counsel's performa nce was within the range of compete nce demanded of at to rn eys in criminal cases, Baxter v . Rose , 523 S.W.2d 930, 936 (Tenn. 1975), and/or (2) that any defici ent perform ance did not prejudice the petitioner, Strickland v. Washington , 466 U.S. 668, 687-79, 1 04 S. Ct. 2052, 20 64-69, (1 984); see also Powers v. State , 942 S.W.2d 551, 557 (Tenn. Crim. App. 1996 ). Courts need not address these components in any particular order

or even a ddress-4-

bothif the petitione

r fails to meet his bu

rden with respec t to one. Henley

v. State , 960 S.W.2d 572, 580 (Tenn. 1997).

In evaluating c ounsel's performance, this court should not examine every allege dly deficient act or omission in isolation, but rather we should examine them in the context of the case
as a whole. State v. M

itchell , 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The primary c oncern of the court sho uld be the fundamental fairness of the procee ding that is being challenged. Id. Therefore, this cour

t should not

second- guess ta

ctical a nd str ategic deci sions by

defense counsel. Henley , 960 S.W.2d a

t 579. I nstead, t his court must rec onst ruct t he circ umst ances o f coun sel's challenged conduct

and evaluate the conduct from counsel' s perspective at the time. Id. ; see Irick v. State , 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998).

However, this cour

t's def erence to counse

l's tac tical decisions will d epend upon couns el's adequate investigation of defense options. Burger v. Kemp , 483 U.S. 77 6, 794, 107 S. Ct. 3114, 3126 (1987). That having been said, one court ha s observed:

Judges wisely

defer t o true tac tical cho ices – tha t is to say , to choices betweenalterna

tives that each ha ve the pot ential fo r both ben efit and l oss. We are in a poor position to judge, on the cold rec ord, th e quality of such a choice, made as it is in the fine-graine d texture and nuance of the particular proceeding. Profitt v. Waldron , 831 F.2d 1245, 1249 (5th Cir. 1987). Acco rd ingly , assuming adequa te investigation, the fact that a strategy or tactic failed

or hurt the defense does not alone support the claim of ineffective assistance of counsel. Thompson v . State , 958 S.W.2d 1 56, 165 (T enn. Crim. App. 1997 ); Jerry Whiteside Dick erson v. State , No. 03C01-9710-CR-00472, slip op. at 3 (Tenn. Crim. App., Knoxville, Sept. 16, 1998), perm. app. denied (Tenn. 1999).
In sum, a defen dant is not entitled t o perfe ct repr

esentat ion, only constituti onally adequa te representation. Denton v . State , 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, "in considering claims of ineffective assistance of counsel, ' [w]e address not what is prudent
or appropriate, but

only what is const itution ally compelled.' " Burger , 483 U.S. at 794 , 107 S. Ct. at 3126.
Even if the pe titioner e st abl ishes that counsel's performance wa s not within the requisite range of compe tence, h e must also

demonstrate a reasonable probability that the result of the proceeding would have been diff erent but for

the defective performance of counsel. Henley , 960 S.W.2d at 580.

In cases involving a guilty plea or plea of nolo contendere , the petitioner mus tshow prejudice by demonstrating that, but for counsel's errors, he would not have pleaded guilty butwould have insisted upon going to trial. See Hill v. Lockhar t , 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).-5- In determining whether a plea of g uilty was voluntarily , under standing ly, and intellig ently

entere d, this cou

rt, like th e trial c ourt, must

consider all of the relevant circumstances that existed at the entry of the plea

. State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). A reviewing cour

t may lo ok to any

releva nt evidence in the

record to deter mine the v oluntarin

ess of the plea. Id. Rule 11 of the Tennessee Rules of Criminal Procedure and our supreme court 's decisions in State v. Mackey , 553 S.W.2d 337 (Tenn. 1977), and State v. McClintock , 732 S.W.2d 268 (Tenn. 1987), control the guilty plea process in Tennessee. Trial judges are required to adhe re substantia lly to the procedure prescribed in the rule. A submission hearing transcr ipt must est

ablish
on its face th at the trial court substantially complied with the re quirements of Rule 11 and the teachings of Mackey

and McClintock

. State v. Turner , 919 S.W.2d at 352.
Without belaboring each and ever y issue, we hold that the record supports t

he postconviction court’s determinations that trial couns el rend ered effective assistance a nd that the petitioner’s guilty

pleas we re ente red volun tarily and knowingly

. Although the record establishes that counsel filed no pretria

l motions, it is devoid of any proof that the a bsence of pretrial motions de no te s d ef

ic ie nt pe rfor ma nc e o f c ou ns el or th at th e p et it io ne r w as pr ej ud ic ed th er eb y. S im il ar ly, the petitione

r failed to establi sh the othe

r specif ic clai ms of ineffective assistance, including the claim that counsel deficiently

advised the petitioner about his pre-plea options. The lower court, as
was its prero gative , decline d to accr edit the p etitioner ’s claim that his guilty pleas we

re the product of confusion, deficient mental capacity , or coercion, and we defer to that c ourt’s determination.

Consequently, we af

firm the denial of post-conviction relief.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE