# FILED
July 25, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT JACKSON JUNE 1996 SES SION

VICTOR THOMPSON, ) ) Appellant, ) No. 02C01-9509- CR-00265

) ) Shelby Count

y v. ) ) Honorable John P. Colton, Jr ., Judge ) STATE OF TENNESSEE, ) (Post-Conv iction) ) Appellee. ) For the Appell ant : For the Appell ee : Paula Skahan Charles W. Burson 140 North Third Street Attorney Gen eral of Tennessee Memphis, TN 38103 and Sarah M. Branch Assistant Att orney Gener al of Tennessee 450 James Roberts on Parkway Nashvil le, TN 37243-0493 John W . Pierotti, Jr. Distric t Attorney General and Lorraine Craig Assistant D istrict A

ttorney Gener

al 201 Poplar Avenue Memphis, TN 38103

OPINION FILE D:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N The petitioner, Victor Th ompson, appea ls as of right from the denial of his petition for post-conviction relief by the Shelby County Criminal Court. He is presently in the custody

of the Department of Cor rection ser ving an effective sentence of fifty years for hi s 1992 convi ctions upon g uilty pl eas for second deg ree murder and aggravated assault. The petitioner conte nds that he received the inef fective assistance of counsel resul ting in hi s pleas not bei ng entered know ingly and voluntar ily. H e argues that had his tr ial counsel informed him that voluntary i ntoxicati on can negate the specific intent

for a crime or

that a convi ction of volun tary mansl aughter w as possible, he would have insisted on going to t rial rather than entering his guil ty pleas. The petitioner also argues that his trial counsel did no t develop a defense strate gy because she failed to investigate the facts of the case adeq uately, in cluding the petitioner’s prior t r e a t m e n t fo r

i n t o x i c a t i o n a n d h i s l e v e l o f i n t o x i c a t i o n o n t h e n i g h t o f t h e o ff e n s e . We affir m the tri al c ourt ’s d enia l of reli ef.

The record reflects that the petitioner was originally charged with first degree premedi tated and deliber ate murder and ag gravated assault, but pl ed guilty on the day of tri al to the offenses of second degree murder and aggrav

ated assault for agreed Rang e III sentences of fifty and ten yea rs, respect ively , to be served concurrently . At the post- convicti on evidentia ry heari ng, the petiti oner testified th at he was represented at tria l by two court-appoin ted attorneys and that his co unsel advi sed him against h aving a preliminary hearing. He stated that hi s counsel as well as investig ators vi sited him w hile in jai l, but he asser ted that they did not come v ery many times and wou ld only s tay about thi rty minutes . He testified that he saw counsel at app roxim atel y six cou rt ap pea ranc es an d tha t cou nsel talke d to h im ap proxi mat ely fi ve to ten minutes and i nformed him of motions filed on his behalf. The peti tioner said t hat he told his co unsel about potenti al witnes ses and admitted th at counsel int erview ed the witnesses

and discussed with him t heir statements. He claimed t hat counsel never3

discussed a defense, including self-defense, w ith him or tol d him that a pers on acting under adequate pr

ovocation i s not guil ty of first deg ree premeditated and deliberate murder.
The petitioner also testif ied that his counsel asked him ab out his background and that he told them about his drug and alcohol abuse and that he had gone through drug and alcohol rehabilitation a lot of his life. He stated that he also informed counsel that he had been using drugs and dr inking w ine all day when the off ense occu rred . He sa id th at he told coun sel th at he had u sed a ppro ximat ely a quarter of an ounc e of cocaine intr avenously

and drank a few

gallons of w ine. The petitioner recalled signing a release form f or his counsel to obtain info rmation from his medical recor

ds regardi ng treatment for drug and alc ohol addiction, but he could not remember wheth er counsel ever obtained the r ecords. Acc ording to t he petitioner, he could not remember

every thing that oc curred on the ni ght of the offense, but he tho ught he shot a person in the leg a nd ran away because he w as being beaten by someone.
Regarding counsel’s neg otiations for a p lea agreement, the petitioner stated that his counsel informed hi m about an offer of forty years made by t he state approximatel y two months before trial . He said that he rejected t he offer because he wanted to go to trial. The petitioner testif ied that he did not see his coun sel again until the day of tri al and that his counsel advi sed him of the state’ s offer of fifty year s and told him that he should acce pt the plea because the judge did not like “black-on-black crime” and because he would probab ly receive the death penalty or life imprisonment if convicted. He claimed t hat he wanted t o go to tri al instead of pleadi ng guilt y and being sentenced to fifty years but s aid that he entered the guilt y pleas bec ause he did not believe that

his counsel was ready for trial. He asserted t hat his counsel did not discuss lesser included off enses, including second degree murde r and voluntary manslaughter. He testified th at his counsel did not show him the state’s

notice of intent4

to seek the death pe nalty, did not inform him that enhanced punishment as a persistent offender was being sought, and di d not explai n the meaning of Rang e III when t elling him about the state’s of fer. He also said that counsel told him that he would probably serve twelve y ears of his fifty -year se ntence before being eligibl e for release. He stated that he woul d have insi sted on going to trial i f he had not been misled by his att orneys.

On cross-ex

amination, the peti tioner conceded that his counsel informed him that he could receive consecutive sente nces if convicted. He stated that his counsel did not show him any records sheobtained or di scuss his medi cal records with him. He admitted that counsel fil ed several motions on his behalf and that she discussed a c ase that was similar t o the facts of his cas e. The petitioner also admitted that he told the t rial court several times that he wanted to plead g uilty at the guilty plea hearing, but he claimed that he did not understand the co nsequences of his plea. He
conc ede d tha t the trial cour t inf orme d him that he wou ld be requi red t o ser ve fo rty-f ive percent of the f ifty-year sentence and that he was waiving several rights by entering his guilty plea. The petitioner testified th at he had earlier entered guilty pleas to at least three offen ses.

The petitioner’s

counsel testi fied that she filed and argued several motions on behalf of the peti tioner, incl uding a motion for discover y. She stat ed that she met and discus sed with t he petitioner t he charges ag ainst him and tol d him that the state was seeking the death penalty. The petitioner’ s counsel sai d that an inv estigator and social worker also intervi ewed wi tnesses prov ided by the pe titioner and at tempted to interv iew the st ate’s wi tnesses, althoug h some would not talk to the investig ator. She said that she told the petition er what they learned from the interviews and their investig ation. The petiti oner’s counsel expressed the opinion that t he state had a g ood case against the petitioner becau se several people, including the victim’s family members, were eyewi tnesses to the c rimes. She tes tified that she di scussed w ith the5

petitioner that his def ense at trial would be one of self -defense. She said th at she did not believe the defense was a strong one but that she viewed it as the only defense available to the petitioner . The petitioner ’s counsel s tated that she obtai ned the petitioner’s medical records af ter the petitioner told her abou t his substance abuse problems and that he was dri nking and tak ing a lot of dr ugs on the day of the offense. She s aid that

she exp lai ned t o thepeti tion er t hat s ubst anceabus e isnot i tsel f a defense but rather i s a mitigat or that wou ld be relevant at the penalty portion of the tr ial. She stated that shecould not remember whether s he told the petit ioner that she had received his medical r

ecords.
The petitioner’s

counsel testi fied that she vi sited the petit ioner approximatel y six

or seven t imes in the jai l and that co-counsel vis ited the petiti oner also. She stat ed that she spoke to the petitioner during cou rt appearances as well. She said that sheinformed the petiti oner that the state had revoked its orig inal offer of forty year

s after the petiti oner rejected it, but that sheattempted to reneg otiate the offer on the day of tri al after the petit ioner told her that he did not w

ant to go to tr ial. The petitioner’s

counsel said that the offer of forty years was no longer av ailable and that the assistant attorney g eneral woul d only ag ree to a fifty- year sentenc e if the petitioner entered a gui lty plea t hat day. She s aid that she tol d the petitioner about the fifty-year offer and that he stated th at he wanted t o plead guil ty. She deni ed threatening or forcing the petitioner to plead guilty. Regarding the length of the petitioner’s sentence pursuant to the g uilty pl ea, the petitioner ’s counsel s aid that she ex plained the sentencing r

anges to the pet itioner and i nformed him that he would receive a fifty-y ear sentence. She tes tified that she was prepared on t he day of trial and that she had subpoenaed wit nesses.

On cross-ex

amination, tri al counsel tes tified that she bel ieved that t he petitioner was probably intoxic ated at the time of the o ffense. She said that s he had6

considered that

voluntary

intoxic ation can be used to negate a spec ific intent, but that she determined that

it was not a viabl e strategy after talking to the petition er and intervi ewing w itnesses. C ounsel said that the petitioner

told her that he was tr

ying to collect money

from the vict ims for the drug s he had earli er sold them w hen they refused to pay him. According to the petitioner ’s counsel, the petitioner stated to her that the victims hit him, chased him down the s treet and threw rocks and st icks at him. She stated that the peti tioner told her that he ran away, obtained a gun, retur ned after about five to ten minut es and shot one of the v ictims. The peti tioner’s co unsel stated that she recalled di scussing the effect of the petitioner ’s volunt ary intox ication w ith co-counse l but that she coul d not remember w hether she disc ussed it w ith the petiti oner. Regarding the petitioner’s claim that she did no t explain the possibility of a voluntary manslaughter conviction, counsel stated that she show ed the petitioner a case wi th similar facts

that dealt w ith adequate pr ovocation for the offense and told him that she did not believe that the facts suppo rted a vol untary mansl aughter conv iction.

At the guil ty plea hear ing on November 2, 1992, the s tate asserted t hat the proof at trial would have shown that on August 25, 199 0, the petitioner was seen chasing the victims in a neighbor hood and firing shots at them as hecame around a corner. A bullet hit one of the victims in the head, killing him. Several witnesses, including three police officers, saw the petitioner

shooting hi s gun at the v ictims. The record reflec

ts that the tri al court infor med the petitioner of his rig hts, includi ng the rig ht to a jury trial, the right to confront and cross-examine witnesses, and th e right against self-in crimina tion. It also sho ws that the trial cour t explaine d to the petitio ner the range of punishmen t for the off enses and that as a Range III, pe rsistent offend er, he would have to ser

ve a hig her percentag e of his sentence before being eli gible for release.
At the guil ty plea hear ing, the peti tioner stated t hat he had not been threatened or forc ed to enter the pl eas and that he was freely and voluntari ly enteri ng7

his pleas. The p etitioner al so said that hi s counsel had full y discus sed his case a nd legal opti ons with h im and that he was satisfied w ith their representation. The petitioner asserted that he believed that th e guilty pleas were in his best interest. The trial court accepted the petition er’s pleas, finding that the pet itioner was knowingly and voluntarily entering hi s guilty

pleas.
In denying the petitioner post-conv iction rel ief, the trial court entered an eight-page order reflecting its findings of f act and conclusions of law. The trial cou rt held that the peti tioner recei ved the effective assistance o f counsel and that hi s guilty pleas were knowing ly and voluntarily entered. Speci fically, t he trial cour t found that counsel met w ith the petiti oner in jail at least si x times, ex plained the charges to the petitioner, and informed him that hi s substance abus e was not a defense to murder but was a miti gator. The cour t also held that

counsel w as prepared for t rial in that she intervi ewed wi tnesses, rev iewed the pet itioner’s medical recor ds, considere d the petitioner’s prior drug abuse and prior convictions, evaluated th e strength of the state’s case, researched case law and filed sev eral pretri al motions. With respect to the petitioner’s

claim that he di d not knowi ngly and voluntari ly enter his guil ty pleas, the trial court concluded that the petitioner’s guilty pleas were constitutionally valid under Boykin v. Al abama , 395 U.S. 238, 895S. Ct. 1709 ( 1969), and State v. M ackey , 553 S.W.2d 337 (Tenn. 1977 ). It determined that the record ref lected that the petitione r knowingly and voluntar ily entered his guil ty pleas bas ed on his desir e to avoid a trial and the possibilit y of a death sentenc e if convict ed. See Parham v. Stat e , 885 S.W.2d 375 (Tenn. Crim. Ap p. 1994); Bratton v. State , 477 S.W .2d 754 (Tenn. Crim. App . 1972).

On appea l, thepetit ioner chall engeshis c onvi ction s based upon cl aims that he receiv

ed ineffective ass istance of counsel that caused him t o enter unknow ing and involu ntar y guilt y plea s. Und er th e Sixt h Ame ndm ent, when a claim of in eff ecti ve assistance of coun sel is made, th e burden is upon the petitioner to show ( 1) that8

counse l's p erforma nce w as defic ient an d (2) that th e defici ency was preju dicia l in t erms of rendering a reasonable proba bility that the result of the trial was unreliabl e or the proceedings

fundamentally unfair

. Strickland v. Washington , 466 U.S. 668, 687 , 104 S. Ct. 2052, 2064 (1 984); see Lockhart v. Fretwell , 506 U.S. 364, 368 -72, 113 S. Ct. 838, 842-44 (1993). The Strickland standard has been applied, as well, to the r ight to counsel under Ar

ticle I, Sec

tion 9 of the Tennessee C onstitution. State v. M elson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W .2d 930, 936 (Tenn . 1975), our supreme court decided that attor neys should be held to the g eneral standar d of whether the service s rendered w ere withi n the range of compet ence demanded of attorney s in crimi nal cases. Furt her, the court stated that the r

ange of competence was to be measured by the duties and cr iteria 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. C ir. 1973). Also, in revi ewing c ounsel's conduc t, a "fair asses sment of attorney performance requ ires that every effort be made to eliminate the distorting eff ects of hindsight, to reconstruct the circumstan ces of counsel's challenged conduct, and to ev aluate the conduct

from counsel's per

spective at the time." Strickland v. Washington , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v . State , 629 S.W .2d 4, 9 (Tenn. 1982 ) (counsel's conduct will not be measured by "20-20 hindsight"). Thus, the fa ct that a particular strategy or tactic fai led o r even hurt the d efe nse d oes n ot, a lone , sup port a clai m of inef fec tive assistance. Deference is made t o trial str ategy or tactical c hoices if they are informed ones based upon adeq uate preparation

. See Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201.

Also, we note that the approach to the issue of the inef fective assistance of counsel does not have to start with an analysis of an attorney's conduct. If preju dice1 For post- convi cti on peti ti ons fi led af ter May 10, 1995, pe ti ti oners have the bur den of proving factual allegati ons by clear and co nvincing evidence. T.C.A. § 40 -30-210(f). 9 is not show n, we need not seek to determin e the vali dity of the al legations ab out deficient performance. Strickland v. Washington , 466 U.S. at 697, 104 S. Ct. at 20 69.

The burden was on the petitioner in the trial court to prov e his alleg ations that would e ntitle him to r elief by a preponderance of the ev idence. 1 Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). On appeal, we are bound by the tri al court’s findings unless we conclude that the evidence preponderates against tho se findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App . 1990). The petit ioner has the burden of il lustrating how the ev idence preponderates against the judgment entered. Id

.

In this respect, the petitioner f ails to show how the trial court’s findings are incorrect. Moreover , we concl ude that the evi dence of record does not preponderate against the t rial court ’s findings and that the law we haveprevious ly cited supports its conclusions. In consider ation of the foregoi ng and the rec ord as a w hole, the judg ment of the trial cour

t is affirmed.

Joseph M. Tipton, Judge

CONCUR:

David H. Welles, Judge

Jerry L. Smith, Judge