1 For a detai led dis cussi on of th e fact s and cir cumstanc es of t he off enses, see State v. William R. Stevens , No. M1 999-020 67-CCA -R3-DD , 2001 W L 5790 54 (Tenn. Crim. Ap p., Nashville, May 30 , 2001). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs N ovembe

r 28, 2001
STATE OF TENN ESSEE v. CORY M ILLIKEN Appeal from the Criminal Court for Davidson County No. 98-A-825 Steve Dozier, Judge

No. M2001-00344-CCA-R3-PC - Filed December 7, 2001

The Defendant, Corey

L. Milliken, pled guilty

to two counts of

first degree premeditated murder and one coun t of

ag gr av at ed ro bb er y. 1 His agreed sentence wa s two concurrent life sentences for the murders and a consecutive twelve y ear term for the agg

ravated robbery, f

or an effective sentence of life plus twelve year s. The Def endant ti mely

filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel and that his guilty plea w as not entered knowingly and vo lu nt ar il y. After a hearing the trial cour t denied relief and the Defendant appe al ed as o f righ t. Finding no error

in the trial court’s ruling on the Defendant’s petition, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D AV ID H. W ELLES , J., delivered the o pi nion of the court, in which J ERRY L. S MITH and N ORMA M C G EE O GLE , JJ., joined. Dwight E. Scott, Nashville, Tennessee, for the appellant, Cory Milliken.
Paul G. Summers, Attorney Gene ral and Reporter; Kim R. Helper, Assistant Attorney Gene ral ; Victor S. Johnson, Di str ict Attorn ey Gene ral; and Tom Thurman, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION

At the hear ing on the

petition f

or post-c onviction

relief, the Defe

ndant’s t rial cou nse l, AssistantPublic Defender Ross Alderman, testified that he repre sented the Defendant on the charge s brought against him from the evening after h is arres tthrough the Defendant’s guilty plea. Assisting-2-

Mr. Alderma

n on the ca se were

Public Defender Karl Dean and Assistant Public Defender Wendy Tucker. Mr. Alderman explained that he and Mr. Dean and Ms. Tucker each spent “a significant amount of time” working on the Defendant’s ca se. He testified that he went over the State’s c ase withthe Defendant which included some phy sical evidence and two videotaped confessions by the Defend ant. Mr. Alderman and his team evaluated these confe ssions and they were unable to develop a “significant basis” on which to move for their suppre ssion.
Mr. Alderman explained that he discussed the case with t he Defendan t and the Defendant alternated betwee n wanting to plead g

uilty and want ing to g o to trial. Mr. Alderman stated that the Defendant

sometimes maintained his innocence, and other times did not. The Defe ndant als o told Mr. Alderman that

he had con fessed t

o the cri mes beca

use he wa s afraid

of his co- defenda

nt, claiming that his co-defendant had actually committed the murders, and that the D efe ndant was afraid he would k

ill the Defendant ’s family if the Defendant did not confess. On another occa sion, Mr. Alderman testified, the Defendant “was insisting on . . . pleading guilty immediately and

taking a large r sentence than w

hat the St ate was, at that time, suggesting they might offer.” The Defendant’s anxiousnes s to plead in this even

t was alle gedly

based, in part, on his desire to get out of the county jail.
Mr. Alderman knew that his client was learning disabled and “ha d a hard t ime reading.” Mr. Alderman also testi fied tha t he was “ certain

there [we

re] psy cholog ical issue s t ha t needed to be explored,” and made arrangements to have the D efend ant evaluated by a psychologist. The psy cholog ist

suggested

that the De fendan t migh t have suffer ed som e neuro -psychol ogical damage or some organic damage. A ccordingly , Mr. Alderman arranged to have two diffe ren t brain scans performed

on the Defendant. In spite of these efforts, Mr. Alderman testified that he was “ not able to find any experts, specific ally, who would g ive us any information that would

support a n insanity defense.” Mr. Alderman further testified that he “ couldn’t really articula te a dimini shed cap acity [defe nse], given the [murder for hire] nature of the offe nse.” Accord

in gly, Mr. A

lderman determined that neither of those avenues of defending his client was available. Mr. A lderman testifie d that, given the proof in the case, “the defenses we re really going to have to be either, he wa sn’t there and didn’tdo it

or he s houldn’t be held responsible, even though he did do it.” However , the alibi evidence was weak and other e vidence corroborated the Defe ndant’s confessions.
Mr. Alderman testified

that the Defendant

was “imma

ture” a nd that he appear ed at time s to notbe “focusing on

the seriousness of some of the issues.” At these times, Mr. Alderman explained, he would have to take time expl aining t he seriousness of

the matte r to his cli ent. He w as able t o have coherent conversations with the Defendant, howe ver. When the Defendant appeared not t o understandsomething , Mr. Alde rman would try

to explain

it to him. Mr. Alderman’s assessment of the case was that the Defendant “would be convicted of f irst degree murder,” and he informed his client of that conclusion. Mr. Alderman was also concerned that the D efendant might be a candid ate for th e d ea th pe na lt y, or would receive consecutive sentence s if he went to trial and was convicted.-3-

Mr. Alderman testified that he went over the petition to enter a plea o f gu ilty with the Defend ant, and that

the Defendant signed the petition in his presence. Mr. Alde rman also testified that he felt that the Defendant understood what he wa s doing when he entered his guilty plea.
The Defendant testified

and stated that Mr. Alderman never discussed the State’s evidence withhim and that h

e did not understan d what the State’s e vidence agains thim was. He stated that his confessions to the police were false, made in fear of his co-defendant. He explained that he knew that his co-defendant killed two people and that he was afr aid that if he didn’t

“draw the heat away from” his co-defendant, that his co-de fe ndant would kill his family. He testified that he told Mr. Alderman that he didn’t kill the victims and that he had co nfes se d f al se ly. He also admitted telling Mr. Alder man that his statements to the police were true, in order, he claimed, “ to get out of that county jail.”
The Defend ant testif

ied that Mr . Alderma

n never d iscussed a diminishe d capac ity d

efense withhim. He admitted telling Mr. Alderman both that he wanted to go to trial, and that he wanted to plead guilty. O n the day he ple d, he testified, Mr. A lderman tol d him he wou ld be r eceivi ng a sentence of on e hundred two y ears. He stated that he did not know any differently until seve

ral months before

the post- convicti on hearing. He a dmitted tha

t Mr. Alde

rman wen

t o v er the plea agreement

withhim and tri ed to expla in it to him, b ut stated t

hat “at th e time, I really wasn’t there.” He explained

that Mr. A

lderman “was tal king, bu t I wa sn’t hea

ring.” He testif

ie d tha t he didn’t understandwhat Mr. Alderman told him about the plea, but that he didn’t explain h is confu sion because he was “ real ne rvous” a round his lawyer a

nd didn’t want Mr. Alderman to think that he was stupid. He furth

er testif ied th at he was too confused and frightene d to explain his lack of understanding to the trial court during his plea hea ring.
The Defendant testified that all of his schooling had been in spec ial education schools. Prior to the hearing on his post-conviction petitio n, the Defendant earned a GED degree, making “the lowest score in the whole camp.”
On cross-examination the Defendant admitted that he had perjured himself during his plea hearing when he told the court that he understood his plea. He also st

ated, in r esponse t o a question by the trial court at the post-conviction hearing, t hat h e had filed his petition on the advice of someone he spoke with in prison to “try to g et a new trial, [so he] could beat [his] charges.”
After taking the Defendant’s petition under advisement, the tria l court issued a comprehensive order deny ing relief. Specifically , the trial court foundthat the D efenda nt “failed to show by clear and convincing evidence that counsel was not functioning as guarantee d by the fede ral and state constitutions.” The trial court accre dited M r. Alderman’s testimony a nd found the Defendant’s claim of

ineffective assistance of counsel to be “without merit.” The trial court furthe r found the Defendant’s testimony in support of his claim that he did not knowingly a nd voluntar

ily enter his guilty pleas “not

credible,” finding instead that “the majority of the pe

titioner’s testimony indicates that he did understand the nature of his case and the a lternatives from wh i ch he could choose.”-4-

The Defend ant now c ontends th at th e trial c ourt erred in deny ing him relief. To sustain a petition for post-conviction relief, a defendant must prove his or her factual alleg ations by clear and convincing evidence at an evidentiary hearing. Tenn. Cod

e Ann. § 40 -30-210(f); Momon v. Sta te , 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not reweigh or reevalua te the evidence below; all qu estions concerning the credibility of witnesses, the weight and value to be given their testimony, and the fac tual issues raised by the e vidence are to be resol ved b y the trial judge, not the appellate courts. Momon , 18 S.W.3d a t 156; Henley

v. State , 960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-conviction relief are affor ded the weight of a

jury verdict a

nd are conclusi ve on app eal unle ss the evi dence p reponde rates a gainst those findings. Momon , 18 S.W.3d a t 156; Henley , 960 S.W.2d at 578-79.
The Defendant asserts first that the trial court erre d in finding that he received the effective assistance of counsel at trial. Both the Sixth Am e ndment to the United States Constitution and Article I, § 9 of the Tennes see Constitution guarantee a defendant the r ight to representation by counsel. See State v. Burns , 6 S.W.3d 453, 461 (Ten n. 1999); Baxter

v. Rose , 523 S.W.2d 930, 936 (Tenn. 1 975). Thi s right to counsel includes the right to effective counsel. See Burns , 6 S.W.3d at 461; Baxter , 523 S.W.2d a t 936; Strickland v. Washington , 466 U.S. 668, 686 (1984).
To determ ine whether counsel provided effective a ssistance at trial, the court must deci d e whether counsel’s performance was within the rang e of competence demanded of attorn ey s in criminal cases. Baxter , 523 S.W.2d a t 936; Hicks v. St

ate , 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). To succeed on a c laim that his or her

counsel was ineffective at trial, a defe ndant bears the burden of showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed under the Sixth Amendment and that the deficie nt representation prejudiced the defendant resulting in a failure to produce a re liable result. Strickland , 466 U.S. a t 687 ; Burns , 6 S.W.3d at 461; Hick s , 983 S.W.2d at 245. To satisfy the second pr ong, the defendant must show a reasona ble proba bility that, but f

or counse l’s unre asonable

error, the fact finder would have had reasona ble doubt regarding the defe ndant’s guilt. See Stricklan d , 466 U.S. a t 694-95. T

his reasona ble probability must be

“suffic ient to und

ermine c onfidenc e in the outcome.” Id. at 694; see also Harris v . State , 875 S.W.2d 662, 665 (Tenn. 1 994); Owens v. State , 13 S.W.3d 742, 750 (Tenn. Crim. App. 1999).
This two part standard of m easurin g ineff

ective a ssistance

of counse

l also app lies to cla

ims arising out of the plea

process. Hill v. Lockhart , 474 U.S. 52, 57 (1985). The prejudice requirement is modified so that the defendant “must show that there is a reasona ble proba bility that, but for counsel’ s error s, he would not have pl eaded g uilty and would

have insi sted on g oing to trial.” Id. at 59; see also Hicks , 983 S.W.2d at 246.
When reviewing trial counsel’s actions, this Court should not use the benefit of hindsig

ht to second- guess trial strategy and criticize counsel’s tac tics

. See Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982); Owens , 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they were made in light of all facts and circumstances. See Strickland , 466 U.S. a t 690; Hicks , 983 S.W.2d at 246.-5-

The trial court found that the Defendant had bee n represented

by three e

xperienced and

competent attorney s who spent a signific ant amoun

t o f time on his case. The [Defendant] was evaluated by medical

professionals. Counsel explored and examined all possible defenses and suppression issues. After a careful review of the evidence, counsel in his professional judgment determined that the petitioner hadlittle cha nce of a n acquitt al if his c ase wen

t to trial.

. . . The record shows that the State had an overwhe lming ca se aga

inst the [Defendant], including confessions to law enforcement office rs. Therefore, the Court finds the cl aim of ineffective assistance of counsel t o be without merit. Upon our review of thetranscripts of the guilty plea

and post-conviction hearings, we ag ree that the proof indicates that the Defendant received e xcellent representationprior to a nd in conju

nction wit h his plea, and this iss ue is ther efore without mer

it.
The Defendant also contends that the tri al court erred in finding that his guilty plea was entered knowingly a

nd voluntarily. Aga

in, the proof supports the trial court’s determination that the Defend ant pled g

uilty knowing ly a

nd volunta

rily , and this i ssue is the

refore also without merit. The judgment of the trial court is affirmed.

___________________________________ DAVID H. WEL

LES, JUDGE