### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Februar y 26, 2 002 Session

JERRY BRITT v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Ham blen County No. 97-CR-213 James Edward Beckner, Judge

No. E2001-00864-CCA-R3-PC September 26, 2002

The Petit ione r waschar

ged with o ne count of

agg rava ted se xu al bat tery; five c ounts of rape of a child; two count s of posses sion with in tent to sell or de

liver a c ontrolled

substanc e; and six c ounts of the delivery of

a controlled substance. The Petitioner subsequently pled g uilty to two counts of possession with intent to sell or deliver a controlled substance and to six counts of the delivery of

a controlled substance. He also entered an Alford plea tothree counts of attempted rape of a child. Pursuant to his plea agreement , the t rial court sentenced the Petitioner to an effective sentence of forty-eig htye ars. The

Petitioner

subseque ntly filed a timely

petition for post-conviction relief which

was heard and denied

by the trial

court. In this post-conviction appeal, the Petitioner conte nds that he received ineffective assistance of counsel when he entered his pleas; that his counsel’s deficient performance

render ed his gu ilty pleas unk

nowing a nd in volunta

ry; and that he should be g ranted post-con viction relief b ecause of newly discover ed evide nce. Conc luding th at th e Petitioner receive d adequa te representation when he entered his plea; that his plea s we re en te re d k no wi ng ly, vo lu nt ar il y, and intelligently; and that the Petitioner

is not entit

led to post-convic tion relie f on the ba sis of new ly discovered evidence, we aff irm the judgment of the trial court.

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

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which J ERRY L. S MITH and J AMES C URWOOD W ITT , J R ., JJ., joined.

P. Richar d Talley and S. Dou glas Dr

innon, Da ndridge , Tennes see, for

the appe llant, Jerr y B ritt.

Paul G. Summers, Attorney Gene ral and Reporter; Elizabeth B. Mar ne y, Assis tant Attor

ney Genera l; C. Berkeley

Bell, Jr., District Attorney Gen eral; and Christoph er Scruggs, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION

I. PRO CEDURAL

HIST ORY-2-

On July 1 , 1996, the

Hamblen C ounty

Grand Jury char

ged the Petitioner, Jerry

Elmer Britt, in an eight count presentment with one count of aggravated se

xual battery; five counts of ra pe of a child; one count of

possession with intent to sell or deliver a Schedule II

controlled substance; and

one count of possession with intent to sell or deliver a Schedule IV c ontrolled substance. On the

samedate, the Hamblen County Gr and Jury also charg ed the Petitioner in a separ ate presentment with six counts of the delivery of a Schedule I I controlled substance.

On Novembe

r 19, 1996 , pursuan

t to a plea agreement, the Petitioner pleade d guilty to one count of possession with intent to sell a Schedule II controlled substance and to one count of poss ess ion with inten

t to sell or

deliver a Schedule IV

controlled substanc e. The Pe titioner a lso entered an Alford

plea to th ree cou nts of attemptedrape of a child. See gener ally North Carolina v. Alford
, 400 U.S. 25 (1970). Additionall y, t he Petition

er plea ded gui l ty

to the six c ounts of the deliver y of a Schedule II

controlled substanc e that we re the su bject of a separ ate pre sentment.

Pursuant to the Petit

ioner’s plea ag

reemen t, the trial court sente nced t he Pet itio ner as a Range I, standard offender to twelve years inc arceration for

each conviction for attempted rape of a child; to six years incarce

ration for possession with intent to sell a Schedule II controlled substance; to four yearsincarc eration

for posse ssion with i ntent tosell or deliver a Schedule IV controlled substance ; and t o six y ears inc arcer ation for each co nviction f

or the de livery of a Sche dule I

I co ntroll e d substance. The court ordered that the three sentenc es for atte mpted ra pe of a child run c oncurre ntly witheach other, and concurrently with the sentenc es for po ssession w ith intent t o sell a Sch edu le II controlled substance and for possession with intent to sell or deliver a Schedule I V controlled substance. The cour

t ordere d that e ach of

th e si x s ent enc es f or t he d eli ver y of a Sch edu le II controlled substance run consecutively to each other and consecutively to the effective sentence of twelve ye ars for

the thre e attempt

ed rape of a chil d convictions and the other drug convictions. The Petitioner thus received concurrent effective sentences of twelve yea

rs followed by six consecutive sentenc es of six y

ears ea ch, for a total eff ective s entence

of forty -eight ye ars.
The following events then took place, as summarized by this Court in a prior opinion: On August 26, 1997, petitioner filed a pro se petition for po st-conviction relief. On Augu st 28 the Di str ict Public Defender was appointed to represent the appella nt. The matter w as set fo

r heari ng Nove

mber 14. T

he affi davit

of Edward H. Mo od y, assistant public defender, reflects that by letter dated October 27, 1997, appellant requested an

enlargement of time, or, if necessary , the right to dismiss and refile his petition. By order da

ted November 5, 1997, the court dismissed the petition with out p rejud ice to a tim ely refil ing. On November 1 0, 1997, pe titioner f iled a ne w pro se p etition for postconviction relief. On February 9, 1998, the trial court

entered an order

appointing the Distr ict Public D efende

r to repr esent the defenda nt. On March 5, 1998, de

fendant wrote a letter to h

is counsel purport

ing to disch arge him from f

urther r eprese ntation. O n March 2 0, 1998, th e trial c our t relieved the District Public Defende r from further representation. By order dated March 3 0, 1998, reflecting a hearing date of March 27, the court dismissed t h e-3-

petition without appointing alternate counsel and without conducting a he aring. The order reflec ts, howev er, that the court did consider the petition for post-conviction relief, the answer of the State, and the transcr ipt of the guilty plea

hearing of November 19, 1996. Jerry E. Britt v . State , No. 03C01-98 06- CR-00208, 1999 Tenn. Crim. App. LEXI S 567, at **2-4 (Tenn. Crim. App., Knoxville, June 4, 1999) (ci tation omitted). The Petitioner appealed the dismissal of his petition for post-convict io n relief, and on appeal, this Court concluded that the Petitioner “should have new counsel appointed and should be given an evidentiary hearing.” Id. at *7. This Court therefore reversed the judg ment of the trial court and remanded the case to the trial court for further proceeding s. See id.

Pursuant to the order of

this Court, the trial court conducted an evidentiary hearing on March 16, 2001. At the conclusion of the hearing, the trial court ag ain denie d post-co nviction r elief. I t is from this denial of relief that the Petition e r now appeals. He presents three ar guments for our review: The Petitioner first argues that he was denied his right to effective assistanc e of counsel at his guilty plea pr

oceeding s. He nex t argues that his ineffective repre sentation rendered his plea involuntary

an d unknow ing. Fi nally , the Petiti oner con tends tha t he is enti

tled to re lief fro m his guilty pleas on the basis of newly discove red evidence. Having re

viewed the record in this case, we affirm t he judg ment of the

trial cou rt.

II . EVIDENCE PRESENTED AT THE POST-CONVI CTION HEARI

NG

The following evidence

was presented at the evidentiary hearing on the Petitioner’s petition for post-conviction relief. The Petitioner’s attorney testified that

at the time of the hearing, he was serving as County

Executive

of Hawkins County , but t hat priorto his service in this capacity , he practiced criminal defense and per sonal injury law for f orty-one y

ears. He also stated that he was employed as a D istrict Attorney Gene ral for seventeen y

ears.

Counse l testi fied that he had lost his file concerning the Petitioner’s ca se and that he believedthat the Petitioner’s case had been dismissed. He there

fore te stified so lely

from his memory of the case. Counsel reported that he was retaine d by the Petitioner to represent him on charges of five counts of rape of a child, one count of sexual battery, and

two count s of posse ssion of dr ugs with intentto sell. Cou

nsel s tated that at the time he was retained to represent the Petitioner, the Petitioner was facing a potential sentence of twenty -five ye ars to be served at one hundred percent for each of the rape of a c hild charges. He also stated that the Petitioner

was facing “probably

. . . two or three c onsecuti ve sente

nces” f or child r ape. He testifie d that two o ther atto rney s in his office also worked on the Petitioner’s case and helped him investigate “lead[s]” in the case.

Counsel stated tha

t during his first meeti ng with the Petitioner, he discussed with the Petitioner the type of investig ation that he would be required to perfo rm in orde

r to defe nd aga inst

a rape case. Counsel recal led that he investigated an alleged pr ior allegation by

the victim of the child rape charges that

her natural father had sexually abused her. However, counsel testified that he found noth

ing to indica te that such an allegation was ever made . Counsel reported that he-4-

nonethel ess filed a Rule 412 motion to “establish . . . [the victim’s] prior sexual behavior.” Counsel stated that he also investigated allegations that the victim of the child rape charg es had engaged in sexual relations with two juvenile males. He testified that an investigator whom he hired contacted the males, but was unable to confirm the allegations. Finally , he state d that ano ther atto rney in his office investig ated allegationsthat the victim told three girls in

her class at school that the Petitioner had stabbed her with a

butcher knife, but counse l was una ble to re call whe

ther the attorne y in his office actually conta

cted the girls. Coun sel reported t hat he ke pt the Petit

ioner ap prised of his investigation of the case.

Counsel testified that he spoke with the victim’s mother “numerous times” while preparing the case, a

nd he stat ed that because of

his conta c t with the victim’s mother, he was able to have “two child rapes dismissed, . . . a sexual assault dismissed, and [that he was able to obtain] a plea reducing three r

ape cha rges to an attempt, and concurrent sentences of twelve yea

rs.” Counsel stated that he never spokewith the vi ctim in this case. H e could not recall whether he asked to speak t

o the victim, but was refused access to her. Although he could not clearly r ecall, he believed that the victim’s mother did not want him to speak t o the vict im. He ac knowledg ed that the State sp oke with the victim in pr

eparing the case , but he ma

intained that the victim

was “being very

difficul t” with th e atto rney g eneral who prepared the ca se for the State. Furthermore, acc ording to counsel, the victim’s mother “questioned . . . her daughter’s ve racity.”Counsel reported that the victim’s mother told him that during a juve

nile cour t hearin g, the victim made statemen ts that could be interpreted

as a recantation of her accusa tions against the Petitioner. Counsel testified that the victim’s mother

more specifically told him that the victim “made the statement that nothing happened.” Howe ver, counsel te stified that the victim’s mot her “ne ver told [him] that her

daught er was g oing . . . to recant ,” and he

stated tha

t he later learne d that the

victim did n ot reca

nt. Counsel maintained that he informed the Petitioner of every conversation that counsel had with the victim’s mother.

Counsel further

testified that he reviewed the victim’s medical records, and he reported that he discussed every

aspect of the medical records with the Petitioner. Inc luded in th e recor ds was a statement by a phy sician who examined

the victim

. According to counsel, this phy sician would have testified that it wa s possible that the victim coul d have engaged in sexual intercourse with

an adult male. Counsel testified that he f iled a motion based on a doctor’s statement, stating, “I was . . . hoping to show that [the Petitioner] was not the only person that the [victim] had allegedly had sex with.” However, counsel admitted that he did not

speak to the physician or

nurse who examined the victim. In addition, counsel testified that he learned, probably from the Petitioner himself, that the victim was a carrier of Hepatitis C. To the best of counse l’s recol lection, no DNA evidence connected the Petitioner to the crimes in this case.

Counsel also rec al led that the victim’s medical records indicated that she had made conflicting statemen

ts to docto rs and to Departm ent of Human Servi ces empl oyees. He testified that the victim “w asn’t the

most truthf

ul witness .” Counsel reported that he w as ultimat ely unable to ascert ainwhether the victim would have testified against the Petitioner at trial, but he statedthat the victim’s mother told him tha t the victim planned to testify reg arding the statements that she had made. Counsel admitted, “There was a lot of information . . . to cross examine [the victim] on,” and-5-

he reported that he was prepared to cr oss-examine the victim regarding her conflic ting sta

tements. He also r eported that the Pe

titioner w as awar

e of the s tatement s.

Counsel testifie d that a te lephone c onversa

tio n between the victim and the Petitioner had been audiotaped and that the State read into evidence a tra nscript of the taped telephone conversation at the guilty plea pr

oceeding. Counsel stated that although some portions of the tape were inaudible, other portions could be unde rstood. During the conversation, the victim asked the Petitioner, “Remember

when you and me

had sex, you know, could y ou h ave shot t

hat st uf f up in me ?” According to the State, the Petitioner answered, “Uh-huh,” the victim then asked, “Y ou co uld ?” and the Petitioner again answered, “ Uh-huh.” The actu al transc

ript of the

convers ation, wh

ich is i ncluded in the record, indicates that the Petitioner responded, “Huh-uh” to both questions

. However, counsel maintained that the Petitioner actually answe

red, “Huh, not huh-uh , but huh” to bothquestions. He explained that he believed other discrepanci es exi sted between a transcript of the taped conversation made by his office and that made by the court reporter. He stated, “[W]hat

we could hear on the tape was a bit different than w hat the court reporter . . . heard . . . .” Counsel maintained, however , that his “ impressio n of the a udiota pe was that it was very

damaging.” He therefore filed a motion to suppress the tape, which the trial cour t denied.

Counsel testifie d that in hisstatemen t to police , the Petiti oner adm itted that he had been in bed nude with the victim when she was eleven or twelve years old. Counsel cla

rified, however, that the Petitioner

did not ac tually

confessto the crimes charged. Counsel re ported th at he disc

ussed this statement with the Petitioner.

With reg ard to the drug charge s against the Petitioner, counsel testified that he was never informedthat any

of the dr ugs had been pla nted in the

Petitioner ’s apar

tment. Counsel testified that basedon the evidence against the Petitioner, he believe d the State “had a lock on” t he Petition

er with regard to the drug charges. Counsel also stated that he was “much more concerned about the f ive charges of child rape.”

Counsel reported that based upon all of the aforementioned evidence, he recommended that the Petitioner

accept a plea agreement of forty-eig ht years to be se

rved at thirty per

cent. He stated that otherwise, the Petitioner

was fac ing a se

ntence o f twenty

-five to s eventy-five y

ears to be served at one hundred percent. He testified that the trial judg e informed the Petitioner that the Tennessee Department

of Correction typically

requires an inmate to serve one hundred percent of a conviction for attempte d rape of

a child, a

nd he rep orted tha

t he infor med the Pe

titioner t h at “i f he were convictedof child r

ape, the re was n o opportun

ity f or parol e.” Couns el testif ied that he di scussed these possibilitie s “a numbe

r of times ” with

the Petitio ner. Coun sel denie d that the Stateever made

an offer of fifteen

years “ flat” for the charges, but he r ecalled that at the request of the Petitioner, he suggested a fifteen-y ear offer to the State before he a nd the Petition er became aware of the drug charg es. He maintained that if the Petitioner had received a fifteen-y

ear offer, he and the Petitioner “would have taken it and run with it.” He explained the negot iated for ty-eig

ht-year sentence as follows: “The magic of that number was that I

had offe red fift een y ears. An d i f yo u c om pu te fo rt yeight year s at th irty

percen t, y ou get f

ourteen ye ars and f

our months . Now, tha

t would be , as I-6-

computed and what

I told him, that’ s the firs t time that h e would be

eligible .” He al so state d, “[A ]s I calculated, [the Petitioner] could’ve been out in the fourteen point four y ears, or he could serve . . . forty-eig

ht years. And [the Petitioner] understood.”

District Attorney Gene

ral Charles B erkele

y B ell, Jr., acted on behalf of the State in preparing this case against the Petitioner. He testified that he initially offere d the Pe ti ti on er “f if te en yea rs da yfo r-day f or th e r ap es ” a nd of

fe re d f or al l c ha rg es , i nc lu di ng th e d ru g c ha rg es , t o r un co nc ur re nt ly. Bell reporte d that c ounsel for t he Petitioner counter-offered a sentenc e of forty- eight ye ars, to be served at thirty pe

rcent.

The victim of the attempted rape of a child charg es also testified at the post-conviction hearin g. She st ated t hat at the ti me of t he hear ing, she was sevente en y ears old and that a

t the time of the crimes, she was twelve y ears old. She testified that in 1996, s he alleged that she and the Petitioner had engaged in sexual intercourse on more than one occasion. She reported that neither counsel for the Petitioner nor any lawyer employed by

counsel interviewed

her abou t the alle gations

. The victim maintained that if cou nsel had interviewed her, she would have told him “the truth. . .

. [t]hat nothing had ever happened.” She stated th at by this, she me ant that sh e never engag ed in sexual intercourse with the Petitioner. The victim explained, “It’s going to sound crazy, but I

was jealous, because

[the Petitioner] was getting all the attention from my mom. And I

was sitting here thin king, and I thought, May be I can do so mething

about it, a

nd make him go to ja

il, and I could ge

t all her attention; she’d

be focused on me and nobody else.” The victim admitted that she had slept in a bed with her

mother and the Petitioner, but denied that any sexual contact occ urred. In addition, the victim admitted that she had alleged that her father had sexually a

bused he r while she was w ith him in Oregon, but she maintained that the allega tions concerning her father we re true. She testified that the a ll egations against her fathe r “got her back to Tennessee with [her] mom,” and she stated th at she “figured if [she said] that again, [she] could get what [she] wanted like [she] did before.” The victim also maintained that had she been called to testify at the Petitioner’s trial, she would have testified that she and the Petitioner did not engage in sexual intercourse

.
On cross-examination, the victim testified that she made the tape-recorded te lephone call to the Petitioner because she “was trying to co nfuse him , trick him into saying w

hat he did . . . .” She claimedthat she told a doctor and a detective who questioned her about the case that she had not had sexual intercourse

withthe Petitioner. She could not recall whether she reported this information before or after the Petitioner beca me incarcerated.

The Petitioner

testifie d that he r

etained his attorney

in late February or early Ma rch of 1996 and that his attorney repr

esented him until he entered his plea in November 1996. He stated that he

never met the other two attorney s who helped his counsel with the case. The Petitioner reported that he agreed to pay

his attorney $30,000, which wa s secured by a lien against his property

.
The Petitioner complained that his counsel did not fully discuss his case wit h him and di d notadequately

investigate his case. He stated that he met w ith counse

l severa l times prio

r to entering his plea. The Peti tioner tes tified that shortly after he hired counsel, he took the victim’s-7-

mother to counsel’s office so that she could convey information to the a ttorney to he lp in the inves tiga tion of the Petitioner’s case. With regard to the investiga tion of his case, the Petition e r stated that his attorney should have interviewed three of the victim’s friends at school, that counsel should have contacted at least one person in Ore gon concerning prior alleg ations made by the victim
, and that he should have hired a “professional” to analyze the audiotape of his conversation with the victim. The Petitione r also stated that counsel should have discussed with him the content of the audiotape and the content of the transcript of the tape.

The Petitioner stated that he became i ncarcerat ed in July 1996 and remained incar cerated until he enter

ed his ple a. The Pe

titioner s tated tha

t approxima

tely two week s after h

e becam e incarcerated, his attorney g ave him his entire fi le and t old him that the State had offe red him a fifteen-y ear sentence with all charg es running concurrently

. Accord ing to the Petitioner , the State made the offer in exchange for a g uilty plea to the rape of

a child charges and to all othe r dru g charg es. The Petitioner claimed that he refuse d the off er, stating that h

e was wil ling to pl ead gu

ilty t o all drug ch arges in exchange for a fifteen-y ear sentence if the rape of a child charges were dismissed. The Petitioner testified that he assumed he and his attorney were preparing to g o to trial after he refused the offer

.
The Petitioner testified that on the Friday before his scheduled trial date, his attorney visited him and said, “I’ ve got a

hell of a deal for you . . . . They ’ll drop th

e rape o f a child

and ente r in a bes t interest plea of attempted rape, and give y ou a sentence of forty -eight y ears at thirty pe rcent.” The Petitioner maintaine d that his a

ttorney told him this deal wa s better t h an an offer of

fifteen ye ars “flat,” but did not tell the Petitioner a date when he might be released if he accepted the offer. The Petitioner recalled that counsel then evaluated the evidence for his case and recommended that the P etitioner accept the offer. Accor

ding to the Petitioner, counsel’s recommendation was based o n statemen ts made by

the victim and on transcripts made of the taped telephone conversation between the Petitioner

and the vi ctim. The

Petitioner

stated tha

t his attorne

y to ld him that t

he victim w ould testify that she was sexually penetra ted by the Petitioner when she was twelve ye ars old. The Petitioner further tes tified t hat his att orney told him tha

t “the tap e alone w ould . . . a bsolutely kill [him] in tri al” and t

hat they “didn’t have

a . . . slim chance to none of winning that case.” T he Petitioner maintained that at the time his counsel made the recommendation, he did not mention the statement that the Petitioner had made to police.

The Petitioner testified t h at he understood that the offer convey ed to him by his counsel included an Alford

plea to three counts of attempted rape of a c hild and to two d rug pos s ession counts. See gener

ally North Carolina v. Alford , 400 U.S. 25 (1970). However, he complained that he instead entered

an Alfordplea to only the three attempted rape of a child charge s. See id. The Petitioner reported that the Alford

plea was important to him because he was not guilty of the crimes charged. See id.

The Petitioner

insisted th at hi s attorney’s recommendation to accept the forty -eight y ear offer

was improper. He maintained that he ha

d never e ngag ed in sexual intercourse with the victim and stated that he had evidence which would have proved him innoce ntat trial. When questioned about-8-

this evidence, the P etitio ner spec ified tha t the discr

epancie s betwee

n the audi otape of

his conversation with the victim and the transcript of the tape pointed to wards hisinnocenc e. He al so testified that he had learned that if the victim had been called to testify

at trial, the victim would have deniedsexual conduct with him. Finally, he testifie d that he c ould have explained

his statem

ent to police a s follows: I have a one-r o om apartment . . . . There’s only one bed in the apartment. . . . [The victim] stayed there

about two months. . . . And during those two months there was [sic] times that I would go to bed befor e [she and her mother] did. So if I was in bed, I’ m sure tha

t [the victim

] would come

in there ; but I

was cove red up. I was n eve r uncovered.

The Petitioner testified that he hadreviewed the transcr ipt of his te

lephone c onversa

tion with the victim. He

stated tha t certain portions of the tra nscript d id not“match up” to the audiotape. He also claimed that he did not say some of the words credited to him in the transcript. He reported that his attorney play

ed the audiotape for

him, but did

not discus s the tran script with him. The Petitioner testified that bec ause he d id notsee the transcript prior to his plea, he was not aware of discrepancies between the audiotape and the transcript at the time he e ntered his plea.

The Petitioner admitted that he to ld the tria l court a t his guilty plea pr

oceeding that he was satisfied with his representation. However, he explained that he b ecame d issatisfied with his representationafter

the proceeding when he re viewedevidence for his case, including the tra nscript of his conversation with the victim andhis case file whic h, acco rding to the Petitioner, indicated that his attorne

y ha d failed to intervi ew cer

tain witne ss es. The Pet itioner also stated that his plea was voluntary “based o n what [he] k

new.” H owever , he maint ained tha t he would

not have p led guil

ty had he been fully

informed.

On cross-examination, the Petitioner testified that before he entered his plea, he was aware that the victim had “changed her story ,” but maintained that prior to his plea, the victim did not reveal that she had not

engag ed in sexua

l interco urse with the Petitioner. He also admitted that prior to his plea, he did not e

xamine any

of the ev idence p rovided h imby his attorney

and instead gave the evidenc e to hi s br ot her . He ex pl ain ed, “[ I] was pay ing [my attorne y] thi rty thousand d

ollars to do the job. And, . . . like he said, he’s [had] forty y ears experience [as] an attorney . I didn’t see any

reason for me to g o over it, because I kne w . . . wha t I wa nted to do, and that w as to go to trial.” The Petitioner acknowledged that the trial court told him at the time of his plea that he may be required to serve one-hundred

percent of his sentence for the attempted ra pe of a child charges. Finally, when askedwhether he understood the meaning of “ fort y-ei ght ye ars at thirty per cent,” the Petitioner responded, “It meant a

better deal than fifteen at a hundred pe rcent.”

I. AN ALYS IS

A. INEFFECTI

VE ASSISTANCE OF COUNSEL-9-

The Petitioner

first contends that he is entitled to relief because he rec eived ineffective assistance of counse

l. Specific ally , he compl ains that h is attorne y f ailed to p roperly investig ate his
case; failed to interview “ke y w itnesses, ” includi ng the victim; and failed to adequa tely communic ate withhim. More specifically , he claims tha t counsel erred by

failing to interview the victim’s classmates concer

ning all egatio ns made by

the victim ; by

failing to intervi ew medic al p ersonnel who examined th e v ic ti m; by fa iling to properly inve stigate allegations by the victim against her biological father ; and by

failing to discuss with the Petitioner discrepancies between the audiotaped conversation betwee

n the Pe titioner and the victim and transcripts subsequently made of the conversation. He also arg ues that c ounsel “m

isassessed the State ’s case , [the Petiti oner’s] defenses and the likelihood of consecutive sentences . . . and misadvised [the Petitioner] regarding the plea arrangement and his relea se date.”

In order to obtain post-conviction relief, a petitioner must show that his or her conviction or sentence is void or voidable because of the abridgment of a cons titutional

right. Tenn. Code Ann. § 40-30-203. The petitioner bears the burden of proving f actual allega

tions in the

petition for postconviction relief by c lear

and convincing evidence. Id. § 40-30-210(f). A post-conviction court’s factual findings are subject to a de novo review b y th

is Court; ho wever, we must ac cord the se factual finding s a presum ption of correctness, which is overcome only when a preponderance of the evidence is contrary to the post-c onviction court’s factual findings. Fields v. State , 40 S.W.3d 450, 456 (Tenn. 2001). A post-co nv ic ti on co ur t’ s c on cl us io ns of la w a re su bj ec t t o a pu re ly de novo review by this Court, with no presumption of correc tness. Id. at 457. The Tennesse e Supreme Court has held that the issue of

ineffe ctive as sistance

of counse

l is a mixed question of law and fact and, as such, is subject to de novo review. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).

The right of a criminally accused to representation is guar a nteed by

both the Sixth Amendment

to the United States Constitution and Article I, Section 9 of the Tennessee Constitution. Id. ; Baxter v. Rose , 523 S.W.2d 9 30, 936 (T enn. 1975 ). This ri ght to re present ation inc ludes th e right to “reasonably

effective” assistance. Burns , 6 S.W.3d at 461. In reviewing a claim of ineffective assistanc e of coun sel, this Co urt must determine whether the advice given or services rendered by the attorney ar

e within the range

of compe tence de manded of

attorne ys i n crimina

l cases. Baxter
, 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that “counsel ’s r epresentation fell below an objective standard of r easonableness,” Strickland v. Washi ngton , 466 U.S. 668, 688 (1984), and that this performance prejudiced the defense, resulting in a failure to produce a reliable result. Id. at 687 ; Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1993). To satisfy the requirement of prejudice, a petitioner must show a reasona ble probabil ity that, but for counsel’s unreasonable error, the fact finder would have had re ason able doubtregarding

the petitioner’s guilt. Strickland , 466 U.S. at 695 . This rea sonable p robabilit y mu st be “sufficient to undermine confidence in the outcome.” Id. at 694; see a lso Harris v. State , 875 S.W.2d 662, 665 (Tenn. 1994).

This standard also applies to clai ms ari sing out of the plea process. Hill v. Lockhart , 474 U.S. 52 , 58 (1985 ). To sati sfy the requ irement o f prejud

ice in a c ase involving a g uilty ple a, th e-10-

petitioner must demonstr ate a re asonable

probabil ity t hat, but for c ounsel’serrors , he or she “would not have pleaded guilty

and would have insisted on going to trial.” Id. at 59.

When evaluating an ineffective assistance of counsel claim, the reviewing court shou l d jud ge the attorney’s pe

rformance within the context of the case as a whole, taking into account all relevant circumst ances. Strickland , 466 U.S. at 690 ; State v. Mitchell
, 753 S.W.2d 14 8, 149 (Te nn. Crim. App. 1988). The reviewing court must evaluate the que stionable conduct from the attorney ’s perspective at the time. Strickland , 466 U.S. a t 690; Cooper , 849 S.W.2d at 746; Hellard v. State
, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the revi ewing court must be highly de ferential and “should indulge a stro ng presumption that counsel’s conduct falls within the wide range of

reasona ble professional assistance.” Burns , 6 S.W.3d at 462. Counsel should not be deemed to have been ineffective merely

because a different proce dure or strategy

might have produced a differe nt result. Williams v. Sta

te , 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

At the post

-convic tion proc eeding , the tria l court ma

de the fo llowing f

indings o f fact: [L]et me be gin b y s ay

ing t hat [c ounse

l] . . . has been one of the very best criminal lawyers in the state

of Tennessee, criminal defense lawy ers. . . . The credible evidence is, that [counsel] employ ed a great number o f resour ces in investigating the case. This Court’ s experie nce is, that [counsel] did not plead the

cases easily . Over the y ears wit h him try ing the c ases for

defenda nts in this c ourt, probably had more jury

trials fr om the clie

nts that he’ s repre sented th an any others,

so –[i ]t

. . . a lw ays has been . . . hard to get [counsel] to the podium for a plea. He tried cases and . . . often won the cases. Had a great rate of suc cess in trying cases when he practiced law. In this particular case, w

hich is what is important, all the evidence indicates that [counsel] had numer

ous confe renceswiththe petitioner; that he investigated the

case thoroug hly ; that he f

iled all mo tions that s eemed to be appro priate to be filed or

were c alled f

or under the fac ts and cir

cumstanc es of the

case; th at he almo st

su rr ep ti ti ou sl y, but not unethically, had a mole, in ef fect, in the District Attorney General’s Office telling him every thing that was going

on and the

discussio ns with the victim

. It’srare in

a child rape case for

a defen se counse

l to have a

n opportun

ity t o talk to avictim. The Supreme Court has s aid that th

e victim do es not hav e to talk to the defe nse coun sel. And o

rdinaril y th at is the choice tha

t the victi m makes. From everything

that I’ve heard in this ca se, that seems to be the choice that

was made either by

the victim herself, or he r mother o n her behalf. And if that choice was made by he

r mother on her

behalf, you

have to take into consideration the fact that her mother seemed to, at all time s, be trying to support, defend the petitioner in the charges aga

inst him. No court re

viewing this case would look at the case and . . . decide that . . . [counsel] didnot do a fa

ir investi gation; that he di d not try to discove

r all witnesse s, and al l a bo ut th e w it ne ss es ; a ll in cr im in at in g e vi de nc e. He fu ll y ob ta in ed di sc ov er y. It’s easy to look at a

ny o ne aspect, or eve

n all aspects of the investigation, the-11-

attempt by a defe nse lawyer

to ferret out evidence; the decisions that have to be made about the evide

nce; wha t impact it w ould have , and conclude tha t there is som e inconsistency

somewhere, or inconsistencies every where - - that a wron g de cision was made at some po int about s ome evide nce, how to use it. But you have to look at the totality of the circumstance s and decide whether the tac tics of the lawye

r in the end were appropriate tactics; whe ther any diff

erent results would have occurred had other tacticsbeen used; other decisions been made. The re are alw ays co nf

li ct s i n t he ev id en ce in th e c as e. Th er e a re al wa ys conflic ts in the witness’s testimony. This Court has been try ing cases for twenty -five ye ars, and has yet to see a cas e where any

witness’ s testimony

was per fect, unimpeachable in any

respect. That’s just not the way lawsuits work. . . . The only conclusion

I ca n reach about [cou

nsel], fir st, is that h

e did leave no stone unturned; that he investigated every aspect of the case and made his decisions basedup on the p lea neg otiations, or based upon evid

ence fr om which a

jury could have convicted the petitioner of the principal char ges.

With regard to the victim’s testi mony at t he pos t-con victi on hea ring, the trial court made the following finding s: It’s said

. . . by the victim today , that she would have testified that the petiti oner did n ot have a ny s exual cont

act with her had s he testified at the trial several years ago. How can y ou believ e or give credit to what is testified to today, based upon the r ecord? Her

s ta tements back then were inconsistent. She had said back then, at

some point, that the petitioner had not done what he was charg ed of doin g. As a matter of fact, in the allo cution it was brought out that she had said on some occasions, or on occasion that he hadnot done the things he was charged with doing.

Fi na ll y, the trial court made the following findings conce rning the Petitioner’s plea hearing and coun sel’s re commenda tion to the Petitioner

to acce pt the ple a agre

ement: The allocution is pretty clear

. It covers over thirty -one pages. This Court was very caref ul with this a

ll ocution beca use of the nature of the charg es and the circumst ances. Because there was some q u estion ab out the ab ility

of the vic tim to testify, or what she w ould testify to. But throughout . . . the transcript of the allocution of the guilty pl e a, the petitioner here, the defendant then, assured this Court that he un derstoo d all the matters, t he consequences, the complications, the consequence s of entering such a plea, and all

his constit

utional ri ghts , whether his lawy er had done every thing that he expect ed him todo. And the Court was assured that he understood every thing. This Court had an opportunity to observe the petitioner at that

time, and there

was ce rtainly nothing to ca use this Court to believe that . . . there was any thing mentally wrong with him, or phy sically that would cause him not to understand the questions

. As a matter of fact, the allocution shows that the petitioner was a ve r y-12-

articula te person, very

intelligent person, someone who had n o diffi culty understa nding tho se thing s. So it really comes down

to this. Given all the ability; the investigation; the thor ough ness of representation; the allocution; the seeming ability to understand anything and ev erything; the fac t that everythi ng, really, in fa ct, was known then that is known now, and there is nothing new in the ca se, was it still, and in spite of

that, such a travesty of

justice as to require some act ion? Were judg ements jus tso totally devoid of under standing

that it ca n’t be co ndoned? Had

they gone to tr ial ag ain, there was that h

uge ris k of many

times the s entence

that w as ulti mately imposed. Petitioner could have been

impeach ed with prior criminal convictions. This Court has tried many

of these cases over

many y ears. I think the odds were probably ver

y strong for a co nviction in this case instea d of an acquittal. Although any thing can happen in cluding acquitta l. Those were the circumstances . . . under which [counsel] recommended the plea for the petitioner.

The evidence does not prepo nderate agains t these findings b y th e trial c ourt. With

regar d to his prepar ation for the case , counsel testifie d at the po st-convi cti on heari ng th at he , t wo at to rn eys from his of

fice, and an investigator whom he hired a ll participated in the investigation of t h e Petitioner’s case. Counsel testified that he met with the Petitioner and with the victim’s mother, who

was apparently c ooperative with the defense, several times while p r eparing the case, and the Petitioner acknowledged that he met with his attorney s everal times before entering his plea

. Alth ough the Petitioner

now conte

nds that hi s attorne

y e rred by failing to interview the victim of the rape of a child charges, the trial court f ound that the choice notto partic ipate in a n intervie w with counsel was made by

either the victim or by the vic tim’s mother on her behalf. We also note that “Tennesseecase law, moreover, gives a prospec tive witne ss the disc retion to t alk -- or not to talk -- to eit her counsel, a s the witness sees fit.” State v. Singleton , 853 S.W.2d 490, 493 (Tenn. 1993). Furthermore, although the victim testified at the post-conviction hearing that had she been ca lled to testify at the Pet

itio ner’s trial, she would have denied sexual contact with the Petitioner, the trial court discred ited this te stimony

by t he victim. In do ing so, th

e trial c ourt point

ed out tha t the victi m made i ncons isten t stat ement s prio r to th e Peti tion er’s pl ea proc eedin g.

With re gardto the Petit ioner’s complain

t that his a

ttorney errone ously

advised h

im concerning his plea agreement and the amount of time that he would be required to serve under the agree ment, the trial cou rt found a s follows: The minimum on each

one of tho se five chi ld rape c ases, fr om fiftee n up to

a maximum of twenty-five y ears, since it’s a Class A felony

. I believe it was in effect then that you

start at the midrange. So y ou would pro bably start . . . at twenty

ye ars,
a hundred percent on any

one conviction, instead of fifteen. And then . . . under the statute, child ra

pe case s are se

ntencab le conse cutively . So, I guess, it’s conc eivable that y ou . . . cou ld’ve had five twenty -five ye ars stacked. So, that’s the kind of exposure the petitioner had with . . . the statement that he made with the tape, even-13-

thou gh there a

re incon sistencie s with

the . . . proposed

testimony

of the vic tim in this

case. Not

a lot has b een said

about the drug c ases, re ally

except for the letter. And it does appear

that the state had a very

strong, strong case in there. It’ s a roll of the dice in these cases. It could g o any way

. But, certainly , a jury could have found the petitione r guilty of the ch ild rape cases.
The court also stated, I can’t say whether a fifteen-y

ear flat plea is better than a f orty-ei ght ye ar sentence witha thirty

percen t releas e eligi

bility date, wh

ic h carries eligibility

with it at fourteenpoint four

ye ars. Bu

t I think I can safely

say that had the

representation been differe nt, no t m uc h h as be en

. . . s pe ci fi ca ll y presented t o offer what exac tly should’ve been done, instea d of what was done . It’ s mostly

a focus on what wasn’t done exactly as well as it should have be en.

The Petitioner now complains that his sentence is longer than that initially offered by

the Stateduring plea agree

ment negotiation. However, the Petitioner unequivocally testified at the postconviction hearing

that he f latly refuse d the State ’s initial f ifteen- ye ar offe

r becau se he simp ly w ould not accept

a ny o ffer wh

ich requ ired him to

plead g uilty to the off

ense of r ape of a chil d

. Furthermore, we note that as a Range I , standard offender, the Petitioner was po t entially facing sentences of twenty -five ye ars for each of the five counts of rape of a child. See Tenn. Code Ann. §§ 39-13-522(b), 40-35-112(a)(1). Pursuant to Tennessee Code Annotated § 40-35-115(b)(5), the trial court could have ordered these sentenc es to be served consecutively

. Further, it is well se

ttled that a defenda nt’s gui lty p lea is not r endere d involunta

ry simply because the exact date of his possible release is not known by the defendant. Jerome Lamont Wolley

v. S tate , No. 01C01 -9311-CR- 0042, 1994 Tenn. Crim. App. L

EXIS 709 (Ten

n. Crim. App.
, Nashville, Oct. 20, 1 994). “A lthough t he actua l length of confinement is an important consequence of the voluntariness calculus, it is the stated term of incarceration at the sentenc ing and the formu

la for its calc ulation th at are the direct consequences w hich warrant actual knowledge on the part of Appellant.” Id. at *9.

The Petitioner also complains that counsel erron eo us ly r ecommended that he accept consecutive senten ces for six cou nts of delivery

of a cont

rolled su bstance . In s upport of

his argume nt, he relies upon State v. Richard Ly nn Norton , No. E19 99- 00878-CCA-R3-CD, 2000 Tenn. C rim. App. LEXI S 637 (Tenn. Crim. App., Knoxville, Aug. 22, 2000). In Norton , this Cour t emphasized that a se

ntence m ust r elate to the seriousness of the offense and conc luded that the imposition of consecutive sentences for three c ont rolled drug bu ys “permit[ted] invest igating officers to dictate the length of a sentence based upon the numbe r of controlled buys the

y arra nged and the amounts purchased.” Id. at *27. This Court thus modified defendant Norton’s sentence, requiring him to serve two, rather than three, consec utive sentences for

his crimes. Id. at *28. Had the Petitioner in this cas e been se

ntenced by t he trial c ourt to co nsecutiv e sentences for the si x drug charg es, he would have had a strong argume nt on appe al that co nsecutiv e sentences wer e imprope rly-14-

imposed in his case. The Defendant also relies upon State v. John Derrick Martin
, No. 01C01-9502- CR-00043, 1995 Crim. App. L EXIS 984 (Ten

n. Crim. Ap

p., Nashv ille, Dec . 19, 1995) , in which this Courtmodified an effective sentence of f orty y ears for four drug

offense s to twenty y

ears, stating that the consecutive sentences ordered by the trial court

were not reasonably

related to the severity

of the four crimes in

volved. H owever , this cas e is disting uishable from Norton

a nd Martin

in that it involves a nego tiated ple a agreement. Th e Petitione

r’s coun sel in

this case was not prohibited from negotiating consecutive sentence s for the Petitioner’s crimes.

We thus conclude that the Petitioner w as not denied his right to effective assistance of counsel. The trial court

found, and we agree, that the Petitioner’ s attorney adequately investiga ted the Petitioner’s case, that counsel adequately communica ted with the Petitioner, and that the Petitioner’s plea agreement was prope r. We find no deficiency in the Petitioner’s representation. Moreover, even ass uming tha t the Peti tioner received inadequa te representation, w e are unconvinced, especial lycon sidering the severity of the charges and the leng thy possible sentences that the Petitioner would have faced upon conviction, that but for error by

counsel, the Petitioner

would have proceeded to trial.

B. VALI DITY OF PETI

TIONER’S PL

EA

The Petitioner next contends that his counsel’s deficien t per formance rendered his plea unknowing and involu

ntary . In o

rder to s atisfy

constituti onal st andar ds, a plea of guilt must be entered knowingly, voluntarily

and intelligently. See Boy kin v. Ala bama , 395 U.S. 238, 243 (1969). This includes an int enti onal relinquishme nt or aba ndonment o f known c onstitution al righ ts, including the right against compulsory self-incrimination , the right to confront witnesses, and the rightto a trial by jury

. Bates v . State , 973 S.W.2d 615, 624 (Tenn. Crim. App. 1997). “‘[T] h e standardwas and remains whether the plea repr esents a voluntary a

nd intelligent choice among the alternative courses of action open to the defendant.’” Powers v. State , 942 S.W.2d 551, 556 (Tenn. Crim. App. 1 996) ( quot ing Alford , 400 U.S. at 31). “When a competent petitioner knowingly a

nd voluntar ily chooses a lawful c ourse of

action or defense strategy , counsel is essentially bound by that decision.” Zago

rski v. Sta

te , 983 S.W.2d 654, 658-59 (Tenn. 1998).

In determining whether the petitioner’s guilty pleas were knowing and voluntary , this Court must look a

t the total ity of the circumstances. State v. Turner , 919 S.W.2d 346, 353 ( Tenn. Cri m. App. 1995); Chamberlain v. State , 81 5 S .W .2d 534 , 54 2 (T enn . C rim . Ap p. 1 990 ). In doing so, we may review

any rele vant evidence in the record, including the post-c onviction proceedings. Turner , 919 S.W.2d at 353. [A] court charged with determining w hether [the] pleas were “voluntary” and “intellig ent” must look to v arious cir cumstantial factors, such as the relative intelligence of the defendant; the degree of his familia

rity withcriminal

procee dings; whether he was represented by

competent counsel and had the opportunity to confer with coun sel about the options available to him; the extent of advice from counsel and the cour

t concer ning the charg es aga

inst him; and the reasons for his decisionto-15-

pleadguilty, including

a desire to avoid a greater penalty that might result from a jury trial. Blanke nship v. Sta

te , 858 S.W.2d 897, 904 (Tenn. 1993).

As previously stated, we c onclude that the Petitioner re ce ived the effective assistance of counsel, and therefore we conclude that the Petitioner w as adequa tely informed when he e

ntered h is plea. Not only

didcounsel inform the Petitioner of potential pitfalls were he to proceed to trial, but the trial cou

rt alsoinformed the Petitioner at the plea proceeding that “if [he pled] guilty to the attempt to commit rape of a child [charges], [he] probably [would be required] to serve most of that sentence without being released on [the] release eligibility date.” At the con clusion of the pos tconviction hearing, the

trial court

found that the Petitioner received effective a ssistance of counsel and that he therefore enter ed his plea knowingly, voluntar ily, and intelligently . The evidence conta ined i n the r ecord b efore u s does not p repon derate agains t that findi ng.

C. NEWL

Y DI SCOVERED E

VID ENCE

Fi na ll y, the Petitioner contends that he is entitled to post-conviction relief o n the basi s of newly discovered evidence that the v icti m recanted the allegations ag ainst him. However, as the Statecorrectly

poi nts o ut, newly discovere d evidence is not generally an appropriate ground for re lief under the Post-Conviction Procedure Act. See William H. Ne ce ss ar y, Jr., v. State , No. 03C01-9601- CC-00009, 1999 Tenn. Crim. App. LEXI S 246, at **17-18 (Tenn. Crim. App., Knoxville, Mar. 16, 1999); Randy

Hicks v. St

ate , No. 03C01-9608-CR-00296, 1998 Tenn. Crim. App. LEX IS 253 at **8-9 (Tenn. Cr

im. App., K

noxville, Ma

r. 3, 1998 ). More s pecific ally , this Court has held tha t “recanted testimony

amounts to

no more than a request to relitigate the sufficie ncy of the e

vidence at trial and is not

a proper subject of post-conviction relief.” Teresa Deion Smith Harris v. State , No. W2000-026 11-CCA-R3 -PC, 2001 Tenn. Crim. App. LEXI S 604, at *3 (Tenn. Crim. App., Jackson, June 13, 2001).

Furthermore, as previously noted, the tri al court discredited the victim’s recantation at the post -conv icti on hea ring. T he tri al cou rt als o made the fo llow ing fin dings concerning the victim’s recantation: [Counsel], in discussing the evidence, said that he asked [the] prosecutor if . . . the victim . . . h ad retr

acted [the allega tions ag ainst

the Petitioner]. And his testimony

was: Wh en I

was havi ng that t

ranscr ibed, . . . [the victim] h ad made t he sta temen t that she lied. That it did not happen.

. . . . It’s just not newly discovered evidence. All of the things about he r t es ti mo ny,
or potential testimony back then we re known a t this time. Nothing new has been discovered

now. . . . When she . . . changed her mind and testified differ ently on several occasions about different things, [she] put every body on notice . . . that her testimonycould be anything from very strong

for convicti on, to exoneration. But that was not a chance that any body wanted to take

. We agree with these findings by the trial court.-16- IV. CONCL

USION

We conclude that the Petitioner received effective assistance of counsel and that he entered hi s pleas knowingly , voluntarily, and intelligently . We further conclude that the Petitioner is not entitled to post-conviction relief on the basis of n ewl y discovere d evidence. Accordingly , we AFFI RM the judgment of the

trial cou rt.



### _________________ _________________

_ ROBERT W. WEDEMEYER, JUDGE