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

Briefs J uly 24, 2002
CHAD DANIEL

EASTERLY v. ST ATE OF TENNES SEE
Appeal from the Criminal Court for Greene County No. 01CR083 James E. Beckner, Judge

No. E2001-03042-CCA-R3-PC August 12, 2002

The Defendant, Chad Daniel Easterly, pled gui lty to kidn apping and evading arrest. The plea agreement

included an effective eight year sente nce as a Range I standard offende r. The Defendant subseque ntly filed a post-conviction petition, alleging that his convictions were the result of ineffe cti ve assi stance of counsel and prosecutorial misconduct. After a hearing, the trial court denied relief. The Def

endant no w appea

ls as of ri ght. We a

ffirm the judgment o f the tria

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

D AVID H. W ELLES , J., delive red the o pinion of t

he court , in which J ERRY L. S MITH and J OE G. R ILEY , JJ., joined. Douglas Payne, Greeneville, Tennessee, for the appellant, Chad Daniel Easterly.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney Genera l; C. Berkeley Bell , District Attorney General; and Eric Christiansen, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

The Defendant

was originally indicted for committing an especially aggravated kidnapping against his wife, Jodi Easterly. Ms. Easterly testified at the post-conviction hearing that, at the time of the offense, she and

the Defendant were separa ted. She agreed to a meeting with the Defendant at a car wash. Upon their meeting, she testified, they argued. She then got into his pickup truck, which was subsequently st opped by t

he police . Ms. Easterly testifiedthat she told the police at the
scene tha t the Defe ndant had pointed a loaded gun at her. She testified at the hear ing that her statemen t to the police was false and that the Defenda nt had not pointed a loaded gun at her. She testified that she got into the truck with the Defendant “on [her] own free will.” She admitted that there was a gun in the truck, but testified that it had not been loaded.1 The Range I sentence f or especia lly aggravated kidn app ing is fifteen to twe nty- five y ears. See Tenn. Code Ann. §§ 39-13-305(b)(1), 40-35-112(a)( 1). The sent ence must be served at one hundred percen t

. See id. § 40-35- 501(i)(1), (2)(C).
-2- Ms. Easterly testified that she was “almost certain” that, during her initial meeting with the districtattorney, she told “the t ruth,” i .e. that the Defendant’s gun had been neither loaded nor pointe d at her. Sh e also met several times with defense counsel prior to the Def endant’s plea, volunte ering to testify consistently with her post-conviction testimony. She stated that defe ns e counsel told her that the “judge would not hear [her] c hange of statement.”

On cr os s-examination, Ms. Easterly admitted that the Defendant had previously assaulted her, been ch arged, a

nd that she

had obtained a dism

issal of th e charg es. She fu

rther a dmitted tha

t, at the scene, the De

fendant told the of

ficers, “I’ve got

a hostage.” She also admitted that she had soiled he rself du ring the in

cident.

The Defendant testified

that he hired his attorney, William Bell, approximately two weeks prior to his tria l date. He said that h

e met with

Mr. Bell two or three times while he was in jail. He stated that he knew his wife had changed her story before he pled guilty. The Defenda nt testified that he enter ed a best -intere st plea to

kidnapping because he was “scare d” by the prospect of serving twenty-five years a

t one hund

red per cent. 1 The Defendant testified further that

the gun he

had in his truck wa s unloade d, but admitted that h e had bull ets in the c ab. He a lso testified that he had been drinking “[q]uite heavily” on the night in question. Attorney William H. Bell testifi ed that the Defendant hired him approximately five days prior to the trial date. He obtained full disco very on th

e case. He spoke

with the of

ficers involved, as well
as with Ms. Easterly an d the Defe ndant. He

testifie d that his tr

ial strat egy was t o develop some sympathy on the jury for the Defendant, because the D efendant had discovered that Ms. Easterly had been unfaithful to him and the knowledge was “driving him crazy.” He also planned to rely on the fact that Ms. Ea sterly ha

d recan ted mu ch of her initial statement, and it was “obvious” that the alleged victim did not want the Defendant punished.

Mr. Bell testified that, in his opinion, the jury would convict the Defendant of something and it was just a matter of degree. Mr. Bell stated, “I was wanting to work out the best plea agreement
we could because I felt like, in the end, the jury was going to convict him.” He also testified that the Defendant

felt very strongly that his wife had done him wrong, and that he “was af raid if [th e Defend ant] took the stand and wasn’t sufficiently sorry in fr ont of the jury abou

t all the te

rrible things that had happened on that evening, that the jury would become angry and sla m him.”-3- ANALYSIS In this petitio n for post-convic tion relie f, the De fendant claims that his convictions are constituti onally

impaired as the re sult of ineffective assistance of counsel and prosec utorial misconduct. To sustai n a petition for post-conviction relief, a defendant must prove his or her factual allegations by

clear and convincing evidence at an evidentiary

hearing. See Tenn. Code Ann. § 40-30-2 10(f); Momon v. Sta te , 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court w ill notreweigh or

reeval uate the evidenc e below; a

ll question s concer

ning the credibi lity

of witnes ses, the weight

and value

to be giv en their

te stim ony, and the fa

ctual issues raised by the

evidence are to be resolved by the tria

l judge, not the appellate courts. See Momon , 18 S.W.3d a t 156; Henley
v. State , 960 S .W.2 d 572, 578-7 9 (Ten n. 199 7). Th e tria l jud ge’s fi ndin gs of fact on a petition for post-conviction relief are afforded the w eight of a jury ver

dict and are conclusive on appeal unless the evidence pre pon derates against those findings. See Momon , 18 S.W.3d a t 156; Henley , 960 S.W.2d at 578-79. We first address the Defendant ’s c laim that he rece ived inef fective assistanc e of coun sel. Both the Sixth Amendment to the Un ited Stat es Constitution and Article I, § 9 of the Tennessee Constitution guarantee a defe ndant the right to representat ion by counsel. See State v. Burns , 6 S.W.3d 453, 461 ( Tenn. 199 9); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). T h is right t o counsel includes the right to effective counsel. See Strickland v. Washington , 466 U.S. 668, 686 (1984); Burns , 6 S.W.3d at 461; Baxter , 523 S.W.2d at 936.

To determine whether counsel provided effective assistan ce at tri a l, the court must decide whether counsel’s performance was wi thin the range of compe

tence de manded of

attorne ys i n criminal cases. See 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 claim that his or her counsel was inef fective at trial, a defendant bears the burden of showing that counsel made err ors so serious that he or she was not functioning as counsel as gua

rantee d under th

e Sixth Amendment and that the deficient representation prejudiced the defendant resulting in a failure to produce a reliable resul t. See Strick land , 466 U.S. at 687 ; Burns , 6 S.W.3d at 4 61; Hicks , 983 S.W.2d at 245. To sat isfy the s econd prong, the defe ndant must show a reasonable probability that, but for

counsel’ s unreas onable

error, the fact finder would have had reasona

ble doubt rega rding the defendant’s guilt. See Strickland , 466 U.S. a t 694-95. T

his
reasona ble probabil

ity must be “sufficient to undermine confidence 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 measuring ineffective assistance of counsel also applies to claims arising ou t of th e plea process. See Hill v. Lockhart , 474 U.S. 52, 57 (1985). The prejudi ce requirem ent is modif ied so tha

t the def endant “ must show th at there is a rea sonable probabil ity that, but for

counsel’ s error s, he woul d not have pleaded guilty and would have insisted on going 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

hindsigh t to second- guess trial stra

tegy and crit icize counsel’s ta

cti cs. 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. Se e Strickland , 4 66 U.S. at 6 90; Hicks , 983 S.W.2d at 246.2 In his peti ti on for p ost-co nvic tion re lief, the D efen dan t allege d tha t his law yer w as inef fectiv e in failin g to

thor oug hly inves ti gate the c ase, fai li ng to int ervi ew witnes ses, and fai li ng to have his competency test ed. At the he ari ng, how ever, the Def

endant offer ed no proof as t o what addi ti onal i nvest igation def ense c ounsel shoul d have undert aken, what addit

ional witne sses shoul d have been i nter viewed, or what a competency e valuat

ion wo uld have re vealed . These unsupp orted allegations of ineffect ive assist ance therefore provide no basis for reli ef.
-4- In support of his claim that he received ineffe cti ve assistance of counsel, the Defendant asserts on appeal 2 that Mr. Bell “refused to present the evidence of the victim’s recanted testimony
or of the Defendant’s diminished capacity, i.e. intoxication.” The Defendant misstates the facts. The proof adduce d at the po st-convi ction hea ring esta blished th at defe

nse counsel c oncluded

that a jury would likely convict the Defendant of some offense, and that the Defendant

pled guilty because he
was “scared” of the prospect of be ing sentence d to tw enty-fiv e years at one hundred per cent. Defens e counsel did not “refuse” to do anything. Rather, the Defenda ntand defe

nse counsel decided together that a ple a agree

ment was i n the Def

endant’ s best inte

rest.
The trial court found that defense counsel ’s ev aluation of the Defendant’s case was “reasonable” and that the plea agreement was “re asonable and a good tactic.” The cour

t specifi cally concluded

that “Mr. Bell did effectively represent” the De fendant. The tria

l court fo und that Ms

. Easterly’s recantation “is simply not credible” and found further that, given her “volatile personality, . . . no one could be certain what her testimony would be when she got on the witness stand.”

The Defendant has failed to demonstrate that his counsel committed

errors so grievous as to deny him the effe ctive as sistance of counse

l. Accor dingly, thi s issue is w ithout mer it.

The Defend ant next c ontends th at his kidn apping co nviction isth e result of prosecutorial misconduct. He asserts that, because Ms. Easterly had recanted her original statement to the police by the time sh

e met with

the distri ct attorne y’s office, “no case was to be had for a kidnapping charge of whatever degree.” The Defend ant claim s that he w as prose cuted in t his case because Ms. Easterly had earlier

begun and dismissed a similar case, and in spite of “a question . . . concerning the key witness[’s] testimony and overall truthfulness.”

The gist of

the Defendant’s claim of prosecutorial misconduct is that the district attorney had insufficient

evidence on which

to proceed. We disagree. A videotape of the police stop reveals, as found by th

e trial c ourt, “a

scene of extreme fear and violence.” Ms. Easterly can be heard telling the police that the Defendant forced her into the pickup by pointing a gun at her . That Ms. E asterly may later have recanted this statement did not render the Defendant’s actions any less a menable to prosecution: rather, it simply created a jury question a s to which o f Ms. Easterl y’s vers ion of eve

nts was the more credible. As our supreme court has repeatedly re cognized, [T]here are no s tatutory criteria governing the exercise of the prosecutorial discreti on traditi onally vested in the offic er in determining whether, when, and aga inst whom to institute criminal-5- procee dings. Indeed, it has been often recognized that ‘prosecutorial discretion in the charging process is very broad.’ So long as the prosecutor

has proba

ble cause to believe that the accused committed
an offense, the decision whether to prosec ute, and w hat char ge to bring before a grand jury

genera lly rests entirely within the discretion of the prosecution

. . . . Ramsey v. Town of Oliver Springs , 998 S.W.2d 207, 210 (Tenn. 1999) (quoting State v. Superior Oil, Inc. , 875 S.W.2d 658, 660 (Tenn. 1994)) (emphasis partially added). In this case, the district attorney clearly

had prob able ca

use to se ek a convict ion again st the Def endant f or espec ially aggravated

kidnapping. Se e Tenn. Cod e Ann. § 39 -13-305( a)(1) ( providing that espe cially aggravated

kidnapping is committed when the accused falsely imprisons someone with the use of a deadly weapon) . Accor

dingly, thi s issue is w ithout mer it. The Defendant having failed to establish his allegations by clear and convincing evidence, the judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE