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

Briefs J uly 22, 2003
STEVEN BERNA RD WLODARZ v. STATE OF TEN NESSEE
Appeal from the Criminal Court for Hawkins County No. 7772 James E. Beckner, Judge

No. E2002-02798-CCA-R3-PC December 3, 2003

The petitioner, Steven Bernard Wlodarz, appeals the Hawkins County Criminal Court’s denial of his petition for post-conviction relief from his guilty pleas to first deg ree premeditated murder, atte mpted first degree premeditated murder , two counts of aggravated a ssault, and one count of manufacturing a Schedule VI controlled substanc e and resulting sentence of life withoutparole. He claims that his guilty pleas we re not knowingly , intelligently, and voluntarily entered because (1) his trial counsel coerced him into pleading guilty , (2) his trial counsel failed to inform him of important defense evidenc e befor

e he acc epted the

st ate’ s plea offer, and (3) he was taking medications that may have af fected his ability

to unders tand his pl eas. In addition, he contends that he received the ineffectiveassis tance o f coun sel be cause h is tr ial at torne ys waived one of his p relim inary hear ings withouthis consent, failed to file a motion to suppress evidence, and failed to pre pare a defense. We affirm the trial court’s denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and N ORMA M C G EE O GLE , J., joined.
Way ne R. S tamba

ugh, Morr

istow n, Tennes see, for t

he ap pella nt, St even Ber nard Wloda rz.
Paul G. Su mm er s, At to rn ey G en er al an d R ep or te r; Br en t C . C he rr y, Assistant Attorney Genera l; C. Berkeley Bell, Jr., District Attorney Gene ral; andJohn Douglas Godbee, Assistant District Attorney General, for the appellee, State of Te nnessee.1 The reco rd refle cts that defense counsel agreed for the state t o file a “ writt en offense report contai ning all the

facts of the ca se” an d to re ly on the “image book” previously f iled, which t

he trial court described as “rather exhaus tive of all t he pictures and doc ume nts in the ca se.” T he trial co urt also r eferre d to hearings and pretrial conferences involvi ng evidence t

hat def ense couns el st

ipulat ed to be the stat e’s ev idence.

-2- OPINION

This case relates to the pet i tioner’skilling O fficer

Gerald G

ibson of the Hawkin s County Sheriff’s Department. Although n o fact s were p resent ed at t he guil ty plea he aring, 1 the record
re flects that on July 13, 2000, police officers wer e dispatched to the scene of a home burg lary on ShortRoad near Rogersville, Tennessee. When they arrived, a witness gave a de sc ription of the suspect, which matched the petitioner. Officers went to the pet itioner’ s home and

confron ted him, and the petitioner pulled out a shotgunand ordered the officers off his prope rty. The officers left the scene; obtained

arrest w arrant s again st the peti tioner fo r attempt ed agg ravate d burgla

ry , vandali sm, and two count s of agg

ravate d assault ; and ret

urned to t

h e petitio ner’s home. The petitioner barricaded

himself inside, and a tactical unit was called. After se veral hours, the u

nit tried t o force the petitione

r out of hi s house

by shooting tear

gas canisters into it. During the melee, the victim was shot once in the head.

Pursuant to a plea agreement, the petitioner pled guilty on September

18, 2001, to first degree premeditated

murder; attempted first degree pre meditated murder, a Class A felony; two counts of aggravated

assault, a Clas s C felony; and one count of manufacturing a Schedule VI controlled substance, a Class C felony . The tria l court se ntenced him as a Ra

nge I , standar

d offend er to concurrent

sentences of life without parole for the murder con viction, twenty-five y ears for the attempted murder

convicti on, six years fo

r each a ggra vated as sault

conviction, and six years for the manufacturing a Schedule VI controlled substance conviction.

At the post-conviction evidentiary hearing, the petitioner testified that on the day of the offenses, he began drinking shortly after da

ylight and dra

nk one-half a bottle

of whiske

y. He said the police had no probable cause to suspect a burglary had been committed when the y c ame to his homeon July 13, 2000. He said th at when p olice of ficers f irst arr ived at hi s house, they did not have an arrest warrant

and did not tell him why they were there. He said th at the da y a fter the offense s, the police obtained a search warrant for his house. He said that during a preliminary hea

ring for his bu rg la ry, assault, and vand alism cha rges, o fficer s made sta

tements that contradict ed the affidavit that had been filed to obtain the search warra nt.

The petitioner testified that he was charged with ca pital murder

and that two attorneys we re appointed to repre sent him. H e said tha t he met with his lead

trial atto rney ten to twenty times and that some meetings lasted morethan one hour. He acknowledged that his lead a ttorney went over the charges and the

elements of the offenses with him. He said he was evaluat ed by a psycholog ist and was found to be competent to stand trial. H e said that his lead attorney told him he had no defense and that he would f

ace the death pe nalty if he did n ot acce

pt the stat e’s plea offer. He said the fact that

he drank alcohol on the day of th e o ff en se s s ho ul d h av e b ee n c on si de re d b y hi s a tt or ne ys-3-

and that his lead atto

rney told him intoxication was not a defense. He said that he had other defenses such as self-defense but that he and hi s a tt or ne ys did not discuss them. He acknowledged that he and his lead atto

rney talked a bout bulle

t frag ments that

were re covere d from the

victim and

th at his attorneys had the

bullet fragments tested.

The petitione

r testified that his le ad trial a ttorney told him tha

t most peop le on death row “go nuts because they

are isolated and they

have no relationship with anyone outside.” He said his lead attorney told him that if he accepted the state’s plea offer, he could continue to vi si t w it h h is fa mi ly. He said that a

few day s before

he acce pted the s tate’s of

fer, hislead atto

rney told him that he needed to telephone his ex-wife and child ren. He said that h

is lead a ttorney had his ex- wife adv

ise him to plea d guilty and also had Roz Andrew s, a mitig ation con sultant, ta lk to him and

convince him to accept the state’s offer. He said that he was prescribed Paxil and Depokote in jail, that he took the drugs f rom July to Novemb er 2001, and that t he medic ations may

have af fected his judgm

ent.

On cross-e xamination, the then fifty-y ear-old petitioner testified that he had a high school diploma. He said that on the day of the offenses, he did not aim before he fired his gun and that he only fired “ back-of f” shots in response to two shots that had been fired at him. He acknowledg ed that the trial court asked him a series of questions at the guilty plea hearing and that the court asked him if he was under the influence of any thing that m ight af fect hi s unde rstan ding o f the h earing. He said that if he had not answered the trial court’s questions appropria tely, the court would not have
ac ce pt ed hi s p le as an d h e w ou ld ha ve fa ce d t he de at h p en al ty.

The petitioner’s lead trial attorney testified that he had been practicing law since 1977. He said that after he was appointed to represent the pe titioner , he assembled a defense team that included another

appointe d attorne

y, a n investig ator, a p syc

hologis t, a mitigati on consult ant firm, and a jury consultant. He said that he repr esented the pe titioner at the preliminary he aring on the attempted burglary

and vandalism charges. He said that af ter the hearing, the

state filed additional charges against the petitioner. He said that a few day s after t

he shooting, his investigator visited the crime scene. He said he

also wen t to the cr ime scene ten to tw enty

times. He said that the defense objectedto eve rything t he sta te pres ented and th at hear ings were held. He said he went over the charges and the state’s plea offer with the petitioner. He said he di d not coer

ce the pe titioner i nto pl ea di ng gu il ty.

On cross-e

xaminati on, the petitioner’s lea d attorney testified that he was handling many

other
cases while he was r epresenting the petitioner. He said that at the pre liminary hearing , officers testified that they went to the petitioner’ s house with an arrest warrant. He said that he a nd his defense team met with the petitioner many times and that in orde r to defend the case, he

was going to stress to t

he jury that the p olice of

ficers’ actions d

rove the petitione r to shoot th

e victim. He said that accord ing tostate witn

esses, tw o shots we

re fire d from a window in the petitione r’s home and
one of them stru ck t he victim as the victim peeked around the corner of a shed in the petitioner’s yard. He said that bullet fra gments found in the victim were tested, that the fragments did not match the petitione

r’s gun “perfectly ,” and tha

t he could have cr oss-examin

ed state witnesse s extensive

ly about that. He said th

e fragments matc

hed anoth er gun found in the petitioner’s house that was not-4-

firedby the petitioner. He sa id thathe received some of the tests results before the petitioner pled guilt y and that he may have receiv ed one set of resul ts aft er the p etit ioner ’s guil ty plea he aring.

The petitioner’s lead attorney testified that the petitioner told h im the pet itioner had been drinking on the day of the of fenses. He said, though, that the petitioner made statements which indicatedthe petitione

r had not b een intoxic ated. He said that h

e told the petitioner intoxication was
no t a defense bu t that it could negate the mental state required for the crime. He said that he was preparing for trial when the petitioner pled guilty and that the petitioner’s defense was going to foc us on the police’s actions and the petitioner’s psyc hological background. He said th at such a defense would have been difficult but that thepetitione r may have be en acqu

itted with l

uck. He s aid

that the petitioner had an I.Q. of

107 and was bright at times and depressed at times. He said the petitioner wantedto talk to the petitioner’s family and Roz Andrew s about the state’s plea offer. He said that no one told the petitioner he had no defense and that the petitioner decided to plead guilty.

The trial cou

rt deter mined tha t the petit ioner’strial atto

rney s d eveloped defens es and theories of the case, filed every

conceivable motion, considered all of the evidence, investiga ted the case, and didevery thing tha t could be expec ted for the petitioner. It stated that the pe titioner discussed the state’s plea offer

with his family

and a mitig ation con sultant and that he d ecided t o plead g uilty in
o rder to av oi d t he de at h p en al ty. Th e t ri al co ur t n ot ed th at th e p et it io ne r’ s g ui lt y plea hea rin g transcript spans twen ty-one page s, is thorough, and shows that the petitioner was alert, sober, articulate, and understood what he was doing when he pled guilty. The tria

l court also noted that the petitioner stated at the guilty plea

hearing that he was not

forced or coerced to plead g uilty and that he was satisfied with his attorneys. The trial court stated that the evidence agains tthe petitioner had been overwhelming and that a jury probably would have

imposed the death penalty. T he trial court held that his guilty pleas we

re kno wingly, intellig ently, and voluntarily entered and that the petitioner did not re ceive the ineff

ective a ssistance

of counse

l.

Initi ally we note tha t the pe titioner a nd his coun sel have

submitted a s a supple

ment to his brief the petitioner’s personal rendition of the events surrounding theshooting , the polic e’s cond uct, and his tria

l attorn eys’ def

iciencies. The supplement also contains the petitioner’s assertions regarding his post-c onviction

counsel’ s def

iciencies. Documents and photographs are attached. How ever, we are l imited to the facts as they we re developed in the trial court, their first assertion upon appeal being futile. As for the complaints about post-conviction counse l and th e lack of a continuance to prepare for the hearing , the rec or d is insufficient to warrant any action by us on appeal.
I. KNOWING, INTELLIGENT, AND VOLUNTARY PLEAS

The petitioner con tends that his guilty pleas were not knowing ly, intellig ently , and volu ntarily entered because his attorney s coerced him into ple ading g

uilty by telling him that life on dea th row would be harsh and by

having his family

and a mitig ation con sultant co nvince him to acce pt th e state’s plea offer. I

n addition, he contends that his pleas were not knowingly and voluntarily enter

ed because his attorneys did not tell him about the bullet fragment test results before he accepted the-5-

state’s offer. Finally , he contends that his pleas were not

knowing ly, intellig ently , and voluntarily entered because he was taking medications at the time of the plea hea ring that may

have affec ted his ability to understand what he was doing. The state claims that the pe ti ti on er kn ow in gl y, i nt el li ge nt ly, and voluntarily enter

ed his pleas. We agree with the state.

In order f or a conv iction ba sed upon a

guilty plea to c omport wit

h due pro cess, the plea

must be vo lu nt ar il y, k no wi ng ly, and understandingly entered. Boy

kin v. Ala bama , 395 U.S. 238, 242-44, 89 S. Ct. 1709, 1712 (1969). A guilty pl ea is not v olu ntary “if it is the product of ‘[i]gnorance, incomprehension, coerci on, terr or, induc ements, [or] subtle or blatant threats . . . .” Blankenship v. State , 858 S .W.2 d 897, 904 (T enn. 1 993) ( quot ing Boy kin , 395 U.S. at 242-43, 89 S. Ct. at 1712). The standard for assessingthe valid ity o f a guil

ty p lea is “‘whether the plea represe nts a voluntary and intelligent choice among the alternative c ourses of action open to the defendant.’” Id. (quoting North Carolina v. Alford , 400 U.S. 2 5, 31, 91 S. C t. 160, 164 (1970)). “[T]he record of acceptance of a defendant’s pl ea of g

uilty must affi rmativel y demonstrate that his decision was both voluntary and knowledgeable, i.e., that he has been made aware of the significant consequences of such a plea; otherwise, it will not amount to an ‘intentional abandonment of a known right.’” Mackey , 55 3 S.W.2d 337, 340 (Tenn. 1977). To assess whether a petitioner enter ed a knowing, voluntary , and intelligent

guilty plea, this cour

t must consider the totality of the circumstanc es. State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995).

In this case, the petitioner’s lead trial attorney testified that

he had developed a defense, that this would have been a difficult case to win, that the petitioner decided to accept the state’s plea offer after speaking with his fa

mil y and a m

itigation consultant, and that no one coerced the petitioner. The trial court accredited the attorney ’s testimony and held that the petitioner wa s motivated to plead guilty by his desire to avoid the dea th p e nalty. We note that the petitioner testified that he appropr iately answered the trial court’s questions at the guilty plea hearing in order for the trial court to accept his guilty pleas and a

llow him to avoid the death penalty. This supports the trial c ourt’s concluding that the petitioner decided to plead g uilty in order to rece

ive a lesser punishment.

As to the petitioner’s claim that medicati on affe cted his a bility to unders tand his pleas, the trial court determined

that the guilty plea he aring transcript demonstrated otherwise. Our review of the guilty plea hearing shows that the trial court questioned the petitioner extensively and that the petitioner answered yes and no at the appropriate times. I n addition, the tri al court asked the petitioner if he had any

physical or mental conditions that would prevent him from understanding the hearing, and the

petitioner answered, “No, y our Honor.” Regarding the pe titioner’s claim that his pleas were not knowingly and voluntarily enter

ed because his attorney s did not tell him about the bulle tfragm

ent test r esults, we

note that

the petiti oner’s a

ttorney only testifie d that the

bull e t fragm ents did not match the petitioner’s gun “p erfectly .” The attorney also stated that state witnesses
were prepared

to testify that two shots were

fired fr om a windo w in the pe

titioner’ s house

and that
one of the shots hit the victim. Moreover, the petitioner has presented no scientific evidenc e to show that the bullet fragments recovered f rom the victim did not come from the petitioner’s weapon. The trial court held that the evidence against the petitioner had been overwhe lming. We conclude that-6-

the petitioner has failed to show that he did not knowingly , intelligently, and vo luntar ily e nter his guilty pleas.

II. INEF FECTIVE A SSISTANCE OF COUNSEL

The petitioner contends that he received the ineffective assistance of counsel b ecause

his trial counsel waived the pre limina ry hear ing for his murder, attempted murder, and manufa cturing charges without hisconsent; failed to file a motion to suppress evidence that was obtained pursuant to an illeg al sear

ch warr ant; and f ail ed to pre pare a defense. The state cla ims that the petitioner received the effective assistanc e of counsel. We agree with the state.

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance wa s deficient and (2) that the deficie ncy was pre judicial in terms of

render ing a re asonable

probabil ity that the result of the trial was unreliable or the proceeding s fundamentally unfa ir. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (198 4); see Lock hart v. F retwell , 506 U.S. 3 64, 368-7 2, 113 S. Ct. 838, 842-44 (1993). The Strickland standard has been applied to the right to couns el under art icl e I, section 9 of the Tennessee Constitution. State v. Melson , 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 at to rn eys should be held to the general standard of whe ther the s erv ices rendered were within the range of competence demanded of attorneys in cr

iminal cases. Further, the court state d that the ran ge of competence was to be measured by the duties and criteria set forth in Beasley v. United States , 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster , 487 F.2d1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every e ffort be made to eliminate the distorting effects of hindsig ht, to reconstruct the
c i rcumstances of counsel’s challenged conduct, a nd to evaluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. a t 689, 104 S. Ct. at 2065 ; see Hellard v. State , 629 S.W.2d 4, 9 (Ten

n. 1982). Thus, the

fact tha t a partic ular stra tegy or tactic failed or even hurt the defense does not, a

lone, supp ort a cla

imof ineff

ective a ssistance . Defer

ence is made t o tria l str ategy
or tactica l choice s if they

are in fo rmed ones based upon adequate prepar ation. See Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201.

The burden is on the petitioner to prove his grounds fo r relief b y clear and convincing evidence. T.C.A. § 40-30- 21 0(f). On appeal, we are bound by the trial court’s findings of fact unless we conclude that the evidence in the rec ord preponderates against those findings. Fields v. State , 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions of law andfact, we review the trial court’s conclusions as to whether counsel’s performance wa s deficient and whether that deficiency

was prejudicial under a de novo standar d with no pr

esumption

of corr ectness

. Id. at 457.
Regardi ng the petitioner’s claim that his attorney s were ineffective for waiving the petitioner’s preliminary he aring on the murder, attempted murder, and manufacturing a controlled-7-

substance charges, we

note that the petitioner

never questioned his lead attorney at the evidentiary hearing about why the attorne y waived the pr

eliminary hear

ing. In a ny event, the petitioner has presented no evidence that waiving the p relimina ry hearing chang ed the out

come of his ca se. As to his claim that his attorneys fa iled to develop a defense, the trial court accredited the petitioner’s lead trial counsel, who testified that he th orough ly in vestiga ted the pe titioner’ s case a

nd planne d to use the police’s actions and the petitioner’s mental condition as a d ef en se . F in al ly, as to the petitioner’s cl a imthat his attorneys wer e ineffective for failing to file a motion to suppress evidence that was obtained as a

result of an illegal search war rant, this court has stated

that if ar guable ground s exist to suppressincrimina

ting evi dence, then an a

ttorney , as a zea

lous advoc ate for

th e clien t, should
move to suppress that evidence. See Robert C. B ellafan t v. State , No. 01C01-9705 -CC -00183, Maury County, slip op. at 10 (Tenn. Crim. Ap p. M ay 15, 1998). Howe ver, the petitioner has presented no proof

that any sear

ch warrant was invalid and, therefore , that any evidenc e collected
was inadmissible. As a result, he has failed to show that his attorney s rende red deficient performance

for f ai li ng to fi le a m ot io n t o s up pr es s o r t ha t h e w as pr ej ud ic ed by a ny d ef ic ie nc y. Thus, he is not entitled to relief.

Based upon the foregoingand the r ecord a s a whole , we aff

irm the jud

gment of the trial court.

____________________________________ JOSEPH M. TIPTON, JUDGE