### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs N ove m be r 29, 200 5

JAM ES LE ATH v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for K nox Coun ty No. 46869 Mar y Beth Leibow itz, Judge

No. E2004-02708-CC A-R3- P C - F iled Dece m ber 28, 2005

Th e pe tit ion e r, Jame s L e a th, app e a ls the de nia l of his pe tit ion fo r pos t- c on vic tio n re lie f. Th e sin g le issue prese nted for r eview is whe ther the pe titioner was denied the eff ective assistance of counse l

a t tria l. T he jud g me nt i s r e ve rs e d a ndthe c a us e is r e ma nd e d w ith ins truc tio ns

. Tenn. R. App . P . 3; Judgme nt of th e Trial Court is Re verse d and Rem anded

G AR Y R. W ADE , P.J ., delivere d the opinion of the court, in which J OS EP H M. T I PTON and T HOMAS T. W O O D A LL , J J ., joined.

Ge ra ld L . G ull e y , Jr. , K no xvill e , T e nn e sse e (o n a pp e a l) , a ndT i m o th y

E

. I r wi n a ndL arry

Chu rc hw e ll, Knoxvi lle, Tenne ssee ( at trial), f or the a ppellant, J ames L eath.

Pa ul G . Su mmer s , A t

t o rn e y G e n e ra l & Re po rt e r; L e sli e Pr ic e , A ssi sta nt A tto rn e y Ge ne ra l; a ndKe vin Allen, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

On Octobe r 26, 1988, the pe titioner was convic ted of three counts of ag g ravated ra pe. The trial court imposed an eff ective sentenc e of life plus f orty y ear s. This c ourt aff irmed o n d irec t ap p eal. St ate v. James L eath, No. 1238 ( Tenn. Crim. App., at Knoxvill e, Nov. 21, 1989) . The convictions wer e base d upon alleg ations that the petitioner ha d forc ed his twelve- y ear -old nephe w to submit to anal interc ourse on thre e sepa rate occa sions within a one-we ek period.

On Marc h 24, 1992, the petitioner filed a petition for post-conviction re lief alleg ing that he had bee n denied the e ffe ctive assist ance of counsel. The petiti oner spe cifica lly asserted that his trial counsel ha d failed to interview potential witnesses, had failed to ma ke timely objections, had fa iled to advise of a

potentially

enhanc ed sente nce, and h ad lost or misplaced a n exculpatory rec orded
state me nt b y

the vic tim

.-2-

The pe titioner also alleg ed that the jury was improperly assembled and that one juror ha d a close friendship with the Dis trict Attorney Gene ral. He asserted that the evide nce did not support the ver dict, that there was no medic al evidence corrobor ating the ra pe, that the victim' s testimony

was c ontradictory
, and that the trial court er roneously admitted "f

resh c omplaint" testimony and improperly

allowed the sta te to bolster the cr edibilityof a w itnes s

. T h e petitioner a lso contended that the t rial court failed to char g e lesser included offenses, and err oneously denied a reque st for a

c on tin ua nc e . H e a c c us e d th e state of pr os e c uto ri a l mi sc on du c t by imp ro pe r c los ing arg ume nt.

I n 1997, counsel wa s appointed to repr esent the pe titioner in the post-conviction proce eding

a ndthe state fi le d a n a ns we r. B e c a us e of the un a va ila bil ity of tr ia l c ou ns e l, C e c il Se ttl e mir e , a s a witness, the petitioner a sked for and re ceive d a continuanc e of the initial h ea ri n g. I n 2002, trial

co u n s el, who described himself a s an ac quaintance of the orig inal post-conviction judg e, filed a motion seeking rec usal bec ause of the possible "a

ppear ance of i mpropriety ." At the same time, trial counsel filed a mot ion seeking the recusal of the Dis trict Attorney Gene ral, Randa ll Nichols, who had pre sided as judg e in the trial of the case in 1988. Trial counse l expre s s ed a fe ar of persona l prejudice towards him by the District Attorney . He a lso submit ted that the District Attorne y might be c a lle d a s a

wi tne ss i n th e c a se . Subs e qu e ntl y , pos t- c on vic tio n co un se l file d a sep arate mot ion to disqualify t h e en t ire Knox CountyDistrict Attorney Gene ral' s Offic e fr om participating in the
p ro ce ed i n g.

T he ca se wa s transfe rre d by J udg e Richar d Baumga

rtner f rom Division I

of the Criminal Court of Knox County to Division I I I

. After war d, J udg e Mary Be th L eibowitz denied the motions seeking the disqualification of the District Attorney Gene ral' s Offic e.
On September

3, 2002, the petitioner filed an amendment to the petition rea sserting his init ial
g ro un ds a ndmakin g a dd iti on a l a lle g a tio ns :

Upon ref lection it is now clea

r to me that my trial attorney was suff ering from del u s i o n s , m ental il lness, and g reat stress and depr ession during my trial. He ha s since resig ned his lice nse. Be cause of his mental incompetenc e, he w as ineff ective

a ndun able to a de qu a te ly re pr e sent my in te re st at my tr ia l. S pe c if

ic a lly he los t

e vid e nc e , fa ile d to c on ta c t wi tne sse s in a tim e ly fa sh ion
, arg ue d a n unrea so nab le theory of def ense, f ailed to pre pare me as a witness, or make me awa re of options or enhanc ing fac t ors prior to trial, a nd g ener ally failed a s my

advocate due to mental ill ne ss.

L a te r, At torney S ett lem ir e fa ile d to app e ar a s a wi tne ss at th e e vid e nti ary he ari ng . A mot ion to continue by

the petitioner wa s g rante d and a f utile effort was made to serve him with a subpoe na. L ater , it was established that Attorney Settlemire had indeed resig ned his la w license and could not be pr od uc e d a s a

wi tne ss.

On Au g ust 4, 2004, the post-conviction court c onducted the e videntiary hearing. T he petitioner testified that his t rial counsel was appointed at t he ti me of his ar raig nment in the criminal-3-

c ou rt . H e c la ime d th a t he me t w ith tr ia l c ou ns e l f or on ly thr e e or fo ur min ute s on that date , me t w ith him for ten minutes about two we eks later , and ha d h i s t h i rd and f inal meeting with him for

app ro xima te ly

fi ve min ute s o n the nig ht b e fo re the tr ia l. T he pe tit ion e r c on te nd e d th a t a t th e la st meeting , someone re prese nting the D istrict Attorney ' s office commu n ic ate d an off er of a twenty -y ear sentenc e in exchang e f

o r a gu i l t y p l ea. H e asse rted that he had informe d his trial counsel about Debbie A rnold, a potential c hara cter witness, and Billy Smit h, who was both a char acte r witness and

a po te nti a l a lib i wi tne ss. He c la ime d th a t e a c h w a s u na ble to m ake arr a ng e me nts to t e sti fy be c a us e they wer e not timely

notified of the tria l date. He testified that his counsel had failed to subpoena either of the two witnesses for

trial. The pe titioner, who confirmed that he had a differ ent attorne y prior to his pr eliminary hearing and acknow ledg ed that he had waived the hea ring in exchang e for a tape -re corde d statement by th e v i cti m to a Depa

rtment of Human Ser vices wor ker, c laimed that he lis te ne d to the tape wi th h is c ou ns e l, w ho e ve ntu a lly los t it

. The pe titione r co n tended that he and his trial counse l got into an a rg ument on the nig ht befor e his trial over the tape and the l ack of prepa ration. He contended that he had asked his trial counsel to see k a continuanc e of the trial and that trial counsel had failed to do so. The pe titioner, who qualified as a R ang e I I offe nder and was on parole at t he ti me of these offe nses, also testified that h i s trial counsel f

ailed to inform him that he fa ced life sentenc es and possible c onsecutive
sentenc ing. H e conte nded that the f irst discussion about the possible rang e of his sentences took place either "during the trial or afte r the trial." The petitioner insisted that it was his understanding
t h at t h e m ax i m u mp o s s i b l e s en t en ce wa s t we n t y y ea rs , ex p l ai n i n g t h at wa s t h e r ea s o n h e r ea l l y d i d n 't consider the state' s offe r to plea ba rg ain. He r eca lled that when he exp re s s ed concern to his trial

co u n s el ab o u tgo i n g t o tri al wi t h o u tei t h ero f h i s t wo wi t n es s es o r t h e t ap e r ec o rd i n g o f t h e v i ct i m 's statement, trial counse l responded that "he had it under control." The petiti oner ex plained that he simply"took his word at it." He a cknowledg ed that he ha d listened to the tape the night be fore trial and that his primary

complaint was that it had not bee n play ed for the jury . He a lleg ed that his trial

c ou ns e l w a s o pti mis tic abo ut a fa vo ra ble re su lt at tria l.

On cr oss-examination, t h e p et i tioner admitted that he ha d been c onvicted in 1983 for the
ag g ravated ra

pe of his daug hter, had rec eived a sentenc e of twe nty y ear s, and wa s on parole f rom that

s en t en ce at t h e t i m e o f t h e o ff en s e s a t i s s u e i n t h i s ca s e. He co n ce d ed t h at h e h ad a r ap e c h ar ge involving anot h er m ale victim pending at the time of his trial on the subject convic tions. The petitioner ac knowledg ed that h i s d ef en s e at trial on these c harg es wa s that he did not commit the
rape s. He also admitted that throug h the eff orts of his tria l c ounsel, he had been offe re d a m ental evaluation by

the Hele n Ross McNabb Center in Knox ville but had reje cted the of fer

.

The petitioner stated that his tria l c ounsel was awa re of the contents of the tape and that the victim, during his testi mony , admitted that he had initially denied pe netra tion, the essence of the tape' s content. When pr essed about what Debbie Arnold might have said at trial
, t h e p eti tioner

answe red, "I ' m not exactly sure what she was g oing to say , but she

. . . was g oing to g et up there as

a wi tne ss. We ha d kn ow n e a c h oth e r fo r a c ou ple of mon ths ." He a c kn ow le dg e d th a t Ms . A rn old

was a w ar e o f h is p r io r c o n v ic ti o n

. T h e p e ti ti o n e r s tate d th a t h e h a d me t B il ly Sm ith, his other-4-

potential witness, in prison. He state d that as a pa rt of the r equire ments of his parole, he lived and worke d for Smith after his re lease from custody

. By ag ree ment, an af

fidavit of De bbie Arnold wa s submi t t ed as evidenc e. I n her sworn statement, Ms. Arnold confirme d that she had me t with the petitioner throug h her Christian ministry

se rv ic e a ndre c a lle d h a vin g le ft a me ssa g e wi th tria l counse l' s se c re tary a t th e pe tit ion e r' s r e qu e st. She stated that she c alled a second tim e, talked to the petit ioner' s trial counsel, a nd informed him of his client' s conce rns about the lac k of communica tion.

I t w a s est abli sh e d tha t the vic tim , in his ini tia l st a te me nt, de nie d th a t he ha d b e e n s e xua lly penetr ated by

the petitio n er

. T h e re cord indicates that sometime later, the victim confirmed that the re ha d b e e n pe ne tr a tio n on e a c h o f the thr e e oc c a sio ns a nda ttribu te d h is o ri g ina l un truth fu lne ss to e mba rr a ssm e nt.

Be th Ril ey , post-conviction counse l's r ece ptionist , testified that a s t he custodian of the

re c or ds in h e r l a w o ff

ic e , sh e ha d re c e ive d a n aud iot ape fr om t ri a l c ou ns e l a ft e r the fi lin g of the po stconviction petition. She stated that afte r listening to the ta pe, she de termined that there was nothing on it.

David C. Cree kmore, a former Gene ral Sessions J udg e in Knox County
, testified that he wa s prac ticing la w in 1988 and kne w t rial counse l. He stated that during that time, trial counsel wa s "some times inappropriate ly dresse d for a n attorney

and did not make a lot of sense." He r eca lled that wh ile he sa t a s G e ne ra l Se ssi on s Judg e a s late a s 1 98 6, so me tw o y e ars be fo re the pe tit ion e r' s tria l, trial counsel of

ten made arg uments in unr elated civil c ases that "bor e no rela tionship t o the matter at hand." J udg e Cree kmore a lso remember ed an inc ident when tria l counsel came t o his office and stated that he w as " having problems." He described him a s not rational, unkempt, nee ding a bath, and "ju mp [ in g] f

rom on e su bj ectto ano th er."

J eff rey Ble vins of the Knox C ounty District Attorney Gene ral' s Offic e testified that he was assig ned to pr osecute the petitioner on the three rape char g es. He confirme d that at the time of the
tr ia l, the re wa s a

se pa rate ind ic tme nt pe nd ing a g a ins t the pe tit ion e r fo r the ra pe of a no the r i nd ivi du a l. Gene ral B levins rec alled that the pe titioner had bee n on parole for his 1983 convic tion onlytwo or three months before the cha rg es we re f

iled in thi s ca s e. He remembered ha ving me t with trial counsel re g arding discovery issues, particula rly those perta ining to the r ecor ds of the De partment of Human Servic es. He stated that trial counse l "f iled a bunch of

motions" and late r had a

hearing on

a m o t i o n t o c o m p e l d i s c o v e r y

. G e n e r a l B l e v i n s r e c a l l e d tr i a l c o u n s e l h a v i n g s o u g h ta p s y c hia tr ic evaluation of the petitioner, contested by the state, which trial counsel "w on

. . . and the judg e put do wn a n o rd e r f

or e va luatio n. " Ge ne ra l B le vin s state d th a t th e e va luatio n n e ve r t oo k p la c e be c a us e the pe tit ion e r r e fusedto c oo pe rate . H e re c a lle d th a t he c ommun ic a te d a n o ff e r o f a se nte nc e in

e xch a ng e fo r a

g uil ty ple a to t ri a l c ou ns e l w ho a ns we re d th at he w ou ld d isc us s it wi th h is c lie nt. He sp e c if ic a lly de nie d h a vin g gone to the ja il o n th e nig ht b e fo re the tr ia l or ha vin g dir e c tly communicated an offe r of a plea ag ree ment to the petitioner, explaining that " in twenty -three y ear s of pr os e c uti ng I

ha ve ne ve r don e that." He e mph a tic a lly a sse rt e d th a t he ha d n e ve r s po ke n d ir e c tly-5-

to the petitioner. Gene ral Blevins stated t hat t rial counsel was not incoher ent or irrational during any of his de a lin g s, e xpla ini ng , " He re pr e se nte d h is c lie nt st rong ly . I me a n h e didwh a t a ny

de fe ns e la wy e r s ho uldha ve do ne ." Th e a ssi sta nt dis tr ic t a tto rn e y sp e c if ic a lly re c a lle d that du ri ng the c ou rs e of tr ia l, tr ia l c ou ns e l ha d c ou rt e ou sly a nd y e t e ff e c tiv e ly c ro ss- e xami ne d the c hil d vict im, establishing that the victim had at first informed the authorities t hat t here had bee n no penetr ation. Acc ording to Gener al B levins, trial counsel wa s eff ective be cause he " g ot the child to admit . . . that he said that ther e wa s no penetration" during that i n itial discussion wit h investigators. He specific ally

rec alled that trial counsel c orre ctly pointed out that there w as no cor roborating phy sical evidenc e of the assaults eve n though there had been a m edica l examination of t he victim . Gene ral Ble vins al s o re ca lled that trial counsel, whose defe nse theory was that the pe titioner had not committed any

of the thre e assaults, effe ctiv el y argue d that it would have bee n a phy sical imp os sib ili ty fo r the ra

pe s to ha ve take n p la c e wi tho ut s ome ph y sic a l pain t o th e vic tim . It w a s h is

rec ollection that trial co u n s el was a ble to g et the victim to admit on cross-examination that he suffe red no phy sical pain during the incidents. During Gene ral B levins' s testimony , the state e ntere d
a copy of the pre -sentenc e re port, prepa red a fter the trial, wher ein the petitioner ha d stated that " he was displease d with his c o u rt attorney ' s perf ormanc e bec ause he would not ag ree to call willing witnesses to corr oborate his story about his inc estuous family history or other points he considere d to b e imp orta nt. " Ge ne ra l B le vin s c ha ra c te ri zedtr ia l c ou ns e l' s r e pr e se ntatio n a s f oll ow s:

He r epre sented his client vig orously . He wa s a very competent attorney , at least as competent a s any other attorney that I ' ve eve r had oc casion to be on the other side of the courtroom from.

Whe n a sk e d a

bo ut a ny ir ratio na l beh a vio r, Ge ne ra l Ble vin s ans we re d tha t he h a d " abs olu te ly no t"

seen a ny . I n particula

r, he c omplimented trial counsel for having proposed a n innovative ac complice theory sug g esting that the state ha d an oblig ation to corrobor ate the vic tim's testimony with phy sical evidenc e. Ge nera l Blevins testified that tria l counsel was not succe ssful, howeve r, in persua ding the
tr ia l c ou rt that th is l e g a l arg ume nt h a d me ri t.

On cr o s s -e x am i n at i o n , Ge n er al Bl ev i n s ac k n o wl ed ged t h at h e h ad
, i n fa ct , ac tually made plea offe rs to defe nse attorne y s in the prese nce of their clients and was less certain if he ha d made suc h

an o ff er i n t h i s case or not. He state d that it was possible that he would have made a twenty -y ear of fe r i n th is c a se

. Ge ne ra l B le vin s c on c e de d th a t it wo uldha ve be e n impo rt a nt f or the pe tit ion e r t o know the maximum possible sentence in order to e valuate the offe r.

At the c o n cl u sion of the hea ring , the post-conviction court filed a written memorandum deny ing post-c onviction relief. See Tenn. Code Ann. § 40- 30-118 (1990) (" Upon the fina l dispositi on of every petition, the court shall enter a final order

. . . and shall state the finding s of fa ct and conc lusions of law with reg ard to e ach suc h g round." ). Afte r re citing the t est imony by the various witnesses, the trial court obse rved tha t the peti tioner had be en on par ole for two or three

m o n t h s wh en ch ar ged wi t h t h e t h re e co u n t s o f ra p e. I t d et er m i n ed t h at t h e p et i t i o n erwa s a R an ge I I of fe nd e r b e c a us e of

his pr ior c ri min a l r e c or d a ndoth e rw ise ru le d a s f oll ow s:A l t houg h t he r ecor d i s not en t i r el y cl ear wh et her t he s t at e of fer ed a t wen t y

- y ear s ent enc e or a t wen t y

- f i ve- y ear 1

s en t en ce , mos t of t h e t es t i mon y f r om t h e ev i den t i ar y h ea r i n g s u g g es t s a t we n t y

- y ea r of fer

. T h e di f

fer en ce i n l en g t h of
t he p ro p o sed senten ce , ho w ev er, ha s no eff ec t o n o ur a na l ysi s.

-6- Whil e it is extremely troubling .

. . that Mr. Settlemire' s mental instabilityhas become incre asing ly

appar ent over

the cour se of this post conviction hearing and that there was some pr oof within the post conviction hearing that during these pe riods of tim e Mr . Se ttl e mir e did su ff e r fr om som e me nta l disa bil ity [,] the re is litt le pr oo f i n the re cord tha t Mr. Settlemire failed to unde rstand his ca se or that he did not attempt
t o p rovide Mr. L eath with a c omplete def ense. Mr . Creekmor e' s opinion did not i n v o l v e t h e s am e t i m e f

ra m e [ o f] t h i s ca s e a n d M r. C re e[ k ] m o re wh i l e [ en l i gh t en i n g] as to Mr. Settlemire' s difficulties[,] did not assist t he Court as to whe ther or not the defe nse met the [professional] standards [of p e rf o rma n c e]. Mr. Blevins indica tes that he had ma ny

conver sations with Mr. Settlemire about this case a nd t h at M r. Settlemire did not ap p ea r t o him to be mentally unstable or incompe tent, and that they worke d on the ca se tog ether for [quite] s ome t ime. The Court can only conclude that at least a t the time of trial[,] Mr. Settlemire wa s competent a nd repr esente d Mr. L eath unde r diffic ult circumstance s to the standards se t by Strickland v. Washington and B axter v. Rose . . . .

I n this appea l, the petit ioner arg ues t hat he is entitled to relief beca use hi s trial counsel f

ailed to call possible char acte r and a libi witnesse s

. He also contends that be cause there was uncontrove rted testimony that his trial counsel failed t o advise him of t he potential sentenc es for the
t h re e cr i m es , t h er eb y h av i n g an ad v er s e ef fe ct u p o n h i s d ec i s i o n as t o wh et h ert o ac ce p tt h e s t at e's offe r, he wa s denied the e ffe ctive assistanc e of c ounsel. 1

I nitially
, under the version of the Post-Conviction P roce dure A ct in eff ect at the time of the f i l i n g o f t h i s p e t i t i o n , t h e p e t i t i o n e r b e ar s t h e b u r d e n o f p r o v i n g t h e a l l e g a t i o n s i n t h e p e t i t i o n b y a preponde ranc e of the evidenc e rather than by the clea r and c onvincing standard e stablished by the 1995 amendment. See Clenny v. State, 576 S.W .2d 12, 14 (Tenn. C ri m

. Ap p

. 1978). When a
pe tit ion e r s e e ks po st- c on vic tio n r e lie f o n th e ba sis of ine ff e c tiv e a ssi sta nc e of c ou ns e l, he mus t f ir st establish that the servic es re ndere d or the a dvice g iven wer e belo w "t h e ra n ge of c ompetence demande d of attorne y s in criminal case s." B axter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975)

. Second, he must show that the de ficienc ies " actua lly had an a dverse eff

ect on t h e def

ense." Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petit ioner fail to establish either fa c tor , h e is n ot e nti tle d to re lie f. Ou r s up re me c ou rt de sc ri be d th e sta nd ardof re vie w a s f

oll ow s:

Be cause a petitioner must e stablish both prongs of the test, a failure to prove either deficienc y

or pre judice provide s a suffic ient basis to deny relief on the ineffe ctive assistanc e cla im. I ndeed, a court need not addr ess the compone nts in any particula r orde r or e ven addr ess both if the def endant makes an insuffic ient showing of on e c omp on e nt.-7-

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of ineffe ctive assistance of counsel, the petitioner is not entitl ed to the bene fit of hindsight, may

not second-g uess a r easona bly based tria l strateg y , and cannot criticize a sound, but

unsucce ssful, tactica l decision made dur ing the course of the proc eeding s. Adkins v. State, 911 S.W. 2d 33 4, 34 7 ( Te nn . Crim. Ap p. 19 94 ). Suc h d e fe re nc e to the ta c tic a l de c isi on s o f c ou ns e l, howeve r, applies only

if the choic es ar e made afte r ade quate prep ar at i o n fo r t he ca se. Cooper v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

.

Cla ims of ine ff e c tiv e a ssi sta nc e of

c ou ns e l are re g ard e d a s mi xedqu e sti on s o f l a w a ndfa c t. State v. Honey cutt, 54 S.W .3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999). On a

ppeal, the f

indings of f

act made by the post-conviction court are conclusive and will not be disturbed unless the e vidence contained in the rec ord pre ponderates ag ainst them. Br ooks v. State, 756 S.W .2d 288, 289 (Tenn. Crim. Ap p . 1988). The c redibility of the witnesse s and the weig ht and value to be aff orded the ir testimony

are questions to be resolved by the trial court. Ba tes

v. Sta te , 9 73 S.W. 2d61 5, 63 1 (T e nn

. Cr im. Ap p. 19 97 ). Whe n r e vie wi ng the app lic a tio n o f l a w t o those fac tual finding s, howeve r, our r eview is de novo, and the tria l court' s conclusions of law a re g ive n no pre su mpt ion of c or re c tne ss. F ie lds v. Sta te , 4 0 S. W.3 d 4 50 , 4 57 -5 8 ( Te nn . 2 00 1) ; se e a lso State v. Eng land, 19 S.W.3d 762, 766 (Tenn. 2000).

I

I nit ia lly , th e pe tit ion e r arg ues th at his tr ia l c ou ns e l' s f a ilu re to c a ll D e bb ie Arno ld a s a char acte r witness and Billy Smit h as either a chara cter or alibi witness or both qualifies a s ineffe ctive assistance of counse l. He ar g ues that there is a rea sonable proba bilitythat the testimony

of these two witnesses would have broug ht about a differ ent result, either an outrig ht acquittal or a conviction on lesser c harg es. See B rimmer v. State, 29 S.W.3d 497, 508-09 (Tenn. Crim. App. 1998).

Although a n aff

idavit by Debbie A rnold was introduc ed as stipulated e vidence , neither of the
tw o witn e sse s tes tif

ie d at the e vid e nti ary he ari ng

. Th e a ff ida vit e sta

bli sh e s tha t Ms. A rn oldwo uld h a v e s a i d n o t h i n g m o r e ab o u t t h e p e t i t i o n e r ' s c h ar a c t e r t h a n t h a t s h e w a s a c q u a i n t e d w i t h h i m

. In our view, tha t testimony would not ha ve been helpful. More over, a ny testimonythat either of

the two witness es m ight ha ve provide d bey ond the contents of the aff idavit of Ms. Arnold was not offe re d a t th e e v id e n ti ar y h e ar in g

. G e n e r a ll y , it is in c u mb e n t u p o n th e p e ti ti o n e r to p r o d u ce a ny witnesses at the e videntiaryhearing w ho might have been a ble to provide fa vorable testimonyfor the def ense at trial. Blac k v. State, 794 S.W .2d 752, 757 (Tenn. Crim. App. 1990). Ty pically , that is the only

method of establishing prejudice . I f Smith could have provided the pe titioner with an al i b i h ad h e t es t i fi ed at tri al
, h e s h o u l d h av e b ee n p ro d u ce d as a wi t n es s at t h e ev i d en t i ar y h ea ri n g. Ot h er wi s e, t h i s co u rt co u l d o n l y s p ec u l at e a s t o wh at p re

j u d i ce m ayh av e r es u l t ed b y tri al co u n s el 's failure to subpoena him as a witness. I n short, the petitioner cannot be aff orded r elief ba sed upon the a lle g a tio ns that D e bb ie Arno ld o r B ill y Smith s ho uldha ve be e n c a lle d to te sti fy a t tria l.

II-8-

Next, the petitioner arg ues that his tria l c ounsel' s failure to pr ovide advice as to the potential leng th of the sentenc e is a ba sis for post-conviction re lief. I n support of his claim, he a sserts that the testimony was uncontradicted at the evidentiary hearing, that trial counsel failed to g ive any advice
reg arding the leng th of his pote ntial se ntence upon conviction, and that, in conse quence , he believe d that he would re ceive only a twenty -y ear

sentenc e if c onvicted. He points to his trial counsel' s failure to give adequate advice as the re ason he de clined an of fer by the state for

a lesser sentenc e.

Be cause of his prior criminal recor d, the petitioner qua lified for a Rang e I I sentenc e. At the time of the trial, the se ntence for a Rang e I I offe nder was "not less than t he mi nimum sentence plus one-ha lf (1/2) of the differ ence betwee n the maxim um sentence and the minimum sentence , and not more than the maxi mum sentence ." T enn. Code Ann. § 40- 35-109(b) (1982). Agg ravated ra pe wa s desig nated a s a Class X fe lony , car ry ing a minimum punishment of twenty y ea rs and a max imum punishment of life in prison. Tenn. Code A nn. § 39-2-603( b), (c ) (1982) . Thus, the petitioner fa ced a potential sente nce of

betwee n forty

y ear s and life in prison. S ee T en n . Code Ann. § 40-35- 109(d)( 1) (" For

the sole and e x clusive purpose of ca lculating the sentenc e ra ng es for offe nses for which life imprisonment is a possi ble puni shment, a li fe sentence shall be presumed t o be six ty (60)
y ear s.")

.

At the evidentiary

hearing, the petitioner t estified that he rejecte d the pl ea of fer made by the
state be c a us e he un de rs too d th a t tw e nty y e ars wa s th e ma ximum

pu nis hme nt h e fa c e d if

he we nt t o trial. He c la im s th a t b e c a u s e h is tria l c o u n s e l d idn o t i n f o r m h im o f th e p o te n ti a l f

o r a f ar g r e a te r sentenc e, he w as unable to make an inf ormed de cision with reg ard to the ple a off er.

The AB A Standards f

or Criminal J ustice re quire t hat attorne y s communicate ple a off ers p r o m p t l y a n d f

u l l y:

(a) Def ense c ounsel should keep the acc used advised of developments a

rising out of plea discussions conduc ted with the prosec utor.

(b ) D e fe ns e c ou ns e l sh ou ld p ro mpt ly c ommun ic a te a nde xpla in t o th e a c c us e d a ll signific ant plea pr oposals made by the prosec utor.

AB A Standards for Criminal Justi ce: Prosec ution Function and De fense Func tion, std. 4-6.2 (3d ed. 1993). The Commentary to Standard 4-6.2 e mphasizes the attorney 's duty to fully explain the ramifications of the plea of fer :

[T] he lawy er ha s the duty to c ommunicate fully to the client the substance of [pl ea] dis c us sio ns

. . . . [T]he c lie nt s ho uldbe g iv en su ffici e nt i nf orma tio n to pa

rt ic ipate int e lli g e ntl y

in the de c isi on wh e the r t o acce pt or r e je c t a ple a pr op os a l. It is importa n t th a t th e a c c u s e d b e in f o r me d b o th o f th e e xis te n c e a n d th e c o n te nt of proposals made by

the prosec utor; the ac cused, not the lawy er, has the rig ht to decide whether to acc ept or reject a prosec ution proposal, even when the proposal is one that-9-

the lawy er w ould not approve. I f the a ccuse d' s choice on the question of a g uiltyplea is t o b e a n inf

or me d o ne , th e a c c us e d mu st a c t w ith fu ll a wa re ne ss o f the a lte rn a tiv e s, including a ny

that arise f

rom proposals made by

the prosec utor.

Id

. , C o m m e n t ar y.
Our supre me court has held t h at t he fa ilure to communicate a plea offe r to a de fenda nt rende rs trial counsel' s repr esenta tion de ficient. Har ris v. State, 875 S.W .2d 662, 6 6 5 -6 6 (Tenn. 1994). While the petitioner conc edes that he was informed of the state' s offe r, he c ontends that he

was una ble to make a n intelligent de cision as to whether he should a cce pt or reje ct it because trial counsel fa iled to advise him of the applica ble sent en ci n g rang e. Our supreme c ourt has held that "e ffe ctive counsel must be awa re of the possible punishments applicable to his or her client." Dea n

v. Sta te , 5 9 S. W.3 d 6 63 , 6 68 (T e nn . 2 00 1) . T he Sixth Cir c uit Cou rt of Ap pe a ls h a s h e ld tha t it

is important for trial c ounsel t o corr ectly advise the de fenda nt as to the potential punishment so that the def endant c an intellige ntly

consider any

plea of fer by the state:

When considering a plea

ag ree ment, a def

endant mig ht well weig h the terms of the
ag ree ment ag ainst the maxi mum se ntence he could r ece ive if he w ent to trial. When the maxim um possible ex posure is over stated, th e d ef endant mig ht well be inf lue nc e d to a c c e pt a

ple a a g re e me nt h e wo uldoth e rw ise re je c t.

Pitt s v. United States, 763 F.2d 197, 201 ( 6th Ci r. 1 9 85). The c onverse must necessa rily be true

. Th a t is , if the ma ximum

po ssi ble e xpos ur e is u nd e rs ta te d, a de fe nd a nt m ig ht w e ll b e inf lue nc e d to choose a trial. I n the abse nce of

any advice from counse l as to the potential punishment, an ac cused cannot make an informe d decision to either r ejec t or ac cept a plea of fer

.

I n Pitt s, the district court found that the defendant had been misi nformed as to the maxi mum possible sentence on two of the thre e counts of the indictment. Pit ts insis ted that he would not have pled guilty if he had been pr operly advised by

his counsel as to his total expos ure. The cause was

re ma nd e d f

or a n ev ide nti ary

he ari ng a ndfo r the dis tr ic t c ou rt to d e te rm ine " wh e the r P itt s' [s] alleg ations reg arding his attorney ' s misa d v ic ea r etr u e , whether

this mi sadvice went uncor rec ted and, if so, whether

Pitt s wold not have pled g uiltybut for the misadvice ." I d.

I n United States v. Rumery , 698 F.2d 764, 766 ( 5th Cir. 1 9 8 3 ), t he F ifth Circuit Court of Appea ls held that the defe ndant was entitled to r elief f rom his conviction and entitled to a ne w trial be c a us e tr i a l c o u n s e l h a d m i s t ak e n l y a d v i s e d h i mt h a tt h e m a xi m u mp o s s i b l e s e n t e n c e w a s t h ir ty y ear s rather than five y ear s. Simi larly
, in United States v. Scott, 625 F.2d 623, 625 (5th Cir. 1980),
a g u il ty p le a w a s in v a li d a te d in a c o ll a te r a l a tt a c k w h e n th e tria l c o u r t e rr o n e o u s ly in f o r me d the de fe nd a nt tha t th e ma ximum wa s f ive rathe r tha n s ix y e ars

. F ina lly
, in H a mmo ndv. Un ite d St a te s, 52 8 F .2 d 1 5, 18 -1 9 ( 4thCir . 1 97 5) , a de fe nd a nt m ou nte d a

su c c ess fu l c oll a te ra l a tta c k o n h is conviction when his appointed counsel mistakenly calc ulated the maximum ex posure at ninety y ear s ins te a d o f f

if ty -f ive y e ars

.-10-

I n this case, the post-conviction court, afte r a rec itation of the proof submitted at trial, denie d relief without specifica lly

addre ssing the cre dibilit y of the petitioner, whether the state had made a plea of fer and under

what cir cumstance s, whether th e p et i t i oner ha d been misinforme d about the potential leng th of the sentenc e (or advised at all in that reg ard) , whether he mig ht have le arne d of the minimum and maxi mum e x posure throug h some other source , and, most importantly , whether he would have acc epted the of fer and pled g uiltyexcept for a ny misadvice. The Post-Convi ction Procedur e Ac t pr ovides that "upon the final dispositi on of every petition," the post-c onviction court sh a ll n ot o nly

e nte r " a fi na l or de r, " bu t " sh a ll state the fi nd ing s of fa c t a ndc on c lus ion s o f l a w w ith
reg ard to eac h such g round." Tenn. Code Ann. § 40-30- 118(b)( 1990) (e mphasis added) . When the
p o s t -c o n v i cti on court fa ils to m ake disc erna ble finding s on disputed fac ts relating to the claim of ineffe ctive assistanc e of c ounsel and the r ecor d does not include facts critical for r eview, this court is h a nd ic app e d in the a sse ssm e nt o f the iss ue . St a te v. Swans on , 6 80 S.W. 2d48 7, 48 9 ( Te nn . Crim. App. 1984). The purpose of the statute, of c ourse, is to fac ilitate appellate r eview. I d.

Be cause the post-conviction court failed to make fac tual finding s on the above enumer ated i s s u e s , t h e c a s e m u s t

b e r e m a n d e d f

o r t h e l i m i t e d p u rp o s e e x p r e s s e d i n t h e p r e c e d i n g p ar a g r ap h

. If the petitioner provide s or has provide d cre dible, unconverted t estimony that he was misadvised as
to the po te nti a l le ng th of his se nte nc e , tha t he did no t hav e the inf orma tio n fr om an y oth e r s ou rc e in advanc e of his de cision to pr ocee d to trial, and that but f or the misinformation pr ovided by his trial counsel or his trial c ounsel' s complete failure to inform the pe ti t i o n er o f t he potential maximum exposure, he would have acc epted the ple a off er f rom the state, he is entitled to relief.

Acc ordi n gl y , t h e judgment of the post-c onviction court is reve rsed a nd rema nded for the limit ed purpose s expressed her ein.

___________________________________ GARY R. WADE, PRES I DING JUDGE