# FILED
November 3, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE SEPTEMBER 1998 SESSION

RICHARD B ROWN, JR., ) ) C.C.A. NO. 03C 01-9707-CR-00257 Appellant, ) ) KNOX COUNTY VS. ) ) HON. RICHARD R. BAU MGARTNER, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
MARK STEPHENS JOHN KNOX WALKUP Public Defender Attorney General & Repor ter PAULA R. VOSS Elizabeth B. Marney -and- Asst. Attorney General JOH N HALS TEAD 425 Fifth Ave., North Asst. Public Defenders 2nd Floor, Corde ll Hull Bldg. 1209 Euclid Ave. Nashville, TN 37243-0493 Knoxville, TN 37921 RANDALL NICHOLS District Attorney General ROBERT L. JOLLEY, JR. Asst. District Attor

ney General District Attorney General’s Office City-County Bldg. Knoxville, TN 37902

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge1 As th e con viction s for espe cially ag grav ated robb ery an d sec ond -deg ree m urde r are t he on ly convicti ons at issue i n this appeal , we wil l not go i nto detai l regardi ng the facts surrounding t he other convicti ons. 2 

### O P I N I O N

On July 23, 1993, the pet itioner pled guilty to second-degree murder, especiallyaggravated robbery, four cou nts of ag gravated ro bbery, and one count of theft. He was then sen te nced to a total of sixty years to be served i n the Tennessee Departmentof Correction. On March 25, 1994, he filed a petition for post-conviction relief allegingthathe was denied the effective assistance of counsel. Following an evidentiary hearing on June 5, 1997, the post-conviction court denied his petition. It is from t his denial that the petitioner now appeals.

After a review o f the record and applicable la w, we find no merit to the petition er’s appe al and th us affi rm the jud gment of the court below.

The petitioner’s convic

tions for especially aggravated robberyand seconddegree murder 1 stem from the robbery of Moye rs Market on July 19,1992. The petitioner entered the store and showed the clerka pistol he had in his w aistband. The petitioner then told the clerk tha t he wante d money. I t was at thi s point th at anoth er emplo ye e , Donald R. Brown, emerged from the back room of the store and confronted the petitioner. Although the record is not entirely clear, it appears a struggle ensued and the petitioner shot and kil led Mr. Brown. The petitioner then took money from the st ore and left the premises.

The petitioner contends that he was

denied effective assistance of couns el when his attorney

allowed him to plead guilty to especially aggrav ated robbery which w

as3

essentiallyincidental to the second-degree murder char ge and was thus barred b y due process and double jeopardy. In reviewing the pe

titioner’s claim of

ineffective assistance of counsel, this Court must de termine whether the advice g iven or services render ed by the attorney are withi n the range of competence demanded of attorney s in criminal
c ases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of ineffe ctive counsel, a petiti on er “must show that counsel ’s representation fell below an objective standard of

reasonableness” and that this performance prejudi ced the defense. There mu st b e a reasonable probability that but for counsel’s error the result of the proceeding would have been different. Stricklan d v. Washington , 466 U.S. 668, 687-88, 692, 694, (1984); Best v. State , 708 S.W.2d 421, 42 2 (Tenn. Crim. App. 1985).

Because th e petitioner in this case pled guilty, he w ould have to demonstrate a reasona ble proba bility tha t, but fo r counsel ’s errors, he would no t have pled guilty andwould have insisted on going to trial. See Hill v. Lockhart , 474 U.S. 52, 59, (1985); Bankston v. State , 815 S.W.2d 213, 21 5 (Tenn. Crim. App. 1991).

The petitioner claims that si nce his convictions for espe cially a ggravated robberyand second-degree murder violate due process a nd the Double Jeopardy Clause, his attorney should not ha ve allowedhim to plead guilty. The peti tioner further contends that his attorney’s allowance of his guilty plea constituted ineffective assistance of counsel. We disagree.

In 1932, the United States Supreme Cour t held that in determining whether multiple convictions

violate do uble jeop ardy, “[t]he appl icable rul e is that, w here the same act or transact ion const itutes a vi olation of two distinct statutory pr ovisions, the test to be applied to determine whether there are two offenses or only one is whethe r eac h4

provision requires

proof of an additional fact which the other does not.” Blockbur ger v. U.S. , 284 U.S. 2 99, 304, (1932). T his Court has furt her held t hat in ord er for two offenses to be viewed as the same offense under this test, “it is necessary tha t th e elements of one of the offenses must necessarily be pr oven whenever a v

iolation of the other offense has been proven.” State v. Jackson , No. 03C01-9206-CR-00222, Hamil ton County (Tenn. Crim. App. filed July 29, 1993, at Knoxville).

In light of the foregoing, it is nece ssary to s et out the elements of the offenses for which the petition er was con victed. Especially aggravated robbery is a
r obberyaccomplished with a deadly weapon and that results in serious bodily in jury t o the victim. T.C.A. § 39-13-403 (1991). I n contrast, second-degree murder is a knowing killing of another. T.C.A. § 39-13-210 (1991). “Unquestionably, nei ther robbery nor the
use of a dead ly weapon is necessar ily proven b y provi ng the elements needed for first degree or second degree murder.” State v. Jackson , No. 03C01-9206-CR-00222, Ham ilt on County (Tenn. Crim. App. fil ed July 29, 1993, at Knoxv ille). In addition, a knowing killing of another is no t necessarily prov

en by proving the el ements needed for especially aggr

avated robbery. As such, under the principles set

out above , these two offenses are separate and double jeopardy is notviolated when a

defendant is convicted of both.

However , the p etitioner further contends that the especially agg ravated robbe ry was es sential ly incidental

to the second-degree mur der char ge and t herefo r e barred by

due process under the princi ples set out in State v. Anthony , 817 S.W.2d 299 (Tenn. 1991). We disagree. The test set out in Anthony to determine whether or not
m u ltiple convictions violate due process was whether an offense was essentially incidental to the accompanyi ng felony. 817 S.W.2d at 306.5 It is clear that the petiti oner’s robbery of the marke t was not essentially incidental to his murder. Either offense can be committedwithout committing the other. Obviously, neither offense is necessarily incidental to the other. As such, the petitioner’s convictions did not violate due process.

Since it did not violate the Double Jeopardy Clause or due pr ocess for

the petitioner

to be convicted of both seco nd-d egree murder and especiall y aggravated robbery, it was not error for the petitioner’s attorney to “allow” him to pl ead guilty to both offenses. Therefore, the pe titioner was not denied the effective assistance of coun sel. In sum, w

e affirm the tria l court’s deni al of thi s petiti on for pos t-conv iction relief.

______ ___________

_______________

_ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________ DAVID G. HAYES, Jud ge