Sherrill v. State , 772 S.W.2d 60 ( 1988 )

OPINION

DWYER, Judge.

This case represents an appeal as a matter of right by James Eddie Sherrill from the judgment of the Loudon County Criminal Court denying his petition for post-conviction relief. Two issues are presented for appellate review including a challenge to the validity of the petitioner’s guilty plea, and a charge that trial counsel was ineffective. In view of our holding as to this latter question, review of the former issue is pretermitted.

Whether the trial court erred in holding that the petitioner received effective assistance of trial counsel.

The proof adduced at petitioner’s eviden-tiary hearing reveals that the petitioner entered guilty pleas to the offenses of armed robbery, petit larceny, and possession of Schedule II controlled substances with intent to sell. Petitioner claimed that due to the ineffectiveness of his trial counsel, he was pressured into an “eleventh hour” guilty plea. The petitioner testified that he was willing to plead guilty to simple possession, but did not want to plead guilty to possession with intent to sell.

The petitioner admitted to having forty-eight demerol pills in his possession when he was arrested for this offense. He claimed that he was a drug addict and that those pills were for his own personal use. He denied the intent to sell any of the pills.

The petitioner testified at the hearing that he did not see or speak with Mr. Sproul, his court-appointed counsel, until fifteen minutes before the guilty plea was entered. Instead, petitioner was contacted by, and consulted with, a Mr. Hinton who apparently was a law student in the employ of trial counsel, awaiting the bar examination.

The petitioner claimed that only Mr. Hinton had visited him at the Loudon County Jail before the case went to court. The petitioner further claimed that Mr. Hinton had led him to believe that the matter was going to trial and that a jury could only convict him of simple possession. According to petitioner, in the brief moments prior to trial, Mr. Sproul stressed to him that he would be convicted and receive a longer sentence if he did not plead guilty. The petitioner testified that he agreed to plead guilty only under the pressure of trial counsel’s eleventh hour advice. The proof was unrefuted that trial counsel did not meet with petitioner prior to the date of trial or interview him. No proof was presented that trial counsel reviewed the matter with petitioner, investigated the case, interviewed witnesses or considered with petitioner possible defenses to the indictment charges.

The State offered no proof whatsoever. Neither Mr. Sproul nor Mr. Hinton testified.

The right of an accused in a criminal prosecution to the effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution and Article I, § 9 of the Tennessee Constitution. The appropriate test is whether the performance of trial counsel was “within the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975).

The United States Supreme Court has stated that the burden of proof of a criminal defendant making an assertion of ineffectiveness is twofold:

1) He must show that the representation was deficient; and further,

2) He must show that the deficiency prejudiced the defense, depriving defendant of a fair trial.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The trial court’s findings of fact in a post-conviction proceeding are conclusive unless this Court finds that the evidence preponderates against the lower court’s judgment. Janow v. State, 4 Tenn.Cr.App. 195, 470 S.W.2d 19 (1971). Counsel’s tactical decisions will not be second-guessed using the benefit of hindsight. Hellard v. State, 629 S.W.2d 4, 9-10 (Tenn.1982). Furthermore, the burden in a post-conviction proceeding rests upon the petitioner to prove his allegations by a preponderance of the evidence. Long v. State, 510 S.W.2d 83, 86 (Tenn.Crim.App.1974); Weddle v. State, 2 Tenn.Cr.App. 270, 453 S.W.2d 426, 429 (1969).

In the case sub judice, the proof was unrefuted that petitioner was charged with a felony and that his court-appointed trial counsel did not see or confer with him until fifteen minutes before trial. Rather, petitioner’s only contact was with a Mr. Hinton, a law student apparently in the employ of trial counsel,¹ who led petitioner to believe that he would go to trial and, at most, be facing a conviction for simple possession. Only on the day of trial did Mr. Sproul speak with petitioner, moments prior to trial, and recommend that he enter a guilty plea, not to simple possession, but to possession with the intent to resell.² Moreover, trial counsel did not confer with petitioner other than those few moments prior to trial, consult with him on the issues, interview witnesses, investigate the scene of the alleged crime or plan with petitioner his defense. Instead, the record reflects that these matters, if addressed at all, were left to the attention of a law student.

Although it is this latter consideration that most concerns the Court, we think counsel’s efforts were lacking in this case. Inasmuch as the evidence was unrefuted and the State presented absolutely no proof whatsoever, we must find that the performance of petitioner’s court-appointed trial counsel was clearly not within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, supra.

Under the circumstances, we further find that petitioner was prejudiced as a result of trial counsel’s subperformance. Specifically, the evidence is uncontroverted that, but for counsel’s deficiencies, petitioner would not have entered into the plea bargain agreement to the indictment offense of possession of Schedule II controlled substances with intent to sell. Strickland v. Washington, supra. Clearly, counsel’s failure to interview petitioner, properly advise him, and assist him in planning his defense cannot be dismissed as trial tactic. See, Hellard v. State, supra. In short, petitioner’s Sixth Amendment rights were abridged, and the evidence adduced preponderates against thé findings of the trial court. See, Long v. State, supra; Weddle v. State, supra.

The issue is found to have merit. Accordingly, the judgment of the trial court is reversed, and the petitioner’s guilty plea conviction is vacated.

DUNCAN, P.J., and BYERS, J., concur.

1 . It is also unrefuted in the record that petitioner’s wife made a fee payment to petitioner’s court-appointed counsel.

2 . The record suggests that the trial court was unwilling to accept a guilty plea to simple possession.