State v. Henry Baker ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER, 1997 SESSION
FILED
February 19, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
HENRY S. BAKER, )
) No. 02C01-9704-CR-00160
Appellant, )
) Shelby County
vs. )
) Honorable Bernie Weinman, Judge
STATE OF TENNESSEE, )
)
) (Post-conviction)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Robert Gaia JOHN KNOX WALKUP
P.O. Box 11381 Attorney General & Reporter
Memphis, TN 38111
KENNETH W. RUCKER
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
GLENN BAITY
REGINALD HENDERSON
Assistant District Attorney Generals
201 Poplar Ave. Ste. 301
Memphis, TN 38103
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT
JUDGE
OPINION
The defendant, Henry S. Baker, appeals pursuant to Rule 3 of the
Tennessee Rules of Criminal Procedure from the Shelby County Criminal Court’s
denial of post-conviction relief. On December 5, 1991, the grand jury indicted the
defendant for attempted aggravated robbery, theft of a motor vehicle, and robbery.
He pleaded guilty to all three charges on April 22, 1993 and received an effective
sentence of five years as a Range I offender to be served consecutively to a
sentence received in convictions unrelated to these.1 Baker filed a timely petition
requesting post-conviction relief in all three convictions on February 8, 1996.2 In this
appeal, however, Baker challenges only the validity of his conviction for attempted
aggravated robbery. 3 He contends that, his guilty plea was entered involuntarily,
and that, but for the errors of counsel, he would not have pleaded guilty to
attempted aggravated robbery. We disagree.
The transcript of the guilty plea submission hearing indicates that while
Baker and Jimmy High were on escape status from the county workhouse, they
1
The grand jury issued three separate indictments: #91-11341 (attempted
aggravated robbery, #91-11342 (theft of a motor vehicle), #93-02601 (robbery).
The trial court sentenced him to five years, four years, and five years,
respectively. The judge ordered that the sentences be served concurrently to
each other, but consecutive to an escape conviction that was handled in general
sessions court.
2
Baker did not file a direct appeal.
3
At the conclusion of the post-conviction hearing, defense counsel
voluntarily withdrew the post-conviction petition to the extent it challenged the
convictions for theft and robbery. The defendant was not present at the time;
however, the attorney stated that he had written authorization from his client to
limit the post-conviction petition to the attempted aggravated robbery case, and
the trial court permitted the withdrawal. Although the record contains no further
discussion, the technical record reflects that Baker later contested counsel’s
authority to withdraw the petition because the withdrawal was based on a mis-
communication with defense counsel. On January 9, 1997, the trial judge denied
Baker’s request to reinstate the claims and formally dismissed the claims. Baker
has not raised the dismissal as an issue in this appeal.
2
decided to rob a convenience store in order to buy drugs.4 High remained outside
in his truck while Baker entered and threatened the clerk with a knife. The clerk
refused to open the cash drawer, and when a customer walked in, Baker fled with
the clerk and the customer in pursuit.5 Ultimately, Baker accepted the state’s plea
bargain and agreed to testify against Jimmy High in this case.
Baker’s pro se petition for post-conviction relief alleges that he entered
his guilty plea involuntarily as he was not informed that the conviction could be used
to enhance a sentence in federal court and that his trial counsel was ineffective in
various ways.6 Court-appointed counsel filed an amended petition in which he
alleged that, in addition to the allegations in the original petition, the guilty plea was
the product of counsel’s threats and coercion, that counsel failed to investigate the
facts and interview the witnesses, and that counsel failed to communicate with his
client. At the evidentiary hearing, Baker was the only defense witness. After his
testimony, the hearing was continued, and the assistant public defender who
negotiated the plea agreement was the sole witness when the hearing reconvened.
In its written order denying relief, the trial court found that Baker had
wanted to enter a guilty plea from the very beginning and that, at the time he
entered his plea, he was satisfied with the negotiated plea agreement. The court
also found that trial counsel had done everything he could to ascertain the facts and
to advise his client properly. The court concluded that “the advice given and
4
High was tried and convicted of attempted aggravated robbery. Baker
testified against High at trial. Later, High pleaded guilty to the other two
indictments.
5
The pair were more successful at the second store. Even though Baker
displayed no weapon, the clerk turned over $28.00 in response to his demand.
Five days later, Baker stole a 1989 Ford truck. When he was stopped for driving
under the influence, a routine license plate check uncovered the theft. Baker
gave a statement admitting the robbery of the second convenience store and
implicating Jimmy High.
6
Baker is currently serving a life sentence in federal prison pursuant to the
federal “three-strikes and you’re out” provision.
3
services rendered by the defendant’s counsel were within the range of competency
demanded by an attorney in a criminal case and that Mr. Moore’s representation of
the defendant at his guilty plea complied with the requirements of . . . Baxter v.
Rose, 523 S.W.2d 930.”
On appeal, Baker alleges that he received ineffective assistance of
counsel because his attorney failed to inform him that the victim had been unable
to identify him in a lineup and that no eyewitnesses were available to testify against
him with respect to this case. He also contends that his guilty plea was involuntary
and unknowing because he was unaware that this conviction could be used to
enhance sentences he received in federal court.
Under Tennessee law, post-conviction relief may be granted when the
conviction is void or voidable because it was obtained in violation of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United
States. Tenn. Code Ann. § 40-30-203 (1997). In order to sustain a petition under
the 1995 Post-Conviction Procedure Act, an appellant must prove the “allegations
of fact by clear and convincing evidence.” Tenn. Code Ann. § 40-30-210(f) (1997).
This court may not reweigh or reevaluate the evidence, and we defer to the trial
court’s resolution of questions concerning the credibility of witnesses and the weight
and value of their testimony. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.
App. 1990). When reviewing the dismissal of a post-conviction petition, this court
must affirm the judgment of the trial court unless the evidence in the record
preponderates against the judgment. Cooper v. State, 849 S.W.2d 744, 746
(Tenn.1993). With these standards in mind, we address the issues presented.
We begin with Baker’s second issue in which he alleges that he
pleaded guilty unknowingly and involuntarily due to the failure of his attorney and
the trial court to inform him that the conviction could be used to enhance a future
conviction in federal court. This issue is not cognizable in a post-conviction
4
proceeding.
The Tennessee Supreme Court has mandated that “any court
accepting a plea of guilty must make it clear to the defendant that the resulting
judgment of conviction may be used in a subsequent proceeding to enhance the
punishment for subsequent offenses.” State v. McClintock, 732 S.W.2d 268, 273
(Tenn. 1987). However, the requirement that the court notify a defendant that the
conviction resulting from his guilty plea can be used to enhance future punishments
is not constitutionally based. State v. Neal, 810 S.W.2d 131, 138 (Tenn. 1991).
Omissions of advice or questions required by the Tennessee Supreme Court in the
exercise of its supervisory duty and authority may be reviewed only upon direct
appeal. Id. at 139. Thus, the alleged failure to address the sentencing
enhancement issue does not provide grounds for post-conviction relief.7
Moreover, the trial informed Baker that his conviction could be used
against him “in any court of law in the future.” Baker acknowledged that he
understood the specific consequences of his plea. Baker’s attorney also advised
him that the conviction could result in the enhancement of future sentences.
Although neither the trial judge nor the attorney referred specifically to possible
7
We note that the trial court’s order dismissing the petition contains no
specific finding that the defendant had knowingly and voluntarily entered his
guilty plea. The only relevant finding included in the order is that the defendant
had wanted to plead guilty from the very beginning. Tennessee law requires
that, upon final disposition of a post-conviction petition, the trial court “shall set
forth in the order or a written memorandum of the case all grounds presented,
and shall state the findings of fact and conclusions of law with regard to each
such ground.” Tenn. Code Ann. § 40-30-211(b). However, even if the trial court
failed to comply with this duty, a reversal or remand to the trial court is not
warranted if the record clearly reflects the reasons for the dismissal. State v.
Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984). We have carefully
reviewed the transcript of the guilty plea submission hearing. The trial judge
carefully and thoroughly examined the defendant and complied with both the
constitutional requirements of Boykin v. Alabama, 397 U.S. 742, 90 S.Ct. 1463(1970) and the non-constitutional requirements found in Mackey v. State, 553
S.W.2d 337 (Tenn. 1977) and McClintock v. State, 732 S.W.2d 268 (Tenn.
1987), as well as Rule 11, Tennessee Rules of Criminal Procedure. In this
appeal, the defendant does not allege that the trial judge failed to satisfy any
constitutional requirement nor has our review uncovered any inadequacies that
would render the defendant’s guilty plea voidable.
5
sentencing enhancement under federal law, the trial judge’s colloquy satisfies the
requirements of Rule 11 of the Tennessee Rules of Criminal Procedure, the
constitutions of both the United States and the State of Tennessee, and the
additional procedures imposed by our supreme court in Mackey v. State, 553
S.W.2d 337 (Tenn. 1977) and McClintock v. State, 732 S.W.2d 268 (Tenn. 1987).
The fact that Baker was unaware of a specific federal enhancement factor does not
entitle him to the reversal of his conviction.
Baker’s contention that he received ineffective assistance of counsel
during the plea negotiations is also without merit. On appeal, Baker argues that he
was denied effective assistance of counsel because the assistant public defender
failed to inform him that the victim had been unable to identify him at the line-up.
Baker also argues that he was forced to accept the state’s plea bargain because his
attorney was not prepared to go to trial and that, but for the errors of counsel, he
would have proceeded to trial on this charge.8 We disagree.
When an appeal challenges the effective assistance of counsel, the
appellant has the burden of establishing (1) deficient representation and (2)
prejudice resulting from that deficiency. Strickland v. Washington, 466 U.S. 668,
686, 104 S. Ct. 2052, 2065 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Deficient representation occurs when counsel provides assistance that falls
below the range of competence demanded of attorneys in criminal cases. Bankston
v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prejudice is the
reasonable likelihood that, but for deficient representation, the outcome of the
8
With respect to this issue, Baker argues that the trial judge failed to make
specific factual findings relevant to the issue on appeal. However, the trial judge
found that the defendant’s attorney had discussed his case with his client and
that he had done everything that was necessary to ascertain the facts. The
judge also found that the defendant had stated at the guilty plea hearing that he
was satisfied with the plea and with his attorney’s services. Although detailed
findings are generally desirable and would have facilitated our review in this
case, we find that the record in this case is sufficient for meaningful appellate
review and requires no remand to the trial court. See State v. Swanson, 680
S.W.2d 487, 489 (Tenn. Crim. App. 1984).
6
proceedings would have been different. Overton v. State, 874 S.W.2d 6, 11 (Tenn.
1994). On review, there is a strong presumption of satisfactory representation. Barr
v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995). As to guilty pleas, the
petitioner must establish a reasonable probability that, but for the errors of counsel,
he would not have entered into the plea. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.
Ct. 366, 370 (1985); Adkins v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994);
Wilson v. State, 899 S.W.2d 648, 653 (Tenn. Crim. App. 1994).
A reviewing court must indulge a strong presumption that counsel's
conduct falls within the range of reasonable professional assistance and must
evaluate counsel's performance from counsel's perspective at the time of the
alleged error and in light of the totality of the evidence. Strickland, 466 U.S. at 695,
104 S. Ct. at 2068-2069.
In this case, Baker has not carried his burden of showing that he
would not have pleaded guilty but for the alleged errors of counsel.
The record strongly supports the trial judge’s finding that the
defendant intended from the beginning to plead guilty to all three charges. Baker
and his co-defendant were obviously at each other’s throats, and Baker was not at
all reluctant to testify against High at his trial.9 Although the attorney’s testimony at
the post-conviction hearing indicates that he had not realized that the victim had
failed to identify his client at the line-up, this error was of little consequence because
the co-defendant had implicated Baker in his statement to the police. Baker
received a very favorable plea bargain in which he was sentenced as a Range 1
offender when he clearly could have been sentenced, at least, at Range 2. For
three felonies committed after he had escaped from jail, he received an effective
sentence of five years. The judgment forms give him credit for 246 days or
9
The record contains three letters written by Baker to his attorney in which
he describes his feelings toward High and discusses his desire to plead guilty
and to testify against High.
7
approximately half the time he would be required to serve before becoming eligible
for parole.10 Nothing in the record has convinced us that Baker would have
jeopardized his plea bargain on the other two counts by going to trial on this one.
The record also supports the conclusion that defense counsel
adequately investigated the case and negotiated on behalf of the defendant.
According to counsel’s testimony, he had full access to the district attorney’s files
which included the statements of all the victims. He attempted to contact the victims
personally but they refused to speak to him. Once the trial court severed Baker’s
trial from that of High at the prosecutor’s request, the way was clear for Baker to
testify against his co-defendant in exchange for the plea bargain. Of course, it also
made High’s testimony available against Baker. Baker’s counsel was not prepared
to go to trial because Baker had told him over and over again that he wanted to
plead guilty and because the plea was obviously advantageous to his client. We
concur in the trial court’s conclusion that the advice and services of defense counsel
were within the range of competency demanded in criminal cases of this nature.
We find that the trial court properly denied post-conviction relief and
dismissed the defendant’s petition. We affirm the judgment of the trial court.
__________________________
CURWOOD W ITT, Judge
CONCUR:
______________________________
JOE B. JONES, Presiding Judge
______________________________
JERRY L. SMITH, Judge
10
The judgment form contains the notation that his parole was revoked on
August 10, 1995.
8
9