Acuff v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
SEPTEMBER 1997 SESSION
December 23, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
ROGER LEE ACUFF, ) No. 03C01-9611-CR-00436
)
Appellant )
) HAMILTON COUNTY
V. )
) HON. STEPHEN M. BEVIL,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
)
)
For the Appellant: For the Appellee:
Neal Thompson John Knox Walkup
615 Lindsay Street Attorney General and Reporter
Suite 150
Chattanooga, TN 37403 Peter M. Coughlan
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
William H. Cox, III
District Attorney General
Rebecca J. Stern
Assistant District Attorney
600 Market Street
Suite 310
Chattanooga, TN 37402
OPINION FILED: ___________________
AFFIRMED
William M. Barker, Judge
OPINION
The appellant, Roger Lee Acuff, appeals as of right from the judgment of the
Hamilton County Criminal Court denying his petition for post-conviction relief. On
appeal, appellant contends that he received the ineffective assistance of counsel and
that his guilty plea was involuntary. Finding that the evidence does not preponderate
against the trial court’s judgment, we affirm the denial of relief.
On February 18, 1994, while on trustee status at a work release center in
Chattanooga, appellant escaped from his work detail and fled to Knoxville. He was
recaptured thirty-six (36) hours later. At the time of his escape, appellant was serving
a twenty-eight (28) year sentence for second degree murder and robbery. He was
later indicted on one count of felony escape. Pursuant to a plea agreement, appellant
pled guilty to felony escape with an agreed sentence of six (6) years as a Range III
persistent offender. Although the plea agreement reflected the maximum sentence
within the range for the offense, it permitted appellant to be sentenced one
classification lower than the career offender status for which he qualified. On
September 15, 1994, the trial court accepted appellant’s guilty plea and sentenced
him accordingly.
On July 25, 1995, appellant filed a pro se post-conviction petition alleging that
his plea was involuntary and that he received the ineffective assistance of counsel.
The petition was amended after the appointment of counsel. The trial court held an
evidentiary hearing on appellant’s claims and determined them to be without merit. It
found that appellant received the effective assistance of counsel and that his plea was
voluntary and knowing.
In reviewing the appellant’s Sixth Amendment claim of ineffective assistance of
counsel, this Court must determine whether the advice given or services rendered by
the attorney are within the range of competence demanded of attorneys in criminal
cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of
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ineffective counsel, an appellant “must show that counsel’s representation fell below
an objective standard of reasonableness” and that this performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052,
2064, 2067-68, 80 L.Ed.2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn.
Crim. App. 1985). The inability to prove either prong results in failure of the claim.
See Strickland, 466 U.S. at 697.
The most difficult burden on an appellant is demonstrating the prejudice he has
suffered by the alleged error. In order to prevail on that ground, the appellant must
show a reasonable probability that but for counsel’s error the result of the proceeding
would have been different. Id. In the context of a guilty plea, the appellant must
show that but for counsel’s errors he would not have pled guilty and would have
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 53, 106 S.Ct. 366, 88 L.Ed.2d
203 (1985). See also Wade v. State, 914 S.W.2d 97, 101 (Tenn. Crim. App. 1995),
perm. app. denied (Tenn. 1995); Wilson v. State, 899 S.W.2d 648, 653 (Tenn. Crim.
App. 1994), perm. app. denied (Tenn. 1995).
In order to sustain his post-conviction petition, the appellant must prove his
allegations of fact by clear and convincing evidence. Tenn. Code Ann. §40-30-210(f)
(Supp. 1996). Upon review, this Court cannot re-weigh or re-evaluate the evidence.
We give deference to questions about the credibility of the witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence as
they are resolved by the trial court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.
App. 1990). Furthermore, the factual findings of the trial court are conclusive on
appeal unless the evidence preponderates against the judgment. Id. See also Davis
v. State, 912 S.W.2d 689, 697 (Tenn. 1995) (citations omitted); Cooper v. State, 849
S.W.2d 744, 746 (Tenn. 1993) (citation omitted).
Appellant first contends that his counsel was ineffective for failing to investigate
the defense of necessity. At the evidentiary hearing, appellant testified that he
escaped from the work release center in order to help a pregnant woman he knew
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whose life was in danger because she was being beaten by her boyfriend. He
testified that he believed he explained these circumstances to counsel. Counsel, on
the other hand, testified that appellant merely told her that he “was out on pass on
trustee job and walked off the jobsite” and provided no other details. He never told
her about this woman he intended to help. As a result, she knew of no facts to
support a defense of necessity. Even had she been armed with such information,
counsel stated her doubts about the utility of such a defense under those
circumstances. Crediting counsel’s testimony, the trial court found that appellant did
not inform counsel of any factual circumstances to support the defense of necessity
and she was not ineffective in that regard. The trial court also alluded to the futility of
that defense in appellant’s case.
Upon review, we too are unable to say that counsel was ineffective for failing to
investigate a defense of which she was unaware. Of course, counsel in a criminal
case has an obligation to investigate all factual and legal defenses. Baxter v. Rose,
523 S.W.2d 930, 933 (Tenn. 1975). However, where a client does not cooperate by
providing counsel with pertinent facts and circumstances, counsel cannot be expected
to hypothesize a possible defense.
Other proof in the record before us lends support to the trial court’s credibility
determination. Several letters appellant wrote, which were a part of counsel’s file,
reflect appellant’s repeated claim that he merely “walked off the jobsite.” Appellant
provided the same recitation of facts in his original petition. Appellant’s testimony at
the evidentiary hearing was the first mention of a friend who needed assistance.1 As a
result, appellant’s testimony failed to provide clear and convincing proof of counsel’s
deficiency.
Appellant also complains that counsel failed to meet with him adequately.
However, his accounts were inconsistent in that respect. Appellant’s pro se petition
1
In fact, this particular ground of ineffective assistance relative to the necessity defense was not
included in either the original or amended petitions.
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stated that he met with counsel twice for about five minutes each. At the evidentiary
hearing, he first testified that counsel only met with him on one occasion at the jail for
approximately five minutes. Later in his testimony, appellant stated that counsel
talked with him three times before he entered his plea.
Counsel testified that the day she spoke to appellant at the jail, the meeting
lasted much longer than five minutes. At that meeting, she discussed appellant’s prior
criminal record and he acknowledged at least five prior felonies. They also discussed
information he provided on a standard questionnaire used by the public defender’s
office. She further testified that she listened to the transcript of appellant’s preliminary
hearing. Prior to entering the plea, counsel testified that she and the appellant
discussed his rights, specifically the right to a jury trial and his prior record for
purposes of enhancement.
At the guilty plea hearing, appellant stated that he was satisfied with counsel
and that there was nothing more counsel should have done to prepare his case.
Considering appellant’s statements at the guilty plea hearing and the testimony at the
evidentiary hearing, the trial court determined that counsel fully and adequately
represented her client and that there was nothing that she failed to do. That
determination endorsed counsel’s account of her activities and we must defer to the
trial court’s resolution of the contradictory testimony. Black v. State, 794 S.W.2d 752,
755 (Tenn. Crim. App. 1990).
Finally, appellant alleges that counsel took advantage of threats on his life
made while in jail by insisting that appellant plead guilty. He testified that while
confined in the Hamilton County Jail numerous inmates threatened his life. Appellant
stated that on one occasion, someone injected him with battery acid in an attempt to
kill him. As a result, he was interested in pleading guilty as quickly as possible so that
he would be returned to prison.
Counsel testified that appellant did tell her he was dissatisfied with the
conditions at the Hamilton County Jail. Appellant also told her that his life was being
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threatened, but failed to give any specific details, such as being injected with battery
acid. Counsel also stated that appellant told her he wanted to dispose of the case as
soon as possible and encouraged her to plea bargain with the district attorney. Letters
that appellant wrote to counsel reflect that desire and appellant admitted at the
evidentiary hearing that he gave counsel that directive. The trial court found that
appellant’s plea was voluntarily and knowingly entered.
The record fully supports the trial court’s conclusions in this respect.
Communications between appellant and counsel distinctly reflect appellant’s initiative
in choosing to plead guilty to the escape charge. Appellant, familiar with the plea
process, even suggested certain mitigating circumstances for counsel to utilize in
bargaining with the district attorney. Appellant never expressed a desire to go to trial
upon this charge and counsel made every effort to negotiate an acceptable agreement
for the appellant.
When counsel received the offer from the assistant district attorney, she
conveyed it to appellant, at which time he directed her to make a specific counteroffer.
When the assistant district attorney rejected the counteroffer the next day, appellant
decided to accept the original offer and the guilty plea hearing was held that day.
Little more than two weeks elapsed between the appointment of counsel, the first
meeting with appellant, and the entry of a guilty plea. At the guilty plea hearing,
appellant stated that he was not being pressured or coerced into pleading guilty.
Considering all the circumstances, it is clear that appellant was eager to enter a guilty
plea. Our review of the transcript from the guilty plea hearing, indicates that
appellant’s plea was certainly voluntary and knowing and that counsel did not exert
any undue influence on appellant.
In sum, appellant has failed to demonstrate by clear and convincing evidence
that his counsel was ineffective or that his guilty plea was involuntary. We affirm the
trial court’s denial of post-conviction relief.
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_______________________________
William M. Barker, Judge
____________________________
John H. Peay, Judge
____________________________
David G. Hayes, Judge
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