State v. Michael Lewis ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1998 SESSION FILED
July 24, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
MICHAEL LEWIS, )
) C.C.A. No. 02C01-9712-CR-00467
Appellant, )
) Shelby County
V. )
) Honorable John P. Colton, Jr., Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Robert B. Gaia John Knox Walkup
Attorney at Law Attorney General & Reporter
100 North Main Bldg., Suite 3201
Memphis, TN 38103 Douglas D. Himes
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
Alanda Horne
Assistant District Attorney General
201 Poplar Avenue, Third Floor
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
In August 1994, the appellant, Michael Lewis, pled guilty to aggravated
robbery and theft of property less than $500. He was sentenced to concurrent
Range I sentences of eight years and one year, respectively. In April 1996, the
appellant filed a pro se motion for post-conviction relief. Counsel was appointed.
An amended petition was filed alleging that the appellant’s guilty pleas were
involuntarily entered due to ineffective assistance of counsel. After a hearing,
the Shelby County Criminal Court denied the petition. The sole issue for our
review is whether the evidence preponderates against the findings of the trial
court. We affirm the hearing court.
The appellant contends that he pled guilty only because his attorney told
him he would serve two and one-half years of the eight-year sentence offered in
the plea agreement. The appellant also alleged that his attorney failed to
investigate his case, failed to discuss trial strategy, failed to file motions on his
behalf, and failed to prepare for his trial.
An assistant public defender, Sherry Brooks, was appointed to represent
the appellant on the original charges. At the hearing on the appellant’s petition,
Ms. Brooks testified that she interviewed the appellant after he was arraigned.
Ms. Brooks testified that the appellant told her that he did not want a jury trial.
He admitted that he committed the crimes. Ms. Brooks testified that the
appellant was adamant about pleading guilty on arraignment day. Brooks
testified that she read through the state’s files on the charges. The victim of
each offense had positively identified the appellant as the perpetrator. The
appellant gave a statement to the police in which he confessed to the aggravated
robbery. Ms. Brooks testified that she discussed the state’s proof and the state’s
offer with the appellant. Thereafter, the appellant pled guilty.
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The appellant testified that he pled guilty because Ms. Brooks told him
that he would serve approximately two and one-half years of his sentence. He
testified that he thought that this was a good deal so he pled guilty. The Board
of Paroles denied the appellant parole because he was involved in fights while
serving his sentence in prison. The appellant testified that Ms. Brooks failed to
discuss his case, his statement, and trial strategy with him. The appellant
admitted that he told the judge at the plea hearing that Ms. Brooks had
discussed his case with him and that he understood his constitutional rights. The
appellant testified that he answered the trial court’s questions affirmatively
because Ms. Brooks told him to agree with everything that the court said.
Ms. Brooks testified that she never told the appellant that he would be
released in two and one-half years. Ms. Brooks denied instructing the appellant
to agree with everything that the judge said.
The appellant testified that if the trial court granted his petition for post-
conviction relief, then he would go to trial. He testified that if his statement was
suppressed that a victory at trial on the theft charge “would be guaranteed.” The
appellant did not establish why his statement was likely to be suppressed. He
made no showing as to how he was likely to be found not guilty on the
aggravated robbery count. Ms. Brooks testified that the appellant would have
been convicted of both offenses, even if the statement had been suppressed
because the victims had identified the appellant as the perpetrator.
The trial court denied the appellant’s petition. The court found that the
appellant entered his pleas voluntarily. The court noted that the trial court
carefully explained to the appellant his constitutional rights before accepting his
guilty pleas. The court found that the appellant failed to establish that his
attorney had rendered ineffective assistance of counsel.
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In order for the petitioner to be granted relief on grounds of ineffective
assistance of counsel, he or she must establish that the advice given or the
services rendered was not within the "range of competence demanded of
attorneys in criminal cases" and that, but for counsel's deficient performance, the
result of his trial would have been different. Strickland v. Washington, 466 U.S.
668 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This two-part
standard, as it applies to guilty pleas, is met when the petitioner establishes that,
but for his counsel's error, he would not have pleaded guilty and would have
insisted on trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The burden is on the petitioner to show that the evidence preponderates
against the findings of the trial judge. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.
Crim. App. 1978). Otherwise, the findings made by the trial court are conclusive.
Graves v. State, 512 S.W.2d 603, 604 (Tenn. Crim. App. 1973)
The appellant has failed to show that the evidence preponderates against
the trial court’s findings. The appellant’s primary argument is that he pled guilty
because his attorney told him that he would only serve two and one-half years.
The appellant, however, admitted that he understood that his sentence was eight
years with a 30% release eligibility date. Ms. Brooks denied that she told the
appellant that he would be released in two and one-half years. The court found
her testimony credible.
The record supports the court’s finding that the appellant failed to show
that he received ineffective assistance of counsel. Ms. Brooks testified that the
evidence in the state’s files would have most likely led to convictions on both
offenses. She testified that the appellant was adamant about pleading guilty on
arraignment day. We find her representation appropriate and effective.
We affirm the judgment of the trial court denying relief.
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________________________
PAUL G. SUMMERS, Judge
CONCUR:
___________________________
DAVID H. WELLES, Judge
___________________________
JOE G. RILEY, Judge
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