A.D. Barker v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED OCTOBER SESSION, 1998 March 9, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk

A. D. BAR KER , ) C.C.A. NO. 03C01-9604-CC-00177 ) Appe llant, ) ) SEVIER COUNTY V. ) ) ) HON. WILLIAM R. HOLT, JR., JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST-C ONVIC TION)

FOR THE APPELLANT: FOR THE APPELLEE:

ALAN R. FELTES JOHN KNOX WALKUP 159 West Main Street, Suite 1 Attorney General & Reporter Sevierville, TN 37862 ELIZABETH B. MARNEY Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

AL C. SCHMUTZER, JR. District Attorney General

G. SCOTT GREEN Assistant District Attorney General 125 Court Avenue, Room 301-E Sevierville, TN 37862

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION

The Petition er, A. D . Barke r, appe als the order o f the Se vier Co unty C ircuit Court dismissing his petition fo r post-co nviction relief. We affirm the judgment of the trial court.

In his orig inal pro se petition, Petitioner complained that his sentence for aggravated robbery in Sevier C ounty had b een errone ously ordered to run consecutively with other sentences from convictions in Knox, Hawkins, and Ham blen counties, contrary to the specific provisions of his negotiated plea agreement. At the post-conviction hearing, the State agreed that an appropriate order should be entered to properly reflect the negotiated plea agreement that the se ntenc e sho uld be served c oncurre ntly with the p rior convictio ns. How ever, on th e date o f the post-conviction hearing, Petitioner, through appointed counsel, filed an amended petition raising the issue of ineffective assistance of trial counsel. The only testimony at the post-conviction hearing was by Petitioner. Following the h earing, the trial court dismissed the petition for post-conviction relief insofar as it alleged ine ffective assist ance of trial co unse l.

In this ap peal, P etitione r raises the follo wing issues : (1) was it error for the State not to produce a transcript of the guilty-plea hearing; (2) was it error for the State to fail to call Petitioner’s trial counsel to testify at the post-conviction hearing; (3) was it error for the trial court not to state findings of fact and conclusions of law in its order; and (4) wa s it error fo r the trial c ourt to fin d Petitio ner’s tria l counsel

-2-effective. Petition er claim s that th e alleged errors require either a rem and for a further evid entiary he aring or a n order a llowing him to withdraw his plea.

The trial judge's findings of fact on post-conviction hearings are conclusive on appeal unless the evidence preponderates oth erwise. Butler v. Sta te, 789 S.W.2d 898, 899-900 (T enn. 1990 ); Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim. App. 1995). The trial co urt's findings of fact are a fforded th e weigh t of a jury verd ict, and this Court is bound by the trial court's findings unless the evidence in the re cord preponderates against th ose findin gs. Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may n ot reweigh or reevaluate the evidence, nor subs titute its inferenc es for thos e drawn by the trial judg e. Masse y v. State, 929 S.W.2d 399, 40 3 (Ten n. Crim. A pp. 199 6); Black v. S tate, 794 S.W .2d 752, 755 (Tenn. Crim. A pp. 199 0). Que stions co ncernin g the cre dibility of witnesses and the weight and va lue to b e given to their te stimo ny are resolve d by the trial cou rt, not this court. Black v. S tate, 794 S.W.2d at 755. The burden of establishing that the evidenc e prepo nderate s otherw ise is on pe titioner. Id.

I.

In his first issue, Petitioner claims that it was error for the trial court to dismiss his petition because the Sta te failed to include the transcript from the guilty-plea hearing as part of th e record .

The Post-Conviction Procedure Act of 1995, specifically T enn. C ode An n. § 40-30-208 (b), does not exp ressly mand ate that the district attorne y gene ral obta in “records or transcripts, or parts of records or transcripts that are material to the

-3-questions raised”; rath er it empow ers the district attorney general to do so. See Tenn. Code Ann. § 40-30-208(b). The filing of these record s is now mo re permissive in that the district attorney gene ral “may file them with the responsive pleading or within a reasona ble time therea fter.” Tenn . Code A nn. § 4 0-30- 208(b ) (emp hasis added). In the previous codification of this section, these were c learly the mand atory respon sibility of the district atto rney gen eral. See Tenn. Code Ann. § 40-30-114(b) (1990); Allen v. Sta te, 854 S.W .2d 873, 875 (Tenn. 199 3).

Tenn. Sup. Ct. R. 2 8, § 6, s pecific ally address the obligation for procurement of material documentation. Within thirty (30) days of filing a petition or an amended petition, the judge to whom the cas e is ass igned mus t review that pe tition an d all docum ents to determine whether the petition states a colorable claim. In the event of a colorable claim, the judge shall e nter a preliminary order which, among other things, “ord ers the sta te to respo nd and , if appropria te, to file with th e clerk certain transcripts, exhibits, or records from the prior trial or hearing.” Tenn. Sup. Ct. R. 28, § 6(B)(3)(d).

Before Petitioner testified, the post-conviction court, which saw the amended petition for the first time when the hearing began, requested a copy of the guilty plea hearing from the State. In response to this request, General Green explained:

This was a case that was transcribed by Barbara Brooks before she left the employment of the State. I have had my investigators attempt to locate that tape, but to date it has not been found. I spoke with Ms. Noe and I also spoke with Ms. Ke lly and both agree to type it could we sim ply find the tape, and we just haven’t been able to find the tape. So we don’t have the transcript of the plea hearing.

Counsel for Petitioner responded:

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Your Hono r, I don’t -- don’t re ally belie ve Mr. Barker [Petitioner] is saying that there was any mistake made by the Court as far as his advisement of his rights. Wh at he’s saying is that he was -- it was a n involuntary plea tha t -- it was made be cause of the reas ons he will testify to, and that he didn’t want to make the plea, but he did because of the situation he was in, so . . . And because of the ineffective assistance o f Mr. Miller [Petitioner’s trial couns el].

First, while a guilty ple a trans cript is g enera lly nece ssary, w e con clude that in this case, failure to provide th e transcript was a t most harm less. As discus sed mo re fully in Issue IV, any error was harmless due to Petitioner’s post-conviction testimony which indicated that his plea was volun tarily entered . See Lane v. S tate, 968 S.W.2d 912 (T enn. C rim App. 19 97); Hoga n v. State, C.C.A. No. 01C01-9604-CC-0061, D ickson C ounty (T enn. C rim. App ., Nashville, M ar. 13, 19 97).

Second ly, the State explained why it did not have the tape and Petitioner then conceded that the transcript of the plea hearing w as unnec essary to the resolution of his amended petition. Therefore, Petitioner has waived the issue and/or invited the deficienc y that he n ow claim s as erro r. Tenn . R. App . P. 36(a). Accordingly, Petitioner should not no w be heard to claim that the transcript was “material and crucial to the issues ra ised by the petitioner.” T his issue is without m erit.

II.

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In his next issue, Petitioner claims that it was reversible error for the cou rt to dismiss his petition when his trial counsel did not testify at the post-conviction hearing. In Garrett v. S tate, 530 S.W.2d 98 (Tenn. Crim. App. 19 75), this Court pointed out that when counsel is challenged as ineffec tive, then the Sta te sho uld ca ll the attacked counsel as a witness at the post-conviction hearing. However, the record b efore us is sufficient to e nable u s to resolve Petitioner’s issues.

Furthermore, again it was not until the morning of the post-conviction hearing that appointed counsel filed the amended petition that alleged ineffective assistance of trial cou nsel. T he Sta te did n ot have the op portun ity to call Petitioner’s trial counsel to testify on such short notice. When the post-conviction court pointed out to Petitioner that the amended petition had not been included in the file and had not been reviewed, post-conviction counsel chose to go forward with the hearing anyway. Again, Petitioner’s own actions led to the very deficiency that he now alleges is error. Ten n. R. App. P. 3 6(a).

III. and IV.

In his last two issues, Petitioner argues that the trial court erred in not making findings of fact an d con clusio ns of la w on th e reco rd and that the trial cou rt erred in denying his claim that his trial counsel was ineffective.

This Cour t review s a claim of ineffe ctive as sistan ce of c ouns el under th e standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U .S. 668, 1 04 S. C t. 2052, 80 L. Ed. 2d 674 (1984). The petitioner has the burden to prove that (1) the attorney's performance was deficient, and (2)

-6-the deficie nt perfo rman ce res ulted in prejudice to the de fenda nt so a s to de prive h im of a fair trial. Strickland v. Washington, 466 U.S . at 687, 10 4 S. Ct. at 2 064; Goad v. State, 938 S.W .2d 363 , 369 (T enn. 19 96); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). In Hill v. Lockhart, 474 U.S. 52 , 106 S. C t. 366, 88 L. Ed. 2d 203 (1985), the Supreme Court applied the two-part Strickland standard to ineffective assistance of counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice requirement by requiring a defendant to show that there is a reasonable probability that, but for counsel's errors, he would not ha ve plea ded g uilty and would have insisted on going to trial. 474 U.S. at 59, 106 S. Ct. at 37 0.

Petitioner testified that his trial counsel had not adequately prepared hims elf to represent Petitioner, talking to Petitioner only two (2) times on the telephone and for an add itional five (5) minutes in the courtroom before the negotiated plea was entered by Petitioner. Petitioner asserted that his trial counsel erroneously advised Petitioner that he was fa cing a poss ible sixty (60) year sentence. Petitioner further testified that his trial coun sel failed to investigate Petitioner’s medical condition at the time of the alleged offense as requeste d by Petitioner. Petitioner also testified that his trial counsel was aware of Petitioner’s continuing severe medical problems, that Petitioner was n ot rece iving pro per m edica l treatm ent at th e cou nty jail prior to entry of the guilty plea, and that Petitioner h ad pled guilty only so that he co uld be se nt to the penitentia ry for prope r medic al treatm ent. Also, Petitioner asserted that his trial counsel did not inve stigate pro blems that the Sta te had in its case regarding the identification of Petitione r by witnes ses. Petition er was extens ively and th oroug hly cross-examined by the prosecutor at the post-conviction hearing.

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In ruling that the petition should be dismissed, the court determined that Petitioner had no t carried his burden of show ing that his guilty plea was coerced or otherwise involuntary by noting the following:

He says he understood what I told him [in the plea hearing ], and I’m very informal. A lot of times I talk too much; I ask too many questions. And he says he understood that. And these other things are -- well it’s not -- burden of proof’s not been carried. Petition in that respect is dismissed or denied.

Although the post-conviction court did not make extensive findings of fact pursuant to Tenn. Code Ann. § 40-30-211, the record is s ufficient for this Court to find that the po st-con viction c ourt co rrectly dismiss ed the p etition. See David Stova ll v. State, C.C.A. N o. 01C 01-940 1-CC -00022 , Maury C ounty (T enn. C rim. App ., Nashville, Jan. 5 , 1995 ). A failur e to sta te findin gs of fa ct and conc lusion s of law does not always require a reversal or a reman d for furthe r findings. State v. Swanson, 680 S.W .2d 487, 489 (Tenn. Crim . App. 1984 ).

Boyk in v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), requires that the record affirmatively show that the defendant voluntarily and know ingly entere d his g uilty plea . Petition er testified to the follow ing at the p ostconviction hearing:

Q: (General Green) Just to make sure I understand you correctly, Mr. Barker, you admit and tell the Court now that His Honor went through all of your rights with you when you pled guilty?

A: (Petitioner) Yes, he did.

Q: And you understood what he was saying to you; is that correct:

A: Yes, I did.

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Q: You understand the fact that you had the right, that nobody could make you waive that right to a trial by jury; correct?

A: Yes. Following this exc hang e, Petitio ner fur ther re spon ded a ffirmativ ely to specific questions reg arding spec ific rights that the court had explained and that Petitioner had waived, such as the right to testify before a jury. Petitioner also confirmed that he had pleaded guilty in cases in Ham blen, Hawk ins and Kn ox counties, be fore pleading guilty to aggravated robbery. Petitioner conceded that he had 21 prior felony convictions before the robbery plea on Decem ber 1, 19 93. As stated above, he also testified that he pled guilty to get medical attention and that after he got out of the hos pital he kn ew he h ad “ma de a ba d mistak e.”

Again, question s conce rning the credibility of witn esses and the weight and value to be given their testim ony are resolve d by the trial cou rt, not this court. See Black v. State, 794 S.W .2d at 755 . Petitioner w as the so le witness at the pos tconviction hearing, and by dismissing his petition, the trial court did not find Petition er’s testimon y to be cre dible. The record does not preponderate against the trial court’s find ings. Th is issue is w ithout me rit.

Accordingly, we affirm the trial court’s dismissal of the petition.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

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___________________________________ GARY R. WA DE, Presiding Judge

___________________________________ DAVID H. WELLES , Judge

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