Nathan Draper v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1998 SESSION
May 5, 1998
Cecil W. Crowson
NATHAN L. DRAPER, ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9706-CR-00225
)
) Davidson County
v. )
) Honorable Seth Norman, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Brent Owen Horst John Knox Walkup
42 Rutledge Street Attorney General of Tennessee
Nashville, TN 37201 and
Clinton J. Morgan
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Roger Moore
Assistant District Attorney General
Washington Square, Suite 500
222 2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Nathan L. Draper, appeals as of right from the Davidson
County Criminal Court’s denial of post-conviction relief. He is presently in the custody
of the Department of Correction serving a Range I sentence of ten years for his 1994
conviction upon a guilty plea for aggravated robbery, a Class B felony. The petitioner
contends that he received the ineffective assistance of counsel resulting in his guilty
plea not being entered knowingly and voluntarily. He argues that his trial counsel failed
to discuss possible trial strategy with him and failed to advise him that his ten-year
sentence would run consecutively to a sentence he was serving on parole when he
committed the present offense. We affirm the trial court’s denial of post-conviction
relief.
The record reflects that the petitioner and a codefendant were originally
charged with especially aggravated robbery, a Class A felony. The petitioner pled guilty
to the offense of aggravated robbery for an agreed Range I sentence of ten years.
At the post-conviction hearing, the petitioner testified that his counsel
discussed the case with him only when he appeared in court. He conceded that his
counsel told him that the victim could not identify him from a lineup. The petitioner
stated that although his counsel told him that the codefendant and the codefendant’s
girlfriend had given the police a statement implicating the defendant, counsel did not
discuss the details of the statements, whether the codefendant had been given a plea
offer, or whether counsel conducted an independent investigation. The petitioner said
that counsel did not tell him that the robbery occurred six hours before he was arrested
for possession of the victim’s stolen credit cards. He admitted that counsel discussed
with him how the codefendant’s credibility could be attacked. The petitioner testified
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that counsel did not discuss any trial strategies and that he would not have pled guilty if
trial strategy had been discussed with him.
Regarding the nature of the plea, the petitioner testified that he believed
that the sentence was to be served concurrently with a sentence for which he was on
parole when the robbery occurred. He said that counsel told him that he would be
released in no more than three years. He stated that he would not have pled guilty had
he known that his sentences would be served consecutively or that he would not be
released in approximately three years.
On cross-examination, the petitioner conceded that his constitutional
rights were carefully explained to him by the trial court before he entered the guilty plea.
He acknowledged that the trial court explained the elements of the charged offense and
that he stated that he understood. He also acknowledged that the court asked him
whether the evidence against him had been explained to him and he said that it had.
The petitioner testified that the trial court explained the sentencing ranges and the
possible fines for especially aggravated robbery and aggravated robbery. The
defendant admitted that he stated at the guilty plea hearing that counsel had consulted
with him before entering the plea and that he was satisfied with counsel’s
representation. He said that he was aware that he could have received a much greater
sentence because he had several prior felony convictions, including theft of a car,
receiving stolen property, aggravated robbery, assault with the intent to commit robbery,
breaking into a vehicle, and selling a controlled substance. He stated that he
understood that especially aggravated robbery was a more severe crime than
aggravated robbery, the offense to which he pled guilty.
The petitioner acknowledged that the trial court ruled against the motion to
suppress filed by counsel, finding that a gun, ski mask, and the victim’s credit cards
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located in the defendant’s car were seized pursuant to a search to which the petitioner
consented. He also acknowledged that he was aware that the codefendant and his
girlfriend were in the car with him when he was stopped by the police. However, the
petitioner claimed that counsel could have investigated the scene, given him the
victim’s initial report, given him the statements of the witnesses, reviewed the
statements of the codefendant and his girlfriend, and visited him in jail.
The petitioner’s counsel testified that he negotiated a plea for aggravated
robbery and a Range I sentence of ten years. He stated that the petitioner was at least
a Range II, multiple offender. He said that he had focused on negotiating a plea. The
petitioner’s counsel testified that he spoke to both the petitioner and the prosecutor at
each of the eight court appearances. He believed that the state had a very strong case
against the petitioner, though consisting of circumstantial evidence. He expressed the
opinion that the defendant would be convicted if he went to trial and would receive a
sentence as a Range II offender.
The petitioner’s counsel testified that he learned of the evidence against
the petitioner by reviewing the state’s file with the prosecutor’s permission. He said that
he reviewed several documents, including an extensive police case report, medical
records, and statements. He stated that his investigation revealed that the victim was
attacked by a black male wearing a ski mask over his face and carrying a handgun. It
showed that the victim was beaten and robbed, requiring that she be taken to the
hospital to receive treatment. The petitioner’s counsel testified that he learned that later
that evening, the defendant, the codefendant, and the codefendant’s girlfriend were
stopped at a market in east Shelby County because they were trying to purchase items
with the credit cards stolen from the victim. He stated that all three were arrested, and
the codefendant informed the police that there was a secret compartment under the
dash behind the glove compartment of the defendant’s car in which the three were
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riding. He said that after obtaining the defendant’s consent to search the car, the
officers found in the secret compartment two ski masks and a pistol consistent with
those used during the robbery. The petitioner’s counsel testified that the codefendant
and his girlfriend then gave a statement implicating the petitioner. He said that he also
learned that there were no other witnesses to the crime and that the victim was unable
to identify the petitioner as the robber. He stated that he sent the petitioner a
memorandum and, at one point, a complete copy of his file.
The petitioner’s counsel testified that he filed a motion to suppress the
evidence seized pursuant to the search of the defendant’s car, but the motion was
denied. He said that the defendant never provided an alibi or names of witnesses to be
interviewed. The petitioner’s counsel stated that he was aware that the petitioner had
violated his parole conditions, but he did not recall discussing the effect of the
petitioner’s parole violation if he entered a guilty plea. He said that he fully explained to
the petitioner his eligibility for release, including that the ultimate decision to release the
petitioner rested with the Board of Paroles and that the release eligibility could be
adjusted downward because of prison overcrowding. He testified that he told the
petitioner that it was not guaranteed that he would be released when he had served
thirty percent of his sentence. The petitioner’s counsel admitted that the petitioner was
reluctant to plead guilty because the petitioner believed that the circumstantial evidence
was not sufficient for a conviction.
On cross-examination, the petitioner’s counsel testified that he could not
remember whether he talked to the petitioner about an alternate theory if he proceeded
to trial. He admitted that it was possible that the codefendant committed the robbery
because he was a passenger in the car. He conceded that there was no evidence
linking the gun and the mask to the crime. The petitioner’s counsel testified that he did
not interview the codefendant, the codefendant’s girlfriend or the victim. He also
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conceded that he did not sign the guilty plea submission form certifying that he had
explained the plea to the petitioner. The petitioner’s counsel believed that he was
successful in plea negotiations because there was some question as to whether the
injuries suffered by the victim constituted serious bodily injury.
The trial court denied the petitioner post-conviction relief. It held that the
petitioner failed to show that he received the ineffective assistance of counsel. It found
that the petitioner discussed with his counsel the facts of the case before entering the
plea. The trial court also found that the trial court was extremely thorough in explaining
to the defendant his rights before accepting his plea.
On appeal, the petitioner challenges his convictions based upon claims
that he received ineffective assistance of counsel that caused him to enter unknowing
and involuntary guilty pleas. Under the Sixth Amendment, when a claim of ineffective
assistance of counsel is made, the burden is upon the petitioner to show (1) that
counsel's performance was deficient and (2) that the deficiency was prejudicial in terms
of rendering a reasonable probability that the result of the trial was unreliable or the
proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied, as well, to the right to
counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989). Relative to a claim that the ineffective assistance of
counsel resulted in an invalid guilty plea, a petitioner must prove that counsel performed
deficiently and that but for counsel’s errors, the petitioner would not have pled guilty and
would have insisted upon going to trial. Hill v. Lockhart, 464 U.S. 52, 59, 106 S. Ct.
366, 370 (1985).
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In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court
decided that attorneys should be held to the general standard of whether the services
rendered were within the range of competence demanded of attorneys in criminal
cases. Further, the court stated that the range of competence was to be measured by
the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,
in reviewing counsel's conduct, a "fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." Strickland v. Washington, 466 U.S. at 689, 104 S.
Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will
not be measured by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic
failed or even hurt the defense does not, alone, support a claim of ineffective
assistance. Deference is made to trial strategy or tactical choices if they are informed
ones based upon adequate preparation. See Hellard, 629 S.W.2d at 9; DeCoster, 487
F.2d at 1201.
The burden was on the petitioner in the trial court to prove his allegations
that would entitle him to relief by clear and convincing evidence. T.C.A. § 40-30-210(f).
On appeal, we are bound by the trial court’s findings unless we conclude that the
evidence preponderates against those findings. Black v. State, 794 S.W.2d 752, 755
(Tenn. Crim. App. 1990). The petitioner has the burden of illustrating how the evidence
preponderates against the judgment entered. Id.In this case, the petitioner has failed to meet his burden of showing that
the evidence preponderates against the judgment entered with respect to either of his
claims of ineffective assistance of counsel. First, the petitioner argues that trial counsel
was ineffective for failing to discuss any trial strategy with the petitioner. He argues that
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the most obvious defense available to the petitioner that should have been discussed
with him was that the codefendant actually committed the robbery without the
petitioner’s knowledge and that the codefendant and his girlfriend implicated the
petitioner to avoid prosecution. At the post-conviction hearing, the petitioner’s counsel
testified that the state had a very substantial case against the petitioner. He believed
that the petitioner would have been convicted and would have received a greater
sentence if he went to trial. He said that as a result he focused on plea negotiations.
As acknowledged by the petitioner at the post-conviction hearing and on appeal, his
trial counsel negotiated a very favorable plea bargain. We do not use the benefit of
hindsight to second-guess trial strategy by counsel and criticize trial counsel’s tactical
decisions. Hellard, 629 S.W.2d at 9. The petitioner has failed to demonstrate deficient
performance by counsel.
The petitioner also has failed to establish that counsel was ineffective by
failing to advise the petitioner the effect of his parole violation upon his sentence. This
claim is not supported by the record. Though the petitioner claimed that trial counsel
told him that his sentences would run concurrently, the petitioner’s trial counsel testified
that he did not remember discussing the effect of the petitioner’s parole violation on the
sentence imposed. Also, the petitioner’s trial counsel stated that he explained his
eligibilty for release and told him that it was not guaranteed that he would be released in
three years as the decision to release the petitioner ultimately rested with the Board of
Paroles. The trial court obviously accredited the testimony of the petitioner’s trial
counsel. In this respect, this court has held that trial counsel is not ineffective for failing
to inform the petitioner that a guilty plea could lead to revocation of parole and the
imposition of consecutive sentencing. Bailey v. State, 924 S.W.2d 918, 918-19 (Tenn.
Crim. App. 1995).
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In consideration of the foregoing and the record as a whole, the judgment
of the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
David H. Welles, Judge
Joe G. Riley, Judge
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