Ricky Rutledge v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH SE SSION, 1998 July 2, 1998
Cecil W. Crowson
RICKY RUTLEDGE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9706-CC-00201
)
Appe llant, )
)
) BEDFORD COUNTY
VS. )
) HON. WILLIAM CHARLES LEE
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF BEDFORD CO UNTY
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT H. STOVALL, JR. JOHN KNOX WALKUP
P.O. Box 160 Attorney General and Reporter
Charlotte, TN 37036
CLINTON J. MORGAN
Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243-0493
MIKE McCOWN
District Attorney General
ROBERT G. CRIGLER
Assistant District Attorney General
One Public Square, Suite 300
Shelbyville, TN
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Petitioner, Ricky Rutledge, appeals from the order of the trial court
dismissing his Petition for Post C onviction Relief. Pe titioner sou ght post-
conviction relief asserting that he received ineffective assistance of counsel prior
to entering his plea of guilt. In addition, Petitioner maintains that because of
coun sel’s deficient represe ntation, his guilty plea was not knowingly, intelligently,
and voluntarily given. Following an evidentiary hearing, the trial court denied
relief and we affirm.
In April 1990, Petitioner was indicted on six counts of aggravated rape1 and
one count of aggravated sexual battery . The v ictim a s set fo rth in the indictment
was the 9-ye ar-old da ughter o f the Defe ndant. P etitioner en tered a “b est interes t”
guilty plea on December 17, 1990, to the first count of aggravated rape; and the
State retired all other counts of this indictment as well as a prior indictment for
multip le coun ts of pa ssing worth less ch ecks . Judg e Cha rles Le e of the Circu it
Court for Bedford Coun ty sentenced Petitioner to twenty-five years as a Range
I standard offend er.
Petitioner filed a pro se Petition for Po st Con viction Relief in the Cir cuit
Court for Bedford County on November 22, 1993; the trial court appointed
counsel on March 24, 1994; and an amended Petition was filed with the court on
1
Petitioner was indicted for five counts of aggravated rape in violation of Tennessee Code Annotated § 39-2-603 (1982
& Supp. 1988), and one count of aggravated rape in violation of Tennessee Code Annotated § 39-13-502 (1990).
-2-
May 26, 1994. The trial cou rt held an evidentiary hearing over the course of May
26 and 2 7, 199 4, and dism issed the Pe tition at th e con clusio n of this hearing. On
February 17, 1997, the trial court entered its Order Dismissing Post Conviction
Petition, from which th e Petitione r appea ls.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
The first issue for review is whether Petitioner suffered ineffective
assistance of counsel in violatio n of his Sixth A men dme nt right to coun sel. 2 The
Petition presents several claims for post-conviction relief based upon ineffective
assistance of couns el, yet only certain of these claims were pursued at the
evidentiary hearin g. Bec ause the Pe titioner b ears th e burd en of p roving his
factual allegation s in this proc eeding , Tenn. C ode An n. § 40-30-2 10(f) (1997), we
will address only those claims for which proof was offered.
A. Failure to Investig ate
First, Petition er ass erts tha t coun sel faile d to ad equa tely inve stigate his
case—spec ifically, by failing to d etermin e the m eaning and sign ificance o f a
diagn osis made following a medical examination of the victim. To be entitled to
post-conviction relief on the basis of ineffective assistance of counsel, Petitioner
must show both that his counsel’s representation was “deficient” and that “the
2
The State raises two “preliminary” issues that may be addressed here. First, the State argues that this Court should
affirm “instanter” the decision of the trial court, due to the Petitioner’s failure to prepare a complete record for appeal. The trial
court’s findings of fact, incorporated by reference in its Order, were not attached to the Order in preparation for the hearing of this
appeal. The record reflects, however, that the State did not respond to a motion by Petitioner to permit supplementation of the
record pursuant to Tennessee Rule of Appellate Procedure 24(e); and the motion was granted on October 1, 1997.
Second, the State urges that the Petitioner’s Amendment to Petition for Post-Conviction Relief be stricken from the
record as an “unauthorized pleading.” Although this pleading was not signed by appointed counsel, it was signed by Petitioner
himself; and in the interest of justice, we choose to consider its allegations, noting the objection by the State.
-3-
deficient performan ce prejudiced the defense .” Strickland v. Washington, 466
U.S. 668, 687 (1984). Because Petitioner h as failed to satisfy e ither pro ng, this
claim lac ks me rit.
This Court has been provided extensive guidance by which to review
contentions that conduct was below competence when judged by “an objective
standard of reasonab leness.” See id. at 688; see also Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975) (“We b elieve a bette r stand ard . . . is s imply
whether the advice given, or the services rendered by the attorney, are within the
range of com petenc e dem anded of attorney s in crimin al cases .”). We be gin with
the princip le that fin dings of fact m ade b y the tria l court fo llowing Petition er’s
evidentiary hearing are conclusive and binding on this Court unless the evidence
preponderates against th ose findin gs. Coop er v. State , 849 S.W.2d 744, 746
(Tenn. 1993) (citing Butler v. S tate, 789 S.W .2d 898, 899 (Tenn. 199 0)). In this
case, the trial court was “convinced, based upon his demeanor and based upon
his answe rs to the qu estions,” th at John Norton , one of P etitioner’s prior
attorneys, was “fam iliar with those terms o f art” that Petitioner now claims were
not invest igated . We h old tha t the ev idenc e doe s not p repon derate again st this
determination and we exam ine the ev idence with resp ect to failure to investiga te
the medical diagnosis of the victim.
To support his first claim, Petitioner entered two exhibits into the record of
the evidentiary hearing. The first exhibit was a letter from Dr. Frank Jayakody of
Shelb yville to Brenda Bramlett, Petitioner’s other attorne y at the time o f his guilty
-4-
plea. This letter stated that upon examination of the victim on February 27, 1990,
Dr. Jayakody found “no abrasions or discoloration in [the victim’s] perineal area
and her hymen appeared intact.” Furthermore, “[a]ttempts to inse rt a ped iatric
speculum into her vagina was [sic] unsuccessful due to pain,” and “based upon
her exa mination . . . I could not co nclusive ly say tha t any abu se had occurre d.”
The second exhibit relevant to this iss ue, a “C hild Ab use B odyg ram” of the v ictim
signed by Registered Nurse LeeAnne McInnis at Metropolitan General Hospital
in Nashville, revealed “Findings [consistent with] past his tory of traum a to
hymen =category 3 findings.”
The crux of Petitioner’s argument is that Brenda Bramlett and John Norton
shou ld have researched the term “category 3 findings” to determine whether such
trauma can result from causes other than sexual abuse. Specifically, Petitioner
argues that Br amle tt and N orton c ould h ave d iscovered that D r. Jaya kody ’s
frustrated attempts to insert a pediatric speculum into the victim three days
earlier3 were within the range of potential causes. At the evidentiary hearing,
however, Petitioner presented no evidence to support his hypothesis; counsel
mere ly motioned to continue the proceeding until su ch tim e as e viden ce co uld be
presented.4
3
Thoughthe bodygramis not dated, the State does not seem to dispute the date of the victim’s examination at General
Hospital.
4
Petitioner recounted difficulty in locating Nurse McInnis for interview and requested that the trial court provide funds
for an expert. We note that our Supreme Court “is of the opinion that the state is not required to provide expert assistance to
indigent non-capital post-convictionpetitioners.” Davis v. State, 912 S.W.2d 689, 696-97 (Tenn. 1995); and we accept the decision
of the trial court to deny Petitioner’s request for an expert as correct.
-5-
As noted by this Court in Black v. S tate, 794 S.W.2d 752 (Tenn. Crim. App.
1990),
When a petitione r conten ds that trial co unsel failed to
discover, interview, or present witnesses in support of the defense,
these witnesses should be presented by the petitioner at the
evidentiary hearing. . . . It is elementary that neither a trial judge nor
an appellate court can speculate or guess on the question of
whether further investigation would have revealed a material witness
or what a witness’s testimony might have been if introduced by
defense counsel. . . . In short, if a petitioner is able to establish that
defense coun sel wa s defic ient in th e inve stigation of the facts . . .,
the petitioner is n ot entitled to re lief from his con viction on this
ground unles s he ca n prod uce a mate rial witness who (a) cou ld
have been found by reasonable investigation and (b) would have
testified favorably in support of his defense if called.
Id. at 757-58 (footnote omitted). Although Black involve d a co nvictio n after tr ial,
its import is also well-taken in the context of guilty pleas. Petitioner bears the
burden to demonstrate (1) that Bramlett and Norton failed to investigate “categ ory
3 findings” of trauma and such failure was unreasonable “considering all the
circum stance s,” Strickland, 466 U.S. at 688; and if so, (2) that “there is a
reaso nable probability that, but for counsel’s errors, he would not have pleaded
guilty and wou ld have insisted o n going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985). Petitioner must do more than merely present evidence tending to show
incompetent representation and prejudice; he must prove his factual allegations
by a prepo nderan ce of the e vidence . Brooks v. State, 756 S.W.2d 288, 289
(Tenn. Crim . App., 1988). 5
5
For post-conviction petitions filed after May 9, 1995, petitioners have the burden of proving
factual allegations by clear and convincing evidence. Tenn. Co de Ann. § 40-30-210(f).
-6-
As recognized, Pe titioner h as pre sente d no a ffirmativ e evid ence on this
issue other than to show on cross exam ination that Norton never spok e with Dr.
Jayakody or Nurse McInnis and did not investigate their findings, and that
Bram lett only spoke with Nurse McInnis by telephone. By explanation, Norton
testified that he did not sp eak w ith Dr. J ayak ody b ecau se, in h is experien ce, if a
“doctor really wants his opinion to be credible, he puts everything in it that he did,
and you get back a report” that is “graphic” and detailed. For this reason, Norton
stated that he “did not have any reason to believe that [Dr. Jayakody] would have
been any m ore enligh tening in p erson th an he w as on the written pa ge.” In
addition, Norton testified that he did not speak with Nurse McInnis because he
presumed she would not change her opinion and because he believed, even from
his admittedly limited medical know ledge, that Dr. Jayakody could not have
cause d the injury that Nurs e McIn nis found .
Petition er’s other counsel, Brenda Bramlett, testified at the ev identiary
hearing that while she had not spoken with Dr. Jayakody personally, she had
consulted another doctor about Jayakody’s findings. This consultant doctor
spoke personally with Dr. Jayakody and subsequently offered Bramlett her
opinion—that the victim’s injury “could not have been caused by anything other
than abuse” and that the location of the scarring was “consistent with what you
find in sexual abu se cases.” Furtherm ore, Bram lett instructed her inves tigator to
perso nally interview Nurse McInnis, and the investigator complied and reported
back to B ramlett.
-7-
With respect to rationalization of attorney conduct in an ineffective
assistance of counsel case, the Supreme Court of the United States instructed,
Judicial scrutin y of co unse l’s perfo rman ce m ust be highly
defere ntial. It is all too tempting for a defendant to second-guess
coun sel’s assistan ce after conviction or ad verse se ntence . . . . A
fair assessment of attorn ey perform ance requ ires that every effort
be made to elimina te the disto rting effects of hin dsight, 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. 668, 688 (1984). The courts of this state also
have long “recognized that it is not our function to ‘second-guess’ tactical and
strategical choices pertaining to defense matters or measu re a defense attorney ’s
representation by ‘20-20 hindsight’ when deciding the effectiveness of trial
couns el.” Coop er v. State , 849 S.W.2d 744, 746 (Tenn. 1993) (quoting Hellard
v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). We find counsel’s conduct to be
reason able un der the c ircums tances .
As the State commented at the evidentiary hearing, “There are other
sources of research that [sic] the medical books, other doctors, criminal defenses
association resources, where [present counsel] could have resea rched this
matter hims elf and not co me in to [the] h earing saying , ‘Well, it may have , it could
have been.’” The trial court agreed, finding that “there has not been a showing
to the Court that there would be the likelihood that would a ssist the D efenda nt.”
In the absence of sufficient evidence to support either Strickland prong, and with
the presence of evidence supporting reasonable conduct by counsel, we must
hold that the evidence does not preponderate against the trial court’s finding of
-8-
no ineffective assistance of couns el based upon fa ilure to inves tigate the medical
eviden ce.
B. Failure to Advise/Misinformation
Petitioner next claims that he suffered ineffective assistance of counsel
because prior co unse l incorre ctly inform ed him that he would be released from
incarceration after servin g seve n and o ne-half to e ight years of his sen tence w ith
good beh avior. As noted above, Pe titioner was sente nced to twe nty-five years
as a Range I offender. Eligibility for parole arises for Range I offenders after
completion of thirty percent of the actual sentence imposed. Tenn. Code Ann.
§ 40-35-5 01(c) (19 90). Petitioner testified at the evidentiary hearing that he will
not be re leased from inca rceration until after serv ice of eigh teen ye ars.
Although the rea son fo r prolon ged c onfine men t is not p resen ted in
Petition er’s brief or his testimony, we assume it results from Tennessee Code
Anno tated § 40-35-503(c) (1990), which reads: “No person convicted of a sex
crime shall be releas ed on parole until a p sych iatrist or licensed clinical
psychologist has examined and evaluated such inmate and certified that, to a
reaso nable medical certainty, the inmate does not pose the likelihood of
committing sexual assaults upo n release from confineme nt.” Id. For whatever
reason , there are two distinc t issues tha t we m ust cons ider.
First, did counsel promise or otherwise misinform Petitioner regarding the
actual date h e wou ld be re lease d? Th e trial co urt spe cifically fo und th at they did
not: “[T]he Court credits the witnesses for the State, or credits the witnesses for
-9-
the State in tha t no prom ises were made to the Defendant that he would be
released, guaranteed at a particular time.” Upon examination of the testimony
at Petitioner’s evidentiary hearing, we conclude that the evidence does not
prepondera te again st this fin ding. B oth N orton a nd Br amle tt testified
uneq uivoc ally they did not guarantee or represent to Petitioner that he would be
released at any certain time. Moreover, they testified they did not indicate to him
that he would be released at a certain time, although they agree d that h e was told
he would be “eligible for parole” after serving thirty percent of his sentence.
Furthermore, the transcript of Petitioner’s plea acceptance hearing reflects the
following colloquy between the trial judge and P etitioner:
THE COURT: M r. Rutledge, has anyone made any threats against
you, other than to prosecute you, to make you plead guilty?
THE DEFE NDA NT: N o, sir.
THE COURT: Has anyone made any promises to you other than
those announced in court today to make you plead guilty?
THE DEFE NDA NT: N o, sir. I just ask ed for o ne thin g, and he told
me he couldn’t d o that.
THE COURT: Pardon me?
THE DEFENDANT: I asked him for one thing, and he said he
could n’t do that. I wanted one more thing in the plea bargain, and
he could n’t com e abo ut that. I a sked him -- to report myself in after
the holidays to the Bedford C ounty She riff’s Office --
THE COURT: That’s a decision that is left up to the Co urt and not
to the --
THE DEFENDANT: -- and he said he couldn’t make that
arrange ment. T hat’s the o nly thing.
Based upon this evidence, we conclude (1) that Petitioner was not promised or
given the info rmatio n that h e wou ld be released after serving seven and one-h alf
-10-
years or any other s pecific length of his sentence, and (2) that this Court has no
basis upon which to determine the information provided to Petitioner—that he
would b e “eligible for re lease” afte r serving th irty percen t—w as incorre ct. 6
The second q uestion to con sider is: Did coun sel’s failure to advise
Petitioner that he would not be released after serving th irty perc ent of h is
sentence constitute ineffective assistance of counsel? Initially, we note that
Petitioner has fa iled to p rovide evide nce o ther tha n his own testimony of
inadm issible hearsay statements by Department of Correction officers to show
that he will in deed not be releas ed afte r havin g serv ed thirty perc ent of h is
sentence, although the trial cou rt agreed that release at that tim e wou ld be h ighly
unlikely. Next, Petitioner testified he was actually advised prior to pleading guilty that he would
be requ ired to com plete a se x offende rs’ treatme nt progra m as a condition of his paro le.
This Court has previously determined that “silence by counsel” on “any
collateral consequences of a plea” does not “fall below the range of competence
demanded of attorneys in criminal cases.” Adkins v. State, 911 S.W.2d 334, 350
(Tenn. Crim. App. 1994). Specifically, failure of cou nsel to discus s paro le
eligibility or the parole condition of successfully completing a sexual offender
treatment program does not constitute ineffective assistance of couns el. Wade
v. State, 914 S.W.2d 97, 103-04 (Tenn. Crim. App. 1995); Wilson v. State, 899
6
This is not a case, as in Hill v. Lockhart, 474 U.S. 52, 54-55 (1985), in which counsel has given erroneous advice.
See id. (counsel told defendant he would be eligible for parole after serving one-third of sentence, when defendant was actually
not eligible for parole prior to serving one-half of his sentence); see also Donald F. Walton v. State, C.C.A. No. 01C01-9603-CR-
00110, Davidson County (Tenn. Crim. App., Nashville, Jan. 30, 1997) (finding that “erroneous advice regarding parole that induces
a defendant to forego his or her right to a jury trial can be used to establish a claim for ineffective assistance”). As just discussed,
the trial court found that Petitioner was advised only that he would be eligible for parole at thirty percent. Although Petitioner may
have other parole conditions such as psychological evaluation, he remains “eligible for parole” at thirty percent.
-11-
S.W.2 d 648, 652-53 (Tenn. Crim. App. 1994). In light of these decisions, we
cannot conclude that counsel had a duty to advise Petitioner of consequences
even more collateral an d certainly indefinite— the length of time it cou ld take to
fulfill conditions of parole. We conclude that Petitioner has not suffered
ineffective assista nce o f coun sel ba sed u pon m isadvice or failure to advise
regardin g cond itions of pa role eligibility.
II. VOLUNTARY AND INTELLIGENT PLEA
Because we have determined that Petitioner’s ineffective assistance of
counsel claims lack merit, because ineffective assist ance was th e only basis
upon which he claimed his plea w as involu ntary or u nintelligent, and because we
find no other basis to conclude that his plea was not rendered volun tarily, w e hold
that this claim mus t also fa il.
The judgment of the trial court denying the Petitioner post-conviction relief
is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JOSEPH M. TIPTON, JUDGE
___________________________________
JOE G. RILEY, JUDGE
-12-