Davis v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST 1997 SESSION
October 1, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
)
MICHAEL B. DAVIS, )
) C.C.A. No. 03C01-9702-CR-00060
Appellant, )
) Knox County
V. )
) Honorable Ray Jenkins, Judge
STATE OF TENNESSEE, )
) (Post-Conviction: Second Degree Murder)
Appellee. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
John B. Blair, III John Knox Walkup
Attorney at Law Attorney General & Reporter
176 2nd Avenue North
Suite 406 Sandy Copous Patrick
Nashville, TN 37201 Assistant Attorney General
2d Floor Cordell Hull Bldg.
425 Fifth Avenue North
Nashville, TN 37243-0943
Randall E. Nichols
District Attorney General
Fred Bright
Assistant District Attorney General
City-County Bldg.
Knoxville, TN 37902
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Michael B. Davis, appeals the denial of his petition for
post-conviction relief, arguing that his guilty plea was not entered knowingly and
voluntarily because he received ineffective assistance from his attorney and
because he was coerced into pleading guilty due to the possibility of federal gun
charges. The appellant pled guilty to second degree murder, possession of
cocaine for resale, and possession of a weapon in the commission of a felony.
He was sentenced as a Range I, standard offender to the minimum sentence of
fifteen years on the murder charge, six years on the drug charge, and one year
on the weapons charge. The six-year sentence and the one-year sentence were
to be served concurrently to each other, but consecutively to the murder charge.
Thus, the appellant received a total sentence of twenty-one years to be served in
the Department of Correction. We affirm.
The appellant presents for our review one issue: whether his guilty plea
was voluntarily entered despite his attorney’s representations regarding his
possible release eligibility date and despite the threat of prosecution on federal
gun charges.
The appellant killed a man after a fight and was subsequently charged
with first degree murder. After he was charged with this crime, the appellant
became involved in an altercation with a man on Cumberland Avenue in
Knoxville, but a police officer intervened and stopped the altercation. The police
officer noticed the butt of a gun exposed from under the appellant’s car seat.
The car was searched, and the search produced several grams of cocaine. This
incident occurred during “Operation Trigger Lock,” a federal project involving the
prosecution of drug and gun violations.
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Although the appellant pled guilty in state court, he asserted in his
petition for post-conviction relief that his plea was not voluntarily entered
because of ineffective representation by his attorney. Donald Bosch, a private
attorney, represented the appellant at the plea. According to the appellant, Mr.
Bosch informed him that he could be released in as little as three or four years
under the proposed plea agreement. Furthermore, the appellant asserts that Mr.
Bosch informed him that he would be prosecuted on federal gun charges if he
did not accept the plea agreement. According to the appellant, Mr. Bosch did
not inform the trial court of the possibility of federal gun charges.
The state, however, argues that the post-conviction court properly
dismissed the appellant’s petition for post-conviction relief. The state contends
that the appellant was not “induced to plead guilty by his attorney’s
misrepresentation as to the release eligibility dates and the federal government’s
threat of prosecution.” The state maintains that the appellant has failed to show
“that his attorney’s ineffectiveness prejudiced him by forcing him to accept the
guilty plea.” Furthermore, the state argues that the record from the appellant’s
guilty plea hearing indicates that the appellant had not been pressured to plead
guilty.
To be granted relief on the ground of ineffective assistance of counsel, an
appellant must establish that the advice given or the services rendered were not
within the competence demanded of attorneys in criminal cases and that, but for
counsel’s deficient performance, the result of his or her trial would have been
different. Strickland v. Washington, 466 U.S. 668 (1984). This two-part
standard, as it applies to guilty pleas, is met when the appellant establishes that,
but for counsel’s error, he or she would not have pled guilty and would have
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). In
Tennessee, the appropriate test is whether counsel’s performance was within the
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range of competence demanded of attorneys in criminal cases. Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975).
In post-conviction proceedings, petitioners bear the burden of proving
their allegations by a preponderance of the evidence. Black v. State, 794
S.W.2d 752, 755 (Tenn. Crim. App. 1990); McBee v. State, 655 S.W.2d 191,
195 (Tenn. Crim. App. 1983). Furthermore, the trial court’s findings of fact in
post-conviction hearings are conclusive on appeal unless the evidence
preponderates against those findings. Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990); State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983);
Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
Because a guilty plea involves the waiver of several of the defendant’s
constitutional rights, the trial court may not accept a guilty plea without an
affirmative showing that the defendant’s plea decision was knowing and
voluntary. Boykin v. Alabama, 395 U.S. 238 (1969); State v. Mackey, 553
S.W.2d 337 (Tenn. 1977). If a plea of guilty is induced by coercion, fraud,
duress, or mistake, then relief may be granted. Capri Adult Cinema v. State, 537
S.W.2d 896, 898 (Tenn. 1976).
The appellant argues that his guilty plea was not voluntarily made
because his attorney was ineffective by misrepresenting to the appellant his
possible release eligibility date. However, the appellant admitted that his
attorney told him that he could serve three or four years or he could serve the
entire twenty-one year sentence. Furthermore, the transcript of the plea hearing
clearly indicates that the appellant understood his rights, and he indicated at that
time that he had not been pressured or coerced into pleading guilty.
We conclude that the trial court’s acceptance of the appellant’s guilty plea
complied with the requirements of Boykin and Mackey. Furthermore, this Court
finds that the appellant has failed to carry the burden of establishing that his
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attorney was ineffective. Because the evidence does not preponderate against
the post-conviction court’s findings, we affirm that court’s judgment .
_____________________________
PAUL G. SUMMERS, Judge
CONCUR:
______________________________
GARY R. WADE, Judge
______________________________
WILLIAM M. BARKER, Judge
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