R. Brown v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
SEPTEMBER 1998 SESSION
November 3, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
RICHARD BROWN, JR., )
) C.C.A. NO. 03C01-9707-CR-00257
Appellant, )
) KNOX COUNTY
VS. )
) HON. RICHARD R. BAUMGARTNER,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
MARK STEPHENS JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
PAULA R. VOSS Elizabeth B. Marney
-and- Asst. Attorney General
JOHN HALSTEAD 425 Fifth Ave., North
Asst. Public Defenders 2nd Floor, Cordell Hull Bldg.
1209 Euclid Ave. Nashville, TN 37243-0493
Knoxville, TN 37921
RANDALL NICHOLS
District Attorney General
ROBERT L. JOLLEY, JR.
Asst. District Attorney General
District Attorney General’s Office
City-County Bldg.
Knoxville, TN 37902
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
On July 23, 1993, the petitioner pled guilty to second-degree murder,
especially aggravated robbery, four counts of aggravated robbery, and one count of theft.
He was then sentenced to a total of sixty years to be served in the Tennessee
Department of Correction. On March 25, 1994, he filed a petition for post-conviction relief
alleging that he was denied the effective assistance of counsel. Following an evidentiary
hearing on June 5, 1997, the post-conviction court denied his petition. It is from this
denial that the petitioner now appeals.
After a review of the record and applicable law, we find no merit to the
petitioner’s appeal and thus affirm the judgment of the court below.
The petitioner’s convictions for especially aggravated robbery and second-
degree murder1 stem from the robbery of Moyers Market on July 19, 1992. The petitioner
entered the store and showed the clerk a pistol he had in his waistband. The petitioner
then told the clerk that he wanted money. It was at this point that another employee,
Donald R. Brown, emerged from the back room of the store and confronted the petitioner.
Although the record is not entirely clear, it appears a struggle ensued and the petitioner
shot and killed Mr. Brown. The petitioner then took money from the store and left the
premises.
The petitioner contends that he was denied effective assistance of counsel
when his attorney allowed him to plead guilty to especially aggravated robbery which was
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As th e con viction s for espe cially ag grav ated robb ery an d sec ond -deg ree m urde r are t he on ly
convictions at issue in this appeal, we will not go into detail regarding the facts surrounding the other
convictions.
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essentially incidental to the second-degree murder charge and was thus barred by due
process and double jeopardy. In reviewing the petitioner’s claim of ineffective assistance
of counsel, this Court must determine whether the advice given or services rendered by
the attorney are within the range of competence demanded of attorneys in criminal
cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of
ineffective counsel, a petitioner “must show that counsel’s representation fell below an
objective standard of reasonableness” and that this performance prejudiced the defense.
There must be a reasonable probability that but for counsel’s error the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88,
692, 694, (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).
Because the petitioner in this case pled guilty, he would have to
demonstrate a reasonable probability that, but for counsel’s errors, he would not have
pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52,
59, (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).
The petitioner claims that since his convictions for especially aggravated
robbery and second-degree murder violate due process and the Double Jeopardy
Clause, his attorney should not have allowed him to plead guilty. The petitioner further
contends that his attorney’s allowance of his guilty plea constituted ineffective assistance
of counsel. We disagree.
In 1932, the United States Supreme Court held that in determining whether
multiple convictions violate double jeopardy, “[t]he applicable rule is that, where the same
act or transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one is whether each
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provision requires proof of an additional fact which the other does not.” Blockburger v.
U.S., 284 U.S. 299, 304, (1932). This Court has further held that in order for two
offenses to be viewed as the same offense under this test, “it is necessary that the
elements of one of the offenses must necessarily be proven whenever a violation of the
other offense has been proven.” State v. Jackson, No. 03C01-9206-CR-00222, Hamilton
County (Tenn. Crim. App. filed July 29, 1993, at Knoxville).
In light of the foregoing, it is necessary to set out the elements of the
offenses for which the petitioner was convicted. Especially aggravated robbery is a
robbery accomplished with a deadly weapon and that results in serious bodily injury to
the victim. T.C.A. § 39-13-403 (1991). In contrast, second-degree murder is a knowing
killing of another. T.C.A. § 39-13-210 (1991). “Unquestionably, neither robbery nor the
use of a deadly weapon is necessarily proven by proving the elements needed for first
degree or second degree murder.” State v. Jackson, No. 03C01-9206-CR-00222,
Hamilton County (Tenn. Crim. App. filed July 29, 1993, at Knoxville). In addition, a
knowing killing of another is not necessarily proven by proving the elements needed for
especially aggravated robbery. As such, under the principles set out above, these two
offenses are separate and double jeopardy is not violated when a defendant is convicted
of both.
However, the petitioner further contends that the especially aggravated
robbery was essentially incidental to the second-degree murder charge and therefore
barred by due process under the principles set out in State v. Anthony, 817 S.W.2d 299(Tenn. 1991). We disagree. The test set out in Anthony to determine whether or not
multiple convictions violate due process was whether an offense was essentially
incidental to the accompanying felony. 817 S.W.2d at 306.
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It is clear that the petitioner’s robbery of the market was not essentially
incidental to his murder. Either offense can be committed without committing the other.
Obviously, neither offense is necessarily incidental to the other. As such, the petitioner’s
convictions did not violate due process.
Since it did not violate the Double Jeopardy Clause or due process for the
petitioner to be convicted of both second-degree murder and especially aggravated
robbery, it was not error for the petitioner’s attorney to “allow” him to plead guilty to both
offenses. Therefore, the petitioner was not denied the effective assistance of counsel.
In sum, we affirm the trial court’s denial of this petition for post-conviction relief.
_________________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOSEPH M. TIPTON, Judge
______________________________
DAVID G. HAYES, Judge
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