Michael McConnell v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1998 SESSION
April 7, 1998
Cecil W. Crowson
Appellate Court Clerk
MICHAEL O'NEAL McCONNELL, )
) NO. 01C01-9704-CC-00163
Appellant, )
) LAWRENCE COUNTY
VS. )
) HON. WILLIAM B. CAIN,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES W. HOLT, JR. JOHN KNOX WALKUP
235 Waterloo Street Attorney General and Reporter
P. O. Box 357
Lawrenceburg, TN 38464-0357 ELLEN H. POLLACK
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
T. MICHAEL BOTTOMS
District Attorney General
JAMES G. WHITE, II
Assistant District Attorney General
P. O. Box 279
Lawrenceburg, TN 38464-0279
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Petitioner, Michael O’Neal McConnell, appeals the denial of his petition for
post-conviction relief. Two (2) issues are presented for our review, namely: (1)
whether petitioner was deprived of effective assistance of counsel when he was
advised to give a statement to police authorities; and (2) whether the sentences
received by petitioner are illegal. Finding no error, we AFFIRM the judgment of the
trial court.
PROCEDURAL HISTORY
Petitioner was indicted for first degree murder and six (6) counts of robbery
by use of a deadly weapon, all alleged to have occurred in January 1989. The state
filed notice that it was seeking the death penalty for the first degree murder. On
November 20, 1990, petitioner entered a guilty plea pursuant to a plea agreement.
For the reduced offense of second degree murder, petitioner received a sentence
of 35 years; for five (5) offenses of robbery by use of a deadly weapon, he received
concurrent 10-year sentences; and for one (1) offense of robbery by use of a deadly
weapon, he was sentenced to 35 years to run consecutively to the 35-year sentence
for second degree murder. The effective sentence was a term of 70 years. All
sentence calculations were based upon the Criminal Sentencing Reform Act of
1982 and not the Criminal Sentencing Reform Act of 1989.
On November 2, 1993, petitioner timely filed the present petition for post-
conviction relief. See Tenn. Code Ann. § 40-30-102 (1990). After an evidentiary
hearing, the trial court denied the petition. More specifically, the trial court found
that petitioner had not been deprived of effective assistance of counsel.
Furthermore, the trial court determined that sentencing under the 1982 Act was
proper. Petitioner challenges these findings in this appeal.
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STANDARDS OF REVIEW
The trial court’s findings of fact are afforded the weight of a jury verdict, and
this Court is bound by the trial court’s findings unless the evidence in the record
preponderates against those findings. Henley v. State, S.W.2d (Tenn.
1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may
not reweigh or reevaluate the evidence, nor substitute its inferences for those drawn
by the trial judge. Henley v. State, S.W.2d at ; Massey v. State, 929 S.W.2d
399, 403 (Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755 (Tenn.
Crim. App. 1990). Questions concerning the credibility of witnesses and the weight
and value to be given to their testimony are resolved by the trial court, not this court.
Henley v. State, S.W.2d at ; Black v. State, 794 S.W.2d at 755. The burden
of establishing that the evidence preponderates otherwise is on petitioner. Henley
v. State, S.W.2d at ; Black v. State, 794 S.W.2d at 755.
We are somewhat hampered by the failure of the trial court to file written
findings of fact and conclusions of law with regard to each ground presented in the
petition. See Tenn. Code Ann. § 40-30-118(b) (1990) (presently required by Tenn.
Code Ann. § 40-30-211(b) (1997)). Nevertheless, the oral findings pronounced from
the bench are sufficient in this instance to allow appropriate appellate review. State
v. Higgins, 729 S.W.2d 288, 290-91 (Tenn. Crim. App. 1987).
INEFFECTIVE ASSISTANCE OF COUNSEL
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner
has the burden to prove that (1) the attorney’s performance was deficient, and (2)
the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;
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Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d
6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d at 898, 899 (Tenn. 1990).
The test in Tennessee in determining whether counsel provided effective
assistance is whether his performance was within the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The
petitioner must overcome the presumption that counsel’s conduct falls within the
wide range of acceptable professional assistance. Strickland v. Washington, 466
U.S. at 689, 104 S.Ct. at 2065; State v. Williams, 929 S.W.2d 385, 389 (Tenn.
Crim. App. 1996). Therefore, in order to prove a deficiency, a petitioner must show
that counsel’s acts or omissions were so serious as to fall below an objective
standard of reasonableness under prevailing professional norms. Strickland v.
Washington, 466 U.S. at 688, 104 S.Ct. at 2065; Henley v. State, S.W.2d at
___; Goad v. State, 938 S.W.2d at 369.
In reviewing counsel's conduct, a "fair assessment . . . 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. The fact that a particular strategy or tactic failed or hurt the defense,
does not, standing alone, establish unreasonable representation. However,
deference to matters of strategy and tactical choices applies only if the choices are
informed ones based upon adequate preparation. Goad v. State, 938 S.W.2d at
369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Cooper v. State, 847 S.W.2d
521, 528 (Tenn. Crim. App. 1992).
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 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 have pleaded guilty and would have
insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370.
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COUNSEL’S ALLOWING PETITIONER TO GIVE STATEMENT
Petitioner contends his first appointed counsel was deficient in allowing the
petitioner to give a statement to the authorities without first securing a plea
agreement with the district attorney general’s office. The state, on the other hand,
contends this was a tactical decision by trial counsel and was reasonable in light of
the circumstances.
A.
The petitioner and others were arrested for committing a series of armed
robberies in January 1989. One of the co-defendants implicated the petitioner in
a homicide that was perpetrated during one of the armed robberies. Petitioner
denied being an actual perpetrator of the homicide. Petitioner’s trial counsel at that
time advised the petitioner that he should cooperate with the authorities and give
a truthful statement. Although petitioner in his statement denied being the actual
perpetrator of the stabbing leading to the victim’s death, the petitioner did concede
that he was present and involved in the robbery of the victim. Petitioner contends
his counsel was ineffective in allowing petitioner to give this statement.
B.
Based upon hindsight, one could certainly contend this statement did not
inure to the benefit of the petitioner. However, the advice given must be viewed at
the time it was given, not by hindsight. Strickland v. Washington, 466 U.S. at 689,
104 S.Ct. at 2065. At the time of the statement the petitioner had apparently been
fingered by a co-defendant as participating in the homicide. Petitioner faced the
possibility of the death penalty if convicted of first degree murder and was further
facing numerous other armed robbery charges. Although the statement admitted
petitioner’s involvement in the robbery, there was a denial of his actual participation
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in the homicide. This cooperation could reasonably have placed the petitioner in
a better position with the police and prosecutorial authorities. We are reluctant to
second-guess this tactical decision.
C.
In addition, petitioner bears the burden of demonstrating that he would not
have entered a plea of guilty had he not given this statement. See Hill v. Lockhart,
474 U.S. at 59, 106 S.Ct. at 320. Petitioner has failed to meet his burden of
establishing that he would not have entered into the plea agreement if he had not
given the statement.
The trial court found that petitioner had not been deprived of effective
assistance of counsel. This Court is bound by those findings unless the evidence
in the record preponderates against those findings. Henley v. State, ___ S.W.2d
at ___, Dixon v. State, 934 S.W.2d at 72. Petitioner has not met his burden of
establishing that the evidence preponderates against the findings of the trial court.
This issue is without merit.
LEGALITY OF THE SENTENCES
Under the plea agreement all sentences were established pursuant to the
Criminal Sentencing Reform Act of 1982. Since the offenses were committed after
July 1, 1982, and the defendant was sentenced after November 1, 1989, petitioner
could have been sentenced under the Criminal Sentencing Reform Act of 1989.
See Tenn. Code Ann. § 40-35-117(b). Petitioner, therefore, contends that his 35-
year second degree murder sentence and 35-year armed robbery sentence are
illegal since their length is not authorized under the Criminal Sentencing Reform Act
of 1989. The state contends that the sentences, received pursuant to a plea
agreement, were appropriately imposed under the Criminal Sentencing Reform Act
of 1982. We must agree with the state.
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A.
Trial courts imposing sentences after the effective date of the 1989
Sentencing Act for crimes committed prior to its effective date must calculate the
appropriate sentences under both the 1982 Sentencing Act as well as the 1989
Sentencing Act. State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993). After
making these calculations, the trial court must then impose the lesser sentence. Id.Therefore, the mere fact that the petitioner was sentenced under the 1982
Sentencing Act, even though sentenced after the effective date of the 1989
Sentencing Act, does not itself indicate that the sentences are illegal.
Under the 1982 Sentencing Act the punishment for second degree murder
and robbery by use of a deadly weapon was not less than 10 years nor more than
life. Tenn. Code Ann. §§ 39-2-212, 39-2-501 (1982). A Range I sentence for each
offense was not less than 10 years nor more than 35 years. See Tenn. Code Ann.
§ 40-35-109 (1982). Thus, a 35-year sentence for second degree murder and
robbery by use of a deadly weapon was authorized under the 1982 Sentencing Act.
Under the 1989 Sentencing Act the Range I punishment for second degree
murder is not less than 15 years nor more than 25 years. The Range I punishment
for robbery by use of a deadly weapon is not less than eight (8) years nor more than
12 years. Obviously, a Range I sentence of 35 years for either offense is not
authorized under the 1989 Sentencing Act.
B.
It is necessary, however, to analyze petitioner’s plea based upon the
circumstances at the time. Had defendant not pled guilty and gone to trial, he faced
a first degree murder charge with the possibility of the death penalty or life
imprisonment under both Sentencing Acts. See Tenn. Code Ann. §§ 39-2-202(b)
(1982); 39-13-202 (b) (1991). Although the range of punishment for each offense
of robbery by use of a deadly weapon was eight (8) to twelve (12) years under the
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1989 Act as opposed to 10 to 35 years under the 1982 Act, petitioner still faced the
possibility of consecutive sentencing. See Tenn. Code Ann. § 40-35-115 (1990).
In short, the defendant, even if convicted and sentenced under the 1989 Sentencing
Act, faced the possibility of the death penalty and/or confinement that exceeded the
70 years he secured in the plea agreement.
The record further reveals that trial counsel considered sentencing under
both the 1982 Sentencing Act and the 1989 Sentencing Act. The offer of the state
was a “package deal” for a total of 70 years. Under these circumstances the
sentences were not illegal, nor were they the result of ineffective assistance of
counsel.
Since we find no error after a careful review of the record, the judgment of
the trial court is affirmed.
________________________________
JOE G. RILEY, JUDGE
CONCUR:
________________________________
JOSEPH M. TIPTON, JUDGE
________________________________
DAVID H. WELLES, JUDGE
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