James Lane v. State ( 2010 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 6, 1997
OCTOBER 1997 SESSION
Cecil W. Crowson
Appellate Court Clerk
JAMES D. LANE, )
) NO. 01C01-9611-CR-00468
Appellant, )
) DAVIDSON COUNTY
VS. )
) HON. THOMAS H. SHRIVER, JUDGE
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
J. ROBIN MCKINNEY, JR. JOHN KNOX WALKUP
214 2nd. Ave. N. Attorney General and Reporter
Suite 103
Nashville, TN 37201 ELIZABETH B. MARNEY
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
PAMELA S. ANDERSON
Assistant District Attorney General
Washington Square, Suite 500
222 2nd Ave. N.
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The appellant, James D. Lane, appeals the dismissal of his petition for post-
conviction relief by the Davidson County Criminal Court. At issue is whether
appellant’s prior guilty plea was knowingly and voluntarily entered, and whether
appellant was deprived of effective assistance of counsel. We affirm the judgment
of the trial court.
PROCEDURAL HISTORY
On October 25, 1993, appellant pled guilty to two counts of simple robbery,
each a Class C felony. He was sentenced by agreement to three (3) years on each
count to be served consecutively on community corrections after an initial four (4)
months in the drug and alcohol program in the Corrections Corporation of America
institution. The effective sentence was six (6) years on community corrections. In
exchange, he was the beneficiary of dismissed charges to include one count of abuse
of an elderly person and one count of abuse of a child. After his incarceration for
violations of his community corrections sentence, appellant filed a petition for post-
conviction relief claiming his original attorney had failed to interview witnesses and
had used his mother’s influence to convince him to plead guilty to the original
charges. The trial court dismissed the petition after an evidentiary hearing.
STANDARD OF REVIEW
The trial judge's findings of fact on post-conviction hearings are conclusive on
appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d
898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim. App.
1995). 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. Dixon v. State, 934 S.W.2d 69, 72 (Tenn.
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Crim. App. 1996). This Court may not reweigh or reevaluate the evidence, nor
substitute its inferences for those drawn by the trial judge. 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. Black v. State, 794 S.W.2d at 755. The burden of establishing that the
evidence preponderates otherwise is on petitioner. Id.POST-CONVICTION HEARING
The transcript of the the post-conviction hearing reveals that trial counsel filed
a motion to withdraw the guilty plea on November 8, 1993, concurrent with his motion
to withdraw as counsel. The record shows that appellant decided not to seek
withdrawal of the guilty plea. Counsel testified that appellant acknowledged his
abandonment of the motion in open court. Appellant testified he could not recall.
In the case before us, the trial court found the testimony of the attorney
credible and found the testimony of the appellant to be contradictory to past
proceedings. The trial court found that counsel’s performance met the standards of
Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). The trial court further found the guilty
plea was voluntarily entered. There is nothing in the record to preponderate against
the trial court’s findings.
ABSENCE OF GUILTY PLEA TRANSCRIPT
We note that there was no transcript of the guilty plea proceeding admitted
into evidence at the post-conviction hearing, and there is no supplement to the
record. The trial judge relied on his memory and his standard procedure in taking
guilty pleas. We cannot review the memory of the trial court, and this deficiency
would generally hamper our ability to effectively review the record. However,
appellant’s claim of undue influence by his mother causing him to plead guilty was
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negated by appellant’s post-conviction testimony when he admitted he pled guilty of
his own free will, that he could have pled “not guilty,” and that there were no threats
or promises made in exchange for his plea. His mother, who was also his victim in
one count of robbery, died prior to the post-conviction hearing.
The Post-Conviction Procedures Act of 1995, specifically Tenn. Code Ann.
§ 40-30-208(b), does not expressly mandate that the district attorney general obtain
“records or transcripts, or parts of records or transcripts that are material to the
questions raised . . .”; rather it empowers the district attorney general to do so. The
filing of these records is now more permissive in that the district attorney general
“may file them with the responsive pleading or within a reasonable time thereafter.”
Id. (emphasis added). In the previous codification of this section, these were clearly
the mandatory responsibility of the district attorney general. See Tenn. Code Ann.
§ 40-30-114(b) (1990); Allen v. State, 854 S.W.2d 873, 875 (Tenn. 1993).
Tenn. R. Sup. Ct. R. 28, § 6 specifically addresses the obligation for
procurement of material documentation. Within thirty days of filing of the petition, the
judge to whom the case is assigned must review the petition and all documents to
determine whether the petition states a colorable claim. In the event of a colorable
claim, the judge shall enter a preliminary order which:
(a) appoints counsel, if petitioner is indigent;
(b) sets a deadline for the filing of an amended complaint;
(c) directs disclosure by the state of all that is required to be
disclosed under Rule 16 of the Tennessee Rules of
Criminal Procedure, to the extent relevant to the grounds
alleged in the petition, and any other disclosure required
by the state or federal constitution;
(d) orders the state to respond and, if appropriate, to file with
the clerk certain transcripts, exhibits, or records from the
prior trial or hearing; and
(e) makes other orders as are necessary to the efficient
management of the case.
Id. (emphasis added).
The preliminary order herein failed to follow (d) above, and no transcript was
produced. However, as set out earlier in this opinion, the error was harmless due to
appellant’s post-conviction testimony which indicated that his plea was voluntarily
entered. See Hogan v. State, C.C.A. No. 01C01-9604-CC-0061, Dickson County
(Tenn. Crim. App. filed March 13, 1997, at Nashville).
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CONCLUSION
The judgment of the trial court is affirmed.
JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
WILLIAM M. BARKER, JUDGE
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