Charles Dwight Farrar v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF
TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1999 SESSION
November 24, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
CHARLES DWIGHT FARRAR, * C.C.A. #
01C01-9810-CC-00393
Appellant, * BEDFORD COUNTY
VS. * Honorable Thomas A. Smith, Judge
STATE OF TENNESSEE, * (Post-Conviction Relief)
Appellee. *
FOR THE APPELLANT: FOR THE APPELLEE:
HERSHELL KOGER PAUL G. SUMMERS
135 N. First Street, Suite E Attorney General & Reporter
Pulaski, TN 38478
LUCIAN D. GEISE
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
WILLIAM MICHAEL McCOWN
District Attorney General
ROBERT G. CRIGLER
Assistant District Attorney
One Public Square, Suite 300
Shelbyville, TN 37160
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The petitioner, Charles Dwight Farrar, appeals from the Bedford County
Circuit Court’s order dismissing, after an evidentiary hearing, his petition for post-
conviction relief. The petitioner pled guilty to twelve counts and received an
effective sentence of twenty years in the Tennessee Department of Correction.
His petition alleged that he received ineffective assistance of counsel and that
his plea was not knowing and willing. We AFFIRM the trial court’s judgment.
BACKGROUND
At a plea acceptance hearing and sentencing on March 17, 1997, the
petitioner pled guilty to the following offenses and sentences:
(1) forgery, a Class E felony, for two years;
(2) burglary, a Class D felony, for three years;
(3) theft, a Class D felony, for three years;
(4) theft, a Class E felony, for two years;
(5) theft, a Class D felony, for four years;
(6) theft, a Class D felony, for four years;
(7) theft, a Class E felony, for one year;
(8) theft, a Class A misdemeanor, for eleven months, twenty-nine
days;
(9) driving on a revoked license, a Class B misdemeanor, for six
months;
(10) evading arrest in auto, a Class E felony, for two years;
(11) reckless endangerment, a Class E felony, for two years;
(12) reckless endangerment, a Class E felony, for one year;
(13) jail escape, a Class E felony, for two years; and
(14) vandalism, a Class E felony, for one year.
Counts one through five, counts eleven and twelve, and count fourteen were
imposed consecutively, and the remaining counts concurrently, for an effective
sentence of twenty years. Under the agreement, he was sentenced as a Range I
offender, although he qualified for Range II status.
Dr. Pruett provided care for the petitioner at the Riverbend Maximum
Security Institution. The record includes a letter stating the results of Dr. Pruett’s
evaluation, conducted at the petitioner’s request, on January 12, 1997. At a
deposition on August 3, 1998, Dr. Pruett testified that he evaluated the petitioner
at the petitioner’s request so that he could enter a plea. Dr. Pruett established
that the petitioner understood the functions and roles of the judge, the jury, and
other components of the legal system. Dr. Pruett further determined that the
petitioner understood the nature of the charges and the consequences of his
plea. Despite previous borderline personality diagnosis and micropsychotic
episodes, the petitioner was competent. Specifically, Dr. Pruett noted that during
the evaluation the petitioner exhibited neither homicidal ideation nor suicidal
ideation nor any other form of psychosis.
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At the sentencing hearing, the trial judge asked the petitioner if he had
read the plea agreement. The petitioner answered that he had not read the
agreement but that his attorney had read the pertinent documents to him and
that he understood them. The petitioner further stated that he was satisfied with
his representation, that he had no witnesses for a trial, and that his attorney
maintained regular contact. This contact comprised telephone discussions and
visits at both the jail and the penitentiary. The petitioner also stated to the trial
judge, on his own and not through counsel, that he understood that he needed to
request pre-trial sentence credits from the judge. These credits reduced his
sentence by sixteen months.
The petitioner then filed a pro se petition for post-conviction relief and was
appointed counsel. At the hearing on the petition, the petitioner testified to his
history of unusual behavior. The petitioner further testified that on the morning of
his pleas the Bedford County Sheriff had threatened to charge his wife for
assisting him in escaping and fleeing law authorities if he did not accept the
twenty-year sentence. However, he then testified that he thought he was
agreeing to an eight-year sentence. The petitioner said that he had secretly
stockpiled daily dosages of Thorazine until he had accumulated 1500 milligrams
and that he had taken them the morning before his pleas because he was
suicidal and depressed. He testified that he told his attorney at the hearing that
he was over-medicated, and in his response his attorney said, “Don’t worry about
it, it will be all right.” The petitioner claimed to remember some, but not all,
portions of his testimony and statements under oath to the judge at the
sentencing hearing.
Mr. Dearing, the petitioner’s trial counsel, testified at the hearing that he
had repeatedly contacted the petitioner: He had spoken with him while he was
on bond, he had certainly spoken with him at the jail, and had phoned him “many
more times than three.” Mr. Dearing testified that he spoke with all the law
enforcement officials involved in the various cases prior to the plea. He testified
that he advised the petitioner that until the petitioner was declared competent the
case would not return to the court. In 1996, the petitioner had been declared
incompetent to stand trial, in that he did not understand the nature and
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consequences of his charges and could not assist or advise his counsel.
Dearing testified that he did not coerce the petitioner into entering the plea.
Dearing also said that the petitioner contacted him after the sentencing hearing
and asked if his assistance in solving some unsolved robberies would reduce his
sentence.
Joe Carthon, an officer with the Tennessee Department of Correction,
testified that he knew the petitioner for at least one year. As escort officer,
Carthon was involved with transporting the petitioner to court on the day of the
hearing. Carthon testified that the petitioner exhibited no signs of agitation or
excessive anxiety on that date.
Dr. Rokeya Farooque, a psychiatrist and professor in the Department of
Psychiatry at Meharry Medical College in Nashville, testified that she reviewed
the written transcript and records of the sentencing and plea hearings and
evaluated the petitioner in August 1997. Dr. Farooque testified that a person
without tolerance for Thorazine who takes 1500 milligrams of that drug exhibits
side effects: extreme grogginess; inability to stay awake; and little, if any, ability
to rationally communicate. She testified that despite the petitioner’s claim that
he had taken the drug on the date in question, the record evidences his active
and lucid participation rather than any dysfunction. For example, Farooque
noted the trial court’s inquiry, “During that time you have discussed with Mr.
Dearing and he has discussed with you the possible defenses, if any, you might
have to all of the cases that you have pled guilty to?,” to which the petitioner
responded, “Could you say that again, Your Honor?” The judge repeated the
question, albeit somewhat modified, after which the petitioner answered in the
affirmative. Farooque distinguished this exchange from that expected of one
under the influence of Thorazine, in which a simple “yes” or “no” would be
expected.
ANALYSIS
The petitioner asserts that the trial court erred by dismissing his petition
for post-conviction relief. That petition asserted that the petitioner’s counsel was
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ineffective and that the petitioner did not knowingly and willingly enter his pleas. 1
The trial court denied the petition after a hearing. A petitioner bears the burden
of proving his factual allegations by a preponderance of the evidence. See
Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988).
Ineffective Assistance of Counsel
A petitioner seeking relief because of ineffective assistance of counsel
must first establish that the services rendered or the advice given was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W. 23 930, 936 (Tenn. 1975); see also Strickland v. Washington, 466 U.S.
at 668 (1984). The petitioner must then demonstrate that the alleged
deficiencies “actually had an adverse effect on the defense.” Strickland, 466
U.S. at 693. A reasonable probability must exist that but for counsel’s error the
result of the proceeding would have been different. Id. at 694. The petitioner
must establish both factors. Moreover, on appeal the findings of fact established
by the trial court are conclusive, and this Court will not disturb these findings
unless the evidence contained in the record preponderates against them. See
Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991). Further, failure of
a particular strategy or tactic pursued by defense counsel does not establish
ineffective assistance of counsel. This Court must defer to trial strategy and
tactical choices based on adequate preparation. See id. at 60-61; Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
The trial court credited the testimony for the petitioner’s trial counsel,
finding that counsel adequately investigated the cases and acted reasonably in
preparing defense. He interviewed witnesses identified by the petitioner and
concluded in most cases that their testimony was adverse. Similarly, the trial
court found that none of the witnesses could actually provide exculpatory
evidence. The trial court determined that the counsel’s performance exceeded
the applicable standards. Further, the petitioner’s statements at the sentencing
hearing and plea acceptance hearing indicate that the petitioner was satisfied
1
The actual petition comprised eight separate allegations, which the petitioner’s counsel at the
evidentiary hearing characterized as falling within these two general categories.
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with counsel’s performance. This Court also notes that counsel testified at the
hearing that he maintained contact with the petitioner.
The petitioner offers only his uncorroborated testimony in support of his
allegations of ineffectiveness. He has not satisfied the burden of proof
necessary for reversal.
Knowing and Willing Plea
The petitioner’s assertions regarding his “knowingly and willingly” offering
his pleas comprise two primary issues: alleged Thorazine over-medication on the
day in question and his misunderstanding of the proceedings. The trial court
found that even if the petitioner had consumed the 1500 milligrams of Thorazine
as claimed, Dr. Farooque’s testimony compelled the conclusion that any such
medication did not prevent the petitioner from understanding the proceedings.
Further, that court noted counsel’s testimony that the petitioner did not seem
under an influence. Counsel also denied being told by the petitioner that he was
over-medicated.
Also, the petitioner asserted that he was coerced by his attorney into
entering the pleas. Counsel testified that he did not coerce the petitioner.
Further, under direct questioning during the sentencing hearing, the trial judge
established that the petitioner had not been coerced to enter the pleas.
We have reviewed the sentencing hearing records provided to this Court
and noted the petitioner’s participation. The petitioner testified under oath that he
understood the proceedings and agreed with the sentences. At one point, the
judge asked him if he had read the plea agreement, and the petitioner corrected
the judge: He had not read the agreement, but counsel had read to him the
pertinent documents and he understood their contents. The petitioner also, at
two points in that proceeding, requested that the judge address the issue of pre-
trial credits and sentence reduction. He made these inquiries personally and not
through counsel. The trial court correctly found that the petitioner was an active
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and knowing participant in his plea agreements. We do not find the requisite
proof necessary to interfere with the trial court’s judgment.
CONCLUSION
We AFFIRM the trial court’s order dismissing the petition.
______________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
____________________________
JOHN H. PEAY, Judge
___________________________
DAVID H. WELLES, Judge
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