Tyronne W. Bell v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
JULY SESSION, 1999
TYRONE W. BELL, ) C.C.A. NO. 03C01-9810-CR-00364
)
FILED
Appe llant, ) August 24, 1999
) Cecil Crowson, Jr.
) HAMILTON COUNTY Appellate C ourt
Clerk
VS. )
) HON. STEPHEN M. BEVIL,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF HAMILTON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
MIKE A. LITTLE PAUL G. SUMMERS
701 Cherry Street District Attorney General
Chattanooga, TN 37402
TODD R. KELLEY
Assistant District Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
BILL COX
District Attorney General
MARK HOOTON
Assistant District Attorney General
600 Market Street - Courts Building
Chattanooga, TN 37402
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defe ndan t, Tyron e W . Bell, ap peals from the denial of post-conviction
relief by the Hamilton County Criminal Court. Defendant argues that his gu ilty
plea was not voluntary and intelligent due to the ineffective assistance of counsel
prior to the plea. He pleaded guilty to aggravated sexual battery and aggravated
burglary. Pursua nt to the plea agreement, he received sentences of twelve years
at eighty-five percent for the sexual battery and three years for burglary, to be
served c oncurre ntly.
In this appeal, Defendant argues (1) that the offenses occurred prior to the
effective date of the statutory change mandating that a defendant convicted of
aggravated sexual battery serve eighty-five percent of his sentence; (2) that his
counsel erroneously negotiated the plea agreement as if Defendant w ould have
been required to serve eighty-five percent of any sentence imposed; (3) that at
that time, Defendant would have been classified as a Range I standard offender
for sentencing purposes, which would have required him to mandatorily serve
only thirty percen t of his sen tence; an d (4) but for counsel’s error, Defendant
would not have pleaded guilty to a sentence to be served at eighty-five percent
and w ould h ave go ne to tria l.
W e agree with the conclusion of the trial court that Defendant was not
denied the effective assistance of couns el and tha t his guilty plea was bo th
voluntary and intelligent. Therefore, we affirm the trial court’s denial of p ost-
conviction relief.
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To determ ine whe ther cou nsel prov ided effective assistance at trial, the
court mus t decid e whe ther co unse l’s performance was within the range of
competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was
ineffective at trial, a petitioner bears the burden of showing that his counsel made
errors so serious that he was not functioning as counsel as guaranteed under the
Sixth Amendment and that the deficient representation prejudiced the petitioner,
resulting in a failure to produce a reliable res ult. Strickland v. Washington, 466
U.S. 668, 68 7 (1984 ); Coop er v. State , 849 S.W.2d 744, 747 (Tenn. 1993); Butler
v. State, 789 S.W.2d 898, 899 (T enn. 1990). To satisfy the second prong the
petitioner must sh ow a rea sonab le proba bility that, but for counsel’s
unrea sona ble error, the fact finder would have had reasonable doubt regarding
petition er’s guilt. Strickland, 466 U.S. at 695. T his reaso nable p robability must
be “sufficient to undermine confidence in the outcom e.” Harris v. S tate, 875
S.W .2d 662, 665 (Tenn. 199 4).
This two-part standard of measuring ineffective assistance of counsel also
applies to claims arising out of the plea proces s. Hill v. Lockhart, 474 U.S. 52(1985). The prejudice requirement is modified so that the petitioner “must show
that there is a reaso nable proba bility that, but for counsel’s errors he wo uld not
have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.
When reviewing trial counsel’s actions, this Court should not use the
bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics.
Hellard v. State, 629 S.W .2d 4, 9 (Ten n. 1982). Co unsel’s alleged e rrors shou ld
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be judged at the time they were made in light of all facts and circumstances.
Strickland, 466 U.S . at 690; see Cooper 849 S.W.2d at 746.
If afforde d a po st-con viction e videntiary hearing by the trial co urt, a
petitioner must do more than merely present evidence tending to show
incompetent representation and prejudice; he must prove the factual allegations
by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). When an
evidentiary hearing is held, findings of fact made by that court are conclusive and
binding on this Court unless the evidenc e prepo nderate s agains t them. Cooper,
849 S.W.2d at 746 (citing Butler, 789 S.W .2d at 899).
The “core requirement” of federal constitutional law regarding the validity
of guilty ple as is that “no guilty plea be accepted without an affirmative showing
that it was intelligent and volun tary.” Fontaine v. United States, 526 F.2d 514,
516 (6th Cir. 1975) (citing Boykin v. Alabama, 395 U.S . 238 (19 69)). In its
exhaustive and comprehensive evaluation of the requirements for a voluntary,
intelligent plea of guilt, the Tennessee Supreme Court stated,
[A] court cha rged with determ ining whe ther . . . pleas were
“voluntary” and “intelligent” must look to various circumstantial
factors, such as the re lative intelligence of the defendant; the degree
of his familiarity with criminal proceedings; whether he was
represented by competent counsel and had the opportunity to confer
with counsel about the options available to him; the extent of advice
from counsel and the court concerning the charges against him; and
the reason s for his de cision to ple ad guilty, inclu ding a de sire to
avoid a greate r pena lty that m ight res ult from a jury tria l.
Blank ensh ip v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (citing Caudill v. Jago,
747 F.2 d 1046 , 1052 (6 th Cir. 198 4)).
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In the case at bar, Defen dant testified he kne w that he was plea ding gu ilty
to a recom mend ed sen tence o f twelve yea rs to be se rved at eig hty-five perc ent,
but he did not know—and his counsel should have informed him—that the
change in law requiring a co nvicted offender to s erve eighty-five percent of the
sentence did not apply to his offense because it was committed prior to the
effective date of the change. Defendant conte nds th at cou nsel e rrone ously
attested before the court that the eighty- five per cent re quirem ent did in fact a pply
to Defendant’s case. The transcript of the guilty plea h earing re flects that when
asked whether the change in the law applied to Defendant’s case, his counsel
replied in the affirmative.
Howeve r, at the po st-con viction e videntia ry hea ring, D efend ant’s coun sel,
Attorney Hallie McFadden, testified that both she and the prosecuting attorney
knew that the chan ge in the law requirin g eigh ty-five pe rcent s ervice d id not a pply
to Defendant’s case. She stated that eighty-five percent service of sentence was
a part of the plea offer by the State an d that after c onsultatio n with De fendan t,
they chose to accept that offer as being in Defen dant’s be st interest. McFadden
testified she discussed with Defendant that the eighty-five percent service was
not require d by law , but by th e State ’s plea offer. She explained that she had not
paid close attention at the plea hearing when she informed the judge that
Defendant was required to serve eighty-five percent of the sentence “per the
statute” rather than “p er the p lea ag reem ent.” A know ing an d volun tary gu ilty
plea genera lly waives an y irregularity as to release eligibility. Hicks v. State, 945
S.W .2d 706, 709 (Tenn. 199 7).
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McFadden also testified that the parties originally believed Defendant had
not penetrated the young victim during the offense; but prior to the plea
agreem ent, investigatio ns revea led that the victim had c ontrac ted a s exually
transmitted disease carried by D efend ant— indica ting stro ngly tha t Defe ndan t did
penetra te the victim. Furthermore, the record demonstrates that, in exchange for
Defe ndan t’s guilty plea to aggravated sexual battery and aggravated burglary, the
State dism issed seven coun ts of es pecia lly aggravated burglary, one count of
theft, one c ount of ag gravated burglary, a nd one count of e vading a rrest.
In light of the evidence pres ented at the po st-conviction eviden tiary
hearing, we conclud e both (1) that D efendant did n ot suffer the ineffective
assistance of counsel, and (2) that his guilty plea was volunta rily and in telligen tly
delivered . We therefore affirm the d enial of po st-convictio n relief.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
JOE G. RILEY, JUDGE
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