Harvey Burns v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1997 SESSION
December 18, 1997
Cecil W. Crowson
HARVEY STANLEY BURNS, ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9612-CR-00515
)
) Davidson County
v. )
) Honorable Seth Norman, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Deanna Bell Johnson John Knox Walkup
211 Third Avenue, North Attorney General of Tennessee
Nashville, TN 37201 and
Daryl J. Brand
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Jim Milam
Assistant District Attorney General
Washington Square
222 2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Harvey Stanley Burns, appeals as of right from the
judgment of the Davidson County Criminal Court denying him post-conviction relief from
his October 1995 conviction for the sale of cocaine, a Class C felony. The petitioner
pled guilty pursuant to an agreement by which he was sentenced to ten years in the
custody of the Department of Correction as a Range III, persistent offender. He
contends that he received the ineffective assistance of counsel and that his sentence
constitutes cruel and unusual punishment. We disagree.
The petitioner was represented by two assistant public defenders during
his prosecution. At the post-conviction evidentiary hearing, the petitioner testified that
his attorneys failed to submit his medical and psychiatric records to the court, which
would show his drug abuse problem. He believed that the records would have led to a
lesser sentence. He also stated that the attorneys did not investigate the case
adequately and that they were prejudiced against him because of his prior record and
the videotape that the police made of the transaction. The petitioner had prior
convictions for six robberies, a voluntary manslaughter, and an aggravated assault.
The petitioner testified that he had been under a lot of pressure because
his mother was ill and that the attorneys did not give him enough time to think about the
plea offer. He admitted being aware of the terms of the plea the night before he pled
guilty. Also, he claimed that one attorney incorrectly advised him that he would be
eligible for parole after serving two years, including his sixteen months of pretrial jail
credit. He acknowledged, though, that a parole hearing was scheduled for August 15,
1996.
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One of the petitioner’s attorneys testified. He said that they got the
petitioner’s medical records reviewed by experts, but the result was that the petitioner
was deemed competent and sane. The records showed the petitioner to be marginally
retarded and this was reported to the prosecutor during negotiations. The attorney
stated that the petitioner had been offered seven years as a Range II, multiple offender,
but he had refused to accept it in order that he could remain available at that time for
his ailing mother. At one point, the state offered fifteen years, but the final offer was ten
years. The attorney believed that the petitioner had been eligible for career offender
status with a higher sentence exposure.
The attorneys reviewed the videotape with the petitioner. It showed the
petitioner passing something to an undercover officer. Testing proved that the
substance contained cocaine. The attorney testified that they interviewed the two
officers involved in the case and reviewed the petitioner’s former convictions to see if
they all could count toward range enhancement. They could. Also, the attorney
testified that he was present when his co-counsel explained to the petitioner that the
petitioner might be eligible for parole within a year after his guilty plea.
The trial court concluded that the petitioner received the effective
assistance of counsel, as to both the attorneys’ performances and the lack of prejudice
to the petitioner being shown. It also concluded that the petitioner knowingly and
intelligently pled guilty, noting that he received the minimum sentence for the range that
was used. The trial court made no specific ruling about the claim that the sentence was
cruel and unusual punishment, but it dismissed the petition.
In a post-conviction case, the petitioner must prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-210(f). To establish counsel
ineffectiveness, the petitioner must show that counsel’s performance was deficient and
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that the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984). Relative to a claim that a guilty plea resulted from the
ineffective assistance of counsel, the petitioner must show that but for counsel’s errors
he would not have pled guilty and would have insisted upon going to trial. Hill v.
Lockhart, 464 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). Relative to our review on
appeal, the factual findings of the trial court are deemed conclusive unless the evidence
of record preponderates against them. Cooper v. State, 849 S.W.2d 744, 746 (Tenn.
1993).
Although the trial court failed to make detailed findings of fact, it is
apparent from its ruling that the attorney’s testimony was accredited In any event, the
record fails to show any prejudice had befallen the petitioner that would warrant relief.
He had rejected a more lenient plea offer because of his own personal reasons. As the
state points out, he could have been sentenced as a career offender, which would have
required a fifteen-year sentence with release eligibility at sixty percent. See T.C.A. §§
40-35-108(a) and (c), 40-35-501(f). There is no indication that presenting the medical
records to the court would have made any difference. His sentence to the minimum of
a lesser range reflects that the petitioner received effective representation.
As for the petitioner’s complaint that his attorney advised him that he
would be eligible for parole approximately eight months after he pled guilty, we note that
the parole hearing was to occur approximately ten months after the plea. Moreover, the
petitioner never asserted that such a small difference in time would have led him to
insist upon going to trial. The record before us supports the trial court’s conclusion that
the petitioner received the effective assistance of counsel.
The petitioner contends that his ten-year sentence with a forty-five percent
release eligibility date -- as required by the 1989 Sentencing Act for a Class C felon
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who is a Range III, persistent offender -- constitutes cruel and unusual punishment
under the Eighth Amendment to the United States Constitution and Article 1, Section 16
of the Tennessee Constitution. He provides neither authority for his position nor
argument regarding how the sentence is improper. Although we deem this issue to be
waived, we view it to be without merit, as well. See State v. Black, 815 S.W.2d 166,
189 (Tenn. 1991) (providing standard for determining propriety of punishment under
Article I, Section 16 of Tennessee Constitution); Harmelin v. Michigan, 501 U.S. 957,
994-95, 111 S. Ct. 2680, 2701 (1991) (mandatory life sentence for possession of more
than six hundred fifty grams of cocaine not cruel and unusual punishment); State v.
Hinsley, 627 S.W.2d 351 (Tenn. 1982) (determinate sentence of not less than ten years
nor more than life for habitual drug offender not cruel and unusual punishment); State
v. Dock Battles, No. 02C01-9212-CR-00294, Shelby County (Tenn. Crim. App. Sept.
30, 1996), app. denied (Tenn. Jan. 27, 1997) (ten years for Range I, Class B cocaine
felon with substantial record of prior criminal behavior and convictions not cruel and
unusual punishment).
In consideration of the foregoing, the judgment of the trial court is
affirmed.
______________________________
Joseph M. Tipton, Judge
CONCUR:
_________________________
John H. Peay, Judge
_________________________
David H. Welles, Judge
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