Brady v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCH 1997 SESSION FILED
April 21, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
NORWOOD BRADY, )
) C.C.A. No. 03C01-9604-CR-00166
Appellant, )
) Hamilton County
V. )
) Honorable Douglas A. Meyer, Judge
)
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Johnny D. Houston, Jr. John Knox Walkup
Attorney at Law Attorney General & Reporter
Suite 202, Flatiron Building
707 Georgia Avenue Timothy F. Behan
Chattanooga, TN 37402 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
William H. Cox III
District Attorney General
Leland Davis
Assistant District Attorney General
600 Market Street, Suite 310
Chattanooga, TN 37402
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Norwood Brady, was indicted for first degree murder. He
pled guilty to the lesser offense of second degree murder. 1 He received a fifty-
year sentence.
The appellant filed a petition for post-conviction relief alleging that he
received ineffective assistance of counsel which resulted in an involuntary and
unknowing plea. In his petition he claimed his trial counsel was ineffective for
failing to allow him to participate in his defense and for failing to adequately
explain the consequences of his guilty plea. After a hearing, the trial court
dismissed the petition finding the appellant's trial counsel effective and the
appellant's plea knowing and voluntary. He appeals the dismissal of his petition.
Upon review, we affirm.
In order for the appellant to be granted relief because of ineffective
assistance of counsel, he must establish that the advice given or the services
rendered were not within the competence demanded of attorneys in criminal
cases and that, but for his counsel’s deficient performance, the result of his trial
would have been different. Strickland v. Washington, 466 U.S. 668 (1984).
This two-part standard, as it applies to guilty pleas, is met when the appellant
establishes that, but for his counsel’s error, he would not have pled guilty and
would have insisted on a trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The appellant testified at the post-conviction hearing that he was not
allowed to participate in his defense and was not properly advised of the terms of
his guilty plea. Furthermore, he claimed he could not read and did not
understand what he was signing. 2 The appellant's trial counsel testified that he
1
The appellan t was classified as a Range II offend er. As part of the plea a greement,
however, he a greed to be senten ced as a Rang e III persistent offende r.
2
The appellant testified that, although he had a twelfth-grade education, he could not read at
the time he entere d his guilty plea. He stated that he learned to read in prison.
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met with the appellant on several occasions and allowed him to make the
decision on whether to plead guilty or go to trial. Furthermore, he stated that he
was never informed about the appellant's inability to read. He stated that
regardless of the appellant's reading ability, he orally explained the plea
agreement to the appellant and felt confident he understood its consequences
and voluntarily chose not to proceed to trial.
The hearing judge found that the appellant's trial counsel fully informed
and advised him during plea negotiations. Moreover, the hearing judge felt that
the appellant was not credible. He stated that he did not find the appellant's
allegations to be "true at all."
The factual findings of the trial court in post-conviction proceedings are
conclusive on appeal unless this Court finds that the evidence preponderates
against the judgment. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). We
find nothing in the record that does so. The appellant has not met his burden.
AFFIRMED
__________________________
PAUL G. SUMMERS, Judge
CONCUR:
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______________________________
JOHN H. PEAY, Judge
______________________________
CORNELIA A. CLARK, Special Judge
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