Kenny Covington v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 1997 April 24, 1997
Cecil W. Crowson
KENNY D. COVINGTON, ) Appellate Court Clerk
C.C.A. NO. 01C01-9604-CR-00149
)
Appe llant, )
)
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT, JR.
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT J. MENDES CHARLES W. BURSON
209 T enth Av enue S outh Attorney General and Reporter
Suite 511
Nashville, TN 37203 CLINTON J. MORGAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
CHERYL BLACKBURN
Assistant District Attorney General
Washington Square, Suite 500
222 Se cond A venue N orth
Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Petitioner a ppeals the trial cour t’s denial of h is petition for p ost-
conviction relief pursuant to Rule 3 of the Tennesse e Rules of Appe llate
Procedure. He was convicted by a guilty plea of three counts of selling over
.5 grams of cocaine, one count of selling over 26 grams of cocaine, one count
of possession for sale of over 26 grams of cocaine, one count of possession
for sale of over .5 grams of cocaine, one count of possession of drug
paraphernalia, and one count of a felon possessing a weapon. He was
sentenced by the trial court as a R ange I offende r to thirty (30) years
imprison ment. In this appeal, the Petitioner contends that counsel rendered
ineffective assistance and that his gu ilty plea was not entere d voluntarily,
knowin gly, or und erstand ingly. W e affirm the judgm ent of the tria l court.
The Petitioner filed a pro-se petition for post-conviction relief on August
4, 1995. Counsel was appointed and filed an amended petition on Oc tober
2, 1995. A hearing in the trial court was conducted on October 23, 1995 and
an order was issued on November 17, 1995, denying the petition. The
Petitioner now a ppeals the trial court’s ord er.
As his first issue, the Petitioner argues that he was d enied the effective
assis tance of counsel. In de termining wh ether couns el provided effective
assistance at trial, the court mus t decid e whe ther co unse l’s performance was
within the range of competence demanded of attorneys in criminal cases.
Baxter v. Rose, 523 S.W .2d 93 0, 936 (Ten n. 197 5). To succe ed on a claim
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that his coun sel was in effective at trial, a petitioner bears the burden of
showing that his counse l 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 result. Strickland v. Washington, 466 U.S . 668, 687 , reh’g denied,
467 U.S. 1 267 (1984 ); Coop er v. State, 849 S.W .2d 744, 747 (Tenn. 199 3);
Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy the second
prong the petitioner mus t show a reas onab le proba bility that, b ut for co unse l’s
unrea sona ble error, the fact finder would have had reasonable doubt
regarding petitioner’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable
probability must be “sufficie nt to unde rmine c onfiden ce in the o utcom e.”
Harris v. S tate, 875 S.W .2d 662, 665 (Tenn. 199 4).
When reviewing trial counsel’s actions, this court should not use the
bene fit of hindsight to second-guess trial strategy and c riticize c ouns el’s
tactics. Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged
errors should be ju dged at the time they were made in light of all facts and
circumstances. Strickland, 466 U.S. at 69 0; see Cooper, 849 S.W.2d at 746.
This two part standard of measuring ineffective assistance of counsel
also applies to claims a rising out o f the plea p rocess . Hill v. Lockhart, 474
U.S. 52 (1985). The prejudice requirement is modified so that the petitioner
“must show th at there is a reason able pro bability that, bu t for cou nsel’s errors
he would not ha ve plea ded g uilty and would have in sisted on go ing to tria l.”
Id. at 59.
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In the case sub judice, the Petitioner was represented by three
attorneys and he alleges that all three had a role in failing to provide effective
assistance. The Petitioner was arrested on August 14, 1993 based on a
warrant for his arrest for possessing and selling cocaine. A police informant
had made several controlled buys of cocaine from the Petitioner and the
police had made audio tapes of telephone calls involving discussions about
drug sa les.
His first attorney, Glen Funk, represented the Petitioner when he was
arrested. Mr. Funk went to the jail and met with him , represented h im the next
day when the case was bound over to the grand jury and was making
preparations to represent him at a Community Corrections revocation hearing.
Mr. Funk’s assessment of the case was that the State had very strong proof
against the Petitioner. Mr. Funk reviewed with the Petitioner the search
warran t, the execution of the search warrant, and the po tential penalties for
the alleged crimes . Mr. Funk advised him to waive a preliminary hearing
because the Petitioner had indicated that he was going to c oopera te with the
police and give information about other drug dealers. Mr. Funk testified that
he advised him to waive the he aring be cause the Petition er wante d to
cooperate with the police and th e Com mun ity Corre ctions hearin g would
serve the purpose of a preliminary hearing in terms of presenting and cross-
examining witnesses . The Petitioner claims that he did not understand the
purpose of a preliminary hearing, yet he had been previously represented by
Mr. Funk and had extensive meetings regarding another case. Before the
hearing, the Petitioner’s family told Mr. Funk that another attorney, Jack
Butler, would be as sum ing his represe ntation. W e cannot conclude, from the
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evidence before us, that Mr. Funk’s representation fell belo w the a ccep table
range of competence. Furthermore, the Petitioner has presented no evidence
regarding any prejudice he suffered because of Mr. Funk’s representation.
Jack Butler , the Pe titioner’s seco nd atto rney, re prese nted h im through
his arraignm ent. Mr. Butler investigated the case, interviewed witnesses, and
made reque sts for d iscove ry. His paralegal reviewe d the discovery mate rials
with the Petitioner. Mr. Butler testified that he did not listen to the audiotapes
becau se they w ere set o ut in the se arch wa rrant. He also stated that would
have listened to the tapes had the case gone to trial, but that the case at that
point was focu sed on settling. He also concluded that the State’s proof was
extrem ely strong. T he Petition er conte nds an d Mr. Bu tler testified that the
State offered a plea agreement of twenty-four years if both he and his co-
defend ant, his girlfrie nd, wo uld ag ree. S he ap paren tly refused the offer. The
State counters that the only offer that was made to the Petitioner was for thirty
years as a R ange II offende r.
The Petitioner contends that he was advised to refuse the offer.
Howeve r, Mr. Butler testified that he did not so advise the Petitioner because
he had a lready indica ted he would not agree. M r. Butler filed a motion to
withdraw from represe ntation after discovering that the Petitioner had been
communicating on his own with his co-defendant’s attorney. Although Mr.
Butler did not advise the Pe titioner o n his option s, he te stified th at he w ould
not have recommended going to trial because the proof was so strong, and
that his other options were to accept the plea agreement or plead guilty and
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subm it to sentencing by the trial judge. He would have recommended taking
the thirty-yea r agreem ent.
The Petitioner was represented by his third attorney, Mr. R.N . Taylor,
through his guilty plea and sentencing. Mr. Taylor requested the file from Mr.
Butler and reviewed the evidence against the Petitioner. He also concluded
that the proof wa s very stron g and th at he wo uld not rec omm end a trial. He
did, however, advise the Petitioner to plead guilty and leave the sentence
open to be determined at a sentencing hearing. He asse ssed the Pe titioner’s
case and advised that he might do better than the fixed thirty-yea r, Rang e II
sentence at 35% offered by the State. At the hearing, the Petitioner was
sentenced to thirty years as a Range I offender at 30%. He claims that the
advice of his attorney was erroneous and that he would have proceeded to
trial. However, the outcome after the sentencing hearing was better than the
State ’s offer. T herefo re, this a rgum ent m ust fail.
The Petitioner also ass erts that both Mr. Butler and Mr . Taylor faile d to
investigate the ca se ad equa tely. It is well-established that defense counsel
must condu ct an app ropriate inv estigation into both the facts and the law to
determine what matters of defe nse ca n be de veloped . See e.g., Baxter v.
Rose, 523 S.W .2d at 936 ; McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim.
App. 1983). Furthermore, our supreme court recognized in Baxter that the
American Bar As sociation Standa rds for Criminal Justice provide useful
guidance with regard to the function and responsibilities of defen se co unse l.
The American Bar Association standard s explain d efense couns el’s duty to
investigate with the following language:
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It is the duty of the lawyer to conduct a prompt investigation of
the circumstances of the case and to explore all avenues leading
to facts relevant to the merits of the case and the penalty in the
event of con viction. T he inve stigation should always include
efforts to secure information in the possession of the prosecution
and law enfor ceme nt autho rities. The d uty to investig ate exists
regardless of the accused’s admissions or statements to the
lawyer of facts constituting guilt or the accuse d’s stated desire to
plead guilty.
ABA S tandards for C riminal Justice § 4-4 .1 (2d ed. Sup p. 1986).
Specifically, the Petitioner argues that his attorneys failed to review the
surveillance tapes with him. Furthermore, he contends that Mr. Taylor failed
to request independent testing of the substances seized or challenge the
validity of the warrant. However, there is evidence that Mr. Butler reviewed
the tape transcripts. Furthermore, Mr. Ta ylor ha d the ta pes in his possession,
although he did not sp ecifica lly recall reviewing them. There is also evidence
that both attorneys reviewed the search warrant and the nature of the
informa tion supporting that warrant. Finally, the Petitioner had all along
admitted to the police, the Assistant District Attorney, and to his attorneys that
he had made the drugs sales in question and he initially indicated a desire to
become an informant. The focus of the representation, in the face of such
strong proof, was to obtain a favorable plea agre ement. All the a ttorneys
agreed that a trial wa s not in the Petitioner’s best intere st.
W e are reluctant to, and indeed precluded from , second-gu essing Mr.
Butler’s and M r. Taylo r’s actio ns. Fro m a re view of th e surro undin g
circumstances, we cannot conclude that any failure by the attorneys to review
the tapes rende red their represe ntation deficient. The attorneys did evalua te
the strength of the case against the Pe titioner a nd co nclud ed tha t a trial wo uld
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not be in his best interest. There was no evidence suggesting that the
substances obtained from the Petitioner were not cocaine nor did the warrant
appear defective. Although the Petitioner claims that he w ould ha ve gone to
trial, he has presented no evidence that suggests how further investigation
would have benefitted him ; his allegatio ns are m erely spe culative. W e note
that under th e provision s of the P ost-Co nviction P rocedu re Act of 1 995, a
petitioner bears the burden of proving the allegations in the petition by clear
and convincing evidence. Tenn. Code Ann. § 40-30-2 10(f) (Su pp. 199 6). In
reviewing post-conviction proceedings, "the factual findings of the trial court
are conclus ive unless the evide nce pre ponde rates ag ainst such findings ."
Cooper v. State, 849 S.W .2d 744 , 746 (T enn.19 93); Butler v. Sta te, 789
S.W.2d 898, 899 (Tenn.1990). Under these circumstances, we cannot
conclude that the evidence preponderates against the trial court’s findings.
Second, the Petitioner argues that he did no t know ingly or in telligen tly
enter into his guilty plea because: (1) he relied on erroneous legal advice; (2)
a full investigatio n was not conducted; (3) he waived a preliminary hearing;
and (4) counsel failed to make two motions requested by him. A defendant
must be advised o f his constitutional rights befo re he is allowed to ente r a
guilty plea. Boykin v. Alabama, 395 U.S. 238 (1969 ). Among those rights are
the right again st self-incrim ination, the right to confront witnesses and the right
to a trial by jury. Id. at 243. The record must show that a guilty plea was
made voluntarily, understa ndingly, an d know ingly. Id. at 242. In State v.
Mackey, 553 S.W .2d 337 (Te nn. 1977), the T ennesse e Suprem e Court
imposed stricter standards than those mandated in Boyk in. Included in the
Mackey requirements:
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A. Before accepting a plea of guilty, the court must address the
defend ant pers onally in op en cou rt . . . . . . . .
D. A verbatim record of the proceedings at which the defendant
enters a plea shall be made and, if there is a plea of guilty, the
record shall include, without limitation, (a) the court’s ad vice to
the defendant, (b) the inquiry into the voluntariness of the plea
including any plea agreement and into the defendant’s
understanding of the consequences of his entering a plea of
guilty, and (c) the inquiry into the accuracy of a guilty plea.
Id. at 341.
In State v. Neal, 810 S.W.2d 131 (Tenn. 1991), our supreme court
stated that the purp ose for the se guide lines is to "seek to insulate guilty pleas
from coercion and relevant defendant ignorance. They are d esigned to insu re
that guilty pleas are voluntary a nd kno wing." Id. at 135. The Tennessee
Supre me C ourt has also state d:
For the plea to be a ccep table it must be voluntary. That does not
mean that the de fenda nt wou ld want to plead guilty if he or she
had the option av ailable to g o free. The option available is to go
to trial, with its unc ertainties, o r to plead g uilty. The knowledge
that is most relevant to this decision of the ac cused pertains to
the rights that are available to him or her up on a trial that are
given up by plea ding guilty.
Id.The Petitioner cites Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88
L.Ed.2d 203 (19 85), for the propos ition that a gu ilty plea may be made
involun tarily because of the ineffective assistance of counsel. We iterate that
we have determ ined that the trial court did not err in finding that he was
provided effective assistance of counsel. Therefore, the Petitioner’s argument
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that his plea was not knowingly or intelligently entered fails on this ground.
Furthermore, the trial court reviewed with the petitioner the consequences of
waiving a jury trial at the time he pleaded guilty and the Petitioner indicated
that he understood. In Hill, the attorney wrongly advised the defendant about
his parole e ligibility upon which he relied in choo sing to plead gu ilty. Hill, 474
U.S. at 60, 106 S.Ct. at 371. Here, the attorneys did not provide incorrect
information, but instead rendered legal advice considering the circumstances
of the case. There was no guarantee of the outcome, which unfo rtunate ly
was not to the Petitioner’s liking. However, he was informed of his options
and their po tential ris ks an d the P etitione r then m ade a choice . Although
there was some failure to fully investigate, the Petitioner has not
demonstrated how this prejudiced him. As for the preliminary hearing waiver
and the failure to make motions, the Petitioner has only made conclusory
allegations. Without more, we cannot adequately review these claim s. This
issue is w ithout me rit.
Accord ingly, we affirm the judgm ent of the tria l court.
____________________________________
DAVID H. WELLES, JUDGE
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CONCUR:
___________________________________
JERRY L. SMITH, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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