Frederick Avery v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1997 SESSION January 9, 1998
Cecil W. Crowson
Appellate Court Clerk
FREDERICK A. AVERY, )
) C.C.A. NO. 01C01-9704-CR-00128
Appellan t, )
) DAVIDSON COUNTY
VS. )
) HON. CHERYL BLACKBURN,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
MARK J. FISHBURN JOHN KNOX WALKUP
100 Thompson Lane Attorney General & Reporter
Nashville, TN 37211
CLINTON J. MORGAN
Counse l for the State
425 Fifth Ave. N.
2nd F loor, Co rdell H ull Bldg .
Nashville, TN 37243-0493
VICTO R S. JOHN SON, III
District Attorney General
ROGER MOORE
Asst. District Attorney General
500 Washington Sq.
222 2nd Ave. N.
Nashville, TN 37201
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The petitioner filed for po st-conviction relief on A pril 20, 1994; an amended
petition was filed on November 15, 1995. In response to charges o f felony murder,
aggravated robbery, robbery, attempt to commit robbery, aggravated burglary, theft of
property and aggravated assault, the petitioner pled guilty on August 13, 1993, to second-
degree murder and to robbery. As part of the plea-bargain, the remaining charges we re
dismissed and he was sentenced to twenty-five years as a Range I standard offender on the
murder charge and to a consecutive term of ten years as a Range II multiple offender on the
robbery charge. The petitioner contends that his guilty pleas were the result of ineffective
assistance of counsel and the refore not voluntarily, knowingly and intelligently made.
After an evidentiary hearing, the court below denied relief. We affirm.
In this post-conviction proceeding, the petitioner has the burden of proving
the allegations in his petition by a preponderance of the evidence.1 McB ee v. State, 655
S.W.2d 191, 195 (Tenn. Crim. App. 1983). The trial court's findings of fact are afforded
the weight of a jury verd ict, Summ erlin v. State, 607 S.W.2d 495, 497 (Tenn. Crim. App.
1980), and this C ourt will not set aside the lower court's ruling unless the evidence
contained in the record prepon derates agains t its findin gs. Janow v . State, 470 S.W.2d 19,
21 (Tenn. Crim . App. 1971).
In attacking the validity of a guilty plea on the basis of ineffective assistance
1
For post-conviction petitions filed after May 10, 1995, the burden of proof on a petitioner is that he or
she prove his or her allegations by “clear and convincing evidence.” See T.C.A. § 40-30-210(f) (1997).
2
of counsel, a petitioner must demonstrate “that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have insisted on going to
trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). A “reasonab le probability” is “a
probability sufficient to undermine co nfid ence in the outcom e, tha t, but for the co unse l's
unprofessional errors, the results of the proceeding would have been d ifferen t.” Dixon v.
State, 934 S.W.2d 6 9, 72 (Tenn. Crim. App. 199 6) citing Strickland v. Washington, 466
U.S. 668, 694 (1984). Th is Court will not use the benefit of hindsight to second-guess
counsel's strategy or to criticize couns el's tactics . Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn.
1982).
The petitioner contends that his fourth trial lawyer2 was ineffective in failing
to investigate the case adequately, failing to pursue a motion to suppress his statement, and
failing to advise him properly as to the sentences. In his brief, he asserts that “Because trial
counsel failed to adequately represent him, . . . he could not make an informed and
intelligent decision w hether to exercise his constitutional right to a trial by jury and,
therefore, the pleas of guilty which he entered were not knowingly and voluntarily done,
but we re the re sult of c onstruc tive coe rcion an d intimid ation.”
After hearing the petitioner's testimony as well as that of his lawyer, and after
reviewing the transcript of the guilty plea which was introduced into evidence, the court
below found as follows:
The transcript of the guilty plea clearly show s that the [trial]
court engaged in a long ser ies of ques tions to the petitioner
regarding his understanding of his rights and voluntary
2
Three other lawyers had previously been appointed the petitioner and each was allowed to withdraw.
3
relinquishment of those rights.
The petitioner testified that he was not knowledgeable about
the criminal process and answered the Judge's questions
according to the instructions of h is atto rney, a nd th at he always
wanted to go to trial in this case. The guilty plea transcript and
the petitioner's criminal history contradict petitioner's claim.
[Petition er's attorney] testified that once the petitioner
understood the elements of felony murder, he willingly entered
into the plea discussions and was interested in obtaining the