State v. Mary Caruthers ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
OCTOBER 1998 SESSION February 9, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
MARY BETH CARUTHERS, )
) C.C.A. NO. 02C01-9806-CC-00162
Appellant, )
) OBION COUNTY
VS. )
) HON. WILLIAM B. ACREE, JR.,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
MARY ELLEN STEVENS JOHN KNOX WALKUP
313 South Third St. Attorney General & Reporter
Union City, TN 38261
MARVIN E. CLEMENTS, JR.
Asst. Attorney General
Cordell Hull Bldg., 2nd Fl.
425 Fifth Ave., North
Nashville, TN 37243
THOMAS A. THOMAS
District Attorney General
JIM CANNON
Asst. District Attorney General
P.O. Box 218
Union City, TN 38281-0218
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
On June 3, 1996, the petitioner entered a negotiated plea of guilty to
attempted first-degree murder and aggravated arson. Pursuant to the plea agreement,
the petitioner was sentenced to concurrent fifteen year sentences as a Range I standard
offender. On May 27, 1997, upon learning that she would not be eligible for release until
she served eighty-five percent of her sentence, she filed a “Petition for Appeal of
Sentence,” claiming that her plea was involuntary and that she had received ineffective
assistance of counsel. Upon the petitioner’s request, the trial court treated the petition
for appeal of sentence as a petition for post-conviction relief. The trial court denied the
petition and the petitioner now appeals this decision. After a review of the record and the
applicable law, we find no merit to the petitioner’s appeal and thus affirm the judgment
of the court below.
On January 17, 1996, the petitioner shot her fourteen-year-old disabled
daughter in the chest. The petitioner then set fire to the room in which her daughter was
lying. The fire consumed part of the trailer and both the petitioner and her daughter were
burned. Miraculously, the petitioner’s daughter survived both the gunshot wound and the
fire. During the police investigation, the petitioner was Mirandized and interrogated, and
she confessed to both of the crimes. The petitioner was then appointed counsel. The
petitioner’s counsel, Joseph Atnip, testified that he met with the petitioner approximately
four times while she was in jail. He stated that although the petitioner cried during their
entire first meeting, she was better able to communicate after she returned from a mental
evaluation.1 However, other than discussing the plea agreement form, he was never able
to discuss the facts of the case in detail with the petitioner. Mr. Atnip further testified that
he remembered discussing with the petitioner a thirty percent release eligibility date
1
The petitioner was evaluated at the Middle Tennessee Mental Health Institute where she was
found capable of adequately defending herself in a court of law.
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regarding the attempted first-degree murder charge. However, he did not remember
discussing with the petitioner any release eligibility date regarding the aggravated arson
charge. Mr. Atnip believed that he was more focused on the charge of first-degree
murder than the charge of aggravated arson. He also testified that he would have
advised the petitioner to plead guilty pursuant to the plea agreement regardless of the
eighty-five percent release eligibility date for the aggravated arson charge.
The State argues that the post-conviction court should have dismissed the
petition for post-conviction relief because it was filed outside of the applicable one year
statute of limitations. It is undisputed that the petitioner filed her petition for appeal of
sentence within one year of the final judgment. However, after that one year had passed,
the petitioner asked the post-conviction court to treat the petition as a petition for post-
conviction relief. The trial court granted her request, appointed her counsel, and allowed
her thirty days to amend the petition.
The State argues that since the one year statute of limitations had already
expired by the time the petitioner asked the court to treat the petition as a petition for
post-conviction relief, the petition is barred. The State further argues that since the trial
court is required by T.C.A. § 40-30-206(a) to enter a preliminary order to a post-conviction
petition within thirty days of its filing, and the petitioner did not make her request until four
months after the original petition was filed, it should not have been treated as a post-
conviction petition.
We note that a “trial court is not bound by the title of the pleading, but has
the discretion to treat the pleading according to the relief sought.” Flowers v. Traughber,
910 S.W.2d 468, 469-70 (Tenn. Crim. App. 1995) (citing Norton v. Everhart, 895 S.W.2d
317, 319 (Tenn. 1995)). It appears that the trial court did not know to treat this petition
for appeal of sentence as a post-conviction petition until it was retitled. After the petition
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was retitled, the trial court entered a preliminary order within thirty days in accordance
with the post-conviction statute. Even assuming that the time requirement of T.C.A. §40-
30-206 was not met, the statute does not proscribe a penalty where a court fails to
comply with the thirty day time period. There is nothing in the statute that would justify
prejudicing the petitioner and dismissing her petition because the trial court failed to
follow the time guideline set out in the statute. As such, this contention is without merit.
The petitioner’s first contention is her guilty plea was not knowingly and
voluntarily made because at the time of the guilty plea neither she nor her attorney
considered the fact that she would have to serve eighty-five percent of her sentence for
aggravated arson. The post-conviction court found that although the petitioner was not
made aware of this release eligibility date, her guilty plea was still knowingly and
voluntarily made.
“In post-conviction relief proceedings the petitioner has the burden of
proving the allegations in his [or her] petition by a preponderance of the evidence.”
McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual
findings of the trial court in hearings “are conclusive on appeal unless the evidence
preponderates against the judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim.
App. 1983).
The United States Supreme Court has held that the standard in determining
whether a guilty plea is voluntary and knowing is “whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.”
North Carolina v. Alford, 400 U.S. 25, 31 (1970). In addition, the Tennessee Supreme
Court has held that:
[A] court charged with determining whether . . . pleas were “voluntary”
and “intelligent” must look to various circumstantial factors, such as
the relative intelligence of the defendant; the degree of his familiarity
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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 reasons for his
decision to plead guilty, including a desire to avoid a greater penalty
that might result from a jury trial.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The defendant contends that
her guilty plea was unknowing and involuntary because she was not made aware of the
release eligibility date regarding her fifteen year sentence for aggravated arson.
However, this Court has held that “[i]t is not necessary that Appellant know the exact date
of his possible release for the plea to be voluntary.” Jerome Lamont Wolley v. State, No.
01C01-9311-CR-00402, Davidson County (Tenn. Crim. App. filed October 20, 1994, at
Nashville). This Court has further held that a guilty plea is not rendered constitutionally
invalid because a defendant is not informed about the details of her parole eligibility,
including the possibility that she is ineligible for parole. Rickey Sams v. State, No.
03C01-9511-CC-00368, Sullivan County (Tenn. Crim. App. filed November 14, 1996, at
Knoxville). The ultimate question in determining the voluntariness of a plea is whether
the defendant understood the consequences of his or her plea. Wolley, slip op. at 6
(citing Alford, 400 U.S. at 25). “Although the actual length of confinement is an important
consequence of the voluntariness calculus, it is the stated term of incarceration at the
sentencing and the formula for its calculation that are the direct consequences which
warrant actual knowledge on the part of Appellant.” Wolley, slip op. at 6.
It is clear in the case at hand that the petitioner was made aware of the
stated term of incarceration (fifteen years). The fact that she was not told of an exact
date of release regarding the charge of aggravated arson does not render her guilty plea
unknowing and involuntary. As such, this contention is without merit.
The defendant next argues that her guilty plea was rendered involuntary
and unknowing in light of the petitioner’s mental condition “in that she did not understand
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the guilty plea and did not understand her constitutional rights when she confessed to the
crime.” As stated previously, this Court is bound on appeal by the post-conviction court’s
findings of fact unless the evidence in the record preponderates otherwise. See McBee,
655 S.W.2d at 195. The post-conviction court specifically found that the petitioner’s guilty
plea was not involuntary and unknowing due to her mental condition because there was
no evidence to substantiate any claim of insanity. In fact, the court noted the petitioner
was found to be mentally competent at the time of the offense and mentally competent
to stand trial by the Middle Tennessee Mental Health Institute.
It seems that the petitioner has confused the issue as to whether her pleas
were knowing and voluntary with the issue of whether she was competent to plead guilty.
These are two distinct issues. See Moten v. State, 935 S.W.2d 416, 420 (Tenn. Crim.
App. 1996).
The focus of a competency inquiry is the defendant’s mental
capacity; the question is whether he has the ability to underst-
and the proceedings. The purpose of the “knowing and volunt-
ary” inquiry, by contrast, is to determine whether the defendant
actually does understand the significance and consequences of
a particular decision and whether the decision is uncoerced.
Id. (quoting Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993)). It seems that the
petitioner, as the appellant in Moten, is arguing that she was incompetent to enter her
guilty pleas. This Court has held that when it appears that an accused is incompetent to
waive his or her rights, it is the trial court’s duty to conduct a hearing to determine the
accused’s competence and, if necessary, order a psychiatric evaluation. Id. (citing
Berndt v. State, 733 S.W.2d 119, 122 (Tenn. Crim. App. 1987)). In the petitioner’s case,
the trial court ordered a psychiatric evaluation before she entered her guilty pleas. The
evaluation indicated that the petitioner was competent at the time of the offense and
capable of adequately defending herself in a court of law. As the petitioner has offered
no evidence to preponderate against the trial court’s finding that she was mentally
competent when she entered her guilty pleas, this contention is without merit.
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The petitioner’s final contention is that the trial court erred in finding that she
had received the effective assistance of counsel. In reviewing the petitioner’s Sixth
Amendment claim of ineffective assistance of counsel, this Court must determine whether
the advice given or services rendered by the attorney are within the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). To prevail on a claim of ineffective counsel, a petitioner “must show that counsel’s
representation fell below an objective standard of reasonableness” and that this
performance prejudiced the defense. There must be a reasonable probability that but for
counsel’s error the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422
(Tenn. Crim. App. 1985). To satisfy the requirement of prejudice, the petitioner would
have had to demonstrate a reasonable probability that, but for counsel’s errors, he [or
she] would not have pled guilty and would have insisted on going to trial. See Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim.
App. 1991).
The post-conviction court held that the petitioner offered no evidence to
substantiate the claim that she received the ineffective assistance of counsel. The record
fully supports the findings of the trial court.
The petitioner contends that Mr. Atnip was ineffective because he did not
advise her that her guilty plea to aggravated arson required that she serve eighty-five
percent of the sentence. Mr. Atnip admitted that he did not advise the petitioner of the
eighty-five percent release eligibility date with regard to a conviction for aggravated arson.
However, a petitioner claiming he or she received ineffective assistance of counsel must
prove not only that the counsel’s representation fell below an objective standard of
reasonableness, but also that this performance prejudiced the defense. Strickland, 466
U.S. at 687-88; Best, 708 S.W.2d at 422. In the case of a guilty plea, in order to show
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prejudice the petitioner must prove that but for counsel’s errors he or she would not have
pled guilty and would have insisted on going to trial. See Hill, 474 U.S. at 59; Bankston,
815 S.W.2d at 215.
In the case at bar, even assuming the petitioner has shown that Mr. Atnip’s
representation fell below an objective standard of reasonableness because he failed to
inform her of the applicable release eligibility date, the petitioner has failed to prove that
but for counsel’s errors she would not have pled guilty. In fact, Mr. Atnip testified that had
he been aware of the eighty-five percent release eligibility date he still would have
advised the petitioner to plead guilty. In light of the strength of the evidence against her,
the petitioner has not proven she would have disregarded this advice and nonetheless
proceeded to trial. Thus, the petitioner has failed to prove prejudice.
The petitioner next contends that Mr. Atnip was ineffective because he
failed to meet with her a sufficient amount of time to adequately advise her, failed to
investigate the facts surrounding her confessions, failed to advise the petitioner that
these confessions could be attacked and possibly excluded from evidence, failed to seek
the appointment of an independent psychological expert in the face of his own misgivings
about her competence, and failed to make any effort to develop any defense on her
behalf. However, Mr. Atnip met with the petitioner on at least four occasions while she
was in jail and discussed the case with her several times on the phone as well as through
other correspondence. Although Mr. Atnip testified that the petitioner was not able to
communicate with him during the first meeting, at subsequent meetings he was able to
go over the plea agreement form with her and discuss the case generally. He also
testified that the petitioner was better able to communicate after returning from her
mental evaluation at the Middle Tennessee Mental Health Institute. In addition, Mr. Atnip
testified that if the case had been going to trial he would have investigated the
confessions and the case more thoroughly. As such, the post-conviction court found that
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the petitioner had failed to offer evidence to substantiate these claims. As the petitioner
has failed to offer evidence that would preponderate against this finding, this contention
is without merit.
The petitioner further contends that Mr. Atnip was ineffective because he
did not advise her that the jury would have been required to consider any applicable
lesser included offenses. However, the post-conviction court found there was no
evidence to substantiate this claim and, as the petitioner has not offered any evidence
to preponderate against this finding, this contention is without merit.
In sum, we agree with the post-conviction court’s findings that the
petitioner’s plea was voluntarily, understandingly, and knowingly made and that the
petitioner received effective assistance of counsel. We affirm the post-conviction court’s
denial of this petition.
______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
DAVID G. HAYES, Judge
______________________________
L. T. LAFFERTY, Senior Judge
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