State v. Marcus McCrary ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON MAY 1997 SESSION FILED July 2, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk MARCUS McCRARY, ) ) C.C.A. NO. 02C01-9701-CR-00002 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. W. FRED AXLEY, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-conviction) FOR THE APPELLANT: FOR THE APPELLEE: RICHARD F. VAUGHN CHARLES W. BURSON 1928 - 100 N. Main Attorney General & Reporter Memphis, TN 38103 DEBORAH A. TULLIS Asst. Attorney General 450 James Robertson Pkwy. Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General ALANDA HORNE Asst. District Attorney General 201 Poplar Ave. -- 3rd Floor Memphis, TN 38103 OPINION FILED:____________________ AFFIRMED -- RULE 20 JOHN H. PEAY, Judge OPINION The petitioner pled guilty to one count of voluntary manslaughter for which he received a plea bargained sentence of six years to be served consecutively to a prior sentence. He subsequently filed for post-conviction relief alleging ineffective assistance of counsel, and that his guilty plea was not entered knowingly and voluntarily because he thought his six year sentence was going to be served concurrently with the prior sentence. After a hearing, the court below denied relief finding “no substantial evidence that [the petitioner’s lawyer] failed to consult with and advise [him] with a reasonable exercise of professional discretion” and that her “performance fell well within the acceptable range of competency for lawyers in criminal cases.” The court below further found that the petitioner’s guilty plea “was knowingly made and that adequate measures were employed to assure the protection of [his] constitutionally guaranteed rights.” Upon our review of the record, we find that the evidence does not preponderate against the lower court’s findings. Accordingly, the judgment below is affirmed in accordance with Rule 20 of the Court of Criminal Appeals of Tennessee. _________________________________ JOHN H. PEAY, Judge CONCUR: ______________________________ GARY R. WADE, Judge ______________________________ THOMAS T. WOODALL, Judge 2