State v. Kevin Robertson ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JUNE 1997 SESSION July 2, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
KEVIN D. ROBERTSON, )
) NO. 02C01-9608-CR-00259
Appellant, )
) SHELBY COUNTY
VS. )
) Hon. Bernie Weinman, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON, JR. JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
DIANE THACKERY (hearing) SARAH M. BRANCH
WALKER GWINN (appeal) Assistant Attorney General
Assistant District Public Defenders 450 James Robertson Parkway
Shelby County Public Defender’s Office Nashville, TN 37243-0493
201 Poplar Avenue, Suite 201
Memphis, TN 38103 JOHN W. PIEROTTI
District Attorney General
REGINALD HENDERSON
Assistant District Attorney General
201 Poplar Avenue, 3rd Floor
Memphis, TN 38103
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The petitioner, Kevin D. Robertson, appeals an order of the Shelby County
Criminal Court dismissing his petition for post-conviction relief. Petitioner is
presently serving concurrent 50-year sentences after he pled guilty to two (2) counts
of second degree murder. In his petition, he alleges that trial counsel did not
adequately prepare for trial and misrepresented certain facts in order to coerce him
into pleading guilty; therefore, he claims that counsel was ineffective. After a
hearing, the trial court denied post-conviction relief. We AFFIRM the judgment of
the trial court.
I
The record indicates that petitioner was indicted on two counts of murder in
the first degree in connection with a shooting that occurred in January 1993. The
state was seeking the death penalty in the matter. Attorney Jeffrey Jones was
retained to represent petitioner at trial.
On the day that petitioner’s trial was to begin, the state and Jones attempted
to negotiate a plea. At the post-conviction hearing, petitioner testified that when
Jones related the offer to him, he asked Jones to confer with his mother about the
plea offer. Jones told him that his mother thought that he should take the plea offer.
Acting on this representation, petitioner pled guilty to second degree murder.
Petitioner also testified that he felt that Jones was unprepared for trial. He
claimed that Jones and his investigator only met with him three (3) or four (4) times
during his 15 months of incarceration after he was arrested. He did not think that
Jones had contacted any witnesses in preparation for the trial. He further alleged
that Jones had not discussed any defense to the pending charges.
Petitioner’s mother also testified at the hearing. Ms. Robertson stated that
she told Jones that petitioner should not take the offer of 50 years.
Jones testified that he and his investigator had done extensive preparation
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for the trial. Subpoenas for several witnesses had been issued, and they met with
petitioner on at least twenty (20) occasions. Furthermore, he filed a motion to
suppress the statement that petitioner had given to the police.
Jones stated that petitioner did not want to go to trial on the charges. When
the state made its offer, petitioner wanted to take the offer. He asked Jones to “run
this by his mother and see what she thought.” Ms. Robertson did not like the offer,
but told Jones that if “that’s what he wants to do tell him to go ahead, then I’m not
going to say no.” Jones told petitioner what his mother said. Petitioner accepted
the plea agreement.
During the guilty plea hearing, the trial court confirmed that petitioner was
aware of his constitutional rights and was knowingly and voluntarily pleading guilty.
The court also questioned petitioner on his satisfaction with his lawyer’s advice and
services. Petitioner indicated to the court that he understood the implications of the
guilty plea. There was no indication that petitioner was dissatisfied with his
attorney.
After the post-conviction hearing, the court denied relief, finding that
petitioner “freely and voluntarily” entered his guilty plea. The trial court further found
that trial counsel’s advice and services were within the range of competence
demanded of an attorney in a criminal case.
II
The trial judge's findings of fact on post-conviction hearings are conclusive
on appeal unless the evidence preponderates otherwise. Tidwell v. State, 922
S.W.2d 497, 500 (Tenn. 1996); Cooper v. State, 849 S.W.2d 744, 746 (Tenn.
1993); Butler v. State, 789 S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State, 911
S.W.2d 334, 354 (Tenn. Crim. App. 1994). The trial court’s findings of fact are
afforded the weight of a jury verdict, and this Court is bound by the trial court’s
findings unless the evidence in the record preponderates against those findings.
Dixon v. State, 934 S.W.2d 69, 71-72 (Tenn. Crim. App. 1996).
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This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975) and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner
has the burden to prove that (1) the attorney’s performance was deficient, and (2)
the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d
6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d at 899.
The test in Tennessee in determining whether counsel provided effective
assistance is whether his performance was within the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The
petitioner must overcome the presumption that counsel’s conduct falls within the
wide range of acceptable professional assistance. Strickland v. Washington, 466
U.S. at 689, 104 S.Ct. At 2065; State v. Williams, 929 S.W.2d 385, 389 (Tenn.
Crim. App. 1996).
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the
Supreme Court applied the two-part Strickland standard to ineffective assistance of
counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice
prong by requiring a petitioner to show 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. 474 U.S. at 59, 106 S.Ct. at 370.
III
In the present case, we find that petitioner has not met his burden. The trial
court found that petitioner’s guilty pleas were knowingly and voluntarily entered.
The court further found that Jones was adequately prepared and met the standards
set forth in Baxter v. Rose. Implicit in this finding is that the trial court found Jones’
testimony to be credible. The evidence does not preponderate against these
findings.
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The judgment of the trial court is AFFIRMED.
JOE G. RILEY, JUDGE
CONCUR:
PAUL G. SUMMERS, JUDGE
DAVID H. WELLES, JUDGE
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