State v. Eric Shaw ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1999 SESSION
FILED
April 21, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
ERIC D. SHAW, )
) C.C.A. NO. 02C01-9809-CC-00267
Appellant, )
) OBION COUNTY
VS. )
) HON. WILLIAM B. ACREE, JR.,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
CLIFFORD K. McGOWN, JR. JOHN KNOX WALKUP
113 North Court Square Attorney General & Reporter
P.O. Box 26
Waverly, TN 37185 DOUGLAS D. HIMES
(On Appeal) Asst. Attorney General
Cordell Hull Bldg., 2nd Fl.
JOSEPH P. ATNIP 425 Fifth Ave., North
District Public Defender Nashville, TN 37243-0493
P.O. Box 734
121 East Main St. THOMAS A. THOMAS
Dresden, TN 38225 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
The petitioner pled guilty to aggravated robbery and was sentenced as a
Range I standard offender to a term of eight years to be served in the Tennessee
Department of Correction. The petitioner’s subsequent petition for post-conviction relief
was denied by the trial court. The petitioner now appeals and contends that he did not
receive the effective assistance of counsel. After a review of the record and applicable
law, we affirm the judgment of the trial court.
The petitioner’s conviction stemmed from his involvement in a robbery
outside of a Wal-Mart store. At the post-conviction hearing, the petitioner’s former
counsel, Charles Kelly, testified that both he and his criminal investigator investigated the
petitioner’s case. Mr. Kelly testified that he filed motions for discovery and received
copies of the statements of the three charged individuals. He also interviewed a possible
alibi witness who later decided that it was not in her best interest to testify in favor of the
petitioner. With regard to another possible alibi witness, Angela Scott, Mr. Kelly testified
that he had not interviewed Ms. Scott because the petitioner had “confessed to being with
these people in the statements he gave to the law enforcement officials.” At the hearing,
Andy Gibson, an investigating officer of the robbery, testified that he believed Ms. Scott
had been interviewed by another investigator assigned to the robbery.
The petitioner now contends that he did not receive the effective assistance
of counsel because Mr. Kelly did not interview all potential witnesses and his services
therefore were outside the range of competence demanded of criminal attorneys.
In reviewing the petitioner’s Sixth Amendment claim of ineffective
assistance of counsel, this Court must determine whether the advice given or services
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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 must demonstrate a
reasonable probability that, but for counsel’s errors, he would not have pled guilty and
would have insisted on going to trial. See Hill v. Lockart, 474 U.S. 52, 59 (1985);
Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).
In the case at bar, the petitioner has offered no evidence that he would not
have pled guilty absent Mr. Kelly’s failure to interview Ms. Scott. In fact, the petitioner
testified that he pled guilty because he thought the sentences for several recent
convictions, including the conviction in the case at bar, were to run concurrently rather
than consecutively. 1 In addition, there is absolutely no evidence in the record that Ms.
Scott could have provided an alibi, or any other exculpatory information, for the petitioner.
As the petitioner has failed to carry his burden of proof, this contention is without merit.
Accordingly, we affirm the trial court’s denial of the petitioner’s post-
conviction petition.
JOHN H. PEAY, Judge
1
This issue was not appealed.
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CONCUR:
________________________________
JOE G. RILEY, Judge
________________________________
JAMES C. BEASLEY, Sr., Special Judge
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