Kelvin Taylor v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER SESSION, 1996 FILED
April 3, 1997
Cecil Crowson, Jr.
KELVIN A. TAYLOR, ) Appellate C ourt Clerk
) No. 02C01-9512-CC-00387
Appellant )
) WEAKLEY COUNTY
vs. )
) Hon. William B. Acree, Jr., Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )
SEPARATE CONCURRING OPINION
I join with the majority in affirming the trial court's dismissal of the
appellant's petition. As I read the majority's opinion, its holding, with respect to
the appellant’s allegation of ineffective assistance of counsel, rests upon the
appellant's failure to establish the prejudice prong of Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052 (1984). I agree. I write separately, however, to
emphasize that this court's ruling should not be perceived as an endorsement of
trial counsel's performance during the plea proceedings. Rather, I find that trial
counsel's apparent failure to conduct any investigation of the appellant’s case or
render any advice to the appellant prior to the entry of his plea was not within the
range of competence demanded of attorneys in criminal cases. Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975).
The record clearly reflects that, prior to the appellant’s entry of his guilty
plea, trial counsel made no effort to familiarize himself in any way with the facts
of the appellant’s case. Additionally, at the post-conviction hearing, the appellant
testified that his appointed counsel did not engage him in any discussion of his
case prior to the entry of his plea. The State’s proof at the post-conviction
hearing did not materially conflict with this testimony. 1
At the post-conviction hearing, the Public Defender described his "policy
position" relating to the entry of guilty pleas, a position that tends to confirm the
appellant’s allegation of ineffective assistance:
(Post-Conviction Counsel)
Q. Would it be important to interview potential alibi witnesses prior
to making a plea bargain, or advising a client to plead guilty to a
crime?
(Public Defender)
A. It would certainly be better to do that.
(Post-Conviction Counsel)
Q. Is it absolutely necessary?
(Public Defender)
A. Not if the client demands to plead guilty, not if he thinks, "W ell,
I've got a good plea offer here. I better take it and jump on it.”
When an appellant alleges that he received the ineffective assistance of counsel
during guilty plea proceedings, "the key ... is whether [counsel’s] shortcomings
resulted in an involuntary or unintelligent plea." Santos v. Kolb, 880 F.2d 941,
944 (7th Circ. 1989). Therefore, contrary to the Public Defender’s “policy
position,” because a guilty plea is valid only if it represents a voluntary and
knowing choice among alternatives, “a client’s expressed intention to plead guilty
does not relieve counsel of their duty to investigate possible defenses and to
advise the defendant so that he can make an informed decision.” Savino v.
Murray, 82 F.3d 593, 599 (4th Cir.), cert. denied, U.S. , 117 S.Ct. 1(1996)(emphasis added). See also Standards Relating to the Defense Function
§ 4.1 (1971)(“[t]he duty to investigate exists regardless of the accused’s ... stated
desire to plead guilty”). Counsel in the instant case “provided perfunctory
representation by appearing in court at [the appellant’s] side. Beyond that, he
ignored his duty as [an] advocate.” Thomas v. Lockhart, 738 F.2d 304, 308 (8th
1
The record indicates that, prior to the hearing on September 30, 1994, the appellant
failed to appear for one scheduled conference at the Public Defender’s Office. The scope of an
attorney’s duty to investigate may be limited by a defendant’s lack of cooperation. However, the
reco rd do es no t othe rwise reflec t any fa ilure b y the a ppe llant to coop erate suff icient to for feit his
right, pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and
Artic le I, se ction 9 of th e Te nne sse e Co nstitu tion, to the e ffec tive as sista nce of co uns el.
2
Cir. 1984).
Nevertheless, although I find the question close, I agree that the appellant
has failed to carry his burden of demonstrating a reasonable probability that, but
for counsel's deficient performance, he would not have plead guilty and would
have insisted upon proceeding to trial. Accordingly, I would affirm.
____________________________________
DAVID G. HAYES, Judge
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