Laster v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER SESSION, 1997 December 23, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
SCOTTIE RAY LASTER, ) C.C.A. NO. 03C01-9701-CR-00001
)
Appe llant, )
)
) HAWKINS COUNTY
VS. )
) HON. JAMES E. BECKNER
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF HAWKINS COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
RUSSELL MATTOCKS JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
1609 College Park Drive, Box 11
Morristown, TN 37813-1618 CLINTON J. MORGAN
Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243
C. BERKELEY BELL
District Attorney General
DOUG GODBEE
District Attorney General
Main Street, Courthouse
Rogersville, TN 37857
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Petitioner, Scottie Ra y Laster, appea ls pursuant to Rule 3 of the
Tennessee Rules o f Appella te Procedure the trial court’s denial of his petition for
post-conviction relief. He argues (1) Tha t the guilty pleas he e ntered were
unlaw fully induced because (a) counsel for the Petitioner accepted a plea
agreement withou t the Pe titioner’s consent, and (b) counsel never told him he
had the right to refuse to ente r the gu ilty pleas ; and (2 ) that his convictions were
based on an indictment issued by a grand jury that was unconstitutionally
selected and im panele d. W e affirm the judgm ent of the tria l court.
On February 5, 1996, the Petitioner was indicted by the Ha wkins C ounty
Grand Jury for burglary of an automobile, possession of burglary tools, attempt
to commit first degree murder, and vandalism of less than $5 00. See Tenn. Code
Ann. §§ 39-14-402(a)(4), 39-14-701, 39-12-101, 39-14-408. According to the
record, it appears that the Petitioner agreed to waive g rand jury a ction and to
proceed by information on a fifth count for aggravated burglary. Pursuant to a
negotiated plea agr eeme nt, the Defendant pleaded guilty to the offenses after a
hearing conducted on June 18, 1996. He was sentenced as a standard, Range
I offender to one year for the auto burg lary conviction, eleven m onths and tw enty-
nine days for the conviction for possession of burglary tools, fifteen years for the
attempted murder conviction, eleven months and twenty-nine days for the
vandalism less than $500 con viction, and three yea rs for the aggrava ted burglary
conviction. The sentence s were orde red to run con currently, for an effective
sentence of fifteen years.
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The Petitioner filed a pro se petition for post-conviction relief on August 2,
1996. Counsel was appointed and a hearing on the petition was held on October
11, 1996. The trial court denied the petition. It is from the denial of p ost-
conviction relief that the Petitioner appeals.
As his first issue, the Petitioner a rgues th at the guilty plea he entered was
not voluntarily or k nowing ly subm itted. He contends that the plea agreement was
not entere d with h is consent and that counsel never informed him that he had the
right to withdraw his plea. We note that the Petition er has not sp ecifica lly
enumerated ineffective assistance of counsel as an issue. Ho wever, it appears
that the co mpe tency o f coun sel’s representation has been raised as an issue
affecting the voluntariness of the Petitioner’s guilty pleas.
In determining whether counsel provided effective assistance at trial, the
court must decide whether counsel’s performance was within the range of
competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was
ineffective at trial, a petitioner bears the burden of showing that his counsel made
errors so serious that he was not functioning as counsel as guaranteed under the
Sixth Amendment and that the deficient representation prejudiced the petitioner
resulting in a failure to produce a reliable res ult. Strickland v. Washington, 466
U.S. 668, 68 7, reh’g denied, 467 U.S . 1267 (1 984); Coop er v. State , 849 S.W.2d
744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W .2d 898 , 899 (T enn. 19 90). To
satisfy the seco nd pron g the pe titioner mu st show a reaso nable p robability tha t,
but for cou nsel’s unreason able error, the fact finder w ould have had re ason able
doubt regarding petitioner’s g uilt. Strickland, 466 U.S. at 695. T his rea sona ble
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probab ility must be “su fficient to undermine confidence in the outcome .” Harris
v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).
When review ing trial counsel’s action s, this co urt sho uld no t use th e ben efit
of hindsight to second-guess trial strategy a nd criticize c ounse l’s tactics. Hellard
v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be
judged at the tim e they w ere m ade in light of a ll facts an d circumstances.
Strickland, 466 U.S . at 690; see Cooper 849 S.W.2d at 746.
This two part standa rd of measuring ineffective assistance of counsel also
applies to claims arising ou t of the plea proces s. Hill v. Lockhart, 474 U.S. 52
(1985). The prejudice requirement is modified so that the petitioner “must show
that there is a reason able pro bability that, but for counsel’s errors he would not
have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.
The Petitioner testified at the pos t-conviction hearing that his attorney,
Burkett McInturff, discussed accepting a plea at fifteen years. This discussion
occurred on the day before the Petitioner was scheduled for trial. The Petitioner
testified that he refused the offer. He signed a piece of noteb ook pape r with “a
bunch of writing on it.” He also signed papers when he entered his plea. The
Petitioner stated that he was told he had to agree with what the judge said. He
was not sure he knew what statements the papers contained. The Petitioner
admitte d that he knew what he was charged with, but not the elements of the
crimes. He denied reading the waiver of rights form before he signed it, although
he stated he did read and sign the form at the guilty plea hearing. The Petitioner
stated that on the day of the trial he was surprised that no one was in the
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courtroom and counsel explained that he ha d signed a plea. He felt like counsel
then forced him to take the plea. The Petitioner denied that he understood the
questions asked of him by the trial judge, although he had a nswe red tha t he did
understand. He denied that he understood he could have insisted on a jury tria l.
He stated that he felt pressured to take the plea by his attorney, but not that he
was threatened.
On cross-examination, the Petitioner admitted that he had pleaded guilty
to offenses as a juvenile and in general sessions court. The Petitioner
acknowledged that the aggravated burglary ch arge oc curred a fter the indictm ents
for the other offenses and that counsel argued for the State to run the offense
concurrent with the other four charges as part of the plea agreement. He verified
that he signed a waiver of rights and guilty plea forms.
The Petitioner’s counsel, Burkett McInturff, testified at the hearing that
several persons identified the Petitioner as the one who shot the victim. The
Petitio ner maintained a position of proceeding to trial until the last minute.
Counsel met with the Petitioner several times. After a meeting with him on the
day before trial, co unsel talk ed with the dis trict attor ney’s office regarding a plea
agreem ent. General Godbee wrote down the offer on a piece of paper for
counsel to prese nt to the P etitioner. Co unsel too k the pap er and d iscusse d with
the Petitioner the evidence in the cases against him. Counsel discussed taking
an Alford plea, a lthoug h he re ferred to it as a “ Nelso n” plea . Coun sel had the
Petitioner sign a handwritten version of the plea agreement on June 17, 1996.
Counsel stated that a critical witness for the defense was “on the run” at the time
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of trial. He attempted to continue the case but the trial judge insisted that he
wanted the case tried.
In denyin g the p etition, th e trial co urt con cluded th at cou nsel fu lly
investigated the case. There was evidence that he interviewed and attempted
to locate witnesses. Counsel filed motions and vigorously argued the case as
well as spent considerable time explaining the case to the Petitioner. Counsel
also made an effort to h ave the P etitioner sign papers reflecting th at he
acknowledged the plea agreement. Fina lly, the trial c ourt cre dited c ouns el’s
testimony and rejected that of the Petitioner. We note that under the provisions
of the Post-Conviction Procedure Act of 1995, a petitioner bears the burden of
proving the allegations in the p etition by clear and convincing evidence. Tenn.
Code Ann. § 40-30-210(f) (Supp. 1996). In reviewing post-conviction
proceedings, "the factual findings of the trial court are conclusive unless the
evidence prepon derates against s uch findin gs." Coop er v. State, 849 S.W.2d
744, 746 (T enn.19 93); Butler v. Sta te, 789 S.W .2d 898, 899 (Tenn.19 90). From
the record before us, we cannot conclude that the evidence preponderates
against the find ings of the trial court that counsel’s performance was within the
range of competency expected of defense counsel. Thus, the Petitioner has
failed to establish a claim of ineffective assistance.
W e now address in general the Peititioner’s claim that his guilty plea was
not voluntarily or knowingly entered. In Boykin v. Alabama, 395 U.S. 238 (1969 ),
the United States S uprem e Cou rt held that th e record must sh ow that a guilty
plea was made voluntarily, understand ingly and know ingly. In Boyk in, the Court
held that an entry of a guilty plea effectively constituted a waiver of the
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constitutional rights against compulsory self-incrimination, the right to confront
one's accuse rs, and the right to trial by jury. Id. at 243. If a guilty plea is not
voluntary and k nowin g, it has been entere d in violation of due process and is,
therefore, invalid.
A volunta ry plea ca nnot be found fro m a silen t record. Boyk in, 395 U.S.
at 242. Pursua nt to its supervisory power, our su preme co urt has impo sed mo re
stringent standards for trial courts to employ when advising defendants during
guilty pleas to provide an adequate record that will insure constitutional
comp liance. State v. Mackey, 553 S.W .2d 337 (Tenn .1977).
[T]he court must address the defendant personally in open court and
inform him of, and determine that he understands, the following:
(1) The nature of the charge to which the plea is offered, and the
manda tory minim um pe nalty provid ed by law , if any, and the maximum
poss ible penalty provided by law; and, if applicable, that a different or
additional punishment may result by reason of his prior convictions or other
factors which may b e esta blishe d in the present ac tion after the entry of his
plea; and
(2) If the defendant is not represente d by an attorne y, that he has a right
to be represented by an attorney at every stage of the proceeding against
him, and if necessary, one will be appointed to represent him; and
(3) That he has a righ t to plead n ot guilty or to persist in that plea if it has
already been made, and, that he has the right to be tried by a jury and at
that trial has the rig ht to the assistance of counsel, the right to confront and
cross-examine witnesse s agains t him, and the right no t to be com pelled to
incriminate himself; and
(4) That if he pleads guilty, there will not be a further trial of any kind
except to determine the sentence so that by pleading guilty he waives the
right to a trial; and
(5) That if he pleads guilty, the court or the state may ask him questions
about the offense to which he has pleaded, and if he answers these
questions under oath, on the record, and in the presence of counsel, his
answers may later be used against him in a prosecution for perjury or false
statem ent, and, furthe r, that, upon the sentencing hearing, evidence of any
prior convictions may be presented to the judge or jury for th eir
conside ration in de terminin g punish ment.
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Mackey, 553 S.W .2d at 341 . How ever, p ost-co nviction relief m ay be g ranted only
if a conviction or sentence is void or voidable because of a violation o f a
constitutional right. Tenn. Code Ann. § 40-30-105 (repealed 1995). As was
pointed out in State v. Neal, 810 S.W.2d 131 (Tenn. 1991), violation of the advice
litany required by either Mackey or Tennessee Rule of Criminal Procedure 11
which is not linked to a specified cons titutiona l right is n ot cog nizab le in a su it for
post-conviction relief. See State v. Prince, 781 S.W.2d 846 (Tenn.1989).
Moreover, it is the result, not the process, that is essential to a valid plea.
Johnson v. State, 834 S.W .2d 922, 923 -24 (Tenn . 1992). The critical inquiry is
whether the Petitioner had knowledge of certain rights and waived those rights
know ingly and voluntarily, not whether the trial court was the source of that
knowledge.
The transcript of the hea ring on the guilty plea reve als that the trial court
fully complied with the requirements enumerated in Mackey. In the hearing, the
Petitioner denied that he had any condition that would impair his ability to
understand the proceedings. He acknowledged that he understood the charges
and the trial court comprehensively explained the offenses and the elements that
constituted each offense. The Petitioner stated that he understood the offenses
as well as the sentencing range, range of punishment and release eligibility. The
Petitioner agreed that he signed a waiver of rights, understood what he was
signing and that co unse l explain ed it to h im. Th e Petitio ner wa s aga in informed
in open court that he had the right to plead not guilty, but chose not to exercise
that right. The Petitioner denied that any threats were used to secure a guilty
plea and stated that he was satisfied with counsel’s representation.
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In conjunction with the testimony received at the post-conviction hearing,
we cannot conclude that the trial court erred in finding that the Petitioner entered
his plea voluntarily. The tr ial judg e reca lled the Petition er’s demeanor from the
guilty plea hearing, and stated that he made no indication that he did not
understand the proceedings. In fact, the trial court suggested that the Petitioner
had offered perjured testimony at the post-conviction hearing. The evidence
does not preponderate against the findings of the trial court. This issue is without
merit.
In his second p rimary issue, the Petitioner claims that his conviction was
based on action of a grand or petit jury that was unconstitutionally selected and
impaneled. Specifically, he alleges that the jury pa nels for the term o f court
“during which his cas e wou ld have been tried” were predominantly selected from
towns in the portion of Ha wkins Cou nty where the victim lived. The State argues
that the Petitioner has not cited any authority and has therefore waived
consideration of the issue pursu ant to R ule 10(b) of the Tennessee Rules of the
Court of Crimin al Appe als. We agree. Beyond this, an exam ination of the record
shows that the Petitioner has not provided us with sufficient evidence to evalua te
this issue on its merits. The Petitioner has submitted statistics that show the
percentage of jurors from certain towns. However, he has presented no evidence
that demo nstrates th e proce ss for sele cting jurors nor any irregularities in the
selection process. Therefore, we cannot add ress w hethe r any m atters c once rning
the jury or the selection from the venire were in any way irregular or prejudiced
the Petitioner in any w ay.
Accord ingly, we affirm the judgm ent of the tria l court.
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____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
GARY R. WADE, JUDGE
___________________________________
JERRY L. SMITH, JUDGE
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