Anthony Ewing v. State ( 2000 )


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  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    May 2000 Session
    ANTHONY EWING v. STATE OF TENNESSEE
    Appeal as of Right from the Criminal Court for Davidson County
    No. 97B-1230       Steve R. Dozier, Judge
    No. M1999-01079-CCA-R3-PC - Filed September 20, 2000
    On February 12, 1998, the petitioner, Anthony Ewing, entered a best interest guilty plea in the
    Davidson County Criminal Court to one count of attempt to sell over .5 grams of cocaine, a class C
    felony. The trial court imposed a sentence of six years incarceration in the Davidson County
    Workhouse. The trial court further ordered this sentence to be served concurrently with sentences
    the petitioner was already serving. The petitioner filed a post-conviction petition for relief, alleging
    that he received ineffective assistance of counsel and that his best interest guilty plea was not made
    knowingly or voluntarily. The post-conviction court denied the petition, finding that the petitioner
    had received effective assistance of counsel and that the best interest guilty plea had been made
    knowingly and voluntarily. The petitioner now appeals the denial of his petition for post-conviction
    relief. Pursuant to a review of the record and the parties’ briefs, we affirm the judgment of the post-
    conviction court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
    NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
    DAVID G. HAYES, J., joined.
    Dwight E. Scott, Nashville, Tennessee, Richard Piliponis, Nashville, Tennessee, for the appellant,
    Anthony Ewing.
    Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, and
    Kymberly Haas, Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    I. Factual Background
    On the evening of June 8, 1996, undercover police officer Jesse Birchwell and a
    cooperating individual approached the petitioner for the purpose of buying cocaine. The petitioner
    and the officer agreed upon a price of two hundred and fifty dollars for the cocaine. The petitioner
    told the officer that he had to leave to get the cocaine and that he would return in five minutes.
    Police executed a warrant authorizing a search of the premises before the petitioner could return and
    deliver cocaine to the officer. A search of the residence revealed a large quantity of what appeared
    to be cocaine.1 The petitioner was charged with attempt to sell over .5 grams of a substance
    containing cocaine, attempt to deliver over .5 grams of a substance containing cocaine, possession
    with intent to sell over .5 grams of a substance containing cocaine, and possession of drug
    paraphernalia with intent to use.
    The petitioner, represented by counsel, entered a best interest guilty plea to one count
    of attempt to sell over .5 grams of cocaine. Pursuant to the plea agreement, the petitioner was
    sentenced to six years incarceration in the Davidson County Workhouse as a Range I offender with
    thirty percent release eligibility. The trial court further ordered that this sentence be served
    concurrently with sentences the petitioner was already serving for previous convictions. The State
    agreed to dismiss the additional charges against the petitioner. The petitioner filed a petition for post-
    conviction relief alleging that he had been denied effective assistance of counsel prior to entering
    his guilty plea and that his best interest guilty plea was not made knowingly and voluntarily. The
    trial court denied the petitioner’s petition for post-conviction relief.
    II. Analysis
    Because the petitioner’s post-conviction proceedings were initiated after May 10,
    1995, the petitioner must prove all factual allegations by clear and convincing evidence. Tenn. Code
    Ann. § 40-30-210(f)(1997); Hicks v. State, 
    983 S.W.2d 240
    , 245 (Tenn. Crim. App. 1998). When
    there is no serious or substantial doubt about the accuracy of the conclusions drawn from the
    evidence, that evidence can be said to be clear and convincing. Id. On appeal, this court is bound
    by the factual findings of the post-conviction court unless the evidence preponderates otherwise.
    Butler v. State, 
    789 S.W.2d 898
    , 899 (Tenn. 1990). The post-conviction court must solve all
    questions concerning witness credibility and the weight and value to be accorded to their testimony.
    Black v. State, 
    794 S.W.2d 752
    , 755 (Tenn. Crim. App. 1990). Moreover, the findings made by the
    trial court at an oral hearing, after observing witnesses testify and considering conflicting testimony,
    will be given the weight of a jury verdict. Bratton v. State, 
    477 S.W.2d 754
    , 756 (Tenn. Crim. App.
    1971). Accordingly, an appellate court may not re-weigh or reevaluate the evidence or substitute its
    inferences for those of the post-conviction court. Williams v. State, No. 03C01-9801-CC-00013,
    
    1999 WL 58608
    , at *2 (Tenn. Crim. App. at Knoxville, February 9, 1999).
    A. Ineffective Assistance of Counsel
    The petitioner argues that he received ineffective assistance of counsel prior to
    entering a plea of guilty. He claims that his trial counsel failed to interview all available witnesses
    1
    These facts were taken from the State’s version of events at the petitioner’s plea hearing. The petitioner claims
    that he did not attempt to sell cocaine to the police.
    -2-
    and to pursue available avenues of defense. The petitioner also alleges that his trial counsel did not
    keep him informed about the status of his case and did not explain the consequences of a best interest
    guilty plea.
    This court reviews cases involving mixed questions of law and fact, such as claims
    of ineffective assistance of counsel, de novo. State v. Burns, 
    6 S.W.3d 453
    , 461 (Tenn. 1999). To
    prove a claim of ineffective assistance of counsel, the petitioner must demonstrate that counsel's
    performance was deficient and that the deficiency prejudiced the petitioner by creating a reasonable
    probability that the result of the trial is unreliable or the proceedings were fundamentally unfair.
    Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    , 2064 (1984). In order to determine
    whether or not counsel’s performance was deficient, this court must decide whether counsel’s
    performance was within the range of competence required of attorneys in criminal cases. Baxter v.
    Rose, 
    523 S.W.2d 930
     (Tenn. 1975). Moreover, when a petitioner alleges that ineffective assistance
    of counsel resulted in a guilty plea, the petitioner must prove that, but for counsel's errors, he would
    not have pled guilty and would have insisted upon going to trial. Hill v. Lockhart, 
    474 U.S. 52
    , 59,
    
    106 S. Ct. 366
    , 370 (1985); see Henderson v. State, No. 02C01-9610-CR-00376, 
    1997 WL 566053
    ,
    at *5 (Tenn. Crim. App. at Jackson, September 12,1997).
    The petitioner alleges that “had Mr. Pilliponis (sic) adequately investigated the case
    and adequately assessed the State’s evidence against the [petitioner], there is a reasonable probability
    that the outcome of the proceedings would have been different.” However, the proof presented at
    the post-conviction hearing demonstrated that trial counsel interviewed at least two police officers
    involved in the arrest of the petitioner and had numerous conversations with the Assistant District
    Attorney about the State’s case against the petitioner. Additionally, trial counsel reviewed the State’s
    discovery file. Trial counsel also testified that he had several lengthy conversations with the
    petitioner about possible defenses that could be raised at trial and about the petitioner’s constitutional
    rights. Although trial counsel knew that the petitioner maintained his innocence, he believed that
    in order to rebut the State’s evidence, the petitioner would have to testify. The petitioner did not
    want to testify because of his extensive criminal record and because he had previously made
    controlled buys for the police. Trial counsel stated that in his opinion the petitioner had understood
    their conversations and had agreed to plead guilty.
    The petitioner also claims that his trial counsel knew of a State lab report revealing
    that the white substance the police confiscated from the residence was .1 gram of cocaine mixed with
    153.7 grams of some other white substance; therefore the petitioner’s trial counsel should have
    known that the State could not prove that the petitioner was guilty of attempt to sell more than .5
    grams of cocaine. However, the petitioner overlooks the fact that he was charged with attempt to
    sell .5 grams or more of a substance containing cocaine, a class C felony. Tenn. Code Ann. §§ 39-
    17-417(c)(1), 39-12-101, -107(a)(1997)(emphasis added). This court has found that a “substance
    containing cocaine” would include the weight of any “cutting agent or medium along with the weight
    of the scheduled substance.” State v. Alcorn, 
    741 S.W.2d 135
    , 138 (Tenn. Crim. App. 1987).
    Furthermore, there were several police officers involved in the undercover drug buy who were
    available to testify against the petitioner. The State could have proven with the lab reports and police
    -3-
    testimony that the petitioner had attempted to sell more than .5 grams of a substance containing
    cocaine. Moreover, had the petitioner not pled guilty, the State had three additional felony drug
    charges against the petitioner of which the petitioner ran the risk of being convicted at trial.
    The petitioner also claims that because his co-defendant, Edward Jones, confessed
    to the crimes and stated that the petitioner had nothing to do with the sale of cocaine, his trial counsel
    should have interviewed Jones and pursued that line of defense. Trial counsel testified at the post-
    conviction hearing that he did not pursue Jones as a defense witness because he believed that Mr.
    Jones’ past criminal history made him an unreliable witness. See Bell v. State, No. 03C01-9210-CR-
    00364, 
    1995 WL 113420
    , at *16 (Tenn. Crim. App. at Knoxville, March 15, 1995)(failing to pursue
    a witness of dubious credibility was not ineffective assistance of counsel). Trial counsel determined
    that, in light of the State’s evidence against the petitioner, which included audio tapes implicating
    the petitioner, it was unlikely that an uncorroborated statement by a co-defendant would have
    exonerated the petitioner of guilt. This court does not use hindsight to second-guess or criticize trial
    counsel’s strategy or tactics. Turner v. State, No. 02C01-9310-CR-00236, 
    1994 WL 456337
    , at *2
    (Tenn. Crim. App. at Jackson, August 24, 1994).
    Moreover, due to the petitioner’s previous criminal history, he qualified as a Range
    II offender. Tenn. Code Ann. § 40-35-106(1997). The sentence for a Range II offender guilty of a
    class C felony, such as attempt to sell more than .5 grams of cocaine, is six to ten years incarceration
    with thirty-five percent eligibility. Tenn. Code Ann. § 40-35-112(b)(3),-501(d)(1997). Pursuant to
    the petitioner’s plea bargain, the trial court sentenced the petitioner to six years incarceration in the
    Davidson County Workhouse as a Range I offender with thirty percent release eligibility. Tenn. Code
    Ann. § 40-35-112(a)(3),-501(c). Furthermore, the State dropped the remaining felony charges
    against the petitioner. The petitioner’s trial counsel believed that the plea bargain was to the
    petitioner’s benefit.
    Trial counsel testified at the post-conviction hearing that he had interviewed Officer
    Birchwell, the officer who arrested the petitioner. He also testified that he reviewed the State’s
    discovery file and provided the petitioner with copies of the relevant portions of the discovery.
    Moreover, trial counsel testified that he discussed the evidence the State possessed, what the State
    had to prove, and the guilty plea at some length with the petitioner. The post-conviction court chose
    to credit trial counsel’s testimony over that of the petitioner. Notably, the petitioner even stated to
    the trial court at his plea hearing that he was satisfied with the performance of his trial counsel.
    Because the post-conviction court was in a better position than this court to evaluate the credibility
    of the witnesses, and because the evidence does not preponderate otherwise, we are bound by the
    findings of the post-conviction court. Butler, 789 S.W.2d at 799; see also Henderson, 
    1997 WL 566053
    , at *6.
    B. Guilty Plea
    The petitioner also argues that his best interest guilty plea was not knowingly and
    voluntarily entered. The petitioner claims that he would never have entered a best interest guilty plea
    to attempt to sell cocaine if he had been aware of his constitutional rights, had been advised about
    -4-
    the State’s case against him, and if the plea petition and proceeding had been properly explained to
    him.
    To withstand constitutional scrutiny, a petitioner must have made a guilty plea
    voluntarily, understandingly, and knowingly. Hicks, 983 S.W.2d at 246(citing Boykin v. Alabama,
    
    395 U.S. 238
    , 244, 
    89 S. Ct. 1709
    , 1713 (1969)); see also State v. Mackey, 
    553 S.W.2d 337
    , 341
    (Tenn. 1977). This court must look to the following circumstantial factors in determining whether
    a guilty plea was “knowing” and “voluntary”:
    the relative intelligence of the defendant; the degree of his familiarity with criminal
    proceedings; whether he was represented by competent counsel and had the
    opportunity to confer with counsel about the options available to him; the extent of
    advice from counsel and the court concerning the charges against him; and the
    reasons for his decision to plead guilty, including a desire to avoid a greater penalty
    that might result from a jury trial.
    Blankenship v. State, 
    858 S.W.2d 897
    , 904 (Tenn. 1993). Moreover, the petitioner must be aware
    of the direct consequences of his guilty plea, the most obvious of which is the penalty to be imposed.
    Id.
    At the guilty plea hearing, the petitioner repeatedly told the trial court that he
    understood the charges against him. The trial court informed the petitioner of his right to a jury trial,
    right to cross-examine witnesses, and the right against self-incrimination. The trial court made the
    petitioner aware that by entering a best interest guilty plea, he was giving up those rights. The
    petitioner testified at the plea hearing that he had gone over the plea document with his trial counsel
    and that he had no questions about it. After saying he was satisfied with his trial counsel, the
    petitioner expressed his belief that “I thought it could [have] been handled a little better than this.”
    The trial court reminded the petitioner that he had a right to a jury trial. The petitioner responded
    that he would rather plead guilty. The trial court explained the petitioner’s sentence, emphasizing
    that the petitioner’s six year sentence for attempt to sell cocaine was to run concurrently with other
    sentences the petitioner was already serving and that this conviction could be used to enhance future
    convictions. The State proceeded to read its version of events. When the trial court asked the
    petitioner if the State’s portrayal of events was accurate, the petitioner replied, “It’s not true, sir; but
    it – ain’t nothing I can do about it.” The petitioner then entered a best interest plea of guilty to
    attempt to sell cocaine.
    The petitioner claims that he did not understand the meaning of a “best interest” guilty
    plea. In North Carolina v. Alford, 
    400 U.S. 25
    , 37-38, 
    95 S. Ct. 160
    , 167-168 (1970), the United
    States Supreme Court held that a petitioner could enter a guilty plea while still protesting his
    innocence. In Tennessee, a “best interest” or Alford plea may be accepted by the trial court as long
    as there is a factual basis for the guilty plea. Dortch v. State, 
    705 S.W.2d 687
    , 689 (Tenn. Crim.
    App. 1985).
    Even if the trial court, or the petitioner’s trial counsel, did not explain to the petitioner
    the difference between a guilty plea and a best interest guilty plea, the petitioner’s decision to plead
    -5-
    guilty is not rendered involuntary. See Hicks, 983 S.W.2d at 247-248. Except for the petitioner’s
    protestation of innocence, a best interest guilty plea is treated like any other guilty plea. Id. This
    court has found that even if the petitioner had no specific knowledge of what a best interest guilty
    plea is, the petitioner nonetheless entered a knowing and voluntary guilty plea if the petitioner had
    the information necessary to understand the consequences of pleading guilty and intelligently made
    the choice to plead guilty. Id.
    At the post-conviction hearing, the petitioner admitted that he had previously pleaded
    guilty to five separate felony charges. Moreover, trial counsel testified at the post-conviction hearing
    that the petitioner seemed to understand the plea process much better than his other clients. The
    petitioner knew about the State’s evidence against him and the possible defenses that he could raise
    at trial. The trial court and the petitioner’s trial counsel informed the petitioner about his
    constitutional rights. Nonetheless, the petitioner chose to enter a best interest guilty plea to attempt
    to sell cocaine. Furthermore, the petitioner’s statement “ain’t nothing I can do about it” may mean
    that, given the State’s evidence against him and the undesirability of going to trial, the only
    intelligent choice was to enter a best interest guilty plea. See Hicks, 983 S.W.2d at 248. The
    petitioner has failed to establish by clear and convincing evidence that his guilty pleas were not
    knowing and voluntary. This issue is without merit.
    III. Conclusion
    Based upon the foregoing, we affirm the judgment of the post-conviction court.
    ___________________________________
    NORMA McGEE OGLE, JUDGE
    -6-