Horton v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
JANUARY 1997 SESSION FILED
May 22, 1997
RICHARD GARY HORTON, )
) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellant, ) No. 03C01-9604-CR-00161
)
) Hamilton County
v. )
) Honorable Stephen M. Bevil, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Robert N. Meeks Charles W. Burson
3505 Brainerd Road Attorney General of Tennessee
P.O. Box 8086 and
Chattanooga, TN 37414 Sarah M. Branch
Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
William H., Cox, III
District Attorney General
and
Bates Bryan, Jr.
600 Market Street, Suite 310
Chattanooga, TN 37402
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Richard Gary Horton, appeals as of right from the Hamilton
County Criminal Court’s dismissal of his petition for post-conviction relief. The
petitioner was convicted of attempted second degree murder and received a ten-year
sentence. This court affirmed the petitioner’s conviction. State v. Richard Gary Horton,
No. 03C01-9306-CR-00172, Hamilton County (Tenn. Crim. App. Dec. 2, 1993), app.
denied (Tenn. Apr. 4, 1994). On March 27, 1995, the petitioner filed a pro se post-
conviction petition. Counsel was appointed and filed an amended petition that alleges
that the petitioner’s counsel was ineffective for failing to investigate the facts of the case
and that the petitioner’s due process and equal protection rights were violated because
he was initially indicted for reckless endangerment but was indicted for attempted first
degree murder in retaliation for his refusal to plead guilty.1 The trial court dismissed the
petition after an evidentiary hearing, concluding that the petitioner failed to establish
that he received the ineffective assistance of counsel or that the attempted first degree
murder indictment was the result of prosecutorial vindictiveness. The sole issue for our
review is whether the trial court erred by denying the petition on the prosecutorial
vindictiveness ground.
The assistant district attorney who prosecuted the petitioner testified at
the post-conviction evidentiary hearing. He recalled that the petitioner was originally
indicted for reckless endangerment. He said that after he reviewed the file on the case
he decided to seek an indictment for attempted first degree murder because he felt that
the reckless endangerment charge was not an accurate reflection of the crime that was
committed. He testified that he did not know whether the evidence that formed the
1
The petitio n also allege s tha t the p etition er rec eived ineff ective ass istan ce of coun sel
that resulted in an involuntary ple a to anoth er offen se. On appea l, the petitioner d oes no t
challenge the trial court’s de nial of pos t-conviction relief with res pect to the other co nviction.
2
basis for his decision was in the file at the time the petitioner was originally indicted for
reckless endangerment.
He denied offering the petitioner a two-year plea agreement and
explained that he usually writes notes concerning plea negotiations on the case file.
Copies of the file folders he used as the case file for the reckless endangerment and
attempted first degree murder charges were introduced into evidence. The copy of the
reckless endangerment file does not contain any notations concerning plea
negotiations. Bright said that to his recollection, he never offered the petitioner any
plea agreement other than for the petitioner to plead guilty and have a sentencing
hearing.
The petitioner’s trial attorney testified that he had thought the petitioner
was very lucky when he had only been indicted for reckless endangerment. He said
that he and the petitioner knew that the state was going to seek another indictment
before it happened. He explained that “immediately or very quickly” after the petitioner
was indicted on reckless endangerment, the prosecutor told him that the state was
going back to the grand jury to get another indictment on first degree murder. The
attorney said that he contested the upgrading of the charge and that the trial court ruled
that the state was allowed to get a new indictment.
With respect to plea negotiations, the trial attorney testified that the
petitioner told him that he, the petitioner, had turned down an eleven-month and twenty-
nine-day sentence at the preliminary hearing in city court, before his representation of
the petitioner began. The attorney said that he did not remember the petitioner
receiving an offer involving a two-year sentence. He said that his records indicated that
the prosecutor had agreed to consider a plea to aggravated assault. He said that his
3
records also reflect that the prosecutor told him to make an offer in the “high numbers”
but that the petitioner did not want to plead to anything in the “high numbers.”
The petitioner testified that, in the presence of the trial attorney, the
prosecutor offered him a two-year plea agreement for the reckless endangerment
charge. The petitioner said that he refused the offer because he understood that
reckless endangerment was a misdemeanor charge carrying a maximum sentence of
eleven months and twenty-nine days. The petitioner said that he did not learn that the
charge against him had been upgraded from reckless endangerment to attempted first
degree murder until the day of trial.
At the end of the hearing, the trial court made the following findings with
respect to the petitioner’s allegations of prosecutorial vindictiveness:
I see nothing to indicate that [the prosecutor] did this out of
vindictiveness other than the fact that he looked at the case
and felt like based on the facts and circumstances the charge
was too low and went back to the jury.
I find that there is no showing in any way, the defendant
has failed to carry the burden of showing the prosecution acted
vindictively and that the case went back to the Grand Jury for
reindictment for any reason other than the fact that it was just
a decision on the part of the prosecutor that the facts merited
a higher charge and I find no other reason.
In the order dismissing the petitioner’s petition, the trial court also noted that the
prosecutor’s decision to upgrade the charge “had nothing to do with Mr. Horton’s failure
to plead guilty to the Reckless Endangerment charge.”
The burden was on the petitioner in the trial court to prove his allegations
that would entitle him to relief by a preponderance of the evidence.2 Brooks v. State,
756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial
2
For post-conviction petitions filed after May 10, 1995, petitioners have the burden o f
proving factual allegations by clear and convincing evidence. T.C.A. § 40-30 -210(f).
4
court’s findings unless we conclude that the evidence preponderates against those
findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,
the petitioner has the burden of illustrating how the evidence preponderates against the
judgment entered. Id.As long as probable cause exists to believe that an offense has been
committed, it is generally within the prosecutor’s discretion as to what charge to bring
before a grand jury. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663,
668 (1978). Only when a prosecutor acts to retaliate against a defendant’s exercise of
constitutional rights or to discriminate against a defendant upon impermissible grounds,
such as race or religion, will a claim of prosecutorial vindictiveness be entertained. See
State v. Brackett, 869 S.W.2d 936, 940 (Tenn. Crim. App. 1993). The record before us
supports the trial court’s findings and conclusions that the prosecutor acted in good
faith upon the belief that the facts warranted a higher charge. Thus, no vindictiveness
was shown.
The judgment of the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
Gary R. Wade, Judge
William M. Barker, Judge
5