State v. Jerry Duffey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1997 SESSION
January 27, 1998
Cecil W. Crowson
STATE OF TENNESSEE ) Appellate Court Clerk
) NO. 01C01-9610-CC-00427
Appellee, )
) MAURY COUNTY
V. )
) Hon. James L. Weatherford
JERRY DALE DUFFEY )
) (Post Conviction)
Appellant. )
)
For the Appellant For the Appellee
William C. Bright John Knox Walkup
Assistant Public Defender Attorney General & Reporter
22nd Judicial District
209 W. Madison Street Karen M. Yacuzzo
Pulaski, TN. 38478 Assistant Attorney General
2nd Floor Cordell Hull Building
425 Fifth Avenue North
Nashville, TN. 37243-0943
T. Michael Bottoms
District Attorney General
P.O. Box 459
Lawrenceburg, TN. 38464
Robert C. Sanders
Assistant District Attorney General
10 Public Square
P.O. Box 1619
Columbia, TN. 38402
OPINION FILED:______________________
AFFIRMED
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Jerry Dale Duffey, appeals as of right the Maury County Circuit
Court’s dismissal of his petition for post-conviction relief. On May 10, 1994, appellant
entered a plea of nolo contendere on the charges of theft over five hundred ($500)
dollars and deceptive business practices. The trial court sentenced the appellant to
two (2) years on the theft conviction and to six (6) months on the conviction of
deceptive business practices. The sentences were ordered to run concurrently to
each other and to sentences that the appellant was already serving for convictions in
Marshall County. 1 No direct appeal was taken from the Maury County convictions at
issue in this proceeding. 2
After a careful review of the record, we find no reversible error and affirm the
judgment of the trial court.
On November 22, 1995, the appellant filed a pro-se petition for post-conviction
relief alleging that: (1) His trial counsel was ineffective in the investigation and
development of his case; (2) The State prosecuted him on malicious grounds; and (3)
The trial court failed to follow Rule 11 of the Tennessee Rules of Criminal Procedure
in accepting his plea of nolo contendere.3 Through a newly appointed counsel, the
appellant filed an amended petition, containing the above stated grounds.
Following an evidentiary hearing, the trial court dismissed appellant’s petition
upon finding no evidence of malicious prosecution and finding that the appellant’s
counsel provided the proper assistance as required under Baxter v. Rose, 523 S.W.2d
1In a related case from Marshall County, the appellant was convicted by a jury on twenty-seven
(27) counts of theft of property by fraud and/or deceit. The trial judge, acting as a thirteenth juror,
reduced the number of convictions to twenty four and sentenced the appellant to fourteen (14) years and
one (1) month in the Tennessee Department of Correction. Those convictions were affirmed on direct
appea l to this Cou rt. See State v. Jerry Dale Duffey, No. 01C01-9501-CC-00017 (Tenn. Crim. App. at
Nash ville, July 26, 1995 ).
2
The appellant began serving his two (2) year sentence in the Tennessee Department of
Correction on May 10, 1994. By the time of his post-conviction hearing on July 23, 1996, he had
completed that sentence. Currently, he is still serving the fourteen (14) year sentence that he received
from conviction s in Mars hall Coun ty.
3
The appellant’s petition was filed under the Post Conviction Procedure Act of 1995. Tenn.
Code Ann. §§ 40 -30-201 -- 310 (Supp. 1996 ).
2
930, 936 (Tenn. 1975). As to appellant’s plea of nolo contendere, the trial court found
that the appellant was properly informed regarding the nature of the charges, the
penalties involved, and his constitutional rights of trial by jury, assistance of counsel,
and the right to plead not guilty. The trial court further found that there was a sufficient
determination of fact to support the acceptance of appellant’s plea.
On appeal, the appellant contends that the trial court erred in denying his
petition for post-conviction relief based upon the ineffective assistance of his trial
counsel and his alleged unintelligent, involuntary plea of nolo contendere. Under the
Post Conviction Procedure Act of 1995, the appellant has the burden of proving those
allegations by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f)
(Supp. 1996).
The appellant first contends that he is entitled to post-conviction relief based
upon the ineffective assistance of his trial counsel. He argues that counsel provided
constitutionally deficient assistance by failing to interview the alleged victims or
witnesses and by failing to obtain discovery before advising the appellant to enter a
plea agreement. He further argues that he would not have entered his plea if counsel
had properly investigated the case to find that the State’s evidence was weak.
This issue is without merit.
To prevail on a claim of ineffective assistance of counsel, the appellant must
demonstrate by clear and convincing evidence that the advice or services provided by
his counsel fell below the range of competence demanded of attorneys in criminal
cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Moreover, he must
show “prejudice” by proving that, but for counsel’s incompetence, the result of the trial
proceeding would have been different. See Strickland v. Washington, 466 U.S. 668,
687-88, 692, 694, 104 S.Ct. 2052, 2064, 2067-68 (1984); Best v. State, 708 S.W.2d
3
421, 422 (Tenn. Crim. App. 1985). 4 In cases involving a guilty plea or plea of nolo
contendere, the appellant must show “prejudice” by demonstrating that, but for
counsel’s errors, he would not have pled guilty and would have insisted upon going to
trial. See Hill v. Lockart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985);
Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).
The trial court found that the representation provided by appellant’s counsel did
not fall to the level of ineffective assistance. The trial court based its finding upon
evidence that appellant’s counsel provided competent advice and strategy in
explaining to the appellant the nature of the case, his constitutional rights, his option of
entering a plea agreement, and the risks of proceeding at trial.
In post-conviction proceedings, the trial courts findings of fact “are conclusive
on appeal unless the evidence preponderates against the judgment.” See State v.
Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). In appellant’s case, we find no
evidence to controvert the findings of the trial court. The record reflects that the
appellant’s counsel acted with reasonable diligence and competency in representing
the appellant before and during the plea hearing.
At the time appellant was indicted and charged in Maury County, his counsel
was preparing a motion for a new trial in the related case in Marshall County. Counsel
advised the appellant that the facts involved in both cases were virtually identical and
that, in light of his convictions in Marshall County, the appellant risked being convicted
in Maury County if he took the case to trial.5 Counsel explained to the appellant that
by accepting the State’s plea agreement, he would receive an effective two (2) year
4
The Strickland standard has been applied to the right to counsel under Article I, Section 9 of the
Tenn essee Cons titution. See State v. Melson, 772 S.W .2d 417, 4 19 n.2 (T enn. 198 9), cert. denied, 493
U.S. 874 (1989).
5
The charges of theft and deceptive business practices arose from the appellant’s operation of a
cemetery and tombstone company in Marshall County, Tennessee. The appellant owned and operated
the b usin ess from 1992 until O ctob er 19 93. D uring that tim e, twe nty-se ven c usto me rs in M arsh all
County and two customers in Maury County complained that they never received the services or
tom bsto nes that th ey had purc has ed. T he ap pellan t’s de fens e in the Mar sha ll Cou nty trial w as th at his
com pany sale sme n were s olely respon sible for the theft and d eceptive busines s practice s.
4
sentence that would run concurrently to his sentence in Marshall County. Thus,
although counsel informed the appellant of his right to plead not guilty and to receive a
trial by jury, he encouraged the appellant to enter a plea of nolo contendere and
eliminate the possibility of receiving additional jail time.
In reviewing counsel’s conduct, a “fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from the counsel’s prospective at the time.” See Strickland, 466, U.S. at 689,
104 S.Ct. At 2065; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). We have reviewed
counsel’s conduct under those guidelines and we find no evidence to disturb the trial
court’s finding that appellant’s counsel provided competent representation.
Having determined that appellant’s counsel provided reasonable and
competent representation, we conclude that a review of any alleged prejudice is
unnecessary.
The appellant next contends that he is entitled to post-conviction relief based
upon a constitutionally invalid plea of nolo contendere. He argues that the trial court
failed to determine if a factual basis existed for his plea, thereby rendering it
involuntary and unintelligent.
This issue is without merit.
A challenge to a guilty plea or plea of nolo contendere is cognizable in a
petition for post-conviction relief where the petitioner asserts that his plea was made
contrary to the constitutional requirements of intelligence and voluntariness. 6 Rule 11
of the Tennessee Rules of Criminal Procedure sets forth strict guidelines for accepting
guilty pleas and pleas of nolo contendere to ensure that those constitutional
6
In the landmark cas e of Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23
L.Ed.2d 274 (1969), the United States Supreme Court held that in order for a guilty plea to be
constitutionally valid, the trial court must fully advise the defendant that he is waiving his privilege against
self-incrimination, his right to a trial by jury, and his right to confront his accusers. Under Boyk in, the
defendant must voluntarily enter his plea with the understanding that he is waiving those constitutional
rights. See id.5
requirements are upheld.7
Before a guilty plea or plea of nolo contendere may be accepted, the trial judge
“must address the defendant personally in open court and inform the defendant of,
and determine that he or she understands...” the nature of the charges, the range of
penalties associated with those charges, and the right to plead not guilty and proceed
with a trial by jury. See Tenn. R. Crim. P. 11(c). The trial judge must inform the
defendant that in a trial by jury, he has the right to receive legal counsel, to confront
and cross-examine witnesses, and to be free from compelled self-incrimination. See
id. Additionally, the trial judge must explain to the defendant that by entering a plea of
guilt or nolo contendere, the defendant is waiving his rights associated with a trial by
jury and may be questioned by the court regarding the offense at issue. See id.Rule 11 also requires the trial judge to determine if the defendant’s plea is
voluntary and accurate. To ensure that the plea is voluntary, the trial judge must
question the defendant in open court to find whether the plea is the result of any
threat, coercion, or promise apart from a plea agreement. See Tenn. R. Crim. P.
11(d). To ensure accuracy, the trial judge must review the facts of the case and
determine if there is a factual basis for the defendant’s plea. See Tenn. R. Crim. P.
11(f).8
The appellant contends that his plea of nolo contendere is constitutionally
invalid because the trial court failed to determine if a factual basis existed for the plea.
He argues that the trial court’s alleged omission caused him to enter an involuntary
and unintelligent plea.
We agree that under Rule 11, the trial judge was required to determine if a
7
Rule 11 essentially adopts the requirements established by our supreme court in State v.
Mackey, 553 S.W .2d 3 37, 3 41 (T enn . 197 7). Alth oug h tho se re quire me nts a re no t nec ess arily
constitutional in nature, they serve to ensure that a plea of guilt or nolo contendere is con stitutio nally
sound as being entered into voluntar ily, intelligently, and unde rstanding ly. See State v. Miller, 634
S.W .2d 615, 6 17-18 (T enn. Cr im. Ap p. 1981) .
8
See also State v. Turner, 919 S.W .2d 346, 3 52 (Te nn. Crim . App. 199 5); Cham berlain v. Sta te,
815 S.W .2d 534, 5 39 (Te nn. Crim . App. 199 0).
6
factual basis existed for appellant’s plea of nolo contendere. However, we find that
the trial judge made a sufficient inquiry of the underlying facts before accepting the
appellant’s plea. During the plea hearing, the trial judge questioned the appellant
about the charges and issues involved in the Marshall County case. Appellant’s
counsel responded that both the Marshall County case and the Maury County case
arose from appellant’s operation of a cemetery and monument company in Marshall
County. Counsel further explained that the present case involved the same “type”
business transaction, except that the victims lived in Maury County. From those facts,
the trial judge concluded that there was a sufficient basis for the appellant’s plea of
nolo contendere.
Furthermore, the trial judge exercised great care to address the appellant in
open court and to explain the nature of the case, the possible penalties, and the
appellant’s constitutional rights. The trial judge informed the appellant that he had the
right to plead not guilty and to proceed with a trial by jury. Appellant was fully informed
that in a trial by jury he would have the right to legal counsel, the right to cross
examine any witness, and the right to be free of compelled self-incrimination. Under
oath, the appellant responded that he understood the proceedings, including his
constitutional rights, the nature of the charges, and the penalties available in his case.
Next, the trial judge informed the appellant that by entering a plea of nolo
contendere, he was thereby waiving his right to a jury trial and would be subject to a
conviction and sentence by the court. The trial judge further explained that his plea
would allow the court and the State to question him regarding the charged offenses.
Appellant responded under oath that he understood the consequences of waiver and
that he nevertheless wished to enter his plea. Appellant assured the trial court that he
was fully capable of understanding the proceedings and that his plea was not the
product of any threats or coercion.
Based upon the open court discussion, the trial court concluded that the
7
appellant’s plea was voluntary and intelligent. We find no evidence to disturb that
finding and therefore conclude that the appellant’s petition for post-conviction relief
was properly dismissed.
Accordingly, the judgment of the trial court is affirmed.
____________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
__________________________
JOE B. JONES, Presiding Judge
__________________________
JOE G. RILEY, JUDGE
8