Steven Mason v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY 1997 SESSION
September 30, 1997
Cecil W. Crowson
Appellate Court Clerk
STEVEN MASON, ) NO. 01C01-9610-CC-00428
)
Appellant. )
) MAURY COUNTY
V. )
) HON. JIM T. HAMILTON,
STATE OF TENNESSEE, ) JUDGE
)
Appellee ) (Post-Conviction)
)
For the Appellant: For the Appellee:
Hershell Koger John Knox Walkup
135 North First Street Attorney General and Reporter
P.O. Box 1148
Pulaski, TN 38478 Clinton J. Morgan
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
T. Michael Bottoms
District Attorney General
P.O. Box 459
Lawrenceburg, TN 38464
Robert C. Sanders
Assistant District Attorney
Maury County Courthouse
Columbia, TN 38401
OPINION FILED: ___________________
AFFIRMED
William M. Barker, Judge
OPINION
The appellant, Steven Mason, appeals as of right the trial court’s
dismissal of his petition seeking post-conviction relief. He contends that the trial court
was in error in concluding that he had received the effective assistance of counsel in
his underlying felony. Following our review of the record on appeal, we affirm the
judgment of the trial court
On March 13, 1992, as a result of a plea bargain agreement, the appellant pled
guilty to three counts of robbery and two counts of attempted robbery in the Maury
County Circuit Court. Earlier, he had entered a plea of guilty to one count of robbery
in Williamson County, Tennessee, and had received an eight year sentence for that
offense. The plea bargain agreement in the Maury County Circuit Court provided that
in exchange for his pleas of guilty, the appellant would receive sentences of eight
years as a Range I standard offender, with the Maury County sentences being served
concurrently with the earlier Williamson County sentence. Thus, the appellant
received an effective sentence of eight years in the Tennessee Department of
Correction for six felony convictions.
Later, the appellant was convicted of first degree murder and attempted first
degree murder. For those offenses, he was sentenced to life imprisonment and sixty
years, respectively. Based upon his six previous robbery and attempted robbery
convictions, the appellant was sentenced as a career offender. See Tenn. Code
Ann. § 40-35-108 (1990 Repl.). In an effort to rid himself of his career offender status,
the appellant filed this post-conviction relief petition. In his post-conviction petition, the
appellant alleged that he had received the ineffective assistance of counsel in that his
trial counsel had inadequately investigated the charges against him, had failed to
interview witnesses, was not prepared for trial, and had failed to file proper pretrial
motions. At the evidentiary hearing, however, the appellant’s testimony centered on
his complaint that his trial counsel had failed to advise him that if he pled guilty to the
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three robberies and two attempted robberies, he would thereafter be considered a
career offender and required to serve sixty percent of a new sentence for any
subsequent felony conviction. Significantly, however, the appellant did not testify, nor
allege in his petition, that had he been so advised, he would not have pled guilty and
would have insisted on going to trial. The appellant failed to demonstrate how any
defect in his counsel’s advice caused him prejudice in the proceedings.
The appellant’s former attorney testified at the evidentiary hearing that he
specifically advised the appellant, prior to his guilty pleas, that if the appellant received
any subsequent criminal convictions, then the guilty pleas would be used against him.
He testified that he told the appellant, “[t]his will be used to enhance any sentence you
may get in the future.” He admitted, however, that he did not specifically advise the
appellant that he would be sentenced for future felony convictions as a career
offender.
“In post-conviction relief proceedings the petitioner has the burden of proving
the allegations in his petition by a preponderance of the evidence.” McBee v. State,
655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of
the trial court “are conclusive on appeal unless the evidence preponderates against
the judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).
In reviewing the appellant’s Sixth Amendment claim of ineffective assistance of
counsel, this Court must determine whether the advice given or services rendered by
the attorney were within the range of competence demanded of attorneys in criminal
cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of
ineffective assistance of counsel, a petitioner “must show that counsel’s
representation fell below an objective standard of reasonableness” and that this
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-
88, 692, 694, 104 S. Ct. 2052, 2064, 2067-68, 80 L. Ed. 2d 674 (1984); Best v. State,
708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). In this case, to satisfy the requirement
of prejudice, the appellant would have had to demonstrate a reasonable probability
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that, but for counsel’s errors, he would not have pled guilty and would have insisted on
going to trial. See Hill v. Lockhart, 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 appellant’s petition for post-conviction relief fails for two reasons. First, the
only issue the appellant raises on appeal is his claim that his trial counsel was
ineffective for failing to advise him on his career offender status as a result of his guilty
pleas. However, that claim of ineffectiveness was not raised in the appellant’s petition
seeking post-conviction relief. Post-conviction petitions are heard upon the issues
raised by the pleadings, and no relief can be granted upon grounds not raised therein.
State v. Smith, 814 S.W.2d 45, 49 (Tenn. 1990); Long v. State, 510 S.W.2d 83, 85
(Tenn. Crim. App. 1974); Miller v. State, 508 S.W.2d 804, 806 (Tenn. Crim. App.
1973). Although the petition filed in this case alleged that the appellant’s trial counsel
had been ineffective, the petition did not allege that he was ineffective for failing to
advise the appellant regarding his eligibility for career offender status should he plead
guilty to the robbery offenses. Therefore, that claim of ineffectiveness was not raised
by the pleadings.
Secondly, even assuming, arguendo, that appellant’s trial counsel was
somehow ineffective for failing to advise the appellant that he would be considered a
career offender for any subsequent felony convictions, the appellant failed to testify
that had he been given that advice, he would not have entered his guilty pleas.
Therefore, the record on appeal in this case does not show that the appellant suffered
any prejudice to warrant post-conviction relief.
Based upon the foregoing, the judgment of the trial court is affirmed.
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_______________________________
William M. Barker, Judge
Concur:
____________________________
John H. Peay, Judge
____________________________
Jerry L. Smith, Judge
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