William H. Horton v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY 1999 SESSION
October 13, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
WILLIAM H. HORTON, * C.C.A. # 01C01-9704-CR-00132
Appellant, * DAVIDSON COUNTY
VS. * Honorable Seth Norman, Judge
STATE OF TENNESSEE, * (Post-Conviction Relief Denied)
Appellee. *
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL J. FLANAGAN PAUL G. SUMMERS
95 White Bridge Road, Suite 208 Attorney General & Reporter
Nashville, TN 37205
ELIZABETH T. RYAN
425 Fifth Avenue North
Nashville, TN 37243
VICTOR S. (TORRY) JOHNSON III
District Attorney General
JOHN C. ZIMMERMAN
Assistant District Attorney
Washington Square
222 Second Avenue North
Nashville, TN 37201
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The petitioner, William H. Horton, appeals the trial court’s denial of his
petition for post-conviction relief. The petitioner contends that he received
ineffective assistance of counsel at trial and on direct appeal, as well as
prosecutorial misconduct. After careful review, we AFFIRM the judgment of the
trial court.
Procedural History
On November 10, 1992, a Davidson County jury convicted the petitioner
of possession for resale of over 26 grams of cocaine. He was sentenced to the
Department of Correction for 21 years as a Range III persistent offender. His
direct appeal from that conviction and sentence was affirmed. See State v.
William Howard Horton, Davidson County, No. 01C01-9312-CR-00435 (Tenn.
Crim. App., filed October 6, 1994), app. perm. appeal denied January 30, 1995.
On August 4, 1995, the petitioner filed this pro se petition. After appointment of
counsel, an amended uncounseled petition, two judge’s recusals, and two
hearings, the final order from which this appeal is taken was entered September
9, 1998.
BACKGROUND
Dennis Hughes represented the petitioner on the charges which are the
basis of this appeal. The post-conviction court considered all pleadings filed by
petitioner’s counsel, the trial transcript with the exhibits, the transcript from the
January 24, 1996 post-conviction evidentiary hearing, and the testimony
presented on September 9, 1998, in reaching its judgment. The witnesses
testifying at both hearings were the petitioner; Dennis Hughes, the petitioner’s
attorney; John Zimmerman, prosecuting attorney; and Terry J. Canady,
appointed counsel for petitioner’s direct appeal. In its judgment, the trial court
made several pertinent findings:
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1. Dennis Hughes was retained counsel for the petitioner at all
times pertinent to the issue of ineffective assistance of counsel,
both at trial and on appeal.
2. The state offered the defendant an offer of an eight (8) year
sentence if the defendant would plead guilty on the first
settlement day prior to trial.
3. That offer could not be accepted by the defendant because he
had voluntarily left the courthouse.
4. The petitioner did not wish to accept any offer made by the
state and wished to force the state to try him.
5. The petitioner apparently had some belief that the informant
necessary to the state’s case would not show up for trial.
6. The petitioner’s trial counsel did everything he could to see that
the petitioner received the most favorable plea bargain
arrangement, yet he did not get the cooperation necessary from
his client.
7. The petitioner was well aware of the plea bargain offer, possibly
even prior to leaving the courthouse when it was originally
made, but regardless of whether the defendant was aware of
the offer prior to leaving the courthouse, the record is clear that
the petitioner was well aware of the offer and of subsequent
offers and rejected all of them.
ANALYSIS
The trial judge’s findings of fact on post-conviction hearings are
conclusive on appeal unless the evidence preponderates otherwise. See Butler
v. State, 789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334,
341 (Tenn. Crim. App. 1995). The trial court’s findings of fact are afforded the
weight of a jury verdict, and this Court is bound by the trial court’s findings unless
the evidence in the record preponderates against those findings. See Henley v.
State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147
(Tenn. Crim. App. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App.
1996). This Court may not reweigh or reevaluate the evidence, nor substitute its
inferences for those drawn by the trial judge. See Henley, 960 S.W.2d at 578-
79; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v.
State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerning the
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credibility of witnesses and the weight and value to be given to their testimony
are resolved by the trial court, not this Court. See Henley, 960 S.W.2d at 579;
Black, 794 S.W.2d at 755. The burden of establishing that the evidence
preponderates otherwise is on the petitioner. See Henley, 960 S.W.2d at 579;
Black, 794 S.W.2d at 755.
Having reviewed the record, we conclude that the evidence does not
preponderate against the findings of the trial court. The trial court’s findings are
consistent with the testimony of Dennis Hughes and the prosecuting attorney.
The petitioner has failed to demonstrate otherwise. Therefore, we deny the
petitioner’s claims of ineffective assistance and prosecutorial misconduct.
CONCLUSION
Accordingly, we AFFIRM the trial court’s order denying post-conviction
relief.
_____________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
______________________________
JOSEPH M. TIPTON, Judge
_______________________________
JAMES CURWOOD WITT, JR., Judge
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