State v. Anthony Cicchetto

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1998 SESSION
FILED
March 26, 1998
Cecil Crowson, Jr.
ANTHONY CICCHETTO, ) Appellate C ourt Clerk
) No. 02-C-01-9706-CR-00210
APPELLANT, )
) Shelby County
v. )
) Honorable W . Fred Axley, Judge
STATE OF TENNESSEE, )
) (Post-Conviction Relief)
APPELLEE. )
FOR THE APPELLANT: FOR THE APPELLEE:
William W. Nowlin John Knox Walkup
Attorney at Law Attorney General & Reporter
100 North Main Building 425 Fifth Avenue, North
Suite 3201 Nashville, TN 37243-0493
Memphis, TN 38103
Georgia B. Felner
Counsel for the State
425 Fifth Avenue, North
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Rhea Clift
Assistant District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
OPINION FILED: ______________________________
AFFIRMED PURSUANT TO RULE 20
Joe B. Jones, Presiding Judge
OPINION
The appellant, Anthony Cicchetto (petitioner), appeals as of right from a judgment
of the trial court dismissing his post-conviction action after an evidentiary hearing.1 The
trial court found the petitioner was afforded his constitutional right to the effective
assistance of counsel; and the petitioner’s guilty pleas passed constitutional muster. In this
court, the petitioner contends the evidence contained in the record preponderates against
the trial court’s findings of fact. After a thorough review of the record, the briefs submitted
by the parties, and the law governing the issue presented for review, it is the opinion of this
court the judgment of the trial court should be affirmed pursuant to Rule 20, Tennessee
Court of Criminal Appeals.
The petitioner was required to establish the grounds litigated by “clear and
convincing” evidence. Tenn. Code Ann. § 40-30-210(f). Thus, the petitioner was required
to prove by clear and convincing evidence (a) the services rendered or advice given by
counsel fell below “the range of competence demanded of attorneys in criminal cases,”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) and (b) the unprofessional conduct of
counsel enured to the prejudice of the petitioner. Williams v. State, 599 S.W.2d 276, 279
(Tenn. Crim. App.), per. app. denied (Tenn. 1980). The United States Supreme Court
adopted this two-prong standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d
203 (1985), the Supreme Court extended these same standards to cases where the
petitioner entered a plea of guilty. In Hill, the prejudice prong was modified to require the
petitioner to prove “there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106
S.Ct. at 370.
In this case, the petitioner failed to establish the grounds asserted by clear and
convincing evidence. Moreover, assuming arguendo, the petitioner proved counsel’s
representation was deficient, he certainly did not establish how he was prejudiced. Finally,
the evidence contained in the record does not preponderate against the trial court’s
1
Pursuant to a plea bargain agreement, the petitioner entered pleas of guilty to rape
and was sentenced to serve eight (8) years, sexual battery and was sentenced to serve
two (2) years, and forgery and was sentenced to serve two (2) years. The sentences are
to be served concurrently.
findings of fact. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).
________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE