John Rucker v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1998 SESSION
September 3, 1998
Cecil W. Crowson
Appellate Court Clerk
JOHN RUCKER, )
) NO. 01C01-9709-CR-00411
Appellant, )
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT, JR.,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
DWIGHT E. SCOTT JOHN KNOX WALKUP
4024 Colorado Avenue Attorney General and Reporter
Nashville, TN 37209
TIMOTHY F. BEHAN
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
KATRIN NOVAK MILLER
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
LEE MOORE,
SPECIAL JUDGE
OPINION
The petitioner, John Rucker, appeals the dismissal of his petition for post-
conviction relief. On March 30, 1995, petitioner entered a best interest plea of guilty
to two (2) counts of second degree murder, one (1) count of especially aggravated
robbery and one (1) count of especially aggravated kidnaping.
On April 1, 1996, the petitioner filed a petition for post-conviction relief. A
second petition for post-conviction relief was filed on July 8, 1996. A post-conviction
hearing was conducted on April 7, 1997. The trial court denied the petition for post-
conviction relief on April 22, 1997. A notice of appeal was timely filed on April 30,
1997.
After a review of the post-conviction record on appeal and the applicable
law, we affirm the judgment of the trial court.
PROCEDURAL HISTORY
In July of 1992, petitioner was indicted for six (6) separate felony counts
including two (2) counts of first degree murder, two (2) counts of felony murder, one
(1) count of especially aggravated robbery, and one (1) count of especially
aggravated kidnaping. Petitioner was later indicted for aggravated rape relating to
the same criminal episode. On March 30, 1995, petitioner entered a best interest
plea of guilty to two (2) counts of second degree murder, one (1) count of especially
aggravated robbery and one (1) count of especially aggravated kidnaping. The
petitioner received four (4) consecutive fifteen (15) year sentences for a total
effective sentence of sixty (60) years. The aggravated rape charge was dismissed
under the plea agreement.
On April 1, 1996, the defendant filed a petition for post-conviction relief. A
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second petition was filed on July 8, 1996. A hearing on the petition was conducted
on April 7, 1997. The petitions for post-conviction relief were denied by order
entered on April 22, 1997. The defendant timely filed his notice of appeal on April
30, 1997.
The defendant raised three (3) issues on appeal as follows:
1. Was appellant's guilty plea made understanding the nature and
elements of the offenses and the consequences of his plea?
2. Was the plea voluntary or obtained by way of threats, intimidation or
coercion?
3. Was appellant provided with ineffective assistance of counsel?
POST-CONVICTION - STANDARDS FOR REVIEW
The trial judge's findings of fact on post-conviction hearings are conclusive
on appeal unless the evidence preponderates otherwise. 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. 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. Henley v. State, 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 credibility of witnesses and the
weight and value to be given to their testimony are resolved by the trial court, not
this court. Henley v. State, 960 S.W.2d at 579; Black v. State, 794 S.W.2d at 755.
The burden of establishing that the evidence preponderates otherwise is on
petitioner. Henley v. State, 960 S.W.2d at 579; Black v. State, 794 S.W.2d at 755.
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INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD OF REVIEW
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner
has the burden to prove that (1) the attorney's performance was deficient, and (2)
the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d
6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).
The test in Tennessee in determining whether counsel provided effective
assistance is whether his performance was within the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The
petitioner must overcome the presumption that counsel's conduct falls within the
wide range of acceptable professional assistance. Strickland v. Washington, 466
U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim.
App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).
Therefore, in order to prove a deficiency, a petitioner must show that counsel's acts
or omissions were so serious as to fall below an objective standard of
reasonableness under prevailing professional norms. Strickland v. Washington, 466
U.S. at 688, 104 S.Ct. at 2065; Henley v. State, 960 S.W.2d at 579; Goad v. State,
938 S.W.2d at 369.
In reviewing counsel's conduct, a "fair assessment. . . 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
counsel's perspective at the time." Strickland v. Washington, 466 U.S. at 689, 104
S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurt the defense,
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does not, standing alone, establish unreasonable representation. However,
deference to matters of strategy and tactical choices applies only if the choices are
informed ones based upon adequate preparation. Goad v. State, 938 S.W.2d at
369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley v. State, 958 S.W.2d at
149; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 203 (1985), the
Supreme Court applied the two-part Strickland standard to ineffective assistance of
counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice
requirement by requiring a defendant to show that 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. 474 U.S. at 59, 106 S.Ct. at 370.
FACTS
At the post-conviction hearing, appellant testified that his attorney did tell him
the charges against him but indicated that he did not go into detail as to what they
meant. He stated that his attorney did not tell him what the state had to do to
convict him of first degree murder, second degree murder, kidnaping, robbery or
the terms "aggravated" and "especially aggravated". He indicated his attorney
never explained to him criminal responsibility. He testified that trial counsel led him
to believe he was pleading guilty to accessory before and after the fact to those
crimes. He indicated that trial counsel kept telling him that he was going to get
nothing but fifteen (15) years. He thought the sentences would run concurrently
rather than consecutively. He testified that trial counsel went over the plea petition
on " the day that he had me to cop out." He testified that trial counsel gave him the
petition to read but did not read it to him. He stated that he read certain parts of it
but could not recall the parts he read. He had a ninth grade education. He
indicated he could read good enough to get by. He felt like he was being forced to
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plead because his trial counsel kept telling his daddy that he would get life if he did
not plead guilty. He did not think he would have pled guilty if trial counsel had
taken more time to counsel with him thoroughly. He did admit on cross-examination
that he had signed the petition for the guilty plea. When asked if he remembered
Judge Wyatt having gone over his rights and asking him if his plea was voluntary,
he indicated that he was in such a daze that he was really not paying attention. He
was twenty-one (21) years old at the time of his guilty plea. The guilty plea was
entered two (2) weeks before his case was to be tried.
Trial counsel, Thomas H. Ware, testified that he conferred with appellant on
approximately seventeen (17) occasions while representing him. His time sheet
showed eighteen (18) visits. He spent approximately 14.4 hours consulting with Mr.
Rucker at the jail not counting telephone contacts or the times he saw Mr. Rucker
in court. He had attempted to work out a lesser sentence based on petitioner
cooperating with the state. DNA testing, however, contradicted petitioner's story
and put them in a bind. He testified that he discussed in detail with petitioner the
elements of aggravated and especially aggravated robbery and kidnaping. He
advised Mr. Rucker that the murder charges were "just almost open and shut." He
discussed first degree murder and second degree murder. He testified that he read
the petition for the plea agreement to Mr. Rucker. He indicated that Mr. Rucker was
always willing to enter a plea. He, however, was not happy with the number of
years the state was offering. The state had started off asking for seventy-five (75)
years and eventually they negotiated a plea bargain for sixty (60) years. Mr. Rucker
would not initially plead guilty to an effective sixty (60) year sentence. He requested
an effective forty (40) year sentence. Trial counsel testified that it was his opinion
that if Mr. Rucker went to trial that he would be convicted of at least two (2) felony
murder counts and probably would have received two (2) life sentences consecutive
to each other. He thought that they had somewhat of a chance on the aggravated
robbery and aggravated kidnaping charges. He, however, did not have any chance
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on the aggravated rape case. After DNA testing was returned, Mr. Rucker did
confirm that he had sexual relations with one of the murder victims.
The Petition To Enter A Plea Of Guilty indicates that petitioner has read and
discussed the indictment with his attorney and that he has told his attorney
everything about the facts and circumstances surrounding the charges against him.
It indicates further that the petitioner understands the definitional elements of the
crimes and that his attorney has explained what the state has to prove beyond a
reasonable doubt to convict him.
Paragraph 6 of the petition describes the various charges and the ranges of
punishments for each charge. Paragraph 22 sets out specifically that he is entering
a best interest plea as follows:
Count One - murder, second degree - fifteen (15) years imprisonment
Count Three - especially aggravated robbery - fifteen (15) years
imprisonment - consecutive to Count One
Count Four - especially aggravated kidnaping - fifteen (15) years
imprisonment - consecutive to Counts One and Three
Count Five - murder, second degree - fifteen (15) years imprisonment -
consecutive to Counts One, Three and Four
Counts Two and Six - to be dismissed
Case No. 958172 - to be dismissed
The transcript of the guilty plea hearing held on March 30, 1995, shows
clearly that the court went over the range of punishment for second degree murder,
especially aggravated robbery and especially aggravated kidnaping. The court also
described the elements of the three (3) offenses and advised the petitioner that he
had four (4) Class A felony convictions and any future convictions could enhance
any punishment he might receive. His case was set for jury trial a couple of weeks
off. He was advised of his right to a jury trial and that he had the presumption of
innocence at trial. The court advised the petitioner that the state would have the
burden of proof at trial and described the burden of proof beyond a reasonable
doubt. He was advised of his right to confront his witnesses or accusers, his right
against self-incrimination and his right to appeal. He identified the petition to enter
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a plea of guilty and admitted that he had been advised of his rights set forth in that
document. He admitted going over the document with his attorney. He admitted
understanding exactly what he was doing on that date. He admitted that he
understood the sentence that was going to be imposed and the results of pleading
guilty. Trial counsel indicated on the record that he had discussed the matter with
the petitioner and was convinced that he understood the charges and the plea
agreement.
CONCLUSION
The post-conviction transcript is clear that petitioner understood the nature
and the elements of the charges against him along with the consequences of his
plea. The record is clear that the plea of guilty was entered knowingly,
understandably and voluntarily by petitioner. There is no evidence in the record to
indicate that trial counsel's performance was deficient or that any deficient
performance resulted in prejudice to petitioner. Petitioner has failed to overcome
the presumption that trial counsel's conduct falls within the wide range of acceptable
professional assistance. In this case, the record is clear that trial counsel's conduct
was well within the range of competence demanded of attorneys in criminal cases.
Accordingly, the judgment of the trial court is AFFIRMED.
LEE MOORE, SPECIAL JUDGE
CONCUR:
JOE G. RILEY, JUDGE
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CURWOOD WITT, JUDGE
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
JOHN RUCKER, )
) C.C.A. No. 01C01-9709-CR-00411
Appellant, )
) Davidson County No. 92-C-1496
vs. )
) (Post-Conviction)
STATE OF TENNESSEE, )
) AFFIRMED
Appellee. )
JUDGMENT
Came the appellant, John Rucker, by counsel, and the state, by the Attorney
General, and this case was heard on the record on appeal from the Criminal Court
of Davidson County; and upon consideration thereof, this Court is of the opinion
that there is no reversible error in the judgment of the trial court.
It is, therefore, ordered and adjudged by this Court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Criminal Court of
Davidson County for execution of the judgment of that court and for collection of
costs accrued below.
It appears that appellant is indigent. Costs of appeal will be paid by the State
of Tennessee.
Per Curiam
Lee Moore, Special Judge
Joe G. Riley, Judge
Curwood Witt, Judge
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