Larry Corum vs. State
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE OCTOBER SESSION, 1996 LARRY C. CORUM, Appellant, VS. STATE OF TENNESSEE, Appellee. FILED April 1, 1997 ) ) ) ) ) ) ) ) ) ) Cecil Crowson, Jr. C.C.A. NO. 03C01-9512-CR-00411Clerk Appellate C ourt KNOX COUNTY HON. RAY L. JENKINS JUDGE (Post-Conviction Relief) FOR THE APPELLANT: FOR THE APPELLEE: BRANDT DAVIS 1707 Cove Creek Knoxville, TN 37919 CHARLES W. BURSON Attorney General and Reporter ELIZABETH T. RYAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243 RANDALL E. NICHOLS Distirct Attorney General ZANE SCARLETT Assistant District Attorney City-County Building, Ste. 168 400 Main Street Knoxville, TN 37902-2405 OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE OPINION Appellant Larry C . Coru m ap peals from th e dism issal o f his petition for post-conviction relief. On O ctober 7 , 1993, A ppellant p led guilty to two cou nts of burglary and one count of robbery. Appellant received a sentence of four years imprisonment for each cou nt of burglary and e ight years imprisonment for robbery. The se ntence s were o rdered to be served consecutively for an effective sentence of sixteen years. On July 12, 1994, Appellant filed a petition for postconviction relief, alleging ineffective assistance of counsel and that he involun tarily entered his guilty plea. The post-conviction court dism issed h is petition, finding it meritless. For the reasons discussed below, we reject Appe llant s claim s and a ffirm the de cision of the post-con viction cou rt. Ineffect ive Assista nce of Coun sel Claim Appellant claims that counsel was ineffec tive in inve stigatin g his case. He claims that coun sel me t with him o nly once , for ten min utes. App ellant further maintains that counsel never discussed the State s evidence against him, his alleged confessions, or his possible defenses. Finally, he claims that counsel failed to conduc t discovery. When an appeal challenges the Sixth Amendment right to effective assistance of couns el, the appellant has the burden of establishing that the advice given or services rendered by the attorney fell below the range of competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523 S.W .2d 930 (Te nn. 1975). U nder Strickland v. Washington, 466 U.S. 668, 687 -2- (1984), there is a two-prong test which places the burden on the ap pellant to show that (1) the representation was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed a defendant by the Sixth Amendment, and (2) the deficient representation prejudiced the defense to the point of depriving the appellant of a fair trial with a reliable result. Prejudice is shown by demonstrating a reaso nable probability that, but for couns el s unpro fessiona l errors, the result of the procee ding wo uld have been d ifferent. Id. at 694. Under the Strickland test, a reviewing court s scrutiny must be highly deferential. It is all too tempting for a defendant to second-guess counsel s assistance after conviction or adverse sentence. . . . Id. at 689 . In fact, a petition er cha llengin g his co unse l s representation faces a strong presu mptio n that c ouns el s con duct fa lls within the wide range of reasonab le professional as sistance. . . . Id. at 689. Before addressing the substance of App ellant s claims, we recognize that our scope of review is limited. In a petition for post-conviction relief, the petitioner must establish his or her allegations by a prepon deranc e of the ev idence . McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983) (citing Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978)). Furthermore, the findings of fact made by a trial judge in post-conviction hearings are conclusive on appeal unless the appellate court finds that the evidence prepon derates against th e judgm ent. Butler v. Sta te, 789 S.W .2d 898, 899 (Tenn. 199 0). Counsel testified at the hearing on Appellant s petition for post-conviction relief that he met with Appellant two or three times at the Knox County Penal Farm, and several times before court appearances. While admitting that he filed -3- no discovery motions, counsel testified that he did meet with the prosecutor and obtained a copy of Appellant s confession, a copy of the fingerprint evidence from the burglaries, and copies of the police reports. There is no evidence in the record that counsel did not receive any im portant informa tion that could have been obtained ha d a discovery motion been filed . Counsel showed all of these docum ents to Appellant and discussed them with Appellant. Appellant never gave c ouns el any in forma tion wh ich wo uld lead cou nsel to be lieve that a viable defense to the charges brought against him could be constructed. Appellant has failed to carry his burden of showing that counsel s repre sentation was defective and in any way prejudiced him. Involun tary Plea C laim Next, Appellant maintains that his p lea of guilty was not volun tarily, intelligently, or knowingly made. Specifically, he claims that he was not told of his right against self-inc rimina tion or h is right to confront and cross-examine the witnesses against him. He also faults the trial court for not fully comp lying with Rule 11 of the Tennessee Rules of Criminal Procedure which outlines information required to be given to a defendant pleading guilty. Finally, he claims that counsel coerced him into pleading guilty by telling him that he would likely be sentenced as a career criminal if his case went to trial and he was convicted. In Boykin v. Alabama the United State Supreme Court held that an accu sed s guilty plea must be voluntarily, knowingly, and unde rstand ingly entered before a conviction resting upon a guilty plea may comply with due process. 395 U.S. 238 (1969). In Boykin, the Supreme Court stated that a guilty plea -4- constituted a waiver of various rights and that it would not presume a waiver of the following federal constitutional rights from a silent record: (1) (2) (3) The privilege against compulsory self-incrimination; The right to trial by jury; and The right to confront one s accusers. Id. at 242. T hus, Boyk in placed a premium on the record showing sufficient waiver of specified rights. Exercising its supervis ory pow er to ens ure that the courts of this Sta te afford fairness a nd justice to defend ants in criminal cases, the Tennessee Supreme Court in State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1977), required stricter standards than those mandated by the Boyk in decision . Mackey requires that trial judge s, in acc epting pleas of guilty in crimin al case s to su bstan tially adhere to the following procedure: The court must address the defendant in open court and inform him of, and determine that he understands: (a) The nature of the charges brought against him and the mandatory minimum penalty provided b y law, if any, and the ma ximum possible penalty; an d that a different or additional punishment may result by reason of prior convictions or other factors; (b) If he is not represented by counsel, that he has a right to be so re presen ted and that if cann ot afford counsel, counsel will be appointed; (c) That he has the right to plead not guilty, the right to be tried by a jury, the right to the assistance of counsel at trial, the right to confront and cross-examine witnesse s, and the right not to inc riminate himse lf; (d) That if h e plea ds gu ilty, that there will be no trial except to determine his sentence; and (e) That if he pleads guilty, the court or the state may ask him questions about the offense to which he pleaded, and that if he answ ers un der oa th his answers may later be us ed ag ainst h im in a prosecution for false statement or perjury, and that prior convictions may be used to set the sentence. (f) The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the -5- result of force of threats or of promises apart from a plea agreem ent. The court sha ll also inquire as to whether the defendant s willingness to plead guilty results from prior discussions between the District Attorney Ge neral and the d efendant or h is attorney. Id. at 341. The Mackey requirements have been adopted into Rule 11 of the Tennessee Rules of Criminal Procedure. In State v. McClintock, 732 S.W .2d 268, 273 (Tenn. 1987), the Supreme Court of Tennessee pronounced the additional advice requirement that it must be made clear to the defendant who is pleading guilty that the resulting judgment of conviction may be used in a subsequent proceeding to enhance his or her punishment for subsequent offenses. Thus, Boyk in, Mackey, McClintock, and Rule 11 of Tennessee Rules of Criminal Procedure govern the validity of guilty plea proceedings. As the Supreme Court of Tennessee noted in State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989), some of the mandated Mackey advice is not required by Boyk in but represents a supervisory pronounc ement of the court. The C ourt stated any other req uireme nt of Mackey in excess of Boyk in is not based upon any constitutional provision, federal or state. It follows, that any omissions, not required in Boyk in may b e relied upon on dire ct app eal in approp riate cases but such omissio ns have no validity on the first or an y subse quent post-conviction proceeding . Id. at 853. From the evid ence subm itted at the evidentiary hearing, it is not clear whether coun sel info rmed Appe llant of h is rights. However, the trial court, when accepting Appellant s plea, did ad vise Ap pellan t of his rig ht to trial b y jury, his -6- right to confront and cross-exam ine the witnesse s against him , and his right against self-incrimination. Appellant indicated that he unde rstood th ese rights which he was waiving. Wh ile it does appear tha t the trial court failed to give some of the sup ervisory, no n-cons titutionally bas ed instructions required by Mackey, relief m ay be g iven in a post-c onvictio n hea ring on ly if a con viction is void or voidab le becau se of a violation of a c onstitution al right. See Tenn. Code Ann. ยง 40-30-2 03 (Supp. 19 96); Prince, 781 S .W .2d at 8 53. Th erefor e, this issue ha s no m erit. In addition, Appe llant s plea was not coerced. At the hearing on Appe llant s petition for pos t-conv iction re lief, cou nsel e xplained that Appellant was on probation, under the Community Alternative to Prison Program (CAPP) when he committed the current offenses. Appellant was placed under the CAPP program after pleading guilty to three counts of felony theft, burglary, and two counts of aggravated burglary. Counsel testified that he talked to Appellant about the possibility of being sentenced as a career offender and how that would affect his sentence. Appellant argues that this information was coercive. It was not coercive for counsel to explain to Appellant the likely sentencing repercussions of his decision to go to trial. These poss ible sentencing repercussion s are -7- supported by the record and Appellant makes no argument counsel s advice on this point was incorrect. Wh ile this information may have led Appellant to decide to take the p lea offered by the Sta te, that does not mean that counsel coerced him into accepting the plea. W e conclude that Appellant was not deprived of effective assistance of counsel and that the evidence produced by Appellant does not prep ondera te against the findings of the post-conviction court. Accordingly, the judgment of the post-conviction court is affirmed. ____________________________________ JERRY L. SMITH, JUDGE CONCUR: ___________________________________ GARY R. WADE, JUDGE ___________________________________ DAVID H. WELLES, JUDGE -8-
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