         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   January 25, 2005 Session

                 ROBERT LEDFORD v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Hamilton County
                           No. 243211    Stephen M. Bevil, Judge



                     No. E2004-01744-CCA-R3-PC - Filed March 24, 2005


The petitioner, Robert Ledford, appeals the trial court's denial of post-conviction relief. The single
issue presented for review is whether the petitioner was denied the effective assistance of counsel
incident to his guilty pleas for second degree murder, aggravated robbery, especially aggravated
kidnaping and theft. The judgment of the trial court is affirmed.

                  Tenn R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which J. CURWOOD WITT , JR., and
NORMA MCGEE OGLE, JJ., joined.

D. Marty Lasley, Chattanooga, Tennessee, for the appellant, Robert Ledford.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman McIntire, Assistant Attorney
General; and Jason Thomas, Assistant District Attorney General, for the appellee, State of
Tennessee.


                                             OPINION

        In January of 2001, Dorothy Lowery, the seventy-four-year-old victim, was robbed, kidnaped
from her residence in Ooltewah, and murdered. An investigation established that the petitioner, who
was married to a relative of the victim, and Dennis Raby entered the victim's residence, bound her
with duct tape, and ransacked the interior of her house. Afterward, the victim was placed in the
trunk of her 1996 Chevrolet Impala and driven to another residence where Raby was seen in
possession of her jewelry. A few days later, the body of the victim was discovered in a wooded area
in Meigs County. The petitioner's fingerprints were found on a roll of the duct tape used to bind the
victim and on a Styrofoam cup located inside her residence. The cup also contained saliva identified
as that of the petitioner. An autopsy revealed that the victim died as a result of blunt force trauma
to the head and the body. Raby committed suicide as police attempted to make his arrest.
        Because the petitioner was indicted on three counts of felony murder, one count of
premeditated first degree murder, aggravated robbery, theft, and especially aggravated kidnaping,
the state could have sought a sentence of life in prison without parole or the death penalty. As a part
of a plea agreement, the petitioner pled guilty to second degree murder, aggravated robbery,
especially aggravated kidnaping, and theft. On the murder conviction, the petitioner was sentenced
to a Range II, forty-year term. The remaining sentences were ordered to be served concurrently:
aggravated robbery, Range I, twelve years; theft more than ten thousand dollars, Range I, six years;
especially aggravated kidnaping, Range I, twenty-five years. All pleas, which were entered
September 12, 2002, were best interest pleas. See Alford v. North Carolina, 400 U.S. 25 (1970);
Dortch v. State, 705 S.W.2d 687 (Tenn. Crim. App. 1985).

        On February 12, 2003, the petitioner filed a petition for post-conviction relief alleging that
his counsel was ineffective for having failed to request a mental evaluation, for having failed to
adequately investigate the circumstances of the offense, for having failed to communicate the
petitioner's various options, and for having failed to ensure, particularly because of the petitioner's
poor reading skills, that the Alford pleas were knowingly and voluntarily made.

        At the evidentiary hearing, the petitioner claimed that because he only had an eighth grade
education and could not read well, he did not fully understand the consequences of his plea. The
petitioner acknowledged that he had testified during the plea colloquy that he understood his
sentence, that he was satisfied with the performance of his counsel, and that he was free from the
influence of any drugs. He claimed, however, that the possibility of a life sentence without parole
and the medication he was taking at the time of his plea affected his understanding of the agreement.
The petitioner, who was on release from prior convictions at the time of these crimes, conceded that
he had entered guilty pleas to those earlier charges.

         Kelli Black, the attorney who represented the petitioner at the time of his pleas, and Stanley
Lanzo, an attorney who had previously represented the petitioner on the same charges, testified for
the state. Attorney Lanzo, who represented the petitioner from February 2001 until March 2002,
testified that he met with the petitioner at the jail, advised him not to make a statement to the police,
and monitored the progress of the forensic investigation. An initial concern on his part was that the
state might seek the death penalty. By March of 2002, Attorney Lanzo had received an offer from
the state for a forty-year sentence. After he communicated the offer to the petitioner, the petitioner
notified him that he wanted to hire another attorney and Attorney Lanzo withdrew.

        Attorney Black met with the petitioner on five occasions prior to the announcement of the
plea agreement. According to Attorney Black, the petitioner ultimately accepted the plea agreement
because he did not want to risk a sentence of life without the possibility of parole. During their
discussions, the petitioner acknowledged participating in the crimes but denied killing the victim.
She stated that she had explained to the petitioner that he could be found guilty of felony murder
even though he had not technically caused the victim's death. Attorney Black testified that the
petitioner did not want a mental evaluation, that he understood the nature of the proceedings, that



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he was "very lucid," and that she had reviewed the plea agreement "word for word" with him because
of his difficulty with reading.

       At the conclusion of the evidentiary hearing, the trial court, in pertinent part, found as
follows:

               (1) While the petitioner was taking medication for a sleep disorder at the time
       of the pleas, read at a second or third grade level, and was prescribed Chlorpromazine
       for hallucinations at the time of the evidentiary hearing, the evidence established that
       he did not want a mental evaluation prior to trial, fully understood the proceedings,
       and was able to give a detailed account of the relevant facts to his trial counsel;
               (2) That the petitioner fully understood the nature of the charges against him
       and that counsel was not deficient in communicating the terms of the plea agreement;
               (3) That the petitioner entered knowing and voluntary pleas of guilt on each
       charge and that the petitioner had been accurately advised by his trial counsel before
       entering into the pleas.

        In this appeal, the petitioner argues that his counsel was ineffective by having failed to fully
investigate and to explain all possible alternatives and that the guilty plea was neither knowingly nor
voluntarily made.

        Under our statutory law, the petitioner bears the burden of proving the allegations in his
post-conviction petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f)
(2003). Evidence is clear and convincing when there is no serious or substantial doubt about the
accuracy of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn.
Crim. App. 1998). Claims of ineffective assistance of counsel are regarded as mixed questions of
law and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999). On appeal, the findings of fact made by the post-conviction court are
conclusive and will not be disturbed unless the evidence contained in the record preponderates
against them. Brooks v State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the
petitioner to show that the evidence preponderated against those findings. Clenny v. State, 576
S.W.2d 12, 14 (Tenn. Crim. App. 1978). The credibility of the witness and the weight and value to
be afforded their testimony are questions to be resolved by the trial court. Bates v. State, 973 S.W.2d
615 (Tenn. Crim. App. 1997). When reviewing the application of law to those factual findings,
however, our review is de novo, and the trial court’s conclusions of law are given no presumption
of correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

        The applicable law is well settled. When a petitioner seeks post-conviction relief on the basis
of ineffective assistance of counsel, he must first establish that the services rendered or the advice
given were below "the range of competence demanded of attorneys in criminal cases." Baxter v.
Rose, 534 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies "actually had
an adverse effect on the defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the


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petitioner fail to establish either factor, he is not entitled to relief. Our supreme court described the
standard of review as follows:

        Because a [petitioner] must establish both prongs of the test, a failure to prove either
        deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
        assistance claim. Indeed, a court need not address the components in any particular
        order or even address both if the [petitioner] makes an insufficient showing of one
        component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). As to guilty pleas, the petitioner must establish
a reasonable probability that, but for the errors of his counsel, he would not have entered the guilty
pleas and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

        On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911
S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation for the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

         In Boykin v. Alabama, 395 U.S. 238 (1969), the United States Supreme Court ruled that
defendants should be advised of certain of their constitutional rights before entering pleas of guilt.
Included among those are admonitions regarding the right against self-incrimination, the right to
confront witnesses, and the right to trial by jury. Id. at 243. “[T]he core requirement of Boykin is
‘that no guilty plea be accepted without an affirmative showing that it was intelligent and
voluntary.’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Fontaine v. United
States, 526 F.2d 514, 516 (6th Cir. 1975)). The plea must represent a "voluntary and intelligent
choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400
U.S. 25 (1970). If the proof establishes that the petitioner was aware of his constitutional rights, he
is entitled to no relief. Johnson v. State, 834 S.W.2d 922, 926 (Tenn. 1992). A plea which is the
product of "ignorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats"
is not voluntary. Boykin, 395 U.S. at 242-43.

       In determining whether a defendant knowingly and voluntarily entered into a guilty plea, this
court must consider "all of the relevant circumstances that existed when the plea was entered." State
v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). In Blankenship, our supreme court
determined that the various factors included the following:

        the relative intelligence of the defendant; the degree of his familiarity with criminal
        proceedings; whether he was represented by competent counsel and had the
        opportunity to confer with counsel about the options available to him; the extent of
        advice from counsel and the court concerning the charges against him; and the



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       reasons for his decision to plead guilty, including a desire to avoid a greater penalty
       that might result from a jury trial.

858 S.W.2d at 904.

        Initially, the evidence does not preponderate against the post-conviction court's finding that
trial counsel was not deficient for having failed to request a mental evaluation. While the petitioner
claimed a diminished capacity, the testimony of the witnesses for the state suggested otherwise.
Moreover, the petitioner failed to produce any evidence to establish that there was a factual basis to
support a mental evaluation. In order to establish any basis for relief, the petitioner must do so. See
Lisa Putman Mencer v. State, M2002-00715-CCA-R3-CD (Tenn. Crim. App., at Nashville, May 6,
2003).

        The petitioner has also failed to establish that his counsel was ineffective by failing to fully
advise him of his alternative courses of action, including a strategy that he was simply an accessory
to the crime. The forensic evidence that the petitioner was involved in the abduction of the victim
negated any potential defense that the petitioner was involved in the crimes only after their
commission. The record also establishes that Attorney Black went over the plea agreement with the
petitioner "word for word." Both Attorney Black and Attorney Lanzo explained to the petitioner
that he faced the possibility of a sentence of life without parole or even the death penalty, if sought
by the state. Further, before accepting the plea, the petitioner was advised by the trial court of the
minimum and maximum term for each offense.

        Finally, the evidence supports the post-conviction court's conclusion that the petitioner was
properly advised by his counsel as to the consequences of his guilty plea. The record establishes that
Attorney Black made every effort to ensure the petitioner understood his right to trial, the nature of
the charges against him, and the potential for punishment. The totality of the circumstances suggests
that the plea agreement was knowingly and voluntarily entered into and that any medication taken
by the petitioner was not a factor. The petitioner was familiar with criminal proceedings, had
competent counsel, received ample advice, and avoided a potentially greater penalty.

       Accordingly, the judgment is affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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