            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           FEBRUARY 1997 SESSION
                                                       FILED
                                                            April 7, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
RONALD COLLIER,                    )
                                   )    C.C.A. NO. 02C01-9608-CC-00284
            Appellant,             )
                                   )    LAUDERDALE COUNTY
VS.                                )
                                   )    HON. JON KERRY BLACKWOOD,
STATE OF TENNESSEE,                )    JUDGE
                                   )
            Appellee.              )    (Post-Conviction)




FOR THE APPELLANT:                      FOR THE APPELLEE:


TROY L. BROOKS                          CHARLES W. BURSON
127 S. Third St.                        Attorney General & Reporter
Clarksville, TN 37040
   (On appeal)                          DEBORAH A. TULLIS
                                        Asst. Attorney General
                                        450 James Robertson Pkwy.
D. MICHAEL DUNAVANT                     Nashville, TN 37243-0493
Bank of Ripley Building,
P.O. Box 150                            ELIZABETH T. RICE
Ripley, TN 38063                        District Attorney General
   (At hearing)
                                        MARK DAVIDSON
                                        Asst. District Attorney General
                                        Criminal Justice Complex
                                        Ripley, TN 38063




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge

                                OPINION
              The petitioner was indicted on charges of especially aggravated kidnapping,

especially aggravated robbery, escape, aggravated assault, and theft. On October 15,

1993, without the benefit of a plea agreement, the petitioner pled guilty to especially

aggravated kidnapping, especially aggravated robbery, and escape. The State dismissed

the remaining charges. After a hearing, the trial court sentenced the petitioner to thirty

years for the especially aggravated kidnapping, thirty-seven years for the especially

aggravated robbery, and four years for the escape.          The first two sentences are

concurrent, but the four year sentence is consecutive.



              In September 1995, the petitioner filed a pro se petition for post-conviction

relief. Counsel was appointed and three amended petitions were filed. After a hearing,

his claim for relief was denied. It is from this denial that he now appeals. The petitioner

first claims that his due process rights were violated by the multi-count indictment. He

further claims that he received ineffective assistance of counsel in that his counsel failed

to file a written motion to dismiss a portion of the indictment and that his counsel failed

to adequately investigate his case. After a review of the record, we find no merit to either

of these claims. Accordingly, we affirm the judgment of the court below.



              In May 1993, the petitioner was an inmate at Fort Pillow Minimum Security

Annex. He had been assigned to work as a parts stock clerk in the nearby high security

annex under the supervision of a prison employee. On May 14, the defendant struck his

supervisor approximately eight times with a pipe wrench. He then ordered the supervisor

to surrender his car keys and his clothing. The supervisor did as instructed, and the

petitioner then tied the supervisor’s hands and feet and left him bleeding and badly

injured. The supervisor was able to free his hands but could not remove the restraints


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on his feet. He hopped outside and yelled for help. Prison guards answered his call for

help and alerted prison officials of the petitioner’s escape.             The petitioner was

apprehended shortly thereafter.



               As his first issue, the petitioner argues that his due process rights were

violated by the multi-count indictment. He argues that under State v. Anthony, 817

S.W.2d 299 (Tenn. 1991), he should not have been indicted for both especially

aggravated kidnapping and especially aggravated robbery because the especially

aggravated kidnapping was “essentially incidental” to the especially aggravated robbery.

Thus, he alleges, to convict him of both counts is a violation of his due process rights.



               However, because he pled guilty to the charges, he cannot now directly

attack the indictment in his request for post-conviction relief. “[A] guilty plea represents

a break in the chain of events which has preceded it in the criminal process. When a

criminal defendant has solemnly admitted in open court that he is in fact guilty of the

offense with which he is charged, he may not thereafter raise independent claims relating

to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”

Tollett v. Henderson, 411 U.S. 258, 267 (1973). A plea that is entered voluntarily,

understandingly and intelligently constitutes a waiver of all procedural and constitutional

defects in the proceedings that may have occurred prior to the entry of the plea. State

v. Turner, 919 S.W.2d 346, 354 (Tenn. Crim. App. 1995). Thus, the petitioner has

waived this issue and he cannot now complain that the indictment was defective.



               The petitioner can, however, complain that his counsel was ineffective for

not challenging the indictment and for not seeking to have one count dismissed under

Anthony. This is essentially what the petitioner complains about in his second issue. He



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claims that his counsel was ineffective because she failed to file a motion to dismiss the

especially aggravated kidnapping charge.



              In reviewing the petitioner’s Sixth Amendment claim of ineffective

assistance of counsel, this Court must determine whether the advice given or services

rendered by the attorney are within the range of competence demanded of attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a

claim of ineffective counsel, a petitioner “must show that counsel’s representation fell

below an objective standard of reasonableness” and that this performance prejudiced the

defense. There must be a reasonable probability that but for counsel’s error the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).



              To satisfy the requirement of prejudice, the petitioner must demonstrate a

reasonable probability that, but for counsel’s errors, he would not have pled guilty and

would have insisted on going to trial. See Hill v. Lockart, 474 U.S. 52, 59 (1985);

Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).



              At his post-conviction hearing, the petitioner testified that he never denied

that the incident at the prison had occurred. He simply felt that he should not have been

charged with multiple counts for the single episode. He further testified that he was

aware of the Anthony doctrine and that he and his counsel had discussed the possibility

of dismissing the especially aggravated kidnapping count. He also testified that he

understood what it meant to plead guilty and that it had been his decision not to go to

trial.




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              The petitioner’s trial counsel, Julie Pillow, testified at the post-conviction

hearing that she and the petitioner had discussed the number of charges on several

occasions. She testified that she had planned to make the Anthony argument on the day

of the trial. Ultimately, the petitioner decided to plead guilty on the day for which the trial

was set. Ms. Pillow admitted that her failure to file a written motion may have been an

oversight on her part. However, she thought the trial judge would only rule on such a

motion after hearing the proof of the case and that waiting to file the motion was not

inappropriate. Ms. Pillow also testified that on the day the petitioner entered his plea, she

attempted to work out the kidnapping and robbery charges, but that she was

unsuccessful. Additionally, she testified that she and the State had agreed to an earlier

plea agreement whereby the petitioner would plead guilty to especially aggravated

robbery and escape only. However, the trial court judge refused to accept such a plea.



              In its findings of fact, the post-conviction court concluded that Ms. Pillow

and the petitioner had discussed Anthony and its implications on numerous occasions

and that Ms. Pillow was prepared to argue at trial that the especially aggravated

kidnapping charge should be dismissed. The court then concluded that Ms. Pillow’s

failure to file an Anthony motion was not prejudicial because the especially aggravated

kidnapping charge would not have been dismissed. The court found that “the kidnapping

did not begin until after the robbery victim had been beaten and subdued. Thereafter,

the petitioner tied up the victim in order to facilitate his escape.”



              In post-conviction relief proceedings, the factual findings of the trial court

in hearings “are conclusive on appeal unless the evidence preponderates against the

judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). We see no

reason to disturb the court’s findings of fact. Furthermore, we accept the court’s



                                              5
conclusion of law after a careful application of the principles of Anthony to the facts of

this case.



               In Anthony, two criminal cases were consolidated in which each defendant

had been convicted of armed robbery and aggravated kidnapping as a result of a single

incident.    The Tennessee Supreme Court addressed the issue of whether either

defendant’s due process rights had been violated when he was convicted of these two

crimes. The Court formulated the following test to determine whether each conviction

can stand on its own:


               [W]hether the confinement, movement, or detention is
               essentially incidental to the accompanying felony and is not,
               therefore, sufficient to support a separate conviction for
               kidnapping, or whether it is significant enough, in and of
               itself, to warrant independent prosecution and is, therefore,
               sufficient to support such a conviction. . . . [O]ne method of
               resolving this question is to ask whether the defendant’s
               conduct ‘substantially increased [the] risk of harm over and
               above that necessarily present in the crime of robbery itself.’


817 S.W.2d at 306 (citation omitted). In Anthony, the Court found that the kidnapping

convictions of the two defendants could not stand on their own because none of the

victims were subjected to any substantially increased risk of harm in addition to that harm

which was necessarily present in the crime of robbery itself. 817 S.W.2d at 307. None

of the victims was in any way harmed. In one case, the victims were placed in a

restroom, and in the other case, one group of victims was held inside a restaurant while

another group was detained behind the restaurant. None of these detentions increased

the victims’ risk of harm beyond the robbery itself.



               In the present case, the petitioner repeatedly struck his supervisor on the

head with a pipe wrench. The petitioner then stole the supervisor’s clothes and car keys



                                             6
before tying the supervisor’s hands and feet. The petitioner left the supervisor bleeding

from wounds on his head and ear. Because of his injuries, the supervisor later received

sixty-four stitches. The fact that this victim’s hands and feet were bound certainly

substantially increased the risk of harm in that he would be unable to seek assistance.

Thus, we conclude that the petitioner’s conduct substantially increased the risk to the

supervisor beyond that risk necessarily present in the robbery itself. See State v.

Rolland, 861 S.W.2d 840 (Tenn. Crim. App. 1992)(finding a substantial increase in risk

of harm where victims were locked in restaurant freezer). Independent prosecution for

especially aggravated kidnapping is warranted in this case.



              It is unnecessary for us to determine whether Ms. Pillow’s failure to file a

motion to dismiss the especially aggravated kidnapping constituted ineffective assistance

of counsel since the petitioner obviously cannot prove the prejudice prong of the

Strickland test. The petitioner was not prejudiced by his counsel’s failure to file a motion

because such a motion would not have been successful. This issue is without merit.



              As the petitioner’s final argument, he contends that his trial counsel was

ineffective because she failed to adequately investigate his case. Specifically, he alleges

that she failed to interview a witness who would have testified that the petitioner was

under duress when he escaped from the prison. At the post-conviction hearing, the

petitioner testified that he had told Ms. Pillow about a prison disciplinary hearing in which

he had testified on behalf of a fellow inmate. As a result of this testimony, the petitioner

said he had been harassed in the prison and had been assigned tasks different from his

normal work assignments.



              William Crockett, the inmate that was involved in the disciplinary hearing,



                                             7
testified at the petitioner’s post-conviction hearing that Ms. Pillow never contacted him

about testifying if the petitioner went to trial. He further testified that if she had, he would

have told her about the problems he and the petitioner had had in regard to the safety

of their work at the prison and his resulting disciplinary hearing. He further testified that

he and the petitioner had been told to do their work or “suffer the consequences.”



               Ms. Pillow testified that she and the petitioner had discussed Crockett and

that she had determined that his testimony would not support a defense of duress. She

testified that she based this decision on the facts related to her by the petitioner, who

never indicated that he felt he was in danger of imminent serious bodily injury if he

remained in prison.



               The post-conviction court found that Ms. Pillow correctly determined that

a defense of duress could not be supported by Crockett’s testimony. Thus, the fact that

she did not interview him was not ineffective assistance of counsel. We agree with this

conclusion. Crockett’s testimony would have added very little to the petitioner’s case.

We cannot conclude that the petitioner was in any way prejudiced by the fact that

Crockett was not interviewed. This issue is without merit.



               The petitioner’s complaints that his right to due process and his right to

effective assistance of counsel were violated are without merit. The ruling of the court

below is affirmed.




                                                    JOHN H. PEAY, Judge



CONCUR:


                                               8
JOE B. JONES, Judge




JOE G. RILEY, Judge




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