         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 7, 2011

             RALPH PAUL MARCRUM v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Davidson County
                     No. 2007-C-2264    Cheryl Blackburn, Judge


                    No. M2011-00218-CCA-R3-PC - Filed July 3, 2012


The Petitioner, Ralph Paul Marcrum,1 appeals as of right from the Davidson County Criminal
Court’s denial of his petition for post-conviction relief challenging his guilty plea to one
count of aggravated burglary. The Petitioner contends that his guilty plea was not knowingly
and voluntarily entered because he received ineffective assistance from his trial counsel.
Following our review, we affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and R OBERT W. W EDEMEYER, JJ., joined.

James O. Martin, III, Nashville, Tennessee (on appeal); and Kristen Vanderkooi, Nashville,
Tennessee (at post-conviction hearing), for the appellant, Ralph Paul Marcrum.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Victor S. Johnson, District Attorney General; and Bret Thomas Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

       In 2007, the Petitioner was indicted for one count of aggravated burglary, a Class C
felony, and one count of theft of property valued at $1,000 or more but less than $10,000, a
Class D felony. See Tenn. Code Ann. §§ 39-14-103, -105(3), -403. On February 11, 2008,
the Petitioner’s case was scheduled for a jury trial. On that day, however, the Petitioner


1
 The Petitioner is referred to as Ralph Paul Marcrum, Ralph Paul Marcrum, Jr., Ralph P. Marcrum, and
Ralph Marcrum in the record. This court will refer to the Petitioner by the name listed on his original
petition for post-conviction relief.
entered into a plea agreement with the State. The Petitioner agreed to plead guilty to the
aggravated burglary charge and receive a 15-year sentence as a Range III, persistent offender.
The State agreed to dismiss the theft of property charge.

       The trial court held a plea submission hearing during which it explained to the
Petitioner his rights. The Petitioner stated under oath that he understood his rights and that
he was not “having any trouble understanding what [he was] doing.” The trial court
explained to the Petitioner the charges and possible penalties he faced. The trial court also
explained that if convicted of both charges, the Petitioner “could have gotten consecutive
sentences,” for an effective 27-year sentence. The Petitioner stated that he understood this.
The Petitioner also stated that he understood the plea agreement, that he had “thoroughly
discussed” his case with trial counsel, that trial counsel had reviewed the plea agreement with
him, and that he was satisfied with trial counsel’s representation.

        At the plea submission hearing, the State presented the following factual basis for the
Petitioner’s plea. On May 23, 2007, Sandra Moses called the police after observing the
Petitioner and a co-defendant break into her neighbor’s home. Officers of the Metropolitan
Nashville Police Department arrived on the scene and observed the co-defendant placing “a
wrapped blanket into the trunk of a Dodge Intrepid.” One of the officers went into the yard
of the victim’s home and saw the Petitioner “coming from behind the victim’s house with a
shovel in his hands.” When the Petitioner was patted down, “two prescription bottles
[belonging to] the victim were found on the [Petitioner’s] person.” The back door of the
victim’s house “appeared to have been broken open or pried open in order to get into the
residence.” The officers found “stolen items” wrapped in the blanket placed into the Dodge
Intrepid by the co-defendant. The Petitioner stated under oath that he had heard the facts as
stated by the prosecutor and that they were “generally true.” The trial court accepted the
Petitioner’s plea and sentenced him to 15 years with a release eligibility of 45 percent.

        On February 3, 2008, the Petitioner filed his original, pro se petition for post-
conviction relief. The Petitioner checked “[d]enial of effective assistance of counsel” and
“[n]ewly discovered evidence” on the form as grounds for post-conviction relief. However,
the Petitioner failed to include a factual basis for his allegations. On February 20, 2008, the
post-conviction court issued an order that the Petitioner supplement his petition with a factual
basis for his claims within 15 days. On March 11, 2008, the Petitioner filed an amended
petition which added that his “guilty plea [was] involuntarily entered without understanding
of the nature and consequences of the plea” as an additional ground for post-conviction
relief. The Petitioner asserted various alleged errors by trial counsel in his preparation for
trial and plea negotiations as the factual basis for the post-conviction petition. The post-
conviction court concluded that the Petitioner’s amended petition “may” have presented a
colorable claim and appointed counsel. On December 22, 2009, the Petitioner’s counsel filed

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a second amended petition for post-conviction relief reiterating the claims made in his pro
se petitions. The post-conviction court held an evidentiary hearing on March 3, 2010.

        At the post-conviction hearing, the Petitioner testified that prior to his preliminary
hearing the State had offered him “[s]ix years at [30] percent.” The Petitioner testified that
he initially rejected the offer because he had been told by his ex-girlfriend that Ms. Moses,
who was his ex-girlfriend’s aunt, “had made a mistake and wasn’t coming to court to testify
against [him].” However, trial counsel informed the Petitioner that Ms. Moses was present
and ready to testify against him. According to the Petitioner, trial counsel advised him that
he needed “to go ahead and get on [the] record her testimony” so he would have “something
to prepare [his] defense around.” The Petitioner testified that based upon trial counsel’s
advise he declined the offer and went through with the preliminary hearing, but he “was
under the assumption that [he] still had the opportunity to take the six-year sentence after
[the] hearing.”

       Following the preliminary hearing, the Petitioner “received an offer of [13] years at
[45] percent.” The Petitioner testified that he rejected this offer because he thought that his
“case was strong” and “that was an excessive amount of time to give [him] for something
[he] didn’t do.” The Petitioner further testified that at the time he rejected the 13-year offer,
he “was super confused and didn’t have anybody at all to confide in or to speak with to get
anything straightened out.” According to the Petitioner, the State offered him a 10-year
sentence shortly after he rejected the 13-year offer. The Petitioner testified that at some
point, he “decided that it probably would be in [his] best interest just to take the ten-year
sentence that was offered to [him].” However, the Petitioner’s arrest in this matter
constituted a violation of the terms of his probation for a federal sentence. The Petitioner
explained that he did not want to accept the State’s ten-year offer until his Federal Public
Defender found out if he could serve his sentence for the federal probation violation
concurrently with his sentence in this case.

        The Petitioner testified that “within the month before” his trial date, his Federal Public
Defender informed him that he could serve his sentence for the federal probation violation
concurrently with his sentence in this case. On the day his case was scheduled to be tried,
the Petitioner told trial counsel that he wanted to accept the State’s offer of ten years. The
Petitioner testified that his trial counsel told him “that the District Attorney decided that the
ten years was off the table because [he] dillydallied or something to that effect.” The
Petitioner further testified that he felt trial counsel “lost” the ten-year offer for him. The
Petitioner explained that “two or three times” before his trial date he told trial counsel that
he was “more likely going to take this ten,” but he was “trying to get the feds on page with
it” so he would not “have to do an exorbitant amount of time.” The Petitioner testified that



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he thought trial counsel “was supposed to speak to the District Attorney and let him know
[he] wasn’t just dragging [his] feet to be complicated.”

        The Petitioner also testified that when he accepted the plea agreement he was under
the impression that the maximum sentence he faced at trial was 21 years, 15 years for the
aggravated burglary and 6 years for the theft of property. The Petitioner further testified that
he would not “have pled to [15] years as a Range [III] offender . . . if [he] knew that [15
years] was the maximum [he] might get at trial.” However, the Petitioner failed to explain
why he now thought that he would have only faced a maximum sentence of 15 years had he
gone to trial. Upon further questioning by the post-conviction court, the Petitioner admitted
that the plea agreement form he read and signed clearly stated that he faced a maximum 27-
year sentence if he was convicted of both charges. The Petitioner insisted that trial counsel
had told him he faced a maximum 21-year sentence and that “[e]vidently [he] didn’t read [the
plea agreement] too closely.”

        With regards to the theft charge, the Petitioner noted that he “saw two listings” of
stolen items. One list placed the value of the stolen items under $1,000. The other list also
included “a $250 price of a damaged door” which increased the total value over $1,000. The
Petitioner testified that it was his understanding that the door “was damaged [during] the
breaking and entering part of the burglary.” However, the Petitioner testified that he “never
actually saw just up close really how the door was damaged.” The Petitioner and his post-
conviction counsel mistakenly believed the theft charge would only be “a felony with the
addition of the monetary value of the door that was broken.” However, theft of property
valued at greater than $500 but less than $1,000 is a Class E felony. See Tenn. Code Ann.
§ 40-14-105(2). On cross-examination, the Petitioner stated that he did not know that he
faced a maximum six-year sentence if convicted of theft of property valued at greater than
$500 but less than $1,000.

        The Petitioner also alleged that trial counsel did not properly prepare for trial and was
not ready to proceed on February 11, 2008. At the evidentiary hearing, the Petitioner focused
on the fact that trial counsel failed to get a photograph showing the view from the kitchen
window of the house next to the victim’s home. The Petitioner explained that Ms. Moses
told the police officers that she had been washing dishes in the kitchen when she saw the
Petitioner and his co-defendant break in through the the victim’s back door. However, the
Petitioner testified that he was familiar with the house Ms. Moses was in because it was his
ex-girlfriend’s grandmother’s house, and he “was almost certain . . . there was not a vantage
to see that back door from that window.” The Petitioner also noted that Ms. Moses testified
during the preliminary hearing that she saw the Petitioner place the stolen goods into the car
instead of the co-defendant, as described in the police report. The Petitioner testified that he
thought Ms. Moses was “fabricating her story” based upon this contradiction with the police

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report and his belief about the view from the kitchen window. The Petitioner testified that
he “begged and pleaded” with trial counsel for a photograph showing the view from the
window Ms. Moses testified she was standing at, but he felt trial counsel did not make “any
efforts [] to have this photo taken because it was never taken.” The Petitioner did not
introduce any photographs or witnesses to describe the view from the window at issue during
the post-conviction hearing.

        The Petitioner testified that he sent repeated letters to the District Public Defender and
the Board of Professional Responsibility requesting to have a different attorney appointed
to his case. The Petitioner explained that he did not like trial counsel because trial counsel
constantly pushed “the plea bargain instead of . . . showing any type of belief in [him] and
wanting to really investigate this and do this and do [that] and get to the bottom of the whole
thing.” The Petitioner specifically complained that he “never received” a copy of the
preliminary hearing transcript from trial counsel. However, upon questioning by the post-
conviction court the Petitioner admitted that he had received a copy of the preliminary
hearing transcript before his scheduled trial date. The Petitioner argued that this was
ineffective because he wanted more time to review the transcript and felt he was not ready
for trial. The Petitioner also testified that he believed trial counsel had not interviewed his
ex-girlfriend who he thought “might exonerate [him] from the charges.” The Petitioner
further testified that he thought trial counsel “had not fully reviewed the police witness
reports that would have provided the leverage . . . for a lower plea bargain.” Based upon the
foregoing, the Petitioner concluded that trial counsel was not ready for trial on February 11,
2008.

          On cross-examination, the Petitioner stated that he told the trial court at the plea
submission hearing that he was satisfied with trial counsel’s performance because he was
“really confused,” “in shock,” and did not “know what to do.” The Petitioner explained that
despite the fact that he had approximately 20 felony convictions, he was confused at the plea
submission hearing because it had “been a long time since [he had] taken a plea bargain in
[s]tate [c]ourt.” The Petitioner further elaborated that he actually did not remember being
asked if he was satisfied with trial counsel’s performance because there were “blanks” in his
memory due to the fact that he “was stunned” and “was in a zone” at the plea submission
hearing. The Petitioner claimed on cross-examination that trial counsel never advised him
that the State could retract a plea agreement offer at any time. However, the Petitioner
admitted that he made the ultimate decision every time he decided to reject or accept an offer.

       Upon further questioning by the post-conviction court, the Petitioner stated that he
needed a photograph of the view from the window Ms. Moses claimed to have seen him from
in order to “prove that she fabricated her story.” When asked by the post-conviction court
why the fact that Ms. Moses fabricated her story would matter when the Petitioner was found

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in the victim’s backyard with prescription drugs belonging to the victim, the Petitioner stated
that he planned on testifying at trial “to explain how those pills got in [his] pocket,” despite
the fact that he had approximately 20 prior felony convictions. The Petitioner also admitted
to the post-conviction court that he was aware trial counsel had “requested a transportation
order” for his ex-girlfriend to testify at trial. Despite the fact that trial counsel had his
investigator interview the Petitioner’s ex-girlfriend and had her present to testify at trial, the
Petitioner complained that trial counsel was not ready for trial because he had requested that
she be interviewed “like way, way, way earlier than that.”

       Trial counsel testified that he was licensed to practice law in 1976 and that he was
currently employed by the District Public Defender’s office in Davidson County. Trial
counsel presented “a little summary of the history of the plea negotiations in this case” to the
post-conviction court. According to trial counsel, the State’s first offer was made prior to
the preliminary hearing and was for six years. That offer was “conditional upon acceptance
by the co-defendant.” Trial counsel testified that he could not remember why the six-year
offer fell through. However, trial counsel noted that at the time the offer was made the
prosecutor thought the Petitioner only had 15 prior felony convictions. Trial counsel testified
that he was sure that the State would have rescinded the six-year offer once it learned that
the Petitioner actually had approximately 20 felony convictions.

        According to trial counsel’s summary of the negotiations, the State then offered the
Petitioner a 13-year sentence. The Petitioner rejected that offer and presented a counter-offer
of eight years. The State presented an offer of ten years to the Petitioner, and the Petitioner
refused to accept anything over eight years. The Petitioner rejected the State’s ten-year offer
at least three times prior to his scheduled trial date. The Friday before his scheduled trial
date, the Petitioner made an offer of 12 years, which the State refused. Since the Petitioner
had made an offer of 12 years days before the scheduled trial date, trial counsel testified that
he did not think the Petitioner expected the 10-year offer to “be on the table” on February 11,
2008. Trial counsel testified that it was “customary” for the State to withdraw any offers
made once the case was set for trial. Trial counsel admitted that he did not “specifically
recall” informing the Petitioner about that fact, but trial counsel “normally” informed his
clients about the State’s ability to withdraw offers. Trial counsel recalled that the prosecutor
kept the ten-year offer “on the table,” but the prosecutor “became annoyed” by the Petitioner
repeatedly declining that offer.

       According to trial counsel, the Petitioner continued to reject the State’s offer of ten
years because the Petitioner “wanted to resolve both state charges and federal charges in
some way that was favorable to him,” but they had “a great deal of difficulty in doing that.”
Trial counsel testified that he felt that he was prepared for trial on February 11, 2008.
However, on the day the case was scheduled for trial, the State made an offer of 15 years.

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Trial counsel testified that another case was going to be “taken up” that day so the prosecutor
indicated that the Petitioner “could plead on that date to his offer of [15] years or the trial
would begin three weeks later on March 3.” Trial counsel stated that the Petitioner accepted
the offer because he “had some commitments to deal with federal concurrent sentencing with
the federal authorities.” Trial counsel testified that the Petitioner seemed “knowledgeable
about the [guilty plea] process.” Trial counsel also testified that he felt that “the decision that
[the Petitioner] made that day was his decision and that was a decision that he made knowing
all of the consequences and all of the information that he could possibly know.”

        With regards to the photograph the Petitioner wanted to be used to impeach Ms.
Moses, trial counsel testified that he had his investigator take photographs of the victim’s
house and the house Ms. Moses was in. These photographs showed where the kitchen
window was located in relation to the victim’s house. Trial counsel testified that he thought
these photographs gave “a fairly good perspective” on what could be seen from the window
and that he had color copies made of the photographs to be used as exhibits at trial.
However, trial counsel did not attempt to have a photograph taken from the kitchen window
because the owners had posted “no trespassing” signs on the property and the family that
owned the house was “hostile with [the Petitioner].” While trial counsel thought that a
photograph taken from the kitchen window “would have been helpful perhaps in impeaching
the testimony of [Ms. Moses],” he did not think “it would have been dispositive of the issue”
because the Petitioner was found by police in the victim’s backyard with prescription drugs
belonging to the victim on his person. According to trial counsel, the Petitioner planned to
testify at trial to explain that “he had picked [the victim’s prescription] up off the driveway,
recognized it as being prescription medication, [and] knowing it shouldn’t have been laying
on the driveway,” he took the pills because it was “a public safety hazard.”

       On December 20, 2010, the post-conviction court issued a detailed order denying the
Petitioner post-conviction relief. The post-conviction court accredited trial counsel’s
testimony over the Petitioner’s testimony. The post-conviction court concluded that the
Petitioner failed to establish by clear and convincing evidence that his guilty plea was not
knowingly and voluntarily entered. The post-conviction court noted that “the guilty plea
transcript belies [the] Petitioner’s claims” because the Petitioner stated under oath that he had
thoroughly discussed his case with trial counsel and that he was satisfied with trial counsel’s
performance. The post-conviction court also concluded that trial counsel was not ineffective
during the plea negotiation process. The post-conviction court noted that the Petitioner’s
primary goal during the negotiation process was to ensure that his federal and state sentence
could be served concurrently. The post-conviction court concluded that because “this desired
result was achieved,” the Petitioner had not “established [that] he [had] suffered any
prejudice.”



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        With regards to the Petitioner’s claims that trial counsel was not prepared for trial, the
post-conviction court stated that the Petitioner failed “to introduce any photographs” or “any
witnesses [to] testify about the vantage point of the window at issue.” The post-conviction
court further stated that it would not speculate on what the evidence might have shown and
concluded that the Petitioner failed to establish prejudice by clear and convincing evidence
on this issue. As for the Petitioner’s claims regarding his ex-girlfriend, the post-conviction
court concluded that this issue was without merit because trial counsel had subpoenaed the
Petitioner’s ex-girlfriend to testify at trial. Based upon the foregoing, the post-conviction
court concluded that the Petitioner failed to show that trial counsel’s actions forced him to
involuntarily enter his guilty plea.

                                          ANALYSIS

       The Petitioner contends that his guilty plea was not knowingly and voluntarily entered
due to the ineffective assistance of his trial counsel. On appeal, the Petitioner argues that
“due to trial counsel’s failure to adequately prepare a defense, [the Petitioner] felt he had no
choice but to plead guilty on the morning of trial rather than risk a greater sentence.” The
Petitioner’s argument in his brief centers on trial counsel’s failure to obtain a photograph
depicting the view from the window Ms. Moses claimed to have been looking out. The
Petitioner concludes that but for trial counsel’s alleged deficient performance, he would not
have pled guilty. The State responds that the Petitioner failed to establish by clear and
convincing evidence that his guilty plea was involuntarily and unknowingly entered or that
he suffered any prejudice by trial counsel’s actions.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
On appeal, we are bound by the trial court’s findings of fact unless we conclude that the
evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d 450,
456 (Tenn. 2001). Because they relate to mixed questions of law and fact, we review the
post-conviction court’s conclusions as to whether counsel’s performance was deficient and
whether that deficiency was prejudicial under a de novo standard with no presumption of
correctness. Id. at 457.

       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). In other words, a showing that counsel’s performance falls below a reasonable
standard is not enough; rather, the petitioner must also show that but for the substandard

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performance, “the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989). In the context of a guilty plea, like the present case, the effective assistance of
counsel is relevant only to the extent that it affects the voluntariness of the plea. Therefore,
to satisfy the second prong of Strickland, the petitioner must show that “there is a reasonable
probability that, but for counsel’s errors, he would not have [pled] guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Walton v. State,
966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        There is no evidence in the record to suggest that trial counsel was ineffective in his
representation of the Petitioner. Trial counsel testified that he was prepared for trial, that he
had photographs of the victim’s and neighbor’s houses to use in an attempt to impeach Ms.
Moses’s testimony, and that he had subpoenaed the Petitioner’s ex-girlfriend to testify at
trial. To the extent that the Petitioner complained that trial counsel failed to interview or
properly prepare for his ex-girlfriend’s testimony, the Petitioner failed to present her
testimony at the post-conviction hearing, thereby waiving the issue. See Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990). Likewise, the Petitioner failed to present any
evidence or witnesses, besides himself, that would establish that Ms. Moses could not see the
victim’s back door from the kitchen window of the house she was in. Trial counsel
explained that he was not able to obtain such a photograph because the owners of the house
were hostile towards the Petitioner and had posted “no trespassing” signs. Furthermore, the
Petitioner was discovered by the police coming from the victim’s backyard with a shovel and
prescription drugs belonging to the victim on his person. As such, we conclude that trial
counsel’s actions did not amount to ineffective assistance of counsel.

        The Petitioner admitted that he made every decision to decline or accept the State’s
plea agreement offers. The Petitioner repeatedly refused the State’s offer of ten years in
order to ensure that his sentence for the federal probation violation could run concurrently
to his sentence in this case. Trial counsel’s testimony and his notes belie the Petitioner’s
assertion that on February 11, 2008, he told the State that he was prepared to accept the ten-
year offer. Instead, the Petitioner had made an offer to the State for a 12-year sentence only
a few days earlier. Furthermore, the Petitioner informed the trial court at the plea submission
hearing that he was voluntarily pleading guilty, that he had reviewed the plea agreement with
trial counsel, and that he was satisfied with trial counsel’s performance. Accordingly, we
conclude that the Petitioner failed to establish by clear and convincing evidence that his
guilty plea was not knowingly and voluntarily entered.

                                       CONCLUSION



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       Upon consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.




                                                 ________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




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