         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 4, 2003

          AUSTIN EUGENE LINEBACK v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Tipton County
                       Nos. 4129 and 4264    Joe H. Walker, III, Judge



                     No. W2002-01938-CCA-R3-PC - Filed April 8, 2003


Through a 2001 Tipton County Circuit Court post-conviction petition, Austin Eugene Lineback
challenges his 2001 convictions in that court of statutory rape and especially aggravated sexual
exploitation of a minor. The convictions resulted from his guilty pleas, which the petitioner now
alleges are involuntary and unknowing due to ineffective assistance of counsel. Following an
evidentiary hearing, the lower court denied post-conviction relief, and the petitioner now appeals.
Upon our review of the record, the parties’ briefs, and the applicable law, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID H. WELLES, JJ., joined.

Gary F. Antrican, Somerville, Tennessee, for the Appellant, Austin Eugene Lineback.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Walt Freeland, Assistant District Attorney General,
for the Appellee, State of Tennessee.


                                            OPINION

              The petitioner, who apparently operated a teen modeling agency, was originally
charged with the rape of a fifteen-year-old boy based upon the boy performing fellatio. The
petitioner photographed the boy performing the act. Apparently, the petitioner entered the
photograph into his computer, and this action resulted in federal charges. The petitioner and his
family engaged counsel to defend him against both the state and federal charges.

              As part of an August 17, 2001 plea agreement, the petitioner consented to a charge
by information of especially aggravated sexual exploitation of a minor, based upon the petitioner
photographing the act of fellatio. The state agreed to reduce the rape charge to statutory rape, and
the petitioner agreed to concurrent sentences of two years for statutory rape and ten years for the
exploitation conviction. The parties agreed that the petitioner would serve the effective ten-year
sentence at 30 percent as a Range I, standard offender. Finally, the plea agreement acknowledged
a disposition of the federal cases, in which the petitioner pleaded guilty prior to pleading in the
Tipton County cases. He received an effective federal sentence of approximately ten years, and the
Tipton County disposition provided that the state sentences would be served concurrently with the
federal sentences.

                The post-conviction evidentiary hearing consisted of testimony given by counsel and
the petitioner, and it is difficult to imagine more divergent accounts of the attorney-client
relationship leading up to the guilty pleas in federal court and later in Tipton County.

               The petitioner testified in the hearing that his counsel failed to consult with and advise
him and failed to proceed with a preliminary hearing. He testified that, if he had been afforded a
preliminary hearing, he would have understood the facts of the case.

                  The petitioner assailed counsel for failing to pursue a motion to suppress evidence
obtained by the police during a warrantless search of the petitioner’s residence. Even though the
search was based upon a written consent signed by the petitioner, the petitioner complained that,
when he signed the consent, he had already been arrested without probable cause or a warrant. The
petitioner testified that, when he called counsel to inquire about progress on the motion to suppress,
counsel told him that the motion had been heard in the petitioner’s absence and denied.

                 The petitioner claimed that counsel failed to interview witnesses and that even though
the defense investigator interviewed witnesses, the interviews belatedly occured seven months after
the petitioner’s arrest when the news coverage had already poisoned the attitudes of the witnesses
against the petitioner. The petitioner testified that counsel refused his requests for copies of motions,
other court documents, and statements of prosecution witnesses.

               The petitioner claimed that when he was transported to Tipton County for court on
August 17, 2001, he thought he was going to trial. He testified that the new charge of especially
aggravated sexual exploitation of a minor was a surprise to him and that counsel did not explain the
nature and elements of the charge. He testified that he was confused by the new charge and that, in
the absence of adequate advice and counsel, he was intimidated into pleading guilty. He testified
that counsel did not explain that he would have to waive his right to a grand jury determination of
probable cause. He testified that counsel read the sentencing ranges to him fifteen minutes before
the plea was submitted to the court. He testified, “I was fighting a losing battle because I had a
lawyer [who] kept telling me I was going to lose and I was a liar. So I had no choice but to make
my plea. None.”

             The petitioner also testified that counsel failed to secure credit for jail time served
between October 20 and December 5, 2000.



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                 Trial counsel testified that, from the time he accepted employment in the cases, the
petitioner was preeminently concerned with the coercion element of the rape charge and did not want
to plead to any offense predicated on coercion. The petitioner admitted to counsel that the petitioner
was indeed the person who was being fellated by the minor in the photograph. The petitioner
maintained that the act was not coerced, despite the victim’s statement that the petitioner entreated
the victim to fellate him in exchange for the petitioner not publishing on the internet nude photos that
the petitioner had taken of the victim. Counsel described a conundrum wherein the petitioner
refused to plead to the rape charge and yet the state had a strong case via coupling the victim’s
testimony and the graphic picture of the boy fellating the petitioner. In addition, counsel was
troubled by the knowledge that a sentence for rape carried a release eligibility of 100 percent, as well
as the knowledge that the petitioner had admitted to being the other person in the photograph, thus
complicating any plans to have the petitioner testify in his own defense.

                Counsel testified that he obtained a mental evaluation of the petitioner, which failed
to support any diminished capacity defense. He hired an investigator, who interviewed as many of
the petitioner’s witnesses whom he could locate. “Anyone who would talk to him,” counsel testified,
“he talked to.” However, not only was the investigator denied access to the victim, but the
investigation generally uncovered no information helpful to the defense. In fact, counsel testified
that at least one of the persons named by the petitioner harbored outrageously damaging opinions
of the petitioner. When the investigation was complete, counsel felt that he had no bases upon which
to build a credible defense.

               Counsel testified that he held several lengthy meetings with the petitioner. The
petitioner persisted in seeking detailed information, and counsel testified that they “discussed
everything in immense detail.” He testified that he furnished the petitioner with copies of all
documents and statements that the petitioner requested, although the flow of the materials was
hampered by the petitioner’s institutional, in-custody status.

                 Counsel testified that, prior to the scheduled preliminary hearing in Tipton County,
he extensively interviewed the investigating officers and his own investigator and opined to the
petitioner that there was no need to have a preliminary hearing for discovery purposes. He suggested
to the petitioner that, because there was no strategic need for a preliminary hearing, the petitioner
might wish to avoid the public disclosure of the details of the offense, and for this reason, the
petitioner agreed to waive the preliminary hearing.

                In the final analysis, counsel proposed that a plea to the state charges be arranged so
that any conviction offenses would not be predicated upon coercion. He testified that he negotiated
and coordinated plea agreements with both the federal and state prosecutors. The state prosecutor
agreed to reduce the rape charge to statutory rape, which had the desired effect of reducing release
eligibility from 100 percent of the sentence to 30 percent, but the state would agree only if the
petitioner also would plead guilty to especially aggravated sexual exploitation of a minor and accept
an effective ten-year sentence that featured a 30 percent release eligibility. The state also required
that the suppression motion be abandoned. Counsel secured a plea agreement for the federal charges


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that yielded an effective sentence of slightly more than ten years, and he arranged for the federal
disposition to occur first so that the state sentences could be imposed to run concurrently with the
federal sentences, as the state prosecutor had agreed.

                Counsel maintained that the petitioner was informed of the emerging plea structure
several weeks before the pleas were submitted and had agreed to the disposition in view of the
elimination of coercion as an element. Counsel testified that he met with the petitioner for two hours
before the federal plea was submitted and explained in detail the various components of the
agreement, including the nature and severity of the especially aggravated sexual exploitation of a
minor charge, which the state would bring by information and which was the keystone to the overall
agreement. He testified that he explained the meaning of charging the offense by information and
believed that he advised the petitioner that he would have to waive grand jury consideration of the
new charge. In addition, the federal judge conducted a rigorous, exhaustive voir dire of the petitioner
to verify the petitioner’s understanding of the plea agreement.

                Following the federal plea hearing, the Tipton County Circuit Court conducted a plea
submission hearing on August 17, 2001, pursuant to Tennessee Rule of Criminal Procedure 11(c).
The transcript of this plea submission hearing, which was exhibited to the post-conviction
evidentiary hearing, reveals that the petitioner acknowledged his understanding of his rights and his
waiver of same, including the right to be tried by a jury and the right to appeal, in favor of pleading
guilty. He acknowledged his understanding of the plea agreement and confirmed that he was
satisfied with the services of his attorney.

                 Counsel testified that, although he had moved to suppress evidence gained through
the officers’ warrantless search of the petitioner’s residence, he abandoned the motion because (1)
the officers had obtained the petitioner’s consent in writing to search the residence and (2) the state
ultimately conditioned its plea offer upon the suppression issue being abandoned. Counsel believed
that, because of the consent document, the odds were against the petitioner on the suppression issue:
“[We had] a case where he gave explicit permission for the officers to search and seize any property
in his trailer. He did it himself.” The consent form signed by the petitioner was exhibited to the
evidentiary hearing. On cross-examination, counsel admitted that he had not formed an opinion
about whether the petitioner had been arrested before he signed the consent form.

                 On cross-examination, counsel was asked whether he informed the petitioner that,
if the victim was an accomplice or consenting participant in the fellatio, the victim’s testimony
would have to be corroborated. Counsel did not claim that he imparted this information; rather, he
explained that, in his view, the extortion wrought against the victim would have been viewed by the
court as vitiating the consent of the victim.

                 The post-conviction court entered extensive findings of fact and conclusions of law,
the gravamen of which is that the petitioner’s guilty plea was knowingly and voluntarily entered and
that the petitioner established neither deficient performance of counsel nor prejudice from counsel’s
performance. Of particular interest to this court on appeal is the lower court’s specific finding that


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it accredited the testimony of counsel over that of the petitioner as to the many points on which the
two differed. The judge opined that, had the suppression motion been pressed and heard, the trial
could would have denied the motion.

                On appeal, the petitioner’s main ineffective-assistance-of-counsel focus is directed
to the claims that (1) trial counsel did not inform the petitioner that a consent to search following an
illegal arrest might have been tainted and voidable and that the damning photograph found might
have been suppressed; and (2) with the photograph suppressed, the state might not have been able
to corroborate the victim’s consensual act of fellatio.

                In post-conviction proceedings, the petitioner has the burden of proving by clear and
convincing evidence the claims raised. Tenn. Code Ann. § 40-30-210(f) (1997). On appeal, the
lower court's findings of fact are reviewed de novo with a presumption of correctness that may only
be overcome if the evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                When a petitioner challenges the effective assistance of counsel, he has the burden
of establishing (1) deficient representation and (2) prejudice resulting from that deficiency.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel’s services fall below
the range of competence demanded of attorneys in criminal cases. Bankston v. State, 815 S.W.2d
213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but for deficient
representation, the outcome of the proceedings would have been different. Overton v. State, 874
S.W.2d 6, 11 (Tenn. 1994). When it is alleged that the ineffective assistance of counsel resulted in
a guilty plea, the burden is upon the petitioner to establish the prejudice prong of Strickland by
proving 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." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.
Ct. 366, 370 (1985). On review, there is a strong presumption of satisfactory representation. Barr
v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).

                When reviewing the entry of a guilty plea, the overriding concern is whether the plea
is knowingly, voluntarily and understandingly made. Boykin v. Alabama, 395 U.S. 238, 242-44, 89
S. Ct. 1709, 1712 (1969). "[A] plea is not 'voluntary' if it is the product of 'ignorance,
incomprehension, coercion, terror, inducements, [or] subtle or blatant threats. . . .' " Blankenship v.
State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43, 89 S. Ct. at 1712).
Moreover, a plea cannot be voluntary if the defendant is "incompetent or otherwise not in control
of his mental facilities" at the time it is entered. Id. at 904-05 (quoting Brown v. Perini, 718 F.2d
784, 788 (6th Cir.1983)). A defendant's plea of guilty is not constitutionally infirm or coerced
merely because the defendant opted to plead guilty as a means of avoiding a more severe sentence
following a trial. See, e.g., Brady v. United States, 397 U.S. 742, 751, 90 S. Ct. 1463, 1471 (1970).

                Our review of the record and the applicable law gives us no pause in agreeing that the
petitioner failed to establish his post-conviction claims by clear and convincing evidence.


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               We defer to the lower court’s credibility assessments. Because counsel’s testimony
thus accredited adequately addressed most of the issues raised by the petitioner, the denial of post-
conviction relief on those issues was proper.

               Counsel did not, however, squarely controvert (1) the claim that he failed to analyze
and inform the petitioner about the post-arrest consent issue or (2) the claim that he failed to inform
and advise the petitioner regarding the corroboration rule.

                 First, we look at whether counsel was ineffective in failing to inform the petitioner
of the possibility of suppressing the evidence seized in the residence, especially in light of a claim
that the petitioner was under arrest at the time he signed the consent form. See, e.g., Bentley v. State,
552 S.W.2d 778, 780 (Tenn. Crim. App. 1977) (holding that a search “under the circumstances
shown in this record was a far cry removed from a free consent search,” when the defendant had
refused “to permit a search when arrested and placed in custody in the squad car. His consent came
about only when told they (police) would go get a warrant if he did not consent and started the squad
car to do so”). Although the lower court determined that, as the trial court, it would not have
sustained the motion to suppress, we need not determine whether the petitioner voluntarily consented
to the search of his residence because, as a post-conviction petitioner alleging ineffective assistance
of counsel, he has failed to prove this claim by clear and convincing evidence.

                 To be sure, the petitioner testified that the officers came to his residence and arrested
him without a warrant and that he consented to the search only after he was arrested. The record is
devoid, however, of any proof of the circumstances of the officers’ visit, whether they had probable
cause to arrest the petitioner without a warrant, whether the petitioner was in custody when he signed
the consent form, and whether the totality of the circumstances vitiated the petitioner’s consent to
the search. See id. (applying “totality of the circumstances” test to determine whether the defendant,
who was in custody, voluntarily consented to the search of his residence). The absence of these
circumstances precludes a post-conviction court from determining that trial counsel was remiss in
not discussing the issue more fully with the petitioner, especially when trial counsel testified that he
believed the suppression motion was doomed and that abandoning it was a small price to pay to gain
concessions in plea bargaining. We stress that we are not suggesting that a defendant complaining
of a warrantless search bears any burden to establish the unreasonableness of the search; rather, when
the task at hand is to demonstrate ineffective assistance of counsel, the burden is on the petitioner
to establish a matrix of facts from which counsel’s performance and any resulting prejudice can be
judged. The petitioner has failed to carry this burden in the case before us.

                Next, we examine the issue of counsel’s performance in not discussing with the
petitioner the accomplice corroboration rule.

              In Tennessee, a conviction may not be based upon the uncorroborated testimony of
an accomplice. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). An accomplice is an individual
who knowingly, voluntarily and with common intent participates with the principal offender in the
commission of an offense. State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990).


                                                   -6-
Although “‘[a] common test [of complicity] is whether the alleged accomplice could have been
indicted for the offense,’” State v. Anderson, 985 S.W.2d 9, 16 (Tenn. Crim. App. 1997) (quoting
State v. Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992)), this court has viewed the consenting
victim of a statutory rape as an accomplice. See State v. McKnight, 900 S.W.2d 36, 48 (Tenn. Crim.
App. 1994). At any rate, when the facts are undisputed regarding an individual’s participation in the
crime, whether she is an accomplice is a question of law for the trial court. Perkinson, 867 S.W.2d
at 7. However, when the facts are disputed or susceptible to different inferences, it is a question for
the jury, Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975), and the jury determines
whether an accomplice's testimony has been sufficiently corroborated, Pennington v. State, 478
S.W.2d 892, 898 (Tenn. Crim. App. 1971).

                From the post-conviction record, all we can discern about the claim that the young
participant consented to the fellatio is that the consent issue would have been disputed, creating a
jury question at trial whether the petitioner committed the charged offense of rape or, alternatively,
the lesser offense of statutory rape. In his evidentiary hearing testimony, trial counsel forcefully
opined that a jury considering a charge of rape would be sympathetic to and persuaded by the
juvenile victim that the petitioner extorted the “consent” through threatening to publish nude
photographs of the victim. See Tenn. Code Ann. §§ 39-13-503(a)(1) (1997) (rape is committed, inter
alia, by one who unlawfully sexually penetrates a victim when “[f]orce or coercion is used to
accomplish the act”), -501(1) (1997) (“‘Coercion’ means threat of kidnapping, extortion, force or
violence to be performed immediately or in the future . . . .”) (emphasis added); see also id. § 39-14-
112 (1997) (at least for purposes of property crimes, “[a] person commits extortion who uses
coercion upon another person with the intent to: (1) Obtain property, services, any advantage or
immunity; or (2) Restrict unlawfully another’s freedom of action.”) (emphasis added). In the face
of trial counsel’s testimony and the applicable statutory law, the petitioner’s bald assertion that the
victim consented to fellatio falls short of the mark in showing that counsel was remiss in not
explaining that the victim’s trial testimony would have required corroboration. In other words, we
believe that the petitioner failed to prove by clear and convincing evidence that counsel performed
deficiently or that he was prejudiced by counsel’s performance.

               In view of the record and the applicable law, we affirm the denial of post-conviction
relief.




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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