             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE

                          JANUARY 1997 SESSION            FILED
                                                             May 22, 1997
RICHARD GARY HORTON,          )
                              )                           Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
             Appellant,       )    No. 03C01-9604-CR-00161
                              )
                              )    Hamilton County
v.                            )
                              )    Honorable Stephen M. Bevil, Judge
                              )
STATE OF TENNESSEE,           )    (Post-Conviction)
                              )
             Appellee.        )


For the Appellant:                 For the Appellee:

Robert N. Meeks                    Charles W. Burson
3505 Brainerd Road                 Attorney General of Tennessee
P.O. Box 8086                             and
Chattanooga, TN 37414              Sarah M. Branch
                                   Counsel for the State
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   William H., Cox, III
                                   District Attorney General
                                           and
                                   Bates Bryan, Jr.
                                   600 Market Street, Suite 310
                                   Chattanooga, TN 37402




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                                    OPINION



                  The petitioner, Richard Gary Horton, appeals as of right from the Hamilton

County Criminal Court’s dismissal of his petition for post-conviction relief. The

petitioner was convicted of attempted second degree murder and received a ten-year

sentence. This court affirmed the petitioner’s conviction. State v. Richard Gary Horton,

No. 03C01-9306-CR-00172, Hamilton County (Tenn. Crim. App. Dec. 2, 1993), app.

denied (Tenn. Apr. 4, 1994). On March 27, 1995, the petitioner filed a pro se post-

conviction petition. Counsel was appointed and filed an amended petition that alleges

that the petitioner’s counsel was ineffective for failing to investigate the facts of the case

and that the petitioner’s due process and equal protection rights were violated because

he was initially indicted for reckless endangerment but was indicted for attempted first

degree murder in retaliation for his refusal to plead guilty.1 The trial court dismissed the

petition after an evidentiary hearing, concluding that the petitioner failed to establish

that he received the ineffective assistance of counsel or that the attempted first degree

murder indictment was the result of prosecutorial vindictiveness. The sole issue for our

review is whether the trial court erred by denying the petition on the prosecutorial

vindictiveness ground.



                  The assistant district attorney who prosecuted the petitioner testified at

the post-conviction evidentiary hearing. He recalled that the petitioner was originally

indicted for reckless endangerment. He said that after he reviewed the file on the case

he decided to seek an indictment for attempted first degree murder because he felt that

the reckless endangerment charge was not an accurate reflection of the crime that was

committed. He testified that he did not know whether the evidence that formed the




         1
           The petitio n also allege s tha t the p etition er rec eived ineff ective ass istan ce of coun sel
that resulted in an involuntary ple a to anoth er offen se. On appea l, the petitioner d oes no t
challenge the trial court’s de nial of pos t-conviction relief with res pect to the other co nviction.

                                                            2
basis for his decision was in the file at the time the petitioner was originally indicted for

reckless endangerment.



              He denied offering the petitioner a two-year plea agreement and

explained that he usually writes notes concerning plea negotiations on the case file.

Copies of the file folders he used as the case file for the reckless endangerment and

attempted first degree murder charges were introduced into evidence. The copy of the

reckless endangerment file does not contain any notations concerning plea

negotiations. Bright said that to his recollection, he never offered the petitioner any

plea agreement other than for the petitioner to plead guilty and have a sentencing

hearing.



              The petitioner’s trial attorney testified that he had thought the petitioner

was very lucky when he had only been indicted for reckless endangerment. He said

that he and the petitioner knew that the state was going to seek another indictment

before it happened. He explained that “immediately or very quickly” after the petitioner

was indicted on reckless endangerment, the prosecutor told him that the state was

going back to the grand jury to get another indictment on first degree murder. The

attorney said that he contested the upgrading of the charge and that the trial court ruled

that the state was allowed to get a new indictment.



              With respect to plea negotiations, the trial attorney testified that the

petitioner told him that he, the petitioner, had turned down an eleven-month and twenty-

nine-day sentence at the preliminary hearing in city court, before his representation of

the petitioner began. The attorney said that he did not remember the petitioner

receiving an offer involving a two-year sentence. He said that his records indicated that

the prosecutor had agreed to consider a plea to aggravated assault. He said that his




                                              3
records also reflect that the prosecutor told him to make an offer in the “high numbers”

but that the petitioner did not want to plead to anything in the “high numbers.”



                The petitioner testified that, in the presence of the trial attorney, the

prosecutor offered him a two-year plea agreement for the reckless endangerment

charge. The petitioner said that he refused the offer because he understood that

reckless endangerment was a misdemeanor charge carrying a maximum sentence of

eleven months and twenty-nine days. The petitioner said that he did not learn that the

charge against him had been upgraded from reckless endangerment to attempted first

degree murder until the day of trial.



                At the end of the hearing, the trial court made the following findings with

respect to the petitioner’s allegations of prosecutorial vindictiveness:

                I see nothing to indicate that [the prosecutor] did this out of
                vindictiveness other than the fact that he looked at the case
                and felt like based on the facts and circumstances the charge
                was too low and went back to the jury.

                        I find that there is no showing in any way, the defendant
                has failed to carry the burden of showing the prosecution acted
                vindictively and that the case went back to the Grand Jury for
                reindictment for any reason other than the fact that it was just
                a decision on the part of the prosecutor that the facts merited
                a higher charge and I find no other reason.


In the order dismissing the petitioner’s petition, the trial court also noted that the

prosecutor’s decision to upgrade the charge “had nothing to do with Mr. Horton’s failure

to plead guilty to the Reckless Endangerment charge.”



                 The burden was on the petitioner in the trial court to prove his allegations

that would entitle him to relief by a preponderance of the evidence.2 Brooks v. State,

756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial



        2
           For post-conviction petitions filed after May 10, 1995, petitioners have the burden o f
proving factual allegations by clear and convincing evidence. T.C.A. § 40-30 -210(f).

                                                      4
court’s findings unless we conclude that the evidence preponderates against those

findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,

the petitioner has the burden of illustrating how the evidence preponderates against the

judgment entered. Id.



             As long as probable cause exists to believe that an offense has been

committed, it is generally within the prosecutor’s discretion as to what charge to bring

before a grand jury. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663,

668 (1978). Only when a prosecutor acts to retaliate against a defendant’s exercise of

constitutional rights or to discriminate against a defendant upon impermissible grounds,

such as race or religion, will a claim of prosecutorial vindictiveness be entertained. See

State v. Brackett, 869 S.W.2d 936, 940 (Tenn. Crim. App. 1993). The record before us

supports the trial court’s findings and conclusions that the prosecutor acted in good

faith upon the belief that the facts warranted a higher charge. Thus, no vindictiveness

was shown.



              The judgment of the trial court is affirmed.




                                                        Joseph M. Tipton, Judge



CONCUR:




Gary R. Wade, Judge




William M. Barker, Judge




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