             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE              FILED
                                MAY 1997 SESSION
                                                            October 31, 1997

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

CHARLES GATES,                       )
                                     )
            APPELLANT,               )
                                     )    No. 03-C-01-9510-CC-00313
                                     )
                                     )    Bradley County
v.                                   )
                                     )    Mayo L. Mashburn, Judge
                                     )
                                     )    (Post-Conviction Relief)
STATE OF TENNESSEE,                  )
                                     )
              APPELLEE.              )



FOR THE APPELLANT:                        FOR THE APPELLEE:

Mary Ann Stackhouse                       John Knox Walkup
Attorney at Law                           Attorney General & Reporter
9509 Ravenel Lane                         500 Charlotte Avenue
Knoxville, TN 37922                       Nashville, TN 37243-0497

                                          Sarah M. Branch
                                          Assistant Attorney General
                                          450 James Robertson Parkway
                                          Nashville, TN 37243-0497

                                          Jerry N. Estes
                                          District Attorney General
                                          P.O. Box 647
                                          Athens, TN 37371

                                          John A. Rehyansky
                                          Assistant District Attorney General
                                          P.O. Box 1351
                                          Cleveland, TN 37364-1351




OPINION FILED:______________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                    OPINION


       The appellant, Charles Gates (petitioner), appeals as of right from a judgment of the

trial court dismissing his action for post-conviction relief following an evidentiary hearing.

In this Court, the petitioner contends the evidence contained in the record preponderates

against the judgment rendered by the trial court.          He argues he was denied his

constitutional right to the effective assistance of counsel because (a) counsel permitted him

to plead guilty in view of the evidence, (b) counsel failed to file an appropriate post-plea

motion after permitting him to plead guilty, and (c) counsel gave erroneous advice which

resulted in pleas of guilty that were not voluntarily, understandingly, and knowingly entered.

After a thorough review of the record, the briefs submitted by the parties, and the law

governing the issues presented for review, it is the opinion of this Court that the judgment

of the trial court should be affirmed.

       On January 7, 1993, the petitioner entered pleas of guilty to the offenses of rape,

aggravated kidnapping, and kidnapping. Pursuant to a plea bargain agreement, the trial

court sentenced the petitioner to serve eight (8) years in the Department of Correction for

the offenses of rape and aggravated kidnapping, and six (6) years in the Department of

Correction for the offense of kidnapping. The sentences are to be served concurrently.

No appeal was taken to this Court.

       The petitioner commenced this action on October 18, 1993. The State of Tennessee

filed a response seeking dismissal of the petitioner’s action on October 26, 1993. The trial

court summarily dismissed the action on June 28, 1994. The petitioner appealed as of

right to this Court from the judgment of dismissal. Subsequently, this Court reversed the

judgment of the trial court and remanded this cause for an evidentiary hearing. Charles

Gates v. State, Bradley County No. 03-C-01-9408-CR-00303, 1995 WL 457970 (Tenn.

Crim. App., Knoxville, August 1, 1995). The trial court conducted an evidentiary hearing

on March 15, 1996. The findings of fact and conclusions of law were filed on March 21,

1996. The trial court denied the relief sought by the petitioner. In ruling, the court said,

“[i]n resolving the conflicts between Petitioner and Mr. Carter [defense counsel], this Court

totally accredits the testimony of Mr. Carter and rejects outright any conflicting testimony


                                              2
of the Petitioner.” In short, the trial court did not believe the petitioner’s testimony.



                                               I.



       When the trial court has conducted an evidentiary hearing to permit a petitioner to

ventilate the grounds raised in support of post-conviction relief, the trial court’s findings of

fact are afforded the weight of a jury verdict, Dixon v. State, 934 S.W.2d 69, 71-72 (Tenn.

Crim. App. 1996); Teague v. State, 772 S.W.2d 932, 933-34 (Tenn. Crim. App. 1988), cert.

denied, 493 U.S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (1989). Consequently, this Court

is bound by the trial court’s findings of fact unless the evidence adduced at the hearing

preponderates against the trial court’s findings. Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim. App. 1994).

       There are several well-established rules which govern appellate review in post-

conviction cases. As this Court said in Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.

App.), per. app. denied (Tenn. 1990):


               First, this Court cannot reweigh or reevaluate the evidence; nor
               can we substitute our inferences for those drawn by the trial
               judge. Second, questions concerning the credibility of the
               witnesses, the weight and value to be given their testimony,
               and the factual issues raised by the evidence are resolved by
               the trial judge, not this Court. Third, the appellant has the
               burden in this Court of illustrating why the evidence contained
               in the record preponderates against the judgment of the trial
               judge.


       This Court will now proceed to consider the merits of the petitioner’s contentions.

In doing so, this Court will apply the aforementioned principles governing appellate review

in post-conviction cases to determine whether the evidence adduced at the hearing

preponderates against the trial court’s findings of fact. See Clenny v. State, 576 S.W.2d

12, 14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d

1050 (1979).

                                              II.



       When the petitioner seeks to vitiate a conviction on the ground counsel’s


                                               3
representation was ineffective, the petitioner must prove by a preponderance of the

evidence (a) the services rendered or advice given by counsel fell below “the range of

competence demanded of attorneys in criminal cases” and (b) the unprofessional conduct

or errors of counsel “actually had an adverse effect on the defense.” Strickland v.

Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674, 697 (1984);

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This is required regardless of whether

the petitioner was convicted following a trial on the merits or the entry of a guilty plea. Hill

v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). However, in Hill the

Supreme Court modified the prejudice requirement of Strickland by requiring a petitioner

who was convicted after the entry of a guilty plea to establish there was a reasonable

probability that, but for defense counsel’s errors, he would not have entered the guilty plea.

Instead, the petitioner needed to demonstrate that he would have insisted upon a trial by

a jury. 474 U.S. at 59, 106 S.Ct. at 370.

       In resolving this issue, this Court is governed by certain well-established standards.

First, the standards established in Strickland and followed in Hill do not require perfect

representation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Second, it is not the

function of an appellate court to “second guess” trial counsel’s tactical and strategic

choices pertaining to matters of defense unless these choices are made without knowledge

of the relevant facts or the law applicable to the issues. Hellard, 629 S.W.2d at 9; State

v. Swanson, 680 S.W.2d 487, 490 (Tenn. Crim. App.), per. app. denied (Tenn. 1984). As

the supreme court said in Hellard: “[T]he defense attorney’s representation, when

questioned, is not to be measured by ‘20-20 hindsight.’” 629 S.W.2d at 9. Third, a

petitioner is not deprived of his constitutional right to the effective assistance of counsel

because a different procedure or strategy might have produced a different result. Williams

v. State, 599 S.W.2d 276, 279 (Tenn. Crim. App. 1980).

       This Court will now undertake to resolve the issues presented for review which are

predicated upon a claim he was denied his constitutional right to the effective assistance

of counsel.




                                               4
                                               III.



       The petitioner argues defense counsel was ineffective because he failed “to file the

appropriate post trial motions” after counsel received the “recantation from the alleged

victim within thirty days of the plea.” He also argues defense counsel was ineffective

because he allowed the petitioner to plead guilty when (a) he knew there was ample

evidence to raise a reasonable doubt, demonstrating the defendant might not be guilty, (b)

he failed to interview the victim face-to-face before the petitioner entered his pleas of guilty,

and (c) he failed to analyze an incriminating tape-recording.



                                               A.



       The petitioner’s claim that defense counsel failed to file an appropriate post-plea

motion is predicated upon a false premise. The statement defense counsel received from

the victim after the petitioner entered his pleas of guilty did not constitute a recantation of

what the victim had previously stated to the police or the allegations included in the

affidavit of complaint given to support the arrest warrants issued for the petitioner. Nor did

the statement contradict the recitation of facts given by the assistant district attorney

general at the submission hearing.

       The affidavit executed by the victim related she had seen the petitioner while her

husband was serving overseas in the military. It appears he was sent to Saudi Arabia

during Desert Storm. She denied having consensual sexual relations with the petitioner.

She described her relationship with the petitioner as a “friendship.” When her husband

returned, she attempted to terminate this friendship with the petitioner. The bulk of the

statement concerned the petitioner’s sentence. The victim felt the petitioner should have

received full probation. In addition, she wanted to obtain psychiatric assistance for the

petitioner. According to the record, the petitioner became violent when he was angry. The

victim never stated the petitioner was innocent. She referred to the events in question, i.e.,

the kidnapping of the victim, the kidnapping of the victim’s small son, and the rape of the

victim, as “the incident.” Given these circumstances, counsel filed a motion pursuant to



                                                5
Rule 35, Tennessee Rules of Criminal Procedure, to modify the sentences imposed

pursuant to the plea agreement.           The trial court dismissed the motion without an

evidentiary hearing.

       The petitioner argues defense counsel should have filed a motion to withdraw the

pleas of guilty, a motion for new trial, and/or a motion in arrest of judgment. He states in

his brief: “Such motions would have been timely and would have been the proper vehicle

for obtaining relief for Mr. Gates at that time, post-plea, in light of [the victim’s] recantation.”

He also faults defense counsel for not obtaining an evidentiary hearing on the motion to

modify his sentences.

                                                (1)



       The post-plea remedies alluded to by the petitioner were either not available to the

petitioner or he has failed to establish why he was entitled to relief. Therefore, counsel was

not ineffective because he did not pursue these remedies.

       The motion for a new trial is governed by Rule 33, Tennessee Rules of Criminal

Procedure. This rule limits the scope of the motion to cases where the accused has been

tried either by a jury or the trial court. Tenn. R. Crim. P. 33(a). In this case, the petitioner

entered pleas of guilty to the offenses pursuant to a plea agreement. Consequently, the

filing of a motion for a new trial would have been frivolous. Counsel is not required to file

a frivolous motion.

       The scope of the motion for arrest of judgment is limited. Rule 34, Tenn. R. Crim.

P. The rule states a trial court “shall arrest judgment if the indictment, presentment or

information does not charge an offense or if the court was without jurisdiction of the

offense charged.” Neither of these grounds were established by the evidence adduced at

the evidentiary hearing. Nor does the petitioner set forth in his brief a basis for arresting

the judgment of the trial court. Again, the filing of a motion for arrest of judgment would

have been frivolous in this case.

       The withdrawal of guilty pleas is governed by Rule 32(f), Tennessee Rules of

Criminal Procedure. Once the accused has entered a plea of guilty and the trial court has

imposed sentence, the accused may seek to withdraw the guilty plea before the judgment



                                                 6
has become final. Tenn. R. Crim. P. 32(f). The trial court may permit the withdrawal of

the guilty plea to correct “manifest injustice.” In State v. Turner, 919 S.W.2d 346 (Tenn.

Crim. App. 1995), this Court set forth scenarios illustrating what does and does not

constitute manifest injustice. In this case, there is no evidence in the record establishing

manifest injustice. Therefore, the petitioner was not entitled to the withdrawal of his guilty

pleas.



                                             (2)



         Rule 35(b), Tennessee Rules of Criminal Procedure, authorizes a trial court to

reduce a sentence upon the motion of a party within 120 days from the date sentence was

imposed. As the comments to this rule indicate, the purpose of the rule is to allow

alteration of a sentence when it is in the interests of justice. This rule does not vest the

defendant with a remedy of right. State v. Deborah Crabtree Martin, Anderson Co. No.173,

1987 WL 14941 (Tenn. Crim. App., Knoxville, July 31, 1987). To the contrary, the rule

commits the granting of relief to the sound discretion of the trial court. Moreover, the trial

court may dismiss a Rule 35 motion without a hearing. Rule 35(b), Tenn. R. Crim. P. See

State v. Katrina L. Harris, Anderson County No. 202, 1989 WL 54580 (Tenn. Crim. App.,

Knoxville, May 23, 1989).

         Defense counsel properly filed a Rule 35 motion to modify the sentences imposed

by the trial court notwithstanding the petitioner entered pleas of guilty and was sentenced

pursuant to a plea bargain agreement. See State v. McDonald, 893 S.W.2d 945 (Tenn.

Crim. App. 1994). There was no agreement between the State of Tennessee and the

petitioner regarding the applicability of probation or the imposition of a community

corrections sentence. Defense counsel testified the petitioner was aware that if he

accepted the plea agreement he would not receive a sentencing hearing through which

alternative sentencing could be sought. However, it was possible the trial court may have

given consideration to an alternative sentence given the feelings of the victim.

         As previously stated, the trial court is authorized by Rule 35 to dismiss a motion

without granting the moving party a hearing on the motion. See State v. Katrina L. Harris,



                                              7
supra; State v. Deborah Crabtree Martin, supra. The conduct of the trial court in dismissing

the motion was simply a reaffirmation of the sentences previously imposed. State v.

Bilbrey, 816 S.W.2d 71 (Tenn. Crim. App. 1991).        Thus, defense counsel can not be

considered ineffective because the trial court exercised its discretion pursuant to Rule 35.

       The record indicates the trial court did not abuse its discretion in dismissing the

motion for modification of the sentences. Contrary to the argument advanced by the

petitioner, there were no material changes between the date the sentences were imposed

and the filing of the motion. See State v. Deborah Crabtree Martin, supra.



                                            B.



       The petitioner also contends defense counsel was ineffective because he permitted

him to plead guilty. He argues counsel should not have permitted him to plead guilty

knowing that there was sufficient evidence to raise a reasonable doubt. He also argues

counsel was ineffective because he failed to interview the prosecutrix face-to-face, and he

failed to have a tape-recording of a telephone conversation with the prosecutrix analyzed.

       Defense counsel was prepared to try the petitioner’s case. He had the statements

previously made by the prosecutrix. He talked to her by telephone and attempted to

establish an appointment to talk to her in person. The prosecutrix declined to meet with

defense counsel. Defense counsel cannot compel a prosecution witness to meet with him

so he can discuss his client’s case. Since the prosecutrix would not make herself available

for a live interview, defense counsel was prudent by calling the witness and talking to her

on the telephone.

       The petitioner and counsel listened to the telephone conversation between the

prosecutrix and himself regarding what had occurred. The petitioner incriminated himself

during the conversation.1 Defense counsel asked the petitioner if the voice on the tape

was his voice. He advised counsel it was his voice. Counsel also asked the petitioner if



       1
        The petitioner went to the district attorney general’s office on more than one
occasion to try and explain what had occurred. He even went after counsel was appointed
to represent him. He also talked to a law enforcement official and attempted to explain
what occurred.

                                             8
the content of the conversation was accurate. The petitioner assured counsel it was

accurate. Thus, there was no reason to have the audio tape analyzed for any purpose.

       Once the petitioner heard the taped conversation, he approached counsel and

advised him he wanted to plead guilty and accept the offer which had previously been

communicated by the assistant district attorney general. Defense counsel explained to the

petitioner the significance of pleading guilty and the rights the petitioner would lose if he

entered guilty pleas. Defense counsel was satisfied the petitioner fully understood the

significance and consequences of his change of plea.

       Certain decisions during a criminal prosecution are to be made by the accused.

One of these rights is what plea the accused will enter. See ABA Standards for Criminal

Justice (2nd ed. 1980), The Defense Function § 4-5.2(a). The petitioner made this

decision after being informed of the evidence against him and the law governing the

prosecution if he went to trial. When he made the decision to plead guilty, counsel advised

the petitioner of the consequences of pleading guilty.

       In this case, the entire defense was predicated upon the ability of counsel to

impeach the prosecutrix. The petitioner did not dispute what had occurred. He contended

he had consensual sex with the prosecutrix. She contended she never had a sexual

relationship with the petitioner. She described the petitioner as a “friend.” The prosecutrix

was married and the mother of a small child. Given these circumstances, defense counsel

was not ineffective because he permitted the petitioner to enter pleas of guilty. The

petitioner was properly advised of his rights and the consequences of the change of pleas.

He made the decision to change his plea. This was all that was required of counsel in view

of the evidence against the petitioner.



                                              IV.



       The petitioner contends his pleas of guilty were not knowingly or voluntarily entered

because the pleas were entered on the advice of counsel. He argues defense counsel

was ineffective due to counsel’s failure to fully investigate the facts, and that the pleas were

entered on misinformation conveyed by counsel regarding the evidence which was



                                               9
available to the state and the defense.

        This Court agrees with the petitioner that pleas of guilty must meet certain

requirements to pass constitutional muster. Certainly, if defense counsel’s representation

fell below the level of competency required in criminal cases, the petitioner would be

entitled to relief if he could establish the second prong in Hill. However, the problem the

petitioner faces is that the trial court’s findings of fact regarding this issue are binding in this

case, and the evidence contained in the record does not preponderate against these

findings. As previously stated, the trial court did not believe the testimony given by the

petitioner. He accredited the testimony of defense counsel.

        Defense counsel stated the petitioner approached him a few days before the

scheduled trial and advised counsel he desired to plead guilty to the offense. In other

words, counsel did not tell the petitioner to enter the pleas of guilty nor did counsel attempt

to convince him to enter the pleas. When defense counsel learned of the change in plea,

counsel met with the petitioner and explained the significance and consequences of

pleading guilty. Counsel was satisfied the petitioner understood what was explained to

him, and that the petitioner voluntarily, knowingly, and understandingly entered the pleas

of guilty.

        The trial court reviewed with the petitioner what occurred at the submission hearing.

The petitioner admitted the trial court asked all the questions necessary to determine

whether the petitioner was voluntarily, knowingly and understandingly entering the

respective pleas. The petitioner also admitted he answered the questions and indicated

he had in fact voluntarily, knowingly, and understandingly entered the pleas. However, the

petitioner stated he answered the questions untruthfully. When asked whether he told the

truth at the submission hearing or during the evidentiary hearing, the petitioner stated he

entered the pleas on the advice of counsel. He refused to admit the pleas were voluntarily,

knowingly, and understandingly entered as indicated by his answers at the submission

hearing.

        The trial court and defense counsel both believed the petitioner entered the guilty

pleas voluntarily, knowingly, and understandingly. Further, the litany of questions asked

the petitioner passed constitutional muster. Since the trial court found the petitioner was



                                                10
untruthful and did not believe his testimony, the evidence contained in the record does not

preponderate against the findings of fact made by the trial court.




                                  ____________________________________________
                                         JOE B. JONES, PRESIDING JUDGE



CONCUR:




______________________________________
      JOSEPH M. TIPTON, JUDGE



______________________________________
       CURWOOD WITT, JUDGE




                                            11
