        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON               FILED
                         FEBRUARY SESS ION, 1998       February 20, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

FREDERICK A. BUTLER,              )   C.C.A. NO. 02C01-9705-CR-00191
                                  )
           Appe llant,            )
                                  )   SHELBY COUNTY
V.                                )
                                  )
                                  )   HON. ARTHUR T. BENNETT, JUDGE
STATE OF TENNESSEE,               )
                                  )
           Appellee.              )   (POST-C ONVIC TION)



FOR THE APPELLANT:                    FOR THE APPELLEE:

GARLAND ERGUDEN                       JOHN KNOX WALKUP
242 Poplar Avenue                     Attorney General & Reporter
Memphis, TN 38103
                                      JANIS L. TURNER
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      JOH N W. P IERO TTI
                                      District Attorn ey Ge neral

                                      PAUL GOODMAN
                                      Assistant District Attorney General
                                      201 Poplar Avenue - Third Floor
                                      Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION

              The Appellant, Fre derick A. Butler, appeals as of right from the trial

court’s dismiss al of his pe tition for post-c onviction relief following an eviden tiary

hearing. The issue presented for revie w, as s tated in Appe llant’s brief, is as follows:

“The trial judge erred in finding that Petitioner’s guilty plea was knowing and

voluntary and not the product of ineffective assistance of counsel.” After a review

of the entire record on appeal, the argum ents o f coun sel, an d the a pplica ble law, we

affirm the ju dgme nt of the trial co urt.



              In July, 1994 the S helby Coun ty grand jury returned an indictment

charging the Appellant and his co-defendant with the first degree murder of

Appe llant’s infant son. The Appellant was tried prior to his co-defendant. The

Appellant’s case was origina lly set for trial May 1, 1995, but was continued to May

30, 1995. During the State’s case-in-chief, the matter was resolved by a negotiated

plea agreement wherein Appellant pled guilty to second degree murder and received

a Range 2 sentence of forty (40) years. The sentence was ordered to be served

conc urren tly with another conviction wherein Appellant had previously been

sentenced.


              The State was seeking the death penalty in the event of Appe llant’s

conviction of first degree murder following a jury trial. Accordingly, two attorneys

were appointed to represent Appellant. Although the reason is not clear in the

record, Appe llant wa s alleg ing at th e pos t-conv iction h earing that on ly the lead trial

couns el was ine ffective.




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              It is clear from the record that the transcript of the trial proceedings up

to the guilty plea, and the transcript of the guilty plea hearing were available to the

parties and the trial court prior to and during the pos t-conviction hearing . However,

these transcripts are not included in the record on appeal, even though references

to excerpts from the transcripts are referre d to during examin ation of witn esses. In

his brief, Appellant make s referen ces to a tra nscript wh ich is app arently the guilty

plea hearing and the evidence adduced at trial prior to the guilty plea, but as stated

above, these transcripts are not a part of the appellate record.



              The Appellant, his sister, and his lead counsel in the original

proceedings testified at the post-conviction hearing. Regarding ineffectiveness of

counse l, Appellant m ade severa l complaints ab out his lead cou nsel. Specifically,

Appellant testified that his trial counsel did not develop proof to show that his co-

defendant actua lly killed the child with a pair of sandals, did not develop proof

through an independe ntly appointed pathologist to contradict the testimony of the

State’s expert medical examiner who performed the autopsy, and did not develop

proof regarding his co-defen dant’s prio r history of ab use to oth er children .         In

addition, Appellant testified that his trial cou nsel st ated th at he w ould n ot call

material and nece ssary witnes ses to testify, sp ecifica lly Appella nt’s sister an d aunt.

Moreover, Appellant complained that his trial counsel did not discuss the poss ibility

of a conviction on lesser includ ed offe nses and d id not want Appellant to testify even

though it was Appellant’s de sire to testify in h is defe nse. A ppella nt also wante d his

co-defendant to be compelled to testify and he alleged that trial couns el refused to

take ne cessar y steps to h ave the c o-defen dant testify a t trial.




                                            -3-
               Trial coun sel testified that he filed approximately twenty (20) pre-trial

motions on behalf of Appellant. Also, counsel prepared for trial on both occasions

that the matter was set. He spent in excess of 180 hours in his representation of

Appe llant. Furthermore, trial counsel stated that Appellant, from the very beginning,

indicated that he did not want to go to trial but wanted to obtain the best negotiated

plea a greem ent po ssible . Appe llant initia lly turned down an offer to plea d guilty to

first degree murder and receive a term of life imprisonment. Later, on two (2)

occasions prior to trial, he rejected the plea offer he ultimately accepted during the

course of the trial. W hile the m edical exa miner w as testifying , the court took a

recess and Ap pellant as ked his tria l counse l to inquire as to whether or not the offer

of pleading to second degree murder and receiving a forty (40) year, Range 2

sentence was still available. Trial counsel m et with the Assistan t District Attorneys

who were prosecuting the case as well as the District Attorney General for Shelby

Coun ty during the recess to reach th e nego tiated plea agreem ent.



               Trial counsel testified that he discussed in length the witnesses who

Appellant wanted to use at trial, and that he was prepared to call these witnesse s to

testify at trial.   Co unse l also in vestigated the juvenile court records of the co-

defendant and the medic al record s of the victim . He could not determine any causal

relation ship between any alleged striking of the victim with sandals by the co-

defendant and the ultimate cause of death. Trial counse l interviewed witnesses,

including the medical examiner, prior to trial. Furthermore, counsel reviewed the

entire file of the prosecutor as well as the physical evidence located in the evidence

storage room. Appellant informed lead counsel and co-counsel that he had no

comp laints about their services as attorneys and that what they did or did not do had

not caused him to change his mind regarding his plea of not guilty. Counsel was


                                            -4-
also aware of the fact that the State had in its possession a letter written by

Appellant to his co -defen dant a dmittin g his guilt and e xoneratin g the co- defend ant.

Counsel was cognizant of the fact tha t the State did not plan to call the co-defendant

as a witness in its case-in-chief, but would call her as a rebuttal witness in the event

Appellant’s proof indicated that it was his co-defendant, and not himself, who had

comm itted the ho micide.



              The trial court made detailed written findings of fact and conclusions of

law which accredited the testimony of trial counsel and rejected the testimony of

Appe llant. The trial court specifically found that counsel rendered assistance which

was within the range of competence expected of an attorney in a criminal case.



              In determining whether counsel provided effective assistance at trial, the

court must decide whether counsel’s performance was within the range of

competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). To succeed on a claim that his counsel was ineffective at

trial, a petitioner bears the burden of showing that his counsel made errors so

serious that he was not functioning as counsel as g uarante ed und er the Sixth

Amendment and that the deficient representation prejudiced the petitioner resulting

in a failure to produce a reliable re sult. Strickland v. Washington, 466 U.S. 668, 687,

reh’g denied, 467 U.S . 1267 (1 984); Coope r v. State, 849 S.W.2d 744, 747 (Tenn.

1993); Butler v. Sta te, 789 S.W .2d 898 , 899 (T enn. 19 90). To satisfy the second

prong the petitione r mus t show a reas onab le prob ability tha t, but for c ouns el’s

unrea sona ble error, the fact finder would have had reasonable doubt regarding

petition er’s guilt. Strickland, 466 U .S. at 695 . This rea sonab le proba bility must be




                                            -5-
“sufficient to undermine confidence in the o utcome.” Harris v. S tate, 875 S.W.2d

662, 665 (T enn. 1994 ).



             When reviewing trial counsel’s actions, this court should not use the

bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics.

Hellard v. State, 629 S.W .2d 4, 9 (Ten n. 1982). Co unsel’s alleged e rrors should be

judged at the time they we re made in light of all facts a nd circum stance s. Strickland,

466 U .S. at 690 ; see Cooper 849 S.W.2d at 746.



             This two part standard of measuring ineffective assistance of counsel

also applies to claims arising out of the p lea proce ss. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show that

there is a reasonable probab ility that, but for counse l’s errors he would n ot have

pleaded gu ilty and would have insisted on going to trial.” Id. at 59.



             On the ap peal fro m a p ost-co nviction relief hearin g, the tria l court’s

findings of fact are conclusive unless the evidence preponderates against those

findings. Butler v. Sta te, 789 S.W .2d 898 , 899 (T enn. 19 90); State v. Cook, 749

S.W.2d 42, 45 (Tenn. Crim. App. 1987). The burden is on the appellant to show that

the evidence preponderates against the findings of the trial cour t. Cook, 749 S.W.2d

at 45; Good ner v. State , 484 S.W.2d 364, 365 (Tenn. Crim. App. 1972). Questions

concerning the cre dibility of w itness es an d the w eight a nd valu e to be given th eir

testimony are resolved by the trial co urt, not the a ppellate c ourt. Parha m v. State ,

885 S.W .2d 375 , 379 (T enn. C rim. App . 1994); Black v. S tate, 794 S.W.2d 752, 755

(Tenn. C rim. App. 199 0).




                                           -6-
              The trial court heard the testimony from the Appellant and his witness,

as well as his trial counsel. The trial court made specific findings of fact which were

contrary to Appe llant’s asse rtions.        The evidence in the record does not

prepon derate against these findings by the trial court. Acco rdingly , this issu e is

without m erit.



              Appellant also complains that he did not enter a knowing and voluntary

guilty plea. He ar gues in part that his guilty plea was not knowing and voluntary

because of the in effective assista nce o f his lea d cou nsel. In effect, Appellant argues

that his gu ilty plea w as co erced by both his cou nsel d irectly insisting upon a plea of

guilty and by his failing to provide a prope r defens e. Furthermore, Appellant argues

that he was scared by certain comments made by the trial judge at the guilty plea

submission hearing. He submits that he was therefore prevented from stating on the

record at that time: (1 ) that he de sired to proceed with the trial and (2) that he had

serious problems with the way his counsel had been representing him.



              It is sufficient to s tate here that the reco rd available clearly reflects that

the trial court pro perly foun d that Ap pellant en tered a k nowing and volu ntary guilty

plea. Furthermore, since the guilty plea hearing was not made a part of the record

on appea l, we are re quired to assum e that the tria l court made p roper findings

regarding this issue. It is the duty of the app ellant to prepare a record which conveys

a fair, accurate, and co mplete acc ount of what tra nspired in the trial cou rt with

respect to the issues which form the basis of an appeal. Tenn. R. App. P. 24 (b):

State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App . 1991). When an appellant

fails to include necessary portions of the record on appeal regarding an issue, an

appellate court is preclude d from c onside ring the m erits of the issu e. See Tenn. R.


                                             -7-
App. P. 24(b); State v. Ballard, 855 S.W .2d 55 7, 561 (Ten n. 199 3). Acc ording ly, this

issue is w ithout me rit.



              Finding that the trial cou rt prop erly dismissed the Appellant’s petition for

post-co nviction relief, w e affirm the judgm ent of the tria l court.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOSEPH B. JONES, Presiding Judge


___________________________________
JOHN H. PEAY, Judge




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