             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE             FILED
                           SEPTEMBER 1997 SESSION
                                                        December 23, 1997

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

ROGER LEE ACUFF,                   )    No. 03C01-9611-CR-00436
                                   )
      Appellant                    )
                                   )    HAMILTON COUNTY
V.                                 )
                                   )    HON. STEPHEN M. BEVIL,
STATE OF TENNESSEE,                )    JUDGE
                                   )
      Appellee.                    )    (Post-Conviction)
                                   )
                                   )


For the Appellant:                      For the Appellee:

Neal Thompson                           John Knox Walkup
615 Lindsay Street                      Attorney General and Reporter
Suite 150
Chattanooga, TN 37403                   Peter M. Coughlan
                                        Assistant Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493


                                        William H. Cox, III
                                        District Attorney General

                                        Rebecca J. Stern
                                        Assistant District Attorney
                                        600 Market Street
                                        Suite 310
                                        Chattanooga, TN 37402




OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                         OPINION


       The appellant, Roger Lee Acuff, appeals as of right from the judgment of the

Hamilton County Criminal Court denying his petition for post-conviction relief. On

appeal, appellant contends that he received the ineffective assistance of counsel and

that his guilty plea was involuntary. Finding that the evidence does not preponderate

against the trial court’s judgment, we affirm the denial of relief.

       On February 18, 1994, while on trustee status at a work release center in

Chattanooga, appellant escaped from his work detail and fled to Knoxville. He was

recaptured thirty-six (36) hours later. At the time of his escape, appellant was serving

a twenty-eight (28) year sentence for second degree murder and robbery. He was

later indicted on one count of felony escape. Pursuant to a plea agreement, appellant

pled guilty to felony escape with an agreed sentence of six (6) years as a Range III

persistent offender. Although the plea agreement reflected the maximum sentence

within the range for the offense, it permitted appellant to be sentenced one

classification lower than the career offender status for which he qualified. On

September 15, 1994, the trial court accepted appellant’s guilty plea and sentenced

him accordingly.

       On July 25, 1995, appellant filed a pro se post-conviction petition alleging that

his plea was involuntary and that he received the ineffective assistance of counsel.

The petition was amended after the appointment of counsel. The trial court held an

evidentiary hearing on appellant’s claims and determined them to be without merit. It

found that appellant received the effective assistance of counsel and that his plea was

voluntary and knowing.

       In reviewing the appellant’s Sixth Amendment claim of ineffective assistance of

counsel, this Court must determine whether the advice given or services rendered by

the attorney are within the range of competence demanded of attorneys in criminal

cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of


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ineffective counsel, an appellant “must show that counsel’s representation fell below

an objective standard of reasonableness” and that this performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052,

2064, 2067-68, 80 L.Ed.2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn.

Crim. App. 1985). The inability to prove either prong results in failure of the claim.

See Strickland, 466 U.S. at 697.

       The most difficult burden on an appellant is demonstrating the prejudice he has

suffered by the alleged error. In order to prevail on that ground, the appellant must

show a reasonable probability that but for counsel’s error the result of the proceeding

would have been different. Id. In the context of a guilty plea, the appellant must

show 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, 53, 106 S.Ct. 366, 88 L.Ed.2d

203 (1985). See also Wade v. State, 914 S.W.2d 97, 101 (Tenn. Crim. App. 1995),

perm. app. denied (Tenn. 1995); Wilson v. State, 899 S.W.2d 648, 653 (Tenn. Crim.

App. 1994), perm. app. denied (Tenn. 1995).

       In order to sustain his post-conviction petition, the appellant must prove his

allegations of fact by clear and convincing evidence. Tenn. Code Ann. §40-30-210(f)

(Supp. 1996). Upon review, this Court cannot re-weigh or re-evaluate the evidence.

We give deference to questions about the credibility of the witnesses, the weight and

value to be given their testimony, and the factual issues raised by the evidence as

they are resolved by the trial court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.

App. 1990). Furthermore, the factual findings of the trial court are conclusive on

appeal unless the evidence preponderates against the judgment. Id. See also Davis

v. State, 912 S.W.2d 689, 697 (Tenn. 1995) (citations omitted); Cooper v. State, 849

S.W.2d 744, 746 (Tenn. 1993) (citation omitted).

       Appellant first contends that his counsel was ineffective for failing to investigate

the defense of necessity. At the evidentiary hearing, appellant testified that he

escaped from the work release center in order to help a pregnant woman he knew

                                             3
whose life was in danger because she was being beaten by her boyfriend. He

testified that he believed he explained these circumstances to counsel. Counsel, on

the other hand, testified that appellant merely told her that he “was out on pass on

trustee job and walked off the jobsite” and provided no other details. He never told

her about this woman he intended to help. As a result, she knew of no facts to

support a defense of necessity. Even had she been armed with such information,

counsel stated her doubts about the utility of such a defense under those

circumstances. Crediting counsel’s testimony, the trial court found that appellant did

not inform counsel of any factual circumstances to support the defense of necessity

and she was not ineffective in that regard. The trial court also alluded to the futility of

that defense in appellant’s case.

        Upon review, we too are unable to say that counsel was ineffective for failing to

investigate a defense of which she was unaware. Of course, counsel in a criminal

case has an obligation to investigate all factual and legal defenses. Baxter v. Rose,

523 S.W.2d 930, 933 (Tenn. 1975). However, where a client does not cooperate by

providing counsel with pertinent facts and circumstances, counsel cannot be expected

to hypothesize a possible defense.

        Other proof in the record before us lends support to the trial court’s credibility

determination. Several letters appellant wrote, which were a part of counsel’s file,

reflect appellant’s repeated claim that he merely “walked off the jobsite.” Appellant

provided the same recitation of facts in his original petition. Appellant’s testimony at

the evidentiary hearing was the first mention of a friend who needed assistance.1 As a

result, appellant’s testimony failed to provide clear and convincing proof of counsel’s

deficiency.

        Appellant also complains that counsel failed to meet with him adequately.

However, his accounts were inconsistent in that respect. Appellant’s pro se petition


        1
         In fact, this particular ground of ineffective assistance relative to the necessity defense was not
included in either the original or amended petitions.

                                                     4
stated that he met with counsel twice for about five minutes each. At the evidentiary

hearing, he first testified that counsel only met with him on one occasion at the jail for

approximately five minutes. Later in his testimony, appellant stated that counsel

talked with him three times before he entered his plea.

       Counsel testified that the day she spoke to appellant at the jail, the meeting

lasted much longer than five minutes. At that meeting, she discussed appellant’s prior

criminal record and he acknowledged at least five prior felonies. They also discussed

information he provided on a standard questionnaire used by the public defender’s

office. She further testified that she listened to the transcript of appellant’s preliminary

hearing. Prior to entering the plea, counsel testified that she and the appellant

discussed his rights, specifically the right to a jury trial and his prior record for

purposes of enhancement.

       At the guilty plea hearing, appellant stated that he was satisfied with counsel

and that there was nothing more counsel should have done to prepare his case.

Considering appellant’s statements at the guilty plea hearing and the testimony at the

evidentiary hearing, the trial court determined that counsel fully and adequately

represented her client and that there was nothing that she failed to do. That

determination endorsed counsel’s account of her activities and we must defer to the

trial court’s resolution of the contradictory testimony. Black v. State, 794 S.W.2d 752,

755 (Tenn. Crim. App. 1990).

       Finally, appellant alleges that counsel took advantage of threats on his life

made while in jail by insisting that appellant plead guilty. He testified that while

confined in the Hamilton County Jail numerous inmates threatened his life. Appellant

stated that on one occasion, someone injected him with battery acid in an attempt to

kill him. As a result, he was interested in pleading guilty as quickly as possible so that

he would be returned to prison.

       Counsel testified that appellant did tell her he was dissatisfied with the

conditions at the Hamilton County Jail. Appellant also told her that his life was being

                                              5
threatened, but failed to give any specific details, such as being injected with battery

acid. Counsel also stated that appellant told her he wanted to dispose of the case as

soon as possible and encouraged her to plea bargain with the district attorney. Letters

that appellant wrote to counsel reflect that desire and appellant admitted at the

evidentiary hearing that he gave counsel that directive. The trial court found that

appellant’s plea was voluntarily and knowingly entered.

       The record fully supports the trial court’s conclusions in this respect.

Communications between appellant and counsel distinctly reflect appellant’s initiative

in choosing to plead guilty to the escape charge. Appellant, familiar with the plea

process, even suggested certain mitigating circumstances for counsel to utilize in

bargaining with the district attorney. Appellant never expressed a desire to go to trial

upon this charge and counsel made every effort to negotiate an acceptable agreement

for the appellant.

       When counsel received the offer from the assistant district attorney, she

conveyed it to appellant, at which time he directed her to make a specific counteroffer.

When the assistant district attorney rejected the counteroffer the next day, appellant

decided to accept the original offer and the guilty plea hearing was held that day.

Little more than two weeks elapsed between the appointment of counsel, the first

meeting with appellant, and the entry of a guilty plea. At the guilty plea hearing,

appellant stated that he was not being pressured or coerced into pleading guilty.

Considering all the circumstances, it is clear that appellant was eager to enter a guilty

plea. Our review of the transcript from the guilty plea hearing, indicates that

appellant’s plea was certainly voluntary and knowing and that counsel did not exert

any undue influence on appellant.

       In sum, appellant has failed to demonstrate by clear and convincing evidence

that his counsel was ineffective or that his guilty plea was involuntary. We affirm the

trial court’s denial of post-conviction relief.



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                                   _______________________________
                                   William M. Barker, Judge



____________________________
John H. Peay, Judge



____________________________
David G. Hayes, Judge




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