                    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE                      FILED
                               NOVEMBER 1998 SESSION
                                                                       February 9, 1999

                                                                       Cecil Crowson, Jr.
                                                                       Appe llate Court C lerk

COY D. WILLIAMS,           )
                                 )      C.C.A. No. 03C01-9801-CC-00013
       Appellant,                )
                                 )      Blount County
v.                               )
                                 )      Honorable D. Kelly Thomas, Jr., Judge
STATE OF TENNESSEE,              )
                                 )      (Post-Conviction Relief)
       Appellee.                 )




FOR THE APPELLANT:                      FOR THE APPELLEE:

Steve Merritt                            John Knox Walkup
116 East Harper Avenue                   Attorney General & Reporter
Maryville, TN 37804              425 Fifth Avenue, North
                                         Nashville, TN 37243-0493

                                        Elizabeth B. Marney
                                        Assistant Attorney General
                                        425 Fifth Avenue, North
                                        Nashville, TN 37243-0493

                                        Michael L. Flynn
                                        District Attorney General
                                        363 Court Street
                                        Maryville, TN 37804-5906

                                        Edward P. Bailey, Jr.
                                        Assistant District Attorney General
                                        363 Court Street
                                        Maryville, TN 37804-5906




OPINION FILED: __________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                                OPINION


        The appellant, Coy D. Williams, referred herein as “petitioner,” appeals as of right fromthetrial court’s

dismissal of his petition for post-conviction relief. Petitioner entered guilty pleas in 1992to murder first degree,

aggravated burglary, and theft under $500. Pursuant to a plea agreement, petitioner received a life sentence

for the murder conviction and concurrent sentences of ten years and eleven months, twenty-nine days for the

burglary and theft convictions. The petitioner filed for post-conviction relief, alleging his guilty pleas were not

knowingly and voluntarily made and that he received ineffective assistance of counsel. Following an

evidentiary hearing, the trial court denied relief. After areviewof the record, w AFFIRM the judgm of the
                                                                                 e                ent

post-conviction court.



                                    PROCEDURAL BACKGROUND



        After the commencem of a jury trial on October 14, 1992, the petitioner elected to plead guilty to
                           ent

murder first degree, aggravated burglary, and theft of property under $500 on October 16, 1992. We glean

from the guilty plea proceedings that the petitioner and a co-defendant, Frank Whitmore, broke into the

residence of one of W ore’s relativesand killedtherelative. Two days after the murder, the petitioner gave
                     hitm

a detailed tape-recorded statement to police officers as to how the offense occurred. The state gave notice

to the petitioner that it intended to seek the death penalty. Petitioner’s counsel filed a motion to determine

whether the state could seek the death penalty, due to the petitioner’s mental retardation. At the conclusion

of a hearing on October 14, 1992 to determ the merits of the petitioner’s m
                                          ine                              otion, the trial court found by,

a preponderance of the evidence, the petitioner’s functional intelligence quotient was 70 or below and that the

petitioner had defects in adaptive behavior. This behavior was manifestedby age 18, and existed at thetime

of theoffense. The trial court granted the petitioner’s motion to exclude the death penalty, and the stategave

indications of an appeal. Subsequently, the petitioner entered his guilty pleas.



        Thepetitioner timely filed a petition for post-conviction relief alleging involuntary guilty pleas, ineffective

assistance of counsel, and prosecutorial misconduct. The petitioner filed an amended petition alleging: (1)

his mental disease or defect prevented him frommeeting the knowing and voluntary requirements for entry

of a guilty plea; (2) petitioner’s counsel and the prosecutor allowed the petitioner to enter such pleas while


                                                         2
aware of his mental condition; (3) counsel and prosecutor failed to request a hearing to determine the

petitioner’s competence to enter a guilty plea; (4) petitioner’s counsel should have filed a motion to suppress

petitioner’s statement given to the police on several additional grounds that were available; and (5)

prosecutorial misconduct in the procurem of the guilty pleas by intimidation.
                                        ent



                                   POST-CONVICTION HEARING

                                              A. Guilty Plea



        The petitioner, age 35 at the tim of the hearing, testified he pled guilty because the state intended
                                         e

to seek the death penalty on him, and he was “scared to death.” The petitioner understood pleading guilty to

mean an “easy way out” for the court and himself. The petitioner could not recall the specific details the trial

judge discussedwith him at the guilty plea hearing. The petitioner did not believe he deserved a life sentence

and wanted a new trial.



        Charles B. Dungan, Jr., licensed attorney since 1965, testified he was appointed to represent the

petitioner at the preliminary hearingand continued to do so through thetrial stage, until thepetitioner entered

his guilty pleas. After talkingto the petitioner, defensecounsel discoveredthepetitioner could not reador write

and was of obvious lowintelligence. Thus, counsel begananintensiveinvestigationintothe petitioner’s mental

background. The petitioner was sent to Middle Tennessee Mental Health Institute for an evaluation as to

competency and an insanity defense. The petitioner was found competent to stand trial, and an insanity

defense was not available.



        Based upon the findings of Middle TennesseeMental Health Instituteasto the petitioner’s low IQ, due

to mental retardation, counsel fileda motion to prevent the state fromseeking the death penalty. On October

14, 1992, counsel submittedtwo experts to thetrial court to support his position. In rebuttal, the state offered

an expert from Middle Tennessee Mental Health Institute. Prior to this hearing, the experts interviewed the

petitioner and found no incompetency.



        Counsel believed the trial court’s decision to disallowthe death penalty could possibly be overturned

on appeal. Counsel advised the petitioner that his chances in a trial were zero, and it was in his best interest

                                                       3
to enter a plea of guilty to avoid any chance of the death penalty. The primary focus of the defense was to

avoid the death penalty. Counsel testified, based upon various times and various circumstances in the past,

the petitioner’s responses wereappropriate, and he seem to understand. Counsel was of the opinion that,
                                                       ed

in the absence of the petitioner’s confession, the state could convict him As a result of their several
                                                                          .

conversations, counsel believed the petitioner understood he was entering a plea of guilty and that his

sentence would be life imprisonment.



        Craig L. Garrett, alicensedattorney since 1983, testified he wasappointed torepresent thepetitioner

as co-counsel, since the state was seeking the death penalty. Mr. Garrett testified he and Mr. Dungan talked

to the petitioner after the competency hearing and explained what had happened. Counsel had further

conversations with the petitioner the next day. M Garrett described the case as being very difficult to w
                                                 r.                                                      in,

and, if thepetitioner pledguilty, the statecouldnot appeal, and innowaycouldthepetitioner receive the death

penalty. M Garrett testified the petitioner understood what he was doing at the guilty plea.
          r.



        Mrs. Shirley Williams, one of the petitioner’s sisters, testified her brother is of low intelligence, has

difficulty understanding things, and cannot read or write. The petitioner w hit by a car at age 6.
                                                                           as



        Mrs. Nancy Cinnamon testified she is one of the petitioner’ sisters and that her brother has the mind

of a 9-year-old. In her opinion, the petitioner did not understand his charges or w he was in court.
                                                                                   hy



        In its findings of fact, the post-conviction court held the petitioner understoodthenature of the charge,

the strength of the proof against him, and the advice of his attorneys. The court found the petitioner made a

knowing and voluntary decision to plead guilty.



        Findings of the post-conviction court are binding on appeal unless the evidence preponderates

otherwise. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990); Harries v. State, 958 S.W.2d 799, 802

(Tenn. Crim. App.), per. app. denied (Tenn. 1997). This Court may not reweigh or reevaluate the evidence

or substitute its inferences for those drawn by the post-conviction court. Moreover, questions concerning the

credibility of witnesses and weight and value to be given their testimony are for resolution by the post-

conviction court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.), per. app. denied (Tenn.


                                                       4
1990).



         Whenthe accused opts to plead guilty, the plea must be voluntarily, understandingly, and knowingly

entered to pass constitutional muster. Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed.

1009 (1927); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); Parke

v. Raley, 506 U.S. 20, 29, 113 S.Ct. 517, 523, 121 L.Ed. 2d 391 (1992); Brooks v. State, 187 Tenn. 67,

72, 213 S.W.2d 7, 9 (1948). As our Suprem Court stated in State ex rel. Barnes v. Henderson, 220
                                         e

Tenn. 719, 727, 423 S.W.2d 497, 501 (Tenn. 1968), “It is recognized in this State, as in all jurisdictions, that

a plea of guilty must be made voluntarily and with full understanding of its consequences.”



         If the accused is to makea “voluntary and intelligent choice among the alternative courses of action”

available to him, counsel must advise the accused, am other things, of the choices that are available to
                                                     ong

him as well as the probable outcome of these choices. I A.B.A. Standards for Criminal Justice § 4-5.1

commentary (2ded. 1986). If counsel isconvinced that theaccused shouldaccept a plea bargain agreement

and plead guilty, counsel should recommend that the accused opt for this choice. Counsel may use

reasonablepersuasionwhen makingtherecommendation. Parham v. State, 885 S.W.2d 375, 384 (Tenn.

Crim. App.), per. app. denied (Tenn. 1994).



         Fromour review of the record, thepetitioner hasfailed to demonstrate in this appeal that the evidence

preponderates against the post-conviction court’s findings. Harries v. State, 958 S.W.2d at 802; 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); Long v. State, 510 S.W 83, 86 (Tenn. Crim. App.), cert. denied (Tenn. 1974).
                                           .2d

The guilty plea proceedings reveal the trial court, in view of the petitioner’s mental condition, carefully

questioned the petitioner as to what he was doing and his understanding of the consequences thereof in

compliance with Rule 11, Tenn. R. Crim. P. His trial counsel testified that, after their conversations, the

petitioner appeared to understand their advice and made his own decision to plead guilty. W find the
                                                                                           e

evidence in this record supports the post-convictioncourt’s finding that the petitioner’s pleas were voluntarily,

understandingly, and knowingly entered. There is no m to this issue.
                                                     erit



                               B. Ineffective Assistance of Counsel


                                                       5
        The petitioner contends that hiscounsel’s decision not to pursue a motion to suppress his confession

prior to trial was not a reasonable decision and not within the range of competence demanded by attorneys

in criminal cases. The state counters by alleging that the petitioner has failed to carry his burden of proof, and

the evidence supports the trial court’s conclusion.



        As to the facts surrounding his confession, the petitioner testified his attorneys showed him a copy of

his statem but he did not knowwhat a m
          ent,                        otion to suppress was. The petitioner advised his counsel that he

was on drugs, cocaine, at the time of the confession. The petitioner testified that, during his interview, police

officers brought his charge partner in the room, laid a pistol on the desk, and told themthat if either of them

moved or tried to attack each other, the officers would shoot them The petitioner w afraid because the
                                                                  .                as

officers turned the tape-recorder on and off and acted crazy.



        Mr. Dungan agreed the petitioner informed him of the details of the police interview and about the

pistol, but did not recall if the petitioner told him about being under the influence of cocaine at the time.

However, counsel was aware of drug involvement from the petitioner’s statement. Counsel filed a motion to

suppress the confession, but no hearing was held on the motion.



        As to the motion to suppress, co-counsel, M Garrett, testified he could not recall if the motion was
                                                   r.

heard, but heand M Dungan determined the m
                  r.                      otion hadnomerit. M Garrett described his relationshipwith
                                                             r.

the petitioner as “very good,” and they discussed the petitioner’s statem several tim Mr. Garrett found
                                                                         ent         es.

the petitioner’s statem to be detailed and contained a good grasp of what was occurring. As to the
                       ent

petitioner being on drugs at the time of the confession, Mr. Garrett testified:


                 It just didn’t sound that way. And it didn’t read that way. And it just -- there’s
                 nothing to bear that out, is the problem that we had. You know, he was
                 properly Mirandized. You know, the way the statement went, that was what
                 concerned us so much. They had both Defendants together and they would
                 ask one and then the other would chime in andsay, well, now, hold on, don’t
                 you remember thus and such, and the other one would say, oh, yeah, that’s
                 right. And it just had such a ring of, you know, of authenticity to it because
                 of the way it was taken.



        In its findings of fact, the post-conviction court found the motion to suppress was timely filed, but trial

counsel decided that the facts and law did not support the motion. Thus, counsel’s decision was within the


                                                         6
range of reasonable competence.



        In order for the petitioner to be granted relief on the ground of ineffective assistance of counsel, the

petitioner must establish that the advice given or services rendered were not within the range of competence

demandedof attorneys in criminal cases and that, but for his counsel’s deficient performance, theresult of his

trial would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80

L.Ed.2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The burden is on the petitioner

to show that the evidence preponderates against the findings of the trial court. Clenny v. State, 576

S.W 12, 13 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947 (1979). Otherwise, the findings of fact
   .2d

made by the trial court at the evidentiary hearing are conclusive on appeal. Black v. State, 794 S.W.2d

752, 755 (Tenn. Crim. App.), per. app. denied (Tenn. 1990). Moreover, this Court cannot second-guess

trial counsel’s tactical and strategic choices, unless those choices are uninformed due to inadequate

preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).



        We agree with the post-conviction court finding the decision by trial counsel to forgo the motion to

suppress thepetitioner’s confession was within the range of reasonable competence demanded of attorneys

in criminal cases. From a totality of circumstances, defense counsel found the petitioner had been properly

Mirandized; the details of the confession indicated the petitioner was not under the influence of any drug; the

coercive nature of placing the pistol on the desk was to keep thepetitioner and charge partner from attacking

one another; and the manner in which each defendant corrected the other indicated the confession was

voluntary. There is no m to this issue.
                        erit



                                                   ________________________________________
                                                   L. T. LAFFERTY, SENIOR JUDGE

CONCUR:



___________________________________
DAVID H. WELLES, JUDGE



___________________________________
JAMES CURWOOD WITT, JR., JUDGE



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