         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 7, 2001

                  MARCUS D. POLK v. STATE OF TENNESSEE

                Appeal as of Right from the Criminal Court for Shelby County
                           No. P-20491    Joseph B. Dailey, Judge



                     No. W2000-01057-CCA-R3-PC - Filed July 13, 2001


The petitioner, Marcus D. Polk, pled guilty in the Shelby County Criminal Court to criminal attempt
to commit first degree murder, especially aggravated robbery, and first degree murder and received
a total effective sentence of life imprisonment plus twenty years. Subsequently, the petitioner filed
a petition for post-conviction relief alleging the ineffective assistance of his plea counsel, which
petition was denied by the post-conviction court. Upon review of the record and the parties’ briefs,
we affirm the judgment of the post-conviction court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE , P.J., and
DAVID H. WELLES, J., joined.

R. Price Harris, Memphis, Tennessee, for the appellant, Marcus D. Polk.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Dan Byer, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background
                On April 20, 1998, the petitioner, Marcus D. Polk, pled guilty in the Shelby County
Criminal Court to criminal attempt to commit first degree murder, especially aggravated robbery,
and first degree murder. The trial court sentenced the petitioner to twenty years incarceration in the
Tennessee Department of Correction for the criminal attempt to commit first degree murder
conviction and to fifteen years incarceration for the especially aggravated robbery conviction with
the sentences to be served concurrently. The trial court further sentenced the petitioner to life
imprisonment for the first degree murder conviction, which sentence is to be served consecutively
to the other sentences for a total effective sentence of life imprisonment plus twenty years.
Subsequently, the petitioner filed a petition for post-conviction relief alleging that (1) he received
the ineffective assistance of his plea counsel because his plea counsel did not adequately investigate
the petitioner’s case or keep the petitioner apprised of information concerning his case, (2) counsel
failed to inform the petitioner that the instant convictions could be used to enhance future sentences
or impeach the petitioner at later proceedings, and (3) counsel strongly encouraged him to plead
guilty and coerced him into pleading guilty by bringing the petitioner’s mother to the courtroom on
the day of trial. After an evidentiary hearing, the post-conviction court denied the petition for relief.
On appeal, the petitioner presents the following issue for our review: whether the post-conviction
court erred by failing to grant the petition for relief.

                                            II. Analysis
                The petitioner must prove all factual allegations contained in his post-conviction
petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). “Evidence is
clear and convincing when there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). Generally, the post-conviction court, not the appellate courts, must determine witness
credibility as well as the weight and value to be accorded their testimony. Black v. State, 794
S.W.2d 752, 755 (Tenn. Crim. App. 1990). Accordingly, this court will confer the weight of a jury
verdict upon the findings made by the post-conviction court at a hearing after observing witnesses
testify and considering conflicting testimony. Bratton v. State, 477 S.W.2d 754, 756 (Tenn. Crim.
App. 1971).

                As to the specific issue raised by the petitioner, our supreme court recently clarified
the standard for reviewing claims of ineffective assistance of counsel by stating that
                a [post-conviction] court’s conclusion as to whether a petitioner has
                been denied the effective assistance of counsel is an issue that
                presents a mixed question of law and fact . . . that is reviewed [on
                appeal] under a de novo standard of review, consistent with the
                standards set forth in the Rules of Appellate Procedure. As such, a
                [post-conviction] court’s findings of fact underlying a claim of
                ineffective assistance of counsel are reviewed on appeal under a de
                novo standard, accompanied with a presumption that those findings
                are correct unless the preponderance of the evidence is otherwise.
                However, a [post-conviction] court’s conclusions of law--such as
                whether counsel’s performance was deficient or whether that
                deficiency was prejudicial--are reviewed under a purely de novo
                standard, with no presumption of correctness given to the [post-
                conviction] court’s conclusions.
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

                                A. Ineffective Assistance of Counsel
               In order to establish ineffective assistance of counsel, the petitioner must demonstrate
that the performance of counsel was deficient and that such deficiency prejudiced the petitioner by
creating a reasonable probability that the result of his trial is unreliable or the proceedings were


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fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).
To this end, this court must decide whether counsel’s performance was within the range of
competence required of attorneys in criminal cases in evaluating whether or not counsel’s
performance was deficient. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Moreover, “[i]n
cases involving a guilty plea . . ., the petitioner must show ‘prejudice’ by demonstrating that, but for
counsel's errors, he would not have pleaded guilty but would have insisted upon going to trial.”
Hicks, 983 S.W.2d at 246; see also Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

                                        i. Failure to Investigate
                 The petitioner claims that his counsel was ineffective for failing to adequately
investigate his case, specifically alleging that counsel did not interview all available witnesses.1 The
petitioner testified at the post-conviction hearing that he gave counsel a list of the names of potential
witnesses, only two of whom the petitioner claimed were actually interviewed by counsel. The
petitioner alleged that he had spoken with the remaining people on the list and had confirmed that
they were never contacted by counsel. However, none of these potential witnesses testified on the
petitioner’s behalf at the post-conviction hearing. See Thompson v. State, 958 S.W.2d 156, 164
(Tenn. Crim. App. 1997) (finding that this court is not permitted to speculate as to what a potential
witness’ testimony might have been); William A. Holt, Jr. v. State, No. M2000-01603-CCA-R3-PC,
2000 WL 1612352, at *3 (Tenn. Crim. App. at Nashville, October 30, 2000), perm. to appeal denied,
(Tenn. 2001). Moreover, the petitioner did not state what evidence these witnesses would have
offered had counsel spoken with them. See Clonte Thomas v. State, No. 02C01-9408-CR-00167,
1995 WL 120220, at *2 (Tenn. Crim. App. at Jackson, March 22, 1995).

                 The petitioner additionally maintained that he met with counsel infrequently, that
during those meetings counsel did not share with him information regarding the petitioner’s case,
and that counsel failed to discuss all aspects of a guilty plea with the petitioner. The petitioner
testified that he informed the trial judge during the guilty plea hearing that he was not satisfied with
the representation of counsel, but conceded that his only specific complaint to the trial court was that
he did not like counsel’s demeanor. The petitioner admitted that he did not tell the trial court that
counsel had provided ineffective assistance during the course of counsel’s representation.

                In direct contrast with the petitioner’s testimony, the petitioner’s plea counsel testified
that he had thoroughly investigated the petitioner’s case. Counsel maintained that either he or the
investigator associated with his office spoke with every potential witness on the list provided by the
petitioner. He asserted that he met with the petitioner more times than the petitioner claimed.
Counsel testified that he discussed the case at length with the petitioner and made information the
petitioner requested available to him. Moreover, counsel stated that he explained all of the
petitioner’s rights to the petitioner and reviewed every piece of information relating to the plea
agreement with the petitioner.


         1
            The reco rd indicates th at the petitioner was represe nted at the time of the guilty plea by Ron Johnson and
Betty Thomas. However, the petitioner’s testimony at the post-conviction hearing and the argume nts in the petitione r’s
brief clearly show that he is only complaining of the ineffective assistance of Johnson, the lead counsel in his case.

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                The post-conviction court chose to accredit the testimony of counsel that he had
thoroughly investigated the petitioner’s case, that he was prepared to go to trial, and that he had
sufficiently discussed the case with the petitioner. See Thomas, No. 02C01-9408-CR-00167, 1995
WL 120220, at *2. We can find no evidence in the record to preponderate against the post-
conviction court’s findings because “[t]he [post-conviction] court was in a much better position to
evaluate the credibility of the witnesses than this Court.” Tyrone Henderson v. State, No. 02C01-
9610-CR-00376, 1997 WL 566053, at *6 (Tenn. Crim. App. at Jackson, September 12, 1997). This
issue is without merit.

                                             ii. Prior Record
                 In his brief on appeal, the petitioner contends that the post-conviction court erred in
failing to grant relief because counsel “failed to advise [the petitioner] of the State’s ability to use
his prior record against him both at this trial and in the future to either impeach his credibility and/or
enhance punishment.” However, in the petitioner’s original petition for post-conviction relief, he
argues that “he was not informed that the [instant] convictions could be used to enhance punishment
for subsequent convictions.” Regardless of how the issue is phrased, the record clearly shows that
the petitioner did not present any evidence concerning this issue at the post-conviction hearing.
Accordingly, the petitioner has waived this issue. See Michael L. Gribble v. State, Nos. 02C01-
9303-CC-00039, 02C01-9303-CC-00045, 1995 WL 46379, at *5 (Tenn. Crim. App. at Jackson,
February 8, 1995) (stating that “[i]ssues . . . cannot be raised on appeal unless they have been fully
litigated at the [post-conviction] court level”); see also Willie L. Pegues v. State, No. 02C01-9705-
CR-00182, 1998 WL 155441, at *3 (Tenn. Crim. App. at Jackson, April 6, 1998).

                                           iii. Coerced Plea
                The petitioner’s third claim of ineffective assistance of counsel stems from his
attorney’s performance during the guilty plea proceedings. However, we note that the petitioner has
failed to include in the record for our review a transcript of the guilty plea hearing. The transcript
of the guilty plea hearing was before the post-conviction court, and the post-conviction court’s
decision was heavily based upon the contents of that transcript. It is the petitioner’s duty to make
sure that a complete and accurate record is before this court on appeal; otherwise, the issues raised
by the petitioner may be considered waived. See Thompson, 958 S.W.2d at 172; State v.William
Ricky Wayne Herrell, No. M1999-02475-CCA-R3-CD, 2000 WL 804712, at *4 (Tenn. Crim. App.
at Nashville, June 23, 2000). However, based upon the testimony at the post-conviction hearing, we
can conclude that the weight of the evidence does not preponderate against the post-conviction
court’s findings of fact.

               The petitioner testified at the post-conviction hearing that he was displeased with the
representation of his attorney because he had specifically instructed counsel not to bring petitioner’s
mother to court on the day of trial. The petitioner explained that he made this request because his
mother had repeatedly asked him to plead guilty instead of going to trial to avoid the risk of receiving
a sentence of death. However, counsel testified he was prepared to go to trial and he foresaw a
possible need for the petitioner’s mother to testify after trial should a sentencing hearing be held that
day. Accordingly, counsel requested that the petitioner’s mother be present in court on the day of


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the petitioner’s trial. The petitioner testified that, when he entered the courtroom and saw his mother
crying, he became so upset that he immediately made the decision to plead guilty. Notably, the
petitioner repeatedly testified at the post-conviction hearing that the decision to plead guilty was his.
See Donald Robert Smith, Jr. v. State, No. 02C01-9111-CR-00244, 1992 WL 361344, at *1 (Tenn.
Crim. App. at Jackson, December 9, 1992).

                The petitioner also contends that he pled guilty because of pressure from counsel.
He testified that he felt that his counsel did not want to represent him at trial and did not discuss all
aspects of the case with him. However, the petitioner admitted that he had told the trial court during
his guilty plea hearing that he had entered the guilty pleas freely and voluntarily and of his own
accord. See Darrell Rittenberry v. State, No. 89-278-III, 1990 WL 124559, at *8 (Tenn. Crim. App.
at Nashville, August 29, 1990). The petitioner also testified that he knew he had the option of going
to trial. Specifically, when asked by his post-conviction counsel if, based upon his current
knowledge of his case, he would have done anything differently during the guilty plea hearing, the
petitioner conceded, “ I really–I really can’t say because if I had a choice to do anything different,
I could have did it while I was on the stand.” Additionally, the petitioner stated that, while he may
not have known all of the information relating to his guilty plea until he was informed by the judge
prior to the plea, he nevertheless understood all the legal aspects of his decision.

                Again, petitioner’s plea counsel testified that he thoroughly investigated the
petitioner’s case. Counsel testified that he had worked for the public defender’s office for eighteen
years, approximately seven of which he spent working on the capital defense team through which
he encountered the petitioner. He maintained that he was prepared to go to trial on the day of the
petitioner’s guilty plea. He averred that he talked with the petitioner at length concerning his case
and the petitioner was aware of all aspects of the case. He contended that the petitioner was “in full
control” on the day of the guilty plea and was no more “stressed” than the typical defendant in the
petitioner’s position. Counsel did admit that he advised the petitioner against going to trial because
of the strength of the State’s case, but noted that he made the petitioner aware that the decision to
plead guilty or proceed to trial was ultimately the petitioner’s.

              The post-conviction court found:
              [I]t is very apparent to this Court that [petitioner’s counsel] provided
              excellent representation for [the petitioner]. [Counsel] did everything
              that could have been reasonably expected.... and were in fact ready to
              proceed with trial. . . . It was [the petitioner] who chose to change his
              plea from not guilty to guilty on that date. It is abundantly clear from
              the transcript of the guilty plea that [the petitioner] freely and
              voluntarily entered that plea after having been fully advised of his
              rights. It is this Court’s opinion that [counsel’s] representation of [the
              petitioner] was outstanding in every regard and clearly met the
              standards of [effective representation].
We conclude that because “the petitioner followed the advice of . . . his mother . . . and his trial
counsel does not mean that the plea was involuntary.” Adrian Waite v. State, No. 03C01-9809-CR-


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00343, 1999 WL 642927, at *3 (Tenn. Crim. App. at Knoxville, August 25, 1999), perm. to appeal
denied, (Tenn. 2000).

                                       iv. Cumulative Error
               Finally, the petitioner claims that the cumulative effect of the foregoing errors
“serve[s] to show that he did not receive the level of representation required by [Strickland and
Baxter].” However, because we have found no error, we deem the petitioner’s final allegation to be
without merit.

                                       III. Conclusion
               Based upon the foregoing, we affirm the judgment of the post-conviction court.


                                                     ___________________________________
                                                     NORMA McGEE OGLE, JUDGE




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