        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE            FILED
                       MARCH SE SSION, 1998          July 2, 1998

                                                Cecil W. Crowson
RICKY RUTLEDGE,            )                  Appellate Court Clerk
                               C.C.A. NO. 01C01-9706-CC-00201
                           )
      Appe llant,          )
                           )
                           )   BEDFORD COUNTY
VS.                        )
                           )   HON. WILLIAM CHARLES LEE
STATE OF TENNESSEE,        )   JUDGE
                           )
      Appellee.            )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF BEDFORD CO UNTY



FOR THE APPELLANT:             FOR THE APPELLEE:

ROBERT H. STOVALL, JR.         JOHN KNOX WALKUP
P.O. Box 160                   Attorney General and Reporter
Charlotte, TN 37036
                               CLINTON J. MORGAN
                               Assistant Attorney General
                               425 5th Avenu e North
                               Nashville, TN 37243-0493

                               MIKE McCOWN
                               District Attorney General

                               ROBERT G. CRIGLER
                               Assistant District Attorney General
                               One Public Square, Suite 300
                               Shelbyville, TN




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                                 OPINION

          The Petitioner, Ricky Rutledge, appeals from the order of the trial court

dismissing his Petition for Post C onviction Relief.                                    Pe titioner sou ght post-

conviction relief asserting that he received ineffective assistance of counsel prior

to entering his plea of guilt. In addition, Petitioner maintains that because of

coun sel’s deficient represe ntation, his guilty plea was not knowingly, intelligently,

and voluntarily given. Following an evidentiary hearing, the trial court denied

relief and we affirm.




          In April 1990, Petitioner was indicted on six counts of aggravated rape1 and

one count of aggravated sexual battery . The v ictim a s set fo rth in the indictment

was the 9-ye ar-old da ughter o f the Defe ndant. P etitioner en tered a “b est interes t”

guilty plea on December 17, 1990, to the first count of aggravated rape; and the

State retired all other counts of this indictment as well as a prior indictment for

multip le coun ts of pa ssing worth less ch ecks . Judg e Cha rles Le e of the Circu it

Court for Bedford Coun ty sentenced Petitioner to twenty-five years as a Range

I standard offend er.




          Petitioner filed a pro se Petition for Po st Con viction Relief in the Cir cuit

Court for Bedford County on November 22, 1993; the trial court appointed

counsel on March 24, 1994; and an amended Petition was filed with the court on



          1
           Petitioner was indicted for five counts of aggravated rape in violation of Tennessee Code Annotated § 39-2-603 (1982
& Supp. 1988), and one count of aggravated rape in violation of Tennessee Code Annotated § 39-13-502 (1990).

                                                             -2-
May 26, 1994. The trial cou rt held an evidentiary hearing over the course of May

26 and 2 7, 199 4, and dism issed the Pe tition at th e con clusio n of this hearing. On

February 17, 1997, the trial court entered its Order Dismissing Post Conviction

Petition, from which th e Petitione r appea ls.




                          I. INEFFECTIVE ASSISTANCE OF COUNSEL

          The first issue for review is whether Petitioner suffered ineffective

assistance of counsel in violatio n of his Sixth A men dme nt right to coun sel. 2 The

Petition presents several claims for post-conviction relief based upon ineffective

assistance of couns el, yet only certain of these claims were pursued at the

evidentiary hearin g. Bec ause the Pe titioner b ears th e burd en of p roving his

factual allegation s in this proc eeding , Tenn. C ode An n. § 40-30-2 10(f) (1997), we

will address only those claims for which proof was offered.




                                              A. Failure to Investig ate

          First, Petition er ass erts tha t coun sel faile d to ad equa tely inve stigate his

case—spec ifically, by failing to d etermin e the m eaning and sign ificance o f a

diagn osis made following a medical examination of the victim. To be entitled to

post-conviction relief on the basis of ineffective assistance of counsel, Petitioner

must show both that his counsel’s representation was “deficient” and that “the



          2
              The State raises two “preliminary” issues that may be addressed here. First, the State argues that this Court should
affirm “instanter” the decision of the trial court, due to the Petitioner’s failure to prepare a complete record for appeal. The trial
court’s findings of fact, incorporated by reference in its Order, were not attached to the Order in preparation for the hearing of this
appeal. The record reflects, however, that the State did not respond to a motion by Petitioner to permit supplementation of the
record pursuant to Tennessee Rule of Appellate Procedure 24(e); and the motion was granted on October 1, 1997.
            Second, the State urges that the Petitioner’s Amendment to Petition for Post-Conviction Relief be stricken from the
record as an “unauthorized pleading.” Although this pleading was not signed by appointed counsel, it was signed by Petitioner
himself; and in the interest of justice, we choose to consider its allegations, noting the objection by the State.

                                                                 -3-
deficient performan ce prejudiced the defense .” Strickland v. Washington, 466

U.S. 668, 687 (1984). Because Petitioner h as failed to satisfy e ither pro ng, this

claim lac ks me rit.




       This Court has been provided extensive guidance by which to review

contentions that conduct was below competence when judged by “an objective

standard of reasonab leness.” See id. at 688; see also Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975) (“We b elieve a bette r stand ard . . . is s imply

whether the advice given, or the services rendered by the attorney, are within the

range of com petenc e dem anded of attorney s in crimin al cases .”). We be gin with

the princip le that fin dings of fact m ade b y the tria l court fo llowing Petition er’s

evidentiary hearing are conclusive and binding on this Court unless the evidence

preponderates against th ose findin gs. Coop er v. State , 849 S.W.2d 744, 746

(Tenn. 1993) (citing Butler v. S tate, 789 S.W .2d 898, 899 (Tenn. 199 0)). In this

case, the trial court was “convinced, based upon his demeanor and based upon

his answe rs to the qu estions,” th at John Norton , one of P etitioner’s prior

attorneys, was “fam iliar with those terms o f art” that Petitioner now claims were

not invest igated . We h old tha t the ev idenc e doe s not p repon derate again st this

determination and we exam ine the ev idence with resp ect to failure to investiga te

the medical diagnosis of the victim.




       To support his first claim, Petitioner entered two exhibits into the record of

the evidentiary hearing. The first exhibit was a letter from Dr. Frank Jayakody of

Shelb yville to Brenda Bramlett, Petitioner’s other attorne y at the time o f his guilty


                                           -4-
plea. This letter stated that upon examination of the victim on February 27, 1990,

Dr. Jayakody found “no abrasions or discoloration in [the victim’s] perineal area

and her hymen appeared intact.” Furthermore, “[a]ttempts to inse rt a ped iatric

speculum into her vagina was [sic] unsuccessful due to pain,” and “based upon

her exa mination . . . I could not co nclusive ly say tha t any abu se had occurre d.”

The second exhibit relevant to this iss ue, a “C hild Ab use B odyg ram” of the v ictim

signed by Registered Nurse LeeAnne McInnis at Metropolitan General Hospital

in Nashville, revealed “Findings [consistent with] past his tory of traum a to

hymen =category 3 findings.”




            The crux of Petitioner’s argument is that Brenda Bramlett and John Norton

shou ld have researched the term “category 3 findings” to determine whether such

trauma can result from causes other than sexual abuse. Specifically, Petitioner

argues that Br amle tt and N orton c ould h ave d iscovered that D r. Jaya kody ’s

frustrated attempts to insert a pediatric speculum into the victim three days

earlier3 were within the range of potential causes. At the evidentiary hearing,

however, Petitioner presented no evidence to support his hypothesis; counsel

mere ly motioned to continue the proceeding until su ch tim e as e viden ce co uld be

presented.4




            3
                Thoughthe bodygramis not dated, the State does not seem to dispute the date of the victim’s examination at General
Hospital.

            4
              Petitioner recounted difficulty in locating Nurse McInnis for interview and requested that the trial court provide funds
for an expert. We note that our Supreme Court “is of the opinion that the state is not required to provide expert assistance to
indigent non-capital post-convictionpetitioners.” Davis v. State, 912 S.W.2d 689, 696-97 (Tenn. 1995); and we accept the decision
of the trial court to deny Petitioner’s request for an expert as correct.

                                                                -5-
         As noted by this Court in Black v. S tate, 794 S.W.2d 752 (Tenn. Crim. App.

1990),

                 When a petitione r conten ds that trial co unsel failed to
         discover, interview, or present witnesses in support of the defense,
         these witnesses should be presented by the petitioner at the
         evidentiary hearing. . . . It is elementary that neither a trial judge nor
         an appellate court can speculate or guess on the question of
         whether further investigation would have revealed a material witness
         or what a witness’s testimony might have been if introduced by
         defense counsel. . . . In short, if a petitioner is able to establish that
         defense coun sel wa s defic ient in th e inve stigation of the facts . . .,
         the petitioner is n ot entitled to re lief from his con viction on this
         ground unles s he ca n prod uce a mate rial witness who (a) cou ld
         have been found by reasonable investigation and (b) would have
         testified favorably in support of his defense if called.

Id. at 757-58 (footnote omitted). Although Black involve d a co nvictio n after tr ial,

its import is also well-taken in the context of guilty pleas. Petitioner bears the

burden to demonstrate (1) that Bramlett and Norton failed to investigate “categ ory

3 findings” of trauma and such failure was unreasonable “considering all the

circum stance s,” Strickland, 466 U.S. at 688; and if so, (2) that “there is a

reaso nable probability that, but for counsel’s errors, he would not have pleaded

guilty and wou ld have insisted o n going to trial.” Hill v. Lockhart, 474 U.S. 52, 59

(1985). Petitioner must do more than merely present evidence tending to show

incompetent representation and prejudice; he must prove his factual allegations

by a prepo nderan ce of the e vidence . Brooks v. State, 756 S.W.2d 288, 289

(Tenn. Crim . App., 1988). 5




         5
          For post-conviction petitions filed after May 9, 1995, petitioners have the burden of proving
factual allegations by clear and convincing evidence. Tenn. Co de Ann. § 40-30-210(f).

                                                 -6-
       As recognized, Pe titioner h as pre sente d no a ffirmativ e evid ence on this

issue other than to show on cross exam ination that Norton never spok e with Dr.

Jayakody or Nurse McInnis and did not investigate their findings, and that

Bram lett only spoke with Nurse McInnis by telephone. By explanation, Norton

testified that he did not sp eak w ith Dr. J ayak ody b ecau se, in h is experien ce, if a

“doctor really wants his opinion to be credible, he puts everything in it that he did,

and you get back a report” that is “graphic” and detailed. For this reason, Norton

stated that he “did not have any reason to believe that [Dr. Jayakody] would have

been any m ore enligh tening in p erson th an he w as on the written pa ge.” In

addition, Norton testified that he did not speak with Nurse McInnis because he

presumed she would not change her opinion and because he believed, even from

his admittedly limited medical know ledge, that Dr. Jayakody could not have

cause d the injury that Nurs e McIn nis found .




       Petition er’s other counsel, Brenda Bramlett, testified at the ev identiary

hearing that while she had not spoken with Dr. Jayakody personally, she had

consulted another doctor about Jayakody’s findings. This consultant doctor

spoke personally with Dr. Jayakody and subsequently offered Bramlett her

opinion—that the victim’s injury “could not have been caused by anything other

than abuse” and that the location of the scarring was “consistent with what you

find in sexual abu se cases.” Furtherm ore, Bram lett instructed her inves tigator to

perso nally interview Nurse McInnis, and the investigator complied and reported

back to B ramlett.




                                           -7-
       With respect to rationalization of attorney conduct in an ineffective

assistance of counsel case, the Supreme Court of the United States instructed,

              Judicial scrutin y of co unse l’s perfo rman ce m ust be highly
       defere ntial. It is all too tempting for a defendant to second-guess
       coun sel’s assistan ce after conviction or ad verse se ntence . . . . A
       fair assessment of attorn ey perform ance requ ires that every effort
       be made to elimina te the disto rting effects of hin dsight, to
       reconstruct the circumstances of counsel’s challenged conduct, and
       to evaluate the conduct from counsel’s perspective at the time.

Strickland v. Washington, 466 U.S. 668, 688 (1984). The courts of this state also

have long “recognized that it is not our function to ‘second-guess’ tactical and

strategical choices pertaining to defense matters or measu re a defense attorney ’s

representation by ‘20-20 hindsight’ when deciding the effectiveness of trial

couns el.” Coop er v. State , 849 S.W.2d 744, 746 (Tenn. 1993) (quoting Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). We find counsel’s conduct to be

reason able un der the c ircums tances .




       As the State commented at the evidentiary hearing, “There are other

sources of research that [sic] the medical books, other doctors, criminal defenses

association resources, where [present counsel] could have resea rched this

matter hims elf and not co me in to [the] h earing saying , ‘Well, it may have , it could

have been.’” The trial court agreed, finding that “there has not been a showing

to the Court that there would be the likelihood that would a ssist the D efenda nt.”

In the absence of sufficient evidence to support either Strickland prong, and with

the presence of evidence supporting reasonable conduct by counsel, we must

hold that the evidence does not preponderate against the trial court’s finding of




                                           -8-
no ineffective assistance of couns el based upon fa ilure to inves tigate the medical

eviden ce.




                        B. Failure to Advise/Misinformation

       Petitioner next claims that he suffered ineffective assistance of counsel

because prior co unse l incorre ctly inform ed him that he would be released from

incarceration after servin g seve n and o ne-half to e ight years of his sen tence w ith

good beh avior. As noted above, Pe titioner was sente nced to twe nty-five years

as a Range I offender. Eligibility for parole arises for Range I offenders after

completion of thirty percent of the actual sentence imposed. Tenn. Code Ann.

§ 40-35-5 01(c) (19 90). Petitioner testified at the evidentiary hearing that he will

not be re leased from inca rceration until after serv ice of eigh teen ye ars.

       Although the rea son fo r prolon ged c onfine men t is not p resen ted in

Petition er’s brief or his testimony, we assume it results from Tennessee Code

Anno tated § 40-35-503(c) (1990), which reads: “No person convicted of a sex

crime shall be releas ed on parole until a p sych iatrist or licensed clinical

psychologist has examined and evaluated such inmate and certified that, to a

reaso nable medical certainty, the inmate does not pose the likelihood of

committing sexual assaults upo n release from confineme nt.” Id. For whatever

reason , there are two distinc t issues tha t we m ust cons ider.




       First, did counsel promise or otherwise misinform Petitioner regarding the

actual date h e wou ld be re lease d? Th e trial co urt spe cifically fo und th at they did

not: “[T]he Court credits the witnesses for the State, or credits the witnesses for


                                            -9-
the State in tha t no prom ises were made to the Defendant that he would be

released, guaranteed at a particular time.” Upon examination of the testimony

at Petitioner’s evidentiary hearing, we conclude that the evidence does not

prepondera te again st this fin ding.      B oth N orton a nd Br amle tt testified

uneq uivoc ally they did not guarantee or represent to Petitioner that he would be

released at any certain time. Moreover, they testified they did not indicate to him

that he would be released at a certain time, although they agree d that h e was told

he would be “eligible for parole” after serving thirty percent of his sentence.

Furthermore, the transcript of Petitioner’s plea acceptance hearing reflects the

following colloquy between the trial judge and P etitioner:

      THE COURT: M r. Rutledge, has anyone made any threats against
      you, other than to prosecute you, to make you plead guilty?

      THE DEFE NDA NT: N o, sir.

      THE COURT: Has anyone made any promises to you other than
      those announced in court today to make you plead guilty?

      THE DEFE NDA NT: N o, sir. I just ask ed for o ne thin g, and he told
      me he couldn’t d o that.

      THE COURT: Pardon me?

      THE DEFENDANT: I asked him for one thing, and he said he
      could n’t do that. I wanted one more thing in the plea bargain, and
      he could n’t com e abo ut that. I a sked him -- to report myself in after
      the holidays to the Bedford C ounty She riff’s Office --

      THE COURT: That’s a decision that is left up to the Co urt and not
      to the --

      THE DEFENDANT: -- and he said he couldn’t make that
      arrange ment. T hat’s the o nly thing.

Based upon this evidence, we conclude (1) that Petitioner was not promised or

given the info rmatio n that h e wou ld be released after serving seven and one-h alf


                                        -10-
years or any other s pecific length of his sentence, and (2) that this Court has no

basis upon which to determine the information provided to Petitioner—that he

would b e “eligible for re lease” afte r serving th irty percen t—w as incorre ct. 6




          The second q uestion to con sider is: Did coun sel’s failure to advise

Petitioner that he would not be released after serving th irty perc ent of h is

sentence constitute ineffective assistance of counsel? Initially, we note that

Petitioner has fa iled to p rovide evide nce o ther tha n his own testimony of

inadm issible hearsay statements by Department of Correction officers to show

that he will in deed not be releas ed afte r havin g serv ed thirty perc ent of h is

sentence, although the trial cou rt agreed that release at that tim e wou ld be h ighly

unlikely. Next, Petitioner testified he was actually advised prior to pleading guilty that he would

be requ ired to com plete a se x offende rs’ treatme nt progra m as a condition of his paro le.




           This Court has previously determined that “silence by counsel” on “any

collateral consequences of a plea” does not “fall below the range of competence

demanded of attorneys in criminal cases.” Adkins v. State, 911 S.W.2d 334, 350

(Tenn. Crim. App. 1994). Specifically, failure of cou nsel to discus s paro le

eligibility or the parole condition of successfully completing a sexual offender

treatment program does not constitute ineffective assistance of couns el. Wade

v. State, 914 S.W.2d 97, 103-04 (Tenn. Crim. App. 1995); Wilson v. State, 899

          6
               This is not a case, as in Hill v. Lockhart, 474 U.S. 52, 54-55 (1985), in which counsel has given erroneous advice.
See id. (counsel told defendant he would be eligible for parole after serving one-third of sentence, when defendant was actually
not eligible for parole prior to serving one-half of his sentence); see also Donald F. Walton v. State, C.C.A. No. 01C01-9603-CR-
00110, Davidson County (Tenn. Crim. App., Nashville, Jan. 30, 1997) (finding that “erroneous advice regarding parole that induces
a defendant to forego his or her right to a jury trial can be used to establish a claim for ineffective assistance”). As just discussed,
the trial court found that Petitioner was advised only that he would be eligible for parole at thirty percent. Although Petitioner may
have other parole conditions such as psychological evaluation, he remains “eligible for parole” at thirty percent.

                                                                -11-
S.W.2 d 648, 652-53 (Tenn. Crim. App. 1994). In light of these decisions, we

cannot conclude that counsel had a duty to advise Petitioner of consequences

even more collateral an d certainly indefinite— the length of time it cou ld take to

fulfill conditions of parole.       We conclude that Petitioner has not suffered

ineffective assista nce o f coun sel ba sed u pon m isadvice or failure to advise

regardin g cond itions of pa role eligibility.




                    II. VOLUNTARY AND INTELLIGENT PLEA

       Because we have determined that Petitioner’s ineffective assistance of

counsel claims lack merit, because ineffective assist ance was th e only basis

upon which he claimed his plea w as involu ntary or u nintelligent, and because we

find no other basis to conclude that his plea was not rendered volun tarily, w e hold

that this claim mus t also fa il.




       The judgment of the trial court denying the Petitioner post-conviction relief

is affirmed.

                                     ____________________________________
                                     DAVID H. WELLES, JUDGE




CONCUR:




___________________________________
JOSEPH M. TIPTON, JUDGE


___________________________________
JOE G. RILEY, JUDGE


                                           -12-
