        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON               FILED
                          AUGUST SESSION, 1997          October 28, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

ANTH ONY L. WAS HING TON ,        )   C.C.A. NO. 02C01-9610-CR-00373
                                  )
            Appe llant,           )
                                  )    SHELBY COUNTY
                                  )
V.                                )
                                  )    HON . JAME S C. B EASLE Y, JR.,
STATE OF TENNESSEE,               )    JUDGE
                                  )
            Appellee.             )    (POST-C ONVIC TION)




FOR THE APPELLANT:                FOR THE APPELLEE:

GERAL D SKAH AN                   JOHN KNOX WALKUP
140 North Third Street            Attorney General & Reporter
Memphis, TN 38103
                                  KENNETH W. RUCKER
                                  Assistant Attorney General
                                  2nd Floor, Cordell Hull Building
                                  425 Fifth Avenue North
                                  Nashville, TN 37243

                                  JOHN W. PIEROTTI
                                  District Attorney General

                                  JANET SHIPMAN
                                  Assistant District Attorney General
                                  201 Poplar Street, Suite 301
                                  Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION

       Petitioner, Antho ny W ashin gton, a ppea ls the trial cou rt’s den ial of his

petition for post-co nviction relief. P etitioner wa s charg ed with the crimes of first

degree murder, theft, aggravated robbery (four counts) and especially aggravated

robbery (two cou nts). He pled guilty in October 1995. Petitioner was sentenced

to life imprisonment on the first degree mu rder charge, fou r (4) years

incarceration on the theft charge, four (4) sentences of twelve (12) years

incarceration on the aggra vated robbe ry charges, an d two (2) sentences of

twenty-five (25) years incarceration for each especially aggrava ted robbery

conviction, with all sentences to run con currently. Petitioner only challenges the

conviction for first degree murde r. He argu es that he was de nied his S ixth

Amendment right to the e ffective ass istance o f counse l. We affirm the judgment

of the trial cou rt.



       “In post-conviction relief proceedings the petitioner has the burden of

proving the allegations in his pe tition by a preponderance of the e vidence .”

McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the

factual findings of the trial court in hearings “are conclusive on appeal unless the

evidence preponde rates against the judgmen t.” State v. Buford , 666 S.W .2d 473,

475 (Tenn . Crim. A pp. 198 3).      In reviewing the Sixth Amendment claim of

ineffective assistance of counsel by Petitioner, this court must determine whether

the advice given or services rendered by the attorney are within the range of

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

S.W.2d 930, 936 (T enn. 1975 ). To pr evail on a claim of ineffective assistance of



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counse l, a petitioner “must show that counsel’s representation fell below an

objective standard of reasonableness” and that this performance prejudiced the

defense.       To satisfy the requ irement of prejud ice, Petitioner would h ave to

demo nstrate a reasonable probability that, but for counsel’s errors, he would not

have pled guilty and would h ave insiste d on go ing to trial. See Hill v. Lockhart,

474 U.S. 52 , 59 (198 5); Banks ton v. State , 815 S.W.2d 213, 215 (Tenn. Crim.

App. 1991 ).



          Two witnesses testified at the hearing on the petition for post-conviction

relief.    First, the Pe titioner testified reg arding his claim s of trial c ouns el’s

ineffectiveness. He stated tha t counse l only me t with him s even tim es prior to

trial, for a period of five (5) to ten (10) min utes pe r visit. Due to the short nature

of the meetings, in which Petitioner felt rushed, he did not have time to

adeq uately confer with his coun sel. Petitioner then testified that he had provided

names of poten tial alibi witnesses, including his grandmother, Bertha Woods, and

an unidentified neighbor, but counsel failed to interview or subpoena them for

trial.



          Petitioner further testified that coun sel failed to provide him with copies of

any discovery information. Another allegation by Petitioner was th at counsel

failed to file pre-trial motions, specifically including a motion to suppress

Petition er’s statement. Petitioner stated that he was seventeen (17) years old at

the time he was questioned by the police, and that he made the statement

admitting the above acts only because the police were threatening him. When

Petitioner questioned counsel regarding the motion to suppress, he told Petitioner

he was “pu tting it off until further notice.”

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       On the issue of his plea agreem ent, Petition er stated that coun sel failed to

correc tly inform him of the consequences of that plea as counsel advised him that

he would only serve a period of sixteen (16) and one-half (½) years incarceration.

When Petition er told c ouns el he d id not wan t to plead g uilty to the murder charge,

but only to the remaining charges, counsel informed Petitioner that the plea was

“all or nothing.” As a result of all of the above, Petitioner claims that counsel was

inade quate ly prepared for trial and that he was, therefore, forced to plead g uilty.



       Trial counsel testified for the State regarding his representation of

Petitioner. He wa s appo inted to rep resent P etitioner an d worke d closely w ith

Petitioner’s mother, Jacqueline Washington, throughout the case. Counsel

stated that it was his practice to confer on Sunday afternoons with clients who

were in jail, and therefore he normally met with Petitioner on that particular day

of the we ek. He a lso me t with Petitioner on various occasions when they were

in court.   Counsel reported that in his claim for attorney’s fees, he was

reimbursed for 12.7 hours in co urt and 14.5 h ours of time spent out of court on

Petition er’s case. Also, counsel stated that any short meetings betwe en him self

and Petitioner, of a dura tion les s than half an hour, w ere no t record ed on this

sheet a s he did n ot ask for c ompe nsation fo r that am ount of tim e.



       Counsel interviewed the only alibi witness Petitioner named, Bertha

Woods. Ms. Woods, Petitioner’s grandmother, was in poor health and had no

spec ific recollection of the events that took place on the day in question, therefore

counsel was not able to use her as an alibi witness. Counsel recalled that

Petitioner told him an up stairs n eighb or wou ld also serve as an alibi witness, but

Petitioner could not recall that neighbor’s name. The attempts of counsel and

                                          -4-
Petitioner’s mother to locate this witness were to no avail. Counsel recollected

that Petitioner got copie s of all of th e disco very info rmatio n whic h was availab le

to him prior to tr ial.



       On the issue of pre-trial motions, counsel stated that he filed ap proxim ately

ten (10) to fifteen (15) motions prior to trial, including a brief motion to suppress.

The prose cutor in forme d cou nsel th at if he elected to a rgue the motion to

suppress, then the negotiated plea agreem ent offer w ould be revoked . Because

trial counsel knew that he could defer argument on the motion to suppress until

the time of trial, he chose not to argue the motion at that time. Regarding the

plea bargain, coun sel did not recall stating tha t Petitioner would serve only

sixteen (16) and one-ha lf (½) years , but stand ardly advis ed clients that with a life

sentence it is difficult to ascertain how long the actual incarceration time will be.

W hile counsel did advise Petitioner that he would either h ave to ta ke the State’s

offer and p lead g uilty to all charges or go to trial on all the charges, he did not

coerce or force Petitioner into pleading guilty.



       Upon review of the re cord, in cludin g Petitioner’s gu ilty plea h earing , this

court finds that the Petitioner was not de nied th e effec tive ass istanc e of co unse l.

The judge chose to accredit the testimony of trial counsel over that of P etitione r’s

testimony, and the evidence does not preponderate against these findings. From

the testimony of trial counsel, his preparation was more than sufficient to provide

Petitioner with effective representation. In addition to meeting with the Petitioner

on numerous occasions, counsel interviewed any and all witnesses which

Petitioner was able to iden tify.      The complaint regarding the “unidentified”




                                           -5-
neighbor is completely unjustified, particularly in light of the testimony that

counsel and Petitioner’s mother attempted to locate this unnamed alibi witness.

On the issue of alibi witnesses, a petitioner is not entitled to any relief “unless he

can produ ce a m aterial w itness who (a ) could have been found by a reaso nable

investigation and (b) would have testified favorab ly in sup port of h is defe nse if

called.” Black v. State, 794 S.W .2d 75 2, 758 (Ten n. Crim . App. 1 990). T his

court may not speculate on whether further investigation would have revealed

a material witness or what a witness’s testimony might have been, a nd it was

Petitione r’s duty to pre sent this w itness at th e eviden tiary hearin g. Id. at 757.



       Another claim by Petitioner which was not proven by a preponderance of

the evidence is that of counsel’s failure to file pre-trial motions. Counsel testified

that he filed ten (10) to fifteen (15) p re-trial mo tions, includ ing a brief m otion to

suppress Petitioner’s statemen t. Wh en que stioned a s to why h e chos e not to

argue the motion to suppress, counsel stated that he was advised that if he

argued such motio n, then any offe rs for a p lea ba rgain would be revoked by the

State. This court should not second-guess trial counsel’s tactical and s trategic

choices unless those choices were un informe d beca use of ina dequa te

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

strategy might have been employe d by counsel, counsel may not be deemed

ineffective because he chose not to argue the motion . See William s v. State, 599

S.W .2d 276, 280 (Tenn. Crim . App. 1980 ).



       Petitioner has failed to demonstrate that he would not ha ve entered a guilty

plea were it not for the ineffective assistance of his counsel. Petitioner was

prope rly advised of his rights by trial counsel and the trial judge prior to entering

                                           -6-
a plea of guilty, which he did volunta rily and kno wingly. In the judge’s findings of

fact, he correctly reasoned that trial counsel recommended the plea to Petitioner

after extensive cons ideration of all factors involved and lengthy n egotiation s with

the State, and the “ultimate decision” to plead guilty was made by Petitioner after

conferrin g with his m other an d his trial cou nsel.



       A thorough review of the record reflects that the trial court properly denied

Petitioner’s post-con viction petition . We affirm the ju dgme nt of the trial co urt.




                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:


___________________________________
DAVID G. HAYES, Judge


___________________________________
JERRY L. SMITH, Judge




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