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

                    EDWARD DRUMMER v. STATE OF TENNESSEE

                      Direct Appeal from the Criminal Court for Shelby County
                              No. P-19504    Arthur T. Bennett, Judge



                        No. W2000-00414-CCA-R3-PC - Filed August 29, 2001




The Appellant, Edward Drummer, appeals from the dismissal of his petition for post-conviction
relief by the Shelby County Criminal Court. In September, 1997, Drummer pled guilty to one count
of aggravated rape and was sentenced to fifteen years confinement in the Department of Correction.1
In 1998, Drummer filed a petition for post-conviction relief challenging the validity of his guilty plea
upon grounds of (1) voluntariness and (2) ineffective assistance of counsel. The post-conviction
court, finding the claims unsupported, dismissed the petition. On appeal, Drummer contends that
he was denied the effective assistance of counsel. After review, we affirm the judgment of the post-
conviction court.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN,
JJ., joined.

Deborah M. Henderson, Memphis, Tennessee, for the Appellant, Edward Drummer.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee,
Assistant District Attorney General, for the Appellee, State of Tennessee.




         1
         Additiona lly, on the same date, the Ap pellant pled guilty to aggrava ted assault, violation of the Motor Vehicle
Habitual Offender A ct and DU I. No do cuments rela ting to these offenses are included in the record. No proof was
developed as to these offenses at the post-conviction hearing and the Appellant’s argument of ineffectiveness does not
encompass these offenses. Accordingly, any challenge to those convictions is waived.
                                                       OPINION

                                             Procedural Background

        This case presents a somewhat protracted procedural history. In November, 1998, the post-
conviction court conducted an evidentiary hearing upon the Appellant’s claims contained in his
February, 1998, petition. Following this hearing, the post-conviction court denied relief and
dismissed the petition. A pro se appeal was taken and, after review, this court remanded to the post-
conviction court for (1) appointment of counsel, (2) supplementation of the record, and (3) for a
“further hearing” to determine the correct date of the commission of the offense.2 See Drummer v.
State, 6 S.W.3d 520 (Tenn. Crim. App. 1999) (holding that indigent inmates who seek review of the
denial of their petitions for post-conviction relief are entitled to appointed counsel on appeal).
Accordingly, this case is again before this court after apparent compliance with these directives. We
emphasize “apparent” as the record does not reflect that a hearing was conducted to correct the
discrepancy relating to the date of the offense. Although the Appellant asserts in his brief, “On June
28, 1999, appointed counsel entered an Amended Judgement sheet correcting the date of the
commission of crime and showing Petitioner’s eligibility as a standard range I offender,” no such
document is contained in the record.


                                                     ANALYSIS

        The Appellant’s claim of ineffectiveness of counsel and involuntariness of his guilty plea,
as set forth in his petition, stem from the following factual allegations:

         Petitioner entered a guilty plea for a sentence Fifteen (15) years, as a Standard
         Offender (Range I, at 30%). See Judgment Document, attached hereto.

         Once petitioner entered the Tennessee Department of Correction, he was informed
         that his guilty plea for fifteen (15) years was in fact, a mandatory 100% and the least
         amount of time to reduce that 100% would be 15%, resulting in a Release Eligibility
         Date (R.E.D.), of 85%, assuming petitioner received all his Sentence Reduction
         Credits allowed by law.3



         2
          The indictment and the judgment of conviction reflect different dates for the commission of the offense. If
the indictment and the transcript of the guilty plea hearing are correct, then the sentencing guidelines under the prior act
are applicable and the Appellant’s sentence would be served at thirty percent (30%) as a range I offender. If the
judgment form is corre ct, then the App ellant, pursuan t to Tenn. Code Ann. § 40-35-501(i), would serve his sentence at
one hundred percent (100%).

         3
          The Appellant’s post-conviction petition is not included in the record . Howeve r, the petition is inclu ded in
the record o f this case in the Ap pellant’s origina l post-convic tion appe al. We a re entitled to take judicial notice of
pleadings c ontained in c ases filed with the c lerk of this Cou rt.

                                                            -2-
         At the November, 1998, evidentiary hearing, the Appellant apparently abandoned pursuit of
this claim. Instead, the Appellant focused upon the involuntariness of his guilty plea based upon trial
counsel’s overstatement of the risk of conviction and ineffectiveness, and the lack of pre-trial
investigation:

       Q. Well, why did you take the plea?

       A. Well, the only reason why I took the plea because she told me herself, she
       supposed to be my lawyer, that it wasn’t nothing she could do for me. You might as
       well go on and cop out because they’re going to find you guilty because it ain’t
       nothing I can do for you. That’s the only reason why I went on and pleaded for that
       plea bargain and the fifteen years at thirty percent.


         Additionally, the Appellant testified that trial counsel failed to thoroughly investigate his
case, failed to develop an alibi defense, and failed to contact witnesses. Appellant’s trial counsel,
testifying at the hearing, related that she had difficulty with the Appellant in meeting the appointment
schedules and returning phone calls. Nonetheless, she met with him twice after he was returned to
the jail and spoke with him seven times on the phone. Counsel testified that she contacted all of the
potential witnesses provided to her by the Appellant, however, none supported an alibi defense.
Moreover, several of the witnesses would have been extremely prejudicial as they would have
testified that the Appellant and the victim of the rape had a “violent relationship.” Trial counsel
stated that she had available only two theories of defense (1) alibi, which could not be supported, and
(2) consent. With regard to the latter, she further explained, “even if we had been able to say that
the sex had been consensual, the injuries she suffered to the head, the blood that was found at the
scene, the injuries that she suffered from the sexual assault, did not go along with consensual sex.”
Trial counsel also testified that she was surprised when, after the jury had been selected at his
scheduled trial, the Appellant advised both she and co-counsel that he wanted to change his plea to
guilty. Finally, trial counsel stated that both she and co-counsel advised the Appellant that he would
be eligible for parole consideration in four years based upon his classification as a Range I standard
offender; however, they also advised the Appellant that it was unlikely that he would receive parole
when first eligible because of his conviction as a sexual offender. At the conclusion of the hearing,
the post-conviction court found:

       (1) the Appellant [was] not telling the truth; (2) the Appellant had the opportunity
       when Judge Axley asked him if he was freely and voluntarily entering his plea,
       whether he had any complaints, whether his lawyer investigated the case, investigated
       the witnesses that he had. He indicated that his lawyer did. And, his lawyer testified
       and [trial counsel] testified that she did investigate the case; . . . (3) [trial counsel]
       did render effective assistance of counsel through out her handling of the case, . . .
       [and] that her representation did meet the standard under Baxter v. Rose and other
       cases.



                                                  -3-
         On appeal, the Appellant again abandons his claim of involuntariness and argues solely that
the trial court “erred in ruling that he was not denied effective assistance of counsel pursuant to the
United States Constitution and the Constitution of the State of Tennessee.” He raises three general
areas of ineffectiveness: (1) “that his attorneys failed to investigate his case thoroughly; (2) that his
attorneys failed to discuss his case with him and offered no defense strategy; and (3) that he received
information from his counsel that he’d be eligible for parole within four years, if he accepted the
State’s offer.”

        At this juncture we are constrained to observe that “a defendant who pleads guilty upon the
advice of counsel may only attack the voluntary and intelligent character of the guilty plea by
showing that the advice he received from counsel was not within the standard set forth in [Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and that] . . . but for counsel’s errors he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 56-57, 106
S. Ct. 366, 369-70 (1985) (emphasis added) (citations omitted). The prejudice requirement of Hill
v. Lockhart focuses on whether counsel’s constitutionally ineffective performance affected the
outcome of the plea process. Id. at 370. In this case, we find no causal connection between the
Appellant’s reasons for pleading guilty and his allegations of counsel’s deficient performance. In
sum, we find nothing in this record which remotely suggests that counsel’s alleged deficiencies
affected the outcome of the plea process. Nonetheless, we proceed to examine the Appellant’s
claims of ineffectiveness.

        To succeed in a challenge for ineffective assistance of counsel, the Appellant must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. Under Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 2064 (1984), the Appellant must establish (1) deficient representation and
(2) prejudice resulting from the deficiency. In the context of a guilty plea, to satisfy the second
prong of Strickland, the Appellant must show, “there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. at 59, 106 S. Ct. at 370; Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim.
App. 1997). The Appellant has the burden of proving the allegations in his or her petition by clear
and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). The issues of deficient
performance by counsel and possible prejudice to the defense are mixed questions of law and fact.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial 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.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley
v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law are reviewed under a
purely de novo standard, with no presumption of correctness. Fields, 40 S.W.3d at 458. Applying
the foregoing principles, this court must determine whether the evidence preponderates against the
post-conviction court’s finding that the Appellant received the effective assistance of counsel.
Henley, 960 S.W.2d at 580.




                                                  -4-
        Our review of the record reveals that the Appellant has failed in his burden of overcoming
the findings of the post-conviction court. Although the Appellant identified several names of
witnesses at the hearing which he contends would have supported an alibi defense, these witnesses
were not produced at the hearing. This court is not required to speculate as to what the alleged alibi
witnesses could have testified to if produced at the hearing. State v. Black, 794 S.W.2d 755, 757
(Tenn. Crim. App. 1990). Moreover, we agree with the post-conviction court’s findings that the
proof does not establish trial counsel failed to thoroughly conduct pre-trial investigation, failed to
develop appropriate trial strategy, or improperly advised the Appellant regarding parole eligibility.



                                          CONCLUSION


        Based upon the foregoing, we find that the post-conviction court did not err in ruling that the
Appellant received effective assistance of counsel. Accordingly, the judgment of the post-conviction
is affirmed.



                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




                                                 -5-
