        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                      SEPTEMBE R SESSION, 1998        FILED
                                                   December 21, 1998
EDUARDO E. WELLS,          )    C.C.A. NO. 02C01-9709-CR-00345
                           )                       Cecil Crowson, Jr.
      Appe llant,          )                          Appellate C ourt Clerk

                           )
                           )    SHELBY COUNTY
VS.                        )
                           )    HON. ARTHUR E. BENNETT
STATE OF TENNESSEE,        )    JUDGE
                           )
      Appellee.            )    (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

JAMES V. BALL                   JOHN KNOX WALKUP
217 Exchange Avenue             Attorney General and Reporter
Memphis, TN 38105
                                DOUGLAS D. HIMES
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                WILLIAM GIBBONS
                                District Attorney General

                                PAUL GOODMAN
                                Assistant District Attorney General
                                Criminal Justice Complex, Suite 301
                                201 Poplar Avenue
                                Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                     OPINION
       This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appellate Procedure. The Petitioner, Eduardo E. Wells, appeals from an order

of the trial cour t denying him po st-convictio n relief. The Petitioner p resents one

issue for our r eview : wheth er his guilty plea was knowingly and voluntarily made

with effe ctive as sistan ce of c ouns el. 1 We affirm the ju dgme nt of the trial co urt.



       The Petitioner was indicted by a Shelby County Grand Jury; and on

October 10, 1994, he pleaded guilty to attempted first degree murd er, esp ecially

aggravated robbery, aggravated robbery, and aggravated rape. The Petitioner

was sentenced as a Range I standard offender. He received a twelve-year

sentence for aggravated robbery and fifteen-year sentences for aggravated rape,

espe cially aggravated robbery, and attempted first degree murder.                           The

aggravated robbery and aggravated rape sentences were ordered to run

concurrent with each othe r, but consecu tive to the e spec ially aggravated robbery

and attempted first degree murder sentences.                   The especially aggravated

robbery and attempted first degree murder sentences were ordered to run

concurrent with each other. Therefore, the Petitioner’s effective sentence was

thirty years as a Ra nge I standa rd offender.

       At the guilty plea proceeding, in response to questions by the trial judge,

the Petitioner stated that he understood the charges against him, the plea itself,


        1
           In his brief, the Petitioner actually presents three issues for our review: (1) whether
the Petitioner entered his plea involuntarily because of coercion in the presence of his attorney
from the prosecutor for his case; (2) whether the Petitioner was denied effective assistance of
counsel; and (3) whether Petitioner was denied effective assistance of counsel because his
attorney had a conflict of interest resulting from a fee dispute between the Petitioner and his
attorney’s son. However, because we believe that these three issues are interrelated, we have
consolidated them into one issue for purposes of this opinion.

                                               -2-
and both the sentencing ranges for his crimes and the sentence to be imposed

upon him by the trial c ourt. H e state d that h e und erstoo d he w as givin g up h is

right to a trial by jury. H e indicate d that his legal representation had been

adequ ate and reported that he had no complaints concerning the representation

he had received. He stated that his attorney adequately interviewed witnesses

or discussed with him testimony of witnesses the Petitioner wished to call on his

behalf. He also reported that he had not been forced or coe rced to mak e his

plea.



        On Februa ry 24, 199 5, the Peti tioner filed a pro se petition for p ost-

conviction relief. 2 An amended petition was filed on April 18, 1996, after counsel

was appointed to represent the Petitioner. The amended petition alleged that the

Petitioner’s plea w as invo luntary due to ineffec tive ass istanc e of co unse l.

Specifically, the Petition er claime d that his a ttorney had a conflict of interest at

the time o f his rep resen tation a nd tha t his atto rney a llowed the prosec utor to

intimidate the Petitioner in the attorney’s presence, which resulted in a coerced

guilty plea. Evidentiary hearings were conducted on March 20, 1997 and May 23,

1997. The tr ial court denied Petitioner’s petition for post-conviction relief by

written ord er filed July 2 5, 1997 .



        At the evidentiary hearing conducted on March 20, 1997, the Petitioner

testified that Ma rvin Ba llin was appointed to represent him in July 19 94. He said

that prior to the a ppointm ent of M arvin Ballin as his attorney, he sought the

representation of Leslie Ballin, Marvin Ballin’s son, with wh om M arvin B allin

        2
            In his pro se petition, Petitioner alleged that evidence in his case was obtained by
illegal search and seizure and that the prosecution had failed to disclose exculpatory evidence
to the defense.

                                              -3-
practiced law. The Petitioner stated that Leslie Ballin accepted two hundred

dollars for Petitioner’s representation, subsequently withdrew from the case, and

then refused to refund the mo ney. Although the Petitioner claimed to have filed

a complaint against Leslie Ballin with the disciplinary board, the Petitioner

produced no proof of the complaint at the hearing. He maintained that he did not

know that Leslie and Marvin B allin pra cticed law tog ether u ntil after M arvin

Ballin’s appoin tment a s his attorn ey. He also admitted that he never discussed

with Marvin Ballin the alleged fee dispute or his previous dealings with Les lie

Ballin, but he claimed not to have done so because he did not realize initially that

Leslie Ballin was Marvin Ballin’s son and partner in practice. In addition, contrary

to his statements at the guilty plea proceeding, the Petitioner testified that

although he had given h is attorney th e nam es of witne sses, his attorney fa iled to

interview tho se witnes ses, exce pting only th e Petitione r’s moth er.



       The Petition er furth er testified tha t on O ctobe r 7, 199 4, durin g his

incarceration pending disposition of this case, he was brought to court to meet

with his atto rney a nd dis cuss a guilty plea. He tes tified tha t his atto rney, o f his

own accord, brought the prosecutor to the holding room for prisoners in the

courthouse. He sta ted tha t his attorney allowed the prosecutor to “badger” him.

He testified that the prosecutor told him that the judge handling his case enjoyed

prosecuting people like the P etitioner.          The Pe titioner testified that the

conversation left him “somewhat rattled-shaken” and that when the prosecutor

“talked about Judge Blackw ood, I already knew based on what [the prose cutor]

had stated that it wasn’t going to be anything fair going on that day.” Petitioner

also reported that on October 10, 1994, the day of his ple a, his attorne y told him

he needed to take the offer from the pros ecution b ecaus e he “did n’t give a s_ _t,”

                                           -4-
which the Petitioner interpreted to mean that his attorney “didn’t care about me

or the case.”



       The Petitioner m aintained that as a re sult of these conversations, he

pleade d guilty. He explained ,


       for the most part, it was more or less of me tired of s eeing my fam ily
       dragged down h ere. I got tired of being d ragged down. It was one
       big circus ac t after anoth er. And I was just basically tired and
       drained. . . . I was just looking for some relief. Not necessarily for
       me but for my family also.


       When aske d at the post-c onvictio n hea ring wh y he told the jud ge at h is

plea hearing that his plea had not been forced or coerced, the Petitioner stated

that his answer to the question was “a very, very uneducated statement.” He also

told the post-conviction court that in response to other questions posed by the

judge at his guilty plea proceeding, he entered “unwilling statements.”                 He

admitted that when the trial judge asked whether he had ch osen to plead gu ilty

freely and voluntarily, he answered yes, but he stated at the post-conviction

procee ding that h is answe r was “so rt of withdraw n.”



       The Petitioner testified that he decided to plead guilty and that he knew he

was pleading guilty to thirty yea rs. Howe ver, he sta ted that he pleade d guilty

after he “had seen how everything went.” He indic ated tha t although he cam e to

court on the day of his plea fully prepared to go to trial, he pleaded guilty because

“I was really just afraid, really, o f the wors e [sic] hap pening , which wa s [a poss ible

sentence of] eighty-seven years.” He stated that he “made a very uncalculated

decision .”   He explained that the judge told him he “would have to accept

Attorney Ballin’s services or represent [himself],” which he did not feel prepared

                                            -5-
to do; and he indicated that he was afraid his attorney might not adequately

repre sent h im at tria l.



        Marvin Ballin, the Petitioner’s attorney, who had practiced criminal law for

appro ximate ly thirty years, also testified at the post-conviction proceeding. He

testified that initially he and the Petitioner “had our difficulties,” which they

“ironed out.” Ballin testified, “realizing that Mr. Wells was going to be a most

difficult client, I prepared for that case as best any lawyer could.” He reported

that prior to the Petitioner’s plea, he spent “literally hours at home on the

telephone at night” with the Petition er’s mother discussing the case. Although the

Petitioner insisted that his mother never wanted him to plea d guilty, B allin

testified that to the best of his recolle ction, th e Petitio ner’s m other a dvised him

to plead guilty.



        With regard to the Petitioner’s conflict of interest claim, Ballin testified that

he first became aware of the Petitioner’s complaint when he read about the

alleged fee dispute in the petition for post-conviction relief. He stated that the

Petitioner never mentioned to him that Leslie Ballin had once represented him or

that Leslie Ballin owed him money. He reported that when he discussed the

Petition er’s allegations with his son, his son told him, “yeah, he was up here, but

I didn’t take the case , and that’s abou t all I know.”       With re gard to the two

hundred dollars, Ballin identified a receipt provided by the Petitioner signifying

that his office received the s um of two h undred do llars from the Petitioner on May

27, 1992. H oweve r, he stated , ?[the Petitioner has] made an accu sation tha t I did

something about a lousy $200 that affected his life, and that is a consumm ate

lie.”

                                           -6-
       Ballin also testified that he conducted extensive discovery in the

Petition er’s case. In addition, he testified that he filed a number of motions to

suppress evidence, which were denied by the trial cour t. He testified that to the

best of his recollection, there were no alibi witnesses in the Petitioner’s case and

the Petition er’s defen se was mistake n identity.



       Ballin reported that on the day that the Petitioner’s trial was to be held, the

Petitioner “wante d to go in the ba ck and talk and d iscuss th e poss ibilities of a

plea.” He testified that although he told the Petitioner the State was adamant

about its offer,3 the Petitioner was insistent in his belief that Ballin cou ld procure

a better offer for him. He testified he told the Petitione r, “look, if yo u wan t to, I’ll

go ask [the prosecutor], and you can see that I’m doing my job, that I have tried

to get you the best thing going, and you can either plead or go to trial. They’re

not going to com e off tha t offer.” H e repo rted tha t the pro secu tor did talk to the

Petitioner, and altho ugh he was un sure, he believed th at the prosecutor did so

at the Petitioner’s insistence. He testified that the prosecutor “may have raised

his voice, but it was at m e rather than M r. Wells.” He stated that the prosecutor

did not threaten the P etitioner but “told me that if [the Petitioner] got convicted,

he sure as heck was going to max him o ut or tha t the jud ge wa s goin g to m ax him

out, and the cha nces were there to get con secutive [s entenc es] to where he’d be

looking at fifty [years]. . . . This case w as not a very nice case.” He also testified

that he was present the entire time the prosecutor remained in the room with his

client, which was ap proxima tely two to thre e minu tes.




        3
            Which the Petitioner ultimately accepted.

                                              -7-
       Ballin testified that it w as his opinion that th e Petitione r pleade d guilty

because Ballin told him “there was every possibility that [his] cases could run

consecutive” due to the heinous nature of the crimes with which the Petitioner

was charged. He stated he told the Petitioner that based upon what he knew of

the trial judge’s reputation, the trial judge would likely “max him every way he

could.” He also testified that he believed the Petitioner decided to plead guilty

because he told the Petitioner “that once the evidence went in, we were in

trouble.”



       In determining whether cou nsel provided e ffective assista nce a t trial, the

Court must decide whether counsel’s performance was within the range of

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

S.W.2d 930, 936 (Tenn. 1975).          To succeed on a claim that counsel was

ineffective at trial, a petitione r bears th e burde n of show ing that counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner,

resulting in a failure to produ ce a re liable result. Strickland v. Washington, 466

U.S. 668, 68 7 (1984 ); Coop er v. State , 849 S.W.2d 744, 74 7 (Ten n. 1993 ); Butler

v. State, 789 S.W .2d 898, 899 (Tenn. 199 0). To satisfy the second prong, the

petitioner must show a reas onab le prob ability tha t, but for c ouns el’s

unrea sona ble error, th e fact-fin der wo uld have had reasonable doubt regarding

the petitioner’s g uilt. Strickland, 466 S.W .2d at 695 . This rea sonab le proba bility

must be “sufficien t to under mine c onfiden ce in the o utcom e.” Harris v. S tate, 875

S.W .2d 662, 665 (Tenn. 199 4).




                                          -8-
       When reviewing trial couns el’s actions , this Cou rt should n ot use the

bene fit of hind sight to seco nd-gu ess tria l strateg y and c riticize c ouns el’s tactics.

Hellard v. State, 629 S.W .2d 4, 9 (Ten n. 198 2). Co unse l’s allege d error s sho uld

be judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746.



       This two-part standard of measuring ineffective assistance of counsel also

applies to claims arising out of the ple a proce ss. Hill v. Lockart, 474 U.S. 52

(1985); Banks ton v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 19 91). The

prejudice requirem ent is mo dified so th e petitione r “must s how that there is a

reaso nable proba bility that, b ut for co unse l’s errors, he would not have pleaded

guilty and would h ave insisted on g oing to trial.” Hill, 474 U.S. at 59.



       Turning now to the case before us an d the P etitione r’s claim of a conflict

of interest, the trial court stated:

               This Court finds that no conflict of interest existed between
       Petitioner and his attorney, Marvin Ballin, because Petitioner did not
       demonstrate that counsel actively represented conflicting interest
       [sic], nor did Petitioner demonstrate that an actual conflict of interest
       adversely affected his lawyers [sic] performance.              Petitioner
       provided no evidence that counsel was conflicted due to a prior
       dispute between Petitioner and Leslie Ballin. Petitioner did not even
       provide any evidence that his counsel was even aware of the prior
       dispute betwe en Pe titioner a nd Le slie Ba llin. Furthermore, Ballin,
       himse lf, did not even consider the prior dispute to be a conflict of
       interest until well after he entered his guilty plea.
               Because this Cou rt finds that n o conflict of interest existed,
       the Petitioner must demonstrate (1) that coun sel’s performance was
       deficient and, (2) th at there is a reason able pro bability that but for
       coun sel’s deficient performance, Petitioner would not have pleaded
       guilty. In the case at hand, Petitioner has failed to meet the burden.

W e agree th at the Pe titioner has failed to provide sufficient proof of a conflict of

interest to suppo rt his allegations. In fact, in his brief, the Petitioner concedes:



                                            -9-
“W hile the proof at the evide ntiary hearings in this case did not show an actual

conflict it does shed light on the na ture of th e relatio nship betwe en Ma rvin Ba llin

and Pe titioner . . . .” This iss ue is witho ut merit.



       The Petitioner next argues that he received ineffective assistance of

counsel because his attorney allowed the prosecutor to threaten him, which

resulted in a coerced and involuntary guilty plea. In reviewing this issue, the trial

court conclud ed that “P etitioner en tered his g uilty pleas fre ely and vo luntarily.”

Based upon a thoro ugh re view of the facts, we are unable to conclude that the

Petitioner received ineffective assistance of counsel or that the Petitioner’s pleas

were made involuntarily. The meeting between the Petitioner and the prosecutor

took place in the presence of the Petitioner’s attorney. W hile the Petition er’s

attorney confir med the Pe titioner’s allega tions th at the p rosec utor stro ngly

advised the Petitioner he would seek the maximum penalty should the Petitioner

proceed to trial and that he believed the trial judge would grant the maximum

penalty in Petit ioner’s case , we co nclud e that th e Petitio ner ha s not c arried his

burden of showing that this incident forced him to enter a guilty plea. P etitione r’s

attorney arranged this confron tation because Petitioner was unconvinced that the

plea agree men t offered was th e mo st favor able o ne the State w ould consider.

The incident took place on a Friday, and the Petitioner had a full weeke nd to

consider his options before deciding to plead guilty the following Monday. He

was also granted ample opportunities by the trial judge to voice his concerns at

the guilty plea proceeding and did not do so. We therefore agree with the

conclus ion of the tria l court. 4

        4
           In addition, the Petitioner states in his brief “that he was dissatisfied with Attorney,
Marvin Ballin, and has no knowledge if Marvin Ballin interviewed the witnesses that the
Petitioner gave him.” This issue is mentioned only summarily in the Petitioner’s brief and is not

                                              -10-
        In conclusion, viewing the actions of the Pe titioner’s attorne y in light o f all

facts and circum stances at the time of the guilty plea, we cannot find any

deficiency in his representation prior to or during the guilty plea proceedings.

Howeve r, even assuming that the Petitioner’s representation was ineffective, the

Petitioner has failed to demonstrate any prejudice. The Petitioner has simply

failed to show that had his a ttorney’s ac tions bee n different, there is a reas onab le

probab ility that he would not have pleaded guilty and would have insisted on

going to tria l. See Strickland, 466 U.S . at 690; Cooper, 849 S.W.2d at 746.



        The judgment of the trial court is accordingly affirmed.




                                        ____________________________________
                                        DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
JOE G. RILEY, JUDGE




set forth as a complete issue for our consideration. Therefore, we will not address it at length.
However, based upon a review of the record before us, we find that this argument is without
merit in light of the facts of this case. We find that the Petitioner has failed to provide any proof
to support his allegation that his attorney did not interview witnesses for his case.

                                               -11-
