            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                    Assigned on Briefs March 6, 2007

                           KIM MCGILL v. STATE OF TENNESSEE

                            Appeal from the Criminal Court for Shelby County
                               No. 98-01881    Arthur T. Bennett, Judge


                           No. W2006-00499-CCA-R3-PC - Filed May 23, 2007


The Appellant, Kim McGill, appeals the Shelby County Criminal Court’s denial of her petition for
post-conviction relief. McGill pled guilty to aggravated robbery and received a sentence of 7.2 years,
as a mitigated offender, to be served in the Department of Correction. On appeal, she asserts that
trial counsel was ineffective for failing to advise her of the right to request recusal of the trial judge
based upon the judge’s comments to the Appellant following her request to obtain private counsel.
Following review, we affirm the denial of the petition.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E.
GLENN , JJ., joined.

Paul E. Lewis, Millington, Tennessee, for the Appellant, Kim McGill.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Lee V. Coffee, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                                       OPINION

                                                Factual Background

         On February 17, 1998, the Appellant was indicted for one count of aggravated robbery. The
facts, as recited at the Appellant’s bond reduction hearing, established that, on September 29, 1997,
the Appellant, along with an unidentified male accomplice, robbed the Appellant’s grandmother at
gunpoint.1 The two took the victim’s 1990 Cadillac and her purse, which contained $600 cash,
assorted checks, identification, and personal papers. The Appellant was ultimately arrested and
placed in custody on March 11, 2003. On March 14, the Appellant was found indigent, and the



        1
            A transcript of the guilty plea hearing was not included in the record.
Public Defender’s Office was appointed to represent her.2 The Appellant remained incarcerated until
April 23, 2003, at which time she was released on a $25,000 bond. Following multiple court
appearances, the Appellant again reported to court on July 11, 2003, and requested additional time
to “possibly” obtain private counsel and to set her affairs in order should she plead guilty. The trial
court granted a two-week continuance of her report date but informed the Appellant that, regardless
of whether she employed private counsel, if no settlement of the case was reached by July 24, she
would either be going to trial or pleading guilty without the benefit of a plea agreement. On July 25,
2003, the Appellant, with representation from the Public Defender’s Office, pled guilty as indicted
and received a sentence of 7.2 years, as a mitigated offender, to be served in the Department of
Correction.3

        On July 22, 2004, the Appellant filed a pro se petition for post-conviction relief alleging,
among other grounds, ineffective assistance of counsel. Following the appointment of counsel, an
amended petition was filed in July, 2005. An evidentiary hearing was held on November 10, 2005,
at which trial counsel and the Appellant testified. Trial counsel testified that he was employed with
the Shelby County Public Defender’s Office and that he was appointed to represent the Appellant
on March 14, 2003. He stated that he met with the Appellant, discussed the facts of her case with
her, and reviewed the discovery materials which he received from the State. According to trial
counsel, an investigator with his office interviewed the victim, the Appellant’s grandmother, and
learned that she no longer wished to press charges. The State, however, refused to dismiss the case.
Trial counsel stated that he attempted to negotiate a possible reduction in the charged offense with
the State in order to permit the Appellant’s eligibility for a suspended sentence. However, because
of the State’s “no deals” policy in effect at the time, no reduction was allowed. Trial counsel was,
however, able to obtain a plea offer from the State of 7.2 years incarceration as a mitigated offender,
as opposed to the original offer of eight years confinement as a standard offender. Trial counsel
stated that he informed the Appellant of the consequences of accepting the plea agreement and made
clear to her that it was her decision whether to accept the offer or proceed to trial.

         Trial counsel also testified regarding a colloquy which occurred between the Appellant and
the trial court at a scheduled report date on July 11, 2003, following trial counsel’s statement to the
court that the Appellant was considering retaining private counsel. Trial counsel stated that there
was nothing unusual in the pronouncement, that the court’s statement was part of its standard policy,
and that he saw no basis for recusal of the judge based upon the statement. Moreover, trial counsel
further noted that the Appellant never discussed with him, prior to the entry of her plea, her desire
to have the trial judge recused, nor following the plea, her desire to withdraw her guilty plea based
upon the judge’s comments.




         2
        The proof established that the Appellant, who, at the time of her arrest, lived with her grandmother, was an
unemployed, single mother of three children.

         3
           W e must assume that the 24 th deadline was extended to the 25 th, as the record shows that the Appellant pled
guilty on July 25 th.

                                                          -2-
        The Appellant, in contrast, testified that trial counsel refused to discuss the case with her and
that she was confused about her options. Due to these uncertainties, she stated that she had
considered retaining private counsel with funds she had obtained from an insurance settlement.
According to the Appellant, she had already contacted private counsel prior to the July 11th exchange
with the court, although final arrangements of employment had not been made. The Appellant stated
that she did not retain private counsel after the trial court’s comments because she was afraid, based
upon her understanding of those comments, that her bond would be immediately revoked and that
she would not be allowed to enter a guilty plea in the case.

        Following the presentation of evidence, the post-conviction court denied the Appellant’s
petition, finding that she received the effective assistance of counsel. This appeal followed.

                                               Analysis

        To succeed on a challenge of ineffective assistance of counsel, the Appellant bears the burden
of establishing the allegations set forth in her petition by clear and convincing evidence. T.C.A. §
40-30-110(f) (2006). 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 930, 936
(Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),
the Appellant must establish (1) deficient performance and (2) prejudice resulting from the
deficiency. The petitioner is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made
during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994). This deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

         It is unnecessary for a court to address deficiency and prejudice in any particular order, or
even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694, 104
S. Ct. at 2068). With a guilty plea, to satisfy the “prejudice” prong, the Appellant “must show that
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. 52, 56, 106 S. Ct. 366, 369 (1985).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. Burns, 6 S.W.3d at 461. “[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,


                                                  -3-
are reviewed under a purely de novo standard with no presumption that the post-conviction court's
findings are correct. Id.

         On appeal, the Appellant contends that trial counsel’s single omission of failing to advise her
of her right to request recusal of the trial judge requires that her conviction be vacated. She asserts
that the trial court’s response to her request to retain private counsel entitled her to a recusal because
it interfered with her “right to an attorney of her choosing and a right to enter a guilty plea.” The
relevant portion of the dialogue is as follows:

        [Trial Counsel]: . . . I told [the Appellant] what her options were and under this
        charge since she wouldn’t be entitled to ask for probation if she entered a plea she’d
        have to go into custody.

               I told her her options were either to accept 7.2, [years in confinement or] set
        the matter for trial. I advised her what Your Honor’s policy on trial was. . . .

                ....

                  . . . She said since she’s got those two children, two and three, that she wants
        a little time to think through her options and possibly hire a private attorney. I told
        her I’d tell the Court that.

        The Court: Alright. Ma’am, let me just say this, if you hire a private lawyer I’m not
        accepting a plea in your case. Do you understand that? If you hire a private lawyer,
        they come on board I’m setting your case for trial in four weeks. What I’m not going
        to do is have you try to think somehow you can pay some lawyer and get some offer
        reduced.

               If the State of Tennessee was reducing your offer because you had a private
        lawyer I would not accept their offer. Do you understand that, ma’am?

        [The Appellant]: Yes, sir.

        The Court: You’re going to have to either take the 7.2 years or you’re going to have
        to take a jury trial. You need to understand that if you plead guilty to 7.2 years I’m
        taking you into custody that day. If you go to a jury trial and you’re convicted your
        bond by law has to be revoked that day and you’ll be in jail until your sentencing
        hearing when you’re going to get somewhere between 7.2 and twelve years. Okay?

                Everything your attorney told you is true. Now, I’m going to reset this case
        one more time but on that day if this case is not settled by plea it will be tried and you
        will not be allowed to plead guilty. Do you understand that?

        [The Appellant]: Yes, sir.

                                                   -4-
                 ....

        The Court: Be back Thursday, July 24th. Now, ma’am, at the end of court that day
        one of three things is going to be true. You’re either going to plead guilty and gone
        [sic] into custody or you’re going to be set for trial and I will not allow you to settle
        your case, and you’ll be tried in three weeks, four weeks. Or you’re not going to
        show up and in which case I’ll have to issue a warrant for your arrest. When you’re
        arrested you’ll be in jail until the case is tried.

               I know you’ll show up but I just want to let you know that’s not an option.
        Okay? But on July 24th you’re going to have to face this decision one way or the
        other. Alright?

        [The Appellant]: Yes, sir.

        The Appellant argues that the “exchange” between the trial judge and the Appellant “at least
presents the appearance of partiality[,]” and it “g[ives] the appearance of requiring the [Appellant]
to surrender the right to private counsel in order to exercise the right to plead guilty.” In sum, she
contends that “should [she have chosen] to hire a private attorney, she would not be allowed to plead
guilty.” Accordingly, the Appellant argues that trial counsel was deficient in failing to advise her
that she had the right to request that the trial judge recuse himself in the case.

        Initially, we note that this argument is clearly misplaced as the Appellant has misinterpreted
the statement of the trial judge at the July 11th report date. In his final remarks to the Appellant on
July 11, the trial judge unambiguously informed the Appellant that, upon her return to court on July
24, “one of three things” would happen: (1) the Appellant would plead guilty under the terms of the
existing negotiated plea agreement and be placed in custody, as required by Tennessee Code
Annotated section 40-35-303(a); (2) the Appellant’s case would be set for trial in four weeks; or (3)
if the Appellant failed to appear, a warrant would be issued for her arrest. The Appellant
misconstrues the trial court’s comments that she would not be allowed to plead guilty after July 24.
Reading the trial court’s admonitions to the Appellant in their entirety, it is obvious that the court’s
statements, “You will not be allowed to plead guilty” and “If you hire a private lawyer I’m not
accepting a plea in your case,” were made within the context that “if this case is not settled by a plea”
on or before July 24 and the case is set for trial, “I will not allow you to settle your case.” That is,
no plea agreement would be accepted by the trial judge after July 24, and, if the Appellant chose to
plead guilty at this stage, she would be required to plead “open” to the indictment.

        This procedure is entirely consistent with the provisions of Tenn. R. Crim. P. 11 and the trial
court’s authority to control the orderly process of the case and the court’s docket.4 Tenn. R. Crim.
P. 11(e)(5) provides that, except for good cause shown, notification to the court of the existence of

        4
          Following her finding of indigency and appointment of counsel on March 14, 2003, the Appellant appeared
before the court on the dates of April 22, May 8, May 27, June 27, July 11, and July 25, with the first mention of
retaining private counsel occurring on July 11.

                                                       -5-
a plea agreement shall be given at the arraignment or at such other time prior to trial as may be fixed
by the court. Moreover, Tenn. R. Crim. P. 11(e)(4) permits rejection of a guilty plea by the trial
court.

        While the Appellant is correct that the right to counsel includes the right of the criminal
defendant to select his or her own counsel if the defendant acts expeditiously, the court, however,
is not obligated to accommodate the scheduling needs of a preferred attorney. Thus, the Appellant’s
argument “that the conduct of [the trial judge] required the Appellant to choose between the right
to counsel and the right to plead guilty” is without merit. Other than the bare assertions of the
Appellant, there was no proof presented that private counsel was ever chosen or retained in this case.
There is a great gulf between discussing the “possibility of hiring private counsel” and the actual
retention of private counsel.

         As testified to at the post-conviction hearing, trial counsel did not believe that the trial court’s
remarks to the Appellant were in any manner “inappropriate” or “coercive.” Moreover, counsel
testified that the Appellant never expressed to him any concerns regarding the trial court’s remarks
of July 11. In its written order denying relief, the post-conviction court specifically found that the
Appellant’s “contention with [regard to the trial court’s] statements [did] not trigger his duty to
recuse.”5

        In any post-conviction proceeding in which deficient representation is alleged based upon
a failure to perform, as here failure to file a motion for recusal, it is the Appellant’s burden to show
by clear and convincing evidence that (1) the motion to recuse, if made, would have been granted;
and (2) there was a reasonable probability that the proceedings would have concluded differently if
counsel had performed as suggested. The Appellant has failed to satisfy either factor in this case.
Accordingly, post-conviction relief was properly denied.


                                                 CONCLUSION

        Based upon the foregoing, the Shelby County Criminal Court’s denial of the Appellant’s
petition for post-conviction relief was properly denied.



                                                                ___________________________________
                                                                DAVID G. HAYES, JUDGE




         5
          In view of the nature of the Appellant’s allegation, the post-conviction proceeding was transferred to another
division of the Shelby County Criminal Court.

                                                          -6-
