        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                        JUNE SESSION, 1999           FILED
                                                       August 9, 1999
CORY MYERS,                )   C.C.A. NO. 02C01-9810-CC-00309
                           )                      Cecil Crowson, Jr.
                                                 Appellate Court Clerk
      Appe llant,          )
                           )
                           )   GIBSON COUNTY
VS.                        )
                           )   HON. C. CREED MCGINLEY,
STATE OF TENNESSEE,        )   JUDGE
                           )
      Appellee.            )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF GIBSON COUNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

MICHAEL R. HILL                PAUL G. SUMMERS
1066 S. Main Street            Attorney General and Reporter
P.O. Box 679
Milan, TN 38358                PATRICIA C. KUSSMANN
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243

                               CLAYBURN L. PEEPLES
                               District Attorney General

                               BRIAN FULLER
                               Assistant District Attorney General
                               110 s. College Street
                               Suite 200
                               Trenton, TN 38382



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                 OPINION

      The Defenda nt, Cory Myers, app eals th e Gib son C ounty Circu it Cour t’s

denial of his petition for post-conviction relief. Defendant confessed to killing a

former mayor of Trenton, Tennessee during perpetration of a burglary. The

Gibson Coun ty Gran d Jury in dicted Defendant for first degree felony murde r,

espe cially aggrava ted burg lary, and a ttempted espe cially aggravated robbery; for

which the State provided notice it would seek the death penalty. On October 10,

1997, Defen dant plea ded gu ilty to first degree felony m urder, and the trial court

senten ced him to the Sta te’s recom mend ed term of life impriso nmen t.



      Defendant filed his petition for post-conviction relief on February 23, 1998.

Following an evidentiary hearing on August 21, 1998, the trial court denied

Defendant’s petition. In this appeal, Defendant argues that the trial court erred

by denying pos t-conviction relief because (1) he suffered the ineffective

assistance of counsel prior to and during the guilty plea hearing, and (2) his guilty

plea wa s not kno wing an d volunta ry due to s uch ineffe ctive assista nce.



                 I. INEFFECTIVE ASSISTANCE OF COUNSEL

      To determine whether counsel provided effective assistance at 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, 93 6 (Ten n. 1975 ). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

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



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Sixth Amendment and that the deficient representation prejudiced the petitioner,

resulting in a failure to produce a reliable re sult. Strickland v. Washington, 466

U.S. 668, 68 7 (1984 ); Coope r v. State, 849 S.W .2d 744 , 747 (T enn. 19 93); Butler

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

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

unrea sona ble error, the fact finder would have had reasonable doubt regarding

petition er’s guilt. Strickland, 466 U.S. at 695. T his reaso nable p robability must

be “sufficient to underm ine confidence in the outcom e.” Harris v. S tate, 875

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



       When reviewing trial counsel’s actions, this Court should not 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 plea proces s. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show

that there is a reaso nable proba bility that, but for counsel’s errors he wo uld not

have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.



       If afforded a po st-conviction eviden tiary hearing by the trial court, a

petitioner must d o more than merely present evidence tending to show

incompetent representation and prejudice; he must prove his factual allegations

by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). When an

                                            -3-
evidentiary hearing is held, findings of fact made by that court are conclusive and

binding on this Court unless the evidence preponderates against th em. Cooper,

849 S.W.2d at 746 (citing Butler, 789 S.W .2d at 899).



       Here, Defenda nt specifically argues tha t his trial counsel was ine ffective

by failing to move (1) to change venue to another county and (2) to suppress his

confession to police on the grounds that he was incapable of voluntarily giving a

statem ent. 1   The trial court issued written findings accompanying its order

denying post-conviction relief; and on the issue of ineffective assistance of

couns el, the cou rt conclud ed that

       [t]he record clearly demon strates that [trial counsel] wa s very
       vigorous in his defense of the Petitioner. A full and thorough
       investigation was conducted, as well as extensive communication
       between the Attorney and the de fenda nt. Th e reco rd fully suppo rts
       that the defendant was apprised of all his Cons titutional rights
       including right to trial by jury. Numerous discussions were had
       between the Petition er and h is Attorne y conce rning all of his rights
       and whether a plea of guilty m ight be in h is best intere st.
       Petition er’s counsel engaged in full and complete discovery and
       kept the Defendant informed at all times. The court finds that
       tactical decisions were made conc erning poss ible change of venue,
       which the defend ant fully con curred in .



       Defendant contests the trial court’s findings, however, asserting that

counsel should have moved to suppress his confession because he “suffers from

various mental disorders such as Sch izoph renifor m Dis order , Atten tion De ficit

Hypera ctivity Disorder, and auditory hallucina tions.” Furthermore, he attests that

his education en ded in the ninth g rade and tha t he can neithe r read n or write

well. The con fession was w ritten by a member of law enforcement and affirmed



       1
        Defense counsel filed a motion to suppress this confession on the basis of a violation
of Defendant’s Sixth Amendment right to counsel. This motion did not include any other
grounds for suppression.

                                             -4-
by Defendant by signature, and he now claims that he did not have the mental

capac ity or intelligence to sign the confession due to his psychological disorders,

limited educa tion, and b orderline intellectual fu nctioning . Moreover, he testified

at post-conviction that (1) had he better understood the trial procedures and

discovery motions, (2) had his counsel successfully moved for supp ressio n of his

confession, or (3) had counsel moved for a change of venue to avoid the

passions and prejudices of a Gibson County jury, he would have insisted on

going to trial rather than p leading guilty. 2



       The record on post-c onvictio n reflec ts that, c ontrar y to De fenda nt’s

allegations, his trial coun sel, Tom Crider, testified he did not tell Defendant the

only way to avoid the d eath pena lty was a guilty plea. Crider claimed, “I might

have personally thought that [a guilty plea] would have been the wiser course for

him to have taken in the case, but it always had to be his option on what he

wanted to do.” In addition, Crider attested to having interviewed a number of alibi

witnesses, perhaps the strongest of whom informed the investigator to the effect

that he would not lie for Defendant. Crider also testified that he , his sta ff, or his

investigators would have discus sed with De fendant the res ults of all discovery,

including the ballistics report showing that the murder weapon had been traced

to Defen dant.




       2
          More accurately, Defendant stated that a change of venue would have “affected” his
decision to plead guilty. However, to obtain relief based upon ineffective assistance of counsel
involving a guilty plea, Defendant must show a reasonable probability that, but for counsel’s
deficient representation, he would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52
(1985). This shortcoming is not essential, however, to our decision affirming the denial of post-
conviction relief.

                                              -5-
       Crider stated that he and Defendant did discu ss filing a m otion to change

venue; but after he informed Defendant that a Gibson County jury had never

returned a sentence of death against a member of the community, Defendant

decided against filing such a motion.            Crider remembered discussing trial

procedure with Defendant, including the right to testify, because he recalled

warning Defendant he would also be subject to cross examination. In addition,

Crider testified that he advised Defendant about his right to appeal but cautioned

him regarding the rare success of appeals by criminal defendants. Finally, Crider

testified that the defense team explained to Defendant that his trial would be a

two-part process an d that a jury w ould de cide wh ether he received the dea th

penalty. Cride r stated , “I’m ab solute ly certain that I never . . . told him that all he

could do wa s plead guilty.”



       When asked whether Defendant had understood his rights and the

conside rations invo lved in a de cision to plead guilty or go to trial, Crider stated,

       [Y]ou do the best job you can in communicating and we went to—we
       put in a lot of extra effort to try to insure as bes t we could that C ory
       [Myers] was understanding and that was a part of the reason that we
       had some of his family involved in the process s o that while we
       might think that we were explaining things and that he understood
       them, if there were things that weren’t understood it would be
       brought back to our atte ntion o r the fam ily could explain them in
       ways that he would understa nd. . . . My impression was that he
       understood what we we re trying to conve y to him about the process
       that he was involved in and abou t the fac ts and limitatio ns of h is
       case.

W e conclud e that the re cord fully su pports th e findings of the trial court;

Defen dant ha s not pro ven othe rwise by c lear and convincin g eviden ce.




                      II. VOLUNTARY AND KNOWING PLEA

                                           -6-
       Defendant argues next that because he received the ineffective assistance

of coun sel, his g uilty plea was n either v olunta ry nor in telligen t. First, we have

conc luded above that Defendant did not suffer the ineffective assistance of

coun sel; therefore , this related allegation must fail. Second, upon a thorough

review of the post-conviction record, we determine that no other unalleged

infirmity disturb s the volun tary and in telligent na ture of De fendan t’s plea.



       The “core requirement” of federal constitutional law rega rding the validity

of guilty pleas is that “no guilty plea be acce pted without an affirmative showing

that it was intelligent and volun tary.” Fontaine v. United States, 526 F.2d 514,

516 (6th Cir. 1975) (citing Boykin v. Alabama, 395 U.S . 238 (19 69)). In its

exhaustive and com prehensive e valuation of the requ irements for a voluntary,

intelligent plea of guilt, the Tennessee Supreme Court stated,

       [A] court charged with determining whether . . . pleas were
       “voluntary” and “in telligen t” mus t look to variou s circu msta ntial
       factors, such as the relative intelligence of the defendant; the degree
       of his familiarity with criminal proceedings; whether he was
       represented by competent counsel and had the opportunity to confer
       with couns el abou t the option s available to him; the extent of advice
       from counsel and the court concerning the charges against him; and
       the reason s for his de cision to ple ad guilty, inclu ding a de sire to
       avoid a greate r pena lty that m ight res ult from a jury tria l.

Blank ensh ip v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (citing Caudill v. Jago,

747 F.2d 1 046, 1052 (6th Cir. 1984)).



       Regarding the voluntary nature of Defendant’s guilty plea, the post-

conviction court found,

              A review of testimony taken under oath from the Petitioner at
       the time h is plea of guilty was submitted reveals he was questioned
       at some length prior to the acceptance of the plea by the court. The
       court went into some detail to determine if in fact there had been
       any coercion or if there was anything to indicate that the plea was

                                           -7-
      anything except completely voluntary. The testimony taken under
      oath as well as the court’s observations of the defendant during the
      taking of the ple a indic ate tha t the ple a was entere d into fre ely and
      volunta rily and there was nothing wha tsoever to indicate to the court
      that the Pe titioner h ad be en co erced in anyway [sic]. The
      Petition er’s testimony in the pre sent h earing is diam etrically
      opposed to his earlier testimony given under oath and is also
      contrary to the testimony given by the attorney that represented him
      throughout the entire criminal process. The court finds the
      defen dant’s present testimony lacks any credibility and further finds
      the plea of guilty entere d on O ctobe r 10, 19 97, wa s don e kno wingly
      and volu ntarily by the D efenda nt.



      The record fully supports the decision of the trial court. Exhibit 1 to the

post-conviction record consists of a transcript of Defendant’s guilty plea hearing.

Regarding the volun tary nature of the plea, the transcript reflects the following

colloquy between Defendant and the trial judge:

      THE COURT: Mr. Myers, it’s been indicated to the Court that you
      may wish to enter a plea of guilty to the charges against you. Is that
      correct?
      MR. MY ERS: Ye ah. Yes, sir.
      THE COUR T: First of all, is this what you want to do?
      MR. MY ERS: Ye s, sir.
      THE C OUR T: Are you d oing so freely and voluntarily?
      MR. MY ERS: Ye s, sir.
      THE COU RT: Do you know w hat I mean when I say freely and
      voluntarily?
      MR. MYERS: On my own.
      THE COUR T: Yes, sir. Are you doing this on your own?
      MR. MY ERS: Ye s, sir.
      THE COU RT: H as anyo ne force d you to enter this plea against your
      will?
      MR. MY ERS: N o, sir.
      THE C OUR T: Are you free of alcohol and d rugs today?
      MR. MY ERS: Ye s, sir.



      At the evidentiary hearing, Defendant testified that he felt pressured to

plead guilty beca use of the pressu re Cride r placed u pon D efenda nt’s

grandmother and the pressure that she, in turn, placed on him. He stated,

“[Crider] was taking her to an early grave by the pressure he was putting on her

                                         -8-
and I got tired of it.”     When Cr ider was asked whether he encouraged

Defe ndan t’s grandmother to persuade him to plead guilty, Crider responded that

he did not—that he merely explained to her th e grim chance for success at trial

in light of the w eight of evid ence a gainst D efenda nt.



       Testimony by Cride r at the evide ntiary hea ring revea ls that Defe ndant

came before th e trial court w ith the inten t to plead guilty prio r to the tim e his

actual plea was entered. O n that p reviou s day, D efend ant rec onsid ered h is

decision to plead guilty, and he did not plead until some months later. We

conclude Defendant has not presented clear and convincing evidence that the

trial court erred by finding the plea rendere d voluntarily.



       W e furthermore conclude that Defendant’s plea was knowing and

intelligent. Though he contends that he did not fully comprehend the proceedings

or the nature of his plea, the record ind icates to th e contra ry, despite his limited

education and alleged disorders. At his plea hearing, Defendant attested to the

following:

       THE COUR T: Do you fully understand what you’re doing?
       MR. MY ERS: Ye s, sir.
       THE COURT: Have you discuss ed the matte r fully and thorou ghly
       with your attorney, Mr. Crider, of the Public Defender’s Office?
       MR. MY ERS: Ye s, sir.
       THE COURT: Do you understand the nature of these charges and
       have you discus sed w ith him fully any possible defenses that might
       be raised on your b ehalf?
       MR. MY ERS: Ye s, sir.
       THE COURT: . . . Do you understand that you’ve been c harged with
       first degree murder and what is known as felony murder; that is, the
       comm ission of a hom icide during the co mmissio n of a felony?
       MR. MY ERS: Ye s, sir.
       THE COURT: Do you understand that the range of punishment for
       first degree murder in the State of Tennessee could be death by
       electrocution?
       MR. MY ERS: Ye s, sir.

                                          -9-
       ....
       THE COURT: Have you talked to your attorney about your
       constitutional rights?
       MR. MY ERS: Ye s, sir.

The trial judge proceeded to question Defendant regarding his knowledge and

understanding of each constitutional right which he would waive upon pleading

guilty. Defendant each time responded that he understood and finally affirmed

before the court that he w as guilty of the offense a t bar. W e find tha t Defe ndan t’s

plea was en tered intelligently.



       Because we have determined that Defenda nt suffered no ine ffective

assistance of counsel and that his guilty plea was entered both voluntarily and

intelligently, we affirm the decis ion of the tria l court den ying pos t-conviction relief.




                                    ____________________________________
                                    DAVID H. WELLES, JUDGE




CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
NORMA McGEE OGLE, JUDGE




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