         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 22, 2003

         STEVEN BERNARD WLODARZ v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Hawkins County
                            No. 7772    James E. Beckner, Judge



                                  No. E2002-02798-CCA-R3-PC
                                        December 3, 2003

The petitioner, Steven Bernard Wlodarz, appeals the Hawkins County Criminal Court’s denial of
his petition for post-conviction relief from his guilty pleas to first degree premeditated murder,
attempted first degree premeditated murder, two counts of aggravated assault, and one count of
manufacturing a Schedule VI controlled substance and resulting sentence of life without parole. He
claims that his guilty pleas were not knowingly, intelligently, and voluntarily entered because (1) his
trial counsel coerced him into pleading guilty, (2) his trial counsel failed to inform him of important
defense evidence before he accepted the state’s plea offer, and (3) he was taking medications that
may have affected his ability to understand his pleas. In addition, he contends that he received the
ineffective assistance of counsel because his trial attorneys waived one of his preliminary hearings
without his consent, failed to file a motion to suppress evidence, and failed to prepare a defense. We
affirm the trial court’s denial of the petition.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE , J., joined.

Wayne R. Stambaugh, Morristown, Tennessee, for the appellant, Steven Bernard Wlodarz.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; C.
Berkeley Bell, Jr., District Attorney General; and John Douglas Godbee, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                                        OPINION

        This case relates to the petitioner’s killing Officer Gerald Gibson of the Hawkins County
Sheriff’s Department. Although no facts were presented at the guilty plea hearing, 1 the record
reflects that on July 13, 2000, police officers were dispatched to the scene of a home burglary on
Short Road near Rogersville, Tennessee. When they arrived, a witness gave a description of the
suspect, which matched the petitioner. Officers went to the petitioner’s home and confronted him,
and the petitioner pulled out a shotgun and ordered the officers off his property. The officers left the
scene; obtained arrest warrants against the petitioner for attempted aggravated burglary, vandalism,
and two counts of aggravated assault; and returned to the petitioner’s home. The petitioner
barricaded himself inside, and a tactical unit was called. After several hours, the unit tried to force
the petitioner out of his house by shooting tear gas canisters into it. During the melee, the victim was
shot once in the head.

       Pursuant to a plea agreement, the petitioner pled guilty on September 18, 2001, to first degree
premeditated murder; attempted first degree premeditated murder, a Class A felony; two counts of
aggravated assault, a Class C felony; and one count of manufacturing a Schedule VI controlled
substance, a Class C felony. The trial court sentenced him as a Range I, standard offender to
concurrent sentences of life without parole for the murder conviction, twenty-five years for the
attempted murder conviction, six years for each aggravated assault conviction, and six years for the
manufacturing a Schedule VI controlled substance conviction.

        At the post-conviction evidentiary hearing, the petitioner testified that on the day of the
offenses, he began drinking shortly after daylight and drank one-half a bottle of whiskey. He said
the police had no probable cause to suspect a burglary had been committed when they came to his
home on July 13, 2000. He said that when police officers first arrived at his house, they did not have
an arrest warrant and did not tell him why they were there. He said that the day after the offenses,
the police obtained a search warrant for his house. He said that during a preliminary hearing for his
burglary, assault, and vandalism charges, officers made statements that contradicted the affidavit that
had been filed to obtain the search warrant.

         The petitioner testified that he was charged with capital murder and that two attorneys were
appointed to represent him. He said that he met with his lead trial attorney ten to twenty times and
that some meetings lasted more than one hour. He acknowledged that his lead attorney went over
the charges and the elements of the offenses with him. He said he was evaluated by a psychologist
and was found to be competent to stand trial. He said that his lead attorney told him he had no
defense and that he would face the death penalty if he did not accept the state’s plea offer. He said
the fact that he drank alcohol on the day of the offenses should have been considered by his attorneys


         1
            The record reflects that defense counsel agreed for the state to file a “written offense report containing all the
facts of the ca se” and to rely on the “image book” previously filed, which the trial court described as “rather exhaustive
of all the pictures and documents in the ca se.” T he trial co urt also referred to hearings and pretrial conferences involving
evidence that defense counsel stipulated to be the state’s evidence.

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and that his lead attorney told him intoxication was not a defense. He said that he had other defenses
such as self-defense but that he and his attorneys did not discuss them. He acknowledged that he and
his lead attorney talked about bullet fragments that were recovered from the victim and that his
attorneys had the bullet fragments tested.

        The petitioner testified that his lead trial attorney told him that most people on death row “go
nuts because they are isolated and they have no relationship with anyone outside.” He said his lead
attorney told him that if he accepted the state’s plea offer, he could continue to visit with his family.
He said that a few days before he accepted the state’s offer, his lead attorney told him that he needed
to telephone his ex-wife and children. He said that his lead attorney had his ex-wife advise him to
plead guilty and also had Roz Andrews, a mitigation consultant, talk to him and convince him to
accept the state’s offer. He said that he was prescribed Paxil and Depokote in jail, that he took the
drugs from July to November 2001, and that the medications may have affected his judgment.

        On cross-examination, the then fifty-year-old petitioner testified that he had a high school
diploma. He said that on the day of the offenses, he did not aim before he fired his gun and that he
only fired “back-off” shots in response to two shots that had been fired at him. He acknowledged
that the trial court asked him a series of questions at the guilty plea hearing and that the court asked
him if he was under the influence of anything that might affect his understanding of the hearing. He
said that if he had not answered the trial court’s questions appropriately, the court would not have
accepted his pleas and he would have faced the death penalty.

        The petitioner’s lead trial attorney testified that he had been practicing law since 1977. He
said that after he was appointed to represent the petitioner, he assembled a defense team that
included another appointed attorney, an investigator, a psychologist, a mitigation consultant firm,
and a jury consultant. He said that he represented the petitioner at the preliminary hearing on the
attempted burglary and vandalism charges. He said that after the hearing, the state filed additional
charges against the petitioner. He said that a few days after the shooting, his investigator visited the
crime scene. He said he also went to the crime scene ten to twenty times. He said that the defense
objected to everything the state presented and that hearings were held. He said he went over the
charges and the state’s plea offer with the petitioner. He said he did not coerce the petitioner into
pleading guilty.

         On cross-examination, the petitioner’s lead attorney testified that he was handling many other
cases while he was representing the petitioner. He said that at the preliminary hearing, officers
testified that they went to the petitioner’s house with an arrest warrant. He said that he and his
defense team met with the petitioner many times and that in order to defend the case, he was going
to stress to the jury that the police officers’ actions drove the petitioner to shoot the victim. He said
that according to state witnesses, two shots were fired from a window in the petitioner’s home and
one of them struck the victim as the victim peeked around the corner of a shed in the petitioner’s
yard. He said that bullet fragments found in the victim were tested, that the fragments did not match
the petitioner’s gun “perfectly,” and that he could have cross-examined state witnesses extensively
about that. He said the fragments matched another gun found in the petitioner’s house that was not


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fired by the petitioner. He said that he received some of the tests results before the petitioner pled
guilty and that he may have received one set of results after the petitioner’s guilty plea hearing.

        The petitioner’s lead attorney testified that the petitioner told him the petitioner had been
drinking on the day of the offenses. He said, though, that the petitioner made statements which
indicated the petitioner had not been intoxicated. He said that he told the petitioner intoxication was
not a defense but that it could negate the mental state required for the crime. He said that he was
preparing for trial when the petitioner pled guilty and that the petitioner’s defense was going to focus
on the police’s actions and the petitioner’s psychological background. He said that such a defense
would have been difficult but that the petitioner may have been acquitted with luck. He said that the
petitioner had an I.Q. of 107 and was bright at times and depressed at times. He said the petitioner
wanted to talk to the petitioner’s family and Roz Andrews about the state’s plea offer. He said that
no one told the petitioner he had no defense and that the petitioner decided to plead guilty.

        The trial court determined that the petitioner’s trial attorneys developed defenses and theories
of the case, filed every conceivable motion, considered all of the evidence, investigated the case, and
did everything that could be expected for the petitioner. It stated that the petitioner discussed the
state’s plea offer with his family and a mitigation consultant and that he decided to plead guilty in
order to avoid the death penalty. The trial court noted that the petitioner’s guilty plea hearing
transcript spans twenty-one pages, is thorough, and shows that the petitioner was alert, sober,
articulate, and understood what he was doing when he pled guilty. The trial court also noted that the
petitioner stated at the guilty plea hearing that he was not forced or coerced to plead guilty and that
he was satisfied with his attorneys. The trial court stated that the evidence against the petitioner had
been overwhelming and that a jury probably would have imposed the death penalty. The trial court
held that his guilty pleas were knowingly, intelligently, and voluntarily entered and that the petitioner
did not receive the ineffective assistance of counsel.

        Initially we note that the petitioner and his counsel have submitted as a supplement to his
brief the petitioner’s personal rendition of the events surrounding the shooting, the police’s conduct,
and his trial attorneys’ deficiencies. The supplement also contains the petitioner’s assertions
regarding his post-conviction counsel’s deficiencies. Documents and photographs are attached.
However, we are limited to the facts as they were developed in the trial court, their first assertion
upon appeal being futile. As for the complaints about post-conviction counsel and the lack of a
continuance to prepare for the hearing, the record is insufficient to warrant any action by us on
appeal.

                I. KNOWING, INTELLIGENT, AND VOLUNTARY PLEAS

         The petitioner contends that his guilty pleas were not knowingly, intelligently, and voluntarily
entered because his attorneys coerced him into pleading guilty by telling him that life on death row
would be harsh and by having his family and a mitigation consultant convince him to accept the
state’s plea offer. In addition, he contends that his pleas were not knowingly and voluntarily entered
because his attorneys did not tell him about the bullet fragment test results before he accepted the


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state’s offer. Finally, he contends that his pleas were not knowingly, intelligently, and voluntarily
entered because he was taking medications at the time of the plea hearing that may have affected his
ability to understand what he was doing. The state claims that the petitioner knowingly, intelligently,
and voluntarily entered his pleas. We agree with the state.

        In order for a conviction based upon a guilty plea to comport with due process, the plea must
be voluntarily, knowingly, and understandingly entered. Boykin v. Alabama, 395 U.S. 238, 242-44,
89 S. Ct. 1709, 1712 (1969). A guilty plea is not voluntary “if it is the product of ‘[i]gnorance,
incomprehension, coercion, terror, inducements, [or] subtle or blatant threats . . . .” Blankenship v.
State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43, 89 S. Ct. at 1712).
The standard for assessing the validity of a guilty plea is “‘whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.’” Id. (quoting
North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970)). “[T]he record of acceptance
of a defendant’s plea of guilty must affirmatively demonstrate that his decision was both voluntary
and knowledgeable, i.e., that he has been made aware of the significant consequences of such a plea;
otherwise, it will not amount to an ‘intentional abandonment of a known right.’” Mackey, 553
S.W.2d 337, 340 (Tenn. 1977). To assess whether a petitioner entered a knowing, voluntary, and
intelligent guilty plea, this court must consider the totality of the circumstances. State v. Turner, 919
S.W.2d 346, 353 (Tenn. Crim. App. 1995).

        In this case, the petitioner’s lead trial attorney testified that he had developed a defense, that
this would have been a difficult case to win, that the petitioner decided to accept the state’s plea offer
after speaking with his family and a mitigation consultant, and that no one coerced the petitioner.
The trial court accredited the attorney’s testimony and held that the petitioner was motivated to plead
guilty by his desire to avoid the death penalty. We note that the petitioner testified that he
appropriately answered the trial court’s questions at the guilty plea hearing in order for the trial court
to accept his guilty pleas and allow him to avoid the death penalty. This supports the trial court’s
concluding that the petitioner decided to plead guilty in order to receive a lesser punishment.

        As to the petitioner’s claim that medication affected his ability to understand his pleas, the
trial court determined that the guilty plea hearing transcript demonstrated otherwise. Our review of
the guilty plea hearing shows that the trial court questioned the petitioner extensively and that the
petitioner answered yes and no at the appropriate times. In addition, the trial court asked the
petitioner if he had any physical or mental conditions that would prevent him from understanding
the hearing, and the petitioner answered, “No, your Honor.” Regarding the petitioner’s claim that
his pleas were not knowingly and voluntarily entered because his attorneys did not tell him about the
bullet fragment test results, we note that the petitioner’s attorney only testified that the bullet
fragments did not match the petitioner’s gun “perfectly.” The attorney also stated that state witnesses
were prepared to testify that two shots were fired from a window in the petitioner’s house and that
one of the shots hit the victim. Moreover, the petitioner has presented no scientific evidence to show
that the bullet fragments recovered from the victim did not come from the petitioner’s weapon. The
trial court held that the evidence against the petitioner had been overwhelming. We conclude that



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the petitioner has failed to show that he did not knowingly, intelligently, and voluntarily enter his
guilty pleas.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

        The petitioner contends that he received the ineffective assistance of counsel because his trial
counsel waived the preliminary hearing for his murder, attempted murder, and manufacturing
charges without his consent; failed to file a motion to suppress evidence that was obtained pursuant
to an illegal search warrant; and failed to prepare a defense. The state claims that the petitioner
received the effective assistance of counsel. We agree with the state.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the
defense does not, alone, support a claim of ineffective assistance. Deference is made to trial strategy
or tactical choices if they are informed ones based upon adequate preparation. See Hellard, 629
S.W.2d at 9; DeCoster, 487 F.2d at 1201.

        The burden is on the petitioner to prove his grounds for relief by clear and convincing
evidence. T.C.A. § 40-30-210(f). On appeal, we are bound by the trial court’s findings of fact
unless we conclude that the evidence in the record preponderates against those findings. Fields v.
State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions of law and fact, we
review the trial court’s conclusions as to whether counsel’s performance was deficient and whether
that deficiency was prejudicial under a de novo standard with no presumption of correctness. Id. at
457.

        Regarding the petitioner’s claim that his attorneys were ineffective for waiving the
petitioner’s preliminary hearing on the murder, attempted murder, and manufacturing a controlled


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substance charges, we note that the petitioner never questioned his lead attorney at the evidentiary
hearing about why the attorney waived the preliminary hearing. In any event, the petitioner has
presented no evidence that waiving the preliminary hearing changed the outcome of his case. As to
his claim that his attorneys failed to develop a defense, the trial court accredited the petitioner’s lead
trial counsel, who testified that he thoroughly investigated the petitioner’s case and planned to use
the police’s actions and the petitioner’s mental condition as a defense. Finally, as to the petitioner’s
claim that his attorneys were ineffective for failing to file a motion to suppress evidence that was
obtained as a result of an illegal search warrant, this court has stated that if arguable grounds exist
to suppress incriminating evidence, then an attorney, as a zealous advocate for the client, should
move to suppress that evidence. See Robert C. Bellafant v. State, No. 01C01-9705-CC-00183,
Maury County, slip op. at 10 (Tenn. Crim. App. May 15, 1998). However, the petitioner has
presented no proof that any search warrant was invalid and, therefore, that any evidence collected
was inadmissible. As a result, he has failed to show that his attorneys rendered deficient
performance for failing to file a motion to suppress or that he was prejudiced by any deficiency.
Thus, he is not entitled to relief.

        Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                         ____________________________________
                                                         JOSEPH M. TIPTON, JUDGE




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