            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                             June 2000 Session

                   EDDIE LEE LOWE v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Shelby County
                               No. P-20127   Chris Craft, Judge



                   No. W1999-00881-CCA-R3-PC - Decided August 30, 2000


The petitioner, Eddie Lee Lowe, appeals the trial court’s denial of his petition for post-conviction
relief from his second degree murder and especially aggravated robbery convictions pursuant to
guilty pleas. The petitioner contends that he received the ineffective assistance of counsel because
neither his juvenile court attorney nor his trial attorneys preserved his right to appeal his transfer
from juvenile court to criminal court for trial as an adult. Because the petitioner had no right to an
acceptance hearing in the trial court, we hold that his juvenile court attorney was not deficient for
failing to move for such a hearing. Also, we hold that the petitioner has failed to show deficient
performance or prejudice by the fact that his trial attorney did not seek to reserve a certified question
of law on the transfer issue. 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 JOE G. RILEY and ALAN E.
GLENN, JJ., joined.

Brett B. Stein, Memphis, Tennessee, attorney for appellant, Eddie Lee Lowe.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
William L. Gibbons, District Attorney General; Elaine Sanders and Glen C. Baity, Assistants District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The petitioner, Eddie Lee Lowe, appeals the Shelby County Criminal Court’s denial of his
petition for post-conviction relief from convictions pursuant to guilty pleas to second degree murder
and especially aggravated robbery. The convicting court accepted the agreement to concurrent
twenty-five year sentences. The petitioner contends that he received the ineffective assistance of
counsel because neither his juvenile court attorney nor his trial attorneys preserved his right to appeal
his transfer from juvenile court to criminal court for trial as an adult. We affirm the trial court’s
denial of the petition.
        The petitioner’s convictions arise out of the August 31, 1996 robbery and shooting death of
James Herndon. The petitioner confessed to the offenses. On September 25, 1996, A.V. McDowell,
a licensed attorney and juvenile court referee, ruled that the petitioner, who was thirteen at the time
of the offenses, be transferred to the criminal court for trial as an adult. The grand jury indicted the
petitioner for premeditated first degree murder, felony murder, and especially aggravated robbery,
and the trial court appointed the public defender’s office to represent the petitioner at trial. On
February 18, 1997, the petitioner’s trial attorney filed a motion for an acceptance hearing, urging the
court to decline to accept jurisdiction over the petitioner because the individual who adjudicated the
transfer hearing was not a judge. The trial court denied the motion because it had not been filed
within the ten days specified by Tenn. Code Ann. § 37-1-159.

        On the day of trial, the petitioner accepted a plea offer of second degree murder and
especially aggravated robbery with an agreed sentence of twenty-five years for each offense to run
concurrently. At the guilty plea hearing, the parties stipulated that the state’s proof would show the
following account of the offense: The victim was with Brandy Smith and purchased crack cocaine
at two locations. When they ran out of cocaine, the victim drove Ms. Smith to the National
Apartments in Memphis, intending to buy more. The petitioner and Antonio Watkins approached
the driver’s side of the victim’s truck. Mr. Watkins asked the victim what he wanted. The victim
said that he wanted change for a one-hundred-dollar bill and some crack cocaine. Mr. Watkins
doubted that the victim had the money and asked him to show it to him. When the victim displayed
the money, the petitioner drew a .22 caliber revolver and grabbed the one-hundred dollar bill. The
petitioner and the victim struggled over the money, and the petitioner shot the victim. The bullet
traveled through the victim’s arm and into his chest, where it punctured his pulmonary artery, a lung,
and the aorta. The two continued to struggle, but the victim released the bill when the petitioner put
the gun to the victim’s forehead. The petitioner, Mr. Watkins, and several bystanders ran from the
scene. The victim asked Ms. Smith to drive him to the hospital. Because Ms. Smith did not know
how to operate a manual transmission, she drove while the victim shifted the gears for one-half mile
until the victim could no longer function. Ms. Smith sought help at a nearby house, and the police
came. The victim bled to death from his wound. Ms. Smith identified the petitioner and Mr.
Watkins as the assailants. Mr. Watkins’ girlfriend would have testified that on the night of the
offense, the petitioner told her that he shot a “white junky.” The police found the weapon in the
possession of a man who said he bought it from a relative of the petitioner. Tests revealed that
bullets fired from this gun matched the one removed from the victim’s body. The petitioner
admitted that this was the same gun used in the shooting.

        At the guilty plea hearing, the petitioner told the court that he was fourteen and had attended
school through the seventh grade. The petitioner agreed that he understood that if he went to trial
and was convicted, he could be sentenced to life in prison with or without parole. He agreed that
he understood that he was not eligible for parole due to the violent nature of his offenses. The court
explained the petitioner’s rights to a trial by jury, to testify, to call witnesses, and to question the
state’s witnesses. The petitioner agreed that he understood these rights and knew that he was giving
them up by pleading guilty. The petitioner agreed that he understood that he was giving up the right
to appeal his transfer from juvenile court. The petitioner agreed that he was satisfied with his
attorney’s representation. The court found that even though the petitioner was fourteen years old,

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he understood what he was doing and wanted to plead guilty. It found that the guilty pleas were
freely and voluntarily entered and that the petitioner’s attorney had represented him competently
above and beyond what the law required.

        The petitioner’s claims relate to Tenn. Code Ann. § 37-1-159(d), which sets forth the review
procedures for a juvenile transferred after April 7, 1994, for trial as an adult. The statute specifies
that civil or interlocutory appeal of the transfer is not available. The statute provides that for
transfers made by a nonlawyer judge, the juvenile may within ten days seek review of the transfer
by the criminal or circuit court. However, it does not provide for review of the transfer at the trial
court level if the transferring judge is a licensed attorney.

        At the post-conviction evidentiary hearing, the petitioner’s initial trial attorney testified that
he worked with the Shelby County Public Defenders Office and that the trial court appointed him
to represent the petitioner on February 3, 1997. He said that his supervisor worked with him on the
case and took over for him when he left the Public Defenders Office. He said that he got the case
one or two months after the petitioner’s juvenile court transfer hearing. He said that the individual
representing the Public Defenders Office in juvenile court was not affiliated with his office. He said
that his office had no notice that a juvenile had been bound over to the criminal court until the
arraignment.

         The attorney testified that he sought a trial court acceptance hearing to review the transfer.
He said that he argued that the court should grant the petitioner a hearing because the individual who
adjudicated the petitioner’s transfer was not a judge. He said that the trial court agreed with this
point but denied the motion because it was filed outside the ten-day limit. He said that other than
proceeding to trial, he had no way to preserve the issue for appeal because he could not bring an
interlocutory appeal on that issue. He said that he did not attempt to preserve the issue as a certified
question because he was no longer on the case at the time the petitioner entered his guilty pleas. He
said that he left the case before the hearing on the petitioner’s motion to suppress. He said that
before he left the case, the petitioner received an initial plea offer which he did not accept. He said
that at the time of the initial offer, he told the petitioner that if he were to plead guilty, he would be
giving up the right to appeal the trial court’s denial of his acceptance hearing.

        The attorney testified that he got copies of the petitioner’s juvenile court records and social
file. He said that these records showed that Dr. Rebecca Caperton had determined that the petitioner
had an Intelligence Quotient (IQ) of eighty, which is borderline mentally retarded. He said that
pursuant to his motion, the trial court ordered an evaluation of the petitioner to determine his
competency to stand trial and his mental capacity at the time of the offenses. He said that he also
requested that the mental health facility assess the petitioner’s IQ. He said that this evaluation
revealed that the petitioner’s IQ was within the parameters in his social file, showing borderline
mental retardation.


      The petitioner’s second trial attorney testified that she worked with the Shelby County Public
Defenders Office. She said that she assisted in the petitioner’s case until she took over when the

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other attorney left the office. She said that her office had no notice of the petitioner’s case until after
he was indicted. She said that she received the tape of the transfer hearing and that her secretary
typed a transcript of the tape. The trial court admitted the unofficial transcript of the transfer hearing
solely to show what the petitioner’s attorneys considered when they advised the petitioner on his
plea decision.

        The attorney testified that she discussed the motion for an acceptance hearing with the other
public defender. She said that they could not appeal the trial court’s denial of the motion at the time
and that they expected the case to go to trial. She said that the state had initially offered the
petitioner life imprisonment in exchange for his guilty plea. She said that the state’s proof of the
murder and robbery was fairly overwhelming. She said that the petitioner had confessed to the
crimes and that the state had the gun, two eyewitnesses, and the co-defendant, who had received a
ten-to-fifteen-year sentence in exchange for his truthful testimony against the petitioner. She said
that she was surprised on the day of trial when the state was willing to negotiate a plea. She said that
she thought that she was able to get the state to reduce their offer from life to twenty-five years on
the murder charge due in part to the petitioner’s age. She said that the petitioner wanted to take that
offer.

         The attorney testified that before the petitioner accepted the plea offer, she discussed his trial
rights with him and the fact that he would waive his right to appeal the suppression issue if he pled
guilty. She said that she did not remember if she and the petitioner discussed the fact that he would
be waiving his right to appeal his transfer from juvenile court if he accepted the plea offer but that
the trial court discussed this issue with the petitioner at the guilty plea hearing. She said that she
thought that the petitioner understood his rights and the plea agreement. She said that she was
familiar with the procedural rule allowing a defendant to plead guilty while preserving a certified
question of law that is dispositive of the case and agreed to by the state and the trial court. She said
that at the time of the petitioner’s plea, she could think of no way to preserve the issue of the
petitioner’s transfer from juvenile court and still get the benefit of the plea bargain. She said that
she did not address the trial court about certifying a question of law on the transfer issue.

         The attorney testified that the petitioner was the youngest person in the state to be transferred
from juvenile court and charged with murder. She said that before the petitioner’s case, the law
prohibited the transfer of anyone under age fourteen. She said that the amended statute dropped this
restriction for certain violent offenses. She said that the petitioner was one of the first juveniles to
be transferred under the amended statute. She said that she thought that the petitioner should have
remained in the juvenile court because of his age and mental condition. She said that she did not
believe that he ever understood the consequences of the statement that he gave to the police. She
said that although the petitioner might not have fit the requirement that he be committable due to his
mental condition, the juvenile court should have considered his mental condition as well as his
amenability to rehabilitation in relation to its ruling transferring the petitioner to criminal court.

        The parties agreed that the juvenile court judge at the time was not a licensed attorney but
that the juvenile referee who adjudicated the petitioner’s transfer hearing was a licensed attorney.
The petitioner argued that Tenn. Code Ann. § 37-1-159 was unconstitutional because it denied

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juveniles the right to appeal immediately the transfer to criminal court when such ruling was made
by an attorney. The trial court denied the petition for post-conviction relief, holding that the statute
was constitutional. The court found that the petitioner’s transfer hearing was adjudicated by a
licensed attorney and that the petitioner had no right to a transfer acceptance hearing in criminal
court. Because it found that the statute was constitutional and the petitioner had no right to an
acceptance hearing, the court determined that it did not need to decide whether the petitioner waived
his right to challenge the denial of an acceptance hearing by pleading guilty. It found that because
the statute was constitutional, the petitioner was not prejudiced by his attorneys’ failure to contest
its constitutionality. It further found that because the petitioner had failed to show prejudice, he had
not met his burden of proof.

                         INEFFECTIVE ASSISTANCE OF COUNSEL

        The petitioner contends that he received the ineffective assistance of counsel in juvenile court
because his attorney did not move within ten days for an acceptance hearing in which the criminal
court would review the transfer. He also claims that he received the ineffective assistance of counsel
from his trial attorneys. The petitioner does not argue that but for the advice of counsel regarding
the appeal of his transfer from juvenile court, he would not have pled guilty. Instead, he claims that
his attorneys did not preserve his right to appeal his transfer to criminal court. The state contends
that the petitioner received the effective assistance of counsel and that he has failed to show how he
was prejudiced by the failure to appeal the transfer.

       When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the
burden is upon 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).
When a petitioner claims that ineffective assistance of counsel resulted in a guilty plea, the petitioner
must prove that counsel performed deficiently and that but for counsel’s errors, the petitioner would
not have pled guilty and would have insisted upon going to trial. Hill v. Lockhart, 464 U.S. 52, 59,
106 S. Ct. 366, 370 (1985).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court held 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).

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        We also note that the approach to the issue of the ineffective assistance of counsel does not
have to start with an analysis of an attorney’s conduct. If prejudice is not shown, we need not seek
to determine the validity of the allegations about deficient performance. Strickland, 466 U.S. at 697,
104 S. Ct. at 2069.

        The petitioner has the burden in the trial court to prove by clear and convincing evidence the
factual allegations that would entitle him to relief. Tenn. Code Ann. § 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. See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.
1990). In this respect, the petitioner, as the appellant, has the burden of illustrating how the evidence
preponderates against the judgment entered. Id. However, we review the trial court’s conclusion
regarding the effectiveness of counsel de novo because it involves a mixed question of law and fact.
See State v. Burns, 6 SW 3d 453, 461 (Tenn. 1999).

        The juvenile court may transfer a child under age sixteen to the criminal court to be dealt
with as an adult if the child is alleged delinquent based upon conduct constituting first degree murder
or especially aggravated robbery, Tenn. Code Ann. § 37-1-134(a)(1), and if the court finds that
reasonable grounds exist to believe that:

        (A) The child committed the delinquent act as alleged;

        (B) The child is not committable to an institution for the mentally retarded or the
        mentally ill; and

        (C) The interests of the community require that the child be put under legal restraint
        or discipline.

Tenn. Code Ann. § 37-1-134(a)(4). Once the juvenile court rules that the juvenile will be transferred
for trial as an adult,

        [t]here is no civil or interlocutory appeal from a juvenile court’s disposition pursuant
        to § 37-1-134. If and only if a nonlawyer judge presides at the transfer hearing in
        juvenile court, then the criminal court, upon motion of the child filed with in ten (10)
        days of the juvenile court order, excluding nonjudicial days, shall hold a hearing as
        expeditiously as possible to determine whether it will accept jurisdiction over the
        child; provided, that if no such motion is filed with the criminal court within the ten-
        day period, excluding nonjudicial days, such child shall be subject to indictment,
        presentment or information for the offense charged. . . .

Tenn. Code Ann. § 37-1-159(d). Our supreme court has held that the part of § 37-1-159(d) that
eliminates the right to an acceptance hearing except in cases in which the transfer was by a
nonlawyer judge does not violate due process. State v. Darden, 12 S.W.3d 455, 459-60 (Tenn.
2000).


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        The petitioner argues that his juvenile court attorney was ineffective for failing to move for
an acceptance hearing in criminal court within the ten-day period specified by statute. At the
evidentiary hearing, the parties stipulated that a licensed attorney adjudicated the petitioner’s
transfer. The statute expressly provides for no acceptance hearing when a lawyer presides at the
transfer hearing. Tenn. Code Ann. § 37-1-159(d). Because the petitioner had no right to an
acceptance hearing, his juvenile court attorney could not be deficient for failing to seek one.

        The petitioner contends that even if Tenn. Code Ann. § 37-1-159(d) forecloses the right to
an immediate appeal of the juvenile court’s ruling transferring him to criminal court, it does not
deprive him of his right to appeal that ruling altogether. The petitioner argues that a juvenile is still
entitled to appellate review of the juvenile court’s transfer ruling after the criminal court disposes
of the case either by trial or plea. This court has acknowledged the right to review. In State v.
Griffin, 914 S.W.2d 564, 566 (Tenn. Crim. App. 1995), it stated that

                it appears that in order to review the decision of the lawyer juvenile
                judge, the juvenile in criminal court must either (1) enter a plea of not
                guilty and thus preserve the issue for review, if convicted, or (2)
                reserve the issue on a plea of guilty or nolo contendere pursuant to
                Rule 37(b)(2)(i) or (b)(2)(iv) of the Tennessee Rules of Criminal
                Procedure. The second alternative assumes that the decision of
                whether the juvenile should be tried as an adult is a “certified
                question of law” that may be appealed pursuant to Rule 37. See State
                v. Kevin L. Moton, No. 03C01-9104-CR-00129, Hamilton County,
                . . . (Tenn. Crim. App., Knoxville, filed Feb. 6), perm. to appeal
                denied, (Tenn., June 22, 1992).

For the purpose of this case, we also assume that the issue of the transfer from juvenile court is
dispositive of the criminal case.

         The petitioner contends that his trial attorneys were ineffective for failing to preserve his
right to appeal the validity of his transfer following his guilty plea. In this respect, we believe that
the trial attorney’s failure to preserve the issue for appeal as a certified question was not
automatically the ineffective assistance of counsel. A guilty plea based upon the reasonably
competent advice of counsel may not be attacked because of the possibility that the eventual
outcome of an issue may have been favorable to the petitioner had he or she proceeded to trial.
McMann v. Richardson, 397 U.S. 768, 769-70, 90 S. Ct. 1114, 1448 (1970). The decision to plead
guilty before all the issues are resolved necessarily involves the making of difficult choices based
upon uncertain judgments and predictions. Id. Furthermore, a defendant’s decision to plead guilty
may rest upon factors that go beyond the legal issues involved in the case such as the reduction of
stress on the defendant and his or her family, the removal of uncertain consequences arising from
a trial, and the reduction of actual exposure. See, e.g., Id. at 768-69, 90 S. Ct. at 1447. Thus, in
order to prove the prejudice prong of Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, the petitioner
must establish that a reasonable probability exists that “but for counsel’s errors,” he would not have
pled guilty but would have insisted on a trial. Hill, 474 U.S. at 59, 106 S. Ct. at 370.

                                                  -7-
        Relative to a certified question, we conclude that the petitioner still must show by clear and
convincing evidence that he would not have pled guilty in the absence of the certified question and
would have insisted upon proceeding to trial. The petitioner did not testify at the evidentiary
hearing and has failed to present any evidence of this contingency. Instead, the record reflects that
the convicting court painstakingly advised the petitioner of his right to a trial and explained to him
that his guilty pleas would waive review of his transfer from juvenile court. The petitioner agreed
that he understood this. The petitioner’s initial trial attorney testified that he advised the petitioner
that by pleading guilty, he would waive the opportunity to appeal the trial court’s denial of his
motion for an acceptance hearing. Despite her familiarity with the rule permitting certified questions,
the petitioner’s second attorney testified that at the time of the plea, she could think of no way to
preserve the issue of the petitioner’s transfer from juvenile court and still get the benefit of the plea
bargain. She also said that the evidence against the petitioner was fairly overwhelming and that she
was surprised by the state’s willingness to negotiate a plea on the day of trial. It is significant to note
that the petitioner was fully exposed to a life sentence but received only a twenty-five-year sentence
pursuant to the agreement. These circumstances indicate that the petitioner wanted to plead guilty
despite the fact that he would lose his opportunity to appeal his transfer to the criminal court for trial
as an adult. Moreover, no evidence indicates that the prosecutor would have accepted a certified
appeal as part of the plea agreement. Thus, the petitioner has failed to prove how he was prejudiced
by trial counsel’s failure to certify a question regarding his transfer from juvenile court. The
petitioner did not receive the ineffective assistance of counsel.

        Based upon the foregoing and the record as a whole, we affirm the trial court’s denial of the
petition for post-conviction relief.



                                                         ___________________________________
                                                         JOSEPH M. TIPTON, JUDGE




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