         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   August 15, 2000 Session

            STEVEN EDWARD LEACH v. STATE OF TENNESSEE

             Post-Conviction Appeal from the Criminal Court for Smith County
                            No. 95-74   James O. Bond, Judge



                   No. M1999-00774-CCA-R3-PC - Filed February 16, 2001


On November 19, 1995, a Smith County Grand Jury indicted Steven Edward Leach, the defendant
and appellant, for first-degree murder, felony murder, two counts of rape of a child, and attempted
rape of a child. Pursuant to a plea agreement, the defendant pled guilty to first-degree murder and
rape of a child and the trial court sentenced him to serve life without parole for the murder
consecutively to twenty-five years for the rape. The defendant filed a post-conviction petition, and,
following a hearing, the trial court denied the petition. On appeal, the defendant claims (1) that he
was denied his right to counsel of his choice; (2) that he was denied the effective assistance of
counsel; (3) that he was denied his due process right to be present at a hearing; and (4) that the
cumulative effect of the trial court’s errors violated his due process rights. Because the evidence
does not preponderate against the findings of the trial court, we affirm its judgment.


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

JERRY SMITH, J., delivered the opinion of the court, in which L. T. LAFFERTY, J., SR. J., joined, JOE
G. RILEY, J., not participating.

Frank Lannom, Lebanon, Tennessee attorney for the Appellant, Steven Edward Leach.

Paul G. Summers, Attorney General & Reporter, Lucian D. Geise, Assistant Attorney General and
Tom P. Thompson, Jr., District Attorney General, Hartsville, Tennessee attorney for the Appellee,
State of Tennessee.

                                            OPINION

                                       Factual Background
         On January 17, 1995, the defendant’s wife was babysitting a small child. She left the
defendant alone with the child, and the defendant apparently beat and raped the child; the child died
later that night. Following an investigation, the defendant was charged with premeditated murder,
felony murder, two counts of rape of a child, and attempted rape of a child. At the defendant’s
request, the court appointed the public defender’s office to represent him. Sometime after that, the
defendant’s wife retained a private attorney, Jane Powers, to represent the defendant. Ms. Powers
subsequently moved the court to allow her to substitute for the public defender’s office as lead
counsel. The court denied the motion but allowed Ms. Powers to serve as co-counsel with the public
defender’s office. The defendant subsequently pled guilty to first-degree murder and rape of a child,
and, pursuant to a plea agreement, the court sentenced him to life without parole consecutive to
twenty-five years.

                                       Standard of Review
        On post-conviction, the defendant bears the burden of proving his allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f); Hicks v. State, 983 S.W.2d 240, 245 (Tenn.
Crim. App. 1998). Clear and convincing evidence means that there is "no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence." Hicks, 983 S.W.2d at 245
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn.1992)). On appeal, we are
bound by the trial court's findings of fact unless the record preponderates against those findings.
Hicks, 983 S.W.2d at 245.

                                           Right to Counsel
        First, the defendant complains that the trial court denied him the right to counsel of choice
pursuant to the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution. After requesting an appointed lawyer, the defendant’s wife retained Jane
Powers to represent the defendant. Ms. Powers then apparently moved the court to allow her to
substitute for the Public Defender’s Office as lead counsel. The trial court denied the motion,
because Ms. Powers was not qualified to represent defendants in potential capital cases under Rule
13 of the Rules of the Tennessee Supreme Court. However, the court allowed Ms. Powers to serve
as co-counsel with the Public Defender’s Office. The defendant now claims that the trial court erred
because the supreme court rule governing the qualifications of counsel applies only to appointed
counsel.
         We need not address the defendant’s claim that the rule does not govern the qualifications
of retained counsel, because the defendant was not denied his counsel of choice. Indeed, the
testimony at the post-conviction hearing indicates that Ms. Powers was an active participant in the
defendant’s case. The defendant’s motion subjected the trial court to a sort of Hobson’s choice; the
court could either appoint Ms. Powers, who was, in the trial court’s estimation, less qualified for a
capital case than the public defender, or it could deny the defendant’s motion and possibly deny the
defendant the benefit of his retained counsel. Displaying Solomon-like wisdom, the trial court
decided that the defendant would be represented by both the Public Defender’s Office and Ms.
Powers. The defendant was thus not denied representation by his counsel of choice.
         We also note that, even if the defendant had been denied his counsel of choice, our decision
would have been the same. The appointment and relief of counsel rests within the sound discretion
of the trial court. State v. Rubio, 746 S.W.2d 732, 737 (Tenn. Crim. App. 1987). cf. Tenn. Code
Ann. § 40-14-205 (court "may" allow appointed counsel to withdraw upon showing of good cause).
In State v. Gilmore, 823 S.W.2d 566 (Tenn. Crim. App. 1991), this Court addressed the
circumstances in which a defendant is entitled to substitution of counsel:


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        When an accused seeks to substitute counsel, the accused has the burden of
        establishing to the satisfaction of the trial judge that (a) the representation being
        furnished by counsel is ineffective, inadequate, and falls below the range of
        competency expected of defense counsel in criminal prosecutions, (b) the accused
        and appointed counsel have become embroiled in an irreconcilable conflict, or (c)
        there has been a complete breakdown in communications between them.

 Id. at 568-69. In this case, the defendant has not demonstrated that the trial court abused its
discretion in denying the defendant’s motion for substitution of counsel, because the evidence
presented to the post-conviction court did not establish that the public defender’s office was
inadequate, that the defendant and the public defender’s office had become embroiled in an
irreconcilable conflict, or that there had been a complete breakdown in communications between
them. Although there was testimony at the post-conviction hearing that the relationship between the
defendant and the public defender’s office became acrimonious at times, it did not rise to the level
of requiring substitution. See State v. James Morrow, No. W1998-0583-CCA-R3-CD, 1999 WL
1529719 at *4 (Tenn. Crim App. at Jackson, Dec 29, 1999). This issue is without merit.

                                   Effective Assistance of Counsel
        Next, the defendant claims that he was denied the effective assistance of counsel because (1)
his plea was involuntary, and (2) Ms. Powers had a conflict of interest. When a petitioner seeks
post-conviction relief on the basis of ineffective assistance of counsel, the petitioner bears the burden
of showing that (a) the services rendered by trial counsel were deficient and (b) the deficient
performance was prejudicial. Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In
order to demonstrate deficient performance, the petitioner must show that the services rendered or
the advice given was below "the range of competence demanded of attorneys in criminal cases."
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner
must show that there is a reasonable probability that, but for counsel's deficient performance, the
result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694,
104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984). "Because a petitioner must establish both prongs
of the test to prevail on a claim of ineffective assistance of counsel, failure to prove either deficient
performance or resulting prejudice provides a sufficient basis to deny relief on the claim." Henley
v. State, 960 S.W.2d 572, 580 (Tenn. 1997). "Moreover, on appeal, the findings of fact made by the
trial court are conclusive and will not be disturbed unless the evidence contained in the record
preponderates against them." Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). "The
burden is on the petitioner to show that the evidence preponderated against those findings." Id.
                                                    A.
        First, the petitioner claims that he was denied the effective assistance of counsel because he
“was forced to either plead guilty or proceed to a trial in which his counsel of choice was not able
to be lead counsel and with attorney in whom he did not trust.” In other words, he argues that his
guilty plea was involuntary. When an appellant seeks to set aside a guilty plea on the ground of
ineffective assistance of counsel, he must demonstrate a reasonable probability that, but for counsel's
deficiency, he would have insisted upon proceeding to trial. Powers v. State, 942 S.W.2d 551, 558
(Tenn. Crim. App. 1996)(citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d


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203 (1985)). This the defendant has not done. Indeed, at the post-conviction hearing, Ms. Powers
testified that she believed pleading guilty was in the defendant’s best interest. Moreover, nothing
else in the record indicates that the defendant’s plea was involuntary. The record reveals that the
trial court thoroughly questioned the defendant about his decision to plead guilty and that the
defendant was well-aware of his right to proceed to trial and the possible consequences of either
action before he pled guilty.
                                                 B.
         The defendant also claims that he was denied the effective assistance of counsel because Ms.
Powers, his “counsel of choice,” had a conflict of interest. Specifically, the defendant claims that
his wife hired Ms. Powers and that Ms. Powers held divided allegiance between the defendant and
his wife. We disagree. The mere fact that counsel might have a potential conflict of interest in
representing multiple clients does not authorize a presumption of ineffective assistance of counsel.
Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); Netters v. State, 957
S.W.2d 844, 847 (Tenn. Crim. App. 1997). In this case, the defendant never proved that Ms. Powers
held divided allegiance. Although the testimony at the post-conviction hearing revealed that the
defendant’s wife hired Ms. Powers, in part, to help her understand the case, further testimony
revealed that Ms. Powers actively represented the defendant’s interests. Absent any other evidence,
we are not willing to presume Ms. Powers had a conflict of interest.
         This issue is without merit.

                                              Due Process
        Finally, the defendant claims that his due process rights were violated because he was denied
the right to be present at the substitution hearing. The defendant has a constitutional right to be
present at a proceeding "whenever his presence has a relation, reasonably substantial, to the fulness
of his opportunity to defend against the charge." United States v. Gagnon, 470 U.S. 522, 526, 105
S. Ct. 1482, 1484, 84 L. Ed. 2d 486 (1985)(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06,
54 S. Ct. 330, 332, 78 L. Ed. 674 (1934)). Also, Rule 43(a) of the Tennessee Rules of Criminal
Procedure explicitly gives a defendant the right to be present "at every stage of the trial including the
impaneling of the jury." Tenn. R. Crim P. 43(a); see also State v. Muse, 967 S.W.2d 764, 766 (Tenn.
1998). In this case, however, the petitioner has not shown that he was absent from the hearing. At
the post-conviction hearing, Ms. Powers testified that the defendant was at the hearing, but the two
other attorneys who represented the defendant could not remember whether the defendant was
present. The defendant testified that he was absent from the hearing. Following the post-conviction
hearing, the trial court found that the defendant had not proven by clear and convincing evidence that
the defendant was absent from the hearing. The evidence does not preponderate against the trial
court’s ruling.
        This issue is without merit.




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         Accordingly, the judgment of the trial court is AFFIRMED.1



                                                                 ___________________________________
                                                                 JERRY SMITH, JUDGE




         1
                  The defendant also complains that the cumulative effect of all of the errors requires reversal. Be cause
we have fou nd no me rit to any of his claim s of error, we n eed not ad dress any po ssible cumula tive effect.




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