             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                          SEPTEMBER 1998 SESSION
                                                       November 3, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

RICHARD BROWN, JR.,                )
                                   )    C.C.A. NO. 03C01-9707-CR-00257
             Appellant,            )
                                   )    KNOX COUNTY
VS.                                )
                                   )    HON. RICHARD R. BAUMGARTNER,
STATE OF TENNESSEE,                )    JUDGE
                                   )
             Appellee.             )    (Post-Conviction)



FOR THE APPELLANT:                     FOR THE APPELLEE:


MARK STEPHENS                          JOHN KNOX WALKUP
Public Defender                        Attorney General & Reporter

PAULA R. VOSS                          Elizabeth B. Marney
       -and-                           Asst. Attorney General
JOHN HALSTEAD                          425 Fifth Ave., North
Asst. Public Defenders                 2nd Floor, Cordell Hull Bldg.
1209 Euclid Ave.                       Nashville, TN 37243-0493
Knoxville, TN 37921
                                       RANDALL NICHOLS
                                       District Attorney General

                                       ROBERT L. JOLLEY, JR.
                                       Asst. District Attorney General
                                       District Attorney General’s Office
                                       City-County Bldg.
                                       Knoxville, TN 37902




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                                OPINION



                  On July 23, 1993, the petitioner pled guilty to second-degree murder,

especially aggravated robbery, four counts of aggravated robbery, and one count of theft.

He was then sentenced to a total of sixty years to be served in the Tennessee

Department of Correction. On March 25, 1994, he filed a petition for post-conviction relief

alleging that he was denied the effective assistance of counsel. Following an evidentiary

hearing on June 5, 1997, the post-conviction court denied his petition. It is from this

denial that the petitioner now appeals.



                  After a review of the record and applicable law, we find no merit to the

petitioner’s appeal and thus affirm the judgment of the court below.



                  The petitioner’s convictions for especially aggravated robbery and second-

degree murder1 stem from the robbery of Moyers Market on July 19, 1992. The petitioner

entered the store and showed the clerk a pistol he had in his waistband. The petitioner

then told the clerk that he wanted money. It was at this point that another employee,

Donald R. Brown, emerged from the back room of the store and confronted the petitioner.

Although the record is not entirely clear, it appears a struggle ensued and the petitioner

shot and killed Mr. Brown. The petitioner then took money from the store and left the

premises.



                  The petitioner contends that he was denied effective assistance of counsel

when his attorney allowed him to plead guilty to especially aggravated robbery which was



         1
           As th e con viction s for espe cially ag grav ated robb ery an d sec ond -deg ree m urde r are t he on ly
convictions at issue in this appeal, we will not go into detail regarding the facts surrounding the other
convictions.

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essentially incidental to the second-degree murder charge and was thus barred by due

process and double jeopardy. In reviewing the petitioner’s claim of ineffective assistance

of counsel, this Court must determine whether the advice given or services rendered by

the attorney are within the range of competence demanded of attorneys in criminal

cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of

ineffective counsel, a petitioner “must show that counsel’s representation fell below an

objective standard of reasonableness” and that this performance prejudiced the defense.

There must be a reasonable probability that but for counsel’s error the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88,

692, 694, (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).



              Because the petitioner in this case pled guilty, he would have to

demonstrate a reasonable probability that, but for counsel’s errors, he would not have

pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52,

59, (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).



              The petitioner claims that since his convictions for especially aggravated

robbery and second-degree murder violate due process and the Double Jeopardy

Clause, his attorney should not have allowed him to plead guilty. The petitioner further

contends that his attorney’s allowance of his guilty plea constituted ineffective assistance

of counsel. We disagree.



              In 1932, the United States Supreme Court held that in determining whether

multiple convictions violate double jeopardy, “[t]he applicable rule is that, where the same

act or transaction constitutes a violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or only one is whether each



                                              3
provision requires proof of an additional fact which the other does not.” Blockburger v.

U.S., 284 U.S. 299, 304, (1932). This Court has further held that in order for two

offenses to be viewed as the same offense under this test, “it is necessary that the

elements of one of the offenses must necessarily be proven whenever a violation of the

other offense has been proven.” State v. Jackson, No. 03C01-9206-CR-00222, Hamilton

County (Tenn. Crim. App. filed July 29, 1993, at Knoxville).



             In light of the foregoing, it is necessary to set out the elements of the

offenses for which the petitioner was convicted. Especially aggravated robbery is a

robbery accomplished with a deadly weapon and that results in serious bodily injury to

the victim. T.C.A. § 39-13-403 (1991). In contrast, second-degree murder is a knowing

killing of another. T.C.A. § 39-13-210 (1991). “Unquestionably, neither robbery nor the

use of a deadly weapon is necessarily proven by proving the elements needed for first

degree or second degree murder.” State v. Jackson, No. 03C01-9206-CR-00222,

Hamilton County (Tenn. Crim. App. filed July 29, 1993, at Knoxville). In addition, a

knowing killing of another is not necessarily proven by proving the elements needed for

especially aggravated robbery. As such, under the principles set out above, these two

offenses are separate and double jeopardy is not violated when a defendant is convicted

of both.



             However, the petitioner further contends that the especially aggravated

robbery was essentially incidental to the second-degree murder charge and therefore

barred by due process under the principles set out in State v. Anthony, 817 S.W.2d 299

(Tenn. 1991). We disagree. The test set out in Anthony to determine whether or not

multiple convictions violate due process was whether an offense was essentially

incidental to the accompanying felony. 817 S.W.2d at 306.



                                           4
              It is clear that the petitioner’s robbery of the market was not essentially

incidental to his murder. Either offense can be committed without committing the other.

Obviously, neither offense is necessarily incidental to the other. As such, the petitioner’s

convictions did not violate due process.



              Since it did not violate the Double Jeopardy Clause or due process for the

petitioner to be convicted of both second-degree murder and especially aggravated

robbery, it was not error for the petitioner’s attorney to “allow” him to plead guilty to both

offenses. Therefore, the petitioner was not denied the effective assistance of counsel.

In sum, we affirm the trial court’s denial of this petition for post-conviction relief.




                                                   _________________________________
                                                   JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
DAVID G. HAYES, Judge




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