         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs February 7, 2006

                 RODERICK HARRIS v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                            No. P28324    W. Otis Higgs, Judge



                  No. W2005-01102-CCA-R3-PC - Filed February 27, 2006


The Petitioner, Roderick Harris, appeals the Shelby County Criminal Court’s dismissal of his
petition for post-conviction relief. In 2004, he pled guilty to aggravated robbery and received a
sentence of ten years. On appeal, the Petitioner argues that trial counsel was ineffective for failing
to seek a pretrial mental evaluation. After a review of the record, we affirm the post-conviction
court’s dismissal of the petition.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE, JJ., joined.

James E. Thomas, Memphis, Tennessee, for the appellant, Roderick Harris.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Patience Branham, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                       Factual Background
        The following facts, relevant to the circumstances surrounding the Petitioner’s conviction
for aggravated robbery, were developed at the guilty plea hearing:

       . . . September 7th, 2002 the victim, Jerry Robinson, was sitting in his room at the
       boarding house at 1119 Patton when three males entered his room, grabbed him and
       pulled him down the stairs.

              They struck him with a cane, which was the victim’s own cane, and a stick.
       The victim advised he was then taken outside where he was continued to be beat. He
        was struck in the head, the face, the right -- and the right eye. There was also $300
        taken from his pocket during the incident.

                The victim was able to identify two of the suspects, one is [the Petitioner] and
        one is a co-defendant . . . . [The Petitioner] was arrested on a warrant on January
        13th, 2003 for this incident. This did occur in Memphis, Shelby County . . . .


        During the May term of 2003, a Shelby County grand jury indicted the Petitioner for
especially aggravated robbery. Pursuant to a negotiated plea agreement, the Petitioner pled guilty
to aggravated robbery on January 7, 2004, and received a sentence of ten years in the Department
of Correction as a Range I, standard offender. In March of 2004, the Petitioner filed a pro se petition
for post-conviction relief. Counsel was appointed, and an amended petition was filed on September
8, 2004, alleging multiple grounds of ineffective assistance of counsel. A hearing was held on
March 11, 2005, at which only the Petitioner and trial counsel testified. After hearing the evidence
presented, the post-conviction court entered an order on April 25, 2005, denying the petition. This
timely appeal followed.


                                           ANALYSIS
        On appeal, the Petitioner raises the single issue of whether he received the ineffective
assistance of counsel. Specifically he argues:

                 Trial counsel’s failure to have [the Petitioner] evaluated to determine his
        competency to stand trial constitutes ineffective assistance and calls into question the
        validity of the guilty plea. That is to say given [the Petitioner’s] diagnosis1 and
        medication it is likely that he did not a make [sic] knowing waiver of his right to a
        jury trial. . . .

                [The Petitioner’s] testimony at the post-conviction hearing clearly establishes
        that he was under the care of a “psche-ward doctor” and that he was taking the drug
        “Elavil, 150 milligrams.” [The Petitioner] also testified that he told [trial counsel]
        this on at least two occasions. . . . Moreover, the guilty plea transcript is devoid of
        any mention of whether or not [the Petitioner] was currently taking medication for
        depression. . . .

                Based on [the Petitioner’s] testimony one can conclude that [trial counsel]
        failed to move the court to have [the Petitioner] evaluated and that such failure
        constitutes ineffective assistance of counsel. Additionally, because there is no



        1
         The only reference to a “diagnosis” found in the record is post-conviction counsel’s reference to “anti-
depressant behavior.”

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        inquiry as to whether [the Petitioner] was taking medication at the time of the guilty
        plea calls into question whether there was knowing waiver.

The State argues that the post-conviction court properly determined that trial counsel was not
ineffective for failing to request a mental evaluation when trial counsel testified that there was no
indication that an evaluation was warranted.

         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee the criminally accused the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

         Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent
that it affects the voluntariness of the plea. In this respect, such claims of ineffective assistance
necessarily implicate the principle that guilty pleas be voluntarily and intelligently made. Hill v.
Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In
evaluating the knowing and voluntary nature of a guilty plea, the United States Supreme Court held,
“The standard was and remains whether the plea represents a voluntary and intelligent choice among
the alternative courses of action open to the defendant.” Alford, 400 U.S. at 31. In the context of
a guilty plea, to satisfy the second prong of Strickland, the Petitioner must show that “there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Lockhart, 474 U.S. at 59; see also Hicks v. State, 983 S.W.2d 240,
246 (Tenn. Crim. App. 1998).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629


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S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks, 983 S.W.2d
at 246.

        A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.

       Upon review of the record, we conclude that the evidence does not preponderate against the
findings of the post-conviction court. Trial counsel and the Petitioner met on multiple occasions to
prepare for trial. Contrary to the assertions of the Petitioner, trial counsel stated that the Petitioner
did not inform him that he was diagnosed with “anti-depressant behavior” or that he was taking
medication. According to trial counsel, the Petitioner had no indication of mental problems. Trial
counsel testified,

        I had every reason to believe that he was competent. We discussed the charges. In
        fact, he told me that, after we discussed the charges on September the 14th, that he
        would plead to an aggravated assault, but not the robbery. We discussed the
        elements of especially aggravated robbery. And we discussed the elements of the
        aggravated assault. He admitted his involvement with the aggravated assault, but
        denied the robbery and told me he would plead to the aggravated assault. So I had
        every reason to believe he was competent.

               And, he gave me a list of many witnesses names who he wanted me to track
        down. We discussed the statement that he had given, a motion to suppress that. I
        had no reason to believe that he was not competent to stand trial.

Moreover, trial counsel stated that he explained the consequences of a guilty plea to the Petitioner
and that the trial judge also explained the Petitioner’s rights to him at the time of his guilty plea.

         The post-conviction court determined that the Petitioner’s “testimony that he requested a
mental evaluation is insufficient in and of itself to indicate that an evaluation was needed, especially
in light of Counsel’s testimony that competency was not an issue.” The testimony at the post-
conviction hearing reveals that the lines of communication were open and used by both the Petitioner
and his trial counsel, allowing the Petitioner to make well-informed decisions and assist in his
defense. Moreover, the guilty plea transcript reveals that the trial judge carefully reviewed the rights
that the Petitioner was waiving and confirms that the Petitioner responded appropriately to questions.



                                                  -4-
In sum, the Petitioner has failed to prove by clear and convincing evidence that trial counsel’s failure
to request a mental evaluation prior to his plea constituted deficient performance.

        Further, trial counsel’s performance cannot be deemed deficient for failure to secure a mental
evaluation in the absence of a factual basis to support a mental evaluation. See Harold Wayne Shaw
v. State, No. M2003-02842-CCA-R3-PC, 2005 WL 1252620 (Tenn. Crim. App., Nashville, May 25,
2005); Charles William Young v. State, No. M2002- 01815-CCA-R3-PC, 2004 WL 305790 (Tenn.
Crim. App., Nashville, Feb. 18, 2004); Edward A. Wooten v. State, No. 01C01-9702-CC-000067,
1998 WL 255440 (Tenn. Crim. App., Nashville, May 21, 1998). Accordingly, we conclude that the
Petitioner has failed to demonstrate that trial counsel was ineffective for failing to pursue a mental
evaluation. This issue is without merit.


                                          CONCLUSION
       Based upon the foregoing authorities and reasoning, we affirm the post-conviction court’s
dismissal of the petition for post-conviction relief.



                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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