         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 16, 2003

                  FREDDIE VAUGHT v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Rutherford County
                         No. F-52218 James K. Clayton, Jr., Judge



                   No. M2003-00955-CCA-R3-PC - Filed December 30, 2003



The petitioner appeals the denial of post-conviction relief. He argues his guilty plea to second degree
murder was involuntary due to ineffective assistance of trial counsel. We affirm the judgment of the
post-conviction court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and NORMA
MCGEE OGLE , JJ., joined.

Tony L. Maples, Murfreesboro, Tennessee, for the appellant, Freddie Vaught.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and John W. Price, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        On March 8, 2001, the petitioner pled guilty to second degree murder in exchange for a
fifteen-year sentence. The plea was entered on the third day of his trial for first degree murder. He
timely sought post-conviction relief, arguing his guilty plea was involuntary due to conflicts with a
member of the defense team. The post-conviction court denied his request for relief, and this appeal
ensued.

                           POST-CONVICTION RELIEF HEARING

       The petitioner testified the District Public Defender represented him on the charge of first
degree murder. He stated he had no problems with the District Public Defender, who was lead
counsel on his case; however, he had a poor relationship with the assistant public defender who also
helped with his case. He further complained his attorneys did not keep him properly advised as to
the status of his case prior to trial.

        The petitioner testified the assistant public defender urged him to accept the state’s plea offer.
He stated the attorney also told him there would be no grounds for an appeal if he lost at trial.
According to the petitioner, this statement led him to believe there would be no appeal if he were
convicted. He recounted that he terminated one meeting with the District Public Defender and the
assistant after the assistant cursed him. He also said that the assistant public defender may have
allowed the jury to see graphic photographs of the victim while looking at the photographs in an
album at the defense table during trial. The petitioner did not know whether any of the jurors
actually saw the photographs.

        He testified the trial court denied his pre-trial request to appoint new counsel. According to
the petitioner, he complained about the assistant public defender to the District Public Defender; he
told the District Public Defender he would be satisfied if he represented him, but he did not want to
be represented by the assistant. He conceded the District Public Defender was the only attorney who
actually participated at the trial.

        The petitioner stated he met with the District Public Defender, the assistant, and their
investigator prior to trial and discussed potential defense witnesses, whom trial counsel located. He
conceded his attorneys answered all of his questions.

        The District Public Defender testified he served as lead counsel in the petitioner’s case. He
stated that his office had at least twenty-eight contacts with the petitioner prior to trial, and that he
was involved in thirteen of them. He conceded the petitioner and the assistant public defender who
served as co-counsel had “some difficulties,” but he made a “judgment call” not to remove the
assistant from the case. He recounted that the petitioner wrote a letter to the trial court which
prompted a conference in which the petitioner indicated he would be satisfied as long as the District
Public Defender was involved in his case.

         In describing the investigation of the petitioner’s case, the District Public Defender testified
they received discovery and were aware of all the proof to be presented several weeks prior to the
start of trial. He said they had discussed the results of their investigation with the petitioner. He
recalled the petitioner pled guilty after the state presented damaging testimony from the medical
examiner.

        The post-conviction court found the petitioner and the assistant public defender “didn't see
things eye to eye,” but that the assistant public defender was not lead counsel and did not actively
participate in representing the petitioner at trial. The post-conviction court concluded the petitioner
failed to prove he was deprived of effective assistance of counsel.




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                         INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review

        When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the
petitioner bears the burden of proving (1) that counsel’s performance was deficient, and (2) the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings were fundamentally unfair. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). This standard has also 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 ineffective assistance of counsel in
relation to a guilty plea, the petitioner must prove that counsel performed deficiently, and, but for
counsel’s errors, the petitioner would not have pled guilty but would have, instead, insisted upon
going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).

        The petitioner bears the burden of proving by clear and convincing evidence the factual
allegations that would entitle the petitioner to relief. Tenn. Code Ann. § 40-30-110(f) (2003). This
court is bound by the post-conviction court’s findings of fact unless the evidence preponderates
against those findings. Fields v. State, 40 S.W.3d 450, 456 -57 (Tenn. 2001).

B. Analysis

         Initially, we observe there was no clear and convincing proof that trial counsel’s performance
was deficient. Although the petitioner complained he did not hear from trial counsel for an extended
period of time, the proof established trial counsel met with the petitioner on numerous occasions and
informed him of the results of their investigation. The petitioner also alleged the assistant public
defender may have negligently allowed the jury to view graphic photographs of the victim during
trial; however, the petitioner did not establish that any jurors actually saw the photographs. Moreover,
there is no showing that this impacted the defendant’s guilty plea.

        Additionally, the record supports the post-conviction court’s conclusion that the petitioner
did not establish he was prejudiced by the alleged deficiencies of trial counsel. The assistant public
defender was not lead counsel at trial. Instead, it was the District Public Defender, with whom the
petitioner had no such conflict, who represented the petitioner as lead counsel at trial and during the
guilty plea hearing. Further, the transcript of the petitioner’s guilty plea hearing clearly reveals the
trial court advised the petitioner of his constitutional rights, and both the trial court and the District
Public Defender extensively questioned the petitioner about his decision to enter the plea.

        During the plea hearing, the trial court asked the petitioner if he was satisfied with the
representation of trial counsel. The petitioner, who was under oath, responded, “I’ve had complaints
in the past,” but went on to state he was satisfied with their representation. A petitioner’s testimony
at a guilty plea hearing “constitutes a formidable barrier” in a subsequent collateral proceeding
because “solemn declarations in open court carry a strong presumption of verity.” Blackledge v.


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Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). The petitioner has failed to
establish ineffective assistance of counsel.

       Accordingly, we affirm the judgment of the post-conviction court.



                                                     ____________________________________
                                                     JOE G. RILEY, JUDGE




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