         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     April 11, 2001 Session

                  SHAWN TOLLIVER v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                             No. P-20924    Chris Craft, Judge



                     No. W2000-00834-CCA-R3-CD - Filed June 12, 2001


The petitioner appeals his denial of post-conviction relief and asserts that the post-conviction court
incorrectly found that he received effective assistance of counsel and, thus, knowingly and
voluntarily pled guilty. After review, we affirm the judgment of the post-conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOE G. RILEY and ROBERT
W. WEDEMEYER , JJ., joined.

James V. Ball, Memphis, Tennessee, for the appellant, Shawn Tolliver.

Paul G. Summers, Attorney General & Reporter; Laura E. McMullen, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Elaine Sanders, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

         The petitioner, Shawn Tolliver, pled guilty to second degree murder and attempted first
degree murder. He was sentenced to two twenty-five (25) year terms, to run concurrent with each
other and to be served at one hundred percent (100%). The petitioner filed a petition for post-
conviction relief and had a hearing on his petition. After a hearing on the merits of the petitioner’s
petition, the post-conviction court modified his sentence for attempted first degree murder to allow
for thirty percent (30%) parole eligibility. The post-conviction court denied the petitioner any relief
from his second degree murder conviction. The petitioner’s appeal is properly before this court and
he claims that the post-conviction court erred in denying his petition for post-conviction relief.
Specifically, he asserts that because his trial counsel was ineffective, his guilty pleas were not made
knowingly and voluntarily.
                                               Facts

        The petitioner was scheduled to go to trial on March 2, 1998, on charges of first degree
murder and attempted first degree murder. On the day of trial, he decided to plead guilty to a
cumulative sentence of thirty (30) years at one-hundred percent (100%) for second degree murder
and attempted first degree murder. However, upon being questioned by the trial judge, the petitioner
changed his mind and decided to go to trial. Subsequently, on March 4, 1998, the petitioner pled
guilty to second degree murder and attempted first degree murder to receive a cumulative sentence
of twenty-five (25) years at one-hundred percent (100%). He later filed a post-conviction petition
alleging he was denied effective assistance of counsel. The Shelby County Criminal Court
conducted a post-conviction hearing on August 20, 1999.

       At the post-conviction hearing, the petitioner testified that he has a fifth grade education, a
learning disability, and hears voices. At the time of his plea, the petitioner was medicated with
Haldol and Sinequan. He claimed that Haldol alters his decisions and that Sinequan makes him
sleepy. He received his monthly Haldol shot approximately one week prior to his plea, and had
taken Sinequan the night before. He argues that his attorney should have disclosed the fact that he
was on these medications to the trial court during the plea agreement hearing.

        The petitioner claims that because he was impaired by these medications, he did not
understand what the judge said at the first plea agreement hearing on March 2, 1998. According to
the petitioner, when the judge mentioned that the sentence would be at one-hundred percent, it
caught his attention and he decided not to plead guilty. However, it actually was the District
Attorney General who stated that the petitioner would be sentenced as a one-hundred percent
offender.

        On March 4, 1998, the petitioner pled guilty and agreed to a cumulative sentence of twenty-
five (25) years at one-hundred percent (100%). However, he alleges that his attorney told him that
the State was offering him twenty-five-year concurrent sentences at thirty percent (30%) if he would
plead guilty. At the post-conviction hearing, he admitted that his attorney read the judgment sheets
to him. Despite the fact that the judgment sheets clearly indicated that the sentences were at one-
hundred percent, the petitioner claims he was told that he would only be sentenced as a thirty percent
offender. Contrary to his assertion at the post-conviction hearing, his attorney did not recall the
State’s offer ever being less than one-hundred percent and that it was unlikely that he told the
petitioner that he would only have to serve thirty percent of his sentence. Furthermore, his attorney
testified that the petitioner appeared to understand the paperwork for his plea and that the one-
hundred percent box was checked.

        Although the statement concerning the petitioner being sentenced as a one-hundred percent
offender caught his attention during the March 2, 1998 plea proceeding, he testified at the post-
conviction hearing that he did not hear that same statement when he pled guilty on March 4, 1998.
He testified that at the March 4 hearing, he did not know what being sentenced as a one-hundred



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percent offender meant. He also claimed that he did not understand the questions or his answers
during his March 4, 1998, plea acceptance proceeding.

        According to the petitioner, he heard the judge but could not understand what he was saying.
The only thing he could say was “yes” or “no.” He claims that he could not understand the judge’s
inquiry as to whether he had any questions or whether he was making his plea voluntarily. The
petitioner admitted, however, that he did not ask the judge any questions during the hearing.

        The petitioner’s mother, Mary Jewell, testified that her son acted like he did not understand
what was going on and looked drowsy the day he pled guilty. However, like the petitioner’s
testimony, Ms. Jewell verified that her son is much better when he is on his medication than when
he is off. Ms. Jewell also testified that her son had been on and off the medications since he was ten
years old. The petitioner was no longer taking Haldol at the post-conviction hearing; however, he
testified that he was going back on Haldol because he felt like he needed it.

        The petitioner argued that his attorney should have informed the trial court that he was
medicated during the plea acceptance proceeding. Yet, his attorney did not see any reason to do so
because the petitioner’s behavior did not seem any different at the plea hearing than from the times
his attorney had previously interviewed him. The petitioner testified that on one occasion, his
attorney sent him back to his cell because he was drowsy. In fact, the trial court asked the petitioner
whether he was on any medication and he answered the question affirmatively.

        The petitioner’s trial counsel further testified that during his representation of the petitioner,
he fully investigated the case and performed adequate discovery. Trial counsel visited the petitioner
one or two times per month, and increased the visitations as the case came closer to trial. During
the visits, trial counsel had the opportunity to ask the petitioner questions. Trial counsel testified
that he was aware of the petitioner’s limited ability to understand. In fact, the petitioner's records
from Wilder Youth Development Center indicated that his overall IQ was sixty-nine. At the
petitioner’s initial psychological evaluation, Dr. John Hutson opined that the petitioner was
malingering.

         Trial counsel also knew that the petitioner took medication to combat his mental condition.
In a letter from Dr. Steinberg, the doctor stated that he thought the petitioner was over-medicated for
the purposes of psychological testing. Despite the medication, trial counsel found that the petitioner
was coherent and understood what he discussed with him. The only difficulty the petitioner
appeared to experience was deciding whether or not to plead guilty.

        During the post-conviction proceeding, the petitioner also claimed that the State denied him
exculpatory evidence with respect to Mr. Lee’s testimony during the preliminary hearing. Yet, trial
counsel testified that he did not know of any exculpatory evidence that was not turned over to the
defense. Furthermore, trial counsel stated that he did not believe the State intentionally failed to
disclose the transcript of Lee’s testimony.



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                                                Analysis

         The petitioner claims that he received ineffective assistance of trial counsel and, thus, his
guilty plea was not made knowingly and voluntarily. He alleges that he received ineffective
assistance of trial counsel because trial counsel failed to inform the trial court about his medicated
state at the plea hearing, failed to subpoena certain witnesses, and incorrectly informed him that he
was pleading to a thirty percent sentence rather than a one-hundred percent sentence.

        Post-conviction petitioners bear the burden of proving their allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the appellate court accords the
trial court’s findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

        The Sixth Amendment to the United States Constitution and Article I, section 9 of the
Tennessee Constitution both require that a defendant in a criminal case receive effective assistance
of counsel. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). When a defendant claims
constitutionally ineffective assistance of counsel, the standard applied by the courts of Tennessee is
“whether the advice given or the service rendered by the attorney is within the range of competence
demanded by attorneys on criminal cases.” Summerlin v. State, 607 S.W.2d 495, 496 (Tenn. Crim.
App. 1980).

        In Strickland v. Washington, the United States Supreme Court outlined the requirements
necessary to demonstrate a violation of the Sixth Amendment right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, the defendant must show that
counsel’s performance fell below an objective standard of reasonableness under prevailing
professional norms and must demonstrate that counsel made errors so serious that he was not
functioning as “counsel” guaranteed by the Constitution. Strickland, 466 U.S. at 687, 104 S. Ct. at
2064. Second, the petitioner must show that counsel’s performance prejudiced him and that errors
were so serious as to deprive the petitioner of a fair trial, calling into question the reliability of the
outcome. Id.; Henley, 960 S.W.2d at 579.

        “When addressing an attorney’s performance it is not our function to ‘second guess’ tactical
and strategic choices pertaining to defense matters or to measure a defense attorney’s representation
by ‘20-20 hindsight.’” Henley, 960 S.W.2d at 579 (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982)). Rather, a court reviewing counsel’s performance should “eliminate the distorting effects of
hindsight . . . [and] evaluate the conduct from the perspective at the time.” Strickland, 466 U.S. at
689, 104 S. Ct. at 2065. “The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation.” Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996). On the other hand, “deference to matters of strategy and tactical choices applies only
if the choices are informed ones based upon adequate preparation.” Id.




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       To establish prejudice, a party claiming ineffective assistance of counsel must show a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id.; Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable
probability is “a probability sufficient to undermine confidence in the outcome.” Id.

        In reviewing a claim of ineffective assistance of counsel, an appellate court need not address
both prongs of Strickland if it determines that the petitioner has failed to carry his burden with
respect to either prong. Henley, 960 S.W.2d at 580. When the claim is predicated upon counsel’s
failure to present potential witnesses, their testimony should be offered at the post-conviction
hearing. In this manner the court can consider (1) whether a material witness existed and could have
been discovered but for counsel’s neglect, or a known witness was not interviewed by counsel; and
(2) whether the failure to discover or interview a witness prejudiced the petitioner or the failure to
call certain witnesses denied critical evidence to the prejudice of the petitioner. See Black v. State,
794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

        The petitioner’s first claim of ineffective assistance of counsel is two-pronged: (1) that he
was in such a medicated state that he did not understand what was going on at his guilty plea hearing
and (2) that trial counsel was ineffective for not informing the judge about his medicated state. At
the post-conviction hearing, the evidence clearly showed that the trial judge knew about the
petitioner’s medicated state. The trial judge asked the petitioner, at the plea hearing, whether he was
on any medication and the petitioner answered affirmatively. The trial judge then inquired about the
petitioner’s medicated state and determined that the petitioner was aware of what he was pleading
guilty to. Trial counsel testified that he did not feel that the petitioner’s behavior was any different
from the other times that he had interviewed the petitioner and, thus, he did not find it necessary to
inform the trial court. The post-conviction court found that because the trial judge was in fact
informed about the petitioner’s medicated state, the petitioner failed to show how he was prejudiced
by trial counsel’s inaction. Furthermore, the post-conviction court found that the petitioner was
aware of the circumstances of his plea. The record clearly supports the post-conviction court’s
findings.

        The next allegation of ineffective assistance of counsel is based upon trial counsel’s failure
to subpoena certain witnesses. However, the petitioner failed to present such witnesses at the post-
conviction hearing. Thus, the post-conviction court had no evidence before it that supported the
petitioner’s claim that the result would have been different had his trial counsel subpoenaed those
witnesses. See, e.g., Black, 794 S.W.2d at 757. Again, the record clearly supports the post-
conviction court’s findings.

        Finally, the petitioner alleges that trial counsel incorrectly told him that he was pleading
guilty to an effective sentence of concurrent twenty-five year terms, of which he would be required
to serve thirty percent, not one-hundred percent. However, at the post-conviction relief hearing, trial
counsel testified that it was unlikely that he told the petitioner that he would only have to serve thirty
percent of his sentence. Also, the judgment sheets that the petitioner was shown prior to pleading
guilty clearly indicated that the sentences were to be served at one-hundred percent. Because the


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percentage of his sentence that he would be required to serve was apparently so important at his first
hearing, he certainly would have listened for such condition at the second hearing and would have
declined to plead guilty if he still objected to such a condition. Furthermore, trial counsel testified
that he did not recall that the State ever offered anything less than one-hundred percent.

        The post-conviction court, in ultimately denying the petitioner relief, found that the petitioner
was not credible and was untruthful in his testimony at the post-conviction hearing. Furthermore,
the post-conviction court noted that the petitioner’s claim that he did not understand anything was
inconsistent with the petitioner being able to read the entire judgment sheets without any problem.
Finally, the post-conviction court found that the petitioner malingered in the post-conviction hearing,
which was consistent with a pattern of malingering he possessed throughout all of his proceedings.
The post-conviction court concluded that the petitioner was aware that he was pleading to a one-
hundred percent sentence and, thus, failed to meet his burden in establishing that he received
ineffective assistance of counsel. Upon review of the trial court’s findings and the record before us,
the record clearly supports the trial court’s findings.

                                              Conclusion

        After reviewing the trial court’s findings and the record before us, we hold that the record
clearly supports the post-conviction court’s finding that the petitioner received effective assistance
of counsel and, thus, his plea was entered knowingly and voluntarily. We affirm the judgment of
the post-conviction court.




                                                            _________________________________
                                                            JOHN EVERETT WILLIAMS, JUDGE




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