        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                       SEPTEMBE R SESSION, 1997


RAY D. RUCKER,              )
                                                             FILED
                                 C.C.A. NO. 02C01-9610-CR-00375
                            )                                November 5, 1997
      Appe llant,           )
                            )                                Cecil Crowson, Jr.
                            )    SHELBY COUNTY               Appellate C ourt Clerk
VS.                         )
                            )    HON. ARTHUR T. BENNETT
STATE OF TENNESSEE,         )    JUDGE
                            )
      Appellee.             )    (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

LEE WILSON                       JOHN KNOX WALKUP
200 Jefferson, Suite 800         Attorney General and Reporter
Memphis, TN 38103
                                 CLINTON J. MORGAN
                                 Assistant Attorney General
                                 425 5th Avenu e North
                                 Nashville, TN 37243

                                 JOHN W. PIEROTTI
                                 District Attorney General

                                 DAVID SHAPIRO
                                 Assistant District Attorney General
                                 Criminal Justice Complex, Suite 301
                                 201 Poplar Street
                                 Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                        OPINION

        The Petitioner, Ray D. Rucker, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for post-co nviction relief. On May 29, 199 2, the Pe titioner plea ded gu ilty

to one count of coercion of a witness and one count of attempted aggravated

assau lt.1 As specified in the negotiated plea agreement, he was sentenced as

a Range I standard offender to two years on each co unt, with the senten ces to

run concu rrently. In addition, b oth sen tences were ord ered to ru n conc urrent with

a three-year sentence he received upon a plea of guilty to a drug offense.2 He

filed a pro se petition for post-conviction relief on January 25, 1994, which was

amended with the assista nce o f coun sel on April 24, 199 5. In his petition for

post-conviction relief, the Pe titioner argued that he was denied effective

assistance of counsel at his guilty plea proceeding for a number of reasons. The

trial court conducted an evidentiary hearing on January 16 and February 8, 1996.

After considering the evidence, the trial court issued an order denying the petition

on Ma rch 21, 1 996. W e affirm the judgm ent of the tria l court.



        The record does not fully detail the circum stance s of the offe nses. It

appears that the Petitioner and Derrick Rogers allegedly knocked an individual

by the nam e of Ellie O wens o ff of his bicycle and threatened him. Owens was

appa rently cooperating with and giving information regarding drug transactions

to the Co llierville Po lice De partm ent. T he rec ord ind icates that O wens initially

        1
            Tenn. Code Ann. §§ 39-16-507, 39-12-101, and 39-13-102.

        2
           Although the record is somewhat confusing, it appears that the guilty plea to the drug
offens e occu rred at the sam e time a s the guilty plea s which are the su bject of the case a t bar. In
addition, it appears that the State agreed to nolle prosequi another drug charge aga inst the Petitioner.

                                                   -2-
gave a statem ent imp licating the P etitioner in the attack. In ad dition, the State

had statements from witnesses to the attack who implicated the Petitioner. As

a result, on Jan uary 3 0, 199 2, the P etitione r and D errick R ogers were jo intly

indicted on charges of coercion of a witness and aggravated assault.                 The

Petitioner negotiated a plea agreement with the district attorney general’s office

and, on May 29, 1992, pleaded guilty to coercion of a witness and attempted

aggrava ted assa ult.



       On January 25, 1994, the Petitioner filed a pro se petition for po st-

conviction relief, arguing that defense counsel at the guilty plea proceeding was

ineffective. Counsel was appointed and amended the petition on April 24, 1995.

Through the am ende d petitio n, the P etitione r argue d that h is attorney at the guilty

plea proceeding, Bretran Thompson, rendered ineffective assistance of counsel

in a number of ways, all of which revolve around three central issues:

       (1) That counsel did not adequately communicate with him;
       (2) that counsel failed to conduct adequate discovery or an
       appropriate investigation of the case; and
       (3) that coun sel failed to a dvise him of the future implications of
       pleading gu ilty.

With regard to the first issue, the Petitioner asserted that counsel never

conducted an office in terview and vis ited him in jail only twice. He claimed that

counsel did not co nsult with h im durin g the de velopm ent of the case excep t to

discuss paym ent of c ouns el’s fee. Furthermore, he stated that counsel waived

a preliminary hearing although the Petitioner had expressed a desire to have one.

With regard to the second issue, he compla ined th at cou nsel fa iled to file

discovery or suppression motions. In addition, he alleged that couns el failed to

interview the victim of the attack, Ellie Owens, even though the Petitioner had

informed counsel that Owens would exonerate him. W ith regard to the third

                                           -3-
issue, he asserted that counsel failed to advise him of the potential for enhanced

punishment for subsequent offenses. Moreover, he contended that counsel

improperly advised him to plead guilty while there were other charges pending

against him in federal court, th ereby resultin g in an enha nced sente nce fo r his

federal conviction.



       The trial cou rt cond ucted an evid entiary hearin g on th e petitio n for post-

conviction relief on January 16, 1996. At the hearing, the Petitioner testified that

counsel coerced him into pleading guilty. He stated that he initially told counsel

that he did no t want to ple ad guilty. In response, counsel informed him that the

prosecutor would not agree to the three-year sentence on his drug offense if he

decided to take the co ercion and a ssau lt charg es to tria l. The Petitioner testified

that he felt like he had no choice b ut to plead guilty because he knew that he was

guilty of the drug offense and feared a harsher punishment should he take the

coerc ion an d ass ault ch arges to trial.



       The Petition er testifie d furthe r that co unse l did no t com mun icate w ith him

adequa tely. He stated tha t he met with co unsel a total of five times, three while

he was out on bond and two while he was incarcerated.                 According to the

Petitioner, counsel did not discuss strategy with him, did not discuss the evidence

which the State intended to offer, and d id not inform him of his rights.               In

particular, the Petitioner complained that counsel never discussed the right to a

preliminary hearing. He testified that counsel waived his preliminary hearing

without his conse nt.




                                             -4-
       In addition, the Petitioner com plained that coun sel failed to file either a

motion for discovery or a motion to suppress. He testified that he informed

counsel that he was innocent of the assault charg e and that the victim w ould

testify on his behalf. According to the Petitioner, the victim even went so far as

to come to court on one occasion, bu t counsel did no t inform the prosecutor that

the victim wished to testify for him. At the post-conviction hearing, the Petitioner

introduced an affidavit purportedly signed by the victim stating that the Petitioner

did not participate in the attack on the victim. The affidavit is dated March 10,

1994, shortly after the filing of the pro se petition for p ost-con viction relief.



       The Petitioner also testified that couns el did not inform him abou t the future

consequences of his guilty pleas. More specifically, it appears that, in addition

to his other charges, the Petitioner was charged with another drug offense,

possession of a controlled substance with intent to distribute. Counsel informed

him that as part of the plea agreement, the State had agreed to nolle prosequi

that charge. The Petitioner complains that counsel did not alert him to the fact

that two weeks after his guilty pleas, a federal grand jury would indict him on a

drug charge, apparently stemming from the conduct which was the subject of the

nolle prosequi state charge.        Upon his subsequent federal conviction, the

Petition er’s state convictions were used to enhance his federal sentence. The

Petitioner testified that h ad he k nown h is state con victions co uld be us ed to

enhance his subsequ ent federal sen tence, he wo uld not have ple aded guilty.



       The only other witness to testify at the post-conviction hearing was the

Petition er’s attorney from the guilty plea proceeding, Bretran Thompson.

Thompson testified that he communicated with the Petitioner about every aspect

                                           -5-
of the case and me t with him in excess of fifty times. He stated that he did not

file a motion for discove ry beca use th e pros ecuto r’s office had a n ope n-file

discovery policy. Thompson testified that he gaine d acc ess to all of the State’s

information on the case through open-file discovery and shared that information

with the Pe titioner. T he op en-file d iscove ry policy also led him to waive the

Petition er’s preliminary hearing. He stated that, with the Petitioner’s permission,

he signed th e waiver fo rm on b ehalf of the Petitioner. In conjunction with the

waiver of the preliminary he aring, Thom pson secu red a bond reduction for the

Petitioner.



      In the course of investigating the case, Thompson spoke with witnesses

to the attack on the victim a nd review ed police reports su mm arizing sta temen ts

given by the witnesses. Thompson’s investigation revealed that the State had

enough evidence to secure convictions against the Petitioner.           Thompson

testified that the nature of the evide nce wa s such th at a mo tion to suppress was

inapplicable. Thompson indicated that the Petitioner did not inform him of the

victim’s willingness to give a statem ent exo neratin g him .    He ex plaine d his

opinion of the strength of the State’s evidence to the Petitioner and stated that

there was a “50-50" chance of conviction. According to Thompson, the decision

to plead guilty was made by the Petitioner. Thompson then negotiated a plea

agreement with the prosecutor. It appears that as part of that agreement, the

State agreed to nolle prosequi one of the drug charges ag ainst the Petitioner.



      Thompson testified that he informed the Petitioner that the convictions

could later be used for enhancement purposes. He also testified that he was

unaware of any potential federal charges being filed against the Pe titioner.

                                        -6-
Thompson stated that if he had known of federal charges pending against the

Petitioner, he would have tried to consolidate the charges with the state charges

or somehow limit the Petitioner’s exposure on the federal charges.



       At the conc lusion of T homp son’s tes timony, the post-conviction hearing

was continued to February 8, 1996, in order to allow the Petitioner to locate the

victim, Ellie Owens. The Petitioner intended to introduce testimony from Owens

concerning the sta teme nt in the affidavit that he would have exonerated the

Petitioner. On February 8, 1996, the Petitioner informed th e trial court that he

had been unable to locate Owens because Owens no longer lived in Tennessee.

Instead, he offered the testimony of his own mother, Linda Faye Richardson.

Richardson testified that she accompanied Owens to court for one of the

proceedings involving her son. According to Richardson, Owens acknowledged

that he had signed the affidavit s tating th at the P etitione r had n ot partic ipated in

the attack upon him.



       After considering the evidence presented at the post-conviction hearing,

the trial court entered detailed findings of fact and c onclusio ns of law. In short,

the trial cou rt did no t find the Petition er’s testimon y to be persuasive and instead

accredited Bretran Tho mps on’s te stimo ny in all respects. With regard to the first

central issue (failure to communicate), the trial court found that Thompson had

met with the Petitioner a sufficient number of times and had fully discussed the

case. Moreover, the trial court noted that the Petitioner did not allege how more

meetings w ith counsel wo uld have affected his decision to plea d guilty.




                                           -7-
        With regard to the second central issue (failure to investigate), the trial

court accredited T hom pson ’s testim ony tha t he ha d the b enefit o f open -file

discovery. As such, the waiver of the preliminary hearing was a reasonable

strateg ic decision. Furthermore, the trial court found that the proof presented at

the post-conviction hearing indicated that the Petitioner had not informed counsel

regarding the victim’s willingness to give a statement exonerating him. Given the

circumstances of the offenses and the Petitioner’s inability to present live

testimony from the victim, the trial court found the affidavit, purportedly signed by

the victim, to be unpersuasive.



        With regard to the third ce ntral issue (failure to advise con cerning future

enhance ment), the trial court found that Thompson had properly advised the

Petitioner that his convictions could be used a gainst him in the future. Moreove r,

the trial cou rt noted that the transc ript of the guilty plea p rocee ding c learly

demonstrates that the Petition er was mad e awa re that h is convictions could later

be used for enhancement purposes. The trial court pointed out that the transcript

revealed the Petitioner had s tated th at he w as volu ntarily p leadin g guilty, th at his

decision was not the result of coercion, and that he was s atisfied with co unse l’s

performance.3 The trial court also found that the evidence presen ted at the p ost-

conviction hearing indicated that Thom pson was unaware of any federal charges

against the Petitioner at the time of the guilty plea proceeding.




        3
           As the State points out on appeal, the transcript of the guilty plea proceeding was not
included in the reco rd on ap peal. Of c ourse, it is the duty of the a ppellant to p repare a n adeq uate
record to allow a m eaningf ul review on appea l. Tenn. R . App. P. 24 (b); State v. Bunch, 646 S.W.2d
158, 160 (Tenn . 1983); State v. R oberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Given the
absence of the transcript of the guilty plea proceeding from the record, we must presume the trial
court’s find ings with re spect to the transc ript are cor rect. State v. Richardson, 875 S.W.2d 671, 674
(Tenn . Crim. A pp. 1993 ); State v. Boling, 840 S.W .2d 944, 951 (Tenn. Crim . App. 1992).

                                                    -8-
       As a result, the trial court concluded that Thompson’s representation fell

within the range of competence demanded of attorneys in criminal cases. Given

that Thompson had provided effective assistance of counsel, the trial court

concluded that the Petitioner had entered his gu ilty pleas know ingly, inte lligently

and voluntarily. The trial court there fore denied the petition for post-conviction

relief. It is from the order of denial that the Petitioner now appeals.



       In determining whe ther or not co unse l provide d effec tive ass istanc e at trial,

the court must decide whether or not counsel’s performance was within the range

of competence demanded of attorney s in crimin al cases . Baxter v. Rose, 523

S.W.2d 930 (Tenn. 1975).          To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produce a reliable re sult. Strickland v. Washington, 466

U.S. 668, 68 7, reh’g denied, 467 U.S. 1267 (1984); Coop er v. State , 849 S.W.2d

744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy this second prong the petitioner m ust show a reaso nable p robability tha t,

but for counsel’s unreasonable error, the fact finder would have had reaso nable

doubt regarding petitioner’s g uilt. Strickland, 466 U.S. at 695. T his rea sona ble

probab ility must be “su fficient to undermine confidence in the outcome .” Harris

v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).



       When reviewing trial couns el’s actions , this court shou ld not use the be nefit

of hindsigh t to second-guess trial strategy a nd criticize c ounse l’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

                                            -9-
judged at the time it w as ma de in light of a ll facts and circu mstan ces. Strickland,

466 U .S. at 690 ; see Cooper, 849 S.W.2d at 746.



       This two part standard of measuring ineffective assistance of counsel also

applies to claims arising ou t of the plea process. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show

that there is a reaso nable proba bility that, but for counsel’s errors he wo uld not

have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.



       W e note that under the Post-Conviction Procedure Act applicable to the

present case, a petitioner bears the burden of proving the allegations in his or her

petition by a prepon deranc e of the ev idence . McBe e v. State, 655 S.W.2d 191,

195 (Tenn. Crim. App. 1983). Furthe rmore, the factu al findings of the trial court

in post-c onvictio n hea rings are conclusive on appeal unless the evidence

preponderates against th em. See State v. Buford , 666 S.W.2d 473, 475 (Tenn.

Crim. App . 1983).



       Applying the Strickland standard to the case sub judice, we believe that the

Petitioner has failed to establish that defense counsel’s representation at the

guilty plea proceeding was constitutionally deficient. The Petitioner testified at

the post-c onvictio n hea ring tha t defen se co unse l failed to com mun icate w ith him

sufficiently, failed to conduct adequate discovery and a sufficient investigation of

the case, and failed to advise him of the future imp lications of a guilty plea. In

contras t, defen se co unse l Thom pson testified that he com mun icated with the

Petitioner regardin g all aspe cts of the case, conducted a thorough investigation

of the case, an d fully explained the co nsequen ces of pleading guilty.

                                          -10-
         After hearing all of the evidence and evaluating credibility, the trial court

accredited the testimony of defense counsel, Bretran Thompson. Thus, the trial

court found that the evidence did not support the Petitioner’s allegations of

ineffective assistance of counsel. The trial court was in a much better position

to evaluate the cred ibility of the witne sses tha n this Co urt. The trial court found

Tho mps on’s testimony to be persuasive and therefore concluded that the

Petitioner    had    not   estab lished   that   Tho mpson ’s   representation    was

cons titutiona lly deficient. From the record before us, we cannot conclude that the

evidence preponderates against the trial court’s findings.



         For the reasons set forth in the discussion above, we conclude that the

Petitioner has failed to demonstrate that the trial court erred in denying the

petition for post-conviction re lief. We therefore affirm the judgment of the trial

court.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE



___________________________________
JOE G. RILEY, JUDGE




                                          -11-
