         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                      April 12, 2005 Session

            JESSICA RENEE RICHARDS v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Cumberland County
                             No. 6692    Lillie Ann Sells, Judge



                                   No. E2004-02326-CCA-R3-PC


                                                  AND

            JENNIFER LYNNE HORINE v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Cumberland County
                             No. 6947    Lillie Ann Sells, Judge



                    No. E2004-02327-CCA-R3-PC - Filed September 2, 2005


In this consolidated appeal, the petitioners challenge the denial of post-conviction relief, contending
that their respective trial counsel were ineffective in failing to advise them of authority that indicated
that their conduct fell outside the scope of the statute. On appeal, the State concedes that the
petitioners received ineffective assistance of counsel. Following thorough review, we agree.
Therefore, we reverse the denial of post-conviction relief, set aside the judgments, and remand the
matter to the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and
                                       Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ROBERT W. WEDEMEYER , JJ., joined.

Randall Boston, Crossville, Tennessee, for the appellants, Jessica Renee Richards and Jennifer
Lynne Horine.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
William Edward Gibson, District Attorney General; and Kevin Poore, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                   OPINION

                                         Facts and Procedural History

         This appeal consolidates two unrelated, but factually similar, cases in which the petitioners
challenge the denial of post-conviction relief. Petitioners Jessica Richards and Jennifer Horine, were
each indicted on two counts of aggravated child abuse (a Class A felony), stemming from their infant
children’s positive drug screens.1 Both pled guilty to the lesser included charge of attempted
aggravated child abuse (a Class B felony) in exchange for a sentence of twelve years, to be served
at thirty percent release eligibility.

       On January 15, 2004, Richards and Horine filed separate post-conviction petitions.
Thereafter, counsel2 was appointed to both, and amended petitions were filed. The petitions, taken
cumulatively, asserted the following claims on behalf of each petitioner:
       1) Ineffective assistance of counsel;
       2) An unknowing and involuntary plea; and
       3) A violation of Tennessee Rule of Criminal Procedure 16.
Following a consolidated hearing, the post-conviction court denied both petitions by written order.

         At the post-conviction hearing, Cynthia Lyons testified that she was employed as an Assistant
Public Defender and that she represented Jennifer Horine at the time of her plea to attempted
aggravated child abuse. She recalled that she was unaware of Attorney General’s Opinion 95-023
at the time of the plea and further noted that, had she been aware of the opinion, she would not have
pled Horine to the charge of attempted aggravated child abuse but would have filed a motion to
dismiss the indictment.3 Lyons further conceded that her representation fell below the range of
competency demanded of attorneys in criminal cases and stated, “I blame myself for what has
happened in this case. I should have done research, I should have found these things.” Lyons further
opined that Horine could not have entered a knowing and voluntary plea “because she didn’t have
all the information.” In sum, Lyons admitted that she rendered ineffective assistance in Horine’s
case.


         1
             Petitioner Richards’ son tested positive for methamphetamine at birth, while petitioner Horine’s son was
positive for amphetamine, cocaine, and methamphetamine.
          2
            The record reflects that the same post-conviction counsel was appointed to both petitioners.
          3
            Attorney General’s Opinion No. 95-023 states,
                   Tenn. Code Ann. § 39-15-401 and 402 define “child abuse and neglect” and “aggravated
                   child abuse” respectively. Each statute specifically defines its offense in terms of treatment
                   of a “child” under eighteen years of age or under six years of age. Under the law in
                   Tennessee, for the purposes of these statutes, the term “child” does not include a fetus,
                   whether viable. Accordingly, use of cocaine by pregnant women cannot be considered child
                   abuse or aggravated child abuse under the statutes in question.
          Tenn. Op. Att’y Gen. No. 95-023 (1995).

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         On cross-examination, Lyons testified that she had not done any research to determine
whether there is case law to support the conclusions contained in the Attorney General’s Opinion
because she no longer represents Horine. Lyons acknowledged that if Horine had been convicted
as charged, she would have faced fifteen to twenty-five years, at one hundred percent service. She
further noted that Horine pled to a Class B felony and was sentenced at thirty percent release
eligibility. Finally, Lyons admitted that she could not be certain that she would have prevailed on
a pretrial motion based upon the conclusions contained in the Opinion.

       On redirect examination, Lyons testified that Attorney General’s Opinion 02-136 was issued
on December 23, 2002, and was requested by the Honorable William Gibson, the District Attorney
General of the Thirteenth District.4 On recross examination, Lyons acknowledged that the questions
submitted in the 2002 Opinion did not concern child abuse as a crime but rather dealt with the child
abuse reporting statute.

        Joe Finley then testified that he was employed as an Assistant Public Defender and that he
represented Jessica Richards at the time of her plea. He recalled that the distinction between a child
and a fetus was critical in the case and that neither he nor Lyons explored the issue on behalf of the
petitioners. When asked if he effectively represented Richards, Finley replied,
               Oh, I don’t think so. Primarily because I didn’t give her the chance to go
        through all this gobble-di-gook that we’re going through today. Which I don’t know
        how many hours that would have taken.

               But again, if we’re right and it’s not a child, then we’re home free. If we’re
       wrong, then the deal is pretty good. It’s not a hundred percent and it’s less than an
       A felony would have been.
In conclusion, Finley noted that his client should have been advised of the issue so that she could
have made an informed decision with regard to her plea.

        On cross-examination, Finley acknowledged that if he had filed a pretrial motion based upon
the Attorney General’s opinion, he would have advised his client that she would be facing fifteen
to twenty-five years if they did not prevail on the motion. He further noted that he was unaware of
any authority other than the Attorney General’s Opinion that indicated the defense would have
prevailed on a motion to dismiss the indictment.

        On redirect examination, Finley testified that the Legislature determines whether or not a
fetus is considered a child for the purpose a statute’s application. On recross examination, he


         4
          Attorney General’s Opinion 02-136 states,
                 This statute (Tenn. Code Ann. § 37-1-403(a)) uses the term “child” to define upon whom
                 harm must be inflicted to invoke the [child abuse] reporting requirement; it does not use the
                 term “fetus.” W hen a fetus is to be covered by a statute, the term “fetus” is specifically
                 included.
Tenn. Op. Att’y Gen. No. 02-136 (2002) (citations omitted).



                                                         -3-
acknowledged that the indictment does not mention the term “fetus” but further noted that Richard’s
drug use occurred while the child was a fetus.

         As the final witness at the post-conviction hearing, Gary McKenzie testified that he was the
Assistant District Attorney who negotiated the pleas of both petitioners. McKenzie stated that at the
time of the plea negotiations, he was aware that aggravated child abuse had not yet been charged in
a case where a child was born with illegal drugs in its system. He further recalled that during the
negotiations with both petitioners, he indicated that if the State prevailed on any pretrial motion, it
would not extend a plea offer but would proceed to trial. McKenzie testified that, in his opinion,
when an infant tests positive for methamphetamine, it represents a continuing offense of child abuse.
He further stated that he was aware of the 1995 Attorney General’s Opinion at the time of the plea
but did not become aware of the 2002 Opinion until after the pleas were entered. McKenzie testified
that he did not believe the Opinions were exculpatory because they were merely persuasive authority.

        On cross-examination, McKenzie stated that he is the “meth prosecutor” in the Thirteenth
Judicial District. He further acknowledged that, while other statutory definitions had been amended
to include a fetus, the aggravated child abuse statute remained unaltered by the Legislature.

         In denying the post-conviction petitions, the court found that the petitioners “failed to
establish any viable pretrial motion or pretrial investigation that trial counsel should have filed” and
further noted that the indictments charged children in being as the victims. Additionally, the post-
conviction court found “that the Attorney General Opinion(s) cited herein and relied upon by [the
petitioners do] not apply [] since the [children were] drug screened only after birth.” The petitioners
timely appeal to this court, contending that: (1) counsel for both petitioners were ineffective in
failing to file any pretrial motions regarding the applicability of the subject statute to the petitioners’
cases; and (2) substance abuse by a pregnant woman cannot be considered child abuse or aggravated
child abuse under Tennessee Code Annotated section 39-15-402. Following a thorough review, we
reverse the post-conviction court and sustain post-conviction relief.

                                                Analysis

        When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the
petitioner bears the burden of proving that: (1) 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 (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 (1985).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the
services be rendered within the range of competence demanded of attorneys in criminal cases. In

                                                   -4-
reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland,
466 U.S. at 689, 104 S. Ct. at 2065; see Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

        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). 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).

        At the post-conviction hearing, Lyons and Finley testified that they failed to discover and
inform their clients of two Attorney General’s Opinions that could have led to a dismissal of the
indictments in their respective cases. Moreover, both counsel acknowledged that their omissions
prohibited the petitioners from making a knowing and voluntary plea. As such, they conceded that
they rendered ineffective assistance. On appeal the State agrees and specifically notes that “the
legislature has not amended the child abuse statutes to include a viable fetus in the definition of a
child” and that “the defendant[s were] doing the treating to a fetus, not a child.”

        We too agree with these conclusions. As both the State and the petitioners correctly note,
our Legislature amended the homicide and assault statutes to include a viable fetus in the definitions
of “another,” “individual[s],” and “another person.” See Tenn. Code Ann. §§ 39-13-107, -214. The
child abuse statutes, however, remain unchanged and do not include a viable fetus within its
definition of a “child.” See Tenn. Code Ann. §§ 39-15-401, -402.

        Although never squarely addressed by our courts, the Attorney General’s Opinions appear
to accurately reflect the scope of the statute in question and are in accord with all jurisdictions that
have analyzed this issue, save one. See Reinesto v. Superior Court of State In and For County of
Navajo, 894 P.2d 733 (Ariz. Ct. App. 1995) (holding that a mother could not be prosecuted for
criminal child abuse because the statute referred to conduct that directly harms a child, not activity
that affects a fetus with resulting harm to a born child); Reyes v. Superior Court, 141 Cal. Rptr. 912
(Cal. Dist. Ct. App. 1977) (despite consideration of fetuses as “persons” in other areas of the law,
the court held that the child endangerment law clearly did not equate unborn infants as children);
State v. Gethers, 585 So. 2d 1140 (Fla. Dist. Ct. App. 1991) (mother who voluntarily ingested
cocaine during the gestation period of her pregnancy could not be charged with criminal child
abuse); Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993) (holding that a mother’s self-abuse
of drugs which had the secondary effect of transmitting drugs to a fetus is different than a mother’s
intentional injection of such drugs into her born infant); Sheriff, Washoe County, Nevada v. Encoe,
885 P.2d 596 (Nev. 1994) (citing multiple decisions from other jurisdictions, the court expressly
delegated to the legislature the responsibility of proscribing illegal substance abuse by expectant
mothers); People v. Morabito, 580 N.Y.S.2d 843 (N.Y. City Ct. 1992) (holding that due process
prevents a mother who injures her unborn fetus through prenatal drug use from being criminally
prosecuted for child abuse on authority of a statute which applies only to the endangerment of
children in being); State v. Grey, 584 N.E.2d 710 (Ohio 1992) (giving deference to the legislature


                                                  -5-
to clearly proscribe the conduct of a substance abusing mother in the legislature’s discretion); Collins
v. State, 890 S.W.2d 893 (Tex. Crim. App. 1994) (holding that the purpose of the Texas penal code
is to proscribe certain types of harmful conduct, not simply the results of conduct); but see Whitner
v. State, 492 S.E.2d 777 (S.C. 1997), reh’g denied (Nov. 19, 1997) and cert. denied, 523 U.S. 1145,
118 S. Ct. 1857 (1998) (holding that a mother who pled guilty to criminal child neglect for causing
her newborn infant to be born with cocaine metabolites in its system was properly convicted of the
charge).

        We therefore conclude that trial counsels’ failure to discover the Attorney General’s Opinions
constituted deficient performance and did not allow the petitioners to make an informed decision
with regard to their pleas. This information would certainly have provided sound reasoning and a
strong argument that the petitioners’ actions did not fall within the statute. We further conclude that
these omissions prejudiced the petitioners and equated to ineffective assistance of counsel, resulting
in an unknowing and involuntary pleas.

        Although the State concedes that the petitioners received ineffective assistance of counsel,
it additionally requests that we remand the matter for a trial on the lesser included charge of
aggravated assault. However, our authority extends only to the setting aside of the void judgment.
Tenn. Code Ann. § 40-30-111(a) (2004); State v. Carter, 669 S.W.2d 707, 708 (Tenn. Crim. App.
1984). Therefore, we vacate the judgments and remand to the trial court for further proceedings as
necessary.

                                             Conclusion

       We reverse the post-conviction court’s denial of relief, set aside the judgments, and remand
the matter to the trial court.




                                                        ___________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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