             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                          JUNE 1996 SESSION
                                                 FILED
                                                      July 25, 1997

VICTOR THOMPSON,            )                    Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
                            )
             Appellant,     )    No. 02C01-9509-CR-00265
                            )
                            )    Shelby County
v.                          )
                            )    Honorable John P. Colton, Jr., Judge
                            )
STATE OF TENNESSEE,         )     (Post-Conviction)
                            )
             Appellee.      )


For the Appellant:               For the Appellee:

Paula Skahan                     Charles W. Burson
140 North Third Street           Attorney General of Tennessee
Memphis, TN 38103                       and
                                 Sarah M. Branch
                                 Assistant Attorney General of Tennessee
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 John W. Pierotti, Jr.
                                 District Attorney General
                                         and
                                 Lorraine Craig
                                 Assistant District Attorney General
                                 201 Poplar Avenue
                                 Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                             OPINION


               The petitioner, Victor Thompson, appeals as of right from the denial of his

petition for post-conviction relief by the Shelby County Criminal Court. He is presently

in the custody of the Department of Correction serving an effective sentence of fifty

years for his 1992 convictions upon guilty pleas for second degree murder and

aggravated assault. The petitioner contends that he received the ineffective assistance

of counsel resulting in his pleas not being entered knowingly and voluntarily. He argues

that had his trial counsel informed him that voluntary intoxication can negate the

specific intent for a crime or that a conviction of voluntary manslaughter was possible,

he would have insisted on going to trial rather than entering his guilty pleas. The

petitioner also argues that his trial counsel did not develop a defense strategy because

she failed to investigate the facts of the case adequately, including the petitioner’s prior

treatment for intoxication and his level of intoxication on the night of the offense. We

affirm the trial court’s denial of relief.



               The record reflects that the petitioner was originally charged with first

degree premeditated and deliberate murder and aggravated assault, but pled guilty on

the day of trial to the offenses of second degree murder and aggravated assault for

agreed Range III sentences of fifty and ten years, respectively, to be served

concurrently. At the post-conviction evidentiary hearing, the petitioner testified that he

was represented at trial by two court-appointed attorneys and that his counsel advised

him against having a preliminary hearing. He stated that his counsel as well as

investigators visited him while in jail, but he asserted that they did not come very many

times and would only stay about thirty minutes. He testified that he saw counsel at

approximately six court appearances and that counsel talked to him approximately five

to ten minutes and informed him of motions filed on his behalf. The petitioner said that

he told his counsel about potential witnesses and admitted that counsel interviewed the

witnesses and discussed with him their statements. He claimed that counsel never


                                                2
discussed a defense, including self-defense, with him or told him that a person acting

under adequate provocation is not guilty of first degree premeditated and deliberate

murder.



              The petitioner also testified that his counsel asked him about his

background and that he told them about his drug and alcohol abuse and that he had

gone through drug and alcohol rehabilitation a lot of his life. He stated that he also

informed counsel that he had been using drugs and drinking wine all day when the

offense occurred. He said that he told counsel that he had used approximately a

quarter of an ounce of cocaine intravenously and drank a few gallons of wine. The

petitioner recalled signing a release form for his counsel to obtain information from his

medical records regarding treatment for drug and alcohol addiction, but he could not

remember whether counsel ever obtained the records. According to the petitioner, he

could not remember everything that occurred on the night of the offense, but he thought

he shot a person in the leg and ran away because he was being beaten by someone.



              Regarding counsel’s negotiations for a plea agreement, the petitioner

stated that his counsel informed him about an offer of forty years made by the state

approximately two months before trial. He said that he rejected the offer because he

wanted to go to trial. The petitioner testified that he did not see his counsel again until

the day of trial and that his counsel advised him of the state’s offer of fifty years and

told him that he should accept the plea because the judge did not like “black-on-black

crime” and because he would probably receive the death penalty or life imprisonment if

convicted. He claimed that he wanted to go to trial instead of pleading guilty and being

sentenced to fifty years but said that he entered the guilty pleas because he did not

believe that his counsel was ready for trial. He asserted that his counsel did not

discuss lesser included offenses, including second degree murder and voluntary

manslaughter. He testified that his counsel did not show him the state’s notice of intent



                                              3
to seek the death penalty, did not inform him that enhanced punishment as a persistent

offender was being sought, and did not explain the meaning of Range III when telling

him about the state’s offer. He also said that counsel told him that he would probably

serve twelve years of his fifty-year sentence before being eligible for release. He stated

that he would have insisted on going to trial if he had not been misled by his attorneys.



              On cross-examination, the petitioner conceded that his counsel informed

him that he could receive consecutive sentences if convicted. He stated that his

counsel did not show him any records she obtained or discuss his medical records with

him. He admitted that counsel filed several motions on his behalf and that she

discussed a case that was similar to the facts of his case. The petitioner also admitted

that he told the trial court several times that he wanted to plead guilty at the guilty plea

hearing, but he claimed that he did not understand the consequences of his plea. He

conceded that the trial court informed him that he would be required to serve forty-five

percent of the fifty-year sentence and that he was waiving several rights by entering his

guilty plea. The petitioner testified that he had earlier entered guilty pleas to at least

three offenses.



              The petitioner’s counsel testified that she filed and argued several

motions on behalf of the petitioner, including a motion for discovery. She stated that

she met and discussed with the petitioner the charges against him and told him that the

state was seeking the death penalty. The petitioner’s counsel said that an investigator

and social worker also interviewed witnesses provided by the petitioner and attempted

to interview the state’s witnesses, although some would not talk to the investigator. She

said that she told the petitioner what they learned from the interviews and their

investigation. The petitioner’s counsel expressed the opinion that the state had a good

case against the petitioner because several people, including the victim’s family

members, were eyewitnesses to the crimes. She testified that she discussed with the



                                              4
petitioner that his defense at trial would be one of self-defense. She said that she did

not believe the defense was a strong one but that she viewed it as the only defense

available to the petitioner. The petitioner’s counsel stated that she obtained the

petitioner’s medical records after the petitioner told her about his substance abuse

problems and that he was drinking and taking a lot of drugs on the day of the offense.

She said that she explained to the petitioner that substance abuse is not itself a

defense but rather is a mitigator that would be relevant at the penalty portion of the trial.

She stated that she could not remember whether she told the petitioner that she had

received his medical records.



              The petitioner’s counsel testified that she visited the petitioner

approximately six or seven times in the jail and that co-counsel visited the petitioner

also. She stated that she spoke to the petitioner during court appearances as well.

She said that she informed the petitioner that the state had revoked its original offer of

forty years after the petitioner rejected it, but that she attempted to renegotiate the offer

on the day of trial after the petitioner told her that he did not want to go to trial. The

petitioner’s counsel said that the offer of forty years was no longer available and that

the assistant attorney general would only agree to a fifty-year sentence if the petitioner

entered a guilty plea that day. She said that she told the petitioner about the fifty-year

offer and that he stated that he wanted to plead guilty. She denied threatening or

forcing the petitioner to plead guilty. Regarding the length of the petitioner’s sentence

pursuant to the guilty plea, the petitioner’s counsel said that she explained the

sentencing ranges to the petitioner and informed him that he would receive a fifty-year

sentence. She testified that she was prepared on the day of trial and that she had

subpoenaed witnesses.



              On cross-examination, trial counsel testified that she believed that the

petitioner was probably intoxicated at the time of the offense. She said that she had



                                              5
considered that voluntary intoxication can be used to negate a specific intent, but that

she determined that it was not a viable strategy after talking to the petitioner and

interviewing witnesses. Counsel said that the petitioner told her that he was trying to

collect money from the victims for the drugs he had earlier sold them when they refused

to pay him. According to the petitioner’s counsel, the petitioner stated to her that the

victims hit him, chased him down the street and threw rocks and sticks at him. She

stated that the petitioner told her that he ran away, obtained a gun, returned after about

five to ten minutes and shot one of the victims. The petitioner’s counsel stated that she

recalled discussing the effect of the petitioner’s voluntary intoxication with co-counsel

but that she could not remember whether she discussed it with the petitioner.

Regarding the petitioner’s claim that she did not explain the possibility of a voluntary

manslaughter conviction, counsel stated that she showed the petitioner a case with

similar facts that dealt with adequate provocation for the offense and told him that she

did not believe that the facts supported a voluntary manslaughter conviction.



              At the guilty plea hearing on November 2, 1992, the state asserted that

the proof at trial would have shown that on August 25, 1990, the petitioner was seen

chasing the victims in a neighborhood and firing shots at them as he came around a

corner. A bullet hit one of the victims in the head, killing him. Several witnesses,

including three police officers, saw the petitioner shooting his gun at the victims. The

record reflects that the trial court informed the petitioner of his rights, including the right

to a jury trial, the right to confront and cross-examine witnesses, and the right against

self-incrimination. It also shows that the trial court explained to the petitioner the range

of punishment for the offenses and that as a Range III, persistent offender, he would

have to serve a higher percentage of his sentence before being eligible for release.



              At the guilty plea hearing, the petitioner stated that he had not been

threatened or forced to enter the pleas and that he was freely and voluntarily entering



                                               6
his pleas. The petitioner also said that his counsel had fully discussed his case and

legal options with him and that he was satisfied with their representation. The petitioner

asserted that he believed that the guilty pleas were in his best interest. The trial court

accepted the petitioner’s pleas, finding that the petitioner was knowingly and voluntarily

entering his guilty pleas.



              In denying the petitioner post-conviction relief, the trial court entered an

eight-page order reflecting its findings of fact and conclusions of law. The trial court

held that the petitioner received the effective assistance of counsel and that his guilty

pleas were knowingly and voluntarily entered. Specifically, the trial court found that

counsel met with the petitioner in jail at least six times, explained the charges to the

petitioner, and informed him that his substance abuse was not a defense to murder but

was a mitigator. The court also held that counsel was prepared for trial in that she

interviewed witnesses, reviewed the petitioner’s medical records, considered the

petitioner’s prior drug abuse and prior convictions, evaluated the strength of the state’s

case, researched case law and filed several pretrial motions. With respect to the

petitioner’s claim that he did not knowingly and voluntarily enter his guilty pleas, the trial

court concluded that the petitioner’s guilty pleas were constitutionally valid under Boykin

v. Alabama, 395 U.S. 238, 895 S. Ct. 1709 (1969), and State v. Mackey, 553 S.W.2d

337 (Tenn. 1977). It determined that the record reflected that the petitioner knowingly

and voluntarily entered his guilty pleas based on his desire to avoid a trial and the

possibility of a death sentence if convicted. See Parham v. State, 885 S.W.2d 375

(Tenn. Crim. App. 1994); Bratton v. State, 477 S.W.2d 754 (Tenn. Crim. App. 1972).



              On appeal, the petitioner challenges his convictions based upon claims

that he received ineffective assistance of counsel that caused him to enter unknowing

and involuntary guilty pleas. Under the Sixth Amendment, when a claim of ineffective

assistance of counsel is made, the burden is upon the petitioner to show (1) that



                                              7
counsel's performance was deficient and (2) that the deficiency was prejudicial in terms

of rendering a reasonable probability that the result of the trial was unreliable or the

proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied, as well, 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).



                In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

decided that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal

cases. Further, the court stated that the range of competence was to be measured by

the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,

in 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 v. Washington, 466 U.S. at 689, 104 S.

Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will

not be measured by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic

failed or even hurt the defense does not, alone, support a claim of ineffective

assistance. Deference is made to trial strategy or tactical choices if they are informed

ones based upon adequate preparation. See Hellard, 629 S.W.2d at 9; DeCoster, 487

F.2d at 1201.



                Also, we note that the approach to the issue of the ineffective assistance

of counsel does not have to start with an analysis of an attorney's conduct. If prejudice




                                              8
is not shown, we need not seek to determine the validity of the allegations about

deficient performance. Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.



                The burden was on the petitioner in the trial court to prove his allegations

that would entitle him to relief by a preponderance of the evidence.1 Brooks v. State,

756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial

court’s findings unless we conclude that the evidence preponderates against those

findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The petitioner

has the burden of illustrating how the evidence preponderates against the judgment

entered. Id.



                In this respect, the petitioner fails to show how the trial court’s findings are

incorrect. Moreover, we conclude that the evidence of record does not preponderate

against the trial court’s findings and that the law we have previously cited supports its

conclusions. In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.




                                                  Joseph M. Tipton, Judge



CONCUR:




David H. Welles, Judge




Jerry L. Smith, Judge




                1
                  For post-conviction petitions filed after May 10, 1995, petitioners have the burden of
proving factual allegations by clear and co nvincing evidence. T.C.A. § 40 -30-210(f).

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