         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 5, 2004

                     ERIC THOMAS v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                        No. P-24493    Carolyn Wade Blackett, Judge



                  No. W2003-02154-CCA-R3-PC - Filed December 14, 2004


The petitioner, Eric Thomas, appeals as of right from the dismissal of his petition for post-conviction
relief by the Shelby County Criminal Court. He seeks relief from his Class C felony conviction for
robbery and resulting sentence of eight years and one day in confinement. He contends that the post-
conviction court erred in dismissing his petition and that he received the ineffective assistance of
counsel. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES
CURWOOD WITT , JR., JJ., joined.

Jacob Edward Erwin, Memphis, Tennessee, for the appellant, Eric Thomas.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Gail Ann Vermaas, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

         This case relates to the petitioner’s conviction for robbery. On November 19, 1996, the
petitioner went to the National Bank of Commerce (NBC) in Memphis, walked to the teller counter,
handed the teller a note, robbed the bank, and fled. A crime scene investigation revealed the
petitioner left his fingerprints on the teller counter, and he was subsequently arrested. A Shelby
County jury convicted the petitioner of robbery and the trial court sentenced him to eight years and
one day in the Department of Correction. The petitioner appealed, and this court affirmed his
conviction. See State v. Eric Thomas, No. W1999-01255-CCA-R3-CD, Shelby County (Tenn. Crim.
App. Mar. 22, 2000). The petitioner subsequently filed a petition for post-conviction relief alleging,
among other things, that he received the ineffective assistance of counsel. After appointing the
petitioner counsel and conducting a hearing, the trial court dismissed the petition for post-conviction
relief, and the petitioner appealed.
        The record reflects that shortly after his arrest, the petitioner entered into plea negotiations
with the state without the assistance of counsel. The detectives negotiating with the petitioner told
him that they suspected he was also guilty of four other unrelated robberies, three were simple
robberies and the fourth was aggravated robbery. Both the petitioner and the state understood the
agreement to require that no federal charges were to be brought against the petitioner for any of the
robberies, that the state reduce the two aggravated robbery charges against the petitioner to simple
robbery, and that the state dismiss two other charges against the petitioner: possession of a
controlled substance and felony evading arrest. In return for this arrangement, the petitioner was to
confess to all five robberies. The petitioner claimed the agreement also included concurrent
sentencing. He fulfilled his duties under the agreement by confessing in writing to all five robberies.

         The state subsequently disavowed the agreement. The petitioner then refused to enter a guilty
plea. The petitioner’s trial counsel filed a pre-trial motion to enforce the terms of the plea
agreement. The trial court found that there was a valid plea agreement that in return for the
petitioner’s confessions, the federal government would not indict the petitioner for any of the five
robberies, that the state would reduce two of the charges from aggravated robbery to robbery, and
that the state would dismiss the charges of possession of a controlled substance and felony evading
arrest. The trial court also found that concurrent sentencing for all five robberies was not part of the
plea agreement. The defendant proceeded to trial and was convicted. As noted, this court affirmed
the trial court’s ruling on direct appeal.

       At the post-conviction hearing, the petitioner testified that he entered into an oral plea
agreement with the state shortly after his arrest. He said that the state disavowed the plea agreement
and that he had no choice but to go to trial. He said that had the state not disavowed the plea
agreement, he would have pled guilty. He said that before trial, his attorney filed a “Motion to
Enforce Plea Agreement.” He said his attorney’s performance regarding this motion was deficient
because the attorney did not fully investigate and pursue his claim that concurrent sentencing was
an element of the plea agreement. Regarding the deficient investigation, the petitioner said his
attorney did not call Assistant District Attorney General Wax, Assistant United States Attorney
(AUSA) Arvin, or Detective Parris to the stand to testify. He said that had his attorney called these
individuals to the stand, they would have confirmed that concurrent sentencing was a part of the
agreement. The petitioner said that his attorney’s failure to investigate resulted in his receiving
consecutive sentencing.

         The petitioner also testified that he asked his attorney to object to the state’s introducing his
confession on the grounds that it was obtained during plea negotiations and therefore inadmissible
at trial pursuant to Rule 410, Tenn. R. Evid. He said that his attorney failed to object, that they
argued about the failure to object, that he attempted to fire his attorney, and that the judge refused
to allow him to fire his attorney. He said that his attorney’s performance was deficient for not
objecting pursuant to rule 410 and that he was prejudiced by the deficient performance because the
state’s case in the absence of his confession was weak.




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        The petitioner’s trial attorney testified that he was appointed to represent the petitioner. He
said he filed the “Motion to Enforce Plea Agreement” after investigating the circumstances
surrounding the plea negotiations. He said he interviewed Assistant District Attorney General Wax
who had no memory of the incident. He said he did not call General Wax to the stand during the
hearing on the motion because his testimony would not have offered any relevant information. The
attorney said that he also interviewed the officers who were in the room with the petitioner during
the plea negotiations and that they did not believe concurrent sentencing was part of the plea
arrangement. He said that he did procure a written offer from General Wax to the petitioner, which
included a reduction of the charge but nothing relative to sentencing. He said he won the motion
insofar as he was able to prove the existence of the agreement. He acknowledged that the court did
not find that concurrent sentencing was a part of the agreement because insufficient evidence existed
regarding the issue.

        The attorney said that he met with the petitioner before trial and that they worked well
together. He said, however, that the prosecution’s case against the petitioner was overwhelming
because of the victim’s eyewitness identification of the petitioner and fingerprint evidence. He said
that had the state been unsuccessful in admitting the petitioner’s confession into evidence, the
prosecuting attorney was prepared to offer into evidence the testimony of the petitioner’s girlfriend.
He said she was prepared to testify that the petitioner had confessed the crime to her. He said the
prosecution had “a slam-dunk case.” He said that even if the confession had been suppressed, the
petitioner would have had no chance of being acquitted by the jury.

        The trial court found that the petitioner’s trial attorney’s performance was sufficient in
investigating the terms of the plea agreement. The trial court also found that the attorney’s
performance was sufficient concerning the issue of failing to object to the state’s introducing the
petitioner’s confession into evidence because there was “overwhelming evidence of effective
assistance of counsel.” We note, however, that the trial court did not specifically address the
petitioner’s contention that his confession was excludable pursuant to Rule 410 and that his
attorney’s failure to object on evidentiary grounds constituted deficient performance which resulted
in prejudice to the petitioner.

        On appeal, the petitioner claims that the trial court erred in dismissing his petition and that
he received the ineffective assistance of counsel because his attorney failed to investigate fully his
claim that the plea arrangement included concurrent sentencing and failed to object at trial to the
introduction of his confession pursuant to Rule 410, Tenn. R. Evid., and Rule 11, Tenn. R. Crim. P.
The state contends that the petitioner has failed to establish (1) that his attorney’s performance was
deficient which (2) resulted in prejudice to the petitioner. We agree with the state.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s


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performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. 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). In other
words, a showing that counsel’s performance falls below a reasonable standard is not enough; rather,
the petitioner must also show that but for the substandard performance, “the result of the proceeding
would have been different.” Strickland, 466 U.S. at 691.

        The Strickland standard has 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). 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,
466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). 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.

        First, the petitioner claims that his trial attorney did not fully investigate the facts surrounding
the plea negotiations in order to establish that concurrent sentencing was a term of the plea
agreement. His attorney testified, however, that he filed a “Motion to Enforce Plea Agreement,” that
he interviewed General Wax, who made the plea offer to the petitioner, and that he interviewed the
officers who were in the room with the petitioner during the plea negotiations. We believe that the
attorney’s performance was not deficient as he was able to establish the existence of the plea
agreement and its essential terms to the satisfaction of the trial court. While the petitioner alleges
that his trial attorney should have called General Wax, AUSA Marvin, and Detective Parris to the
stand to establish that concurrent sentencing was part of the agreement, he failed to have them testify
at the post-conviction hearing. Absent their testimony, we are left with the petitioner’s bare claim
that such an agreement existed. In this regard, we note that the convicting court concluded at the
plea agreement enforcement motion hearing that the petitioner’s testimony was insufficient to prove
by a preponderance of the evidence that concurrent sentencing was part of the agreement. It is
likewise apparent that the trial court in this case did not find that the petitioner proved his claim by
clear and convincing evidence. We conclude that the attorney did not perform deficiently.




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         Second, the petitioner alleges that his attorney’s performance was ineffective because he
failed to object during trial to the introduction of his confession. He contends that his attorney
should have objected pursuant to Rule 410, Tenn. R. Evid., and Rule 11, Tenn. R. Crim. P. We hold
that the petitioner’s confession was not excludable pursuant to these rules and that the attorney’s
failure to object was not ineffective assistance of counsel.

       Tennessee Rule of Evidence 410 provides, in part,

               Except as otherwise provided in this rule, evidence of the following
               is not, in any civil or criminal proceeding, admissible against the
               party who made the plea or was a participant in the plea discussions:

               ....

               (3) any statement made in the course of any proceedings under Rule
               11 of the Tennessee Rules of Criminal Procedure regarding either of
               the foregoing pleas; or
               (4) any statement made in the course of plea discussions with an
               attorney for the prosecuting authority which do not result in a plea of
               guilty or which result in a plea of guilty later withdrawn. Such a
               statement is admissible, however, in a criminal proceeding for perjury
               or false statement if the statement was made by the defendant under
               oath, on the record, and in the presence of counsel.

Rule 11(e)(6), Tenn. R. Crim. P., provides,

               Except as otherwise provided in this paragraph, evidence of a plea of
               guilty, later withdrawn, or a plea of nolo contendere, or of an offer to
               plead guilty or nolo contendere to the crime charged or any other
               crime, or of statements made in connection with, and relevant to, any
               of the foregoing pleas or offers, is not admissible in any civil or
               criminal proceeding against the person who made the plea or offer.
               However, evidence of a statement made in connection with, and
               relevant to, a plea of guilty, later withdrawn, a plea of nolo
               contendere, or an offer to plead guilty or nolo contendere to the crime
               charged or any other crime, is admissible in a criminal proceeding for
               perjury or false statement if the statement was made by the defendant
               under oath, on the record, and in the presence of counsel.

        The petitioner is correct in asserting that most statements made “in the course of plea
discussions” are not admissible at trial. However, he is incorrect in asserting that his confessions
were made “in the course of plea discussions.” After reviewing the record, we conclude that the
petitioner’s statements were made as a result of the plea agreement. The state negotiated with the


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petitioner that in return for his confessing to five burglaries, it would reduce some of the charges
against him and dismiss others. The state’s end of the bargain was enforced. The petitioner was
obligated under the plea agreement to give a statement, and he did so. The attorney’s performance
was not deficient for failing to object on evidentiary grounds.

       Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                      ____________________________________
                                                      JOSEPH M. TIPTON, JUDGE




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