        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                     SEPTEMBE R SESSION, 1998


WALTER JAMES WILSON,

      Appe llant,
                           )
                           )
                           )
                                                   FILED
                               C.C.A. NO. 02C01-9710-CR-00412


                           )                  December 10, 1998
                           )   SHELBY COUNTY
VS.                        )                  Cecil W. Crowson
                           )   HON. JOSEPH B. BROWN, JR. Clerk
                                            Appellate Court
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:

MARY CAY JERMANN               JOHN KNOX WALKUP
P.O. Box 3410                  Attorney General and Reporter
Memphis, TN 38173
                               DOUGLAS D. HIMES
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243-0493

                               WILLIAM GIBBONS
                               District Attorney General

                               MICHAEL H. LEAVITT
                               Assistant District Attorney General
                               Criminal Justice Complex, Suite 301
                               201 Poplar Avenue
                               Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                     OPINION
       The Petitioner, W alter W ilson, was convicted of second degree murder

based upon a guilty plea. H e now appeals as of right the trial court’s denial of

post-conviction relief, pursu ant to Tennessee Code Annotated § 40-30-216 and

Rule 3(b) of the Tennessee Rules of Appellate Procedure.                       We affirm the

judgm ent of the tria l court.



       Petitioner presents one issue on appeal: whether his guilty plea was

know ingly and voluntarily made with the effective ass istanc e of co unse l.1

Specifically, Petitioner contends that his attorney failed to explain sentencing

ranges and that she fa iled to inform him that had he been convicted at trial, he

could have been sentenced as a Range I offender, rather than a R ange II

offender.     Petition er also conte nds th at his a ttorney failed to adeq uately

investigate Petitioner’s men tal state prior to the guilty plea proceeding.                  He

argues that his co unsel sh ould ha ve reque sted a m ental eva luation for the

purpos e of deter mining his com petenc y.



       Petitioner was indicted by the Shelby County Grand Jury on a charge of

first degree murder. On September 11, 1995, Petitioner pleaded guilty to second

degree murder and received a twenty-eight year sentence as a multiple Range

II offender. Petitioner filed a pro se petition for post-conviction relief on May 31,



        1
            In his brief, Petitioner actually presents three issues for our review: (1) whether
Petitioner’s guilty plea was knowingly and voluntarily made; (2) whether Petitioner’s guilty plea
was made with ineffective assistance of counsel; and (3) whether Petitioner was prejudiced by
his attorney’s failure to request an independent medical evaluation to determine his capacity
to understand and knowingly enter a guilty plea. However, because we believe that these three
issues are interrelated, we have consolidated them into one issue for purposes of this opinion.

                                              -2-
1996.    Following appoin tment o f counse l, amended petitions were filed on

October 4, 1996 and October 25 , 1996. Eviden tiary hearings were conducted on

July 17, 1997, September 18, 1997, and September 22, 1997. The trial court

denied Petitioner’s petition for post-conviction relief by written order filed

Septem ber 24, 1 997.



        At the post-conviction hearing, Petitioner’s mother testified that Petitioner

was beaten while living in Atlanta in the early 1980s and tha t upon h is return to

Memphis, he acted “strange .” She also testified that while living in Memphis,

Petitioner was hit on the head with a shovel, a brick, and a beer bottle. She

reported that on one occasion in 1991 or 1992, Petitioner was found lying drunk

in the mid dle of a stre et in Mem phis.



        Both Petitioner’s mother and his step-mother testified that Petitioner

attempted to kill him self follo wing th e dea th of his grandmother in 1983.

Howeve r, neither Petitioner’s mothe r nor his ste p-moth er were a ble to articu late

any specific mental conditions from which Petitioner suffered, and neither of them

told Petitioner’s attorney about the mental problems they each claimed Petitioner

experienced.



        Petitioner also testified at the post-conviction hearing. He stated that he

attempted suicide after the death of his grandmother and that he had

contemplated attempting suicide w hile in jail charg ed with m urder. He claimed

to have told his trial counsel about his suicide attempt. In addition, he testified

that he was hit with a beer bottle and shovel four years “or longer” before the

murder. He also reported that he suffers from headaches and depression.

                                           -3-
       With regard to his guilty plea, Petitioner maintained that he remembered

pleading guilty but did not understand what was meant by “twenty-eight years at

thirty-five percent,” the sentence which he received. He testified that his attorney

did not explain the sentencing range for second degree murder. He also testified

that his attorney failed to explain the difference between a Range I and Range

II offender.



       Petitioner testified that he understood that by pleading guilty, he was

waiving his right to trial; and he stated that he plead ed gu ilty beca use h is attorney

told him that unless he did so, he would “get life [imprisonment].” He stated that

he wanted to plead guilty at th e time of his plea and that he understood he was

pleading gu ilty to second degre e murde r.



       Betty Tho mas , Petition er’s atto rney a nd an assista nt pub lic defender, was

called to testify at the hearing conducted on September 18, 1997. She stated

that she explained the plea agreement to Petitioner, including the sentencing

range, and she reported that Petitioner indicated to her that he understood. She

stated that Petitioner was interested in avoiding trial and wanted to dispose of the

case. She testified that she filed thirty-two or thirty-three motions in his case and

that she visited him in jail several times.



       She further testified that she never observed any behavior on the part of

Petitio ner to cause her to question his mental competency. She stated that

Petitioner specifically told her he did not suffer from mental problems or take

mental health medications.        She also stated that Petitioner’s family never

informed her of any mental problems from which Petitioner suffered, despite a

                                          -4-
questionna ire adm inistere d by he r office to Petition er and his fam ily to gath er

background information on Petitioner, including informa tion abou t menta l health

and head injuries. She reported that she was unaware that Petitioner had

attempted suicide or been hit on the head.



      In determining whether counsel provided effective assistance at trial, the

Court must decide whether counsel’s performance was within the range of

competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523

S.W.2d 930, 93 6 (Ten n. 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 she was not functioning as counsel as guaranteed under

the Sixth Amendment and that the deficie nt representation prejudiced the

petitioner, resulting in a failure to produce a reliable res ult.      Strickland v.

Washington, 466 U.S. 66 8, 687, (1 984); Coop er v. State , 849 S.W.2d 744, 747

(Tenn. 1993); Butler v. State, 789 S.W .2d 898 , 899 (T enn. 19 90). To satisfy the

second prong, th e petitione r must s how a re asona ble prob ability that, but for

coun sel’s unreasonable error, the fact find er wou ld have had re ason able doubt

regarding petitioner’s guilt. Strickland, 466 S .W .2d at 6 95. Th is reas onab le

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 counsel’s actions, this Court should not use the

bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics.

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

be judged at the time they were made in light of all facts and circumstances.

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

                                         -5-
       This two-part standa rd of meas uring ineffective assistance of counsel also

applies to claims arising out of the plea process. Hill v. Lockart, 474 U.S. 52

(1985); Banks ton v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). The

prejudice requirem ent is mo dified so th e petitione r “must s how that there is a

reaso nable probab ility that, but for counsel’s errors, he would not have pleaded

guilty and would h ave insisted on g oing to trial.” Hill, 474 U.S. at 59.



       In reviewing the case now before us, we observe initially that the record on

appeal does not co ntain a transc ript of the guilty ple a proc eedin g.            It is

Petition er’s duty to preserve an adequate record for purposes of appeal. Tenn.

R. App. P . 24(b); State v. B ennett, 798 S.W.2d 783, 790 (Tenn. Crim. App.

1990). Althou gh Pe titioner h as faile d to fully preserve for appeal the proceedings

in the court below, we believe that there is adequate inform ation in the record

before us, including excerpts from the guilty plea proceeding quoted by the post-

conviction judge, upon which to base our decision. We note, however, that our

decision is based solely upon the record before us.



       In arguing ineffective assistance of counsel, Petitioner first claims that his

attorney failed to expla in sen tencin g rang es to h im. Ho weve r, it is clear from the

record that Petitioner was offered ample opportunities and sufficient information

to understand the terms o f his sente nce an d plea ag reeme nt. At the po st-

conviction hearing, Petitioner’s attorney testified that she met with Petitioner

several times before he ple aded . She s tated th at she did explain sentencing

ranges to him, including the difference between Range I and Range II and why

that was part of the plea agreement. She also testified tha t she exp lained to




                                          -6-
Petitioner what was meant by “twenty-eight years at thirty-five percent” and that

Petitioner indicated to her that he understood.



      In addition, the trial judge clarified Pe titioner’s plea agreem ent before

Petitioner pleade d guilty. Petitioner admitted that he remembered the dialogue

in which he en gage d with th e trial jud ge be fore m aking his plea . Durin g this

discussion, Petitioner stated he understood that he was receiving a sentence of

twenty-eight years, that he would be classified as a multiple offender, and that he

must serve thirty-five percent of his sentence before being eligible for release

classification. The judge continued his questioning:

      QUESTION: And you’re going to have to serve thirty-five percent
      before you’re eligible for release classification. You understand
      that?
      ANS WE R: Righ t.
      QUE STIO N: Do you understand that you may or may not be
      release d after thirty-five p ercent?
      ANSW ER: Huh?
      QUESTION: Do you un derstand tha t you may or m ay not be
      release d after thirty-five p ercent?
      ANS WE R: No, I did n’t under stand tha t.
      QUESTION: We ll, do you unde rstand that tha t’s the va rious c redit
      [sic] that you’ll receive during your incarceration. Do you understand
      that? That the Court can make no promises exactly when you’ll be
      release d. Do you unders tand tha t?
      ANSW ER: Oka y.


      When Petitioner was called to testify at the post-conviction hearing, he was

asked wheth er his attorney explained sentencing ranges to him. He first stated

that he could not recall whether she had done so. However, under continued

questioning, he changed his mind and stated that she did not do so.



      Petitioner also a rgues that his attorne y failed to adeq uately investigate his

mental condition . The record shows otherwise. Petitioner’s trial counsel testified



                                         -7-
that during her numerous visits with Petition er prior to his plea, she never had any

indication that Petitioner suffered mental problems. In fact, she testified that she

and a mitigation specialist from the Public Defender’s office asked Petitioner and

his family numerous and specific questions about Petitioner’s mental health, and

no one in forme d her o f any m ental h ealth p roblem s or ind icated that Pe titioner

might not be competent to enter his plea.



       Petition er’s testimony that he “thought” he informed his attorne y of his

suicide attemp ts presen ts a classic q uestion o f fact for reso lution by the post-

conviction judge. Having heard testimony from both sides, the judge concluded

that Petitioner’s testimony was not reliable:

       [The Petitioner] doesn’t appear to be any on e [sic] w ho’s m entally ill
       to the Court, just som ebod y who is manip ulative and attemp ting to
       play “Mr. P itiful,” at this point in tim e.
              He has been characterized by his family as being without the
       truth in him. An d it is clear by lo oking at the transcript that all of
       these things that he claims did not occur, were, in fact, discussed on
       the record. If not by his attorney, at least in his presence with the
       attorney contrib uting to that, along with the Court and the
       prosec ution. He says he doesn ’t remem ber.
              Now, no one tells Ms. Thomas these things. And he indicates
       that he never told her these things. So how is she su ppose [sic] to
       develop this intuitive sense that he’s got mental illnesses that wo uld
       rise to the level of either com petency [sic] or insan ity?


       In conclusion, viewing the actions of Petitioner’s attorney in light of all facts

and circumstanc es at the time of h is plea, we cann ot find any deficiency in

Petition er’s represe ntation prio r to or during his guilty plea procee ding. Howeve r,

even assu ming that Pe titioner’s repres entatio n was ineffective, Petitioner has

failed to dem onstrate prejudice . Petition er has simp ly failed to show that ha d his

attorne y’s action s and advice been differen t, there is a reaso nable p robability that




                                          -8-
he would n ot have pleade d guilty and insisted on going to tria l. See Strickland,

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



      The judgment of the trial court is accordingly affirmed.



                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                                        -9-
