                     IN THE COURT OF CRIMINAL APPEALS

                                AT JACKSON            FILED
                           NOVEMBER 1995 SESSION
                                                      January 31, 1996

STATE OF TENNESSEE,                )    NO. 02C01-9503-CR-00079 Jr.
                                                   Cecil Crowson,
                                                      Appellate Court Clerk
                                   )
       Appellee                    )    SHELBY COUNTY
                                   )
V.                                 )    HON. WIL V. DORAN
                                   )    JUDGE BY DESIGNATION
HENRY LEE BROOKS,                  )
                                   )    (Post-Conviction: Murder and Assault
     Appellant                     )     With Intent to Commit Murder)


FOR THE APPELLANT:                      FOR THE APPELLEE:

Craig V. Morton, II                     Charles W. Burson
212 Adams Avenue                        Attorney General and Reporter
Memphis, Tennessee 38103                450 James Robertson Parkway
                                        Nashville, Tennessee 37243-0493

                                        Christina S. Shevalier
                                        Assistant Atty. Gen. & Reporter
                                        450 James Robertson Parkway
                                        Nashville, Tennessee 37243-0493

                                        John W. Pierotti
                                        District Attorney General

                                        Karen Cook
                                        Assistant District Attorney General
                                        201 Poplar Avenue, 3rd Floor
                                        Memphis, Tennessee 38103




OPINION FILED:

AFFIRMED


William M. Barker, Judge



                                  OPINION
        Following an evidentiary hearing, the Shelby County Criminal Court dismissed

the appellant's petition seeking post-conviction relief. The appellant now appeals from

the judgment of the trial court and presents two issues for our review. First, the

appellant contends that he was denied his constitutional right to the effective

assistance of counsel in that his trial counsel failed to properly investigate the case

and prepare for trial. Second, he contends that his guilty pleas were involuntarily and

unintelligently entered due to his mother's undue pressure on him to plead guilty and

his mistaken belief that his sentences would be served concurrently instead of

consecutively.

        We affirm the trial court.

        The appellant, along with a co-defendant, was indicted during the March 1990

term of the Shelby County Grand Jury for the offenses of felony murder, first-degree

premeditated murder, and assault with intent to commit murder.

        On October 29, 1990, the petitioner signed two negotiated plea agreements

agreeing to plead guilty to first-degree murder and to assault with intent to commit

murder. The negotiated pleas, which were accepted by the trial court, provided for the

appellant to receive a life sentence as a Range I offender for the murder conviction

and a consecutive sentence of twenty-five (25) years as a Range II offender upon his

conviction of assault with intent to commit murder.

        At the guilty plea submission hearing, the State represented that the following

facts would have been proven had the case gone to trial:

              The facts that led to the indictment occurred back on
              July 28, 1989. A victim of the murder, Rertisia (spelled
              phonetically) Marshall, along with her husband, Henry
              Marshall, were at their home here in Shelby County. That
              address was 784 Josephine. They knew one of these
              defendants from a prior acquaintance.

              They were an elderly couple. I think she was about 70 and
              he was about the same age. They allowed him to come
              into their house that afternoon about seven o'clock. There
              were witnesses across the street and next door who



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              positively identified both of these defendants as going into
              that house about that time.

              One of the neighbors later heard screams coming from the
              house. In a short period of time these two defendants left
              the scene in the victims' car. Again, the same people who
              saw them go in saw them come out of the house and the
              neighbors went over to the house and found Mrs. Marshall
              there.

              She had been stabbed a number of times. Mr. Marshall
              had been stabbed a number of times. I think the medical
              examiner said she was stabbed approximately 19 times.
              And Mr. Marshall was stabbed about seven times.

              At any rate, these two defendants were developed as
              suspects based upon the information received from the
              neighbors. They were apprehended and the Defendant
              Brooks gave a statement of admission admitting that he
              stabbed both Mr. Marshall and Mrs. Marshall, also
              implicated the co-defendant, Mr. Evans.

              Mr. Evans did give a statement admitting he was present;
              however, he denied that he actively participated in the
              stabbing of the two victims. Mr. Evans at the time of this
              offense was a juvenile. And he has been accepted by the
              Criminal Courts to be treated as an adult.

        In January of 1993, the petitioner filed his post-conviction petition, and the

State thereafter filed its response. The trial court appointed counsel for the appellant

and conducted an evidentiary hearing on his petition on May 10, 1994. At the

conclusion of the evidentiary hearing, the trial court denied the post-conviction petition,

although a written order was not entered until September 1, 1994.

        Testifying in support of the petition were the appellant, Henry Lee Brooks, and

his mother, Cheryl Ann Cook. The petitioner's trial counsel testified for the State at

the post-conviction hearing.

        The appellant testified that he met with his attorney only three times prior to

trial and that she did not properly investigate his case. Although he acknowledged

that she inquired of him if he knew of any witnesses, he testified that he advised his

trial counsel that he knew of none. He testified that the only evidence that he

discussed with his trial counsel was the statement which he had given to the police.



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The appellant testified that he told his attorney that he never touched the female

victim, but that he had seen the co-defendant stab Mrs. Marshall. He acknowledged

that he was aware that his attorney did obtain some discovery information from the

State.

         The appellant further testified that his attorney did not follow through on the

pretrial motions which she filed and that there was never a suppression hearing

conducted upon his motion to suppress the statement which he had given to the

police. Further, he testified that although he did make an incriminating statement to

the police, the statement was not voluntarily given and that he did not understand his

Miranda rights. He was aware that the hearing date for the pretrial motions and the

trial date were the same, and that he would not have pled guilty if he had obtained a

favorable result on the motions.

         He further testified that his attorney failed to obtain a psychological evaluation

of him, even though he admitted that he was taken to a clinic where he was asked

questions. He further testified that while his indictments were pending, his mental

condition was such that he was shaking a lot, experiencing difficulty concentrating,

was having problems in school, and was experiencing blackouts. He testified that his

mental faculties were worse when he was deprived of his eyeglasses.

         With regard to his sentences, the appellant testified that he was advised by

his attorney that he would receive concurrent sentences upon his pleading guilty. He

acknowledged, however, that he understood the trial court to state in open court that

his sentences would be served consecutively. Despite the provisions in the two

negotiated plea agreements which he signed indicating that the sentences would be

consecutive, the appellant testified that he thought the "papers" which he signed

indicated his sentences would be served concurrently. The appellant testified that he

would not have entered pleas of guilty if he had been aware that he was to receive

concurrent sentences. He testified that he had lost his eyeglasses during the



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"incident" and that during his time in jail awaiting trial, he was not provided any glasses

and that consequently his attorney read the papers to him because he was unable to

read them without his glasses. Further, he testified that he was unaware of the

possibility of receiving the death penalty until the trial date. He further testified that the

statement which he gave to the police contained inaccuracies. In particular, the

appellant testified that the portion of his statement indicating that he stabbed the

female victim once or twice was incorrect. At the evidentiary hearing he testified that

he only stabbed Mr. Marshall, not Mrs. Marshall.

        The appellant further testified that the trial court did not explain his rights to

him and that the only reason he pled guilty was that his trial counsel told him that his

choice was either to go to trial and get the death penalty or to take the time offered by

the State. Accordingly, he testified that he only said yes to everything at the plea

submission hearing because his attorney told him to do so.

        The petitioner's mother testified that the appellant's trial counsel contacted her

two or three times or more. She testified that her son had mental problems in that he

was prone to "blackouts," and it was her belief that he was not competent to stand

trial, despite the results of the mental evaluation. She did not believe that the jury

would acquit her son because he had committed murder. She admitted that she

advised her son to plead guilty in order to avoid the death penalty and that she had a

difficult time convincing him to agree. She testified that her son's trial counsel advised

her that the sentences would be served concurrently.

        Appellant's trial counsel, testifying for the State, said that she met on more

than one occasion with appellant's family members who were brought to her office by

the appellant's mother. She filed many pretrial motions and discussed the case with

the petitioner. In addition to receiving discovery from the State, she conducted an

independent investigation of the case. She attempted to contact witnesses and

arranged for the appellant to have a mental evaluation performed at the Mid-Town



                                              5
Mental Health Clinic. Following the mental evaluation, appellant's trial counsel had a

conference with the person who performed the evaluation. She testified that there

was no helpful information uncovered during that conference and that the evaluation

uncovered no mitigating factors. It was her opinion that there was no question of the

petitioner's competency to stand trial and that the evidence against her client was

"overwhelming." Further, appellant's trial counsel denied that the appellant ever

mentioned having blackouts. She agreed that the appellant knew of no witnesses who

could testify on his behalf.

        Appellant's trial counsel testified that no hearings were conducted on the

appellant's pretrial motions because the petitioner pleaded guilty before the motions

were heard. She acknowledged that she advised the petitioner that his sentences

would be served consecutively and that she never told him that they would be served

concurrently. She acknowledged that she advised both the appellant and his mother

that in her opinion the appellant should plead guilty because she felt that the

negotiated plea was favorable to the petitioner in light of the evidence against him.

        Appellant's trial counsel advised the appellant that in the event he did not

plead guilty, she would ask for a continuance so that his pretrial motions could be

heard prior to trial. She was also advised by the district attorney that he intended to

file a notice of intent to seek the death penalty, and that her main goal was to attempt

to settle the cases in order to avoid the risk of such a punishment.

        Appellant's trial counsel never received any indication that the appellant did

not understand his rights at the guilty pleas admission hearing. Finally, it was the

opinion of appellant's trial counsel that even if his statement to the police were

suppressed, there was more than enough evidence to convict the appellant of the

crimes for which he had been indicted.

        Based upon the foregoing, together with the record from the guilty plea

submission hearing, the trial court found that the appellant had failed to carry his



                                            6
burden of showing by a preponderance of the evidence that his guilty pleas were

involuntarily given or that they were not intelligently entered. Further, the trial court

concluded that the evidence failed to establish that the appellant received the

ineffective assistance of counsel. We agree.

        In a post-conviction relief proceeding, the burden of proof is on the petitioner

to show by a preponderance of the evidence the allegations in the petition. State v.

Kerley, 820 S.W.2d 753, 755 (Tenn. Crim. App. 1991); Bratton v. State, 477 S.W.2d

754 (Tenn. Crim. App. 1971). On review of post-conviction proceedings, the findings

of fact of the trial court are conclusive on appeal unless the evidence preponderates

against the judgment. Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993).

        In order for the petitioner to be granted relief on the grounds of ineffective

assistance of counsel, he must establish that the advice given or the services

rendered were not within the range of competence demanded of attorneys in criminal

cases and that counsel's deficient performance prejudiced his case. Baxter v. Rose,

523 S.W.2d 930 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). In the context of a post-conviction relief petition

seeking to set aside a plea of guilty based upon ineffective assistance of counsel, the

petitioner must demonstrate a reasonable probability that, but for counsel's errors, he

would not have pled guilty and would have insisted on going to trial. See Hill v.

Lockart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Bankston v.

State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).

        Applying the above standards to the facts of this case, it is apparent that the

appellant was substantially involved in the very gruesome murder of an elderly woman

and the unwarranted and horrible stabbing attack on her husband. It is clear that the

offenses were of such a magnitude and so terrible that if convicted by a jury, there

was undoubtedly a substantial possibility that the appellant would have been

sentenced to death by electrocution. In order to avoid that possibility, he voluntarily,



                                             7
knowingly, and wisely chose to accept a negotiated plea of guilty for a life sentence to

be followed by a twenty-five (25) year consecutive sentence. We agree with the trial

court that the appellant has simply failed in his burden of establishing that he was

denied the effective assistance of counsel or that he entered his pleas of guilty

unknowingly or involuntarily.

        Accordingly, the judgment of the trial court is affirmed.




                                          WILLIAM M. BARKER


CONCUR:




PAUL G. SUMMERS, JUDGE




DAVID H. WELLES, JUDGE




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