         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                          OCTOBER SESSION, 1998        February 4, 1999

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
RAYFORD B. MARTIN,             )   C.C.A. NO. 03C01-9707-CR-00286
                               )
      Appe llant,              )
                               )
                               )   KNOX COUNTY
VS.                            )
                               )   HON. RICHARD BAUMGARTNER
STATE OF TENNESSEE,            )   JUDGE
                               )
      Appellee.                )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CRIMINAL COURT OF KNOX COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

MARK E. STEPHENS                   JOHN KNOX WALKUP
Public Defender                    Attorney General and Reporter

JOHN HALSTEAD                      MICH AEL J . FAHE Y, II
PAULA R. VOSS                      Assistant Attorney General
Assistant Pu blic Defende rs       425 Fifth Avenu e North
1209 Euclid Avenue                 Nashville, TN 37243
Knoxville, TN 37921
                                   RANDALL E. NICHOLS
                                   District Attorney General

                                   MARSHA SELECMAN
                                   Assistant District Attorney General
                                   City-County Building
                                   Knoxville, TN 37902



OPINION FILED ________________________

AFFIRMED IN PART; DELAYED APPEAL GRANTED

DAVID H. WELLES, JUDGE
                                     OPINION
       This is an appeal as of right from the trial court’s denial of post-conviction

relief from convictions based upon guilty pleas. The Defen dant en tered gu ilty

pleas, with sentencing left to the discretion of the trial judge, to two counts of

aggravated kidnapping, two counts of aggravated rape, and four counts of armed

robbery. At the sentencing hearing conducted on April 3, 1989, he received a

total effective sentence of 150 years. This Court affirmed his sentences on direct

appe al. 1 The Defendant filed a petition for post-conviction relief in December of

1991; and fo llowing appo intme nt of co unse l, he filed a sup plem ental p etition in

June of 199 7. The trial cou rt cond ucted a hea ring an d den ied the petition in July

of 1997. The Defe ndan t now a ppea ls the tria l court’s ruling. We affirm, but we

grant D efend ant relie f in the fo rm of a delaye d app eal.



       The Defendant contends that he received ineffective assistance of counsel

and asserts four gro unds in sup port of h is claim . He ar gues that his counsel (1)

impro perly advised him to plead guilty to two counts of aggravated kidnapping,

which he co ntend s were mere ly incidental to the aggravated robbery and rape

charges; (2) erred by failing to object to the trial court’s ex parte confere nce with

one of the victim s and h er moth er at the sentencing hearing; (3) erred by

cons istently failing to challenge at the trial or appellate level the enhancement




        1
          State v. Derrick Willis Gilbert & Rayford Bernard Martin (alias Billy Ray Morgan), No.
1265, 1990 WL 41554 (Tenn. Crim. App., Knoxville, April 11, 1990, perm. to appeal on behalf
of Derrick Willis Gilbert denied (Tenn. 1990).

                                              -2-
factors which were a pplied in sen tencin g; and (4) ineffe ctively re prese nted h im

on ap peal. 2



       For a better understanding of the issues, it is necessary to briefly review

the facts of the underlying offenses as presented in the record before us.

According to the pre sente nce re port, w hich in clude s a len gthy an d grap hic

confession by the Defendant, the Defendant and his co-defendant, Derrick

Gilbert, accosted a young couple who were sitting in a pa rked ve hicle in Kno xville

on June 7, 1988. Armed with a pistol and knife, the two m en rob bed th e cou ple

of a stereo equalize r and pu rse.



       Later that same evening, the Defendant and his co-defendant approached

another young couple sitting in a parked vehicle. Again using the pistol and knife,

they robbed the couple of jewelry, a stereo, and other items, and then forced the

coup le to fully disrobe, throwing articles of their clothin g into the nearby woods.

They forced the male victim to lie nude in the floorboard of the car, threatening

to kill the female victim if he moved. The two men then transported the nude

fema le victim in their vehicle to a more isolated location in the woods, where they

each raped her repeatedly, both orally and vaginally, while, according to the

Defen dant, she “just [lay] there . . . like she wa s dead .” At one point, they placed

a pistol in her m outh and threatened to kill her if she vomited on them. After the

assau lt, the Defendant and his co-defendant left the female victim, who was nude

and bleeding, alone in the woods and drove away. As they departed, they were

met by a rriving police officers, wh o placed them u nder arre st.



        2
           For purposes of clarity and brevity, we will address the issues presented in a slightly
different order than that suggested by the Defendant.

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      In determining whether counsel provid ed effective assista nce a t trial, this

Court mus t decid e whe ther co unse l’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, 936 (Tenn. 1975).         To succeed on a claim that counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he or she was not functioning as co unse l as guaranteed

under the Sixth Amendment and that the deficient representation prejudiced the

petitioner resulting in a failure to produce a reliable re sult.        Strickland v.

Washington, 466 U .S. 668, 6 87; Coop er v. State, 849 S.W.2d 744, 747 (Tenn.

1993); Butler v. State, 789 S.W .2d 898, 899 (Tenn. 199 0). To satisfy the second

prong, the petitioner must show a reasonable proba bility that, b ut for co unse l’s

unrea sona ble error, the fact finder would have had reasonable doubt regarding

petition er’s guilt. Strickland, 466 U.S. at 695. T his reaso nable p robability must

be “sufficient to undermine confidence in the outcom e.” Harris v. S tate, 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). Coun sel’s alle ged e rrors sh ould

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.



      This two-part standard of measuring ineffective assistance of counsel also

applies to claims arising ou t of the plea proces s. Hill v. Lockart, 474 U.S. 52

(1985); Bankston v. State, 815 S.W .2d 213 , 215 (T enn. C rim. App . 1991). The

prejudice requirement is mod ified so that the petition er “mu st sho w that th ere is

                                         -4-
a reasonable probability 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.



       The Defendant first argues that he received ineffective assistance of

counsel because he was improperly advised to plead guilty to two counts of

aggravated kidnapping.         He argues that the proof does not support h is

kidnapping convic tions a nd tha t his attorney fa iled to properly advise him about

the law of kidnapping.        He contends that his kidnapping convictions were

esse ntially incide ntal to h is rape and robbe ry conv ictions and th erefor e that h is

convictions for kidnapping violate his due process rights.



       In support of this argu ment, the D efendant re lies on the Tennessee

Supre me C ourt case of State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), which

sets forth the standard for determining whether movement or confinement

incidental to a crime such as robbery o r rape is su fficient to sus tain a sep arate

kidnapping conviction . In Anthony, the suprem e court concluded that the proper

inquiry is

       whether the confinement, movement, or dete ntion is esse ntially
       incidental to the accompanying felony and is not, therefore,
       sufficient to support a separate conviction for kidnapping, or whether
       it is significan t enoug h, in and o f itself, to warrant independent
       prosecution and is, therefore, sufficient to support a conviction. . . .
       [O]ne method of resolving this question is to ask whether the
       defen dant’s conduct “substantially increased [the] risk of harm over
       and ab ove that n ecessa rily present in the crime of robbe ry itself.”

Id. at 306.     Simply stated, to uphold a conviction for kidnapping which

accompanies a related crime, the kidnapp ing “[m]u st . . . make[] the other crime

subs tantially easier of c omm ission or s ubstan tially lessen[] th e risk of de tection.”

Id.



                                           -5-
       W e first note that the Defendant entered his guilty plea in 1989, two years

before the release o f Anthony in 1991. The Defendant, however, argues that the

ruling in Anthony was based at least in part on previous cases which were

availab le to his cou nsel at the time. See id. at 304-0 6. The Defendant would

have us conclud e that had his coun sel inform ed him of a poten tial Anthony-type

defense, either the State would have dropped all kidnapping charges against him,

or he would have proceeded to trial and prevailed on the Anthony issue. W e find

neither o f these ou tcome s likely.



       The Defenda nt confessed to horrific crimes. The facts which we have

gleaned from the record, the majority of which come from the Defendant’s own

statem ents to police, though not tantamount to all evidence which would likely be

produced at a co mple te trial, ind icate e xtrem ely stron g proo f again st the

Defen dant. Furthermore, as our supreme court noted in Anthony, “despite the

rules, there is inevitably some unevenness in the application of the law to the

facts, even within jurisdictions, principally because the determination of whether

a detention or movement is incidental to another offense is highly dependent on

the facts in each ca se.” Id. at 306. Thus, it is totally uncertain whether, if the

Defendant had proceeded to trial, he would have prevailed with an Anthony

defens e.



       Based upon a review of the proof before us, we cannot conclude that the

Defe ndan t’s representation was deficient with regard to the Defe ndan t’s

kidnapping convictions. Moreover, even assuming that the re was deficie ncy in

the Defendant’s representation, the Defendant has failed to show prejudice. He

simp ly has not demonstrated that “but for coun sel’s errors he wo uld not have

                                        -6-
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474

U.S. 52 , 59 (198 5). This iss ue is there fore witho ut merit.



       The Defendant next argues that his counsel should have objected to the

trial court’s ex parte conference with one of the victims and her mother at the

senten cing hearing. This victim, who did not testify at the sentencing hearing,

was the victim of one of the aggravated robberies, an aggravated kidnapping, and

both aggravated rapes. The re is no record of the private conversation between

the judge, the victim, and her mother. However, the trial judge testified at the

post-conviction proceeding and denied having been unduly influenced by the

conversation.



       It is not w ithin ou r realm of review to second-guess trial strategy decisions.

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Suffice it to say that there are

numerous possible reasons for Defendant’s counsel to choose not to o bject to

the ex parte conference.        As the post-conviction judge pointed out, “[the

Defe ndan t’s counsel] knew the emotional nature of the case.            He had th e

opportu nity to see [this victim] testify at the preliminary hearing. He knew the

impact that testimony could have at the sente ncing he aring. There was nothing

for him to gain by o bjecting to this sugg ested me eting.” We therefore decline to

find that the lack of an objection to the conference resulted in deficient

representation for the Defendant. In addition, there is no showing of prejudice.



       Third, the Defendant argues that he received ineffective assistance of

counsel due to his attorney’s failure to challenge an y of the enhan cemen t factors

at the senten cing hea ring or on appea l. In respon se to this a rgume nt, we no te

                                          -7-
that this Court fully reviewed the Defendant’s sentence on appeal and affirmed

the sentences imposed by the trial court. The re cord shows that this Court

considered all enhancement factors and noted that som e of the factors we re

inappropriately ap plied. This Co urt, however, upheld the sentence imposed by

the trial court, concluding, “[W]e are satisfied that [the Defendant’s] sentences as

fixed by the trial judg e are of a length co mm ensura te with his crimes.” Therefore,

the Defendant has s hown no prejudice cau sed by his cou nsel’s failure to

challeng e the ap plied enh ancem ent factors , and this iss ue is witho ut merit.



      Finally, the Defendant claims that his counsel was ineffective on appeal

and lists a number of reasons to support his claim. He states that

      [w]hen the [appe llate] brief first became due, counsel did not file a
      brief, and the Court of Criminal Appeals issued a show ca use order.
      In response to the sho w caus e order, c ounse l attempte d to
      withdraw. The Court refused to allow him to withdraw and ordered
      him to file a brief. The attorney then file d a brie f which subs tantive ly
      is five page s long. T he attorn ey did no t file a reply brief.

In addition, he states that his counsel “failed to file a motion to reconsider the

Court of Crimin al Appe als opinio n, affirming the sentence after the enhancing

factors were found to be inapplicable, and failed to file a Motion For Permission

to Appeal to the Suprem e Court.”



      Reviewing the record before us, w e are unab le to find ineffective

representation concerning the appellate brief. Although Defendant’s counsel filed

the brief late, the Court of Criminal Appeals nevertheless accepted the brief and

considered it. For this reason, the Defendant has not shown prejudice resulting

from the late filing o f the brief. Furthermore, the submission of a five-page brief

does not constitute ineffective assista nce o f coun sel per se. From a review of the



                                          -8-
record, we do not find any deficiency of representation regardin g the brief itse lf.

Howeve r, even assuming deficiency of representation, the Defendant has failed

to show prejudice resulting fro m the len gth or co ntent of the brief.



        However, with regard to counsel’s failure to file an application for

permission to appeal to the Tennessee Supreme Court, we conclude that the

Defendant should b e grante d a delay ed opp ortunity to appeal. Tenn. R. Sup . Ct.

28 § 9(D). Rule 14 of the Rules of the Supreme Court requires that counsel for

an indigent defendant obtain the consent of this Court before withdrawing as

counsel following first-tier review. Tenn . R. Sup . Ct. 14. Rule 14 also states that

counsel must forward a copy of his motion to withdraw and written notification

contain ing certain sp ecific inform ation to the defend ant.       Id.   “[U]nilateral

termination of a direct appeal following first-tier review entitles a prospectiv e

Defendant to relief in the form of a de layed appea l.” Pinksto n v. State, 668

S.W .2d 676, 677 (Tenn. Crim . App. 1984 ).



        In the case before us, Defendant’s counsel testified at the post-conviction

proceeding that he sent to the Defend ant a copy of the opinion from this C ourt

accompanied by a letter explaining the Defendant’s options. He testified that the

Defendant never responded. However, Defendant’s counsel did not file an

application for permission to app eal to th e sup reme court, n or doe s it appear that

he filed a mo tion to withd raw as c ounse l. Although we find that this error alone

does not necessarily rise to the level of ineffective assistance of counsel, we

conclude that the Defendant should be granted the opportunity to pursue a

delayed appeal to the Tennessee Supreme Court. See Tenn. R. Sup. Ct. 28 §

9(D).

                                         -9-
       In conclusion, in the words of the post-conviction judge, the Defendant

       gave a deta iled ac coun t of his p articipa tion in this brutalization of the
       [rape victim] in the pre-sen tence re port. He went on for some three
       pages describing the sexual acts that he himself committed, and
       that the other individual co mm itted, and fully acknowledged the
       horrend ous na ture of this cr ime to the pre-sen tence o fficer . . . .

Based on the fac ts presen ted to us, w e simp ly canno t conclud e that but fo r his

coun sel’s alleged deficiencies, the Defen dant wo uld have elected to procee d to

trial on these charges.



       W e accordingly affirm the judgment of the post-conviction court regarding

ineffective assistan ce of cou nsel. Ho wever, the Defen dant sh all have sixty days

to seek supre me c ourt re view of th is Cou rt’s decision affirming h is senten ce. See

Ten. R. Sup. Ct. 28 § 9(D); Tenn. R. App. P. 11.




                                    ____________________________________
                                    DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                                           -10-
