Parham v. State

• Decision Date: 25 May 1994
• Citation: 885 S.W.2d 375
• Parties: Kenneth PARHAM, Appellant, v. STATE of Tennessee, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 375

885 S.W.2d 375

Kenneth PARHAM, Appellant, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee,

at Jackson.

May 25, 1994.

Permission to Appeal Denied by

Supreme Court Sept. 12, 1994.

Walker Gwinn, Asst. Public Defender (Appeal Only), Melvin G. Turner, Asst. Public Defender, Memphis (Trial Only), for appellant.

Charles W. Burson, Atty. Gen. and Reporter, Clinton J. Morgan, Asst. Atty. Gen Nashville, John W. Pierotti, Dist. Atty. Gen., Kenneth R. Roach, Asst. Dist. Atty. Gen., Memphis, for appellee.

OPINION

JONES, Judge.

The appellant, Kenneth Parham, appeals as of right from a judgment of the trial court denying his suit for post-conviction relief. The trial court found that the appellant voluntarily, knowingly and intelligently entered a plea of guilty to the offense of murder in the perpetration of a robbery in exchange for a life sentence. In this Court, the appellant contends that his "guilty plea should be set aside because it was not voluntary."

The judgment of the trial court is affirmed.

On the 24th day of May, 1985, the Shelby County Grand Jury returned a two count indictment against the appellant, Tony LaSalle Jones, and Arthur Freddie Taylor. The indictment charged the co-defendants with the murder of Frank Radford. The first count charged the co-defendants with murder in the perpetration of a robbery. The second count of the indictment charged them with premeditated murder.

Taylor, who was not inside the liquor store when Radford was murdered, was permitted to plead guilty. He was sentenced pursuant to a plea bargain agreement. The assistant district attorney general would not make the same offer to Jones and the appellant. However, the state agreed to recommend a life sentence if Jones and the appellant entered pleas of guilty. The life offer was contingent upon both accepting the offer and pleading guilty. Jones wanted to plead guilty. The appellant wanted a trial. Consequently, Jones could not plead guilty.

Jones and the appellant went to trial. The state sought a death sentence for both defendants. On the fifth day of trial Jones and Parham advised the trial court that they wanted to plead guilty to murder in the perpetration of a robbery in exchange for a life sentence. The announcement was made shortly before the state was to rests its case. Jones and the appellant changed their respective pleas, entered pleas of guilty, and they were sentenced to life in the Department of Correction pursuant to the plea bargain agreement.

The appellant subsequently filed this suit for post-conviction relief. He alleged in his petition that trial counsel "coerced" him to plead guilty. The petition states: "[The attorney] further pressured petitioner into an involuntary entering [of] a plea of guilty by advising petitioner that he should enter a plea of guilty in order to avoid the death penalty and possible electrocution of his co-defendants." The appellant also alleged that he was denied the effective assistance of counsel guaranteed by the United States and Tennessee Constitutions in other respects. However, he knowingly and intentionally waived the latter grounds. ¹

The trial court conducted an evidentiary hearing. The transcript of the hearing reflects that the appellant and Jones entered a liquor store. The appellant was armed with a handgun. While inside the liquor store, the appellant gave Jones the pistol. It was cocked and ready to fire when Jones received the pistol. Jones subsequently shot Radford. He died as a direct and proximate result of the gunshot wound.

The appellant gave law enforcement officers a statement. He admitted his participation in the robbery-murder. The appellant's girl friend testified the appellant gave her a ring that belonged to the victim. An attempt was made to take money from the cash register. A mutual friend testified that he, the appellant, and Jones drank liquor following the robbery-murder. It was the same brand of liquor that was stolen from the store.

There was a factual dispute as to who shot the victim. The attorney representing the appellant attempted to establish that Jones shot the victim. The attorney representing Jones attempted to establish that the appellant shot the victim.

Counsel advised the appellant that his chances of being convicted of first degree murder were excellent. The appellant did not have a defense or witnesses who could testify in his behalf. Counsel further advised the appellant that the jury may sentence him to life or death, but the least punishment he could expect was life in the Department of Correction. However, it was almost a foregone conclusion that Jones would receive a death sentence.

The appellant testified that he had talked with Jones's family regarding the entry of a guilty plea. His attorney did not arrange these telephone conversations. During the trial, the appellant and Jones met privately. Jones did not want to risk being sentenced to death. The appellant testified during the evidentiary hearing that he changed his plea to prevent Jones from receiving a death sentence.

The appellant's "coercion" theory has two prongs. The first prong was the assistant district attorney general's refusal to sever Jones so that the appellant could go to trial; and the assistant making the offer of life contingent upon both the appellant and Jones entering pleas of guilty and accepting the offer. The second prong was trial counsel's statement that the appellant would be convicted of first degree murder based upon the evidence adduced during the trial, that the least punishment the appellant would receive was life although there was a strong likelihood he would receive a death sentence, and that it was a foregone conclusion that Jones would receive a death sentence if both did not plead guilty.

The attorney who represented the appellant had a wealth of criminal trial experience. He was acutely aware of the parameters in death penalty litigation. During the evidentiary hearing, he testified that the state's case against the appellant and Jones had been "flawless." He did not have a defense or witnesses to present in the appellant's behalf. Based on the evidence and his wealth of experience as a criminal defense lawyer, the attorney advised the appellant that he was in jeopardy of receiving a death sentence. Counsel was convinced that the jury would find the appellant guilty of first degree murder. He further advised that the least punishment the appellant would receive was life in the Department of Correction. He also told the appellant that Jones, as the triggerman, would receive a death sentence.

The attorney admitted that he attempted to persuade the appellant to change his plea and accept the life sentence. He thought that this was in the appellant's best interest. However, the attorney told the appellant that he, the appellant, had to decide whether to plead guilty and accept a life sentence. He further told the appellant that he, as his attorney, could not make the decision for him. The transcript of the submission hearing supports the attorney's assertion that the appellant alone made the decision to change his plea. The following colloquy occurred between the appellant and his attorney during the submission hearing:

Q. Now, it was not until this morning that you indicated to me that you had intentions of changing your plea, isn't that correct?

A. Yes.

Q. Sir?

A. Yes.

Q. Now, did I not tell you that you had to make this decision, that I could not make this decision for you, right?

A. Yes.

Q. Is this your decision or was it my decision?

A. Mine.

Q. Your decision?

A. Yes.

Q. Kenneth's decision, right?

A. Yes.

Q. Do you feel that you have been pressured by me in any sense to plead guilty, improperly?

A. No.

Q. You've told me. Would you tell the Judge why you--what prompted you at this time to change your plea?

A. Just the circumstances, you know--

Q. Now, here's what I'm getting at. You were afraid that Tony might be electrocuted. Isn't that what you told me?

A. Yes.

Q. Sir?

A. Yes.

Q. And did I not explain to you that was okay for you to think that, but that you had to make the decision, not Tony? Did you make this decision or did Tony make it?

A. I did.

Q. Do you feel threatened by Tony, or anybody at all in this world?

A. No.

The trial court filed its findings of fact and conclusions of law with the clerk of the trial court on January 22, 1988. The court concluded that the appellant's "plea of guilty was freely, knowingly and voluntarily entered without coercion on the part of Mr. Chandler." The trial court further found: "It is the court's opinion that [the attorney] exercised proper professional judgment in advising the Petitioner of the weakness and strong points of his case. Once the attorney advises a client of his points, including the consequences, only the client can make a decision as to what plea to enter."

I.

When the petitioner in a post-conviction proceeding is granted an evidentiary hearing to ventilate the grounds raised in his petition, the trial court's findings of fact are afforded the weight of a jury verdict. Consequently, this Court is bound by the trial court's findings of fact unless the evidence contained in the record preponderates against the court's findings or the judgment entered. ²

Since the trial court found that the appellant failed to establish he was entitled to post-conviction relief, this Court must review the record to determine whether the evidence preponderates against the trial court's findings of fact or the judgment that the trial court entered. In doing so this Court is bound by certain well-established rules governing appellate review. As this Court said in Black v. State:

First, this Court cannot reweigh or reevaluate the evidence; nor can we substitute our inferences for those drawn by the trial judge. Second, questions concerning the credibility of the witnesses, the weight and value to be given their testimony, and the factual...