IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 9, 2013

LEWIS YOUNG v. STATE OF TENNESSEE 

Appeal from the Criminal Court for Shelby County

No. 10-01646 W. Mark Ward, Judge

No. W2012-01057-CCA-R3-PC - Filed September 30, 2013

The petitioner, Lewis Young, appeals the denial of his petition for post-conviction relief,

arguing that he received ineffective assistance of counsel at trial. Following our review, we

affirm the denial of the petition.

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

ALAN E. GLENN,J., delivered the opinion of the Court, in which JOSEPH M. TIPTON, P.J., and

JERRY L. SMITH, J., joined.

Anna R. Smith, Memphis, Tennessee, for the appellant, Lewis Young.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Pamela Fleming, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

On January 31, 2011, the petitioner pled guilty to aggravated rape, aggravated

kidnapping, and robbery in exchange for an effective sentence of forty years to be served at

100%. On August 29, 2011, the petitioner, pro se, submitted an unnotarized petition for

post-conviction relief. The petitioner then filed a notarized petition on January 4, 2012.

Because neither a transcript of the post-conviction evidentiary hearing nor a transcript

of the guilty plea hearing is included in the record on appeal, we glean the following facts

from the post-conviction court’s order entered on April 11, 2012, denying the petitioner’s

petition:
An evidentiary hearing was conducted on April 9, 2012. A transcript

of the guilty plea proceeding was made Ex. 1 to the hearing. The guilty plea

hearing was conducted before [the trial judge] on January 31, 2011. The

petitioner testified during the hearing and was questioned thoroughly by the

judge as to whether he understood his legal rights. As for the range of

punishment, [the trial judge] advised the [p]etitioner, among other things, that

as a persistent offender, his 40 year sentence was the minimum sentence

authorized by law. He also explained, at length, that there was no parole for

the sentence which must be served at 100%. Finally, the transcript reveals the

following question and answer: “Are you entering this plea freely and

voluntarily without any threats or pressures or promises? A: (by petitioner)

Yes, sir.”

[The petitioner] testified in the post-conviction evidentiary hearing. He

was represented by [counsel]. He said he had been on psychiatric medication

since he was 15 years of age. He was on medication at the time he entered his

plea, but not at the time he committed the crime. He has a prior diagnosis of

paranoid schizophrenia. He testified further that he told his attorney about

being on medication. He testified further that at the time of his plea he was not

fully explained the consequences of entering the plea.

He further testified that his lawyer advised him that if he went to trial

he might receive more time in prison. He further claimed that he did not

understand anything the judge told him in the guilty plea proceeding.

When pressed as to what he did not understand, he could not provide

much in the way of details.

The [S]tate presented no witnesses.

ANALYSIS

The petitioner argues that he received ineffective assistance of trial counsel, which

resulted in unknowing and involuntary guilty pleas.

Post-conviction relief “shall be granted when the conviction or sentence is void or

voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee

or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2012). The

petitioner bears the burden of proving factual allegations by clear and convincing evidence.

Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the

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findings of fact made by the court are conclusive on appeal unless the evidence

preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When

reviewing factual issues, the appellate court will not reweigh the evidence and will instead

defer to the post-conviction court’s findings as to the credibility of witnesses or the weight

of their testimony. Id. However, review of a post-conviction court’s application of the law

to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978

S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents

mixed questions of fact and law, is reviewed de novo, with a presumption of correctness

given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The

prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability

sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

In the context of a guilty plea, the petitioner must show a reasonable probability that were

it not for the deficiencies in counsel’s representation, he would not have pled guilty but

would instead have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985);

House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

Before a guilty plea may be accepted, there must be an affirmative showing in the trial

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court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242

(1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a showing that

the defendant was made aware of the significant consequences of the plea. State v. Pettus,

986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340). A plea is not

“voluntary” if it resultsfrom ignorance, misunderstanding, coercion, inducements, or threats.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if

the guilty plea is “knowing” by questioning the defendant to make sure he or she fully

understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858

S.W.2d at 904.

Because the plea must represent a voluntary and intelligent choice among the

alternatives available to the defendant, the trial court may look at a number of circumstantial

factors in making this determination. Blankenship, 858 S.W.2d at 904. These factors

include: (1) the defendant’s relative intelligence; (2) his familiarity with criminal

proceedings; (3) whether he was represented by competent counsel and had the opportunity

to confer with counsel about alternatives; (4) the advice of counsel and the court about the

charges against him and the penalty to be imposed; and (5) the defendant’s reasons for

pleading guilty, including the desire to avoid a greater penalty in a jury trial. Id. at 904-05.

In its order denying the petition, the post-conviction court concluded:

As for [the petitioner’s] claim that he failed to understand the full

consequences of his guilty plea, the [p]etitioner was unclear and not specific

about what he did not understand. Basically, he took the stand in the postconviction hearing and did nothing more than make generalized claims that he

did not fully understand what was occurring. When questioned further by the

court, however, he appeared to admit that he did have an understanding at the

time. In short, in light of his less than clear testimony and the abundantly clear

transcript of the guilty plea proceedings which evidence an understanding on

the [petitioner’s] part, this court resolves this issue against the petitioner and

concludes that he did have an adequate understanding of the consequences of

the guilty plea. Stated otherwise, the [p]etitioner has failed to carry his burden

of proof on this issue.

In summary, the [p]etitioner has failed to prove ineffective assistance

or that his guilty plea was unknowing, unintelligent, or involuntary.

It was the petitioner’s duty to provide a record that conveys a fair, accurate, and

complete account of what transpired with regard to his petition. See Tenn. R. App. P. 24(b);

State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). Our supreme court has held: “Where

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the record is incomplete and does not contain a transcript of the proceedings relevant to an

issue presented for review, or portions of the record upon which the party relies, an appellate

court is precluded from considering the issue.” State v. Ballard, 855 S.W.2d 557, 560-61

(Tenn. 1993) (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988)). This

court is to presume the trial court’s findings are correct if a relevant transcript is not included

in the record. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993); State v. Oody,

823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

The transcripts of the guilty plea hearing and the post-conviction evidentiary hearing

are not included in the record on appeal. The post-conviction court resolved the claims

raised by the petitioner by making credibility determinations upon the evidence presented.

Accordingly, we presume that the transcripts support the court’s findings and, therefore,

conclude that the petitioner is not entitled to post-conviction relief.

CONCLUSION

Based upon the foregoing authorities and reasoning, the judgment of the postconviction court is affirmed.

_________________________________

ALAN E. GLENN, JUDGE

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