IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 17, 2017 

JEWELL WAYNE SMITH, JR. v. STATE OF TENNESSEE

Appeal from the Circuit Court for Robertson County

No. 2011-CR-690 William R. Goodman III, Judge

No. M2017-00538-CCA-R3-PC

The Petitioner, Jewell Wayne Smith, Jr., appeals from the Robertson County Circuit 

Court’s denial of his petition for post-conviction relief from his 2013 best interest guilty 

plea to voluntary manslaughter, for which he is serving a thirteen-year sentence. The 

Petitioner contends that (1) his guilty plea was involuntary and (2) he received the 

ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which D. KELLY 

THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Joe R. Johnson II, Springfield, Tennessee, for the appellant, Jewell Wayne Smith, Jr. 

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant 

Attorney General; John W. Carney, District Attorney General; and Jason White, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

This case arises from the Petitioner’s April 1, 2013 best interest guilty plea to 

voluntary manslaughter. See North Carolina v. Alford, 400 U.S. 25 (1970). Pursuant to 

the plea agreement, the Petitioner was sentenced as a Range III offender, with the length 

of the sentence to be determined by the trial court. The court sentenced the Defendant to 

thirteen years’ incarceration and ordered consecutive service with an unrelated sentence.

Guilty Plea Proceedings

11/14/2017
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At the guilty plea hearing, the State’s recitation of the facts was as follows: 

The facts would show . . . the victim and the defendant had once 

been friends, but had developed a disagreement over some money and the 

night of the homicide that occurred on Blair Street, about 2005 Blair, about 

an hour or so before that homicide . . . the defendant pulled up in a green, I 

believe a Pontiac and got out and then probably thirty minutes or so, twenty 

minutes or so before the homicide, and Martel (phonetic) Black would say 

[that he] and the defendant and . . . Terrence Bigby, were in a car smoking 

marijuana when . . . the victim came by on his bicycle and bumped the 

car[.] [Martel Black would say] that [the victim] went on down the street. 

The [d]efendant got out of the car and had a weapon in his hand, he would 

describe it as a Smith and Wesson, .40 caliber and that [the defendant] 

made some comments about the victim and . . . Mr. Black would say that he 

called the victim multiple times to warn [the victim] about [the defendant] 

and this is corroborated by phone records[.]

The proof would show that the victim . . . went to April Davis’ house 

to see, to sit for phone calls and finally picked up on[ ]the last one and after 

talking, left to head back down the street to 2005 Blair. Ms. Davis will say 

that when [the victim] came in, he took a gun out and put it on the dresser 

drawers and when he left, he picked that gun back up[.]

[Corroborating witnesses] would then say . . . that the victim came 

down on his bicycle, got off his bicycle at 2005 Blair, it’s a housing 

authority duplex. There’s a tree there and . . . a couple of witnesses would 

say at that time that [the defendant] was . . . behind the tree, kind of in a 

dark area and that the victim got [off his bicycle] and [witnesses] could tell 

a conversation occurred and that shortly thereafter, a ray [sic] of gunfire, 

describe[d] anywhere between four to six . . . [and one witness] told me

seven[,] shots. Everybody described the gunfire going in one direction 

from the defendant to the victim. Nobody [saw] any gunfire coming back 

the other way and describes the victim is shot multiple times and from 

there—does not die immediately . . . gets up and goes down the street and 

waves for help. At that time, the [d]efendant, Mr. Smith, flees the scene.

At a trial, [the witnesses] we have . . . served, we’ve done a lot of 

going out and knocking on doors and getting people served and there’s a 

couple of people not served that were hiding from us. We have several . . . 

[witnesses] . . . say they saw the gunfire, but say they didn’t see [the 

defendant] actually do the shooting. One witness in [Tennessee 

Department of Correction] has . . . an aggravated conviction . . . that would 

be the only eyeball witness that we would have. [The defendant] gave a 
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statement . . . that if he testified, would say that the victim, he did shoot one 

time but that was only because the victim pulled the gun on him first. 

Would have a witness say that he did—the police weren’t sure where the 

crime scene occurred so it took them—because the victim had fled down 

the street, by the time they got up to the crime scene, most everything had 

been picked up. Out of all six shots, no shell casings—only one bullet 

found. No guns found. Would have one witness to say that he did pick up 

a gun, may or may not be the victim’s gun[.] So there is not a lot of 

physical evidence at the scene because the crime scene had been cleared or 

cleaned up before the police realized where the crime scene was. That 

would be the facts . . . to show—we do have an eyeball witness that would 

say the [d]efendant shot him [and] [o]ther witnesses that would corroborate 

that. Due to the circumstances of witnesses’ impeachment and not sure 

exactly what everyone is going to say on the stand—we even had one 

[witness] at the [preliminary hearing] to [change] her story, feel that this is 

the best interest of the State to take this settlement. 

At the guilty plea hearing, the trial court reviewed the plea agreement with the 

Petitioner, including the offense to which he was pleading guilty and the possible 

sentence he could receive. The Petitioner told the court that he understood the agreement 

and that he understood he was pleading guilty as a Range III offender even though he

qualified as a Range II offender. The court informed the Petitioner of his rights to a jury 

trial, to confront witnesses, to present witnesses in his defense, and to appeal a finding of 

guilt. When asked if the Petitioner waived those rights, he answered, “Yes.” The court 

asked the Petitioner whether he thought it was “in his best interest to enter this plea,” and 

he responded “Yes sir.” The Petitioner said that he did not have any questions for the 

court. 

The Petitioner was sentenced to thirteen years’ incarceration. He appealed his 

sentence, and this court denied relief. See State v. Jewell Wayne Smith, Jr., No. M2013-

01573-CCA-R3-CD, 2014 WL 683965 (Tenn. Crim. App. Feb. 20, 2014), perm. app. 

denied (Tenn. May 14, 2014). The Petitioner filed a post-conviction petition, alleging

that his guilty plea was involuntarily entered and that he received the ineffective 

assistance of counsel. 

Post-Conviction Proceedings

At the post-conviction hearing, the Petitioner testified that he was indicted for first 

degree murder, that counsel was appointed to represent him, and that he pleaded guilty to 

voluntary manslaughter. The Petitioner said he told counsel that the altercation with the 

victim occurred because the Petitioner knew the victim was involved in a murder and that 

the Petitioner acted in self-defense. 
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The Petitioner testified that counsel met with him three times but that counsel did 

not respond to his letters. The Petitioner said he filed a complaint with the Board of 

Professional Responsibility. 

The Petitioner testified that he met with counsel once before a court hearing and 

once before the trial date to discuss the State’s plea offer. The Petitioner stated that 

counsel told him that counsel was unprepared for trial, that the Petitioner faced a fiftyone-year sentence if convicted of first degree murder, and that the Petitioner should

accept the offer. The Petitioner said that they never discussed a self-defense theory and 

that he was coerced into accepting the offer because counsel was unprepared.

The Petitioner testified that he did not meet with counsel to prepare for the 

sentencing hearing and that counsel did not prepare witnesses for the hearing. The 

Petitioner said that counsel did not file an appeal, that he filed his appeal pro se, and that 

appellate counsel was later appointed. The Petitioner stated that appellate counsel 

appealed only the sentence and that the appeal was denied. The Petitioner said that facts 

supported his self-defense claim, that he told appellate counsel those facts, and that 

appellate counsel said it was a post-conviction issue. 

On cross-examination, the Petitioner testified that he and the victim had an 

altercation about the victim’s involvement in a murder. The Petitioner stated that he had 

witness statements and limited ballistic evidence. The Petitioner said that he “pretty 

much” knew the evidence the State would present if his case went to trial. 

The Petitioner testified that he pleaded guilty as a Range III offender but that he 

was classified as a Range II offender. The Petitioner admitted that during the plea 

colloquy, he said he understood he was pleading out of range but that he was “under 

duress, at the time because [he] wanted to go to trial . . . and didn’t know what to do.” 

The Petitioner stated that he knew he would be sentenced at the court’s discretion and 

that he was on probation when the current offense occurred. 

The Petitioner testified that he gave counsel the names of individuals to call as 

witnesses at the sentencing hearing and that counsel subpoenaed those individuals. The 

Petitioner stated that he decided to testify at the hearing, that he recalled counsel asking 

him why he pleaded guilty, and that he recalled answering “because the case, it . . . [has] 

too many ups and downs . . . it can go both ways.” The Petitioner did not recall saying at 

the hearing he had concerns about witnesses appearing in court but recalled his concerns 

about the lack of ballistic evidence. 

The Petitioner testified that he understood a best interest guilty plea to mean “it 

was in [his] best interests to take the State’s plea agreement or go [to court] with an 

unprepared lawyer.” The Petitioner stated that counsel did not explain the risks of 
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pleading guilty and that he was not in the “right state of mind” because he did not know 

what to do.

Counsel testified that he had been practicing law since 2004, that in the past he 

worked as an assistant district attorney general, and that he had tried two or three 

homicide cases. Counsel said that he now worked as a criminal defense attorney and that 

95% of his cases were criminal. 

Counsel testified that he provided discovery, telephone records, and ballistic 

evidence to the Petitioner. Counsel stated that he investigated the crime scene. Counsel 

stated that he summarized transcripts from the preliminary hearing and the discovery 

materials into a document for cross-examination purposes. Counsel said he spent about 

150 hours working on the Petitioner’s case. Counsel testified that one bullet was 

recovered from the crime scene and that it was shot from a .40-caliber gun. Counsel 

stated that the Petitioner gave the police a .45-caliber gun, that a witness saw the 

Petitioner with two guns the night of the shooting, and that one was a .40-caliber gun. 

Counsel testified that he met with the Petitioner for more than an hour explaining 

the physical evidence and eyewitness testimony the State would present at trial. Counsel 

stated that he and the Petitioner discussed a self-defense theory but that no physical 

evidence corroborated the theory. Counsel said he told the Petitioner that three witnesses 

saw the Petitioner under the tree during the shooting and heard gunshots. 

Counsel testified that he discussed the State’s plea offer with the Petitioner and

that they discussed “the pros and cons” of the case. Counsel stated that he told the 

Petitioner it was his decision to go to trial but “that under the circumstances, given the 

amount of risks . . . [counsel] thought it was a fair offer[.]” Counsel said that he 

explained the offer required the Petitioner to plead guilty to voluntary manslaughter as a 

Range III offender. Counsel stated that the Petitioner accepted the offer and that he 

reviewed the plea form twice with the Petitioner. Counsel said that he discussed the plea 

colloquy with the Petitioner and that he asked the Petitioner if he understood. Counsel 

stated that he did not recall the Petitioner’s having concerns about entering the plea and 

that the Petitioner “didn’t get upset about the plea deal until after sentencing.” Counsel 

testified that he prepared for the sentencing hearing and that he subpoenaed the 

appropriate witnesses. Counsel stated he advised the Petitioner that he could receive

consecutive sentencing with an unrelated sentence he was serving. 

On cross-examination, counsel testified that he met with the Petitioner about five 

times. Counsel stated that after the initial meeting, the Petitioner wrote a letter and had a 

family member call counsel’s office. Counsel stated that he did not discuss the 

Petitioner’s case with his family members because of the attorney-client privilege. 

Counsel said that he met with the Petitioner after the Petitioner wrote multiple letters to

the Board of Professional Responsibility, that he explained why he would not speak with 
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the Petitioner’s family, and that he would respond to the Petitioner’s letters if given time. 

Counsel stated that he was prepared for a trial and that he would have asked for a 

continuance if he were unprepared.

Counsel testified that the Petitioner did not sign the plea agreement until the 

morning of the hearing and that he answered the Petitioner’s questions about the 

agreement. Counsel said that he enjoyed working with the Petitioner and that the 

Petitioner received a “good outcome under the circumstances.” Counsel said he did not 

coerce the Petitioner into pleading guilty. 

Appellate counsel testified that he was appointed to represent the Petitioner, after 

the Petitioner had filed a notice of appeal. Appellate counsel said that sentencing was the 

only issue raised in the notice and that he did not raise an issue requesting review for 

plain error. 

After receiving the proof, the post-conviction court denied relief. The court 

determined that counsel adequately communicated with the Petitioner and that the 

Petitioner’s ineffective assistance of counsel claim was without merit. Based on the 

findings, the court implicitly credited counsel’s testimony. The court found that counsel 

reviewed the facts and applicable law with the Petitioner and consulted with the 

Petitioner numerous times regarding the State’s plea offer. The court determined that the 

Petitioner voluntarily and knowingly pleaded guilty. This appeal followed.

Post-conviction relief is available “when the conviction or sentence is void or 

voidable because of the abridgement of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A

petitioner has the burden of proving his factual allegations by clear and convincing 

evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are 

binding on appeal, and this court must defer to them “unless the evidence in the record 

preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 

1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction 

court’s application of law to its factual findings is subject to a de novo standard of review 

without a presumption of correctness. Fields, 40 S.W.3d at 457-58. 

I. Involuntary Guilty Plea

The Petitioner contends that his guilty plea was coerced because counsel was 

unprepared for a trial and that the Petitioner’s guilty plea was involuntary. The State 

responds that the Petitioner failed to show that counsel coerced the Petitioner into 

pleading guilty. We agree with the State.

The Supreme Court has concluded that a guilty plea must represent a “voluntary 

and intelligent choice among the alternative courses of action open to the defendant.” 
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Alford, 400 U.S. at 31. A trial court must examine in detail “the matter with the accused 

to make sure he has a full understanding of what the plea connotes and of its 

consequence.” Boykin v. Alabama, 395 U.S. 238, 243-44 (1969); see Blankenship v. 

State, 858 S.W.2d 897, 904 (Tenn. 1993). Appellate courts examine the totality of 

circumstances when determining whether a guilty plea was voluntarily and knowingly 

entered. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). A guilty plea is 

not voluntary if it is the result of “[i]gnorance, incomprehension, coercion, terror, 

inducements, [or] subtle or blatant threats.” Boykin, 395 U.S. at 242-43; see Blankenship, 

858 S.W.2d at 904. A petitioner’s representations and statements under oath that his 

guilty plea is knowing and voluntary create “a formidable barrier in any subsequent 

collateral proceedings [because] [s]olemn declarations . . . carry a strong presumption of 

verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

The record reflects that the Petitioner entered a knowing, intelligent, and voluntary 

best interest guilty plea. Counsel’s credited testimony reflects that he discussed the plea 

agreement and the State’s evidence with the Petitioner. Counsel reviewed the plea form 

twice with the Petitioner before he entered his plea. The guilty plea hearing transcript 

reflects that the Petitioner told the trial court he understood he was waiving certain rights 

by pleading guilty and that he did not have any questions about his plea. The Petitioner, 

upon questioning, did not express concern at the plea hearing about counsel’s 

competence, nor did he inform the court that he felt coerced into pleading guilty. The 

Petitioner said he understood that the court would determine the length of the sentence 

and that he would be sentenced as a Range III offender. The court asked the Petitioner 

whether it was in his best interest to plead guilty, and the Petitioner responded “Yes sir.” 

The Petitioner testified at the sentencing hearing that he pleaded guilty because his case 

has “too many ups and downs” and that it could “go both ways.” Likewise, counsel 

testified at the post-conviction hearing that he told the Petitioner that the Petitioner’s 

sentence might be imposed consecutively with the sentence the Petitioner was currently 

serving in incarceration. We conclude the record does not preponderate against the postconviction court’s findings that the Petitioner entered a knowing, intelligent, and 

voluntary guilty plea. The Petitioner failed to prove he is entitled to relief on this basis. 

II. Ineffective Assistance of Counsel

The Petitioner contends that he received the ineffective assistance of counsel, 

arguing that counsel was not adequately prepared for a trial or the sentencing hearing. 

The State responds that the Petitioner failed to prove that counsel provided deficient 

representation. We agree with the State. 

To establish a post-conviction claim of the ineffective assistance of counsel in 

violation of the Sixth Amendment of the United States Constitution, a petitioner has the 

burden of proving that (1) counsel’s performance was deficient and (2) the deficient 

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 
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(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). The Tennessee Supreme 

Court has applied the Strickland standard to an accused’s right to counsel under article I,

section 9 of the Tennessee Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 

(Tenn. 1989).

A petitioner must satisfy both prongs of the Strickland test in order to prevail in an 

ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove 

either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective 

assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the 

performance prong, a petitioner must show that “the advice given, or the services 

rendered . . . , are [not] within the range of competence demanded of attorneys in criminal 

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 

690. The post-conviction court must determine if these acts or omissions, viewed in light 

of all of the circumstances, fell “outside the wide range of professionally competent 

assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of 

hindsight, may not second-guess a reasonably based trial strategy by his counsel, and 

cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 

334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 

2008). This deference, however, only applies “if the choices are informed . . . based upon 

adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). 

To establish the prejudice prong, a petitioner must show that “there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id.

Counsel’s credited testimony at the post-conviction hearing reflects that he was 

prepared for a trial. Counsel investigated the crime scene, reviewed discovery, and 

summarized witness statements. Counsel said that he worked about 150 hours on the 

Petitioner’s case and that he provided the Petitioner with the discovery and the ballistic 

evidence. Counsel met numerous times with the Petitioner to review the evidence and to 

discuss the State’s plea offer. Counsel said he answered the Petitioner’s questions 

regarding the plea offer, that he subpoenaed witnesses for the sentencing hearing, and 

that he was prepared for the sentencing hearing. We agree with the post-conviction 

court’s determinations that counsel’s representation was not deficient. The Petitioner 

failed to establish his ineffective assistance of counsel claim and is not entitled to relief 

on this basis. 

The judgment of the post-conviction court is affirmed.

 ____________________________________

 ROBERT H. MONTGOMERY, JR., JUDGE