IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 6, 2018

ROBERT WADE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

Nos. 13-00145 & 13-01655 Chris B. Craft, Judge

No. W2017-01042-CCA-R3-PC

The Petitioner, Robert Wade, appeals from the Shelby County Criminal Court’s denial of 

his petition for post-conviction relief. The Petitioner contends that his plea agreement 

was not knowingly and voluntarily entered into because of his trial counsel’s ineffective 

assistance. Discerning no error, we affirm the judgment of the post-conviction court. 

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which TIMOTHY L.

EASTER and J. ROSS DYER, JJ., joined.

Eric J. Montierth, Memphis, Tennessee, for the appellant, Robert Wade.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Jose Francisco Leon, 

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

OPINION

FACTUAL BACKGROUND

In January 2013, the Petitioner was indicted in case number 13-00145 on one 

count of aggravated burglary and one count of theft of property valued at $1,000 or more 

but less than $10,000. The Petitioner was released on bond and then committed a second 

set of crimes which resulted in the April 2013 indictment in case number 13-01655 for 

one count of aggravated burglary, one count of vandalism valued at $1,000 or more but 

less than $10,000, and one count of theft of property valued at $500 or less. The State 

tried the Petitioner in case number 13-01655 and the jury convicted the Petitioner of 

aggravated burglary and the lesser-included offense of vandalism valued at more than 

$500 but less than $1,000. The State dismissed the theft charge.

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At the sentencing hearing for case number 13-01655, trial counsel informed the 

trial court that the State had made an offer to settle both cases. However, trial counsel 

stated that the Petitioner did not understand why he would not receive jail credits for both 

cases if they were served consecutively. The trial court explained to the Petitioner that 

his sentences in case numbers 13-00145 and 13-01655 were required by law to be served 

consecutively. The trial court then explained, at length, why the Petitioner could not 

receive jail credits for both sentences if they were to be served consecutively. At the end 

of the trial court’s colloquy, the Petitioner stated that he understood the trial court’s 

explanation.1 The Petitioner also asked the trial court about his offender classification 

and why the State would not offer him an alternative sentence.

The State announced that it would be willing to postpone the Petitioner’s 

sentencing hearing to give him some time to think about the proposed plea agreement. 

The Petitioner asked, “Can we just get it over with today?” At that point, the trial court 

took a recess to allow trial counsel to speak with the Petitioner. When they returned, the 

State announced that the Petitioner had accepted the plea agreement. The State explained 

that the Petitioner would receive an effective sentence of three years as a Range I,

standard offender in case number 13-00145 and an effective sentence of seven years as a 

Range II, multiple offender in case number 13-01655. The sentences for both cases 

would be served consecutively, for a total effective sentence of ten years.

The trial court explained to the Petitioner the applicable sentencing ranges that 

would apply had he gone to trial in case number 13-00145. The Petitioner, at that point 

under oath, stated that he understood this. The trial court then explained the sentencing 

alignment for each case and that the sentences for each case would be served 

consecutively. Again, the Petitioner stated that he understood. When asked by the trial 

court, the Petitioner stated that he wanted to accept the plea agreement. The trial court 

concluded that the Petitioner had entered into the plea agreement “freely and voluntarily”

as well as “knowingly and intelligently.” The trial court accepted the plea agreement.

The Petitioner filed three pro se petitions for post-conviction relief, alleging that 

his plea agreement was not knowingly and voluntarily entered because he believed that 

his sentences were to be served concurrently.2 Counsel was appointed to represent the 

Petitioner in this matter, but no amended petition for post-conviction relief was filed. 

The post-conviction court held an evidentiary hearing on April 7, 2017, at which the 

Petitioner and trial counsel testified.

 

1

The Petitioner was not under oath during this exchange.

2

The Petitioner also raised several claims that trial counsel was ineffective for various reasons. However, 

this opinion will focus solely on the claim raised in the Petitioner’s brief. All other claims have been 

waived. See Tenn. R. App. P. 36(a).
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The Petitioner claimed that he was innocent of offenses charged in case number 

13-01655. However, he admitted that he committed the offenses charged in case number 

13-00145. The Petitioner claimed that he only accepted the State’s plea offer because he 

was afraid of what would happen to him if he was convicted of a crime he actually had 

committed given his belief that he was wrongfully convicted in case number 13-01655. 

The Petitioner further claimed that he believed his sentences would be served 

concurrently because “that was . . . the way they explained it to” him. The Petitioner 

testified that he only “kind of, sort of” understood the trial court’s explanation of his 

sentencing and that he “just was saying yes to it” because he “just was trying to get it on 

out of the way.”

Trial counsel testified that he explained to the Petitioner that his sentences in case 

numbers 13-00145 and 13-01655 would have to be served consecutively. Trial counsel 

recalled that the Petitioner did not understand why he could not receive jail credits toward 

both sentences if they were served consecutively. Trial counsel noted that this was “a 

pretty common misunderstanding.” Trial counsel testified that he explained to the 

Petitioner why he would not receive jail credits toward both sentences if he accepted the 

State’s plea offer and then had the trial court explain it to the Petitioner. Trial counsel 

testified that the Petitioner “seemed to understand” their explanations.

Trial counsel noted that if the Petitioner had taken case number 13-00145 to trial, 

he would have been sentenced as a Range II, multiple offender and would have a 

sentencing range of six to ten years. Instead, the Petitioner was sentenced as a Range I,

standard offender and received a three year sentence as part of the plea agreement. Trial 

counsel testified that he advised the Petitioner that this was the best offer the State had 

proposed and explained to the Petitioner that he faced a significantly longer sentence if he 

went to trial on case number 13-00145 and lost. 

On May 22, 2017, the post-conviction court entered a written order denying 

post-conviction relief. The post-conviction court found the Petitioner’s testimony at the 

evidentiary hearing “completely lacking in credibility.” The post-conviction court further 

found that trial counsel and the trial court “took great pains to [e]nsure that [the 

Petitioner] understood the nature and the consequences” of the plea agreement. The postconviction court concluded that the Petitioner had failed to establish the allegation that 

his plea agreement was not knowingly and voluntarily entered. The Petitioner now 

appeals to this court.

ANALYSIS

The Petitioner contends that his plea agreement was not voluntarily and knowingly 

entered into. The Petitioner argues that trial counsel was ineffective in failing to properly 

explain the consecutive nature of his sentencing. The Petitioner maintains that he 
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believed he was receiving concurrent sentences when he entered into the plea agreement. 

The State responds that the post-conviction court did not err in denying the petition.

The burden in a post-conviction proceeding is on the petitioner to prove his 

allegations of fact supporting his grounds for relief by clear and convincing evidence. 

Tenn. Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 

2009). On appeal, we are bound by the post-conviction court’s findings of fact unless we 

conclude that the evidence in the record preponderates against those findings. Fields v.

State, 40 S.W.3d 450, 456 (Tenn. 2001). Additionally, “questions concerning the 

credibility of witnesses, the weight and value to be given their testimony, and the factual 

issues raised by the evidence are to be resolved” by the post-conviction court. Id. 

However, we review the post-conviction court’s application of the law to its factual 

findings de novo with no presumption of correctness. Id. at 457.

Post-conviction relief is available when a “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. 

Criminal defendants are constitutionally guaranteed the right to effective assistance of 

counsel. Dellinger, 279 S.W.3d at 293 (citing U.S. Const. amend. VI; Cuyler v. Sullivan, 

446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made 

under the Sixth Amendment to the United States Constitution, the burden is on the 

petitioner to show (1) that counsel’s performance was deficient and (2) that the 

deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see

Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993).

Deficient performance requires a showing that “counsel’s representation fell 

below an objective standard of reasonableness,” despite the fact that reviewing courts 

“must indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires 

proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Id. at 694. “Because a petitioner must 

establish both prongs of the test, a failure 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). The Strickland standard has been applied to the right to 

counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772 

S.W.2d 417, 419 n.2 (Tenn. 1989).

In the context of a guilty plea, like the present case, the effective assistance of 

counsel is relevant only to the extent that it affects the voluntariness of the plea. 

Therefore, to satisfy the second prong of Strickland, the petitioner must show that “there 

is a reasonable probability that, but for counsel’s errors, he would not have [pled] guilty 

and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see 
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also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). However, we note 

that a petitioner’s “[s]olemn declarations in open court carry a strong presumption of 

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

A petitioner’s sworn responses to the litany of questions posed by the trial 

judge at the plea submission hearing represent more than lip service. 

Indeed, the petitioner’s sworn statements and admission of guilt stand as a 

witness against the petitioner at the post-conviction hearing when the 

petitioner disavows those statements. 

Alfonso C. Camacho v. State, No. M2008-00410-CCA-R3-PC, 2009 WL 2567715, at *7 

(Tenn. Crim. App. Aug. 18, 2009). 

Here, the Petitioner has failed to prove his factual allegation by clear and 

convincing evidence. The Petitioner claimed at the evidentiary hearing that he believed 

he would receive concurrent sentences when he entered into the plea agreement. The 

post-conviction court found the Petitioner’s testimony to be “completely lacking in 

credibility.” The evidence in the record does not preponderate against that finding. Trial 

counsel testified that he explained to the Petitioner that his sentences in case numbers

13-00145 and 13-01655 had to be served consecutively. Trial counsel also testified that 

he and the trial court explained to the Petitioner why he could not receive jail credits

toward both sentences if they were being served consecutively. Trial counsel recalled 

that this was “a pretty common misunderstanding” and that the Petitioner “seemed to 

understand” their explanation. 

Furthermore, the transcript of the guilty plea submission hearing belies the 

Petitioner’s claims. The trial court spent a significant amount of time explaining to the 

Petitioner why he could not receive jail credits on both sentences, and the Petitioner 

stated that he understood the trial court’s explanation. The trial court also explained the 

consecutive nature of the Petitioner’s sentences. The Petitioner stated, under oath, that he 

understood and that it was his desire to enter into the plea agreement. As such, the 

evidence supports the post-conviction court’s conclusion that the Petitioner knowingly 

and voluntarily entered into the plea agreement. Accordingly, we conclude that the 

post-conviction court did not err in denying the petition.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgment of 

the post-conviction court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE