### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs F eb ru ar y 8, 200 5

MA RK ALA N D EAK INS v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Ham ilton Coun ty

No. 245236 Steve n M. Bevil, Jud ge

No. E2004-01803-CC A-R3- P C - July 5, 2005

Th e pe tit ion e r, Ma

rk Al a n D e akin s, ple d g uil ty in the Ha mil ton Cou nty Cr imi na l Cou rt to e sp e c ia lly ag g ravated sexual ex ploitation of a minor, sexual ex ploitation of a minor , and statutory rape and

rec eived a n eff

ective e leven- y ea r sentenc e to be se rved a s one y ear in jail and the re mainder on proba ti o n

. Su b s e q u e n tl y , th e p e ti ti o n e r f il e d a p o s t- c o n v ic ti o n p e ti ti o n , a ll e g in g th a t he was pr os e c ute d u nd e r u nc on sti tut ion a l statut e s a nd in vio la tio n of e x pos t f a c to c on sti tut ion a l pr ov isi on s. The trial court denied post-conviction relief

. Upon revie w of the rec ord and the parties’ brief s, we

a ff ir m th e jud g me nt o f the tr ia l c ou rt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

N OR MA M C G EE O G LE , J
., delivere d the opinion of the court, in which J OS EP H M. T I PTON , a n d J. C. M C L IN , J J ., joined.

Wad e Hi nto n a ndDa nie l J. Rip pe r, Chatta no og a , T e nn e sse e , f or the app e lla nt, Ma

rk Al a n D e akin s.

Paul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; John H. B le ds oe , I I I , A ssi sta nt A tto rn e y Ge ne ra l; Wil liam H. Cox
, I I I
, District Attorney Gene ral; and Y olanda Mitche ll, Assist ant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I. F ac tu al B ac kgr ound

Th e pr oc e du ra l hi sto ry

in this c a se is co mpl e x, a nd the pe tit ion e r ha s not i nc lud e d th e g uil ty plea he aring transcript or motions filed i n the t rial court in the appellate r ecor d. Howeve r, we g lean the following fac ts from the petitioner’ s petitions for post-conviction re lief and the trial court’ s order deny ing r elief: In Aug ust 1998, the petitioner took digital photog raphs of two minor boy s eng ag ing in s e xua l a c tiv ity

a nddig ita l ph oto g ra

ph s of him se lf e ng a g ing in se xua l a c tiv ity wi th on e of the bo y s. The boy s went to the police, w ho obtained a se arc h war rant a nd sea rc h ed t h e petitioner’s home. During the sea

rch, the police seiz ed the petitioner’s computer, s ever al computer disks, and a dig ital-2-

c a me ra . O n O c tob e r 2 8, 19 98
, the Sta te c ha rg e d thepe tit ion e r w ith tw e nty -thr e e c ou nts of e sp e c ia lly ag g ravated sexual ex ploitation of a minor and two counts of statutory ra p e pursuant to Tenne ssee Code Annotated se ctions 39-17-1001 to 1007, the Tenne ssee Protec tion of Children Ag ainst Sex ual Expl oit a tio n A c t ( PCSE A) . T he pe tit ion e r r e ta ine d a n atto rn e y , a ndthe a tto rn e y fi le d a mot ion to dismiss the cha

rg es on the ba sis that after the petitioner wa s indi ct ed, the legislature amende d the definition of “material” in Tenne ssee Code Annotated section 39-17-1002 to include “[ a]ny text or imag e stored on a computer hard drive, a computer disk of any type, or any other medium desig ned to store information for

later r etrieva l.” See Te nn. Code Ann. § 39-17-1002( 2)(C). I n the motion, the pe tit ion e r a lle g e d th a t the Sta te ’s c ha rg ing him un de r the a me nd e d s ta tut e vio la te d e x pos t f a c to prohibitions. The trial court denied the motion, holding that the ame ndment clarified, not enlar g ed, the t y p e o f m at er i al prohibited by the Act. The petitioner’s attorney filed an a

pplication for interlocutory

revie w but withdrew the application when the petitioner ag ree d to a cce pt a plea of fer by the State. B efor e the plea could be f

inalized, the petitioner absconde d.

I n J uly 2001, the petitioner wa s capture d in Florida. The petitioner’s fir st attorney withdrew, and anothe r attorne y

was a ppointed to his case. In Dec ember 2001, the petitioner’s se cond attorne y withdrew, a nd the trial court appointed a third attorney

. On J anuary 28, 2002, the petitioner’s third attorney filed a moti on to dismi ss, ag ain ar g uing e x post facto pr ohibitions . The trial c ourt denied the motion, and the petitioner filed an application for interlocutory

revie w, which this court de nied. The pe titioner’s third attorney withdrew, a nd the trial court appointed a f ourth attorney

to repre sent him. On J uly

8, 2003, the petitioner pled g uiltyto espec ially ag g ravated sexual ex ploitat i o n o f a min or , a Cla ss B fe lon y ; se xua l e xploi ta tio n o f a min or , a Cla ss E fe lon y ; a nd statut ory ra pe , a Cla ss E felony . The trial c ourt sentenc ed him to an ef fec tive sentenc e of eleven y ear s to be serve d as one
y ear in confineme nt and the rema inder on probation. With t ime serve d, the petitioner wa s relea sed from jail. Subsequently
, the petit ioner filed a petiti on for post-conviction relief and sever al amende d petitions, alleg ing that he rec eived the ineffe ctive assistance of trial counse l because his various trial attorney s failed to arg ue that the P CSEA is unconstitutionallyvag ue and ove rbroa d, that the State’s pr os e c uti on of

him in l ig ht o f the a me nd e d d e fi nit ion of “ ma te ri a l” violat ed ex po st fa c to pr oh ibi tio ns , an d tha t his fou rth att orne y faile d to re se rv e a c e rt if ie d q ue sti on of

la w r e g ard ing the se i s s u e s w h e n h e p l e d g u i l t y.

At the evidentiary

hearing, the petitioner’s fourth attorney testified that he had been prac ticing law since 1989 and had handled sever al hundred criminal case s. The trial court a ppointed him to represe nt the petitioner in May 2002, and he spoke with the petitioner se vera l times about the petitioner’s c ase. H e also talke d with the petit ioner’s first and third attorne y s. The petitioner’ s third attorney told him about som e of the issues she had raised, including a n ex post fac to issue that resulted f rom the PCSEA being a mended a fter the petitioner was char g ed with the crimes. He state d that he did no t c o n s id e r f il in g a mo ti o n to d is mi s s b a s e d o n th e e x p o s t f a c to is s u e b e c a u s e the petitioner’s fir st and third attorney s had alre ady done so. The petitioner’s third attorney told him t hat afte r the trial c ourt denied her ex post fac to motion, s he filed a n application for interlocutory

appea l with this court, which this court denied. T he petitioner de cided to plea d g uiltyso that he could g et out of jail. The petitioner’ s fourth attorne y testified that if the pe titioner had g one to trial and be en convicted, he would have r aised the A ct’s vag ueness on a ppeal a nd that he ex p l ai n ed this to t he-3-

petitioner. He said he was not fa miliar with Ashcroft v. Free Speech Coa lition, 535 U.S . 234, 122 S. Ct

. 1389 (2002). The petitioner’s fourth attorney saw the pe titioner two or three times after the petitioner pled g uilty , and they never discussed the pe titioner withdrawing the plea.

On cr oss-examination, the petitioner’s fourth attorney tes t i fi ed that the petitioner never ind ic a te d th e pe tit ion e r w a s u nh app y wi th h is r e pr e se ntatio n. At so me po int

du ri ng his repr esen tation, the State offe red to let the pe titioner plead g uilty . The pe titioner probably “ag onized” over the o ff

er be cause the petitioner be lieved the PCSEA was unconstitutional. The petitioner’ s fourth attorne y

asked the State if the pe titioner could rese rve the constitutionalit y of the statute a s

a ce rtified question of law , but the State ref used. The attorney

told the petitioner about the State’s

r e f u s a l
, a n d t h e p e t i t i o n e r

d e c i d e d t o p l e a d g u i l t y.
The pe titioner’s third attorney testified that she had been prac ticing law for about seve nteen y ear s and re prese nted the petitioner f or seve ral months. She stated that the c onstitut ionality of the PCS EA wa s the primary

issue in the petitioner’s c ase be cause the Act wa s amende d soon after the petitioner wa s indicted. S h e b eli eved the amendment implicated e x post facto c oncerns, and she filed a motion raising the issue in the trial court. The trial court denied the motion, and the pe tit ion e r’ s thir d att orne y fi le d an app lic a tio n for int e rl oc uto ry app e a l with thi s c ou rt . H ow e ve r, thi s court de nied the motion because she f ailed to attac h a necessary document to the application. The petitioner’s third attorne y stated that sh e co u l d have attached thedocument and r efiled the application but that he r repr esentation of the petitioner ended befor e she had a c hance to do so. She

sa id s he be lie ve d th e PCSE A w a s u nc on sti tut ion a l.

Th e pe tit ion e r t e sti fi e d th a t the po lic e fo un d a c omp ute r d isk

du ri ng the ir

se arc h o f h is h ome but that there were no pictures on the disk be cause they had bee n era sed. The pe titioner talked about an ex post facto issue with his third attorney , and she f iled a motion raising the issue in the trial court. Af ter his th i rd at torney

withdrew, the petitioner talked w ith his fourth attorney a couple of tim e s ove r the te le ph on e

. Ho we ve r, the y did no t mee t for tw o or thr e e mon ths a nd didno t di sc us s the pe tit ion e r’ s c a se . T he pe tit ion e r ha d b e e n in ja il thirte e n mo nth s a ndsu ff e re d f ro m pa nic disorder. A fter he pled g uilty , he wa s rele ased from confine ment. Two we eks af ter his re lease , the pe tit ion e r l e arn e d a

bo ut the Un ite d S tat e’s Sup re me Cou rt ’s de c isi on in A sh c ro ft a ndwe nt t o h is fourth attorne y ’s offic e. He said that if he had known his “ appea l c hance had not bee n destroy ed .

. . [he] would not ha ve enter ed that plea.” On cross-e x amination, the petitioner a cknowledg ed that he knew he could a

ppeal his ca se if he had gone to trial and been convicted. Howeve r, he did not know what issues c ould be appealed. He said that he ple d g uiltybeca use he did not wa nt to wait for a trial date and wanted to g et out of jail. He state d that when his fourth attorney told him about the State’s plea offe r, the attorney told him the State would not a llow him to re serve a ce rtified question

o f l a w

. H e a c k n o w l e d g e d t h a th e p l e d g u i l t y w i l f u l l y.
The pe titioner’s first attorne y testified for the State that he had be en p ra ct i cing law for
tw e nty -o ne y e ars . H e re la te d th a t he fi le d a mot ion to sup pr e ss ev ide nc e a nda mot ion de a lin g wi th the ex post fac to issue. The trial court ruled ag ainst the defense on both motions, and the attorne y filed an a pplication for inter locutory appea l on the ex post fac to issue, which this court denie d. The-4-

State offe red to let the petitioner plead g uilty and allow the petitioner to rese rve c ertified que stions of law reg arding the suppression of evidenc e and ex post fac to. T he petitioner de cided to ac cept the ple a bu t “ wa sn ’t

re a l ha pp y abo ut i t.” On the da y

of the g uil ty ple a he ari ng , th e pe tit ion e r f

a ile d to appea r in c ourt. The petitioner’s attorney went to the petitioner’s home a nd discovere d that he had moved.

The pe titioner’s third attorney was rec alled as a witness for the State. She te stified that she told the petitioner he would proba bly be convic ted if he w ent t o t ri al b u t that he could ra ise the constitutionalit y

of the statute on a

pp ea l

. She said that befor e she w as appointed to re prese nt the petitioner, the State made a plea offe r, which allowed the petitioner to r eser ve certified questions of law. Howe ver, the petitioner absc onded bef ore the g uilty plea he aring . She said that when the trial

c ou rt app oin te d h e r t o r e pr e se nt the pe tit ion e r, sh e a sk e d th e Sta te fo r the sa me of fe r, bu t th e Sta te ref used. Subsequently , the State ag ree d to let the petitioner plea d g uilty and re serve a ce rtified question of law, but the pe titioner ref used the off

er.

Th e tr ia l c ou rt

he ld that th e PCSE A’ s b a n a g a ins t a c tual, as oppo se d to virtua l, c hil d pornog raphy , is not overbroa d pursuant to Ashcro ft

. The trial c ourt also held that pursua nt to an

earli er decision by

this court, the statute is not vag ue under the fa cts of the pe titioner’s ca se. See State v. Bobby

Gene Fa lin, 1993 Tenn. Crim. App. LEXI S 393 (Knox v i l l e, J une 22, 1993). Re g ard ing the pe tit ion e r’ s e x pos t f a c to c la im, the tr ia l c ou rt

he ld that th e iss ue ha d b e e n p re vio us ly determined. The trial c ourt noted that the pe t i t i oner ple d g uiltyin order to be rele ased f rom confine ment and held that he was not pre judiced by

his attorney s’ failing to raise these issues and
t h a th i s g u i l t y p l e a

w a s k n o w i n g a n d v o l u n t ar y.

On app e a l, the pe tit ion e r c la ims that he re c e ive d th e ine ff e c tiv e a ssi sta nc e of

c ou ns e l be c a us e his tria l attorney s did not challeng e the c onstitut ionality of the PCSEA. Specifically , he conte nds that the terms “material” and “posse ss” in the PCS EA are unconstitutionally vag ue and ove rbroa d

a n d u n c o n s t i t u t i o n a l i n l i g h to f t h e A s h c r o f

td e c i s i o n

. In a d d i t i o n , h e c o n t e n d s t h a th i s a t t o r n e ys

never informed him t hat he could pl ead g uiltyand re serve the issue of the A ct’s constitutionalityas

a ce rtified question of law

. Finally
, he conte nds that his guilty plea wa s not knowing a nd voluntary beca use his attorney s failed to inform him that the amende d definition of “mate rial” in the PCSEA was be ing a

pplied retroa ctively

in violation of ex post facto pr ovisions.

II. Ana lys is

To be succ essful in his claim for post-conviction relief , the petitioner must prove a ll factua l alleg ations contained in his post-conviction petiti on by clea r and c onvincing evidenc e. See T enn. Code Ann. § 40-30- 110(f) (2003). “‘Clea r and convincing evidenc e means evidenc e in which there is no serious or sub s t anti al doubt about the cor rec tness of the c onclusions drawn f rom the

e vid e nc e .’ ” Sta te v. Ho lde r, 15 S.W. 3d90 5, 91 1 ( Te nn . Crim. Ap p. 1999 ) ( qu oti ng Ho dg e s v . S. C. Toof & Co., 833 S.W .2d 896, 901 n.2 (Tenn. 1992) ). I ssues reg arding the cr ed i b ilityof witnesses, the we ight a nd value to be a ccor ded their te stimony , and the f actua l que stions ra ised by the evidenc e adduc ed at tria l are to be resolved by the pos t-conviction court as t he trier of fact. S ee-5-

Henley v

. S t at e, 960 S.W.2d 572, 579 (Tenn. 1997). The ref ore, w e af

ford the post-c onviction court’s findings of fac t the weig ht of a jury verdic t, with such findings be ing c onclusive on appe al absent a showing that the evidenc e in the re cord pr eponder ates a g ainst those finding s. I d. at 578.

A c la im o f i ne ff

e c tiv e a ssi sta nc e of c ou ns e l is a mixe d que sti on of la w an d fa c t. See Sta te v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999) . We will review the post-c onviction court’s finding s of fac t de novo with a pre sumption t hat those finding s are corr ect. See Fields v. State, 40 S.W.3d 450, 45 8 ( Te nn . 2 00 1) . H ow e ve r, we wi ll r e vie w the po st- c on vic tio n c ou rt ’s c on c lus ion s o f l a w p ur e ly de novo. I d.

“To e stablish inef

fective assistance of counse l, the petitioner bea rs the burde n of proving both that counsel’s perf

ormanc e was defic ient and that the defic iency prejudice d the defe nse.” G oad v. State, 938 S.W .2d 363, 369 (Tenn. 1996) (citing S t ri ckland v. W ashing ton, 466 U.S. 668, 687, 104 S. Ct . 2052, 2064 (1984))

. I n evaluating whether the petitioner has met this burde n, this court must determine whe ther c ounsel’s per fo rm ance was within the ra ng e of c ompetence require d of

a tto rn e y s in c ri min a l c a se s. Se e B a xter v. Ros e , 5 23 S.W. 2d93 0, 93 6 ( Te nn . 1 97 5) . M or e ov e r, in the context of a g uiltyplea, “ the petitioner mu s t s how ‘pre judice’ by

demonstrating that, but for counsel’s e rror s, he would not have p l ea d ed gu iltybut would have insisted upon g oing to tria l.” Hi c ks v. Sta te , 9 83 S.W. 2d24 0, 24 6 ( Te nn . Crim. Ap p. 19 98 ); se e a lso Hi ll v . L oc kh art , 4 74 U. S. 52, 59, 106 S. Ct . 366, 370 (1985).

Although the petitioner’s brie f ra ises sever al issues reg arding his claim that he re ceive d the ine ff e c tiv e a ssi sta nc e of

c ou ns e l a ndthat hi s g uil ty ple a wa s n ot kno wi ng a nd vo lu nt ary , h is arg ument is center ed mainly around the constitutionalit y of the PCSEA. Howeve r, we need not

re a c h the qu e sti on of the c on sti tut ion a lit y of the Ac t in thi s c a se

. F ro m the te sti monyat t he p os tconviction hea

ring , it is evident that the petitioner was w ell awa re of th e co n s t i t u t ional issues surrounding his case. H is attorney s testified that they discussed these issues with him. The e vidence shows that the State made thr ee of fer s to the petitioner. I n the first off er, the S t ate a llowed the p e ti ti o n e r to r e s e r v e c e r ti f

ie d q u e s ti o n s o f

la w r e g ar d in g th e A c t. T h e p e ti ti o n e r ’ s f ir s t att o r n ey testified that th e p et i t ioner de cided to ac cept that of fer but fled Tenne ssee be fore his guilty plea hearing. In the sec ond offe r, the State a g ain allowed the petitioner to plead g uil t y an d re s erve a

certified question of law r eg arding the constitutiona l i t y o f t h e statute. How ever , the petitioner declined that offer . I n the S tate’s third and final offe r, i t allowed the pe titioner to plead g uiltyand

rec eive a n eff

ective e leven- y ear

sentenc e to be s erved as a y ear in confineme nt and the re mainder of the sente nce on pr obation. Wit h time al re ad y s er v ed, the pe titioner would be re lease d from confine ment. Howeve r, the State re fused to allow the pe titioner to reser ve a cer t i fi ed q u est ion of law. The petitioner’s fourth attorney testified that the petitioner probably “ag onized” over w hether
to a c c e pt the Sta te ’s of fe r b e c a us e the pe tit ion e r b e lie ve d th e Ac t w a s u nc on sti tut ion a l. Ne ve rthe le ss, the pe tit ion e r te sti fi e d that he a c c e pte d th e of fe r b e c a us e he wa nte d to g e t ou t of ja il. We conclude that the petitioner was we ll awar e of the issues surrounding the constitutionalityof the A c ta n d m a d e a

c o n s c i o u s d e c i s i o n t o a c c e p tt h e S t a t e ’ s o f f e r

. H e h a s f

a i l e d t o s h o w t h a th is

a t t o r n e ys ’ p e r f

o r m a n c e w a s d e f

i c i e n to r t h a th e w a s p r e

j u d i c e d b y a n y d e f

i c i e n c y.-6- III. Conclusi on

Ba sed upon the re cord a nd the parties briefs, we aff irm the trial court’s denial of the petition for post-c onviction relief.

___________________________________ NORMA McGEEOGLE, J UDGE