IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 1, 2012

JARVIS McCLAIN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 09-03569 Carolyn Wade Blackett, Judge

No. W2011-02124-CCA-R3-PC - Filed February 14, 2013

Petitioner, Jarvis McClain, entered a guilty plea in the Shelby County Criminal Court to

especially aggravated robbery and received the agreed-upon sentence of thirteen and one-half

years in prison as a mitigated offender to be served at 100% release eligibility. He filed a

petition for post-conviction relief, which was denied after an evidentiary hearing. In this

appeal, petitioner claims that trial counsel was ineffective for several reasons: (1) failing to

explain the terms of his plea agreement; (2) failing to explain the range of punishment for

the offense for which petitioner was indicted; and (3) failing to disclose to petitioner

evidence discovered by the investigator. He also claims that the ineffective assistance of

counsel rendered his guilty plea involuntary. Following our review, we affirm the judgment

of the post-conviction court.

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

ROGER A. PAGE,J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and

NORMA MCGEE OGLE, J., joined.

Zipporah C. Williams, Memphis, Tennessee, for the appellant, Jarvis McClain.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;

Amy P. Weirich, District Attorney General; and Lora Fowler, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Facts and Procedural History

The State recited the following factual basis underlying petitioner’s January 15, 2010

guilty plea:
Had [petitioner] gone forward to trial[,] the [S]tate would have shown

that on September 25, 2008, the victim, Mr. Thomas, was walking from Castle

(phonetically) Convenient [sic] Store, which is located at 2512 Park, which is

located in Memphis, Shelby County, when he was approached by an

acquaintance by the name of Jarvis McClain, who demanded money from him

at gunpoint.

[The victim] attempted to run, at which time he was shot twice in the

leg. [Petitioner] then caught up with [the victim], they struggled over the gun,

but [the victim] in the end lost that battle and a sum of money was taken from

[the victim’s] possession.

[Petitioner] then jumped into a car with another acquaintance of [the

victim], a Timothy Jones[,] and did leave the scene.

At that time, trial counsel informed the court that petitioner did not stipulate to the

“exact facts” as read, but he wished to enter a best-interest plea. The plea colloquy followed:

THE COURT: [T]his is a petition for waiver of trial by jury and a

request for the acceptance of a guilty plea, did you sign

this?

PETITIONER: Yes, sir.

THE COURT: [Did trial counsel] go over this with you and explain it to

you?

PETITIONER: Yes, sir.

THE COURT: Do you understand it?

PETITIONER: Yes, sir.

THE COURT: Do you understand what you are charged with?

PETITIONER: Yes, sir.

THE COURT: Do you understand what you’re pleading guilty to?

PETITIONER: Yes, sir.

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THE COURT: Do you have any question, at all, about the charges?

PETITIONER: No, sir.

THE COURT: You understand you don’t have to plead guilty, you do

have a right to go to trial?

PETITIONER: Yes, sir.

. . . .

THE COURT: You have a right to have a sentencing hearing. If you got

convicted on this[,] you could have been facing

anywhere from fifteen to sixty years in the penitentiary,

do you understand that?

PETITIONER: Yes, sir.

THE COURT: Also, you need to understand that this offense is a violent

offense[,] and the punishment is without parole. You

have to be served [sic] at 100%[,] there is no parole, do

you understand that?

PETITIONER: Yes, sir.

. . . .

THE COURT: Is [pleading guilty] what you want to do?

PETITIONER: Yes, sir.

THE COURT: Is anybody making you plead guilty?

PETITIONER: No, sir.

THE COURT: Do you understand that this is going to be on your record,

if you get arrested again?

PETITIONER: Yes, sir.

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THE COURT: You need to understand, first, that this is a crime of

violence, which means in the future if you get arrested

for other crimes of violence, this conviction could be

used to increase your punishment for life in prison, do

you understand that?

PETITIONER: Yes, sir.

. . . .

THE COURT: Are you satisfied with [trial counsel] and whatshe’s done

for you?

PETITIONER: Yes, sir.

THE COURT: Have any complaints about her?

PETITIONER: No, sir.

THE COURT: Do you have any questions, at all, about what you’re

doing?

PETITIONER: No, sir.

THE COURT: This what you want to do?

PETITIONER: Yes, sir.

THE COURT: Are you sure?

PETITIONER: Yes, sir.

The trial court determined that petitioner entered his guilty plea freely and voluntarily,

without threats or coercion, and accepted the plea.

Petitioner filed a timely petition for post-conviction relief and a subsequent amended

petition after appointment of private counsel in which he alleged that his guilty plea was not

knowingly entered and that trial counsel was ineffective for failing to fully advise him of the

details of his plea agreement. The post-conviction court held a hearing on August 9, 2011,

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and denied relief by written order dated September 14, 2011. At the hearing, the court heard

the following evidence:

Petitioner testified that he entered a guilty plea to one count of especially aggravated

robbery in exchange for the agreed-upon sentence of thirteen and one-half years in prison to

be served at 100%. He stated that he received a discovery packet from trial counsel and

reviewed portions of it with her. He met with trial counsel every time he had a court date.

When petitioner had to decide whether to plead guilty or stand trial, trial counsel met with

him to discuss his options. Petitioner asked questions of trial counsel, which she answered.

Trial counsel informed petitioner that she had retained an investigator to assist in preparing

his case. One of the investigator’s tasks was to visit the neighborhood, inquire about the

victim, and investigate the store that was the scene of the crime. Petitioner stated that trial

counsel “only briefly” reported the investigator’s findings to him. He said that the

investigator learned that the victim was a known drug dealer but nothing more. After

petitioner entered the guilty plea, he learned that the victim had been incarcerated several

times and that he had a pending drug charge. Petitioner claimed that had the information

concerning the victim’s criminal history been known to him prior to pleading guilty, he

would not have entered the plea.

Petitioner explained that his sentence, as he understood it, was thirteen and one-half

years at 100%, “but by law they take fifteen percent, so it’s eighty-five. So . . . at – thirteen

point five[,] I’m looking anywhere to do about ten years before I even see the streets.”

Petitioner testified that trial counsel did not explain the sentence to him but simply instructed

him to “sign for the thirteen or go to trial.” He then corrected his testimony, saying that trial

counsel explained to him that he was going to serve day-for-day because the sentence was

to be served at 100%. Petitioner denied having any learning disabilities or mental health

issues but stated that he could not understand some of the things trial counsel tried to explain

to him about his plea. He stated that trial counsel tried to “break it down” as best as she

could so he could understand.

Petitioner testified that other than a juvenile charge, he did not have a criminal history

and did not have pending cases when he entered the guilty plea. He claimed that trial counsel

did not explain to him how his record would affect sentencing. He said that trial counsel told

him that if he did not accept the State’s plea offer, he could be facing life in prison. He

agreed that he entered a “best interest” plea. Petitioner recalled reviewing the plea agreement

paperwork with trial counsel prior to entering the courtroom. He also recalled answering

affirmatively when the trial court asked him if he understood the terms of the plea. However,

petitioner testified that he entered the plea because he “felt like that was [his] only option”

and because “[t]hirteen sound[ed] better than life. . . .” He did not inform the trial court that

he did not understand the plea or halt the plea submission hearing because “[his] mind wasn’t

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even set right at the time.” He claimed that he felt railroaded on a charge in which he had

no involvement but said that he reasoned, “[W]hy not take the lesser and try to fight it and

get back in court . . . [?]” Petitioner testified that if he had more time to discuss the plea with

trial counsel, he would have declined the plea and proceeded to trial.

On cross-examination, petitioner claimed that he did not give a statement to law

enforcement admitting his participation in the robbery, although he admitted signing a

statement to that effect and initialing each page of the statement. He stated that he was

intoxicated when he gave the statement, which was why his attorney filed a motion to

suppress it. Petitioner maintained that he had no adult criminal record, claiming that two

aggravated robbery convictions entered on different dates on his adult criminal history were

the result of offenses he committed as a juvenile. He further admitted he was on parole when

he committed the offense in the instant case.

Petitioner acknowledged that trial counsel reviewed relevant discovery materials with

him. However, he stated that she did not explain to him that he could receive a sentence of

twenty-five to forty years at 100% if he went to trial and was convicted. He maintained that

trial counsel told him he could receive life in prison because of his record. Petitioner recalled

that during the plea colloquy, the trial court informed him that he could face fifteen to sixty

years in confinement and that the instant conviction could be used to enhance any future

sentence on a new conviction.

The State questioned petitioner with regard to a letter he wrote to trial counsel in

which he stated that trial counsel advised him he was facing between twenty-five and forty

years in prison. Petitioner testified that despite the letter he wrote, trial counsel did not so

inform him, and he learned his possible sentence from fellow prisoners in jail. He confirmed

that during the plea submission hearing, he told the trial court that he was satisfied with trial

counsel’s representation of him. Petitioner admitted that he knew he “was facing a lot of

time if [he] didn’t sign for that thirteen-[year sentence],” so he decided it was in his best

interest to accept the plea offer of thirteen and one-half years. Trial counsel told petitioner

that his prior convictions could be used to enhance his sentence in the present case if he

chose to go to trial. Petitioner testified that when the trial court advised him he would

relinquish his right to a jury trial if he entered a guilty plea, he was “basically lost and

confused,” but he did not tell the court that he did not understand.

On recross-examination, petitioner admitted that he was a juvenile when he was

charged with the two aggravated robberies, but the case wastransferred to criminal court, and

he pleaded guilty as an adult.

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Trial counsel testified that she recalled petitioner’s case. She remembered receiving

discovery materials and reviewing them with petitioner. The State’s first plea offer involved

a sentence of twenty years at 100% release eligibility. After negotiations, the State extended

a second offer of thirteen and one-half years. Trial counsel informed petitioner that the

prosecutor in his case would change the following January, and she could not guarantee that

the offer would remain the same. She advised petitioner to seriously consider the offer

during the court’s holiday break.

Trial counsel recalled that during a meeting with petitioner, she discussed with him

that her investigator had discovered that the victim was a drug dealer. Trial counsel reviewed

the letter she received from petitioner and confirmed that she had advised petitioner that

“because he had three prior aggravated robbery convictions[,] . . . he would be range 2 on a

Class A felony[,] and if convicted at trial[,] he would get twenty-five to forty years.”

Trial counsel confirmed that she filed a motion to suppress petitioner’s statement but

that the court never held a hearing on it. Prior to the date set for the hearing, trial counsel

received the reduced plea offer from the State, and petitioner elected to accept it. She

clarified that when petitioner spoke of her advising him that he would receive “life,” he

referred to a conversation wherein she advised him that if he received a subsequent

conviction, it would be a “three strikes” case, and he would receive a sentence of life in

prison without the possibility of parole. She did not advise petitioner that if he did not plead

guilty in the instant case, he would be sentenced to life in prison. She advised petitioner that

his thirteen and one-half year sentence would be served at 100%. Trial counsel testified that

she would have advised petitioner, as she advised all of her clients, that it was his choice to

accept the plea offer or proceed to trial. She would have informed him that the plea offer in

his case “hedge[d] his risk” and that she could not be certain what a jury of “twelve different

minds” would do at trial. Trial counsel stated that petitioner maintained his innocence of the

offense, so she explained the concept of a “best interest” plea. Trial counsel testified on

cross-examination thatshe could not recall how many times she met with petitioner, although

she believed that it was likely more often than with the average client.

II. Analysis

Petitioner challenges his guilty-pleaded conviction and resulting sentence on four

grounds: (1) that trial counsel was ineffective in failing to advise him of the length of the

sentence and the minimum to be served to which he was agreeing; (2) that trial counsel was

ineffective in failing to explain to him the range of punishment for the offense if he

proceeded to trial; (3) that trial counsel was ineffective in failing to disclose to him the

evidence discovered by the investigator, thereby depriving him of the ability to consider said

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evidence in deciding whether to enter a guilty plea; and (4) that as a result of trial counsel’s

malfeasances, his plea was not knowingly entered.

A. Ineffective Assistance of Counsel

1. Standard of Review

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that

his or her “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.” Tenn.

Code Ann. § 40-30-103 (2012). A post-conviction petitioner bears the burden of proving his

or her factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)

(2012). “‘Evidence is clear and convincing when there is no serious or substantial doubt

about the correctness of the conclusions drawn from the evidence.’” Lane v. State, 316

S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.

2009)).

Appellate courts do not reassess the trial court’s determination of the credibility of

witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245

S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted

to the trial judge as the trier of fact. R.D.S, 245 S.W.3d at 362 (quoting State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on

appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d

160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.

1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions

of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d

450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of

petitioner’s ineffective assistance of counsel claims is de novo with no presumption of

correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

The Sixth Amendment to the United States Constitution, made applicable to the states

through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution

require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,

145 S.W.3d 571, 598 (Tenn. 2004) (citing Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975)).

When a petitioner claims that he received ineffective assistance of counsel, he must

demonstrate both that his lawyer’s performance was deficient and that the deficiency

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,

226 S.W.3d 307, 315 (Tenn. 2007) (citations omitted). It follows that if this court holds that

either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,

126 S.W.3d 879, 886 (Tenn. 2004).

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To prove that counsel’s performance was deficient, petitioner must establish that his

attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing

professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v State, 202 S.W.3d 106,

116 (Tenn. 2006)). As our supreme court has previously held:

“[T]he assistance of counsel required under the Sixth Amendment is counsel

reasonably likely to render and rendering reasonably effective assistance. It is

a violation of this standard for defense counsel to deprive a criminal defendant

of a substantial defense by his own ineffectiveness or incompetence. . . .

Defense counsel must perform at least as well as a lawyer with ordinary

training and skill in the criminal law and must conscientiously protect his

client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s

performance, this court “must make every effort to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct

from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.

2006) (citing Strickland, 466 U.S. at 689).

To prove that petitioner suffered prejudice as a result of counsel’s deficient

performance, he “must establish a reasonable probability that but for counsel’s errors the

result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing

Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,

petitioner must establish that his attorney’s deficient performance was of such magnitude that

he was deprived of a fair trial and that the reliability of the outcome was called into question.

Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

2. Trial Counsel’s Alleged Failure to Explain

the Terms of Petitioner’s Plea Agreement

Petitioner alleges that trial counsel rendered ineffective assistance of counsel by

failing to advise him of the length of the sentence and the minimum time to be served under

the terms of the plea agreement.

In denying relief, the post-conviction court did not clearly address this claim of

ineffective assistance of counsel. Although not specifically addressed, we note that in the

concluding paragraph of the order, the post-conviction court determined that petitioner failed

to carry his burden of proof. See Kardius Wilkes, No. W2009-1476-CCA-R3-PC, 2010 WL

3293726, at *5 (Tenn. Crim. App. Aug. 18, 2010) (affirming post-conviction court’s denial

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of relief even though it did not specifically address each issue in its order but found that

petitioner failed to prove his factual claims by clear and convincing evidence).

With regard to this issue, petitioner acknowledged that trial counsel explained to him

that he was going to serve his sentence day-for-day because it was to be served at 100%. He

also stated that “[t]hirteen sound[ed] better than life. . . .” In her testimony, trial counsel

confirmed that she advised petitioner to consider the State’s second plea offer of thirteen and

one-half years because when the prosecutors rotated courtrooms the following January, she

could not guarantee that the offer would remain the same. Thus, from both petitioner’s own

testimony and trial counsel’s testimony, it is clear that petitioner was aware that the plea

agreement provided for a sentence of thirteen and one-half years to be served at 100%. He

has failed to prove by clear and convincing evidence that trial counsel rendered deficient

performance in failing to so advise him. See Tenn. Code Ann. § 40-30-110(f) (2012).

Petitioner is not entitled to relief on this issue.

3. Trial Counsel’s Alleged Failure to Explain the Range of Punishment

for the Offense for which Petitioner was Indicted

Petitioner maintains that trial counsel rendered ineffective assistance of counsel by

failing to explain to him the range of punishment of the offense for which he was indicted.

In denying relief on this claim of error, the post-conviction court wrote:

Petitioner entered a plea of guilty to Especially Aggravated Robbery. Before

the guilty plea was entered, Petitioner stated that he understood his rights and

all the rights he was giving up as a result of entering a guilty plea. At the PostConviction Relief hearing, the Petitioner testified that he entered a guilty plea

to avoid a harsher sentence. He also testified that before accepting the guilty

plea, he thought, “I was looking at it[,] why not take the lesser and try to fight

it and get back in court. . . .[?]” It is obvious from Petitioner’s own testimony

that he knew about post-conviction relief[,] so he took the lesser sentence and

planned to file for relief. Trial Counsel advised Petitioner that if he was

convicted at trial, his sentence would have been much longer than thirteen

years and allowed Petitioner to consider his options for over a month before

making a decision. Petitioner ultimately decided that because he would

otherwise face a lot of time, it was in his best interest to plead guilty.

In addition, petitioner wrote a letter to trial counsel in which he referenced the fact

that she had informed him that he faced a possible sentence of twenty-five to forty years.

Although petitioner claimed during his testimony at the evidentiary hearing that trial counsel

had not informed him of the possible sentence and that he learned this information from

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fellow inmates, trial counsel’s testimony confirmed that she advised petitioner of the range

of punishment that he would face if convicted at trial. The post-conviction court accredited

trial counsel’s testimony.

The record does not preponderate against the post-conviction court’s findings of fact.

See Berry, 366 S.W.3d at 169 (citations omitted). We agree that petitioner has failed to

establish by clear and convincing evidence that his trial counsel rendered ineffective

assistance of counsel with regard to this claim of error. See Tenn. Code Ann. § 40-30-110(f)

(2012). He is not entitled to relief.

4. Trial Counsel’s Alleged Failure to Disclose to Petitioner Evidence Discovered

by the Investigator

Petitioner claimsthat trial counsel rendered ineffective assistance of counsel in failing

to disclose to him certain evidence that was discovered by the investigator who worked on

his case. This failure, he maintains, resulted in prejudice because it deprived him of the

ability to consider said evidence and make a knowing decision with regard to whether to

plead guilty.

In denying relief on this claim, the post-conviction court wrote:

By Petitioner’s own testimony, he acknowledges that prior to the guilty plea,

Trial Counsel discussed the information obtained by the investigator[,] except

that the victim was previously incarcerated and had a pending charge. This

does not alter the conclusion that Petitioner knowingly and voluntarily entered

his guilty plea. Petitioner failed to show that Trial Counsel’s acts were so

serious as to fall below an objective standard of reasonableness or that Trial

Counsel’s actions caused Petitioner to involuntarily and unknowingly enter a

guilty plea that he would not have otherwise entered.

We cannot conclude that trial counsel’s performance was deficient. Trial counsel testified

that she advised petitioner that the victim was a known drug dealer. The facts of the victim’s

prior convictions and pending criminal offense were not so serious as to rise to the level of

deficient performance of trial counsel for failure to advise petitioner of them. Moreover, the

post-conviction court also noted that while petitioner did not know about the victim’s

pending charge or previous incarceration, he had the necessary information about the

victim’s illegal drug activity to render an informed decision to plead guilty. We deny

petitioner relief on this claim.

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B. Voluntariness of Guilty Plea

It is axiomatic that a guilty plea must be entered knowingly, voluntarily, and

intelligently. Lane, 316 S.W.3d at 562;see North Carolina v. Alford, 400 U.S. 25, 31 (1970);

Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). If a plea is not knowingly, voluntarily, and

intelligently entered, the guilty plea is void because appellant has been denied due process.

Lane, 316 S.W.3d at 562 (citing Boykin, 395 U.S. at 243 n.5).

Petitioner’s claim that his guilty plea was involuntary is based solely on the instances

of ineffective assistance of counsel enumerated above. Having determined that his claims

of ineffective assistance of counsel are meritless, we reject his challenge to the voluntariness

of his guilty plea based on the same grounds.

CONCLUSION

After a thorough review of the record, the parties’ briefs, and the applicable case law,

we affirm the judgment of the post-conviction court.

_________________________________

ROGER A. PAGE, JUDGE

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