### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs F ebruary

3, 2004

MICHAEL D. HU GHES v. STATE OF TE NNESSEE
Appeal from the Criminal Court for Davidson County No. 92-A-184 Cheryl Blackburn, Judge

No. M2003-00819-CCA-R3-PC - Filed May 10, 2004

OnNovember 30, 1992, the petitione r, Michael Doug las Hug

hes, entered a plea of no contest to one (1) count of aggravate d rape and a plea of guilty to ten (10) counts of aggrava ted rape. He received
aneffective eighty

-year sentence after a

sentencing hearing. The pe titioner’s sentence was affirmed ina delayed a ppeal. See State v. Michael Douglas Hughes , No. 0 1C01- 9701- CR-00 021, 1 998 WL 301730, at *1 (Tenn. Crim. App. at Nashville, June 10, 1998), perm. to appeal denied (Tenn. Feb. 22, 1999). The petitioner sought post-conviction relief on various g rounds. After the tria l court denied the petition as untimely, t he petitioner appealed. This Court reversed the trial cour t’s dismissal of the petition and remanded for an evidentiary hearing. See Hughes v. State , 77 S.W.3d 801 (Tenn. Crim. App. 200 1). On remand, the trial court denied the petition after an e videntiary hearin g. The petitioner then presented this appeal, arg uing that the trial court erred finding that the petitioner received the e ffective assistance of counsel and that his g uilty plea was knowing ly and voluntarily entere d. We affirm the dismissal of the petition.
Tenn. R. App. P. 3 Appe al as of Right ; Judgme nt of the Tri al Court is Affirme d.

J ERRY L. S MITH , J., delivered the opinion of the court, in which D AVID H. W ELLES and T HOM AS T. W OODA LL , JJ., joined.

David R. H eroux, Na shville, T ennesse e, for th e appell ant, Mich ael D. Hu ghes.

Paul G. Summers, A ttorney Genera l & Repor

ter; Br ent C. Cher

ry , Assistan

t Attorne y G eneral ; Victor S. Jo hn so n, Di st ri ct At to rn ey G en er al ; a nd Ro ge r M oo re , A ss is ta nt Di st ri ct At to rn ey Ge neral, for the appellee, State of Tennessee.-2- OPINION

FACTUAL BACKGROUND

The petitione

r was indi cted in 19 92 by

a Davids on County

Grand Jury

on eleve n (11) co unts of aggravated ra

pe committed through the unlawful sexual penetration of a child less than thirteen (13) years of

age. He entered a

plea of no contest to one (1) count of agg ravated rape and a plea of guilty to ten (10) counts of aggrava ted rape. After a sentencing hearing, the trial court sentenced the petitioner to twenty (20) y

ears for ea ch count, with the sentences for four (4) of the c ounts to run consecutively to ea

ch other and the remaining counts to be serve d concurrently to each other for a total effective sentence of eig hty (80) y ears.
The p etitio ner’s trial counsel failed to timely perfect an appeal, thus the petitioner filed a petition for post- convicti on relie f in which he soug ht a delay ed appeal. This Court granted the delayed ap pe al an d a ff

ir me d t he se nt en ce im po se d b y t he trial court. State v. Michael Douglas Hughes , 1998 WL 301730, at *1. The Tennessee Supreme Courtdenied the petitioner’s application for permission to appeal in February of 1999.

The petitione

r then fil ed a sec ond peti tion for post-conviction relief on August 25, 1999, alleging ineffective assistance of counsel at his plea, sentenc ing, and on appe al; that his guilty plea
was not entered voluntarily, unde rstandingly, or

knowingly; and tha

t the length of his sentence consti tuted cru el and unusual punishment. The trial court dismissed the petition on the basis that it was not timel y f

ile d, that the

ground s for re lief had

been wa ived, and that it did n

ot contai n grounds sufficie

nt to const

itute a mot

ion to reop en the previous petition. The petitioner appealed and this Court determined that the trial court erred in dismissing the petition for post-conviction relief because, although the petitioner ha d filed two petitions for post-conviction relief,

. . . the initial petition sought only a dela yed appe al because his trial counsel had failed to perfect his appealfrom his sentence. The relief sought was g ranted and the Defendant

pursued his direct appeal. His endeavor eventually prove d fruitless, and h e thereupon filed the present petition for post-conviction relief, alleg ing seve ra l
con stituti onal viol ation s. Wh ere, as here, a defend ant su ccessf ully seek s thro ugh post-convict ion procee dings a d elay ed appe al on the g

rounds of ineffe ctive as sist anc e of counsel, thi s Court has held that any other allegations in the petition should be dismissedwit

hout prej u dice pending the direct appeal. See Gibson v. St ate , 7 S.W.3d 47, 50 (Te

nn. Crim. A

pp. 1998) . Such a di smissa l wou ld not be “on the merits,” and a subsequent petition would therefore not be subject to summary dismissal. Id. ; cf. Tenn. Code Ann. § 40-30-202(c) (“[i]f a prior pet ition has been filed whi ch was resol ved on the merits by a court of competent jurisdiction, any-3-

second or subs equen t petition shall be summarily dismissed.”) (emphasis added)

. Thus, shoul d the delay

ed appe al prove

unsucce ssful, the

defenda nt may then ref ile for post-conviction relief, alleging a ny substantive gr

ounds he or she may ha

ve. Hughes , 77 S.W.3d at

802-03. A s a resul

t of the tr ial cour t’s erroneous dism

issal of th e petition , this Court reversed and remanded the dismissal of the petition for a re view on the merits. Post-Conviction Hearing

Onremand, the trial court held an evidentiary hearing. The court denied the petition after hearing testimony from the petitioner and his trial counse l. The evidence at the hearing consisted of the following.

The petitioner testified that he retained trial counsel to represent him in a divorce action and subseque ntly on the criminal charges stemming from the multi-count indictment for the aggravate d rape of his step-daughter. The petitioner admitted that the first plea agree ment reached between trial counsel and the State was rejected by the trial cou

rt appro ximately

three da ys prior to the scheduled trial. He understood that the first plea agree ment provided for a twe nty-y ear s entence with no
co nsecutive sentencing in exchange for a ple a of guilty on one count of aggravate d rape and o n e count of aggravated se

xual battery. The second a nd final plea petition was prepared after tha t time. The petitioner admits that he read the second plea petition on a wooden bench outside the courtroom prior to the entry of the ple a and asked trial counselany questions he had r egarding the plea

at that time. The petit

ioner cl aims that tria l c ounsel spoke with him about the possibility of consecutive sentencingonly

in the con

text of go ing to tr

ial. The p etitioner

was unde r the impr ession at the time of the plea that

he was going to “ge

t between a 15 and

25-year sentence” total, rather than a potential fifteen (15) to twenty-f

ive (25) ye ar sentence on each count of the plea. The petitioner testified that he

understood

that [he] wa s go ing to go before the Judge and ha ve a hearing, a sentencinghearing, and all the fact s would be brought o ut as far as the he aring i s concerned, and

[his] pot ential liability would be between 15 a nd 25 years, w

hich would be determ ined by the Judge, and those sentences would be served
co nc ur re nt ly.

At th e plea hear ing, the petitioner claims that during the colloquy with the trial court, the court did not explain that there was a possibility of a consecutive se ntence. He admits that

he did notask any questions re garding sentencing during

the plea hearing, but claims that he was under the impression that the only issue reg arding sentenc ing was a determination of the length of the sentence in the 1 5 to 25-y

ear ra nge. He claims tha

t he was a

fraid of the trial judge a nd that he

was “ ver y nervous and very sc ared” during the plea hearing. Th e peti tion er tes tifi ed tha t the t rial j udge explained during the colloquy

that consecutive sentencing would only be possible in the event that he elected to be tried by

a jury. The pe

titioner further testified

that the only reason

he pled guilty w as that he thoug ht he woul d

not get consecutive sentences and that if he had known he was expose d to-4-

such lengthy c onsecutive sentencing, hewould not have entered the plea, but would have asked for a jury trial.

Trial counsel testified that he had been licensed to practice law in Tennessee since 1970 and that he was r etained to repre sent the p etitioner during t he cours e of the inv estigation prior to the indictmen t. At the time, trial counsel also represented the petitioner in a divorce proceeding . He testified that he e xplained to

the petiti oner not only

verball y, b ut also in writi ng, that the trial court had the discr

etion to se

nte nce him up to 275 years for the guilty plea

because there was no recommended

sentence in conjunction with the plea agree ment. He memorialized his explanation of the plea in writing and the petitioner reviewed and signed that doc ument. This document, entitled “Acknowledgment

of Le gal Adv

ic e and D iscussion” (“Acknowledgment”) was dr afted after the trial court rejecte d th e first plea agreement to address both the possibility of trial and the possibility of further pl ea n egotia tion s. One of the prima ry issues addres sed in the Ac knowl edgmen t is s enten cing. Inparticular, the Acknowledgment states that “the court has the pow er

to impose consecutive sentences within its discretion because of the nature of the charges a nd claimed duration of offenses
over time.” At the end of the Acknowledgment, the petitioner sig ned to indicate his understanding of its con tents and wrote the following

instructi ons:
Under no circumstances do I wa nt [the victim and her mother] to be put throu gh the agony or embar rassmen t of being made to te stify . Please t ake wha tever a ctio n i s necessary to insure [sic] that thi s happen s. I p refer to plead g

uilty to one cou

nt o f aggravated

rape and no contest to the rest of the char ges, if necessa ry to avoid a tr

ial,
or at the ve ry extreme a

plea of g uilty to all charges. I f I had

to testify, I

will testify in a way that

will likely produce at lea st a conviction on three counts of aggravated sexual battery and

one coun t of agg ravate d rape. T

his I believe [illegible word] court would be inflamed to give me a more severe sentence because of a trial.

Trial counsel never felt like he had difficulty communicating with the pe titioner and even described him as “a very

intelligent man” with severa l years of c ollege educat ion wh o was “i n charge of a larg e busines s, one of the se super wareho uses that sell home p

roducts, Home Depot or Lowe’s.”

At the conclusion of the hearing, the trial court denied th e petition . On appe al, the petitioner seeks review of the f

ol lowing issues: (1) whether the petitioner rece ived ineffective assistance of counsel; and (2) whether the guilty plea was made knowingly , understandingly , and voluntarily.

Post-Conviction Standard of Review

The post-conviction court’s findings of fact are c onc lusiv e on appeal unless the evidence preponderates otherwise. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). During our review of the issues raised, we will afford those findings of fact the weight of a jury ver dict, and this Court is bound by the post-conviction court’ s findings unless the ev idence in the record preponderates agains tthose findings. See Henley v. State , 960 S.W.2d 5 72, 578 (T enn. 1997 ); Alley v. State , 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not reweigh or re-evalua

te the evidence,-5-

nor substitute its inferences for those drawn by the post-conviction court. See State v. H oney cutt , 54 S.W.3d 762, 766 (Tenn. 2001). Howev er, the post-conviction court’s conclusions of law are reviewed un de r a pu re ly de novo standard with no presumption of correctness. See Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001).

Ineffective A ssistance of Counsel

When a p etiti oner seeks post-conviction relief on the basis of ineffe ctive assistance of counsel, the petitioner bears the burden of showing that (a ) the services rendered by trial counsel
were deficient and (b) that the deficient perfor manc e was pr ejudic ial. See Powers v. State , 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient perfor mance, the petitioner must show that the services rende r ed or the advice given was below “ the range of competence demanded of attorney s in criminal cases.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). In orde r to demon strate pr ejudice , the peti

tioner mus t show that

there is a

reasona ble probab ility

that, but for counsel’s deficient performance , the result of the proceeding would have been different. See Strickland v. Washington , 466 U.S. 668, 694 (1984). “Because a petitioner must establish both prongs of

the test to

prevail on a clai m of ineff ective a ssistance

of counse l, failur

e to prove eit her deficient performance or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley

v. State , 960 S.W.2d 572, 580 (Tenn. 1997).

As n oted abov e, this Cour t will aff ord the po st-convi ction cou rt’s fac tual findi ngs a presumption of correctness, rendering them conclusive on appeal unl ess t he record preponderates agains tthe court’s findings. See id. at 578. However, our supreme court has “determined that issues of deficient performance by

counsel and possible prejudice to the defense are mixed questions of law and f act . . . ; t

hus, [appe llate] re

view of [th ese issue s] is de novo ” with no pres umption o f correctness. Burns , 6 S.W.3d at 461

. Furthermore, on claims of ineffective assistance of counsel, the petitione r is not en titled to the benefit of hindsight. See Adkins v. State , 911 S.W.2d 334, 347 (Tenn. 1994). This Court may notsecond-guess a reasonably -based trial strategy , and

we cannot grant relief base d on a sound, but
unsucce ssful, tactical decision made during the cour se of the

procee dings. See id. However, such deferenceto the tactical dec isions of c ounsel ap pli es only if counsel makes those de cisions after adequa te preparation for the case. See Cooper v. State , 847 S.W.2d 5 21, 528 (T enn. Crim . App

. 1992).

Inthe case herein, the petitioner arg ues on appeal tha

t he was d enied effective assistance fromcounsel b ecause

counsel f

ailed to explain that t

he petitioner was

potentia lly s ubject to consecutive sentences. The State counters that the petitioner failed to show clear and c onvincing evidence that trial counsel was ineffective and that the petitioner admitted he desired to avoid a trial on the merits and was made aware of the possibility of consecutive sentencing.

After listening to the testimony at the post-conviction hear ing, the trial court determined that the petitioner failed to demonstrate by clear and convincing evidence that counsel per forme d-6-

deficie ntly because there was written documentation in the form of the Acknowledgment, signed by the petitioner, that counsel discussed the possibility of co nsecuti ve sentencing with the petitioner and trial counsel’s t estimony bolst ered the conten ts of the Ack nowledgment. Fu r ther, the trial court found that even if counse l’s condu

ct was de ficient, the petiti oner has failed to demonstr

ate that he was prejudiced by

counsel’s performance.

Inorder for the petitioner to prevail herein, he must show, by clear and convincingevidence, that his attorney failed to pr

operly advise him of the possible c onsequences of his plea and that trial counsel’s failure to do so resulted in prejudice. Once a guilty plea has been

entere d, effe ctivene ss of counsel is relevant only to the e xtent that it af

fects the voluntar iness of the plea. I

n this resp ect, such claims of

ineffe ctive as s ista nce necessarily implicate the principle that guilty pleas be voluntar ily and intelligent ly m ade. See Hill v. Lockhart , 474 U .S. 5 2, 56 ( 1985) (citi ng North Carolina v. Alford , 400 U.S. 25, 31 (1970)). As stated above, in order to successfully

challenge the effec tiveness

of counsel, the petitioner must demonstrate that counsel’s representation fell below the
range of competence demanded of attorney s in criminal cases. See Baxter , 523 S.W.2d at 936. Under Stri cklan d v. W ashin gt on , 466 U.S. at 687, the petitioner must establish (1) deficient representation

and (2) prejudic e resulti

ng from the defi ciency . Howeve

r, in the c ontext of a

guilty plea, to satisfy the second prong of Strickland , the peti tioner mus t show that

“there is a rea sonable probabil ity

that, but f

or counse l’s errors, he would n ot have pl eaded g

uilty and would

have insisted
on goingto trial. ” Hill , 474 U.S. a t 59; see also Walton

v. State , 966 S.W.2d 5 4, 55 (Te nn. Crim. App. 1997).

The record does not preponderate ag ainst the findi n g that tr ial couns el was ef

fective . Impl icit inthe po st-co nvict ion co urt’s findi ngs and conclusions was that the court accredited the testimony of tri al counsel rat her than that of the petitioner. “[Q]uestions of credibility of the witnesses, the weight and value of

the evidence, and resolution of conflicts in the evidence a re matters entrusted to the trial judge as the trier of fact.” State v. Odum , 928 S.W.2d 18, 23 (T enn. 1996). The trial court accepted as true the testimony of trial counsel concerning the circumstances of the plea and the conversations leading up to that decision , inc luding the signing of the Acknowledg ment by the petitioner. The Acknowledgment explained that the petitione r was sub ject “to a sentence ranging fromfifteen ye ars to two hundred seventy-five ye ars, the maximum sentence for each of elev e n convictions for aggravate d rape with the sentences to run consecutively .” The petitioner admitted that he entered his plea with the knowledge that ther e was no rec ommen ded sentence from the prosecu tor. It is apparent from the handw ritten addendum to the Acknowledgment that th e motivating factor

inthe petitioner’s having pled guilty to an open indictment was to avoid a trial and avoid putt ing th e vict im or h er mot her th rough t he “ago ny or embar ra ssment of b eing ma

de to testify.” He even instructed trial counsel to “take whateve r action is necessary

to ins ure tha t this [avoiding a trial] happens.” Further, the testimony showed that trial counsel never discourage d the petit ioner from a skin g quest ions at the guilt y plea hear ing.

As stated p re vi ou sl y, this Court a ffords th e post-c onviction court’s factua l finding s a presumption of corr

ectness , render

ing them conclusi v e on appeal unless the record prepondera tes-7-

agains tthe cour

t’s findi ngs . After a de novo review, we conclude that the evidence in the record does not preponderate against the trial cour t’s decision that trial counsel was effective

.

Voluntary and Know

ing Guilty Plea

The se co nd is su e r ai se d b y t he petitioner in this pos t-conviction appeal questions the knowing and voluntary natur

e of his guilty plea . The petitioner maintains that based on the “lack of advice received from his trial counsel, based on the languag e of the plea petition, and based on the plea colloquy with the Court at the time he entered his pleas” he has demonstrated that he w as not aware he was subject to consecutive sentencing and a s such, did not understand the c onseque nces of h is p leas. The State argues that the petitioner has failed to show that his pleas were any thing but voluntarily and knowing ly entered.

When e v aluating the knowing and voluntary nature of a guilty

plea, the United States Supreme Court has held that

“[t]he standard

was and remains whether the plea repr esents a voluntary and intelligent choice among the alternative courses of ac tion open to the defendant.” Alford , 400 U.S. at 30. The court reviewing the voluntariness of a g uilty plea must look to the totality of the circumst ances. See State v. Turner , 191 S.W.2d 3 46, 353 (T enn. Crim. App. 1995 ); see al s o Ch amberlain v. State , 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). Specifically, a r eviewing court must consid

er “the relative intellig ence of

the defe ndant; the

degre e of his f

amilia rit y with criminal proceedings; whether he was rep resente d by

compete nt counse l and had t

he oppor tunity to confer wit h counse l a bout the options available to him; the extent of advice from counsel and the court concerning the charg es against him; and the reasons for his decision to plead guilty, including
a de si re to av oi d a gr ea te r p en al ty t ha t m ig ht re su lt fr om a j ur y t rial. Blanken ship v. Stat e , 858 S.W.2d 897, 904 (Tenn. 1993).

A plea is no t “volunta

ry” if it re sults from

ignora nce, misu

ndersta nding, c oercio n , inducements, or threats. Id. at 904. The trial cou rt must det

ermine if the gui lty plea i s “kno wing” by questioning the defendant to make sure he fully understands the plea

and its consequences. State v. Pettus , 986 S.W.2d 540, 542 (Tenn. 1999) ; Blanke nship , 858 S .W.2d at 904. Looking at the totality of the circ

umstances, the pe titi oner t estif ied th at he w as a hi gh school gradu ate w ith two y

ears of colleg e educa

tion. Tria

l counsel noted tha t the petit ioner wa s a

“ver y intelligent

man” and had n o difficu lty communicating re garding his case and the option of e ither pleading guilty or g oing to trial. The petitioner’s ow n de sire, as memorialized in his own handwriting at the end of the Acknowledg ment, noted his desire to plead guilty . The transcript of the guilty plea he aring reveals that the trial court ca reful ly and corr

ec tly informed the petitioner regarding his constitutional rights, and specifically asked if he understood that he was wa

iving tho se rightsby pleading

guilty. The pe

titioner responded in the affi rmative. Further, he stated that he understood

the plea agreement

and the significance of the g uilty plea hearing , and was entering his guilty plea v oluntarily. The trial cour t also explained that the petitioner could consult his attorney if anything in the plea hearing was unclear . The trial court obviously believed that counsel a nd the-8-

petitio ner, as counsel testified, discussed the consequences of the g uilty plea. The trial judg e’s comments

reflect that

he believed counsel’s testimony that the petiti oner ple d guilty

to all cou nts in the indictment to avoid trial and to avo id putting the victim

and the victim’s mother through further pain and suffering. As a result the trial court f ound, and we agree, that the petitioner knowingly a

nd voluntar ily entere d his guil

ty p lea. We c onclude t herefo re that th e recor

d supports

the postconviction court’s finding that the petitioner entered his g uilty plea voluntarily

and knowingly

. Conclusion

For the foregoing reasons, we conclude that none of the petitioner’s claims merit relief. Accordingly , the judgment of the post-conviction court is affirmed.

___________________________________ JERRY L. SMITH, JUDGE