### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs O ct obe r 7, 200 8
KEITH C OLLIN S v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. I05-00031 Jame s M. Lamme y, Jr., Judge

No. W2007-02900-C CA-R 3-PC - Filed Janu ary 14, 2009

Th e p e ti ti o n e r , K e ith Co ll in s , ap p e a ls f r o m th e p o s t- c o n v ic ti o n c o u r t’ s d e n ia l o f p o s t- c o n viction
re lie f. On app e a l, h e arg ue s th a t he re c e ive d th e ine ff e c tiv e a ssi stanc e of c ou ns e l w hic h c aus e d h im to enter an unknowing and involu n t ar y g u i l t y plea. Following our revie w of the r ecor d and the parties’ briefs, w e af

firm the judgment of the post-c onviction c ourt denying post-conviction re lief. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J. C. M C L IN , J., deli v er ed t h e opini on of the c ourt, in which D AVI D H. W ELL ES and T H O M A S T. W OOD ALL , JJ., joined.

Er a n J uli a n, Me mph is, Te nn e sse e , f or the app e llant, Ke ithCol lin s; M a tth e w E gg le sto n at tria l.

Robert E. Cooper, Jr., Attorney Gene ral and Reporter ; Matthew Bryant Haske ll, Assist ant Attorney Gene ral; William L. Gibbons, Dis t ri ct Attorney G ener al; and Betsy Carne sale, Ka ren Cook and David Micha el Zak, Jr ., Assistant D istrict A ttorneys Gene ral, for the appe llee, State of Te nnessee

. OP IN ION
I. BACKGROUND The pe titioner, Keith Collins , pled guilty to one count o f sexua l battery, a Class E felony. At the gu ilt y p le a

he ari ng , th e state re c ite d th e fa c tua l ba sis fo r the pe tit ion e r’ s p le a a s f oll ow s:
Ha d th e ma tte r go ne to tr ia l, the State ’s pr oo f wo uld ha ve be e n th a t onFe br ua ry 26 th at appr oximately 1110 hours, offic er r eporte d that she appr oache d Cell No. 8, housed by the defenda n t K e ith Co ll in s

. Sh e le t th e f la p o n th e c e ll d o o r

d o w n s o the defe ndant could re ceive his tray and a cup of kool-aid. The de fendant rea ched outside the ce ll door through the flap and grabbe d her inne r t high. The off icer closed the flap and asked Inmate Coll ins, “Why did you touch m e?” Def endant state d, “I didn’t touch your pussy but I want to touc h your pussy.” No injuries we re r eporte d. Th is t oo k p la c e he re a t 20 1 Po pla r f ir st f loo r p odB.2

Pursuant to the plea agre ement, the trial court sentenc ed the pe titioner as a Range I, standar d offe nder to e ight months , time se rved. On Octobe r 26, 2006, the pe titioner filed a pr o se petition for post-conviction re lief, alleging that he had re ceive d the ineff ective as s i s t ance of c ounsel which
c aus e d h im t o e nte r an u nk no wi ng a nd inv olu nta ry gu ilt y ple a

. An e vid e nti ary he ari ng on the po stconviction petition was held on August 31, 2007. The pe titioner’s trial counse l te stified at the post-convic tion hearing that he repr esente d the petitioner in Gene ral S essions, and worked t o arr ange for the petitioner t o plead guilt y. He state d that he had a

good working re lationship with t he peti t i o n er

. C o u n sel said he lea rned that the petitioner wa s alleged to ha ve had relationships with fema le deputy jailers during his incarce ration. Counsel also learne d, during the cour se of his investigation, that the petitioner wa s alleged to have hara ssed multiple fema le deputies, that the petit ioner was not well-liked among the deputies, and the deputies we re doing what they could to keep him in isolation. Counsel further noted that the pe tit ion e r h a d b e e n a sk e d to te sti fy a ga ins t se ve ra l de pu tie s w ho we rebe lie ve d to be sn e akin g it e ms to i nmate s a nde ng a gin g inre la tio ns hip s w ithinm a te s in vio la tio n of ja il re gu la tio ns

. Ac c or din g to counsel, the pe titioner ref used to testify aga inst the deputies and wa s place d in isolation.

Counsel te stified that he met with the Deputy District Attorney Ge nera l and worke d out an agre ement which w ould permit the petitioner to ple ad guilty to the cha rges a gainst him. According to c ou ns e l, the pe tit ion e r w ou ld b e ind ic te d o n c ri min a l in fo rm a tio n a ndwo uld the n be a llo we d to plead guilty to sexual battery, a Class E felony. The de fendant would be sentenc ed to time serve d and re lease d. Prior to entry of the pe titioner’s plea, c ounsel testified that he wa s summoned to the isolation section of the jail be cause he re ceive d a ca ll regar ding the petitioner’s attempted suicide. Ac cording to d e pu tie s, the pe tit ion e r thr e a te ne d to ha ng him se lf a nd re fu se d to spe ak with a ny on e bu t c ou ns e l. Counsel stated that when he arrived in the isolation ward of the jail, the petitioner wa s laughing and informed c ounsel that he wa s fine and just nee ded to get out of his ce ll. Counsel st ate d that the petitioner gave him a hug, laughed, and told him t hat he wa sn’t trying to kill himself.

Counsel testified that the petitioner was one of the most manipulative inmates he ha d ever encounte red. H e desc ribed the pe titioner as smart, friendly, and able to rec all things about counsel that counsel wa s not awa

re the petitioner knew. Acc ording to counsel, petitioner c lear ly knew right from wr ong and wa s awa

re of his situation. The pe titioner’s primary c oncern was ge tting out of the jail and going home. Counsel inf ormed the petitioner that he could ge t him out of jail t hat day if the pe tit ion e r p le d g uil ty t o s e xu a l batte ry , a fe lon y. In a dd iti on , co un se l toldthe pe tit ion e r h e wo uld be re quired to sign up on the sexual offe nder registry. The petitioner told c ounsel that he wanted
ou t of ja il i mme diate ly, didno t w a nt c ou ns e l to c on du c t a n inv est igatio n in to the c ha rg e s a ga ins t him, and stated that he w ould acc ept the plea

. On cr oss-exa mination, counsel t es t i fi ed that he w ent over the plea a gree ment with the petitioner. Howe ver, he acknow ledged that another attorney s tood in for him during the ac tual plea hearing. Counsel stated that he met with the petitioner a number of times be tw ee n Au g u s t and October , more times than he ha d met with any other c lient. Accor ding to counsel, the petitioner appea red to unde rstand the plea paper work whic h included the indictment wai v er an d judgment3

fo rm . Bo th the ind ic tme nt w a ive r andthejud gme nt f orm spe c if

ie d tha t the c ha

rg e d o ff e ns e wa s a felony. Counsel noted that he revie wed the documents perta ining to the petitioner’s plea with the pe tit ion e r. Th e pe tit ion e r the n s ign e d o ff on theple a

a gr e e me nt.
Th e pe tit ion e r t e sti fi e d at th e po st- c on vic ti on he ari ng that w he n c ou ns e l w a s a pp oin te d to repr esent him, he ha d been pe rsec uted by deputies i n t h e j ail. He state d that the criminal investigation unit wanted him to testify against certain deputies under investigation. The petitioner ref used to testify and wa s place d in isolation and stripped of all privileges, including vi sitation and ph on e . T he pe tit ion e r s ta te d th a t hewa s o n s uic ide watc h th e e nti retim e a nda tte mpt e d to c omm it
su ic ide a t on e po int

. Th e pe tit ion e r t e sti fi e d th a t hedidno t kn ow the se xu a l batte ry c ha rg e he ple d g uil ty to w ou ld be a f elony cha rge. A ccor ding to the petitioner, he be lieved the se xual battery conviction would be
a misdemeanor. Howeve r, he stated that his primary conce rn and motivation wa s to get out of the ja il. Th e pe tit ion e r a lso a c kn ow le dg e d th a t cou ns e l inf orme d him of the fa c t tha t he wo uldha ve to re gis te r w iththese xu a l of fe nd e r r e gis try. Cou ns e l f urthe r t oldhim

that he c ou ld f

ile a po stconv ic ti o n p e ti ti o n to h a v e h im s e lf r e mo v e d f

r o m th e r e g is try
. T h e p e ti ti o n e r a s s e r te d th a t he thought he was plea ding to a mi sdemea nor. He also claimed that he was not in his “right m ind,” was making “a lot of irr ational dec isions” when he a gree d to the plea. T h e p et i t i o n er stated that he contemplated suic ide. He said that he cut his neck open prior to entering the pl ea and was not in a pr op e r f rame of min d to un de rs ta ndthe c on se qu e nc e s o f h is p le a a gr e e me nt. The pe ti ti o n e r te s ti f

ie d th a t c o u n s e l d id a g o o d jo b

. H e a c k n o w le d g e d th a t c o u n s e l was loo kin g o ut f

or thepe tit ion e r’ s b e st i nte re st andstate d tha t hepr ob ably wo uldha ve kil le d h ims e lf if he ha d rema ined in the jail any longer . The pe titioner stated that although he pled guilty to get out of jail, he did not understa nd the nature and conse quence s of the plea

. On cr oss-exa mination, the petitioner t es t i fi ed that he wa s prese nt during his guilt y plea hearing. H oweve r, he did not rec all pleading guilty to felony sexual battery. The petitioner cla imed that counsel did not revie w the plea paper work with him prior to the entry of his plea. The pe titioner also c laim e d th a t h e d idn o t r e v ie w th e tr a n s c r ip t o f th e g u il ty p le a

p r o c e e d in g

. T h e petitioner
a dmi tte d th a t hewa s p re se nt, ple d g uil ty, a nda c kn ow le dg e d th a t th e fa c ts a s th e y w e rere a d to him
wer e true . He r emember ed being a sked about his educational level and about re linquishi ng his right to a jury trial. The petitioner also re called an exchange about the fac t that his plea was time-se rved and he would be rele ased from jail that day. The pe titioner acknow ledged that he answe red in the aff irmative when asked if he understood that by pleading guilty he would be r elea sed fr om custody. Howeve r, the pe titioner claimed that whe n he stated he und er s t o o d , he wa s not in his right mind. He state d th a t w he n h e sig ne d o ff on the ple a pa pe rw or k, the jud gme nt f

orm, andoth e r d oc ume nts which stated that his conviction was fo r fe l o ny sexual battery, he w as not paying attention. The petitioner ac knowledged that he got out of jail but asser t ed that he did not want a se xual fe lony conviction on his rec ord.

At the conclusion of t he hea ring, the post-convic tion court noted that the pe titioner signed
a wa iver indicatin g h is u n d erstanding of the plea a gree ment. Further, the post-c onviction court noted that the pl ea was announced in open court and that the t rial court judge asked pe titioner whether he4

understood the plea

terms and whether the plea wa s voluntary. The post-c onviction court held that the petitioner fa i l ed to prove by c lear and convinc ing evidence that counsel wa s ineffe ctive. Furthermore , the court held that counsel’s r epre sentation of the petitioner was within the range of competenc e of an attorney in a criminal ca se. The post-c onviction court conc luded that counse l was not defic ient, nor was the petitioner pre judiced by counse l’s perf

ormanc e under

the test in Strickland v. Washington . Because counse l’s perf ormanc e did not fall below the obje ctive standa rds of
rea sonablene ss, the petition for post-conviction re lief wa s denied.

II. AN AL YSI S

Th e pe tit ion e r arg ue s that he re c e ive d the ine ff e c tiv e a ssi stanc e of

c ou ns e l w hic h c aus e d h im to enter an unknowing and involuntary guilty plea.

In orde r for

a petitioner to succee d on a post -convic tion claim, t he petiti oner must prove the allegations of f

act se t forth in his petition by clear and convi n ci ng evidenc e. Te nn. Code Ann. § 40 -3 0- 11 0( f) . O n a

pp e a l, this c ou rt

is r e qu ir e d to a ff

ir m the po st- c on vic tio n c ou rt ’s fi nd ing s u nle ss the petitioner prove s that the evidenc e pre ponderates aga inst t h o s e fi n d ings. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999)

. Our review of the post-conviction court’s fac tual findings, such as fi nd ing s con c e rn ing the c re dib ili ty of wi tne sse s a ndthewe igh t a ndva lue giv e n th e ir te sti mon y, is de novo with a presumption that the findings are corr ect. Se e id

. Our revie w of the post-c onviction court’s le gal conc lusions and application of law to fac ts is d e n o v o wi t hout a pre sumption of
corr ectne ss. Fi e lds v . S tat e , 40 S.W.3d 450, 457-58 (Te nn. 2001).

To establish the ineff

ective a ssistance of c ounsel, the petitioner be ars the bur den of pr oving that (1) c ounsel’s per formanc e wa s deficie nt and (2) the d ef icient per formanc e pre

judiced the defe nse rende ring the outcome unreliable or fundamentally unfair. See Strickland v. Washington , 46 6 U .S. 66 8, 68 7 ( 19 84 ); se e als o A rn old v . S tat e , 143 S.W.3d 784, 787 (Tenn. 2004) . Def icient perf ormanc e is shown if counse l’s conduct fell below an obje ctive standa rd of r easona

bleness under prevailing professional standar ds. Strickland , 46 6 U. S. at 68 8; se e als o B ax te r v . R os e , 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that repr esentation should be withi n the ra nge of c ompetence demande d of attorne ys in criminal case s). Prejudice is shown if, but f or counse l’s unprofe ssional
err ors, there is a rea sonable proba bility t hat the outcome of the proc eeding wo uld have be en differ ent. Strickland , 466 U.S. at 694. A fair a ssessment of counse l’s perf ormanc e “r equire s that
every eff ort be made to eliminate the distorting effe cts of hindsight, to reconstruc t the circ umstances of counse l’s challenge d conduct, a nd to evaluate the c onduct from c ounsel’s per spective at the time.” Id . at 68 9; se e als o Ni c ho ls v . S tat e , 90 S.W.3d 576, 587 (Tenn. 2002). Both deficient performanc e and pre judice must be established. Strickland , 4 66 U . S. at 69 7; se e als o G oa d v . S tat e , 938 S.W.2d 363, 370 ( T e n n

. 1 9 9 6 )

. I f e ith e r e le me n t o f

in e f f e c ti v e a s s is tan c e o f

c o u n s e l h a s n o t b e en established, a c ourt nee d not addre ss the other e lement. Strickland , 466 U.S. at 697.

When a p eti tioner cla ims ineffec tive assistance of counse l in relation to a guilty plea, the petitioner must show a re asonable probability that, but for the e rror s o f h i s co unsel, he would not have ple d guilty. Se e Hi ll v. Loc k ha rt , 4 74 U. S. 5 2, 59 (1 98 5) ; Ad k ins v . S tat e , 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994) . When de termining the knowing and volunt ary nature of the gui lty plea, the s tandar d is “whe ther the plea repre sents a volunt ary and intelligent choice among the alternative5

course s of ac tion open to the defe ndant.” Nor th C ar oli na v . A lfo rd , 400 U. S. 25, 31 (1 97 0) ; se e als o State v. Pe ttus , 98 6 S.W .2 d 54 0, 54 2 ( Te nn . 1 99 9) . A ple a is n ot v olu nta

ry or kn ow ing if

it r e su lts from ignora nce, misun d erstanding, coerc ion, inducements or thre ats. Bl an ke ns hip v . S tat e , 858 S.W .2 d 8 97 , 9 04 (T e nn . 1 99 3) . W he n d e te rm ini ng thekn ow ing a ndvo lun tary natur e of thegu ilt y plea, the c ourt must look to various circumstantial fa ctors, including:

the relative intelligence of the defe ndant; the degr ee of his familiarity with criminal proce edings; whether

he wa s repr esente d by competent c ounsel and ha d the opportunity to confer

with counsel about the options a vailable to him; the extent of advice from counse l and the court conce rning the cha rges a gainst him; and the
re a so ns fo r h is d e c isi on to p le a d g uil ty, inc lud ing a de sir e to a vo id a

gr e a te r p e na lty that mi gh t r e su lt f

ro m a jury tria l.

Bl an ke ns hip , 858 S.W.2d at 904. A petitioner’ s solemn declar ation in open court that his or her plea is knowing and volunt ar y cr ea tes a formidable bar rier in a ny subsequent collate ral proc eeding beca use these de clar ations “ca rry a strong presumption of verity.” Blackle dge v. A llison , 4 31 U. S. 63, 74 (1977).

In the inst an t ca se, the re cord supports the post-conviction court’ s findings that the petitioner’s guilty plea wa s knowing, intelligent, and volunt ary. Counsel testified that he explaine d the pl ea to the petit ioner and revie wed it with him befor e the petitioner signed it. The transc ript at the ple a su bmi ssi onhe ari ng re fl e c ts that th e pe tit ion e r w a s q ue sti on e d e xte ns ive ly abo ut h is
un d er standing of the plea prior to its entry in open cour t. The re cord c lear ly indicates that the pe tit ion e r w a s inte lli ge nt, wa s re pr e se nte d by co mpe te nt co un se l, wa s adv ise d of the c ha rg e a ga ins t him , k ne w that the c ha

rg e d off e ns e wa s a f

e lon y, a ndno ne the le ss c ho se to p le a d g uil ty i n o rd e r t o obtain a re lease from jail. Furthermore , the petit ioner acknowledge d that counsel “did a good job,” and got him out of jail, which was the pe titioner’s objective . Acc ordingly, the rec ord does not preponde rate against the post-c onviction court’s findings that the pe titioner rec eived the e ffe ctive assist an ce of counsel and that the petitioner’s guilty plea w as knowing and voluntary. There fore , he is not entitled to relief.
CO NC LU SION

Based on the a

ppellate r ecor d and the fore going rea soning, we affirm the judgment of the po st- c on vic tio n c ou rt

.

___________________________________ J.C. McLIN, JUDG E