IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 15, 2012

PERRY KIRKMAN v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 2009-A-404 Steve R. Dozier, Judge

No. M2011-01781-CCA-R3-PC - Filed January 4, 2013

The petitioner, Perry Kirkman, pled guilty in the Davidson County Criminal Court to two

counts of aggravated sexual battery and received concurrent sentences of fifteen years in the

Tennessee Department of Correction (TDOC). Thereafter, he filed for post-conviction relief,

alleging that his counsel was ineffective and that his guilty pleas were not knowingly and

voluntarily entered. The post-conviction court denied the petition, and the petitioner timely

appealed. Upon review, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON,

P.J., and THOMAS T. WOODALL, J., joined.

David M. Hopkins, Nashville, Tennessee, for the appellant, Perry Kirkman.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;

Victor S. Johnson, III, District Attorney General; and Rachel Sobrero, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The petitioner wasinitially charged in a multi-count indictment with displaying sexual

acts to a minor (counts 1 and 13), rape of a child (counts 2-10, and count 12), and solicitation

of rape of a child (count 11). The charges involved victims H.O. and S.O. On April 22,

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2010, the appellant pled guilty to the lesser-included offense of aggravated sexual battery of

 It is the policy of this court to refer to the minor victims of sexual crimes by their initials.

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H.O. as alleged in counts 2 and 3 in exchange for the dismissal of the remaining counts.

Although the petitioner was a Range I offender, he agreed to be sentenced as a Range II

offender to concurrent sentences of fifteen years for each offense.

Subsequently, the petitioner filed a pro se petition for post-conviction relief. Counsel

was appointed, and an amended petition was filed, alleging that petitioner’s trial counsel was

ineffective and that the petitioner’s plea was not knowingly and voluntarily entered.

At the post-conviction hearing, the petitioner testified that he pled guilty

approximately one year after trial counsel was appointed to represent him. The petitioner

said that he spent about five months in jail before being released on bond. The petitioner said

that his bond was revoked when he missed a court date and a capias was issued for his arrest.

Approximately two months after his bond was revoked, the petitioner pled guilty.

The petitioner said that he met trial counsel approximately three times at trial

counsel’s office, with each visit lasting an hour or more. The petitioner stated that trial

counsel provided him with some discovery materials prior to his pleas. However, after he

pled guilty, trial counsel sent him a more extensive discovery packet that included

information about potentially favorable witnesses and a medical report indicating that no

physical evidence linked the petitioner to the crimes. The petitioner said that if he had been

aware of the medical report, he would not have pled guilty and would have insisted on a trial.

The petitioner said that trial counsel advised him that he could receive a sentence of

sixty to one hundred years if he were convicted at trial. Approximately one and a half

months prior to trial, trial counsel informed the petitioner of a possible plea bargain that

would require him to serve one hundred percent of a twelve-year sentence in confinement.

The petitioner said that he was told by other people that he could earn deductions to reduce

the sentence to eight or ten years. The petitioner maintained that counsel advised him that

if he did not plead guilty, he risked being convicted of “13 charges at 20 years a piece.” The

petitionersaid that after he pled guilty, other people advised him that he should have received

a shorter sentence.

The petitioner said that regardless of what was said at the guilty plea hearing, he

believed that he was receiving a twelve-year sentence, one hundred percent of which was to

be served in confinement. He “wasn’t clear” on what was being said by the trial court and

the parties, but he thought they were discussing possible deductions to be applied to his

sentence. The petitioner said that he could not recall whether the trial court or trial counsel

advised him that he was pleading guilty and accepting a fifteen-year sentence. He stated that

he signed the plea bargain before the guilty plea hearing and thought he could not speak

during the hearing.

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The petitioner acknowledged that he understood he was pleading guilty to a sexual

offense but claimed that he was not sure of the exact offense. He said that at the time of his

plea, he was not aware of what acts constituted an aggravated sexual battery. The petitioner

said that trial counsel told him he was pleading to a lesser charge. The petitioner said that

trial counsel advised him that he would be required to register as a sex offender, but he was

not advised that he would be subject to lifetime supervision. The petitioner said that he

would not have entered the guilty pleas if he had known about the lifetime supervision

requirement.

The petitioner alleged that trial counsel failed to investigate his case, interview

witnesses, and present defenses. The petitioner said that he gave trial counsel names of the

victims’ relatives who were willing to testify for petitioner. However, the petitioner said that

trial counsel did not contact the witnesses.

On cross-examination, the petitioner said that he knew the State had evidence against

him but that he was not aware of any evidence favorable to his defense. The petitioner said

that after he was incarcerated, “someone explained [his] time sheet to [him,]” which made

him realize that he had a longer sentence than he had thought. The petitioner asserted,

“They’re explaining to me it was two 15s and there is no parole, so I will flatten that. I

wasn’t – I understood that it was, you know, maybe 10 at the most.” The petitioner said that

prior to his plea, trial counsel informed him that he would be sentenced to twelve-years, but

he could receive “deductions” reducing his time in confinement to ten years.

The petitioner said that trial counsel “[s]pent less than 60 seconds” explaining the plea

agreement before the petitioner signed it. Trial counsel did not mention that petitioner was

agreeing to a fifteen-year sentence. He said that he did not recall the trial court informing

him that he was agreeing to a fifteen-year sentence.

The petitioner said that he pled guilty thinking that his sentence could be reduced by

good time credits. However, the TDOC staff told him that he was not eligible for the credits

or parole because of his offense. The petitioner said that trial counsel led him to believe that

he was eligible for parole. He acknowledged, however, that trial counsel never promised he

would receive parole. The petitioner maintained that the possibility of parole was a “big

part” of his decision to plead guilty.

The petitioner said that trial counsel told him that the plea offer required him to plead

guilty to two lesser offenses in exchange for the dismissal of thirteen charges. The petitioner

did not like the twelve-year sentence attached to the plea offer. However, he acknowledged

that two convictions were better than thirteen convictions and that a fifteen-yearsentence was

better than a potential sentence of over one hundred years.

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The petitioner conceded that he knew he would be required to register as a sex

offender, but he maintained that “I didn’t really know what that means.”

The petitioner said that he was innocent of the charges but that he pled guilty because

he thought he did not have a defense to present at trial. Regarding the medical report,

petitioner acknowledged that his last alleged contact with H.O. was at leastseveral days prior

to the victim’s medical examination and that any DNA evidence would have been gone.

On redirect examination, the petitioner said that he had an eleventh-grade education

and that he had no previous criminal court experience. However, he acknowledged that he

had received a three-year probationary sentence for failure to pay child support. The

petitioner said he had learned that H.O. had previously made three allegations of sexual

abuse against members of her family. The petitioner thought the allegations called H.O.’s

character into question. The petitioner said that at the time of his guilty pleas, he was not

pleased with trial counsel’s representation but that he was not aware he could tell the trial

court he was dissatisfied.

On recross-examination, the petitioner said that he told trial counsel he did not want

to enter a plea but that he nevertheless signed the plea agreement. The petitioner said that

he wanted a sentence less than twelve years but that he pled guilty because he did not know

he had any other option.

Trial counsel testified that he was an assistant public defender and that his practice

was limited to criminal defense. Trial counsel said that he interviewed the petitioner’s

girlfriend, who was a potential witness, several times. He also spoke with the victims’

relatives, but none of them had information that contradicted the victims’ claims.

Specifically, trial counsel said that there was no evidence the victims had made false

allegations of sexual abuse. Trial counsel explained that the victims’ relatives “had bad

things to say about” the victims’ mother; however, they did not have anything bad to say

about the victims. None of the relatives’ allegations were helpful to the petitioner’s defense.

Trial counsel said that he met with the petitioner numerous times. Trial counsel had

extensive contact with the petitioner’s girlfriend and his mother. Trial counsel said that prior

to trial, he and the State engaged in plea negotiations. Ultimately, the parties came to an

agreement of fifteen years, with the provision that the plea would be entered over one month

later to afford the petitioner time to have dental work performed. After the agreement was

reached, the petitioner missed a court date. Plea negotiations resumed after the petitioner

was picked up by police. Trial counsel did not know if the petitioner’s failure to appear in

court would affect the plea or if the petitioner would face additional charges.

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Trial counsel said that he told the petitioner the plea agreement required him to plead

guilty to two counts of aggravated sexual battery and that the remaining charges would be

dismissed. Trial counsel advised the petitioner that he would receive “a 15-year sentence at

100 percent that could come down to 85 percent.” Trial counsel said, “I don’t know where

he got that number of 12 from.” Trial counsel denied that he and the petitioner discussed

parole or that he told the petitioner he would get out of prison early because of overcrowding.

Trial counsel stated that he spent a considerable amount of time explaining the plea

agreement to the petitioner and that the petitioner never indicated he did not understand it.

Trial counsel maintained that on the day of the plea, he again reviewed the plea agreement

with the petitioner, including the fifteen-year sentence to be served at 100%. The petitioner

never told trial counsel that he did not want to plead guilty and instead wanted to go to trial.

Trial counsel said that he would have stopped the plea hearing if the petitioner had appeared

confused. Trial counsel said that although he did not “specifically remember the exact

conversation,” his notes reflected that he and the petitioner discussed the sexual offender

registry and the lifetime supervision requirement in detail.

On cross-examination, trial counsel said that his notes reflected that he and the

petitioner discussed the sexual offender registry and lifetime supervision on the day of the

plea. He acknowledged that he did not recall any prior conversations about the sexual

offender registry and lifetime supervision. Trial counsel stated that he probably advised the

petitioner “that based upon the charges he was pleading to he would have to register multiple

times during the year. And that he would have to be in touch with somebody who was

supervising him, where he’s living, where he’s working . . . .” Trial counsel could not recall

if he advised the petitioner that he faced restrictions on where he could reside and that he

could not live with children. However, trial counsel said that “it seems like the types of

things we would have discussed.” Trial counsel acknowledged that the sexual offender

registry and lifetime supervision were not mentioned in the plea agreement form. Trial

counsel could not recall if the trial court informed the petitioner about the sexual offender

registry and lifetime supervision.

Regarding discovery, trial counsel said that he provided the petitioner a full copy of

everything he received immediately after trial counsel obtained it. Trial counsel said that the

petitioner “didn’t always want everything . . . like the statement for instance, he didn’t want

to listen to the statement.” Trial counsel explained that although the petitioner denied the

charges, he gave an incriminating statement to the police in which he admitted other sexual

contact with the victims, including watching pornographic movies and masturbating. He also

admitted that he took his son and the victims to a park, gave them condoms, and told them

to have sex. However, the petitioner never admitted having sexual intercourse with the

victims. Trial counsel stated that he and the petitioner discussed the lack of DNA evidence

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against the petitioner and the medical report.

After the hearing, the post-conviction court accredited the testimony of trial counsel,

finding that trial counsel thoroughly discussed the case with the petitioner, informed the

petitioner of the charges against him, and reviewed with the petitioner the conditions of the

guilty pleas, including the effective fifteen-year sentence, compliance with the sex offender

registry, and lifetime supervision. The post-conviction court found that trial counsel

investigated the case, spoke with witnesses, and discussed the medical report with the

petitioner. The post-conviction court found that the petitioner understood the guilty pleas he

entered. In conclusion, the post-conviction court found that the petitioner failed to establish

his claims by clear and convincing evidence and thus denied the petition.

On appeal, the petitioner contends that prior to the entry of his guilty pleas, trial

counsel failed to adequately inform him of the facts of his case; provide him with complete

discovery, including the medical report; and advise him of the potential sentences he could

receive if he were convicted at trial. The petitioner further contends that trial counsel told

him that he would receive a twelve-year sentence pursuant to the plea agreement and that it

could be reduced. The petitioner also believed he could be paroled. Finally, the petitioner

maintains that trial counsel failed to inform him that as a condition of his pleas, he would be

required to comply with the sex offender registry and submit to lifetime supervision. The

petitioner maintains that if he had been adequately represented and informed of his options,

he would not have pled guilty and would have insisted on going to trial.

II. Analysis

To be successful in a claim for post-conviction relief, a petitioner must prove factual

allegations contained in the post-conviction petition by clear and convincing evidence. See

Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means evidence in which

there is no serious or substantial doubt about the correctness of the conclusions drawn from

the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting

Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Issues regarding the

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

questions raised by the evidence adduced at trial are to be resolved by the post-conviction

court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore,

the post-conviction court’s findings of fact are entitled to substantial deference on appeal

unless the evidence preponderates against those findings. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. See

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s

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findings of fact de novo with a presumption that those findings are correct. See Fields, 40

S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law

purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, “the petitioner bears the burden of proving both that counsel’s performance was

deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,

369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish

deficient performance, the petitioner must show that counsel’s performance was below “the

range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a

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

proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Further,

[b]ecause a petitioner must establish both prongs of the

test, a failure to prove either deficiency or prejudice provides a

sufficient basisto deny relief on the ineffective assistance claim.

Indeed, a court need not address the components in any

particular order or even address both if the [petitioner] makes an

insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Moreover, in the context of

a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s

errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks

v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S.

52, 59 (1985).

When a defendant enters a plea of guilty, certain constitutional rights are waived,

including the privilege against self-incrimination, the right to confront witnesses, and the

right to a trial by jury. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in order

to comply with constitutional requirements a guilty plea must be a “voluntary and intelligent

choice among the alternative courses of action open to the defendant.” North Carolina v.

Alford, 400 U.S. 25, 31 (1970). In order to ensure that a defendant understands the

constitutional rights being relinquished, the trial court must advise the defendant of the

consequences of a guilty plea, and determine whether the defendant understands those

consequences. Boykin, 395 U.S. at 244.

In determining whether the petitioner’s guilty pleas were knowing and voluntary, this

court looks to the following factors:

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the relative intelligence of the defendant; the degree of his

familiarity with criminal proceedings; whether he was

represented by competent counsel and had the opportunity to

confer with counsel about the options available to him; the

extent of advice from counsel and the court concerning the

charges against him; and the reasons for his decision to plead

guilty, including a desire to avoid a greater penalty that might

result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

As we stated earlier, the post-conviction court accredited the testimony of trial

counsel. The court specifically found that the “petitioner’s testimony as to his understanding

of the length of sentence he was receiving is incredible.” The court found that trial counsel

investigated the case and shared the information he obtained with the petitioner, including

the medical report indicating there was no physical evidence linking the petitioner to the

crimes. The petitioner presented no witnesses at trial regarding his allegations that the

victims’ relatives would have helped his defense. Generally, “[w]hen a petitioner contends

that trial counsel failed to discover, interview, or present witnesses in support of his defense,

these witnesses should be presented by the petitioner at the evidentiary hearing.” Black v.

State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We may not speculate on what benefit

this witness might have offered to the petitioner’s case, nor may we guess as to what

evidence further investigation may have uncovered. Id. The transcript of the guilty plea

hearing clearly reflects that the trial court informed the petitioner that he could be given up

to 15% sentencing credit but that he was not guaranteed to receive the credit. Additionally,

at the plea hearing, trial counsel stated that the petitioner appeared a bit confused, but the

petitioner asserted that he understood the trial court’s explanation. At the post-conviction

hearing, the petitioner maintained that trial counsel incorrectly advised him that he could

receive a sentence of one hundred years or more if he were convicted at trial. The petitioner

was charged with ten counts of rape of a child, a Class A felony. See Tenn. Code Ann. § 39-

13-522(b). As a Range I offender, the petitioner could have received a sentence of fifteen

to twenty-five years for each offense. See Tenn. Code Ann. § 40-35-112(a)(1). If the trial

court had ordered the sentences to be served consecutively, the petitioner could have faced

a sentence of over one hundred years. The post-conviction court “acknowledge[d] that

lifetime supervision was not addressed during the plea colloquy.” However, the postconviction court found that trial counsel informed the petitioner that he would be required

to register with the sex offender registry and would be subject to lifetime supervision.

Therefore, the post-conviction court found that trial counsel was not ineffective and that the

petitioner’s guilty pleas were knowingly and voluntarily entered. The evidence does not

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preponderate against the findings of the post-conviction court. We conclude that the

petitioner is not entitled to relief.

III. Conclusion

In sum, we conclude that the petitioner is not entitled to relief. Therefore, the

judgment of the post-conviction court is affirmed.

_________________________________

NORMA McGEE OGLE, JUDGE

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