THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 18, 2021

MARCUS THOMAS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 108073 G. Scott Green, Judge

No. E2020-00751-CCA-R3-PC

The Petitioner, Marcus Thomas, appeals from the Knox County Criminal Court’s dismissal

of his petition for post-conviction relief from his guilty pleaded conviction to attempted 

first degree murder. On appeal, the Petitioner contends that the post-conviction court erred 

by dismissing his petition and denying relief on his claims alleging that his guilty plea was 

involuntary and unknowing and that he received the ineffective assistance of trial counsel. 

We affirm in part and reverse in part the post-conviction court’s judgment and remand the 

case for further proceedings.

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

Part; Reversed in Part; Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Joseph Liddell Kirk (on appeal) and Joshua D. Hedrick (at post-conviction hearing), 

Knoxville, Tennessee, for the appellant, Marcus Thomas.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant 

Attorney General; Charme P. Allen, District Attorney General; Leslie Nassios, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

On November 2, 2015, the Petitioner pleaded guilty to an attempted first degree

murder, during which the victim suffered serious bodily injury. The Petitioner’s indictment 

did not include the “serious bodily injury” sentencing enhancement; however, the 

Petitioner’s pleading guilty to the enhancement was a term of his plea agreement. See

07/21/2021
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T.C.A. § 40-35-501(k)(5) (supp. 2013) (subsequently amended). The Petitioner received 

a sentence of twenty years at 100 percent.

At the plea colloquy, the trial court asked the Petitioner if the Petitioner understood 

that he was agreeing to plead guilty to a sentencing enhancement that was not specified in 

the indictment. The Petitioner said that he understood this was a term of his plea agreement 

with the State. The prosecutor stated that had the Petitioner’s case proceeded to trial, the 

State would have presented the following evidence: The victim ended her romantic 

relationship with the Petitioner, and, a short time later, the Petitioner went to the victim’s 

home armed with a gun. The Petitioner struck the victim on her head with the gun and 

strangled the victim until she was unconscious. As the victim regained consciousness, the 

Petitioner repeatedly kicked the victim, causing injuries to her face. The Petitioner fired 

the gun at the victim, but the gun “jammed,” and the bullets did not strike her. At some 

point during the assault, the Petitioner’s father and brother arrived at the victim’s home and 

attempted to restrain the Petitioner. The Petitioner broke free and took a pocketknife from 

his brother. The Petitioner cut the victim’s ear and stabbed her in the left breast and the 

left side of her chest. During the assault, the Petitioner threatened to kill the victim, the 

victim’s son, and then himself. 

The Petitioner acknowledged that had his case proceeded to trial, he faced a 

potential sentence range of between 40 and 60 years. The Petitioner said that he understood 

he was agreeing to a twenty-year sentence to be served at 100 percent. The Petitioner said 

that he understood that additional counts in the indictment were being dismissed in 

exchange for his guilty plea. The Petitioner testified that he understood the guilty plea 

proceedings, that no one had forced or pressured him to plead guilty, and that no one had 

made any promises to him other than the terms of the plea agreement. The Petitioner 

identified his signed waiver of a jury trial and request for acceptance of a guilty plea form. 

The Petitioner stated that he understood he was waiving constitutional rights, including his 

right to a jury trial, his right to confront witnesses, and his right not to incriminate himself. 

The Petitioner said that he was satisfied with trial counsel’s representation. The Petitioner 

said that he understood he was waiving his right to appeal his conviction. The court found 

that the Petitioner knowingly and voluntarily waived his rights and accepted the 

Petitioner’s guilty plea.

The Petitioner filed a pro se petition for post-conviction relief. Appointed counsel 

filed an amended petition, and a post-conviction hearing was held on October 16, 2019. 

The Petitioner alleged that he received the ineffective assistance of counsel and that his 

plea was not knowing and voluntary. Specifically, the Petitioner argued that trial counsel 

did not advise the Petitioner about the sentencing enhancement for inflicting serious bodily 

injury, that counsel did not advise the Petitioner as to how an expert’s testimony could have 

mitigated the Petitioner’s culpability for attempted first degree murder, and that counsel 
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promised the Petitioner specific medical treatment in exchange for the Petitioner’s guilty 

plea. 

At the post-conviction hearing, the Petitioner testified that at the time the offense 

occurred, the Petitioner was taking anabolic steroids because he was a professional body 

builder. He said that steroids created “growth” and gave him a competitive edge in pursuit 

of his professional body building career. The Petitioner said that he became a “user” and 

that the steroids caused physical and mental side effects. The Petitioner said that he saw

Dr. Edward Kim, a urologist, to deal with issues caused by the steroid use. The Petitioner 

explained that he saw Dr. Kim for “dystrophy in the testicular area,” which caused the 

Petitioner constant pain and difficulty in “trying to conceive.” The Petitioner said that Dr. 

Kim discussed with him the mental side effects caused by the Petitioner’s steroid use. The 

Petitioner said the medical staff at the detention facility treated him for testicular pain and

determined that he was depressed and suicidal as a result of side effects caused by ceasing 

his steroid use. 

The Petitioner testified that he had a history of mental illness. He said that he had 

been admitted as a patient at Baptist Hospital, Lakeshore, and Peninsula. The Petitioner 

said that Dr. Gillespie treated and diagnosed the Petitioner in 1999. The Petitioner said 

that he discussed his use of steroids and his history of mental illness with trial counsel. The 

Petitioner said that he told counsel that the steroid use had affected his “mental judgment” 

and that counsel could consult the Petitioner’s lead mental health provider if counsel 

decided to obtain the Petitioner’s records. The Petitioner said that counsel spoke to Dr. 

Kim and that Dr. Kim assessed the Petitioner after the Petitioner’s arrest. The Petitioner 

said Dr. Kim issued a report regarding the Petitioner’s health. The Petitioner said that Dr. 

Kim’s conclusion that the Petitioner suffered from “steroid psychosis” was consistent with 

how the Petitioner’s perceived steroid use had affected him. 

The Petitioner testified that had his case gone to trial, Dr. Kim would have testified 

regarding the Petitioner’s diagnosis of steroid psychosis and how steroid psychosis might 

have affected the Petitioner’s mental health and decision-making ability during the offense. 

The Petitioner said that he received mental health treatment from Dr. Clifton Tennison and 

Mike Maurs at the detention facility. The Petitioner said that he experienced insomnia, 

high blood pressure, anxiety, scrotum testicular pain, and difficulty breathing. The 

Petitioner said that before his incarceration, Dr. Kim had performed surgery on the 

Petitioner’s genital area and that after his incarceration, the Petitioner suffered 

complications related to the surgery. The Petitioner said that he needed additional 

treatment related to the surgery but that he did not receive the necessary medical care while 

incarcerated. The Petitioner said that as a result of his not receiving medical care, he felt 

hopeless and suffered from a “testicular mass.” The Petitioner said that he discussed these 

problems with trial counsel before his guilty plea. The Petitioner said that counsel 
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requested the Petitioner receive a medical examination while he was incarcerated awaiting 

trial. 

The Petitioner testified that he had expected his case to proceed to a jury trial until 

shortly before he decided to plead guilty. The Petitioner stated that trial counsel initially 

had been confident that Dr. Kim’s findings would be helpful to the defense at the trial, but 

that two days before the trial date, counsel told the Petitioner that he was unsure whether 

Dr. Kim would be permitted to offer expert testimony regarding the Petitioner’s mental 

capacity on the day of the offense. The Petitioner said counsel’s recommendation was that 

it was in the Petitioner’s best interest to enter into a guilty plea agreement with the State. 

The Petitioner said that counsel explained to him the terms of the plea offer and promised 

the Petitioner he would receive medical treatment for his steroid abuse as a condition of 

his guilty plea. The Petitioner explained that he would not have pleaded guilty but for 

counsel’s promise that the Petitioner would receive specific medical treatment. The 

Petitioner said that after he pleaded guilty, he sought medical treatment from the Tennessee 

Department of Correction (TDOC). The Petitioner said that he was informed by the TDOC 

medical staff that neither the courts nor his counsel had the authority to determine what 

type of medical care the Petitioner would receive after he entered TDOC custody. The 

Petitioner said that he did not receive the promised medical care and that his symptoms 

persisted. The Petitioner explained that he had high blood pressure, breathing problems, 

and an inguinal hernia. The Petitioner said that his testicular problems had increased since 

entering TDOC custody. The Petitioner said that the doctors had evaluated him but that he 

had not received the recommended treatment. 

The Petitioner testified that he reviewed the terms of his plea agreement with trial 

counsel at the detention facility two days before his trial was scheduled to begin. The 

Petitioner said that the terms of the plea agreement included the Petitioner’s pleading guilty 

to an offense for which he was not indicted, specifically that the victim suffered serious 

bodily injury during the Petitioner’s attempted first degree murder. The Petitioner said that 

at the time of his guilty plea, he did not understand that pleading guilty to an unindicted 

offense violated his Fifth Amendment constitutional rights. The Petitioner said he never 

would have pleaded guilty had he known this. 

On cross-examination, the Petitioner agreed that he had pleaded guilty to robbery 

and aggravated assault in 2001, and to aggravated robbery, aggravated burglary, and sexual 

battery in 2002. The Petitioner said that he was familiar with guilty plea hearings and that 

he understood the plea process. The Petitioner said that at the time he pleaded guilty, he 

knew that he risked receiving a lengthy sentence if he proceeded to trial. The Petitioner 

confirmed that Dr. Kim visited the Petitioner in July 2015 at the detention facility. The 

Petitioner confirmed that the only reason he pleaded guilty was because the Petitioner 

believed he would receive specific medical treatment. 
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Trial counsel testified that he represented the Petitioner from the preliminary 

hearing to the resolution of the Petitioner’s case. Counsel said that he reviewed the 

Petitioner’s criminal history and that he received the State’s notice of intent to seek

enhanced punishment because of the Petitioner’s prior convictions. Counsel said he 

believed the Petitioner would likely be classified as a Range III offender if convicted. 

Counsel said that he was aware of the Petitioner’s medical condition regarding his use of 

anabolic steroids. Counsel explained that he learned of the Petitioner’s medical condition 

from the Petitioner and from the Petitioner’s family and that he took a detailed history 

associated with the Petitioner’s steroid use. Counsel said that based on this information, 

counsel retained Dr. Kim as an expert to evaluate the Petitioner to see if evidence existed

of diminished responsibility for the charged crimes. Counsel said that Dr. Kim examined 

the Petitioner and that counsel thoroughly reviewed Dr. Kim’s findings. Counsel said he 

was concerned that Dr. Kim’s primary area of expertise was urology and was unsure if Dr.

Kim would be qualified as an expert at trial and be allowed to testify regarding the 

Petitioner’s mental state. Counsel said that he observed the victim’s preliminary hearing 

testimony and believed that her trial testimony would “generate a great deal of sympathy 

from the jury.” Counsel said that the proof of the victim’s injuries included her testimony, 

medical records, and photographs. Counsel said he believed that the jury would find the 

victim’s testimony credible. Counsel said that he met with the Petitioner multiple times 

and negotiated a guilty plea agreement with the State. Counsel said he discussed with the 

Petitioner the Petitioner’s criminal history and the likely outcome of a trial. Counsel said 

that he reviewed the plea agreement with the Petitioner multiple times and was confident

the Petitioner understood the terms. Counsel said he reviewed the agreement with the 

Petitioner again the day the Petitioner pleaded guilty. Counsel said it was not his 

recollection that the Petitioner pleaded guilty because the Petitioner believed he would 

receive medical treatment related to his steroid use. Counsel thought the Petitioner pleaded 

guilty because of the possible sentence range and the likely guilty verdict if the Petitioner 

proceeded to trial. Counsel remembered discussing medical treatment with the Petitioner 

but said he made no promise the Petitioner would receive medical treatment. Counsel said 

he explained to the Petitioner that TDOC personnel would assess the Petitioner and 

determine whether the Petitioner needed medical care. 

On cross-examination, trial counsel agreed that the Petitioner had a competency 

evaluation at the Helen Ross McNabb Center. Counsel said that the center sent his office 

a request for information that might assist in its evaluation of the Petitioner. Counsel said 

the Petitioner’s evaluation showed that the Petitioner was competent at the time of the 

offense and competent to stand trial. Counsel agreed that when he sent information to the 

center, counsel did not provide information related to the Petitioner’s prior mental health 

diagnoses and treatment, nor did he provide information regarding the Petitioner’s steroid 

use. Counsel said that Dr. Kim’s evaluation of the Petitioner occurred after the center’s 

competency evaluation and that counsel did not seek to have a forensic expert review Dr. 

Kim’s report. 
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A transcript and a video recording of Dr. Kim’s deposition taken for the purposes 

of the post-conviction hearing were received as exhibits. 

Dr. Edward D. Kim testified that that he was a medical doctor specializing in 

urology. Dr. Kim said that he had practiced urology since 1995 and had taught residents 

and medical students since 1995. Dr. Kim said he engaged in research and writing in the 

medical field, and his specialty training involved male reproductive medicine, specifically 

focused on testosterone-related health issues. Dr. Kim said he was familiar with anabolic

steroid psychosis. When asked why a urologist was better qualified to discuss this mental 

health issue than a psychiatrist or psychologist, Dr. Kim explained that the underlying 

disorder was caused by anabolic steroid use. Dr. Kim said that psychosis and behavioral 

issues were potential side effects of anabolic steroid use. He explained that urologists and 

endocrinologists specialized in treating anabolic steroid use because the anabolic steroid 

use also caused significant health issues related to testosterone levels. Dr. Kim said that 

an anabolic steroid refers to a testosterone-based therapy that increases muscle mass. Dr. 

Kim said that his research and writing included the study of anabolic steroid psychosis. 

Dr. Kim said that the psychiatric effects of anabolic steroid use in men were welldocumented in the medical community, including studies utilizing MRIs that assessed how 

anabolic steroids affected brain function. Dr. Kim said that the medical community 

generally accepted the existence of anabolic steroid psychosis. 

Dr. Kim testified that the likely side effects of anabolic steroid use included low 

testosterone, erectile dysfunction, skin changes, and mood disturbances. Dr. Kim said that 

the psychiatric side effects of anabolic steroid use included aggression, violence, 

irritability, and loss of control leading to impulsivity. Dr. Kim explained that the side 

effects caused a lack of emotional and cognitive regulation. Dr. Kim stated that if an 

individual had an underlying psychiatric disorder, the use of anabolic steroids could

heighten an individual’s psychiatric symptoms. 

Dr. Kim testified that he knew the Petitioner and had treated the Petitioner for his 

use of anabolic steroids. Dr. Kim recalled he had seen the Petitioner regarding the 

Petitioner’s anabolic steroid use five times prior to the incident in this case. Dr. Kim 

recommended that the Petitioner stop using anabolic steroids because the Petitioner had 

testicular atrophy and problems with testicular function. Dr. Kim said that after the 

incident in this case, the Petitioner’s trial counsel retained Dr. Kim to interview the 

Petitioner and to provide a summary of the Petitioner’s use of anabolic steroids and their 

possible side effects on the Petitioner’s cognition and well-being. 

Dr. Kim testified that he was aware of the Petitioner’s psychiatric history. Dr. Kim 

said that during his interview of the Petitioner on July 8, 2015, Dr. Kim learned that the 

Petitioner had been hospitalized for six months at Lakeshore mental health facility in 

Knoxville. Dr. Kim said the Petitioner was admitted for “manic depression” and bipolar 
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disease. Dr. Kim said that after the Petitioner was discharged, the Petitioner received

psychiatric care from Dr. Gillespie at Baptist Hospital. Dr. Kim said that the Petitioner’s 

mental health history was important because Dr. Kim opined an individual could enter a 

“volatile” mental state if the individual had underlying depression and bipolar disease 

combined with the use of high doses of anabolic steroids. 

Dr. Kim testified that through his prior treatment of the Petitioner and his 

discussions with the Petitioner, Dr. Kim said he had enough information to form specific 

medical opinions about whether anabolic steroid use affected the Petitioner’s mental state 

at the time of the offense. Dr. Kim said in 2015, he created a report containing these 

findings and gave it to the Petitioner’s trial counsel. Dr. Kim stated that the steroids could 

have had a “major impact” on the Petitioner’s behavior. Dr. Kim explained that in 2013, 

the Petitioner had been taking high doses of steroids in preparation for a body building 

competition and that the assault occurred in July 2013. Dr. Kim stated, “Based on the 

temporal correlation and the high doses of steroids and their duration, with a reasonable 

degree of medical certainty, one could conclude that [the Petitioner’s] use of anabolic 

steroids affected his behavior.” Dr. Kim said that the Petitioner had a loss of impulse 

control due to the steroid psychosis and that the Petitioner reported having delusions and 

“constant mania” shortly before the incident. Dr. Kim explained that steroid psychosis 

would cause the Petitioner to have an altered view of reality and that the Petitioner’s 

symptoms were consistent with steroid psychosis. He said that because of the high levels 

of testosterone in the Petitioner’s body, the Petitioner would not have been able to 

distinguish between appropriate and inappropriate behavior. Dr. Kim said that had he been 

called to testify at a trial for the Petitioner, his testimony would be substantially the same 

as his post-conviction hearing testimony. Dr. Kim’s written report prepared after 

evaluating the Petitioner was received as an exhibit. On cross-examination, Dr. Kim 

confirmed that he had not done blood work on the Petitioner to confirm that he had taken 

anabolic steroids at the time of the incident. Dr. Kim said that he did not doubt the 

Petitioner was taking anabolic steroids based on the physical symptoms Dr. Kim observed. 

In a written order, the post-conviction court found that the Petitioner had received 

the effective assistance of trial counsel and that the Petitioner’s guilty plea was knowing 

and voluntary. The court credited counsel’s testimony that the victim would have been a 

sympathetic witness had she testified at trial and that the Petitioner pleaded guilty to 

minimize his exposure to a potentially lengthy sentence. The court found that counsel’s 

performance did not fall below an objective standard of reasonableness and entered an 

order denying relief and dismissing the petition. This appeal followed. 

On appeal, the Petitioner contends that the post-conviction court erred by 

concluding that the Petitioner received the effective assistance of trial counsel and that his 

guilty plea was knowingly and voluntarily entered. The Petitioner argues that his plea was 

involuntary and unknowing because counsel did not properly advise the Petitioner about 
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the Petitioner’s sentencing enhancement for inflicting serious bodily injury. The Petitioner 

also argues that he received the ineffective assistance of counsel because trial counsel did 

not properly advise the Petitioner regarding the use of Dr. Kim’s expert testimony to 

mitigate the Petitioner’s culpability for attempted first degree murder and because counsel 

promised the Petitioner specific medical treatment in exchange for his guilty plea.

Post-conviction relief is available “when the 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.” T.C.A. § 40-30-103 (2018). A

petitioner has the burden of proving his factual allegations by clear and convincing 

evidence. Id. § 40-30-110(f) (2018). A post-conviction court’s findings of fact are binding 

on appeal, and this court must defer to them “unless the evidence in the record 

preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); 

see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s 

application of law to its factual findings is subject to a de novo standard of review without 

a presumption of correctness. Fields, 40 S.W.3d at 457-58. 

To establish a post-conviction claim of the ineffective assistance of counsel in 

violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s 

performance was deficient and (2) the deficient performance prejudiced the defense. 

Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 

364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to 

an accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See 

State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner must satisfy both prongs of the Strickland test in order to prevail in an 

ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove 

either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective 

assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the 

performance prong, a petitioner must show that “the advice given, or the services rendered 

. . . are [not] within the range of competence demanded of attorneys in criminal cases.” 

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The 

post-conviction court must determine if these acts or omissions, viewed in light of all of 

the circumstances, fell “outside the wide range of professionally competent assistance.” 

Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may 

not second-guess a reasonably based trial strategy by his counsel, and cannot criticize a 

sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 

Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference, 

however, only applies “if the choices are informed . . . based upon adequate preparation.” 

Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice 

prong, a 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.” Strickland, 
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466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id.

The Supreme Court has concluded that a guilty plea must represent 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). A trial court must examine in detail “the matter 

with the accused to make sure he has a full understanding of what the plea connotes and of 

its consequence.” Boykin v. Alabama, 395 U.S. 238, 243-44 (1969); see Blankenship v. 

State, 858 S.W.2d 897, 904 (Tenn. 1993). Appellate courts examine the totality of 

circumstances when determining whether a guilty plea was voluntarily and knowingly 

entered. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). A guilty plea is 

not voluntary if it is the result of “[i]gnorance, incomprehension, coercion, terror, 

inducements, [or] subtle or blatant threats.” Boykin, 395 U.S. at 242-43; see Blankenship, 

858 S.W.2d at 904. A petitioner’s representations and statements under oath that his guilty 

plea is knowing and voluntary create “a formidable barrier in any subsequent collateral 

proceedings [because] [s]olemn declarations . . . carry a strong presumption of verity.” 

Blackledge v. Allison, 431 U.S. 63, 74 (1977). 

In the context of a guilty plea, a petitioner claiming ineffective assistance of counsel 

must prove counsel performed deficiently and “there is a reasonable probability that, but 

for counsel’s errors, [the petitioner] would not have pled guilty and insisted on going to 

trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also McMann v. Richardson, 397 U.S. 

759, 770-71 (1970). Thus, the primary consideration is whether counsel’s deficient 

performance “affected the outcome of the plea process.” Hill, 474 U.S. at 59. 

In its order denying the Petitioner relief, the post-conviction court found that nothing 

in the record supported the Petitioner’s allegation that the Petitioner’s guilty plea was

unknowing and involuntary. The court found that the Petitioner was familiar with the 

criminal justice system because he had previously pleaded guilty to other offenses. The 

court determined that the Petitioner did not receive the ineffective assistance of counsel 

because of counsel’s failure to pursue a defense related to the Petitioner’s use of anabolic 

steroids. The court reasoned that the Petitioner was not taking steroids at the time of his 

guilty plea, thus, trial counsel was not deficient. The court determined that the Petitioner 

also failed to establish prejudice. The court credited counsel’s testimony that the victim 

would have been a “sympathetic and effective” witness. The court also found that the 

Petitioner knowingly accepted the State’s guilty plea offer in order to reduce his risk of 

being sentenced as a multiple offender with potential consecutive sentencing. 
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I. Sentencing Enhancement

The Petitioner argues that his guilty plea was not knowing and voluntary because 

trial counsel did not properly advise the Petitioner about the “serious bodily injury” 

sentencing enhancement. 

As a general principle, “‘[s]entencing is jurisdictional and must be executed in 

compliance with the [applicable Sentencing] Act.’” Davis v. State, 313 S.W.3d 751, 759 

(Tenn. 2010) (quoting McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000)). Our 

supreme court, however, has concluded that in the context of plea agreements, offender 

range classification and release eligibility are not jurisdictional. Davis, 313 S.W.3d at 760; 

see Hoover v. State, 215 S.W.3d 776, 780 (Tenn. 2007) (stating that “a knowing and 

voluntary guilty plea waives any irregularity as to offender classification or release 

eligibility”); see also Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997). As a result, an 

agreed upon 

“hybrid” sentence that “mixes and matches” range assignment, term of 

years, and release eligibility without regard to what our sentencing scheme 

might call for absent a plea bargain [is valid] so long as (1) the term of years 

is within the overall range of years specified for the offense . . . and (2) the 

[release eligibility date] is not less than the minimum allowable for the 

offense. 

Davis, 313 S.W.3d at 760. Specifically, our supreme court has concluded that pursuant to 

a negotiated plea agreement, a defendant may be sentenced according to a range 

classification that is greater than a classification based on a defendant’s previous 

convictions. See State v. Mahler, 735 S.W.2d 226, 227-28 (Tenn. 1987). Therefore, “[a] 

plea-bargained sentence may legally exceed the maximum available in the offender Range 

so long as the sentence does not exceed the maximum punishment authorized for the plea 

offense.” Hoover, 215 S.W.3d at 780. 

The terms of the plea agreement required the Petitioner to plead guilty to attempted 

first degree murder during which the victim suffered serious bodily injury. The “serious 

bodily injury” sentencing enhancement was not included in the Petitioner’s indictment, but 

the Petitioner stated that he understood this and agreed to this plea agreement term. At the 

post-conviction hearing, the parties and the trial court mistakenly thought that the “serious 

bodily injury” sentencing enhancement was not in effect at the time of the Petitioner’s 

offense. However, if a defendant is found guilty of attempted first degree murder and “the 

victim suffers serious bodily injury,” the defendant is not eligible for release until the 

defendant has served eighty-five percent of the sentence. See T.C.A. § 40-35-501(k)(5). 

This provision went into effect on July 1, 2013. See id. Thus, the “serious bodily injury” 

sentencing enhancement was in effect at the time of the Petitioner’s July 13, 2013 offense. 
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This sentencing enhancement was discussed at the guilty plea hearing, and the record 

supports the court’s finding that the Petitioner understood that he was pleading guilty to an 

unindicted sentencing enhancement. The Petitioner is not entitled to relief regarding this 

issue.

II. Expert Testimony 

The Petitioner argues that his plea was not knowing and voluntary because he 

received the ineffective assistance of counsel by trial counsel’s failing to utilize Dr. Kim’s 

testimony at trial.

The post-conviction court failed to address the Petitioner’s claim of ineffective 

assistance of counsel regarding expert testimony specified in the Petitioner’s petition for 

post-conviction relief. The Petitioner argued that trial counsel was ineffective for failing 

to make use of Dr. Kim’s testimony regarding the Petitioner’s mental state. The court 

reasoned that the Petitioner was not taking steroids at the time the guilty plea was entered. 

However, this is not relevant for determining whether the Petitioner received the ineffective 

assistance of counsel by counsel’s failure to utilize Dr. Kim’s testimony and report 

regarding the effects of steroids on the Petitioner’s mental state at the time of the offense. 

We remand the case for further findings regarding this issue.

III. Medical Treatment

The Petitioner argues that his plea was not knowing and voluntary because he 

received the ineffective assistance of counsel by trial counsel’s promising the Petitioner he 

would receive specific medical treatment while in TDOC custody.

The post-conviction court has failed to address the Petitioner’s claim of ineffective 

assistance of counsel regarding medical treatment specified in the Petitioner’s petition for 

post-conviction relief. The Petitioner argued that his guilty plea was not knowingly entered 

because it was induced by trial counsel’s promises that the Petitioner would receive 

medical treatment related to his steroid use. The Petitioner testified that but for counsel’s 

promises of medical treatment, the Petitioner would not have pleaded guilty. Counsel 

testified that he made no such promises to the Petitioner. However, the court did not make 

a finding regarding medical treatment and failed to address whether the Petitioner was 

induced by counsel to plead guilty in exchange for medical treatment related to his steroid 

use. We remand the case for further findings regarding this issue.

We affirm the post-conviction court’s finding that the Petitioner understood he was 

pleading guilty to an unindicted sentencing enhancement. However, the post-conviction 

court did not meet the requirements of Tennessee Code Annotated section 40-30-111(b)

when it failed to state its findings of fact and conclusions of law with regard to the 
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Petitioner’s other grounds for relief. The “absence of findings of fact and conclusions as 

to all issues prevents this court from discharging its duties of appellate review.” Darrell 

A. Cooper v. State, No. E2019-02132-CCA-R3-PC, 2020 WL 6112987, at *7 (Tenn. Crim. 

App. Oct. 16, 2020) (remanding case because the post-conviction court failed to make any 

findings of fact and conclusions of law with respect to the issues raised). Thus, the

judgment of the post-conviction court is reversed in part, and this case is remanded for 

findings of fact and conclusions of law regarding the Petitioner’s claims that trial counsel 

was ineffective for failing to utilize Dr. Kim’s report regarding the effects of steroid use on 

the Petitioner’s mental state at the time of the offense and that the Petitioner was induced 

to plead guilty based on counsel’s promise the Petitioner would receive specific medical 

care while in TDOC custody. 

 ____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE