IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 9, 2020

WINFORD PAUL WILHOITE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Maury County

No. 25743 Stella L. Hargrove, Judge

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No. M2019-02198-CCA-R3-PC

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In 2017, the Petitioner, Winford Paul Wilhoite, pleaded guilty as charged in case number 

25743 to possession with intent to sell 0.5 grams or more of methamphetamine, simple 

possession of Lortab, possession of drug paraphernalia, criminal impersonation, and 

driving on a revoked license (second offense).

1

 See Tenn. Code Ann. §§ 39-17-434, 39-

17-418, 39-17-425, 39-16-301, 55-50-504. Following a sentencing hearing, the trial court 

imposed an effective sentence of ten years. Thereafter, the Petitioner filed a petition for 

post-conviction relief, alleging, in part, that he received ineffective assistance of counsel. 

Counsel for the Petitioner was appointed, and an amended petition was filed. The postconviction court denied relief, and the Petitioner appeals. After review, we affirm the postconviction court’s judgment. 

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J., joined. ALAN E. GLENN, J., not participating.

John M. Schweri, Columbia, Tennessee, for the Petitioner, Winford Paul Wilhoite. 

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant 

Attorney General; Brent A. Cooper, District Attorney General; and Adam Davis, Assistant 

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

OPINION

 

1 The same day, the Petitioner also pleaded guilty as charged in case number 26127 to simple 

possession of methamphetamine and violation of the seatbelt law. See Tenn. Code Ann. §§ 39-17-434(b), 

55-9-603. The trial court ordered the sentences for these misdemeanor convictions served concurrently to 

the sentences in case number 25743. This appeal concerns only the convictions in case number 25743. 

07/13/2021
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In May 2017, the Petitioner was indicted by the Maury County Grand Jury in Count 

1 for possession with intent to sell 0.5 grams or more of methamphetamine, in Count 2 for

simple possession of Lortab, in Count 3 for possession of drug paraphernalia, in Count 4 

for criminal impersonation, and in Count 5 for driving on a revoked license (second 

offense). 

At the plea submission hearing, the Petitioner indicated his desire to enter “open” 

guilty pleas to all five counts as a Range I offender, with the trial court to determine his 

sentences following a sentencing hearing. The court informed the Petitioner of the rights 

he was waiving by entering his guilty pleas, including his right to a trial by jury, wherein 

he could confront and cross-examine the State’s witnesses and call witnesses on his behalf, 

and the Petitioner acknowledged the rights he was waiving by pleading guilty. The 

Petitioner also stated at this hearing that he was fully satisfied with trial counsel’s 

representation of him. The trial court informed the Petitioner that the State had agreed that 

he would be sentenced as a Range I offender, despite his prior felony convictions, which 

meant that he faced a sentence of eight to twelve years for the count charging him with

possession with intent to sell methamphetamine. At the request of the court, trial counsel

provided the following factual basis for the Petitioner’s guilty plea to Count 1, his only 

charged felony: 

Your Honor, on March 11th of 2017, [the Petitioner’s] vehicle was 

stopped outside his residence by Officer Landon Barber for a traffic offense. 

Upon discussions with [the Petitioner] and . . . a search of his person and 

vehicle, there was discovered a felony amount of meth[amphetamine], over 

point five grams . . . . 

The officers had some difficulty in pulling up [the Petitioner’s] 

driving record because he did not give them a full and complete name at the 

time, which would go to criminal impersonation. 

The methamphetamine at the time was packaged in two separate bags 

and that would be the basis for the resale charge.

The Petitioner acknowledged that this factual basis was correct. After explaining to the

Petitioner that the felony conviction for possession with intent to sell methamphetamine

could be used to increase punishment for offenses in the future, the trial court determined 

that the Petitioner had entered his guilty pleas “freely, voluntarily, knowingly, and 

intelligently, upon advice of counsel” before accepting the pleas. 
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At the January 19, 2018 sentencing hearing, the trial court specifically referenced 

the presentence investigation report, which showed that the Petitioner admitted to the 

arresting officer that “he sells meth[amphetamine] to help out with providing for his 

family” and that he “buys [the methamphetamine] online and gets it shipped in from 

Colorado.” The presentence investigation report also showed that the Petitioner’s criminal 

history included felony convictions for aggravated assault and burglary, and two felony 

convictions for theft. At the conclusion of this hearing, the trial court sentenced the 

Petitioner as a Range I, standard offender to concurrent sentences of ten years for Count 1, 

eleven months and twenty-nine days for Counts 2, 3, and 5, and six months for Count 4, 

for an effective sentence of ten years in prison at thirty percent release eligibility. 

On January 18, 2019, the Petitioner timely filed a pro se petition for post-conviction 

relief, asserting a multitude of claims including ineffective assistance of counsel. 

Thereafter, the Petitioner was appointed counsel, who filed an amended petition

incorporating the first petition and alleging, in part, that trial counsel provided ineffective 

assistance by encouraging the Petitioner plead guilty without conducting an appropriate 

investigation. 

At the post-conviction hearing, trial counsel, an assistant public defender, testified 

that she was appointed to represent the Petitioner in general sessions court. She stated that 

just prior to the preliminary hearing, the Petitioner told her he did not want the public 

defender’s office to represent him because “he was trying to create a conflict so that he 

could get a private attorney.” Trial counsel explained that after she was able to get the 

Petitioner’s probation violation, which stemmed from these charges, dismissed in circuit 

court, the Petitioner asked her to continue representing him.

Trial counsel asserted that she and the Petitioner discussed the weight of the drugs 

that were found in his possession at the time of his arrest, stating:

I remember having a conversation with [the Petitioner] in the 

courtroom. I think he may have thought there was something about the 

weight, . . . not all of it being methamphetamine. They thought it was all 

methamphetamine; some was MDMA. I thought at the time that . . . since 

he was charged for [possession of methamphetamine] with resale, that 

pursuing the MDMA would have been an exercise in futility because it is a 

Schedule I [drug] and not probatable, but I do recall having a conversation 

[about] that and [the Petitioner] having concerns about that.
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Trial counsel stated that while she did not have the drugs in this case independently tested, 

the lab report from the Tennessee Bureau of Investigation (TBI), which she received 

during discovery, included weights for each of the drugs. She said that she routinely 

copies all discovery for her clients and that “to the best of [her] knowledge, [the Petitioner] 

received a copy [of this lab report] and saw the results[,]” which included a separate 

weight for the methamphetamine. 

Trial counsel said that she and the Petitioner also discussed his potential sentence

and that the Petitioner knew he could be classified as a Range II offender if he proceeded 

to trial. However, she said that during plea negotiations, the State agreed to allow the 

Petitioner to enter “open” guilty pleas to the charges as a Range I offender and then be 

sentenced by the trial court.

Trial counsel stated that she argued for a ten-year sentence at the sentencing hearing

because that sentence enabled the Petitioner to be eligible for probation. She added:

I think someone with [the Petitioner’s] record, . . . in my opinion and in my 

strategy and trying to get him probation, anything less than a full sentence, 

that acknowledging the fact that there is a dead horse in the room, you can’t 

get around that, acknowledging the fact that he had a record but he helped 

the police and he did this and this. If he got some jail time but not [the] full 

ten years, to me, that would have been a victory. And I thought it was a little 

futile to argue eight years, but that’s . . . my opinion as an attorney. 

In addition, trial counsel said the Petitioner’s sentencing hearing transcript showed that she 

argued for “a sentence of Community Correction[s] with one year to serve, split 

confinement.” 

Trial counsel said that she reviewed the video recording of the traffic stop and 

determined that the officer had reasonable suspicion to stop the Petitioner. She also 

reviewed the TBI Official Forensic Chemistry Report, which was admitted as an exhibit 

and provided that the 3,4-Methylenedioxymethamphetamine (MDMA) weighed 0.44 

gram, that the methamphetamine weighed 0.63 gram, and that one of the two tablets 

recovered from the Petitioner was hydrocodone. She said there was never an issue about 

weight of the MDMA being added to the methamphetamine to make the weight of the 

methamphetamine more than 0.5 grams. Trial counsel noted that “[the Petitioner] made 

some . . . statements to I think Officer Barber that he was selling [methamphetamine] 

because he wouldn’t make ends meet and had children to support.” She explained that the 

weight of the methamphetamine, along with the Petitioner’s admission to police, was more 
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than enough for the State to prove that the Petitioner was guilty of possession with intent 

to sell 0.5 grams or more of methamphetamine. 

Trial counsel stated that before the Petitioner entered his guilty pleas, she explained 

to the Petitioner and his wife that if the Petitioner proceeded to trial, he could receive a 

sentence of twelve to twenty years, but if the Petitioner entered guilty pleas as a Range I 

offender pursuant to the State’s offer, he would face a sentence of eight to twelve years 

and that “[a]nything that was ten years or less was eligible for probation.” She also 

informed them that she would argue for some mitigating factors at the sentencing hearing 

and that if the Petitioner decided to reject the offer and proceed to trial, he could testify or

choose not to testify. During this discussion, the Petitioner and his wife agreed that “it 

would be better to [plead guilty and] set the sentencing hearing off until January.”

The Petitioner also testified at the post-conviction hearing. He said he informed 

trial counsel that he wanted a new attorney after she told him that he could not win at trial 

and presented him with the State’s offer of ten years. The Petitioner said he only agreed 

to allow trial counsel to continue representing him when he was unable to hire a private

attorney and believed he had no other option. He said trial counsel appeared at his home 

one week prior to his trial and informed him that she could not “beat” his charges but that 

if he entered guilty pleas, he could stay out of jail until after Christmas, and the Petitioner 

agreed to plead guilty. The Petitioner acknowledged that trial counsel reviewed the plea 

process with him, that she explained the rights he was waiving by entering his guilty pleas, 

and that she discussed the fact that he might not receive probation at the sentencing 

hearing. He further acknowledged that trial counsel told him he could face Range II 

sentencing, which would require him to serve twelve to twenty years, if he proceeded to 

trial rather than entering “open” guilty pleas as a Range I offender. 

 

The Petitioner asserted that the weight for the methamphetamine was “wrong”

because “the weight was added together and weighed within the bags on the scene.” He 

said he observed the police weighing all the drugs inside the bags on the hood of their

patrol car. At the conclusion of the Petitioner’s testimony, the trial court stated, “[F]or the 

past 42 years, it is this Judge’s understanding that TBI always separates the product from 

the bag when they weigh it[,]” and then asked, “Do you have any evidence to the 

contrary?[,]” and the Petitioner replied, “No, ma’am.” 

 

On June 28, 2019, the post-conviction court entered an order denying relief. In it, 

the court made the following findings of fact and conclusions of law: 

The Court finds that [trial counsel] fully investigated this case and 

shared all discovery with Petitioner prior to him entering his plea. The record 

reflects that Petitioner was satisfied with her continuing representation, from 
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the time he waived a preliminary hearing to open plea and sentencing. The 

Court finds that [trial counsel] advocated for a probatable sentence and/or 

split confinement in the face of Petitioner’s felony criminal history. 

The Court finds that Petitioner fails to establish a reasonable 

probability that, but for the alleged errors of his counsel, he would not have 

entered the plea and would have insisted on going to trial. . . .

The Court finds that Petitioner fails to establish a reasonable 

probability that, but for counsel’s errors that he alleges, the result of the 

proceedings would have been different. Indeed, the outcome could have 

been worse, upon a range notice by the State and a conviction by a jury of 

the indicted felony charge.

The Court finds that its colloquy with Petitioner substantially 

complies with the litany of constitutional rights mandated by Boykin[], and 

Johnson v. State, 834 S.W.2d 922 (Tenn. 1922). 

The Court finds that Petitioner received effective assistance of 

counsel. Petitioner had excellent representation by an experienced and very 

thorough and conscientious attorney. [Trial counsel] protected and 

safeguarded Petitioner’s rights at every stage. 

The Petition has no merit. 

The Court finds that Petitioner fails to carry his burden of proof that 

he is entitled to Post-Conviction Relief. 

On December 17, 2019, this court granted the Petitioner permission to file an untimely 

notice of appeal, and considered the Petitioner’s notice of appeal as timely filed on the 

same date. 

ANALYSIS

The Petitioner argues that trial counsel provided ineffective assistance. Specifically, 

he asserts that trial counsel “fail[ed] to properly investigate beyond the facts as presented 

to her by law enforcement,” “fail[ed] to prepare any type of defense,” and failed to present 

him with “the option to testify and/or call witnesses on his behalf.” He claims that but for 

trial counsel’s errors, he would not have entered his guilty pleas and would have proceeded 

to trial, where he insists he would have been convicted only of simple possession of 

methamphetamine. The State counters that the post-conviction court properly denied 
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relief. We conclude that the Petitioner has failed to establish that trial counsel provided 

ineffective assistance. 

Post-conviction relief is only warranted when a petitioner establishes that his or her 

conviction or sentence is void or voidable because of an abridgement of a constitutional 

right. Tenn. Code Ann. § 40-30-103. A post-conviction petitioner has the burden of 

proving the factual allegations by clear and convincing evidence. Id. § 40-30-110(f); see

Tenn. Sup. Ct. R. 28, § 8(D)(1); Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014). 

Evidence is considered clear and convincing when there is no serious or substantial doubt 

about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562 

(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983 

S.W.2d 240, 245 (Tenn. Crim. App. 1998). 

A claim for post-conviction relief based on alleged ineffective assistance of counsel 

presents a mixed question of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 

2013) (citing Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). This court reviews “a 

post-conviction court’s conclusions of law, decisions involving mixed questions of law and 

fact, and its application of law to its factual findings de novo without a presumption of 

correctness.” Whitehead v. State, 402 S.W.3d 615, 621 (Tenn. 2013) (citing Felts v. State, 

354 S.W.3d 266, 276 (Tenn. 2011); Calvert, 342 S.W.3d at 485). However, a postconviction court’s findings of fact are conclusive on appeal unless the evidence in the 

record preponderates against them. Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297 

S.W.3d at 216; State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). “Accordingly, appellate 

courts are not free to re-weigh or re-evaluate the evidence, nor are they free to substitute 

their own inferences for those drawn by the post-conviction court.” Whitehead, 402 

S.W.3d at 621 (citing State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001)). “As a general 

matter, appellate courts must defer to a post-conviction court’s findings with regard to 

witness credibility, the weight and value of witness testimony, and the resolution of factual 

issues presented by the evidence.” Id. (citing Momon v. State, 18 S.W.3d 152, 156 (Tenn.

1999)).

The right to effective assistance of counsel is protected by the United States

Constitution and the Tennessee Constitution. U.S. Const. amend. VI; Tenn. Const. art. I, § 

9. In order to prevail on an ineffective assistance of counsel claim, the petitioner must 

establish that (1) his lawyer’s performance was deficient and (2) the deficient performance 

prejudiced the defense. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Strickland v.

Washington, 466 U.S. 668, 687 (1984). A petitioner successfully demonstrates deficient 

performance when the petitioner establishes that his attorney’s conduct fell “below an 

objective standard of reasonableness under prevailing professional norms.” Goad, 938 

S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936
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(Tenn. 1975)). To establish prejudice in the context of a guilty plea, a petitioner must show 

that, but for counsel’s errors, the petitioner would not have entered his guilty plea and 

would have proceeded to trial. Serrano v. State, 133 S.W.3d 599, 605 (Tenn. 2004) (citing 

Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “Because a petitioner must establish both prongs 

of the test, a failure to prove either deficiency or prejudice provides a sufficient basis to 

deny relief on the ineffective assistance claim.” Goad, 938 S.W.2d at 370.

In assessing an attorney’s performance, we “must be highly deferential and should 

indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Burns, 6 S.W.3d at 462 (citing Strickland, 466 U.S. 

at 689). In addition, we must avoid the “distorting effects of hindsight” and must “judge 

the reasonableness of counsel’s challenged conduct on the facts of the particular case, 

viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. 689-90. “No particular 

set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of 

circumstances faced by defense counsel or the range of legitimate decisions regarding how 

best to represent a criminal defendant.” Id. at 688-89. However, “‘deference to matters of 

strategy and tactical choices applies only if the choices are informed ones based upon 

adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (quoting Goad, 

938 S.W.2d at 369).

Here, the Petitioner claims, in part, that although trial counsel reviewed the

lawfulness of his stop, she failed to conduct “any real investigation” beyond the facts as 

presented to her by police and failed to prepare any type of defense. He asserts that had 

counsel properly prepared a defense, there is a reasonable probability that he would have 

been convicted of the lesser included offense of simple possession of methamphetamine, 

particularly in light of the “very small amount of controlled substances, the lack of scales 

or large amounts of money, and the failure of the police (and defense counsel) to 

investigate.” The Petitioner maintains that because of trial counsel’s ineffectiveness, he 

entered “open” guilty pleas to all of his charges, even though he could have gone to trial, 

where the State would have been required to meet its burden of proof and he would have

had the opportunity to present a defense. He states that “[t]he only small concession trial 

counsel procured for [him] in this case was that he would not face a potential multiple 

offender (range two) sentence if convicted as charged.” 

As support for his ineffective assistance of counsel claim, the Petitioner argues that 

the State’s factual basis for Count 1 showed an “overly simplistic approach to the felony 

case.” He notes that the prosecutor stated that “a felony amount” of methamphetamine, 

more than 0.5 grams, had been recovered from the Petitioner before asserting that “[t]he 

methamphetamine at the time was packaged in two separate bags and that would be the 

basis for the resale charge.” The Petitioner recognizes, pursuant to Tennessee Code 

Annotated section 39-17-419, that “[i]t may be inferred from the amount of a controlled 
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substance or substances possessed by an offender, along with other relevant facts 

surrounding the arrest, that the controlled substance or substances were possessed with the 

purpose of selling or otherwise dispensing.” However, he asserts that this statutory 

presumption “does not mean that over .5 gram of methamphetamine is ‘a felony amount’” 

and that the charged offense was “possession with the intent to sell, not merely possessing 

over 0.5 gram.” Moreover, the Petitioner, while acknowledging that he “allegedly” made 

statements admitting that he sold methamphetamine, asserts that the State never 

corroborated his alleged statements to police and contends that the “may be inferred” 

language in Code section 39-17-419 “is a far cry” from proof beyond a reasonable doubt 

that he possessed the methamphetamine with the intent to sell it. 

At the post-conviction hearing, trial counsel testified that aside from evidence 

regarding the weight of the methamphetamine, there was also evidence that the Petitioner

admitted to police that he sold methamphetamine. The trial court, at the Petitioner’s 

sentencing hearing, also noted that the Petitioner had admitted to the arresting officer that 

“he sells meth[amphetamine] to help out with providing for his family” and that he “buys 

[the methamphetamine] online and gets it shipped in from Colorado.” The record clearly 

shows that the Petitioner had more than .5 grams of methamphetamine, that his 

methamphetamine was packaged in two different bags, and that he admitted to police that 

he regularly sold methamphetamine. Despite the overwhelming evidence of the 

Petitioner’s guilt, trial counsel obtained a favorable offer allowing the Petitioner to enter 

guilty pleas to the charged offenses as a Range I offender, rather than a Range II offender, 

which substantially reduced the sentence he faced and allowed for the possibility of a 

probationary sentence. The record also shows that the Petitioner, after being advised by 

trial counsel and considering the evidence against him, wisely chose to enter guilty pleas 

pursuant to this offer rather than proceed to trial, where he most likely would have been 

found guilty and given a greater sentence as a Range II offender. Accordingly, the 

Petitioner has failed to prove that trial counsel’s performance was deficient. Moreover, we

agree with the State that the Petitioner has failed to explain what investigation he believes 

trial counsel should have conducted or what such an investigation would have revealed and 

has failed to identify any legitimate defenses trial counsel could have raised in his case. 

Consequently, the Petitioner has also failed to prove that trial counsel’s performance was 

prejudicial. Because the Petitioner has failed to establish that that trial counsel provided 

ineffective assistance regarding these claims, he is not entitled to relief.

Lastly, as to the Petitioner’s claim that trial counsel failed to present him with “the 

option to testify and/or call witnesses on his behalf,” we note that although the Petitioner 

generally alleged ineffective assistance of counsel, he failed to specifically raise any claim 

in his post-conviction petition or amended petition about counsel’s failure to advise him of 

his right to testify or call witnesses. Moreover, the record shows that the Petitioner failed 

to raise this claim at the post-conviction hearing, and, consequently, the post-conviction 
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court never addressed it in its order denying relief. Accordingly, we conclude that this 

issue is waived. See Walsh v. State, 166 S.W.3d 641, 645 (Tenn. 2005) (“Issues not 

addressed in the post-conviction court will generally not be addressed on appeal.”); 

Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004) (“[A]n issue raised for 

the first time on appeal is waived.”). 

Waiver notwithstanding, the Petitioner admitted at the post-conviction hearing that 

trial counsel explained the guilty plea process to him and reviewed the rights he was 

waiving by entering his guilty pleas. Trial counsel testified that she told the Petitioner if 

he decided to reject the State’s offer, he could proceed to trial, where he could decide 

whether to testify or not testify. At the plea submission hearing, the trial court informed 

the Petitioner of the rights he was waiving by entering his guilty pleas, including his right 

to a trial by jury, wherein he could confront and cross-examine the State’s witnesses and 

call witnesses on his behalf, and the Petitioner acknowledged the rights he was waiving by 

pleading guilty to the charged offenses. Because the Petitioner has also failed to establish 

that trial counsel was ineffective with regard to this claim, he is not entitled to relief. 

CONCLUSION

The judgment of the post-conviction court is affirmed. 

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 CAMILLE R. MCMULLEN, JUDGE