### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Bri efs Sept ember 9, 2003
DEDRIC D. PHILLIPS v. STATE OF TENNESSEE Direct Appeal from the Circuit Court for Lauderdale County

No. 7164 Joseph H. Walker, Judge

No. W2003-00372-CCA-R3-PC - F iled October 9, 2003

The petitioner, Dedric D. Phillips, ap peals the Laud erdale County Circuit Cou

rt’s den ial of his postconviction relief petition. The petitioner entered guilty pleas to possessio n with inte nt to delive

r less than .5 grams of cocaine and simple assault, and the tria l court imposed an effective sentence of ten yearsas a Range I

II persistent offender. On appeal, the petitioner c ontends: (1) he received ineffective assistance of counsel; and (2) his guilty pleas were unknowingly and involunt aril y entered. Upon review of the record and the a pplicable law, we affirm the judgm ent of the

postconvicti on court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which G ARY R. W ADE , P .J., and J E RRY L. S MITH , J., joined.
D. Micha el Dunav ant, Riple

y, Tennesse e, for the appell ant, Ded ric D. Phillips.
Paul G. Summers, Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; Elizabe th T. Rice, District Attorney Ge neral; and Tracey

A. Brewer, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION
On Septembe

r 13, 2001 , the petitio nerentere d guilty pleas to s imple assa

ult, a Clas s A misdemeanor, and posse ssion with i ntent to de liver les s than .5 grams of cocaine, a C la ss C f el on y. See Tenn. Code Ann. §§ 39-13-101(b) (assault), -17-41 7(c)(2) ( possession of cocaine with intent to deliv er). Th e tria l cour t sent enced t he pet itio ner as a Range II I persistent

offender to concurrent terms of ten yea

rs for the cocaine conviction and eleven months and

twenty -nine da

ys f or the as sault conviction. Petitioner timely filed a petition for post-conviction relief.
I. WAIVER
The petitioner contends his guilty plea s were unknowing ly and involu

ntarily entere d due to ineffective assistance of counsel. Although the p ost-convi ction court’s order reflects that the1 The petit ioner was not el igi ble for probation s ince the minimum possibl e sent ence of t en years exceeded probat ion eligibility. See Te nn. Co de A nn. § 40-35- 303(a). However, the peti ti on er was eligib le for co mm unity
corr ection s. See id . § 40- 36-106.

2 Th e transc ript of the sentenc ing hea ring is no t in the rec ord befo re this co urt. -2- transcr ip tof the guilty plea

was filed, it is not in the record before this court. We concl ude th e transcript of

th is pr oc ee di ng is es se nt ia l t o o ur ex am in at io n o f t he se is su es . It is th e d ut y of th e accused to pr ov id e a re co rd wh ic h c on ve ys a fair, accurate and complete acc ount of what transpired withregar

d to the issu es which

form the b asis of the

appeal. Tenn. R. A pp. P. 24(b ); see State v. Taylor , 992 S.W.2d 94 1, 944 (Te nn. 1999) . Therefore, th

eseissues are waived for failure to include the transcript in the appellate record. Reg ardless of waiver, we further c onclude the p etitioner’s issues ar e without m

erit.
II. POST-CONVICTION RELIEF HEARING
Defense counseltestified the petitioner was originally charged with possession with intent to deliver .5 grams or more of coca ine, a Class B felony , as a Range I II persistent

offende r with a sentencing range of twenty to thirty years. The

petitioner agreed to a criminal information and plea offer reducin g the ch arge t

o a Class C f

elony with a sen

tencing range of ten to f

ifteen y ears asa Range II I persistent offender . Defense counsel stated the petiti oner ag

reed to enter a guilty plea to the cocain e charge as a Class C felo ny r at he r t ha n r is k a co nv ic ti on at tr ia l o n t he Cl as s B fe lo ny. Defens e counsel further stated she believed the plea agree ment to be in the petitioner’s best inter est due to the pr oof pr esent ed by the s tate a t the p relim inary hear ing.
Defens e counsel testifiedthat pursuant to the plea agreement, the trial court wa s to determine the lengt h and manner of service of the petitioner’s sente nce. She stated that prior to the plea hearing, she and the petitioner discussed his prior record and the range of punishment for a

Range III persistent

offender. Defense counsel fur ther statedshe informed the petitioner that although he was eligible for

alter nativ e sent encin g, 1 the trial court would decide themanner i n which he was to serve his sentence. Defense counsel testified she did not assure the petitioner that he would receive alter nativ e sent encin g. Defens e counsel statedthat at the sentencing hearing, the trial court noted the petitioner may have been sta

tutori ly eligible for

alternative sentencing; however, it dec lined to grant alternative sentencing at that t

ime. 2 The trial court imposed the minimum ten-yea r sentence and ordered the petitioner to serve a portion of his sentence before it would reconsider the matter. Defense counsel stated she infor

med the pe

titioner t hat she w ould

file a motion to reconsider alternative sentencing on his behalf “if he remained in the county jail.”
Defens e counsel testi fied that after the petitioner entered the plea s, she received several letters from him and had numerous telephone conversations with him. While the petitioner was incarcerated

at the county

jail, def ense counsel informed him that she would not file another petition until the petitioner had served six months of his sentence. Defense counsel stated she advised the petitioner that if he wished to file the motion on an earlier date, he should hire another attorney to-3-

do so. Defe

nse coun sel testif

ie d she believed filing a motion on an earlier date w ould have been futile.
Defens e counsel testified the petitioner was transferred from the county jail to the Tenne ssee Depar tment of Correction (TDOC) on January 10, 2002. She stated she was not informed of the transfer until after it had occurred. Defense c ounsel further stated she advised

the petitioner that the trial cou rt had los t jurisdic tion over him once h

e had be en trans ferre d to the TD OC.
The petitioner

testified he pled guilty

to a lesser

charge and rece

ived the minimum ten-year sentence. He statedhe felt defense counsel had perfor med well in negotiating a reduced se ntence on his b ehalf. The pet itio ner tes tifi ed tha t prio r to th e plea h earing, defense counsel a ssured him that he would receive alternative sentencing if he pled guilty to the c harges. He maintained he was innocent of the charges and stated that if he had not been guaranteed a form of alternative sentenc ing, he

would hav e insisted

on a tria l.
The petitioner acknowledged that at the plea hearing, he informed the tr ial court that he was satis fied with defense counsel’s representation and tha t he had met with defense counsel and discussed the case . The pet itioner f urther a cknowle d ged the trial court explained alternative sentencing was not guaranteed.
The petitioner stated he was aware that the trial court wa nted him to s erve a p ortion of his sentence before it reconsidered alternative se ntencing. He state d defense counsel never filed a motion to reconsider alternative sentencing . He further stated defense counsel never explained the trial court would lose jurisdiction over him if he were transferred to the TDOC.

III. POST- CONVICTIO N COURT’S FIND INGS
In its thorough written order deny ing relief, the post-conviction court found defense counsel provided the petitioner with adequate assistance by meeting

and discussing the case with him and evaluating the state’s proof at the preliminary he aring. The court noted the petitioner stated he was satisfied with defe

nse counsel’s representation and that he felt she ade quately met

and discussed the case wit h him.
The post-conviction court expressly ac credited defense counsel’s testimony that she did not assure the petitioner that

he would receive alternative sentencing . The court noted that at the plea hearin g, the petitioner was again info rm ed that although defense counsel may request alternative sentencing, it was not guarantee d to be granted.
The post-conviction court founddefense counsel exercised proper judgment in determining that filing a motion to reconsider alternative sentencing within a few months after the sentencing hearing would be futile. The court further found the petitioner failed t o establi sh prejud

ice in defense counsel’s failure to file the motion. The court noted that due to the petitioner’s extensive3 The present ence rep o rt reflects the petitioner had the following p rior convictions: four felon y drug con victions,

s ix mis dem eano r drug conv ictions, failing to ap pea r, misde mea nor the ft, two co ntemp ts of co urt, and other j uven ile adjudi cati ons. There i s l it tl e wonder as t o why a lt ernat

ive sent enci ng was not g rant ed. -4- criminal hi st or y, 3 along with the fact that the present of fen ses were committed while he was on probation, alternative sentencing would not have bee n granted.
The post-con

victio n cou rt refused to accredit the petitioner’s testimony that he would not have entered the pleas had he not been g uaranteed alternative sentencing. The court noted the petitioner ackno wledge d that prior to ent ering t he plea s, he was informed that there was no guarantee of alt ernati ve sen tenci ng. The court found the petitioner understood the consequences of pleading guilt

y to the offe nses; his d

ecision w as not coe

rced; a nd he wasaware

of the pos sible sentence. The court concluded the petitioner knowingly and voluntarily entered the guilty

pleas.
IV. INEF FECTIVE A SSISTANCE OF COUNSEL
The petitioner contends defense c ounsel w as ineffective in failing to explain to him the consequences of e ntering the guilty pleas and in failing to file a motion to reconsider alternative sentencing. We disagree.
A. Standard of Review
For a petitioner to successfully overturn a conviction based on ineffe c tive assistance of counsel, the petitioner must first establish that the services rendered or the advice given

was below “the range

of compe

te nc e demanded of attorney s in criminal cases.” Baxter v. Rose , 523 S.W.2d 930 , 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “a ctually had an adverse effect on the defe nse.” Strickland v. Washington , 466 U.S. 6 68, 693, 10 4 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Should the petitioner fail to establish either factor, the petit ioner is not entitled t o relief . Our supr

eme cour t describ ed the sta

ndard of review a s follows:
Becau se a peti tion er mus t esta blis h bot h pron gs of the te st, a failure to prove either deficie ncy or preju dice pro vides a sufficien t basis to deny relief

on the ineffective assistance claim. Indeed, a court need not address the components in any particular order or even ad dress bot h if the defendant

makes an insufficient showing of one co mponent.
Goadv. State , 938 S.W.2d 363, 370 (T enn. 1 996) ( citi ng Strickland , 466 U.S. at 697, 104 S. Ct. at 2069). The petit

ioner is not entitle d to the be nefit of h indsight ; the petit

ioner ma y not second- guess a reasona bly based tr ial strat egy ; and the p etitioner

may not critic ize a sound , but unsuc cessful , tactical decision

made af ter ade quate

preparation for

the case. Adkins v. St

ate , 911 S.W.2d 334, 347 (Tenn. Cr im. App. 19 94); see Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
In Hill v. Lockhart , 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the Supreme Court applied the two-p art Strickland stan dard to inef fective assistance of counsel claims arising out of-5-

a guilty plea. The Court in Hill modified the prejudice requirement by requiring a petitioner to show that there is a reasonable probability that, but for counsel’s errors, he would not h ave plea

ded gui lty and would hav e insisted

on going to trial. 474 U .S. at 59, 106 S. Ct. at 370; Nichols v. State , 90 S.W.3d 576, 587 (Tenn. 2002).
The petitioner

bears the burden of proving his alleg ations by clear and convincing evidence

. Tenn. Code Ann. § 40-30-210(f). The findings of fact made by the post-c onvic tion court are conclusive and will not be dis turbed unl ess the evidence contained in the record pr eponderates against them. See Fields v. State , 40 S.W.3d 450, 457 (Tenn. 2001). B. Failure to Explain Consequences of Entering Pleas
The petitioner asserts defense counsel assured him that he would rece iv e alternative sentencing if

he entered the guilty

pleas. However, in its written findings, the post-conviction court accredited

defense counsel’ s testimony

that altho ugh she informed the petit ioner he would be eli gible for alterna tive se ntencing if he entered the guilty pleas, she did not assure the petitioner that he would receive alternative sentencing . The post-conviction court further noted that during the plea hearin g, the trial

court expl ained to t

he petiti oner that al ternative sentencing was not gua ranteed. The evid ence do es not pre

pondera te aga inst the findings o f the post-convic tion cour t. Next, the petitioner asserts defense counsel was ineff ective in failing to inform h im prior to the plea hearing that upon imposing incarce ration, the trial court would lose jurisdiction over him if he were transferred fr

om the county jail to the TDOC. Se e Tenn. Code Ann. § 40-35-212(d) (providing that the trial court retains jurisdiction over a defendant sentenced to the TDOC until he or she is tra nsferr ed to the department). Defense counsel testified that prior to the plea hear ing, she and the petiti oner disc

ussed his p

rior rec ord, the a

pplicabl e sentencing ra

nge, a nd the poss ible manners in which th

e trial c ourt may

have ord ered the petitione r to serve his sentence. Based on the circumst ances, we are

unable to conclude defense counsel was deficient in failing to inform the petit ioner of the trial court ’s jur isdi ction al li mita tion s prio r to th e plea h earing.
C. Failure to File a Motion to Reconsider Alterna tive Sent encing
The petitioner contends defense counsel was ineffective in failing to f ile a motion to reconsider

alternative sentencingand in failing to inform him prior to his transfer to the TDOC of the trial court’s jurisdictional limitations. Howeve r, the post-conviction court found defense counsel properl y exercise d h er judgment and determined that filing a motion to rec onsider alternative sente ncing only

a few months after the sentencing he aring would have been futile. The proof presented at the post-conviction relief hearing reflects that defense counsel made a sound, tactical decision. See Adkins , 911 S.W.2d at 347. Therefor e, the pe titioner h as faile d to estab lishdefense counsel was deficient. Regar dless, the post-conviction court further found the petitioner f ailed to establish prejudice because alternative sentencingwould not have been granted had a motion to reconsider been filed. The post-conviction court noted the petitioner had an extensivehistory of criminal convictions. See Tenn. Code Ann. § 40-35 -103(1)(A). As previously noted, the petitioner’s prior criminal record,4 See n.1. -6-

especia lly for drug offense s, was abominable. 4 Furthermore, measures less restrictive than confinement

h ad been uns uccessfully a pplied to the petitioner. See id. at (1)(B ). The po stconviction court noted the petitioner committed the present offenses while on proba tio n, and the community

corrections rep ort refl ects that his probation was revoked as a result. Beca use alternative sentencing would hav e been d enied ev en if a mo tion to reconsider had been filed, the petitioner has failed to establish prejudice. See Strickland , 466 U.S. at 693.
V. INVOLU

NTARY GUILTY PLE

A
The petitioner proclaims he entered the gui lty pleas without sufficient knowledg e of the consequ ences, and his lack of knowledg e was att

ributable to the ineffectiv eness of

defense counsel. We disagree.
In examining

whether a plea w as knowin gly

and voluntarily enter

ed, our supreme court

has state d the f ollo wing:

The cases of Boy

kin v. Ala

bama and State v. Mackey a re the landmark constitutional cases for analy ses of guilty plea s. Boykin v. Alabama , 395 U.S. 238, 89 S. Ct. 1709, 2 3 L. E d. 2d 274 ( 1969) (f ederal standar d); Sta te v. Mackey , 553 S.W.2d 337 (Ten

n. 1977) ( state sta

ndar d). In Boy

kin , the United States Sup reme Courtheld that before a trial judge can accept a guilty plea, the

re must be an affirmative showing that it was given intelligently and voluntarily. Id. at 242, 89 S. Ct. at 1711, 23 L. E d. 2d at 279. In order to find that the plea was entered “inte ll ig en tl y” or “voluntarily,” the court must “canvass[ ] the matter with t h e accused to make sure he has a full understanding of what the plea conno tes and of its consequ ences. ” Id. at 244, 89 S. Ct. at 1712, 23 L. Ed. 2d at 2 80 (empha sis added). Likewise, in Mackey , this Court held that “the re cord of a cceptance of a defendant’s plea of guilty must affirmatively demonstra te that his decision was both voluntary and knowled geable, i .e., that he has been made aware of the significant consequences of such a plea. . . .” 553 S.W.2d at 340.
Statev. Pettus , 986 S.W.2d 540, 542 (Tenn. 1999). In deter mining the voluntary a

nd knowing nature of a g uilty plea, the appellate court must examine all relevant circumstances which existed when the plea was entered. Brady v. United States , 39 7 U. S. 742 , 74 9, 9 0 S . C t. 146 3, 2 5 L. Ed. 2d 747 (1970 ); State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995).
The post-conviction court accredited defense c ounsel’s testimony that she did not guarantee alternative sentencing. Defense coun sel’s failure to file a futile motion to reconsider alternative sentencing after the defendant pled guilty and was sentenced did not in any way re late to the voluntar iness of the plea. Fu rther, the post-conviction court found the petitioner understood the-7-

consequences of pleading guilty to the offens es an d that his decision to enter the pleas was not coerced. The cour

t noted tha

t at th e plea he aring, the trial court informed the petitioner of the applica ble range of punishment and the possible manners of ser vice. The post-conviction court further noted the trial court warned the petitioner that there wa s no guarantee that alternative sentencing would be granted. Finally , the post-conviction court found the petitioner knowingly and voluntar ily entered the guilty

pleas. We ag re e. The evidence does not prepondera te against the finding s of the po st-convi ction cou rt. VI. CONCL USION
In summary , we conc lude the p etitio ne r has waived these issues by failing to include a transcript of the plea hearingin the appellate record. Regar dless of waiver, we further conclude the petitioner received effective assistance of counsel a nd knowing

ly a nd volunta

rily entere d his guil

ty pleas. A ccordin gly , we aff irm the jud

gment of the post- convicti on court.

____________________________________ JOE G. RILEY, JUDGE