IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 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 - Filed October 9, 2003

The petitioner, Dedric D. Phillips, appeals the Lauderdale County Circuit Court’s denial of his postconviction relief petition. The petitioner entered guilty pleas to possession with intent to deliver less

than .5 grams of cocaine and simple assault, and the trial court imposed an effective sentence of ten

years as a Range III persistent offender. On appeal, the petitioner contends: (1) he received

ineffective assistance of counsel; and (2) his guilty pleas were unknowingly and involuntarily

entered. Upon review of the record and the applicable law, we affirm the judgment of the postconviction court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JERRY L.

SMITH, J., joined.

D. Michael Dunavant, Ripley, Tennessee, for the appellant, Dedric D. Phillips.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney

General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

On September 13, 2001, the petitioner entered guilty pleas to simple assault, a Class A

misdemeanor, and possession with intent to deliver less than .5 grams of cocaine, a Class C felony.

See Tenn. Code Ann. §§ 39-13-101(b) (assault), -17-417(c)(2) (possession of cocaine with intent

to deliver). The trial court sentenced the petitioner as a Range III persistent offender to concurrent

terms of ten years for the cocaine conviction and eleven months and twenty-nine days for the assault

conviction. Petitioner timely filed a petition for post-conviction relief.

I. WAIVER

The petitioner contends his guilty pleas were unknowingly and involuntarily entered due to

ineffective assistance of counsel. Although the post-conviction court’s order reflects that the
1

The petitioner was not eligible for probation since the minimum possible sentence of ten years exceeded

probation eligibility. See Tenn. Code Ann. § 40-35-303(a). However, the petitioner was eligible for community

corrections. See id. § 40-36-106.

2

The transcript of the sentencing hearing is not in the record before this court.

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transcript of the guilty plea was filed, it is not in the record before this court. We conclude the

transcript of this proceeding is essential to our examination of these issues. It is the duty of the

accused to provide a record which conveys a fair, accurate and complete account of what transpired

with regard to the issues which form the basis of the appeal. Tenn. R. App. P. 24(b); see State v.

Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). Therefore, these issues are waived for failure to include

the transcript in the appellate record. Regardless of waiver, we further conclude the petitioner’s

issues are without merit.

II. POST-CONVICTION RELIEF HEARING

Defense counsel testified the petitioner was originally charged with possession with intent

to deliver .5 grams or more of cocaine, a Class B felony, as a Range III persistent offender with a

sentencing range of twenty to thirty years. The petitioner agreed to a criminal information and plea

offer reducing the charge to a Class C felony with a sentencing range of ten to fifteen years as a

Range III persistent offender. Defense counsel stated the petitioner agreed to enter a guilty plea to

the cocaine charge as a Class C felony rather than risk a conviction at trial on the Class B felony.

Defense counsel further stated she believed the plea agreement to be in the petitioner’s best interest

due to the proof presented by the state at the preliminary hearing.

Defense counsel testified that pursuant to the plea agreement, the trial court was to determine

the length and manner of service of the petitioner’s sentence. 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 further stated she informed the petitioner that although he

was eligible for alternative sentencing,1 the trial court would decide the manner in which he was to

serve his sentence. Defense counsel testified she did not assure the petitioner that he would receive

alternative sentencing.

Defense counsel stated that at the sentencing hearing, the trial court noted the petitioner may

have been statutorily eligible for alternative sentencing; however, it declined to grant alternative

sentencing at that time.2 The trial court imposed the minimum ten-year sentence and ordered the

petitioner to serve a portion of his sentence before it would reconsider the matter. Defense counsel

stated she informed the petitioner that she would file a motion to reconsider alternative sentencing

on his behalf “if he remained in the county jail.”

Defense counsel testified that after the petitioner entered the pleas, she received several

letters from him and had numerous telephone conversations with him. While the petitioner was

incarcerated at the county jail, defense 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
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do so. Defense counsel testified she believed filing a motion on an earlier date would have been

futile.

Defense counsel testified the petitioner was transferred from the county jail to the Tennessee

Department of Correction (TDOC) on January 10, 2002. She stated she was not informed of the

transfer until after it had occurred. Defense counsel further stated she advised the petitioner that the

trial court had lost jurisdiction over him once he had been transferred to the TDOC.

The petitioner testified he pled guilty to a lesser charge and received the minimum ten-year

sentence. He stated he felt defense counsel had performed well in negotiating a reduced sentence

on his behalf. The petitioner testified that prior to the plea hearing, defense counsel assured him that

he would receive alternative sentencing if he pled guilty to the charges. He maintained he was

innocent of the charges and stated that if he had not been guaranteed a form of alternative

sentencing, he would have insisted on a trial.

The petitioner acknowledged that at the plea hearing, he informed the trial court that he was

satisfied with defense counsel’s representation and that he had met with defense counsel and

discussed the case. The petitioner further acknowledged the trial court explained alternative

sentencing was not guaranteed.

The petitioner stated he was aware that the trial court wanted him to serve a portion of his

sentence before it reconsidered alternative sentencing. He stated 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-CONVICTION COURT’S FINDINGS

In its thorough written order denying 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 hearing. The court noted the petitioner stated he was

satisfied with defense counsel’s representation and that he felt she adequately met and discussed the

case with him.

The post-conviction court expressly accredited defense counsel’s testimony that she did not

assure the petitioner that he would receive alternative sentencing. The court noted that at the plea

hearing, the petitioner was again informed that although defense counsel may request alternative

sentencing, it was not guaranteed to be granted.

The post-conviction court found defense 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 to establish prejudice in

defense counsel’s failure to file the motion. The court noted that due to the petitioner’s extensive
3

The presentence report reflects the petitioner had the following prior convictions: four felony drug convictions,

six misdemeanor drug convictions, failing to appear, misdemeanor theft, two contempts of court, and other juvenile

adjudications. There is little wonder as to why alternative sentencing was not granted.

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criminal history,3

 along with the fact that the present offenses were committed while he was on

probation, alternative sentencing would not have been granted.

The post-conviction court refused to accredit the petitioner’s testimony that he would not

have entered the pleas had he not been guaranteed alternative sentencing. The court noted the

petitioner acknowledged that prior to entering the pleas, he was informed that there was no

guarantee of alternative sentencing. The court found the petitioner understood the consequences of

pleading guilty to the offenses; his decision was not coerced; and he was aware of the possible

sentence. The court concluded the petitioner knowingly and voluntarily entered the guilty pleas. 

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

The petitioner contends defense counsel was ineffective in failing to explain to him the

consequences of entering 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 ineffective assistance of

counsel, the petitioner must first establish that the services rendered or the advice given was below

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

930, 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an

adverse effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984). Should the petitioner fail to establish either factor, the petitioner is not

entitled to relief. Our supreme court described the standard of review as follows:

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. Indeed, a court need not address the components in any

particular order or even address both if the defendant makes an insufficient showing

of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697, 104 S. Ct. at

2069). The petitioner is not entitled to the benefit of hindsight; the petitioner may not second-guess

a reasonably based trial strategy; and the petitioner may not criticize a sound, but unsuccessful,

tactical decision made after adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347

(Tenn. Crim. App. 1994); 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-part Strickland standard to ineffective assistance of counsel claims arising out of
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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 have pleaded guilty

and would have 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 allegations by clear and convincing evidence.

Tenn. Code Ann. § 40-30-210(f). The findings of fact made by the post-conviction court are

conclusive and will not be disturbed unless the evidence contained in the record preponderates

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 receive alternative

sentencing if he entered the guilty pleas. However, in its written findings, the post-conviction court

accredited defense counsel’s testimony that although she informed the petitioner hewouldbe eligible

for alternative sentencing 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

hearing, the trial court explained to the petitioner that alternative sentencing was not guaranteed.

The evidence does not preponderate against the findings of the post-conviction court.

Next, the petitioner asserts defense counsel was ineffective in failing to inform him prior to

the plea hearing that upon imposing incarceration, the trial court would lose jurisdiction over him

if he were transferred from the county jail to the TDOC. See 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 transferred to the department). Defense counsel testified that prior to the plea hearing, she

and the petitioner discussed his prior record, the applicable sentencing range, and the possible

manners in which the trial court may have ordered the petitioner to serve his sentence. Based on the

circumstances, we are unable to conclude defense counsel was deficient in failing to inform the

petitioner of the trial court’s jurisdictional limitations prior to the plea hearing.

C. Failure to File a Motion to Reconsider Alternative Sentencing

The petitioner contends defense counsel was ineffective in failing to file a motion to

reconsider alternative sentencing and in failing to inform him prior to his transfer to the TDOC of

the trial court’s jurisdictional limitations. However,the post-conviction court found defense counsel

properly exercised her judgment and determined that filing a motion to reconsider alternative

sentencing only a few months after the sentencing hearing 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. Therefore, the petitioner has failed to establish defense

counsel was deficient. 

Regardless, the post-conviction court further found the petitionerfailed to establish prejudice

because alternative sentencing would not have been granted had a motion to reconsider been filed.

The post-conviction court noted the petitioner had an extensive history 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.

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especially for drug offenses, was abominable.4

 Furthermore, measures less restrictive than

confinement had been unsuccessfully applied to the petitioner. See id. at (1)(B). The postconviction court noted the petitioner committed the present offenses while on probation, and the

community corrections report reflects that his probation was revoked as a result. Because alternative

sentencing would have been denied even if a motion to reconsider had been filed, the petitioner has

failed to establish prejudice. See Strickland, 466 U.S. at 693.

V. INVOLUNTARY GUILTY PLEA

The petitioner proclaims he entered the guilty pleas without sufficient knowledge of the

consequences, and his lack of knowledge was attributable to the ineffectiveness of defense counsel.

We disagree.

In examining whether a plea was knowingly and voluntarily entered, our supreme court has

stated the following:

The cases of Boykin v. Alabama and State v. Mackey are the landmark

constitutional cases for analyses of guilty pleas. Boykin v. Alabama, 395 U.S. 238,

89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) (federal standard); State v. Mackey, 553

S.W.2d 337 (Tenn. 1977) (state standard). In Boykin, the United States Supreme

Court held that before a trial judge can accept a guilty plea, there must be an

affirmative showing that it was given intelligently and voluntarily. Id. at 242, 89 S.

Ct. at 1711, 23 L. Ed. 2d at 279. In order to find that the plea was entered

“intelligently” or “voluntarily,” the court must “canvass[ ] the matter with the

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

its consequences.” Id. at 244, 89 S. Ct. at 1712, 23 L. Ed. 2d at 280 (emphasis

added). 

Likewise, in Mackey, this Court held that “the record of acceptance of a

defendant’s plea of guilty must affirmatively demonstrate that his decision was both

voluntary and knowledgeable, i.e., that he has been made aware of the significant

consequences of such a plea. . . .” 553 S.W.2d at 340.

State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In determining the voluntary and knowing

nature of a guilty plea, the appellate court must examine all relevant circumstances which existed

when the plea was entered. Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 25 L. Ed. 2d

747 (1970); State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995).

The post-conviction court accredited defense counsel’s testimony that she did not guarantee

alternative sentencing. Defense counsel’s failure to file a futile motion to reconsider alternative

sentencing after the defendant pled guilty and was sentenced did not in any way relate to the

voluntariness of the plea. Further, the post-conviction court found the petitioner understood the
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consequences of pleading guilty to the offenses and that his decision to enter the pleas was not

coerced. The court noted that at the plea hearing, the trial court informed the petitioner of the

applicable range of punishment and the possible manners of service. The post-conviction court

further noted the trial court warned the petitioner that there was no guarantee that alternative

sentencing would be granted. Finally, the post-conviction court found the petitioner knowingly and

voluntarily entered the guilty pleas. We agree. The evidence does not preponderate against the

findings of the post-conviction court.

VI. CONCLUSION

In summary, we conclude the petitioner has waived these issues by failing to include a

transcript of the plea hearing in the appellate record. Regardless of waiver, we further conclude the

petitioner received effective assistance of counsel and knowingly and voluntarily entered his guilty

pleas. Accordingly, we affirm the judgment of the post-conviction court.

____________________________________

JOE G. RILEY, JUDGE