### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs O ct obe r 25, 200 5

J. C. OV ER ST R EE T, JR
. v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2003-A- 104 Cheryl Blackbu rn, Judge

No. M2005- 00170-CCA -R3-P C - F iled Dece m ber 20, 2005

The pe titioner appea ls the denial of his post-conviction petition, c ontending that: (1) counse l was ineffe ctive in fa iling to ade quately inform him of the consequence s of hi s plea; and (2) his plea s were c o e r c e d b y c o u n s e l ’ s a s s u r a n c e s t h a th e w o u l d b e p l a c e di n t h e D e B e rr y S p e c i a l N e e d s F a c i l i t y. Upon re view, weconclude that counsel ex plained the conseque nces of the pleas w ith the petitioner and tha t h is p le a

w a s k n o w in g ly

a n d v o lu n ta

r il y e n te r e d , a s it

w a s ma d e c le ar

to th e h im

that place ment was not part of his plea ag ree m en t b u t was within the discre tion of the Depa rtment of Correc tion. Theref

ore, w e af firm the denia l of post-conviction re lief.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OHN E V E R E TT W I L L I AMS , J ., delivere d the opinion of the court, in which D AVI D G. H AYES and N OR MA M C G EE O G LE , J J ., joined.
Ry an C. Caldwell, Nashville, Te nnessee , for the a ppellant, J . C. Overstre et, J r. Paul G. Summers, Attorney Gen e r a l a n d Re porter; B lind Akrawi, Assistant Attorney Gene ral; Victor S. (Torry ) Johns on, I I I , District Attorney Gene ral; and B rian K. H olmgr en, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Fa cts and Proce dural History
The pe titioner, J .C. Overstre et, J r., pled g uiltyto rape of a c hild (a Class A fe lony ) and enter ed a be st interest plea to a g g ravated sexual b att ery (a Class B felony ). Pursuant to the plea ag ree ment, the petitioner wa s sentence d as a mitig ated of fende r to thirte en and a half y ear s for the char g e of r ape of

a child and to e ight y ear s as a s t andar d offe nder f or the re maining c harg e of ag g ravated sexual battery . The sente nces w ere order ed to be se rved c o n cu rr en tly at one hundr ed p e r c e n t, p u r s u an t t o T e n n e s s e eCode Annotated se ction 39-13-523( b). Ther eaf ter, the pe titioner filed
a pro se petition f

or post-conviction relief

. Following the appointment of counsel and an e videntiary-2-

he ari ng , th e po st- c on vic tio n c ou rt de nie d re lie f. On app e a l to thi s c ou rt , th e pe tit ion e r c on te nd s th a t: (1) tria l counsel re ndere d ineffe ctive assistanc e by failing to a dequate ly convey the conseque nces of his ple as and his imposed se ntence ; and (2) trial counsel c oerc ed his pleas by assuring him that he would be plac ed in DeB erry Special Ne eds F acility

(De Be rry ) due to his medica l condition.

At the po st- c on vic tio n h e ari ng , th e petitio ne r t e sti fi e d th a t tria l c ou ns e l me t w ithhim approximately

six times prior to his ple a. He stated that he asked counsel a bout the fac tual basis of the cha rg es ag ainst him and that he rec eived varying answe rs which never g ave him any

clarification. The pe titioner rec alled that he believed he would be pleading to a twelve- y ear sentenc e at e ighty -five perc ent re lease elig ibilit y and that he did not wa nt to plead to thirte en y ear s at one hundr ed per cent service but “was not told [he] could cha ng e his mind.”
The pe titioner testified that he c ould write but could not rea d well and that c ounsel explained t h e p l ea petition to him . He state d that he wa s under stre ss at the time of his plea a nd that he had previously

been hospitalized four or five times for anx iety . He f urther note d t hat he suff

ers f rom high blood pr essure , light st rokes, a nd diabetes, a ll of which re quire medic ation. The pe titioner stated that, for

approximately

seven months prior to his plea, he reque sted a jury trial but did not do
so on the day

of the he aring . He f

urther te stified that counsel told him that he would be housed at DeB erry as part of his plea ag ree ment; however , he wa s never sent there

. When asked if his plac ement at De Be rry influence d his decision to plead g uilty , the petitioner responde d, “W el l , i t h ad an ef fec t on it. Iknowed [sic] I ’d be c lose to my wife.” The pe titioner st a t e d t h a t h e w a s e xp e r i e n c i n g n u m b n e s s i n h i s n e c k , ar m s , a n d l e g s a t t h e t ime of the po stconviction hea

ring but had not rec eived a ny treatment at the Depa

rtment of Corre ction (DOC).

On cr oss-examination, the petitioner acknow led ged that counse l discussed the State’s evidenc e with him and t hat he knew his plea ag ree ment was for a thirtee n and one- half y ear sentenc e. He also testified that counsel rea d the plea petition to him a nd that he knew it was his option to pl ead
or g o to tr ia l. Th e pe tit ion e r a dmi tte d that he tol d the tr ia l c ou rt that c ou ns e l di sc us se d th e c a se wi th him, read the plea pe tition t o him, and answe red a ll questions t o h i s s ati sfac tion. He furthe r acknow ledg ed that he w as g iven multipl e opportunities to decline or to question the plea a g ree ment in court but failed to do so. Howeve r, the petitioner indicated that counse l did not do everything the petitioner wa nted her t o d o o n h i s ca se. F inally , he testified that he thought he was g oing to g et “g ood day s” and be place d at DeB erry , but neither oc curr ed.

Counsel testified that she a nd the petitioner discussed the fac tual alleg ations and re viewed th e St a te ’ s e v id e n c e

. Sh e in d ic a te d th a t th e St a te ’ s in it ia l o f f e r w a s s ixt e e n y e ar s a t o n e h u n d r ed pe r c e n ts e r v i c e w i t h t h e p o s s i b i l i t y o f c r e d i ta l t e r i n g t h e r e l e a s e e l i g i b i l i t y t o e i g h t y
- f

i v e p e r c e nt. Howeve r, counse l ultim ately neg otiated an e ffe ctive sente nce of thirteen a nd a h al f y ea rs

. She testified that, although t he petiti oner was di spleased with the l eng th of the sente nce, he would not indicate a n acc eptable of

fer but simply stated t hat he wanted a “lower” sentence

. She further rec alled that the petitioner wa s upset that there was no DN A evidenc e, but the victims did not ha ve injuries that produce d DNA e vidence

.-3-

Couns el acknow ledg ed that she discusse d a plac ement at De Be rry with the petitioner and “fr ankly assumed that he w ould go [there ]

. ” S h e further noted that the issue wa s discussed at the plea he aring and that the tria l court indicate d that it was not a c ondition of the plea. Counsel stated that sh e e xpla ine d to the pe tit ion e r that th e ult imate de c isi on a s to pla c e me nt r e ste d w ith the DO C. She rec alled that the petitioner spoke to her in the middle of the plea he aring and that she e x plained to h im that he wo uld ha veto e ith e r p le a d o r g o to tr ia l. In c on c lus ion , c ou ns e l te sti fi e d th a t, w hil e t h e p e t i t i o n e r

w a s n o tp l e a s e d w i t h t h e p l e a , i tw a s e n t e r e d v o l u n t ar i l y.
On c ro ss- e xami natio n, c ou ns e l tes tif ie d tha t alth ou g h the pe tit ion e r c ou ld n ot r e a d o r w ri te well, he sen t letters to her that she “c erta inly

was a ble to understand.” She stated that she did not
re c a ll w he the r s he e xpla in ed to the pe tit ion e r that hi s p la c e me nt at D e B e rry wa s n ot a

pa rt of his ple a , a ndfu rthe r n ote d th a t it wa s “ fair

to sa y ” th at th e pe tit ion e r b e lie ve d h e wo uldbe se nt t o De B e rry . Co un se l in dic a te d th a t sh e e xpla ine d to the pe tit ion e r that he wo uld be sen te nc e d to thirteen a nd a half

y ear s at one hundre d perc ent servic e. She testified that she believed the petitioner
wo uldbe pla c e d at D e B e rry wi tho ut any

fu rthe r a c tio n d ue to h is m edi cal c on dit ion ; no ne the le ss, she sent a le tter to alert the DOC to the possibili ty of a spe cial nee ds classification and to “assure the client that [she had] done every thing [she c ould] to aid the m in that.” Counsel furthe r indicate d that the DO C pe rf

orms its ow n ind e pe nd e nt c la ssi fi c a tio n. I n c on c lus ion , s he te sti fi e d th a t, u nti l th e tim e of the plea , she wa s unsure that the pe titioner would g o throug h with the plea.

After taking the matter unde r adviseme nt, the post-conviction court entere d an orde r denying
re lie f, wh ic h f

ou ndthat: [A] s demonstrated by

the plea tr anscript the Court thoroughly advised the Petitioner of the nature a nd conseque nces of his plea during the pl ea c olloquy prior to ac cepting Petitioner’s plea. ( citation omitted). The Court explained in detail to Petiti oner that the se nte nc e fo r C ou nt 1 mus t be se rv e d at 10 0% bu t th a t th e se ntenc e in C ou nt 2 could possibly

be re duced f

rom 100% to 85% re lease elig ibilit y with good and honor
cre dit. (citation omitt ed).

I n a dd iti on [to] the Cou rt a dv isi ng Pe tit ion e r of the natur e a nd c on se qu e nc e s o f h is ple a , Pe tit ion e r a lso a dv ise d th e Cou rt du ri ng his ple a c oll oq uy tha t he an d [c ou ns e l] ha d d isc us se d h is c a se . (c itatio n o mit te d) . Wh e n th e Cou rt e xplic itl y

inq uir e d if Petitioner was satisfied with the work [counsel] had performed on his c ase, Petitioner
a ns we re d a ff

ir ma tiv e ly

. . . . Ac c or din g ly , a s se t f orth a bo ve , Pe tit ion e r h a s f

a ile d to demonst ra t e b y clear and c onvincing evidenc e that counse l was ineff ective in he r communications with him or that he was pr ejudi ce d by counsel’s a lleg ed def

icient perf ormanc e.

. . . . During his plea hea

ring , the Court advised Petitioner he w ould be g oing to prison, but that the L ois DeB erry

Special Ne eds F acility

may be a possibility

for him and that he would need to bring his medic al conditi ons to the attention of t he TDOC officials as-4-

he wa s being classified. (citation omitted). Ba sed on the rea sons a bove, the Court finds that Petitioner has not demonstrated by clea r and convincing evidenc e that he
was c oerc ed to enter

his plea. The pe titioner now appea ls to this court, contending that the pos t-conviction court erre d in failing to find that trial counsel re ndere d ineffe ctive assistanc e and that the petitioner’s p leas we re not knowing ly

and voluntarily

enter ed.

An a ly sis

I . I neff ective A ssistance of Counsel
The pe titioner first alleg es that counse l w as ineffe ctive in failing to acc urate ly convey the conseque nces of

his guilty plea a nd his sentence of thirteen and a half y ear s at one hundre d perc ent
se rv ic e . Wh e n a

c la im o f i ne ff

e c tiv e a ssi stanc e of

c ou ns e l is ma de un de r the Sixth A me nd me nt, the peti tioner bea

rs the burde n of proving that: (1) counse l’s perf ormanc e wa s deficie nt, and (2) the def iciency was pre judicial in terms of rendering a rea sonable proba

bilitythat the re sult of the trial was unr eliable or

the proc eeding s were fundame ntally unfair. Strickland v. Washington, 466 U. S

. 66 8, 68 7, 10 4 S. Ct. 20 52 , 2 06 4 ( 19 84 ). Th is s ta nd ardha s a lso be e n a pp lie d to the ri g ht t o counsel unde r Article I , Section 9 of t he Tennessee Constit ution. State v. Melson, 772 S.W .2d 417, 419 n.2 (T en n . 1989). When a pe titioner claims ineffe ctive assistanc e of c ounsel in relation to a g uilty plea, the pe titioner must prove that counsel pe rformed def iciently and, but for c ounsel’s
e rr or s, the pe tit ion e r w ou ld n ot h a ve ple d g uil ty bu t w ou ld h a ve , in ste a d, ins ist e d u pon g oin g to trial. Hill v. L ockhart, 474 U.S. 52, 59, 106 S. C t. 366, 370 (1985).

I n Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) , our supre me court require d that the
s e r v i c e s b e r e n d e r e d w i t h i n t h e r a n g e o f c o m p e t e n c e d e m a n d e d o f a t t o r n e y s i n c r i m i n a l c a s e s

. In revie wing counsel’s c onduct, a “fa ir assessment of attorney perf ormanc e re quires that eve ry eff ort be made to elimin ate the distorting ef fec ts of hindsight, to rec onstruct the cir cumstance s of counsel’s c halleng ed conduct, and to evaluate t he conduct from counsel’s perspe ctive at the time.” Strickland, 466 U. S

. at 6 8 9 , 1 0 4 S. Ct . at 2065; see a lso Nichols v. State, 90 S.W .3d 576, 587 (Tenn. 2002)

. The pe titioner bear s the b u rd en of proving by clea r and c onvincing evidenc e the f actua l
a lle g a tio ns that w ou ld e nti tle pe tit ion e r t o r e lie f. Te nn . Co de An n. § 4 0- 30 -1 10 (f ). Th is c ou rt

is bo un d by the po st- c on vic tio n c ou rt ’s fi nd ing s of fa c t un le ss the e vid e nc e pr e po nd erat es agains t those finding s. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

A re view of the plea proce eding s reve als that the petitioner discussed the case with counsel and that counse l review ed the plea petition with him . During the plea c olloquy , the petitioner ind ic a te d th a t c ou ns e l ha d d on e e ve rythi ng he a sk e d of he r andha d a ns we re d a ll q ue sti on s to his satisfac tion. Gener ally , the petitioner c onvey ed tha t h e wa s well please d with counsel’s repr esentation a nd noted during the plea hearing that “[she’d] done g reat.” Furthermore , the trial court e x plicitlystated on more tha n one occ asion t h at the petitioner’ s total effe ctive sente nce f or-5-

the two cha

rg es would be thirtee n an d a h al f y ear s at one hundre d perc ent servic e. At the conclusion of the hearing, the petitioner acc epted the plea ag ree ment and indicated that he did not have any questions for the tria l court. F or these r easons, we agr ee w ith the post-conviction court that counsel e ffe ctively

communicated the conseque nces of the petitioner’s ple a to him, including his effe ctive sente nce of

thirteen a nd a half

y ear s.

I I . Unknowing and Involuntary Plea

I n his final issue, the petitioner c ont en d s that his plea was c oerc ed by trial counsel’ s assura nces that he would be plac ed in DeB erry due to his medical c ondition. Our supreme c ourt h as s t at ed t h e f

o l l o wi n g: The c ases of

Boy kin v. Alabama and State v. Macke y are the landmark constitutional cases for

analy ses of g uiltypleas. Boy kin v. A labama, 395 U .S. 238, 89 S. Ct . 170 9 , 2 3 L

. E d . 2d 274 (1969) ( fede ral standa rd); State v. Mac key , 553 S.W. 2d33 7 ( Te nn . 1 97 7) (s ta te stand ard ). I n Boy kin , th e Un ite d St a te s Su pr e me Court held that befor e a trial judge can a cce pta g uiltyplea, ther e must be an
a ff ir ma tiv e sh ow ing that it

wa s g ive n inte lli g e ntl y a nd vo lun tari ly . I d. a t 242, 89 S. Ct. at 1711, 23 L . Ed. 2d at 279. I n order to find that the plea w as ente red “intellige ntly ” or “ voluntarily ,” the co u rt must “canva ss[ ] t he matter with the
acc used to make sur e he ha s a full under standing of what the pl ea connote s and of i ts
c on se qu e nc e s. ” I d. at 244, 89 S. Ct. at 1712, 23 L

. Ed. 2d at 280 (e mphasis added)

. L ikewise, in Mac key , this Cou rt h el d that “the r ecor d of ac cepta nce of a de fe nd a nt’ s p le a

of g uil ty mus t a ff ir ma tiv e ly

de mon str a te that hi s dec isi on wa s b oth voluntary and kno wl ed gea ble, i.e., that he ha s been ma de aw are of the sig nificant conseque nces of

such a ple a . . . .” 553 S.W.2d at 340. State v. Pettus, 986 S .W.2d 540, 542 (Tenn. 1999).

A re view of the plea tra nscript re flec ts that the trial court advised the petitioner that he w as being transporte d to the DOC for his se ntence and that he should a lert the fac ility to his me d i cal condition at the time of his classification. Moreover , at t he post -convic tion hearing, c ounsel testified that the DOC does a n independe nt c lassification of inmates, and she explained to the pe titioner that place ment is at the discre tion of the DOC. Ther efor e, we conclude that the petitioner wa s awa re that his pla c e me nt at De B e rry wa s n ot a pa rt of his ple a a g re e me nt andthat he kn ow ing ly a ndvo lun tari ly enter ed into the ag ree ment with that knowledg e.
Conclusion

Ba sed upon the for eg oing, w e af firm the denia l of post-conviction re lief.

___________________________________ J OHN EV ERETT WI LL I AMS, J UDGE