IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 1, 2012

MICHAEL TERRELL v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 08-03773, 08-03774 Paula L. Skahan, Judge

No. W2011-00972-CCA-R3-PC - Filed January 14, 2013

The Petitioner, Michael Terrell, appeals as of right from the Shelby County Criminal Court’s

denial of his petition for post-conviction relief. On May 28, 2009, the Petitioner pled guilty

to attempted first degree murder, especially aggravated robbery, and aggravated robbery, and

he received an agreed sentence of seventeen years at 100% in the Department of Correction.

The Petitioner challenges the voluntariness of his guilty plea and the performance of trial

counsel. Following our review, we affirm the judgment of the post-conviction court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and CAMILLE R. MCMULLEN, JJ., joined.

Constance Andrielle Wooden Alexander, Memphis, Tennessee, for the appellant, Michael

Terrell.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Corliss Shaw, Assistant

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

OPINION

FACTUAL BACKGROUND

On June 17, 2008, the Petitioner was charged, in two separate indictments, with

attempted first degree murder, especially aggravated robbery, especially aggravated

kidnapping, and aggravated robbery. The Petitioner pled guilty to attempted first degree

murder, especially aggravated robbery, and aggravated robbery on May 28, 2009. The

especially aggravated kidnapping charged was dismissed.
Guilty Plea Submission Hearing. At the plea submission hearing, the State

summarized the proof that it would have presented had the Petitioner’s cases gone to trial:

[In indictment 08-03773, co-defendant Monica] Washington lured the

victim, Darryl White, to an apartment complex on October 24, 2007, at the

suggestion or demand of her co-defendant, [the Petitioner]. When Darryl

White got there, he was shot by the [Petitioner]. His car was taken. Both Ms.

Washington and [the Petitioner] got into his car, and it was found later

abandoned in an apartment complex. Ms. Washington was developed as a

suspect, brought in. The victim in the matter identified or recognized, rather,

the voice and build and physical appearance of the [Petitioner], and actually

the victim is related to - I believe he’s related to [the Petitioner]. I believe they

are cousins. So, identity was not a problem in that case.

And in the other indictment [08-03774] - the aggravated robbery - Ms.

Deena Morgan was working as a clerk at Traveler’s Inn on Whitten Road. She

had gone outside to take a smoke break when two masked gunned assailants

approached her, took her back inside, asked her to open the safe. She did that.

They were successful in getting cash from the safe totaling less than $500.

They left, and fingerprintsfrom the [Petitioner] were lifted from a cash register

and matched the Sheriff’s Department’s R & I records.

Defense counsel stipulated to the facts as presented and asked the court to accept the plea

agreement.

The Petitioner testified that he only went to school through the ninth grade and that

he lacked a General Equivalency Diploma. The Petitioner also said that he was not under the

influence of any alcohol or drugs at the time of the hearing.

The Petitioner confirmed that trial counsel met with him “while in jail” and that an

investigator had been appointed in his case, with whom he also met. Trial counsel reviewed

the Petitioner’s defense with him, discussing that the co-defendant, the Petitioner’s girlfriend,

was suppose to testify against him at trial and that the attempted murder victim was his

cousin, so identity would not be a problem. The Petitioner confirmed that trial counsel told

him that he was unlikely to succeed at trial and that, if convicted as charged, he could “die

in prison.” The Petitioner further agreed that trial counsel advised him to take the State’s

seventeen-year offer.

Trial counsel then asked the Petitioner if he wanted to accept the offer, and the

Petitionersaid “[c]razy, man.” The trial court asked the Petitioner what part of trial counsel’s

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questioning was crazy. The Petitioner pulled from his pocket a counter offer written on a

piece of paper and stated, “I want to take this.” The trial court asked what the piece of paper

was, and trial counsel responded that it was a counter offer of fifteen years. Despite

indications to the contrary, the Petitioner insisted that trial counsel had not relayed the

fifteen-year offer to the State because the Petitioner “ain’t give him the paper.” When asked

if he understood that the State’s offer was seventeen years and that plea negotiations had

concluded, the Petitioner stated, “Could I go back there? I need to think real quick.”

The trial court explained the Petitioner’ssentencing exposure, including the applicable

sentencing ranges, the possibility of consecutive sentencing, and limited parole eligibility,

to the Petitioner, informing him that he faced a potential sentence of eighty-seven years if he

was convicted as charged. The trial court asked the Petitioner if he understood that the State

was offering seventeen years, and the Petitioner responded in the affirmative. The trial court

confirmed with the Petitioner that he had an “absolute right” to reject the offer and proceed

to trial. The court asked the Petitioner if he had any questions, and the Petitioner asked, “If

I plead - if I take a plea, right, can I get it back?” The judge advised as follows:

Once you enter a guilty plea, . . . that plea becomes final after thirty days.

There are some legal mechanisms that you can file. You can file a motion and

ask this court to allow you to withdraw your guilty plea; but it is almost one

hundred percent unlikely that I would allow you to withdraw your guilty plea.

. . . [I]t is almost an impossibility that would allow you to come back and

change your mind and say, “Well, I’ve changed my mind, I want to take that

plea back,” because that would interfere with the administration of justice in

my courtroom.

The trial court went on to explain the Petitioner’s options to him, including filing a petition

for post-conviction relief from his guilty plea or his right of a direct appeal following a jury

conviction. The Petitioner was then given an opportunity to “think about it,” and the

proceedings were recessed.

The Petitioner returned to open court and evinced a desire to enter a plea to the

seventeen-year offer. He confirmed that he could read and write and that he signed the plea

petition. The Petitioner testified that trial counsel had reviewed his constitutional rights with

him. The trial court then advised the Petitioner of his right to a jury trial, his right to testify

in his defense, his right to subpoena witnesses in his defense, his right to confront and crossexamine the witnesses against him, and his right to an appeal. The Petitioner stated that he

understood those rights and that he did not have any questions about those rights.

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The Petitioner confirmed his desire to accept the State’s seventeen-year offer and

plead guilty. The Petitioner affirmed that no one had threatened him or promised him

anything in exchange for his plea. The trial court again reviewed the potential sentencing

exposure that the Petitioner faced if he proceeded to trial and the consequences of pleading

guilty to violent offenses.

The Petitioner further testified that trial counsel had reviewed all discovery materials

with him. When asked if he had any witnesses he wanted trial counsel to talk to, the

Petitioner responded that trial counsel had talked to those witnesses. The trial court asked

the Petitioner if he had any complaints with trial counsel, and the Petitioner replied, “No.

[Trial counsel] cool. . . . I ain’t got no complaints.” The trial court again confirmed with the

Petitioner that he could not later withdraw his plea simply because he changed his mind. The

trial court then accepted the Petitioner’s guilty plea.

Post-Conviction Proceedings. Thereafter, the Petitioner filed a timely petition for

post-conviction relief. Counsel was appointed to represent the Petitioner, and an amended

petition was filed. The Petitioner claimed that he did not voluntarily plead guilty because the

trial court failed to address him “in open court as to whether he entered the guilty pleas

voluntarily, knowingly, and understandingly.” Specifically, he submitted that his plea was

not knowingly entered because he “was under the mistaken assumption that he could ‘take

his guilty plea back’ after it was entered.” He argued that due to this “misunderstanding

concerning the finality of a guilty plea, and the Petitioner’s limited ninth-grade education,”

the trial court “should have taken more extensive measures to ensure” that the Petitioner’s

guilty plea was truly made intelligently and knowingly. As a second claim for postconviction relief, the Petitioner contended that trial counsel was ineffective. As specific

grounds of ineffective assistance, the Petitioner alleged that trial counsel failed to “call upon

the assistance of several witnesses provided by the Petitioner in his defense, and advised the

[Petitioner] to take the guilty plea.” He noted that both the victim and the co-defendant

“could have been easily impeached” at the Petitioner’s trial, that trial counsel did not “call

upon character witnesses to testify to the Petitioner’s good character,” and that “there was

also another witness that could have been called . . . on the Petitioner’s behalf, to which the

trial attorney made the decision to not use this witness.” He further asserted that trial counsel

failed to meet with him frequently in preparation for trial. Finally, he submitted that trial

counsel was ineffective because it was “not clear from the file of the trial attorney if the trial

attorney made attempts to speak with any witnesses . . . in order to examine if inconsistent

statements were previously made by the State’s witnesses.”

A hearing was held in the post-conviction court, at which only the Petitioner and trial

counsel testified. The Petitioner testified he did “not completely” understand that he

“couldn’t take [his] guilty plea back when [he] pled guilty.” He elaborated, “I was under a

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different kind of understanding. I had my own little understanding, but I was just, I ain’t

understanding that I couldn’t take it back if I tried to pull I [sic] back.” The Petitioner said

he wanted “to pull the guilty plea back” because he felt like trial counsel “didn’t try to do his

job.”

The Petitioner asserted that trial counsel “took the statement that [the Petitioner] had

given him and [trial counsel] felt like he wasn’t going to be able to do any better than the

seventeen years.” The Petitioner claimed, however, that trial counsel “never tried to use [his]

statement,” as the Petitioner requested. The Petitioner further stated that trial counsel did not

“use the witnesses” that he suggested, including the Petitioner’s grandfather, mother, sister,

and aunt. According to the Petitioner, trial counsel gave his professional opinion to the

Petitioner that it was unlikely that he would succeed at trial.

The Petitioner believed that the trial court “should have taken more thorough

extensive measures to explain the weight and importance of the guilty plea.” This was so

because he “dropped out of school in the ninth grade, so . . . [he] wasn’t totally understanding

the law and the situation.” He stated that he understood that, if he successfully obtained postconviction relief, then he would get a new trial and would face up to eighty-seven years in

prison.

On cross-examination, the Petitioner acknowledged that the trial judge reviewed the

terms of his guilty plea agreement with him and that he understood “most of what [the trial

court] was saying.” He specifically recalled the trial court “going over the plea and the

numbers and the sentence and whatnot.” The Petitioner also remembered that he asked the

trial judge “if [he] pled guilty if [he] could take it back,” to which the trial judge responded

“no.” While he understood “[the trial judge] saying no,” the Petitioner was not

“understanding that [the trial judge] was meaning that [he] couldn’t take it back, just because

[he] wanted to take it back. Not because [he] felt like that [he] wasn’t represented,

sufficiently.”

The State confirmed with the Petitioner that he could not take the plea solely because

he was not “satisfied” and then questioned the Petitioner, “So why are we here?” The

Petitioner replied,

Because, like I said, I came and read the law and I understood that there

was a chance that the witnesses upon my case could have been impeached, but

[trial counsel] didn’t say anything about, well we get to, these [S]tate’s

witnesses, we may be able to impeach them.

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I understood that, my understanding was, he was like, well we can’t win

this, just because we couldn’t win this. I was feeling like he wasn’t taken my

statement in my favor to try to fight this.

The Petitioner testified that trial counsel “had been negotiating an agreement with the

State every since [he] had been indicted and he took over my case.” He confirmed that trial

counsel had an investigator appointed to work on the Petitioner’s case. However, the

Petitioner complained that he “very rarely” saw trial counsel, and he believed that, if he was

going to trial, he “should see him way more than, maybe, once every few months.” The

Petitioner opined that he saw the investigator more than he saw trial counsel and that, even

when we met with trial counsel, those visits were “not very long.” According to the

Petitioner, trial counsel did inform him that his co-defendant was going to testify against him

at trial, that the victim was going to identify him as the perpetrator, and that he would be

permitted to testify if he so chose. Moreover, trial counsel also reviewed the discovery

materials with the Petitioner. The Petitioner said this would have been his “first time”

proceeding to trial.

The Petitioner stated that he informed trial counsel of his “side of the story,” which

was that “it was actually just a drug deal went bad.” The Petitioner did not make a statement

to police. The Petitioner was asked about the list of witnesses he gave to trial counsel; the

Petitioner testified that he gave the names of his family members and “a friend guy that [he]

knew, kind of well.” According to the Petitioner, trial counsel said “nothing” in response to

this list of character witnesses. When asked how their testimony would have changed the

outcome of trial, the Petitioner responded, “Not changed, but maybe helped on letting them

know my character.” He acknowledged that he was present on the scene; therefore, these

witnesses would have had no effect on the facts presented to the jury about the circumstances

of the offenses.

The Petitioner was then asked about his remarks at the guilty plea hearing. The

Petitioner testified that he did not remember the trial court asking him if he had any witnesses

to be interviewed. The Petitioner confirmed that, in response to the question of whether he

had any problems with or complaints about trial counsel, he responded that trial counsel “was

an all right guy.”

The Petitioner also referenced his mental capacity and noted that he did not receive

a mental evaluation. When asked about the specifics of his mental problems, the Petitioner

said that, if he had been evaluated, then “they would have got an understanding on how [he]

was understanding it and maybe [he] wouldn’t have took the plea agreement a year ago,

because they would have been able to understand that [he] wasn’t understanding what they

was trying to say from it anyway.” He admitted that the trial court was aware that he only

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had a ninth-grade education and confirmed that he was twenty-nine years old at the time he

entered his plea. The Petitioner also acknowledged that he had previously entered a guilty

plea in another case but characterized that as “an easy plea.”

The Petitioner said that he did talk with trial counsel about making a fifteen-year deal,

which offer trial counsel did take to the State, but the State rejected. The Petitioner

acknowledged that he asked for “time to think about” the plea agreement at the guilty plea

hearing, which request was granted. During the recess, he was able to talk with his mother;

he returned and pled guilty.

Trial counsel testified that he did not use the Petitioner’s witnesses because

they were not relevant as far as guilt, or innocence, since the witnesses weren’t

present at the scene of the crime. And, calling character witnesses would have

opened the door, so to speak, for the prosecutor to question them about [the

Petitioner’s] bad character which included many criminal convictions and one

prior conviction for robbery[.]

Trial counsel said that, in his professional opinion, it was in the Petitioner’s best interest to

accept the guilty plea because he “had no chance of success at trial.” Trial counsel noted that

the co-defendant was the Petitioner’s girlfriend, who was prepared to testify against the

Petitioner at trial, and that the attempted murder victim was the Petitioner’s cousin, who

would identify the Petitioner as the shooter at trial. In the other robbery case, the Petitioner’s

fingerprints were found at the scene. Trial counsel stated that the Petitioner was facing up

to eighty-seven years in prison.

Trial counsel confirmed that he had an investigator appointed to assist with the

Petitioner’s case. According to trial counsel, the investigator reviewed all of the discovery

materials with the Petitioner. She also attempted to speak with the attempted murder victim,

but the victim was not very cooperative and would not consent to a formal interview. Trial

counsel recalled that he spoke with the attempted murder victim by phone. He was unable

to speak with the Petitioner’s co-defendant because she was represented by counsel. He

spoke with other potential witnesses, but none of them were helpful. Trial counsel confirmed

that he “thoroughly explained the consequences of pleading guilty” to the Petitioner.

On cross-examination, trial counsel stated that he had twelve years of criminal trial

experience. He stated that he discussed trial strategy with the Petitioner, noting that the

Petitioner claimed “it was a drug deal that did not go as planned.” Trial counsel testified that

“there were issues with which” to impeach the attempted murder victim and the Petitioner’s

co-defendant, i.e., the victim had a criminal history and the co-defendant was likely to

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receive some benefit in exchange for her testimony against the Petitioner. Despite these

credibility issues, trial counsel believed that “[t]hose issues would not detract from their other

testimony to a point to where jurors would acquit [the Petitioner] of these offenses.” Trial

counsel stated that he was prepared to proceed to trial even though he “didn’t have much of

a defense.”

Trial counsel was asked about the Petitioner’s mental condition and stated that he did

not believe the Petitioner needed a mental evaluation. According to trial counsel, the

Petitioner was a “very articulate, lucid young man.”

Trial counsel stated that he visited the Petitioner “six times in the jail and there were

multiple report dates” where he spoke with him. He believed he was adequately keeping the

Petitioner informed. According to trial counsel, the initial offer from the State was thirty

years.

After hearing the evidence presented, the post-conviction court denied relief by

written order filed on March 11, 2011. This appeal followed.

ANALYSIS

On appeal, the Petitioner contends that his plea was not knowingly and voluntarily

entered and that trial counsel failed to provide the effective assistance of counsel guaranteed

him by the United States and Tennessee constitutions at trial. Petitions for post-conviction

relief are governed by the Post-Conviction Procedure Act. Tenn. Code Ann. §§ 40-30-101

to -122. To obtain relief, the petitioner must show that his conviction or sentence is void or

voidable because of the abridgement of a constitutional right. Tenn. Code Ann. § 40-30-103.

The petitioner must prove his factual allegations supporting the grounds for relief contained

in his petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(2)(f); see

Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). Evidence is clear and convincing

when there is no substantial doubt about the accuracy of the conclusions drawn from the

evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

The post-conviction court’s findings of fact are conclusive on appeal unless the

evidence in the record preponderates against them. See Nichols v. State, 90 S.W.3d 576, 586

(Tenn. 2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)); see also Fields v.

State, 40 S.W.3d 450, 456-57 (Tenn. 2001). The petitioner has the burden of establishing

that the evidence preponderates against the post-conviction court’sfindings. Henley v. State,

960 S.W.2d 572, 579 (Tenn. 1997). This court may not re-weigh or reevaluate the evidence

or substitute its inferences for those drawn by the post-conviction court. Nichols, 90 S.W.3d

at 586. Furthermore, the credibility of the witnesses and the weight and value to be afforded

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their testimony are questions to be resolved by the post-conviction court. Bates v. State, 973

S.W.2d 615, 631 (Tenn. Crim. App. 1997).

I. Voluntariness of Plea

The Petitioner generally contends that “[t]he trial court committed a crucial error in

itsfailure to ascertain whether the Petitioner voluntarily, knowingly, and intelligently waived

his right to trial when he entered his guilty plea on May 28, 2009.” The Petitioner then goes

on to cite to testimony from the post-conviction hearing,specifically references to his limited

education and “that he did not fully understand ‘the law and the situation.’” He argues that

“there is no basis to state that the [Petitioner] knowingly entered his guilty plea before the

trial judge,” noting that “the transcript shows that the Petitioner was reluctant to enter the

guilty plea originally because the State of Tennessee did not accept a counter offer of fifteen

years[.]” He later submits in his rambling argument “that perhaps, a psychological test or

mental evaluation could have been conducted” and that, “due to his limited ninth-grade

education, [he] did not understand the consequences of the guilty plea, to the extent of its

finality.” He concludes that the trial court “should have taken more extensive measures to

ensure that the Petitioner’s guilty plea was truly made intelligently and knowingly.”

When analyzing the voluntariness of a guilty plea, we look to the federal standard

announced in Boykin v. Alabama, 395 U.S. 238 (1969), and the state standard set out in State

v. Mackey, 553 S .W.2d 337 (Tenn. 1977). See State v. Pettus, 986 S.W.2d 540, 542 (Tenn.

1999). In Boykin, the United States Supreme Court held that there must be an affirmative

showing in the trial court that a guilty plea was voluntarily and knowingly given before it can

be accepted. 395 U.S. at 242. Similarly, our supreme court in Mackey required an

affirmative showing of a voluntary and knowledgeable guilty plea. Pettus, 986 S.W.2d at

542. A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,

inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

Because the plea must represent a voluntary and intelligent choice among the

alternatives available, there are a number of circumstantial factors that should be considered

when examining the voluntariness of a guilty plea. Id. These factors include: (1) the

defendant’s relative intelligence; (2) his familiarity with criminal proceedings; (3) whether

he was represented by competent counsel and had the opportunity to confer with counsel

about alternatives; (4) the advice of counsel and the court about the charges against him and

the penalty to be imposed; and (5) the defendant’s reasons for pleading guilty, including the

desire to avoid a greater penalty in a jury trial. Id. at 904-05.

II. Ineffective Assistance of Counsel

Specifically, the Petitioner contends that he received the ineffective assistance of

counsel because trial counsel (1) “failed to utilize for impeachment purposes the weaknesses

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of the State’s witnesses”; (2) “failed to adequately prepare for trial by not calling upon the

assistance of several witnesses provided by the Petitioner in his defense”; and (3) “advised

the [Petitioner] to take the guilty plea.”

Under the Sixth Amendment to the United States Constitution, when a claim of

ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that

counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland

v. Washington, 466 U.S. 668, 687 (1984); see Lockart v. Fretwell, 506 U.S. 364, 368-72

(1993). In other words, a showing that counsel’s performance was deficient is not enough;

rather, the petitioner must also show that but for counsel’s deficient performance, “the result

of the proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland

standard has also been applied to the right to counsel under Article I, section 9 of the

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

A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. See Henley, 960 S.W.2d at 580. The

performance prong requires a petitioner raising a claim of ineffectiveness to show that

counsel’s representation fell below an objective standard of reasonableness or was “outside

the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. The

prejudice prong requires a petitioner to demonstrate that “there is a reasonable probability

that, but for counsel’s professional errors, the result of the proceeding would have been

different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. Failure to satisfy either prong results in the denial of relief.

Id. at 697.

This two-part standard of measuring ineffective assistance of counsel also applies to

claims arising out of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice

component is modified such that the defendant “must 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.” Id. at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn.

Crim. App. 1998).

Both the United States Supreme Court and the Tennessee Supreme Court have

recognized that the right to such representation includes the right to “reasonably effective”

assistance, that is, within the range of competence demanded of attorneys in criminal cases.

Strickland, 466 U.S. at 687 (1984); Burns, 6 S.W.3d at 461; Baxter v. Rose, 523 S.W.2d 930,

936 (Tenn. 1975). In reviewing counsel’s conduct, a “fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate

the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. “Thus, the

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fact that a particular strategy or tactic failed or even hurt the defense does not, alone, support

a claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.

1992). Deference is made to trial strategy or tactical choices if they are informed ones based

upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

Ineffective assistance of counsel claims are regarded as mixed questions of law and

fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). Thus, the post-conviction’s

findings of fact underlying a claim of ineffective assistance of counsel are reviewed under

a de novo standard, accompanied with a presumption that the findings are correct unless the

preponderance of the evidence is otherwise. Fields, 40 S.W.3d at 458 (citing Tenn. R. App.

P. 13(d)). The post-conviction court’s conclusions of law are reviewed under a de novo

standard with no presumption of correctness. Id.

Once a guilty plea has been entered, effectiveness of counsel is relevant only to the

extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective

assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently

made. Hill v. Lockhart, 474 U.S. at 56 (citing North Carolina v. Alford, 400 U.S. 25, 31

(1970)).

III. Post-conviction Court’s Rulings

The post-conviction court determined that the Petitioner’s plea was voluntarily made,

ruling as follows:

Without offering any proof that he was not competent to plead guilty,

the Petitioner has failed to establish that he did not knowingly and

understandingly accept the guilty plea. Furthermore, the Petitioner’s allegation

that the trial court failed to adequately address him “personally in open court”

is without merit where the record reflects a very clear and direct discourse

between Judge Lee Coffee and the Petitioner regarding the consequences of

the guilty plea. The Petitioner claims that he was under the impression, at

various times, that he may be able to withdraw his guilty plea, or “take it

back.” The Petitioner claims that this misunderstanding should have called for

more extensive measures by the trial court to ensure that the Petitioner’s guilty

plea was truly made knowingly and understandingly. However, the Petitioner

agreed at the post-conviction relief hearing that Judge Coffee specifically

addressed this mistaken understanding, stating “I told you that you could not

change your mind, that you had thirty days, but it would be unlikely that I

would set aside your guilty plea, or allow you to withdraw the guilty plea, do

you understand that?” Petitioner’s allegations that the trial court did not

sufficiently inform him of the consequences of the guilty plea, specifically

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with regard to his understanding of an ability to withdraw such a plea, does not

make a valid attack on the constitutionality of his guilty plea.

(Footnote and citations omitted).

The post-conviction court then addressed the Petitioner’s allegations of ineffective

assistance of counsel. Regarding trial counsel’s “[f]ailure to call upon witnesses provided

by the Petitioner,” the post-conviction court ruled as follows:

Trial counsel specifically stated that he chose not to use the Petitioner’s

proposed witnesses because “they were not relevant as far as guilt or

innocence.” Additionally, trial counsel testified that he felt that it would not

be in the Petitioner’s best interest to call potential character witnesses because

their testimony would “open the door” for the prosecution’s use of witness

testimony to establish the bad character of a defendant. Trial counsel stated

that he felt that, because there were “plenty of instances of bad character”

regarding the Petitioner, that the use of such testimony could be very damaging

at trial.

Trial counsel’s “tactical and strategic choices” will not be second

guessed by the court. Accordingly, trial counsel’s performance was that of an

attorney with ordinary training and skill in the criminal law and within the

range of “reasonable professional assistance.” Furthermore, this court cannot

conclude that trial counsel’s representation prejudiced Petitioner, as Petitioner

has failed to offer sufficient proof to support this claim for relief.

(Citations omitted).

Discussing trial counsel’s advice to accept the guilty plea agreement rather than go

to trial, the post-conviction court concluded as follows:

Trial counsel . . . stated that this decision was based on his professional

opinion of the Petitioner’s chances of success at trial. Trial counsel testified

that he was prepared to proceed at trial, but that he had multiple concerns

about the amount of time the Petitioner might be sentenced to at trial, and that

he communicated those concerns to the Petitioner. Trial counsel further

testified that he explained to Petitioner the consequences of accepting the

seventeen-year sentence as part of the plea negotiation. It is important to note

that at the time trial counsel was appointed to Petitioner’s case, the State’s

offer for a guilty plea was thirty years. Trial counsel’s advice that the

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Petitioner accept a seventeen-year sentence, in light of the likelihood that

Petitioner could have otherwise received as sentence almost twice as long,

does not amount to ineffective assistance of counsel. As previously

mentioned, the court does not second guess with twenty-twenty hindsight, the

trial tactics utilized in criminal cases. As such, the Petitioner has not proven

his allegation by clear and convincing evidence.

(Citation omitted).

The post-conviction court then discussed the Petitioner’s mental capacity:

While the petition does notspecifically allege the failure of trial counsel

to seek a mental evaluation of Petitioner as grounds for relief, this matter was

briefly addressed and has relevance to the matter of constitutionality of a plea

negotiation. Because a guilty plea must be entered voluntarily, knowingly, and

intelligently, when it can be shown that a defendant’s mental state fell below

competency standards, there may be grounds for relief from that sentence.

However, the Petitioner offers no proof upon which to base a finding of

incompetency and further, trial counsel specifically stated that there was no

indication that his client lacked in the requisite metal faculties to knowingly,

voluntarily and intelligently accept the guilty plea.

IV. Appellate Review

The post-conviction court did not credit the testimony of the Petitioner at his postconviction hearing, instead concluding that the Petitioner understood his plea agreement.

There was no evidence to suggest that the Petitioner was incapable of understanding the

parameters of his sentence agreement or his counsel’s advice. The Petitioner only provided

bare allegations of mental problems. At the guilty plea hearing, the Petitioner confirmed that

he could read and write despite dropping out of high school in the ninth grade. Trial counsel

testified at the post-conviction hearing that the Petitioner was articulate and lucid at the time

of his plea. Moreover, the Petitioner was familiar with criminal proceedings, having

previously entered a guilty plea, albeit one characterized by him as “an easy plea.”

Before the Petitioner pled guilty, counsel and the trial court advised him regarding his

rights, the charges against him, and the potential sentence he could receive if he proceeded

to trial. The Petitioner was told that he would face up to eighty-seven years in prison if

convicted as charged. Despite the Petitioner’s assertions to the contrary, the record reflects

that the trial court thoroughly explained the finality of his plea to him, even allowing the

Petitioner a recess to “think about it.” As noted by the post-conviction court, the trial judge

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specifically addressed the Petitioner’s mistaken understanding regarding his ability to

withdraw his plea.

The guilty plea transcript reveals that the trial judge carefully reviewed the rights that

the Petitioner was waiving and confirms that the Petitioner responded appropriately to

questions. Indeed, in his brief, the Petitioner acknowledges that the trial court “took great

steps to explain to the Petitioner the significance and consequences of pleading guilty.” The

Petitioner said that he was not under the influence of any substance at the plea hearing. The

Petitioner was also asked if he was being pressured to plead or offered anything in exchange

for his plea, to which he answered no. Furthermore, the Petitioner stated that he was satisfied

with trial counsel’s representation. The trial court outlined the terms of the plea agreement,

and the Petitioner acknowledged his signature on the agreement. The record reflects the

Petitioner knew and understood the options available to him prior to the entry of his guilty

plea, including the right not to plead guilty and continue with his jury trial, and he freely

made an informed decision of that course that was most palatable to him at the time.

The Petitioner was also represented by competent counsel. Regarding the Petitioner’s

allegations that trial counsel “failed to utilize for impeachment purposes the weaknesses of

the State’s witnesses,” trial counsel testified that he was aware of the possibility of

impeachment of the attempted murder victim and the co-defendant. However, trial counsel

opined that these impeachment prospects were not relevant to the Petitioner’s guilt or

innocence and would not result in an acquittal for the Petitioner.

The Petitioner’s assertion that trial counsel was constitutionally ineffective for failing

to interview the witnesses he provided is unsupported. At the guilty plea hearing, the

Petitioner was asked if he had any witnesses he wanted trial counsel to talk to, and the

Petitioner responded that trial counsel had talked with those witnesses. Additionally, the

Petitioner did not present any of these witnesses at the post-conviction hearing.

When a petitioner contends that trial counsel failed to discover,

interview, or present witnesses in support of his defense, these witnesses

should be presented by the petitioner at the evidentiary hearing. As a general

rule, this is the only way the petitioner can establish that . . . the failure to

discover or interview a witness inured to his prejudice.

Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

Furthermore, the Petitioner acknowledged that these witnesses were only character

witnesses and could offer little information on the facts surrounding these offenses. Trial

counsel testified that calling these witnesses would “open the door” for the State to put on

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evidence of the Petitioner’s prior criminal history. We agree with the post-conviction court

that counsel’s decision not to use these witnesses represented sound defense strategy.

The Petitioner also contends that trial counsel was ineffective for advising him to

plead guilty. However, the evidence presented at the evidentiary hearing reflects that trial

counsel thoroughly and adequately investigated the Petitioner’s case before advising him

regarding the plea agreement. Trial counsel said that he reviewed the facts of the case with

the Petitioner, including possible defense strategies, his right to testify on his own behalf, the

penalties he was facing, and the possibility of proceeding to trial. Trial counsel had an

investigator appointed to assist in the Petitioner’s case. The Petitioner testified that trial

counsel reviewed all discovery materials with him. Trial counsel said that he met with the

Petitioner on multiple occasions. Trial counsel believed that the Petitioner’s chances at trial

were not favorable. The Petitioner has failed to show that he was denied the effective

assistance of counsel.

The evidence supports the findings of fact and conclusions of law made by the postconviction court. Accordingly, we conclude that the post-conviction court did not err in

finding that the Petitioner voluntarily, knowingly, and intelligently pled guilty and that

counsel was not deficient.

CONCLUSION

Based upon the foregoing, we conclude that the post-conviction court did not err by

denying post-conviction relief. Accordingly, we affirm the judgment of the Shelby County

Criminal Court.

________________________________

D. KELLY THOMAS, JR., JUDGE

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