IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 18, 2013 Session

YOVONDA SHERITH CHAMBERS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Rutherford County

No. F-68165 David M. Bragg, Judge

No. M2013-00766-CCA-R3-PC Filed October 18, 2013

The petitioner, Yovonda Sherith Chambers, appeals the denial of her petition for postconviction relief, arguing that she received ineffective assistance of counsel and that her

guilty pleas were unknowing and involuntary. Following our review, we affirm the denial

of the petition.

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

ALAN E. GLENN,J., delivered the opinion of the Court, in which JOSEPH M. TIPTON, P.J., and

JEFFREY S. BIVINS, J., joined.

Thomas S. Santel, Jr. and Blake A. Garner, Murfreesboro, Tennessee, for the appellant,

Yovonda Sherith Chambers.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; William C. Whitesell,Jr., District Attorney General; and Trevor H. Lynch, Assistant

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

OPINION

FACTS

In August 2010, the petitioner was indicted by the Rutherford County Grand Jury with

four counts of identity theft and one count of forgery. On September 28, 2010, she pled

guilty to the four counts of identity theft under a plea agreement for judicial diversion in

exchange for concurrent sentences of three years on probation and the dismissal of the

forgery count of the indictment. On July 29, 2011, the petitioner pled guilty to a violation

of probation. She was returned to three years of probation, and her guilty pleas to the four

counts of identity theft were entered as final judgments of conviction.
The petitioner filed her initial pro se petition for post-conviction relief on May 15,

2012, which she followed by additional pro se petitions. A series of counsel were appointed

and on November 19, 2012, the petitioner, with the assistance of post-conviction counsel,

filed an amended petition in which she raised claims of ineffective assistance of trial counsel

and involuntary and unknowing guilty pleas. Specifically, she alleged that her trial counsel

was deficient for not explaining to her the difference between judicial and pretrial diversion.

She further alleged thatshe was prejudiced by counsel’s deficiency in representation and that

her guilty pleas were therefore unknowing and involuntary because she would not have pled

guilty had she not mistakenly believed that she would be receiving pretrial, rather than

judicial, diversion.

The only witness at the evidentiary hearing was the petitioner, who testified that she

was forty-one years old, a high school graduate, had completed three years of college but did

not have a degree, and worked in the mail room at Vanderbilt University. She said trial

counsel, a pubic defender who was appointed to represent her, met with her one time at his

office, where he discussed the facts of the case and potential means of resolving it, including

pretrial diversion. The petitioner explained that she had researched pretrial diversion before

her meeting and brought it up to counsel during their discussion about the case. Following

their conversation, she completed in counsel’s back office an application for pretrial

diversion. She did not keep a copy of that paperwork, and she never heard back from counsel

about it.

The petitioner testified that the next time she met with counsel was in the courtroom

on the day that she entered her pleas. She said her understanding was that she had applied

for pretrial diversion and that she was present in the courtroom that day “to get the pretrial

diversion.” The petitioner claimed that she knew nothing about judicial diversion and had

no intention of pleading guilty and being placed on judicial diversion. She acknowledged

that she signed a document entitled “Probation Conditions Pursuant to Judicial Diversion,”

but she insisted that she nonetheless believed that she was being placed on pretrial diversion

and thought that the word “judicial” simply meant that it was an official document. She said

she answered “no contest” when the trial court asked her how she wanted to plead because

her understanding was that she was receiving pretrial diversion, for which she did not have

to enter a guilty plea. She stated that she answered “guilty by best interest” later in the

proceedings because trial counsel advised her to do so. However, she never intended to

plead guilty to the offenses and had she known there was a difference between pretrial and

judicial diversion, she would not have entered her pleas.

On cross-examination, the petitioner testified that her understanding from her research

was that if she received pretrial diversion she would not have to enter a guilty plea, the court

would place her on probation for a period of up to two years, and the case “pretty much

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would start all over” if she violated the terms of her probation. She acknowledged that,

despite that understanding, she said nothing to the trial judge when he told her she was being

placed on three years probation. She further acknowledged that she told the trial judge that

she understood that if she violated her probation, her diversion would be set aside and the

convictions would be entered and would go on her record. Finally, she acknowledged that

after she pled guilty and was placed on diversion in the instant case, she was convicted of

identity theft in Williamson County based on a later-occurring offense.

At the conclusion of the hearing, the post-conviction court found that the petitioner

failed to prove by clear and convincing evidence that trial counsel’s performance was

deficient or that she was prejudiced as a result. The post-conviction court further found that

the petitioner entered knowing and voluntary guilty pleas pursuant to judicial diversion.

Among other things, the court noted that the petitioner was actively listening and

participating during the plea submission hearing and that there was no record of her having

filed any application for pretrial diversion. The post-conviction court, therefore, denied the

petition. This appeal followed.

ANALYSIS

Post-conviction relief “shall be granted when the conviction or sentence is void or

voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee

or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2012). The

petitioner bears the burden of proving factual allegations by clear and convincing evidence.

Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the

findings of fact made by the court are conclusive on appeal unless the evidence

preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When

reviewing factual issues, the appellate court will not reweigh the evidence and will instead

defer to the post-conviction court’s findings as to the credibility of witnesses or the weight

of their testimony. Id. However, review of a post-conviction court’s application of the law

to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978

S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents

mixed questions of fact and law, is reviewed de novo, with a presumption of correctness

given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

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cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The

prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability

sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional

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

In the context of a guilty plea, the petitioner must show a reasonable probability that were

it not for the deficiencies in counsel’s representation, he or she would not have pled guilty

but would instead have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59

(1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

Before a guilty plea may be accepted, there must be an affirmative showing in the trial

court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242

(1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a showing that

the defendant was made aware of the significant consequences of the plea. State v. Pettus,

986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340). A plea is not

“voluntary” if it resultsfrom ignorance, misunderstanding, coercion, inducements, or threats.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if

the guilty plea is “knowing” by questioning the defendant to make sure he or she fully

understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858

S.W.2d at 904.

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

alternatives available to the defendant, the trial court may look at a number of circumstantial

factors in making this determination. Blankenship, 858 S.W.2d at 904. These factors

include: (1) the defendant’srelative intelligence; (2) the defendant’sfamiliarity with criminal

proceedings; (3) whether the defendant was represented by competent counsel and had the

opportunity to confer with counsel about alternatives; (4) the advice of counsel and the court

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about the charges against the defendant 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.

In support of her argument that her guilty pleas were involuntary and unknowing due

to counsel’s alleged failure to discuss judicial diversion with her and her mistaken belief that

she was receiving pretrial, rather than judicial, diversion, the petitioner cites her initial

response to the trial court at the plea submission hearing that she was pleading “no contest”

to the charges, as well as her testimony at the evidentiary hearing that the only type of

diversion counsel discussed was pretrial, which was why she believed she would be receiving

pretrial diversion at the time she entered her pleas.

The record, however, fully supports the post-conviction court’s findings that the

petitioner received effective assistance of counsel and entered her pleas knowingly and

voluntarily. As the State points out, the post-conviction court, in rejecting the petitioner’s

claims, demonstrated that it did not believe her testimony that trial counsel failed to explain

the plea to her or that she did not understand that she was receiving judicial diversion.

Furthermore, the transcript of the guilty plea hearing reveals that the petitioner, a relatively

well-educated and intelligent woman who, by her own testimony, acted on her own initiative

to research the law on pretrial diversion, answered appropriately to the trial court when

questioned, among other things, about whether she understood her plea agreement and the

fact that her judgments would be entered and become part of her permanent record should

she fail to comply with the conditions of her diversion. We conclude, therefore, that the

evidence does not preponderate against the post-conviction court’s findings that the

petitioner received effective assistance of counsel and that her guilty pleas were knowingly

and voluntarily entered.

CONCLUSION

Based on our review, we conclude that the petitioner has failed to meet her burden of

showing that she received ineffective assistance of counsel or that her guilty pleas were

unknowing and involuntary. Accordingly, we affirm the denial of the petition for postconviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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