IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 8, 2005

THOMAS M. McCORMICK v. STATE OF TENNESSEE

 Appeal from the Circuit Court for Bedford County

No. 9668 Charles Lee, Judge

No. M2004-00042-CCA-R3-PC - Filed March 28, 2005

The petitioner, Thomas M. McCormick, appeals as of right the dismissal of his petition for postconviction relief by the Bedford County Circuit Court. He seeks relief from his conviction for

aggravated assault and sentence of twelve years as a Range III, persistent offender. The petitioner

contends that he received the ineffective assistance of counsel which caused him to enter an

unknowing and involuntary guilty plea. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON,J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J. C.

MCLIN, JJ., joined.

DonnaLeigh Hargrove, District PublicDefender, and Andrew Jackson Dearing, III, Assistant Public

Defender, for the appellant, Thomas M. McCormick.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

William Michael McCown, District Attorney General; and Michael D. Randles and Ann L. Filer,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The petitioner was initially indicted for two counts of especially aggravated kidnapping, a

Class A felony, and two counts of aggravated assault, a Class C felony. Pursuant to a plea

agreement, the petitioner pled guilty to one count of aggravated kidnapping, a Class B felony.

Shortly after the petitioner entered his guilty plea, his attorney realized that she had neglected to

inform him that persons committing the offense of aggravated kidnapping are required to serve one

hundred percent of the sentence imposed by the court. See T.C.A. § 40-35-501(i)(1), (i)(2)(D). The

petitioner was allowed to withdraw his guilty plea. After further negotiations, the petitioner pled

guilty to aggravated assault, a Class C felony, and was sentenced to twelve years as a Range III,

persistent offender with release eligibility after serving forty-five percent. 
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At the first guilty plea hearing, the trial court informed the petitioner that it would ask a series

of questions after the petitioner was placed under oath and that a false answer or statement

concerning a material fact could result in a charge of perjury. The petitioner informed the trial court

that he understood. The trial court asked the petitioner if he read and understood the guilty plea

petition. The petitioner responded affirmatively. The trial court asked the petitioner whether he

understood he was waiving certain rights, including the right to a trial by jury, and explained in detail

what those rights entailed. The petitioner responded that he understood. The trial court asked the

petitioner whether he understood the range of punishment for the offense would be “at least 8 years

and could be as many as 30 years,” and if he had less than two felony convictions, the range of

punishment “would be not less than 8 nor more than 12 years.” He replied that he understood the

range of punishment. The state informed the trial court the petitioner was a Range I, standard

offender. The trial court asked him if there had been any threats or promises made to him concerning

the guilty plea, other than those announced in court on that day. He replied negatively and said he

had no questions. 

The state presented the following factual basis to support the plea and agreement: On

September 8, 2002, the petitioner removed his wife from her mother’s home in Coffee County at

gunpoint. He physically pulled her out of the house by her hair, placed her in his truck, and beat her

with wooden sticks and his fists during the trip back to their home in Bedford County. When a

Bedford County police officer arrived at the petitioner’s home, he could see the silhouette of one

figure striking another through a window. The officer knocked. The petitioner answered the door

and was asked to step outside. The petitioner’s wife was severely bruised and blood was coming

from her mouth and feet. She was mainly incoherent but was able to convey that she was taken from

her mother’s home at gunpoint and beaten during the entire drive home. Once they arrived, the

petitioner continued to beat her with his fists and with belts and held knives to her throat. He told

her she was going to die. The officers found blood and a chunk of flesh inside the truck. They also

found a .22 caliber Derringer pistol and several wooden carving sticks matching descriptions of the

items with which the victim said she was beaten. The petitioner acknowledged the facts as

presented. The trial court scheduled the sentencing hearing, but the petitioner subsequently withdrew

his guilty plea to the aggravated kidnapping charge.

After additional plea negotiations, the petitioner pled guilty to aggravated assault. At the

hearing on the petitioner’s second guilty plea the following colloquy occurred:

COURT: The Court previously entertained and did

accept a plea of guilty in this matter. The

Court previously explained to [the petitioner]

all of the rights which were associated with

the entry of a plea of guilty; ascertained that

his plea was freely and voluntarily made; and

then afterwards because of a misunderstanding

not about any of the rights which the

[petitioner] had, but about the nature of the
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plea itself, the Court allowed the plea to be

withdrawn. So, [to the petitioner] do you

recall that when you previously appeared

before the Court and the Court explained to

you all of the rights which you had and the

State told the Court the factual basis

surrounding that, has any of that changed?

[PETITIONER]: No, sir.

COURT: General, what is the agreement which you

have reached in this matter?

[STATE]: Please the Court, the agreement is that the

[petitioner] plead guilty to count 2, which is a

C grade felony, aggravated assault. He is

waiving his – the sentencing range that he

would fall within, based upon his criminal

record for purposes of this negotiated

settlement, has agreed to be sentenced to

persistent offender at 45 percent to a 12 year

sentence.

COURT: 12 or 9?

[STATE]: It should be 12. Doesthe paperwork say 9? It

should be 12.

COURT: [To the petitioner] I want to make sure that

you understand. I am sure that your lawyer

has explained to you that normally speaking a

person that does not have at least two felony

convictions . . . would be eligible for release

after at least 30 percent . . . . That doesn’t

mean you are going to be released. It means

you will be eligible to be released. Only those

persons who have two or more felonies can be

sentenced where their earliest release date is

45 percent. However, on occasion, the parties

may agree that it is in their best interest to

forego the sentencing law as it pertains to the

number of felony convictions a person has and

agree to accept a sentence even though they
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may not normally fall within that range. In

your case the reason for doing that is that you

are coming out of 100 percent range down to

45 as a result of this negotiated settlement.

That would be in your best interest. Do you

understand why you are being sentenced to 45

percent even though you don’t have two prior

felonies in your background?

[PETITIONER]: Yes, sir.

COURT: Do you have any questions at all about the

agreement that you have reached with the

State in this matter?

[PETITIONER]: No, sir.

COURT: All right. The Court will find that to be

acceptable. The Court will enter the

judgments as entered between the parties.

The hearing was concluded at this point. Thereafter, the petitioner filed a petition for postconviction relief alleging the ineffective assistance of counsel. He claimed the attorney who

represented him during the plea negotiations advised him incorrectly on sentencing issues which

resulted in an unknowing and involuntary guilty plea. He asserted that at the time he entered his plea

of guilty, he believed his agreed sentence was nine years with thirty percent release eligibility but

also that the sentence was suspended except for eleven months and twenty-nine days.

At the post-conviction hearing, the attorney who represented the petitioner during his plea

proceedings testified that she met with him at least twenty or twenty-five times. She said the initial

indictment was for two counts of especiallyaggravated kidnapping, a Class A felony, and two counts

of aggravated assault, a Class C felony. She said she told him the range of punishment was from

fifteen to sixty years for the Class A felony offense. She admitted that when the petitioner entered

his first guilty plea, she had forgotten that conviction for an aggravated kidnapping offense required

one hundred percent service. She said she made arrangements to withdraw the guilty plea on the day

she discovered her error. She said that the state and trial judge allowed the plea to be withdrawn and

that she renegotiated a second agreement. She denied telling the petitioner he would serve eleven

months and twenty-nine days or any other amount of time before he would be released. She said she

informed him that his sentence would be determined by the trial court after a hearing. She said she

was aware that the petitioner had problems with reading and comprehension and that his educational

level was below average. She said she reviewed the plea agreement with him and let him read it.

She said he did not indicate to her that he did not understand the document. She said she also

explained the petitioner’s rights to him and which of those rights he would waive by pleading guilty.
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She said that when the new plea agreement was negotiated, she told the petitioner that in

order to plead to a lower class offense and get rid of the especially aggravated kidnapping charge,

he would have to plead to a sentence outside his normal range. She said that she explained what it

meant to “plead outside the range” and that this was necessary to reduce the charge to aggravated

assault. She said he had questions about his release eligibility, so she calculated forty-five percent

of the twelve-year sentence offered by the state, which was 5.4 years. She said she told him that this

was the date he was eligible for parole but that the release date would actually be based upon his

behavior while in the penitentiary. She said she discussed the new offer with him, let him read the

agreement, and explained the differences between the new agreement and the former. She said the

petitioner had no questions afterward. With regard to the plea hearings, she said she advised the

petitioner to answer the trial court’s questions truthfully. She said that the second plea agreement

with the state was for twelve years, not nine years, and that the error on the judgment form was

clerical in nature. She said she made no promises or guarantees concerning sentencing to the

petitioner.

On cross-examination, the attorney testified that she did not pressure the petitioner to accept

the state’s offer and that she would have been just as happy to go to trial. She said her job was to

present her clients’ options to them and let them decide what to do. She said that she reviewed the

plea agreement with the petitioner and that if at any point he appeared to misunderstand some part

of it, she went back over it with him until he acknowledged he understood. She said that she did not

require the petitioner to accept either plea agreement on the day she presented them but suggested

that he talk them over with his family first. She said that when she presented the second plea offer,

he considered it for two or three days before he accepted it. Regarding the judgment form on which

the sentence length was erroneously marked “9” and later changed to a “12,” she said the clerical

error could not have confused the petitioner because he never saw the form. 

The petitioner testified that he completed the ninth grade in high school but that he could read

and write only at third or fourth grade levels. He said he informed his attorney of this fact. He did

not recall discussing his first plea agreement with his attorney, but he recalled his sentence was to

be nine years, suspended except for eleven months and twenty-nine days. He said this was his

understanding when he entered his first plea. When asked whether he read the plea agreement form,

he replied that he “looked at it the best [he] could.” He admitted signing the form but said that no

one reviewed it with him or read it to him. He recalled that the trial court asked him questions at the

first plea hearing and that he indicated to the court he understood what was happening. He also

recalled that the trial court asked him if he had any questions and that he answered negatively. He

claimed that he said “no” because he was told to answer the trial judge with “yes, sir” or “no, sir”

when asked questions and that he had no questions at that time. He recalled speaking with his

attorney about her mistake concerning the first plea agreement. He said he expected the second deal

to be better. He said that instead of the suspended sentence, however, the second agreement gave

him a sentence of twelve years with forty-five percent release eligibility. Nevertheless, he said that

he believed he would still be in jail only eleven months and twenty-nine days. The petitioner was

shown the written plea agreement, which stated in large lettering that the petitioner pled as a “Range

III offender (45%), taking a sentence of 12 years,” and admitted signing the form, but he said he only
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looked at the agreement and did not read it. He admitted telling the trial court at the second plea

hearing that he read the document but explained he did so because he was instructed to answer

questions. He said no one reviewed the second petition with him or read it to him. He said that he

has not been seen by a doctor for mental difficulties and that he was not taking any medication or

under the influence of drugs or alcohol at the time of either hearing. 

On cross-examination, the petitioner admitted giving a false answer when the trial court

questioned him about whether he read the document. He explained that his attorney instructed him

to answer yes or no, “either way,” to whatever question was put to him. He admitted his attorney

also instructed him to answer all questions truthfully. He said that he agreed to a sentencing hearing

to determine his sentence under the first plea agreement and that the agreed sentence was to be nine

years, suspended to eleven months and twenty-nine days. He admitted that nothing was said at the

first hearing concerning the nine-year suspended sentence and that nothing in the plea agreement

referred to a nine-year suspended sentence. He claimed no one explained sentencing ranges to him.

He admitted signing the second agreement, seeing the language which stated the sentence would be

twelve years, and not seeing the number “9” or “11 months and 29 days” anywhere on the agreement

form. He said his attorney never explained that he was a Range I offender based on his criminal

history or that he had to plead as a Range III to get the more serious charge dropped. Then he

admitted that his attorney told him the best deal he could get would be a sentence of twelve years

at forty-five percent and that the second agreement he signed was for such a sentence. He said that

if he had known anything about the law, however, he would never have agreed to give up his

sentence of eleven months and twenty-nine days for a sentence of twelve years. He conceded,

though, that the documents did not reflect he ever had such a sentence. 

Leslie McCormick, the petitioner’s brother, testified that he was present during some of the

meetings the petitioner had with his attorney and that the attorney told them the petitioner would

receive a nine-year sentence and serve 3.4 years. He said that the next time he accompanied the

petitioner, the attorney told them that nine years was going to “go away” but that the petitioner would

not receive twelve years and would not serve more than three years. He said the petitioner

understood that if he were granted a new trial and found guilty, he could serve fifteen to twenty-five

years at one hundred percent. 

At the conclusion of the hearing, the trial court noted that the petitioner swore to tell the truth

in both guilty plea hearings but found that he “gave whatever answer fit, not once, but on two

separate occasions.” The trial court found that the petitioner’s rights and the sentencing ranges were

explained to him in detail and that no mention was made of a nine-year sentence or a suspended

sentence during either guilty plea hearing. The trial court noted that the petitioner did not answer

truthfully when asked if he understood the plea petition, that the petitioner told the court no one had

threatened or promised him anything concerning his plea, and that the petitioner said he had no

questions during the plea hearings, but that everything had changed since then. The trial court found

the credibility of the petitioner highly suspect and accredited the testimony of the attorney. The trial

court also found that no promises were made to the petitioner and that the petitioner knew what his
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sentences would be. The trial court concluded the facts did not justify setting aside his guilty plea,

which was voluntarily and freely given.

ANALYSIS

On appeal, the petitioner contends that the trial court erred by dismissing his petition. He

argues that he received the ineffective assistance of counsel when his attorney gave him erroneous

advice concerning his plea and resulting sentence and that this advice caused his guilty plea to be

unknowing and involuntary. The state contends that the petitioner received the effective assistance

of counsel and that his guilty plea was knowing and voluntary. We agree with the state.

When a claim of ineffective assistance of counsel is made, the burden is upon the petitioner

to show (1) that counsel’s performance was deficient and (2) that the deficiency was prejudicial. See

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Melson, 772

S.W.2d 417, 419 n.2 (Tenn. 1989). To satisfy the requirement of prejudice when the petitioner

entered guilty pleas, the petitioner must demonstrate a reasonable probability that, but for counsel’s

errors, she would not have pled guilty and would have insisted on going to trial. See Hill v.

Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215

(Tenn. Crim. App. 1991). In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

decided that attorneys should be held to the general standard of whether the services rendered were

within the range of competence demanded of attorneys in criminal cases. 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, 104

S. Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

The burden was on the petitioner in the trial court to prove by clear and convincing evidence

the factual allegations that would entitle him to relief. T.C.A. § 40-30-110(f). On appeal, we are

bound by the trial court’s findings of fact unless we conclude that the evidence in the record

preponderates against those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

Because the trial court’s conclusions regarding the effectiveness of counsel involve mixed questions

of law and fact, our review is de novo with no presumption of correctness. 

At the post-conviction hearing, the attorney testified that she met with the petitioner a

minimum of twenty times and that she explained the sentencing issues involved, including the ranges

associated with the offenses. She admitted that she made an error in that she neglected to inform the

petitioner that the offense to which he pled guilty carried a sentence requiring one hundred percent

service. However, she made arrangements for him to withdraw the guilty plea as soon as she

discovered the error. She explained to the petitioner what it meant to plead “outside the range” and

why it was necessary to reduce the severity of the pled offense. When the petitioner had questions

about his release eligibility, she calculated his potential release date to be after 5.4 years of service

and explained that the actual release date would be based upon his behavior while incarcerated. She

discussed the second plea offer with the petitioner, let him read the agreement, and explained the
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differences between the new and former agreements. She said the petitioner had no questions

afterward, but apparently he did. 

The record reflects the petitioner was not truthful in his responses to the trial court during

either guilty plea hearing. The petitioner told the trial court that he read his guilty plea petition and

understood it. He also said he understood both the rights he was waiving and the range of

punishment for the offenses involved in his case. He affirmed that no promises were made to him

concerning his guilty plea. On appeal, he claimsthat he understood none of these things and that his

attorney promised him a nine-year sentence suspended to eleven months and twenty-nine days.

However, this sentence is not mentioned in either plea agreement or discussed during either guilty

plea hearing. The issue in this appeal turns on the credibility of the petitioner as compared with his

attorney. The trial court found the attorney’s testimony credible and the petitioner’s testimony

incredible. 

The trial court also found that the petitioner’s rights and the sentencing ranges were explained

to him in detail, that a nine-yearsentence and a suspended sentence were not discussed during either

guilty plea proceeding, and that no promises were made to the petitioner. The record does not

preponderate against the trial court’sfindings. Instead, it reflects that the trial court made efforts to

ensure the petitioner understood his plea, the consequences of his plea, and the rights he was

waiving. The petitioner admitted that his attorney informed him the best deal would be a sentence

of twelve years at forty-five percent release eligibility and that the agreement he signed was for this

sentence. The guilty plea petition signed by the petitioner states, in large writing located two inches

above his signature, that his sentence would be twelve years. The petitioner failed to prove his

allegations by clear and convincing evidence. We conclude that the petitioner did not receive the

ineffective assistance of counsel and that his guilty plea was knowing and voluntary. 

Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.

___________________________________ 

JOSEPH M. TIPTON, JUDGE