IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 17, 2012 Session

CELSO V. MELENDEZ v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 2004-B-1260 Monte Watkins, Judge

No. M2011-01802-CCA-R3-PC - Filed November 13, 2012

The Petitioner, Celso V. Melendez, appeals the post-conviction court’s denial of his petition

for post-conviction relief from his guilty pleas to two counts of facilitation to deliver over

300 grams of cocaine and resulting effective sentence of twenty-four years. On appeal, the

Petitioner contends that he received the ineffective assistance of counsel because his guilty

pleas were based upon trial counsel’s assurance that he would be eligible for the boot camp

program. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that

the Petitioner received the ineffective assistance of counsel. Therefore, the judgment of the

post-conviction court is reversed, the judgments of conviction are vacated, and the case is

remanded for further proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed,

and the Case is Remanded.

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

P.J., and D. KELLY THOMAS, JR., J., joined.

John E. Herbison, Clarksville, Tennessee, for the appellant, Celso V. Melendez.

Robert E. Cooper,Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant

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

OPINION

I. Factual Background

On May 7, 2004, the Davidson County Grand Jury indicted the Petitioner for twentyone counts related to a conspiracy to deliver large amounts of cocaine from Texas to
Nashville. Celso Vilorio Melendez v. State, No. M2009-01489-CCA-R3-PC, 2011 Tenn.

Crim. App. LEXIS 76, at *2 (Nashville, Feb. 2, 2011). On August 25, 2005, the Petitioner

pled guilty to two counts of facilitation to deliver over 300 grams of cocaine, a Class B

felony, and received twelve-year sentences to be served consecutively. Id. at *3. The

Petitioner was sentenced as an especially mitigated offender with a release eligibility of

twenty percent. Id.

Subsequently, the Petitioner filed a timely petition for post-conviction relief, claiming

that he received the ineffective assistance of counsel. Id. at *5. The post-conviction court

appointed counsel, and counsel filed an amended petition, contending, in relevant part, that

the Petitioner received the ineffective assistance of counsel because trial counsel failed to

advise him accurately about his eligibility for the boot camp program. Id. at **6-7.

The following evidence was presented at the evidentiary hearing:

The Petitioner testified that he was aware that, if his

guilty plea was set aside, he faced substantially more time in

prison under the numerous charges in the original indictment.

When asked why he still wanted to withdraw his plea, the

Petitioner answered, “Because I believe that the law is not based

on lies or deceit.”

The Petitioner’s native language was Spanish, but he did

speak some English. The Petitioner was from El Salvador and

had an eighth grade education. According to the Petitioner,

there was not an interpreter present at his guilty plea hearing,

and he did not know he was entitled to have one present. The

Petitioner did not believe that, at the time of his plea, his English

skills allowed him to adequately communicate with trial counsel.

Prior to his arrest in another state and being brought to

Nashville, the Petitioner had no prior dealings with the criminal

justice system in Tennessee.

When asked about other plea offers made by the State

before the one he ultimately accepted, the Petitioner stated that

the first offer was nineteen years at 30% and that the second one

was sixteen years likewise at 30%. The Petitioner

acknowledged that his release eligibility date under the

sixteen-year sentence would be the same as under the sentence

he accepted. The Petitioner also confirmed that the sixteen-year

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offer would have required him to plead guilty to a Class A

felony and, therefore, he accepted the twenty-four-year offer,

pleading to Class B felonies, in order to be eligible to attend

boot camp. The Petitioner stated that eligibility for the boot

camp program was a very important concern to him, elaborating,

“If it weren’t for that I wouldn’t have accepted it.” The

Petitioner claimed that he was told he would have the “same

time,” that no one told him “the twenty-four years was going to

end up being a lot more time. Because what the parole [board]

looks at are the two sentences. If I had known, I would have

accepted the sixteen-year sentence without any argument.”

The Petitioner testified that trial counsel did not explain

eligibility requirements for boot camp to him, particularly the

provision that gave higher priority to inmates between the ages

of seventeen and twenty-five to enter the program. The

Petitioner acknowledged that he was thirty years old at the time

he entered his plea. After applying for boot camp once in

prison, the Petitioner was told it was “impossible,” receiving the

following explanation: “In the first place I was older. Second

time I had a long time, a long sentence. And third place, I had

no possibility because of the amount of drugs in the case.” The

Petitioner testified that, if trial counsel had discussed the factors

affecting his eligibility for, or likelihood of his going to, boot

camp, then he would not have accepted the plea offer and would

have insisted on going to trial. He reiterated that the reason he

accepted the longer, twenty-four-year sentence rather than the

shorter, sixteen-year sentence was because he “was going to go

to boot camp.” Furthermore, the Petitioner stated that trial

counsel did not explain how the parole system worked and that

he did not understand what release eligibility meant.

When asked if he had any other concerns with trial

counsel’s representation, the Petitioner replied, “I think that

[trial counsel] was trying to do the best for me. I think he also

made the same mistake that I made” by “[n]ot investigating

everything about the plea bargain.” The Petitioner confirmed

that he had a good rapport with trial counsel and that he trusted

his judgment.

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Upon questioning by the trial court, the Petitioner

testified that he had been before the parole board one time.

According to the Petitioner, the parole board said to him that he

“had to fulfill one complete twelve-year sentence and then start

on the other one, flatten it.” When asked when would he next

go before the parole board, the Petitioner responded, “The last

time they gave me six years and told me I would not be able to

come back until 2012.”

On cross-examination, the Petitioner confirmed that he

had reviewed the English transcript of his guilty plea hearing

and that he remembered the proceedings. He stated that he

conversed with trial counsel in both English and Spanish, and

while there was confusion at times, the Petitioner was not

troubled by their communication. The Petitioner confirmed that

he was reviewed for parole in 2006, approximately six or seven

months after his transfer to the DOC.

When asked if he mentioned anything about boot camp

to the trial judge, the Petitioner answered, “I don’t think

anybody had the opportunity to talk on that day.” The Petitioner

did not recall the trial judge asking him whether he had been

promised anything in exchange for his plea or whether he had

any questions for the court. The Petitioner understood that, if he

was convicted of all the original charges in the indictment, he

could spend the rest of his life in prison.

Trial counsel then testified he was retained to represent

the Petitioner after the preliminary hearing. Trial counsel

testified that he obtained discovery in the Petitioner’s case and

familiarized himself with the allegations against the Petitioner.

Trial counsel, who spoke Spanish, although not perfectly, met

with the Petitioner, and they were able to communicate

effectively[.]

. . . .

Trial counsel opined that, given the amount of drugs

involved and the fact some of the actions occurred in a school

zone, the Petitioner faced a substantial amount of time in jail if

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convicted. According to trial counsel, the district attorney

general did not make an offer at first “because she wasn’t sure

what she wanted to do with it for [the Petitioner].” Eventually,

the prosecutor made an offer of twenty-six years at 30%, and

that offer did not change for a long time. The offer was

rejected, and trial counsel prepared for trial. Trial counsel later

went and spoke with the prosecutor and “gave her some light to

the case that she hadn’t had before,” and the prosecutor returned

with an offer of nineteen years. Trial counsel did not recall

there ever being a sixteen-year offer.

Trial counsel still did not like the nineteen-year offer:

“That’s an A felony. He won’t even have a chance to go to boot

camp. He won’t be eligible for any programs and depending on

his immigration status it might end up being he spends a lot

more time in jail.” Thereafter, trial counsel reviewed his

“charge and guidelines” and formulated the twenty-four-year

offer (two consecutive twelve-year terms) as a 20% mitigated

offender. Reluctantly, the prosecutor agreed to the deal.

Trial counsel confirmed that there was no factual basis

for the Petitioner being a mitigated offender[;] it was simply a

benefit of the proposed plea agreement. Trial counsel testified

that he then conveyed the offer to the Petitioner and

approximated a parole eligibility date for him; he calculated that

the Petitioner would be release eligible after service of 4.8 years.

The Petitioner had approximately two years of jail credit at the

time of his plea and sentencing. Trial counsel said that he never

promised the Petitioner that he would be released the first time

he went before the parole board.

Trial counsel testified that he discussed boot camp with

the prosecutor but, while she would not oppose the Petitioner’s

participation in the program,she also would not recommend him

for the program. According to trial counsel, boot camp

participation was not a quid pro quo part of the plea agreement.

Per his discussions with the prosecutor, trial counsel did not

discuss boot camp with the trial judge so the prosecutor would

not have to formally oppose it, thereby, protecting the

Petitioner’s eligibility for boot camp. Trial counsel said that he

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never promised the Petitioner that he would be admitted to the

boot camp program and that he never told the Petitioner he

could withdraw his plea if he was not accepted into boot camp.

Trial counsel did not recall the Petitioner at the guilty

plea hearing ever not wanting to enter a plea or ever not being

able to answer questions appropriately. Trial counsel also

recalled that an interpreter was present for the plea hearing and

believed that the Petitioner understood what was going on

during the proceedings. The Petitioner did ask trial counsel one

question during the hearing, but trial counsel believed they

resolved the matter.

On cross-examination, trial counsel was asked to detail

what information he told the Petitioner about boot camp:

I told him that there’s programs available.

I don’t—I think I explained what boot camp was.

. . . I think I did tell him the program takes a few

months to complete. I said, “When you first

go”—usually what I say is, “When you first go to

M.T.X., they—there is a sorting out process that

they assign, kind of, where you are.” I said,

“because there is no weapons involved in this

case, and you don't have a prior record,” things of

that nature—I said, “you should be eligible”—the

facilitation to deliver over a certain quantity—I

think it was over three hundred grams. I told him

that that could actually get him out sooner, his

release eligibility date, if he qualified for the

program.

When asked if eligibility for boot camp was important during

plea negotiations, trial counsel responded, “I wanted him to get

the B so he would have the opportunity to have it, but [the

prosecutor] wasn’t going to give a recommendation.” According

to trial counsel, maintaining potential eligibility for boot camp

was an important factor to both [him] and the Petitioner. Trial

counsel testified that he was not aware of the statutory

preference for personsseventeen to twenty-five years of age, but

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he did know the older a defendant was “the harder it [was] to get

in.” Furthermore, trial counsel did not look up the boot camp

statute during the plea process and did not advise the Petitioner

that persons under the age of twenty-five have a better

likelihood of being admitted into the program.

Trial counsel did not discuss the effects of accepting the

longer, aggregate consecutive sentence, as opposed to the Class

A felony sentence offer. Trial counsel agreed that it was

unusual for someone to make parole upon their first application,

especially with a long sentence. When asked if he told the

Petitioner “that twenty percent was just a starting point and that

parole may well not be granted at the first opportunity,” trial

counsel replied that “I don’t think I said it in that context.” The

Petitioner informed trial counsel that he was upset when he was

put off for parole consideration until 2012.

Id. at **6-15 (footnotes omitted).

The post-conviction court denied the petition for post-conviction relief. Id. at *15.

On appeal, this court concluded that trial counsel rendered deficient performance by advising

the Petitioner that he was eligible for the boot camp program when the Petitioner, a drug

offender, was not eligible. Id. at **23-24. This court remanded the case in order for the

post-conviction court to determine whether the Petitioner was prejudiced by the deficiency.

Id. at *28. On July 11, 2011, the post-conviction filed an order denying post-conviction

relief, stating as follows:

The Petitioner would have entered into a plea “even if there was

no offer of boot camp.” Specifically, the Petitioner maintained

that he would have pled to a sixteen[-]year sentence instead of

a twenty-four year offer if he had known that he was ineligible

for boot camp. Although, trial counsel testified that there was

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never a sixteen[-]year offer only a nineteen-year offer at 30%.

The court further found that the Petitioner understood boot camp was an option, not a

guarantee, and that the plea colloquy from the plea hearing demonstrated that he pled guilty

On direct examination, the Petitioner testified, “I am going to explain it again. The reason I

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accepted the twenty-four years was because I was going to go to boot camp. If not I would have signed the

sixteen years at thirty percent, because that’s eight years difference.”

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freely and voluntarily.

II. Analysis

The Petitioner claims that he was prejudiced by trial counsel’s incorrectly assuring

him that he was eligible for the boot camp program. The State argues that although trial

counsel incorrectly advised the Petitioner about boot camp, the post-conviction court

correctly determined that the Petitioner was not prejudiced because admission into the boot

camp program was not the only reason the Petitioner accepted a plea offer. The Petitioner

accepted an offer to avoid the possibility of a life sentence.

To be successful in a claim for post-conviction relief, a petitioner must prove all

factual allegations contained in his post-conviction petition by clear and convincing

evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means

evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.

App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

Issues regarding the credibility of witnesses, the weight and value to be accorded their

testimony, and the factual questions raised by the evidence adduced at trial are to be resolved

by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579

(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to

substantial deference on appeal unless the evidence preponderates against those findings.

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

A claim of ineffective assistance of counsel is a mixed question of law and fact. See

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s

findings of fact de novo with a presumption that those findings are correct. See Fields, 40

S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law

purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, “the petitioner bears the burden of proving both that counsel’s performance was

deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,

369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish

deficient performance, the petitioner must show that counsel’s performance was below “the

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

930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Notably,

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[b]ecause a petitioner must establish both prongs of the test, a

failure to prove either deficiency or prejudice provides a

sufficient basis to deny relief on the ineffective assistance claim.

Indeed, a court need not address the components in any

particular order or even address both if the [petitioner] makes an

insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). In the context of a guilty plea,

“the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s errors, he

would not have pleaded guilty but would have insisted upon going to trial.” Hicks v. State,

983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S. 52, 59

(1985).

Based upon our de novo review, we disagree with the post-conviction court and

conclude that the Petitioner was prejudiced by trial counsel’s deficient performance. The

Petitioner’s and trial counsel’s testimony established that the State made previous plea offers

to the Petitioner. The Petitioner testified that the first offer was for nineteen years at thirty

percent and that the second offer was for sixteen years at thirty percent. Trial counsel

testified that the first offer was for twenty-six years at thirty percent and that the second offer

was for nineteen years at thirty percent. Regardless of the discrepancies in their testimony

about the lengths of the offers, one fact is clear: The State’s third offer for an effective

sentence of twenty-four years, which the Petitioner accepted, wassignificantly lengthier than

the previous offer of sixteen or nineteen years. The Petitioner testified that he accepted the

offer for the twenty-four-year sentence because the sixteen-year offer would have required

that he plead guilty to a Class A felony, making him ineligible for the boot camp program.

Likewise, trial counsel testified that he was dissatisfied with the State’s nineteen-year offer

because the Petitioner would have been pleading to Class A felony and, therefore, would

have been ineligible for the boot camp program. Thus, the testimony of both witnesses

established that the Petitioner accepted the State’s offer for the effective twenty-four-year

sentence in order to be eligible for boot camp.

The post-conviction court found that the Petitioner failed to established prejudice

because he testified that he would have entered a plea and accepted the State’s second offer

even if he had known that he was ineligible for the boot camp program. In Grindstaff v.

State, 297 S.W.3d 208, 211 (Tenn. 2009), the petitioner pled guilty to five counts of

aggravated sexual battery. Pursuant to the plea agreement, the trial court was to determine

the length and manner of service of the sentences. Id. After a sentencing hearing, the

petitioner received an effective sentence of thirty years to be served at 100%. Id. at 212. The

petitioner filed a petition for post-conviction relief, arguing that he received the ineffective

assistance of counsel. Id. The testimony at the evidentiary hearing established that the

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petitioner had turned down the State’s initial offer of eight years to be served at 100% and

subsequent offersinvolving confinement because trial counsel had assured him that he would

be eligible for alternative sentencing. Id. at 213-14. However, the petitioner was not eligible

for probation or community corrections. Id. at 218. Our supreme court concluded that

counsel rendered deficient performance and stated the following regarding prejudice:

On two different occasions . . . , the Petitioner turned down

offers by the State which demanded at least eight years of

confinement in prison. One of those proposals provided for

concurrent service for each of the offenses at the minimum term

permitted by statute. In our view, the record demonstrates a

reasonable probability that if trial counsel had adequately

researched the applicable law and informed the Petitioner that

alternative sentencing was not available, he would not have

entered an open plea of guilt to the several counts in the

indictment.

. . . .

The record demonstrates by clear and convincing

evidence that the performance of trial counsel fell below the

range of competence required in criminal cases. The evidence

in the record also establishes a reasonable probability of

prejudice, because the Petitioner’s “ability to make an intelligent

decision regarding [the] plea offer[s] [was] severely

undermined.” [United States v.] Morris, 470 F.3d [596,] 603

[(6th Cir. 2006)] (quoting United States v. Morris, 377 F. Supp.

2d 630, 638 (E.D. Mich. 2005)). The standards established in

Strickland and Hill require that the convictions be set aside and

the cause be remanded for trial.

Id. at 222.

As in Grindstaff, trial counsel’s deficient performance in this case severely

undermined the Petitioner’s ability to make an intelligent decision regarding the State’s plea

offers. Therefore, we conclude that the Petitioner was prejudiced by trial counsel’s

incorrectly advising him that he would be eligible for the boot camp program if he accepted

the State’s third offer. The Petitioner is entitled to post-conviction relief.

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III. Conclusion

Based upon the oral arguments, the record, and the parties’ briefs, we conclude that

the Petitioner received the ineffective assistance of trial counsel. The judgment of the postconviction court is reversed, the judgments of conviction are vacated, and the case is

remanded for further proceedings consistent with this opinion.

_________________________________

NORMA McGEE OGLE, JUDGE

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