T h e P e tit i o ner was o ri gi nal l y charged i n: (1) a mult i

- co unt i nd i ct m ent of f i rs t de gree murd er, f

el o ny m urder, and 1

e sp e c ia lly a g g ra v a te d ro b b e ry; (2 ) a t h e ft a n d v a n d a li s m in d ic tm e n t; and ( 3) a one- count i ndi ct ment of ag gr ava t ed

r ob bery

. As part of

hi s pl ea, t he P et i t i oner pl ed gu i l t y to two c o un t s of t he l es s er

- i ncl uded of

f ens e of s econd degr ee

m urder, and t he Stat e d i smi sse d th e thef t and vand al i sm i nd i ct m ent

. T he P et i t i o ner al so p l ed gui l t y t o t he o ne- co unt 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT KNOXVI LLE A ssi gne d onBr ie fs A ugus t 21 , 200 7

LER OINE MA RTIN v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for K nox Coun ty No. 80086 Mar y Beth Leibow itz, Judge

No

. E 2 0 0 6 -0 2 2 8 0 -C CA -R 3 -PC 

### - F ile d S ep te m be r 28, 200 7

The Petitioner, L eroine Martin, pl ed guilty to two counts of second deg ree murder a nd one count of ag g ravated robbery

. He filed a pe tition for post-conviction relief alleg ing that he re ceive d the ineffe ctive assistanc e of c ounsel prior to and dur ing the g uilty plea pr ocee dings. The post-conviction court de nied his petition. After a thoroug h revie w of the r ecor d and applica ble l aw, we af

firm the po st- c on vic tio n c ourt ’s jud g me nt.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

R O B E R T W. W ED EMEYER , J ., delivere d the opinion of the cour t, in which D AVI D G. H A Y ES and T H O M A S T. W O O D A LL , J J ., joined.

L eslie M. J eff

ress, Knoxvill e, Te nnessee , for the A ppellant, L eroine Martin.

Rob e rt E. Coo pe r, Jr., Att o r

n e y G e n e ra l and

Re po rt e r; Re ne e W. T ur

ne r, As sis tant A tto rn e y

Ge ne ra l; Rand a ll E . N ic ho ls, Di str ic t Atto rn e y Ge ne ra l; L e sli e Na ssi os , A ssi sta nt D istri c t A tto rn e y

Ge ne ra l, for the A ppellee, State of

Tenne ssee.

OP IN ION

I. F acts

On Fe bruar

y 27, 2004, the Petitioner pled guilty to two counts of sec ond deg ree murder a nd one count of

ag g ravated robbe ry

. At the g uilty plea s u b m i s s i o n h ear ing, the State provided the 1ind ic tm e n t f o r a g g ra v a te d ro b b e ry.

-2- following fac ts as the basis for the Petitioner’s plea f or the two c ounts of second de g ree murder:

[O] n the 24th da

y of Fe bruar

y , 1999, [t he Petitioner] was acc ompanied b y T i na Michel le Summ e r s an d

Jo h n n y Ri c h ar d Y o u n g , th e y

h a d b e e ns mo k in g c r a c k

th at night tog ether . Ms. Tina Summers had a ve hicle and [t he Petitioner] requested a ride to go ove r t o t h e R idge Br ook Complex wher e he kne w he c ould ge t some cra ck

coca ine. [ The P etitioner] along with Ms. Summ ers a nd Mr. Youngrode ove r to the complex. Mr. Young w ould testify that [t he Petitioner] ex ited the vehicle , that [t he Petitioner] di d not have a ny money on him, that [ the Petiti o n er ] h ad a weapon on h i m , a p i s t o l o nh i m , t h at h e e x i t edt h e v eh i cl e a n d t h at h e w en tu

p i n t o t h e R i d ge B ro ok Ap artme nt c omp le x. Mr

. Yo un g wo uld fu rt he r t e sti fy that he he ard

g un sh ots and [the Petiti oner] came back to the c ar, a nd when [the P et i t i o n er ] came bac k he told Mr. Young that he fa ked Ty shawn Ha

rdin out
, t h at h e p rete nded that he w as g oing to buy cra ck cocaine from hi m and st uck his hand in his pocket a nd instead of pulling out money

he pulled out the gun and shot Ty shawn Ha rdin and took six rocks of cr ack c ocaine . He would further testify that [t he Petitioner] told hi m that J ames Wil liams had run upon him and he ha d shot him t oo.
Subsequent to that – subsequent to the deaths of Mr. Will iams and M r. Hardin a K n o xv il le Po li c e D e p artm e n t O f f ic e r , B e n n y

F r e n c h
, inte r

v ie w e d th e [P e ti ti o n er ]. The [Petiti oner] g ave a

version admitting that he was in fac t there at the crime sc ene. Admitting that he in fa ct had shot and kill ed Ty shawn Hardin, and admitting that he ha d in fa c t sh ot and kil le d Jame s Willi a ms, but he sa id r a the r t hat it wa s in his se lf de fe ns e . A nd

Johnny Ric ha rd Yo un g wo uld

te sti fy to t he c on tr ary

ba se d o n h is observations and the statement fr om the [P etitioner] after.

Ad dit ion a lly , th e State pr ov ide d th e foll owing fa c ts a s th e ba sis fo r t he Pe tit ion e r’ s p le a

to

a g g r av a t e d

r o b b e r y:

De rr ick Jac ks on

wa s at ho me a t hi s r e sid e nc e wh e n h e he ard – w he n h e and

his fianc é we re a sleep at 2:03 – between two a nd 3:00 in the morning, he ard a knock at the door, a

nd his fi ancé answe red. A nd the [P etitioner] who he knew, L eroine Martin, ca

me i n and asked to borrow money

. The victim Der rick Jackson ref

used. Th e [Pet iti on e r] the n f

ir e d o ff a sh ot a nd de mand e d mo ne y

a t w hic h p oin t th e vic tim ha nd e d h im $ 40 0. 00 fr om h is p oc ke t.

Pur su ant t o th e ple a

a g re e me nt, the tr ia l c ourt se nte nc e d th e Pe tit ion e r t o th ir ty y e ars in prison.

The P etitioner filed a pro se petit ion for post-c onviction relief, later amended by appointed

c ouns e l, c la imi ngine ff

e c tiv e a ssi sta

nc e of c ouns e l pr ior

to a nd duri ng the g uil ty ple a

pr oc e e din g s.T he P et i t i o ner gave inconsi st ent tes t i m o ny regard i ng w hen he f i rs t heard ab o ut t he t hi rt y
- y ear plea of f er. A t one po i nt 2
he st at ed t hat he f

i rs t heard ab o ut i t d uri ng t he subm i ss i o n heari ng. A t ano t her po i nt , how ever, he s t at ed t hat “ when I
t o l d [Co unsel ] t o go get t he 2 0 and [Co unsel ] c a me b a c k wi t h t he 30 , I w a s u n d e r th e im p re ssio n tha t I go t t h e 2 0 .” (E m p hasi s ad d ed ).

-3- At the hea

ring on the P et i t i o ner’ s petition for post-conviction re lief, the followingevidenc e wa s prese nted: the Petitioner testified that appr ox imately two day s befor e his g uilty plea, his t rial counse l ( “ C o u n s e l ” ) t o l d

h i mt h a t , i f

h e d i d n o tp l e a d g u i l t y t o s e c o n d

- d e g r e e m u r d e r an d a g g r a v a t e d

r o b b e r y, he wo uld re c e ive tw o li fe se nte nc e s p lus te n y e ars . T he Pe tit ion e r a lso sa id t hat Co un sel came to him wi th a n o ff e r o f t we nty -f ive y e ars to tal fo r a ll c ounts , w ithan e ig hty -f ive pe rc e nt r e le a se elig ibilit y

. The P etitioner t old Counsel that he would only acc ept t wenty y ear s total. The Petitioner furt h er t estified that he w as unaw are that he would re ceive thirty y ear s total until the trial cour t

announce d it at the g uilty plea submi ssion hear ing. The Petitioner cla imed that the only thing that 2

re g ist e red wi th hima t th a t he ari ngwa s th a t if he did no t “ g o a lon g ” wi th w

hat Co un se l to ld h im, then he would g et a much harshe r sentenc e. The Petitioner also said that he wa s “ig norant to the law at the time” a

nd that Counsel “scre wed him roy ally ” by addingfive e x tra y ear s to the orig inal plea offe r. The Petitioner further testified that he had thoug ht about his guilty plea be fore be took it but state d th a t “ it w a s to o late ” to c on te st. Ad dit ion a lly
, the Pe tit ion e r sa id that Couns e l ne ve r t old him that he could stop the g uilty plea proce eding s at any time. The Petitioner also asse rted that he was

“ no t ha pp y wi th .

. . 30 y e ars be c a

us e

. . . I wa sn ’t int e nd ingto k ill [any ]bod y ” and his “ lif

e wa s in dang er a s well.”

The Petitioner fur

ther testified that Counsel “wasn’t r eady fo r t ri al” a

nd “wa s just going thr o u g ht h e m o t i o n s

. ” H e s a i d t h a tC o u n s e l s h o w e d

h i ma u t o p s y p i c tu r e s b u tn e v e r

g a v e h im discovery . When asked what motions Counsel filed on his behalf
, the Petitioner stated: “[H]e filed . . . for me to see doctors, a nd he filed suppr ession hear ing motions . . . . But the w ork wa s done on the ba c k o f his old ba

nk state me nt[s ]. .

. . Th a t’ s ju st r e a lly un pr of e ssi on a l.” Th e Pe tit ion e r a lso sa id that most of the time when Counsel ca me to see him in jail, the Petitioner argued with, cur sed at, a nd spat at hi m. The P etitioner was adama nt that Counsel should have re moved himself from his ca se.

Th e Pe tit ion e r f

ur the r t e sti fi e d th a t Co un se l ha d e xpla ine d to hi m th a t he ha d th e ri g ht t o
rema in silent and the rig ht to have a tr ial. The Petitioner als o s ai d t h at he knew that Counsel had hir e d a n inve sti g a tor

to w or k o n h is c a se . T he inv e sti g a tor wo uld so me tim e s v isi t th e Pe tit ion e r i n jail alone and w ould sometimes accompa n y Counsel. The Petitioner stated that e ither Counsel or the investig ator ha d inte rv iewed T ina Summers and Johnny Young as witnesses a

nd that Counsel explained to him t o what they would have testified had his case been tr ied. The Petitioner a lso stated that he could not think of any additional witnesses he w ished Counsel had interview ed.

The Petitioner fur

ther testified that h e wa s t ak ing Paxil, a psy chotropic me dication, at the time that he pled guilty . He state d that b ec au s e h e h as l ow serotonin leve ls in his brain, he sometimes ha s to take Paxil to level them out. The Petitioner also a cknowledg ed that Counsel, under the direc tion of a doctor, ha d him tested for low serotonin levels. The Petitioner stated, how ever , that he wa s n ot t akin g any kin d o f m e dic a tio n f

or mos t of the tim e that he spe nt in jai l pri or to h isA t t hi s p o i nt i n t he p o st

- co nvi ct i o n heari ng, t he Stat e reco unt ed
, i n de t ai l
, t he exchange b et ween t he co urt and t he 3
P eti t i o ne r at t he guil t y plea sub m i ssi o n he aring i n o rd er to i l l i cit wh ethe r o r no t t he P eti t i o ne r rem em b ere d i t

. B ec au se much of t hi s ex cha ng e i s not di r ect l y r el at ed t o t he P et i t i oner ’ s i nef f ect i ve as s i s t anc e o f

coun s el cl ai m, wh i ch i s wh at we

ar e a dd r es s i ng on appeal
, we wi l l not s ummari ze i t he r e.

-4- p o rt -c o n v i ct i o nh ea ri n g.

The Petitioner testified that “[Counsel] wasn’t ready for .

. . trial.” The Petitioner stated that Couns e l di d n ot d isc us s w ithhim any po ssi ble de fe ns e s to the c ha rg e s. He the n c on tinue d to reiter ate that Counsel failed to talk to him about evidence that the S tate had acquir ed. The Petiti oner said that he did not understa nd why he wa s char g ed with felony murder but that Counsel explained felony murder to him. The Petitioner also said that he did not ask Counsel any other que stions about the indictment or pre sentment bec ause the Petitioner just wanted him to “g et off my case .”

On c ro ss- e xami natio n, the Pe tit ione r t e sti fi e d th a t, i f t he po st- c on vic tio n c ourt

g ra nte d h is pe tit ion , h e un de rs too d th a t he wo uld g e t to g o thr ou g h “ the wh ole pr oc e ss o ve r a g a in. ” He a lso sa id that he would more than likely win a new suppression hear ing and obtain “some serio u s re l ief” be c a us e “ the [e]v ide nc e is g on e .” He state d that the State c ou ld no t have a ll the e vid e nc e be c a us e “the de tective .

. . [doesn’t] know if he ha s the orig inal war rant or c omputer g ener ated wa rra nt.” He added that, when noting that the evidenc e wa s g one, he w as re fer ring to “the gun, the war

rant, [and] all of that old nonsense.” The Petitioner fur ther testified that t he State’s witnesse s, Summ ers a nd Yo un g , w ou ld n ot p os e a

thr e a t to his c a se be c a

us e “ a g oo d lawy e r is g oin g to k ill the ir c re dib ili ty b e c a u s e th e y a in ’ t n o th in g b u t ju n k ie s , an d th e y g o t a r a

p s h e e t w ay lo n g e r th anmine.” The Pe tit ion e r a lso re fu se d to “ su pp os e ” wh a t wou ld ha

pp e n if the c ourt g ra

nte d him a ne w tri a l. He did state, howe ver, that he under stood if he had a j u ry t ri al o n his charg es he c ould be convicte d of do ub le ho mic ide and

a g g ra vate d r ob be ry , a

nd re c e ive tw o li fe se nte nc e s p lus te n y e ars

.
Th e Pe tit ion e r f

ur the r t e sti fi e d th a t th e jud g e a t th e g uil ty ple a su bmi ssi on he ari ng pr ob a

bly went over al l o f h i s co nstitut ional rig hts, but he ultim ately “ca n’t reme mber if she did or didn’t.” The Petitioner then a g ree d to allow the State to rea d parts of the transcr ipt from that hear ing in or der to refr esh his memory

about what transpire d. After the State re ad ea ch seg ment, the Petitioner kept responding : “You g ot the paper .” The P et i t i o n er also admitted that, even thoug h he re membere d beingprese nt at the hearing
, “I wasn’t really listening to [ any ] of [ it] .” When the Petitioner insisted that he did

no t r e me mbe r t

he c ourt making so me of th e state me nts in t he tr ans c ri pt, he e ve ntu a lly acquie sced by

stating that “[i] f it’s on the pape r she e vidently said i t

. ” He al s o said later in the hear ing that “it’s all coming back to me now .” 3

The Petitioner fur

ther testified that he ha s “an e x tensive ra p sheet of f

leeingand possession and attempting to g o arme d” and that he “ might have g ot one or two a ssaults in there.” H e stated, ho we ve r, that this “ [doe s n ot] s top the fa c t th a t I ’m e nti tle d to a de qu a te c ouns e l.” Th e Pe tit ion e r a lso stated that Counsel “c oerc ed” him int o pleading g uilty

. When asked what he meant by “coe rce d,” the Petitioner stated that coe rcion mea ns persua sion and that “[Counsel] persua ded me to take a plea that I ’m no t ha pp y wi th. ” Th e Pe tit ion e r a lso sa id t hat Co un se l “to ok

a dv anta g e of

[the Pe tit ion e r’ s]-5-

mental state at the time” bec ause the Petitioner “[didn’t] know about the law and [was] taking medication.” A dditionally , the Petitioner maintained that he “didn’t kill two people” a nd that “what the witnesses said don’ t am o u n t to [ any thing]” bec ause the y

are “junkies.” The Petitioner was

a damant t hat he wo uld

no t ha ve to s pe nd

a lot of tim e , if any , in jail if

he we re to r e c e ive a

ne w tri a l.

The Petitioner fur

ther testified that he was unawa re that Counsel filed a number of motions on his behalf. He was also unawa re that Counsel f

iled a notice of Counsel’s intention to rely upon
a de fe ns e c on c e rn ing th e P eti tione r’ s lo w s e ro ton in l e ve ls s ho uld the Pe tit ion e r’ s c a se g o to tr ia l. The Petitioner stated that he re membere d seeingsever al doctors, includingDrs. Pamela Auble and K e i t hC ar u s o

. H e a l s o r e m e mb e r e d t h a tD r

. P a

u l R o s b y w a s t h e s e r o t o n i ne x p e rtw h o “ p r o b a b l y”

re vie we d h is m e dic a l r e c or ds a t Co un se l’ s r e qu e st. Th e Pe tit ion e r c on te nd e d th a t in hir ingthe se d o ct o rs t o ev al u at e h i m , C o u n s el wa s “d o i n g n o t h i n g b u t

. . . get t i n g m o n e y ” an d p ro cr as t i n at i n g. Th e Pe tit ion e r a lso state d th a t he re me mbe re d d isc us sin g wi th C ouns e l his po ten ti al de fe ns e reg ardinghis low serotonin levels. Counsel told the Petiti oner that “it w asn’t g oing to wor k” and that “you need to take [t he guilty ] pl ea.”

The Petitioner testified that Counsel only met with him three times over the course of four y ear s. When the State commented that “[s] ever al means more than three ,” the Petitioner c hang ed his te sti mony and state d that Couns e l me t wi th him a bo ut fi ft e e n tim e s o ve r t

he c ours e of

fo ur y e ars

. The Petitioner said that he was not coope rative dur ing a ny of those mee tings be cause he wa nted Counsel to g et off the case. He also said that the attorney on his case pr ior to Counsel was re moved from the c ase b eca

use the Petitioner could not g et alongwith him and that his post-conviction counsel should also be r emoved be cause he had no c onfidenc e in his abi l i t y to repre sent the Pe tit ion e r. Whe n a sk e d w hat Co un se l sh ou ld h a ve do ne dif fe rentl y thr ou g ho ut t

he c ours e of

his repr esentation, the Petiti oner state d: “He should have c onducted himself in a mor e prof essional

manner . He should ha

ve g ot[ ten] off my case when I asked him to get of f my case . That would have been the appropr iate and e thical thing to do.”

Counsel testified that he wa s appointed to repr esent the Petitioner on Aug ust 3, 2000, after previous counse l had withdrawn from the c ase. H e stated that h e p re pare d the motions that were pr e se nt i n th e c ourt

fi le and that, o ve r t

he c ours e of his re pr e se ntatio n, he me t w iththe Pe tit ion e r i n the ja il a bo ut s e ve nty -f

ive to e ig hty

tim e s. He sta

te d th a t th is “ [did

no t] in c lud e c ourt

c on ve rs a tio ns , te le ph on e c on ve rs a tio ns , o r any thi nglik e tha

t” and tha t, i f t ho se we re inc lud e d, the numbe r w ou ld inc re a se to o ve r o ne hund re d c on ta c ts. Couns e l sa id: “ Som e of the se me e tin g s we re no t pl e a sant. But they wer en’t quite to the point of what [ the Petitioner] d es cr i b ed

. . . . [M] ost of the time he would [calm down] and we could communicate.”

Counsel further

testified that he ha d some problems o b t ai n ing disc overy at first, but “eve ry thing [eventua lly ] came tog ether .” He stated that he w ent over ever y thing he had with the Petitioner and provided him with copies of wi tness statements, all the motions filed, and police repor ts. Counsel a lso state d that it was fair to say that the State’s witnesses w ould have testified at trial that the Petitioner committed a nd admitted to the char g ed offe nses. The only wi t n es s t h at Counsel was initially

conce rned a

bout was Johnny

Young

. As a re sult, Couns el and the inve stigator-6-

on the ca se trave led to Clifton, Tennessee to speak with Young . After losing contac t with Young for some time, Counsel trave led to Re nfro Valley
, Kentucky to me et with him ag ain, and he re corde d Young ’s testimony . Counsel stated that, wer e this testimony to come in durin g t ri al, i t would be devastating f

or the Petitioner. He also stated that the tria l court had pr eviously denied his motion to s up pr e ss t

he Pe tit ion e r’ s st a te me nt a dmi tti ngto t he sh oo tin g , s o the state me nt w ou ld d e fi nit e ly come into evidenc e duringtrial. Counsel said that, afte r evaluating the S tate’s c ase, he thought that there was a

g reat risk that the Petitioner would be convic ted at trial for first deg ree murder a

nd felony murder.

Couns e l f ur the r test if ied that th e Pe tit ion e r h a d a ve ry ba d c hil dh oo d a

nd wa s in juv e nil e detention for most of his l i fe g rowingup. He state d that afte r consulting Drs. Auble a nd Caruso, “[t] hey both felt like [the Petit ioner] had conduc t disorder, a g g ressive ty pe behavi o r, [ and] de ve lop me nta l di so rd e r. ” Dr . Aub le a lso diagnos ed the Pe tit ion e r w ithPos t T ra umatic Str e ss Sy ndrome. Counsel stated that none of t h es e disorders would qua lify for a n insanity

defe nse. Ho we ve r, the do c tor s r e c og nize d th a t th e Pe tit ion e r c ou ld h a ve a c on dit ion inv olv inglow

se ro ton in levels, so C ounsel had two doctors from Nashville come in and draw cer ebra l spinal fluid from the Pe tit ion e r. Couns e l e xpla ine d th a t the Pe tit ion e r’ s se ro ton in le ve ls we re “ a bn or ma lly low .” He a lso explained that he discussed the potential use of this defe nse with another attorney in Memphis. He spoke to him on the phone sever al t imes, trave led t o Memphis, and looked at s ome of his files, which inc lud e d a

tr ans c ri pt o f D r. Ros by ’s e xpe rt te sti mony on se ro ton in fr om an oth e r c a se . Co un se l a lso state d th a t he twi c e we nt to J a c ks on , Te nn e sse e , to re vie w the e nti re fi le fr om a de a th pe na lty c a se in order to de termine if this particula r def ense w as viable.

Counsel further

testified that on Fe bruar y 24, 2004, three day s befor e the guilty plea submissi on hear ing, he met with Young i n R en fro Va lley , rec orded Y oung ’s statement, a nd imm e diate ly

we nt t o s e e the Pe tit ion e r t o p lay the ta pe of Yo un g ’s state me nt a

nd to “ dis c us s[ ] a ll aspec ts of the . . . pl ea ag ree ment with him.” Counsel stated that he a nd the Petitioner discussed a possible ple a ag ree ment prior to F ebrua ry 24th. Counsel a lso state d that he re ceive d the State’s firm of fe r f or a ple a a g re e me nt on F e br

ua ry 25 th, and

he too k th e a g re e me nt t o th e Pe tit ion e r a nd tol d h im to “g o throug h it all” and to contac t him if he had any questions. When asked to respond to the Petit io n e r ’ s a ll e g a ti o n s th a t h e d id n o t u n d e r s ta n d th e p le a a g r e e me n t an d th a t Co u n sel did not explain to hi m that the State would have to pr ove ever y element of the char g ed offe nses beyond a

rea sonable doubt, Counsel stated that “[ t h e P et itioner] knew what we wer e looking at, and I had explained all of this to him [for] ove r three y ear s.” He also said that there was “ [n] o question” that the Petitioner knew that he had a rig ht to a j ury

trial, understood the se rotonin defe nse, and

un de rs too d th e ple a

a g re e me nt. Couns e l a lso te sti fi ed th a t he dis c us se d w iththe Pe tit ion e r h is privileg e ag ainst self incrimination and that the Petitioner unde rstood that discussion.

Counsel further

testified that “the whole ca se just about turned on the te stimony

. . . of Dr. Auble, Dr . Caruso, and D r. Paul Rosby on the s erotonin i ssue.” He ex plained to t he Petitioner that “the be st any

body has eve r done w ith this ty pe of de fense is se co n d d egr ee [m urder ]” and that “ther e’s

. . . a ver

y g ood likelihood that y ou would be found guilty of at lea st one of [the first deg ree murder c ounts] . . . .” He also explained to the Petiti oner that the evidenc e on the se rot o n in issue-7-

co u l d b e e x cl u d edatt ri al an d

o n l y u s edas m i t i gat i o nev i d en ce at a s en t en ci n g h ea ri n g.

On cr oss-examination, Couns el testified that he a nd t he Petitioner had “ many succe ssful meeting s.” He stated that the investig ator a ccompan i ed h i m at least e leven times and that the Pe tit ion e r’ s g ir lf

ri e nd a c c omp anie d h im m any oth e r time s. Couns e l als o sai d that w he n h e me t w ith the Petitioner on Fe bruar

y 24th and explained to him to what he thought that Youngwould testify at trial, the Petitioner “g ot mor e serious about making a deal.” When asked whe ther the Petitioner was lucid at the t ime of this conver sation, Counsel responded: “ Probably better tha n any time since I’ v e kn o w nh i m

. ” C o u n s e l a l s o s t a t e d t h a th e b r o u g h ta “ s t an d ar d p l e a a g r e e m e n t ” w i t ht h e t h i rt yy ear sentenc e down to the P etitioner t o sign on Fe bruar y 25th, and the Petitioner ente red the plea at the su bmi ssi on he ari ngtw o d ay s late r. Couns e l st a te d th a t “ it’ s r idi c ulo us ” fo r t he Pe tit ion e r t o claim that he kne w nothing abo ut the thirty -y ear offe r until the court told him about it at the submissi on hear ing. T he Petitioner “was pl ease d to g et t he 30 y ear offe r” a nd “knew what a 30 year plea wa s.” Counsel also said that he told the Petitioner that, if he we re to be convicted of first deg ree murder, one of the issues on appeal could be the finding s at the suppre ssion hearing . The Petitioner state d th a t he did

no t w ant t o g o to tr ia l.

Counsel further testified t hat, out of t he seventy -five to eig hty meeting s with the Petitioner, “[there we re] may

be one or two meeting s . . . where we just g ot to the poi nt wher e [the Petiti oner]

wo uld n’ t ta lk. ” He a lso sa id that he did no t re me mbe r any me e tin g s b e ingvio le nt o r c on fr on tatio na l. He state d that he ma de c op ie s of e ve ry thi ng and br ou g ht i t do wn

to t he Pe tit ion e r. Couns e l a lso sa id that he wa s awa

re that the Petitioner could not rea d very well but insisted that “[the Petiti oner] knew how to take thing s out of police re ports and witness statements” beca use the Petitioner “point[ed] out things in there t h at I m i gh t have ove rlooked at cer tain times.” Counsel reiter ated that he explained to the Petiti oner what the State wo u l d h av e had to pr ove in orde r to convict a nd went throug h the entire plea a g ree ment with him. C ounsel said that th e Petitioner “kne w what he was g iving up whe n he ente red the plea.”

B a se d u po n th is e vid e nc e , the po st- c on vic tio n c ourt de nie d th e Pe tit ion e r’ s p e tit ion fo r p os tc on vic tio n r e lie f i n a

wr itt e n o rd e r. I t is fr om t his or de r t

hat th e Pe tit ion e r n owa

pp e a ls.

II. Ana lys is

On a pp e a l, the Pe tit ion e r cl a ims that Coun se l wa s ine ff e c tiv e by : ( 1) fa ili ngto f

ull y e xpla in the plea a g ree ment to the Petitioner; ( 2) failing to c onsider the Petitioner’s medica l history or that the Pe tit ion e r w a s ta

kin g a ps y cho tr op ic me dic atio n a t th e tim e of

the ple a ; ( 3) fa ili ngto p ro pe rl y advise the Peti t ioner a

bout the State’s obligation to prove eve ry element of

the cha rg ed off enses beyond a re asonable doubt, his rig ht ag ainst self-inc rimination, and his rig ht to a jury trial; (4) fa iling to i nte rv ie w p ote nti a l w itn e sse s, pr e pa re a de fe ns e , or dis c us s wi th the Pe tit ion e r p os sib le de fe ns e s; and (5) coer cingthe Petitioner to plead g uilty and ac cept the se ntence offe red.

I n order to obtain post-conviction relief, a petitioner m ust show that his or her conviction or sentenc e is void or voidable be cause of the a bridg ment of a c onstitut ional rig ht. T.C.A. § 40-30-103-8-

(2 00 6) . T he pe tit ion e r b e ars the bu rde n o f p ro vin g fa c tua l a lle g a tio ns in t he pe tit ion

fo r p os tconviction re lief by

clea r and c onvincingevidenc e. T.C.A. § 40-30- 110(f) (2006). Upon re view, this Court wil l not re-we igh or re- evaluate the evide nce bel o w; all questions conce rning the

cre dibilit y of witnesses, the weig ht a nd value to be g iven their testimony
, and t h e f ac t u al i s sues raised by the evidenc e are to be resolved by the trial judg e, not the appe llate cour ts. Mo mo n v. Sta te , 18 S.W. 3d

15 2, 15 6 ( Te nn . 1 99 9) ; He nle yv . S tate , 9 60 S.W. 2d

57 2, 57 8- 79 (T e nn . 1 99 7)

. A p os tc on vic tio n c ourt ’s fa c tua l fi nd ing s are su bje c t to a de no vo re vie w b y

thi s Co ur t; h ow e ve r, we mus t

acc ord these f

actua l findings a

presumption of cor

rec tness, which ca

n be ove rc o m e only

when a preponde ranc e of the evidenc e is contra ry to the post-conviction cour t’s fac tual finding s. Fields v. Sta te , 40 S.W .3d 450, 456-57 (Te nn. 2001). A post-c onviction court’s c onclusions of law a re subject to a pure ly

de novo re view by

this Court, wit h no presumption of cor rec tness. Id. at 457.

Th e ri g ht o f a

c ri min a lly

a c c us e d to re pr e se ntatio n is g ua ra nte e d b y bo th t he Sixth Amendment to the United States Constit ution and article I , section 9, of the T ennesse e Constituti on. Sta te v . W hite , 1 14 S.W. 3d 46 9, 47 5 ( Te nn . 2 00 3) ; State v. Burns , 6 S.W .3d 453, 461 (Tenn. 1999) ; Ba x te r v . R os e , 523 S.W .2d 930, 936 (Tenn. 1975)

. The following two-prongtest directs a court’s

e va luatio n o f a

c la im f or ine ff e c tiv e ne ss:

F ir st, the [pe ti tio ne r] mus t sh owthat c ouns e l’ s p e rf or manc e wa s d e fi c ie nt. Th is require s showing that counsel made err ors s o serious that counse l was not fu nc tio nin g a s th e “ c ouns e l” g ua ra nt e e d th e [pe tit ion e r] b y

the Sixth A me ndme nt. Second, the [petit ioner] must show that the defic ient perf ormanc e prejudic ed the defe nse. This require s showing that counsel’s e rror s were so serious as to depr ive the [petit ioner] of a fair tr ial, a trial whose result is reliable. Unless a [petitioner] m akes both showings, it ca

nnot be said that the conviction or de ath sentenc e re sulted from a bre akdown in the a dversa ry proce ss that rende rs the re sult unreliable.

Strickland v. W

ashington , 4 66 U. S. 6 68 , 6 87 (1 98 4) ; State v. Me lson , 772 S.W .2d 417, 419 (Tenn. 1989).

I n revie wing a cla im of ineffe ctive assistanc e of c ounsel, this Court mus t de termine whe ther the advice g iven or ser

vices re ndere d by

the attorne y

are within the rang e of c ompetence demande d

o f a tt o r n e y s in c r im in a l c ases. Baxter , 5 23 S.W .2d at 936. To pre vail on a cla im of ineffe ctive assistance of counsel, a petitioner must show that “counsel’s r epre sentation fell below a n objective standard of

rea sonablene ss.” Ho us e v . S tate , 4 4 S

. W

. 3 d

5 0 8 , 5 1 5 (T en n

. 2 0 0 1 ) ( ci t i n g Strickland
, 466 U.S. at 688 (1984))

.

W h en ev al u at i n g an i n ef

fe ct i v e a s s i s t an ce o f c o u ns el cl ai m , t h e r ev i ew i n g co u rt s h o u l d j u d ge the attorne y ’s per formanc e within the context of the case as a whole, takinginto account a ll releva nt circ umstances. Strickland, 4 6 6 U

. S

. a t69 0; St at e v . M itc he ll , 7 53 S.W. 2d

14 8, 14 9 ( Te nn . Cr im. App. 1988)

. T h e re viewingcourt must evaluate the questionable conduct f rom the attorne y ’s perspe ctive at the time. Strickland, 46 6 U .S. a t 69 0; He lla rd v . S tate , 629 S.W .2d 4, 9 (Tenn. 1982)

. I n doing so, the revie wing court must be hig hly defe rential a

nd “should indulge a strongpresumption-9-

that counsel’s conduct falls within the wide rang e of r easona ble profe ssional assistance.” Burns , 6 S.W

. 3 d a t 4 6 2

. F in a ll y , w e n o te th a t a d e f e n d an t in a c r im in a l c a s e is n o t e n ti tl ed to per fec t repr esentation, only constitutionally adequate re prese ntation. De nto n v . S tate , 945 S.W .2d 793, 796 (T e nn . Cr im. Ap p. 19 96 ). I n o the r w or ds , “ in c on sid e ri ngc la ims of ine ff e c tiv e a ssi sta

nc e of c ouns e l, ‘we addre ss not what is prudent or a ppropriate , but only

what is constitutionally

compelled.’ ” Burger v. Kem

p , 4 8 3 U. S

. 7 7 6 , 7 9 4 (1 9 8 7 ) ( qu o t i n g Un ite d S tates v . Cr on ic , 466 U.S. 648, 665 n.38 (1984))

. Counsel should not be deeme d to ha ve been ineffe ctive mere ly beca us e a differ ent proce dure or

strateg y might have produce d a diffe rent re sult. W ill iam s v . S

tate , 59 9 S.W .2d 276, 279-80 (T en n

. Crim. App. 1980). The f act that a particula r strate g y or tac tic failed or

hurt the defe nse does not, standingalone, e stablish unreasona ble re prese ntation. Ho us e , 44 S.W .3d at 515 (c i t i n g Go ad

v . S tate , 9 3 8 S

. W

. 2 d

3 6 3 , 3 6 9 (T en n

. 1 9 9 6 ))

. Ho we v er , d ef er en ce t o m at t er s o f s t ra t egy and tac tical choice s applies only if the choice s are informed ones based upon a dequate prepa ration. Ho us e , 44 S.W .3d at 515.

I f the petitioner shows that counsel’s repr esentation fell below a r easona ble standar d, then t he petitioner must satisfy the pre judice prongof the Strickland t e s t b y d e m o n s t r a t i n g “ t h e r e is a

rea sonable proba

bility that, but for counse l’s u n p ro fe s s ional err ors, the re sult of the proce eding would have b ee n d i ff

ere nt.” Strickland, 46 6 U .S. a t 69 4; Nic ho ls v . S tate , 90 S.W .3d 576, 587 (T en n . 2002). T h is r e a s o n a b le p r o b a b il it y mu s t b e “ s u f

f ic ie n t t o u n d e r

mi n e c o n f

id e n c e in the outcome.” Strickland , 4 66 U. S. at 69 4; Ha rri s v. S tate , 87 5 S.W. 2d 66 2, 66 5 (T e nn . 1 99 4) . A s to g uilty pleas, the pe titioner must establish that, but for c ounsel’s err ors, the petitioner would not have enter ed the plea and would have insist ed on proce eding to trial. See Hi ll v . Lo c k ha rt , 474 U.S. 52, 59 (1985).

A. F ail ur e to F ullyExpl ain P le a A gr e e m e nt

Th e Pe tit ion e r a

rgue s th a t Co un se l f

a ile d to fu lly

e xpla in t

he ple a a g re e me nt t o h im, including the amo u n t o f t i me he would se rve pur suant to the ag ree ment. The State c ontends that there is evidence in the rec ord to prove not only that Counsel car efully

went throug h the ag ree ment with the Petitioner but t h at t h e P et i t i o ner f ully understood it as a r esult. We ag ree with the State. The post-c onviction court found that “ [i ]t appea rs .

. . t h at [ the Petitioner] was lucid and understandingat the time of the plea, t hat he fully understood the a g ree ment which he r ece ived, that he has shown that he re ceive d a better deal upon r eneg otiations with [ the State], that [ Counsel]

. . . serve d [t he Petit i o n er ] and his int ere st well.” As stated a bove, Counsel went ove r the plea ag ree ment with t he Petitioner, and the trial court e nsured dur ing the g uilty plea he aringthat the Petitioner understood the plea agr eement. Whi le the Petitioner now maintains that he did not understand the ag ree ment, the post-conviction court reje cted that contention. We pr esume that the post-conviction court’s fac tual finding s are corr ect a bsent a pre pondera

nce of the evidenc e sug g esting otherwise. See F ields
, 40 S.W .3d at 456-57. We c onclude that Counsel w as not deficie nt in this reg ard.

B. Failure t o Consid er M edical Issues-10-

The P etitioner nex t claims that, when neg otiating the plea agree ment with the State, Counsel failed to c onsider the Petitioner’s medical history and usag e of Pax il. Counsel testified that he had dir e c te d D rs . Aub le and

Caru so to e va luate the Pe tit ion e r’ s me nta l st a te , a nd a ft e r c on su lti ngwi th them on their finding s, he determined t hat none of t he P etitioner’s medic al disorder s would qualify for a n insanity defe nse at trial. Counsel also testified that he dire cted two doc tors to come in from Nashville to conduc t a s pinal tap on the P etitioner, which would test for low leve ls of serotonin. The Petitioner testified that Dr. Rosby , the serotonin expert, likel y re viewed his medic al re cords at Couns e l’ s r e qu e st. I n a dd iti on , th e Pe tit ion e r r e me mbe re d Co un se l di sc us sin g a po ssi ble de fe ns e with hi m re garding his low serotonin leve ls. As stated above , we must defe r to an attorney ’s profe ssional judgment if it is informed and based upon adequate pre paration. Se e Ho us e , 44 S.W .3d

a t 51 5. I n th is c a se , Co un se l g a the re d me dic a l e vid e nc e and c on te mpl a te d thi s pote nti a l de fe ns e befor e ultimately

rec ommending that a plea a g ree ment would be the be st re s u l t for the Petitioner. We conclude that Counsel was not deficie nt in this reg ard.

C. F ail ur e to P r ope r ly A dvi se
The Petitioner next contends that Counsel failed to prope rly advise the Petitioner r eg arding the State’s obligation to prove ever y element of the char g ed offe nses beyond a re asonable doubt, the Petitioner’s rig ht ag ainst self-incr imination, and his right to a jury trial. Counsel testified that he ha d explained to the Petitioner exactly what the State would have to prove in order to c onvict, that the Petitioner had a privileg e ag ainst self-inc rimination, and that he ha d a rig ht to have a jur y trial. The Petitioner testified that he kne w that a jury could have convicted him and that he could have r ece ived two life sentenc es plus te n y ear s. Counsel a lso te stified that, afte r discussing all the testimony and evidenc e with the Petitioner, the Petitioner stated that he w ould rather acc ept a plea

ag ree ment than g o to trial. The Petitioner has not p ro v en b y cl ear and convinc ing e vidence that Counsel was defic ient. The Petitioner is not entitled to relief on this issue.

D. F ailure to P repare
Next, the Petit ioner a sserts that Counsel was inef fect i v e b ec ause he failed to intervie w potential witnesses, pre pare a def ense, or discuss p o s s ib le defe nses with him. The Petitioner testified that ei t h er Counsel or the investigator interviewe d both J ohnny Youngand Tina Summers a nd explained to him t o what they would have te stified at trial. Counsel testified that he traveled to two differ ent place s to interview Young and rec ord his state ment. We ha ve alre ady noted that Counsel prepa red f or a de fense conce rning the P etitioner’s low serotonin l evels, and he discussed it with the Petitioner. Additionally , the post-conviction court found that “[Couns el] went far over a nd above in or der to build defe nses for [t he Petitioner].” Thus, we c onclude that Counsel wa s not deficient in this reg ard. A lso, the Petiti oner ha s not iden t i fi ed an y witness that Counsel should have interviewe d or def

enses that Counsel should have prese nted. Acc ording ly , the Petitioner also fa iled to prove a ny prejudice

.

E. Coerc ion-11-

F ina lly , th e Pe tit ion e r c on te nd s tha t Coun se l wa s ine ff e c tiv e by c oe rc inghim

to p le a d guil ty and ac cept the thirty -y ear

sentenc e. S pecif

ically
, the P etitioner arg ues t hat C ounsel assure d him that he wo uld be c on vic te d o f f

ir st d e g re e mur de r a

nd se nte nc e d to l if

e in p ri so n if

he we re to g o tr ia l,

so the Pe tit ion e r wa s fr ig hte ne d int o a c c e pti ng the ple a of fe r. Th e Pe tit ion e r t e sti fi e d th a t, t o h im,

c oe rc ion me ans the same thi ng a s per su a sio n. Thus , in e ff e c t, h e c la ims that Co un se l persuaded him to p le a d guil ty

and a c c e pt the se nte nc e

. Gi ve n the fa c ts of thi s c a se and the c le ar e vid e nc e a g a ins t the Petitioner, it was not o b jectively unrea sonable for

Counsel to give a

profe ssional

re c omm e nd a tio n th a t th e Pe tit ion e r p le a d g uil ty and a c c e pt t he se nte nc e . A s st a te d a

bo ve , w e mus t view an attorney ’s conduc t a s falling within a wide ra ng e of r easona

ble profe ssional assistance. See Burns , 6 S.W .3d at 462. Thus, the Petitioner is not entitled to relief.

III. Conclusi on

Ba sed on the for eg oing r easoningand author ity , we conclude the Petitioner has not prove n by clea r and convincing evidenc e that he rec eived the ineffe ctive assistance of counsel. As such, we aff irm the judg ment of the trial c ourt.

________________________________ ROBERT W. WEDEMEYER, J UDGE