IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 14, 2016

LUIS NAPOLEON PAZ v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2012-C-2474 Cheryl A. Blackburn, Judge

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No. M2016-00069-CCA-R3-PC

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The petitioner, Luis Napoleon Paz, appeals the denial of his petition for post-conviction 

relief, arguing the post-conviction court erred in finding he received effective assistance 

of counsel. Following our review, we affirm the denial of the petition. 

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

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and 

CAMILLE R. MCMULLEN, JJ., joined.

Celia Marie Stacey, Nashville, Tennessee, for the appellant, Luis Naoleon Paz.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant 

Attorney General; Glenn Funk, District Attorney General; and Jeff Burks and Megan 

King, Assistant District Attorney Generals, for the appellee, State of Tennessee.

OPINION

FACTS

After being indicted for first degree murder (Count 1) and employment of a 

firearm during a dangerous felony (Count 2), the petitioner pled guilty to the lesser 

included offense of second degree murder.

1

 Pursuant to Hicks v. State, the negotiated 

plea deal imposed an out-of-range sentence of thirty years in confinement to be served at 

100%. 945 S.W.2d 706, 709 (Tenn. 1997). The thirty-year sentence offered in the plea 

deal fell “out-of-range” because a second degree murder conviction at trial would have 

 

1 Count 2 was dismissed as part of the plea deal.

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carried a sentencing range of only fifteen to twenty-five years for the petitioner, a Range I 

offender. See Tenn. Code Ann. § 40-35-112(a)(1).

As a result, the petitioner filed a pro se petition for post-conviction relief alleging 

ineffective assistance of counsel regarding his lack of understanding of the imposed, outof-range sentence. In his amended post-conviction petition, the petitioner claimed “his 

guilty pleas were not entered into knowingly and voluntarily because he did not 

understand the consequences of pleading guilty to second degree murder.” The petitioner

ultimately stated if that “counsel [had] adequately advised petitioner of the maximum 

sentence for the lesser offenses, he would not have pled guilty and would have insisted on 

proceeding to trial.” 

The post-conviction court conducted an evidentiary hearing wherein the petitioner 

and counsel both testified. The court summarized the hearing testimony as follows:

Petitioner testified [counsel] represented him, and she discussed with 

him the benefits of trial and the guilty plea. Counsel advised him the guilty 

plea was more beneficial for him because he would receive less time. 

Petitioner stated that counsel did not advise him, however, of the potential 

sentence he faced in number of years should he be convicted at trial. When 

questioned whether he has thought about what kind of sentence he would 

receive if convicted at trial, [p]etitioner responded, “No.”

Petitioner testified he now understands that he accepted a higher 

sentence than his range, but at the time of his plea he did not understand 

what it meant to “plead out of range.” He stated that he did not understand 

the consequences of his plea “other than I was serving 30 years.” Petitioner 

acknowledged that [t]rial [c]ounsel provided the “witness paperwork” 

showing what “facts they knew” and how they would testify at trial. 

On cross-examination, [p]etitioner agreed that he was represented by 

[counsel] in [g]eneral [s]essions as well as in [c]riminal [c]ourt. In 

[g]eneral [s]essions he had two appearances, including a preliminary 

hearing where the man who identified [p]etitioner as the shooter, Ladarion 

Smith, testified. Petitioner could not quantify the number of times [t]rial 

[c]ounsel met with him about his case, but he agreed that (sic) she met with 

him multiple times during court appearances in [c]riminal [c]ourt as well as 

outside of court.

Petitioner testified that he wanted to go to trial and his case was set 

for trial in September 2013, but [t]rial [c]ounsel advised him taking a guilty 
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plea was better for him because of the witnesses. Petitioner testified since 

his trial was only a few weeks away when they had this discussion, he told 

[t]rial [c]ounsel to “get me something,” and she came back with the 30-year 

offer. Petitioner conceded that [t]rial [c]ounsel discussed with him possible 

defenses should the case go to trial.

Petitioner’s recollection of his plea hearing was spotty. For 

example, [p]etitioner did not recall the [c]ourt explaining the 15- to 25-year 

range to him although he did recall the [c]ourt advising the sentence was to 

be served at 100% due to the nature of the offense. Petitioner testified that 

he was telling the truth during his plea hearing. 

The [c]ourt clarified that [p]etitioner was under oath and told the 

truth during his plea hearing. Petitioner did not dispute what occurred at 

his plea hearing; rather, he just did not remember some of the hearing. 

[Trial counsel] testified that she has served as an assistant public 

defender for almost 10 years in Tennessee, devoting 100% of her practice 

to criminal defense work. She stated she met with [p]etitioner at least once 

prior to the preliminary hearing once he was extradited from Florida. She 

also met with him on each of the nine [c]riminal [c]ourt appearances as well 

as outside of court approximately 25 times. During these meetings, she 

discussed the charges with [p]etitioner, his exposure for the charged offense 

of first degree murder versus the 30-year offer for second degree murder, 

and range of punishment for lesser included offenses. Trial [c]ounsel stated 

she discussed with [p]etitioner the difference between first and second 

degree murder. 

Trial [c]ounsel testified that [p]etitioner asked to accept the State’s 

offer. Trial [c]ounsel believes she met with [p]etitioner the day before the 

plea hearing to go over the plea petition. She recalled going over it 

together in CJC, where she read the petition aloud while [p]etitioner 

followed along.

On cross-examination, [t]rial [c]ounsel agreed she could not recall 

the specifics of going over the plea with [p]etitioner. She conceded 

[p]etitioner may not have understood the phrase “out of range,” but 

maintained [p]etitioner understood the difference between accepting 30 

years as part of the plea versus going to trial and facing the exposure of a 

first degree murder conviction with a life sentence. That is, [p]etitioner was 
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aware of and understood his options to either go to trial with the known 

evidence against him or accept the State’s offer.

After its review, the post-conviction court held the petitioner failed to show he 

received ineffective assistance of counsel. In denying relief, the court noted that both the 

petitioner’s and trial counsel’s testimony “indicated he understood the concept [of out-ofrange sentencing] and that he chose to accept the 30-year sentence because it was less 

time than he would face should he be convicted at trial of first degree murder as 

charged.” This appeal followed.

ANALYSIS

On appeal, the petitioner alleges trial counsel was ineffective because she failed to 

fully explain the terms of his plea deal, specifically the fact that he was pleading out-ofrange. The State argues the petitioner has failed to meet his burden of proving he 

received ineffective assistance of counsel. After our review, we agree with the State.

The petitioner bears the burden of proving his post-conviction allegations of fact

by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). The findings of 

fact established at a post-conviction evidentiary hearing are conclusive on appeal unless 

the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 

(Tenn. 1996). This Court will not reweigh or reevaluate evidence of purely factual 

issues. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate 

review of a trial court’s application of the law to the facts 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 presents mixed questions of fact and law. See 

Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus, this Court reviews the 

petitioner’s post-conviction allegations de novo, affording a presumption of correctness 

only to the post-conviction court’s findings of fact. See Fields, 40 S.W.3d at 458; Burns 

v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner must show 

both that counsel’s performance was deficient and that counsel’s deficient performance 

prejudiced the outcome of the proceedings. 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 

the standard for determining ineffective assistance of counsel applied in federal cases is 

also applied 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 
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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. In order for a post-conviction petitioner to succeed, both prongs of the 

Strickland test must be satisfied. 466 U.S. at 687. Thus, courts are not required to even 

“address both components of the inquiry if the defendant makes an insufficient showing 

on one.” Strickland, 466 U.S. at 697; see also Goad v. State, 938 S.W.2d 363, 370

(Tenn. 1996) (stating that “a failure to prove either deficiency or prejudice provides a 

sufficient basis to deny relief on the ineffective assistance claim”).

A petitioner proves a deficiency by showing “counsel’s acts or omissions were so 

serious as to fall below an objective standard of reasonableness under prevailing 

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688; 

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the 

Strickland test is satisfied when the petitioner shows there is a reasonable probability, or 

“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. Because the petitioner’s ineffective assistance of counsel

claims relate to his guilty plea, in order to show prejudice he “must prove that counsel 

performed deficiently and ‘there is a reasonable probability that, but for counsel’s errors, 

he would not have pled guilty and would have insisted on going to trial.’” Grindstaff v. 

State, 297 S.W.3d 208, 216–17 (Tenn. 2009) (quoting Hill v. Lockhart, 474 U.S. 52, 59

(1985)).

On appeal, the petitioner argues trial counsel’s ineffective assistance led him to 

plead guilty to second degree murder “without being informed about what his overall 

exposure was and about what pleading out of range means.” The record, however, shows 

otherwise. Both the guilty plea and the post-conviction hearings support the trial court’s 

finding that the petitioner understood the nature of the plea deal, the potential sentences 

he faced at trial versus in the plea deal, and the strengths and weaknesses of his defense. 

Prior to pleading guilty, the petitioner faced two options. He could proceed to trial 

under a first degree murder charge which carried a possible life sentence if convicted, or 

he could plead guilty to the lesser included offense of second degree murder which 

imposed a thirty-year sentence as a condition of the plea deal. 

Second degree murder is a Class A felony which carries an overall sentencing 

range of “not less than fifteen (15) nor more than sixty (60) years.” Tenn. Code Ann. § 

40-35-111 (b)(1). The guilty plea, however, presented an “out-of-range” sentence based 
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on the petitioner’s classification as a Range I offender. Had the petitioner gone to trial 

and been convicted of second degree murder, his status, as a Range I offender, would 

have warranted a sentencing range between fifteen and twenty-five years. Tenn. Code 

Ann. § 40-35-112 (a)(1). Thus, the thirty-year offer exceeded the petitioner’s sentencing 

exposure for second degree murder at trial, which would have been capped at twenty-five 

years. However, the petitioner and the State are free to enter into “a ‘hybrid’ sentence 

that ‘mixes and matches’ range assignment, term of years, and release eligibility without 

regard to what our sentencing scheme might call for absent a plea bargain . . . .” Davis v. 

State, 313 S.W.3d 751, 760 (Tenn. 2010) (internal citations omitted). This is precisely 

what happened in the petitioner’s case.

Rather than proceeding to trial, the petitioner chose to plead guilty to second 

degree murder. Under the plea deal and as noted on the judgment sheet, the petitioner 

received a thirty-year sentence as a multiple offender with a statutorily imposed 100% 

release eligibility. Tenn. Code Ann. § 40-35-501(i). Though the negotiated guilty plea 

deal offered an “out-of-range” sentence, the record indicates the petitioner was fully 

informed by counsel and the trial court of the out-of-range nature of the thirty-year 

sentence and, therefore, entered a knowing and voluntary plea. 

The post-conviction court summarized the petitioner’s position and highlighted 

pertinent testimony from the plea colloquy, as follows:

In this case, [p]etitioner faced two unappealing options: to go to trial 

in a case where the State had strong evidence or to accept the State’s only 

guilty plea offer of 30 years. Granting post-conviction relief would simply 

place [p]etitioner in that same position of either going to trial on first 

degree murder, which carries a life sentence, and be tried on Count 2, or 

accepting a plea offer should the State even be willing to engage in plea 

negotiations.

Moreover, the guilty plea transcript belies [p]etitioner’s allegations. 

During the plea hearing, the [c]ourt thoroughly explained to [p]etitioner 

more than once that he was pleading “out of range” and [p]etitioner 

affirmed he understood: 

THE COURT: Now, the petition says you are going to 

be pleading guilty to the lesser included offense of murder in 

the second degree. That’s an A felony. It’s going to be a 

thirty-year sentence. Now, you have a standard- actually 

that’s not a standard. That’s a multiple offense thing, but the 

percentage is a hundred percent. So it really-he’s waiving the 
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range. This is what I need to ask you, [petitioner]. Had you 

gone to trial and been convicted of murder in the second 

degree- you were charged with murder in the first degree. 

But if you had been convicted of murder in the second 

degree, your range of punishment would have been fifteen to 

twenty-five years. But in order to sort of arrange for this plea 

agreement you’ve agreed to plead guilty to thirty years, rather 

than to go to trial and be convicted of murder in the first 

degree. Is that a correct statement?

[PETITIONER]: Correct. 

THE COURT: All right. Now, let’s go over again 

what you were charged with. You were charged with murder 

in the first degree. And I assume this is an intentional 

premeditated killing. That’s what that means, murder in the 

first degree, that you intend to kill somebody and thought 

about it. The range of punishment would have been for you 

life imprisonment with the possibility of parole because the 

State has not given notice of any enhanced punishment in 

your case. 

Now, you’re not pleading guilty to that. You’re 

pleading guilty to a knowing killing of another, which that 

range-the full range of punishment is fifteen to sixty years. 

But as a Range 1 offender, it’s fifteen to twenty-five years. 

But you’re waiving the twenty-five year limit and accepting a 

thirty-year sentence in order to get this plea to murder in the 

second degree. Do you understand that?

[PETITIONER]: Yeah. 

The record shows the trial court conducted a thorough plea colloquy and found the 

petitioner understood his choice to forego a trial for first degree murder and plead guilty 

to the lesser included offense of second degree murder. In denying the petition, the postconviction court found “the record, including the guilty plea transcript, affirmatively 

demonstrates that the [p]etitioner’s guilty plea was made with an awareness of the 

consequences, and, as such, the guilty plea was voluntarily, intelligently, and knowingly 

entered.” We agree.

The evidence in the record demonstrates that at the time the petitioner entered his 

guilty plea, he understood he would receive a thirty-year sentence for second degree 
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murder outside of the range he would have received if convicted at trial. The record 

indicates that prior to entering his plea of guilty, the petitioner met with counsel multiple 

times and discussed the strength of the State’s case and the evidence against him, the 

differences between first and second degree murder and the sentences associated 

therewith, and the specifics of the plea deal offered by the State. The record shows the 

petitioner knew he faced a potential life sentence under the first degree murder charge 

while he faced a thirty-year sentence under the plea deal. Further, during the postconviction evidentiary hearing, the petitioner testified he discussed the guilty plea 

proceedings with counsel, he understood the proceedings and his associated rights, and he 

was satisfied with counsel’s representation. Accordingly, the record supports the postconviction court’s finding that the petitioner failed to meet his burden of proving 

ineffective assistance of counsel on the grounds that he did not understand the 

consequences of pleading guilty to second degree murder. The petitioner is not entitled 

to relief.

In order to succeed on his ineffective assistance claim, aside from presenting clear 

and convincing factual evidence establishing counsel’s deficient performance, the 

petitioner must also establish prejudice. Specifically, the petitioner must show that but 

for counsel’s alleged deficient performance, he would have insisted on going to trial. See 

Grindstaff, 297 S.W.3d at 216–17; Strickland, 466 U.S. at 687. The petitioner has not

met this burden. The record is replete with evidence that the petitioner understood the

options he faced prior to entering his guilty plea, the out-of-range sentencing associated 

with the guilty plea, and the rights he waived upon entering the guilty plea. Thus, not 

only has the petitioner failed to show counsel was ineffective, but also he cannot prove he 

was prejudiced. Without proof of prejudice, the petitioner’s claims fail and he is not 

entitled to post-conviction relief on the grounds of ineffective assistance of counsel.

Finally, upon our review and as found by the post-conviction court, the record 

contains no proof to suggest the petitioner did not enter a knowing and voluntary guilty 

plea. The record indicates the trial court discussed the petitioner’s right to confront the 

witnesses against him and to testify in his own defense if he were to go to trial. See Jaco 

v. State, 120 S.W.3d 828, 831 (Tenn. 2003) (“A plea is ‘knowing’ if the court informed 

the accused of his constitutional rights against self-incrimination, to confront accusers, 

and to trial by jury.”). The record indicates the petitioner was fully informed by both trial 

counsel and the trial court of his options, to either go to trial or take the plea deal. The 

record also indicates the petitioner made “a voluntary and intelligent choice among the 

alternative courses of action” available to him when choosing to plead guilty. Jaco, 120 

S.W.3d at 831 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970) (internal 

quotations omitted)). As such, the record supports the trial court’s finding that the

petitioner entered a knowing and voluntary guilty plea to second degree murder. The 

petitioner is entitled to no further relief. 
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CONCLUSION

Based upon the foregoing authorities and reasoning, the judgment of the postconviction court is affirmed.

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J. ROSS DYER, JUDGE