IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 14, 2013 Session

TOMMY LEE PAGE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2009-C-2860 Monte Watkins, Judge

No. M2012-02686-CCA-R3-PC - Filed September 23, 2013

Petitioner, Tommy Lee Page, was indicted by a Davidson County Grand Jury for one count

of sale of a controlled substance in a Drug Free School Zone. He entered a guilty plea to the

reduced charge of the sale of a controlled substance weighing less than .5 grams. Pursuant

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to the plea agreement, Petitioner was sentenced to fifteen years as a Range II, multiple

offender. Petitioner subsequently filed a petition for post-conviction relief arguing that he

was afforded ineffective assistance of counsel and that he entered his guilty plea

unknowingly and involuntarily. After a thorough review of the record, we conclude that

Petitioner has failed to prove any of his allegations that counsel’s representation was

ineffective and we conclude that his plea was entered knowingly and voluntarily. Therefore,

we affirm the post-conviction court’s denial of the petition.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.

and ROBERT W. WEDEMEYER , JJ., joined.

Ryan K.H. Nevin, Nashville, Tennessee, for appellant, Tommy Lee Page.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney

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

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

Because no judgments appear in the record, we glean the conviction offense from the 1

post-conviction court’s order denying relief and the transcript of the plea hearing.
OPINION

Factual Background

The following facts were set out at the guilty plea hearing:

[O]n July the 9th, 2009 at, approximately, seven-fifty p.m., the East CSU

conducted a buy-bust at 1601 D.B. Todd with the use of a CI. The CI was

aware of drug sales out of that house at 1601 D.B. Todd.

The CI was searched and wired by Detective Jones and given

previously photocopied buy-money. The CI walked up to the co-defendant

Andra Miller, who was also present to testify, and stated she wanted a forty.

At that point in time the co-defendant, Ms. Miller, made a phone call, and at

that time Mr. Page showed up.

The lead officer, Comoro (ph.), observed Mr. Page arrive and hand the

CI a substance that later tested positive for cocaine; and, also, from the TBI

Lab report it was verified that it was a schedule two cocaine.

After the transaction took place Mr. Page along with Ms. Miller were

apprehended at a market nearby. The co-defendant, Ms. Miller, had the

previously photocopied buy-money on her person. And the officers, also,

confiscated three cell phones along with three hundred and nineteen dollars.

Based on these facts and the fact that 101 D.B. Todd is here in

Davidson County, the State recommendsthe previously announced disposition.

A Davidson County Grand Jury indicted Petitioner for one count of the sale of a

schedule II substance in a Drug Free Zone. Petitioner pled guilty to one count of the sale of

a schedule II substance, cocaine, weighing less than .5 grams. Pursuant to the plea

agreement, Petitioner was sentenced to fifteen years as a Range II, multiple offender.

On February 1, 2012, Petitioner filed a pro se petition for post-conviction relief. The

post-conviction court appointed counsel. The petition alleged that Petitioner received

ineffective assistance of counsel and that he entered his plea unknowingly and involuntarily.

The post-conviction court held an evidentiary hearing on September 26, 2012.

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Petitioner was the first witness at the hearing. He testified that he was arrested on the

drug charge on July 9, 2009, was appointed counsel, and was released on bond the next day.

In November of 2009, Petitioner was arrested for a murder charge. He remained in jail and

met with trial counsel about three times before entering his plea. He said that he wanted to

go to trial but changed his mind after voir dire because he thought he was going to get a life

sentence for the “[d]rug charge and manslaughter.” Petitioner said he sent about six letters

to trial counsel during the pendency of his case and that she never responded. He also

requested a copy of everything in his file. He claimed that he never received any paperwork

from his counsel. Further, Petitioner reported the actions of trial counsel to the Board of

Professional Responsibility.

Petitioner also complained that he did not receive pre-trial jail credit on the drug

charge but admitted on cross-examination that he received credit for pre-trial jail time on his

murder conviction. Petitioner agreed that he pled guilty in that case also and received a

concurrent sentence of fifteen years. Petitioner claimed that he was told he would get a life

sentence on the murder charge unless he pled guilty on the drug charge. Petitioner admitted

that he knew the range of punishment was twelve to twenty years on the drug charge.

Trial counsel testified that she met with Petitioner every time that he was on the court

docket and at least four times while he was incarcerated. During these meetings, trial counsel

discussed trialstrategy at length. She interviewed the co-defendant “at length” in preparation

for trial. Trial counsel recalled getting a letter from the Board of Professional Responsibility

concerning Petitioner’s requests for a copy of his entire file. In response, she provided

Petitioner with that information in a timely manner.

Trial counsel denied that she told Petitioner he would receive a life sentence if he

failed to plead guilty. In fact, Petitioner was so adamant about going to trial that trial counsel

prepared a document outlining Petitioner’s sentence exposure for him to sign prior to trial.

Due to Petitioner’s limited vision, a court officer read the document to Petitioner in the

presence of another attorney.

Trial counsel went over his plea bargain arrangement before he entered his plea. She

said there was no indication that he did not understand the plea.

The post-conviction court filed a written order denying the petition. The postconviction court specifically found that trial counsel’s testimony at the hearing was credible.

The post-conviction court included the following findings:

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At the evidentiary hearing, trial counsel testified that she met with the

defendant and advised him of the evidence against him. Further, the defendant

was advised of likelihood of conviction and the range of punishment. The

petitioner contends that counsel failed to communicate with him regarding the

status of his case and theories of defense. The petitioner asserts that counsel

only advised him to plead guilty to avoid a life sentence in prison.

Trial counsel introduced Exhibit 1 a letter outlining the possible years

the defendant could serve if convicted of the charged offense as well as the

State’s plea offer which the petitioner signed and dated. Further, the plea

petition which the petitionersigned indicates the possible incarceration as well

as the incarceration pursuant to his plea agreement.

Petitioner has failed to demonstrate by clear and convincing evidence

ineffective assistance of counsel and that the plea was a violation of due

process rights in violation of a constitutional right to render his conviction and

sentence void or voidable under the Post Conviction Relief Act. The Court

does not find the petitioner’s testimony to be credible. Accordingly, the Court

finds that Petitioner has failed to show that he was prejudice[d] by counsel’s

allegedly deficient conduct.

The post-conviction court denied relief and dismissed the petition.

ANALYSIS

Post-conviction Standard of Review

On appeal, Petitioner arguesthat he was afforded ineffective assistance of counsel and

that his guilty plea was entered unknowingly and involuntarily. The post-conviction court’s

findings of fact are conclusive on appeal unless the evidence preponderates otherwise. See

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review of the issues raised, we

will afford those findings of fact the weight of a jury verdict, and this Court is bound by the

post-conviction court’sfindings unlessthe evidence in the record preponderates against those

findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d

138, 147 (Tenn. Crim. App. 1997). This Court may not re-weigh or re-evaluate the evidence,

nor substitute its inferences for those drawn by the post-conviction court. See State v.

Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s

conclusions of law are reviewed under a purely de novo standard with no presumption of

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

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

of counsel, the petitioner bears the burden of showing by clear and convincing evidence that

“(a) the services rendered by trial counsel were deficient and (b) that the deficient

performance was prejudicial.” See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.

1996); see also T.C.A. § 40-30-110(f). In order to demonstrate deficient performance, the

petitioner must show that the services rendered or the advice given was below “the range of

competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). “Because a petitioner must establish both prongs of the test to prevail on a

claim of ineffective assistance of counsel, failure to prove either deficient performance or

resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960

S.W.2d at 580.

As noted above, this Court will afford the post-conviction court’s factual findings a

presumption of correctness, rendering them conclusive on appeal unless the record

preponderates against the court’s findings. See id. at 578. However, our supreme court has

“determined that the issues of deficient performance by counsel and possible prejudice to the

defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]

is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

Furthermore, on claims of ineffective assistance of counsel, Petitioner is not entitled

to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.

1994). This Court may not second-guess a reasonably-based trial strategy, and we cannot

grant relief based on a sound, but unsuccessful, tactical decision made during the course of

the proceedings. See id. However,such deference to the tactical decisions of counsel applies

only if counsel makes those decisions after adequate preparation for the case. See Cooper

v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Once a guilty plea has been entered, effectiveness of counsel is relevant only to the

extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective

assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently

made. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400

U.S. 25, 31 (1970)). As stated above, in order to successfully challenge the effectiveness of

counsel, Petitioner must demonstrate that counsel’s representation fell below the range of

competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. Under

Strickland v. Washington, 466 U,S, 668 (1984), Petitioner must establish: (1) deficient

representation; and (2) prejudice resulting from the deficiency. 466 U.S. at 694. However,

in the context of a guilty plea, to satisfy the second prong of Strickland, Petitioner must show

that “there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59; see also

Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

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When analyzing a guilty plea, we look to the federal standard announced in Boykin

v. Alabama, 395 U.S. 238 (1969), and the State standard set out in State v. Mackey, 553

S.W.2d 337 (Tenn. 1977), superceded on other grounds by Tenn. R. Crim. P. 37(b) and

Tenn. R. App. P. 3(b). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin, the

United States Supreme Court held that there must be an affirmative showing in the trial court

that a guilty plea was voluntarily and knowingly given before it can be accepted. 395 U.S.

at 242; see Pettus, 986 S.W.2d at 542. Similarly, our Tennessee Supreme Court in Mackey

required an affirmative showing of a voluntary and knowing guilty plea, namely, that the

defendant has been made aware of the significant consequences of such a plea. 553 S.W.2d

at 340; see Pettus, 986 S.W.2d at 542. The standard is the same for a “best interest” or

Alford plea, that is, “whether the plea represents a voluntary and intelligent choice among the

alternative courses of action open to the defendant.” Alford, 400 U.S. at 31.

A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,

inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial

court must determine if the guilty plea is “knowing” by questioning the defendant to make

sure he fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;

Blankenship, 858 S.W.2d at 904.

Petitioner has failed to show that but for trial counsel’s alleged deficiencies, he would

have refused to plead guilty and insisted on going to trial. Petitioner testified that trial

counsel did not meet with him very many times prior to trial, failed to provide him with

documents, and told him that he would be required to serve a life sentence if he did not enter

a guilty plea. Trial counsel adamantly denied these assertions when she testified at the postconviction hearing. The post-conviction court specifically found trial counsel’s testimony

to be credible. It is up to the trial court to determine credibility of witnesses and the postconviction court’s findings have the weight of a jury verdict. Momon v. State, 18 S.W.3d

152, 156 (Tenn. 1999). Therefore, Petitioner has not proven that trial counsel’s

representation was deficient and that he would not have pled guilty if not for her

representation.

Furthermore, the transcript of the guilty plea hearing reflects that the trial court

discussed the ramifications of the guilty plea with Petitioner. He was thoroughly questioned

by the trial court to ascertain whether he understood the effects of the plea. The plea hearing

also indicates that Petitioner knew what he was doing, understood the plea, and agreed that

it was what he wanted to do to resolve the case. Petitioner has failed to show by clear and

convincing evidence that he received ineffective assistance of counsel or that his guilty plea

was involuntary. Moreover, Petitioner has failed to prove he did not understand the

consequences of his plea.

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CONCLUSION

For the foregoing reasons, we affirm the denial of Petitioner’s petition for postconviction relief.

___________________________________

JERRY L. SMITH, JUDGE

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