IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

February 6, 2018 Session

MARLON YARBRO v. STATE OF TENNESSEE

Appeal from the Circuit Court for Hardin County

No. 9894PC Charles C. McGinley, Judge

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No. W2017-00125-CCA-R3-PC

___________________________________

This is a State appeal of the Hardin County Circuit Court’s grant of post-conviction 

relief. The Petitioner was convicted by a jury of various drug related offenses including 

sale of .5 grams or more of a Schedule II controlled substance within 1000 feet of a 

school zone, see Tenn. Code Ann. §§ 39-17-417(c)(1), 39-17-432(b)-(c), for which he 

received an effective sentence of 25 years with no parole. State v. Marlon Yarbro, No. 

W2015-00475-CCA-R3-CD, 2015 WL 5813383, at *3 (Tenn. Crim. App. Oct. 5, 2015),

perm. app. denied (Tenn. Feb. 18, 2016). After his conviction was affirmed by this court, 

the Petitioner filed a pro se petition for post-conviction relief which did not include as 

grounds for relief that trial counsel was ineffective in advising the Petitioner of his 

sentence range or a due process claim based on the Petitioner’s rejection of a more 

favorable settlement offer from the State. Post-conviction counsel was appointed, and no 

amendments were filed. An evidentiary hearing was held, and the post-conviction court 

granted the Petitioner relief based on the evidence adduced at the post-conviction 

hearing. The State now appeals, raising the following issues: (1) whether the postconviction court may, on its own initiative, constructively amend a post-conviction 

petition; (2) if the constructive amendment were proper and if the basis for relief was that 

the petitioner’s rejection of the State’s plea offer was unknowing, whether that basis is a 

cognizable ground for post-conviction relief where there is no constitutional right to a 

knowing and voluntary rejection of a plea offer; and (3) if the constructive amendment 

were proper and if the basis for relief was ineffective assistance of counsel, whether the 

post-conviction court erred in granting relief where the court did not conduct the 

Strickland two-pronged analysis. Upon our review, we affirm the judgment of the postconviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS and J. ROSS DYER, JJ., joined.

09/17/2018
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Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant 

Attorney General; Matthew F. Stowe, District Attorney General; and Vance W. Dennis, 

Assistant District Attorney General, for the appellant, State of Tennessee.

Lance R. Chism, Memphis, Tennessee, for the Petitioner-Appellee, Marlon Yarbro.

OPINION

The following proof, as relevant to the issues raised in this appeal, was adduced at 

the August 15, 2016 post-conviction hearing.1 The Petitioner testified that he was 

currently serving a 25-year sentence. He agreed that he had filed a petition for postconviction relief alleging six issues; however, post-conviction counsel asked him to focus 

on issue six, whether trial counsel was ineffective. Although issue six did not explicitly 

provide that trial counsel was ineffective in advising the Petitioner of his potential 

sentence, this was post-conviction counsel’s line of questioning for the bulk of the 

hearing. The State did not object to the line of questioning nor the Petitioner’s responses. 

The Petitioner confirmed that he had discussed settling the case with trial counsel prior to 

trial. The Petitioner said that trial counsel told him that if he lost at trial, then the 

Petitioner would serve “25 years at 30 to 45 percent confinement. He never said nothing 

about no 100 percent.” The post-conviction court asked for clarity, and the Petitioner 

replied:

[Trial counsel] told me it would [be] 25 years, 30 to 45 percent 

confinement if I lost in trial. But he was so - - - I told him from the 

beginning when I first hired him, I said, look, this is my life, don’t gamble 

with my life or none of that. He just, [said] Come on, . . . I’ll beat him at 

trial . . . He just basically coerced me to go to trial.

The Petitioner further said that trial counsel told him his chance of winning was

“like 60/40 the State way. Then after about maybe a month or two, he talking [sic] about 

it’s like a 90 to 98 percent chance he could win, he could beat them in trial.” Later in his 

 

1 The six issues raised in the Petitioner’s handwritten, pro se petition for post-conviction relief

were: (1) “the trial court error in applying the Drug free school zone enhancement to count one”; (2) “the 

trial court error in dismissing indictment at count one after jeopardy attached”; (3) “the trial court error in 

changing and/or altering the Grand jury indictment without the Grand jury consent”; (4) “the State error 

in count-one of the indictment for failing to charge the fact that constitute the offense of T.C.A 39-17-

417(a)(3)(c)(1), contrary to T.C.A. 40-13-202”; (5)“the criminal judgment dated 3/3/15 count-one is void 

because T.C.A. 39-17-417(c)(1) is an ‘B’ felony not ‘A’ felony”; and (6) “trial counsel was ineffective for 

failing to raise the above claims, including sufficiency of evidence.” The post-conviction court denied 

relief as to these issues, and they are not before us in this appeal.
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testimony, the Petitioner restated what trial counsel told him when he asked trial counsel 

what would happen if he lost after trial:

Well, you’ll be looking at 25 years at 30 to 45 percent, somewhere 

in that gap. I said, Okay, that’s what’s up.

Then he said, Man, something about you really don’t want to know 

and all that. He said, it will be 25 to serve and all that. The letter is 

over there. I can’t remember quite what he said.

The Petitioner testified that had he known his sentence exposure was 25 years at 

100%, he never would have gone to trial. The Petitioner referred to a three-page letter

from trial counsel, admitted as an exhibit, which he believed confirmed trial counsel’s 

erroneous advice to him regarding sentencing. Although the letter was not dated, the 

Petitioner said he received it approximately fifteen days after his trial. Trial counsel sent 

the letter to the Petitioner in response to a letter the Petitioner had previously sent to him. 

The letter provided, in pertinent, as follows: 

One part of your letter that confused me was your reference to 

not being explained that your sentence would be 25 years. If you 

will recall, the following exchange took place at the jail before your 

trial:

[The Petitioner]: “What am I looking at if we lose the 

 trial.”

[Trial Counsel]: “Man, you really don’t want to 

 know.”

[The Petitioner]: “Yes, I do.”

[Trial Counsel]: “If you lose, it will be 25 years to 

 serve.”

If you will recall, [initial trial counsel] explained this to you 

as well before you hired me. It was my understanding that you 

completely understood the seriousness of this crime, and severity 

was the primary reason that you sought my legal services.

I do recall incorrectly advising you very early in my

representation of you that you would be eligible for a 30% to 45% 

confinement on the 25-year sentence. The rule of law is typically 

that a non-violent felony, such as what you were convicted of, does 

not require a day-for-day sentence. Obviously, the legislature has 
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carved out a new law as it relates to school zones that I had not 

thoroughly read during this early consult. I apologize for not 

knowing this early on, but you had time to make an appropriate 

decision should you have wished to enter into a plea agreement.

If you will recall, the state never offered us a plea agreement 

anywhere near where you told me that you would plead to. You 

wanted to do a 6-year sentence at 30% and concurrent to your other 

violation. Eventually, you told me to seek an 8-year sentence at 

30% again concurrent. The state always wanted a 12 to 15 year 

sentence, consecutive, and they always demanded more than 30% to 

serve. We never had a plea offer that you would take. As the client, 

that is completely your decision, but I agreed with you that the case 

was worth taking to trial based on the state’s plea offers and the lack 

of proof on the video.

. . . .

I am sorry, sir, from the bottom of my heart for the way that 

your case unfolded. I do wish we had spent more time going over 

the consequences of a guilty conviction, but, since the state never got 

close with an offer where you needed to be, I think, today, that you 

made the right decision in fighting it. If you are granted a new trial, 

which you should be, I firmly believe that the state will offer you 

what you told me that you were willing to accept.

The Petitioner explained that the quoted section in the letter was untrue because he 

did not know that he was facing a sentence of 25 years confinement at 100% until after 

trial. Based on trial counsel’s advice, the Petitioner believed he was facing a sentence of 

25 years to be served at 30 to 45% or 7.5 to 8.75 years confinement before he would be 

eligible for release. He testified that the District Attorney, through his attorney, offered 

him a plea of “15 years at 45%” or 6.75 years of confinement before his release 

eligibility. He did not provide details on the structure of the plea agreement. Compared 

to the advice trial counsel had given him regarding his potential sentence, the Petitioner

believed he had nothing to lose by rejecting the plea offer and going to trial.

When the prosecutor pressed the Petitioner about trial counsel’s explanation that 

the Petitioner had time to make an appropriate decision after trial counsel corrected his 

erroneous sentencing advice, the Petitioner replied, “Yeah, but how am I supposed to do 

that, and he [sic] constantly coercing me to go to trial. Telling me, I can beat him . . . 
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come on, man.” Trial counsel charged the Petitioner a flat rate for his case, which 

included representation at trial. 

 

Trial counsel testified consistently with the testimony of the Petitioner. He was 

retained to represent the Petitioner on the instant offenses “very early, right after the drug 

round-up.” Trial counsel candidly acknowledged that “[i]n the very beginning, [he] was 

not aware [of the drug free school zone sentencing penalties].” Trial counsel explained 

that the drug free school zone enhancement was a “relatively new law, and [he] didn’t 

realize that it required 100% [service].” Trial counsel initially believed that because the 

drug offenses were non-violent crimes, the Petitioner would be required to serve his 

sentence at either “30, 35% or 45%,” which is what he advised the Petitioner. Trial 

counsel insisted that prior to trial and before the guilty plea deadline had expired, he 

explicitly told the Petitioner that he had “25 years to serve.” Trial counsel conceded 

however that he did not engage in detailed discussions with the Petitioner regarding his 

potential sentence exposure. In trial counsel’s view, this did not impact the Petitioner’s 

decision to proceed to trial because the State never made an offer of settlement that the 

Petitioner was willing to accept. Trial counsel explained the extent of his conversations 

with the Petitioner regarding his sentencing range as follows:

Virtually every conversation I had with [the Petitioner] dealt with 

the State’s offer in whether he was going to take their offer or not take their 

offer. [The Petitioner], you know it was a little bit different than a lot of 

clients I have, because he was concentrating on what kind of offer I could 

get him. That was his main concern. That was everything that he cared 

about. That was what we talked about every time . . . well, what kind of 

offer do you got? Can you get them down to this? Well, this person has 

this. That was our main discussion.

So we discussed – every time I came down there, I told him if there 

was a new offer, what it was. We’re going to do this. Or I’d go to the DA 

and present his new offer, and then go back to him and report to him what 

they said. We so discussed it on the front end when I mistakenly told him 

that he would have to get a percentage on a conviction. I did tell him that. 

I was wrong. I had not looked at the law yet. I believe it was a new law 

just came out or very soon. So he initially had [other counsel]. He came to 

me, because [other counsel], it’s my understanding that [other counsel] told 

him exactly what he was looking at if he loses, and that is the reason he 

came to me to begin with. So if that’s the truth, then I wouldn’t say that he 

didn’t care, but he wasn’t – he wanted to know what kind of offer we could 

get him. So I went to work tearing the case apart to show the State to get 

him a better offer, regardless of what he potentially could get.
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So we discussed his potential range the first time I met with him, and 

the last time I met with him before we went to trial, and I told him that. 

And that was the gist of how many times we talked about what he’s looking 

at if he’s found guilty. 

The record shows that the Petitioner was arrested for the instant offense on June 

23, 2014, indicted on July 21, 2014, and convicted on January 5, 2015. In total, trial 

counsel represented the Petitioner for approximately six months. Trial counsel denied 

pressuring the Petitioner to proceed to trial. Trial counsel agreed that “he had a good 

chance of winning” based on the video not showing the drug transaction and the

informant’s lack of credibility. Finally, trial counsel said that the “standing” settlement 

offer extended by the State was “15 years at 45%,” which was based on the Petitioner’s 

prior convictions. There was no testimony regarding how the State would have treated 

the mandatory minimum nature of the drug free school zone enhancement or the fact that 

it was a non-paroleable offense.

In granting the Petitioner relief, the trial court’s order provided as follows:

In the [Petitioner’s] sixth claim, he claims that trial counsel was 

ineffective generally but particularly claims that trial [counsel] was 

ineffective in explaining sentence ramifications and giving unreasonable 

opinions concerning possible trial outcomes.

The only possible deficiency in trial counsel’s performance that 

gives the trial court concern is relative to discussions surrounding possible 

negotiated plea agreements as opposed to potential sentences upon 

conviction. This is particularly problematic when viewed with trial 

counsel’s assessment of potential success at trial.

It is unquestioned that the [Petitioner] was offered a negotiated plea 

agreement of fifteen years with a release classification status of 45%. This 

was consistent with the range notice that had been provided the [Petitioner] 

to enhance punishment. There were significant discussions between trial 

counsel and [the Petitioner] concerning his sentence with a bad trial 

outcome. Trial counsel acknowledged that he original[ly] told the 

[Petitioner] that the twenty-five year minimum sentence would be classified 

at 30%, 35%, or 45%. He testified that he told the [Petitioner] while the 

plea offer was still outstanding, that the twenty-five year sentence was to 

serve. Trial counsel did not testify, that he told the [Petitioner] he would 

have to serve 100% of this sentence. He simply testified that he told him it 

was twenty-five years to serve.
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. . . .

The court cannot speculate that the [Petitioner] understood that “25 

years to serve” means a minimum of 25 years at 100%, particularly in view 

that number and percentages had been discussed. This is of particular 

concern to the court when according to the [P]etitioner’s testimony trial 

counsel had suggested percentage of favorable outcome would be 90 to 

98%. While trial counsel did not confirm these handicapping numbers he 

did readily acknowledge that he thought they had a very good case for trial 

and had clearly communicated this in no uncertain terms to the Petitioner.

While there is no constitutional right to a negotiated plea offer, if 

one is extended then a defendant has the right to make an intelligent and 

informed decision as to whether to accept the plea offer or to reject the plea 

offer and go to trial. This court [cannot] find in good conscience that the

Petitioner made an intelligent and informed decision in rejecting the 

negotiated plea offer. The Petitioner testified that had he known that he 

could have potential[ly] received a minimum 25 year at 100% sentence that 

he would have accepted the negotiated plea offer. However, he rejected 

this plea offer based upon the assurances of trial counsel of a very high 

degree of favorable outcome at trial. Essentially the [Petitioner] was 

deprived of due process by being unable to make an intelligent and 

informed decision relative to the negotiated plea offer and possible outcome 

based upon the assurances of trial counsel.

It is from this order that the State now appeals.

ANALYSIS

In its first issue, the State argues that the post-conviction court should be reversed 

because it provided relief to the Petitioner without statutory authority. The State 

contends that the Act requires a post-conviction petition to contain every claim for relief, 

including factual grounds for each claim, and the post-conviction court must grant relief 

on the petition or dismiss it. Because the Petitioner did not include the issue upon which 

the post-conviction court granted relief in his petition for post-conviction relief, the State

claims the post-conviction court acted without authority, and therefore, the petition 

should be dismissed. In response, the Petitioner argues that the State has waived review 

of this issue for failure to object to the proof presented during the post-conviction 
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hearing.2 Even if this court determines that there was no waiver, the Petitioner contends 

that this court should reach the merits of this issue because it was fully litigated during 

the post-conviction hearing and the post-conviction court ruled on the issue. For the 

reasons that follow, we agree with the Petitioner.

The following portions of the Post-Conviction Procedure Act (the Act), govern our 

analysis. A petitioner filing for post-conviction relief must comply with the following:

(d) The petitioner shall include all claims known to the 

petitioner for granting post-conviction relief and shall verify 

under oath that all the claims are included.

(e) The petitioner shall include allegations of fact supporting 

each claim for relief set forth in the petition and allegations of 

fact explaining why each ground for relief was not previously 

presented in any earlier proceeding. The petition and any 

amended petition shall be verified under oath. Affidavits, 

records or other evidence available to the petitioner 

supporting the allegations of the petition may be attached to 

it.

Tenn. Code Ann. § 40-30-104(d), (e). Upon preliminary consideration of a petition for 

post-conviction relief, the post-conviction court must comply with the following:

(a) The trial judge to whom the case is assigned shall, within 

thirty (30) days of the filing of the original petition, or a 

petition amended in accordance with subsection (d), examine 

it together with all the files, records, transcripts, and 

correspondence relating to the judgment under attack, and 

enter an order in accordance with this section or § 40-30-107.

. . . . 

(d) The petition must contain a clear and specific statement of 

all grounds upon which relief is sought, including full 

disclosure of the factual basis of those grounds. A bare 

allegation that a constitutional right has been violated and 

 

2 Original post-conviction counsel was permitted to withdraw from representation by order of this 

court on October 25, 2017, after he submitted his responsive brief to this court. New post-conviction 

counsel was subsequently appointed and filed a supplemental brief. Our opinion utilizes the arguments 

presented in the supplemental brief by new post-conviction counsel.
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mere conclusions of law shall not be sufficient to warrant any 

further proceedings. Failure to state a factual basis for the 

grounds alleged shall result in immediate dismissal of the 

petition. If, however, the petition was filed pro se, the judge 

may enter an order stating that the petitioner must file an 

amended petition that complies with this section within 

fifteen (15) days or the petition will be dismissed.

(e) If a petition amended in accordance with subsection (d) is 

incomplete, the court shall determine whether the petitioner is 

indigent and in need of counsel. The court may appoint 

counsel and enter a preliminary order if necessary to secure 

the filing of a complete petition. Counsel may file an 

amended petition within thirty (30) days of appointment.

(f) Upon receipt of a petition in proper form, or upon receipt 

of an amended petition, the court shall examine the 

allegations of fact in the petition. If the facts alleged, taken as 

true, fail to show that the petitioner is entitled to relief or fail 

to show that the claims for relief have not been waived or 

previously determined, the petition shall be dismissed. The 

order of dismissal shall set forth the court’s conclusions of 

law.

Tenn. Code Ann. § 40-30-106(a), (d)-(f).

Rule 28 of the Rules of the Tennessee Supreme Court operates to supplement the 

remedies and procedures set forth in the Act. After a petition for post-conviction relief is 

filed with the court, the evidentiary hearing is limited to the issues raised in the petition. 

Tenn. Sup. Ct. R. 28, § 8(D)(4). Our supreme court has further provided the following in 

its post-conviction procedural rules:

If evidence is objected to on the basis that it concerns issues not 

raised in the petition or answer, the court may allow amendments and shall 

do so freely when the presentation of the merits of the cause will otherwise 

be subserved. The court shall liberally allow a continuance in the event an 

amendment is allowed to enable the objecting party to meet the evidence.

Tenn. S. Ct. R. 28, § 8(D)(5) (emphasis added); see e.g., Adams v. State, No. W2001-

02488-CCA-R3-PC, 2003 WL 103205, at *3 (Tenn. Crim. App. Jan. 9, 2003). The postconviction court may dismiss a petition for post-conviction relief without a hearing if it 
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fails to contain specific factual allegations or otherwise fails to comply with these 

procedural rules. Tenn. S. Ct. R. 28, § 8(F)(3) (emphasis added).

At the top of our analysis, we must disagree with the State’s assertion that the 

post-conviction court granted relief without any authority to do so. The Petitioner 

concedes that he did not explicitly include in his petition for post-conviction relief a 

claim of ineffective assistance of counsel based on trial counsel’s failure to properly 

advise him of his sentence or a free standing due process claim based on his rejection of a 

more favorable settlement offer from the State. However, as noted in the order of the 

post-conviction court, the Petitioner did in fact generally claim that trial counsel was 

ineffective in issue six of his petition. At the hearing, post-conviction counsel narrowed 

issue six, the ineffectiveness of counsel inquiry, to trial counsel’s failure to properly 

advise the Petitioner of his sentencing range.3 Based on our review of the record, this 

was the primary issue presented. The State did not interpose a single objection 

throughout the hearing and questioned the Petitioner and trial counsel regarding trial 

counsel’s failure to properly advise the Petitioner regarding sentencing. Rather than an 

issue of statutory construction, as the State now argues for the first time on appeal, we 

must determine whether the State properly preserved this issue because it failed to object 

during the post-conviction hearing. 

In Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn. 2005), an appeal of the denial 

of post-conviction relief, the State argued that the petitioner had waived the issue of 

improper influence on the jury due to his failure to raise it on direct appeal. In rejecting 

this argument, the Tennessee Supreme Court reasoned as follows: 

[T]he State did not assert the defense of waiver at the post-conviction 

hearing; instead, the State raises it for the first time in this Court. By doing 

so, the State has denied the petitioner an opportunity to rebut the 

presumption that this issue has been waived. See Tenn. Code Ann. § 40-

30-110(f) (2003) (providing that “[t]here is a rebuttable presumption that a 

ground for relief not raised before a court of competent jurisdiction in 

which the ground could have been presented is waived”) (emphasis in 

original). Under these circumstances, we conclude that the State’s waiver 

argument has itself been waived. Issues not addressed in the postconviction court will generally not be addressed on appeal. See Rickman v. 

State, 972 S.W.2d 687, 691 (Tenn. Crim. App. 1997); see also State v.

White, 635 S.W.2d 396, 397-98 (Tenn. 1982) (rejecting an argument 

 

3

It is obviously the better practice to explicitly amend petitions for post-conviction relief, which 

is the purpose of appointing counsel to a post-conviction petitioner. The record is silent as to why 

original post-conviction counsel failed to do so.
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presented by the State for the first time on appeal). We conclude therefore 

that the State may not properly assert the issue of waiver for the first time 

in this Court.

Walsh, 166 S.W.3d at 645-46. 

The State insists that any reliance on Walsh is misplaced because, in its view, the 

issue “is not whether the petitioner waived a claim for relief (and therefore whether the 

State could have waived its alleged waiver argument) but whether the post-conviction

court had the statutory authorization to adjudicate a claim never asserted in a petition but

constructed by the [post-conviction] court[.]” In support of its position, the State points 

to the inclusion of waiver provisions in Tennessee Code Annotated sections 40-30-

106(g), -110(f), and omission of the term “waiver” in Tennessee Code Annotated sections 

40-30-104(d)-(e), or 106(d). We agree with the State to the extent that the waiver in the 

case before us, unlike Walsh, does not involve whether the Petitioner waived a claim by 

failing to raise it in a lower court, such that it required the State to put the Petitioner on 

notice of its affirmative defense and triggered the rebuttable presumption provision of 

section 40-30-110(f). We rest our decision instead on the portion of Walsh which relies 

on the fundamental legal tenet that “‘a party may not take one position regarding an issue 

in the trial court, change his strategy or position in mid-stream, and advocate a different 

ground or reason in this Court.’” See State v. Adkisson, 899 S.W.2d 626, 635-36 (Tenn. 

Crim. App. 1994) (quoting State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App. 

1988)). 

The State’s failure to object during the hearing, and choosing to assert this issue 

for the first time on appeal, prevented the Petitioner from amending his petition, which 

the Act contemplates and liberally allows. The State’s failure to object also deprived the 

post-conviction court an opportunity to review the issue. We acknowledge the State’s 

concern with the inability to object to matters not included in the petition; however, this 

record clearly shows a prolonged period of question and answer on the issue by postconviction counsel and the State. It does not show a situation involving surprise or the 

need for the State to have additional time to respond or prepare. Finally, even if we 

reversed the judgment of the post-conviction court for failure to strictly comply with the 

Act as the State insists, our remedy, at most, would be to remand the matter for another 

hearing. Accordingly, because the State failed to object in the post-conviction court, it 

has waived its claim of procedural default in this court.

As for the remaining issues, the State essentially contends that the post-conviction 

court’s order was too ambiguous to determine its basis for relief. The State argues that 

the order could be based on a due process right to knowingly and voluntarily reject a plea 

offer, which is not a cognizable claim for relief, or the ineffective assistance of trial 
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counsel, a claim which cannot be supported because the order lacks analysis under 

Strickland. Under either interpretation, the State maintains the post-conviction court 

erred in granting the Petitioner relief. In response, the Petitioner contends, and we agree,

that “a fair reading” of the post-conviction court’s order demonstrates that it granted 

relief based on the ineffective assistance of trial counsel to properly advise the Petitioner 

of his sentence.4

We begin by recognizing the State’s concern that the order of the post-conviction 

court lacks explicit findings of fact regarding the ineffectiveness of trial counsel in failing 

to properly advise the Petitioner of his sentencing range, see Tenn. Code Ann. § 40-30-

111(b) (requiring the court to enter an order containing its findings of fact and 

conclusions of law for each ground raised by the petitioner) and Tenn. R. S. Ct. 28, § 

9(A) (stating that the order must contain specific findings of fact and conclusions of law 

for each issue raised by the petitioner). However, a review of the post-conviction hearing 

shows that the proof was substantially dedicated to this issue. Indeed, there was no 

dispute as to this issue, as both the Petitioner and trial counsel testified consistently 

regarding his erroneous sentencing advice. Moreover, the order granting post-conviction 

relief specifically refers to the ineffective assistance of trial counsel and notes: 

In the [Petitioner’s] sixth claim, he claims that trial counsel was 

ineffective generally but particularly claims that trial [counsel] was 

ineffective in explaining sentence ramifications and giving unreasonable 

opinions concerning possible trial outcomes.

The only possible deficiency in trial counsel’s performance that 

gives the trial court concern is relative to discussions surrounding possible 

negotiated plea agreements as opposed to potential sentences upon 

conviction. This is particularly problematic when viewed with trial 

counsel’s assessment of potential success at trial.

Taken in context, we do not view the later language in the order as granting relief based 

upon “an alleged Fifth Amendment due-process right to a knowing and voluntary 

rejection of the State’s plea offer[,]” as argued by the State. Accordingly, we conclude 

that the transcript of the post-conviction hearing and the order of the post-conviction 

court provide a sufficient record for our review of whether trial counsel was ineffective in 

failing to properly advise the Petitioner of his sentence. See State v. Swanson, 680 

S.W.2d 487, 489 (Tenn. Crim. App. 1984) (holding that although written findings of fact 

 

4 The Petitioner alternatively advocates for a due process right to knowingly and voluntarily reject 

a plea offer, should this court so interpret the basis of the order of the post-conviction order. Because we 

conclude that the post-conviction court properly granted relief based on the ineffective assistance of 

counsel, we need not address this issue. 
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and conclusions of law on each issue facilitate appellate review, reversal is not required 

when there is an adequate record for review). 

We now delve into the substance of the issue presented. Post-conviction relief is 

only warranted when a petitioner establishes that his or her conviction or sentence is void 

or voidable because of an abridgement of a constitutional right. Tenn. Code Ann. § 40-

30-103. The Tennessee Supreme Court has held:

A post-conviction court’s findings of fact are conclusive on appeal unless 

the evidence preponderates otherwise. When reviewing factual issues, the 

appellate court will not re-weigh or re-evaluate the evidence; moreover, 

factual questions involving the credibility of witnesses or the weight of 

their testimony are matters for the trial court to resolve. The appellate 

court’s review of a legal issue, or of a mixed question of law or fact such as 

a claim of ineffective assistance of counsel, is de novo with no presumption 

of correctness. 

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation 

marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State, 

303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of 

proving the factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-

30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 

(Tenn. 2009). Evidence is considered clear and convincing when there is no serious or 

substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316 

S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); 

Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). 

In order to prevail on an ineffective assistance of counsel claim, the petitioner 

must establish that (1) his lawyer’s performance was deficient and (2) the deficient 

performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose, 

523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)). 

A petitioner successfully demonstrates deficient performance when the petitioner 

establishes that his attorney’s conduct fell “below an objective standard of reasonableness 

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) 

(citing Strickland, 466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising 

therefrom is demonstrated once the petitioner establishes “‘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.’” Id. at 370 (quoting Strickland, 466 U.S. at 694). Moreover, 
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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.

Id. at 370 (citing Strickland, 466 U.S. at 697).

In Hill v. Lockhart, 474 U.S. 52, 58-59 (1985), the United States Supreme Court 

extended Strickland’s two-prong test to challenges of guilty pleas based on ineffective 

assistance of counsel. Hill was based on the petitioner’s acceptance of a plea offer as a 

result of trial counsel’s erroneous advice. While the first deficiency prong of Strickland

remained the same, a petitioner establishes the second prejudice prong by showing “a 

reasonable probability that, but for counsel’s errors, [the petitioner] would not have 

pleaded guilty and would have insisted on going to trial.” Id. at 59. Years later, and in 

contrast to Hill, the Supreme Court extended the right to effective assistance of counsel to 

defendants who reject plea bargains because of their lawyers’ deficient performance. 

Lafler v. Cooper, 566 U.S. 156, 160-75 (2012); Missouri v. Frye, _ U.S. _, 132 S. Ct. 

1399, 1407-09 (2012) (in the context of guilty pleas a defendant must show the outcome 

of the plea process would have been different with competent advice); accord Bush v.

State, 428 S.W.3d 1, 20 (Tenn. 2014) (citing Frye, 132 S. Ct. at 1407); Wlodarz v. State,

361 S.W.3d 490, 503-04 (Tenn. 2012); see also McMann v. Richardson, 397 U.S. 759, 

771 (1970) (“defendant [who] ... enters his plea upon the advice of counsel [entitled to] 

advice ... ‘within the range of competence demanded of attorneys in criminal cases’”). 

In Lafler v. Cooper, the defendant shot at the victim’s head and ultimately struck 

her “buttock, hip, and abdomen,” but she survived. Lafler, 566 U.S. at 161. After being 

charged with various offenses, the defendant three times rejected plea offers, “allegedly 

after his attorney convinced him that the prosecution would be unable to establish his 

intent to murder the victim because she had been shot below the waist.” Id. The 

defendant proceeded to trial, was convicted as charged, and received a sentence three and 

a half times more severe than the initial offer conveyed by the prosecution. On appeal, 

there was no dispute as to the deficiency prong of Strickland. The Court then elaborated 

on the prejudice prong of Strickland in the context of a rejected plea offer and held:

a defendant must show that but for the ineffective advice of counsel there is 

a reasonable probability that the plea offer would have been presented to 

the court (i.e., that the defendant would have accepted the plea and the 

prosecution would not have withdrawn it in light of intervening 

circumstances), that the court would have accepted its terms, and that the 
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conviction or sentence, or both, under the offer’s terms would have been 

less severe than under the judgment and sentence that in fact were imposed. 

Id. at 164.

In regard to the remedy for successful ineffective-assistance-of-counsel claims, the 

Court cautioned that 

Sixth Amendment remedies should be tailored to the injury suffered from 

the constitutional violation and should not unnecessarily infringe on 

competing interests. Thus, a remedy must “neutralize the taint” of a 

constitutional violation, while at the same time not grant a windfall to the 

defendant or needlessly squander the considerable resources the State 

properly invested in the criminal prosecution. 

Id. at 170 (internal citations and quotation marks omitted). Nevertheless, if the defendant 

establishes a successful ineffective-assistance-of-counsel claim, then it is within the trial 

court’s discretion to fashion the appropriate remedy. The Court envisioned the following 

two remedial scenarios: when the charges that would have been admitted as part of the 

plea bargain are the same as the charges the defendant was convicted of after trial, “the 

court may exercise its discretion in determining whether the defendant should receive the 

term of imprisonment the government offered in the plea, the sentence he received at 

trial, or something in between.” Id. at 171. Or, if re-sentencing alone will not be full 

redress for the constitutional injury, i.e. an offer was for a guilty plea to a count or counts 

less serious than the ones for which a defendant was convicted after trial, or if a 

mandatory sentence confines a judge’s sentencing discretion after trial, then “the proper 

exercise of discretion to remedy the constitutional injury may be to require the 

prosecution to reoffer the plea proposal[.]” Id. (internal citations omitted). Upon the 

offer’s acceptance, the court has the discretion to vacate the conviction from trial, accept 

the plea, or leave the conviction undisturbed. Id.

In applying the above law to this case, the record does not preponderate against 

the order of the post-conviction court. As to the deficiency prong, “[a] criminal 

defendant has a right to expect at least that his attorney will review the charges with him 

by explaining the elements necessary for the government to secure a conviction, discuss 

the evidence as it bears on those elements, and explain the sentencing exposure the 

defendant will face as a consequence of exercising each of the options available.” Joseph 

Lamont Johnson, Jr. v. State, No. M2012-02310-CCA-R3-PC, 2014 WL 793636, at * 8 

(Tenn. Crim. App. Feb. 27, 2014) perm. app. denied (Tenn. July 14, 2014) (finding 

deficient performance based on counsel’s failure to properly advise of potential sentence) 

(quoting Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003)). Moreover, 
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“[k]nowledge of the comparative sentence exposure between standing trial and accepting 

a plea offer will often be crucial to the decision whether to plead guilty.” United States v. 

Day, 969 F.2d 39, 43 (3d Cir. 1992) (citing Williams v. State, 326 Md. 367, 605 A.2d 

103 (1992) (counsel’s conduct was constitutionally deficient in failing to advise 

petitioner of mandatory 25-year sentence upon conviction at trial when offer to plead 

guilty to lesser offense involved exposure only to 10-year sentence) and Commonwealth 

v. Napper, 254 Pa. Super. 54, 385 A.2d 521 (1978) (counsel ineffective in giving no 

advice about desirability of plea offer with three-year maximum sentence when trial 

risked ten to forty years and defendant’s chances of acquittal were slim)). 

Here, the record shows that the Petitioner, a Range II offender, was charged with 

violating the drug free school zone law, which required a mandatory minimum 25-year

sentence with no parole. The Petitioner hired trial counsel instead of another attorney 

based on trial counsel’s advice that his potential sentence exposure was 25 years to be 

served at “30, 45%.” The Petitioner’s focus throughout the six months leading up to trial 

was on receiving a favorable settlement offer from the State. During this six-month 

period, trial counsel discussed the Petitioner’s potential sentence only twice: at the 

beginning in error and at the end prior to trial. In the interim, the Petitioner received and 

rejected settlement offers from the State believing that, at worst, his potential sentence 

would be “25 years at 30, 45%.” Despite trial counsel’s attempt to correct his erroneous 

sentencing advice at the end of his representation by replacing the percentage of service 

with the words “to serve,” trial counsel never clarified that a conviction under the drug 

free school zone law was not eligible for parole, meaning that the Petitioner would be 

required to serve 25 years’ confinement at 100%. Under these facts and circumstances, 

the Petitioner has established that trial counsel’s performance fell below an objective 

standard of reasonableness under prevailing professional norms. Accordingly, we agree 

with the post-conviction court, and conclude that trial counsel’s performance was 

deficient.

As to the prejudice prong, the Petitioner was required to demonstrate that, but for 

counsel’s deficient representation, there is a reasonable probability that (1) the Petitioner 

would have accepted the plea, (2) the prosecution would not have withdrawn the offer, 

and (3) the trial court would have accepted the terms of the offer, such that the penalty 

under its terms would have been less severe than the penalty actually imposed. While the 

details of the offer are unclear, the undisputed proof shows that the “standing” offer from 

the State to settle the matter was “15 at 45%.” The Petitioner testified that had he known 

the correct sentencing exposure upon conviction at trial was 25 years’ confinement with 

no parole, he would have accepted the State’s negotiated plea agreement. There is 

nothing in the record indicating that the State would have withdrawn the offer or was in 

any way prohibited by law from extending it. It is likewise reasonable to predict that the 

trial court would have approved the terms of the offer and accepted the Petitioner’s plea. 
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See Ebron v. Comm’r of Corr., 53 A.3d 983, 989 (Conn. 2012) (holding that in most 

jurisdictions, prosecutors and judges are familiar with the boundaries of acceptable plea 

bargains and sentences and therefore, in most instances, it is not difficult to make an 

objective assessment as to whether or not the prosecution would withdraw an offer or the 

court would accept). And finally, as to the last element of the Lafler prejudice prong, the 

Petitioner has demonstrated that the 25-year-sentence with no parole imposed after trial 

was more severe than the 15-year-offer to be served at 45% that was conveyed by the 

State. 

CONCLUSION

The Petitioner has established that, but for the ineffective advice of trial counsel, it 

is reasonably probable that he would have accepted the plea offer, such offer would have 

been submitted by the State and accepted by the court, and that his sentence would have 

been less severe than the sentence that was in fact imposed. In other words, the Petitioner 

has demonstrated that without trial counsel’s erroneous sentencing advice, the result of 

his guilty plea negotiation phase would have been different. We therefore affirm the 

judgment of the post-conviction court and remand this matter to determine the 

appropriate remedy pursuant to Lafler. 

____________________________________

 CAMILLE R. MCMULLEN, JUDGE