IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 29, 2014

JOSEPH HOWARD GREEN, JR. V. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2011C2562 Cheryl A. Blackburn, Judge

No. M2014-00148-CCA-R3-PC - Filed December 22, 2014

The petitioner,Joseph Howard Green,Jr., was originally charged with second degree murder,

and he ultimately pled guilty to voluntary manslaughter, a Class C felony. He received a sixyear sentence to be served consecutively to another sentence. In this appeal, the petitioner

contends that: (1) his guilty plea was not knowingly and voluntarily made because he was

mentally ill and unmedicated at the time of his plea and because he was not made aware of

the consequences of the guilty plea; and (2) that trial counsel provided ineffective assistance

of counsel. Upon review, we affirm the judgment denying relief of the post-conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which ROGER A. PAGE

and ROBERT H. MONTGOMERY, JR., JJ., joined.

Morgan E. Smith, Nashville, Tennessee, for the appellant, Joseph Howard Green, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Senior Counsel; Victor

S. Johnson III, District Attorney General; and Bret Gunn, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

This case arose out of an altercation between the petitioner and the victim during
which the petitioner stabbed and killed the victim. Prior to the guilty plea hearing, Drs.

Kimberly Brown and Thomas Xavier interviewed the petitioner and concluded that he was

competent to stand trial. They also recommended that the petitioner continue to receive and

to comply with mental health services at the jail to maintain his competency. They further

found that an insanity defense would be unsuccessful because the evidence did not suggest

that the petitioner was experiencing a mental illness that left him unable to appreciate the

nature or wrongfulness of his actions during the incident with the victim.

At the petitioner’s guilty plea hearing, the State set forth the following facts as the

underlying basis for the petitioner’s guilty plea:

If this case had gone to trial, the State’s proof would be that on July the

8th of 2011, I think it would be undisputed, that [the petitioner] owed the

victim in this case, Mr. Robert Burris (phonetic), some money. I think it

would further be the proof that Mr. Burris wanted his money and had made

some overtures toward [the petitioner] about getting his money. That was the

situation when Mr. Burris rode by [the petitioner’s] house on July the 8th of

2011 with his cousin, a Ms. Samelta Glen (phonetic), in her vehicle. She was

driving. Mr. Burris told Ms. Glen to stop the vehicle when he saw [the

petitioner]. And, of course, he knew [the petitioner] owed him money. So he

jumped out and went over and confronted [the petitioner] about the money.

That confrontation turned into a fight. At one point Mr. Burris walked away

back to the vehicle and was fine at that point. But then there were some more

words, and Mr. Burris left the vehicle and went back and engaged with [the

petitioner] again. It was during that second time that [the petitioner] stabbed

Mr. Burris with a knife, and that ultimately caused Mr. Burris to die. This was

here on 4395 Summertime Drive. I think this occurred in front of the

[petitioner]’s house.

The petitioner told the trial court that he signed a petition to enter a plea of guilty to the

reduced charge of voluntary manslaughter and a six-year sentence. He was a Range II,

multiple offender based upon his prior felony convictions. The petitioner was serving a sixyear sentence for a probation violation at the time of the hearing, and he agreed that he

understood he would serve his sentence for voluntary manslaughter consecutively to his sixyear sentence. He asked the court if he would receive any pretrial jail credit for the voluntary

manslaughter charge, and the court informed him that he would receive pretrial credit for the

period of time from when he was arrested for second degree murder to the point when he was

served with his probation violation.

The trial court informed the petitioner that he was charged with second degree murder.

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The court explained the elements of second degree murder and told the petitioner that he

faced a potential sentence of fifteen to twenty-five years. The court then defined the

elements of voluntary manslaughter, explaining that the difference between the crimes was

that a voluntary manslaughter killing resulted from a “heat of passion.” The court explained

that as a Range II offender, the petitioner faced a sentence of six to ten years’ incarceration.

The petitioner agreed that counsel had discussed the crime for which he wasinitially charged,

the crime to which he was pleading guilty, and the respective ranges of punishment. The

petitioner agreed that he had thoroughly discussed his case with counsel and that she had

explained to him the petition to enter a plea of guilty. The petitioner also confirmed that he

understood that the conviction for voluntary manslaughter would remain permanently on his

record.

The petitioner stated that he had received his high school diploma and that he was able

to read. The petitioner stated that he normally took medication but that he was not medicated

at the time of the hearing. He recalled that he took Risperdal, Cogentin, and Zyloprim, but

he could not remember the names of all of his medications. The petitioner typically took his

medication in the evening, but he did not take it the evening prior to the guilty plea hearing

because he fell asleep early and missed “pill call.” The court asked if his lack of medication

was affecting his understanding of the proceedings, and he responded, “Not really,” and

confirmed that he was aware that he was pleading guilty to voluntary manslaughter. The

court again asked the petitioner if he was affected by his lack of medication, and he replied,

“Somewhat.” He explained that he did not believe that he should have been charged with

a crime in this case. The court interrupted the petitioner to clarify that it was not asking

whether he believed that he should not have been indicted but whether he understood the

guilty plea proceedings. The petitioner again reiterated that he was “[s]omewhat” affected

by not taking his medication, and he contended that the effect was his failure to understand

why he was being charged with a crime. The court asked if the petitioner wanted to plead

guilty and explained that by pleading guilty to voluntary manslaughter, the petitioner would

be admitting that he intentionally and knowingly killed another person but that his will was

“overborn” at the time of the killing.

After a conference between the petitioner and counsel, the trial court again defined

the elements of voluntary manslaughter. In an attempt to clarify some of the petitioner’s

confusion, the prosecutor told the court that he believed that the petitioner was trying to

communicate to the court that he felt like he acted in self-defense in killing the victim. The

prosecutor conceded that the petitioner had “a decent argument about self-defense.” As a

result, the prosecutor offered the plea agreement, which was a compromise between the

sentence the petitioner could receive at trial and a complete acquittal. The petitioner

confirmed that he believed he acted in self-defense when he expressed confusion as to why

he was charged with a crime, and he confirmed that he understood the plea agreement was

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a compromise between a guilty verdict as to second degree murder and a complete acquittal.

However, when asked a second time if he understood that the plea agreement was a

compromise, the following exchange occurred between the court and the petitioner:

Petitioner: Somewhat. But I don’t think -- I don’t --

Trial Court: Well, I mean, if you don’t want to plead guilty, that’s fine.

I’m just trying to find out that you are making this decision, this is your

voluntary choice, and that you are making this after you’ve discussed this with

everybody and you’ve chosen to do this but the fact that you haven’t taken

your medication is not affecting your decision. That’s all I’m trying to find out

so . . .

Petitioner: I understand

Trial Court: You do understand. So this is what you want to do then?

Petitioner: Ma’am?

Trial Court: Is this what you want to do? Is this your choice?

Petitioner: I’m saying it’s my choice if my lawyer is not talking --

Trial Court: No, no, no, no. she can advise you, but you ultimately have

to decide. Your trial is set in October. Do you want to take this compromise,

or do you not? She can give you all kinds of advice about what, you know,

your chances are or what the proof is and all that, but you ultimately have to

make this decision. It has to be your decision based on thorough discussion

and information. So are you choosing to plead guilty to voluntary

manslaughter? Is this your choice?

Petitioner: Yes, ma’am.

Trial Court: Okay. And you’ve discussed it with her, and she’s told you

things. But ultimately are you making this decision?

Petitioner: Yes, ma’am.

The petitioner agreed that no one had threatened or coerced him into pleading guilty. He also

agreed that he understood that he did not have to plead guilty and that he was giving up his

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right to go to trial by pleading guilty. The following exchange then occurred between the

petitioner and the court:

Trial Court: Now, have you been satisfied with the work [trial counsel]

has done on your case?

Petitioner: I think I shouldn’t have been indicted on homicide.

Trial Court: Okay. Well, that’s not her call. Do you understand that?

That’s -- the State decided to do that. That goes back to the fact of whether or

not you want to plead guilty. You don’t think that you should have been

indicted because you think you have a self-defense. Well, you were. We’re

kind of not there. So do you want to do this?

Petitioner: I guess so, yes.

The petitioner confirmed that he understood that he would have the right to an attorney at

trial. He also agreed that he was aware that counsel would cross-examine witnesses against

him at trial and that he had the right to testify but would not be required to do so. He

confirmed that he was surrendering his right to a sentencing hearing and the right to appeal

both the fact that he pled guilty and the length of his sentence. He agreed that he wanted to

plead guilty. Counsel confirmed that she thoroughly discussed the case with the petitioner

and that she believed that the petitioner understood the consequences of his guilty plea. The

petitioner agreed that the State’s recitation of the facts was an accurate recollection of the

incident that led to the victim’s death, and he responded affirmatively that he was pleading

guilty to voluntary manslaughter.

The trial court accepted the petitioner’s plea and stated, for the first time at the

proceeding, that voluntary manslaughter was a felony. The court found that there was a

factual basis to support the plea and sentenced the petitioner to a six-year sentence to be

served consecutively to his current six-year sentence.

The petitioner timely filed a pro se petition for post-conviction relief. The postconviction court appointed counsel, and the petitioner later filed an amended petition. The

post-conviction court conducted a hearing where both the petitioner and his mother testified.

At the post-conviction hearing, the petitioner testified that he was prescribed

Depakote, Risperdal, Cogentin, Trazodone, and Haldol and that he had taken Depakote the

night before the post-conviction hearing. The petitioner stated several times during the

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hearing that he believed that he was the rapper Lil Wayne and that he was married to the

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rapper Nicki Minaj. He stated that he wished trial counsel would have “[r]eally look[ed] into

the case more.” He told trial counsel about “law 46 on voluntary manslaughter[,]” a law that

said, “[I]f you use a knife in a self-defense case, a murder, they can only charge you with

assault and battery.” The petitioner was aware that trial counsel attempted to negotiate a plea

agreement with the State that called for two to three years’ imprisonment. However, the

State increased this proposed sentence to six years after discovering that he was a Range II

offender.

The petitioner was unsure whether he took his medication the night before he entered

his guilty plea. He stated that he did not want to plead guilty but did so because he was

afraid that the jury might wrongly convict him based upon his manner of speech. At the time

of his plea, the petitioner believed that he was pleading guilty to “[s]elf-defense. . . . a

misdemeanor charge.” The petitioner stated that there were two types of misdemeanors:

either an “11/29 probation misdemeanor” or a misdemeanor that imposed a sentence of three

to six years. He believed that felony convictions began with sentences that were at least

seven years in length. When asked how he misunderstood that he was pleading guilty to a

felony charge after the trial court explained that he was pleading guilty to a felony, the

petitioner replied that he “didn’t misunderstand it.” He understood voluntary manslaughter

to be a misdemeanor because he was originally indicted for second degree murder, and the

charge was later reduced. Because the charge was reduced, he believed that he would be

pleading guilty “to a misdemeanor or a lower charge.” He stated that trial counsel’s “exact

words” were that “by [the petitioner] copping out to this plea that [he] will be copping out

to a misdemeanor charge.”

On cross-examination, the petitioner agreed that he knew that he pled guilty to a sixyear sentence. The prosecutor asked if the petitioner knew that he pled guilty to the crime

of manslaughter, and the petitioner responded, “Right. Voluntary manslaughter.” The

petitioner agreed that he knew the crime to which he was pleading guilty and the sentence

he would receive, regardless of whether the crime was classified as a felony or a

misdemeanor. The petitioner also stated that trial counsel told him that he “could appeal it

within a year.” He agreed that he made the decision to plead guilty instead of proceeding to

trial, albeit “uncomfortably.” The petitioner was uncomfortable with his plea because he

would have preferred a lesser sentence, but he agreed that he still made the decision to plead

guilty.

 While these statements certainly raise a question about the petitioner’s current competency, the

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question of his competency at the post-conviction hearing is not before us, and we do not have a record

sufficient to allow us to consider it. 

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Jewel Hill, the petitioner’s mother, testified thatshe believed that “everything that was

happening to him was [her] fault from birth.” She stated that the petitioner was not “right[,]”

as he “kept saying he was God, and he was making his kids feel sad.” She said that the

petitioner went to a mental health clinic, but she later found out that he was not taking his

prescribed medications. Ms. Hill testified that the petitioner lost his job after telling coworkers that he was God, that he got them their jobs, that he was the manager, that he was

the President, and that the President was his father. She stated that she took the petitioner

to the hospital the week of the incident with the victim. Ms. Hill noted that the petitioner

“was easily persuaded when he’s not taking his medicine.”

After the hearing, the post-conviction court denied relief in a written order. The court

found that both the testimony of the petitioner and his mother confirmed that the petitioner

had mental health issues. The court noted that although the petitioner “made some confusing

and illogicalstatements” during histestimony, he reiterated multiple timesthat he understood

that he was pleading guilty to voluntary manslaughter in exchange for a six-year sentence.

The court noted that the petitioner was mistaken about his belief that voluntary manslaughter

was a misdemeanor but chose to plead guilty because he was concerned that he would be

convicted at trial. The court found that the petitioner did not present any evidence that trial

counsel was ineffective or that any deficiency by trial counsel prejudiced the petitioner, and

the court denied his ineffective assistance of counsel claims.

The court found that the petitioner’s testimony at the post-conviction hearing

contradicted his claim that his guilty plea was not knowing or voluntary due to mental illness.

The court found that the petitioner was confused about the classification of misdemeanors

and felonies but noted that he stated several times that he understood that he was pleading

guilty to the lesser-included offense of voluntary manslaughter for a sentence of six years.

The court noted that the petitioner did not believe that he was guilty of a crime but that he

agreed to plead guilty to avoid receiving a longer sentence as a result of a guilty verdict at

trial.

The court also found that the transcript of the guilty plea hearing supported a finding

that the petitioner’s plea was knowing and voluntary. The court noted that the petitioner

“was more lucid during his plea hearing [than at the post-conviction hearing.]” The court

found that the petitioner was engaged in the plea colloquy and provided appropriate

responses that were not merely “Yes” or “No” answers. The petitioner asked about receiving

pretrial jail credit based upon the sentence he was currently serving and asked a question

about how his prior conviction would affect the manner of his sentences. The court noted

that the petitioner successfully recalled the medications that he was taking and was able to

tell the court when he took his medication. The court observed that the petitioner was able

to discuss that his medication did not affect his decision making but that he did not

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understand the reason he was charged with second degree murder, as the petitioner believed

that the crime was justified. The court found that the record of the guilty plea hearing

indicated that the petitioner understood the consequences of his guilty plea and as a result

that his plea was knowingly and voluntarily entered.

After the trial court denied his petition, the petitioner timely filed his notice of appeal.

We now proceed to consider his claims.

ANALYSIS

I. Knowing and Voluntary Guilty Plea

The petitioner arguesthat his guilty plea was not knowing and voluntary. Specifically,

he contends that his unmedicated mental illness made him incapable of knowingly and

voluntarily pleading guilty, and his plea was not knowing and voluntary because he was not

made aware of the consequences of the plea.

To obtain post-conviction relief, the petitioner must demonstrate that “the conviction

or sentence is void or voidable because of the abridgment of any right guaranteed by the

Constitution of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103

(2012). The petitioner bears the burden of proving the allegations of fact giving rise to the

claim by clear and convincing evidence. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn.

2009). “‘Evidence is clear and convincing when there is no serious or substantial doubt

about the correctness of the conclusions drawn from the evidence.’” Grindstaff v. State, 297

S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.

App. 1998)).

A guilty plea is constitutional only when it is entered into knowingly, intelligently, and

voluntarily. Boykin v. Alabama, 395 U.S. 238, 242 (1969). A plea is involuntary “if it is the

product of ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or

blatant threats.’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin,

395 U.S. at 242-43). In evaluating whether a guilty plea was knowingly and voluntarily

entered, “[t]he standard was and remains whether the plea represents a voluntary and

intelligent choice among the alternative courses of action open to the defendant.” North

Carolina v. Alford, 400 U.S. 25, 31 (1970). A reviewing court must make this determination

“based upon the totality of the circumstances.” State v. Turner, 919 S.W.2d 346, 353 (Tenn.

Crim. App. 1996). A court charged with determining the nature of a guilty plea:

must look to various circumstantial factors, such as the relative intelligence of

the defendant; the degree of his familiarity with criminal proceedings; whether

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he was represented by competent counsel and had the opportunity to confer

with counsel about the options available to him; the extent of advice from

counsel and the court concerning the charges against him; and the reasons for

his decision to plead guilty, including a desire to avoid a greater penalty that

might result from a jury trial.

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

A. Mental Illness

The petitioner contends that his guilty plea was invalid because he suffers from a

mental illness and had not taken his medication at the time he entered his guilty plea. The

post-conviction court found that the petitioner’s testimony at the post-conviction hearing

contradicted his claim that his plea was not knowing and voluntary. Although he was

confused about the classification of misdemeanors and felonies, he repeatedly confirmed that

he knew that he was pleading guilty to the charge of voluntary manslaughter in exchange for

a six-year sentence. He also articulated the reason that he wished to avoid a trial, where he

faced a twenty-five-year sentence if convicted. He testified that he was uncomfortable

pleading guilty due to his desire for a shorter sentence, but he agreed that he overcame this

discomfort and made the decision to plead guilty. Further, as the post-conviction court

observed, the transcript of the petitioner’s guilty plea also demonstrated that his plea was

knowing and voluntary. During the plea colloquy, he was engaged with the trial court,

asking questions of the trial court about pre-trial jail credit and appropriately answering the

trial court’s questions. The record reflects that the petitioner’s confusion at the proceeding

seemed to stem not from a failure to understand his guilty plea due to his lack of medication

but rather from his belief that he should not have ever been indicted. However, as the trial

court explained, the petitioner’s belief that he should not have been charged was not relevant

to the proceedings; the only relevant inquiry was whether the petitioner wished to enter a plea

of guilty. After the trial court provided this explanation, the petitioner stated that he wished

to plead guilty.

Further, the only medical evidence introduced at the post-conviction hearing regarding

the petitioner’s mental health condition was Dr. Brown’s recommendation that the petitioner

“continue to receive and be compliant with mental health services in jail to maintain

competency.” Although this recommendation, along with the testimony of the petitioner and

his mother, reflects that the petitioner suffers from a mental illness, the petitioner presented

no medical testimony regarding the effect that a failure to take his medications would have

on him. “[T]his Court has, on multiple occasions, held that a petitioner’s bare allegations,

unsupported by medical testimony, about the use of psychiatric drugs was insufficient to

support a claim that his plea was not knowingly and voluntarily entered.” Darrell Wayne

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Bumpas v. State, No. M2010-00222-CCA-R3-PC, 2010 WL 5140673, at *8 (Tenn. Crim.

App. Dec. 14, 2010) (citations omitted). In denying post-conviction relief, the postconviction court implicitly found that the petitioner did not establish by clear and convincing

evidence that a failure to take his medication affected his ability to enter a knowing and

voluntary plea, and the evidence does not preponderate against this finding. Accordingly,

we conclude that the petitioner has not met his burden of proving that his guilty plea was not

knowing and voluntary.

B. Consequences of the Plea

The petitioner also contends that his plea was not knowing and voluntary because he

was not aware that voluntary manslaughter was a felony. In order for a guilty plea to be

voluntary, a defendant must be made aware of the consequences of the guilty plea. State v.

Mackey, 553 S.W.2d 337, 340 (Tenn. 1977); see also State v. Pettus, 986 S.W.2d 540, 542

(Tenn. 1999). In addition to the requirements of Boykin that a defendant be informed that

a guilty plea waives the privilege against self-incrimination, the right to a jury trial, and the

right to confront one’s accusers, Tennessee Rule of Criminal Procedure 11(b)(1) provides

additional information about which a trial court must question the defendant, including

whether the defendant understands “the nature of the charge to which the plea is offered[.]”

Tenn. R. Crim. P. 11(b)(1)(A); Howell v. State, 185 S.W.3d 319, 331 (Tenn. 2006).

However, only substantial, rather than literal, compliance with the advice in Tennessee Rule

of Criminal Procedure 11(b)(1) is required. Howell, 185 S.W.3d at 331. “A trial court

substantially complies with these mandates when it expresses the sense of the substance of

the required advice to a defendant who is seeking to plead guilty.” Id.

Here, the petitioner correctly points out that the trial court did not affirmatively state

that voluntary manslaughter was a Class C felony until after the petitioner entered his guilty

plea. However, the trial court explained the elements that constituted the offense of

voluntary manslaughter, the sentence that the petitioner would receive as a result of his guilty

plea, and the fact that the conviction would remain permanently on his record, which is one

of the consequences of pleading guilty to a felony. The petitioner did not respond to the trial

court’s statement that he was pleading guilty to a felony by expressing surprise or

communicating his understanding that the crime was a misdemeanor. Furthermore, the

petition to enter a plea of guilty stated that voluntary manslaughter was a Class C felony, and

the petitioner’ssignature was on this document. See Linda Blair v. State, No. W2010-00627-

CCA-R3-PC, 2010 WL 4812768, at *4 (Tenn. Crim. App. Nov. 18, 2010) (concluding that

the petitioner’s signature on a judgment sheet that indicated that TennCare fraud was a Class

E felony could be considered as proof that the petitioner was aware that the consequence of

her guilty plea would be a felony conviction). The petitioner, who had prior felony

convictions, was familiar with the criminal justice system. By denying the petition, the post10
conviction court implicitly chose not to credit the testimony of the petitioner that he believed

that voluntary manslaughter was a misdemeanor. We conclude that the record does not

preponderate against the post-conviction court’s finding that the petitioner was aware of the

consequences of his guilty plea. Accordingly, the petitioner is not entitled to any relief as to

this claim.

II. Ineffective Assistance of Counsel

The petitioner argues that trial counsel provided ineffective assistance of counsel.

Specifically, he contends that counsel was ineffective for failing to investigate the

petitioner’s competency at the time of his guilty plea, failing to properly articulate to the

petitioner that voluntary manslaughter was a felony, and for informing the petitioner that he

had one year to file an appeal.

Both the Sixth Amendment to the United States Constitution and article I, section 9

of the Tennessee Constitution guarantee the right to counsel. This right affords an individual

representation that is “within the range of competence demanded of attorneys in criminal

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Counsel is ineffective when

“counsel’s conduct so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466

U.S. 668, 686 (1984).

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

prove by clear and convincing evidence that: (1) counsel’s performance was deficient; and

(2) the deficiency prejudiced the petitioner to the degree that the petitioner did not receive

a fair trial. Strickland, 466 U.S. at 687. A petitioner satisfies the deficiency prong of the

test by showing that counsel’s representation fell below an objective standard of

reasonableness; that is, “the services rendered or the advice given must have been below ‘the

range of competence demanded of attorneys in criminal cases.’” Grindstaff, 297 S.W.3d at

216 (quoting Baxter, 523 S.W.2d at 936); see Strickland, 466 U.S. at 687. The petitioner

must demonstrate that “counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at

687. Courts evaluating the performance of an attorney “should indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance.”

State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). In order to fairly assess counsel’s conduct,

every effort must be made “to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689. “The fact that a particular strategy or

tactic failed or hurt the defense, does not, standing alone, establish unreasonable

representation.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).

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Prejudice requires the petitioner to show “that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. In order to establish prejudice in the context

of a guilty plea, the petitioner must demonstrate that “counsel’s constitutionally ineffective

performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59

(1985). This requires a showing of “a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on going to trial.” Id. If the

petitioner fails to establish either deficiency or prejudice, post-conviction relief is not

appropriate, and this court need not address both components if the petitioner makes an

insufficient showing as to one component. Grindstaff, 297 S.W.3d at 216 (citing Goad, 938

S.W.2d at 370).

The post-conviction court found that the petitioner did not present any evidence that

trial counsel was ineffective or that he was prejudiced by any alleged deficiency. The

petitioner was deemed competent to stand trial and, as we concluded above, entered a

knowing and voluntary guilty plea. Although the petitioner claimed at the post-conviction

hearing that trial counsel informed him that voluntary manslaughter was a misdemeanor, he

confirmed several times that he knew that he was pleading guilty to the charge of voluntary

manslaughter in exchange for a six-year sentence. He also agreed that he pled guilty because

he was concerned that he would be convicted at trial. He stated at the guilty plea hearing that

he understood that he was waiving his right to appeal by pleading guilty. We note that trial

counsel did not testify at the post-conviction hearing, and this court has “observed on many

occasions that original counsel, when available, should always testify in a post-conviction

proceeding when there is an allegation that [she] was ineffective.” State v. Hopson, 589

S.W.2d 952, 954 (Tenn. Crim. App. 1979). However, even if we were to assume that trial

counsel’s performance was in some way deficient, we conclude that the petitioner has not

met his burden of proving that but for trial counsel’s errors, he would not have pled guilty

and instead proceeded to trial. The petitioner is not entitled to any relief as to this claim.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the post-conviction court.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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