IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 17, 2017 Session

RANDY WAYNE BENNETT v. STATE OF TENNESSEE

Appeal from the Circuit Court for Williamson County

No. CR-160657 Joseph A. Woodruff, Judge

No. M2017-00575-CCA-R3-PC

The Petitioner, Randy Wayne Bennett, appeals from the Williamson County Circuit

Court’s denial of his petition for post-conviction relief. The Petitioner contends that the 

ineffective assistance of his trial counsel led to his rejection of a more beneficial plea 

offer from the State. Discerning no error, we affirm the judgment of the post-conviction 

court. 

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

M. Stuart Saylor, Franklin, Tennessee, for the appellant, Randy Wayne Bennett.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant 

Attorney General; Kim R. Helper, District Attorney General; and Tammy J. Rettig, 

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

OPINION

FACTUAL BACKGROUND

In September 2015, the Petitioner entered into an “open” plea agreement with the 

State. The Petitioner agreed to plead guilty to one count of delivery of less than .5 grams 

of oxymorphone and one count of failure to appear with his sentences to be determined 

by the trial court. Following a November 2015 sentencing hearing, the trial court 

determined that the Petitioner was a Range III, persistent offender with respect to the 

delivery conviction and a career offender with respect to the failure to appear conviction. 

The trial court imposed a sentence of twelve years for the delivery conviction and six 

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years for the failure to appear conviction. The trial court ordered the sentences to be 

served consecutively for a total effective sentence of eighteen years.

On October 14, 2016, the Petitioner filed a pro se petition for post-conviction 

relief, alleging that his trial counsel failed to inform him of a plea offer from the State 

that would have recommended a total effective sentence of ten years. Post-conviction 

counsel was appointed to represent the Petitioner in this matter, and an amended petition 

was filed alleging that trial counsel either advised the Petitioner to reject the State’s tenyear offer or that trial counsel failed to inform the Petitioner that ten years was the 

minimum possible sentence he could receive for the offenses to which he pled guilty. 

At the post-conviction hearing, the Petitioner testified, contrary to his pro se 

petition, that trial counsel had informed him of the State’s ten-year offer. The Petitioner 

claimed that he only met with trial counsel once prior to his guilty plea. The Petitioner 

further claimed that trial counsel did not review the applicable sentencing ranges and 

offender classifications with him and that he was unfamiliar with these concepts. The 

Petitioner also claimed that trial counsel did not show him the State’s notice of intent to 

seek an enhanced sentence based on his prior convictions and that she never reviewed his 

criminal history with him. 

The Petitioner testified that trial counsel never informed him of the possible 

minimum sentence he could receive. However, the Petitioner later claimed that trial 

counsel informed him that he could get a sentence of “six or eight or something” if he 

entered an open guilty plea. The Petitioner denied that he agreed to plead “open” in 

hopes of serving his sentence on probation or receiving some type of drug treatment. The 

Petitioner claimed that he never asked his trial counsel about an alternative sentence. 

Rather, the Petitioner insisted that he had wanted to spend a year in drug treatment and 

then serve nine years in confinement. 

The Petitioner claimed that he only accepted the open plea agreement because trial 

counsel told him that he would probably get a better sentence if a judge sentenced him. 

The Petitioner denied getting angry with trial counsel when she attempted to discuss his 

criminal history and its impact on his sentences in this case. The Petitioner admitted he 

signed a plea petition that stated his trial counsel had advised him of his possible 

punishment. However, the Petitioner stated that he did not understand the plea petition 

and that he “probably really never read” it before he signed it. 

Trial counsel testified that the State originally offered the Petitioner a twelve-year 

plea agreement and that it lowered the offer to ten years as the scheduled trial date 

approached. Trial counsel testified that she advised the Petitioner about the State’s offer 

“several times.” However, the Petitioner was “very agitated” by the State’s offers. Trial 

counsel explained that the Petitioner wanted an agreement where he would serve less 
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than a year in prison, receive “some drug treatment,” and serve the remainder of his 

sentence on probation. 

Trial counsel testified that the Petitioner originally wanted to take his case to trial, 

but that she advised him against that because he had confessed to the delivery offense. 

Rather, trial counsel advised the Petitioner to accept the State’s ten-year offer because it 

was the minimum possible sentence the Petitioner could have received. However, the 

Petitioner rejected this advice. Trial counsel reiterated that the Petitioner wanted to serve 

less than a year in confinement and that he accepted the open plea agreement in an 

attempt to get an alternative sentence. Trial counsel testified that she explained to the 

Petitioner that it was possible he could receive an alternative sentence but that it was “not 

probable with [his criminal] history.” Nevertheless, trial counsel argued for full 

probation at the sentencing hearing because the Petitioner wanted her to do so.

Trial counsel testified that it was her practice to advise her clients of “the 

minimum and maximum range” they faced and to advise them of what she thought a 

“realistic outcome” would be based upon their criminal history and other factors. Trial 

counsel testified that she had reviewed the State’s enhancement notice and that she 

discussed it with the Petitioner. Trial counsel explained that the Petitioner had a lengthy 

criminal history that included thirteen felony convictions and four misdemeanor 

convictions. However, the Petitioner became “really agitated” when trial counsel 

attempted to discuss how his criminal history would affect his potential punishment. The 

Petitioner would tell trial counsel that his criminal history did not matter because he had 

“found God” and was “a changed man.”

Trial counsel denied that she told the Petitioner he could receive a six- or eightyear sentence. Trial counsel explained that she reviewed the Petitioner’s prior offenses, 

determined his offender classifications, determined the applicable sentencing ranges, and 

came to the conclusion that the minimum sentence the Petitioner could have received was 

ten years. Trial counsel testified that she told the Petitioner the applicable sentencing 

ranges for the charged offenses and that she told the Petitioner that a ten-year sentence 

was the minimum sentence he could receive. Trial counsel admitted that while she did 

take the Petitioner’s offender classifications into account when she determined the 

applicable sentencing ranges, she forgot to tell the Petitioner what his offender 

classifications would be because the Petitioner was “just so heated in arguing” with her 

that his criminal history was not relevant.

On February 28, 2017, the post-conviction court entered a written order denying 

post-conviction relief. The post-conviction court found that the Petitioner’s testimony 

was not credible. In contrast, the post-conviction court found trial counsel to be “highly 

credible.” The post-conviction court concluded that trial counsel had not been ineffective 

in her representation of the Petitioner, that she had “repeatedly advised” him to accept the 
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State’s ten-year offer, and that the Petitioner had knowingly and voluntarily entered the 

open guilty plea in hopes of receiving an alternative sentence. This timely appeal 

followed. 

ANALYSIS

The Petitioner contends that the ineffective assistance of trial counsel caused him 

to reject the State’s more favorable ten-year offer and agree to an “open” guilty plea. The 

Petitioner’s argument on appeal is based largely on his post-conviction hearing 

testimony. The Petitioner argues that his testimony should be accredited over trial 

counsel’s because “[t]he fact that the plea bargain offer was rejected is itself the evidence 

that improper advice was given regarding the possible sentencing outcome.” The State 

responds that the Petitioner failed to establish that trial counsel performed deficiently or 

that he was prejudiced by her performance.

The burden in a post-conviction proceeding is on the petitioner to prove his 

allegations of fact supporting his grounds for relief by clear and convincing evidence. 

Tenn. Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 

2009). On appeal, we are bound by the post-conviction court’s findings of fact unless we 

conclude that the evidence in the record preponderates against those findings. Fields v.

State, 40 S.W.3d 450, 456 (Tenn. 2001). Additionally, “questions concerning the 

credibility of witnesses, the weight and value to be given their testimony, and the factual 

issues raised by the evidence are to be resolved” by the post-conviction court. Id. 

However, we review the post-conviction court’s application of the law to its factual 

findings de novo with no presumption of correctness. Id. at 457.

Post-conviction relief is available when a “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.” Tenn. Code Ann. § 40-30-103. 

Criminal defendants are constitutionally guaranteed the right to effective assistance of 

counsel. Dellinger, 279 S.W.3d at 293 (citing U.S. Const. amend. VI; Cuyler v. Sullivan, 

446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made 

under the Sixth Amendment to the United States Constitution, the burden is on the 

petitioner to show (1) that counsel’s performance was deficient and (2) that the 

deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see

Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993).

Deficient performance requires a showing that “counsel’s representation fell 

below an objective standard of reasonableness,” despite the fact that reviewing courts 

“must indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires 

proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result 
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of the proceeding would have been different.” Id. at 694. “Because 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.” Goad v. State, 938 

S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been applied to the right to 

counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772 

S.W.2d 417, 419 n.2 (Tenn. 1989).

In the context of a guilty plea, like the present case, the effective assistance of 

counsel is relevant only to the extent that it affects the voluntariness of the plea. 

Therefore, to satisfy the second prong of Strickland, the Petitioner must show that “there 

is a reasonable probability that, but for counsel’s errors, he would not have [pled] guilty” 

to the open plea agreement and would have accepted the State’s ten-year offer. Hill v.

Lockhart, 474 U.S. 52, 59 (1985); see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. 

Crim. App. 1997). 

Here, the post-conviction court accredited trial counsel’s testimony over the 

Petitioner’s. The evidence does not preponderate against this finding. The Petitioner 

initially claimed in his pro se petition that trial counsel never informed him of the State’s 

ten-year offer. At the post-conviction hearing, the Petitioner admitted that trial counsel 

had informed him of the State’s offer but claimed that trial counsel had not advised him 

of what the minimum sentence would be for the offenses. However, the Petitioner later 

claimed that trial counsel incorrectly advised him that the minimum sentence would be 

“six or eight or something.” 

In contrast, trial counsel testified that she reviewed the Petitioner’s criminal 

history, determined the applicable offender classifications, determined the applicable 

sentencing ranges, came to the conclusion that ten years was the minimum sentence the 

Petitioner could receive, and advised the Petitioner of this, except for not telling the 

Petitioner what offender classifications were applicable. Trial counsel testified that she 

advised the Petitioner to accept the State’s ten-year offer, in part because of the 

Petitioner’s lengthy criminal history, but that the Petitioner refused because he believed 

his criminal history was not relevant and he wanted to serve less than a year in 

confinement. Trial counsel then argued for a sentence of full probation at the sentencing 

hearing with the Petitioner’s approval. 

Contrary to the Petitioner’s argument, the fact that he rejected the State’s ten-year 

offer and entered an open guilty plea does not in and of itself evidence that he received 

ineffective assistance from trial counsel. Rather, the Petitioner rejected the advice of trial 

counsel in an attempt to secure an alternative sentence despite trial counsel’s advice that 

such a sentence was “not probable.” Accordingly, we conclude that the post-conviction 

court did not err in denying the petition.
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CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgment of 

the post-conviction court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE