IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 2, 2001

TIMOTHY POTTS v. STATE OF TENNESSEE

 Appeal from the Circuit Court for Madison County

No. C-00-308 Roger A. Page, Judge

No. W2001-00400-CCA-R3-PC - January 23, 2002

The petitioner, Timothy Potts, pled guilty to second degree murder, a Class A felony, and was

sentenced as a Range II, multiple offender to thirty-five years in the Tennessee Department of

Correction. He appeals the trial court’s denial of his petition for post-conviction relief, claiming (1)

that his guilty plea was not knowingly, voluntarily, and intelligently made because he did not

understand that he was pleading guilty as a Range II offender and (2) that he received the ineffective

assistance of counsel. We affirm the trial court’s denial of the petition.

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

JOSEPH M.TIPTON,J., delivered the opinion of the court, in which GARY R.WADE,P.J., and ROBERT

W. WEDEMEYER, J., joined.

Scott G. Kirk, Jackson, Tennessee, for the appellant, Timothy Potts.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney

General; James G. Woodall, District Attorney General; and Alfred Lynn Earls and James W.

Thompson, Assistant District Attorneys General, for the appellee, State of Tennessee. 

OPINION

The petitioner’s underlying conviction relates to the murder of Howard G. Bates, a cab

driver. The record reflects that the petitioner shot the victim in the back of the head at point blank

range, killing him instantly. At the post-conviction hearing, the petitioner testified that he was

originally charged with first degree murder. He said that he did not have a prior criminal record. 

He said that he pled guilty to second degree murder and that the trial court sentenced him as a Range

II offender to thirty-five years. He acknowledged that his trial attorney told him that a second degree

murder conviction carried a thirty-five-year prison sentence. He also acknowledged that the state

explained to him at the guilty plea hearing that he was pleading guilty to second degree murder and

that he would receive a thirty-five-year sentence. However, when the petitioner’s post-conviction

attorney asked him if he understood that by pleading guilty he was agreeing to be sentenced as a

Range II offender instead of a Range I offender, the petitioner testified, “I ain’t pay no attention to
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that.” The petitioner said that his trial attorney advised him to plead guilty. He said that when he

pled guilty, he knew that if he did not accept the state’s plea offer he could have been convicted of

first degree murder and could have received a life sentence. 

The petitioner testified that he did not give a statement to the police when he was arrested.

He said that an investigator presented three written statements “out of nowhere” that the petitioner

allegedly gave to the police. He acknowledged that the state intended to use the statements against

him at trial. He said that the statements were not written in his handwriting and that he told his trial

attorney that he did not give the statements to the police. He said that despite what he said, his

attorney did not file a motion to suppress the statements. He said that he asked his trial attorney to

have a handwriting expert analyze the statements but that his trial attorney never hired a handwriting

expert. He said that at his preliminary hearing, the state produced an eyewitness but that the

eyewitness could not “pinpoint” the petitioner as the person who shot the victim. He said that based

on what he had learned about his case since pleading guilty, he would have gone to trial. He said

he should have been sentenced as a Range I offender instead of a Range II offender.

On cross-examination, the petitioner testified that his trial attorney did not explain his guilty

plea to him and did not tell him that the trial court was going to sentence him as a Range II offender.

He acknowledged signing a written plea agreement that stated, in bold type and uppercase letters,

“I fully understand that as part of this negotiated plea . . . the thirty-five (35) year sentence which

I am accepting, is outside the range of punishment for a range I offender, which I would be classified

as, notwithstanding the negotiation of this plea.” However, he said that he never read the written

agreement and that his attorney never read it to him. He admitted that he knew how to read when

he signed the written plea agreement, but he asserted that his trial attorney “just told me to sign it

and I signed.” The petitioner acknowledged that when he pled guilty, he knew that he was agreeing

to be sentenced as a Range II offender. He also acknowledged that he knew what he was doing when

he pled guilty.

The petitioner testified that his preliminary hearing attorney, who was not his trial attorney,

tried to have his three written statements suppressed but was unsuccessful. The state then asked the

defendant “if the State were to offer you a twenty-five year sentence as a range one on second degree

murder would you take it today?” The petitioner answered, “Yes, sir.” The state then asked, “So

you don’t want a jury trial, you want a guilty plea?” Again, the petitioner answered, “Yes, sir.”

The defendant’s trial attorney testified that at the time of the post-conviction hearing, he had

been licensed to practice law for nineteen years. He said that he discovered several problems for the

petitioner’s defense. First, he said that the petitioner had given three inconsistent statements to the

police about the crime. Second, he said that a man by the name of “Washington” had agreed to

testify against the petitioner about statements the petitioner made while the petitioner and Mr.

Washington were being held in the Madison County Justice Complex. Finally, he said that several

eyewitnesses to the crime positively identified the petitioner. The petitioner’s trial attorney said that

he discussed every aspect of the case with the petitioner, including the likelihood that the petitioner

would be convicted at trial and receive a life sentence for first degree murder. He said that at one

point, he and the petitioner were prepared to go to trial but that the case was continued. He said that
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after a lengthy negotiation, the state agreed to let the petitioner plead guilty to second degree murder

and be sentenced as a Range II offender.

The petitioner’s trial attorney testified that he read the plea agreement to the petitioner

verbatim. He said that the petitioner had about two and one-half days to decide whether he wanted

to accept the plea. He said that an artist’s drawing of the shooter resembled the petitioner’s first

cousin and that the petitioner had the option to go to trial and argue that his cousin shot the victim.

He said that the petitioner did not want to argue that his cousin murdered the victim and that the

petitioner decided to plead guilty. He said that had the petitioner gone to trial, he was prepared to

impeach Mr. Washington.

The petitioner’s trial attorney testified that he had part of the written plea agreement typed

in bold print in order for the petitioner to understand fully that he was pleading outside of his range.

He said that it was not standard procedure to put parts of written plea agreements in bold type but

that he did so specially for this case. He said that he gave the petitioner a copy of every document

he received in the case, including impeachment evidence against Mr. Washington. He said that the

petitioner never asked him to do anything about the three statements that the petitioner gave to the

police and that the petitioner never indicated that the police coerced the petitioner into giving the

statements. He said that the petitioner never denied making the statements and that the petitioner

never asked him to have a handwriting expert examine the statements. He said that he could not

think of anything that he would have done differently in the case and that he still thought the

petitioner did the right thing by accepting the state’s plea offer.

The state introduced into evidence a transcript of the petitioner’s guilty plea hearing. In that

hearing, the following exchange occurred:

THE COURT: You’ve gone over [the plea agreement] with

your attorney. And at this point, at least, you understand what you’re

doing this morning?

DEFENDANT: Yes, sir.

 . . . . 

[THE STATE]: . . . . Second degree murder is a Class A

felony and carries a range of punishment from fifteen (15) to sixty

(60) years. Pursuant to our agreement, Mr. Potts is pleading outside

of his regular range, which would be Range I, into Range II. The

actual range for Range II -- Let me look at it to be sure -- is twentyfive (25) to forty (40) years.

Mr. Potts is actually a standard Range I offender and that

range would be fifteen (15) to twenty-five (25). But pursuant to our

agreement -- Of course, he’s faced with a charge of first degree
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murder, which carries a possible life sentence which would be fiftyone (51) years or a possible life without parole. And the State has

filed to seek life without parole in this case.

So, he’s pleading outside his range as a Range II offender and

the agreement was thirty-five (35) years, so that falls within Range II.

I want to make that clear.

THE COURT: Mr. Potts, you’ve heard [the state] go over the

offense to which you’re pleading and the range of punishment for it.

Do you have any questions at all about that?

DEFENDANT: No, sir.

THE COURT: Do you understand that you’re pleading

outside your range, which you are allowed to do under our law; do

you understand that?

DEFENDANT: Yes, sir.

THE COURT: Do you have any questions about that part of

it?

DEFENDANT: No, sir.

. . . . 

THE COURT: Is your plea being entered freely and

voluntarily?

DEFENDANT: Yes, sir.

THE COURT: Has any threat been made or promise made

toward you or anything to cause you to plead guilty other than your

plea bargain agreement?

DEFENDANT: No, sir.

THE COURT: You are pleading guilty because you think

that’s the best course for you under all the circumstances and because

you are guilty; is that correct?

DEFENDANT: Yes, sir.
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THE COURT: Are you satisfied with the representation

provided by your attorney . . . ?

DEFENDANT: Yes, sir.

. . . .

The trial court denied the post-conviction petition, finding that the petitioner voluntarily and

understandingly entered his plea and that he did not receive the ineffective assistance of counsel.

The trial court noted that the state, the trial court, and the petitioner’s trial attorney explained to the

petitioner that he was pleading outside of his range. In addition, the written plea agreement that the

petitioner signed stated that fact in bold type. As for the petitioner’s claim that he received the

ineffective assistance of counsel, the trial court believed the trial attorney’s testimony over that of

the petitioner. In addition, it found that trial counsel’s representation of the petitioner was

“exceptional” and met the standard for the effective assistance of counsel.

In order for a petitioner to succeed on a post-conviction claim, the petitioner must show the

allegations set forth in his petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-

210(f). A trial court’s findings of fact in a post-conviction hearing are conclusive on appeal unless

the evidence in the record preponderates against those findings. See Butler v. State, 789 S.W.2d

898, 899 (Tenn. 1990). This court may not reweigh or reevaluate the evidence, nor substitute its

inferences for those drawn by the trial court. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).

Questions concerning the credibility of witnesses and the weight and value to be given to their

testimony are resolved by the trial court, not this court. Id. Post-conviction relief may only be given

if a conviction or sentence is void or voidable because of a violation of a constitutional right. Tenn.

Code Ann. § 40-30-203. 

I. KNOWING, VOLUNTARY, AND INTELLIGENT GUILTY PLEA

The petitioner contends that he did not knowingly, voluntarily, and intelligently enter his

guilty plea because he did not understand that he was being sentenced as a Range II offender instead

of a Range I offender. The state argues that the petitioner made his plea knowingly, voluntarily, and

intelligently. We agree with the state.

In order for a conviction based upon a guilty plea to comport with due process, the plea must

be voluntarily, knowingly, and understandingly entered. Boykin v. Alabama, 395 U.S. 238, 242-44,

89 S. Ct. 1709, 1712 (1969). A guilty plea is not voluntary “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, 89 S. Ct. at 1712).

The standard for assessing the validity of a guilty plea is “‘whether the plea represents a voluntary

and intelligent choice among the alternative courses of action open to the defendant.’” Id. (quoting

North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970)). “[T]he record of acceptance

of a defendant's plea of guilty must affirmatively demonstrate that his decision was both voluntary

and knowledgeable, i. e., that he has been made aware of the significant consequences of such a plea;
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otherwise, it will not amount to an ‘intentional abandonment of a known right.’” Mackey, 553

S.W.2d 337, 340 (Tenn. 1977). To assess whether a petitioner entered a knowing, voluntary, and

intelligent guilty plea, this court must consider the totality of the circumstances. State v. Turner, 919

S.W.2d 346, 353 (Tenn. Crim. App. 1995). 

Initially, we note that a defendant may be sentenced outside of his range pursuant to a guilty

plea. See Hicks v. State, 945 S.W.2d 706 (Tenn. 1997). In this case, the petitioner’s trial attorney

testified that he went over the proposed guilty plea with the petitioner verbatim. In addition, the

guilty plea hearing transcript shows that the state explained that the petitioner was being sentenced

as a Range II offender. The transcript also shows that the trial court told the petitioner that he was

being sentenced outside of his range and the trial court asked the petitioner if he understood or had

any questions about it. At no time did the petitioner indicate that he was confused or did not

understand that he was being sentenced as a Range II offender. Even more telling is the fact that the

petitioner admitted on cross-examination at the post-conviction hearing that he knew he was being

sentenced as a Range II offender. Based on the totality of the circumstances, we believe that the trial

court properly found that the petitioner entered his guilty plea knowingly, voluntarily, and

intelligently.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Next, the petitioner argues that he received the ineffective assistance of counsel. The state

contends that trial counsel’s performance was not ineffective. We agree with the state.

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the

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

deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial

was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). 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).

When a petitioner claims that ineffective assistance of counsel resulted in a guilty plea, the petitioner

must prove that counsel performed deficiently and that but for counsel’s errors, the petitioner would

not have pled guilty and would have insisted upon going to trial. Hill v. Lockhart, 474 U.S. 52, 59,

106 S. Ct. 366, 370 (1985).

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were within the

range of competence demanded of attorneys in criminal cases. Further, the court stated that the

range of competence was to be measured by the duties and criteria set forth in Beasley v. United

States, 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04

(D.C. Cir. 1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance

requires that every effort 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
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perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982).

As previously noted, the burden is on the petitioner to prove his grounds for relief by clear

and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, we are bound by the trial

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). We review the trial court's

conclusions of law under a purely de novo standard. Id. at 457.

A. Failure to Inform as to Range II Offender

First, the petitioner contends that he received the ineffective assistance of counsel because

his trial attorney never told him that he would be sentenced as a Range II offender. However, the

petitioner’s trial attorney testified that he went over the plea agreement with the petitioner verbatim,

and the trial court found that the attorney’s testimony was credible. Moreover, the petitioner signed

a written plea agreement which stated that the petitioner was accepting a thirty-five-year sentence

and that the sentence was outside the range of punishment for a Range I, standard offender. This

language appeared in bold type, uppercase letters, and just above the petitioner’s signature line. We

also note that the transcript of the post-conviction hearing shows that the following exchange

occurred between the petitioner and the state:

[THE STATE]: When [the state] told you [at the guilty plea

hearing that] you were pleading to a range two when you were really

a range one, you didn’t have any questions then, did you?

[PETITIONER]: No, sir.

[THE STATE]: You knew you were pleading to -- outside

your range, didn’t you?

[PETITIONER]: Yes, sir.

[THE STATE]: You were told?

[PETITIONER]: Not by [my trial attorney].

[THE STATE]: Oh, but you still knew.

[PETITIONER]: I told him my lawyer he told me -- I agreed

what my lawyer told me to do.

[THE STATE]: My question to you is at the time you pled

guilty you knew [what] you were doing?
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[PETITIONER]: Yes, sir.

[THE STATE]: Your only complaint is who the source of the

information was; is that right?

[PETITIONER]: Yes, sir.

We believe that the petitioner’s testimony at the post-conviction hearing shows that when

he pled guilty, he knew that he was being sentenced outside of his range. Therefore, even assuming

arguendo that the petitioner’s trial attorney did not explain to the petitioner that he was going to be

sentenced as a Range II offender, the petitioner has not shown how he was prejudiced by his trial

attorney’s deficient performance. Thus, he is not entitled to relief.

B. Failure to File a Motion to Suppress

Next, the petitioner contends that he received the ineffective assistance of counsel because

his trial attorney failed to file a motion to suppress three statements that the petitioner gave to the

police. However, we believe that the defendant has failed to show that he is entitled to relief on this

issue.

This court has stated that if arguable grounds exist to suppress incriminating evidence, then

an attorney, as a zealous advocate for the client, should move to suppress that evidence. SeeRobert

C. Bellafant v. State, No. 01C01-9705-CC-00183, Maury County, slip op. at 10 (Tenn. Crim. App.

May 15, 1998). The petitioner’s trial attorney testified that the petitioner never told him that the

petitioner did not make the statements. Furthermore, the petitioner’s trial attorney testified that the

petitioner never indicated that the police coerced or harassed the petitioner into giving the

statements. We note that the petitioner did not claim at the post-conviction hearing that the police

obtained the statements in violation of his constitutional rights. 

In order to succeed on this issue, the petitioner would have to demonstrate that counsel’s

failure to file a motion to suppress the statements not only was deficient performance but that he was

prejudiced by the deficiency. In order to demonstrate prejudice, the petitioner would have to prove

that his statements were inadmissible. The petitioner has offered no such proof, and we find nothing

in the record to indicate that the petitioner’s statements were inadmissible. Therefore, he is not

entitled to relief.

Based upon the foregoing and the record as a whole, we affirm the judgment of the trial

court.

_________________________________ 

JOSEPH M. TIPTON, JUDGE