### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

RANDY HAYES v. STATE O F TENNESSEE

Direct Appeal from the Criminal Court for Fentress County

No. 7509 Lee Asbury, Judge

No. M1999-00285-CCA-R3-PC - Decided May 5, 2000

This appeal arises from a guilty plea by the petitioner on two counts of kidnapping. Pursuant to the plea agreement with the State, the petitioner was sentenced to two concurrent twelve-year sentences

on September 19, 1996 . On February 28, 1 997, th e petitioner filed a post-conviction petition alleging ineffective assistance of counsel and prosecuto rial misconduct. Following a hearing on May 15, 1998, the trial court

denied and dismissed the petition on May 22, 1998. After a careful review of the record, we affirm the trial court's dismissal of the petitioner's petition.

Tenn. R. App. P. 3; Judgm ent of the Crimina

l Court is Affirme

d.

G LENN , J., delivered the opinion of the court, in which R ILEY , J., and W ITT , J., joined.

Gregory D. Smith (on appeal), Clarksville, Tennessee, and Charles Allen , Assistant Public

Defender (at trial and on a

ppeal), Oneida,

Tennessee, for

the appellant, Ra

ndy Hayes.

Paul G. Summe

rs, Attorn ey General and R eporter, Lucia

n D. Geise, Assista

nt Attorney Gener

al, William Paul Phillips, District Attorney General, and John W. Galloway, Jr., A ssist ant District Attorney General, for the appellee, State of Tennessee.

OPINION

On May 14, 1996, the Fentre ss County Grand Jury indicted the petitioner, Randy Hayes, for two counts of especially aggravated kidnapping and, alternatively, two counts of aggrava t ed kidnapping. On September 19, 1996, the petitioner pled guilty to two counts of kidnapping and was sentenced to two concurrent

twelv e-year sentences. On February 28, 1997, the petitioner filed a petition for post-conviction relief, alleging ineffective assistance of trial counsel and prosecutorial misconduct. A hearing on the petition was held on May 15, 1998, and the trial court dismissed the petition on May 22, 1998. T he p etitioner appealed to this court on a single issue: whether trial counsel was ineffective by rendering improper advice, performing an inadequate investigation, and by coercing the petitioner into pleading guilty. After a careful review of the record, we affirm the trial court’s dismissal of the petitioner’s post-conviction petition.-2- FACTS

At the plea proceedings on September 19, 1996, the petitioner stipulated that, on or abou t January 30, 1996, he knowingly kidnapped the victim on two separate occasions by means of force

a nd threat, the second occasion occurring after the victim escaped from the first kidnapping. Th e State and the petitioner stipulated that the testimony of the witnesses would have been a s follows:

The victim, who had been divorced from the petitioner approximately a week b efore the incident, would have testifi ed that the petiti

on er came to her place of employment in Jamestown around7:00 p.m. on January 29, 1996, and grabbed her by the collar as she was going out the door. He took her to a back

room, where he st

r u ggled with her and threatened to kill her with a pair of scissors. When she sprayed him with pepper spray, he became enraged and began hitting her in the chest and head. He knocked her down, put his knee in her chest, and continued h it ting her in the head. The struggle cont

inued into the bathr

oom, where the pe

titioner washed ou

t his eyes while still holding the victim by the collar. He then dragged her into another area and bound her head an d mouth with tape. As he drove the vic tim away in

her white Monte Carlo, he threatened to stab her withthe scissors if she screamed or drew attention to herself. Th e victim described the route that the petitioner drove from Fentress County into Morgan County. As he drove to an area in Morgan County with a pond, he continued his threats to kill the victim for leaving him for another man. The petitioner stopped the car

and shoved the victim onto the hood as she was fighting back. He tore the tape off her head

and mouth

and shoved her into the front seat of the car. He ordered her to take off her clot hes as he poin

ted the scissors at her neck. The victim was cut when she reached for the scissors. The peti

tioner took off his

clothes and vagin

ally raped the vic

tim.

The petitioner then dr

ove the victim

back toward Jamestown

and stopped at Mitchell’s True Test Gas Station in Fentress County to buy gas. While there, he talked to the atten dant. The victim

ran from the car yelling that she had been raped and for someone to call the police. Gary Jennings was inside the gas station. The petitioner grabbed the victim and dragged her back to the car. He told her he would haveto kill her and himself, because she had involved the police. According to the victim, the attendant and Gary Jennings did nothing to stop the petitioner.

He drove the vict

im back to the pond a

rea in Morgan County, where he again beat her and raped her anally and va

ginally in the front seat of the car. The victim talked to the petitioner for a while, but he was still threatening to kill her. She laid with the petitioner in the car and fell asleep. When she awoke around 5:30 a. m., the petitioner was calmer but raped the victim again in the backseat. She did not resist this time. As they drove back, the victim tossed the scissors out of the

car window n ear a green house with a carport. The petitioner stopped in front of Choates TV o n Rugby Avenue and told the victim he would see

her at 7:0 0 p.m. and t hreatened to kill her again. The petitioner got

out of the victim’s c

ar and walked do

wn Wright Street. T

he victim went to

her place of employme

nt and called the s

heriff’s depar

tment.

The testi mony f

rom Danny Stephens, a True Test Gas Station employee, would have substantiated the victim’s account of the events at the gas station. Ste

phens wrote down t

he license plate number of the vict

im’s white Monte Car

lo that was driven by the petitioner and called the-3-

police. Pieces of

the office door lock that the petitioner broke while retaking the victim were given to the sheriff’s department. Stephens knew the petitioner as a customer before this incident.

D r. Jonathan Allred, who examined and treated the victim at the Fentress County Genera l Hospital, would have testified from his medical report showing injuries to the victim, including an abrasion on her thumb that the victim attributed to

the scissors. Dr. Allred performed rape protocol and the procedure f

or a rape kit. John

Adams, a serologi

st w ith th e Tennessee Bureau of Investigation Laboratory, would have testified that he analyzed the anal and vaginal swabs taken by Dr. Allred in the rape kit and concluded that sperm and semen were present in both swabs.

The parties stipulate

d that if Truman Cre

selious, chief de

puty of Fentress County, was called

as a witness, he would have testified that he arrived at the victim’s place of employment on January 30, 1996, and found the victim there. She was upset, and he took h er to the hospital. Depu ty Creselious took possession of the rape kit at Dr. Allred’s office and found medical tape with large portions of the victim’s hair stuck in it, which would substantiate the victim’s story.

Finally
, Jeff Hancock, investigator with the Fentress County Sheriff’s Department, woul d have testified that he found the scissors at the location where the victim stated she had thrown them outof the car window. He also recovered the lock from the gas station that the petitioner damaged when he forced his way into the office to remove the victim the second time.

After deter m ining that the petitioner’s plea was voluntary and knowing, the trial court sentenced the petitioner as a

Range III persistent offender to two twelve-year sentences at forty-five percent for the kidnapping convictions. The court noted that, as part of this agreement, the Morgan County prosecutor would recommend an identical sentence be given the petitioner on the companion rape charges, if he pled

guilty to aggravated assault. These sentences were to run concurrently. On February 28, 1997, the petitio ner filed a post-

conviction peti

tion cha llenging the plea a nd his attorney’s representation.

On May 15, 1998, the trial court held a hear ing on the pe titioner’s petitionfor postconviction relief. The peti tioner called his t

rial attorney, Ke

lly Williams, as his f

irst witness. Ms. William s was retained by t he petitioner to re

present him in Fentr

ess County on the kid

nappin g charges and in Morgan County on rape charges r elated to this same

event. Ms. Williams

testified that, prior to the prelimina ry hearing, she met with the petitioner on February 26, March 18, and March26, 1996. The petitioner maintained that the victim, his ex-wife, went with him volunta rily and had consensual sex with him on the date of the alleged offenses. Ms. Williams stated that she investigated the case by extensivel y cross-examining the State’s witnesses at the preliminary hearing
, having her associate (

Darrell Colson) in

terview witnesse

s, talkin g with the petitioner’s family, viewing photographs of the crime scene, car, and the victim’s injuries, review

ing medical repor

ts,

an d r eviewing statements of the victim. She admitted that she did not interview Dr. Allred, who examinedthe victim at the hos pital. However, M

s. Williams did not feel that the doctor could testify withmedical certainty to anything that would be helpfulto the petitioner’s case, such as whether the victim was raped or had consensual sex. The petitioner never den ie d having sex with the

victim. According to Ms. Williams, the petitioner explained the victim’s physical injuries by stating that the-4-

victim fell down in the woods while they were together in Morgan County, a v

ersion Ms. Williams found to be impla

usible con sidering the photographs of the victim’s injuries and testimony of witnesses.

The petitioner was ar

raigned in Fentre

ss County on May 24, 1996. In the week following, Ms. Williams looked ove

r the discovery pr

ovided by the prose

cution and the test r esults from vaginal and anal swabs performed on the victim at the hospital which show

ed the presence

of sperm. Ms. Williams testified that the petitioner’s mother was very emotional about the whole situation, an

d Ms. Williams did not want t

o lea d the petitioner’s mother to believe her son would be acquitted when she felt he would be convicted. When Ms. Williams saw the strength of the prosecution’s case, she stated that she essentially gave up and wanted the petitioner’s family to understand that the petitioner

was probably not “going to get off on these charges.” On May 30, 1996, Ms. Williams wrote a letter to the petitioner’s mother in which she stated:

From what I have a

lready discover

ed in investigating

your son’s case,

it would appear that it will be very hard to prove him innocent or negotiate a plea that he would even consider.

Ms. Williams recalled that her associate, Darrell Colson, talked to the famil y a day or two before the trial was scheduled to begin on S eptember 19, 1996; however, she denied telling the family that DNA tests hadbe en performed tha t would convict the

petitioner. She ha

d previously sent copies of all the d

iscovery and test

results that she ha

d been given in the

case. Ms. Williams also denied that the petitioner and his family maderepeated requests for either the tape or transcript of the preliminary hearing . The only r equest she could recall came in a letter from the petitioner after the plea had

already been entered and he was in prison. Ms. Williams was not aware that the petitioner’s mother had taped conversations with her.

Prior to the trial date, M

s. Williamshad taken a number of plea offers to the petitioner, but he had rejected all of the m. On the day of trial, the petitioner appeared in his suit, ready for the proceedings. He told Ms. Williams that he wanted to go to trial. Ms. Williams again took five or six differ ent plea offers for the petitioner to consider and each time he rejected the offer . She described the final moments before the petitioner decided to plead guilty:

Q. And you came out and got his mother and other

family members and took them into the back and basica

lly told him

–he was going to be spending life in prison if he didn’t take this and his mother bega n cry ing and the family, and then finally after her crying and going on h e say s – I can’t see mama like this, and h

e says – I’ll do it?

A. Well, I didn’t tell him he w ould sp end life in prison, butI told him he would be subject to getting several years in prison, and that that was in his best interest

– I felt it was in his best interest andI wanted to be sure – I – I talked to him-5- fo r a lo ng time before I went and got his mother and brot hers and sisters, but his mother had been – she c alle d the office almost ev ery day about Randy and I wanted her to be – to know what wa s goi ng on. I didn’t do it for a

reason to coerce him to do anything. I do n’t make any of my clients plead anything. I was the one that recommended that Randy get dressed up, get his hair cut and be ready for trial. I didn’t coerce him into pleading anything.

. . . . Q. Until you brought his mother back ther

e and told her he was going to be spending his life in prison and had her all crying and upset, he had s

aid – no, had he not?

A. Well, he had said – no, but I don’t know that he hadsaid – absolutely

no at the point that I went and got her. I can ’t remember exactly what his situation was at that time.

. . . . Q. [D]id you tell him

that there was a test [DNA] that showed there was 99 plus p

ercent probabil

ity that it was him?

A. I told him they had a test result that show ed that she had been – had sex, both anally and vaginally, that they had sent off sampl es fr om the hospital and I showed him the test results there and sen t them to th em anyway. . . . I don’t know if I showed them–t old them any kind of percentage. . . . I may have, I c

an’t recall.

. . . . Q. Do y ou recall telling t hem that that test a lone would

be sufficient to convict him an d caus e him to spend virtua lly his life [in prison]?

A. I – I don’t recal l telling them that. I know that if that test would have went [sic] in front o f the jury, that a lot of peo ple would have been offended by him raping – having

sex with her anally, and that that would have hurt his case, and that is what I to

ld them.1 On redirect, Ms. Wi lliams testified that she

did not enter the pl

eas in Morgan County before she filed her lawsuit for fees and withdrew, even thou gh the plea proceeding was in September 1996, and the post-conviction petition was not file d untilFebruary 1997. She explained that it was very difficult getting dates from Morgan County, and the delay was not her fault or the petiti

oner’s.

2 As of the date of the post-conviction hearing, this portion of the ag reement was not completed. Ms. Williams testified that the petitioner was scheduled to enter a plea on the Morgan County charges the week after his plea in Fentress County, but the proceeding was rescheduled. Before the plea could be ent ered in Morgan Cou

nty, the petitioner

discharged Ms. W

illiams as his attorney after he filed a post-conviction petition a l leging ineffect

ive assistance of

counsel. His mother also filed a

counter-suit aga

inst Ms. Williams for

attorney’s fee

s. In a discussion between the bench and the attorneys
, the petitioner’s post-conviction attorney informed the trial court that Morgan County was not proceeding with the plea agreement on the rape charges, be cause of the post-conviction petition filed in Fentress County on the related kidnapping charges.

-6- Ms. Williams then read from the hospital report recounting the victim’s injuries but showing

no signs of gross bleeding or tears in the vaginal or anal areas. She stated that this was not proof that

sex was consensual, and the doctor could not have testified whether or not the sex was consensual. Ms. Williams read from file notes that indicated that her associate had interviewed a wi

tness, Darrell Gunter, who confirmed a friendly ph one conve rsation from the victim to the petitioner. Gunter’s

name had been given to Ms. Williams by the petitioner, butshe could not recall if this information would have corro

borated the petit

ioner’s version o

f the events.

On cro ss-exa mination, Ms. Willia ms testified that al

l of the witnesses w

ho were likely to testify at trial, with the exception of the doctor and the lab technician, testifi ed at t he preliminary hearing. She felt that the victim was so specific in her testimony at the hearing that she made a very believable

witness. Ms. William

s agreed that she

received evide

nce from the pros

ecution that would have negated the petitioner’s theory of consensual sex, such as copies of the petitioner’s four prior felony convictions for larceny a nd battery and the fact that the victim had obtained an order of protection again

st the petitioner le

ss than a month

before the kidnapping occurred. The petitioner claimedthat the victim called him and wan ted to meet h im on the date of the

offenses, but Ms. Williams testified there was no evidence to support this version, and the victim contradicted his story at the preliminary hearing. Ms. Williams agreed that it would have been necessary for the petitioner to testify to follow his theory of the events.

Ms. Williams agreed t

hat the petitioner

theoretically co

uldhave been sentenced to as much

as fifty years at eighty-five pe rcent on the espe

cially aggravated and

aggravated kidn

apping charges, if the judge ordered the sentences to be served consecutively. Ms. Williams testifie d that she told the petitioner all of this. She had also negotiated a plea as part of this plea

agreement on the

Class A felony rape charges in Morgan County. 1 Those charges w ere to have bee

n reduced to

two Class C felonies of aggr

avated assault, t

o run concurren

tly withthe Fentress County kidnapping charg

es. 2 She agreed that,

even if the jury on

ly found the petitio

ner guilty of two co

unts of simple

kidnapping, he could have theoretically been sentenced to thirty years at forty-five percent as a per sistent Range-7-

III offender. As part of the plea agreement, the State agreed to give the petitioner jail credit back

to his arrest in January of 1996 , even though he wa s serving time

for violation of probation in another county. Ms. Williams testifie d that neither the

petitioner nor his f

amily gave her any information that would have been helpful to his case.

The next witness to be called on behalf of the petitioner was his mother, Norma Hayes. She testified that she retained Ms. Williams for the petitioner, wh

o was in jail at the ti

me. Mrs. Hayes stated that she was i

nvolved in a number of disc ussions with Ms. Willia

ms and once with Ms. Williams’s associate about the case. Two days before her son was scheduled to g o to trial, Ms. Williams ’ s associate told Mrs. Hayes that the prosecution had blood tests that matched the petitioner’s blood type 99.9 percent. Mrs. Hayes was su rprised at the ch

ange, because M

s. Williams had previously indicatedat the preliminary hearing that the prosecution did not have any evidence and that this was a “joke.”

Mrs. Hayes stated that Ms. Williams did not tell her about any discovery materials she had at the p reliminar y hearing, and she did not see Ms. Williams between the preliminary hearing and the trial. On the day of the tr ial, Mrs. Hayes de

scribed the scen

e with the petitioner: Kelli [sic] Williams came out and got me, and s he to ok me back in

the back room here and Randy [the petitioner] wasbac k there with Darrell Colson [Ms. Williams’s associate] and I walked in, and he said – mom, they have offered me several different plea bargains this morning, but I am not going to ta ke them. I am

not guilty, and I am notgoing to take them. I have told them all along I am not going to take them. And she said

– Mrs. Hayes, I am

going to talk

to you like you are my mother and that was my brother. Randy is going to be found guilty today. An d I sa id – how do you know that, I thought that was up to the judge and the jury and she said – it is, but they have too much evid ence. And Darrell Colson spoke up and said – and I overheard one of your

witnesses saying that they was going to screw you up on the – on the stand. And then Kelli [sic] Williams spoke up and said – Mrs. Hayes,

he will never see freedom again. Well, it tore

me all to pieces. I started cryi ng and Rand y got up and went in the bathroom, he stayed a minute, and he came back out and he had tears in his eyes and he – and I said – son, I don’t want to see you to go to jail at all, ‘cause she had a lready made a ple

a bargain, she sa

id– six (6 ) years, he would get six (6) years, and Mr. Galloway had agree d that if he would plead guilty, sign the plea bargain for the rape an d the kidnapping, which would run concurrent, that he would get six (6) years. And Randy–I was sitting there crying and I said . . . I know you
are not guilty, a nd I don’t want to see you go, but I said – I would rather see you take six (6) years than to spend the rest of your life behind bars. And he sat th ere for a minute

, li k e he was in deep thoughtand he said –

well, I’ll sign it, I

don’t want to, but I ’ll sign it. And so he signed the

plea bargain an

d that – that was it.3 The trial judge played the tape in open court before the conclusion of the post-conviction hearing. Ms. Williams identified the voices on the tape as hers and those of Darrell Colson, Wade Hayes, Mrs. Hayes, and Jo yce Garrett. Th

e petitioner iden

tified the voice “

behind the glass”

at the prison visitor’s center as his. After listening to the tape, the attorneys agreed with the court that there was nothing in the taped conversation regarding DNA.

-8- . . . . First she [Ms. Willia

ms] said six

(6) years and then when he signed the plea bargain, sh

e said that it

would be twelve (12) years at fortyfive (45%) percent.

Although Mrs. Hayes did not have a tape of the conversation that morning, she did have a tapeof a conversation sh

e and the petitione

r had with Darre

ll Colson two days bef

ore the trial. 3

During cross-examinat

ion, two letters fr

om Kelly Williams were received into evidence, one datedSeptember 13, 1996, and the other dated S ep tember 16, 1996, w hich conveyed ple

a offers. Mrs. Hayes admitted that her son filed his post-conviction pet ition befor e he appeared for arraignment

on the Morgan County rape c harges. She admitted that the petitioner never told the Morgan County court

or the public defender assigned to his case that he wanted to plea

d guilty in Morgan County under the arrangement in the Fentress County plea agreement.

The petitioner testifi

ed on his own behal

f. He stated that h

e turned himself in

to authorities and was arrested. Ms. Williams came to see him approximately three times at the jail. According to the petitioner, the

only thing Ms. William

s talked to him about w

as plea bargains , and he did not want a plea bargain. He stated that he gave her names of people to interview for his case, including the victim, Danny at

the gas station, some people at Challenger’s [where the victim worked and the first kidnapping allegedly took place], his brother, his mother, his sister, and his sister’s boyfriend. The petitioner admitte

d that the victim

and the people at the gas station testified at the preliminary hearing. He thought his family members would have testified that the victim had been seeing her “ex,” and this evidence would show that he had been “set up.” The petitioner claimed that the victim telephonedhim to say that she loved him and wanted to get back together. He stated that she squirted mace in h is eyes as he opened the door at Challenger’s to meet her. According to the petitioner, a struggle ensued over the mace, and his knee accidentally hit the victim when he tackled her in the s tru ggle. He claimed he went to Challeng

er’s to talk to the v

ictim about taking th

eir children to church and that he h ad talked to th e victim on his sister’s phone every night for two weeks prior to the incident. The petitioner stated that he gave Ms. Williams the names of persons who knew that the victim had b een calling him,

but she never told h

im she interviewe

d any of them.

The petitioner testified that, after the preliminary hearing
, Ms. Williams told him a nd his mother that the blood tests were inconclusive, as if the samples came from two different people. He stated that the victim testi fied at the prelim

inary hearing tha

t she had slept with

the petitioner and another man the same night. The petitioner testified t h at Ms. Williams showed him “a bunch of-9-

papers” after the preliminary hearing but never went over the discovery mater ials with him. Ms. Williams mailed copies of these materials to him before the trial date. On the day he was arraigned in Morgan County on the rape charges,

Ms. Williams talked

to the petitioner in

the presence of

his mother and sister and told them that the State did not have an ything, tha t it was just the victim’s word against his

past conviction record. From the time he was indicted in Fentress County until the day of trial, the petit

ioner told Ms. Willia

ms he did not want to a

ccept any plea o

ffers. He stated that she never came to the jail to prepare him for trial and only mailed offers to him. Ms. Williams’s associate only saw him once, a

couple of days before the trial, but did not assist him with any trial preparation. However, the associate told him that he had a good chance of beating the case.

According to the petitioner, Ms. Williams brought him five or six plea offers on the day of trial. He told her not to bring any more. Ms. Williams then brought in his mother, who was crying. He described his

decision to plead g

uilty as follows:

A. [T]hen she [Ms. W

illiams] come [sic] out he re and got my mother – got my mother back there crying in my face, bawling – and I couldn’t

take it. I wasn’t going to sit there and break my mother down just to

please everybo

dy else, so I went ahead and s

igned it and I told he

r – I am going to think about yo u the whole twelve (12) years I am down there, and try to prove you wrong. Well, I got out here, the Judge was asking me all kinds of questions and I was saying – yes, sir, to every one of them. It didn’t matter what he said, I said –

yes, sir. There’s a few that I said – no sir. But I was looking thr ough all of them p

apers, I w as looking for these DNA tests, and she said they h ad a – it

was 99.9% mine – and because of them, I would be found guilty.

. . . . Well, sh e [Ms . Williams] mentioned it [DNA tests] once afte r the preliminary he

aring and said the

y was [ sic ] inconclusive an d then the day of the trial, after – right before she wen t out here and got mom, she said – Randy, they are 99.9% yours.

She sa id – if you go out here, they

a re going to find you guilty, and I said – Kelli [sic] , I a m nottaking a plea bargain. I ain’t telling you no more, and then she said – well, I think you mother is out there somewhere, and I said – we don’t need my moth er back here, I done t old you – no. And she come out here and found mom and brought her back there and after about twenty (20) minutes of sitt

i n g there watching my mom bawl, I went ahe

ad and took it.-10- Q. [D]uring the plea hearing, Judge Asbury asked you a whole series of questions,

a nd among those questions was – are you satisfied with y

our lawyer . . . – a

nd you said – yes.

A. At the time I felt

I had no choice. . . . I have never be en to

no [sic] trial. I have be en up here and pleaded out (sic) a bunch of times, but I

had never been i

n no [sic] trial.

On cross-examination, the petitioner testified that he knowingly lied under oath when he told the trial judge that he

was satisfied with

his trial counsel’s representation and that he had not been pressured in any way to plead guilty. He stated that, if he had gone to trial and testified, he

would have admitted to having sex with the victim on two different occa

sions. The petitioner admitted that the question in the case centere d around whet her the sex was consensual or forced, and the blood tests would not have shown anything on that issue. He stated that

he knew this when he pled guilty. His lawyers ne ver told him that the blood tests would show whether he raped her or not. The petitioner admitted that

he shook the prose

cutor’s hand aft

er the plea was e

ntered and thank

ed him.

After re viewing all of

the evidence and exhibits, the trial court found no merit in the petitioner’s allegat i ons that his attorney failed to conduct an adequate investigation of his case, failed to raise issues, p rovided incorre ct information, or

pressured him into

pleading guilty. Th

e postconviction petition was dismissed by order on May 22, 1998. The petitioner filed a timely notice of appeal.

ANALYSIS

Standard of Review

Be cause the petitioner fil

ed his pro se petition on February 28, 1997, it is govern ed b y the1995 Post-Conviction Procedure Act. At the evidentiary hearing on such a petition, the defendant bears the burde

n of proving his

allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f); Hicks v. State , 983 S.W.2d 2 40, 245 (Tenn. Crim. App.), perm. app. denied(Tenn. 1998). Clear and convincing evidence means that there is “no serious or substantial doubt about the correctness

of the conclusions drawn from the evidence.” Hicks , 983 S.W.2d at 245 (citing Hodges

v. S.C. Toof & Co. , 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). On appeal, we are bound by the trial court’s findings of fact unless the record preponderates against those findings. Hicks , 983 S.W.2d at 245.

The petitioner’s alle

gations of ineffe

ctive counsel ste

m from claims that Ms. Williams mis led him about the evide

nce and did not pro

perly prepare h

is case. He also c

laims that she coer

ced his guilty plea through his mot her. Because the

analysis of these

two issues differ

s, we will treat the

se separately. After a caref

ul review of the r

ecord, we hold

that Ms. Williams was effective counsel and that the petitioner’s guilty plea was voluntary and knowing. Therefore, we AFFIRM the trial court’s denial of the petitioner’s post-conviction petition.-11- Ineffective Assistance of Counsel

Our review of th e trial cour t’s findin gs as to the claims of ineffective assistance of counsel is de novo , since the issue involves mixed questions of law and fact. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).

When ineffective assistance of counsel is alleged, a conv icted defendant must show two things before a reversal of his conviction is required: (1) that counsel’s performance was deficient and (2) that such deficient performance prejudice d the defend ant. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). To prove deficient performance of counsel, the defendant must show that counsel made such serious errors that he or she w as not functioning as c

ounsel envisioned

by the Sixth Amen

dment. Id. This inquiry focuses on whether counsel’s assistance was reasonable under the circumstanc

es and is treated

very defe rentially by the

cou r t. Id. , 466 U.S. at 688-89, 104 S. Ct. at 2065. There is a strong presumption on appeal that counsel’s conduct falls w i thin the range o

f reasonable pr

ofessional perf

ormance, and we

must evaluate counsel’s performance from his or her pers pective at the time of the alleged error in the
context of the totality of the circumstances. Hicks , 983 S.W.2d at 246. In Tennessee, the evidence showing that an attorney failed to prepare a sound defense or to present witnesses must be substantial before ineffective assistance of counsel will be found. Id.

To prove prejudice, the defenda nt must show that counsel’s errors were so serious that he was deprived of

a fair trial. Strickland
, 466 U.S. at 687, 104 S. Ct. at 2064. In o

ther words,even if error occurre

d by counsel

, a conviction is

not to be set aside if the error had no effect on the
outcome of the trial. Id. , 466 U.S. at 691, 104 S. Ct. at 20 66; Goad v. State , 938 S.W.2d 363 (Tenn. 1996). When a guilty

plea is involved, as in the present case, the defendant must show prejudice by establishing tha

t he would not have p

led guilty and would have insisted on going to trial “but for” his counsel’s errors. Hicks , 983 S.W.2d at 246.

The record in the present

case supports the trial court’s finding that Ms. Williams acted as effectivecounsel in preparing the petitioner’s case for trial. Ms. Williams unsuccessfully attempted to get information fr

om the petitioner a

nd his famil

y that would support his contention that the victim voluntarily went w

ith him and that sex w

ith the victi

m was consensu al. At the postconviction hearing, the petitioner testified that one of the witnesses that he apparen tly felt could help his case was DannyStephens, the employee from the gas station, who gave a written statement that outlined what his trial testi mony would have be

en. Not only

would the testimony of this witness not exculpate the petitioner, it supported the victim’s version of the events and was very damaging to the petitioner. It was Mr. Stephens who witnessed the second forceful taking of the victim and called the police with the license plate number of the car the petitioner was driving. He also could identify the peti tioner as someone he knew previously. The petitioner’s theory of being “set up” by th e victim was not suppor te d by the evidence. Ms. Williams reviewed witness statements, medical reports, and other eviden

ce that the State w

as going to use in its

case. Accordingly, we

conclude that the allegations in this r

egard as t o ineffect ive assistance of counsel are without merit. Baxter v. Rose , 523 S.W.2d 930, 932-33 (Tenn. 1975).-12-

There is also nothing in the record tha t leads us to believ

e that Ms. Williams or her as sociate misled the petitioner about the evidence in his case. Although the petitioner and his mother asserted that Ms. Williams and her associate told them that DNA testing confirmed that the petitioner had sex withthe victim, the attorneys stipulated to the trial court after hearing the taped conver

sation with Ms. Williams’s associate that there was no mention of DN A tests. We fail to

see why this would have made a difference in t he trial in any event. The petitioner never denied having sex with the victim but only alleged that

it was consensual. Accordingly, we concur with the trial court’s findings that the petitioner

was afforded e

ffective assista

nce of counsel.

Guilty Plea

When analyzing a guilty plea, we look to the federal standard announced in Boykin v. Alabama
, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and the state standard set outin Statev. Mackey , 553 S.W.2d 337 (Tenn. 1977). State v. Pettus
, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin , the United States S upreme Court held that ther

e must be an affirmative showing in the trial court that a guilty p

lea was voluntar

ily and knowingly given before it can be accepted. Boykin
, 395 U.S. at 242, 89 S. Ct. at 1711. Similarly, our Tennessee Supreme Court in Mackey required an affirmative showing of

a voluntary and knowledgeable guilty plea, namely, that the defendant has been made aware of the significant consequences of such a plea. Pettus , 986 S.W.2d at 542.

A plea is not “volunta

ry” if it results fr

om ignorance, misu

nderst anding, coercion, inducements,

or threats. Blankenship v. State , 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if the g

uilty plea is “knowing” by questioning the defendant to make sure he fully understands the plea and its co nsequences. Pettus , 986 S.W.2d at 542; Blankenship , 858 S.W.2d at 904.

Since the plea must represent a voluntary and intelligent choice among the altern atives available to the defendant, the trial court may look at

a number of circumstantial factors in making this determination. Blankenship , 858 S.W.2d at 904. T hese factors incl ude: (1) the defendant’s relative intelligence; (2) his familiarity with criminal proceedings; (3) whether he was represented by competent counsel and had the opportunity to confer with counsel about alternatives; (4) the advice of counsel and the court about the charges against him and the penalty to be imposed; and (5) the defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in a jury trial. Id. at 904-05. If a plea is found to have been knowing and voluntary, the defendant waives any challenge of the offender classification or release eligibility. Pettus , 986 S.W.2d at 543.

In its findings on the plea agreement, the trial court held:

[I]tsho uld be noted that the plea agreement worked out by defens e counsel, including char ges in an adjoining County with concurrent sentencing, which defendant has so far refused to

consummate, was very advantageous to p

etitioner in

comparison to sentences he c ould have received. This Co urt ha s no doubt that any defendant confront ed with charges and proof of the kind p

resent here is in a-13- pressure packed situation created, not by an attorney, but by the facts and circumstances o

f the case. It is th

e lawyers’ duty to

pointout the factual situation, the possible sentences, the likelihood of conviction

or the likelihood of acquittal and t o ma ke recommendations to the defendant. The proof in this ca se shows that this

process was carried out and petitioner decided to accept the plea bargain.

Further, Exhibit #1 (Transcript of Guilty Plea Heari

ng) clearly

shows that defendant

was fully advised and showed no hesitation in entering the guilty plea. The ir

reconcilable c

onflic t betw een petitioner’s

sworn testimony in Exhibit #1 and his testimony at the p o st conviction hearing destroy[s] any semblance of creditility [sic].

We agree with the conclusions of the trial court. The petitioner has pled guilty to a number of charges in the past and has substantial familiarity with this process. The record shows that he was advised by his attorney tha t he would

be convicted on the evidence and would likely receive a much longer sentence than he was being offered by the State. The petitioner’s mother had been intimately involved in the entire process, apparently with the approval of the petitioner,

and was also

advised of the substantial risk the petitioner would take in front of a jury. She was understandably upset and concerned

about th e prospec ts her son faced. The petitioner te

stified that he bas

ically pled guilty to spare his mother. However, he had already signed the plea agreement three days prior to seeing his mother crying on the day of trial and had adequate time to reflect on this decision between the time he signed the plea agreement and the day he entered his plea. T he petitionerhad adequate information in front of him at the time he entered the plea to make an intellige

nt choice betwee

n his options and obviously did so t o avoid a greater sentence. See Hicks , 983 S.W.2d at 248. Likewise, the pe t itioner’s stateme

nt that he had no ch

oice but to plead gu

ilty does not neces sarily indicate coercion. His fe eling could likely have r esulted from an a

wareness of the

risky and undesira

ble prospect of going in front of a jury. See id. He testified under oath at the plea proceeding that the decision to plead guilty was his own and that he was not pressured to d o so. If the petitioner felt coerced into pleading guilty, he had t he opportunity at that time to make this known to the trial judge. In addition, the plea agreement was e

xtremely beneficial to the

petitioner when c

ompared to the probable sentences he migh t have received had the matters pr

oceeded to trial . This issue is without merit.

CONCLUSION

Upo n careful r

eview of the rec

ord, we conclude

that the evidence

does not preponde

rate against the trial court’s findings that defense counsel was effective and that the petitioner

’s guilty plea was voluntary and knowing. We, therefore, affirm the judgment of the trial court in dismissing the petitioner’s petition for post-conviction relief.