IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 24, 2018 Session

JOSEPH ELLISON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 108652 Steven W. Sword, Judge

No. E2017-00673-CCA-R3-PC

The Petitioner, Joseph Ellison, appeals from the Knox County Criminal Court’s denial of 

his petition for post-conviction relief. The Petitioner contends that his guilty pleas were

not knowingly and voluntarily entered because “there was no factual basis for” them. 

Discerning no error, we affirm the judgment of the post-conviction court. 

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD 

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

Sherif Guindi, Knoxville, Tennessee, for the appellant, Joseph Ellison.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant 

Attorney General; Charme P. Allen, District Attorney General; and Kenneth F. Irvine, Jr., 

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

OPINION

FACTUAL BACKGROUND

On July 13, 2015, the Petitioner was charged by information with and pled guilty 

to two counts of possession with intent to sell one-half ounce or more but less than ten 

pounds of marijuana, a Class E felony; and two counts of possession of a firearm during 

the commission of a dangerous felony, a Class D felony. See Tenn. Code Ann. §§ 

39-17-417, -1324. By agreement, the trial court imposed a total effective sentence of 

eight years. The charges were broken up into two groups. Counts 1 and 2 were, 

respectively, possession of marijuana and unlawful possession of a firearm arising from a 

December 10, 2014 incident. Counts 3 and 4 were the same charges as Counts 1 and 2, 

but arose from an April 22, 2015 incident. In exchange for the Petitioner’s guilty pleas, 

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the State dismissed additional charges stemming from the April 22, 2015 incident, 

including two Class B felony charges of possession with intent to sell cocaine and 

methamphetamine.

At the plea submission hearing, the prosecutor provided that the factual basis for 

the December 10, 2014 charges was that the Petitioner “was found to be in possession of 

approximately 182 grams of marijuana and a pistol.” With respect to the April 22, 2015 

charges, the prosecutor provided that, following a traffic stop, the Petitioner “was found 

to be in [possession of] a quantity of marijuana, and [there] were some other narcotics 

involved, and weapons . . . and law enforcement would testify that . . . [the] amount [of

marijuana] was sufficient for sale.” When asked by the trial court, the Petitioner stated 

that he understood that “by pleading guilty [he was] agreeing to stipulate to the facts the 

[prosecutor had] just outlined.”

Additionally, the trial court stated that two of the offenses the Petitioner was

pleading guilty to were “possession of marijuana with the intent to sell in an amount that 

makes those [C]lass E felonies.” When asked by the trial court if that was his 

understanding of the plea agreement, the Petitioner responded that it was. The plea 

agreement form also reflected that both of the marijuana charges were for possession of 

one-half ounce or more. The Petitioner told the trial court that he had reviewed the plea 

agreement form with trial counsel and that he had signed the form. Likewise, the 

information charging the Petitioner listed the amount of marijuana for both charges as 

being “more than one-half (1/2) ounce but not more than ten (10) pounds.”

On August 8, 2016, the Petitioner filed a timely pro se petition for post-conviction 

relief alleging numerous constitutional violations.1 An attorney was appointed to 

represent the Petitioner in this matter, and an amended petition was filed on December 

20, 2016. The amended petition narrowed the issues down to two: (1) whether there was 

a factual basis to support the Petitioner’s guilty pleas to Counts 3 and 4, and (2) whether 

the Petitioner received ineffective assistance of trial counsel with respect to those counts. 

An evidentiary hearing was held on March 3, 2017. At the outset of the hearing, the 

Petitioner’s attorney announced that he would only address the issue of the factual basis 

for the pleas to Counts 3 and 4. The Petitioner was the sole witness at the evidentiary 

hearing.

The Petitioner testified that prior to his guilty pleas, he was unaware of how much 

marijuana was seized during the April 22, 2015 incident. The Petitioner claimed that he 

never discussed the amount of marijuana with trial counsel prior to entering his guilty 

pleas. According to the Petitioner, it was only after he was incarcerated that he reviewed 

the arrest warrant for the April 22, 2015 incident and determined that the amount of 

 

1

This opinion will only address the issue raised in the Petitioner’s appellate brief.
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marijuana seized was less than one-half ounce. On cross-examination, the Petitioner 

admitted that in addition to the marijuana that was seized and weighed, the police also 

seized two “hand-rolled cigar[s] filled with . . . marijuana” that were not weighed. 

However, the Petitioner claimed that he knew how much marijuana was in each cigar 

because he weighed the marijuana before he rolled the cigars and that the total marijuana 

was still less than one-half ounce. 

The Petitioner admitted that he had discussed with trial counsel the fact that he 

was also facing “B felonies for cocaine and . . . methamphetamine.” The Petitioner 

further admitted that trial counsel “was able to work it out where [he] could plead to an E 

felony instead of B felonies.” The Petitioner testified that he “wanted to do an E instead 

of a B” “[a]t the time” of his guilty pleas. However, the Petitioner claimed that if he had 

known that there was less than one-half ounce of marijuana seized on April 22, 2015, he

“would have analyzed the situation a little more,” he would have rejected the plea 

agreement, and he would have insisted on going to trial on all of the December 10, 2014 

and April 22, 2015 charges.

On March 23, 2017, the post-conviction court entered a written order denying the 

petition. The post-conviction court found that the Petitioner was not a credible witness. 

Specifically, the post-conviction court found the Petitioner not to be credible regarding 

his testimony that he would have rejected the plea agreement had he known that there 

was less than one-half ounce of marijuana recovered on April 22, 2015, and would have

insisted on facing the “[m]ultiple other counts [that] were dropped” as part of the plea 

agreement. The post-conviction court concluded that the Petitioner “had tremendous 

incentive to accept the State’s offer regarding all of his pending charges” and that he 

“knowingly entered the plea bargain to avoid the much greater B felony offenses and 

receive the minimum sentence on each count to which he pled.” 

ANALYSIS

The Petitioner contends that his guilty pleas were not voluntarily and knowingly 

entered. The Petitioner argues that “there was no factual basis for” his guilty plea to 

Count 3 because the prosecutor never stated the specific amount of marijuana seized on 

April 22, 2015. The Petitioner further argues that his testimony at the post-conviction 

hearing established that less than one-half ounce was seized that day. The State responds 

that the post-conviction court did not err in denying the petition.

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.
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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. 

“The due process provision of the federal constitution requires that pleas of guilty be 

knowing and voluntary.” Johnson v. State, 834 S.W.2d 922, 923 (Tenn. 1992) (citing 

Boykin v. Alabama, 395 U.S. 238, 243 (1969)). 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). In making this 

determination, we review the totality of the circumstances. State v. Turner, 919 S.W.2d 

346, 353 (Tenn. Crim. App. 1995).

A petitioner’s “[s]olemn declarations in open court carry a strong presumption of 

verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). 

A petitioner’s sworn responses to the litany of questions posed by the trial 

judge at the plea submission hearing represent more than lip service. 

Indeed, the petitioner’s sworn statements and admission of guilt stand as a 

witness against the petitioner at the post-conviction hearing when the 

petitioner disavows those statements. 

Alfonso C. Camacho v. State, No. M2008-00410-CCA-R3-PC, 2009 WL 2567715, at *7 

(Tenn. Crim. App. Aug. 18, 2009). 

This court has previously held that “a lack of a sufficient factual basis to a guilty 

plea is not a constitutional violation which affords relief in the post-conviction setting.” 

Powers v. State, 942 S.W.2d 551, 555 (Tenn. Crim. App. 1996). The reason for this is as 

follows:

[A] defendant who acts in his own best interests, voluntarily and 

intelligently pleading guilty to a charge for which there is little factual 

foundation, and waiving any objection to the charge, and who later attempts 

to attack the plea for which he bargained, has no basis for a constitutional 

challenge to the conviction. He has, at best, invited error, and, at worst, 

attempted to manipulate the court.
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Id. (alteration in original) (quoting Kenneth Knox Gaddis v. State, No. 03C01-9303-CR00064, 1993 WL 542509, at *4 (Tenn. Crim. App. Jan. 4, 1993)). However, a “trial 

court’s failure to establish a factual basis for the plea on the record may contribute to the 

totality of the circumstances reflecting an unknowing or involuntary plea.” Id.

Here, the trial court did not fail to establish a factual basis for the Petitioner’s 

guilty pleas on the record. With respect to Count 3, the prosecutor stated that on April 

22, 2015, following a traffic stop, the Petitioner “was found to be in [possession of] a 

quantity of marijuana, and [there] were some other narcotics involved, and weapons . . . 

and law enforcement would testify that . . . [the] amount [of marijuana] was sufficient for 

sale.” The Petitioner argues that this was not sufficient because the prosecutor did not 

state the amount of marijuana seized. However, the trial court stated that two of the 

offenses the Petitioner was pleading guilty to were “possession of marijuana with the 

intent to sell in an amount that makes those [C]lass E felonies,” and the Petitioner stated 

that he understood this. Additionally, the information and the plea agreement form both 

stated that Count 3 was for possession of one-half ounce or more of marijuana. The 

Petitioner told the trial court that he had reviewed the plea agreement form with trial 

counsel and that he had signed the form. 

There was ample evidence that the Petitioner was aware that in pleading guilty to 

Count 3, he was admitting to having possessed one-half ounce or more of marijuana. 

Additionally, the transcript of the guilty plea hearing reflects that the Petitioner entered 

his guilty pleas knowingly and voluntarily in all other respects. The post-conviction 

court did not accredit the Petitioner’s testimony that he would have rejected the plea 

agreement and insisted on going to trial on all of the December 10, 2014 and April 22, 

2015 charges had he known that the police seized less than one-half ounce of marijuana 

on April 22, 2015. Rather this case is similar to the situation outlined in Powers in that 

the Petitioner, “in his own best interests, . . . [pled] guilty to a charge for which there 

[was] little factual foundation” in order to avoid the significant exposure he faced on the 

cocaine and methamphetamine possession charges. Powers, 942 S.W.2d at 555. 

Accordingly, we conclude that the post-conviction court did not err in denying the 

petition.

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