THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 2, 2016

GERALD COLLINS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Gibson County

No. 19041 Clayburn Peeples, Judge

No. W2016-00085-CCA-R3-PC – Filed December 6, 2016

The Petitioner, Gerald Collins, appeals from the denial of post-conviction relief by the 

Circuit Court for Gibson County. On appeal, the Petitioner argues that he received 

ineffective assistance of counsel and that his guilty plea was involuntary. Upon review, 

we affirm the judgment of the post-conviction court. 

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS and ROBERT L. HOLLOWAY, JR., JJ., joined.

Jeff Mueller, Jackson, Tennessee, for the Petitioner, Gerald Collins.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant 

Attorney General; Garry G. Brown, District Attorney General; and Hillary L. Parham, 

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

OPINION

On May 6, 2013, the Petitioner was indicted by the Gibson County Grand Jury in 

Case No. 189191for rape of a child and aggravated statutory rape. The Petitioner was 

later charged in a superceding indictment in Case No. 19041 with rape of a child, 

especially aggravated sexual exploitation of a minor, and aggravated statutory rape. The

charges stemmed from the Petitioner‟s sexual relationship with a nine-year old girl over a 

period of three years and nude photographs of the minor victim found on his cellphone. 

During the investigation, the Petitioner admitted that he had sexual intercourse with the 

minor victim “approximately [ten] times over the [past] three years” and that he was 

 

1 The record on appeal does not contain the indictments; however, we glean this information from 

the trial court‟s order denying relief.
-2-

aware of her age before engaging in sexual intercourse.

On February 25, 2015, the Petitioner entered a guilty plea pursuant to a plea 

agreement. In exchange for the dismissal of aggravated statutory rape, the Petitioner pled 

guilty to two counts of rape and received ten years for each count. His sentences were 

aligned consecutively, for a total effective sentence of twenty years. At the guilty plea 

colloquy, the trial court asked the Petitioner the following series of questions: 

COURT: I know [second counsel] has worked really 

hard on this case, but have you had as much time to 

speak with her about it as you need?

PETITIONER: Yes, sir.

COURT: Are you satisfied with her representation?

PETITIONER: Yes, sir.

. . . 

COURT: So you know that if I accept this plea I will find you 

guilty of two separate counts of rape? 

PETITIONER: Yes.

Following this exchange, the court explained to the Petitioner the rights he would waive 

by pleading guilty, including his right to a jury trial, his right to remain silent, his right to 

confront witnesses, his right to compel or subpoena witnesses, and his right to an appeal.

The Petitioner indicated that he understood these rights and the plea agreement. Upon 

concluding that the Petitioner‟s guilty plea was knowing and voluntary, the trial court 

accepted the Petitioner‟s guilty plea. 

The Petitioner filed a pro se petition for post-conviction relief, alleging that his 

two attorneys, both of whom were employed in the Public Defender‟s Office, failed to 

communicate with him, failed to investigate his whereabouts on the date of the offense, 

failed to show him any discovery in his case, and forced him to sign the plea agreement. 

The Petitioner was appointed counsel who filed an amended petition on the Petitioner‟s 

behalf alleging that the Petitioner was “[physically] threatened [by his attorney and] felt 

compelled to enter a guilty plea.” Although the record does not reflect that the amended 

petition incorporated the Petitioner‟s pro se petition, the allegations raised in both 

petitions were discussed during the post-conviction hearing and in the findings of the 
-3-

post-conviction court. 

Post-Conviction Hearing. At the November 30, 2015 post-conviction hearing,

the Petitioner testified that the offense dates in the indictment were incorrect because he 

was either “incarcerated in this county jail or Madison County on some of the occasions.” 

He explained that he did not know the victim “at the time when they was trying to say 

[the Petitioner] knew them.” When the Petitioner tried to discuss his concerns with 

counsel, who we will refer to as first and second counsel, he claimed that they “never 

could come up to a reasonable decision” and ignored his concerns. The Petitioner also

claimed that first and second counsel never reviewed any of the State‟s evidence with 

him. He asked both counsel to show him “proof of the crime,” such as DNA evidence or 

“rape kit tests” or “[a]ny kind of test . . . showing specifically what [the Petitioner] was 

being charged for,” but this proof was not forthcoming. The Petitioner acknowledged 

that first and second counsel did provide him with “one discovery,” but when he tried to 

discuss all of the State‟s evidence with his attorneys, “it was like trying to talk to a wall.”

He was never provided a copy of his statement to police or the victim‟s forensic 

interview. Additionally, second counsel failed to provide him with copies of any motions 

or “filings” and neither first nor second counsel ever responded to his request for certain 

documents. 

The Petitioner also testified that first counsel forced him to accept the second plea

agreement from the State. At the time he received this plea agreement, first counsel told 

the Petitioner that if he proceeded to trial, he was facing a sentence of thirty-seven to 

seventy years. According to the Petitioner, the day before the guilty plea hearing, first 

counsel became upset with the Petitioner, raised his voice, and “grabbed a hold of [the 

Petitioner], shook [the Petitioner], and told [him that he] needed to take [the second 

offer].” This incident, coupled with the fact that he could receive seventy years, “scared” 

the Petitioner, and he agreed to sign the plea agreement. The next day, second counsel 

entered the Petitioner‟s guilty plea. The Petitioner did not attempt to withdraw his guilty 

plea or notify second counsel of the physical threat by first counsel because he thought

that “after you sign for anything it‟s done and over with.” 

On cross-examination, the Petitioner acknowledged that second counsel filed a 

motion to suppress the nude photographs of the victim and the Petitioner‟s statements to 

police. He confirmed that an investigator testified during the suppression hearing about 

the contents of the Petitioner‟s statement to police. However, he testified that the 

investigator provided conflicting versions of his statement. The Petitioner also testified

that he reviewed some of the State‟s evidence with second counsel; namely, the nude 

photographs of the minor victim that were found on his cellphone, but he claimed that the 

cellphone was not his. 
-4-

The Petitioner said that despite his responses at the guilty plea hearing, he was 

“not happy with the way they done it” but was “told to agree with them and let it go.” 

The Petitioner asked one question about court costs during the hearing but raised no other 

issues before the court.

First counsel began representing the Petitioner in December 2012. He first met the 

Petitioner during the early stages of his case and once the case proceeded to Circuit 

Court, second counsel became involved in the case. First and second counsel worked 

together on the Petitioner‟s case, but second counsel filed motions on the Petitioner‟s 

behalf and entered the Petitioner‟s guilty plea. After reviewing the State‟s evidence, first 

counsel realized that the State had a “pretty good case” against the Petitioner and began 

working on securing a favorable plea agreement for the Petitioner. First counsel testified 

that the Petitioner was concerned about the dates in the indictment, but he could not recall 

the substance of that conversation. When asked whether he reviewed any of the State‟s 

physical evidence with the Petitioner, first counsel explained that there was no physical 

evidence of the rape since the offense had occurred weeks before the Petitioner was 

arrested. Counsel could not recall reviewing the Petitioner‟s statement with him, but he

explained that either first or second counsel would have reviewed the statement as soon 

as it was available. Counsel recalled discussing the State‟s initial plea offer with the 

Petitioner and explaining that the State found nude photographs of the victim on the 

Petitioner‟s phone and that if he refused the offer, the State would seek additional charges 

for possession or possibly distribution of child pornography. Finally, first counsel denied 

grabbing or physically threatening the Petitioner. While first counsel acknowledged that 

he used strong language when speaking to the Petitioner, he denied grabbing the 

Petitioner in a forceful or threatening manner. 

Second counsel was assigned to represent the Petitioner in Case No. 18919 and 

Case No. 19041. Second counsel was aware of the Petitioner‟s concerns regarding the 

dates in the indictments, and she explained to him that the date range meant that the 

offense occurred sometime during that time period, not that the rape occurred every day 

during that time period. She confirmed that the Petitioner did request copies of his 

statement to police, the victim‟s forensic interview, and any physical evidence the State 

had against him. Second counsel testified that the Petitioner never received physical 

copies of his statement because his statement was not in writing. Second counsel 

testified that she was “just given information as to what was said” and disclosed that 

information to the Petitioner. However, she affirmed that she did receive a summary of

the victim‟s forensic interview, and she discussed this with the Petitioner “at least twice.” 

She also explained to the Petitioner “multiple times” that there was no physical evidence 

because the actual offense occurred weeks before he was arrested. When asked about the 

communication problems between her and the Petitioner, she stated that “[the Petitioner]

had his version of what he thought should happen or wanted to happen” and he simply 
-5-

“did not want to listen.” Second counsel did not testify about the alleged altercation 

between the Petitioner and first counsel. 

The post-conviction court denied the Petitioner relief, finding that both first and 

second counsel “far exceeded the minimum requirement for representation in a criminal 

case,” the Petitioner‟s guilty plea was voluntary and knowing, and that the Petitioner was

provided access to the evidence against him. The court also found that the Petitioner‟s 

claim that he was physically coerced into pleading guilty was “unbelievable.” On 

December 7, 2015, the post-conviction court issued a written order denying relief. It is 

from this order that the Petitioner now timely appeals. 

ANALYSIS

On appeal, the Petitioner appears to argue that he received ineffective assistance of 

counsel because first and second counsel failed to: (1) investigate his whereabouts on the 

dates alleged in the indictment and (2) “review discovery material with him or show him 

any physical evidence.” He also asserts that first counsel physically threatened him

before he pled guilty and that “[b]ut for the coercion to plea, [the Petitioner] would have 

prevailed at trial.”2 The State responds that the Petitioner received effective assistance of 

counsel, that his guilty plea was knowing and voluntary, and the post-conviction court 

properly denied relief. Upon review, we agree with the State. 

Initially, we note that post-conviction relief is only warranted when a petitioner 

establishes that his or her conviction is void or voidable because of an abridgement of a 

constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

A post-conviction court‟s findings of fact are conclusive on appeal unless 

the evidence preponderates otherwise. When reviewing factual issues, the 

appellate court will not re-weigh or re-evaluate the evidence; moreover, 

factual questions involving the credibility of witnesses or the weight of 

their testimony are matters for the trial court to resolve. The appellate 

court‟s review of a legal issue, or of a mixed question of law or fact such as 

a claim of ineffective assistance of counsel, is de novo with no presumption 

of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation 

 

2 The Petitioner additionally asserts that he was denied a change of counsel and a speedy trial but 

fails to provide any legal authority or citations to the record for these contentions. Accordingly, these 

issues have been waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by 

argument, citation to authorities, or appropriate references to the record will be treated as waived in this 

court.”).
-6-

marks omitted); Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010); see Felts v. State, 

354 S.W.3d 266, 276 (Tenn. 2011). A post-conviction petitioner has the burden of 

proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); 

Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 

2009). Evidence is considered clear and convincing when there is no serious or 

substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316 

S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); 

Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). 

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

must establish that (1) his lawyer‟s performance was deficient and (2) the deficient 

performance prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 

687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove 

either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective 

assistance claim. Indeed, a court need not address the components in any particular order 

or even address both if the [Petitioner] makes an insufficient showing of one component.” 

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

A petitioner successfully demonstrates deficient performance when the clear and 

convincing evidence proves that his attorney‟s conduct fell below “an objective standard 

of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 

466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated 

once the petitioner establishes “„a reasonable probability that, but for counsel‟s 

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.‟” Id. at 370 (quoting Strickland, 466 U.S. at 694). In order to satisfy the 

“prejudice” requirement in the context of a guilty plea, the petitioner must show that, but 

for counsel‟s errors, he would not have entered his guilty plea and would have proceeded 

to trial. Serrano v. State, 133 S.W.3d 599, 605 (Tenn. 2004) (citing Hill v. Lockhart, 474 

U.S. 52, 59 (1985)).

We note that “[i]n evaluating an attorney‟s performance, a reviewing court must 

be highly deferential and 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) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular 

set of detailed rules for counsel‟s conduct can satisfactorily take account of the variety of 

circumstances faced by defense counsel or the range of legitimate decisions regarding 

how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However, 

we note that this “„deference to matters of strategy and tactical choices applies only if the 

choices are informed ones based upon adequate preparation.‟” House v. State, 44 S.W.3d 

508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). 
-7-

The Petitioner argues that his attorneys did not investigate his whereabouts for the 

dates listed in the indictment and that he was not “physically present” to rape the minor 

victim. The record reflects that second counsel explained to the Petitioner that the dates 

in the indictment alleged that the rape occurred sometime during that period, not that it

occurred on every date listed in the indictment. Even if the Petitioner was incarcerated or 

had an alibi for some of the dates listed in the indictment, he admitted to engaging in 

sexual intercourse with the minor victim “approximately [ten] times over the previous

three years” in his statement to police. The post-conviction court found that the 

Petitioner had two competent attorneys who provided effective representation to the 

Petitioner. The record supports the post-conviction court‟s findings. Moreover, the 

Petitioner did not present any evidence of an alibi for the dates listed in the indictment at 

the post-conviction hearing. Because the Petitioner has failed to establish deficient 

performance or prejudice resulting from first or second counsel‟s failure to investigate his 

whereabouts on the dates alleged in the indictment, he is not entitled to relief. 

Next, the Petitioner argues that neither first nor second counsel discussed or 

reviewed any “discovery material” with the Petitioner and that he was unaware of the 

State‟s evidence against him. However, he fails to explain what discovery he was 

deprived of or how his attorneys were ineffective in this regard. Furthermore, first and 

second counsel testified that they reviewed the State‟s evidence with the Petitioner,

which included nude photographs of the victim on the Petitioner‟s cellphone and text 

messages between the Petitioner and the victim indicative of an ongoing sexual 

relationship. Second counsel explained to the Petitioner several times that there was no 

physical evidence of the offense or physical copies of his statements to police because his 

statement was not transcribed. However, during the suppression hearing, an investigator 

testified to the contents of the Petitioner‟s statement, and the Petitioner offered no 

evidence to dispute this testimony at the post-conviction hearing. 

First counsel also testified that if the State had any physical evidence, they would 

have discussed such evidence with the Petitioner. The post-conviction court found that 

“[t]here is no evidence that [the Petitioner] was denied any information relative to his 

defense or that he was denied access to any of the evidence against him.” The postconviction court accredited first and second counsel‟s testimony and discredited the 

Petitioner‟s testimony, and we do not review a post-conviction court‟s determination of a 

witness‟s credibility. See Vaughn, 202 S.W.3d at 115 (Tenn. 2006). Accordingly, the

Petitioner is also not entitled to relief on this issue.

Finally, the Petitioner argues that he was physically threatened by first counsel and 

was forced to enter a guilty plea. Following the Petitioner‟s indictment in Case No.18919 

the Petitioner was offered a plea agreement, which he subsequently refused. The 
-8-

Petitioner was later charged in a superceding indictment with especially aggravated 

sexual exploitation of a minor. The State offered to nolle prosequi the charge of 

aggravated statutory rape if the Petitioner pled guilty to two counts of rape. In his brief,

the Petitioner claims that his guilty plea was involuntary because, “his ability to make 

considered, thoughtful decisions in his case [was] removed by the threat of physical 

violence presented by his trial counsel.” While not entirely clear from his brief, we 

understand the Petitioner‟s argument to be but for first counsel physically threatening

him, the Petitioner would have insisted on a trial rather than entering a guilty plea. 

Although the Petitioner‟s argument is vague and misstates the applicable law,

3 we will 

nonetheless address this issue on its merits. 

The validity of a guilty plea is a mixed question of law and fact that is reviewed de 

novo. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010). To be valid, a guilty plea must 

be entered knowingly, voluntarily, and intelligently. Id. (citing State v. Mackey, 553 

S.W.2d 337, 340 (Tenn. 1977); North Carolina v. Alford, 400 U.S. 25, 31 (1970); Brady 

v. United States, 397 U.S. 742, 747 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44 

(1969)). “[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[.]” Mackey, 553 S.W.2d 

at 340; see Tenn. R. Crim. P. 11(b)(1). When determining whether a guilty plea was 

knowingly, voluntarily, and intelligently entered, the court must consider “„whether the 

plea represents a voluntary and intelligent choice among the alternative courses of action 

open to the defendant.‟” Lane, 316 S.W.3d at 562 (quoting Grindstaff, 297 S.W.3d at 

218). If a guilty plea is not knowingly, voluntarily, and intelligently entered, then the 

defendant has been denied due process, and the guilty plea is void. Id. (citations 

omitted). 

The record shows that first counsel told the Petitioner that if he refused to plead

guilty to two counts of rape, he was facing a possible sentence of thirty-seven to seventy 

years. The Petitioner testified that first counsel‟s alleged behavior and the possibility of 

receiving a seventy year sentence at trial, “scared” him and that he “did what [he] had to 

do” and signed the plea agreement. First counsel denied grabbing the Petitioner or

coercing the Petitioner to plead guilty. After hearing the proof, the post-conviction court 

accredited first counsel‟s testimony and found that the Petitioner‟s claim that he was 

physically coerced into pleading guilty was “unbelievable.” See Vaughn, 202 S.W.3d at 

115 (Tenn. 2006).

 

3

In his brief, the Petitioner states that “[b]ut for the coercion to plea, [the Petitioner] would have 

prevailed at trial.” The correct standard is that the Petitioner must show that “but for counsel‟s errors, he 

would not have pleaded guilty and would have insisted on going to trial.” See Serrano, 133 S.W.3d at 

605 (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). The Petitioner‟s argument conflates the idea of 

proceeding to trial with achieving a favorable disposition at trial.
-9-

A plea is not voluntary if it is the result 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 determining 

whether a guilty plea is voluntarily and intelligently entered, a trial court must look at a 

number of factors, which include the following:

1) the defendant‟s relative intelligence; 2) the defendant‟s familiarity with 

criminal proceedings; 3) the competency of counsel and the defendant‟s 

opportunity to confer with counsel about alternatives; 4) the advice of 

counsel and the court about the charges 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.

Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006) (citing Blankenship, 858 S.W.2d 

at 904). 

Here, the Petitioner was questioned by the court and the court fully explained the 

rights the Petitioner was waiving by pleading guilty. In response, the Petitioner 

confirmed that he understood the terms and legal consequences of the plea agreement and 

that he was satisfied with second counsel‟s representation. The Petitioner had an 

opportunity to raise any questions about the rights he was waiving and he declined to do 

so. The post-conviction court found that his plea was “as voluntary and knowing as it 

could possibly be.” There was no indication at the guilty plea hearing that the Petitioner 

was coerced or forced into entering his guilty plea or that his guilty plea was involuntary. 

Moreover, the post-conviction court accredited first counsel‟s testimony and we do not 

review a post-conviction court‟s determination of a witness‟s credibility. See Vaughn, 

202 S.W.3d at 115 (Tenn. 2006). The record fully supports the post-conviction court‟s 

findings. He is not entitled to relief. 

CONCLUSION

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

______________________________ 

CAMILLE R. McMULLEN, JUDGE