IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville December 13, 2011

ROBERT JASON BURGESS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Marshall County

No. 11-CR1-A, 11-CR1-B Robert Crigler, Judge

No. M2011-01324-CCA-R3-PC- Filed July 31, 2012

The Petitioner, Robert Jason Burgess, appeals from the Marshall County Circuit Court’s

denial of post-conviction relief from his convictions for two counts of rape and two counts

of possession with intent to sell a controlled substance, for which he is serving an effective

twenty-six-year sentence. On appeal, the Petitioner contends that he did not receive the

effective assistance of counsel. He also contends that the trial court erred in treating his

letters as a petition for post-conviction relief. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR., and JOHN EVERETT WILLIAMS, JJ., joined.

Emerterio “Terry” R. Hernando, Lewisburg, Tennessee, for the appellant, Robert Jason

Burgess.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant

Attorney General; Chuck Crawford, District Attorney General; and Weakley E. Barnard,

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

OPINION

The Petitioner was charged in indictment number 10-CR-74 with eight felony drug

offenses and two misdemeanor drug offenses. He was charged in indictment number 10-CR76 with thirteen felony sexual offenses. He was represented by a retained attorney in the

sexual offenses case and by the public defender’s office in the drug case. In a settlement

agreement that disposed of all the charges, he pled guilty on November 17, 2010, to two

counts of rape, a Class B felony, and two counts of sale of a Schedule III controlled
substance, a Class D felony. See T.C.A. §§ 39-13-503 (2010) (rape), 39-17-417(a)(3) (sale

of a controlled substance). Pursuant to the agreement, the Petitioner received ten-year

sentences for each of the rape convictions and three-year sentences for each of the drug

convictions, all to be served consecutively, for an effective twenty-six-year sentence.

According to the stipulated facts at the guilty plea hearing:

[T]he drug cases, counts 2 and 5, on 10CR74 are Drug Task

Force cases. They are controlled buys in which all of the safety

precautions and standard operating procedure [were] followed.

As Your Honor is well familiar, as well as [defense

counsel], as is the Public Defender’s [O]ffice, that on the 26th

day of February under those circumstances the defendant did

sell hydrocodone, a Schedule III controlled substance, to an

undercover confidential informant.

Then again on the 27th day of February did likewise.

As to the rape charges, count 2 of 10CR76, the defendant

did accomplish sexual penetration without the consent of the

victim and he did it on a day between December 1st of 2009 and

the 15th day of December, 2009, accomplished this; and on

another day did likewise do the same.

Defense counsel acknowledged that the defense stipulated that a sufficient factual basis

existed to support the pleas.

The Petitioner wrote to one of the attorneys in the drug cases on December 8 and 10,

2010, and expressed his desire to “take [the drug case] back to court” and have it considered

separately from the rape case. He said he wanted to challenge the drug convictions “[i]f it

wouldn’t mess with my rape plea.” The Petitioner complained in his letters that he and his

co-defendant did not receive the same sentences for the drug offenses. He stated that he

regretted signing the plea agreement in the drug case. He asked his attorney in the drug case

to “[p]ut us on the closest [d]ocket.” A motion to withdraw the guilty pleas was not filed.

See Tenn. R. Crim. P. 32(f) (withdrawal of guilty plea). He wrote to his attorney in the

sexual offenses case on December 10, 2010, and expressed his wishes regarding the drug

case.

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The Petitioner also wrote to the trial court. In a letter dated December 15, 2010, the

Petitioner’s attorney in the drug case advised him that the trial court had determined that the

Petitioner’s letter “was essentially a Post-Conviction action against [the public defender’s]

office” and that the court had appointed counsel to assist the Petitioner in the matter. The

attorney advised the Petitioner to discuss any issues with his newly appointed attorney and

provided the attorney’s name and address. The record reflects, however, that counsel was

appointed on January 5, 2011. Through counsel, the Petitioner filed petitions for postconviction relief on February 25, 2011.

The petition in the drug case alleged that the Petitioner did not receive the effective

assistance of counsel. He alleged that the assistant public defenders did not investigate or

develop a defense in the drug case, that his attorneys in the drug and sexual offenses cases

together continued “badgering” him until he accepted the settlement agreement, and that the

public defender’s office failed to file a motion to withdraw his guilty pleas in the drug case.

The petition in the sexual offenses case alleged that the Petitioner’s guilty pleas were

not knowingly, voluntarily, and intelligently made and that he did not receive the effective

assistance of counsel because counsel failed to investigate favorable witnesses, erroneously

advised him that the fourteen-year-old victim could not testify, and failed to file a motion to

withdraw his guilty pleas. The State moved to consolidate the two petitions. Although the

court’s ruling on the motion does not appear in the record, post-conviction counsel stated at

the post-conviction hearing that he had no objection. The trial court conducted a single

hearing on both post-conviction petitions and issued a single order addressing the allegations.

At the hearing, the Petitioner testified that he wrote letters to the trial court

complaining about his attorneys in both cases. He said that his attorneys in both cases

pressured him to accept the plea offer. He said the three attorneys had him in a back room

for thirty to forty-five minutes and eventually wore him down. He said the attorneys told him

he was facing the possibility of a longer sentence if he took his cases to trial.

The Petitioner testified that he understood the definition of perjury. He stated that he

lied in his sworn testimony at the plea hearing when he said he was satisfied with his

attorneys’ services. He acknowledged that no one threatened him to accept the plea

agreement but said he was pressured by the attorneys. He said he lied when he told the trial

court that the guilty pleas were his free and voluntary decisions. He said he accepted the plea

agreement even though he still wanted to take his cases to trial. He said he “probably should

have” let the court know about his dissatisfaction with his attorneys and requested new

attorneys. He understood that the plea agreement was a combined disposition of the drug

case and the sexual offenses case and that there would be no plea bargain if it were not

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accepted in its totality. The Petitioner agreed that he had ten prior convictions but noted that

none were for felonies.

Drug Case

Regarding the drug case, the Petitioner testified that the assistant public defenders

who represented him never developed a trial strategy and merely advised him of plea offers.

He said he “pretty much told them” he did not touch any drugs or money and never conspired

to sell or deliver any drugs. He said he told them from the beginning that he wanted to take

the case to trial. He wanted his attorneys to pursue a defense based upon the fact that his codefendant’s voice, not his, was on the audio recordings of the drug sales. He said that one

of his attorneys told him he would not “beat” the conspiracy charge in the drug case.

The Petitioner testified that his attorneys for both cases pressured him to accept the

plea offer. He said the three attorneys had him in a back room for thirty to forty-five

minutes. He said the attorneys told him he was facing the possibility of a longer sentence if

he took his cases to trial.

The Petitioner testified that he was dissatisfied that his co-defendant received a lesser

sentence than he did. He said that a week after he pled guilty, he wrote to his attorneys in

the drug case and told them he wanted to withdraw his guilty plea and take his case to trial.

He said he wrote letters to the trial court and his attorney in the sex offenses case, as well.

He said that one of the attorneys in the drug case advised him by letter that he had thirty days

to file the motion to withdraw the plea but that it might jeopardize the disposition of the

sexual offenses case. He said he wrote another letter to the attorney and told him to file the

motion. He said he received a letter a couple of weeks later, in which the attorney told him

“that [the trial court] had filed the post conviction on him and [the public defender’s office]”

and had appointed counsel. He said the attorney with whom he corresponded never filed the

motion to withdraw the plea. He identified the letters, which were received as exhibits.

The Petitioner testified that he told one of the attorneys in the drug case to interview

a witness who would testify that his co-defendant was the person trying to sell drugs and that

the Petitioner did not sell drugs. He said the witness was never contacted. The Petitioner

acknowledged that his post-conviction attorney told him that he had contacted the witness

but that the witness said he had nothing good or bad to say about the Petitioner’s cases.

The Petitioner testified that one of the attorneys in the drug case met with him in

September 2010 about the plea offer. He said the attorney came to see him a month or two

before a court date and played the State’s audio recordings for him. He acknowledged that

his voice was on the recordings but stated he did not mention drugs or money. He said that

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both attorneys in the drug case met with him about a month before November 17, 2010, but

that they did not discuss trial strategy. He said he told his attorneys to take the case to trial.

He acknowledged meeting with his attorneys on court dates and about three times at the jail.

He said they mailed him the discovery materials.

Bedford County Sheriff’s Deputy Tim Miller testified that the Petitioner sold drugs

to him during an undercover operation. He said the Petitioner lied when he testified that he

never touched the drugs.

One of the assistant public defenders who represented the Petitioner in the drug case

testified that he did not contact the Petitioner’s cousin because there was no need. He said

that after he received a letter from the Petitioner requesting to withdraw the guilty plea, he

wrote to the Petitioner to explain the consequences. He said that he received a second letter

and that he brought it to the court’s attention on the next regular circuit court date. He said

the court date was within the thirty days allowed for filing a motion to withdraw a guilty plea.

He said the trial court received a letter from the Petitioner asking to withdraw the plea, as

well. He said, “[T]he judge stated he was taking it as a post conviction action and removed

us from the case and appointed [post-conviction counsel].”

Regarding the plea offer, trial counsel testified that he did not think he browbeat the

Petitioner into accepting it. He said they discussed the case for some time and thought there

had been ten court appearances for the drug case alone. He said that on November 17, 2010,

his co-counsel in the drug case, the Petitioner’s attorney in the sexual offenses case, the

Petitioner, and he met in the jury room for forty-five minutes to an hour to discuss the cases.

He said they advised the Petitioner of the possible sentences he would face if tried and

convicted of each offense. He did not notice any error in the advice from the attorney in the

sexual offenses case. He said they explained that the Petitioner might receive a shorter

sentence for the drug case if it were handled separately but that the Petitioner was likely to

receive a longer sentence for the sexual offenses. He said the Petitioner wanted to go to trial

but listened to the attorneys’ reasoning. He said the Petitioner had no reason to feel

pressured and did not appear to feel that way. He said the State’s initial offer was thirty

years, consisting of twenty-four years for the sexual offenses and six years for the drug

offenses.

Trial counsel acknowledged receiving a letter dated December 10, 2010, in which the

Petitioner expressed his desire to withdraw his guilty plea. He acknowledged the public

defender’s office did not file a motion on the Petitioner’s behalf. He agreed there was still

time to file a motion when he received the letter. He said he sent the Petitioner a reply, but

he did not think they discussed the matter again.

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Trial counsel testified that he and co-counsel reviewed the evidence and the discovery.

He did not recall the Petitioner’s giving them a list of witnesses. He said the only time the

Petitioner’s cousin was mentioned was as the owner of the drugs involved in the Petitioner’s

drug charges.

Co-counsel testified that attorneys from the public defender’s office met with the

Petitioner about ten times on court dates. He said they also met with the Petitioner at the jail.

He said they discussed the facts of the case with the Petitioner many times. He said the

public defender’s investigator played the audio recordings for the Petitioner.

Co-counsel testified that he and trial counsel advised the Petitioner that they should

wait to see what happened with the sexual offenses case and use the drug case as a

bargaining tool. He said the sexual offenses case was far more serious than the drug case.

He said they coordinated their efforts with the Petitioner’s attorney in the sexual offenses

case. He said the State had a solid drug case against the Petitioner. He noted, as well, that

the Petitioner was charged with about ten to thirteen sexual offenses, including multiple

counts of rape. He said the Petitioner admitted to penetration but claimed it was consensual.

He said they explained to the Petitioner that a jury would not be receptive to a consent

defense.

Co-counsel denied that he and the other attorneys “browbeat” or pressured the

Petitioner into accepting the plea agreement. He said the public defender’s office respected

a defendant’s right to a jury trial if the defendant wanted one. He said, however, that the

public defender’s office was candid with a defendant if they thought the defendant was

making a mistake. He said the Defendant received a good deal by accepting the plea bargain.

He said that the Petitioner’s attorney in the sexual offenses case deserved the credit for

obtaining the favorable deal.

Sexual Offenses Case

Regarding the sexual offenses case, the Petitioner testified that he told his attorney to

take his case to trial. He said trial counsel never interviewed his cousin, who lived in his

household when the offenses were alleged to have occurred, nor did counsel interview the

victim. He said their testimony would have been favorable to the defense. He said that trial

counsel, along with the attorneys in the drug case, told him that his ex-wife wanted him “put

under the jail” for the sexual offenses. He said they also told him that the judge and jurors

probably had children or grandchildren and would not be inclined to believe he was not

guilty. He said they told him he was facing a sentence of twenty-four years at 100% but that

his ex-wife had agreed to ten-year sentences. He said that based upon the advice, he felt

pressured to accept the settlement offer disposing of both cases.

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The Petitioner testified that he met with his attorney in the sex offenses case at the

attorney’s office but that once he was arrested for the drug case, the attorney never visited

him at the jail. He said he met with the attorney about four times before he accepted the plea

offer. He said he wrote trial counsel numerous letters asking questions about his case but

that counsel wrote him one to four letters. He identified two letters he received from trial

counsel that predated the guilty plea hearing. He said the letters were consistent with the

advice the attorneys gave him in the back room on the day of the plea hearing. He said that

counsel told him he could face life in prison and “pretty much . . . call[ed] him a complete

idiot” in the letters. He said the attorney told him he faced a sentence of forty to one hundred

years if convicted at trial.

The attorney’sletters contained a detailed analysis of the case and addressed questions

and concerns the Petitioner apparently had raised. A letter dated November 8, 2010 states,

in pertinent part,

With regard to all of the “character” witnesses that you have

provided to me, those are not the type of witnesses that you use

at trial. . . . [W]hat you are asking me to do is to put “character

witnesses” on the stand to verify the likelihood that your

testimony is true. But I would ask you, do you really want me

to put witnesses on the stand to say that you told the truth about

giving your son a blowjob and him reciprocating by giving you

one? Do you not see the idiocy in that? Really?!?

He also complained that trial counsel advised him that the fourteen-year-old victim could not

testify. The pertinent portion of the letter states, “[E]ven if [the victim] wanted to testify to

a jury that he was ‘okay with [the sex acts],’ neither the District Attorney nor the Judge is

going to permit that testimony to be given to the Jury. ‘Consent’ cannot be given by a 14

year old victim.” The letter also noted that the State’s evidence included the Petitioner’s

confession and text messages and photographs. The letter also stated that although trial

counsel believed that an outstanding plea offer was the better course, he would take the case

to trial if the Petitioner desired.

The Petitioner wrote letters to his attorney in the sex offenses case on November 17,

2010, regarding family matters. The Petitioner also expressed his gratitude for trial counsel’s

services. He wrote to the attorney again on December 10, 2010, mentioning his

dissatisfaction with the resolution of the drug case because his co-defendant received a

shorter sentence and stating he had written to one of the attorneys in the drug case about

“going back to court.” He said he wanted “to take an open plea” and have the trial court

determine the sentence. He acknowledged that the plea agreement involved a joint

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disposition of the drug case and the sexual offenses case but stated his belief that they should

have been considered separately. He wrote, “I hope it doesn’t mess with the sentence I got

on the rape case. If it does. O’well. [sic] I regret signing the [p]lea on the drug charge.” The

Petitioner again wrote to his attorney in the sexual offenses case on December 19, 2010,

stating his assumption that the trial court had granted “the Motion to pull my Guilty Plea on

my drug case.” He stated he had written to the trial court asking to withdraw the plea in the

sexual offenses case. He said he wanted to accept an “open plea” and have the trial court

sentence him. He wanted counsel to continue representing him in the sexual offenses case,

but he disparaged the public defender’s office regarding the drug case. He wanted counsel

to have the victim testify, stating, “He can help me to get way less time. That the 20 yrs. I

got. [sic]” He also stated

So, [H]opefully, [i]t’s not to[o] late to file the Motion to pull the

Guilty Plea. I prayed every night after I sent [the trial court and

one of the attorneys in the drug case] my [letters] on pulling the

[p]lea in the drug case. And it worked. Now I will [p]ray over

getting this [r]ape [p]lea pulled. You said it was my [l]ife. So,

[y]ou are right. So, I want to take a chance and see what

[happens].

The Petitioner testified that he wanted to withdraw the guilty pleas in the sexual

offenses case because he should have been charged with statutory rape by an authority figure,

rather than rape. He said the sentence for rape was greater than for statutory rape. He

claimed, “I told them that for 10 months.”

Lewisburg Police Detective Scott Braden testified that he interviewed the victim, the

victim’s mother, and the Petitioner’s cousin shortly before the plea agreement was reached.

He said the victim’s statement of the facts remained the same. He said the Petitioner’s cousin

told him that he had nothing to say that would have been of any interest or benefit to the

Petitioner and that in fact, it might hurt his case.

Trial counsel testified that the Petitioner’s eighty-six-year-old aunt retained him to

represent the Petitioner in the sexual offenses case. He said he was concerned about the

exposure the Petitioner faced from the charges, which included eight counts of rape, one

count of sexual battery by an authority figure, one count of incest, and three counts of

electronic communication with a minor for the purpose of sexual arousal or gratification. He

said the rape and sexual battery charges involved the Petitioner’s fourteen-year-old son. He

said he was “not impressed with” two of the electronic communication offenses but noted

that the third involved the Petitioner’s sending a lewd photograph of himself to his sixteenyear-old daughter. He said the State had written confessions in which the Petitioner admitted

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oral penetration involving his son. He said he did not pursue bond after the Petitioner was

arrested in the drug case because the Petitioner had written him a letter threatening to kill the

prosecutor if he were released and because counsel “couldn’t trust him out on bond” after the

drug charges occurred.

Trial counsel said neither he nor his office had a practice of browbeating defendants

to accept plea offers. He said there was no “high pressure sales pitch” at the meeting on

November 17, 2010, and noted numerous additional meetings with the Petitioner before

November 17. He stated that the State’s first offer for the sexual offenses case was forty

years at 100% service and that the second offer was for thirty years to settle both cases, with

a twenty-four-year sentence for the sexual offenses and six years for the drug case. The final

offer was twenty-six years to settle both cases, with two consecutive ten-year sentences for

rape and two consecutive three-year sentences for the drug offenses. He said that he thought

the third plea offer was better than the forty-year offer, that he informed the Petitioner, and

that the Petitioner appeared to understand. He said the plea offer would not have expired if

the Petitioner did not accept it by November 17, 2010. He noted that a trial date had not been

set.

Trial counsel testified that he did not interview the Petitioner’s cousin. He said the

Petitioner wanted his cousin to testify that the Petitioner had notsexually abused the cousin’s

children but noted it was not relevant to the Petitioner’s charges. He stated that he learned

after police detectives reinterviewed the witnesses that the cousin did not have favorable

defense testimony. He said that based upon information he received from the prosecution,

he was confident the victim would testify in accord with his previous statements. He said he

did not interview the victim because he did not think it would be beneficial to the defense or

the victim.

Trial counsel testified that the Petitioner wrote him a letter with the same date as the

guilty plea hearing, in which the Petitioner thanked him for his work on the sexual offenses

case and asked him to help the Petitioner’s aunt with legal matters. He identified the

Petitioner’s November 17, 2010 and December 10, 2010 letters. He received the latter on

December 13. He identified a December 19, 2010 letter, which was received more than thirty

days after the guilty plea hearing. He said it was in this letter that the Petitioner first

mentioned withdrawing his guilty plea in the sexual offenses case. He said the Petitioner

continued to write to him about once a week until April 11, 2011.

Trial counsel said he would have taken the Petitioner’s case to trial if the Petitioner

had chosen. He thought the case would be “like shooting fish in a barrel” for the State. He

said the Petitioner faced “some horrendous time” if convicted.

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Trial counsel acknowledged hisletterstating that a fourteen-year-old could not legally

consent to sexual activity with the fourteen-year-old’s father and said he thought this was an

accurate legal statement. He said that whether this was an accurate statement of the law, a

jury would not view a consent defense favorably. He denied calling the Petitioner an idiot

and stated he was pointing out the idiocy of having a witness testify that the Petitioner was

truthful, given that the Petitioner had confessed to the offenses. He agreed that the Petitioner

wanted the indictment amended to statutory rape. He said he had no ability as a defense

attorney to amend an indictment.

Trial Court’s Ruling

After receiving the proof, the trial court held that the Petitioner did not prove that the

attorneys in either case failed to provide the effective assistance of counsel. With regard to

the failure to file a motion to withdraw the guilty plea, the court found:

Soon after his plea, [the Petitioner] wrote complaining about his

attorneys and wanting to withdraw his plea.

It put the Public Defender’s [O]ffice in an untenable

position, to either follow their client’s wishes and file a motion

that they didn’t think had any merit to it and accuse themselves

of ineffective assistance, which they didn’t believe to be true, or

to do nothing. That is why the Court had to appoint [postconviction counsel].

The court also held that the Petitioner failed to prove that his pleas were not freely and

voluntarily given. The court noted that the Petitioner failed to call his cousin and the victim

of the sexual offenses as witnesses at the post-conviction hearing. In its written order

denying relief, the court found that the Petitioner’s testimony about being pressured into

accepting the plea bargain was not credible and it specifically accredited the attorneys’

testimony.

I

On appeal, the Petitioner contends that his counsel in both cases provided ineffective

assistance. The State contends that the trial court correctly determined that the Petitioner

failed to prove this claim. We agree with the State.

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

for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, we

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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, 456-57 (Tenn.

2001). Because they relate to mixed questions of law and fact, we review the trial court’s

conclusions as to whether counsel’s performance was deficient and whether that deficiency

was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.

Post-conviction relief may only be given if a conviction or sentence is void or voidable

because of a violation of a constitutional right. T.C.A. § 40-30-103 (2006).

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

made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient

and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing

that counsel’s performance fell below a reasonable standard is not enough because the

Petitioner must also show that but for the substandard performance, “the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. 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).

A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997). The performance prong requires a petitioner raising a claim of ineffectiveness to

show that the counsel’s representation fell below an objective standard of reasonableness or

“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

The prejudice prong requires a petitioner to demonstrate that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. A reasonable probability means a “probability sufficient

to undermine confidence in the outcome.” Id.

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 attorneysin 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). Baxter, 523 S.W.2d at 936. 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 perspective at the

time.” Strickland, 466 U.S. at 689; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

Thus, the fact that a particular strategy or tactic failed or even hurt the defense does not,

alone, support a claim of ineffective assistance. Cooper v. State, 847 S.W.2d 521, 528

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(Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they are

informed ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201; Hellard,

629 S.W.2d at 9.

Trial Counsel in the Drug Case

The Petitioner contendsthat his counsel in the drug case were ineffective because they

failed to investigate and prepare for trial, pressured him into accepting the plea offer, and

failed to file a motion to withdraw his guilty plea. The assistant district public defenders

testified that they investigated and prepared for trial and would have gone to trial if the

Petitioner had chosen. One of the attorneys testified that they did not speak with the

Petitioner’s cousin because the cousin’s only connection to the case was that the Petitioner

and the co-defendant were driving the cousin’s truck when they committed the offenses. The

Petitioner’s cousin did not testify at the hearing. See Black v. State, 794 S.W.2d 752, 757

(Tenn. Crim. App. 1990) (stating that “[w]hen a petitioner contends that trial counsel failed

to discover, interview, or present witnesses in support of his defense, these witnesses should

be presented by the petitioner at the evidentiary hearing.”). Counsel testified that they did

not pressure the Petitioner into accepting the plea offer. The trial court accredited the

testimony of counsel and found the Petitioner’s testimony not credible. The record does not

preponderate against the trial court’sfactual determinations about counsel’sinvestigation and

preparedness. The record likewise does not preponderate against the court’s factual

determinations that the Petitioner’s counsel did not pressure him to accept the plea offer.

Regarding the Petitioner’s claim that counsel in the drug case failed to provide

effective assistance because they failed to file a motion to withdraw his guilty plea, we note

that the trial court’s findings do notspecifically address this as a question of the effectiveness

of counsel. Within the time allowed to file a motion to withdraw a guilty plea, the Petitioner

communicated his desire to withdraw the pleas in the drug case if it would not affect the

sexual offenses case. The attorney wrote the Petitioner a letter explaining that withdrawing

the plea in the drug case placed the disposition of the sexual offenses case in jeopardy. Trial

counsel admitted he took no further action on the Petitioner’s behalf. Within the time period

for filing a motion to withdraw the plea, counsel should have filed the motion or affirmed

that the Petitioner no longer wished to pursue withdrawal of the plea.

The record does not, however, support a finding that the Petitioner was prejudiced.

In addressing the question of whether the Petitioner freely and voluntarily accepted the plea

offer, the trial court said:

The [Petitioner]’s testimony at the post-conviction hearing that

his attorneys coerced and pressured him into pleading guilty is

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not credible. In fact, they properly advised him about the

ramifications of rejecting the proposed settlement such as the

likelihood of conviction and longer sentences. . . . The

[Petitioner] may not have liked the situation that he found

himself in but he himself put himself in that situation.

. . .

The post-conviction court finds that the guilty pleas were made

voluntarily, understandingly and knowingly. . . . The Court

accredits counsels’ testimony in all respects and does not find

the [Petitioner]’s testimony credible in part because he himself

admitted committing perjury and he was less than forthright

about the extent of his criminal record.

Had counsel filed a motion to withdraw the guilty plea, the Petitioner would have had to

establish that he should be allowed to withdraw the pleas to correct manifest injustice. Tenn.

R. Crim. P. 32(f)(2). The trial court discredited the Petitioner’s testimony and rejected the

claim he pled guilty because his attorneys coerced him into doing so. Because the trial court

rejected the factual premise upon which the Petitioner contends he sought to withdraw the

pleas, he has not shown that he was prejudiced by trial counsel’s actions. He is not entitled

to relief on this basis.

Trial Counsel in the Sexual Offenses Case

The Petitioner contends that trial counsel in the sexual offenses case was likewise

ineffective for failing to investigate and prepare for a trial and for pressuring him into

accepting the plea agreement. Regarding the investigation and preparation for a trial, counsel

testified that he did not interview the Petitioner’s cousin because the cousin’s testimony that

the Petitioner never sexually abused the cousin’s children would not have been relevant. He

also said he learned that the cousin would not provide favorable testimony. He did not

interview the victim because the victim reaffirmed the accusations when further interviews

were conducted by the State. Counsel saw no benefit to the Petitioner or the victim from

interviewing the victim. Neither the Petitioner’s cousin nor the victim testified at the postconviction hearing. See Black, 794 S.W.2d at 757. The Petitioner failed to show that trial

counsel did not adequately investigate and prepare the case and failed to establish prejudice

when he failed to present the cousin and the victim as witnesses in the post-conviction

proceeding.

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Regarding the Petitioner’s contention that trial counsel pressured him into accepting

the plea offer, counsel testified that he and the other attorneys discussed the realities of the

situation with the Petitioner. Although he thought the Petitioner’s better course was to plead

guilty, he would have taken the case to trial had the Petitioner rejected the plea offer. He

reviewed the evidence with the Petitioner and was familiar with the case. The trial court

accredited trial counsel’s testimony. The evidence does not preponderate against the trial

court’s factual findings.

Regarding the Petitioner’s contention that trial counsel was deficient in failing to file

a motion to withdraw the guilty pleas, we note that although the Petitioner told the attorney

in the sexual offenses case that he was seeking to withdraw his plea in the drug case, he did

not tell the attorney that he wanted to withdraw the plea in the sexual offenses case until after

the judgments were final. Had a motion been filed at this point, it would have been

dismissed because the court was without jurisdiction to consider its merits.

The Petitioner failed to establish his ineffective assistance claim against his attorney

in the sexual offenses case by clear and convincing proof. He is not entitled to relief on this

basis.

II

The Petitioner contends, for the first time on appeal, that the trial court erred in

treating his letters to his attorneys and the trial court as a petition for post-conviction relief.

The State contends that the issue is waived because it was not raised in the trial court. We

conclude that the Petitioner is not entitled to relief.

As we noted, the record contains letters the Petitioner wrote to his attorneys after the

guilty pleas. The record does not contain the letter or letters the Petitioner wrote to the trial

court after the guilty pleas, although the existence of this written correspondence from the

Petitioner is not contested. The record does not reflect the date of the written communication

to the court, although a December 15, 2010 letter from one of the attorneys in the drug case

advised the Petitioner that the court had received a letter and decided to treat it as a postconviction matter. This supports a conclusion that the court received a letter from the

Petitioner before the judgments were final.

In his testimony, the Petitioner agreed that “this petition started out by [his] writing

letter of complaints [sic] addressed [to the trial court.]” After considering the letters to the

attorneys and to the court to be in the nature of a post-conviction petition, the court appointed

counsel. The Petitioner, through his appointed counsel, filed a post-conviction petition and

presented proof at a hearing in support of his claims. The record does not reflect that he

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attempted to have the court consider his letters as a timely pro se motion to withdraw his

pleas or that he otherwise objected to the nature of the proceedings. Rather, he cast the

failure to file a motion to withdraw the guilty pleas as ineffective assistance of counsel by

his attorneys.

We acknowledge that this court has considered sua sponte whether a trial court erred

in treating a petitioner’s motion to withdraw a guilty plea as a petition for post-conviction

relief. David Wayne Hearing v. State, No. E2006-00362-CCA-R3-PC, Greene County

(Tenn. Crim. App. Dec. 28, 2006). In David Wayne Hearing, the petitioner filed a pro se

motion to withdraw his guilty plea. The trial court treated the motion as a petition for postconviction relief, although its reasons for doing so did not appear in the record. The court

appointed counsel, an amended petition was filed, the petitioner presented his claims at an

evidentiary hearing, and the trial court denied relief. Although the issue was not raised by

the parties, we held that the trial court erred in considering the motion to withdraw the plea

as a post-conviction petition. Noting the difference between the required showing of

“manifest injustice” for withdrawal of a guilty plea and the burden in a post-conviction

proceeding, we remanded the case for an adjudication of the motion to withdraw the pleas.

Slip op. at 2;see also Jason Lewis Adams v. State, No. E2001-02765-CCA-R3-PC, Hamilton

County, slip op. at 3 (Tenn. Crim. App. May 27, 2003).

In the present case, the Petitioner indicated he wanted to withdraw the pleas in the

drug case before the time for filing a motion to withdraw had elapsed. He did not indicate

his desire to withdraw the pleas in the sexual offenses case until after that time expired. The

Petitioner did not file a pro se motion to withdraw his plea. Rather, he wrote a letter to the

court complaining about his attorneys. The record does not support a conclusion that the

court erred when it appointed counsel to assist the Petitioner in pursuing post-conviction

relief, rather than interpreting the Petitioner’s letter complaining about the attorneys as a

motion to withdraw the pleas. Furthermore, we note that the Petitioner’s signature appears

on the formalized post-conviction petition that was filed on February 25, 2001, and his

execution of this document was duly verified.

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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