### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs A

pril 25, 2001 DANIEL M. BANKS v. STATE OF TENNESSEE Direct Appeal from the Circuit Court for Sullivan County No. C43,740 Phyllis H. Miller, Judge

No. E2000-02620-CCA-R3-CD July 10, 2001 The petitioner, Daniel M. Banks, appeals the trial court's denial of his petition for post-conviction relief. Because the petitioner was provided the effective assistance of counse l and knowingly and voluntarily

entered his

pleas of guilt to possession of marijuana with intent to sell, possession of over 0.5 grams of

c ocaine with intent

to sell, and possess

ion of drug para

phernalia, the ju

dgment is affirmed. Tenn. R. App. P. 3; Ju dgment of the Trial

Court Affirmed. G ARY R. W ADE , P.J., delivered the o pinion of the court

, inwhich J ERRY L. S MITH and T HOMAS T. W OODALL , JJ., joined. William A. Kennedy, Assistant Public Defender, Blountville, Tennessee, for the appe llant, Daniel M. Banks. Paul G. Summers,

Attorney General & Reporter; Peter M. Coughlan, Assistant Attorney

General; and Lewis Combs, Assistant District Attorney General, for the appe llee, State of Tennessee.

OPINION On March 11, 1999, the petitioner, Daniel M. Banks, entere

d best-interest

pleas of guilt to possession of marijuana with intent to sell, a Clas s E felony; po sse ssion of more than .5 grams of cocainewith intent to sell, a Cla ss B fel ony; and possession of d rug parapher

nalia, a Class A misdemeanor. SeeTenn. Code Ann. §§ 3 9-17-417, -425; see also North Carolina v. Alford , 4 00 U.S. 25 (1970). At the sentencing hearing, the trial court imposed a Range I sentence of

two years for the possession of marijuana charge; 11 years for the possession of cocaine; and 11 months and 29 days for the possession of drug paraphernalia. The

trial court ordered the sentences to be served concurrently. The petitioner was also fined $13,750.00.-2-

On Feb ruar y 22, 2000, the petitioner filed this petition for post-conviction relief. At the evidentiary

hearing, he testified that

his trial counsel ha

d informed him that t

he state intended to add guncharges and that he could either plead guilty to the dr ug charges and receive a nine-y ear sentence or go to trial and risk a 33-year sentence. He c laimed that he was pressured into his decision when his trial counsel said, "Hurry, hurry, te ll me something. . . . I’ve got the judge on the phone." The petitioner contended that " it

was already

decided" that he

would receive a nine-year sentence a nd that the state would not prosecute him on the gun charges. The petitioner claimed that his father’s dea

th andhis own declinin

g he alth contributed to

his decision to plea

d guilty. At

the time of his guil

ty plea, the petitioner had been diagnosed with multiple sclerosis.
On cross-examination, the petitioner stated that when the state first offered him a nine-year sentence, he left the decision up to his trial counsel, who subsequently rejected the deal. When asked by the state if he would haveaccepted the nine-year offer, the petitioner responded as follows: "No,

. . . . I hadn’t thought about it. I probably would have taken nine (9) at the time, . . . . I don’t know.

. . ." He then conceded

that no one had actually communicated to him that he would receive a nineyear sentence. Trial counsel testified

that the state fir

st offer ed the petitioner

a 10-year

plea agreeme

nt, which was subsequently dropped to nine years. He maintained that

he discussed the case with the petitioner on s ever al o ccas ion s an d th at t he p eti tio ner h ad re jec ted the nin e-ye ar of fer because probation was only possible with an eight -year sentence or less. Trial counsel testified that the petitioner e ventually accepted a "blind plea," hoping that the tria l court would impose only eight years and consider an alternative sentence.
In this appeal, the petitioner first asserts that his trial counselwas ineffective. Spe cif ica lly, he claims that his attorney assured him that he was guaranteed a sentence of no more than nine y

ears. In deny ing the petitione

r post-conviction

relief, the tria

l court ruled as f

ollows: Petiti onerneve r accepted the State’s offer of nine year s . . . because it was not probatible. The Court finds that there is no credible evidence that Petitioner believed he would get a nineyear sentence . . . at the sentenc

ing hearing. I

n fact, it appear

s to the Court that Petition er may hav e actually planned to try to have his sentenc e set aside if he did not receive a sentence he desired. Petitioner was specifically asked by the Court at the plea hearing whether anyone had made any promises to him, other than the agreement that the State would not charge him on a weapons charge in order to get him to plead guilty. He had an opportuni ty a t that time to tell the Court that he had been promised nine years. He did not do so. Instead, he restricted his answer to, "No one has forced me, no." The Court also

finds that Petitioner has failed to proveto any extent t hat [his trial counsel] was ineffective for f a iling to explain [the] sentence. After the Court has conducted a sentencing hearing and imposed s entence, Petit ioner cannot log

ically-3-

complain that an explanation

of his sentenc e at that point would have affected

his decision to enter the pleas in the first place.
In a post-conv iction pro ceeding, the petitioner has the burden of proving factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). The findings of fact made by the trial court are c

onclusive on appe

al unless the petiti

oner is able to establ ish that the evidence preponderates against those f indings. Clenny v. Stat

e , 576 S.W.2d 12 (Tenn. Crim. App. 1978); Graves v. State

, 512 S.W.2d 603 (Tenn. Crim. App. 1973). When a petitioner seeks post-conviction relief on the basis of ineff ectiv e assistance of counsel, he must first establish that the services rendered or the advice given was below "t he range of competence de manded of attorneys in criminal cases. " Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he m ust show that the deficiencies "actually had an adverse e ffect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). The petitioner is not entitled to the benefit of hindsight, may not second-guess

a reasonably basedtrial strategy, and

cannot criticize a sound, but unsuccessful, tactical decision made during the course of proceedings. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel, howe ver, appl ies only if the choices are made after adequate preparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Our review of

this record establishes that the petitioner received the effective assistance of counsel. The petitioner ac knowledged tha

t he had no agre

ement with the state and that he understoodthat he could

receive a maximum sentence of 14 years. Even in hindsight, the petitioner was equivocal when asked whether he would have accepted the nine-y ear agreemen

t. Nothin g in this record sugg

ests that trial cou

nsel performed a

t a level below pro

fessional guide

lines. The petitioner next arg

ues t hat his plea was neither knowingly nor voluntarily made. S peci fic all y, he claims that he was not fully aware of the consequences of his plea be cause h e believed that he would receive no more than a nine-year sentence. In rejecting

the petitioner’s c

laim, the trial cou

rt concluded as f

ollows: [A] review of the transcript of the guilty plea hearing and Petitioner’s testimony at the Post-Conviction hearing reveals that Petition er’s pleas w ere knowing, voluntary and intelligently entered.
At the guilty plea

hearing, petitioner submitted a "Request for Acceptance of Pleaof Guilty, Waiver of Rights" form

. . . . He acknowledged, under oath, that he hadsigned the form on

the front and

back and that he h

ad gone over it f

ully with his att orn ey. . . . The form state d the offenses to

which Petitioner was pleading and the minimum and maximum sentences and fines for each offense. The form was blank as to any ag

reed sentence

s.-4- *** The court advised petitioner in detail of the possible sentences and fines he could receive, that hi

s effective sen

tence could ran

ge from a minimum of

eight years to a maximum of fourtee n years plus eleven months twenty-nine day s. Petitioner stated repeatedly that he understood the possible sentences he could rec eive.
In B oykin v. Alab

ama , 395 U.S. 238 (1969), the United States Supreme Court ruled tha t defendants

should be advised of certain of their constitutional rights before entering pleas of guilt. Included a m ong those required warnings are the right against self-incr imination, the right to confront witnesses,and the right to a trial by jury. Id. at 243. The o verriding Boykin requirement is that the guilty plea must b e know ingly and voluntarily made. Id. at 242. If the proof establishes that the petitioner was aware of his cons titutio nal rights, he is entitled to no relief. Johnson v. State , 834 S.W.2d 922, 926 (Tenn. 199 2). "[A] plea is n

ot 'volunt ary' if it is the product of '[i]gnorance, incomprehension, coercion, terr or, inducements, [o

r] subtle or blatant threats . . . .'" Blankenship v. State , 858 S.W. 2d 897, 904 (Tenn. 1993 ) (quoting Boykin , 395 U.S. at 242-43). Here, the trial court accredited the testimony of trial counsel who asserted that the petitioner entered a "blind plea" in hopes of receiving no more than an eight-year sentence. Further more, the trial court rejected

the petitioner's claim that he had been pressured or coerced and found that he had enter ed an intelligent, knowing, and voluntary plea. The evidence in the re cord does not preponderate a

gainst those find

ings. Accordingly, the judgment is affirmed.

____________________________________ GARY R. WADE, PRESIDING JUDGE