IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 15, 2003 Session

MATTHEW BRUCE HENDERSON v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 2000-D-2031 Cheryl Blackburn, Judge

No. M2002-02501-CCA-R3-PC - Filed August 14, 2003

The petitioner, Matthew Bruce Henderson, appeals the denial of his petition for post-conviction

relief. The petitioner originally entered best interest guilty pleas to two counts each of rape of a

child, aggravated sexual battery, and statutory rape, and received an effective sentence of twentyfour years. On appeal, the petitioner contends (1) he received ineffective assistance of counsel in

entering his pleas; (2) the trial court erred in failing to hold a competency hearing prior to accepting

his pleas; and (3) his guilty pleas were not knowingly and voluntarily entered. Upon review of the

record and applicable law, we affirm the judgment of the post-conviction court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.

WOODALL, JJ., joined.

Charles E. Walker, Nashville, Tennessee, for the appellant, Matthew Bruce Henderson.

Paul G. Summers, Attorney General andReporter; Elizabeth B. Marney, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The petitioner was originally charged with six counts of rape of a child, six counts of

aggravated sexual battery, four counts of rape where the victim was mentally defective, four counts

of statutory rape, and two counts of especially aggravated sexual exploitation of a minor. See Tenn.

Code Ann. §§ 39-13-503(a)(3) (rape of a mentally defective victim); -504(a) (aggravated sexual

battery); -506(a) (statutory rape); -522(a) (rape of a child); -17-1005(a) (especially aggravated

sexual exploitation of a minor). The petitioner entered best interest guilty pleas to two counts each

of rape of a child, a Class A felony; aggravated sexual battery, a Class B felony; and statutory rape,

a Class E felony. See id. § 39-13-504, -506, -522. Pursuant to the plea agreement, the petitioner

received an effective sentence of twenty-four years.
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FACTS

According to the facts presented by the State at the petitioner’s plea hearing, the petitioner

was the manager of an apartment complex where the victims’ family resided. The three victims

were sisters, ranged in age from six to thirteen, and were all disabled or mentally retarded to varying

degrees. The petitioner paid the victims to clean vacant apartments, and the victims had to go to the

petitioner’s office, where the incidents occurred, in order to obtain the work.

At the post-conviction relief hearing, the petitioner testified trial counsel met with him once

at the Criminal Justice Center (“CJC”) for approximately five to ten minutes. During this meeting,

trial counsel provided the petitioner with the indictment and a list of the ranges of punishment for

each offense. The petitioner stated counsel did not provide him with discovery materials prior to

entering the pleas. He maintained that the discovery materials were proof of his innocence, and, had

he been provided with the documents prior to the plea hearing, he would not have entered the pleas.

The petitioner testified trial counsel informed him that the State had an audiotape recording

of his confession to the police. He denied confessing to the police. The petitioner further stated he

listened to the audiotapes prior to the post-conviction hearing, and he did not hear a confession on

the tapes.

The petitioner testified trial counsel did not discuss defense strategies or tactical decisions

with him. He claimed counsel informed him that because he confessed, he would be convicted if

the case went to trial. The petitioner stated trial counsel met with him at the courthouse to discuss

a possible plea. He recalled that the State first offered forty-six years but eventually reduced the

offer to twenty-four years. The petitioner was then granted a one-week continuance in order to

discuss the plea with his wife.

The petitioner testified that when he entered the pleas, his mind was “all screwed up”

because his medication had been changed. The petitioner stated he suffers from depression, bipolar

disorder, and diabetes and has problems with his heart and lungs. The petitioner testified that

although he had stated during his plea hearing that he was taking Zoloft, his medication had been

changed prior to the plea hearing, and he had been taking Celexa instead. He further stated that at

the time he entered the pleas, he was no longer taking Depakote to treat his bipolar disorder and, as

a result, was not “thinking right.” The petitioner testified he was unable to understand the “full

circumstances” of pleading guilty because of “stress” and “nerves” and partly because of his

medication. He stated that, without the medication, he was on the “verge of a nervous breakdown.”

Byron Grizzle, the records manager for the Davidson County Sheriff’s Department, testified

the petitioner’s visitation records indicated trial counsel visited the petitioner at the CJC on one

occasion for approximately thirty-five minutes. Grizzle further stated the department did not

maintain records of meetings between trial counsel and the petitioner which occurred at the

courthouse.

Deborah McDonald, the health services administrator at the sheriff’s department, testified

that the petitioner’s medical records indicated he was taking various medications for mental health
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problems during his incarceration at the CJC. He also met with a psychiatrist on several occasions;

however, he was not diagnosed by the psychiatrist as suffering from a specific mental health disease.

Trial counsel testified he obtained discovery from the State and provided the petitioner with

discovery materials. He stated he reviewed audiotapes of the police interview with the petitioner

during which the petitioner made several “damning” admissions. Trial counsel stated he did not file

a motion to suppress the statements because, based upon what he heard on the audiotapes and the

petitioner’s explanation of the circumstances under which the statements were given, he believed

the statements were voluntary.

Trial counsel testified the audiotape revealed that the petitioner confessed to more offenses

than were listed in the indictment. Whenever the petitioner made an admission on the audiotape,

trial counsel wrote down the offense, the class of the felony, and the range of punishment. He

discussed the confession with the petitioner. The petitioner did not actually listen to the audiotapes

because CJC officials did not allow audiotape recorders to be brought inside the building. The

discovery materials also contained a synopsis of the confession.

Trial counsel testified he informed the petitioner that he had taken similar cases to trial, and,

based on his experience, a jury is more likely to convict a defendant on all counts listed in the

indictment rather than a select few. Counsel further told the petitioner the trial court could impose

consecutive sentences because the case involved multiple child victims and the mental condition of

the victims would likely be an enhancement factor.

Trial counsel testified he met with the petitioner on several occasions at the courthouse and

once at the CJC. He stated the petitioner also frequently called him at his office to discuss the case.

Trial counsel further stated he informed the petitioner of the progress of plea negotiations and fully

discussed his options and the evidence against him. He testified the State originally offered a thirtytwo-year sentence, but he successfully negotiated a best interest plea with a twenty-four-year

sentence.

Trial counsel testified he and the petitioner discussed possible defense strategies. The

petitioner advised him that due to health problems and his medication, he was impotent. Trial

counsel informed the petitioner that impotence would not be a defense to the charges which did not

involve penile penetration. Counsel stated he did not interview any doctors or obtain any medical

reports because the petitioner told him what the doctors’ testimony would be, and he had no reason

to doubt the petitioner’s assertions. He stated he would have interviewed the doctors had the case

been set for trial.

Trial counsel testified that the only other possible defense witness was the victims’ mother,

who stated that the victim of the child rape offenses frequently lied. He later discovered that on one

occasion, the mother had visited the petitioner’s residence accompanied by one of the victims, and

the petitioner had taken nude photographs of the mother in the victim’s presence. Counsel opined

that the mother would not have made a favorable impression on the jury. 
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Trial counsel testified he did not interview the victims. He stated he believed an interview

was unnecessary at that time and, because the victims had been placed in a special home, arranging

an interview would have been difficult. Counsel opined that because the victims were mentally

impaired, the amount of information obtained from the interview would have likely been

“negligible.” He acknowledged the victims’ statements contained contradictions but believed them

to be immaterial. 

Trial counsel stated he did not believe a mental evaluation prior to the plea hearing was

necessary. He stated that although the petitioner complained of depression, he was “very lucid,”

understood the proceedings and the charges against him, and had no difficulties in communicating.

Trial counsel opined that twenty-four years was the lowest sentence upon which the State

would agree. Once the offer was made, the plea hearing was continued once or twice to allow the

petitioner time to fully consider the offer. Trial counsel stated it was the petitioner’s decision to

enter the pleas.

In its extensive written findings, the post-conviction court found trial counsel met with the

petitioner on numerous occasions, spoke to him over the telephone, and permitted him to consider

the plea offer prior to the hearing. The court accredited trial counsel’s testimony that the petitioner

called him at his office on numerous occasions to discuss his case, and that he provided the

petitioner with all discovery materials prior to the plea hearing. The post-conviction court found

the petitioner failed to show trial counsel was ineffective in failing to meet, advise, or fully inform

the petitioner and failed to establish that he was prejudiced.

The post-conviction court found trial counsel was not ineffective for failing to file a motion

to suppress the petitioner’s confession to the police. The court specifically accredited trial counsel’s

testimony that no grounds to file a motion to suppress existed. The court further found that the

petitioner failed to establish prejudice.

The post-conviction court found trial counsel’s failure to interview expert medical witnesses

did not constitute ineffective assistance of counsel. The court noted that trial counsel testified the

petitioner informed him of his medical conditions and his impotence, and impotence would not be

a defense to those sexual offenses in which penile penetration was not an element. The postconviction court further found that the petitioner failed to establish prejudice.

The post-conviction court also found no deficiency in trial counsel’s failure to interview the

victims, noting counsel’s belief that any information obtained from the mentally impaired victims

would be negligible. Furthermore, the court accredited counsel’s opinion that the petitioner’s

admissions were “damning” and would be difficult to overcome with defense witnesses. The court

noted that although the victims’ mother would have testified that one of the victims frequently lied,

trial counsel did not interview her because he knew what her testimony would be, and he believed

she would be a poor defense witness due to her participation in a sexually graphic photo shoot with

the petitioner in the presence of one of the victims.
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Regarding trial counsel’s failure to request a mental health evaluation of the petitioner, the

post-conviction court noted that during the plea hearing, the trial court questioned the petitioner

about his medications and whether they interfered with his ability to understand the proceedings.

The post-conviction court found that the petitioner’s responses indicated he knowingly entered the

pleas. The court noted that at the post-conviction hearing, the petitioner conceded his pleas were

not influenced by his medication, rather “it was more nerves.” The post-conviction court concluded

the petitioner did not receive ineffective assistance of counsel, and he knowingly and voluntarily

entered his best interest pleas.

ANALYSIS

I. Ineffective Assistance of Counsel

The petitioner contends he received ineffective assistance of counsel in entering his best

interest pleas. We disagree.

A. Ineffective Assistance of Counsel, Generally

When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the

petitioner bears the burden of proving (1) that counsel’s performance was deficient, and (2) the

deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial

was unreliable or the proceedings were fundamentally unfair. Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). This standard has also 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). When a petitioner claims ineffective assistance of counsel in

relation to a guilty plea, the petitioner must prove that counsel performed deficiently, and, but for

counsel’s errors, petitioner would not have pled guilty but would have, instead, insisted upon going

to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985). 

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the

services be rendered within the range of competence demanded of attorneys in criminal cases. 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, 104 S. Ct. at 2065; see Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). 

The petitioner bears the burden of proving by clear and convincing evidence the factual

allegations that would entitle petitioner to relief. Tenn. Code Ann. § 40-30-210(f). This court is

bound by the post-conviction court’s findings of fact unless the evidence preponderates against those

findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

B. Failure to Meet with the Petitioner

The petitioner contends trial counsel was ineffective in failing to adequately meet with him

in order to investigate the case and advise him of his options. The petitioner maintains trial counsel
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met with him only once at the CJC and failed to provide him with discovery materials prior to the

plea hearing. However, the post-conviction court accredited trial counsel’s testimony that they met

and discussed the case once at the CJC and on several other occasions at the courthouse, and that

the petitioner frequently called counsel at his office to discuss the case. Trial counsel further stated

he provided the petitioner with discovery materials prior to the plea hearing, discussed defense

strategies with him, and fully advised him of the applicable law and his options. The evidence does

not preponderate against these findings.

C. Failure to File a Motion to Suppress

The petitioner contends trial counsel was ineffective for failing to file a motion to suppress

his confession. However, the post-conviction court accredited trial counsel’s testimony that the

petitioner’s statements were voluntary and there was no basis to file a motion. Furthermore, the

petitioner failed to establish any basis upon which the motion would have been granted had it been

filed. This issue is without merit.

D. Failure to Investigate

The petitioner next takes issue with trial counsel’s failure to interview the victims. The

victims did not testify at the post-conviction hearing, and we may not speculate as to what their

testimony might have been. The petitioner has failed to establish that interviews with the victims

would have impacted his pleas; therefore, the petitioner has failed to establish prejudice. See Black

v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

E. Failure to Seek Expert Medical Witnesses

Finally, the petitioner maintains trial counsel was ineffective in failing to interview expert

witnesses regarding his impotence. However, the petitioner failed to present an expert witness at

the post-conviction relief hearing. Therefore, the petitioner has failed to establish prejudice. See

id. Furthermore, trial counsel testified that although the petitioner informed him of his impotence,

counsel did not believe an interview with a doctor was necessary at that point in time. Trial counsel

also stated that impotence would be no defense to the offenses in which penile penetration was not

an element. The post-conviction court found counsel was not deficient. The evidence does not

preponderate against the findings of the post-conviction court.

II. Competency Hearing

The petitioner contends the trial court erred in failing to hold a competency hearing prior to

accepting his guilty pleas. He maintains that the trial court had notice of his mental health

deficiencies. We conclude the petitioner is not entitled to relief on this issue.

Requiring an accused to enter a plea or stand trial while mentally incompetent violates both

the United States and Tennessee Constitutions. See U.S. Const. amend. XIV; Tenn. Const. art. 1,

§ 8; Clark v. State, 800 S.W.2d 500, 505 (Tenn. Crim. App. 1990). An accused is competent to

stand trial if he has “the capacity to understand the nature and object of the proceedings against him,
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to consult with counsel, and to assist in preparing his defense.” Mackey v. State, 537 S.W.2d 704,

707 (Tenn. Crim. App. 1975). Our standard of review is “‘[w]hether a reasonable judge, situated

as was the trial judge whose failure to conduct an evidentiary hearing is being reviewed, should have

experienced doubt with respect to competency to stand trial’ [or enter a plea of guilty].” Clark, 800

S.W.2d at 506 (quoting Pate v. Smith, 637 F.2d 1068, 1072 (6th Cir. 1981)).

We note that in his post-conviction relief petition, the petitioner initially framed this issue

as an ineffective assistance of counsel claim and the post-conviction court addressed this issue as

it related to ineffective assistance of counsel. An appellant cannot change theories from the trial

court to the appellate court. State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001); State v.

Dooley, 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000). Regardless, we conclude this issue is

without merit.

At the plea hearing, the petitioner testified he took medication on a daily basis. The

petitioner informed the trial court that the medication did not affect his ability to comprehend the

proceedings. When the trial court asked the petitioner whether he clearly understood the

proceedings, the petitioner responded:

Yes, ma’am. I studied it long and hard in the last few days

since last week, and me and [trial counsel] met last week here.

. . . .

And I kn[o]w the whole consequences and everything of what

I’ve done and I’m sorry for it, and now I’ve got to pay for it.

Further, trial counsel testified that he saw no reason to question the competency of the petitioner.

The post-conviction court found no basis to question the petitioner’s ability to competently

enter a guilty plea. Our review of the plea submission hearing supports this finding. The evidence

does not preponderate against the finding of the post-conviction court.

III. Voluntariness of Guilty Pleas

The petitioner also contends his pleas were involuntary and unknowing. Our supreme court

has stated:

The cases of Boykin v. Alabama and State v. Mackey are the

landmark constitutional cases for analyses of guilty pleas. Boykin v.

Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)

(federal standard); State v. Mackey, 553 S.W.2d 337 (Tenn. 1977)

(state standard). In Boykin, the United States Supreme Court held

that before a trial judge can accept a guilty plea, there must be an

affirmative showing that it was given intelligently and voluntarily.

Id. at 242, 89 S. Ct. at 1711, 23 L. Ed. 2d at 279. In order to find that
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the plea was entered “intelligently” or “voluntarily,” the court must

“canvass[ ] the matter with the accused to make sure he has a full

understanding of what the plea connotes and of its consequences.”

Id. at 244, 89 S. Ct. at 1712, 23 L. Ed. 2d at 280 (emphasis added).

Likewise, in Mackey, this Court held that “the 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. . . .” 553 S.W.2d at 340.

State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). 

During the plea hearing, the petitioner stated he understood the plea agreement and

maintained it was his decision to enter the pleas. He further stated he and trial counsel discussed

the elements of each offense charged, the range of punishment for each offense, the possibility of

consecutive sentencing, the facts of the case, the State’s discovery materials, defense strategies, and

potential witnesses. Trial counsel testified the petitioner understood the ramifications of his pleas.

The post-conviction court determined the petitioner knowingly and voluntarily entered the pleas.

Likewise, our review of the plea submission hearing supports these findings. The evidence does not

preponderate against the post-conviction court’s finding; thus, this issue lacks merit. 

CONCLUSION

In summary, we conclude the petitioner failed to establish he received ineffective assistance

of counsel. Furthermore, the trial court did not err in failing to hold a competency hearing prior to

accepting the pleas, and the post-conviction court did not err in finding the petitioner knowingly and

voluntarily entered the pleas. Accordingly, we affirm the judgment of the post-conviction court. 

____________________________________

ALAN E. GLENN, JUDGE