IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 18, 2013

TINA G. STRICKLAND v. STATE OF TENNESSEE

Appeal from the Criminal Court for Carter County

No. 21056 Robert E. Cupp, Judge

No. E2013-01118-CCA-R3-PC-FILED-FEBRUARY 14, 2014

The Petitioner, Tina G. Strickland, appeals the Carter County Criminal Court’s denial of her

petition for post-conviction relief from her 2010 conviction upon a guilty plea for vehicular

homicide and her twelve-year sentence. The Petitioner contends that the trial court erred by

finding that her guilty plea was knowingly, voluntarily, and intelligently entered because she

received the ineffective assistance of counsel. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and ROGER A. PAGE, JJ., joined.

C. Brad Sproles, Kingsport, Tennessee, for the appellant, Tina G. Strickland.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Tony Clark, District Attorney General; and Melanie Sellers, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The record shows that at the guilty plea hearing on June 21, 2010, the trial court

reviewed with the Petitioner the charges against her and confirmed that she was pleading

guilty to vehicular homicide without a sentencing agreement. The court stated that she faced

possible punishment of eight to twelve years. The Petitioner responded that she understood

the plea agreement. She told the court that counsel reviewed the plea agreement with her and

that she signed the agreement because she was guilty of vehicular homicide. She denied

consuming alcohol, narcotics, drugs, medications, or mind-altering substances that might

affect her ability to understand what was happening in court. She admitted, though, that she
took muscle relaxers, vitamins, and iron supplements and used a breathing inhaler. The

Petitioner passed routine drug screens when she was released on bond. The court advised

the Petitioner that by pleading guilty she gave up the rights to have a jury trial, to crossexamine witnesses, to subpoena witnesses to testify on her behalf, and to testify on her own

behalf. She denied that she was forced, threatened, or promised anything in exchange for her

pleading guilty and said that her plea was voluntary and of her own free will. She said she

was pleased with counsel’s representation.

The trial court requested that the Petitioner state how the offense occurred. She said,

“I really don’t remember the accident, but I know I was drinking[.]” The last thing she

remembered was standing on Connie Whitehead’s porch. Although she had no memory of

the accident,she agreed she killed someone while driving her car. The victim was ninety-one

years old at the time of the accident. The Petitioner did not appeal her sentence but now

seeks post-conviction relief.

At the post-conviction hearing, the Petitioner testified that counsel failed to advise her

properly about the possible sentence she faced. She said counsel told her that the maximum

sentence was eight years, although the trial court sentenced her to twelve years. She said that

counsel advised her that pleading guilty was in her best interest but that after she pleaded

guilty, counsel wrote her a letter stating that the maximum sentence was twelve years. A

copy of the July 10, 2010 letter was received as an exhibit. In the letter, counsel stated,

I am writing to review our discussion on sentencing and to correct one thing

we discussed. When we were talking about the maximum amount of jail time

Judge Cupp could give you, I told you 8 years. I was using the bottom of the

range, which is our usual agreement with the State. In your case, as you recall,

we don’t have such an agreement. Therefore, Judge Cupp could give you any

sentence within the range, which is 8-12 years.

Counsel also discussed in the letter the possibility of probation if the trial court sentenced her

to ten years or less. Counsel also advised that at least one enhancement factor applied, which

provided the court with the authority to increase her sentence from the minimum sentence.

The Petitioner testified that she and counsel never discussed a sentence higher than

eight years. She admitted, though, that the trial court questioned her at the guilty plea hearing

about her knowledge of the sentencing range. She said that she understood the sentencing

range and that she faced a maximum sentence of twelve years after the court told her at the

guilty plea hearing.

-2-
The Petitioner testified that she would not have pleaded guilty had she known she

would receive more than eight years. She said that although she learned at the guilty plea

hearing that she faced a twelve-year sentence, she entered a guilty plea because she had

“already signed the paper before court started.” She denied knowing she could have told the

trial court that she did not know she might receive a sentence above eight years. She

believed she could not change her mind about entering a guilty plea after she signed the

“paperwork.”

On cross-examination, the Petitioner testified that she met with counsel at least twice

before entering her guilty plea but that she did not recall scheduling appointments. She said

her fiancé and her mother attended some of the meetings. She agreed counsel told her the

blood analysis showed that her blood alcohol content was 0.22 at the time of the accident.

She said she did not recall much about the accident and did not think she drank alcohol that

day. She said she pleaded guilty because she was told it was in her best interest to plead

guilty and because she did not understand “any of this.” She agreed she told the trial court

at the guilty plea hearing that she was pleading guilty because she was guilty of vehicular

homicide.

The Petitioner testified that although counsel told her the maximum sentence was

eight years, the trial court told her at the guilty plea hearing that no agreement existed

regarding the sentence and that the court would determine the sentence after a sentencing

hearing. She agreed the court advised her of her rights and said she understood those rights.

She agreed that the court told her to interrupt if she did not understand something and that

she did not interrupt.

The Petitioner testified that she did not know “anything about the . . . legal situation”

when asked if she wanted a trial. She agreed she did not have a guaranteed sentence but said

counsel told her the sentence would be eight years or less.

Upon questioning by the trial court, the Petitioner testified thatshe did not recall if she

met with counsel or if she told counsel that she did not understand she could be sentenced

to twelve years. She agreed, though, she told counsel after she pleaded guilty that she was

upset about an article in the newspaper that falsely stated marijuana use was involved in the

accident.

Counsel testified that she had practiced law for almost twenty-nine years and that her

representation of the Petitioner began at the arraignment in criminal court. She said the

Petitioner always claimed that she had little memory of the day of the accident and that she

was not drinking alcohol, although she recalled drinking water from a mason jar. She said

the Petitioner recalled arguing with a woman whose house she had left at the time of the

-3-
accident. Counsel interviewed people who were with the Petitioner just before the accident.

They told her that the Petitioner arrived at Connie Whitehead’s house earlier that day and had

been drinking before she arrived. Counsel learned that the Petitioner wanted to leave the

house to run a few errands and that an argument began between the Petitioner and Ms.

Whitehead. They attempted to prevent the Petitioner from driving because she was “clearly

intoxicated” by that time, but the Petitioner refused to stay and hit a mailbox with her car as

she drove away. Counsel thought the evidence against the Petitioner was overwhelming.

Counsel testified thatshe reviewed the eight- to twelve-year sentencing range with the

Petitioner on June 18, 2010, before the guilty plea hearing. She said she wrote the letter

previously received as an exhibit because when she met with the Petitioner and her family,

she emphasized eight years. She said she believed eight years was probably the maximum

sentence the trial court would impose based on her experience. She denied telling the

Petitioner that eight years was the maximum sentence she might receive. She said she

discussed with the Petitioner and her family at the meeting the potentialsentencing outcomes,

including probation, community corrections, and split confinement. She admitted that she

did not think the court would impose the maximum sentence and that she did not discuss a

possible twelve-year sentence as much as she should have. She said she wrote the letter to

ensure the Petitioner understood the possible sentence was eight to twelve years. She denied

that the Petitioner contacted her after receiving the letter to express her misunderstanding of

the possible punishment. She said that had the Petitioner contacted her, she would have

requested that the court set aside the guilty plea.

Counsel testified that the State did not offer to negotiate a plea agreement and that the

Petitioner’s case was the first open-ended guilty plea in which she had participated. She and

the Petitioner discussed the significance of the trial court’s determining the sentence. She

told the Petitioner that it was the Petitioner’s decision whether to plead guilty, that the

evidence against her was overwhelming, and that counsel thought she would be convicted

at a trial. She said the Petitioner decided to plead guilty after discussing it with her family.

She said the Petitioner did not want a trial.

Counsel testified that the Petitioner pleaded guilty on June 21, 2010, and that after the

Petitioner entered her guilty plea but before the sentencing hearing, an article appeared in the

local newspaper reporting that the Petitioner was under the influence of marijuana at the time

of the accident. She said the Petitioner left a message asking her to request a retraction from

the newspaper. She called the newspaper, and a retraction was printed. She said the

Petitioner was drunk and angry when she left the message. She said the Petitioner called a

few days afterward and apologized for the message. She denied that the Petitioner addressed

the possible twelve-year sentence in the message.

-4-
On cross-examination, counsel testified that she always talked to her clients “in terms

of ranges” because of the nature of the sentencing statutes and that it was unproductive to tell

a client the maximum sentence. She knew she discussed the sentencing range with the

Petitioner. She said she noted on the indictment that the sentencing range was eight to twelve

years for a Range I, standard offender.

Counsel testified that she believed the trial court would sentence the Petitioner from

eight to ten years based on the Petitioner’s lack of previous felony convictions, “life issues,”

health problems, admission of guilt, and the lack of significant enhancement factors. She

said that although she discussed the sentencing range, she probably overemphasized eight

years.

The trial court denied relief. The court credited counsel’s testimony that she did not

advise the Petitioner that she would receive the minimum, eight-year sentence after pleading

guilty. The court found that counsel and the Petitioner discussed the possible sentencing

outcomes and that counsel’s letter was “nothing more than a review” of the previous

discussion to ensure the Petitioner understood. The court found that the Petitioner was not

misled into pleading guilty and that the Petitioner never told counsel she did not understand

the possible sentencing outcomes after the court sentenced her to twelve years.

The trial court noted the exchange between the Petitioner and the court during the

guilty plea hearing. It found the Petitioner was told that the court would determine her

sentence, that the sentence would be between eight and twelve years, and that the court

provided the Petitioner opportunities to ask questions about things she did not understand.

The court discredited the Petitioner’s testimony that she did not think she could change her

mind because she had already signed the plea agreement. The court found that the Petitioner

failed to establish that counsel provided deficient performance or that she was prejudiced.

This appeal followed.

The Petitioner contends that the trial court erred by denying post-conviction relief.

She argues that her guilty plea was not knowingly, intelligently, and voluntarily entered

because counsel failed to advise her adequately that she could receive an eight- to twelveyear sentence. The State responds that the trial court properly found that the Petitioner’s

guilty plea was knowing and voluntary. 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) (2012). On appeal, we

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

-5-
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 (2012).

The United States Supreme Court has held that a plea must represent a “voluntary and

intelligent choice among the alternative courses of action open to the defendant.” North

Carolina v. Alford, 400 U.S. 25, 31 (1970). The court reviewing the voluntariness of a guilty

plea must look to the totality of the circumstances. See State v. Turner, 919 S.W.2d 346, 353

(Tenn. Crim. App. 1995). A plea resulting from ignorance, misunderstanding, coercion,

inducement, or threats is not “voluntary.” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.

1993). A petitioner’s solemn declaration in open court that his or her plea is knowing and

voluntary creates a formidable barrier in any subsequent collateral proceeding because these

declarations “carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74

(1977).

We conclude that the Petitioner knowingly, voluntarily, and intelligently entered her

guilty plea. The record shows that the trial court told the Petitioner that because no

agreement existed regarding sentencing, she faced a possible sentence of eight to twelve

years. The Petitioner responded that she understood the plea agreement, thatshe and counsel

reviewed the plea agreement, that she signed the agreement because she was guilty of

vehicular homicide, and that she understood what was happening in court. She said she was

not under the influence of any substances that might affect her ability to comprehend the

substance of the plea agreement or appreciate the consequences of entering a guilty plea.

The trial court discredited the Petitioner’s testimony that counsel advised her that the

maximum sentence was eight years. Counsel’s credited testimony shows that counsel talked

to her clients “in terms of ranges” because of the nature of the sentencing statutes and

because it was unproductive to tell a client the maximum sentence. Counsel reviewed the

eight- to twelve-year sentencing range with the Petitioner at the June 18, 2010 meeting.

Counsel testified that she did not advise the Petitioner the sentence would be eight years.

Rather, counsel discussed with the Petitioner the possible sentencing outcomes, although

counsel admitted she focused on an eight-year sentence as the likely outcome. The record

fails to show, though, that counsel told the Petitioner she would receive an eight-year

sentence after pleading guilty. Because counsel wanted to ensure that the Petitioner

understood the possible sentencing outcome, she wrote the Petitioner a letter detailing the

potential outcomes at the sentencing hearing. In the letter, counsel clarified that an eightyear sentence for a similar offense was the usual sentence based on her experience but that

the trial court could sentence her between eight and twelve years. Furthermore, no evidence

exists showing that the Petitioner contacted counsel to express any misunderstanding

-6-
regarding the possible sentence after the letter was sent to the Petitioner. The evidence does

not preponderate against the trial court’s findings. The Petitioner failed to show that counsel

provided deficient performance or that she was prejudiced by counsel’s performance. The

Petitioner is not entitled to relief.

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

court is affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

-7-