IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 29, 2011

CARL BOST v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Knox County

No. 91672 Bob R. McGee, Judge

No. E2010-01725-CCA-R3-PC - Filed June 7, 2011

The petitioner, Carl Bost, pleaded guilty to possession with intent to sell cocaine, a Class C

felony, and attempted aggravated burglary, a Class D felony, in exchange for a cumulative

sentence of six years, to be served in the Tennessee Department of Correction as a Range I,

standard offender. He filed for post-conviction relief, which was denied by the postconviction court. On appeal, he argues that he entered his plea unknowingly, involuntarily,

and unintelligently due to ineffective assistance of counsel. Following our review of the

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

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

J.C. MCLIN, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES

CURWOOD WITT, JR., JJ., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Carl Bost.

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

General; Randall E. Nichols, District Attorney General; and Deborah Malone, Assistant

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

OPINION

Background

The petitioner, Carl Bost, entered guilty pleas to possession with intent to sell cocaine,

a Class C felony, and attempted aggravated burglary, a Class D felony, on May 12, 2008, in

Knox County. The state averred that if the matter had gone to trial, the state would have

presented the following factual basis for the pleas:
Officer [Benjamin] McVey [of the Knoxville Police Department] would testify

that he received a call from the victim, [Boise] Robinson, stating that he

returned from a month long stay out of town to find that the screen door was

locked. [Mr. Robinson] said that he had never locked the screen door.

It was an apartment of KCDC property. The maintenance person there

opened the apartment with the consent of the victim. They found [the

petitioner] asleep inside the apartment. It had been described as – what the

witness described as ransacked. They also found some items that were

missing[:] a washer and dryer and a bedroom set.

The victim says he knows the [petitioner] in this case, but he never gave

[the petitioner] permission to be in his apartment. There would be further

proof that all of these events occurred here in Knox County.

As to count two of this information, Officers Joe Essensio (sic) and

Tony Hall would testify that on March the 11th of 2008 that . . . [at] about 1:30

in the morning[,] they were in the area of Virginia Avenue in an unmarked

police car and working in an undercover fashion. They would testify that the

defendant approached them and stated that a rock would be $20.00 [and] [t]hat

he began to walk around the car to the passenger side. Officer Hall took him

into custody [and performed a] search incident to arrest. They understood [the

petitioner’s statement to refer to] a rock of cocaine for $20.00, which is

typically what a rock sells for.

When they took him into custody, [pursuant to a] search incident to

arrest they found two clear baggies with crack cocaine in it, and two rocks of

crack cocaine in his right front pocket.

There would be further proof that they also found a metal crack pipe on

him as well. Their testimony would be the conversation they had with [the

petitioner] was for the sale of this crack cocaine. There would be further proof

that all of this happened here in Knox County.

The state told the court that the petitioner was entering the guilty pleas in exchange

for two years for the burglary charge and four years for the drug charge and that the

agreement was that he would serve the sentences consecutively. The petitioner agreed that

this represented his understanding of the agreement. He stated before the court that counsel

reviewed the plea agreement with him and that he understood it. He acknowledged his rights

as the court explained them and waived them. The petitioner twice more acknowledged that

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his sentence under the plea agreement would total six years. The petitioner stated that he was

satisfied with counsel’s services and that counsel had explained the punishment that the

petitioner faced by pleading guilty. The petitioner testified that he could read and write and

did not have any trouble hearing what was being said in the courtroom.

On September 5, 2008, the trial court heard the petitioner’s request for enhanced

probation. The trial court placed the petitioner on enhanced probation for the two-year

sentence for attempted aggravated burglary.

On May 15, 2009, the petitioner filed for post-conviction relief from his four-year

sentence for the possession of cocaine with intent to sell, alleging that he was denied the

effective assistance of counsel, that he entered the guilty plea involuntarily, and that the

prosecution did not disclose favorable evidence to the petitioner. On June 1, 2009, the postconviction court appointed an attorney to represent the petitioner, and appointed counsel

subsequently filed an amended petition for post-conviction relief on June 22, 2009.

The post-conviction court held a hearing on the petition on July 29, 2010. The

petitioner testified that the court appointed counsel to represent him approximately two

months prior to the date he entered his pleas. He testified that counsel met with him three

or four times during those two months. The petitioner said that counsel explained to him that

he was indicted for “violating a drug-free school zone with schedule II crack cocaine, and

aggravated burglary,” and also explained the range of punishment possible for each. He

testified that he told counsel that his defense for the drug charge was that the drugs were

fake. He said that counsel never showed him a toxicology report. The petitioner stated that

he assumed that the sentences would run concurrently. He testified that if he had known that

he would serve six years, he would have gone to trial.

On cross-examination, the petitioner testified that he recognized the plea form he

signed and acknowledged that the plea form stated that the sentences were consecutive. The

petitioner agreed that counsel’s negotiations with the state resulted in reduced charges with

sentence recommendations in the lower end of the range and in the dismissal of seven

pending charges. The petitioner agreed that he incurred nine new misdemeanor charges

between the plea hearing and the hearing on his application for enhanced probation, as well

as two additional charges after that hearing.

Counsel testified that he was licensed to practice law in 2007. He stated that he met

with the petitioner four times at the detention center. Counsel testified that he reads plea

agreements word for word for every client, including the petitioner, and he believed that the

petitioner understood that he was agreeing to serve six years. Counsel testified that he had

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no recollection of the petitioner’s telling him that he had a valid defense to the drug charge.

On cross-examination, counsel testified that he discussed possible defenses with the

petitioner. He said that he was able to negotiate down the petitioner’s burglary charge

because he canvassed the neighborhood around the victim’s apartment, took photographs,

and spoke with the director of the property. He was able to negotiate down the drug charge

because he interviewed the reverend at the ministry center, who acknowledged that there was

not a daycare center on the premises. Counsel said that he would not have allowed the

petitioner to plead to a drug charge if he thought that the petitioner had a defense that the

drugs were fake.

On re-direct examination, counsel testified that he could not recall whether the state

had a toxicology report on the drugs seized in this case.

The post-conviction court denied relief, finding that counsel provided “very effective”

assistance.

Analysis

On appeal, the petitioner argues that he entered his plea unknowingly, involuntarily,

and unintelligently due to ineffective assistance of counsel. Specifically, the petitioner states

that he did not know he was agreeing to serve six years and that counsel did not pursue the

defense that the items seized by the police were not narcotics.

The post-conviction judge’s findings of fact on post-conviction hearings are

conclusive on appeal unless the evidence preponderates otherwise. State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999). Those findings of fact are afforded the weight of a jury verdict, and

this court is bound by the findings unless the evidence in the record preponderates against

those findings. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958

S.W.2d 138, 147 (Tenn. Crim. App. 1997). This court may not reweigh or reevaluate the

evidence, nor substitute its inferences for those drawn by the post-conviction court. State v.

Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s

conclusions of law are reviewed under a purely de novo standard with no presumption of

correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

In order for a petitioner to succeed on a post-conviction claim, the petitioner must

prove the allegations set forth in his petition by clear and convincing evidence. Tenn. Code

Ann. § 40-30-110(f). On appeal, this court is required to affirm the post-conviction court’s

findings unless the petitioner proves that the evidence preponderates against those findings.

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s

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factual findings is de novo with a presumption that the findings are correct. Fields v. State,

40 S.W.3d 450, 457-58 (Tenn. 2001). Our review of the post-conviction court’s legal

conclusions and application of law to facts is de novo without a presumption of correctness.

Id.

To establish ineffective assistance of counsel, the petitioner must show that (1)

counsel’s performance was deficient and (2) the deficient performance prejudiced the

defense rendering the outcome unreliable or fundamentally unfair. Strickland v. Washington,

466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004).

Deficient performance is shown if counsel’s conduct fell below an objective standard of

reasonableness under prevailing professionalstandards. Strickland, 466 U.S. at 688;see also

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that representation should

be within the range of competence demanded of attorneys in criminal cases). Prejudice is

shown if, but for counsel’s unprofessional errors, there is a reasonable probability that the

outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. If either

element of ineffective assistance of counsel has not been established, a court need not

address the other element. Id. at 697; see also Goad v. State, 938 S.W.2d 363, 370 (Tenn.

1996). Also, a fair assessment of counsel’s 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 also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). The

fact that a particular strategy or tactical decision failed does not by itself establish ineffective

assistance of counsel. Goad, 938 S.W.2d at 369. However, deference is given to strategy

and tactical decisions only if the decisions are informed ones based upon adequate

preparation. Id. (citations omitted).

In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court applied the two-part

Strickland standard to ineffective assistance of counsel claims arising out of a guilty plea.

The court in Hill modified the prejudice requirement by requiring a petitioner to show that

there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty

and would have insisted on going to trial. 474 U.S. at 59; Nichols v. State, 90 S.W.3d 576,

587 (Tenn. 2002).

When determining the knowing and voluntary nature of a guilty plea, the standard is

“whether the plea represents 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); see also

State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). The reviewing court must look to various

circumstantial factors, including:

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the relative intelligence of the defendant; the degree of his familiarity with

criminal proceedings; whether he was represented by competent counsel and

had the opportunity to confer with counsel about the options available to him;

the extent of advice from counsel and the court concerning the charges against

him; and the reasons for his decision to plead guilty, including a desire to

avoid a greater penalty that might result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). In order for a guilty plea to be

voluntary, the petitioner must have an understanding of the charges against him and the

consequences of pleading guilty, including “the sentence that he will be forced to serve as

the result of his guilty plea and conviction.” Id. at 905. 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).

Based on counsel’s testimony, as accredited by the post-conviction court, his

representation of the petitioner was effective. He thoroughly investigated the petitioner’s

case, negotiated a reduction in the petitioner’s charges, and achieved the dismissal of seven

pending charges against the petitioner. While the petitioner testified that he told counsel that

the items seized by the police were not narcotics, the post-conviction court accredited

counsel’s testimony that the petitioner did not inform him of this potential defense. As for

the petitioner’s belief that he was agreeing to serve four years, the transcript of the plea

hearing reveals that the petitioner acknowledged three times that the agreed-upon sentence

was six years. Nothing in the record indicates that the petitioner entered his plea

unknowingly or involuntarily. We conclude that the petitioner has not proven the allegations

of his petition by clear and convincing evidence; therefore, he is without relief in this matter.

Conclusion

Based on the foregoing reasons, we affirm the denial of post-conviction relief.

___________________________________

J.C. McLIN, JUDGE

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