IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 22, 2005 Session

SAMUEL PENDERGRASS v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Hamilton County

No. 246263 Rebecca J. Stern, Judge

No. E2004-02304-CCA-R3-PC - Filed July 26, 2005

The Appellant, Samuel Pendergrass, appeals the Hamilton County Criminal Court’s denial of his

petition for post-conviction relief. On appeal, Pendergrass argues that his guilty pleas to four

misdemeanor counts of passing worthless checks and one count of felony theft of property over

$1,000 were not knowing and voluntary due to the ineffective assistance of counsel. After review,

the judgment of the post-conviction court is affirmed. 

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES

CURWOOD WITT, JR., JJ., joined.

Ruth H. DeLange, Chattanooga, Tennessee, for the Appellant, Samuel Pendergrass.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; and

Boyd Patterson, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Procedural Background

On September 9, 2003, the Appellant pled guilty to four misdemeanor counts of passing

worthless checks and one count of theft of property over $1,000, a class D felony. Pursuant to the

Appellant’s plea agreement, the trial court sentenced him to an effective four-year sentence as a

Range II offender. At the plea hearing, the State summarized the factual basis for the plea as

follows:

First, the proof in this case would have been that the defendant went to the

business location of J.W. Motor Company on Rossville Boulevard on the date alleged

in the indictment. He had left a driver’s license and test driven a Saturn away from
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the business. The owner of the business became concerned when he did not return

with the Saturn which was valued over a thousand dollars.

Eventually, the defendant was located at another car dealership trying to

obtain a drive-out tag from a separate dealership on the vehicle.

Consequently, he was arrested and charged with theft of the Saturn. . . .

Additionally, the Appellant pled guilty to passing three worthless checks at Bi-Lo and one at WalMart. 

On September 25, 2003, the Appellant filed a pro se petition which he captioned as a writ

of habeas corpus, alleging that he had been denied the effective assistance of counsel. Following the

appointment of counsel, a petition for post-conviction relief was filed, and an evidentiary hearing

was held on May 24, 2004, at which time the post-conviction court denied relief. This appeal

followed. 

Analysis

The Appellant alleges that his guilty pleas were not knowing and voluntary due to the

ineffective assistance of counsel. Specifically, he contends that trial counsel was deficient in failing

to perform any investigation of the facts underlying the charges.

In order to succeed on a post-conviction claim, the Appellant bears the burden of showing,

by clear and convincing evidence, the allegations set forth in the petition. Tenn. Code Ann. § 40-30-

110(f) (2003). To support a Sixth Amendment claim of ineffective assistance of counsel, the

Appellant must establish that counsel’s performance fell below the range of competence of attorneys

demanded in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland

v. Washington, the Appellant must establish (1) deficient representation and (2) prejudice resulting

from the deficiency. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). It is unnecessary for a court

to address deficiency and prejudice in any particular order, or even to address both if the petitioner

makes an insufficient showing on either. Id. at 697, 104 S. Ct. at 2069. With a guilty plea, to satisfy

the “prejudice” prong, the Appellant “must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill

v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985).

The issues of deficient performance by counsel and possible prejudice to the defense are

mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s

findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under

a de novo standard, accompanied with a presumption that those findings are correct unless the

preponderance of evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing

Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However, conclusions

of law are reviewed under a purely de novo standard with no presumption of correctness. Fields, 40

S.W.3d at 458. 
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Trial counsel testified that he was appointed to represent the Appellant ten days prior to the

plea hearing. Although trial counsel had requested discovery, the State had not responded on the

date the guilty pleas were entered. Counsel acknowledged that he did not visit the Appellant in the

jail because it was his policy to obtain discovery first. Counsel’s first contact with the Appellant was

on the date the Appellant’s pleas were entered. During this first and only encounter, the Appellant

briefly related to trial counsel his version of the facts leading to the charges against him. The

Appellant admitted that he had taken a car from J. W. Motors for a test drive and drove the car to

another dealership where he talked with one of the employees. Trial counsel testified, “When I

asked about what this man would testify to, [the Appellant] was very evasive with me and based

upon that I thought he was guilty.” Counsel related that he told the Appellant that if the person “is

going to testify in a way that’s bad for your case, I would recommend that you plea. If he is going

to testify in a way that’s good for your case, I would recommend that we go to trial. . . .” Following

this conversation, trial counsel stated he advised the Appellant that he could “set the case off for

thirty days” and “do a little investigative work.” According to counsel, the Appellant rejected the

proposal explaining “I want to get out of the county jail and go into the DOC.” Trial counsel

responded “there is one way to do that . . . plead guilty.” Shortly thereafter, the Appellant entered

guilty pleas to the charges as indicted.

The Appellant testified that his only conversation with trial counsel was “three or four

minutes” in duration on the date his pleas were entered. After talking to counsel, the Appellant

testified it was obvious to him that counsel was not interested in representing him, especially after

learning of his prior criminal history; therefore, he believed he had no choice but to accept the plea

offer. However, the Appellant also acknowledged that he “was in a hurry to get the case over with.”

“A client’s expressed intention to plead guilty does not relieve counsel of their duty to

investigate possible defenses and advise the defendant so that he can make an informed decision.”

Savino v. Murray, 82 F.3d 593, 599 (4 Cir.), cert denied, 498 U.S. 882, 111 S. Ct. 229 (1996) th

(emphasis added); see also Standards Relating to the Defense Function § 4.1 (1971) (“[t]he duty to

investigate exists regardless of the accused’s . . . stated desire to plead guilty”). The long standing

test for determining the validity of a guilty plea 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, 91 S. Ct. 160, 168 (1970). 

The record before us demonstrates that the Appellant was not provided a choice among

alternative courses of action from which an informed decision could be made. Trial counsel never

met with the Appellant prior to entry of the guilty pleas, and he conducted no investigation of the

facts. Counsel, in the instant case, “provided perfunctory representation by appearing in court at [the

Appellant’s] side. Beyond that, he ignored his duty as [an] advocate.” Thomas v. Lockhart, 738

F.2d 304, 308 (8 Cir. 1984). Our review leads usto the conclusion that trial counsel’s investigation th

fell below the range of competence demanded of attorneys in criminal cases.

Nonetheless, in addition to requiring proof of deficient performance, 
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“the defendant must show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.”

Hill, 474 U.S. at 59, 106 S. Ct. at 370 (footnote omitted). A specific explanation of

why the defendant alleges he would have gone to trial is required. Key v. United

States, 806 F.2d 133, 138-39 (7 Cir. 1986). th

Santos v. Kolb, 880 F.2d 941, 943 (7 Cir. 1989). th

The Appellant’s argument rests solely upon the claim of counsel’s deficient performance.

We are offered no explanation as to how a more thorough investigation would have resulted in the

Appellant insisting upon a trial. Other than testifying in his own behalf, the Appellant presented no

witnesses at the hearing; thus, no proof was introduced to establish that a more thorough

investigation would have benefitted the Appellant or provided a possible defense. As such, the

Appellant has failed to establish that he was prejudiced by counsel’s ineffectiveness.

A defendant’s plea of guilty constitutes an admission in open court that the defendant

committed the acts charged in the indictment. Brady v. United States, 397 U.S. 742, 748, 90 S. Ct.

1463, 1468 (1970). The plea, however, is more than an admission; it is the defendant’s consent that

judgment of conviction may be entered without a trial. Id., 90 S. Ct. at 1469. A defendant’s sworn

responses to the litany of questions posed by the trial judge at the plea submission hearing represent

more than simply lip service. Indeed, the defendant’s sworn statements and admissions of guilt stand

as a witness against the defendant at the post-conviction hearing when the defendant disavows those

statements. Our review of the entire record, including the plea submission hearing, affirmatively

demonstrates that the Appellant’s guilty pleas were made with an awareness of the consequences of

the pleas, and, as such, the guilty pleas were voluntarily and knowingly entered. See State v. Mackey,

553 S.W.2d 337, 340 (Tenn. 1977).

CONCLUSION

The judgment of the Hamilton County Criminal Court is affirmed. 

___________________________________ 

DAVID G. HAYES, JUDGE