### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 2000 Session

ANTHONY EWING v. STATE OF TENN ESSEE

Appeal as of Right from the Criminal Court for Davidson County

No. 97B-1230 Steve R. Dozier, Judge

No. M1999-01079-CCA-R3-PC - Filed September 20, 2000

On February 12, 1998, the petitioner, Anthony Ewing, e ntered a best interest guilty plea in th e Davidson County CriminalCourt to one count of attempt to

sell over .5 gra

ms of cocaine, a c

lass C fel ony. The trial court imp osed a sentence of six years in

carceration in

the Davidson County Workhouse. The trial court f urther ordered

this sentence to be

served concurr

ently withsentences the petitioner was already serving. The petitioner filed a post-conviction petition for relief, alleging that he received ineffective

assistance of co

unsel and that his be

st interest guilty plea was not made knowingly

or voluntarily. The post-conviction court denied the petition, finding that the petitioner had received effe

ctive assistance

of counsel and tha

t the best inte

rest guilty plea had been made knowingly

and voluntarily. The petitioner now appeals the denial of his petition for post-conviction relief. Pursuant to a revie w of the record a

nd the parties’ briefs, we affirm the judgment of th

e postconviction court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinio n of the court, in which G ARY R. W ADE , P.J., and D AVID G. H AYES , J., joined.

Dwight E. Scott, Nashville, Tennessee, Richard Piliponis, Nashville, Tennessee, for the appellant, Anthony Ewing.

Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney Genera l, and Kymberly Haas, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION I. Factual Backgr

ound1 These facts were taken from t he Stat e’s ve rsion of even ts at the pet iti oner’s plea hearing . The pet

iti oner cl aims that he did not

attempt to se

ll cocaine t

o the police.

-2- On the evening of June 8, 1996
, undercover police officer Jesse Birchwell and a cooperating individual approached the petitioner for the purpose of buying cocaine. The

petitioner and the officer

agreed upon a price of two hundred and fifty dollars for the cocaine. The petitioner told the officer that he had to leave to get the cocaine and that he would retur n in five minute s. Police executed a warrant authorizing a search of the premises before the petitioner could return and deliver cocaine to the officer. A

search of the re

sidence revea

led a large qua

ntity of what appeared
to be cocaine. 1 The petitioner was charged with attempt to sell over .5 grams of a substance containing cocaine, attempt to deliver over .5 grams of a substance containing cocaine, possession withintent to sell over . 5 grams of a subs tance conta

ining cocaine, and possession of drug paraphernalia with intent to use.

The petitioner, represented by counsel, entered a best interest guilty plea to one count of attempt to sell over .5 grams of cocaine. Pursuant to the plea agreement, the petitioner was sentenced to six years inca

rceration in the

Davidson County

Workhouse as a Rang

e I offende

r with thirty percent release eligibility. T he trial court further ordered that this sentence be served concurrently

with sentences the petitioner was already serving for pr evious convictions. The St ate agreed to dismiss the additional charges against the petitioner. The petitioner filed a

petition for postconvictio n relief alleging that he had been denied effective assistance of counsel prior to entering his guilty plea and that his best interest guilty plea was not made knowingly and voluntarily. The trial court denied the petitioner’s petition for post-conviction relief.

II. Analysis Be ca use the petitioner’s post-conviction proceedings were initiated after May 10, 1995, the petitioner must

prove all factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f)(1 997); Hicks v. State , 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). When there is no serious or substantial doubt about the accuracy of th e conclusions drawn from the evidence, that evidence can be said to be clear and convincing. Id. On appeal, this court is bound by the factual fin

dings of the post-conviction court unless the evidence preponderates otherwise. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). The post-conviction court must solve a l l questions con cern ing w itn ess cred ibi lit y and the wei ght a nd v alu e to be ac cord ed t o th eir tes tim ony. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Moreover, the findings made by the trial court at an oral hearing, after observing witnesses testify and considering conflicting tes tim ony, will be given the weight of a jury verdict. Bratton v. State , 477 S.W.2d 754, 756 (Tenn. Crim. App. 1971). Accordingly, an appellate court may not re-weigh or reevaluate the evidence or substitute its inferences for those of the post-conviction court. Williams v. State , No. 03C01- 9801- CC-00013, 1999 WL 58608, at *2 (Tenn. Crim. App. at Knoxville, February 9, 1999).

A. Ineffective Assistance of Counsel The petitioner arg

ues that he recei ved ineffective assistance of co

unsel prior to entering a plea of guilty. He claims that his trial counsel failed to interview all available witnesses-3-

and to pursue available avenues of defense. The petitioner also alleges that his trial counsel did not keep him informed about

the status of his ca

se and did not explain the consequences of a best interes t guilty plea.

This court reviews c ases involving mixe

d questions of law a

nd fact, such as claims of ineffective assistance of counsel, de novo. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). To prove a claim of ineffective assistance of counsel, the petiti oner must d emonstrat e that couns el's performance

was deficient and that the deficiency prejudiced the petitioner by creatin

g a reasonable probability

that the result of the tri al is unreliable or the proceedings were fundamentally unf air. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). In order to determine whether or not counsel’s performance was deficient, this court must decide whether counsel’s performance

was within the range of competence required of attorney

s in criminal case

s. Baxter v. Rose
, 523 S.W.2d 930 (Tenn. 1975). Moreover, when a petitioner alleges that ineffective assistance of counsel resulted in a guilty plea, the petitioner must prove that, but for

counsel's err

ors, he would
nothave pled guilty and would have insisted upon going to trial. Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985) ; see Henderson v. State , No. 02C01-961 0-CR-0037 6, 1997 WL 566053, at *5 (Tenn. Crim. App. at Jackson, September 12,1997).

The petitioner alleges that “had Mr. Pilliponis (sic)

adequately

investigated the

case and ade quately ass

essed the State’s

evidence aga

inst the [petitioner],

there is a reaso

nable probability that the outcome of the proceedings would have been different.” However, theproof presented at the post-conviction hearing demonstrated that trial counsel interviewed at least two police officers involved in the arrest of the petitioner and had numerous conversations with the Assistant District Attorney about the State’s case

against the petitioner. Additionally, trial counsel reviewed the State’s discovery file. Trial counsel also testified that he had several lengthy conver sations with the peti tioner about

possible defenses that could be raised at trial and about the petitioner’s constitutional rights. Although trial counsel knew that the petitioner

maintained his innocence, he believed that in order to rebut the State’s eviden ce, the pe titioner would have to testify. The petitioner did not
want to testify because of his extensive crimina l record and because he had previously made controlled buys for the police. Trial counsel stated that in his opinion the petitioner had understood the ir c onv ers ati ons and had agre ed t o pl ead g uil ty.

The petitioner also

claims that

his trial counsel knew of a State lab report revealing that the white substanc

e the police conf

iscated from the r

esidence was .1 g

ram of cocaine m

ixed with 153.7 grams of some other white substance; therefore the petitioner’s trial couns el should have known that the State could not prove that the petitioner was guilty of attempt to sell more than .5 grams of cocaine. How

ever, the petitio

ner overlooks the

fact that he was c

harged with att

empt to sell .5 grams or more of a substance containing cocaine , a class C felony. Tenn. Code Ann. §§ 39- 17-417(c)(1), 39-12-101, -107(a)(1997)(emphasis added). This court has found that a “substance containing cocaine” would include the weight of any “cutting age nt or medium along with the weight of the s cheduled sub stance.” State v. Alcorn , 741 S.W.2d 135, 138 (Tenn. Crim. App. 1987). Furthermore, there were several police officers involved in the unde rcover drug buy who were available to testify ag

ainst the petitione

r. The State could

have provenwith the lab reports and police-4-

testimonythat the petitioner had attempted to

s ell more than .5 grams of a substance containing cocaine. Moreover, had the petitioner not pled guilty, the State had three additional felony drug charges a gainst the petitio ner of which the p

etitioner ran the

risk of being co

nvicted at trial

.

The petitioner also claims that because his co-defendant, Edward Jo nes, confessed
to the crimes and

stated that the petitioner had nothing to do with the sale of cocaine, his trial counsel should have interviewed

Jones and pursued that

line of defense.

Trial counsel tes

tified at the postconviction hearing that he did not pursue Jones as a defense witness because he believed that Mr. Jones’ past criminal history made him an unreliable witness. See Bell v. State , No. 03C01-9210-CR

00364, 1995 WL 113420, at *16 (Tenn. Crim. App. at Knoxville, March 15, 1995)(failing to pursue

a witness of

dubious credibility was not ineffective assistance of counsel).Trial counsel determined that, in light

of the State’s evidence against the petitioner, which included audio tapes implicating the petitione r, it

was unlikely that an uncorroborated statement by a co-defendant would have exoneratedthe petitioner of guilt. This court does not use hindsight to second-guess or criticize trial counsel’s strategy or tactics. Turner v. State , No. 02C01-9310-CR-00236, 1994 WL 456337, at *2 (Tenn. Crim. App. at Jackson, August 24, 1994).

Moreover, due to the p etitioner ’s previous criminal h istory, he qua lified as a R ange II offender. Tenn. Code Ann. § 40-35- 106(1997). The se ntence for a Ran

ge II o ffender guilty

of a class C fe lon y, such as attempt to sell more than .5 grams of cocaine, is six to ten years incarcera tion withthirty-five percent eligibility. Tenn. Code Ann. § 40-35-112(b)(3),-501(d)(1997). Pursuant to the petitioner’s plea bargain, the trial court sentenced the petitioner to six years incarceration in the Davidson County Workhou se as a Range I o ffender with thirty percent release eligibility . Tenn. Code Ann. § 40-35-112(a)(

3),-501(c). Fu

rthermore, the St

ate drop ped the remaining felony charges against the petitioner. The petitioner’s trial counsel believed that the plea bargain was to t h e petitioner’s benefit.

Trial counsel testified at

the post-conviction hearing that he had interviewed Officer Birchwell,

the officer who

arrested the pe

ti tioner. He also testified that he reviewed the State’s discovery fil e and pro vid ed t he p eti tio ner w ith cop ies of t he re lev ant por tio ns o f th e di sco very. Moreover, trial counsel testified that he discussedthe evidence the State possessed, w

hat the State had to prove, and the g

uilty plea at some length with the petitioner. The post-convict ion court chose
to credit trial counsel’s testimony over that of the petitioner. Notably, the petitioner even stated to the trial court at his p

lea hearing tha

t he was satisfied

with the performa

nce of his tr

ial co unsel. Because the post-convicti

on court was in a be

tter position than th

is court to evaluate the c

redibility of the wi tnesses, and because the evidence does not preponderate otherwise, we are bound by the find ings of the post-conviction court. Butler , 789 S.W.2d at 799; see also Henderson , 199 7 W L 566053, at *6.

B. Guilty Plea

The petitioner also argues that his be st intere st guilty plea was not knowingly and voluntarily

entered. The petitioner claims that he would never have entered a best interest guilty plea to attempt to sell co

caine if he had b

een aware of hi

s constitutional rights, had beenadvised about-5-

the State’s case against him, and if the plea petition and proceeding had been properly explained to him.

To withstand constitutional scrutiny, a petitioner must have made a guilt y plea vol unt ari ly, understandingly, and kno win gly. Hicks , 983 S.W.2d at 246( citing Boykin v. Al abama
, 395 U .S. 238, 244, 89 S. Ct. 17 09, 1713 (1969)); see also State v. Mackey , 553 S.W.2d 337, 341 (Tenn. 1977). This court m ust look to the following circumstantial factors in determining whether a guilty plea was “knowing” and “voluntary ”: the relative intelligence of the defendant; the degree of his f

amiliarity with criminal proceedings;

whether he was represented by competent counsel a nd had the opportunity

to confer with counsel about the options available to him; the extent of advice from counsel and t he court concer

nin g t he charges against him; and the

reasons for his decision to plead guilty, inc

luding a desire t

o avoid a great

er penalty that might result from a jury trial. Blankenship

v. State , 858 S.W.2d 897, 904 (Tenn. 1993). Moreover, the petitioner must be aware of the direct consequences of his guilty plea, the most obvious of which is the penalty to be imposed. Id.

At

the guilty p

lea hearing, th

e petitioner rep

eatedly to

ld the t rial court that he understood the charges against him. The trial court informed the petitioner of his r ight to a jury

trial, right to cross-examine witnesses, and the right against self-incrimination. The trial court made the petitioner aware that by entering a best interes t gui lty plea, he was giving up those rights. The petitioner testified at the plea hear

ing that he had g

one over the plea

document with

his trial counsel and that he had no questions about it. After saying he was satisfied with his trial counsel, the petitioner expressed his belief that “I thought it could [have] been handled a little better

than this.” The trial court reminded the petitioner that he had a right to a jury

trial. The petitioner responded that he would rather plead guilty. The trial court explained the petitioner’s sentence, emphasizing that the petitioner’s six year sentence for attempt to sell cocaine was to run concurrently with other
sentences the petitioner was already serving and that this

conviction could be used to enhance future convictions. The State proceeded to read its version of events. When the trial court asked the petitioner if the State’s portrayal of events was accurate, the petitioner r eplied, “It’s not true, sir; but it – ain’t not hing I can d o about it.” The pe

titioner then ente

red a best intere

st plea of guilty

to attempt to sell cocaine.

The petitioner claims

that he did not unde rstand the meanin g of a “best inte

rest” guilty plea. In North Carolina v. Alford , 400 U.S. 25, 37-38, 95 S. Ct. 160, 167-168

(1970), th

e Unite d States Supreme Court held that a petitioner could enter a guilty plea while sti ll protesting his innocence. In Tennessee, a “best interest” or Alfordplea may be accepted by the trial court as long

as there is a factual basis for the guilty plea. Dor tch v. State , 705 S.W.2d 687, 689 (T enn. Crim. App. 1985).

Even if

the trial court, or

the petitioner’s t

rial counsel, did n

ot explain to the petitioner the difference be

tween a guilty

plea and a best int

erest guilty

plea, the petitioner’s decision to plead-6-

guilty is not rendered involuntary. See Hicks , 983 S.W.2d at 247-248. Except forthe petitioner’s protestation of innocence, a best interest gu

ilty plea is tr

eated like any

other guilty plea. Id. This
court has found that

even if the petitio

ner had no specif

ic knowledge of

what a best intere

st guilty plea is, the petitioner

nonetheless entered a knowing and voluntary guilty plea if the petitioner had the information necessary to understand the consequences of plea ding guilty and intelligently made the choice to plead guilty. Id.

At the post-conviction hearing, the petitioner admitted that he had previously pleaded guilty to five separate felony charges. More over, trial counsel testified at the post-conviction hearing that the petiti oner seemed to understand the plea process much better than his other clients. The petitioner knew about the State’s evidence against him and the possible defenses that he could raise
at trial. The trial c

ourt and the petitioner’s t rial counsel info

rmed the petitione

r about his constitutional rights. Nonetheless, the petitioner chose to enter a best interest guilty plea to attempt to sell cocaine. Furthermore, the petitioner’s statement “ain’t nothing I ca n do about it” may mean
t hat, given the State’ s evidence aga inst him and the unde

sirability of

going to trial, t

he only intelligent

choice was t

o enter a best i

nterest guilty plea. See Hicks , 983 S.W.2d at 248. The petitioner has failed to establish by clear an d convinci ng evidence that his guilty pleas were not knowing and volun

tary. This is sue is without merit.

III. Conclusion Based upon the f

oregoing, we

affirm the judg

ment of the post-c

onviction court.

___________________________________ NORMA McGEE OGLE, JUDGE