IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 7, 2013

TIMOTHY CHATMAN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 08-05905 W. Otis Higgs, Jr., Judge

No. W2012-01469-CCA-R3-PC - Filed June 5, 2013

The petitioner, Timothy Chatman, appeals the dismissal of his petition for post-conviction

relief, arguing that the post-conviction court erred in finding that his guilty pleas were

knowing and voluntary and that he received effective assistance of trial counsel. Following

our review, we affirm the dismissal of the petition.

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 JERRY L. SMITH and NORMA

MCGEE OGLE, JJ., joined.

Sean H. Muizers (on appeal) and Jeffrey Odom (at hearing), Memphis, Tennessee, for the

appellant, Timothy Chatman.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

Based on his participation with an accomplice in a robbery in which a victim was shot,

the petitioner was indicted by the Shelby County Grand Jury with especially aggravated

kidnapping, attempted second degree murder, aggravated robbery, and employing a firearm

during the commission of a dangerous felony. On July 21, 2009, the petitioner pled guilty

in the Shelby County Criminal Court to attempted second degree murder, a Class B felony,

and employing a firearm during the commission of a dangerous felony, a Class C felony, in

exchange for the dismissal of the other counts of the indictment and with sentencing to be
set by the trial court at a later date. On September 8, 2009, the trial court sentenced the

petitioner as a Range I offender to consecutive terms of eight years for the attempted murder

conviction and six years for the firearms conviction, for an effective sentence of fourteen

years in the Department of Correction.

On February 1, 2010, the petitioner filed a pro se petition for post-conviction relief

in which he raised claims of ineffective assistance of counsel and involuntary and unknowing

guilty pleas. Post-conviction counsel was appointed, and an amended petition was filed on

December 2, 2010, in which the petitioner alleged that his counsel was ineffective for failing

to adequately communicate the consequences of his guilty pleas, which rendered them

unknowing and involuntary.

At the evidentiary hearing, the petitioner testified trial counsel told him that he would

lose at trial because his co-defendant was going to testify against him but never explained

“what would have happened if [he] was going to win.” The petitioner elaborated that counsel

never discussed his chances at trial other than to tell him that he would lose, which was why

the petitioner opted to plead guilty. The petitioner acknowledged on both direct and crossexamination that both trial counsel and the trial court explained his constitutional rights and

his guilty pleas to him and that he had assured the trial court that it was his decision to plead

guilty. However, at the time he entered his pleas, he was ignorant of the law and believed

that he and his co-defendant would be pleading guilty to the same counts and would receive

the same sentence. Since that time, he had learned that his co-defendant had pled guilty to

robbery in exchange for a twelve-yearsentence. The petitioner disagreed that his plea bargain

was a “good deal” and expressed his belief that he would have fared better had he opted to

go to trial:

No, because at the time, my ignorance of the law, I was just going by

what my attorney was saying. That was my first time ever being incarcerated.

This is my first time ever being incarcerated and this is a lawyer that I’m

paying for and my life’s on the line, he’s telling me that I can’t win that trial.

I have to go by what he is saying, because I don’t want to go – I done thought

about it and I probably should have took my shot at trial.

Trial counsel, who said that he had been practicing exclusively criminal law for the

past twelve years, testified that the victim in the case had been prepared to testify that he was

fleeing an altercation when the petitioner shot him twice. He said that as they neared the trial

date, they learned that the co-defendant was also going to identify the petitioner as the

shooter. He stated that he discussed with the petitioner the evidence the State had against

him and explained the potential punishment he faced if convicted at trial. He said he told the

petitioner that they had “a tough road to go” in light of the State’s evidence and

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recommended that the petitioner accept the plea offer in which the Class A felony would be

dismissed, but he was fully prepared to try the case had the petitioner opted to proceed to

trial. On cross-examination, he testified that he told the petitioner he would vigorously crossexamine the State’s witnesses if the petitioner chose to go to trial. He said he told the

petitioner that he was not commenting on the weight of the witnesses’ testimony, but if the

jury believed the witnesses, the petitioner was “done,” whereas if the jury did not find them

credible, they had “a shot.”

On May 29, 2012, the post-conviction court entered an order dismissing the petition,

finding that the proof, which included the guilty plea colloquy, made it “clear” that the

petitioner’s pleas were knowingly and voluntarily entered and that he received the effective

assistance of trial counsel. Thereafter, the petitioner filed a timely appeal to this court.

ANALYSIS

Post-conviction relief “shall be granted when the conviction or sentence is void or

voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee

or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2012). The

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

Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the

findings of fact made by the court are conclusive on appeal unless the evidence

preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When

reviewing factual issues, the appellate court will not reweigh the evidence and will instead

defer to the post-conviction court’s findings as to the credibility of witnesses or the weight

of their testimony. Id. However, review of a post-conviction court’s application of the law

to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978

S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents

mixed questions of fact and law, is reviewed de novo, with a presumption of correctness

given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

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functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The

prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability

sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

In the context of a guilty plea, the petitioner must show a reasonable probability that were

it not for the deficiencies in counsel’s representation, he would not have pled guilty but

would instead have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985);

House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

Before a guilty plea may be accepted, there must be an affirmative showing in the trial

court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242

(1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a showing that

the defendant was made aware of the significant consequences of the plea. State v. Pettus,

986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340). A plea is not

“voluntary” if it resultsfrom ignorance, misunderstanding, coercion, inducements, or threats.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if

the guilty plea is “knowing” by questioning the defendant to make sure he or she fully

understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858

S.W.2d at 904.

Because the plea must represent a voluntary and intelligent choice among the

alternatives available to the defendant, the trial court may look at a number of circumstantial

factors in making this determination. Blankenship, 858 S.W.2d at 904. These factors

include: (1) the defendant’s relative intelligence; (2) his familiarity with criminal

proceedings; (3) whether he was represented by competent counsel and had the opportunity

to confer with counsel about alternatives; (4) the advice of counsel and the court about the

charges against him and the penalty to be imposed; and (5) the defendant’s reasons for

pleading guilty, including the desire to avoid a greater penalty in a jury trial. Id. at 904-05.

In support of his argument that his guilty pleas were involuntary and unknowing due

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to counsel’s failure to communicate the consequences of the pleas to him, the petitioner cites,

among other things, his unfamiliarity with the adult criminal system, the fact that he finished

high school but did not graduate due to his “scores,” and his evidentiary hearing testimony

that his trial counsel never discussed with him the possibility that he would win at trial.

The record, however, fully supports the post-conviction court’s findings that the

petitioner received effective assistance of counsel and entered his guilty pleas knowingly and

voluntarily. Trial counsel testified that he discussed the evidence against the petitioner and

his chances at trial and explained the plea agreement to him. The transcript of the guilty plea

hearing reveals that the petitioner was fully informed of his constitutional rights, including

those that he was waiving by pleading guilty, the offenses with which he was charged, and

the possible punishments he faced if convicted at trial. The transcript also reveals that the

petitioner affirmed that trial counsel had informed him that the credibility of the State’s

witnesses would be a key issue if he went to trial and that if the jury did not believe them,

there was “a good chance” that the petitioner would not be convicted or would be convicted

of a lesser offense. If, however, the jury believed the witnesses’ accounts, their testimony

would be sufficient for the jury to convict him of the indicted offenses. During that voir dire,

the petitioner also affirmed that he was satisfied with counsel’s representation and that it was

his decision to plead guilty. We conclude, therefore, that the evidence does not preponderate

against the post-conviction court’s findings that the petitioner received effective assistance

of counsel and that his guilty pleas were knowingly and voluntarily entered.

CONCLUSION

Based on our review, we conclude that the petitioner has failed to meet his burden of

showing that he received ineffective assistance of counsel or that his guilty pleas were

unknowing and involuntary. Accordingly, we affirm the dismissal of the petition for post

conviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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