IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 3, 2010

TERRANCE FORREST v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-08-284 Roy Morgan, Judge

No. W2009-02301-CCA-R3-PC - Filed September 29, 2010

The petitioner, Terrance Forrest, appeals the denial of his petition for post-conviction relief

wherein he challenged his 2008 guilty-pleaded convictions of three counts of aggravated

robbery, three counts of aggravated kidnapping, and aggravated burglary. In this appeal, he

contends that he was denied the effective assistance of counsel and that his guilty pleas were

not knowingly, voluntarily, and intelligently entered. Because the petitioner has failed to

establish his claims by clear and convincing evidence, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and J.C. MCLIN, JJ., joined.

Joseph T. Howell, Jackson, Tennessee, for the appellant, Terrance Forrest.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Jerry Woodall, District Attorney General; and Jody S. Pickens and Al Earls,

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

OPINION

On September 17, 2007, the petitioner entered guilty pleas to three counts of

aggravated robbery, one count of aggravated burglary, and three counts of aggravated

kidnapping, and on September 19, 2007, the trial court imposed an effective sentence of 12

years’ incarceration. In a post-conviction petition filed on September 22, 2008, the petitioner

challenged his pleas on grounds that the pleas were not voluntarily entered and that he had

been deprived of the effective assistance of counsel. Following a November 6, 2008 hearing,

the post-conviction court dismissed the petition as untimely. The petitioner filed a timely
notice of appeal, and the State filed a motion conceding the timeliness of the petition and

asking this court to remand the case to the post-conviction court. Finding that the petitioner

had delivered his petition to prison authorities for mailing before the expiration of the postconviction statute of limitations, this Court granted the State’s motion and remanded the case

to the post-conviction court for an evidentiary hearing on the claims in the petition for postconviction relief.

At the October 19, 2009 hearing, the petitioner admitted that he stated at the

guilty plea submission hearing that he was satisfied with the representation provided by his

trial counsel, but he insisted that he only did so on the advice of counsel. The petitioner

stated that he provided trial counsel with the names of witnesses, in particular his “baby

mama, Nickie Ballard,” who would have rebutted the testimony of one of the victims, Kevin

Jewell, that he met the petitioner for the first time on the date of the offenses. The petitioner

conceded that trial counsel had provided him with copies of the discovery materials, but he

stated that counsel refused to discuss potential defense strategies. The petitioner insisted that

rather than an aggravated kidnapping and aggravated robbery, the offenses were instead an

altercation between he and Kevin Jewell over “a drug deal gone bad.”

The petitioner stated that, because of his “seven or eight months” of pretrial

incarceration, he “wasn’t in [his] right mind frame” at the time he entered the guilty pleas.

He stated, “I wanted to go to trial, but I didn’t want to do all that time if I’d have got found

guilty for 12 people judging me, but I just . . . didn’t know a lot about the case, you know.”

The petitioner explained that he chose to plead guilty because trial counsel told him that he

would likely receive a greater sentence than that encompassed in the plea agreement if found

guilty following a trial.

The petitioner testified that he also asked trial counsel to force Mr. Jewell and

the other victims to submit to a drug test. He stated that he told trial counsel that his cousin,

Randall Bowers, would have testified that Mr. Jewell had visited the petitioner’s house on

several occasions prior to the crimes.

The petitioner claimed that trial counsel coerced him into pleading guilty by

telling him that if he accepted the State’s offer he would at least be out of prison in time to

see his children “before they get grown.” The petitioner stated that trial counsel also told him

that success at trial was highly unlikely. The petitioner also complained that trial counsel

failed to explain to him that he would be required to serve 10 years of his sentence at 100

percent. He conceded, however, that the trial court had informed him that he would serve

100 percent of 10 years.

During cross-examination, the petitioner admitted that during the guilty plea

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submission hearing he told the trial court that he understood that he would have to serve 10

years “[d]ay for day.” He acknowledged that trial counsel “had already told [him] what 100

percent was three or four days before [he] went to court and got 10 at 100 percent.” The

petitioner insisted that he entered his guilty pleas because he felt he “couldn’t win” at trial.

The petitioner denied selling drugsto Mr.Jewell and instead claimed he was “a middle man.”

He refused to answer who had provided the drugs to him, at first claiming he did not know

who had provided him with drugs and later saying that he would not reveal the individual’s

name, saying, “The third person, he ain’t coming to court. He ain’t got nothing to do with

this.” The defendant conceded that he had lied under oath.

Nickie Ballard testified that she had known the petitioner for “[s]ix or seven

years” and that the two had three children together. She stated that she had seen the

petitioner and Mr. Jewell together on one occasion. She said that Mr. Jewell did not appear

scared to be in the petitioner’s presence.

Trial counsel testified that he had practiced law for 33 years and that his

practice was devoted exclusively to criminal defense. He stated that at the time he

represented the petitioner, he had represented more than 10,000 criminal defendants,

including 27 defendants facing the death penalty. Trial counsel testified that he met with the

petitioner on five occasions at the jail and on other occasions when they were in court. He

stated that he discussed the facts and circumstances of the case with the petitioner and that

the two reviewed the discovery materials together. He stated that the petitioner likely told

him about Ms. Ballard as a potential witness and that he believed the petitioner’s claim that

he and Mr. Jewell had known one another prior to the crimes. He said that the relationship

“may or may not have had a bearing with a jury.”

Trial counsel stated that “the absolute danger” in the petitioner’s case was that

the petitioner “had been indicted for Class A felonies that he could have received 15 to 25

years for each at the release eligibility date of 100 percent.” Counsel said that he approached

negotiations with the State with the primary goal of getting the petitioner the shortest

sentence possible. He stated that he used the previousrelationship between the petitioner and

the victim to his advantage during plea negotiations. Counsel stated that he informed the

petitioner of his constitutional rights and that he “had no problem with trying [the

petitioner’s] case if that’s what [the petitioner] wanted.” He said, “I had to be somewhere

that day; just as soon be trying a case with him as sitting at the office.” Trial counsel

nevertheless recommended “[w]holeheartedly” that the petitioner accept the plea offer from

the State. Counsel denied telling the petitioner that a loss at trial was “inevitable” but stated

that he told the petitioner that he “didn’t feel like [the petitioner] would walk away

unscathed.”

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At the conclusion of the hearing, the post-conviction court denied relief,

finding that the petitioner had failed to establish his claims by clear and convincing evidence.

In a later-filed written order, the trial court concluded that “[c]ounsel’s preparation for trial

was well within the standards required of competent counsel,” that counsel had met with the

petitioner a sufficient number of times to adequately convey the nature and circumstances

of the offenses as well as the potential penalties and defenses, and that “the petitioner’s

decision to plead guilty was freely, knowingly and intelligently made.”

In this appeal, the petitioner again complains that he was deprived of the

effective assistance of counsel because trial counsel failed to discuss possible defenses, failed

to contact Ms. Ballard, and coerced him into entering pleas of guilty. He also complains that

trial counsel’s deficient performance led to his entering guilty pleas that were neither

knowing nor voluntary. The State contends that the petitioner has failed to establish either

claim by clear and convincing evidence. We agree with the State.

Post-conviction relief is available only “when the conviction orsentence is void

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

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2006). A

post-conviction petitioner bears the burden of proving his or her allegations by clear and

convincing evidence. T.C.A. § 40-30-110(f). On appeal, the appellate court accords to the

post-conviction court’s findings of fact the weight of a jury verdict, and these findings are

conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960

S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.

1997). By contrast, the post-conviction court’s conclusions of law receive no deference or

presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

I. Ineffective Assistance of Counsel

To establish entitlement to post-conviction relief via a claim of ineffective

assistance of counsel, the post-conviction petitioner must affirmatively establish first that

“the advice given, or the services rendered by the attorney, are [not] within the range of

competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,

936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an

adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other

words, the petitioner “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

In the context of a guilty plea, the petitioner must establish that “counsel’s

constitutionally ineffective performance affected the outcome of the plea process.” Hill v.

Lockhart, 474 U.S. 52, 59 (1985). To do so, he must show “a reasonable probability that, but

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for counsel’s errors, he would not have pleaded guilty and would have insisted on going to

trial.” Id.; see Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998). In the context

of ineffective assistance of counsel that resulted in a guilty plea, the petitioner is not required

to demonstrate that he likely would have fared better at trial than he did by pleading guilty,

although evidence of this type can be persuasive that he would have insisted on his right to

a jury trial. See Hill, 474 U.S. at 59. Should the petitioner fail to establish either deficient

performance or prejudice, he is not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d

363, 370 (Tenn. 1996). Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, . . . that course should be followed.” Strickland, 466

U.S. at 697.

When reviewing a claim of ineffective assistance of counsel, we will not grant

the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or

provide relief on the basis of a sound, but unsuccessful, tactical decision made during the

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).

Such deference to the tactical decisions of counsel, however, applies only if the choices are

made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.

Crim. App. 1992).

Claims of ineffective assistance of counsel are regarded as mixed questions of

law and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6

S.W.3d 453, 461 (Tenn. 1999). When reviewing the application of law to the post-conviction

court’s factual findings, our review is de novo, and the post-conviction court’s conclusions

of law are given no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State

v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

The evidence adduced at the evidentiary hearing established that trial counsel

informed the petitioner of the nature and circumstances of the charged offenses, the potential

penalties, the available defenses (or lack thereof), and the likelihood of success at trial. Trial

counsel stated that his primary goal was that the petitioner not receive lengthy sentences with

a 100 percent release eligibility date. As a result, he entered into negotiations with the State,

using information provided to him by the petitioner about the petitioner’s previous

relationship with one of the victims, and he managed to secure a plea offer that required only

10 years to be served at 100 percent. The petitioner failed to establish that any act or

omission by trial counsel enured to his detriment. In consequence, he is not entitled to postconviction relief on this ground.

II. Voluntariness of Guilty Pleas

“The validity of a guilty plea is a mixed question of law and fact.” Jeffery

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Aaron Lane v. State, --- S.W.3d ---, No. E2007-00032-SC-R11-PC, slip op. at 6 (Tenn., July

14, 2010) (citing Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003)). “Whether a plea was

knowing and voluntary is an issue of constitutional dimension because ‘the due process

provision of the federal constitution requires that pleas of guilty be knowing and voluntary.’”

State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2000) (quoting Johnson v. State, 834 S.W.2d

922, 923 (Tenn. 1992)).

A defendant who enters such a plea simultaneously waives

several constitutional rights, including his privilege against

compulsory self-incrimination, his right to trial by jury, and his

right to confront his accusers. For his waiver to be valid under

the Due Process Clause, it must be “an intentional

relinquishment or abandonment of a known right or privilege.”

Consequently, if a defendant’s guilty plea is not equally

voluntary and knowing, it has been obtained in violation of due

process and is therefore void.

Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969). Thus, “a claim . . . that a plea was not

voluntarily and knowingly entered, implicates his due process rights and therefore falls

squarely within the ambit of issues appropriately addressed in a post-conviction petition.”

Wilson, 31 S.W.3d at 194. A plea “may not be the product of ‘[i]gnorance, incomprehension,

coercion, terror, inducements, [or] subtle or blatant threats.’” Id. at 195 (quoting Boykin, 395

U.S. at 242-43); see also State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003) (“Certainly, a

plea is not ‘voluntary’ if it results from ignorance, misunderstanding, coercion, inducements,

or threats.”) (citing Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993)); Sexton v. State,

151 S.W.3d 525, 532 (Tenn. Crim. App. 2004) (stating that “the nature of the proceeding,

the exchange between the trial court and the petitioner, and the relatively beneficial plea

agreement reflect the petitioner’s knowledge and understanding that [his] constitutional

rights relative to the trial process were not to be asserted by [him] any further”).

Because the petitioner has failed to establish that his counsel performed

deficiently, we cannot say that the ineffective assistance of counsel rendered the petitioner’s

guilty pleas involuntary or unknowing. The petitioner conceded that counsel explained that

he would serve 10 years of his sentence at 100 percent service and that he chose to enter his

pleas to avoid a more lengthy sentence following an unsuccessful trial. That the petitioner

chose to plead guilty rather than risk garnering a harsher punishment does not establish that

he was coerced to plead guilty but demonstrates that the petitioner’s decision to plead guilty

“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) (citing Boykin, 395 U.S.

at 242; Machibroda v. United States, 368 U.S. 487, 493 (1962); Kercheval v. United States,

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274 U.S. 220, 223 (1927)). Under these circumstances, the petitioner has failed to establish

that his guilty pleas were not knowingly, voluntarily, or intelligently entered.

Accordingly, the judgment of the post-conviction court is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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