### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs Feb ru ary 3, 2 00 9

GEO RGE SCO TT MASO N v. STAT E OF TENNE SSEE

Direc t Appeal from the Circ uit Court for Bedf ord County No. 11343 Robert

Crigler , Judge

No. M2008- 00911-CCA -R3-P C - F iled Augu st 11, 2009

T h e p et i t ioner, Geor g e Scott Mason, appea ls the judgme nt of the Be dford County Circuit Co u rt denying post-conviction relief

. I n this appea l, the petitioner argues that he rec eived the ineffe ctive assistance of counsel which caused him to enter an unknowing and involuntary g uilty plea. After revie w, the judg ment of the c ourt deny ing post-c onviction relief is a ffirme d.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J .C. M C L I N , J
., delivere d the opinion of the court, in which J O H N E V E R E T T W I L L I A M S and C A M I L L E R. M C M U L L E N , J J ., joined.

Andre w J ackson Dea

ring
, I I I
, Assistant Public Def ender
, Shelby

ville, Tenne ssee, for the appellant, Geor g e Scott Mason.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; L eslie E. Price, Assistant Attorney Gene ral; Charles Fr ank Crawf

ord, J r., District Attorney Gene ral; and Michae l D. Randles, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP INION

The rec ord ref

lects that the petitioner was char g ed with two counts of sale or delivery of .5
g rams or more of coca ine, a Schedule I I controlled substance, one count of evading arr est, and one count of rec kless endang erme nt. Pursuant to a neg otiated plea ag ree ment, the petitioner pled g uilty
to selling over

. 5 gra m s o f coca ine and was sentenc ed to ten y ear s imprisonment as a Rang e I offe nder. The remaining char g es were dismissed. Prior to enteringthe plea, the petitioner si g ned

a form entitled, “Petition to E n t er P l ea of Guilty .” The form extensively detailed the petitioner’s rig hts and listed the char g ed offe nses and the potential penalty rang es. The form specific ally noted
t h at t h e petitioner’s ten y ear sentenc e could be run “conse cutive to any other sentenc e incl u d i n g Be dford 13650.” At the plea submissi on hear ing, the st at e o ff er ed a statement of fac t which indicated that the petitioner was plea d i n g gu ilty beca use he sold cra ck coca ine to a confide ntial informant for $225. The petitioner acknow ledg ed that the statement of fac t offe red by the state was

acc urate and that he w as g uilty of the off ense.At the plea submission hear ing, the trial court infor med t he petiti oner of the constitutional ri ghts he was waiving by pleading g uilty and the rang e of punishment for the offe nse t o whi ch h e

was pleading g uilty

. The petitioner stated that he had rea d the plea ag ree ment and understood its
contents. He stated that he was voluntarily pleading g uilty to selling over .5 g rams of a Schedule I I controlled substance in exchang e for a sentenc e of 10 y ear s at 30 % an d the dismiss al of the

rema ining three counts of the indictment. The petitioner maintained that his g uilty plea was enter ed voluntarily

. The petitioner indicated that he was satisfied with his attorney s’ repr esentation and that they had done ever

y thing they could to find witnesses, file motions, and repr esent him in the case

. The petitioner indicated that he was in g ood health, had obtained his GED, and was able to rea d and write. The trial court found that the petit ioner was knowing ly and voluntarily

pleading g uilty and

acc epted the pe titioner’s plea.

On Aug ust 13, 2007, the petitioner filed a pro s e p et i t ion for post-conviction relief

. There afte r, counsel was appointed and an evidentiar y hear ing was held. At the hear ing, the p etitioner testified that L ibby Sny der was appointed to repr esent him, bu t J ohn H. Norton, I I I
, beg an repr esentation of the case prior to the entry of his g uilty plea. The petitioner acknow ledg ed that he

rec eived discovery materia ls from his attorney s, which included copies of his ind i ct m ents , a transcr ipt of the preliminary hear ing, and the state’s witness list. He rec alled that he discussed the discovery with Attorney Sny der, but he claimed that they did not discuss the witness list or his prior criminal rec ord. The petitioner asser ted that he discovere d the identity of the confide ntial informant. The petitioner further asser ted that the confide ntial informant was Andre w Rankins. The petitioner claimed that Rankins had written a letter to his nephew , indicating that the petitioner ha d not sold him the drug s on the day

of the off ense. The petitioner also cla imed that the defense investig ator, L arr y Shavers, talked to Rankins and was t o l d t h e s ame thing. The petitioner rec ounted that he
prepa red a motion reque sting that the state rele ase the identity of the confide ntial informant. He did

so beca use he wanted verific ation that Rankins was the confide ntial informant. Howeve r, Attorney Sny der did not file the motion and informed the petitioner that she had spoken to the state prosec utor reg arding the rele ase of the confide ntial informant’s identity

. She further informe d th e p etitioner that the prosecutor would stop all plea ne g otiations if she filed the petit ioner’s moti on. The petiti oner maintained that even though he alre ady knew the identity of the confide ntial informant he was willin g t o cease plea neg otiations with the state in order to obtain the name of the confide ntial informant via motion beca use he be lieved that the infor mant was not cr edible.

T h e p et i tioner acknow ledg ed that Attorney Sny der discussed the laboratory repor t of the drug s he had alleg edly sold to the confide ntial informant. Howeve r, the petitioner complained that Attorney Sny der “neve r did g o into deep details.” The petitioner said the laboratory repor t indicated the coca ine weig hed 3.8 g rams. Howeve r, one of the police office rs involved in monitoring the drug
transac tion testified at the preliminary hear ing that the petitioner sold 7 g rams of coca ine. Acc ording
to the petitioner, Attorney Sny der responde d to his conce rn by telling him that she would attack the

o fficer’s credibility at t rial wit h any inconsistency from his prior testi mony

. The petiti oner sta t ed that he asked Attorney Sny der to investigate the cha in of custody for the drug s. She told him that

-2-she would do more rese arc h on the issue and would file a mot i o n i f ap p ro p ri ate. The petitioner

complained that no motion was filed c halleng ing c hain of c ustody

. The petiti oner testified that his attorney s sent him a compact di sc and an audio casse t t e o f the drug transaction but he was not allowed to listen to them in prison. He reca lle d t h at At torney Sny der informed him that the tape was mostly inaudible. The petitioner acknow ledg ed that Attorney Sny der had the tape transcr ibed for him. The petitioner also acknow ledg ed that he was eventua lly able to listen to the t ape with Attorney Sny der at the county jail. The petitioner claimed that his voice was not on the tape. The petitioner admitted that his attorney s filed a motion to suppress the tape of the drug transac tion, but the court did not rule on it. The petitioner admitted th at the trial
court reda cted non-re levant and prejudicia l portions of the tape. The petitioner conce ded that his attorney s might have worke d something out with the prosec utor with reg ard to the admission of the tape.

The petitioner acknow ledg ed that his attorney s filed sever al motions on his behalf
, including

one seeking to exclude from evidenc e the curr ency used to purcha se the drug s. He rec alled that the motion was argued in court, but he complained that his attorney s did not prese nt proof and the court did not issue a ruling on the m otion. The petiti oner asserted that he asked Attorney Sny der to file

a motion to suppress the evidenc e discovere d as a result of the stop of his vehicle following the drug
transac tion. Howeve r, Attorney Sny der w ould not discuss the issue with him

. The petitioner said he was not responsible for evading arr est and rec kless endang erme nt even though law enfor ceme nt involved in the stop of his vehicle a lleg ed that he w as involved in a vehicle chase , ran a stop sign, and near ly hit another police vehicle. The petitioner maintained that his attorney s should have filed the motion to suppress beca use his constitutional rights we re violate d.

The petitioner testif

i ed t h at he reque sted Attorney Sny der speak with the members of the Dr u g Task For ce involved with his case , but he did not know if this was done. He conced ed
, howeve r, that state witnesse s were not obligate d to talk to the de fense . The pe titioner said that he asked Attorney Sny der to talk to Misty York reg arding a potential alibi defe nse. There afte r, Attorney Sny der sent the petitioner a le tter indicating that she had c ontacted Y ork’s g randmother
, but York

was out of town and could not be located. The petitioner complained that Attorney Sny der did not do enoug h to investigate his alibi defense

.

Th e petitioner asser

ted that prior to enter ing a g uilty plea, he met with his attorney s and discussed the possibili ty of fede ral char g es being filed ag ai n s t h i m. The petitioner asser ted that during this conver sation, Attorney Norton told him that if did not plead g uilty
, Tim L ane of the 17th J udicial District Drug Task For ce would talk to the United States Attorney ’s Offic e and reque st that the petitioner be prosec uted on fede ral char g es, which car ried a potential life sentenc e. Acc ording to the petitioner, he asked for a document from the fede ral g overnme nt sta ting that they would not prosec ute him if he pled g uilty

. Subsequently
, his attorney s g ave him a letter from Tim L ane rec iting the fac t that L ane had broug ht the petitioner’s case to the attention of the United States Attorney ’s Offic e for possible pr osecution on fede ral char g es. Howeve r, beca use the petitioner had ag ree d to enter a g ui l ty plea, L ane would make no further attempt to involve the fede ral g overnme nt in the

-3-prosec ution of the petitioner. The letter was enter ed into evidenc e as exhibi t 7. The petitioner said

he was conce rned that he would be prosec uted by the fede ral g overnme nt and rec eive a life sentenc e if he did not plead g uilty

. Th e p et i t i o ner asser ted that he lear

ned afte r the plea that the fede ral
g overnme nt w as not bound by the letter written by Tim L ane. He claimed he would not ha ve pled
g uilty had he known of this fac t prior to enter ing his plea. He acknow ledged t h at the fede ral
g overnme nt had not pursued c harg es ag ainst him.

The petitioner claimed that h e wa n t ed to show the letter to the trial court as proof he was being coer ced into taking the 10-y ear plea deal. Howeve r, he did not bring the letter to the hear ing and pled g uilty beca

use his attorney s told him it was in his best interest. The petitioner admitted that he could have discussed the contents of the letter with the court at the hear ing but did not do so. The petitioner complained that h e wa s n ot awa re that he could have ref

used to plead g uilty in Moore County and moved the hear ing to B edfor d County

. Howeve r, he acknow ledg ed that the trial court asked hi m at t h e h earing if he had a problem with having the hear ing in Moore County and he responde d that he had no objection. The petiti o n er as s erte d that he said “y es” to the trial court’s questions so his plea would be acc epted. The petitioner acknow ledg ed that he confirme d the state’s
statement of fac ts as true. He also admitted that he had told the trial court that he had no complaints with his attorney s’ repr esentation. He further acknow ledg ed that he r ece ived the benef it of Rang e I sentenc ing even though he qualified for Rang e I I sentenc ing. The petitioner noted that he had filed
two complaints with the Boa rd of Prof e s s io n a l Responsibili ty reg arding his attorney s’ repr esentation of his case

.

L ibby Sny der testified that she had been licensed to prac tice law in Tenne ssee since 2003 and that the majority of her prac tice was criminal defe nse. She stated that At t o rn ey Norton was the senior partne r in her firm. He had prac ticed law for about 30 y ear s with the majority of his prac tice in criminal defe nse. On Fe bruar y 22, 2007, she was appointed to repr esent the petitioner. After her appointment, Attorney Sny der reque sted d i s co v ery from the state, had the preliminary hear ing
transcr ibed for the petitioner’s revie w, reque sted the petitioner’s case file from his former attorney , an d s p o k e t o Tim L ane and the petitioner about the char g es set forth in the indictment. Sh e

rec ounted that the case involved a controlled drug buy in the Fo o d L i o n p arking lot afte r which police office rs pursued and arr ested the petitioner. Once arr ested, the office rs retrie ved the curr ency used by the conf idential informant to purc hase dr ug s from the pe titioner.

Attorney Sny der testified that she discussed the case with the petitioner and explained to him why she did not file cer

tain motions he wanted filed beca use they lacke d merit. Attorney Sny der said that the petitioner was familiar with the court sy stem and understood her explanations. At t o rney Sny der r ecounte d that one of the motions the petit ioner wa nted filed wa s a motion to suppress the stop of his vehicle based on his belief that the confide ntial informant was not cre dible. Attorney Sny der said that there was no basis for filing this motion. She also did not file a motion to dismiss the indictments beca

use they wer e not defe ctive. Acc ording to Attorney Sny der, the state’s witness list comprised mostly of law enfor ceme nt. She explained to the petitioner that the state’s witnesses

wer e not obliga

ted t o talk to her. Nonethele ss, she and Attorney Norton t alked to Ti m L ane from the DrugTask F orce about the fa cts of the pe titioner’s ca se.

-4-Attor n ey Sny der testified that she did not formally reque st the name of the confide ntial

informant from the District Attorney ’s Offic e. She explained that she had lear ned from the petitioner that Andre w Rankins was the confide ntial informant. She had I nvestig ator L arr y Shavers speak to Rankins. I nvestig ator Shavers was able to obtain a statement from Rankins, confirming that he was the confide ntial informant and indicating that he could not identify the petitioner as the person who sold him drug s. Attorney Sny der clar ified, howeve r, that Rankins did not specific ally deny that the petitioner sold him drug s. Attorney Sny der said that she share d this information with the petitioner. Attorney Sny der rec alled that al though the identity of the confide ntial informant was known, the petitio n er s ent her a motion he had draf ted reque sting that the state disclose the name of the confide ntial informant. Attorney Sny der said she spoke to the prosec utor, who informed her that he would cea se further plea neg otiations if he was forc ed to reve al the name of the informant. She then
sent the petitioner a letter which detailed the prosec utor’s war ning and asked the petitioner if he still wanted to file the motion. Acc ording to Attorney Sny der, the petitioner did not respond so she did not file the motion as it did not benefit the petitioner.

Attorney Sny der testified that she filed a motion to suppress the audio rec ording of the stop beca use the sound was not ve ry clea r. Howe ver, the prosec utor informed he r that he ha d a cle are r version of the rec ording
, so she ag ree d to rese rve the motion until trial. She also soug ht to suppress the superf luous statements in the rec ording . The state a g ree d to reda ct Ti m Miller’s s tatements at the begin n i n g o f the rec ording and his interview of the confide ntial informant at the end of the

rec ording

. Acc ording to Attorney Sny der, she filed motions to suppress the confide ntial informant’s identification of the petitioner in the audio rec ording and the curr ency found on the petitioner at the time of h i s ar rest. The parties ag ree d to argue these motions on the day of t rial. Attorney Sny der stated t hat s h e was aware there wer e dis cre pancie s as t o the weight of the cocaine alleg ed to have been sold by the petitioner wher ein Tim Miller’s preliminary testimony differ ed from the labora tory repor t as to how much the drug s weig hed. She explained to the petitioner that the discrepa ncy as to the weig ht of the drug s would serve the defe nse in attacking the witnes s ’s cre dibilit y , but had no rele vance reg ardingthe cha rg es ag ainst him.

Attorney Sny der testified that about a month befor e trial the petitioner informed her of a possible alib i wi t n ess named Misty York. Attorney Sny der rec alled that she attempted to locate York as well as other witnesses but was unsucce ssful in her endea vors. Attorney Sny der explained that the petitioner’s plea was enter ed in Moore County for rea sons of convenie nce. She did not think the petitioner suffe red any prejudice beca use he pled g uilty in Moore County rathe r than in Be dford County

. Attorney Sny der rec alled that she and Attorney Norton met with the petitioner about a plea deal. At the t ime, sh e i n fo rmed the petitioner about the pos sibili ty of federa l prosec ution. At the petitioner’s re quest, she provide d case law esta blishing that both the state and f eder al g overnme nt could prosec ute for the same offe nse without violating double jeopar dy

. The petitioner told her and Attorney Norton that he wanted a letter stating he would not be prosec uted by the fede ral g overnme nt if he pleade d g uilty to the state char g es. Attorney Sny der rec alled that she sent the petitioner a copy

-5-of the letter from Tim L ane. She subsequently met with the petitioner in jail, g ave him another copy

of the letter, and play ed the audio rec ording of the drug purcha se. She rec alled telling the petitioner that if he fe lt threatene d, he should not plead g uilty but rather

g o to trial.

Attorney Sny der testified that sometime in May of 2007, the petitioner announce d that he no longe r wanted her to repres en t h i m

. At that time, she informed the trial court and the court responde d that the petitioner should make a statement for the rec ord. Howeve r, once on the rec ord, the petitioner indicated that h e d i d n o t wa n t a new lawy er. Subsequently
, the petitioner wrote Attorney Sny der a letter sug g esting he wanted a new lawy er. She responde d, informing the petitioner that he neede d to have a motion filed soon if he wanted a new lawy er. The petitioner took

no action in response to her letter. Attorney Sny der stated that afte r the petitioner enter ed his g uilty plea, he thanked her for her work and asked if she woul d re p re s en t h im in a divorce

. Attorney Sny der said it was not until afte r the plea hear ing that she lear ned the petitioner had filed complaints with the Boa

rd of Profe ssional Responsibil ity

.

J ohn H. Norton, I I I
, testified that he had been licensed to pra ct i ce law in Tenne ssee since 1976 and that t h e m aj o ri t y o f his prac tice was criminal defe nse. He had tried numerous criminal

case s befor e a jury in both state and fede ral court. Although Attorney S n y d er wa s appointed to repr esent the petiti o n er i n t his case , Attorney Norton agr eed to assist her if the case went to trial. At to r n e y N o r to n s a id th a

t I n v e s ti g a to r L arr y Shavers obtained the confide ntial informant’s statement, which indicated that the informant could not identify the person who sold him drug s. Howeve r, the informant neve r cla imed that the petitioner did not commit the offe nse.

Atto rn ey Norton testified that Attorney Sny der consulted with him reg arding the filing of various motions and defe nse strateg y and he ag ree d with Attorney Sny der’ s decisi o n s o n these matters. Attorne y Norton specifically noted t hat t he petiti oner’ s motions to suppress the stop and
to dismiss the indictment had no merit, and the petitioner’s motion to dismiss the arr est war rants was moot upon the issuance of the indictment.

Attorney Norton testified that he spoke to Tim L ane, the Direc tor of the 17th J udicial District Drug Task For ce, about the petitioner’s case

. Attorney Norton said that he had dealt wi t h L ane befor e and he was awa

re t h at L ane had a g ood working relationship with the United States Attorney ’s Offic e. He believed that L ane would pursue the initiation of fede ral char g es ag ainst the petitioner. Attorney Norton also noted that he talked with someone in the United States Attorney ’s Offic e and lear

ned that L ane had approa ched that office with the petitioner’s case

. Attorney Norton

rec ounted t h at o n ce t h e possibili ty of fede ral char g es arose , he took a more active role in the petitioner’s case as he had more feder al ex perie nce than Attorney Sny der. A ccor ding to Attorney Norton, he ha d a conve rsation with the petitioner on June 18, 2007 and explained to him that Tim L ane had serious intentions of g etting the fede ra l go v er n ment to pursue char g es ag ainst the petitioner. Attorney Norton also explained that it was possi ble for the petit ioner to be prosecut ed in both state and fede ral court without violating constitutional protec tions ag ainst double jeopar dy

. Attorney Norton rec alled that he advised the petitioner that it would be in his best interest to plead
g uilty in order to avoid a possible conviction as a Rang e I I offe nder and fed er al prosec ution.

-6-Howeve r, Attorney Norton denied telling the petitioner that h e wo u l d rec eive a life sentenc e in

fede ral prison. Attorney Norton noted that “ther e [was] no way on God’s g ree n ear th” the petitioner fac ed a f eder al life sente nce f

or selling the amount of drug s he wa s acc used of se lling.

Attorney Norton rec alled that the petitioner told him that he would plead g uilty if he could
g et a letter

providing assura

nce tha t he would not be prose cuted by the federa l gove rnment. Afte r

rec eiving the letter from Tim L ane, the petitioner decide d to plead g uilty

. Attorney Norton said that althoug h L ane’ s letter did not bind the fede ral g overn m en t , h e believed the fede ral g overnme nt would follow L ane’ s rec ommendation. Attorney Norton maintained that he never told the petitioner that the letter was binding. He also noted that the peti t i o n er had y et to be char g ed by the fede ral
g overnme nt for the d rug offe nse to which he pled g uilty

. Attorney Norton noted that he was prepa red to g o to trial if the petitioner had wanted a trial. He also stated that the petitioner indicated under oath that he had no objection to the fac t that the plea submissi on hear ing was held in Moor e County

.

Follow i n g t he hear ing, the post-conviction court enter ed an order denying the petitioner’s
reque st for post-convic tion relief

. The court made ex tensive findings of fa ct and de termined that the petitioner did not meet his burden of proving that his attorney s’ perf ormanc e was defic ient and that his attorney s’ def

icient per formanc e pre

judiced the outcome of the proc eeding s.

ANALYSIS

I n order for a petitioner to succe ed on a post-conviction claim, the petitioner must prove the all eg ations of fac t set forth in his petition by clea r and convincing evidenc e. Tenn. Co d e An n

. § 40-30-110( f). On appea l, this court is require d to aff irm the post-conviction court’s finding s unless the petitioner proves t h at t h e evidence preponde rate s ag ainst those finding s. State v. Burns
, 6 S.W .3d 453, 461 (Tenn. 1999). Our revie w of the post-conviction court’s fac tual finding s, such as finding s conce rningthe cr edibility of witnesses a

nd the weig ht and value g iven their testimony , is de novo with a presumption that the finding s are corr ect. See id. Our revie w of the post-conviction court’s leg al conclusions and application of law to fac ts is de nov o wi t h o u t a presumption of

corr ectne ss. Fields v. State , 40 S.W .3d 450, 457-58 (Te nn. 2001).

To establish the ineffe ctive assistance of counsel, the petitioner bear s the burden of proving that (1) counsel’s perf

ormanc e was defic ient and (2) the defic ient perf orm an ce prejudice d the defe nse renderingthe out come unreliable or fundame ntally unfair. See Strickland v. W ashington
, 466 U.S. 668, 687 (1984); see also Arnold v . State , 143 S.W .3d 784, 787 (Tenn. 2004) . Def icient perf ormanc e is shown if counsel’s conduct fell below an objective standard of rea sonablene ss under
preva iling profe ssional standards. Strickland
, 466 U.S. at 688; see also Baxter v. Rose
, 523 S.W .2d 930, 936 (Tenn. 1975) (establishing that repr esentation should be withi n the rang e of competenc e demande d of attor ney s in criminal cases). Prejudice is shown if, but for counsel’s unprofessional

err ors, there is a rea sonable probab i l i t y that the outcome of the proce eding would have been differ ent. Strickland
, 466 U.S. at 694. A fair assessment of counsel’s performa nce “re quires that

ever y eff ort be made to eliminate the distorting eff ects of hindsight, to rec onstruct the circ umstances

-7-of counsel’s challeng ed conduct, and to evaluate the conduct from counsel’s perspe ctive at the time.”

Id

. at 689; see also Nichols v. State
, 90 S.W .3d 576, 587 (Tenn. 2002). Both defic ient perf ormanc e and pre judice must be established to pr ove ineffe ctive assistance of counse l. Strickland , 466 U.S.
at 697; see also G oad v. State
, 938 S.W .2d 363, 370 (Tenn. 1996). I f either element of ineffe ctive assistance of counse l has not been established, a court need not addre ss the other element. Strickland , 466 U.S. at 697.

The two-par

t standard of proving ineffe ctive assistance of counsel also app l i es t o claims arising out of t he plea proce ss. The prejudice requireme nt i s m o d i fi ed s o that the petit ioner must show a rea sonable probability that, but for the err ors of counsel, the petitioner would not have pled
g uilty

. See H

ill v. Lockhart , 474 U.S. 52, 59 (1985); Adkins v. State
, 911 S.W .2d 334, 349 (Tenn. Crim. App. 1994). I t is also helpful to note that when deter mining the knowing and voluntary nature of the g uilty plea, the standard is “wh et h er the plea repr esents a voluntary and intelligent choice
among the alternative course s of action open to the defe ndant.” North Carolina v. Alford
, 400 U.S. 25, 31 (1970); see also State v. Pettus
, 986 S.W .2d 540, 542 (Tenn. 1999) . A petitioner’s solemn decla ration in open court that his or her plea is knowing and voluntary cre ates a formidable barr ier in any subsequent collateral proc eedingbeca use these de clar ations “ca rry a strong presumption of verity .” Blackle dge v. A llison , 431 U.S. 63, 74 (1977).

On appea l, the petitioner claims that he rec eived the ineffe ctive assistance of counsel which

cause d him to enter an unknowing and involuntary g uilty plea. As s u p p o rt for his claim, the petitioner first asse rts that his attorney s were ineffe ctive in fa iling to pre pare the ca se for trial.

I n the instant case , the post-conviction court found it abundantly clea r from the petitioner’s

own testimony that his attorney s diligently pursued investigation of his case includi n g filing
appropr iate motions and “did ever y thing rea sonably possible to communicate with the petitioner.” The court further noted that the petitioner “fa iled to prove any defic iency of any sort on the part of trial counsel.” We ag ree

. Contrary to the petitioner’s a ssertion, the petit ioner’s own testimony at the pl ea submiss ion hear ing clear ly establishes t hat he had no complaints reg arding his att o rn ey s’
repr esentation. Additionally
, the petitioner’s own testimony at the post-conviction hear ing reve als that his attorney s interviewe d sever al wi t n esses, filed sever al motions, obtained and revie wed discovery materia ls from the state, obtained a statement from the confide ntial informant which was helpful to the defe nse, communicated with the petitioner about his case , and neg otiated a favor able plea agr eeme nt. Acc ording ly
, the evidenc e in the rec ord does not preponde rate ag ainst the postconviction cour

t’s finding s and the issue is without merit.

T h e p et i tioner next asser ts that his attorney s failed to fully investiga te and interview witnesses. The post-c onviction court found that the petitioner “ prese nted no evidenc e at the postconviction hea ri n g that any witnesses not interviewe d would have provided rele vant evidenc e.” Ag ain, contra

ry to the petitioner’s asser tion, the rec ord establishes that his attorney s interviewe d or attempted to locate all of the witnesses sug g ested by the petitioner. Additionally
, the petitioner did
not meet his burden to prese nt the witnesses he claimed his attorney s failed to interview. As a g ener al rule, the prese ntation of these witnesses at the post-conviction hear ing is nece ssary to prove

-8-that counsel’s failure to utilize the se witnesses resulted in pr ejudice to the pe titioner. See Black v.

State
, 794 S.W .2d 752, 757 (Tenn. Crim. App. 1990). Neither the post-conviction cou rt nor this
court may speculate on what a witness’ testimony might have been if introduced by counsel. Id

. Acc ording ly , the issue is without merit.

The petitioner finally asser ts that his attorney s failed to inform him that the letter from Tim L ane, the Direc tor of the 17th J udicial District Drug Task For ce, was not binding o n t h e fe d er al
g overnme nt. I n addre ssing this asser tion, the post-conviction court found:

On Monday
, J une 18th, 2007, Mr. Norton and Ms. Sn[ y ]der met with the Petitioner
at the Be dford County J ail and discussed the possibili ty of fede ral prosec ution. The Petitioner appar ently believed that double jeopar dy preve nted both fede ral and state convictions arising from the same criminal episode. Acc ording ly
, the Petitioner
reque sted case law on this issue and written assuran ce h e would not be prosecuted fede rall y , wh i ch counsel provided. The Petitioner contends that his plea was not knowi n g and voluntary beca use the threat of fede ral prosec ution was coer cive and
t h at t h e letter from Direc tor L ane (exhibit 7) does not provide absolute immunit y from fe dera l prosecution.

The court revie wing the voluntariness of a g uilty plea must look to the totality of the circ umstances. State v. T urner , 919 S.W .2d 346, 353 (Tenn. Crim. App. 1995).

. .

. The Petitioner’s hand-w ritten petition as well as his answe rs at the plea acc eptanc e hear ing and his te stimony at the post-conviction hear ing prove that he can rea d and write and that he is of at least aver ag e intelligenc e. Be fore the Petitioner’s g uilty plea in this case , he had rec eived a six teen y ear sentenc e for sale of coca ine and two twoy ear sentenc es for criminal responsibility for sale of coca ine. Thus, he was alre ady familiar with criminal proce eding s. The Petitioner rec eived excellent and thoroug h lega l re prese ntation not only by appointed counsel, Ms. Sn[ y ]der, but also by her superior, Mr. Norton, and their office investigator, L arr y Shavers. The Petitioner had ample opportunity to and did, in fac t, confe r at leng th with counsel about the options available to him. The transcr ip t o f t h e plea acc eptanc e hear ing (exhibit 9), the petition to enter a g uilty plea (exhibit 8), and the State’s excellent cross-e x amination of the Petitioner at the post-conviction hear ing lead the court to conclude that h is
g uilty plea did not result from ig noranc e, misunderstanding
, coer cion, inducement, or threa t. The Petitioner rec eived dismiss al of three counts, a mid-rang e Isentenc e and ample assura

nce he woul d n o t be fede rally prosec uted. He admitted he was fre ely pleading g uilty and most de sirous of this settlement when he testified that he

was conce rned the trial court would not acc ept the plea but he knew what he neede d to say

.

I n the instant case , the rec ord supports the post-conviction court’s finding s. Attorney Norton testified that he never told the petitioner that the letter from Tim L ane was binding on the fede ral
g overnme nt. Additionally , the letter itself doe s not indicate a guara ntee of immunit y

from fe dera l

-9-prosec ution. Rather, the letter mere ly indicates that Tim L ane was informed that the petitioner was

g oing to plead g uilty
, and there fore
, L ane’ s “off ice will not ask the U.S. Attorney ’s Offic e to pursue any ty pe of fede ral prosec utorial actions ag ainst Mr. Mason.” Mor eover , the transc ript of the plea submissi on hear ing clea

rly reve als that the petitioner was satisfied with his attorney s’ repr esentation and the petitioner’s g uilty plea was knowing and voluntary

. Other than his own asser tion, the petitioner has failed to de monstrate that his attorney s perf ormed defic iently reg arding the letter or that h e wo u l d not have pled g uilty but for the alleg ed defic iency

. There fore
, he is not entitled to relief

.

CONCLUSION

Ba sed upon the for eg oing r eview, w e af firm the judg ment of the post-c onviction court.

___________________________________ J .C. McL I

N, J UDGE

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