1 The Defendant r eceived a t hree-y ear sentence on the fel ony conviction, an d eleven- month, t wenty -ni ne day sentences on the misdem eanors. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on

Briefs S eptem

ber 23, 200 3
PAMELA J. MOS ES v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for K nox County No. 73066 Mary Beth Leibowitz, Judge

No. E2 002-0 2319- CCA-R3 -PC October 2, 2003

The Defendant, Pamela J. Moses, pled guilty pursuant to a plea agreement to ag gravated assault and
numerous misdemeanors. The plea agree ment encompassed the length of the sentences, but left the
manner of service for the

trial court’s determination. The trial court denied an alternative sentence and ordere d the Def

endant to serve he r terms in confinement. The Defendant subsequently filed for post-conviction relief, allegi ng inef fective assistanc e of coun sel in

conjunction with her plea. After
an evidentiary he aring, the post-conviction court denied relief and this appeal followed. We affirm the judg ment of the

post-con viction c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and R OBER T W. W EDEMEYER , JJ., joined. Mark Stephens and

Bob Edwa

rds, Knoxvi lle, Tennessee, f or the ap pellant, Pamela J. Mo ses.
Paul G. Sumers , Attorne y General and Repor

ter; Rene eW. Turne

r, Assista nt Attorne

y General ; Randall E. Nichol s, District Attorney Gene ral; and Patti Cristil, Assistant District A ttorney Genera l, for the appellee, State of Tennessee.
OPINION

Pursuant to her plea agreement with the State, the Defendant received an

effective eight-y

ear sentence for a sin gle fe

lony convicti on and eig

ht misdeme anor con

victions. 1 The plea

agree ment did notspecify the ma

nner in which these sentences would be served. A fter a sent encin g h earing at which a manager of

the enhanced probation program, a program manager

for the CA

P Progra m in Community

Corrections, and

the Defendant’s mother testified, the trial court declined to g rant any alternative sentence. The judge or dered the Defendant to begin serving he r felony sentenc e in the-2-

Department

of Correction. The Defendant now a llege s that her plea was the result of ineffective assistance of cou nsel bec ause her lawye r assured her that her guilty plea would result in her sentences being served on probation. She argues that her guilty plea was therefore unknowing a nd in vo lu nt ar y.
At the post-conviction hearing, the Defenda nt testified that her attorney told her that “probation was gua

rantee d, ” and th at the judge’s qu estions du ring the plea hea rin g we re “just a formality.” Darry l Humphrey, the De fendant’s lawy er

during her plea process, testified to the contrary . He statedthat he “ never e ver, eve r told [the D efenda

nt] that probation was guaranteed.” Mr. Humphrey testified

that the Defendant “understood, as [he] explained to her, that the decision was the Judge’s.”

In addition to hearing this testimony, the t rial jud ge, who had also presided over the Defendant’s plea hearing and her sentenc ing hearing, reviewe d the transcripts of those pro ceeding s. After the post-conviction hearing, t he trial judge issued a written order deny ing the Defendant’s petition and furt

her set f orth in writing her findings of fact and c onclusions of law. That orde r states, in pertine nt part, a s follows:

the Court doe s not find th at Mr. Hum phrey misled [the

Defend ant] su ch that she entere d into a plea that was not knowing, voluntary and understanding. The Court further finds that [the Defendant] did understand that probation was not automatical l y granted. While the [D]efendant now finds it easy to say that she did not understand, when she was asked the questions by the Court, and signed the wai ve r[,] she understood. Mr. Humphrey wor ked hard to repre sent [the D efenda nt] and tha

t as a result of his work many of the

charges were re duced, nolledprossed, or dismissed as
a result. Due to her behavior at bond hearing s, Mr. Humph

rey and [the De

fendant ] bothknew that probation would be an uphill battle and that [the Defendant] knew or should have known that

probation rested upon her good behavior. . . . From all of the fo rg oi ng th e C ou rt fi nd s t ha t t he at to rn ey f or [t he De fe nd an t] , M r. Da rr yl Hu mp hr ey, not only met but exceeded the requirements of Baxter v. R ose , 523 S.W.2d 93 (Tenn. 1975) in competency and effort in this case. Mr. Humph rey clearly discussed all of [the Defe ndant’s] rights and liabilities with her on numerous
occ asions, [the Defendant] has conveniently forgotten those things which do n o t achieve her

desired ends in this case, because [the Defendant’s] behaviors have had consequ ences. There is no questio n that at t h e time of [her] plea, [the Defe ndant] fr ee ly, voluntarily and knowing ly understood he r rights, the content of the plea agree ment, the fact that no promises had been made to her about probation, and the very grave danger

that she was in. The state at the time of the announcement of the plea agreement emphatically

denied any w illingness to place [the Defenda nt ] on probation and [the De

fendant ] knew fro m the outse t that it would be necessary for her to prove her worthiness for probation. She did not do so as is evidenced by the transcript of the sentenc ing hea

ring wh ich is also an exhibit in these pleadings. [The Defendant’s] petition is therefore respectfully denied.-3-

To sustain a

petitio n for post

- conviction relief, a defendant must prove his or her fa ctual allegations by clear

and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40- 30-210(f); Momon v. Sta te , 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not reweigh or re-e

valuate the evide nce belo w; all que stions con cerning the cre dibility

of witnesses, the weight and value to be given their testimony , and the factual issues raised by the evidence are to be resolvedby

the trial judge, not the appellate courts. See Momon , 18 S.W.3d at 15 6; Henley v. State , 960 S.W.2d 572, 5 78-79 (T enn. 1997 ). The tr ial judg e’s find

ings of f act on a p eti tion for postconviction relief are afforded the w eight of a jury ve

rd ict and are conclusive on appeal unless the evidence prepond

erates agains t those

findings. See Momon , 18 S.W.3d a t 156; Henley , 960 S.W.2d at 578-79.

Both the Sixth Amendment to the United States Constitution and Article I , § 9 of the Tennessee Constitution guarantee a defendant the rig ht to repres ent ation by counsel. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose , 523 S.W.2d 9 30, 936 (T enn. 1975 ). This right to counsel includes the right to effective counsel. See Strickland v. Washington , 466 U.S. 668, 686 (1984 ); Burns , 6 S.W.3d at 461; Baxter , 523 S.W.2d at 936

. To determine whether counsel provided effective assistance a t trial, t he court must decide whether counsel’s performance was wi thin the range of compe

tence de manded of

attorne ys i n criminal cases. See Baxter , 523 S.W.2d a t 936; Hicks v. St

ate , 983 S.W.2d 240, 245 (Tenn. Cr im. App. 1998). To succeed on a claim that his or her counsel was ineffective at trial, a defendant bears the burden of showing that counsel made error s so serious that he o r she was not functioning as counsel as guaranteed

under the Sixth Amendment and that the deficient representation prejudiced the defe ndant re sultin g in a failure to produce a re liable result. See Strickland , 466 U.S. at 687 ; Burns , 6 S.W.3d at 461; Hicks , 983 S.W.2d at 245. To satisf y th e second prong, the defe

ndant must show a reaso nable

probability that, but for counsel’s unr easonable error, the fact finde r would have had reasonable doubt regarding the defendant’s gui lt. See Strickland , 466 U.S. a t 694-95. T

his
reasona ble probabil

ity m ust be “su fficien

t to undermine confidence in the outcome.” Id. at 694; see also Harris v . State , 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State , 13 S.W.3d 742, 750 (Tenn. Crim. App. 1999).

When reviewing trial counsel’s actions, this Court should not use the benefit of hindsig

ht to second- guess trial st

rate gy a nd criticize counsel’s tactics. See Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982); Owens , 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they
we re made in light of all facts and circumstances. See Strickland , 466 U.S. a t 6 90; Hicks , 98 3 S.W.2d at 246.

This two-par

t standar d of meas uring ineffec tive assis tance of counsel a lso applie s to claims arising out of the plea process. See Hill v . Lockhart , 474 U.S. 52, 57 (1985). The prejudice requirement

is modified s o that the

defenda nt “must sho w that the

re is a reasona ble proba bility that, butfor counsel’s errors, he would not have pleaded g uilty and would have insisted on going to trial.” Id. at 59; see also Hicks , 983 S.W.2d at 246.-4-

The evidence in the record before us does not pr eponder ate ag ainst the t

rial cou rt’s find ings. Moreover, we are

convince d upon our

review o f the re cord tha t the Def endant h as failed to demonstr ate that her

attorne y w as in any

way ineffe ctive, a

nd has fur ther fa iled to demonstrate that her plea was not kn owing or

voluntar y. A ccordin gly , we aff

irm the jud

gment of the trial court.

___________________________________ DAVID H. WEL

LES, JUDGE