IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 15, 2014

FELIX TAMAYO v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2009-B-1946 Cheryl Blackburn, Judge

No. M2013-01273-CCA-R3-PC - Filed February 19, 2014

The Petitioner, Felix Tamayo, pled guilty to five counts of aggravated robbery and agreed

to allow the trial court to determine the length and manner of service of his sentence. After

a sentencing hearing, the trial court imposed consecutive twelve-year sentences for a total

effective sentence of sixty years. On appeal, this Court affirmed the Petitioner’s sentence.

State v. Felix Tamayo, No. M2010-00800-CCA-R3-CD, 2011 WL 1876315, at *1 (Tenn.

Crim. App., at Nashville, May. 16, 2011), perm. app. denied (Tenn. Sept. 21, 2011). The

Petitioner timely filed a petition seeking post-conviction relief on the basisthat his guilty plea

was not knowingly and voluntarily entered, which the post-conviction court denied after a

hearing. The Petitioner appealsthe post-conviction court’s denial, maintaining that his guilty

pleas were not knowingly and voluntarily entered because he was not advised that he could

receive consecutive sentencing. After a thorough review of the record, the briefs, and

relevant authorities, we affirm the post-conviction court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERTW.WEDEMEYER, J., delivered the opinion of the Court, in which JOSEPHM.TIPTON,

P.J., and THOMAS T. WOODALL, J., joined.

Chad Davidson, Nashville, Tennessee, for the Appellant, Felix Tamayo.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;

Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

I. Facts
A Davidson County grand jury indicted the Petitioner for seven counts of aggravated

robbery. The Petitioner pled guilty to five counts of aggravated robbery.

A. Guilty Plea Submission Hearing

At the guilty plea submission hearing, the trial court reviewed the Petitioner’s charges

and the range of sentences that the Petitioner might receive at the subsequent sentencing

hearing. The Petitioner affirmed his understanding of the charges and the range of sentences.

The trial court asked if the Petitioner understood that he faced the possibility of consecutive

sentencing, and the Petitioner responded affirmatively. The trial court reviewed the

Petitioner’s rights and the waiver of those rights as it related to the entry of a guilty plea. The

Petitioner once again affirmed his understanding. The Petitioner denied that he was

influenced by any medication and denied that he was experiencing any “difficulty”

understanding his decision to plead guilty to the offenses. The Petitioner testified that he had

reviewed the plea petition with his attorney and that his attorney had satisfactorily answered

any questions. The State presented the following factual basis for the trial court’s acceptance

of the guilty plea:

[O]n February the 20 of 2009 [there were] two separate incidents . . . . [T]he

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first incident in time occurred where Mr. Adam Willis and Ms. Mildred

Whittendem (phonetic) were in a vehicle near a bowling alley. And the

[Petitioner], as it turned out to be, approached and robbed them each of

property with what at least to them appeared to be a handgun and fled in a

vehicle. That was shortly after midnight on the 20 .

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Not too long after that the next incident involved Mr. Terry Coat

(phonetic), Wynona Hilton (phonetic), and Nora Canfield (phonetic). This

occurred, I believe, as they were leaving a club on Nolensville Road. Mr. Coat

was walking Ms. Hilton and Ms. Canfield to their car. They had gotten seated

in the car when a person came up behind Mr. Coat, struck him from behind,

and knocked him to the ground. It turned out to be the person - - it was [the

Petitioner], who had a gun or something that looked like a gun. They robbed

Mr. Coat of property. They robbed Ms. Hilton of property and Ms. Canfield.

In addition Mr. Coat was struck several times with this gun. [The Petitioner’s]

accomplice had some type of rod or long item that he was hitting Mr. Coat in

the back of the head with. He also broke out the windshield of the vehicle that

belongs to one of these ladies and hit one of the ladies in the leg . . . when she

didn’t produce her handbag quickly enough. But in any event all five of these

people were robbed that night.

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And eventually [the Petitioner] and this group of people came to be

suspects. [The Petitioner] was interviewed by detectives, and he admitted to

these two incidents during the interview and said he was the person with the

gun. He didn’t say it was a real gun. But he did admit he was the person that

had a fake gun and robbed these people. And as I said, this was a recorded

interview. And that would be the bulk - - in fact, that would be all of the

proof, that it was this [Petitioner].

The Petitioner entered his plea of guilt as to each of the five charges. The trial court

accepted the plea and determined that the Petitioner’s pleas were “voluntarily and factually

based.”

B. Post-Conviction Hearing

At the post-conviction hearing, the Petitioner testified that he met with his attorney

(“Counsel”) four or five times over thirteen or fourteen months. The Petitioner stated that

he received various offers from the State. Initially he wished to proceed to trial, but later he

“didn’t want to take the trial.” The Petitioner said that he believed that the potential amount

of time he stood to serve if he pled “open” to the five counts was twelve years. He said he

based this on the State’s offer for the Petitioner to plead to five of the seven counts with a

sentencing range of eight to twelve years. He explained that this “made sense to [him], so

[he] ran with it.”

The Petitioner testified that it was not until the day of the sentencing hearing that he

realized he could potentially serve up to sixty years. He said that he told Counsel “I did not

plead to this” and that he wanted to “take [his] plea back.” In response, Counsel told the

Petitioner that, “It was too late because [he] signed the paperwork.”

The Petitioner testified that he understood that each of the counts was a “separate

case.” He said that Counsel discussed with him possible defenses for each of the robberies.

He also recalled that Counsel argued to suppress the Petitioner’s statements to police but that

the motion was denied.

The Petitioner testified that he had pled guilty to theft of property before and received

a probation sentence. The Petitioner said that he did not have any difficulty understanding

his previous plea but that this was “the first really pretty serious case.” The Petitioner stated

that he was currently twenty-two years old.

On cross-examination, the Petitioner stated that he had completed the eighth grade.

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When asked why at the guilty plea submission hearing he told the trial court he had

completed the tenth grade, the Petitioner said, “I don’t remember that.” The Petitioner

agreed that the State’s previous offers had also been for a set number of years in the range

of twenty to twenty-two years. Despite the State’s consistent offers for sentences around

twenty-years, the Petitioner stated that he believed the final offer was for a maximum of

twelve years.

The Petitioner testified that he understood that, because the trial court had denied his

motion to suppress, his statement admitting to each of the robberies would have been

introduced to the jury. The Petitioner stated that his defense at trial would have been that the

police coerced him into admitting to the crimes.

The Petitioner testified that, even though the trial court discussed consecutive

sentencing with him during the plea submission hearing, he did not understand “what

consecutive concurrent was.” The Petitioner stated that he did not remember the trial court

telling him at the plea submission hearing that his effective sentence might be eight years or

it might be sixty years. The Petitioner stated that he asked Counsel instead of the trial court

about why the trial court said he could receive sixty years and that Counsel told him “twelve

years.”

The Petitioner testified that he lied when he told the trial court at the plea submission

hearing that he understood its explanation of consecutive sentencing. He said that he did so

because he wanted to “hurry up and get out of here.”

Gonzalo Villegas, the Petitioner’s brother, testified that he was present while Counsel

reviewed the State’s offer with the Petitioner. Mr. Villegas said that he never heard Counsel

tell the Petitioner he could potentially receive an effective sixty-year sentence. Mr. Villegas

said that he encouraged the Petitioner to take the State’s offer of eight to twelve years. Mr.

Villegas said that he told the Petitioner that, if he did it, he should “pay the time,” but the

eight to twelve-year offer was one that was not so excessive as to “throw [his] life away.”

Mr. Villegas said that he and the Petitioner discussed the State’s offer before the Petitioner

went into the courtroom and pled. Mr. Villegas maintained that neither of them realized the

State’s offer allowed for a sixty-year sentence.

On cross-examination, Mr. Villegas testified that he was present when Counsel

conveyed the offer, but he did not hear Counsel review the Petitioner’s rights with him or

observe the Petitioner sign the plea agreement. Mr. Villegas agreed that he did not know

what discussions took place between Counsel and the Petitioner after he left the room.

Mr. Villegas testified that he sat through the sentencing hearing and “everything was

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not right.” He said he observed the Petitioner and could tell that he was “nervous” and “just

wanted to get rid of it.” Mr. Villegas opined that the Petitioner had his mind set on twelve

years and did not “know what he got involved in.” Mr. Villegas said he watched the

Petitioner agreeing, but he did not believe he was in the position to yell to the Petitioner

across the room “it’s not right.”

Counsel testified that he had been licensed as an attorney since 2004 and

approximately eighty or ninety percent of his practice was criminal defense work. Counsel

recalled that the State made two alternative offers to the Petitioner: (1) plead to between three

and five of the counts for a twenty-three-year sentence; or (2) plead to a number of the counts

with an eight to thirty year sentencing range. Counsel conveyed the offers to the Petitioner

and negotiated with the State on these offers. The State amended the offer to include a guilty

plea to all counts of the indictment for a twenty-year sentence. Counsel said that the

Petitioner rejected all of the offers, and the case was set for trial. Counsel agreed that

discussions about any of those offers would have required him to discuss the possibility of

consecutive sentencing with the Petitioner. Counsel said that he did not have a “specific

recollection of that conversation” but was “certain” he would have explained consecutive

sentencing to the Petitioner.

Counsel testified that, after losing the suppression hearing, the Petitioner agreed to

accept the State’s offer. Counsel said that he reviewed the plea petition with the Petitioner.

He said that he talked with the Petitioner about the fact the plea was “open” with no

agreement as to the sentence. Counsel said that he anticipated that the trial court would

impose a twenty to twenty-five-year sentence. Counsel said that he also expected the trial

court to impose consecutive sentencing.

Counsel testified that he did not recall the Petitioner ever stating he wished to

withdraw his plea or that he believed his sentence would be twelve years. Counsel confirmed

that the Petitioner’s brother was present during some of his discussions with the Petitioner.

Counsel said that he recalled that Mr. Villegas was “fairly adamant” that his brother should

not take the plea and advised the Petitioner that he was “throwing his life away.”

On cross-examination, Counsel estimated that he met with the Petitioner between ten

and fifteen times. Counsel said that in light of the Petitioner’s full admission to the charged

offenses, he “didn’t have a very good defense.” Counsel agreed that he advised the

Petitioner to take the offer because he “didn’t see any real hope that we would be successful

at trial.”

After hearing the evidence, the trial court took the issue under advisement and later

issued an order denying the Petitioner relief. It is from this judgment that the Petitioner now

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appeals.

II. Analysis

On appeal, the Petitioner contends that because he received the ineffective assistance

of counsel his guilty plea was not knowingly and voluntarily entered. The State responds that

the Petitioner has failed to prove that Counsel was ineffective or that his guilty pleas were

involuntary. We agree with the State.

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following

two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel’s performance was deficient.

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

functioning as the “counsel” guaranteed the [petitioner] by the Sixth

Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose

result is reliable. Unless a [petitioner] makes both showings, it cannot be said

that the conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 S.W.2d

417, 419 (Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must determine

whether the advice given or services rendered by the attorney are within the range of

competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail

on a claim of ineffective assistance of counsel, “a petitioner must show that counsel’s

representation fell below an objective standard of reasonableness.” House v. State, 44

S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

When evaluating an ineffective assistance of counsel claim, the reviewing court

should judge the attorney’s performance within the context of the case as a whole, taking into

account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753

S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the “distorting

effects of hindsight” and “judge the reasonableness of counsel’s challenged conduct on the

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facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S.

at 689-90. In doing so, the reviewing court must be highly deferential and “should indulge

a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a defendant in a

criminal case is not entitled to perfect representation, only constitutionally adequate

representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other

words, “in considering claims of ineffective assistance of counsel, ‘we address not what is

prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483

U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)).

Counsel should not be deemed to have been ineffective merely because a different procedure

or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276, 279-

80 (Tenn. Crim. App. 1980). “The fact that a particular strategy or tactic failed or hurt the

defense, does not,standing alone, establish unreasonable representation. However, deference

to matters of strategy and tactical choices applies only if the choices are informed ones based

upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

If the petitioner shows that counsel’s representation fell below a reasonable standard,

then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State,

90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875

S.W.2d 662, 665 (Tenn. 1994). In the context of a guilty plea, as in this case, the effective

assistance of counsel is relevant only to the extent that it affects the voluntariness of the plea.

Therefore, to satisfy the second prong of Strickland, the petitioner must show that “there is

a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985) (footnote

omitted); see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

In the its written order, the trial court provided the following reasoning in support of

its denial of relief:

[T]he guilty plea transcript belies Petitioner’s claims. During the plea colloquy

the Court explained to Petitioner his potential exposure and the possibility of

concurrent or consecutive sentencing, which would result [in] a total effective

sentence of as low as 8 years or up to 60 years. Petitioner affirmed that he

understood. Petitioner took a risk by electing to have the sentencing hearing

in lieu of one of the State’s offers setting the time to serve. It appears that

Petitioner is experiencing “buyer’s remorse.”

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. . . .

The Court notes that during [the] hearing Petitioner was actively

engaged in the plea colloquy; Petitioner did not merely respond “yes” or “no”

to all of the Court’s questioning. For example, when there was an issue as to

how many charges were involved in the plea, Petitioner confirmed that there

were only five remaining charges. Then, when asked if he was satisfied with

counsel, Petitioner advised the Court he felt like he needed more time but

ultimately agreed that counsel had done everything requested. Further, after

the State provided a recitation of the underlying facts, before indicating the

facts were generally true, Petitioner took issue with the charge involving Terry

Coat explaining his involvement in the robbery. The Court then explained the

concept of criminal responsibility [and] Petitioner indicated he understood.

. . . .

A review of the record including the guilty plea hearing affirmatively

demonstrates that [P]etitioner’s guilty plea was made with an awareness of the

consequences, and, as such, the guilty plea was voluntarily and knowingly

entered.

. . . .

Petitioner has failed to meet his burden of proving by clear and convincing

evidence that his trial counsel was ineffective or that he was prejudiced by any

alleged deficiency.

(Citations omitted).

We agree with the post-conviction court that the Petitioner has failed to prove by clear

and convincing evidence that his plea was not made knowingly and voluntarily. See T.C.A.

§ 40-30-110(f) (2006); Momon, 18 S.W.3d at 156. Counsel’s testimony and the guilty plea

hearing transcript indicate that the Petitioner was advised and understood the potential range

of sentence. The Petitioner has not shown that “but for” Counsel’s alleged errors, he would

have insisted on proceeding to trial. See Walton, 966 S.W.2d 54, 55. Therefore, the

Petitioner is not entitled to relief on this issue.

II. Conclusion

After a thorough review of the record and relevant authorities, we conclude that the

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post-conviction court properly denied post-conviction relief. Accordingly, we affirm the

judgment of the post-conviction court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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