IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 18, 2013

QUINCY MOUTRY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 99082 Mary Beth Leibowitz, Judge

No. E2013-01313-CCA-R3-PC-FILED-JANUARY 28, 2014

Petitioner pleaded guilty to manufacturing less than .5 grams of a controlled substance and

received a sentence of seven years. Petitioner filed an unsuccessful petition for postconviction relief. On appeal, petitioner contends that he received ineffective assistance of

counsel prior to his guilty plea hearing and that his guilty plea was not knowing and

voluntary. Following our review, we affirm the judgment of the post-conviction court.

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

ROGER A. PAGE,J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and

NORMA MCGEE OGLE, J., joined.

Jonathan S. Wood, Knoxville, Tennessee, for the appellant, Quincy Moutry.

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

Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant

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

OPINION

I. Facts

A. Guilty Plea Hearing

While neither the indictments nor the judgments are included in the record, we glean

that appellant was indicted for manufacturing a controlled substance within 1000 feet of a

child care agency or recreation center, possession of cocaine with intent to sell, and simple

possession of cocaine. Pursuant to a plea agreement, on October 26, 2011, petitioner pleaded

guilty to the lesser-included charge of manufacturing less than .5 grams of cocaine, a Class
C felony, and the State dismissed the remaining two counts. The plea agreement also

provided that petitioner would receive a seven-year sentence, to be served at one hundred

percent release eligibility and concurrently with a twenty-seven-year sentence he received

in an unrelated carjacking case.

At the guilty plea submission hearing, the State presented the following factual basis

for the guilty plea:

[O]fficers with the Knoxville Police Department . . . conducted a number of

undercover buys from 1315 Alliance Avenue, Apartment 106. Upon further

investigation, it was determined that these buys were made from [petitioner]

and that he lived in this apartment with Latasha Bell.

On this particular day, officers with the Knoxville Police Department

had a search warrant for this apartment that [petitioner] -- he was stopped in

a vehicle leaving from the apartment. They executed the search warrant of the

apartment. Inside of the apartment, they found items used to make crack

cocaine, to package crack cocaine, baggies, razor blades, some cocaine

residue, some marijuana seeds, some scales, ID belonging to [petitioner], as

well as letters and clothing in the bedroom that he shared with Ms. Bell.

Further proof would be that all these events did take place in Knox

County[] [and] that when [petitioner] was arrested, he [had] $215 in cash on

him. All this was consistent with the manufacturing and sale of cocaine.

Petitioner did not object to the State’s recitation of the facts. Petitioner stated that he

was thirty-four years old and had completed the twelfth grade. He agreed that he understood

the offense with which he was charged, the range of punishment he might receive, and the

rights he would waive by pleading guilty. He further agreed that he understood his sentence

and that his conviction could be used in a subsequent prosecution to enhance his sentence.

He agreed that he had not been coerced and stated, “I’m doing it on my own.”

Following the guilty plea hearing, petitioner filed a pro se motion to withdraw his

guilty plea. However, the trial court determined that the motion was not timely.

B. Post-Conviction Proceedings

Petitioner filed a petition for post-conviction relief, and the post-conviction court

appointed counsel, who filed an amended petition. The court held an evidentiary hearing at

which petitioner and his trial counsel testified.

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Petitioner testified that trial counsel represented him in another case that involved

carjacking, robbery, and weapons charges at the same time that he represented petitioner in

this drug case. Petitioner went to trial on the carjacking case and was subsequently found

guilty and sentenced to twenty-seven years. Petitioner was aware of the drug charges, but

trial counsel never discussed the drug case with him. He said that he did not receive a copy

of the evidence in the drug case until October 26, 2011, which was intended to be his trial

date for the drug case. Petitioner explained that trial counsel gave him the evidence and

presented the State’s plea offer prior to court and that he did not have an opportunity to

review the evidence before his guilty plea hearing. Petitioner testified that after his guilty

plea hearing, he reviewed the evidence and determined that, in his opinion, the evidence did

not match the offense to which he pleaded guilty. He said he wrote trial counsel a letter

asking that trial counsel enter a motion to withdraw the guilty plea. Petitioner said he also

called trial counsel but was not able to reach him. Petitioner testified that he was never able

to contact trial counsel and that he ultimately filed a pro se motion to withdraw the guilty

plea. The trial court, however, determined that the motion was filed after the thirty-day

limitation.

Petitioner further testified that he met with trial counsel at the jail on October 25,

2011, but that they primarily discussed the motion for new trial in the carjacking case, which

was set to be heard the day after petitioner’s trial in the drug case. Petitioner said that the

only discussion he and trial counsel had regarding the drug case was when trial counsel

presented a plea offer from the State for a two-year sentence. Petitioner also stated that he

filed a motion with the trial court requesting new counsel but that the trial court denied his

request.

On cross-examination, petitioner testified that he had pleaded guilty to second degree

murder and attempted aggravated robbery in 1999. He agreed that the trial court informed

him at that time that those convictions could be used in a subsequent proceeding to enhance

his punishment. Petitioner further agreed that on June 27, 2011, he had been sentenced as

a Range II offender in the carjacking case, but petitioner insisted that he did not know that

he would be sentenced as a Range II offender in the drug case. Petitioner testified that he

attempted to have trial counsel object to the State’s presentation of the factual basis for the

plea but that trial counsel ignored him. He said that he was aware that his girlfriend and codefendant, Latasha Bell, had been prepared to testify against him at trial. Petitioner testified

that if he had known what was in the discovery materials, he would not have pleaded guilty.

However, he acknowledged that he was charged with manufacturing less than 0.5 grams of

a controlled substance and that the laboratory report indicated that 0.2 grams of cocaine was

found in the apartment. Petitioner agreed that 0.2 grams is less than 0.5 grams. Petitioner

further agreed that he answered “yes” each time the trial court asked him if he understood

the guilty plea proceedings. Petitioner testified that he “expressed [his] displeasure” with his

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trial counsel to the trial court in the weeks prior to his guilty plea hearing and that he had

complained about trial counsel to the Board of Professional Responsibility. He agreed that

he did not express any displeasure, however, during the guilty plea hearing.

On re-direct examination, petitioner testified that he understood the guilty plea

proceedings, having been through the process before, but that he did not understand the

nature of the case against him. Following his testimony, he rested his case.

The State called trial counsel to testify. Trial counsel said that during the sentencing

for petitioner’s carjacking conviction, the trial court found him to be a dangerous offender.

As a result, trial counsel believed that the trial court would have imposed consecutive

sentencing in petitioner’s drug case had petitioner been found guilty after a trial. Trial

counsel testified that petitioner met with him at his office three times while petitioner was

on bond. He further testified that he reviewed the evidence in both cases with petitioner

during those meetings. In particular, trial counsel recalled showing pictures of items found

in the apartment to petitioner because petitioner insisted that he did not live at the apartment.

Those items included petitioner’s identification, clothing, a traffic citation issued to

petitioner, and a photograph of petitioner with a group of men. Trial counsel testified that

an issue in the drug case was whether petitioner’s girlfriend would testify against him and

that she had participated in petitioner’s defense before she became a witness for the State.

Trial counsel further testified that as far as he knew, petitioner had been aware of the facts

of the case prior to pleading guilty. Trial counsel said that he did not recall receiving a letter

from petitioner about withdrawing his guilty plea. On cross-examination, trial counsel

testified that he advised petitioner that it was in his best interest to accept the plea agreement.

In its written order denying post-conviction relief, the post-conviction court

determined that “[t]he proof [was] overwhelming that [petitioner] was aware of the evidence

and prospective testimony prior to [the] plea.” The post-conviction court found that

petitioner did not prove that he would have gone to trial but for any alleged errors of trial

counsel.

II. Analysis

A. Ineffective Assistance of Counsel

On appeal, petitioner contends that he received ineffective assistance of counsel and

that he entered his guilty plea involuntarily and unknowingly as a result of the ineffective

assistance. In particular, petitioner alleges that he never had the opportunity to review the

evidence against him because trial counsel never discussed the pending drug case with him

and did not give him the discovery materials until just before the guilty plea hearing. The

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State responds that petitioner failed to prove his factual allegations by clear and convincing

evidence. We agree with the State.

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that

his or her “conviction or sentence is void or voidable because of the abridgement of any right

guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.

Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her

factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).

“‘Evidence is clear and convincing when there is no serious or substantial doubt about the

correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,

562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

Appellate courts do not reassess the trial court’s determination of the credibility of

witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245

S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted

to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on

appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d

160, 169 (Tenn. Crim. App. 2011) (citing 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)). However, conclusions

of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d

450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of

petitioner’s ineffective assistance of counsel claims is de novo with no presumption of

correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

The Sixth Amendment to the United States Constitution, made applicable to the states

through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution

require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,

145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930

(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,

he must demonstrate both that his lawyer’s performance was deficient and that the deficiency

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,

226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that

either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,

126 S.W.3d 879, 886 (Tenn. 2004).

To prove that counsel’s performance was deficient, petitioner must establish that his

attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing

professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,

116 (Tenn. 2006)). As our supreme court held:

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“[T]he assistance of counsel required under the Sixth Amendment is counsel

reasonably likely to render and rendering reasonably effective assistance. It is

a violation of this standard for defense counsel to deprive a criminal defendant

of a substantial defense by his own ineffectiveness or incompetence. . . .

Defense counsel must perform at least as well as a lawyer with ordinary

training and skill in the criminal law and must conscientiously protect his

client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s

performance, this court “must make every effort to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct

from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.

2006) (citing Strickland, 466 U.S. at 689).

To prove that petitioner suffered prejudice as a result of counsel’s deficient

performance, he “must establish a reasonable probability that but for counsel’s errors the

result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing

Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,

petitioner must establish that his attorney’s deficient performance was ofsuch magnitude that

he was deprived of a fair trial and that the reliability of the outcome was called into question.

Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)). When

a petitioner’s claims that ineffective assistance of counsel contributed to his entering a guilty

plea that was not voluntary, the Supreme Court has required a petitioner to demonstrate a

reasonable probability that but for counsel’s ineffectiveness, he would not have entered the

guilty plea and would have insisted on standing trial. Hill v. Lockhart, 474 U.S. 52, 59

(1985). Accordingly, in this case, petitioner must demonstrate that trial counsel’s

representation was deficient and that but for counsel’s mistakes, he would not have entered

the guilty plea. Veldora L. Trout v. State, No. W2000-00857-CCA-R3-PC, 2001 WL

359238, at *2 (Tenn. Crim. App. Apr. 9, 2001).

In this case, the trial court found that the proof was overwhelming that petitioner was

aware of the facts of his case prior to pleading guilty, and the record does not preponderate

against this finding. Trial counsel testified that he met with petitionerseveral times to review

the discovery in both his carjacking case and his drug case. He specifically recalled showing

photographs to petitioner that were related to the drug case and discussing whether

petitioner’s girlfriend would testify against him. Moreover, petitioner never indicated during

his guilty plea hearing that he contested the State’s recitation of the facts. The trial court

found that petitioner had not proven his factual allegations by clear and convincing evidence.

We will not disturb the trial court’s factual finding on appeal. Therefore, we conclude that

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appellant has not shown that trial counsel’s representation was deficient, and he is without

relief as to this issue.

B. Guilty Plea

Appellant argues that he entered his guilty plea unknowingly and involuntarily

because he was unaware of the nature of the case against him due to the ineffectiveness of

his counsel. The State responds that the totality of the circumstances indicate that appellant’s

decision to plead guilty was knowing, voluntary, and intelligent. We agree with the State.

A guilty plea must be entered knowingly, voluntarily, and intelligently. Lane, 316

S.W.3d at 562 (citations omitted); see North Carolina v. Alford, 400 U.S. 25, 31 (1970);

Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). If a plea is not knowingly, voluntarily, and

intelligently entered, the guilty plea is void because appellant has been denied due process.

Lane, 316 S.W.3d at 562 (citing Boykin, 395 U.S. at 243 n.5; State v. Mellon, 118 S.W.3d

340, 345 (Tenn. 2003)). To make such a determination, the court must examine “whether

the plea represents a voluntary and intelligent choice among the alternative courses of action

open to the defendant.” Id. (quoting Grindstaff v. State, 297 S.W.3d 208, 218 (Tenn. 2009).

Courts should consider the following factors when ascertaining the validity of a guilty plea:

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

proceedings; (3) the competency of counsel and the defendant’s opportunity to confer with

counsel about alternatives; (4) the advice of counsel and the court about the charges 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. (quoting Howell v. State, 185 S.W.3d 319,

330-31 (Tenn. 2006)). “[A] plea is not voluntary if it results from ‘[i]gnorance,

incomprehension, coercion, terror, inducements, [or] subtle or blatant threats.’” Id. at 563

(quoting Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993)). Thus, the transcript of

the plea colloquy must affirmatively show that a defendant’s decision to plead guilty was

both voluntary and knowledgeable. Id. (quoting State v. Mackey, 553 S.W.2d 337, 340

(Tenn. 1977). The trial court must ensure that the defendant entered a knowing and

intelligent plea by thoroughly “‘canvass[ing] the matter with the accused to make sure that

he has a full understanding of what the plea connotes and of its consequences.’” Id. (quoting

Blankenship, 858 S.W.2d at 904).

In this case, we have already concluded that appellant received constitutionally

effective counsel; therefore, his argument that he was unaware of the nature of his case due

to his counsel’s ineffectiveness is without merit. Moreover, petitioner was apprised of the

facts of his case by the State prior to entering his plea, and the trial court questioned him to

ensure that he understood the proceedings. Petitioner affirmed several times during the plea

colloquy that he understood his rights, his plea, and his sentence, and that he was not

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coerced. “A Petitioner’s testimony at a guilty plea hearing ‘constitute[s] a formidable

barrier’ in any subsequent collateral proceeding because ‘[s]olemn declarationsin open court

carry a strong presumption of verity.’” Bruce S. Rishton v. State, No. E2010-02050-CCAR3-PC, 2012 WL 1825704, at *17 (Tenn. Crim. App. May 21, 2012) (quoting Blackledge

v. Allison, 431 U.S. 63, 74 (1977)). In addition, petitioner testified at the post-conviction

hearing that he understood the guilty plea proceedings having been through them before. The

record also indicates that trial counsel was concerned that the trial court would have imposed

consecutive sentencing had petitioner been found guilty of the drug charges at trial and that

he advised petitioner that the guilty plea was in his best interests. We conclude that

petitioner entered his guilty plea knowingly, voluntarily, and intelligently. He is not entitled

to relief on this issue.

CONCLUSION

Based on our review of the record, the parties’ briefs, and the applicable law, we

affirm the judgment of the post-conviction court.

_________________________________

ROGER A. PAGE, JUDGE

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