IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

December 11, 2013 Session

MYRON JAY WILSON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Rutherford County

No. F-68809 David M. Bragg, Judge

No. M2013-01284-CCA-R3-PC - Filed April 7, 2014

The petitioner, Myron Jay Wilson, appealsthe denial of his petition for post-conviction relief,

arguing that the post-conviction court erred in finding that he received effective assistance

of trial counsel and that his guilty pleas were knowing and voluntary. Following our review,

we affirm the denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the Court, in which JERRY L. SMITH and

CAMILLE R. MCMULLEN, JJ., joined.

Paul Bruno (on appeal and at hearing) and Patrick Newsom (at hearing), Nashville,

Tennessee, for the appellant, Myron Jay Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant

Attorney General; William C. Whitesell, Jr., District Attorney General; and Laural A.

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

OPINION

FACTS

On January 4, 2012, the Rutherford County Grand Jury returned a two-count

indictment charging the petitioner with aggravated sexual exploitation of a minor involving

more than twenty-five images and sexual exploitation of a minor involving more than 100

images, both Class B felonies. On February 10, 2012, the petitioner pled guilty to two counts

of attempted sexual exploitation of a minor, a Class C felony, in exchange for a Range I

sentence of six years for each offense, to be served consecutively to each other. Pursuant to

the terms of his negotiated plea agreement, the petitioner was ordered to serve thirty days in
confinement with the remainder of his time on supervised probation. The State provided the

following factual basis for the plea:

The facts of this case are that a referral was received by the

Murfreesboro Police Department regarding [the petitioner] being in possession

of child pornography on his computer. Upon responding to the residence, [the

petitioner] signed a consent form for the examination of several items in his

apartment. He was subsequently interviewed and indicated that he may have

had some . . . child pornography several years ago prior to this date, when he

was in college.

TBI examined all of the items, and they located 2,292 images and three

videos that appeared to be child pornography. And then on . . . further findings

were over 4,000 images and three videos.

. . . .

On Count No. 1, he is charged with aggravated sexual exploitation of

a minor. He is pleading guilty to attempted sexual exploitation of a minor,

over 100 images, would be a – this is a C felony, and the offense date on this

would be from 2005 through 2007. He would be sentenced as a standard, 30

percent offender, to six years in TDOC, and he would have six years

suspended.

. . . .

On Count No. 2 he is also charged with sexual exploitation of a minor.

He’s pleading guilty to attempted sexual exploitation of a minor, over 100

images, and this would be for the offense date of 2008 through 2011.

On October 18, 2012, the petitioner filed a petition for post-conviction relief in which

he raised claims of ineffective assistance of counsel and unknowing and involuntary guilty

pleas. Specifically, he alleged that he received ineffective assistance of counsel, thereby

rendering his guilty pleas unknowing and involuntary, because counsel failed to hire a

computer expert to review the hard drives involved in the case, failed to determine the dates

of the alleged offenses, and misadvised the petitioner on the possible punishment he faced

if convicted of the offenses.

At the evidentiary hearing, Jeffrey Tuley, an employee of NetEvidence, a computer

forensic investigation company, testified that he examined the two hard drives associated

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with the case and found that they contained approximately 40,000 general pornography

images and 2,300 images of child pornography. He said he determined that the child

pornography was placed on the hard drives in the year 2010. He found no evidence that any

child pornography had been placed on the drives in any other year. He later reviewed an

additional hard drive associated with the case, “[t]he actual system hard drive or the O.S.

drive, which was the primary drive in the computer that the other drive came out of,” but he

found no child pornography on that drive. He said he reviewed the internet browsing history,

user names, password logins, email addresses, and email activity and found no evidence that

directly linked the child pornography on the hard drives to the petitioner or any other

individual.

On cross-examination, Tuley testified that he checked a sample of approximately one

dozen child pornography images and found that they were last accessed in 2010. He agreed

that the images could have been there two or three years before and just been last accessed

in the year 2010. On redirect examination, he testified that the “created written dates” of the

images suggested that they were placed on the hard drives between June and November of

2010 and that he found nothing to indicate that the images were on the computer prior to

those dates. On recross-examination, he agreed that it was possible that the files existed on

another hard drive at an earlier time and were transferred to the current hard drive in 2010,

testifying that the “created written date” would reflect the date on which the data was

transferred. He did not, however, find any evidence to suggest that such a scenario took

place.

The petitioner testified that he was arrested on January 5, 2012, and forced to remain

in jail because he was unable to make the $200,000 bond that had been set. Prior to the

instant case, he had never before been convicted of any offense. Counsel met with him twice

at the jail and once in the courthouse on the day he entered his pleas. Counsel went over the

elements of the offenses but never reviewed discovery with him. The petitioner said he

asked counsel about hiring a computer expert to examine the hard drives, but counsel merely

responded that he was “compiling as much information as he could” and would get back to

him. The petitioner stated that counsel advised him he was facing a maximum sentence of

“80 or so years” if convicted of the charged offenses at trial.

The petitioner testified that he told counsel he knew there were pornographic images

on his computer but was unaware of any child pornography. During 2010, he shared an

apartment with as many as four other individuals, including Ken Murkett, who was on the

lease with him, Michael Christian, Harry Kirkland, Carlton Ray, and a “set of . . . French

students from Korea.” During that time, his computer was located in a central area of the

apartment, was not password protected, and served “as a social server” on which the

apartment residents could access movies, television shows, and music. Anyone could,

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therefore, copy or remove content from the hard drives.

The petitioner testified that he entered his guilty pleas because counsel told him to do

so. He also said that his inability to make bond influenced his decision to plead guilty.

According to the petitioner, he told counsel about his roommates’ access to his computer and

asked if he had talked to any of them, but counsel never replied to his question. He stated

that he never noticed any date of the offenses listed on the indictment and that counsel never

told him the date the offenses were alleged to have occurred. Had he known that

pornographic content was alleged to have been created in 2010, he would not have pled

guilty because he would have known that other people had access to his computer during that

time. Counsel, however,suggested that the State’s evidence against him was overwhelming,

telling him that there were five hard drives with “porn just slewed all the way across them”

and that his “hands were tied” and the petitioner had no other alternative than to plead guilty.

The petitioner also claimed that trial counsel did not inform him of any of the specific

consequences of his guilty pleas, including the details surrounding his placement on the sex

offender registry. He said he did not learn those details of his sentences until after he had

pled guilty and his probation officer reviewed with him the conditions of his probation. He

testified that he was unaware that count one had an offense date of 2005 to 2007 and that he

knew of no evidence that would prove that offense date.

On cross-examination, the petitioner acknowledged that he signed the plea agreement

and the judgment forms, on which was listed the requirement that he be placed on the sexual

offender registry. He further acknowledged that the dates of the offenses were read during

the plea colloquy and that the trial court informed him of the conditions of his guilty pleas.

He claimed, however, that trial counsel told him to “stick to the script” during his plea

colloquy and not to ask the trial court any questions. He said that trial counsel told him he

could “have an appeal on this matter” despite the fact that the trial court informed him that

he was waiving his right to an appeal by pleading guilty. He stated that he did not recall

having told the police investigator that he and his friends had exchanged pornographic

images, including ones depicting bestiality and sex with children. Finally, he testified that,

despite his earlier evidentiary hearing testimony, he could not recall having ever asked trial

counsel to hire a computer expert or having had any conversation with counsel about an

expert.

Trial counsel, who had been practicing criminal law since 2009, testified that the

petitioner’s mother initially contacted him about representing the petitioner on the case. In

response, he went to the jail and met with the petitioner for about 35 to 45 minutes, where

he reviewed the charges and discussed with the petitioner the elements of the offenses and

possible defenses to the crimes. He then returned to his office, and the petitioner’s parents

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came back in to retain him and to pay his fee. Afterwards, he went back to the jail and held

a more in-depth meeting with the petitioner. During that meeting, the petitioner informed

him that when he was in college between 2000 and 2005 he and his friends engaged in a

game in which they would “download the worst sort of porn” they could find onto each

other’s computers so that when the computer’s owner sat down to turn on his computer,

shocking pornographic images would pop onto the screen. Counsel said that he and the

petitioner discussed subpoenaing the lease from the apartment complex where the petitioner

had lived and attempting to locate the roommates with whom he had shared the apartment.

In addition, he discussed with the petitioner how the State would put on an expert computer

witness in an effort to prove the elements of the offenses and that they should counter with

their own computer expert. Counsel stated that he informed the petitioner that he thought the

State would have a difficult time proving all the elements of the offenses.

Trial counsel testified that during his review of discovery in the district attorney’s

office, the prosecutor offered a plea bargain that involved the petitioner’s pleading guilty to

two counts of attempt with four years at thirty percent, followed by six years on probation

and ten years on the sex offender registry. Trial counsel said he then met with the petitioner

a third time, where he discussed what he had reviewed in discovery and informed him of the

State’s plea offer. Counsel said that the petitioner was not interested in that plea bargain but

wanted him to negotiate a deal that would secure his release from jail and not involve any

additional time.

Trial counsel testified that he repeatedly informed the petitioner that any “time served”

offer, which he referred to as a “sucker’s deal,” would involve a lot of probation. The

petitioner, however, was insistent that he negotiate a deal, so he went back to the prosecutor

and negotiated the deal to which the petitioner eventually pled guilty. Counsel testified that,

throughout the process, he specifically discussed with the petitioner how he would be placed

on the sex offender registry and the onerous conditions that it would entail:

And most importantly – and I didn’t mention this before. But at all

three of these meetings, we talked about the sex offender registry. Any time

that there’s a charge like this, we’re always dealing with the sex offender

registry just because of the – basically how much trouble it is, and how much

trouble you can get in if you don’t keep up with it.

So, what I told him was that if he’s on this – if he takes this, one of the

things that he’s going to be dealing with for a long period of time will be the

sex offender registry. All right. And it can go as much as 10 years after his

probation, and that he would have to try to get off of it on his own.

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I mean, it would include quite a bit of work. And it would include a

provision to keep him from . . . getting on really any computer other than a

work computer. Okay.

And I told him that. He told me that he wanted to take [the] offer.

Trial counsel testified that he read the plea agreement aloud to the petitioner and

discussed with him again what it involved, including his placement on the sex offender

registry. He again referred to it as a “sucker’s deal,” telling the petitioner that it was not the

best deal he could get and basically amounted to a “get out of jail offer.” He also discussed

the fact that the petitioner would most likely not be allowed to be around his girlfriend’s

minor children or any other minor children. The petitioner told him that he understood and

that it was what he wanted to do.

Trial counsel testified that he gave the petitioner twenty minutes to think about it.

When he came back, he went over the agreement with the petitioner again, including the

requirements of probation and the psychosexual evaluation and counseling the petitioner

would have to undergo, telling him that it would be “a pain” and that he would not like it.

The petitioner, however, informed him that he still wanted to accept the plea agreement.

Trial counsel testified that when he first met with the petitioner, he told him that the

way the statute reads, the grand jury “could have stacked these for each image.” He never,

however, told the petitioner that he was facing a potential sentence of eighty years and, after

speaking with the prosecutor, he “made it very clear” to the petitioner that he was facing two

Class B felonies, which carried a range of eight to thirty years for each. He said he did not

prepare any “script” for the petitioner to follow during the plea colloquy and never told him

that he could not ask questions of the trial court.

On cross-examination, trial counsel acknowledged that the petitioner had no prior

convictions and would not, therefore, have received a thirty-year sentence for a Class B

felony. He explained that his reference to thirty years was to the maximum sentence in the

range for a Class B felony. He said that, after checking the petitioner’s record, he probably

informed him that he was facing a potential maximum sentence of eight years at thirty

percent on each count. He could not, however, remember exactly what he told him about his

potential maximum exposure although he was confident that he never told the petitioner that

he was facing either eighty or sixty years in prison.

On April 30, 2013, the post-conviction court entered an order finding that the

petitioner had failed to meet his burden of showing that counsel was deficient in his

representation or that his guilty pleas were unknowing and involuntary. Accordingly, the

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court denied the petition for post-conviction relief. This appeal followed.

ANALYSIS

Post-conviction relief “shall be granted when the conviction or sentence is void or

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

or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2012). The

petitioner bears the burden of proving factual allegations by clear and convincing evidence.

Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the

findings of fact made by the court are conclusive on appeal unless the evidence

preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When

reviewing factual issues, the appellate court will not reweigh the evidence and will instead

defer to the post-conviction court’s findings as to the credibility of witnesses or the weight

of their testimony. Id. However, review of a post-conviction court’s application of the law

to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978

S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents

mixed questions of fact and law, is reviewed de novo, with a presumption of correctness

given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant 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 defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The

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prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability

sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

In the context of a guilty plea, the petitioner must show a reasonable probability that were

it not for the deficiencies in counsel’s representation, he or she would not have pled guilty

but would instead have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59

(1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

Before a guilty plea may be accepted, there must be an affirmative showing in the trial

court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242

(1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a showing that

the defendant was made aware of the significant consequences of the plea. State v. Pettus,

986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340). A plea is not

“voluntary” if it resultsfrom ignorance, misunderstanding, coercion, inducements, or threats.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if

the guilty plea is “knowing” by questioning the defendant to make sure he or she fully

understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858

S.W.2d at 904.

Because the plea must represent a voluntary and intelligent choice among the

alternatives available to the defendant, the trial court may look at a number of circumstantial

factors in making this determination. Blankenship, 858 S.W.2d at 904. These factors

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

criminal proceedings; (3) whether the defendant was represented by competent counsel and

had the opportunity to confer with counsel about alternatives; (4) the advice of counsel and

the court about the charges against the defendant 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. at 904-05.

The petitioner argues on appeal that he would have known that he had a defense to

the crimes and would not therefore have pled guilty were it not for trial counsel’s deficiencies

in failing to hire a computer expert to determine the date the images were placed on his hard

drives, in failing to file for a bill of particulars or otherwise determine the dates the offenses

were alleged to have occurred, and in misadvising him on the maximum potential sentences

he faced if convicted of the indicted offenses at trial. The petitioner further argues that his

guilty pleas were involuntary because he did not understand the full nature and consequences

of his pleas, including the conditions involved in being placed on the sex offender registry.

In denying the petition, the post-conviction court implicitly accredited the testimony

of trial counsel regarding the number of discussions he had with the petitioner and the topics

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they covered, including the need to hire a computer expert if they proceeded to trial, the

range of punishment for the offenses, the requirements of the sex offender registry, the

petitioner’s desire to enter into a plea agreement in order to avoid more incarceration, and

trial counsel’s advice to the petitioner not to accept the State’s plea offer. The court, thus,

found that the petitioner failed to meet his burden of demonstrating that his counsel was

deficient in any way or that any alleged deficiency prejudiced the petitioner’s case.

As for the petitioner’s claim that his pleas were unknowing and involuntary, the postconviction court found, among other things, that the petitioner was able to read and write,

that he was represented by competent counsel and had an opportunity to confer with counsel

prior to entering his pleas, that he was actively listening and responding to the trial court

during the plea colloquy and demonstrated on the record that he fully understood the pleas

and their consequences, and that he entered the pleas against the advice of counsel in order

to gain his release from jail.

The record fully supports the findings and conclusions of the post-conviction court.

We conclude, therefore, that the evidence does not preponderate against the post-conviction

court’s findings that the petitioner received effective assistance of counsel and that his guilty

pleas were knowingly and voluntarily entered.

CONCLUSION

Based on our review, we conclude that the petitioner has failed to meet his burden of

showing that he received ineffective assistance of counsel or that his guilty pleas were

unknowing and involuntary. Accordingly, we affirm the denial of the petition for postconviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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