IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 3, 2015

MARK BROOKS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 13-03117 W. Mark Ward, Judge

No. W2015-00155-CCA-R3-PC - Filed December 16, 2015

The petitioner, Mark Brooks, appeals the denial of post-conviction relief from his 2013 

Shelby County Criminal Court guilty-pleaded convictions of possession of cocaine with 

intent to manufacture, sell, or deliver, possession of marijuana with intent to manufacture, 

sell, or deliver, possession of a firearm during the commission of a dangerous felony, and 

possession of a handgun by a convicted felon, for which he received an effective sentence 

of 12 years. In this appeal, the petitioner contends that his guilty pleas were not 

knowingly and voluntarily entered and that he was denied the effective assistance of 

counsel. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E.

GLENN and TIMOTHY L. EASTER, JJ., joined.

Eric Mogy, Memphis, Tennessee, for the appellant, Mark Brooks.

Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Greg Gilbert, 

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

OPINION

On January 17, 2013, the petitioner entered pleas of guilty to one count 

each of the Class C felony of possession of cocaine with intent to manufacture, sell, or 

deliver; the Class E felony of possession of marijuana with intent to manufacture, sell, or 

deliver; possession of a firearm during the commission of a dangerous felony; and 

possession of a handgun by a convicted felon, in exchange for a total effective sentence 

of 12 years‟ incarceration as a Range II offender. The transcript of the guilty plea 

colloquy contains the following factual summary of the offense:
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Had this matter gone to trial, the State would have put 

on proof that detectives with the Memphis Police Department 

Organized Crime Unit executed a search warrant naming [the 

petitioner] as the target at 1932 Oaks Avenue.

During the course of this search, they found 31.25 

grams of cocaine[,] 28.69 grams of marijuana[,] and 513 

dollars in cash.

All of the drugs did test positive for their respective 

illegal substance. They were packaged individually for 

resale.

These events did occur in Memphis Shelby County 

and the State would ask for a stipulation as to – they also 

found a handgun, Judge, that he did claim on the scene.

The State would ask for a stipulation as to those facts.

The defense stipulated to the facts as presented. The guilty plea hearing transcript 

evinces that the trial court conducted a thorough Tennessee Rule of Criminal Procedure 

11(b) colloquy with the petitioner. In the colloquy, the trial judge informed the petitioner 

of the nature and sentencing range of each charge, and the petitioner indicated his 

understanding of the potential sentencing. The petitioner also confirmed that he had 

consulted with trial counsel about his decision to plead guilty and that he freely and 

voluntarily decided to accept the plea agreement.

Following the entry of the plea agreement, the petitioner filed a timely 

petition for post-conviction relief, alleging that he was deprived of the effective 

assistance of counsel and that his guilty pleas were not knowingly and voluntarily made. 

On December 5, 2014, the post-conviction court conducted an evidentiary hearing.

At the evidentiary hearing, the petitioner testified that trial counsel had 

insisted that he enter into a plea agreement. According to the petitioner, trial counsel had 

informed him that if the case proceeded to trial, the petitioner would receive a sentence of 

30 years. The petitioner stated that trial counsel told him that there was “nothing [he] can 

do for” the petitioner, that the State was not going to reduce the charges, and that the 

petitioner‟s co-defendant was “going to get the same treatment.” The petitioner conceded 

that, at the plea submission hearing, he had agreed that he had voluntarily decided to 

accept the plea agreement. In response to the question of why his pleas were involuntary, 
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the petitioner responded that he had allowed trial counsel to coerce him into pleading 

guilty and that he had “said a lot of things that [he] didn‟t mean.” The post-conviction 

court then interjected, asking the petitioner if he had “committed perjury when [the trial 

court] swore [him] in under oath and took [his] guilty plea,” and the petitioner responded 

in the affirmative.

With respect to the petitioner‟s claim of ineffective assistance of counsel, 

the petitioner testified that he encouraged trial counsel to seek a suppression hearing on 

the basis of an illegal search warrant. To the best of the petitioner‟s knowledge, no 

motion to suppress was ever filed. The petitioner confirmed that he never took part in a 

hearing on a motion to suppress. The petitioner testified that trial counsel never provided 

him with a copy of his discovery materials and that if he had received the materials prior 

to the plea submission hearing, he would not have entered a guilty plea.

On cross-examination, the petitioner admitted that he was guilty of 

possession of the firearm, that he was a convicted felon, and that, due to his prior 

criminal history, he was a Range II offender. The petitioner also admitted that he had 

written a letter to his co-defendant, Lasondra King, who also happened to be the mother 

of his child, while he was incarcerated. In that letter, the petitioner requested that Ms. 

King ask her nephew, Ivan Davenport, to sign an affidavit taking responsibility for the 

drugs. The petitioner included with the letter a handwritten affidavit for Mr. Davenport‟s 

signature. Through the petitioner‟s testimony, the State introduced into evidence copies 

of both the letter and the affidavit. 

Trial counsel testified that it was his practice to review discovery materials 

with each client. Although trial counsel could not recall with any specificity reviewing 

the materials with the petitioner, he stated that he “could not have put forth a plea without 

going over” the discovery materials and that he did recall the petitioner‟s “concerns about 

a search warrant.” Trial counsel filed a motion to suppress on the basis of an illegal 

arrest, but he chose not to pursue a hearing on the matter, explaining as follows:

The prosecutors that I was dealing with at the time, it was the 

policy that if you set a matter for a hearing any offer you have 

would be taken off the table. And if we had a hearing, then 

there would be no offer, we would be going forward to trial.

Trial counsel related this information to the petitioner “[t]o the best of [his] recollection.”

Trial counsel recalled the petitioner‟s mentioning that Mr. Davenport would 

claim responsibility for the drugs. Shortly thereafter, trial counsel learned that Ms. 

King‟s attorney had provided to the State copies of both the petitioner‟s letter and the 
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affidavit intended for Mr. Davenport. Trial counsel stated that the State “was less 

agreeable to try to resolve anything at that point because the prosecutor informed me that 

Ms. King would be testifying.” Trial counsel was unable to speak to Mr. Davenport, and 

he could not speak to Ms. King because she was represented by counsel. Trial counsel 

was “concerned with [the petitioner‟s] exposure if [the case] did go to trial” because 

“based on everything [trial counsel] had it would [have] been a difficult trial to carry the 

day.”

In the post-conviction court‟s order denying post-conviction relief, the 

court found that the petitioner failed to prove ineffective assistance of counsel and failed 

to prove that his guilty plea was not knowingly and voluntarily made:

Petitioner claims that he was “coerced” into pleading 

guilty by his attorney because he repeatedly advised him that 

if he went to trial he was facing the possibility of a 

considerably longer sentence. However, Petitioner articulated 

no action on the part of his attorney that would amount to 

coercion. Trial counsel did nothing improper in urging his 

client to plead guilty and by pointing out the obvious. Trial 

counsel was entitled to use fair persuasion with his client on 

this issue. He made no misrepresentations and his conduct 

did not constitute undue influence. There has been no 

showing of deficient performance. Petitioner‟s guilty plea 

was knowing, intelligent and voluntary.

With regard to the claim that his attorney provided 

ineffective assistance of counsel with respect to the guilty 

plea, the Petitioner claims he was not aware of the contents of 

the search warrant that resulted in the discovery of the drugs 

in the present case. He can cite no legal deficiency in the 

warrant, but merely claims had he known its content he would 

not have pled guilty. In large part, this allegation hinges on 

the credibility of the Petitioner‟s testimony in the postconviction hearing. Petitioner admitted in the post-conviction 

hearing that he committed perjury during his guilty plea 

colloquy and now asks this Court to conclude that his 

testimony in the post-conviction hearing is credible. In 

addition to his acknowledged and admitted perjury, Petitioner 

was a Range II, Multiple Offender prior to his guilty pleas in 

the present case. As such, his testimony is subject to 

impeachment under Tenn. R. Evid. 609. Against this 
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backdrop, and having viewed Petitioner‟s testimony in the 

post-conviction hearing, this court simply does not believe the 

Petitioner‟s testimony. It is clear that Petitioner is simply 

willing to say whatever he thinks is necessary to obtain relief 

from his convictions. This court accredits the testimony of 

[trial counsel] that it is his standard practice to share 

discovery with his clients. Although [trial counsel] had no 

independent memory of this particular case, this court does 

not accredit the testimony of the Petitioner that he did not 

know of the contents of the search warrant. As such, this 

court finds no deficient performance. Further, for sake of 

argument, even if Petitioner was not aware of the exact 

contents of the search warrant, his testimony that he would 

not have pled guilty knowing the discrepancies in the factual 

allegations of the warrant is also not worthy of belie[f] 

considering his admitted perjury, his multiple felony 

convictions and his demeanor on the stand in the present 

hearing. Petitioner is unable to establish any deficiency or 

illegality to the warrant, and his testimony that had he known 

its contents he would not have pled guilty is simply not 

believed by this court.

In this appeal, the petitioner reiterates his claims of ineffective assistance of 

counsel and involuntary guilty pleas, claiming that trial counsel performed deficiently by 

failing to challenge the search warrant and by repeatedly insisting that the petitioner 

plead guilty. The State contends that the post-conviction court did not err by denying 

relief.

We review the petitioner‟s claim with a few well-settled principles in mind. 

Post-conviction relief is available only “when the 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.” T.C.A. § 40-30-103. A postconviction petitioner bears the burden of proving his or her factual allegations by clear 

and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to 

the post-conviction court‟s findings of fact the weight of a jury verdict, and these findings 

are conclusive on appeal unless the evidence preponderates against them. 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). By contrast, the post-conviction court‟s conclusions of law receive no 

deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 

(Tenn. 2001).
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Before a petitioner will be granted post-conviction relief based upon a 

claim of ineffective assistance of counsel, the record must affirmatively establish, via 

facts clearly and convincingly established by the petitioner, that “the advice given, or the 

services rendered by the attorney, are [not] within the range of competence demanded of 

attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and 

that counsel‟s deficient performance “actually had an adverse effect on the defense,” 

Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must 

show that there is a reasonable probability that, but for counsel‟s unprofessional errors, 

the result of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 

694. Should the petitioner fail to establish either deficient performance or prejudice, he is 

not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). 

Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of 

sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

When considering a claim of ineffective assistance of counsel, a reviewing 

court “begins with the strong presumption that counsel provided adequate assistance and 

used reasonable professional judgment to make all significant decisions,” Kendrick v. 

State, 454 S.W.3d at 458 (citing Strickland, 466 U.S. at 689), and “[t]he petitioner bears 

the burden of overcoming this presumption,” id. (citations omitted). We will not grant 

the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or 

provide relief on the basis of a sound, but unsuccessful, tactical decision made during the 

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 

1994). Such deference to the tactical decisions of counsel, however, applies only if the 

choices are made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 

521, 528 (Tenn. Crim. App. 1992).

Apart from whether a guilty plea is the product of ineffective assistance of 

counsel, it is invalid if otherwise made unknowingly or involuntarily. “Whether a plea 

was knowing and voluntary is an issue of constitutional dimension because „[t]he due 

process provision of the federal constitution requires that pleas of guilty be knowing and 

voluntary.‟” State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2000) (quoting Johnson v. State, 

834 S.W.2d 922, 923 (Tenn. 1992)). A plea “may not be the product of „[i]gnorance, 

incomprehension, coercion, terror, inducements, [or] subtle or blatant threats.‟” Wilson, 

31 S.W.3d at 195 (quoting Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)); see also 

State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003) (citing Blankenship v. State, 858 

S.W.2d 897, 904 (Tenn. 1993)).

A claim of ineffective assistance of counsel is a mixed question of law and 

fact, see Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015), as is a claim of 

involuntary guilty plea. See Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. 
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Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 

(Tenn. 1999). When reviewing the application of law to the post-conviction court‟s 

factual findings, our review is de novo, and the post-conviction court‟s conclusions of 

law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40 

S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

In our view, the record fully supports the ruling of the post-conviction 

court. The record of the guilty-plea submission hearing and the explicitly accredited 

testimony of the petitioner‟s trial counsel, as well as the explicitly discredited testimony 

of the petitioner, evince the petitioner‟s understanding of the proceedings and his 

willingness to enter into the plea agreement. Moreover, the record amply demonstrates 

that trial counsel rendered effective assistance in representing the petitioner.

Accordingly, the judgment of the post-conviction court is affirmed.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE