IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 19, 2006 Session

JONATHON CHRISTOPHER HOOD v. STATE OF TENNESSEE

 Appeal from the Circuit Court for Franklin County

No. 15655 Buddy D. Perry, Judge

No. M2005-01310-CCA-R3-PC - Filed June 9, 2006

This is an appeal from the denial of post-conviction relief. The Petitioner, Jonathon Christopher

Hood, entered a best-interest guilty plea to felony reckless endangerment and, pursuant to a plea

agreement, was sentenced to one year imprisonment with a release eligibility date of 30%. The

Petitioner filed for and was denied post-conviction relief. The Petitioner now appeals the denial of

post-conviction relief, claiming his trial counsel provided ineffective assistance of counsel which

resulted in an involuntary guilty plea. We affirm the judgment of the trial court. 

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN

EVERETT WILLIAMS, JJ., joined.

Robert Huskey, Manchester, Tennessee, for the appellant, Jonathon Christopher Hood.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; J.

Michael Taylor, District Attorney General; and Steve M. Blount, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

FACTS

The facts underlying the conviction at issue in this case were stipulated at the Petitioner’s

plea acceptance hearing as follows:

The proof would be that on the date alleged in that criminal information

officers were dispatched to a location at Cumberland View Apartments. They would

testify that [the Petitioner] was there that there were other people there that gave

various statements. The long and the short of it is they would testify, Your Honor,
The record also reveals that other unspecified charges were not pursued in exchange for the Petitioner’s 1

acceptance of the plea agreement.

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that Mr. Hood assaulted these people and in the course of that pulled a weapon and

made threats, which would constitute reckless endangerment with a deadly weapon.

The record further reveals that the Defendant committed this offense on October 8, 2003, in Franklin

County.

In January of 2004, the Petitioner waived his right to a grand jury and elected to proceed

based on the criminal information. The Petitioner accepted a plea agreement whereby he would

enter a best-interest guilty plea to one count of Class E felony reckless endangerment in exchange

for a sentence of one year as a Range I offender with a 30% release eligibility date. At the 1

Petitioner’s plea acceptance hearing, the Petitioner admitted he read, understood and signed his plea

notice and waiver of rights form. The trial court conducted a thorough plea colloquy, during which

the Petitioner acknowledged he understood the rights he was waiving and was entering his bestinterest guilty plea voluntarily. The Petitioner further indicated that he understood that his plea

agreement would result in a one-year sentence, which would be served consecutive to a two-year

sentence he was already serving at that time. The Petitioner, through counsel, stated for the record

that he was entering a best-interest plea because of his prior conviction and the “number” of charges

he would face if he went to trial. At the conclusion of the hearing, the trial court found the

Petitioner knowingly waived his rights and voluntarily entered a best-interest guilty plea.

Accordingly, the trial court accepted the Petitioner’s plea, entered a conviction for reckless

endangerment, and sentenced the Petitioner pursuant to the plea agreement.

At some point subsequent to sentencing, the Petitioner learned that by pleading guilty and

accepting the one-year sentence, he was disqualified from determinate release on his prior two-year

sentence. See Tenn. Code Ann. § 40-35-501(a)(3). In August of 2004, the Petitioner filed a pro

se petition for post-conviction relief alleging ineffective assistance of counsel and an involuntary

plea. The trial court found the Petitioner presented a colorable claim, appointed counsel, and

allowed the Petitioner thirty days to submit an amended post-conviction petition. The Defendant

ultimately retained counsel, and a post-conviction evidentiary hearing was conducted in March of

2005.

At the hearing, Ms. Gail McKnight, an employee with the Tennessee Department of

Probation and Parole, testified that prior to the conviction and sentence at issue in this case, the

Defendant’s existing two-year sentence with determinate release would have required only 30%

service, or seven months and twenty-four days. However, because of his January 2004 guilty plea

and conviction, he was not eligible for automatic determinate release and would be required to go

before the parole board. Ms. McKnight stated that as of the date of the hearing, the Petitioner was
The Petitioner began serving his original two-year sentence in October of 2003. Therefore, because of his 2

January 2004 conviction and one-year sentence, which disqualified him from determinate release, as of the date of the

post-conviction hearing he was scheduled to serve a total of approximately two years and six months. 

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scheduled for parole in April of 2006, although this date “moves” somewhat due to credits. Ms. 2

McKnight further testified that the Petitioner had two minor disciplinary infractions on his record,

but opined that neither was severe enough to have precluded him from determinate release had he

not received another conviction. 

The Petitioner testified that he was not guilty of reckless endangerment and entered his bestinterest plea to this charge only because his trial counsel informed him that he would only get “an

additional three months” as a result of the plea agreement. The Petitioner further explained that his

counsel informed him that it was “chancy” to go to trial considering his prior conviction. Because

he was under the impression that the plea agreement would add only three or four months to his

current sentence, for a total of no more than ten or eleven months, he agreed to enter a best-interest

plea. The Petitioner further testified that his attorney never discussed with him the effect his new

sentence would have on the scheduled determinate release from his prior sentence. The Petitioner

stated that he certainly would have not entered a plea of guilty if he had known it would require he

serve approximately two years instead of the ten or eleven months he was led to believe. 

The Petitioner’s trial counsel (“Counsel”) testified that he had been practicing law since

1970, graduated first in his class at the University of Tennessee College of Law, was Order of the

Coif, and editor of the Law Review. As to the Petitioner’s case, Counsel stated that he did not

promise a specific release date, but rather informed the Petitioner of the State’s “take-it-or-leave-it”

offer of one year with a release eligibility date of 30%. Counsel clarified that he never told the

Petitioner that release would be “automatic,” rather he informed him, as he does all his clients, that

he would become “eligible” for release on the release eligibility date, but actual “release would be

determined by the parole board.” 

On cross-examination, Counsel testified that the Petitioner had informed him early in the

proceedings that he was not guilty and had initially mentioned he knew of witnesses who could

support his defense theory. However, the Petitioner elected to accept the State’s offer rather than

face “everything” that he was charged with. Counsel also noted that the Petitioner had recently

elected to take a case to trial on similar charges and lost. However, Counsel admitted he did not

advise the Petitioner of the effect the plea agreement would have on his determinate sentence from

a prior conviction nor did he think the Petitioner would end up serving a total of twenty months or

more. 

At the conclusion of the hearing, the trial court agreed with the Petitioner that his sentence

seemed “excessive” and that it “didn’t seem fair on its face.” Nevertheless, the court recognized the

issue at hand was simply “whether it’s a knowingly entered plea if you don’t discuss with your

attorney whether or not the parole board decides to release you or not release you.” The court

concluded that 
The trial court also noted that the Petitioner’s desired result would create the “additional requirement” that 3

attorneys must “have a discussion with each of the defendants in regard to the actions of the parole board.” The trial

court opined: “That may be a good thing, and maybe ought to be done as a part of the plea process, but I don’t think it’s

incumbent upon me to set that policy, maybe the Court of Appeals could set that standard if they choose to do it.” 

The Petitioner’s “Motion to Withdraw Plea and Motion for New Trial” may be interpreted as an awkwardly 4

worded petition to rehear his post-conviction petition. In this motion, the Petitioner simply raised the same arguments

he presented at the post-conviction hearing and then challenged the trial court’s denial of post-conviction relief. 

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in effect [ruling for the Petitioner] is me saying to defendants that you have a right

to assume that when you enter a plea that a one year sentence, a two year sentence,

or a three year sentence doesn’t really mean that it means something less and you a

have a right to assume that it’s something less. I’m not going to make that finding.3

Accordingly, the trial court denied the Petitioner’s petition for post-conviction relief. This appeal

followed.

ANALYSIS

On appeal, the Petitioner asserts that the trial court erred in denying his claim for postconviction relief because he received ineffective assistance of counsel, which also rendered his guilty

plea involuntary. To support this claim, the Petitioner argues that his counsel provided deficient

representation by misinforming him that his plea agreement would add three or four months to his

sentence when the actual result was disqualification from determinate release and the service of

substantial additional time incarcerated. Furthermore, the Petitioner asserts that but for the

deficiency in his counsel’s representation, he would have followed through with his trial, and

therefore his guilty plea was not knowingly and voluntarily entered. The State argues that the appeal

should be dismissed because the Petitioner’s notice of appeal was untimely, and in the alternative,

the trial court did not err in denying post-conviction relief because the Petitioner received effective

representation and entered his plea voluntarily.

I. Dismissal of Appeal

The State argues that this Court should dismiss this appeal because the Petitioner’s notice

of appeal was untimely and the Petitioner “has not demonstrated that the timeliness requirement

should be waived in the interest of justice.” A notice of appeal is required to be filed with the clerk

of the trial court within thirty days after the date of entry of the judgment or order from which relief

is sought. See Tenn. R. App. P. 4(a). A timely filing of a motion to withdraw a guilty plea or a

motion for new trial tolls this period until entry of the order denying or granting the motions. See

Tenn. R. App. P. 4(c). However, in the present case, the Petitioner’s motions to withdraw his plea

and for a new trial were filed more than thirty days after entry of the order denying post-conviction

relief and therefore did not toll the thirty-day period for filing a notice of appeal. See State v. Davis,

4

748 S.W.2d 206, 207 (Tenn. Crim. App. 1987). Additionally, this Court has previously held that a

motion to rehear a post-conviction petition does not toll the thirty-day time period in which to file
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a notice of appeal. See ThomasEdwardReddick v. State, No. E2003-00578-CCA-R3-PC, 2004 WL

572347, at *2 (Tenn. Crim. App., Knoxville, Mar. 23, 2004). 

In this case, the Petitioner filed his notice of appeal on June 1, 2005, beyond the thirty-day

period from the entry of the order denying post-conviction relief on March 24, 2005. Rule 4(a) of

the Tennessee Rules of Appellate Procedure provides that the notice of appeal document is not

jurisdictional and that timely filing may therefore be waived in the interest of justice. We have

determined to exercise our discretion and waive the timely filing of the notice of appeal in order to

consider the Petitioner’s issue in the interest of justice.

II. Ineffective Assistance of Counsel

To sustain a petition for post-conviction relief, a defendant must prove his or her factual

allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-

30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not reweigh or re-evaluate the evidence below; all questions concerning the credibility of witnesses, the

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

resolved by the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,

960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for postconviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the

evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d

at 578. 

Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the

Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the

right to such representation includes the right to “reasonably effective” assistance, that is, within the

range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466

U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so

undermined the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of

two components: deficient performance by the defendant’s lawyer and actual prejudice to the defense

caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant bears

the burden of establishing both of these components by clear and convincing evidence. See Tenn.

Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either

deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of

counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

This two-part standard of measuring ineffective assistance of counsel also applies to claims

arising out of a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice component

is modified such that the defendant “must show that there is a reasonable probability that, but for
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counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.

at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

In evaluating a lawyer’s performance, the reviewing court uses an objective standard of

“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court

must be highly deferential to counsel’s choices “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; see also Strickland, 466 U.S. at 689. The court should not use the benefit of

hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and

circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983

S.W.2d 240, 246 (Tenn. Crim. App. 1998).

A trial court’s determination of an ineffective assistance of counsel claim presents a mixed

question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This

Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de

novo standard, accompanied with a presumption that those findings are correct unless the

preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--

such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are

reviewed under a purely de novo standard, with no presumption of correctness given to the trial

court’s conclusions.” Id. 

Additionally, our supreme court, in setting forth the standard for identifying a constitutionally

valid guilty plea, has noted that “before a trial judge can accept a guilty plea, there must be an

affirmative showing that it was given intelligently and voluntarily.” State v. Pettus, 986 S.W.2d 540,

542 (Tenn. 1999) (citing to Boykin v. Alabama, 395 U.S. 238, 242 (1969)). Our high court further

noted that “a plea is not ‘voluntary’ if it is the product of ‘[i]gnorence, incomprehension, coercion,

terror, inducements, [or] subtle or blatant threats,’” Blankenship v. State, 858 S.W.2d 897, 904

(Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43), or if the defendant is “incompetent or otherwise

not in control of his mental facilities” when the plea was entered. Id.

In this case, the trial court found that there was no factual dispute: neither the Petitioner nor

his trial counsel anticipated that the actual consequences of accepting the one-year sentence would

have the effect of significantly extending his period of incarceration for a prior conviction. 

Nonetheless, despite noting the Petitioner’s aggregate sentence may appear to be “excessive,” the

trial court concluded that Counsel’s failure to anticipate the decisions of the parole board and

accurately predict early release dates did not amount to deficient representation. After considering

the arguments presented to us on appeal, we conclude that the Petitioner has failed to demonstrate

that he received ineffective assistance of counsel.

Contrary to the Petitioner’s assertions, we conclude Counsel did not provide deficient

representation. When a petitioner’s claim is one of inadequate advice, as it is in this case, courts

generally distinguish between failure to inform of direct and indirect consequences of a guilty plea.
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See Bautista v. State, 160 S.W.3d 917, 921 (Tenn. Crim. App. 2004). As a general rule, an

attorney’s failure to inform a criminal defendant of the “direct consequences of a guilty plea may

constitute ineffective assistance of counsel,” while “failure to inform of indirect consequences of a

guilty plea normally does not.” Id.; see also Adkins v. State, 911 S.W.2d 334, 350 (Tenn. Crim.

App. 1994). This distinction often “turns on whether the result represents a definite, immediate and

largely automatic effect on the range of the defendant’s punishment.” Adkins, 911 S.W.2d at 350

(quoting Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988)). Furthermore, this Court has held that

[a]ny failure of counsel to advise as to any collateral consequences of a plea does not,

under these authorities, fall below the range of competence demanded of attorneys

in criminal cases. Misadvice on the issue might have warranted relief; and, while a

fine distinction, silence by counsel does not. In short, a sin of commission might

merit relief while the sin of omission does not.

Bautista, 160 S.W.3d at 921 (quoting Adkins, 911 S.W.2d at 350). 

As to the conviction and sentence in this case, contrary to the testimony of the Petitioner,

Counsel testified that he did not promise a specific release date. Rather, Counsel stated that he

advised the Petitioner that he would become “eligible” for release after serving a certain percentage

of his sentence, but actual release would be determined by the parole board. As noted above, all

questions concerning the credibility of witnesses, the weight and value to be given their testimony,

and the factual issues raised by the evidence are resolved by the trial judge, not the appellate courts.

See Momon, 18 S.W.3d at 156.

We decline to hold that the failure of Counsel to inform the Petitioner of the negative effect

his plea agreement would have on a determinate sentence from a prior conviction constitutes

deficient representation. Initially, we note that the “failure” to advise on the collateral consequences

of his plea was at most an omission, and not misinformation. See Bautista, 160 S.W.3d at 921.

Even more significantly, we conclude Counsel’s failure to advise on the collateral effect the plea

agreement would have on a prior sentence, as well as his failure to anticipate the actions of the parole

board, had “no definite, immediate, and largely automatic effect” on the Petitioner’s punishment.

Id. The collateral consequences the Petitioner faced were not automatic or definite; the Petitioner

was simply required to appear before the parole board for early release from his prior sentence rather

than receiving determinate release. We conclude that the Petitioner’s counsel, while not advising

him of the indirect, collateral effects of his plea on a prior sentence, did not misinform the Petitioner,

and therefore was not deficient in his representation. 

In sum, the Petitioner has failed to demonstrate that his trial counsel’s representation fell

outside the wide range of reasonable professional assistance to which he was entitled. Having found

no merit in the claim of ineffective assistance of counsel, we also conclude that the trial court did

not err in finding the Petitioner’s guilty plea was knowingly and voluntarily entered. This issue is

without merit.
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CONCLUSION

Finding no error, the judgment of the trial court denying the Petitioner’s petition for postconviction relief is affirmed.

___________________________________ 

DAVID H. WELLES, JUDGE