### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE O ct obe r 25, 200 5 S es sio n

SHA NN ON SMITH v. S TAT E OF TEN NES SEE

Appeal f romthe Circ uit Court for Rutherford Coun ty No. M- 54954 Don R. Ash, Jud ge

No. M2004- 02494-CCA -R3-P C - F iled Dece m ber 8, 2005

The Petitioner, Shan n o n Smit h, pled g uiltyto domestic assault, and he was sente nced to e leven months and twenty -nine da y s. Subsequently
, the Petitioner filed a pe tition for post-conviction relief
, alleg ing that he re ceive d ineffe ctive assistanc e of counsel. After a hea ring , the post-conviction court dismiss ed the pe tition, and the Petiti oner now appea ls. Finding that there exis ts no reve rsible er ror,
we a ffirm the judg ment of the post-c onviction court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court aff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which T H O M A S T. W O O D A LL and J A M ES C UR WO OD W I TT , J R ., J J ., joined.

J ohn D. Dra

ke, Murf ree sboro, Tenne ssee, f

or the Appe llant, Shannon Smi th.

Pa ul G. Sum me rs , Atto rn e y Ge ne ra l and Re po rt e r; B e nja min A. B a ll, As sis ta nt A tto rn e y Ge ne ra l; Wil liam C. W hitsell, J r., District Attorney Gene ral; Jennings Jones
, As sistant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.

OP IN ION I. F acts

On Dec ember

11, 2002, Ba

rbra Gooch, the Petitioner’ s wife at the time, swore out a war rant ag ainst the Petitioner that alleg ed that she and the Petitioner were in the proce ss of a divorc e and she had an a ctive Or der of Protection ag ainst him. Further, she alleg ed in the war rant that the Petitioner had committed ag g ravated assault ag ainst her on November 11, 2002, by g rabbing her by her f ace , squeezing her ja w, pushing her dow n on a ca r seat, and holding he r down.

On Fe bruary

3, 2003, the Petitioner pled g uiltyto domestic assault. At the g uiltyplea hearing, the Petitioner told the trial court that he w as not forced o r coerce d to plead g uilty . He

a g re e d th a t th e a tto rn e y

ha d d on e a

g oo d jo b f

or him , a ndhe ha d n o c omp la int s a bo ut he r. He sa id-2-

that sh e e xpla ine d th e ra ng e of pu nis hme nt t o h im a nd a lso wh a t the Sta te wo uld ha ve to p ro ve in order for him to be found g uilty

. He ag ree d that he was entering his plea fre ely and voluntarily , and he sa id tha t he un de rs too d t hat he had th e ri g ht t o p le a d n ot g uil ty a ndbe g ua

ra nte e d c e rt a in constitutional rig hts, which the trial court list ed for him. The Def

endant sa id that he was e ntering

a ple a of g uil ty to the re du c e d c ha

rg e of do me sti c a ssa

ult be c a us e it w a s in his be st i nte re st. There afte r, the trial c ourt found him g uiltyof domestic assault a nd sentenc ed him to eleven months

a n d tw e n ty

- n in e d a y s

. T h e tria l c o u r t o r d e r e d th a t th e Pe ti ti o n e r w o u ld r e c e iv e p robation af ter serving thirty -seve n day s, twenty -one of which he had alre ady serve d. The trial court further order ed that this sentence r

un consec utively

to any parole the Petitioner was a lrea dy serving

.
On No v em b er1 1
, 2 0 0 3
, t h e P et i t i o n erfi l ed a p et i t i o n fo r p o s t -c o n v i ct i o n re l i ef
, al l egi n g, among other thing s, the ineff ective a ssistance of c ounsel. At a he aring on the pet i tion, the Petitioner’s trial counse l (“Trial Counsel”) testified that she was a li cense d attorney at the time that she re prese nted the Petitioner. She said that she be g an re prese nting the Petitioner i n J anuary of 2003, which wa s three months af ter she had become a licensed attorney

. She said that she discussed with the Petitioner every

aspec t of his case
, including e very avenue available and what would be a “g ood sentenc e.” She sa id that they also discussed the pr os and cons of the evidenc e. Tria l Counsel

sa id tha t sh e we nt t o th e ja il w he re the Pe tit ion e r w a s “ mul tip le ti mes ,” a min imu m of

fi ve tim e s, and she met w ith h im

a t th e c o u r th o u s e

. F u r th e r , s h e s a idth a t th e tw o h a d mu lt ip le p h o ne
conver sations when the Petitioner’s g irlfriend told her that the Petitioner wante d to speak with Tria l Counsel.

Trial Counsel testified that the Petitioner was c harg ed with ag g ravated assault with an or der of pr ote c tio n in pla c e , a nd , s inc e the or de r o f p ro te c tio n w a s a c ivi l matte r, sh e re pr e se nte d him in both civil and criminal court. She said that during the cour se of her c ivil represe ntation, she spoke with the domestic violence person a nd the victim, and the par t ies ag ree d to keep the or der of protec tion in place without the P etitioner admit ting that he had committed any kind of assault. Tria l Counsel te stified that the Petitioner believed that the victim, Gooch, had ulterior motives, and Trial Counsel attempted to g et Gooch to dismiss the char g es. Gooch, howeve r, wa s unwilling to drop her char g es ag ainst the Petitioner. Trial Counsel said that the P etitioner t old her tha t Gooch wa s alrea dy

ma rr ie d whe n s h e m arr i e d th e P e t i t i o n e r , a n d T r i a l C o u n s e l w a s a t t e m p t i n g t o i n v e s t i g a t e t h is throug h the Petitioner’s girlfrie nd and uncle. She said that the Petitioner expressed his desire to ge t this matter over w ith as soon as possible beca use he wanted to ha ve his sentenc e over with by the time he went to his parole revoc ation hearing. She said that he hoped that his pa role would not be violated, and he would be able to ge t out of jail imm ediately

.
Trial Counsel sa id that she went over with the Petitioner the fac ts a lleg ed in the war rant. The Petit ioner said that his g irlfriend w as his alibi for the dates and times that he a lleg edly assaulted Gooch, but when Trial C ounsel asked his g irlfriend about this, she said that she could not state that the Petitioner was with her at those times.

Trial Counsel said that she r epre sented the Petitioner at hi s parole r evocation hearing , which was two da y s after

the Petitioner was r eleas ed fr o m j ail on these c harg es. She said that, at the-3-

hearing, the board de termined that the Petitioner violated hi s parole ba sed upon his char g e and be c a us e he mov e d w ith ou t no tif y ing his pa

ro le of fi c e r. Tria l Cou ns e l sa id tha t, p ri or to the pa ro le

re vo c a tio n h e ari ng , s he tol d th e Pe tit ion e r tha t, i f h e ple d g uil ty , his c on vic tio n wo uld be us e d a g a ins t him in any

future pa role proc eedings

. S h e al s o t o ld him that the charg e alone could be use d as g rounds to revoke his parole
, but she di d not know for certain whether his parole would be re voked.

Tria l Co un se l sa id tha t sh e dis c us se d a pr e lim ina

ry he ari ng wi th the Pe tit ion e r. She tol d h im that Gooch would ha ve to testify to provide evide nce to ha ve the Petitioner c onvicted of a felony or a misdemea nor in domestic violen ce co u rt . Trial Counsel said that, af ter they discussed the

a g re e me nt tha t the Sta te wa s o ff e ri ng , th e Pe tit ion e r c ho se no t to ha ve a pr e lim ina

ry he ari ng a ndto

a c c e pt the a g re e me nt. Ac c or din g to the a g re e me nt, the Pe tit ion e r w ou ld p lead g uil ty to d ome sti c assault and be sentenc ed to thirty -seve n day s, and the Petitioner had alre ady serve d all but six teen of tho se da y s. She sa id tha t th e se nte nc e wa s su pp os e d to ru n c on c ur re ntl y wi th h is p aro le so that, if he wa s not vio la te d, he wo uld no t ser ve mor e da y s. Tria l Coun se l sai d tha t she ha d s po ke n w ith the Petitioner’s par ole office r, and the parole office r said that she w as g oing to support the c ontention that hi s p aro le wa s n ot v iol a te d. She sa id tha t sh e e xpe c te d th e par ole of fi c e r t o b e a t th e pa

ro le

revoc ation hearing, but the of fice r did not come to the he aring

.

Tria l Co un se l sa id tha t, w hil e a pr e lim ina

ry he ari ng is a

g oo d o pp ortun ity fo r a

de fe ns e la wy e r t o o bta in “ un fe tte re d d isc ov e ry ,” sh e un der sto odthat th e Pe tit ion e r w a nte d th is c a se completed quickly , and he did not wa nt to appea r i n court ag ain. Acc ording ly
, she i nformed him of his rights b u t d i d not counsel him that he should wait until after the preliminary hearing to plea d g uilty . Trial Counsel did not remembe r wha t statements she had a s a p ar t o f h er fi le. She

reme mbere d that she h ad som e stateme nts from Gooch. She sa id that the Petitioner told her that Go oc h h a d pre vio us ly

be e n c ha rg e d w ith oth e r c ri me s, bu t sh e didno t c on fi rm the se c ha rg e s w ith the court clerk. She explained that, at that point, there wa s not trial date set, a nd it was her intention to do further

discovery

for tria l.

Trial Counsel testified that the Petitioner ha d full knowledg e of his g uiltyplea be cause she went over it with him step by step. Further, she said that he understood his c onstitut ional rig hts and the c on se qu e nc e s o f p le a din g g uil ty . She sa id tha t sh e e xpla ine d to the Pe tit ion e r tha t, i f h is p aro le was violated, he would g o back to prison. Trial Coun s el al s o ex plained to the Petitioner that she would be g lad to g o to trial. She also said that she discussed defe nse strate g ies with the Petitioner, including the alibi strateg y , but she said t h at h e could not produce a ny evidenc e to support any

of these stra teg ies.

On cr oss-examination, Tria l C o u n s el t es t i fi ed t h at t h e P et i t i o n erm ad e t h e f i n al d et er m i n ati on to p le a d g uil ty , a ndhe ple d g uil ty of his ow n f re e wi ll. She sa id that sh e a dv ise d h im o f the e ff e c ts of pleading g uilty
, the char g e, and his punishment. She went over eac h of his rig hts with him , and they discussed all of them, afte r which the P etitioner si g ned the bottom of t he rights form. F urther, the trial judg e explained these rights a g ain at the g uiltyplea he aring , and t h e P eti tioner said he understood his rig hts and chose to wa ive them. Trial Counsel said that the Petitioner ha d previous convictions for dr

ug s and domestic assault, and he wa s a Rang e I I offe nder. Trial Counsel sa id that-4-

she thoug ht that, since the Petitioner wa nted to g et this case ove r with as soon as possible, he wa nted to p le a d g uil ty . T ri a l Co un se l e sti ma te d th a t she sp ok e wi th the De fe nd a nt o n th e ph on e a t le a st f if ty times, and she spent a

pproxi mately

fifty hours on this case.

Ba sed upon this evidence , the post-conviction court dismi ssed the petition, stating tha t “the [P etitioner] failed to meet the burden of proof

. . . .” The Petitioner appea led and f iled a motion for

r e ma n d in th is Co u r t, a s k in g f o r u s to o r d e r th e p o s t- c o n v ic ti o n c o u r t to ma k e f in d in g s o f f a c t. We g rante d that motion, and on remand the post-conviction court found:

[The Petiti oner] pled g uilty and was convicted [of] one count of domestic assault on F e br ua ry 3, 20 02

. He wa s se nte nc e d to e le ve n ( 11 ) m on ths tw e nty -n ine (2 9) da y s,
su sp e nd e d u po n s e rv ic e of th irty -s e ve n ( 37 ) d a y s w ith tw e nty -o ne (2 1) da y s o f j a il

cre dit. On November 10, 2003, [t he Petitioner] filed a petition for post-conviction relief based on claims of i neff

ective assistance of counsel, a nd an involuntary plea.

. . . . [Trial Counsel] te stified that she met with [the Petitioner] num erous times, explored possible a li b is
, a n d r e v ie w e d h is r ig h ts a n d th e te r ms o f h is p le a w ith h im. [ The Petitioner] s i gn ed the plea ag ree ment revie wed with him by his attorney

and acknow l edg ed his willingne ss to enter into the ag ree ment in court. B eca use the

e vid e nc e do e s n ot sho w by c le ar a ndc on vin c ing pr oo f tha t ne ith e r [T ri a l Co un se l’ s] perf ormanc e wa s deficie nt nor his plea involuntary g iven t he facts and circumstance s surrounding the plea, the Petition i s denied a nd dismiss ed . . . .

The Petitioner now a

ppeals the dismissal of his petition for post-conviction re lief.

II. Ana lys is

On app e a l, the Pe tit ion e r c on te nd s tha t the po st- c on vic tio n co urt er re d whe n it

dis mis se d h is petition because he re ceive d the ineff ective a ssistance of c ounsel. Specifica lly , he conte nds that Trial Counsel was ine ffect i v e b eca use she f ailed to “e ng ag [e] in a pre liminary hearing be fore entering the plea.” He a sserts that, i f t here had been a preliminary hearing his g uiltyplea would ha ve be e n “ ‘m or e ’ v olu nta

ry .” Th e Pe tit ion e r c on c e de s th a t he “ ma y no t be able to d e mon str a te that in the abs e nc e of a

pr e lim ina

ry he ari ng , [hi s] c a se wo uldha ve e nd e d w ith a dif fe re nt r e su lt, ” bu t he is “oblig ed” to a

ppeal a nd a pre liminary

hearing r ecor d would have be en “most we lcome.”

Th e ri g ht o f a

c rimin a lly

a c c us e d to re pr e se ntatio n is g ua ra nte e d b y

bo th the Sixth Amendment to the United States Constituti on and Article I , section 9, of the Te nnessee Constit ution. I d.; Ba x ter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This rig ht to repre sen t at i o n includes the ri gh t t o “re asonably

eff ective” assistance . State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999) . The Tenne ssee Supre me Court has held that the issue of in effective a ssistance of c ounsel is a mix ed question of law a nd fac t and, as such, is subjec t to a de novo re view. I d.-5-

I n revie wing a cla im of ineffe ctive assistanc e of counsel, this Court must determine whethe r the advice g iven or ser vices re ndere d by the attorne y

are within the rang e of c ompetence demande d of attorney s in c riminal case s. Ba x ter, 523 S.W .2d at 936. To preva il on a c l ai m o f i n ef fective assistance of counsel, a petiti oner must show that “counse l’s repr esenta tion fell below a n objective sta nd ardof

re a so na ble ne ss, ” Str ic kla ndv. Was hin g ton , 4 66 U. S. 6 68 , 6 88 (1984 ), andthat th is perf ormanc e pre

judiced the de fense , resulting in a fa ilure to produce a r eliable r esult. I d. at 687; Cooper v. State, 849 S.W.2d 7 44, 747 (Tenn. 1993) . To satisfy the re quirement of pr ejudice, a petitioner must show a re asonable probability that, but for coun s el’s unreasonable err or, the fa ct finder w ould have ha d rea sonable doubt r eg arding the petitioner’s g uilt. S trickland, 466 U.S. at 695. This rea sonable probability must be “suffic ient to undermine c onfidenc e in the outcome.” I d. at 694;

see a lso Harris v. St ate, 875 S.W.2d 662, 665 (Tenn. 1994).

W h en ev al u at i n g an i n ef

fe ct i v e a s s i s t an ce of c o u n s el cl ai m , t h e r ev i ew i n g co u rt s h o u l d j u d ge the attorne y ’s per formanc e withi n the contex t of t he case as a whole, taking into account a ll releva nt

c ir c ums ta nc e s. Str ic kla nd , 4 66 U. S. a t 69 0; S ta te v. Mit c he ll, 75 3 S. W.2 d 1 48 , 1 49 (T e nn . Crim. App. 1988). The revie wing court must evaluate the questionable co n d u ct from the attorney ’s perspe ctive at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W .2d at 746; Hellar d v. State, 629 S.W .2d 4, 9 (Tenn. 1982) . I n doing so, the revie wing court must b e h i g hly defe rential a nd “should in d u lg e a

s tr o n g p r e s u mp ti o n th a t c o u n s e l’ s c o n d u c t f a ll s w ith in th e w id e r a n g e of

rea sonable profe ssional a ssistance.” Burns, 6 S.W .3d at 462. Counsel should not be deemed to ha ve been ine ffe ctive mer ely

beca use a diff ere nt proce dure or

strateg y might have produce d a diffe rent result. Will iams v. State, 599 S.W .2d 276, 279-80 (Te nn. Crim. App. 1980). Th e fa c t th a t a pa rt ic ula r str a te g y or ta c tic fa ile d or hu rt the de fe ns e do e s n ot, sta nd ing a lon e , e sta bli sh un re a so na

ble repr esen t ati on. House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) ( citation omitted); Thomas B ra nd on B oo ke r v . St a te , N o. W20 03 -0 09 61 -C CA -R 3- PC, 2 00 4 WL 58 76 44 , a t *4 (T e nn . Crim. App., at J ackson, Mar. 24, 2004), perm. app. de nied (Tenn. 2004)

. Howeve r, defe renc e to matters of str a te g y a nd ta c tic a l cho ic e s app lie s only if the c ho ic e s a re inf or me d o ne s b a se d u po n a de qu a te prepa ration. House, 44 S.W.3d at 515.

I n case s involving a g u i l t y plea or a plea of nolo contende re, the petitioner must show pr e jud ic e by de mon str a tin g that, b ut f

or c ou ns e l’ s e rr or s, he wo uld no t ha ve ple a d g uil ty bu t w ou ld have insisted upon g oing to trial. See Hill v. L ockhart, 474 U.S. 52, 59 (1985); Ba nkston v. St ate, 815 S.W .2d 213, 215 (Tenn. Crim. App. 1991)

.
We conclude that the evidenc e does not pre ponderate ag ainst the post-conviction court’s finding that Trial Counsel did not rende r the inef fec tive assistance of counse l. T ri al C o unsel met with the Petitioner multi ple times, and she attempted to develop a defe nse strate g y , but the Petitioner could not produce any

evidenc e to support these strateg ies. She explained the cha rg es t o the Petitioner, his rights, and the conseque nces of pleading g uilty . Under

these c ircum s t an ces, we conclude that the P etitioner has not proven tha t Trial Counsel’s per formanc e fe ll below an objec tive standard of

rea sonablene ss. Furthe r, t h e Petitioner conc edes tha t he ca nnot show how he wa s prejudice d. Acc ording ly , we hold that the Petitioner is not entitled to relief on this issue.-6- III. Conclusi on

I n acc ordanc e with the fore g oing a uthorities and re asoning , we a ffirm the post-c onviction

c ou rt ’s jud g me nt.

____________________________________ ROBERT W. WEDEMEYER, J UDGE