IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 17, 2010

LATOYA DANIELLE PATTON V. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 2006-A-825 Cheryl Blackburn, Judge

No. M2009-01280-CCA-R3-PC - Filed April 14, 2010

The petitioner, Latoya Danielle Patton, appealsthe Davidson County Criminal Court’s denial

of her petition for post-conviction relief. The petitioner, pursuant to a negotiated plea

agreement, pled guilty to second degree murder, a Class A felony, and received a sentence

of forty years. On appeal, the petitioner contends that her guilty plea was not knowingly and

voluntarily entered due to the ineffective assistance of counsel in advising the petitioner.

Following 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

JOHN EVERETTWILLIAMS, J., delivered the opinion of the Court, in which DAVID H. WELLES

and THOMAS T. WOODALL, JJ., joined.

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Latoya Danielle Patton.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant

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

OPINION

Factual Background

The underlying facts of the case, as recited by the State at the guilty plea hearing, are

as follows:

On April 23rd, 2005, at 570 McMurray Drive here in Davidson County, on that

date [the victim’s] brother . . . came to the residence to find out what was

going on because he had not been able to contact [the victim] by phone during
the day. He came in and saw [the victim] deceased, a murder victim. There

were obvious multiple stab wounds there in the apartment. He called the

police, and the police began investigating.

That same day from asking around and doing their jobs they came to

find that [the petitioner] was somebody that was acquainted with the [victim]

and began to interview her. Initially she denied any knowledge of what took

place, but eventually she did admit she had killed [the victim]. She said that

she was a crack cocaine user, that she bought crack cocaine from [the victim],

but it came to a point where she was out of money and the victim would not

give her anymore. So she was there in the apartment and decided to kill him

and take his crack cocaine. So she turned the water on in the kitchen so he

[could not] hear in the living room and got a knife from the drawer and then

went over to him in the living room, hiding the knife, and got close to him and

stabbed him and ended up stabbing him a total of eighteen times with about

three or four different implements that she found there. She took the crack

cocaine and then went back to 189 Wallace Road, which was her residence.

She told the police that they would find her clothes that had blood on them and

her shoes and the empty pill bottle that the crack cocaine was in back at that

location. And the police went there and did find that.

Based upon the foregoing, the petitioner was indicted by a Davidson County grand

jury for first degree murder and felony murder. Subsequently, the petitioner filed a petition

with the trial court to enter a guilty plea to one count of second degree murder. The

agreement further provided that she would be sentenced to forty years, which was outside her

statutory range. Following the court’s acceptance of the plea, the petitioner was sentenced

in accordance with the agreement, and it was specifically noted on the judgment form that

the sentence imposed was outside her range.

Thereafter, the petitioner filed the instant petition for post-conviction relief in which

she alleged that she was denied the effective assistance of counsel and that her plea was not

entered knowingly and voluntarily. A hearing was held, at which the petitioner and trial

counsel testified. The petitioner testified that trial counsel was the second attorney appointed

to represent her and that he began his representation four or five months after the case began.

According to the petitioner, she informed trial counsel that she was under the influence of

drugs when she committed the murder and, further, that the victim had been abusive,

controlling, and manipulative to her. She stated that she only stayed with the victim because

he provided her with drugs. The petitioner also testified that she informed trial counsel that

she had regular exposure to drug use as a child. She further testified that she had developed

a drug habit, which she supported by trading sex for drugs. The petitioner further testified

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that trial counsel told her at her first court appearance that “nine times out of ten” a jury

would only convict her of manslaughter because it was a crime of passion. However, trial

counsel later presented her with an offer from the State and encouraged her to accept it. The

petitioner acknowledged that she made a statement to police confessing her involvement in

the crime and providing details of its commission.

According to the petitioner, she accepted her guilty plea on the Friday before the

trial’s start date of Monday. Prior to accepting the plea, she asked the court for a continuance

in order to allow her family additional time to hire a new attorney. The court denied the

request. Prior to accepting the plea, the court extensively voir dired and discussed the plea

agreement with the petitioner. The petitioner acknowledged that the court did, in fact, make

the statements and that she stated that she understood them, but she now contends that she

did not understand. According to the petitioner, she either did not remember the questions

or “blanked out” during the plea hearing. She testified that it was her belief that, if she pled

guilty, she “would go ahead to the prison and would file an appeal.” However, according to

the petitioner, she thought this meant that she would have more time to hire an attorney and

that she would get another opportunity to go to trial. The petitioner testified that she did not

want to seem “illiterate” before the court and “just gave up.” She testified that she wanted

to have the opportunity to testify before a jury.

The petitioner also testified that no mental evaluation was performed even though she

and trial counsel had discussed such an evaluation. She believed that trial counsel should

have “put a little bit more time in investigating” her case and learned more about her

background.

Trial counsel testified that he initially met with the petitioner and, based upon her

statements to him, believed that it might be possible for a jury to find her guilty of

manslaughter. He related that the petitioner had discussed the victim’s treatment of her and

that the victim had made a move for something under the cushions prior to the petitioner

stabbing him. However, upon receiving discovery, trial counsel’s opinion of the merits of

the case changed. Specifically, the petitioner’s statement to police was problematic as the

petitioner essentially stated that she killed the victim in order to get crack cocaine. After

reviewing discovery, trial counsel stated there was “no doubt” in his mind that the petitioner

would be convicted of first degree murder if she went to trial. According to trial counsel, he

informed the petitioner that he did not believe she could win the case in light of her

statement. He testified that, despite this, he told the petitioner that if she wanted to go to

trial, he would “give her [his] best effort.” However, he did advise her to take the plea offer.

On the day the plea was entered, trial counsel went through the entire agreement with

the petitioner. He testified that she did not show any sign of confusion with the explanations

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he provided to her. He further related that he had discussed the right of appeal and informed

the petitioner that this would be her “final day in [c]ourt.” He acknowledged that the

petitioner’s parents were upset that the petitioner was taking the plea agreement. He stated

that, during the hearing, the petitioner looked back at her mother and said, “I don’t want to

get life.”

Trial counsel testified that he had no problem communicating with the petitioner

regarding her case. He stated that he saw no basis to perform a mental evaluation because

he believed that she “clearly [was not] going to be found insane, either presently or at the

time of the offense.” He also indicated that he had hired a private investigator to assist him

with the case.

After hearing the evidence presented, the post-conviction court denied relief. The

petitioner has timely appealed.

Analysis

On appeal, the petitioner asserts that the post-conviction court erred in denying relief

because trial counsel was ineffective and because the petitioner’s plea was not entered

knowingly and voluntarily. Although somewhat unclear from the brief, the petitioner appears

to argue that trial counsel did not render the effective assistance of counsel, based upon his

advice to the petitioner to plead guilty despite the fact that the facts and circumstances raised

a defense of self-defense. The petitioner further contends that her plea was not knowingly

and voluntarily entered because trial counsel was deficient.

In evaluating the knowing and voluntary nature of a guilty plea, the United States

Supreme Court has held that “[t]he standard was and remains whether the plea represents a

voluntary and intelligent choice among the alternative courses of action open to the

defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). In making this determination,

the reviewing court must look to the totality of the circumstances. State v. Turner, 919

S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534,

542 (Tenn. Crim. App. 1990). Indeed, a

court charged with determining whether . . . pleas were ‘voluntary’ and

‘intelligent’ must look to various circumstantial factors, such as the relative

intelligence of the defendant; the degree of his familiarity with criminal

proceedings; whether he was represented by competent counsel and had the

opportunity to confer with counsel about the options available to him; the

extent of advice from counsel and the court concerning the charges against

him; and the reasons for his decision to plead guilty, including a desire to

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avoid a greater penalty that might result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

Once a guilty plea has been entered, effectiveness of counsel is relevant only to the

extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective

assistance necessarily implicate that guilty pleas be voluntarily and intelligently made. Hill

v. Lockhart, 474 U.S. 52, 56 (1985) (citing Alford, 400 U.S. at 31, 91 S. Ct. at 164).

To succeed in a challenge for ineffective assistance of counsel, the petitioner must

demonstrate that counsel’s representation fell below the range of competence demanded of

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

Strickland v. Washington, 466 U.S. 668, 687 (1984), the petitioner must establish (1)

deficient representation and (2) prejudice resulting from the deficiency. In the context of a

guilty plea, to satisfy the second prong of Strickland, the petitioner must show that “there

is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial.” Lockhart, 474 U.S. at 59; see also Walton v.

State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). The petitioner is not entitled to the

benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot

criticize a sound, but unsuccessful, tactical decision made during the course of the

proceeding. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). However, this

deference to the tactical decisions of trial counsel is dependant upon a showing that the

decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528

(Tenn. Crim. App. 1992).

The issues of deficient performance by counsel and possible prejudice to the defense

are mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A

trial court’s findings of fact underlying a claim of ineffective assistance of counsel are

reviewed on appeal under a de novo standard, accompanied with a presumption that those

findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State,

40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d). However, conclusions of

law are reviewed under a purely de novo standard, with no presumption of correctness. Id.

at 458.

I. Ineffective Assistance of Counsel

As noted, the petitioner’s argument is somewhat unclear with regard to what factual

basis she is asserting to establish the ineffective assistance claim. For clarity sake, we

include the petitioner’s argument verbatim.

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The petitioner asserts that it was error for the trial court to find her

counsel rendered effective assistance of counsel. The petitioner testified that

when she first met with [trial counsel] they discussed the facts of her case and

that he stated a jury would most likely return a verdict of the lesser offense of

manslaughter. . . . The petitioner testified she reviewed her confession with

[trial counsel] but contends that other facts and circumstances could have

supported a defense of self-defense or garnered compassion from the jury for

her. . . . Further, she also stated that she had no criminal record, except for a

juvenile citation, and had lived on and off the streets for [eleven] adult years

without any arrests or trouble. . . . Thus, she could have testified without

impeachment by prior convictions.

[Trial counsel] even confirmed the petitioner’s assertion that he had

discussed the possibility of a manslaughter verdict but only changed his mind

after reading her statement to the police. . . . He also testified that the

petitioner told him the victim had reached for something under the sofa

cushion which would have supported [trial counsel’s] initial evaluation of the

case. . . .

Presumably all of this investigation by [trial counsel] took place well

before the status check the Friday before the Monday trial date. Yet, as the

petitioner and [trial counsel] testified, she was not advised to waive her right

to trial and plead guilty until that Friday. . . . She even requested a continuance

in order to hire another attorney at that proceeding. . . .

For the foregoing reasons, the petitioner asserts “counsel’s

representation fell below an objective standard of reasonableness[.]”

As noted, from this, we glean that the petitioner is arguing that trial counsel was ineffective,

based upon his advice to the petitioner to plead guilty rather than pursue a self-defense theory

at trial.

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

trial counsel’s testimony that: (1) he met with the petitioner; (2) he reviewed discovery; (3)

he hired an investigator to assist in finding information beneficial to the defense; (4) he did

not believe a mental evaluation was necessary based upon his communications with the

petitioner; and (5) the facts of the case were “strongly against” the petitioner. As had been

noted by this court multiple times, it is the province of the trier of fact to make the required

credibility determinations. On appeal, we will not reweigh or reassess the weight given to

those determinations which the post-conviction court makes with regard to credibility.

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Accrediting trial counsel’s testimony, we find nothing in the record which preponderates

against the post-conviction court’s determination that trial counsel was not deficient for

failing to encourage the petitioner to pursue a theory of self-defense rather than to plead

guilty. The record supports trial counsel’s determination that the facts of the case were

strongly against the petitioner. In her own statement, the petitioner basically stated that she

stabbed the victim when he failed to supply her with more drugs. She indicated that she

turned on the water to hide the noise of her getting the knife, hid the knife in her pants, asked

the victim to kiss her, and then proceeded to stab him multiple times. Clearly, upon these

facts, a theory of self-defense would not be supported. Thus, we agree with the postconviction court that trial counsel was not deficient in his representation of the petitioner.

II. Voluntary and Knowing Guilty Plea

Next, the petitioner contends that the post-conviction court erred in determining that

she knowingly and voluntarily entered her guilty plea. She relies upon the facts that: she had

no previous experience with the criminal justice system; the bargain she received was not

“great” for a first time offender; and, at the post-conviction hearing, she maintained that she

did not understand the guilty plea proceedings despite her assertions to the contrary at the

guilty plea hearing. She contends that she simply “blacked out” during the plea hearing and

did not understand the consequences of entering the plea.

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

Trial counsel . . . testified that he had thoroughly explained to [the

petitioner] the nature and consequences of the plea and that he explained to her

the plea would be the last step in her case. Again, the Court credits trial

counsel’s testimony. The Court find that the transcript of [the petitioner’s]

plea hearing belie her claims. [The petitioner] did not passively respond to

questions in a yes or no fashion; in fact, at one point [the petitioner] informed

the Court that she had asked trial counsel questions about her release

eligibility.

During the plea hearing, [the petitioner] affirmatively responded that

her trial counsel had explained to her that she was pleading out of range; trial

counsel had thoroughly discussed with her the facts of her case and the

investigation that had been made; trial counsel went over every point on the

plea petition and answered all her questions; she was satisfied with the work

of trial counsel and he had performed everything she had wanted him to do on

her behalf; and that she understood that by entering her plea she was waiving

her right to trial where she may have been convicted of a lesser offense and

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waiving her right to appeal. The Court explicitly informed [the petitioner] that

if she enters a plea, the judgment would be final. The State recited the facts

that would be presented at trial based upon the statements [the] petitioner

provided to police and [the petitioner] concurred with the recitation of the

facts.

After a thorough review of the record, we find nothing which preponderates against

the post-conviction court’s findings. At the guilty plea hearing, the trial court conducted an

extensive voir dire of the petitioner prior to her entering the plea. The petitioner specifically

stated that she wanted to enter the plea. The court specifically explained that the petitioner

was receiving a forty-year sentence to be served at 85% and that the sentence was outside of

the petitioner’s range. The transcript further reflects that: the petitioner stated that she

understood the sentence; trial counsel had explained the agreement to her; she was not on

medication; and she knew that she did not have to plead guilty. As noted by the trial court,

the petitioner’s assertions on appeal are simply not credible, based upon her testimony at the

guilty plea hearing. Thus, our review of the record affirmatively demonstrates that the

petitioner’s plea “represent[ed] a voluntary and intelligent choice among the alternative

courses of action open to the [petitioner].” See Alford, 400 U.S. at 31.

CONCLUSION

Based upon the foregoing, the denial of post-conviction relief is affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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