IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 4, 2011

WALTER LEON CROSS v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Tipton County

No. 6343 Joseph H. Walker, Judge

No. W2011-00833-CCA-R3-PC - Filed December 6, 2011

The petitioner, Walter Leon Cross, pled guilty in the Tipton County Circuit Court to felony

failure to appear, eleven counts of forgery, three counts of theft over $1,000, and two counts

of identity theft. Pursuant to the plea agreement, he received an effective sentence of twenty

years. Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his

trial counsel was ineffective and that his pleas were not knowingly and voluntarily entered.

The post-conviction court denied the petition, and the petitioner now appeals. Upon review,

we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and ALAN E. GLENN, JJ., joined.

George D. Norton, Jr., Ripley, Tennessee, for appellant, Walter Leon Cross.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; D. Michael Dunavant, District Attorney General; and Jason Poyner and Billy G.

Burk, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background
This case involves five Tipton County Grand Jury indictments filed against the

petitioner. He agreed to plead guilty and receive a mix of concurrent and consecutive

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sentences, outlined below, for a total effective sentence of twenty years in the Tennessee

Department of Correction:

Case Number Charge Range Length

6343 Felony failure to appear Range I, standard 2 years

6344 Forgery (two counts) Range I, standard 2 years total

6345 Forgery (five counts)

Theft over $1,000

Range I, standard 2 years total

6346 Forgery (four counts)

Identity Theft (two

counts)

Range I, standard 2 years total

6375 Theft over $10,000

(dismissed pursuant to

plea agreement)

Theft over $1,000 (two

counts)

Career offender 12 years total

Thereafter, the petitioner filed a petition for post-conviction relief, asserting that his

trial counsel was ineffective and that his guilty pleas were not knowingly and voluntarily

entered. Specifically, he alleged that counsel misadvised him regarding the length of the

effective sentence he could expect to receive and failed to file a motion for sentence

reduction despite a promise to do so. He further alleged that he would not have pled guilty

but for counsel’s ineffectiveness.

At the post-conviction hearing, the petitioner testified that he was twenty-seven years

old and obtained his GED. The only time he met with trial counsel was the day he pled

guilty. Prior to that date, trial counsel telephoned him once and sent him a letter detailing the

The information regarding the charges and plea agreement are gleaned from the plea acceptance

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hearing transcript and the post-conviction court’s order as the indictments, judgment sheets, and plea

agreement forms are not in the appellate record.

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charges and the State’s offer. The petitioner testified as follows regarding his understanding

of trial counsel’s letter:

What I thought it explained was that I would be [pleading] out

to a two, a two, a two, a two, plus a 12, but I thought that when

we got to court that it would be reduced down to a 12 at 60

[percent release eligibility]. I mean, that’s what -- at the very

worst he said that I’d be getting a 12 at 60.

The petitioner said he believed trial counsel because “[h]e’s never lied to me” in previous

representations. Counsel never reviewed discovery with the petitioner or discussed potential

defenses. The petitioner said that he thought he had defenses to three or four of the charges

and that if he had known he was going to receive more than twelve years with a release

eligibility of sixty percent, he would have gone to trial. He said he understood that as part

of the plea agreement, he would have a sentence reduction hearing. The petitioner said that

he went to court for the sentence reduction hearing but that the State informed him that “it

was too late, the 120 days limitation had expired.”

On cross-examination, the petitioner acknowledged that he had prior experience with

the criminal justice system and that he had pled guilty to ten felonies prior to the instant case.

He said that if he had not pled guilty in this case, he could have received a total sentence of

159 years. The petitioner acknowledged that the letter from trial counsel stated that trial

counsel could not guarantee the trial court would reduce or suspend the sentence. He also

acknowledged that the trial court stated during the guilty plea hearing that there was no

guarantee the court would provide any relief from his sentence. The petitioner said that he

had a hearing to request relief from his sentence and that he testified at the hearing. He

maintained that “at that hearing they told me it was too late, it was past the 120-day

deadline.”

Trial counsel testified that he met with the petitioner once and corresponded with him.

He said he “actually put most of [his] efforts in trying to sort through the possibilities and

what the possible outcomes would be with regard to current charges.” Based on the

petitioner’s background and prior convictions, counsel did not think that he needed to explain

the elements of the charged offenses to the petitioner. Trial counsel stated that he did not

interview witnessesin this case because the only witnesses were the victims, who would have

testified that they did not write the forged checks, and the co-defendant. Counsel heard the

co-defendant’s tape-recorded statement. Trial counsel testified that, as he explained in his

letter to the petitioner, there were no guarantees the trial court would grant any type of

sentence relief but that counsel thought the court would suspend part of the sentence because

the offenses were not violent crimes. Counsel was surprised when the trial court refused to

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grant any type of relief based on the petitioner’s lengthy prior record and probation violation.

Counsel said that he thought the petitioner “understood the situation” but that the petitioner

was “very hopeful he’d get some relief.” Trial counsel testified that the State may have

mentioned the 120-day limitation on the trial court’s jurisdiction to hear the sentence

reduction matter but that “we had timely done everything we could do from our end.”

Therefore, any untimeliness was caused by the State. The post-conviction court stated for

the record, in its capacity as the court that had accepted the petitioner’s guilty plea, that the

request for relief from sentencing had been timely and that timeliness had not factored into

the court’s decision to deny relief.

In a written order, the post-conviction court denied the petition for post-conviction

relief. The court found that trial counsel was not deficient because counsel, in his letter to

the petitioner, clearly delineated the State’s twenty-year offer and made no guarantees the

trial court would provide any type of sentence relief. The court found that the sentence

reduction hearing occurred and that the trial court denied relief. The court further found that

the petitioner “actually understood the significance and consequences of the particular

decision to plea guilty.”

II. Analysis

To be successful in his claim for post-conviction relief, the petitioner must prove all

factual allegations contained in his post-conviction petition by clear and convincing

evidence. See Tenn. Code Ann. § 40–30–110(f). “‘Clear and convincing evidence means

evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.

App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

Issues regarding the credibility of witnesses, the weight and value to be accorded their

testimony, and the factual questions raised by the evidence adduced at trial are to be resolved

by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579

(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to

substantial deference on appeal unless the evidence preponderates against those findings.

See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

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

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s

findings of fact de novo with a presumption that those findings are correct. See Fields, 40

S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law

purely de novo. Id.

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When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, “the petitioner bears the burden of proving both that counsel’s performance was

deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,

369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish

deficient performance, the petitioner must show that counsel’s performance was below “the

range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). To establish prejudice, 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. Notably,

[b]ecause a petitioner must establish both prongs of the test, a

failure to prove either deficiency or prejudice provides a

sufficient basis to deny relief on the ineffective assistance claim.

Indeed, a court need not address the components in any

particular order or even address both if the [petitioner] makes an

insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Moreover, in the context of

a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s

errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks

v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S.

52, 59 (1985).

When a defendant enters a guilty plea, certain constitutional rights are waived,

including the privilege against self-incrimination, the right to confront witnesses, and the

right to a trial by jury. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in order

to comply with constitutional requirements a guilty plea must be 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 order to ensure that a defendant understands the

constitutional rights being relinquished, the trial court must advise the defendant of the

consequences of a guilty plea, and determine whether the defendant understands those

consequences. Boykin, 395 U.S. at 244.

In determining whether the petitioner’s guilty pleas were knowing and voluntary, this

court looks to the following factors:

the relative intelligence of the [petitioner]; the degree of his

familiarity with criminal proceedings; whether he was

represented by competent counsel and had the opportunity to

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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 avoid a greater penalty that might

result from a jury trial.

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

The petitioner argues that trial counsel led him to believe that he would receive a

sentence of twelve years with a release eligibility of sixty percent and that trial counsel failed

to pursue a request for relief from sentencing. The post-conviction court found that, based

on trial counsel’s letter and the plea acceptance hearing transcript, trial counsel made clear

that the State’s offer was twenty years. Furthermore, the post-conviction court accredited

trial counsel’s testimony that he pursued a request that the petitioner’s sentence be reduced

or suspended and that the trial court denied the request due to the petitioner’s prior record.

Trial counsel’s letter, entered as Exhibit 1 at the post-conviction hearing, delineated

the State’s offer and stated the following regarding counsel’s expectation as to how the trial

court would rule:

The bottom line is that I have been able to negotiate

something that I believe will meet with your approval regarding

settlement of all the indictments that are pending. These pleas

will essentially be [a] 2+2+2+2+12 for a total of 20 years. We

would still have to have the court grant probation or suspend the

sentences or portions of them and we would be asking the court

to find that you are a “special needs” offender qualifying for

alternative sentencing as to these sentences. It is possible that

the court would rule that you would commence CMC after

release on parole and later be transferred to supervision under

parole or probation after a period of time on house arrest.

The reasons for accepting this offer are listed below. I

think this is the best shot at getting you out of incarceration at

the soonest possible date. At best, if the court orders CMC and

suspended sentences orsplit confinement, you might be released

to house arrest following your parole. There is no guarantee at

all and we can expect the state to contest such an outcome but

I sincerely do not think the Court will fail to give some relief if

not as much as we hope for. At the very worst, I think the

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court would suspend the sentences in the four indictments we

are pleading to which total 8 years, leaving the sentence of 12 @

60% sentence to serve. In our worst case scenario I think the

court would run this concurrent resulting in about a 7 year

sentence before being eligible for parole. This is still much,

much better than going to trial.

(Emphasis in original.)

At the guilty plea hearing, the trial court informed the petitioner that the agreed-upon

sentence was twenty years, that trial counsel would request relief from the sentence, and that

there was no guarantee of any relief. The petitioner stated that he understood. He further

stated that he was satisfied with counsel’s representation.

Based on the foregoing, we conclude that the post-conviction court did not err by

finding that trial counsel did not perform deficiently. In his letter to the petitioner, trial

counsel made clear that there were no guarantees of a sentence reduction. The trial court also

informed the petitioner during the guilty plea hearing that there were no guarantees his

effective sentence would be reduced. Moreover, based on the appellate record, which does

not include documentation of a request for sentence reduction or the hearing referred to by

the parties, we defer to the post-conviction court’s finding that trial counsel pursued the

sentence reduction and that the trial court denied any reduction. Finally, considering the

petitioner’s age, education, and familiarity with the criminal justice system as well as

counsel’s effective representation, we conclude that the trial court did not err by finding that

the petitioner entered his guilty pleas knowingly and voluntarily.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the

post-conviction court.

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NORMA MCGEE OGLE, JUDGE

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