### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Decemb er 11, 2001 Session
ALAN DALE BA ILEY v. STATE OF T ENNESSEE Appeal from the Circuit Court for Coffee County No. 30,566 L. Craig Johnson, Judge

No. M2001-01018-CCA-R3-PC - Filed February 8, 2002

The petitione

r, Alan D ale Bail ey, a ppeals the Coffee County Circ

uit Court’ s denial o f postconviction relief. The petitioner sought relief from hi s 1999 Co ffee County convictions of aggravated

burglary and sexual batter y on the b asis that his guilty pleas to those charges were unknowing and invo luntary and were prom pted by ineffective assistance of counsel. The pe titioner’s primary complaints focus upon trial counsel’s failureto inform the petitioner about the impact of a conviction of a sexual offense, including the risk that parole might not be granted. The trial court denied r elief af ter an evidentia

ry hear ing, and w e affir

m. Tenn. R. App.P. 3; Judgm ent of the Circuit C ourt Aff

irmed.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OE G. R ILEY and J OHN E VERETT W ILL IAMS , JJ., joined. Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the Appellant, Alan Dale Bailey.
Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney Genera l; and C. Michael Layne, District Attorney General, for the Appellee, State of Tennessee.
OPINION
The district public defender was appointed in January, 1999 to rep resent the petitione r on charges of aggravated

burglary and sexual battery. On May 25, 1999, the petitioner submitted, and the trial court approved, a plea agree ment. Pursuant to the a greement, the court imposed convictions of aggravated burglary, witha Range I, four-year incarc erative sentence, and of sexual battery, with a Ran ge I, two -year i ncarce rati v e sentence. The sentences wer e imposed to run concurrently. In his pet iti on fo r post-conviction relief, the petitioner challenges his convictions on the basis that his gu

ilty pleas were unknowing and involuntaryand were the product of ineffective assistance of counsel. Specifically, he alleges that the public def ender to ld him that, after serving 30 percen t of his four-ye ar sente

nce, he should be home in 14.4 mont hs. He cl aims that t

he public-2-

defender did not tell him that he would be labeled a sex offender, would undergo DNA identification as a sex offender, and would be required to serve 100 perce nt of his four-year sentence before being released.
At

the post-conviction evidentiary hearing , both the petitioner and his wife testified that the public defender

and his investiga

tor told the

m that the p etitioner , with good behavior , would be released from custody in fourteen months. The petitioner testified that his counsel failed to advise him that he would be listed on a sex-off ender r egistry f or the re st of his life, tha

t he would

have to provide a DNA sample for sex-offender identific ation, tha

t his pictur

e would appear on the internet identifying him as a se

x offend er, and t hat he wou ld have to serve the entirety of the four-yea r sentence in prison b ecause of his sex -offen der statu s. The pe titioner t estified that, at the time of

the hearing, he had already served eighteen months of his sen tence a nd would be required to serve the entire four

years. H e stated

that he wo

uld not hav e pleade d guilty ha d he known

about the se aspects of his plea.
The public defender’s inve st igator testified that he presented the plea offer to the petitio ner at counsel’s request and calculated for him the r elease eligibility date of 14.4 months , being 30 perce

nt of th e four-year sentence. The investigator did not guarantee a release date; he testified that he “ would nev er tell a nybody the

y would ge

t out at [th e relea se eligibi lity] time b ecause [he] simply [did] not know.”

The district public defender testified at the evidentiary hearing that he began representing th e p etitioner prior to the preliminary hearing. Throughout the proceedings, the petitioner wanted to

go to trial . Counsel stated that the case had been fully investigated, he had obtained complete discovery, and he was ready to try the c ase. Just be fore trial, how ever, a t a meeting in counsel’s office, the petitioner decided to acc ept the state’s offer of an effective four-year sentence. Counsel tol d the petitioner tha t, with good

behavior , he would

be eligib le for pa

role in 14.4 months, that counsel could not guarantee he would be releas ed upon hi s relea se eligibi lity date, and that the D epartme

nt of Corr ection “ runs by its rules rather than by law a lot of times.” Counsel testified that, prio

r to the ple a, he told

the petiti oner abo

ut the DNA

test. Additionally, the petitioner read the proposedconviction judgments, which stated the requirement of the DNA test. Before the plea, counsel also gav e th e petitioner a copy of the statutes proscribing the charge d offenses and setting forth the sentencing guidelines.

Counsel testified that he thought the plea offer was beneficial to the petitioner, who otherwis e could hav e been c lassifie d as a Range II offender. Counsel denied making any promises to infl ue nce the petitioner into pleading or coercing the petitioner into making the plea. Counsel admitted telling the petitioner that he “had the keys to the jail in his pocket.”

The transcript of the plea -submis sion hearing was admitted in the post-conviction evidentiary hearing

and reve als that th

e trial c ourt thor

oughlyadministered the customary litany of explanations of rights and admonitions about waiving the rights. The petitioner acknowledged under oath that he was making the plea freely, voluntarily, and without fear. He acknowledged that he-3-

understo od the nat

ure of the charg es, that coun sel had e xplained the eleme

nts of the offenses, and that he was pleading guilty because he was guilty.

Before examin ing the petitioner’s claims that his plea was vitiated by the lack of pertinent infor matio n and was prompted by ineffective assistance of c ounsel, we review a few familiar principles of law. Post-conviction relief i s availa ble when “a conviction or s entence is void or voidable because of the abridgment ” of a constitutional right. Tenn. Code Ann. § 40-30-203 (1 997). The burden rests upon a post-conviction petitioner to establish his claims by clear and convincing evidence. Id . § 40-30-210(f).

When a post-con viction pe titioner s eeks re

lief on the basis of ineffective assistance of counsel, he or she must establish that the service render ed or the advice given was below “the range of competence demanded of attorneys in cr iminal cases.” Baxt er

v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Also, the petitio ner must show that the deficie ncies “a ctually h ad an ad

verse effect on the defense.” Strickland v. Washington , 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). Should the petitioner fail to establish either factor, he or she is not entitled to relief. See id. at 697, 104 S. Ct. at 2069. “The Strickland standard has been applied to the right to counsel under Article I, Section 9 of the Tennessee Constitution.” Michael E. Christian

v. State , No. E2000-00922-CCAR3-PC, slip op. at 9 (Tenn. Crim. App., Knoxville, June 24, 2000), perm. app. denied (Tenn. 2001);
see State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989). A c ourt scrutinizing a claim of ineffective assistance of counsel must indulge a “strong p resumptio n that cou

nsel’s c onduct fa

lls within the wide range of reasonable prof essional assistance.” Strickland , 466 U.S. a t 689, 104 S. Ct. at 2065.
When a post-conviction petitioner asserts that ineffective assistance of trial counse l re sulted in a guilty plea the “prejudice” prong of Strickland must focus “on whether counsel’ s constituti onallyineffective performance a ffected theoutcome of the plea process.” Hill v. Loc

khart , 474 U.S. 52, 58-59, 106 S. Ct. 366, 37 0 (1985). T he petitio ner must e stablish “ a reaso nable probabil ity that, but for counsel’s errors, he would not have pleade d guilty and would have insisted on going to trial.” Id .; see Hick s v. State , 983 S.W.2d 240, 246 (Tenn. Crim. App . 1998). I n the context of ineffective assistance of counsel that resulted in a guilty plea, the petitioner is not required to demonstrate that

he likely would have fared better at trial than he did by pleading guilty, although evidence of this type can be persuasive that he would have insisted on his right to a jury trial. See Hill , 474 U.S. at 59-60, 106 S. Ct. at 370.

The Due Proc ess Clause of the United States Constitution requires that guilty pleas be knowing and vo lu ntary. State v. Wilson , 31 S.W.3d 189, 194 (Tenn. 2001); see Boykin v. Alabama , 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969). The cons titutional mandate that guilty pleas be knowing is essentially fulfilled by the court informing the ac c used of his or her constitutional rights ag ainst self -incrimi nation, to

confron t witnesse s, and to

trial by jury. Boykin , 395 U.S. at 243, 89 S. Ct. at 1712.

In the present case, we

discern from our review of the rec ord before us that the parties and the court below were at a loss to comprehend any ba sis for the petitioner being required to serve1 We are at a loss to c om preh end how this statutory provisi on would affect t he service of the aggravat ed bur glary senten ce, the leng thier o f the tw o co ncu rren t senten ces. -4- his full sentence by virtue of being con

victed of a sexual offense . Our review of T ennesse e statute s, however, reveals several bases for limiting or preventing parole to sexual offenders. Code section 40-35-321(c) providesthat a person convicted of sexual battery, inter alia , must submit a specimen for DNA analysis, and such a person may not be r eleased u ntil he or she provides the specimen. Tenn. Code Ann. § 40-35-321(c) (Supp. 2001). Section 41-21-235(b), as it applied to the time of the petitione

r’s offe nses comm

itted on Au gust 26, 19 98, provid es, “Suc cessf

ul pa rticipation and completion of [a sexual abus e treatment program for incarce rated sex offenders] shall be a consideration for parole from a correctional institution.” Id . § 41-21-235(b). Finally, Code section 40-35-50 3(c) pr

ovides, No person convicted of a sex crime shall be release d on parole unless a psychiat rist or lic ensed psy chologist designatedas a health service provider has examined and

evaluated such

inmate and certif

ied that, to a reasonabl e medical certainty, the inmate does not pose the likelihood of committ

ing sexua

l assaultsupon rele ase f rom confine ment.
Id . § 40-35-503(c). 1
I. Knowing Guilty Plea

. The Boy kin requirement that guilty pleas be knowing and voluntary may stand independ ently of the claim that an unknowing or involuntary guilty plea is the result of ineffective assistance of counsel. As we have pointed out above, the constitution requires that, to satisfy due process , the trial

c ou rt must inform the guilty-pleading defendant of his rights to avoid selfincrimination, to confr

ont witnes ses, and t

o be trie d by a jury . Howeve r, “a gui lty plea isn o t rendered constitutionally infirm because a criminal defendant is not informed about ‘the deta ils of his parole eligibility, including the possibility of being ineligible for parole.’” Rickey Sams v. St

ate , No. 03C01-9511-CC-00368, slip op. at 4, (Tenn. Crim. App., Knoxville, Nov. 14, 1996) (quoting King v. Dalton 17 F.3d 151, 154 (6 th Cir. 1994), perm. app. denied (Tenn. 1997). Thus, in the present case, the petitioner’s claim that he should have been informed of the various consequences of being convicted of a sex offense is not a constitution-based claim. As we have also pointed out above, post-conviction relief is only ava ilable to addressthe abri dgment of a constitu

tional rig ht. Therefore, the petitioner’s claim that he had a right to be info

rmed of th

e sex-of fense c onditions to or consequences of his conviction and sentence is not cogniza ble in this proceeding. Id

.

II. Ineffective Assistance of Counsel
. A. Performance Prong.-5- We now revi ew the a

dequac y of coun sel’s pe

rforman ce in ass isting the p etitioner to enter a knowing and volunt a ry plea. This cour t has held that “fa ilure of c ounsel to d

iscuss pa role eligibility or the parole condition of successfully completing a sexual offender trea tmentprogram does not constitute inef

fectiv e assistan ce of counsel.” Ricky R utledge v . State , No. 01C01 -9706-CC00201, slip op. at11 (Tenn. Crim. App., Nashville, July 2, 1998), perm. app. denied (Tenn. 1999) (basing h olding upon

the princ iple that “‘silence by counsel’ on ‘any collatera l consequences of a plea’ does not ‘ fall belo w the range of com p etence demanded of attorneys in criminal cases,’” quoting Adkins v. State , 911 S.W.2d 334, 350 (Tenn. Crim. App. 1994)); see also Rickey Sams , slip op. at 5 (counsel provided effective assistance by informing guilty-pleading defenda nt of his re

lease eligibility date, despite n ot informi ng him of the applic ability and eff ect of the parole

provision

in Code section 40-35-50 3(c)); Rog ers Lamont McKinley

v. State , No. 03C01-9308-CR-00255, slip op. at 9-11 (Te nn. Cr im. App., Knoxville, Aug. 17, 1994) (refusing to find that “the failure of the Defendant’s attorneys to advi se th e Defendant of [the terms of Code section 40-35- 503(c)] constituted ineffective assistance of counsel”). Thus, a defendant’s co unsel doe s not defi ciently perform by remaining silent on the matter of the “ co llateral consequences” implicated by that defendant pleading guilty to sexual battery.

We must no w point out, however , that Ricky Rutledge was “not a case, as in Hill v. Lockhart . . . in which counsel [had] given erroneous advice.” See Ricky Rutledge , slip op. at 10 n.6. In the present case, however, counse l gave erroneous advice, as oppose d to mere ly remain ing silent, when he told the

petitione r that the petitione r held “t he keys to

the jail in his pock

et.” In e ffect, couns el told the petitioner that he had it within his power to win release once he had at tained th e releas e eligibility

date. Be cause Co de secti on 40-35- 503(c) c onditio ns the release of a person convictedof committ

ing a “se x crime”upon a pr

ofession al’s ce

rtif ication that the offender is not likelyto commit f

urther s exual as saults, the inmate does nothold “the keys to the jail.” Such an inmate , even one who has provided the DNA sampling and who has completed the treatment program , lacks the power to win his release. To the extent t hat counsel ventured this bit of inaccurate advice, he perf ormed deficiently in representing the petitioner.

B. Prejudice Prong.
In the wake of this limited instance of deficient performance, howeve r, we conclude that the petitioner has failed to establish the “prejudice prong” of Strickland and Hill

. We r ealize that the petitioner

testified at

the evidentiary hearing that he would have esche wed the plea had he known that he wo

uld be bra nded a se x offend er and th at he would serve more tha n 14.4 month s in prison. This testim

ony, howe

ver, doe s not ipso facto

establish that he would not have pleaded guilty butfor coun sel’s d eficien t p erforma

nce. The attempt to

establish the “but f

or” cla im through

his own testimony e

xclusively is frau ght with the risk that the finder of fact might not accredit him as a witness. See Sne ed v. Stat e , 942 S .W.2d 567, 56 9 (Tenn. Crim. App. 1996) (trial judge who accepted guilty plea and later preside d over post-conviction evidentiary hearing “was in a prope r position to c onsider t

he petitio ner’s c

redibilit y at both a

ppeara nces” and to give “greater credence to his responses” during the plea hearing than to his claims during the evidentiary hearing). Indeed, in the present case, the post-conviction court specifica lly found that the petitioner was not a credibl e-6-

witness. We defer

to the lower court’s resolution of credibility issues. Massey v. State , 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Taylor v. S tate , 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993). Moreover, as Hill

suggests, the probability that the petitioner might have received a more severe penalty following a trial may, in a proper case, serve asan indicator that the petitioner neverth eless would hav e pleade d guilty ha d he known

all the r elevant

facts. G iven that he would be characterized as a sex of fender, forced to undergo DNA testing, subjecte d to monitoring after leaving custody, and put at risk for being denied any parole - - a ll because of his status in being convictedof

sexual battery - - he nevertheless would have face d the same prospects in the wake of a jury conviction. Indeed, the pr ospects could well have been exacer bated by the imposition of a longer t erm of incarceration. See Wade v. State , 914 S.W. 2d 97, 104 (Tenn. Crim. App. 1 995) ; Carl A. Jones v. State , No. 02C01-9204-CC-00099, slip op. at 9 (Ten n. Crim. Ap

p., Jack son, Oct. 21, 1992) (de spite cou

nsel’s fa ilure to a cquaint p etitioner

with Co de section 40-35-503(c), no prejudice was shown

because petitione r “could not have a

voided the se requi

rements” by goin g t o trial). Given this circumstance, we cannot conclude that the pe titioner has established by clear and convincing evidence that he would not have pleaded guilty but for counse l’s performance. Therefore, for thes e reaso ns, we hol d that the petitio ne r has failed to establish the prejudice prong promulgated in Strickland and Hill , and con sequentl y he has f ailed to e stablish

his claim of i neffective assis tance of counsel.
III. Conclusion
. We affirm the denial of post-conviction relief.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE