IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 9, 2019

DEVIN WHITESIDE v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-16-278 Kyle Atkins, Judge

No. W2018-02051-CCA-R3-PC

The petitioner, Devin Whiteside, appeals the denial of his petition for post-conviction 

relief, which petition challenged his guilty-pleaded convictions of aggravated robbery, 

alleging that his guilty pleas were invalid because he was deprived of the effective 

assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER, and J. ROSS DYER, JJ., joined.

Alexander D. Camp, Jackson, Tennessee, for the appellant, Devin Whiteside.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant 

Attorney General; Jody S. Pickens, District Attorney General; and Alfred L. Earls, 

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

OPINION

In December 2014, the Madison County Grand Jury charged the petitioner 

with two counts of aggravated robbery and three counts of identity theft. State v. Devin 

Whiteside, No. W2016-00671-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Jackson, 

Jan. 30, 2018). There is no recitation of facts in the record on appeal or below, but we 

glean from the record that the victims, Mr. McCarver and Ms. Edgar,1 were in a vehicle 

when the petitioner and co-defendant Gerald Hampton robbed them at gunpoint. The 

petitioner then used one of the victims’ credit cards to make a purchase. Pursuant to a 

negotiated plea agreement, the petitioner pleaded guilty to two counts of aggravated 

robbery and received an effective sentence of eight years’ incarceration with an 85 

 

1 Mr. McCarver and Ms. Edgar’s first names are not provided in the record.

08/30/2019
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percent release eligibility, and the State dismissed the identity theft charges. Id., slip op. 

at 3.

The petitioner filed a pro se motion to withdraw his guilty pleas in 

December 2015, alleging that his guilty pleas were the result of “‘coercion, duress and 

fear from [counsel].’” Id. (alteration in original). The trial court denied the motion, and 

this court affirmed the denial on appeal. Id., slip op. at 6-7.

While his motion to withdraw his pleas was pending before this court, the 

petitioner filed a pro se petition for post-conviction relief, alleging that his sentence was 

illegal and that his trial counsel performed deficiently. The post-conviction court 

appointed counsel and held the petition in abeyance pending the outcome of the appeal on 

his motion to withdraw his pleas. After the resolution of that appeal, the petitioner filed 

an amended petition for post-conviction relief incorporating the pro se petition and 

reiterating his claim of ineffective assistance of counsel.

At the October 2018 evidentiary hearing, the petitioner testified that he met 

with trial counsel “[m]aybe three times” in the year leading up to his scheduled trial. 

They communicated primarily through writing and “[v]ery seldom . . . talked on the 

phone.” The petitioner stated that he had asked trial counsel to interview several 

witnesses, including Gerald Hampton, Investigator Aubrey Richardson, the victims, and 

Alexis Blue, but counsel did not speak with them. Counsel told him that she could not 

speak with Mr. Hampton, the petitioner’s co-defendant, without the permission of the codefendant’s attorney; the petitioner never heard back from trial counsel on her efforts to 

contact the other witnesses. The petitioner stated that Ms. Blue was later apprehended in 

connection to this case and that she made a statement to law enforcement, but the 

petitioner did not learn about that statement until two days prior to his plea deadline. He 

stated that if he had learned of Ms. Blue’s statement sooner, he would have been better 

equipped to know “how to proceed going to trial,” explaining that, other than Ms. Blue, 

Mr. McCarver was the State’s only witness.

The petitioner testified that counsel failed to file several motions that he 

had requested. First, he asked counsel to provide notice of an alibi defense, stating that 

his aunt could provide an alibi for him and asserting that this alibi would have proven his 

innocence. He also asked counsel to move to suppress Mr. McCarver’s identification of 

the petitioner, contending that Mr. McCarver was inconsistent and unsure in making the 

identification. Finally, the petitioner stated that he asked counsel to move to compel the 

identity of the State’s confidential informant. Although counsel did not file that motion, 

the petitioner acknowledged that he learned the identity of the informant when he 

received his discovery materials.
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The petitioner contended that he did not know that he could not appeal his 

guilty pleas. During the plea submission hearing, he was “unsure of accepting the plea,”

and the court gave him time to talk with counsel and think about the decision. The 

petitioner said that trial counsel told him that he would be convicted if he went to trial

and would receive “two 12-year sentences consecutively at 85 percent.” The petitioner 

testified that, at that point, he felt that his options were to either take the plea deal or to 

“go to trial with an unsure lawyer.” He described counsel as “already defeated” because 

“she told me I would lose” at trial. He acknowledged telling the trial court that he had 

not received any promises or threats related to his guilty plea, but he nonetheless 

maintained that trial counsel had promised him that he would lose at trial.

During cross-examination, the petitioner acknowledged that he heard the 

State’s evidence at the preliminary hearing and was, thus, aware of the facts the State 

would have presented against him if he had gone to trial. He acknowledged that Mr. 

McCarver identified the petitioner as the perpetrator, but he reiterated that Mr. McCarver 

was “unsure” in making that identification. The petitioner acknowledged that, during his 

plea submission hearing, the judge informed him of his right to trial, but the petitioner 

chose to forgo that right because he “had a[n] unsure lawyer” who had “already told me I 

was going to lose.”

The petitioner acknowledged that trial counsel had read Ms. Blue’s 

statement to him a few days before his plea hearing. He had asked counsel for a written 

copy of the statement, but she did not provide him with one. He explained that he asked 

the court about the possibility of withdrawing his pleas because he was concerned about 

Ms. Blue’s statement and because he did not want to take the plea deal, but he felt that his 

“options w[ere] slim and running out.” He said that he told the court that he was satisfied 

with counsel’s representation despite her not having filed the requested motions because 

he intended to withdraw his plea “later on down the road.” He chose not to raise his 

concerns during the plea hearing because he preferred to wait until he withdrew his plea. 

The petitioner asserted that he repeatedly told trial counsel that he did not want to take 

the State’s plea offer, but he ultimately accepted it because “[t]hat’s what I had to 

accept.” He acknowledged that the decision to plead guilty was his and that he was not 

forced to do so.

On redirect examination, the petitioner recalled asking the court twice about 

withdrawing his plea, and the court proposed resetting the plea hearing to give the 

petitioner time to consider his decision. At that time, counsel spoke with the petitioner in 

the court’s holding cell and, when the petitioner told her that he wanted to go to trial, 

counsel told him that he would lose his case if he went to trial. The petitioner recalled 
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counsel’s telling him that his co-defendant had already pleaded guilty and that the victim 

would identify him as the perpetrator. The petitioner reasoned that, because trial counsel 

guaranteed that he would receive maximum, consecutive sentences, he did not have an 

option other than to plead guilty. He stated that he had lost faith in his attorney and

asserted that he was under duress and coercion when he entered his plea.

Trial counsel testified that she began working on the petitioner’s case 

between his preliminary hearing and his indictment. His family had told her that the 

petitioner was at an orientation at the Tennessee College of Applied Sciences at the time 

the aggravated robbery was alleged to have occurred. In investigating the petitioner’s 

alibi, she learned that the petitioner “did not show up for the . . . orientation.” She stated 

that she would not file a motion for an alibi defense if she could not support the motion 

because “the State and the Court are going to be looking for you to back that up” and 

because the lack of substantiation could be damaging to the defense. In preparing for this 

case, counsel reviewed all discovery materials, met with the petitioner, and talked to the 

petitioner and his family over the telephone. She also obtained the transcript from the 

preliminary hearing. She testified that she found no legal basis on which to suppress the 

victim’s identification of the petitioner.

Trial counsel obtained all of the State’s evidence through the district

attorney’s open-file policy, but she did not receive Ms. Blue’s statement until “later in the 

game.” Although she gave the petitioner a copy of all discovery materials, counsel did 

not give him a copy of Ms. Blue’s statement, acknowledging that that was “just a slipup,” but stating that she “did go over it with him” and “read it to him.” She also told the 

petitioner her opinion on the statement.

The State initially offered the petitioner a plea agreement that provided for 

a 12-year sentence to be served at 85 percent release eligibility, but trial counsel was able 

to negotiate it down to eight years with the dismissal of the identity theft charges. 

Counsel stated that, during the plea submission hearing, the petitioner asked the court 

about withdrawing his plea, and the court gave him time to discuss the plea with counsel. 

She told the petitioner that the plea deal “was the best outcome that he was going to get, 

considering the facts of the case.” She “explain[ed] to him that based on the facts of the 

case and the evidence that would be presented at trial that there was a strong likelihood 

that he would be convicted” of all of the charges. She also explained to him “that there 

was the possibility of . . . consecutive sentencing, and that he was running that risk if he 

went to trial in this case.” Counsel contended that she was prepared to go to trial, but she 

told the petitioner that “he was running a big risk” if he rejected the plea offer because 

“the likelihood of conviction was high.” Counsel stated that it was the petitioner’s 

decision to take the plea agreement.
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Counsel explained that the petitioner’s two aggravated robbery convictions 

related to two different victims who were in the same vehicle at the time of the robbery. 

She said that the petitioner “felt that because he wasn’t identified by the female [victim] 

that he couldn’t be convicted of that one.” Counsel explained to him, however, that one 

victim’s inability to identify him “didn’t matter.” Counsel affirmed that she explained to 

the petitioner all of his rights and discussed all of the evidence. She maintained that she 

was prepared and would have taken the case to trial if the petitioner had wanted to.

During cross-examination, trial counsel could not recall specifically 

whether the petitioner had requested a written copy of Ms. Blue’s statement, but she said, 

“If I failed to give him a physical copy of it, then that’s my bad. But as far as him 

knowing what was in that statement, he was fully aware of that. We went over it.” She 

agreed that Ms. Blue’s statement was “somewhat exculpatory.” Counsel was unable to 

speak with Ms. Blue because Ms. Blue “was on the run for the longest” time, and counsel 

could not “track her down.” Counsel acknowledged that the petitioner asked her to speak 

with his co-defendant, but the co-defendant’s attorney would not permit her to do so. At 

the petitioner’s request, counsel also attempted to speak with the victims. Although she

was unable to get in touch with them, she had the transcript of their testimony from the 

preliminary hearing. She stated that she spoke with Investigator Richardson “several 

times.” Counsel said that she explained to the petitioner that there was no basis on which 

to suppress the male victim’s identification of the petitioner and that she could not move 

to suppress the female victim’s failure to identify him. She asserted that she kept the 

petitioner apprised of “everything” that she did in his case.

Counsel did not know why the petitioner was hesitant to take the plea deal 

and said that when she first explained the deal to him, the petitioner expressed that he felt 

that he had to take it because Ms. Blue was going to testify against him. Counsel told the 

petitioner that he could still go to trial, but the petitioner chose to take the plea deal

because he believed that trial would not “work out.” Trial counsel stated that she 

expected the court to strike the plea agreement after the petitioner asked about 

withdrawing his plea. When she spoke to the petitioner in the holding cell, she “was very 

straightforward” and “asked him what the heck he was doing.” She explained to the 

petitioner that he could later move to withdraw his plea but that his chances of 

succeeding on such a motion were “slim to none.” Counsel further explained to the 

petitioner “what he was facing if we went to trial, what type of evidence we would be 

looking at, and what [her] professional opinion was as far as what the outcome would 

potentially be.” Counsel denied guaranteeing the petitioner that he would be convicted at 

trial; rather, she told the petitioner that “the likelihood of conviction [wa]s very strong.”
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The post-conviction court denied relief finding, as relevant to this appeal, 

that the issue of whether the petitioner’s guilty pleas were involuntary and unknowing as 

a result of counsel’s deficient performance was previously determined by the denial of 

the petitioner’s motion to withdraw his pleas, stating, “He was fully advised of his rights 

during that guilty plea proceeding. He was represented. He indicated to the [c]ourt on 

that occasion, and reaffirmed it again here today, that he was satisfied with his attorney at 

the guilty plea hearing.” The post-conviction court, however, went on to address the 

specific allegations of ineffective assistance of counsel that the petitioner raised in his 

petitions. The court accredited trial counsel’s testimony, finding that counsel made a 

reasonable attempt to interview every witness that the petitioner mentioned, made a 

strategic and informed decision to not pursue an alibi defense, had no basis on which to 

move for suppression of issues of identification, and informed the petitioner of Ms. 

Blue’s statement before the plea hearing.

In this timely appeal, the petitioner reiterates his claim of ineffective 

assistance of counsel, arguing that counsel failed to fully explain the consequences of the 

guilty plea and that counsel’s deficient performance caused him to enter a guilty plea 

under coercion and duress. The State asserts that the petitioner’s claim of ineffective 

assistance of counsel was previously determined. Alternatively, the State contends that 

the petitioner’s claim has no merit.

We first address the State’s assertion that the petitioner’s claim of

ineffective assistance of counsel was previously determined. To be sure, in his motion to 

withdraw his pleas, the petitioner argued that his pleas were involuntary because counsel 

had failed to provide him with certain information relevant to his case. See Devin 

Whiteside, slip op. at 7. Although that claim related to trial counsel’s conduct, this court 

did not consider the issue as an ineffective assistance of counsel claim under Strickland v. 

Washington. See id., slip op. at 6-7; see also Strickland v. Washington, 466 U.S. 668

(1984). Therefore, the ineffective assistance of counsel claim has not been previously 

addressed on the merits and, consequently, has not been previously determined. See

T.C.A. § 40-30-106(h) (“A ground for relief is previously determined if a court of 

competent jurisdiction has ruled on the merits after a full and fair hearing.”). As such, we 

will address the merits of the petitioner’s claim.

We view the petitioner’s claim with a few well-settled principles in mind. 

Post-conviction relief is available only “when the conviction or sentence is void or 

voidable because of the abridgment of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A postconviction petitioner bears the burden of proving his or her factual allegations by clear 

and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to 
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the post-conviction court’s findings of fact the weight of a jury verdict, and these findings 

are conclusive on appeal unless the evidence preponderates against them. Henley v. 

State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.

Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no 

deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 

(Tenn. 2001).

Before a petitioner will be granted post-conviction relief based upon a 

claim of ineffective assistance of counsel, the record must affirmatively establish, via 

facts clearly and convincingly established by the petitioner, that “the advice given, or the 

services rendered by the attorney, are [not] within the range of competence demanded of 

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

that counsel’s deficient performance “actually had an adverse effect on the defense,” 

Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, 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.” Id. at 694. Should the 

petitioner fail to establish either deficient performance or prejudice, he is not entitled to 

relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, 

. . . that course should be followed.” Strickland, 466 U.S. at 697.

When considering a claim of ineffective assistance of counsel, a reviewing 

court “begins with the strong presumption that counsel provided adequate assistance and 

used reasonable professional judgment to make all significant decisions,” Kendrick v. 

State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears 

the burden of overcoming this presumption,” id. (citations omitted). We will not grant 

the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or 

provide relief on the basis of a sound, but unsuccessful, tactical decision made during the 

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 

1994). Such deference to the tactical decisions of counsel, however, applies only if the 

choices are made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 

521, 528 (Tenn. Crim. App. 1992).

In the context of a guilty plea, the petitioner must establish that “counsel’s 

constitutionally ineffective performance affected the outcome of the plea process” by 

establishing “a reasonable probability that, but for counsel’s errors, he would not have 

pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 

59 (1985); see Hicks v. State, 983 S .W.2d 240, 246 (Tenn. Crim. App. 1998).
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Apart from whether a guilty plea is the product of ineffective assistance of 

counsel, it is invalid if otherwise made unknowingly or involuntarily. “Whether a plea 

was knowing and voluntary is an issue of constitutional dimension because ‘[t]he due 

process provision of the federal constitution requires that pleas of guilty be knowing and 

voluntary.’” State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2000) (alteration in original) 

(quoting Johnson v. State, 834 S.W.2d 922, 923 (Tenn. 1992)). A plea “may not be the 

product of ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or 

blatant threats.” Wilson, 31 S.W.3d at 195 (alterations in original) (quoting Boykin v. 

Alabama, 395 U.S. 238, 242-43 (1969)); see also State v. Mellon, 118 S.W.3d 340, 345 

(Tenn. 2003) (citing Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993)).

Both claims of ineffective assistance of counsel and involuntary guilty plea 

are mixed questions of law and fact. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); 

State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 

461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s 

factual findings, our review is de novo, and the post-conviction court’s conclusions of 

law are given no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State 

v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

Upon our review, we conclude that the record supports the post-conviction 

court’s denial of post-conviction relief. The petitioner alleges that counsel failed to fully 

inform him of the consequences of his plea, specifically, that he would be unable to 

appeal it. Counsel’s accredited testimony, however, established that she told the 

petitioner that a motion to withdraw his plea would likely be unsuccessful, and, during 

the plea submission hearing, the petitioner testified that he understood that, in entering a 

guilty plea, he was giving up his right to trial and appeal. Even if counsel performed 

deficiently by failing to inform the petitioner that he could not appeal his guilty plea, the 

petitioner has failed to establish that he was prejudiced by counsel’s error because the 

trial court specifically informed the petitioner of the matter in the plea hearing.

The petitioner also argues that counsel coerced him into pleading guilty by 

promising him that he would be convicted and would receive the maximum sentence if he 

went to trial. This claim is belied by counsel’s accredited testimony that she did not 

guarantee a conviction, but rather, she told the petitioner that “the likelihood of 

conviction [wa]s very strong.” Trial counsel’s testimony also established that she 

explained to the petitioner his sentencing exposure and the likely outcome of taking the 

case to trial and that she told the petitioner that the plea agreement was “the best outcome 

that he was going to get” considering the State’s evidence. In consequence, the petitioner 

has failed to establish that his guilty pleas are invalid because of counsel’s deficient 

performance.
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Accordingly, the judgment of the post-conviction court is affirmed.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE