IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 18, 2011

CHUDNEY VALARYCK GOFF v. STATE OF TENNESSEE

Appeal from the Circuit Court for Maury County

No. 18654 Jim T. Hamilton, Judge

No. M2010-01713-CCA-R3-PC - Filed January 13, 2012

The Petitioner, Chudney Valaryck Goff, appeals the Maury County Circuit Court’s denial

of post-conviction relief from his two convictions for sale of one-half gram or more of

cocaine in a drug-free school zone, a Class B felony, and his effective eight-year sentence.

On appeal, the Petitioner contends that (1) the trial court failed to make findings of fact and

conclusions of law required by Tennessee Code Annotated section 40-30-111(b) and (2)

counsel provided ineffective assistance by failing (a) to provide the Petitioner with the

State’s discovery materials before the Petitioner entered his guilty pleas, (b) to provide the

Petitioner with a defense, and (c) to communicate adequately and effectively with the

Petitioner. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and JEFFREY S. BIVINS, JJ., joined.

Michael D. Cox (on appeal) and John Russell Parkes (at the plea hearing), Columbia,

Tennessee, for the appellant, Chudney Valaryck Goff.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;

T. Michel Bottoms, District Attorney General; and Brent A. Cooper, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The Petitioner pled guilty to two counts of sale of cocaine in a drug-free school zone

and was sentenced to concurrent eight-year terms. At the post-conviction hearing, the
Petitioner testified that he did not receive the State’s discovery materials before he filed his

post-conviction petition. He said that after he received the State’s discovery materials from

post-conviction counsel, he saw a discrepancy between the Columbia Police Department’s

preliminary investigative report and the Tennessee Bureau of Investigation’s (TBI) official

forensic chemistry report. The police report showed one-half gram of cocaine was recovered

in the Petitioner’s case but the TBI report showed one and one-tenth grams of cocaine were

recovered. The discrepancy in the cocaine’s weight related to count two of the indictment.

The reports were received as exhibits.

The Petitioner testified that the discrepancy in the cocaine’s weight was not pointed

out by counsel and that he would have told counsel about the discrepancy had he known of

it. He said he would not have pled guilty had he known of the discrepancy because it showed

that someone tampered with the evidence. He said the only reason he pled guilty was

because counsel told him that there was a 90% to 95% probability of a conviction.

The Petitioner testified that he heard the State’s claim during opening statements that

the original plea offer given to counsel was twelve years’ confinement. He said he was never

told about the twelve-year offer. He agreed counsel negotiated a better plea offer because

the Petitioner received and accepted an eight-year plea offer.

The Petitioner testified that counsel never went to the scene of the crime to

investigate. He said counsel told him that counsel would have given the Petitioner a longer

sentence if counsel were the district attorney. He said that he could not “stand the thought”

of a trial with counsel representing him and that he felt he had already lost his case because

counsel provided him with no hope. He said counsel told him that he was within three

hundred feet of a school zone and that he was guilty. He said he met with counsel twice

about the eight-year plea offer.

The Petitioner testified that Corey Walker was convicted of possession with intent to

sell cocaine. Mr. Walker’s judgment of conviction was received as an exhibit. Upon

questioning by the trial court as to the judgment’s relevance, the Petitioner said, “It just

show[ed] the .5, what I got charged with, .5, and then they sent it to the lab, it jumped up a

Class. It went from a Class C to a Class B.”

On cross-examination, the Petitioner testified that Mr. Walker’s judgment was

important because it showed that sale of one-half gram of cocaine was a Class C felony

rather than a Class B felony. He did not know the State only had to prove that the cocaine

weighed one-half gram or more to establish a Class B felony. He understood that the weight

listed on the police report was only an estimate and that the TBI “officially weighed and

tested” the cocaine.

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The Petitioner testified that he did not know whether $100 bought one-half gram of

cocaine or bought one and one-tenth grams of cocaine. He agreed he watched a video

recording that showed his “passing toilet paper” but disagreed the recording showed him

selling cocaine. He agreed that the day he watched the recording was the same day he was

charged with coercion of a witness, but he claimed that the charge was dismissed. He agreed

counsel represented him when the coercion of a witness charge was dismissed.

The Petitioner testified that counsel met with him at the jail twice. He said that he was

released on bond for a portion of the time the charges were pending but that his bond was

revoked when he was charged with coercion of a witness. He said that counsel visited him

at the jail twice after his bond was revoked and that he met with counsel once before his bond

was revoked. He said that he did not receive letters from counsel while he was released on

bond but that he might have received an invoice. He said he received “numerous” letters

from counsel while he was in custody in response to his letters.

Upon questioning from the trial court, the Petitioner testified that counsel was

ineffective even though counsel negotiated an eight-year plea offer after the State originally

offered twelve years’ confinement and was able to convince the State to dismiss the coercion

of a witness charge.

Counsel testified that he was licensed to practice law in May 1987. He said that

approximately 75% to 80% of his work was criminal defense when he began practicing law

but that his practice at the time of the hearing was 50% criminal defense. He said he had

tried over 120 jury trials, over one-half of which were criminal jury trials. He said he could

only think of one attorney in Maury County who had handled as many Class A or B felony

drug cases as he had.

Counsel testified that he was familiar with the Petitioner’s case and that initially the

State thought the Petitioner’s charges were Class A felonies because they occurred in a drugfree school zone. He said he was able to convince the State that the facts supported offenses

that were only Class B felonies with 100% service. He agreed he and the prosecutor sat

down and discussed the meaning of the drug-free school zone statute during his

representation of the Petitioner. He said he shared the belief that felonious possession of

one-half gram of cocaine was a Class B felony. He was unaware of any law showing that

one-half gram of cocaine, either a sale or possession with the intent to sell, was a Class C

felony.

Counsel testified that the Columbia Police Department report and the TBI laboratory

report were in his case file and that they were both provided in the State’s discovery

materials. He said his file contained a confirmation letter stating that he provided the

discovery materials to the Petitioner. He said he reviewed the discovery materials with the

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Petitioner. He said that police reports were not admissible as evidence in a trial but that he

used them for purposes of cross-examination. He disagreed with the Petitioner that the

discrepancy in the cocaine’s weight would have had an impact on the Petitioner’s case at a

trial. He said, however, he would have used the discrepancy on cross-examination. He said

that even if he were successful in convincing a jury that one of the two charges was a Class

C felony, rather than a Class B felony, the Petitioner was a Range II offender. He disagreed

with the Petitioner’s claim that the discrepancy in the cocaine’s weight established that

tampering occurred. He said it was not unusual for a TBI laboratory drug weight to vary

slightly from an officer’s field test. He said that he never believed probation was a possible

sentencing outcome and that he wrote the Petitioner a letter stating his opinion.

Counsel testified that he could not recall the exact number of times he met with the

Petitioner but recalled two meetings at the jail, once before the bond revocation hearing, and

once to review the State’s discovery materials and watch the video recording. He said that

after he met with the Petitioner to review the discovery materials and watch the recording,

the Petitioner left the courthouse and threatened the State’s confidential informant. He said

the State moved to revoke the Petitioner’s bond. He said that he gave the Petitioner his

opinion that the State had a weak case on the coercion of a witness charge. He said he met

with the Petitioner to discuss a misdemeanor drug possession charge that was pending at the

same time as the other charges.

Counsel testified that he wrote the Petitioner a letter on April 9, 2009, to confirm that

the Petitioner was sent a copy of the State’s discovery materials and that he enclosed a copy

of the indictment with the letter. The letter stated that counsel watched the recording of one

of the two drug sales, that the recording was clear, that it appeared to be the Petitioner in the

recording, and that the Petitioner made a sale of “some substance.” The letter said the police

officers were prepared to testify at a trial. The letter included a copy of Tennessee Code

Annotated section 39-17-432 and stated the required minimum sentence of confinement. The

letter discussed the Petitioner’s Range II offender status, the Petitioner’s prior felony

convictions, and told the Petitioner the charged offenses were Class B felonies. The letter

was received as an exhibit. He wrote the Petitioner between six to ten letters during his

representation of the Petitioner.

Counsel testified that the State withdrew the eight-year plea offer after the Petitioner’s

bond was revoked. He said he advised the Petitioner by a letter that the offer had been

revoked but that counsel would attempt to renegotiate two concurrent eight-year sentences.

He said that he would have been prepared for a trial had the Petitioner decided not to plead

guilty. He said, however, that he believed there was an “extremely high likelihood of

conviction” and that the Petitioner faced potential consecutive sentencing as a Range II

offender on two Class B felonies. He said that he only gave the Petitioner his opinion about

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the possible outcomes of the Petitioner’s case and that he did not force the Petitioner to plead

guilty.

Counsel testified that he met with the Petitioner the night before the guilty plea

hearing. He said the Petitioner did not like pleading guilty, but he believed the Petitioner

understood what was happening at the guilty plea hearing. He said he thought the Petitioner

understood that he was not required to plead guilty and that he could reject the plea offer and

proceed to a trial. He said he wrote the Petitioner a letter on August 5, 2009, telling the

Petitioner that proceeding to a trial was against his recommendation because counsel thought

there was a 90% to 95% probability of a conviction. The letter stated that as a Range II

offender, the Petitioner faced a twelve-year sentence on each count. The letter was received

as an exhibit.

On cross-examination, counsel testified that one of the police recordings showed the

Petitioner wearing a white t-shirt, with braided hair, and smoking a tobacco or marijuana

cigarette. He recalled the recording showed the Petitioner making a hand-to-hand exchange.

He said the recording showed the Petitioner’s receiving something in his extended hand. He

did not recall the contents of the second video recording. He said, however, that he wrote

the Petitioner a letter confirming that he and the Petitioner watched one of the recordings

together and that the second recording was of poor quality or did not record.

Counsel testified that although the recording of the second sale did not show the

Petitioner engaged in selling cocaine, the State could have proven there was a second sale

without a recording. He said the officers were prepared to testify that they gave the

confidential informant “buy money,” that they patted down the informant before and after

the informant met with the Petitioner, and that the informant possessed cocaine after meeting

with the Petitioner but no longer possessed the money. He said that after he reviewed both

recordings, it was his recommendation that an eight-year sentence with 100% service was

a good result based on the State’s evidence.

On redirect examination, counsel testified that the mandatory minimum fine in similar

drug cases was approximately $2000 and that the judgments in the Petitioner’s cases showed

no fine. He could not recall the reason the fines and court costs were not imposed but said

he probably argued that the fines and court costs should not be imposed because the

Petitioner was going to serve the entire eight years in confinement. He said court costs were

approximately $600 to $900 in Maury County. He agreed that he successfully negotiated a

sentence that was four years less than the statutory minimum for the indicted offenses and

saved the Petitioner approximately $5000 to $6000 that could have been owed in fines and

court costs.

In denying the petition for post-conviction relief, the trial court said,

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It’s very plain to the Court . . . that had it not been for

[counsel’s] good work, [the Petitioner] would be staring down

the barrel of at least a 12-year sentence and five to six thousand

dollars in fines and costs. . . . Because of what [counsel] did,

instead of getting a twelve-year sentence, [the Petitioner] got an

eight-year sentence.

The trial court asked the Petitioner if he agreed with the court’s findings and the Petitioner

replied, “Yes, sir.” The trial court found that counsel successfully negotiated the dismissal

of the coercion of a witness charge. The trial court asked the Petitioner if he agreed and the

Petitioner replied, “Yes, sir.” The trial court found that the State agreed not to charge the

Petitioner fines and court costs because of counsel’s representation. The trial court asked the

Petitioner if he agreed and the Petitioner replied, “Yes, sir.” The Petitioner agreed with the

trial court that the State initially offered the Petitioner twelve years’ confinement but that

counsel was successful in negotiating eight years’ confinement. The trial court’s written

order stated that the petition was denied “for the reasons stated on the record.” This appeal

followed.

I

The Petitioner contends that the trial court failed to make findings of fact and

conclusions of law required by Tennessee Code Annotated section 40-30-111(b) (2006)

(amended 2009). The State counters that the trial court’s failure was harmless error because

the court made oral findings of fact and conclusions of law at the post-conviction hearing.

We agree with the State.

The Post-Conviction Procedures Act requires that the trial court “enter a final order

. . . [setting] forth in the order or a written memorandum of the case all grounds presented,

and . . . [stating] the findings of fact and conclusions of law with regard to each ground.”

T.C.A. § 40-30-111(b). Although the trial court’s order of dismissal in the present case falls

short of the statutory requirements, the court made oral findings that are preserved in the

transcript of the post-conviction hearing. We conclude that the trial court’s failure to make

written findings was harmless error. See T.R.A.P. 36(b); see also Travis R. Morris v. State,

No. E2009-00497-CCA-R3-PC, Rhea County (Tenn. Crim. App. Oct. 29, 2010), perm. app.

denied (Tenn. Feb. 17, 2011).

II

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The Petitioner also contends that he received the ineffective assistance of counsel

during the conviction proceedings. The Petitioner argues that counsel failed (a) to provide

him with the State’s discovery materials before the Petitioner entered his guilty pleas, (b) to

provide him with a defense, and (c) to communicate adequately and effectively with him.

The Petitioner contends that he would not have pled guilty had counsel been effective in his

representation. The State contends that the Petitioner failed to prove his claim by clear and

convincing evidence. We agree with the State.

The burden in a post-conviction proceeding is on the petitioner to prove his grounds

for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2010). On appeal, we

are bound by the trial court’s findings of fact unless we conclude that the evidence in the

record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.

2001). Because they relate to mixed questions of law and fact, we review the trial court’s

conclusions as to whether counsel’s performance was deficient and whether that deficiency

was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.

Post-conviction relief may only be given if a conviction or sentence is void or voidable

because of a violation of a constitutional right. T.C.A. § 40-30-103 (2010).

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is

made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient

and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing

that counsel’s performance fell below a reasonable standard is not enough because the

Petitioner must also show that but for the substandard performance, “the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland

standard has been applied to the right to counsel under article I, section 9 of the Tennessee

Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997). The performance prong requires a petitioner raising a claim of ineffectiveness to

show that the counsel’s representation fell below an objective standard of reasonableness or

“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

The prejudice prong requires a petitioner to demonstrate that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. A reasonable probability means a “probability sufficient

to undermine confidence in the outcome.” Id. When a petitioner pleads guilty, he must show

a reasonable probability that, but for the errors of his counsel, he would not have pled guilty.

See Hill v. Lockhart, 474 U.S. 52, 59 (1985); Adkins v. State, 911 S.W.2d 334, 349 (Tenn.

Crim. App. 1994).

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The record showsthat the trial court accredited counsel’stestimony. Counsel testified

that both the Columbia Police Department report and the TBI laboratory report were

provided in the State’s discovery materials and that he forwarded the discovery materials to

the Petitioner. A letter confirmed that the Petitioner was provided with the discovery

materials. Counsel said that he met with the Petitioner twice at the jail and that he met with

the Petitioner before the Petitioner’s bond was revoked. At one meeting, counsel reviewed

the State’s discovery materials and watched a recording with the Petitioner.

Counsel testified that he met with the Petitioner the night before the plea hearing. He

said that the Petitioner understood what was happening at the guilty plea hearing and that the

Petitioner was told he could reject the eight-year plea offer and proceed to a trial. Counsel’s

letter dated August 5, 2009, confirmed that he “strongly recommended” that the Petitioner

accept the eight-year plea offer. After evaluating the discovery materials, including the

recording and the witness statements, counsel thought the Petitioner would most likely be

convicted at a trial and told the Petitioner that he faced consecutive sentencing of twelve

years’ confinement on each count.

The record shows that counsel communicated with the Petitioner through six to ten

written letters. Counsel said, and a letter verified, that he watched the recording of one of

the drug sales, that the recording was clear, that it appeared to be the Petitioner in the

recording, and that the Petitioner made a sale of “some substance.” The letter told the

Petitioner that the police officers were prepared to testify at a trial and discussed the felony

classification of the charged offenses, the minimum required sentence if convicted, the

Petitioner’s Range II offender status, and the Petitioner’s prior criminal history.

The trial court found that counsel’s representation benefitted the Petitioner greatly,

including an eight-year sentence as compared to a twelve-year sentence, a remittance of

$5000 to $6000 in fines and court costs, and a dismissal of the felony coercion of a witness

charge. During the trial court’s findings of fact, the Petitioner agreed that counsel

successfully negotiated each of these benefits. The Petitioner did not establish his claim by

clear and convincing evidence and is not entitled to relief.

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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