IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 15, 2007

MARSHALL DONNELL JOHNSON v. STATE OF TENNESSEE

 Direct Appeal from the Circuit Court for Rutherford County

No. 57470 James K. Clayton, Jr., Judge

No. M2006-02281-CCA-R3-PC - Filed November 15, 2007

The petitioner, Marshall Donnell Johnson, appeals the denial of his petition for post-conviction

relief, arguing that the post-conviction court erred by finding that he received effective assistance

of trial counsel and entered his guilty plea knowingly and voluntarily. Following our review, we

affirm the denial of the petition. 

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

ALAN E.GLENN,J., delivered the opinion of the court, in which JERRY L.SMITH and JOHN EVERETT

WILLIAMS, JJ., joined.

Howard W. Wilson, Murfreesboro, Tennessee, for the appellant, Marshall Donnell Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;

William C. Whitesell, Jr., District Attorney General; and Trevor H. Lynch, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

In October 2003, the Rutherford County Grand Jury indicted the petitioner on one count of

burglary other than a habitation, a Class D felony, and one count of theft under $500, a Class A

misdemeanor. On August 27, 2004, the petitioner pled guilty to the burglary count of the indictment

in exchange for a ten-year sentence as a Range III, persistent offender in the Department of

Correction, with the trial court to later determine whether the sentence was to be served concurrently

or consecutively to the petitioner’s Sumner County convictions. The judgment in this case reflects

the petitioner’s sentence was ordered to be served consecutively to other sentences in Williamson,

Davidson, and Sumner Counties, which he was serving on parole or probation at the time of the

instant offense. It was mandatory that these sentences were ordered consecutive, pursuant to
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Tennessee Code Annotated section 40-35-115(b)(6). Pursuant to the terms of the plea agreement,

the theft count of the indictment was dismissed. At the guilty plea hearing, the assistant district

attorney set out the following factual basis for the crime:

Your Honor, had this matter gone to trial, the State would have offered

evidence and presented testimony to establish that on or about April 15th of 2002,

[the petitioner] entered into Style America, a business in Smyrna, causing damage to

the back door. When he entered into Style America, there was a small amount of

change . . . . That was listed as being taken from the business. While inside Style

America, he busted a hole through Style America’s walls into the next business over,

which was . . . Sally’s Beauty Salon. In any event, your Honor, he busted a hole

through one wall, went into the other one. He went into the beauty salon and set off

the alarm. He exited back through the initial hole and went out through the back.

He was picked up later after some instances, I believe occurring in Sumner

County, where he made statements regarding this as well. That was in October of

2002. Detective Rick Hall with the Smyrna Police Department interviewed [the

petitioner]. He gave a written statement verifying him stopping in the parking lot,

breaking into the first business, taking some change, stated that there was no money

in there, rather bills in there, but he did take the change, busted the hole through the

wall to go into the next business. And that’s when the alarm went off, and that’s

when he admitted to leaving through the same hole and leaving out through the back

door of Style America. 

At the guilty plea hearing, the petitioner stated that he understood the trial court would be

making a later determination as to whether his sentence would run concurrently or consecutively to

his Sumner County sentences and asked if there was anything in particular the court would consider

in its decision. The trial court responded: 

Well, I’d be looking for what you tell me more than anything else. I think you

know your record. You know what your record reflects. I don’t know what your

record reflects yet. I understand it’s extensive, mostly burglaries. How you’ve

cooperated with me, with the investigation of this crime, and so forth would have

about as much bearing on it as anything, or lack of cooperation, whichever it was. 

You’re not going to be able to convince me that you’ve changed, are you? 

When questioned by trial counsel, the petitioner acknowledged that trial counsel had

reviewed the negotiated plea agreement with him the previous day, that he had signed it, and that it

correctly stated the agreement he had reached. Trial counsel asked the petitioner whether there was

anything further he needed to do on the case other than to prepare for the upcoming sentencing

hearing. The petitioner said that an officer who had interviewed him in the jail had promised to

testify on his behalf about his cooperation with the police. Trial counsel responded that he could

subpoena that officer to testify at the petitioner’s sentencing hearing. 
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At the November 30, 2004, sentencing hearing, the State introduced the petitioner’s

presentence report, which reflected an extensive history of prior convictions. The forty-five-year-old

petitioner acknowledged that his criminal record was substantial, that he had been incarcerated “five

to six times,”and that he understood he would have to serve the ten-year sentence in the instant case

consecutively to the sentence for a conviction for which he had been on parole at the time he

committed the instant offense. The petitioner explained that his criminal record included so many

burglaries because “that was what [he] did the best” and “what [he] . . . knew how to make money.”

He stated that he committed the burglaries to support his drug habit but since that time had stopped

using drugs and intended to abandon his former life of crime. He described the various selfimprovement classes he had taken during his recent incarceration and introduced as a collective

exhibit several certificates he had earned upon completing drug and alcohol classes, as well as a

letter of recommendation from the instructor of an auto mechanics class in which he was currently

enrolled. He stated that he was a high school graduate. 

The petitioner testified that he fully cooperated with the police and assisted them in

recovering a number of stolen items because he was tired of his former lifestyle: “[W]hen I was

arrested . . . I just decided to come clean because I was just tired. I was just tired of the drugs and,

you know, taking from people. . . . I just don’t want to be doing it no more.” On cross-examination,

he acknowledged that his cooperation with the authorities had led to a number of his cases in Sumner

County being retired, including thirty-four counts of burglary, six counts of attempted burglary,

sixteen counts of theft under $500, three counts of theft over $1000 but under $10,000, twenty-eight

counts of vandalism under $500, and three counts of vandalism over $500. 

At the conclusion of the sentencing hearing, the trial court found the petitioner to be a

“professional criminal who has knowingly devoted much of his lifetime to criminal acts as a major

source of livelihood.” Accordingly, the court ordered that the petitioner serve his ten-year Rutherford

County sentence consecutively to the effective twenty-yearsentence he had received for his Sumner

County convictions. 

On August 8, 2005, the petitioner filed a pro se petition for post-conviction relief in which

he claimed that his guilty plea was unknowing and involuntary and that he received ineffective

assistance of counsel. Following the appointment of post-conviction counsel, the petitioner filed an

amended petition in which he alleged that trial counsel was ineffective for, among other things,

failing to fully explain the law regarding consecutive versus concurrent sentencing; failing to

properly investigate the case; and failing to call witnesses at the sentencing hearing. 

At the July 21, 2006, evidentiary hearing, trial counsel, who said he had been practicing law

in Rutherford County for eighteen years, testified that he was appointed to represent the petitioner

on his arraignment day. He said that the petitioner was “very interested” in trying to get an offer

from the State that involved running his Rutherford County sentence concurrently to his Sumner

County sentences. According to trial counsel, he explained to the petitioner, and the petitioner

understood, that he would have to serve the Rutherford County sentence consecutively to the

sentence for the offense for which he had been on parole at the time he committed the crimes. 
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Trial counsel testified that the State’s initial offer “was 12 years at 45 percent, running

consecutive on the burglary and dismiss the theft.” The petitioner, however, rejected that offer.

Trial counsel then made a counteroffer to the State:

[The petitioner] never disputed with me that he didn’t do the offense that he

was charged with. His only concern was trying to get it to run concurrent with that

other sentence that he had. So I went back and talked to the District Attorney about

the possibility of doing that. And I believe [the prosecutor] told me that he wouldn’t

agree to run it concurrent but if [the petitioner] wanted to try to settle his case and at

least have the opportunity to ask, that that day only he would make an offer of ten

years and then set it for a hearing and let the Judge decide how it would run. 

Trial counsel testified that he received and reviewed a packet of discovery from the State.

However, to the best of his recollection, he never interviewed Detective Rick Hall, the officer who

took the defendant’s statement or spoke to any other witnesses in the case. He said he recalled

discussing the petitioner’s “very extensive prior record” and its likely impact on the trial court’s

sentencing determinations: “And I distinctly remember telling [the petitioner] the odds were not

good based on his prior record that he was going to get concurrent sentencing, but under the offer

of the State, he could at least ask for it. And he said, well, that’s what I want to do.” Trial counsel

said the petitioner never disputed that he had committed the crime and gave him no reason to believe

that his statement should be suppressed. To the contrary, the petitioner “wanted it brought out that

he did give statements and did cooperate because he felt like that was maybe his only way to get the

possibility to have concurrent sentencing.”

Trial counsel said he believed that the State took the petitioner’s cooperation with the

authorities into consideration when offering him the plea agreement, which provided for him to be

sentenced as a persistent, rather than career, offender and offered the possibility of concurrent

sentences. Prior to the guilty plea hearing, the petitioner never mentioned anything to him about

subpoenaing officers to testify on his behalf. Trial counsel was unable to say why he did not

subpoena Detective Hall to testify at the sentencing hearing. He pointed out, however, that the State

had announced to the trial court that the petitioner had cooperated and given a statement to police.

He also agreed that he thoroughly covered the petitioner’s level of cooperation with authorities

during his examination of the petitioner at the sentencing hearing. 

The petitioner testified that trial counsel spoke to him on three different occasions for only

“a couple ofseconds” each time. During the first meeting, trial counsel informed him that the State

had offered eight years. The petitioner said he told trial counsel that he would accept the offer if the

sentences were run concurrently. When trial counsel came back, he informed the petitioner that the

State would give him ten years if he would agree to “go under a Judge sentencing hearing.” The

petitioner testified that he and trial counsel discussed subpoenaing Detective Hall prior to the date

of his guilty plea hearing. According to the petitioner, he did not learn that Detective Hall would not

be testifying until he was at the sentencing hearing, when trial counsel informed him that they did
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not need Detective Hall’s testimony. He said he would never have pled guilty had he known that

Detective Hall would not testify on his behalf at sentencing. 

On cross-examination, the petitioner acknowledged that he was able to inform the court about

his cooperation with authorities. He agreed that no one forced him to enter his plea, that he

understood what he was doing, and that he had entered his plea knowingly and voluntarily. He also

acknowledged that trial counsel never promised him that he would receive concurrent sentencing.

The petitioner further testified that he had not spoken with Detective Hall since the day he gave his

statement. He said he did not know what Hall’s testimony would have been at the sentencing

hearing and could “only imagine” what he would have said. Finally, the petitioner stated that he and

post-conviction counsel had agreed that it would be best for the petitioner if they did not subpoena

Detective Hall as a witness at the evidentiary hearing. 

On September 15, 2006, the post-conviction court issued an oral ruling denying the petition,

which was subsequently entered as a written order on September 20, 2006. Among other things, the

post-conviction court found that the petitioner’s guilty plea was knowing and that he could not

establish prejudice based on counsel’s failure to subpoena Detective Hall to the sentencing hearing.

With respect to this latter claim, the post-conviction court noted that it had considered the

petitioner’s uncontested testimony about his cooperation with police in its sentencing ruling.

Thereafter, the petitioner filed a timely notice of appeal to this court. 

ANALYSIS

I. Post-Conviction Standard of Review 

The post-conviction petitioner bears the burden of proving his allegations by clear and

convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary hearing

is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal

unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.

1996). Where appellate review involves purely factual issues, the appellate courtshould not reweigh

or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,

review of a trial court’s application of the law to the facts of the case is de novo, with no presumption

of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective

assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo, with a

presumption of correctness given only to the post-conviction court's findings of fact. See Fields v.

State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

II. Ineffective Assistance of Counsel

The petitioner contends that trial counsel was ineffective for failing to adequately investigate

his case. Specifically, he complains of counsel’s failure to conduct any factual investigation or to

subpoena Detective Rick Hall to testify on the petitioner’s behalf at the sentencing hearing. The
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petitioner claims that if he had known that the officer was not going to testify at his sentencing

hearing, he would not have pled guilty but instead would have taken his chances at trial. 

To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show

both that trial counsel’s performance was deficient and that counsel’s deficient performance

prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that

same standard for determining ineffective assistance of counsel that is applied in federal cases also

applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable. 

466 U.S. at 687, 104 S. Ct. at 2064.

The deficient performance prong of the test is satisfied by showing that “counsel’s acts or

omissions were so serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.

at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong

of the test issatisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine

confidence in the outcome,” that “but for counsel's unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In the context of a

guilty plea, the petitioner must show a reasonable probability that were it not for the deficiencies in

counsel’s representation, he would not have pled guilty but would instead have insisted on

proceeding to trial. Hill v. Lockart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); House v. State, 44

S.W.3d 508, 516 (Tenn. 2001).

We conclude that the record supports the post-conviction court’s finding that counsel

provided effective representation. Trial counsel testified that he made no guarantees to the petitioner

with respect to the outcome of the sentencing hearing and, in fact, specifically informed him that his

substantial criminal record made it unlikely that the trial court would order concurrent sentencing.

Trial counsel acknowledged that he did not subpoena Detective Hall to testify at the sentencing

hearing, as requested by the petitioner, and said that he did not know why he had not done so.

However, in his opinion Detective Hall’s testimony was unnecessary since the State did not contest

the fact that the petitioner had cooperated with the authorities and the petitioner was able to fully

relate his cooperation to the trial court. Trial counsel explained that he did not challenge the

admissibility of the petitioner’s confession because the petitioner never indicated to him any facts

that would support a motion to suppress. Moreover, suppressing the confession would have been
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counterproductive to the petitioner’s stated objection of emphasizing his full cooperation with the

police. 

Even if the petitioner could establish that trial counsel was deficient for failing to call

Detective Hall as a witness at the sentencing hearing, he cannot show that he was prejudiced as a

result of that failure. The petitioner did not call Detective Hall as a witness at the evidentiary hearing

and testified that he could only guess as to what Detective Hall’s testimony would have been. As

we have previously stated:

When a petitioner contends that trial counsel failed to discover, interview, or

present witnesses in support of his defense, these witnesses should be presented by

the petitioner at the evidentiary hearing. As a general rule, this is the only way the

petitioner can establish that . . . the failure to have a known witness present or call the

witness to the stand resulted in the denial of critical evidence which inured to the

prejudice of the petitioner. It is elementary that neither a trial judge nor an appellate

court can speculate or guess on the question of whether further investigation would

have revealed a material witness or what a witness's testimony might have been if

introduced by defense counsel. 

Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). In sum, the petitioner has failed to

show that counsel was deficient in his representation or that he would not have pled guilty were it

not for counsel’s alleged deficiencies. We conclude, therefore, that the petitioner is not entitled to

post-conviction relief on the basis of his claim of ineffective assistance of counsel.

III. Involuntary Guilty Plea

In an interrelated claim, the petitioner also contends that his guilty plea was not knowingly,

voluntarily, or intelligently entered. He asserts that he entered his guilty plea only because he

believed that trial counsel was going to subpoena Detective Hall to testify on his behalf at the

sentencing hearing. 

When analyzing a guilty plea, we look to the federal standard announced in Boykin v.

Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), and the state standard set out in State v. Mackey, 553

S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin, the

United States Supreme Court held that there must be an affirmative showing in the trial court that

a guilty plea was voluntarily and knowingly given before it can be accepted. 395 U.S. at 242, 89 S.

Ct. at 1711. Similarly, in Mackey, our supreme court required an affirmative showing of a voluntary

and knowledgeable guilty plea, namely, that the defendant has been made aware of the significant

consequences of such a plea. Pettus, 986 S.W.2d at 542.

A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,

inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court

must determine if the guilty plea is “knowing” by questioning the defendant to make sure he or she
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fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858

S.W.2d at 904. Because the plea must represent a voluntary and intelligent choice among the

alternatives available to the defendant, the trial court may look at a number of circumstantial factors

in making this determination. Blankenship, 858 S.W.2d at 904. These factors include: (1) the

defendant’s relative intelligence; (2) his familiarity with criminal proceedings; (3) whether he was

represented by competent counsel and had the opportunity to confer with counsel about alternatives;

(4) the advice of counsel and the court about the charges against him and the penalty to be imposed;

and (5) the defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty

in a jury trial. Id. at 904-05.

The transcript of the guilty plea hearing reflects that the petitioner responded appropriately

when asked if he understood the various constitutional rights as described by the trial court, if he

understood he was waiving certain rights by pleading guilty, whether he understood his guilty plea,

and whether he was entering his plea knowingly and voluntarily. The petitioner informed the trial

court that he was not under the influence of drugs and fully understood what he was doing in

entering the plea. He also said that he understood that the trial court would be making a later

determination as to whether his sentence would run consecutively or concurrently to his Sumner

County convictions. The record further reveals that the petitioner was a high school graduate and

had a very extensive criminal history, which evidenced his obvious familiarity with the criminal

court system and criminal court proceedings. We, therefore, conclude that the petitioner’s guilty

plea was knowingly, intelligently and voluntarily entered. 

CONCLUSION

Based on our review, we conclude that the petitioner has failed to show either that trial

counsel was ineffective or that his guilty plea was unknowing and involuntary. Accordingly, we

affirm the denial of his petition for post-conviction relief.

___________________________________ 

ALAN E. GLENN, JUDGE