Troy Douglas Bartley v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 21, 2013

TROY DOUGLAS BARTLEY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Sullivan County
No. C59887 Robert H. Montgomery, Jr., Judge

No. E2012-01881-CCA-R3-PC - Filed September 27, 2013

The Petitioner, Troy Douglas Bartley, appeals the Sullivan County Criminal Court’s denial
of post-conviction relief from his convictions of two counts of aggravated assault, Class C
felonies, one count of delivery of cocaine within 1,000 feet of a school zone, a Class B
felony, one count of possession of cocaine with intent to sell or deliver within 1,000 feet of
a school zone, a Class A felony, one count of attempted first degree murder, a Class A
felony, one count of retaliation for past action, a Class E felony, and two additional counts
of aggravated assault, Class C felonies. Based on the guilty plea hearing transcript, the
Petitioner pleaded guilty in case number S57,639, to two counts of aggravated assault, both
of which were merged by the trial court, and received a three-year-sentence. In case number
S58,333, the Petitioner pleaded guilty to delivery of cocaine within 1,000 feet of a school
zone, count one, which merged with count two, possession of less than five-tenths of cocaine
with intent to sell or deliver within 1,000 feet of a school zone, and received an eight-year
sentence. In case number S58,374, the Petitioner pleaded guilty to attempted first degree
murder, count one, retaliation for past action, count two, and two additional counts of
aggravated assault, counts three and four, which the trial court merged with count two. In
regard to case number S58,374, the Petitioner was sentenced to fifteen and four years,
respectively. The trial court ordered “all counts in each case [to be served] concurrent[ly]
but each of the cases [were] consecutive[,]”for an effective sentence of twenty-six years’
imprisonment. On appeal, the Petitioner argues that he received ineffective assistance of
counsel and that he entered involuntary and unknowing guilty pleas.1 Upon review, we
affirm the judgment of the post-conviction court.

1
In his petition for post-conviction relief, the Petitioner also argues that the State withheld
exculpatory evidence. The post-conviction court denied relief on this issue, and the Petitioner did not raise
it in his brief. Consequently, we do not address it on appeal because it is waived.
 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which JOSEPH M. T IPTON,
P.J., and J AMES C URW OOD W ITT, J R., J., joined.

L. Dudley Senter, III, Bristol, Tennessee, for the Petitioner-Appellant, Troy Douglas Bartley.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Barry Staubus, District Attorney General; and Lesley A. Foglia and Daniel Hall,
Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

Guilty Plea Hearing. On January 5, 2011, the Petitioner entered a guilty plea to the
above offenses and, pursuant to the terms of his plea agreement, received an effective
twenty-six-year sentence. Prior to accepting the Petitioner’s guilty plea, the trial court read
a “Request for Acceptance of Plea of Guilty” and “Waiver of Rights” forms to the Petitioner.
The trial court advised the Petitioner that the “plea form” contained rights, which were
described in detail by the court, that the Petitioner was waiving by entering a guilty plea and
that his signature on the form certified that he was not under the influence of any drugs and
fully understood the nature of his actions. The Petitioner affirmed that he signed the forms
and understood them. The trial court explained the penalty for each offense as outlined in
the plea agreement, the elements of each offense, and the respective sentencing range, which
the Petitioner also affirmed that he understood. Finally, the trial court asked the Petitioner
whether he had been forced, threatened, intimidated, or pressured to enter a guilty plea, and
the Petitioner replied, “No, Sir.”

In regard to the aggravated assault case, the Petitioner agreed that he was pleading
guilty “in the form of a ‘best interest’ or Alford plea,” after having fully discussed his case
with defense counsel.2 The proof supporting the Petitioner’s guilty plea for the aggravated
assault was summarized by the State as follows:

[O]n January 15th, 2010[,] around 5 o’clock in the morning[,] officers
responded to 1933 Tri-Cities Crossing in Kingsport, Sullivan County. They
had been called because [the Petitioner] had hit the victim, Kathy Smith, over

2
Based on North Carolina v. Alford, 400 U.S. 25, 37 (1970), a defendant may enter a plea of guilty
while at the same time maintaining his innocence if he determines that it is in his best interest to do so. A
trial court may accept a defendant’s “best interest” or Alford plea so long as there is a factual basis for the
plea. See Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998) (internal citations omitted).

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 the head with a blunt object that she believed to be a beer bottle. The officers
responded and observed the victim lying in the kitchen bleeding from the back
of her head. She had stated that she and [the Petitioner] had gotten into an
argument. . . . [T]hey were in a romantic relationship at the time. He got angry
and hit her in the head with some type of object. . . . This was witnessed by
witnesses. . . . The victim was taken to the hospital. . . . She had a large
laceration to her head that required stitches and the hospital confirmed that it
was blunt force trauma to the head.

The factual basis supporting the Petitioner’s guilty plea to the above drug related
offenses was as follows:

[T]he Kingsport Vice Unit had set up a controlled buy against, and this
is actually different than a normal controlled buy would normally be, against
[the Petitioner], but also against an individual by the name of Freddie
Hernandez. . . . [I]n the nighttime hours of July 6, 2010[,] Kingsport Vice
officers Cliff Ferguson, Steve Summey, Tim Crawford and Nathan Elliott met
with the confidential informant Lloyd Allen McDavid in reference to
purchasing cocaine. McDavid had already been - - - - had done several
controlled buys for the Kingsport Vice Unit and having talked with [the
Petitioner] to make an attempted purchase of cocaine from him. Prior to the
controlled buy the confidential informant had spoken with [the Petitioner]
about purchasing an 8-ball and [the Petitioner] had quoted him a price of
$250.00. They had been driving in a vehicle and . . . [the Petitioner] pointed
out where he would be obtaining that cocaine. The confidential informant had
been told by Kingsport Vice that he was not to give [the Petitioner] his money
but to try to go with him, which he did, and they met at [the Petitioner’s] home
on July 6, 2010[,] at Garden Apartments. He and [the Petitioner] walked to the
residence of Freddie Hernandez. [The Petitioner] instructed the confidential
informant to remain outside and walk on the sidewalk while he went around
back to make the purchase. . . . [T]he confidential informant gave [the
Petitioner] $250.00 in buy money that had been previously photocopied by the
vice unit and the vice unit had followed him as well. Nathan Elliott was on
one side of the building and Tim Crawford and Steve Summey and Cliff
Ferguson were on the other to observe. Nathan Elliott observed an exchange
between [the Petitioner] and Freddie Hernandez. They parted ways. At that
time [the Petitioner] went to one side of the building and the Hispanic, Freddie
Hernandez, went to the other where he was confronted by law enforcement,
and not that this would come into evidence at [the Petitioner]’s trial, but Mr.
Hernandez did admit to selling cocaine to [the Petitioner]. [The Petitioner]

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 goes to the other side of the building where Steve Summey witnesses him
throw a bag of white substance onto the ground and he is apprehended. Some
of the buy money was found on Freddie Hernandez and then when [the
Petitioner] was booked into the jail a $20.00 bill of the buy money was still on
[the Petitioner]’s person. The white bag of substance was sent to the TBI for
analysis and it came back as cocaine, a Schedule II drug in the amount of 2.4
grams, that occurring in Sullivan County and it was within 1,000 feet of
Lincoln Elementary School.

The court asked the Petitioner in reference to this case: “Are you pleading guilty to
those charges because you are guilty?,” and the Petitioner answered, “That’s correct.”

The State summarized the proof supporting the Petitioner’s guilty plea for attempted
first-degree murder as follows:

[The drug case] is linked to this case in that [the Petitioner] was given
a $100,000 bond that night. . . . [The Petitioner] made that bond and . . . knew
who the confidential informant [in the above drug case] was by the name of
Allen McDavid. [The Petitioner] got with two of his friends, Andy Goldbach
and David Laginess and began looking for the victim later that night. That
would be the night of July 7th, the next day. [The Petitioner] and the
confidential informant, Mr. McDavid, lived in the same apartment complex.
He was calling him a snitch, that he was going to beat him up. The victim was
afraid to go home because [the Petitioner], Goldbach and Laginess were
lurking around the apartments so he parks near his home and goes to a laundry
mat and calls 911. You can hear on the 911 tape he’s calling - - - - he’s got a
hammer on his person because he knows they’re trying to - - - - he had heard,
other neighbors had told him that they were going to try to come kill him so he
had a hammer on his person. He calls 911 and you hear [the Petitioner] and
the two co-defendants approach saying they’re going to kill him, “I’m going
to finish him off.” These things are on the tape. One of the defendants sees
him at the laundry mat and that’s why they approach him. They approach him
. . . with a knife and they’re kicking him and one of the defendants, Laginess[,]
goes back to his apartment, . . . [the Petitioner]’s apartment and obtains the axe
handle and comes back where they continue to beat him. They’re stating, “I’m
going to kill you.” At one point[,] [the Petitioner] takes the axe handle and
makes the statement, “I’ll finish him off,” and hits him several times up to the
point that the police arrive and all the defendants take off running. A witness,
Donna Trask (phonetic), who is a neighbor, will state prior to the assault that
[the Petitioner] showed up at her house with an axe handle saying that the

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 victim was going to be leaving in a coroner’s van. Another witness, Timothy
McMurray, heard [the Petitioner] say he was going to “F him up.” The victim
was taken to the hospital. He was discharged the same day. His injuries were
a left ulnar fracture. He lost consciousness, a laceration on his right cheek that
required stitches, a left forearm laceration, multiple abrasions, a fracture to the
right wall of his sinus, a depressed fracture to the right arch of his sinus and a
non-displaced fracture on the right orbital floor in his eye socket.

The Petitioner acknowledged that he heard the State’s evidence in the aforementioned
cases and agreed that it was “most definitely” true. When the trial court asked the Petitioner
if he was “satisfied with the representation that [he] received from [counsel] in this case?”
the Petitioner responded, “Yes, sir.” Finally, when the trial court asked, “[Was there]
[a]nything you’ve asked [counsel] to do he’s not done?” the Petitioner responded, “He’s been
top-notch.” The trial court then accepted the Petitioner’s guilty plea and sentenced him in
accordance with the plea agreement.

On September 16, 2011, the Petitioner filed a timely pro-se petition for post-
conviction relief, alleging that he had received ineffective assistance of counsel and that his
guilty pleas were involuntary and unknowing. The Petitioner was subsequently appointed
counsel, who filed an amended petition on the Petitioner’s behalf alleging that (1) the
Petitioner’s guilty pleas were unlawfully induced and entered into without an understanding
of the consequences and was involuntary; (2) the prosecution withheld information regarding
certain witnesses that could have been used for impeachment; and (3) trial counsel performed
below the minimum ascertainable standards by failing to develop proper strategies and
defenses. The post-conviction court conducted an evidentiary hearing on July 25, 2012.

Post-Conviction Hearing. Counsel, a practicing lawyer for over fifteen years,
testified at the post-conviction hearing regarding all three cases and his meetings with the
Petitioner throughout the proceedings. Counsel had two initial concerns regarding the drug
case. Based on the testimony provided at the preliminary hearing, there was a discrepancy
between “the amount of money that apparently had been given to the CI” and the amount of
money that was recovered from the Petitioner and his co-defendant. There was also a
possibility that the officers failed to maintain visual contact with the Petitioner and his co-
defendant during the transaction. Counsel further testified that after the preliminary hearing,
he met with the Petitioner and discussed the facts as well as developed a strategy of the case.
He stated:

We had to [confirm] whether or not this alleged transaction actually
occurred within the 1,000 feet of the school zone. We had to determine what
video or audio evidence the police department may have had and again review

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 the affidavits of complaint, review the testimony from the preliminary hearing
and then basically discuss that with [the Petitioner] and try to develop some
sort of strategy going forward as to whether or not there was enough evidence
to find guilt beyond a reasonable doubt.

Counsel explained that he later obtained a copy of the school zone map, researched the
transcripts and affidavits of complaint, and interviewed two of the arresting officers. He
confirmed that at least one officer maintained visual contact with the Petitioner during the
transaction.

In regard to the attempted first-degree murder case, Counsel stated that his defense
strategy would have been “self defense, of course.” Counsel testified that he filed a motion
for discovery, researched the file in the clerk’s office, and “prepared a summary of the
charges and the code sections that applied [to the offense] for [the Petitioner].”

Counsel stated that he met with the Petitioner on September 20, October 21, and
October 29 to review the evidence and discuss the cases. He received a plea offer from the
State on October 28, and an amended plea offer on December 2, 2010. He met with the
Petitioner after receiving each plea offer, but the Petitioner was unable to make a decision
at the meetings. After the trial court denied Counsel’s request to set the aggravated assault
case for trial first, the trial court set the drug case for trial on January 5, 2011. Counsel
testified that at that point in the preparation, he had reviewed all of the discovery with the
Petitioner, including the 9-1-1 phone call and photographs of the scene, and discussed the
plea offers with the Petitioner. He stated that “[w]e knew what the State was going to
present. We had an amended [plea] offer. It was left for [the Petitioner] to mull that over.”

Counsel met with the Petitioner again on December 15, and they “continued to review
the evidence, to talk about the options going forward, [and] talk about his chances of
success.” The Petitioner remained undecided regarding the State’s settlement offer. Counsel
testified that, in the meantime, he continued to prepare for trial, focusing on the drug trial,
which was scheduled first. He acknowledged that he did not file any motions, explaining
“[the Petitioner] and I talked about this . . . we were not going to file any motions [in the drug
case].” He stated that the District Attorney informed him that there was a third officer that
the State planned to call as a witness who was prepared to testify that he witnessed the
Petitioner drop the bag of cocaine. He conceded that he had not interviewed this officer.
Counsel further testified that he considered joining the Petitioner’s case with the co-
defendant’s, Mr. Hernandez’s, but decided it was not in the Petitioner’s best interest.

Counsel testified that he met with the Petitioner again on January 3, 2011, to
determine whether the Petitioner had decided to accept the settlement offer, but the Petitioner

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said he needed more time. Counsel stated that he spent the next day preparing for trial. The
day before trial, Counsel was advised by the court that the Petitioner had until 5:00 p.m. that
day to accept the State’s settlement offer or proceed to trial. Counsel testified that he then
called the Petitioner to advise him of the deadline, and that “[a]fter a couple of minutes of
discussion [the Petitioner] said he was going to accept the plea.” The next morning he met
with the Petitioner and went over the plea form with him.

Counsel stated that he had not yet interviewed anyone on the murder case or the
assault case because these witnesses were not due to be heard until months later in April. He
acknowledged that the Petitioner had suggested questioning Kathy Smith as a potential
witness but stated that he had been informed that Ms. Smith was not going to be available
as a witness. Counsel conceded that he had never conducted a jury trial before but insisted
that he did not need more time to prepare for the trial. He noted that he had discovery for
several months, received two plea offers, met with the Petitioner numerous times, and knew
when the trial was set. He stated, “There was plenty of time to prepare and plenty of time
to ponder this [plea] offer and make a reasonable decision.”

On cross-examination, Counsel clarified that he had previous trial experience in civil
bench trials and had conducted preliminary hearings in general sessions court and detention
hearings in federal court. Counsel reiterated that he reviewed the State’s evidence for all
three cases with the Petitioner, including the preliminary hearing transcripts, the TBI analysis
of the cocaine, photographs of the marked money, photographs of the victims in both the
attempted murder and the assault cases, the 9-1-1 phone call, and statements made to the
police. He testified that he provided a copy of all of the discovery to the Petitioner and stated
“I believe the State had sufficient evidence in this case but with all clients I let them make
the decision whether they believe the State has sufficient evidence against them.”

Officer Cliff Ferguson testified that he was one of the four officers involved in the
drug investigation. He stated that he did not witness the drug transaction but that two of the
other officers had a direct view of the transaction. After these officers notified him that the
transaction was complete, he waited for the Petitioner to come to the front of the building,
where Officer Ferguson arrested the Petitioner. Officer Ferguson stated that he then frisked
the Petitioner, checked for warrants in his name, and discovered an outstanding warrant for
the Petitioner. He stated that he placed the Petitioner in his police car and returned to the
spot where he initially encountered the Petitioner. He found a bag of cocaine lying on the
ground.

When questioned about his ability to identify the drug, Officer Ferguson responded,
“Well, it hadn’t been tested but [by] the look and the texture and the smell of it, I felt certain
it was cocaine.” Officer Ferguson conceded that the bag of cocaine was left lying on the

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ground for “somewhere around the five minute mark.” He also agreed that the location
where the offense took place was a high-crime neighborhood but opined that it was “highly
unlikely” that the bag of cocaine belonged to someone other than the Petitioner. He stated
the distance between his police car and where he eventually found the cocaine was fifty feet.

On cross-examination, Officer Ferguson testified that he did not see anyone else in
the area before or after he apprehended the Petitioner and that he did not see anything on the
ground. On redirect examination, Officer Ferguson conceded that he had not conducted an
official sweep of the area prior to the Petitioner’s arrest. When asked if it was possible that
the cocaine was present prior to the Petitioner’s arrest, Officer Ferguson responded, “It’s not
probable, but anything is possible.”

Kathy Smith, the victim in the Petitioner’s assault case, testified that she approached
defense counsel and offered herself as a witness on the attempted murder charge. She said
that, prior to the offense, she saw the Petitioner unarmed and the victim, Mr. McDavid, with
a hammer. She stated that she did not witness the fight but was with the Petitioner right
before the fight. She testified that when Mr. McDavid arrived to return the van he had
borrowed to its owner, the Petitioner ran “out of the room and he jerks his shirt off and goes
running towards the Laundromat [where Mr. McDavid was located].” She drove the owner
of the van to the Laundromat to pick up his van, and when they arrived, she saw the
Petitioner standing in front of Mr. McDavid. She testified that “[the Petitioner] had no
weapon. Mr. McDavid had a hammer.” She explained that she left the scene at that time
because she “didn’t know what was going to happen[.]” When she returned to the
Petitioner’s apartment, she observed Mr. Lajeniss run into the apartment, retrieve a pickaxe
handle out of the Petitioner’s room, and return to the Laundromat parking lot. She testified
that she repeatedly called defense counsel but never heard back from him.

On cross-examination, Ms. Smith testified that, as far as she knew, the Petitioner did
not have a knife in his pocket but conceded that she had not checked his pockets. She also
conceded that she did not go to the police with her story to try to clear the Petitioner’s name.
The court questioned Ms. Smith about an order prohibiting the Petitioner from contacting her
as a result of the assault charge; however, Ms. Smith was unaware of the order.

The Petitioner testified and explained that after he pleaded, he “had time to sit back
and look and grasp” the guilty pleas in this matter. He said that while in prison, he realized
that he “had a lot of options I could have taken other than just down here accepting [a guilty
plea].” He testified, consistently with the testimony of Counsel, that he met with Counsel
several times and acknowledged reviewing the State’s evidence with Counsel. However, the
Petitioner said that they never discussed trial tactics or potential witnesses. He suggested
that Ms. Smith “might have been a decent witness in the aggravated assault case because as

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far as [he] knew, she wasn’t going to be pressing the issue.” The Petitioner stated that at
their meeting on December 15, he and Counsel discussed his clothing for the trial and that
the jury that had been selected. He also testified that Counsel told him he “would never see
daylight again” if he was found guilty at trial.

The Petitioner believed that he was coerced into entering a guilty plea because
Counsel called him on the eve of trial and advised him that the court needed to know whether
he was going to enter a guilty plea by 5:00 p.m. that day. The Petitioner explained, “[I]
already had it in my mind I was going to be going to trial the next day. . . . When the guards
told me that there was a phone call from my lawyer I was expecting it to be about my clothes
and stuff like that.” The Petitioner said that the police officers at the jail were telling him to
“hurry up” and “get off the phone” because the phone call from Counsel occurred at “feeding
time.” The Petitioner stated that Counsel was simultaneously telling him that the court
needed to know how he intended to proceed. The Petitioner testified that he asked Counsel
what he would do, and Counsel responded, “Well, I already told you what my opinion was,
that if you take it to trial you’re never going to see daylight again.” The Petitioner testified
that he accepted the settlement offer and told Counsel, “Blank it I’ll take it.”

The Petitioner stated that he reviewed the plea document with Counsel the next day,
but at that point, he was confused and “scared to death.” He signed the document even
though he did not understand it, and even though he had questions, he was too scared to ask
them. He testified that Counsel advised him to “[j]ust go in there and just say yes to
everything they say.” He told the judge that he understood his rights and accepted the terms
of the plea agreement as instructed by Counsel. He stated that if he could testify again he,
“wouldn’t have said yes to all those things [he] did on the transcripts. [He] would - - - - for
one [definitely] take it to trial and [definitely] be more better - - - - find a way to be better
prepared.”

When asked about his testimony regarding Counsel being “top-notch,” the Petitioner
explained that, at the time, he “didn’t know any better.” He stated that after doing some
research at the prison law library, he realized there were many defenses that he could have
raised and that he would “like to have [his] day in court on all this.”

On cross-examination, the Petitioner agreed that he had been offered two separate
settlement agreements, and the second offer, which he accepted, had a “greatly reduced”
sentence from the first. He also agreed that he was notified of the second offer in December
and did not accept it until January 4. He acknowledged that he was under oath when he
testified at his guilty plea hearing and agreed that he perjured himself when he told the court
that he wanted to plead guilty and that no one had pressured him into making the plea. He
explained that he was following his attorney’s advice to answer all questions in the

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affirmative. He conceded that the statement regarding Counsel’s being “top-notch” was not
at Counsel’s request but was his own doing. The Petitioner also conceded that had he raised
a self-defense theory at trial, it was likely that he would have had to testify, which would
have opened the door for the jury to hear about his prior felony convictions.

On redirect examination, the Petitioner clarified that, at the time of his guilty plea,
no one had informed him of the consequences of his testifying. He also clarified that he did
not believe he was lying to the judge at his guilty plea hearing but thought that he “was doing
the right thing at the time.” He explained that his answers to those questions changed after
he got to prison and researched the matter on his own.

The court questioned the Petitioner regarding a guilty plea he entered in 1988 in
Alabama, and the Petitioner initially denied any recollection of the proceeding. The
Petitioner eventually acknowledged the guilty plea, and the court pointed out that the present
case was not the first time the Petitioner had been to court and entered a plea. The Petitioner
also agreed that after hearing the State present the facts supporting its case, he did not answer
“yes,” as he claimed his attorney instructed him to do, but he stated that the facts were
“[m]ost definitely” true.

In rebuttal, Counsel testified that, to his knowledge, Ms. Smith never contacted his
office to schedule an appointment. On cross-examination, Counsel admitted that it was
possible, but not likely that his office misplaced a message from Ms. Smith.

At the conclusion of the hearing, the post-conviction court took the matter under
advisement. On August 8, 2012, the court entered a detailed order denying post-conviction
relief and concluded, among other things, that the Petitioner “failed to show by clear and
convincing evidence that [Counsel] was in any way ineffective or deficient in his
performance as counsel representing Petitioner.” The court also determined that the
Petitioner entered a knowing and voluntary guilty plea, that the Petitioner understood the
nature and consequences of his plea, and that the Petitioner was not forced or coerced into
entering his plea by his attorney or by his attorney’s performance as defense counsel.

It is from this order that the Petitioner now appeals.

ANALYSIS

The Petitioner contends that trial counsel provided ineffective assistance of counsel by
failing to properly investigate the Petitioner’s case and by failing to file a motion to suppress
evidence. He maintains that Counsel’s performance fell below the standard of reasonableness
for criminal attorneys and that he would not have pleaded guilty but for Counsel’s errors. The

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State responds that the post-conviction court properly denied the petition for post-conviction
relief because Counsel was not deficient in his performance, and the Petitioner entered his
guilty pleas knowingly, intelligently, and voluntarily. Upon review, we agree with the State.

Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A. §
40-30-103 (2006). The Tennessee Supreme Court has held:

A post-conviction court’s findings of fact are conclusive on appeal
unless the evidence preponderates otherwise. When reviewing factual issues,
the appellate court will not re-weigh or re-evaluate the evidence; moreover,
factual questions involving the credibility of witnesses or the weight of their
testimony are matters for the trial court to resolve. The appellate court’s review
of a legal issue, or of a mixed question of law or fact such as a claim of
ineffective assistance of counsel, is de novo with no presumption of
correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations omitted).
“The petitioner bears the burden of proving factual allegations in the petition for post-
conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f); Wiley
v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and convincing
when there is no serious or substantial doubt about the accuracy of the conclusions drawn
from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998) (citing Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

In Vaughn, the Tennessee Supreme Court repeated well-settled principles applicable
to claims of ineffective assistance of counsel:

The right of a person accused of a crime to representation by counsel
is guaranteed by both the Sixth Amendment to the United States Constitution
and article I, section 9, of the Tennessee Constitution. Both the United States
Supreme Court and this Court have recognized that this right to representation
encompasses the right to reasonably effective assistance, that is, within the
range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);

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Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[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 v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “‘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 370 (quoting
Strickland, 466 U.S. at 694). Within the context of a guilty plea, a petitioner “must show that
there is 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 also, Serrano v. State, 133 S.W.3d 599, 605 (Tenn. 2004).

We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However, we note
that this “‘deference to matters of strategy and tactical choices applies only if the choices are
informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d 508, 515
(Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).

I. Ineffective Assistance of Counsel. In alleging that Counsel failed to investigate
his cases prior to trial or entry of his guilty plea, the Petitioner specifically argues that
Counsel did not discuss trial tactics or defense strategies with him and failed to interview
important witnesses such as the officers involved in the drug case or any witnesses in the
attempted murder case. The Petitioner is particularly critical of Counsel’s failure to contact
Kathy Smith, the victim in the assault case and a potential witness in the attempted murder
case, because he asserts that she could have provided testimony to support a self-defense
theory in the attempted murder case.

The Tennessee Supreme Court has held that “[f]ailure to conduct a reasonable
investigation constitutes deficient performance.” Burns, at 6 S.W.3d at 462.

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 [C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure
of deference to counsel’s judgments.

Id. (citing Strickland, 466 U.S. at 691). This Court has concluded that “[w]hen a petitioner
contends that trial counsel failed to discover, interview, or present witnesses in support of
his defense, these witness should be presented at the evidentiary hearing.” Black v. State,
794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Neither the post-conviction court nor this
court may speculate on “what a witness’s testimony might have been if introduced by defense
counsel.” Id. Furthermore, “the Petitioner is not entitled to relief from his conviction on this
ground unless he can produce a material witness who (a) could have been found by a
reasonable investigation and (b) would have testified favorably in support of his defense if
called.” Id. at 758.

In denying relief on this issue, the post-conviction court found that Counsel “provided
the Petitioner exceptional representation in the cases in question.” The court concluded that
Counsel was “actively involved” in the Petitioner’s defense throughout his representation and
noted that Counsel conducted an extensive preliminary hearing, provided the Petitioner with
copies of all discovery, reviewed the State’s evidence with the Petitioner, and negotiated a
significant reduction in the plea offer from the State. The court also noted that the Petitioner
testified at the guilty plea hearing that Counsel was “top-notch,” which contradicted the
Petitioner’s testimony at the post-conviction hearing that Counsel instructed the Petitioner
to answer “yes” to all questions asked. The post-conviction court credited Counsel’s
testimony that he was prepared for trial and determined that the Petitioner decided to accept
the plea offer on the eve of trial to avoid the risk of conviction by a jury. Based on the record
and testimony presented, the court concluded that the Petitioner failed to prove by clear and
convincing evidence that Counsel provided ineffective assistance of counsel.

The record does not preponderate against the post-conviction court’s findings. The
record, specifically the testimony at the post-conviction hearing and log sheets of Counsel,
confirms that Counsel conducted extensive discovery, reviewed the evidence with the
Petitioner, and negotiated two settlement offers with the State. Although the Petitioner
asserts that Counsel failed to interview the arresting officers in the drug case, the record
establishes that Counsel interviewed two of the officers and reviewed their preliminary
hearing testimony and affidavits. Moreover, with regard to the officers that Counsel did not
interview, the Petitioner did not present these officers at the post-conviction hearing. Thus,
because neither the post-conviction court nor this Court can speculate as to their testimony

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or how they could have aided the Petitioner’s defense, see Black, 794 S.W.2d at 757, the
Petitioner is not entitled to relief.

In regard to Counsel’s failure to interview Kathy Smith, we agree that her testimony
may have been relevant to the defense in developing its theory of the case. Here, the post-
conviction court noted that prior to the fight, Ms. Smith observed the victim holding a
hammer and the Petitioner was unarmed. However, the court also noted that Ms. Smith did
not observe the fight that resulted in the attempted murder charges against the Petitioner.
Counsel explained that he was informed that Ms. Smith would not be testifying against the
Petitioner in the assault case. Counsel further stated that he did not contact Ms. Smith about
the attempted murder case at that point because “that trial had not been set. . . . [and Ms.
Smith] had apparently not either appeared or was not available for the last trial that was set
in [the Petitioner’s] case.” Counsel was concerned due to the delicate nature of Ms. Smith’s
relationship to the cases, as a victim in one case and possible witness in another, and
emphasized that his primary focus, at that point, was on the drug case. Given the above
considerations, we are unable to conclude that Counsel’s decision not to interview Ms. Smith
was unreasonable. Therefore, the Petitioner has failed to demonstrate that Counsel’s actions
constituted deficient performance.

Moreover, even if Counsel’s failure to interview Ms. Smith was deficient, the
Petitioner has not proven that this deficiency resulted in prejudice to his defense. As the
State correctly notes in its brief, Tennessee’s self-defense law states that: “The threat or use
of force against another is not justified . . . [i]f the person using the force provoked the other
individual’s use or attempted use of unlawful force, unless[] [t]he person using force
abandons the encounter or clearly communicates to the other the intent to do so.” T.C.A. §
39-11-611(e)(2)(A) (2012). Although Ms. Smith testified that the Petitioner did not take the
alleged weapon, the pickaxe handle, to the fight, her testimony confirms that the Petitioner
initiated and escalated the confrontation. She testified that when the Petitioner learned that
the victim had arrived at the Laundromat, the Petitioner “jerk[ed] off his shirt” and ran to the
Laundromat to confront the victim. Even if the Petitioner did not take the pickaxe handle to
the fight initially, the weapon was retrieved during the fight apparently at the Petitioner’s
direction and used to severely injure the victim. Nothing in Ms. Smith’s testimony suggests
that the Petitioner attempted to abandon the encounter or communicate his intent to do so,
as required to prove self-defense. Consequently, the Petitioner cannot establish the requisite
prejudice prong of Strickland to prove that Counsel’s failure to interview Ms. Smith resulted
in prejudice to his case.

The Petitioner also broadly asserts that Counsel was ineffective for failing to interview
“all the other witnesses discussed above,” without specifically naming any such witnesses.

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The Petitioner did not present any of these proposed witnesses at the post-conviction hearing,
and thus, he is not entitled to relief on this issue. See Black, 794 S.W.2d at 757.

Next, the Petitioner contends that Counsel should have filed a motion to suppress the
bag of cocaine under Tennessee Rules of Evidence 403. The Petitioner asserts that because
the bag of cocaine was found in a high-crime area that was not secured by the police, it
undermines the likelihood that the bag belonged to the Petitioner. As such, the Petitioner
contends that arguable grounds exist to suppress the incriminating evidence under Rule 403,
and Counsel’s failure to move to suppress constitutes ineffective assistance of counsel.3

This Court has stated that “if arguable grounds exist to suppress incriminating
evidence, then an attorney, as a zealous advocate for the client, should move to suppress that
evidence.” State v. Donte Montgomery, No. W2006-00347-CCA-R3-PC, 2007 WL 595599
at *8 (Tenn. Crim. App. Feb. 26, 2007) (citing Robert C. Bellafant v. State, No. 01C01-
9705-CC-00183, 1998 WL 242449, at *6 (Tenn. Crim. App. May 15, 1998)). However, in
order to prevail on an ineffective assistance of counsel claim based on the failure to file a
motion, the Petitioner must prove not only that the failure to file the motion constituted
deficient performance, but also that he was prejudiced by that failure. Id. Prejudice within
the context of a motion to suppress is established by showing that the evidence was
inadmissible by clear and convincing evidence. Id. (citing T.C.A. § 40-30-110(f) (2003)).

The post-conviction court rejected the Petitioner’s claims on this issue, reasoning that
Counsel had interviewed officers who confirmed that at least one officer had visual contact
with the Petitioner at all times and witnessed him drop a white bag. The court credited
Counsel’s testimony that he had interviewed the officers involved who confirmed that there
was “continued observation of the Petitioner by the officers,” which contradicted the
Petitioner’s claims that officers lost sight of the Petitioner after the drug transaction. As a
result, the court concluded that there were no grounds upon which Counsel could have
successfully argued a motion to suppress the evidence. The record does not preponderate
against the post-conviction court’s conclusions, and given the below analysis and conclusion,
the Petitioner’s reliance on Rule 403 does not persuade us otherwise.

As we understand the Petitioner’s argument, he asserts that there is insufficient
evidence to connect the bag of cocaine to the Petitioner, and as a result, reasonable grounds
exist to exclude the evidence under Rule 403 as it would be highly prejudicial to the

3
In his petition for post-conviction relief, the Petitioner alleges that Counsel should have made
various other motions, such as a motion to sever or a self-defense motion. The post-conviction court denied
relief on these claims, and the Petitioner did not raise them in his brief. Therefore, these claims have been
waived.

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Petitioner’s case. Under Tennessee Rules of Evidence, relevant evidence “may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” Tenn. R. Evid. 403. However, this Court has
held that “the mere fact that evidence is particularly damaging does not make it unfairly
prejudicial.” State v. Gentry, 881 S.W.2d 1, 7 (Tenn. Crim. App. 1993); see also, State v.
Dulsworth, 781 S.W.2d 277, 287 (Tenn. Crim. App. 1998) (“Any evidence which tends to
establish the guilt of an accused is highly prejudicial to the accused, but this does not mean
that the evidence is inadmissible as a matter of law.”). Rather, unfair prejudice has been
defined by the Tennessee Supreme Court as “‘[a]n undue tendency to suggest a decision on
an improper basis, commonly, though not necessarily an emotional one.’” State v. Banks,
564 S.W.2d 947, 951 (Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory Committee Notes).
“Prejudice becomes unfair when the primary purpose of the evidence at issue is to elicit
emotions of ‘bias, sympathy, hatred, contempt, retribution, or horror.’” State v. Collins, 986
S.W.2d 13, 20 (Tenn. Crim. App. 1998) (quoting M. Graham, Handbook of Federal Evidence
182-83 (2d ed. 1986)), perm. app. denied (Tenn. Nov. 2, 1998).

In the present case, the Petitioner has not established any grounds to exclude the
evidence as unfairly prejudicial under Rule 403. The Petitioner does not assert that the
purpose of introducing the bag of cocaine was to elicit a decision based on emotions of bias,
sympathy, hatred, contempt, retribution, or horror; nor does he assert that the introduction
of the bag of cocaine created a danger of confusing or misleading the jury, undue delay,
waste of time, or needless presentation of cumulative evidence. See Tenn. R. Evid. 403.
Rather, he merely asserts that doubt exists as to whether the bag of cocaine could be
connected to the Petitioner. We agree with the State that exclusion based on this premise is
not the role of Rule 403. The gravamen of the Petitioner’s claim is that the evidence was
irrelevant. See Tenn. R. Evid. 402. Based upon the projected testimony, the trial court
would have been within its discretion to hold that the evidence was relevant. Therefore, we
conclude that the Petitioner has failed to prove by clear and convincing evidence that the bag
of cocaine was inadmissible, and he is not entitled to relief on this issue.

II. Guilty Plea. The Petitioner contends that due to Counsel’s deficiencies, he entered
involuntary and unknowing guilty pleas. He maintains that he believed he was going to trial
up until the night before the trial date when Counsel called him and coerced him into
accepting the plea offer by telling him that “he would never see the light of day again” if he
did not accept it. He contends that Counsel was not prepared for trial and that he accepted
the plea offer because he was scared. He further asserts that he only answered affirmatively
to all of the questions asked during the guilty plea hearing because Counsel advised him to
say “yes” to everything asked.

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 When analyzing the validity of a guilty plea, we follow the federal landmark case of
Boykin v. Alabama, 395 U.S. 238 (1969), and the Tennessee landmark case of State v.
Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on other grounds by rule as stated in
State v. Wilson, 31 S.W.3d 189, 193 (Tenn. 2000). State v. Pettus, 986 S.W.2d 540, 542
(Tenn. 1999). In Boykin, the United States Supreme Court held that a trial court may not
accept a guilty plea unless there is an affirmative showing that the guilty plea was “intelligent
and voluntary.” 395 U.S. at 242. When accepting a guilty plea, the trial court is responsible
for “canvassing the matter with the accused to make sure he has a full understanding of what
the plea connotes and of its consequence.” Id. at 244. In Mackey, the Tennessee Supreme
Court held that “the record of acceptance of a defendant’s plea of guilty must affirmatively
demonstrate that his decision was both voluntary and knowledgeable, i.e., that he has been
made aware of the significant consequences of such a plea; otherwise, it will not amount to
an ‘intentional abandonment of a known right.’” 553 S.W.2d at 340.

The Tennessee Supreme Court has emphasized that a plea is not voluntary if it is the
result of “‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant
threats . . . .’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395
U.S. at 242-43). A trial court must look at a number of circumstantial factors before
determining whether a guilty plea is voluntary and intelligently made. Id. These factors
include the following:

the relative intelligence of the defendant; the degree of his familiarity with
criminal proceedings; whether he was represented by competent counsel and
had the opportunity to 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.

Id. (citing Caudill v. Jago, 747 F.2d 1046, 1052 (6th Cir. 1984)).

In denying the Petitioner relief on this issue, the post-conviction court concluded that
the transcript of the plea reflects that the Petitioner was fully advised of his rights and waived
his right to a trial in all three cases, without hesitation. The court rejected the Petitioner’s
allegations that he was simply following Counsel’s advice to answer “yes” to all questions
asked, noting that the Petitioner answered “most definitely” in response to the stipulation of
facts in the drug and attempted murder case, and stated that Counsel was “top-notch” in his
representation. The court credited Counsel’s testimony that he was prepared for trial and had
no preference whether the Petitioner accepted the plea deal, concluding that the Petitioner
accepted the plea rather than risk the consequences of a trial by jury. Thus, the court

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determined that the Petitioner had failed to prove by clear and convincing evidence that his
guilty pleas were involuntary and unknowing.

Nothing in the record preponderates against the post-conviction court’s findings.
Although the Petitioner asserts that he was pressured into pleading guilty on the eve of trial,
the record reflects that Counsel advised the Petitioner of the amended plea offer on
December 2, 2010, over a month before he actually accepted the plea offer. Counsel testified
that he reviewed the plea forms with the Petitioner and believed that the Petitioner
understood the consequences of going to trial versus accepting the settlement offer.
Moreover, at the guilty plea hearing, the court thoroughly advised the Petitioner of his rights
and the rights he would waive by pleading guilty. The Petitioner maintains that he was
scared and did not understand his pleas at the time, but the record indicates otherwise. The
Petitioner was very clear about entering a “best interest” plea in the assault case, while
entering guilty pleas in the other two cases after confirming that the facts as presented by the
State were “most definitely” true. At no point did the Petitioner express hesitation,
confusion, or unwillingness to plead guilty. The record supports the post-conviction court’s
findings that the Petitioner chose to accept the guilty plea to avoid the risk of conviction by
a jury. Thus, we conclude that the Petitioner has failed to show that the post-conviction court
erred by denying his petition for post-conviction relief, and he is not entitled to relief.

CONCLUSION

Based on the above authority and analysis, the judgment of the post-conviction court
is affirmed.

___________________________________
CAMILLE R. McMULLEN, JUDGE

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