Kenneth Bartley v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 28, 2012

KENNETH BARTLEY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Campbell County
No. 14746 Jon Kerry Blackwood, Judge

No. E2011-01603-CCA-R3-PC - Filed March 11, 2013

The State appeals the post-conviction court’s grant of relief to the Petitioner, Kenneth
Bartley, contending that (1) the court erred in admitting the affidavit of Dr. James Murray;
(2) the Petitioner failed to establish that trial counsel provided ineffective assistance; and (3)
the Petitioner is entitled to no relief on his previously determined claim that his guilty plea
was not knowingly, intelligently, and voluntarily entered. Upon review, we affirm the
judgment of the post-conviction court.

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 J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
William Paul Phillips, District Attorney General; Michael O. Ripley and Scarlett W. Ellis,
Assistant District Attorneys General, for the Appellant, State of Tennessee.

Gregory P. Isaacs and Andrea B. Mohr, Knoxville, Tennessee, for the Petitioner-Appellee,
Kenneth Bartley.

OPINION

This case concerns the November 8, 2005 shooting at the Campbell County High
School, in which one victim, Ken Bruce, died and two victims, Gary Seale and Jimmy
Charles Pierce, were injured. The Petitioner, who was fourteen years old at the time of the
shooting, was arrested. Following his charge in juvenile court, his waiver of a transfer
hearing, his indictment in criminal court, his remand to juvenile court for a transfer hearing,
and his transfer from juvenile court to criminal court, the Petitioner was indicted by the
Campbell County Grand Jury for one count of first degree premeditated murder, one count
of first degree felony murder, two counts of attempted first degree murder, one count of
carrying a firearm in a public school, one count of possession of a Schedule IV controlled
substance with intent to sell, and one count of possession of a Schedule IV controlled
substance with intent to deliver.

Trial and Entry of Guilty Plea. On April 10, 2007, the Petitioner’s case proceeded
to trial. Prior to the jury being sworn, the State informed the trial court that it had a matter
that needed to be discussed outside the presence of the jury and requested that the parties
meet with the trial court in chambers. Once in chambers, trial counsel waived the
Petitioner’s presence at the meeting. The State then informed the court that before jury
selection began that morning, it made a counter-offer to the Petitioner, which he declined.
The Petitioner, through counsel, made the State an offer, which it declined. Then the State
made the Petitioner a counter-offer, which he accepted. The accepted offer was that the
Petitioner would plead guilty to one count of second degree murder and two counts of
attempted second degree murder in exchange for consecutive sentences of twenty-five years
at one hundred percent release eligibility and two sentences of ten years at twenty percent
release eligibility, for an effective sentence of forty-five years. As a part of the plea
agreement, the Petitioner’s remaining charges would be dismissed.

Upon hearing the terms of the plea agreement, the trial court invited the victims and
the family of the deceased victim into chambers. Trial counsel announced that if the victims
were going to meet in chambers then the Petitioner should join the meeting in chambers. The
surviving victims, the deceased victim’s family, and the Petitioner entered the court’s
chambers. The court explained the terms of the plea agreement to the victims and the
deceased victim’s family, who all stated that they believed the State was representing their
best interests. At that point, the victims, victim’s family, and the Petitioner exited chambers.
The court instructed the attorneys to draft the plea agreement.

In open court, the State announced that the State and the Petitioner had agreed to the
aforementioned plea agreement, and the Petitioner was sworn. The Petitioner testified that
he was fifteen years old and was in the ninth grade. He acknowledged that he was charged
with first degree murder and that he was facing a sentence of life imprisonment. He also
acknowledged that he was charged with two counts of attempted first degree murder and was
facing a sentence between twenty-five and sixty years for these counts. The Petitioner
further acknowledged his other charges and the sentences he was facing for each of those
charges. The Petitioner said he understood that he had a right to plead not guilty to his
charges and that he would be entitled to a jury trial. He acknowledged all of his rights
associated with a jury trial. He also acknowledged that if his case had been submitted to a
jury, the court would have instructed the jury on the lesser included offenses of first degree
murder, including second degree murder, voluntary manslaughter, reckless homicide, and

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criminal negligent homicide, which carried lesser sentences than first degree murder. Then
the following exchange occurred between the trial court and the Petitioner:

The Court: Having explained all those rights to you, do you now
hereby voluntarily waive or give up your right to a jury
trial?

[The Petitioner]: Yes, sir.

The Court: Do you understand that by giving up your jury trial rights
you are also giving up your right to an appeal of these
convictions–do you understand that?

[The Petitioner]: Yes, sir.

....

The Court: Do you understand that by your plea of guilty, that that is
the strong evidence against you?

[The Petitioner]: Yes, sir.

The Court: Do you understand that by your plea of guilty to these
offenses that you are stipulating that there would be a
factual basis to support these convictions if this case
proceeded to trial?

[The Petitioner]: Yes, sir.

The Petitioner said that he understood the terms of his plea agreement and the sentences that
he would receive under the plea agreement. He also acknowledged that he might not be
granted parole after serving twenty percent of the two ten-year sentences. He then entered
guilty pleas to one count of second degree murder and two counts of attempted second degree
murder, which were accepted by the trial court. The trial court then sentenced him to
consecutive sentences of twenty-five years at one hundred percent for the second degree
murder conviction and two ten-year sentences at twenty percent for the attempted second
degree murder convictions, for an effective sentence of forty-five years.

Motion to Withdraw Guilty Plea. On May 8, 2007, the Petitioner, with the
assistance of trial counsel, filed a motion to withdraw his guilty plea, alleging (1) his plea

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was entered without a recitation of facts that would justify a finding of guilt, and (2) his plea
was entered without the consent of his parents and his mother did not agree with the plea.

On June 26, 2007, the Petitioner, through new counsel, filed an amended motion to
withdraw his guilty plea, additionally claiming that his plea was not knowing and voluntary
because (1) he was not informed of the relevant lesser included offenses and sentences for
the charged offenses; (2) he was “only fifteen years old at the time and was deprived of the
opportunity to meet with and consult with his parents regarding the plea offer” (3) he was
pressured by trial counsel to accept the offer and was not given the opportunity to discuss the
last-minute offer with any other individuals, especially his parents; and (4) “given the status
of his case and defense theory, and being [that] he was of ‘tender years’ at age fifteen, he was
compelled to follow his counsel’s recommendation [that] he accept the guilty plea and
sentences rendered in this case.”

On July 2, 2007, after conducting an evidentiary hearing on the motions to withdraw
the guilty plea, the trial court denied the motions. The Petitioner appealed, claiming that
there were no facts presented that supported his guilty plea and that his plea was not knowing
and voluntary. See State v. Kenneth S. Bartley, No. E2007-01649-CCA-R3-CD, 2009 WL
1175148, at *1 (Tenn. Crim. App. May 1, 2009), perm. app. denied (Tenn. Oct. 19, 2009).
On appeal, this court affirmed the trial court’s denial of the motions to withdraw the plea,
concluding that the Petitioner’s plea was knowing and voluntary and that the trial court’s
finding that the Petitioner understood the factual basis of his guilty plea was supported by the
record. See id. at *6-8.

Post-Conviction Petition. On October 18, 2010, the Petitioner, through a third
attorney, filed a timely petition for post-conviction relief, claiming that his guilty plea was
not knowing and voluntary and that trial counsel provided ineffective assistance.
Specifically, the Petitioner argued that his guilty plea was not knowing, voluntary, or
intelligent because: (1) in light of his age and history of psychological problems, he “lacked
the capacity to sufficiently understand the proceedings and the full consequences of
accepting the State’s plea offer”; (2) he had a meritorious defense to the charges of first
degree premeditated murder and first degree felony murder, of which trial counsel did not
inform him; and (3) the trial court failed to inquire during the plea colloquy whether his plea
was voluntary and not the result of force, threats, or promises as required by Rule 11 of the
Tennessee Rules of Criminal Procedure and 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). The Petitioner also specifically argued that trial counsel provided ineffective
assistance of counsel by: (1) failing to timely communicate the State’s initial plea offer and
the Petitioner’s acceptance of it and to petition the court for the enforcement of the initial
agreement after learning that it had been withdrawn by the State; (2) failing to conduct a

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reasonable investigation of his case prior to trial and failing to interview, prepare, or
subpoena necessary fact and expert witnesses; (3) failing to file a motion to suppress his
recorded statement and failing to file a motion for a change of venue; (4) failing to
communicate to his parents the State’s offer at trial and failing to include his parents in the
his decision regarding whether to accept or reject the offer; (5) failing to move for a
continuance so that he would have additional time to consider the State’s offer; and (6)
failing to raise the issue of his diminished capacity at the time he committed the offenses.

On November 23, 2010, the State responded to the petition, asserting that the
Petitioner’s claim that his guilty plea was not knowing, voluntary, or intelligent was waived,
or, alternatively, that this claim had been previously determined under Tennessee Code
Annotated section 40-30-106. The same day, the State filed a motion to dismiss the post-
conviction petition.

At the June 2, 2011 post-conviction hearing, Rita Broyles the Petitioner’s mother,
testified that after the shooting, she retained trial counsel and Dr. Diana McCoy, a
psychologist. Dr. McCoy met with her son frequently while he was incarcerated at the Knox
County Detention Center and twice a month while he was incarcerated at Mountain View
Development Center. Early in the case, Broyles said trial counsel informed her and the
Petitioner’s father that he had received an offer, contingent on the Petitioner waiving his
transfer hearing, of “15 years for manslaughter, two ten years for assault [which] would be
concurrent [with the] 15 years, and that [the Petitioner] at eight years could be up for parole
and . . . if he . . . did well, did not get in trouble, anything like that, that he would be up for
parole.” Trial counsel encouraged Broyles and the Petitioner’s father to talk about the offer
with the Petitioner as a family. The Petitioner subsequently told trial counsel that he wanted
to accept that offer, and he waived his transfer hearing. Once the Petitioner accepted the first
plea agreement, he was moved from the Knox County Detention Center to Mountain View
Development Center on March 30, 2006. She said that trial counsel never talked to her about
when her son would enter his guilty plea regarding the fifteen-year plea agreement.

Broyles said that in September or October of 2006, trial counsel informed her that
“there was no longer an agreement because the deceased victim’s widow had not agreed to
that plea agreement.” She said that her son was “naturally upset, sad” when he discovered
that the plea agreement had been rescinded.

Broyles stated that after the transfer hearing, her son was sent to criminal court to be
tried as an adult. At the end of March 2007, she and the Petitioner’s father visited the
Petitioner at Mountain View Development Center and encountered trial counsel, who was
visiting him as well. During that visit, trial counsel told them that he had received another
offer for a total of forty-five years, consisting of a twenty-five year sentence at one hundred

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percent and two ten-year sentences at thirty percent, which the Petitioner quickly rejected
after discussing it with his family and trial counsel. Broyles said she agreed that her son
should reject the offer, especially because his trial date was so near.

Broyles said that on her son’s trial date on April 10, 2007, the courtroom was
“packed” with “people standing against the walls . . . a lot of cameras, reporters” and that
every juror had heard about her son’s case. She said that a tentative jury had been selected
prior to lunch.

After lunch, Broyles returned to the courtroom, which was still crowded. She said that
trial counsel, the prosecutor, and the trial court went into chambers to talk, which lasted a
long time, and the Petitioner remained in the courtroom. Then the Petitioner and the victims
and deceased victim’s family went into chambers and met for a lengthy period of time. At
that point, Broyles said she was unaware that the prosecution had made an offer to her son.
She said that trial counsel never informed her as to the reason for the meetings and that she
believed that she would also be summoned into chambers. Broyles saw everyone exit the
chambers and take their seats. Then trial counsel motioned to Broyles and the Petitioner’s
father to come up to the railing and whispered to them that their son “took a plea.” When she
asked about the details of the plea, counsel whispered, “25 years and two ten’s[.]” She said
that this was the only information that trial counsel gave her about the plea at the time. She
also said that she believed her son had formally taken the plea during the meeting in
chambers. She acknowledged that the offer accepted by her son contained the same sentence
lengths as the offer that the Petitioner had quickly rejected the previous week.

After trial counsel told her that her son had accepted the offer from the State, Broyles
met with her son in the conference room. Broyles said she cried and hugged her son. She
also said her son did not say anything about the plea or what had happened. She did not
recall trial counsel saying anything while she was in the conference room.

One week after the Petitioner entered his plea, Broyles met with trial counsel to get
an explanation of what had happened in her son’s case. Trial counsel told her, “[W]e can
appeal it[,]” and she agreed that an appeal was necessary because she and her son did not
agree with the plea. Broyles said that her son first told her that he did not agree with the plea
the Saturday after he entered his guilty plea.

On cross-examination, Broyles admitted that trial counsel informed her that her son’s
earliest parole eligibility on the life sentence was fifty-one years, that her son was facing a
total of fifty-six years on all of the other charges, and that the court could order these
sentences to be served consecutively for an effective sentence of one hundred and seven
years.

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 Broyles said that she was aware of the surviving victim’s testimony regarding the
incident and that she had read the statements given by the victims. She was also aware that
her son admitted to shooting the victims. However, Broyles said that her son “was a 15-year
old kid told what to do.” She stated that she never asked her son if he wanted to accept the
plea agreement and that her son never told her this was what he wanted to do. She could not
remember if her son acknowledged the plea at all while she was with him.

The Petitioner, age nineteen, testified that he was fourteen years old at the time of the
shooting incident at Campbell County High School. The Petitioner said that prior to the
shooting incident, he had never made any important decisions. He said he had never needed
a lawyer prior to this incident and had never watched a trial.

The Petitioner stated that his parents hired trial counsel shortly after he was arrested.
After one or two other meetings, trial counsel visited him at the Knox County Detention
Center and informed him that the State had made him an offer of “20 years, with a 15-year
sentence for manslaughter and two 10-year sentences for aggravated assault” with parole
eligibility after “eight years” contingent on his waiving his transfer hearing. The Petitioner
said that both of his parents were present when trial counsel discussed the offer with him and
that they met for more than an hour. At the end of the meeting, the Petitioner accepted the
offer. He waived his transfer hearing and was sent to Mountain View Development Center.

The Petitioner said that approximately six months to one year after the offer was made
his mother informed him that the State had rescinded the initial offer. His mother told him
that the State had withdrawn the offer because the deceased victim’s family did not agree to
it.

The Petitioner then met with trial counsel, who also informed him that the State’s
offer had been withdrawn and that they would return to juvenile court. After the transfer
hearing, his case was transferred to criminal court.

The Petitioner stated that trial counsel met with him shortly before trial to discuss a
second offer from the State. His mother and father were visiting him at Mountain View
Development Center when trial counsel showed up unexpectedly with the State’s second
offer, which was “25 years at a hundred percent and two ten-year sentences at 30 percent”
for an effective sentence of forty-five years. Everyone discussed whether it was in his best
interest to accept the offer, and he ultimately rejected the offer because he “didn’t think it
was in [his] best interest[,]” given that he believed he could get less time if he proceeded to
trial.

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 The Petitioner said that on the day of trial he was sitting at the counsel table with trial
counsel and Dr. McCoy. Jury selection had begun, and most of the jurors stated that they had
heard about his case. At the time, the Petitioner said he felt “[n]ervous, ashamed,
uncomfortable . . . .” By noon, the jury had been selected, and the trial court took a lunch
recess. The Petitioner believed that the trial would begin after the lunch break. Trial counsel
did not meet with him during lunch, and he ate in the holding tank in the jail. Following
lunch, he was returned to the courtroom. Then trial counsel leaned over to him and
whispered, “[W]e’ve got one last . . . agreement,” consisting of “45 years with 25 at a
hundred [percent] and the two ten’s at 20 [percent].” The Petitioner said, “I’ll do it[.]” The
Petitioner said that he agreed to the offer without asking trial counsel a single question and
that counsel did not talk to him privately about this offer. The Petitioner stated that even
though his parents were sitting behind him, trial counsel did not motion for them to move
forward so that he could explain the offer to them.

The Petitioner stated that at the time he accepted the plea he was “nervous, scared.”
He added, “[T]hat’s the most pressure I’ve ever had on me at one time in my life. I didn’t
know what to do. I was thinking I didn’t have any other way out.” As soon as he told trial
counsel that he was going to accept the offer, the attorneys and the trial court went into
chambers. He said that trial counsel did not say anything else to him before going into the
court’s chambers. He also said trial counsel never asked him to come to a private room so
that they could discuss the offer and never asked him to get his parents’ approval before
going into chambers. After some time, the Petitioner and the victims and the deceased
victim’s family were asked to go into chambers. He said he could tell that the victims “were
reasonably upset and angry” and that “[t]hey wanted to see what was gonna [sic] be done.”
At the time, he felt “[h]orrible” and “[a]s nervous as you can imagine” because he was put
in the room with the victims. He said that trial counsel never informed him as to what was
going to happen in chambers. Then the victims discussed whether they thought the plea
agreement was reasonable. The Petitioner said that no one asked him what he thought about
the offer and that no one talked to him. Eventually, the victims and the prosecutor “came to
the conclusion that they would let [him] take the plea.”

The Petitioner said he was taken into a conference room with trial counsel while the
district attorney was drafting the plea agreement. He remembered the district attorney
bringing the plea agreement into the conference room and handing it to him. He said that
trial counsel did not explain the constitutional rights he was waiving or the consequences of
his guilty pleas and did not read the plea form to him. The Petitioner said he signed the form
without reading it, although he acknowledged that trial counsel told him to read the plea
agreement. The Petitioner said he believed that the plea agreement was finalized when he
signed his name to the plea form and that no one informed him that the plea agreement was
not final until he formally entered his plea in front of the trial court.

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 The Petitioner said that he was unable to meet with his parents until after he signed
the plea agreement. His mother was “crying, sad” during the meeting in the conference
room. When asked if he told his mother that he wanted to accept the offer, he responded,
“Not to the best of my knowledge.” After the emotional meeting with his mother, he went
in front of the trial court and answered questions affirmatively. The Petitioner said that trial
counsel advised him that the trial court was going to ask him numerous questions and that
he needed to “just answer them yes[,]” which he did. Other than trial counsel whispering the
offer to him, the Petitioner did not recall spending any time alone with trial counsel prior to
signing the plea agreement. The Petitioner stated, “I felt pressured into [accepting the offer]
because I was so nervous and scared, I didn’t . . . know any other thing to do. I put my trust
in my lawyer, [and] he let me down.”

On cross-examination, the Petitioner acknowledged that the March offer required him
to serve two more years than the offer he accepted at trial. When asked if he believed that
two years was an insignificant amount of time, the Petitioner responded, “Definite[ly].” He
acknowledged that if he had been convicted of first degree murder, he would have been
eligible for parole in fifty-one years. However, he said that under the plea agreement that he
accepted, he would be eligible for parole in twenty-nine years. When asked if the parole
eligibility reduction from thirty to twenty percent made a difference to him, he stated, “[Trial
counsel] could have c[o]me to me with the 30 percent at that point in time, and I’d have
probably [taken] it, too.” When the prosecutor asked if the Petitioner was worried that he
would receive a life sentence at trial, he responded, “I just wanted . . . my trial to be over then
because I was so nervous.” When asked if he understood that he might be convicted of first
degree murder at trial, the Petitioner said, “I’m willing to take my chances at trial.” The
Petitioner, although admitting that the possibility of being convicted of first degree murder
at trial made him nervous, said he accepted the plea because trial counsel told him there was
not another option. The Petitioner asserted that trial counsel told him, “[T]his is the last deal
right here[,]” and “[Y]ou’ll be lucky to get it.” The Petitioner then said, “I’ll take it.” He
admitted that no one forced him to enter his guilty plea. In explaining why he wanted to
withdraw his guilty plea, the Petitioner stated, “Once I realized what I had fully got myself
into, I didn’t want to do it.”

Following the Petitioner’s testimony, the Petitioner’s counsel sought to admit the
affidavit of Dr. James Murray, a forensic psychologist, which had been attached to the post-
conviction petition. In the affidavit, Dr. Murray stated that he had reviewed many of the
Petitioner’s medical and psychiatric records as well as the psychological evaluations
conducted by Dr. Diana McCoy and Dr. Vance Sherwood in an effort to determine whether
the Petitioner was competent to plead guilty. Dr. Murray opined that the Petitioner’s extreme
clinical and developmental impairments when combined with his age and “the method and
manner in which the plea was communicated, i.e.[,] suddenly during the course of a first

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degree homicide trial, raise[d] serious issues regarding whether his decision to dramatically
accept a plea agreement during the course of a trial with only a few hours’ consideration, was
knowingly, intelligently[,] and voluntarily entered into [sic].” The post-conviction court
admitted the affidavit over the State’s objection.

The State then renewed its motion to dismiss the post-conviction petition on the basis
that the grounds asserted in the petition had been previously determined by the trial court and
the Tennessee Court of Criminal Appeals. The Petitioner’s attorney responded that
ineffective assistance of counsel had not been raised in the previous proceeding and that
different testimony had been presented in the post-conviction hearing. Specifically, he
argued that the attorney who represented the Petitioner on the motion to withdraw his guilty
plea had not raised any issues regarding trial counsel’s ineffective assistance. The post-
conviction court denied the State’s renewed motion to dismiss the petition.

Trial counsel testified that he represented the Petitioner at the transfer hearing and
during the plea negotiations in this case. He disclosed what he had told the Petitioner about
his charges:

I told him that he was charged with murder, felony murder, that there were
lesser included offenses–second degree murder, manslaughter, criminally
negligent homicide or involuntary manslaughter, whichever, assault, two, I
think, aggravated assaults, lesser included offenses of those. That’s what I
remember.

He said that the Petitioner appeared to understand what trial counsel told him about his
charges. When he met with the Petitioner at the Knox County Detention Center, he said the
Petitioner “understood the charges and the lesser included offenses.”

Trial counsel said that he had been practicing law for thirty-four years and that
“seventy to eighty percent” of his practice was criminal defense. He said that he had
represented a lot of individuals who had been charged with crimes, including first degree
murder and felony murder. Trial counsel said that he had the Petitioner’s family hire Dr.
Diana McCoy, a psychologist, for the purpose of examining the possibility of an insanity
defense or diminished capacity, to help the Petitioner understand the charges against him, and
to gather facts and interview witnesses regarding the case.

Trial counsel stated that the district attorney informed him that he would accept an
offer of fifteen years, with a parole eligibility of seven or eight years, prior to the Petitioner’s
transfer hearing. The district attorney’s acceptance of this offer was conditioned on the
Petitioner waiving his transfer hearing and on the approval of the victims and the deceased

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victim’s widow. The Petitioner subsequently waived his transfer hearing and made the State
that offer. However, before the plea agreement was finalized, the Petitioner was interviewed
by Dr. Vance Sherwood, a clinical psychologist for the State. After that interview, the
district attorney said that he could no longer accept the offer of fifteen years. Trial counsel
stated that the district attorney later made an offer of twenty-five years, with a parole
eligibility of eighty-five percent, and two ten-year sentences with a parole eligibility of thirty
percent, which the Petitioner rejected.

Trial counsel said that by noon at the trial on April 10, 2007, twelve or thirteen jurors
had been tentatively accepted by both sides. The morning of the trial, the prosecutor had
communicated an offer to the Petitioner, which was the same offer that the Petitioner and his
parents had rejected approximately one week prior to trial. Voir dire for the jury began at
9:15 or 9:30 a.m and sometime around 10:30 or 11:00 a.m., the prosecutor made another
offer, which was a twenty-five-year sentence with a parole eligibility of one hundred percent
for second degree murder, and two ten-year sentences with a parole eligibility of twenty
percent. He said that the offer at trial differed from the offer rejected one week earlier only
in that the Petitioner was treated as a mitigated offender with a parole eligibility of twenty
percent rather than thirty percent. Trial counsel communicated this offer to the Petitioner at
the defense table, and the Petitioner said, “Take it.” Then trial counsel and the Petitioner
retired to the conference room where trial counsel explained the offer to him: “I told him the
State’s offer, I told him the 20 percent. I recall [the Petitioner] not being too happy at [the]
20 percent, but [he] understood and he took the offer.” He added, “At some point, [the
Petitioner’s] mother was back [t]here with us.” Trial counsel said he heard a discussion
between the Petitioner and his mother in which she said that “it was best [that] he take [the
offer.]” Then the Petitioner said “it was in his best interest that he take it.” Trial counsel
said that the Petitioner’s mother was upset at the time and that the Petitioner “was upset[,]”
but he was “clearer than she was.” Trial counsel said that the Petitioner’s father was not
present in the conference room during this discussion.

Trial counsel said that he did not recall making a recommendation to the Petitioner
about taking the offer that he ultimately accepted. He said, “I rarely recommend that a
defendant take a plea. It’s ultimately up to the defendant to accept or reject a plea. I simply
communicate the plea and make sure that they understand what they are doing.” He said that
he was satisfied that the Petitioner understood what he was doing by accepting the plea.

When asked if trial counsel believed that the plea was in the Petitioner’s best interests
at the time, he stated:

It–yes, it–it was because of the parole eligibility. If he had gone to trial,
if he were convicted of what he was charged with, he wouldn’t have been

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 eligible to make application for parole for 51 years. That’s a long time.
Twenty-three years is a long time, but 23 is less than 51 before he’s eligible for
parole.

Trial counsel said that he believed that the Petitioner was at risk of being convicted of first
degree murder at trial. However, he said he had a reasonable chance of convincing the jury
that the Petitioner should be convicted of a lesser included offense.

Trial counsel stated that he was present when the Petitioner signed the plea agreement.
When asked if he reviewed the plea agreement with the Petitioner, trial counsel stated:

I went over it generally. I outlined . . . everything that [the Petitioner]
was waiving in this. I then gave it to him to read. He read it, and I gave him
the opportunity to ask me questions. I don’t recall if he asked questions or if
he didn’t ask questions. He signed it. I can’t say that I read [the plea
agreement] word for word to [the Petitioner].

Trial counsel could not recall whether the Petitioner’s mother was in the conference room
before or after the Petitioner signed the plea agreement. He also could not recall whether the
Petitioner’s mother made any comments about the plea agreement.

On cross-examination, trial counsel admitted that the only other minor he had
represented who was charged with first degree murder was a sixteen-year-old in Union
County, Tennessee, who entered a guilty plea. He also admitted that the Petitioner’s case
was one of the largest criminal cases in Campbell County and that it was important that the
Petitioner understood what was happening in his case.

Regarding the fifteen-year offer, trial counsel said that it was important to involve the
Petitioner’s parents and that he talked with them about the offer around the same time that
he discussed it with the Petitioner. He was unsure whether the Petitioner’s parents were
present when he discussed the fifteen-year offer with the Petitioner. He said that he involved
the Petitioner’s parents because of the Petitioner’s age and because Dr. McCoy, the
psychologist, indicated that the Petitioner had some impairments.

Trial counsel said that when the fifteen-year offer became an impossibility, he notified
the Petitioner and his parents. However, trial counsel admitted that he involved the
Petitioners’ parents less in the case following the transfer hearing. Shortly before trial, trial
counsel conveyed a second offer to the Petitioner. He recalled that he unexpectedly saw the
Petitioner’s parents at Mountain View Development Center when he arrived to inform the

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Petitioner of the offer. At the end of that meeting, the Petitioner rejected the offer.

Trial counsel said that the morning of trial, the district attorney approached him with
another offer, which he rejected without presenting it to the Petitioner or the Petitioner’s
family, and jury selection began. He said that the trial court gave everyone a lunch break,
and when he returned from lunch, the district attorney tendered the offer that the Petitioner
accepted, which closely resembled the offer he had rejected just a few days before. Trial
counsel acknowledged that the courtroom was filled with people, television cameras, print
media, and jurors. He admitted that he whispered the offer to the Petitioner at the counsel
table and did not mention the offer to the Petitioner’s parents. Trial counsel said that the
Petitioner “gave an immediate response” accepting the offer within “[t]hree seconds.” Trial
counsel acknowledged that the Petitioner’s parents did not know that the Petitioner had just
accepted the offer and that he did not notify the parents of the Petitioner’s acceptance of the
offer until a later point in time. Trial counsel informed the district attorney that the Petitioner
had accepted the offer, and the attorneys asked the court for permission to settle the case.

Trial counsel said he and the district attorney went into chambers to inform the trial
court of the offer while the Petitioner remained in the crowded courtroom. At some point,
trial counsel went with the Petitioner into the conference room as the plea agreement was
being drafted. Trial counsel acknowledged that he did not involve the Petitioner’s parents
in the discussion regarding the plea agreement. He also admitted that the Petitioner was not
very happy after accepting the offer. Trial counsel acknowledged that the Petitioner’s
unhappiness after accepting the offer was “[m]aybe” a red flag.

Trial counsel admitted that the Petitioner had committed a serious offense and had a
history of drug and alcohol abuse at an early age. He also admitted that the Petitioner was
a quiet child with a history of emotional and mental problems, which had been confirmed by
Dr. Ericson, social worker Camille Heatherly, Peninsula Hospital, Ridgeview Mental Health
Center, and Grainger Family Care. He further acknowledged that the staff at Ridgeview had
determined that the Petitioner had poor judgment, poor concentration, and poor insight and
that the Petitioner was impulsive. Trial counsel admitted that “[t]hree seconds” was not long
enough for the Petitioner to consider and accept a plea agreement.

On redirect examination, trial counsel said that he communicated the offer to the
Petitioner at the counsel table as well as in the conference room at length. In addition, trial
counsel said that he “generally prepared” the Petitioner for trial and that he discussed with
the Petitioner whether he would testify.

In its written order granting post-conviction relief, the court, noting this court’s
previous refusal to allow the Petitioner to withdraw his plea, held that the issue of the

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voluntariness of the Petitioner’s plea had not been addressed within the context of ineffective
assistance of trial counsel. The court summarized the procedural history of this case and
summarized the facts that were offered for the first time at the post-conviction hearing. One
of these facts was the affidavit of Dr. James F. Murray, a forensic psychologist. The court
noted the following statement included in Dr. Murray’s affidavit:

[M]any youth–more often than adults–manifest deficits in abilities related to
trial participation that are similar to those of adults who are found incompetent
to stand trial due to mental disorders. These “youth” deficits, however, were
not related to mental disorders but to the fact that they were operating with
cognitive and psychological abilities that were still developing.

The court stated, “Dr. Murray further opines that the issue of time (the nature and impact of
sentencing) is a particularly demanding cognitive and emotional task for adolescents” and
that “[a]dolescents tend to value a decision that ends an unpleasant present-term, but
relatively short last event, in exchange for another event adolescents see occurring in the
future but not immediately impinging on them.” The court continued, “Dr. Murray opined
the Petitioner’s mental condition raises serious issues about his decision to accept the plea
in this case.” The court determined that “Dr. Murray’s findings are significant to this Court
because they are consistent with other psychological assessments in this case which touch
on functional impairments of the Petitioner.” It also said that although trial counsel had the
Petitioner’s parents hire Dr. Diana McCoy, a psychologist, to evaluate the Petitioner, to help
him understand the proceedings related to his case, and to interview witnesses, trial counsel
failed to ask Dr. McCoy “to counsel or assist the Petitioner in evaluating his understanding
of the consequences of his plea.” However, the court said, “Dr. McCoy’s lack of
participation in the plea is only a marginal issue in the Court’s assessment.”

The court also stated that it learned for the first time at the post-conviction hearing
that “three (3) seconds elapsed from the time [trial counsel] whispered to the Petitioner that
a new offer was conveyed and Petitioner’s acceptance.” The court noted:

The difference in the offer made prior to trial and the Noon offer was a
reduction of the ten-year sentence [from a thirty percent release eligibility] to
a 20% [release eligibility]. This was explained to Petitioner before the three-
second lapse of time. Other than that discussion, the Record does not indicate
any other conversations with the Petitioner before the in camera conference,
and the Record is devoid of any conversation with the parents prior to the in
camera discussion. In fact, Petitioner’s mother testified she did not know what
was occurring while in Chambers and that her son was taken to the conference
room. When Petitioner was escorted into Chambers, [she] testified she still did

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not know what was occurring. She testified that when Petitioner left
Chambers and went to the conference room, she was told that Petitioner had
taken a plea. The mother was allowed to enter the conference room, but stayed
only briefly. She hugged her son and they were emotional. Petitioner’s
mother left without being told the specifics of the plea. These are significant
facts because at all stages of the previous plea bargaining process, both parents
were closely involved with their son and [trial counsel]. The Record reveals
that the parents of the Petitioner thoroughly discussed the terms of the offers
prior to the final plea agreement subject to this order. All parties accepted the
fifteen-year sentence, but totally rejected the subsequent offers.

Further, [trial counsel] testified that the decision to plead was made
solely by the Petitioner. [Trial counsel’s] practice is not to advise a client to
either accept or reject a plea, but allow the client to make that decision. There
is no issue with this policy, but it reinforces the Court’s conclusion that the
decision to enter a plea was a split[-]second decision made by a fifteen-year-
old. The conversation that occurred between the Petitioner and [trial counsel]
in the conference room concerning the plea is meager. The Record does not
contain the specifics or the details that were discussed between Petitioner and
counsel other than Counsel’s recollection; that he explained the plea and that
Petitioner understood the terms. It should be pointed out that the eventual plea
entered only changed the total effect of Petitioner’s [release] eligibility [for
parole] by two years. Instead of 27 to 28 years to serve before parole
eligibility, the accepted plea reduced the term to 25 years. This is not a
significant reduction and has puzzled the Court for several years: why such a
small reduction would motivate the Petitioner to accept this offer. This small
reduction would seem to suggest that Petitioner had little to lose with an
eventual trial.

Although the Petitioner is of average intelligence as revealed in the
numerous psychological reports filed in this case, he has experienced some
functional disabilities. This Court previously found that the Petitioner had
experienced a lengthy transfer hearing and was familiar with Court
proceedings. [Trial counsel] is a competent attorney with thirty years of
experience. However, at the time this plea was proposed, the Record is silent
as to any advice given by [trial counsel] about the charges and the penalty to
be imposed. As he testified, [trial counsel] stated that there was another offer,
a last offer, and Petitioner took it in three seconds. Petitioner testified that he
took it because he was scared and wanted to get it over.

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 At the previous hearing on the Motion to Withdraw [the Guilty Plea],
this Court concluded that Petitioner knowingly, voluntarily, and intelligently
entered his plea. Having reviewed the additional facts presented at [the post-
conviction] hearing, this Court finds the contrary. The Court finds that the
Petitioner entered this plea to avoid a greater penalty [that he faced at trial] but
with a desire to “get it over.” The Court finds that Petitioner’s plea was not
intelligent in light of all the circumstances which include his age, functional
impairment, the excitement and tension of the trial and lack of any
involvement with his parents to any extent in those discussions. Consequently,
the Court finds that the plea was not knowing, intelligent or voluntary under
these circumstances.

The post-conviction court also found that trial counsel had provided ineffective
assistance to the Petitioner:

This finding [that the Petitioner’s plea was not knowing, intelligent, or
voluntary] brings the Court to the issue of whether [trial] counsel was
ineffective in not [ensuring] that Petitioner’s plea met the appropriate
standards. Counsel is a very skilled and accomplished attorney. However, the
Court finds that counsel’s performance was deficient in those proceedings.
[Trial counsel] knew and understood that his client was 14 years of age when
this crime occurred. His awareness of his client’s mental status was such that
he employed Dr. McCoy to assist him in assuring the Petitioner understood the
proceedings. More significantly, [trial counsel] was aware that Petitioner’s
parents played a major part in the decision making process during the plea
negotiations. [The parents] were present during the discussions of the 15-year
proposal. They discussed the second proposal and rejected that proposal in a
belief that the Petitioner would receive a lesser sentence at trial. The initial
proposal at the start of the day of trial was similarly rejected. However, after
the last offer was extended, the parents were not consulted by counsel, nor was
Petitioner given the opportunity to discuss the matter with his parents. Even
when the mother briefly entered the conference room, she was told only that
her son had accepted the plea, but not its terms. She did not have an
opportunity to consult with her son regarding the consequences of his plea.

Considering all these circumstances, the Court finds by clear and
convincing evidence that counsel’s performance was deficient in: failing to
involve the parents in the last plea agreement; not informing the Court that the
acceptance by Petitioner was a split[-]second decision; not discussing fully
with the Petitioner the ramification of his plea before the in camera

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 proceeding; and, not providing Petitioner with meaningful advice about the
insignificant reduction of two years in the offer.

The Petitioner’s testimony reveals that he would not have taken the plea
absent the circumstances outlined above. Therefore, the Court finds the
evidence is clear and convincing that the results would have been different
absent counsel’s error. The prejudice prong of Strickland has been
established. See Strickland v. Washington, 466 U.S. 668, 694 (1984).

ANALYSIS

I. Affidavit of Dr. James Murray. The State argues that the trial court erred in
admitting, over its objection, the affidavit of Dr. James Murray, a forensic psychologist,
because it was inadmissible pursuant to the Post-Conviction Procedures Act, the Rules of
Post-Conviction Procedure, and the Rules of Evidence. Specifically, the State argues that
the Petitioner, in stating only that the affidavit was “reliable,” failed to provide an exception
to the hearsay rule and failed to cite to any other authority that would allow for the admission
of the affidavit. It asserts that given the trial court’s error in admitting the affidavit, this court
is precluded from considering it on appeal. In response, the Petitioner contends that because
the affidavit was submitted at the same time and in support of the post-conviction petition,
it is a part of the record. In addition, the Petitioner argues that the affidavit is not hearsay and
that the State has waived the hearsay issue because it failed to object to the affidavit as
hearsay at the post-conviction hearing. We agree with the State that the trial court erred in
admitting Dr. Murray’s affidavit.

Here, after the Petitioner testified at the post-conviction hearing, the Petitioner’s
attorney stated that he wished to admit the affidavit of Dr. Murray, “which [was] a part of
the record.” The State objected, arguing that the affidavit was not a part of the record, and
Petitioner’s counsel stated that the affidavit was attached to its petition as Exhibit M. The
State objected to the affidavit’s admission on the ground that it was not in evidence, even
though the affidavit had been attached to the post-conviction petition. The Petitioner’s
counsel responded that sworn affidavits were “clearly reliable” and that the State had not
objected to the affidavit’s attachment to the post-conviction petition. The post-conviction
court stated, “I’ll let it in.”

We initially note that “[a]ffidavits, records or other evidence available to the petitioner
supporting the allegations of the [post-conviction] petition may be attached to it.” T.C.A. §
40-30-104(e). Although Dr. Murray’s affidavit properly supported the allegations in the
post-conviction petition, the trial court erred in admitting it as evidence in the post-conviction

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hearing. It is well-established that affidavits are generally inadmissible at evidentiary
hearings:

“An affidavit is ordinarily not admissible to prove facts in issue at an
evidentiary hearing, because it is not subject to cross examination and would
improperly shift the burden of proof to the adverse party. . . . Affidavits are
generally not competent evidence unless provided by statute. . . . As a general
rule, a party is not permitted to create an issue of fact by submitting a[n]
affidavit whose conclusions contradict a prior deposition or other sworn
testimony.”

State v. Amy Jo Blankenship, No. M2002-01878-CCA-R3-CD, 2004 WL 508500, at *4
(Tenn. Crim. App. Mar. 16, 2004) (quoting 3 Am. Jur. 2d Affidavits § 19 (2002))
(concluding that the appellant’s affidavit, which alleged that the public defender’s office had
coerced her into pleading guilty, failed to fulfill her burden of establishing why her guilty
pleas should be withdrawn pursuant to Tennessee Rule of Criminal Procedure 32(f)); State
v. Ricky Brandon and Jimmy W. Brandon, No. M2002-00073-CCA-R3-CD, 2002 WL
31373470, at *3 (Tenn. Crim. App. Oct. 15, 2002) (concluding that the appellants’ affidavits,
which alleged facts supporting their ineffective assistance of counsel claims, failed to fulfill
their burden of proving the factual allegations in the petition for post-conviction relief by
clear and convincing evidence). Furthermore, “affidavits are incapable of credibility
assessment, which is oftentimes pivotal in determining ineffective assistance of counsel
claims.” Amy Jo Blankenship, 2004 WL 508500, at *4; Ricky Brandon, 2002 WL
31373470, at *3. Therefore, we will not consider the information contained in Dr. Murray’s
affidavit in determining whether the Petitioner was entitled to post-conviction relief.

II. Ineffective Assistance of Counsel and Voluntariness of Guilty Plea. The State
argues that the Petitioner failed to establish that trial counsel provided ineffective assistance
of counsel. In addition, it contends that the Petitioner is entitled to no relief on his claim that
his guilty plea was not knowingly, voluntarily, and intelligently entered. The Petitioner
asserts that the post-conviction court properly granted relief on these grounds.

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 (2012). 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

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 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)).

A. Ineffective Assistance of Counsel. The State argues that the Petitioner failed to
establish that trial counsel’s performance was deficient or prejudicial. Specifically, the State
contends that the record does not support the post-conviction court’s determinations that trial
counsel rendered deficient performance in “failing to involve the parents in the last plea
agreement; not informing the Court that the acceptance by Petitioner was a split[-]second
decision; not discussing fully with the Petitioner the ramifications of his plea before the in
camera proceeding; and not providing the Petitioner with meaningful advice about the
insignificant reduction of two years in the final offer.”

In response, the Petitioner contends that he established by clear and convincing
evidence “that trial counsel was ineffective in the manner and method in which he
communicated the final plea offer and advised, or failed to advise, [the Petitioner] and his
family regarding the plea.” He also argues that trial counsel was ineffective because he knew
of the Petitioner’s history of “mental and emotional problems” and failed to involve the
Petitioner’s parents prior to the Petitioner’s entering his guilty plea at trial. Moreover, he
argues that trial counsel was aware that the Petitioner and his parents made the decision to
reject an almost identical offer from the State just prior to trial. The Petitioner claims the
record established that if he had been given a “meaningful opportunity” to discuss the plea
agreement with his parents, there is a substantial likelihood that he would have rejected the
plea agreement.” The record supports the post-conviction court’s determination that trial
counsel provided ineffective assistance to the Petitioner in this case.

Vaughn repeats 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

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 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.

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);
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). The appropriate standard is “whether the advice given,
or the services rendered by the attorney, are within the range of competence demanded of
attorneys in criminal cases.” 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.’” Goad, 938
S.W.2d at 370 (quoting Strickland, 466 U.S. at 694). In order to satisfy the “prejudice”
requirement in 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 Serrano v. State, 133
S.W.3d 599, 605 (Tenn. 2004). In other words, the “prejudice” requirement “focuses on
whether counsel’s constitutionally ineffective performance affected the outcome of the plea
process.” Hill, 474 U.S. at 59.

Broyles, the Petitioner’s mother, testified that she and the Petitioner’s father were
involved in the Petitioner’s decision to accept the offer of fifteen years and to reject the offer
of forty-five years, which were received prior to trial. She stated that she was unaware that
the State had made an offer to her son during trial and was never informed as to the reason
for the meetings in chambers. After her son returned from the meeting in chambers, trial
counsel told her only that her son “took a plea” and that the plea agreement was for “25 years
and two ten’s.” Broyles said she was under the mistaken impression that her son had entered

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his plea during the meeting in chambers. She also stated that trial counsel never said
anything to her about the plea when she met with her son in the conference room. A week
after her son entered his plea, Broyles met with trial counsel and informed him that an appeal
was necessary because neither she nor her son agreed with the plea.

The Petitioner testified that most of the jurors who were selected stated that they had
heard about his case and that he felt “[n]ervous, ashamed, uncomfortable . . . .” When trial
counsel told him in open court that they had received one last offer from the State of twenty-
five years at one hundred percent and two ten-year sentences at twenty percent, the Petitioner
immediately said, “I’ll do it,” without asking counsel any questions about the offer. The
Petitioner said that trial counsel never spoke privately with him to explain the offer and never
informed his parents, who were sitting behind him, of the offer prior to him going into the
meeting in chambers. The Petitioner said that he felt “[h]orrible” and “[a]s nervous as you
can imagine” during the meeting in chambers because he was put in the room with the
victims and was never informed as to what was going to happen. He stated that trial counsel
never explained the constitutional rights he was waiving or the consequences of his guilty
pleas. He also stated that trial counsel did not read the plea agreement to him. The Petitioner
said he believed his plea was finalized when he signed his name to the plea agreement and
that trial counsel never informed him that the agreement was not finalized until he formally
entered his plea in front of the trial court. He also said he was unable to meet with his
parents until after he signed the plea agreement. The Petitioner asserted that the two-year
reduction in the offer he accepted was insignificant and that he probably would have
accepted the prior offer with a release eligibility of thirty percent given his mental state at
trial.

Lastly, trial counsel testified that he asked the Petitioner’s family to hire Dr. Diana
McCoy, a psychologist, to help the Petitioner understand his charges and to gather facts and
interview witnesses in the case. He acknowledged that the Petitioner had a history of
emotional and mental problems as well as drug and alcohol problems at an early age. He also
acknowledged that medical records revealed that the Petitioner had poor judgment and
insight and that the Petitioner was known to be impulsive. Although trial counsel admitted
that it was important to involve the Petitioner’s parents in the offers received from the State
because of the Petitioner’s age and his mental problems, he admitted, without explanation,
that he involved the parents less in the Petitioner’s case after the Petitioner’s transfer hearing.
Trial counsel stated that he whispered the offer received at trial to the Petitioner, who “gave
an immediate response” accepting the offer within “[t]hree seconds.” However, he admitted
that he did not mention this offer to the Petitioner’s parents and did not notify the Petitioner’s
parents of the Petitioner’s acceptance of the offer until a later point in time. Trial counsel
acknowledged that he did not involve the Petitioner’s parents in the discussion regarding the

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plea agreement. He also acknowledged that he did not know whether the Petitioner’s mother
came into the conference room before or after the Petitioner signed the plea agreement.

Here, the post-conviction court held that trial counsel was deficient in failing to
involve the Petitioner’s parents in considering the offer, failing to inform the court that the
Petitioner’s decision to accept the offer was a split-second decision, failing to discuss with
the Petitioner the consequences of the plea before the in camera proceeding, and failing to
provide meaningful advice of the insignificant reduction of two years in the last offer from
the State. After reviewing the record, we conclude that trial counsel was deficient in failing
to involve the Petitioner’s parents and Dr. McCoy in the decision as to whether to accept the
offer from the State received the day of trial. Trial counsel was aware of his client’s age, his
client’s mental and emotional problems, and his client’s tendency to be impulsive. He also
had convinced the Petitioner’s parents to hire Dr. McCoy, a psychologist, to assist the
Petitioner in understanding his charges. Trial counsel admitted that he had discussed the two
prior offers with the Petitioner’s parents. Despite this, trial counsel failed to involve, most
importantly, the Petitioner’s parents and, to a lesser degree, Dr. McCoy, given her prior
involvement, in the Petitioner’s decision regarding the offer, and we conclude that this
critical error constituted deficient performance. Moreover, we agree with the post-conviction
court’s finding that but for trial counsel’s deficiency in failing to involve the Petitioner’s
parents and Dr. McCoy in his decision regarding the plea, the Petitioner would not have
pleaded guilty and would have proceeded to trial. Upon review, the record demonstrates by
clear and convincing evidence that trial counsel’s performance fell below the level of
competence required in criminal cases. In addition, the record also demonstrates a
reasonable probability of prejudice because, but for trial counsel’s errors in failing to involve
the Petitioner’s parents and Dr. McCoy in the decision regarding the plea, the Petitioner
would not have pleaded guilty and would have proceeded to trial.

B. Voluntariness of Guilty Plea. The State argues that the Petitioner is entitled to
no relief on his claim that his guilty plea was not knowingly, voluntarily, and intelligently
entered. First, the State contends that this court previously determined that the Petitioner’s
guilty plea was knowingly and voluntarily entered when the Petitioner appealed the denial
of his motion to withdraw his guilty plea. See T.C.A. § 40-30-106(h) (“A ground for relief
is previously determined if a court of competent jurisdiction has ruled on the merits after a
full and fair hearing.”); Kenneth S. Bartley, 2009 WL 1175148. Second, the State asserts
that even if the Petitioner could relitigate this claim, he has failed to establish that his guilty
plea was not knowing, voluntary, and intelligent. Finally, the State contends that there was
no new evidence presented at the post-conviction hearing that undermined this court’s prior
decision affirming the denial of the motion to withdraw his guilty plea.

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 In response, the Petitioner argues that the trial court’s finding that his plea “was not
knowing, voluntary and intelligent was grounded in the court’s holding that Mr. Bartley
received ineffective assistance of counsel” and that these two issues were “necessarily and
inextricably intertwined in evaluating Mr. Bartley’s claims for post-conviction relief.”
Consequently, the Petitioner asserts that the issue of the voluntariness of his plea within the
context of ineffective assistance of counsel had not been previously determined. The
Petitioner also contends that he did not waive the issue that counsel’s ineffective assistance
rendered his plea unknowing and involuntary because there is no requirement that he raise
this issue in his motion to withdraw his guilty plea or on direct appeal. See Kendricks v.
State, 13 S.W.3d 401, 405 (Tenn. Crim. App. 1999) (“[B]ecause of the significant amount
of development and factfinding” required for these claims, “we do not believe the Legislature
intended the issue of ineffective assistance of appellate counsel to be waived if not raised on
direct appeal.”). Finally, despite the State’s arguments to the contrary, the Petitioner argues
that he presented new evidence regarding the voluntariness of his plea within the context of
counsel’s ineffective assistance at the post-conviction hearing, which focused “on the timing
and sufficiency of [the Petitioner’s] discussions with counsel regarding the ramifications of
the plea.” We conclude that because the Petitioner’s issue regarding the voluntariness of the
his plea was so interconnected with his claim of ineffective assistance, it was not previously
determined or waived. Moreover, we conclude that the Petitioner presented new evidence,
including his “split[-]second decision” to accept the offer at trial without the benefit of his
parents, which related to the voluntariness of his plea within the context of the counsel’s
ineffective assistance.

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.

“[I]n evaluating the knowing and voluntary nature of a guilty plea, ‘[t]he standard was
and remains whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.’” Jaco v. State, 120 S.W.3d 828, 831

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(Tenn. 2003) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). 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)).

Broyles testified that the day of the Petitioner’s trial the courtroom was “packed” with
people, cameras, and reporters and that every juror had heard about her son’s case. She
stated that although she and the Petitioner’s father were involved in the Petitioner’s decision
to accept the offer of fifteen years and to reject the offer of forty-five years that were
received prior to trial, she was unaware that the State had made an offer to her son during
trial and was never informed as to the reason for the meetings in chambers. Only after her
son returned from the meeting in chambers was she told by trial counsel that her son “took
a plea” and that the plea agreement was for “25 years and two ten’s.” She also said that trial
counsel never said anything to her about the plea when she met with her son in the
conference room after the meeting in chambers. A week after her son entered his plea,
Broyles met with trial counsel and informed him that an appeal was necessary because
neither she nor her son agreed with the plea. She opined that her son accepted the offer at
trial because he “was a 15-year old kid told what to do.”

The Petitioner testified that prior to the shooting incident, he had never had to make
any important decisions, had never needed an attorney, and had never watched a trial. He
confirmed his mother’s testimony that most of the jurors had heard about his case. He stated
that at trial he felt “[n]ervous, ashamed, uncomfortable . . . .” He also stated, “[T]hat’s the
most pressure I’ve ever had on me at one time in my life. I didn’t know what to do. I was
thinking I didn’t have any other way out.” When trial counsel told him in open court that
they had received one last offer from the State of twenty-five years at one hundred percent
and two ten-year sentences at twenty percent, the Petitioner immediately said, “I’ll do it.”
He stated that he never asked trial counsel any questions about the offer and that trial counsel
never spoke privately with him to explain the offer. In addition, the Petitioner said trial

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counsel never informed his parents, who were sitting behind him, of the offer prior to his
having the meeting in chambers. The Petitioner stated that during the meeting in chambers,
he felt “[h]orrible” and “[a]s nervous as you can imagine” because he was put in the room
with the victims and was never informed as to what was going to happen. He stated that trial
counsel never explained the constitutional rights he was waiving or the consequences of his
guilty pleas. He also stated that trial counsel did not read the plea agreement to him. The
Petitioner said he believed his plea was finalized when he signed his name to the plea
agreement and that trial counsel never informed him that the agreement was not finalized
until he formally entered his plea in front of the trial court. Moreover, he asserted that he
was unable to meet with his parents until after he signed the plea agreement. The Petitioner
said, “I felt pressured into [accepting the offer at trial] because I was so nervous and scared,
I didn’t . . . know any other thing to do. I put my trust in my lawyer, [and] he let me down.”
He also added, “I just wanted . . . my trial to be over because I was so nervous.” The
Petitioner said that the two-year reduction in the offer he accepted was insignificant and that
he probably would have accepted the prior offer with a release eligibility of thirty percent
given his mental state at the trial. He said he accepted the offer at trial because trial counsel
had told him there was not any other option, that this was the “last deal,” and that he would
be “lucky to get it.” Regarding his desire to withdraw his guilty plea, the Petitioner said,
“Once I realized what I had fully got[ten] myself into, I didn’t want to do it.”

Finally, trial counsel testified that he asked the Petitioner’s family to hire Dr. Diana
McCoy, a psychologist, to help the Petitioner understand his charges and to gather facts and
interview witnesses in the case. He acknowledged that the Petitioner had a history of
emotional and mental problems and drug and alcohol problems at an early age. He also
acknowledged that medical treatment revealed that the Petitioner had poor judgment and
insight and was known to be impulsive. Trial counsel acknowledged that the Petitioner’s
case was one of the largest criminal cases in Campbell County and that it was vital that the
Petitioner understand what was happening in his case. He confirmed that the courtroom the
day of the Petitioner’s trial was filled with people, television cameras, print media, and
jurors. Although trial counsel admitted that it was important to involve the Petitioner’s
parents in the offers received from the State because of the Petitioner’s age and his mental
problems, he admitted, without explanation, that he involved the parents less in the
Petitioner’s case after the transfer hearing. Trial counsel stated that he whispered the offer
received at trial to the Petitioner, who “gave an immediate response” accepting the offer
within “[t]hree seconds.” Regarding his explanation of the offer with the Petitioner, trial
counsel stated, “I told him the State’s offer, I told him the 20 percent. I recall [the Petitioner]
not being too happy at [the] 20 percent, but [he] understood and he took the offer.” He also
said that he “generally” reviewed the plea agreement with the Petitioner and stated, “I can’t
say that I read the [plea agreement] word for word to [the Petitioner].” Significantly, trial
counsel was unable to recall whether the Petitioner’s mother was in the conference room

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before or after the Petitioner signed the plea agreement. Trial counsel admitted that he did
not immediately inform the Petitioner’s parents of receipt of the offer, that he did not involve
the Petitioner’s parents in the discussion regarding the offer, and that he did not immediately
inform the Petitioner’s parents of the Petitioner’s quick acceptance of the offer. He
acknowledged that the Petitioner’s unhappiness about the offer was “maybe” a red flag.

Here, the post-conviction court held that the Petitioner’s plea was not knowing,
intelligent, and voluntary given the Petitioner’s age and functional impairments, the
excitement and tension of the trial, and the lack of any parental involvement in his decision
to accept the offer. However, we conclude that the Petitioner’s plea was not knowing,
intelligent, and voluntary because of trial counsel’s ineffective assistance. Although the
Petitioner was of average intelligence, the evidence at the post-conviction hearing showed
that the Petitioner had a history of emotional and mental problems as well as drug and
alcohol problems at an early age. In addition, the proof showed that the Petitioner had poor
judgment, poor insight, and was known to be impulsive. It is undisputed that the Petitioner,
who was fourteen when he committed the offense, and fifteen at the time of his trial, had no
familiarity with criminal proceedings. As we previously stated, trial counsel was aware of
the Petitioner’s age, unfamiliarity with criminal proceedings, mental and emotional problems,
and tendency to act impulsively. The evidence showed that although trial counsel informed
the Petitioner of the offer, he failed to inform the Petitioner’s parents of the offer and failed
to involve the Petitioner’s parents and Dr. McCoy in a full discussion of the consequences
of the plea prior to the Petitioner entering his guilty plea. In addition, the evidence showed
that trial counsel provided limited advice to the Petitioner prior to the Petitioner’s acceptance
of the offer. Based on this evidence, we conclude that the Petitioner entered his guilty plea
without the benefit of his parents’ and Dr. McCoy’s involvement, which prevented him from
receiving a careful, thorough evaluation of the details of the offer and the consequences of
his plea. The record demonstrates by clear and convincing evidence that the Petitioner’s
guilty plea was not knowingly, voluntarily, and intelligently entered because of the
ineffective assistance rendered by trial counsel.

CONCLUSION

Upon review, we affirm the judgment of the post-conviction court.

______________________________
CAMILLE R. McMULLEN, JUDGE

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