IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 13, 2013
TIRRONE AKILLIA SIMPKINS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2009-D-2955 Steve Dozier, Judge
No. M2012-01558-CCA-R3-PC Filed - February 28, 2013
Tirrone Akillia Simpkins (“the Petitioner”) pleaded guilty to one count of aggravated robbery
and four counts of especially aggravated kidnapping. Pursuant to his plea agreement, the
trial court sentenced the Petitioner as a Range II offender to an effective sentence of fifteen
years to be served at 100%. The Petitioner subsequently filed for post-conviction relief,
which the post-conviction court denied following an evidentiary hearing. The Petitioner now
appeals, arguing that his plea was constitutionally invalid and that he received ineffective
assistance of counsel in conjunction with the plea submission hearing. Upon our thorough
review of the record and the applicable law, we affirm the judgment of the post-conviction
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment
of the Criminal Court Affirmed
J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.
Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Tirrone Akillia Simpkins.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Rachael Sobrero, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
On September 19, 2011, the Petitioner pleaded guilty to one count of aggravated
robbery and four counts of especially aggravated kidnapping. At the plea submission
hearing, the State recited the factual basis for the Petitioner’s plea as follows:
[O]n May 18th, 2009 in the early morning hours there were five
employees in the Shoney’s Restaurant located at Highway 70 South and I-40
in Bellevue[.] Francisco Perez, Teresa Kline, Dora Dalcroze, Arcilia Ruiz, and
the manager on duty, Mr. Karnae, were present and preparing the business to
open.
As the employees were getting the restaurant ready to open, just prior
to 6 o’clock, Mr. Perez went to take the trash out the back door outside the
kitchen. As he opened the door, two men rushed into the back. Both men
were dressed in dark clothing, one had a mask on, both had guns.
The person with the mask on, who the investigation later reve[a]led was
the co-defendant in this case, Jerome Teats [(“the co-defendant”)], first took
Mr. Perez, held a gun to his head, and forced him into a hallway or a dry
storage area back in the kitchen. It was a one-opening hallway in the back that
had shelves on both sides. Mr. Perez went back into that area. And while that
was going on, [the Petitioner] had Ms. Ruiz, held a gun to her head, asked her
how many employees were in the restaurant, and then forced her to go back
into the dry-storage hallway area. As that took place, . . . [the Petitioner] also
asked Ms. Ruiz where the manager was, she indicated towards the office area
in the kitchen, which was a small – basically closet in the back that had a desk
and a safe in it.
[The co-defendant] then went to the area where the office was and Mr.
Farina was in there. He went inside with the gun and took Mr. Farina out of
the office and forced him towards the front of the restaurant where the register
was. Ms. Dora Dalcroze observed this happening as she was coming back into
the kitchen from the front of the restaurant where she had been setting up the
buffet line.
As [the co-defendant] brought the manager up to the front area where
the cash register was, [the Petitioner] was standing in the back blocking the
exits to the hallway where the other individuals were. Ms. Dalcroze and Ms.
Teresa Kline were the other two individuals that were not yet in the hallway.
At that point in time, [the Petitioner] started speaking harshly to Ms. Dalcroze,
who could not understand him. She spoke Spanish and wasn’t understanding
his English. He was yelling at her.
She – as she was walking to the hallway area, he held the gun on her,
and [s]he was trying to get out of the line of the gun and he kept the gun
focused on her and tracking her as she moved. She eventually, when Ms.
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Teresa Kline came to the area, Ms. Kline brought them both to the area where
[the Petitioner] was telling them to go.
At that point in time, all four employees were at the far end of the
hallway. [The Petitioner] stood at the door – the opening area so that the four
individuals in the back could not get past him. As that was going on, [the co-
defendant] was in the front of the restaurant with the manager, he had pistol
whipped him in the head and was demanding th[e] cash. He – the manager
was able to open the cash register, and they, together, Mr. Farina being at
gunpoint at this point in time, filled a plastic bag with all of the cash that was
in the cash register.
After that took place, [the co-defendant] took the manager back to the
hallway area where the remaining victims were, forced him into the hallway.
Both the men told them all to get down on the ground and put their faces on
the floor. Throughout this they were yelling not to look at them and look
away. After all of the employees were on the floor in the back of the dry-
storage area, both defendants left the Shoney’s.
Across the street in a[n] office park called Harpeth Valley, a white
blazer was parked. That blazer belong[ed] to [the co-defendant]. As the two
men were running out of the restaurant, a customer who was there waiting for
the restaurant to open observed them running and called 911. He actually
followed one of the individuals, turns out to be [the co-defendant], as [the co-
defendant] was running through the neighborhood, from th[e] office park area
into a residential neighborhood. As that citizen was on the phone with 911, he
stayed on the phone until he saw police and spoke with police at that time.
Police responded to the neighborhood area and were pointed in a
direction of a house. And at that point in time Officer Regan and Sergeant Teet
went to the crawl space of the house, which had been locked by a citizen in the
area. They unlocked the crawl space and pulled out the co-defendant . . . .
At that point in time, [the co-defendant] was taken into custody,
Sergeant Teet went – officers were still pursuing this other individual, [the
Petitioner], who had run across I-40 and was last spotted running in the
direction of Bellevue mall. Officers were pursuing him and approximately an
hour later Officer Seroche and Sergeant Teet caught up with [the Petitioner].
He had been discarding several items of clothing as he was running in the area
and he had been seen running through the grass and then laying down in the
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grass trying to evade police. They did eventually catch up to him and take him
into custody.
Both defendants were asked if they wanted to speak to police. [The
Petitioner] told Detective Stokes, I didn’t do anything, he did it all. Then told
Detective Stokes, you can’t charge me. [The co-defendant] spoke to police
and admitted that he and [the Petitioner] drove to the area in the white blazer,
waited for . . . somebody to come out of the restaurant and then went in the
back and robbed it.
$737 in cash and coins was located in [the co-defendant’s] vehicle, in
a black plastic trash bag consistent with the trash bag on the floor of the
Shoney’s. Police recovered that, items of clothing that these defendants were
described as wearing and [the co-defendant’s] driver’s license from the front
seat of his vehicle.
After detectives gave the cash back to the manager, had a receipt signed
for it, both defendants were charged with the robbery. On May 22, 2009, when
Detective Stokes arrived for the preliminary hearing he learned that – initially
it had been reported that both individuals wore masks, he learned at that point
in time that that was not true. There had been a language barrier with a
number of the victims at the restaurant. Upon hearing that one of them did not
have a mask on, he asked the victims if they would participate in a
photographic lineup. Ms. Dora Dalcroze went to west precinct and viewed the
photographic lineup, she immediately picked out the photograph of [the
Petitioner] as the person who was not wearing the mask in the back of the
Shoney’s on that day.
Ms. Dalcroze, Mr. Perez, and Ms. Ruiz [have] appeared in numerous
hearings. And Ms. Dalcroze, every time she has been called to testify has
consistently identified [the Petitioner] as the man who did not have a mask on
who participated on that day of robbing the Shoney’s and held the rest of the
employees at gunpoint.
The Petitioner, at the hearing, denied being under the influence of drugs or alcohol
or suffering from any mental health problems. He agreed that he had discussed the charges
against him with his counsel (“trial counsel”) and was satisfied with trial counsel’s
representation. He agreed that he understood that, by pleading guilty, he was waiving his
rights to a jury trial represented by counsel; to call witnesses and cross-examine the State’s
witnesses; to testify or not testify at the trial; and to appeal the verdict and resulting sentence
if the jury were to find him guilty. The Petitioner stated that he believed it to be in his best
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interest to plead guilty. He understood that he was pleading guilty to felonies which could
be used to enhance his sentence in a future felony case. The Petitioner denied that anyone
was forcing him to plead guilty or that anyone was promising him anything other than the
stipulations of the plea agreement.1
According to the Petitioner’s plea agreement, the trial court sentenced the Petitioner
as a Range II multiple offender to fifteen years at 35% for his aggravated robbery conviction
and fifteen years at 100% each for his convictions of especially aggravated kidnapping, all
to be served concurrently. The trial court entered the judgments against the Petitioner
reflecting the terms of the agreement. The Petitioner subsequently filed for post-conviction
relief alleging ineffective assistance of counsel and asserting that his plea was
constitutionally invalid.
At the post-conviction hearing, the Petitioner testified that, originally, he planned to
proceed to trial. On the day of trial, however, he pleaded guilty to all five of his indicted
charges. He stated that he met with trial counsel at least six times prior to entering his plea.
Trial counsel explained his charges to him, but the Petitioner did not understand why he was
charged with kidnapping when he “didn’t actually kidnap” anyone. He estimated that the
entire incident for which he was charged lasted a period of approximately five minutes.
Furthermore, he believed the evidence was insufficient to support a kidnapping “because of
the intent. [His] intention was not to kidnap nobody [sic].” Post-conviction counsel asked
the Petitioner, “Did [trial counsel] explain to you that a robbery and a kidnapping that happen
so quickly . . . really couldn’t be both?” The Petitioner responded, “No,” and added that trial
counsel did not explain any of the applicable case law. Furthermore, the Petitioner stated
that, had trial counsel explained more regarding this issue, the Petitioner would not have
pleaded guilty and instead would have proceeded to trial. He testified, “[M]y co-defendant
was telling me that [trial counsel] was speaking to his lawyer telling him things about my
case . . . . [Trial counsel] told him things that if she would’ve told me personally, I would’ve
went [sic] to trial.” The post-conviction court clarified this issue with the Petitioner, and the
Petitioner explained, “[Trial counsel] told [the co-defendant’s] lawyer that if I was to go to
trial that I might not get charged for the robbery, but I might get charged for the
kidnappings.” Additionally, the Petitioner stated that he asked trial counsel to argue “under
the Jencks” when she filed a motion to suppress the identification and other statements of the
1
The Petitioner claims that he entered a “best interest” plea. At the guilty plea hearing, the only
reference to such a plea was when the Petitioner stated the following to the trial court: “Well, I talked to my
lawyers and it is really in my best interest to plead guilty to these charges.” Determination of the issue of
whether the Petitioner actually entered a best interest plea as opposed to a regular guilty plea is not material
to the resolution of this appeal.
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witness, Delacruz.2 He also claimed that all he had from the police were “supplementary
reports.”
The Petitioner testified that he entered a “best interest” plea in this case because
I felt that I was not being presented [sic]. I felt that my lawyers was [sic] not
ready to go to trial. They – she was telling me that I was going to get a life
sentence and she called my father and told him the same thing to try to talk me
out of going to trial.
Furthermore, he stated, “I didn’t know how to exactly give a best interest plea but I verbally
just said it.” The Petitioner’s final complaint about trial counsel was that he, on several
occasions, asked trial counsel to look into whether some of the immigrant witnesses were
“legal witnesses” but that “nothing else was done about that.”
On cross-examination, the Petitioner acknowledged that, in addition to the six or more
times that trial counsel met with him at the jail, trial counsel also met with him on the days
of his numerous court appearances. Additionally, he acknowledged that trial counsel filed
numerous pretrial motions and that the Petitioner was present at each of those hearings.
When asked about his discussion with trial counsel regarding the kidnapping charges, the
Petitioner stated that they discussed the charges but that “[i]t really wasn’t a breakdown of
the law.” He further acknowledged discussing with trial counsel that he kept the victims
“somewhere they didn’t want to be” and that “there was a weapon involved.” He also agreed
that, during the incident, the victims could not reach an exit to the restaurant without passing
the Petitioner. When discussing his desire to get the “statement” of Delacruz from the State,
he agreed that one reason he might not have received that statement was because Delacruz,
in fact, did not make a statement to police.
The Petitioner also recognized that, based on his prior felonies, he was eligible to
serve twenty-five to forty years at 100% on each especially aggravated kidnapping conviction
had he proceeded to trial. Therefore, he agreed that, if the trial court had chosen to run the
sentences consecutively, he could have received a minimum sentence of one hundred years,
not including the sentence for robbery. He also agreed that the State’s offer of an effective
sentence of fifteen years at 100% was substantially less than what he might have faced had
he gone to trial.
The State asked the Petitioner to further explain some of his complaints against trial
counsel. The Petitioner stated that he did not understand “the actual definition of especially
aggravated kidnapping” and that trial counsel did not discuss this concept with him. He
2
At the plea submission hearing, this witness’ name was spelled “Dalcroze.”
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claimed that, had he understood the definition, he would not have pleaded guilty. With
respect to the Petitioner’s contention that his plea was unknowing and involuntary, he
confirmed that he requested to enter a guilty plea on the day of trial. Furthermore, he agreed
that, prior to his plea, he reviewed with trial counsel the charges for which he pleaded guilty
as well as the sentences for each charge. He stated, “I knew that my lawyers wasn’t [sic]
fighting for me. I didn’t know what else to do. And [trial counsel] told me that I can give
a best interest plea.”
The State entered a transcript of the guilty plea hearing into evidence and then called
trial counsel to testify. Trial counsel testified that all of her practice since 2004 had been
devoted to criminal defense work. Prior to the Petitioner’s case, trial counsel had
participated in four jury trials: a murder case; an order of protection case; a drug case; and
a rape of a child case. She had a software database documenting all of her encounters with
the Petitioner, and, according to her data, personnel from trial counsel’s office met at the jail
with the Petitioner approximately twenty-three times. Of those occasions, trial counsel
estimated that she personally was present approximately twenty times. She also exchanged
written correspondence with the Petitioner approximately five to ten times. Trial counsel
acknowledged that another attorney (“assistant trial counsel”) was assigned to assist her in
the Petitioner’s case at trial.
Trial counsel discussed the numerous pretrial motions that she filed on the Petitioner’s
behalf. The State asked trial counsel about her discussions with the Petitioner regarding “the
motions on the especially aggravated kidnapping counts, and the double jeopardy issue, and
dismissing those.” Trial counsel responded,
We . . . talked a lot about that issue. . . . That issue was in flux in the
Tennessee Supreme Court, so through the life of [the Petitioner’s] case the law
was changing. And then it was sort of up in the air so we had a lot of
discussions because . . . this Jason Lee White case was pending for such a long
time . . . .
We laid out for him where the law – which direction the law had been
going, which was bad for the defense, and where it might end up. But, I mean,
we spent, I would say, hours discussing that. And I was actually writing the
amicus brief on the issue, so I was very familiar with it.
Trial counsel stated that she found a letter she sent to the Petitioner spelling out
exactly what the State was required to prove as to his indicted counts. The State asked trial
counsel whether the Petitioner eventually seemed to understand the especially aggravated
kidnapping law. Trial counsel stated, “Yes. [The Petitioner] would often . . . say he didn’t
understand things, and we would break it down and go over these sort of subparts of it. And
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a lot of times it seemed sort of what he was saying was it didn’t seem right, or fair, or
reasonable.”
Trial counsel agreed that she reviewed with the Petitioner his potential sentence if he
proceeded to trial. She forwarded everything to the Petitioner that she received from the
State. Regarding the immigration status of the victims, trial counsel could not remember
what she filed on the issue. She did remember that it was an issue she would have to address
in a jury-out proceeding at trial but that she never got to that point. She had learned from the
co-defendant’s trial that the victims were working legally in the United States.
Trial counsel testified that, leading up to and on the day of the trial, she explained to
the Petitioner that he “didn’t have a credible defense on the aggravated robbery count.”
Furthermore, trial counsel stated that the Petitioner eventually agreed. Therefore, the main
issue at trial would be the especially aggravated kidnapping counts. Trial counsel testified
further,
And when we did the math, what we estimated the Judge’s sentence
would be just on the ag[gravated] robbery, basically if we had won with our
defense . . . we just . . . said maybe about 18 years would be a reasonable
sentence from this Court in this situation.
And when we did the math realized that the offer probably would have
been a matter of months of a difference of our best case scenario and what the
offer was. So what we explained to him was going to trial to save you six
months or so, but what we[ a]re risking is the rest of your life.
From that discussion, the Petitioner indicated his desire to plead guilty. She stated,
“I think he – all I can say is I think [the Petitioner] understood what we were saying about
it just not being worth it to go to trial, that we were fighting for too little and risking too
much.” Trial counsel confirmed that she reviewed the written plea petition with the
Petitioner. She testified that she was ready for trial if the Petitioner had decided not to enter
a plea.
Assistant trial counsel testified that she assisted trial counsel in the Petitioner’s case.
According to her documentation, she was present on five of the occasions that trial counsel
met with the Petitioner. She also was present for all hearings that occurred once she began
assisting trial counsel with the case. She stated that, during those discussions, “[w]e would
try to explain to him . . . how the law and the facts could apply, especially during the course
of a jury trial.” Furthermore, she noted that the Petitioner
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would frequently say I don’t understand . . . . And then we would always say,
explain to us what you don’t understand so we can go back through it again.
. . . And then he would always end with, I think I understand, so we didn’t
have any reason to believe he didn’t understand how the law, in fact, has to be
applied to his particular case.
Assistant trial counsel clarified with the court that the Petitioner seemed not to understand
how the facts of his case could equate to kidnapping. Regarding the Petitioner’s decision to
plead guilty, assistant trial counsel stated, “I had an indication that he was reluctant about . . .
his decision, but I felt that he understood what he was doing.”
The post-conviction court took the matter under advisement and issued a written order
denying post-conviction relief. In its order, the post-conviction court accredited trial
counsel’s testimony that she met with the Petitioner at least twenty times “and thoroughly
discussed with him the evidence and the elements of the crimes for which he was charged.”
The court also noted that the Petitioner failed to present any evidence at the hearing to
support his allegation that trial counsel was not prepared for trial. Accordingly, the post-
conviction court determined that the Petitioner failed to prove his ineffective assistance of
counsel claim.
Next, the post-conviction court considered the Petitioner’s claim that “he was forced
to enter the plea based upon [trial] counsel’s lack of preparation for trial.” Once again, the
court accredited trial counsel’s testimony that she “investigated the case and discussed all
evidence with the [P]etitioner.” After reviewing the transcript of the guilty plea hearing, the
post-conviction court determined that the Petitioner failed to prove that his plea was
unknowing or involuntary. Thus, the court denied relief, and the Petitioner timely appealed.
On appeal, the Petitioner argues that his plea was constitutionally invalid and that he received
ineffective assistance of counsel.
Analysis
Standard of Review
Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
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State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.
Ineffective Assistance of Counsel
The Petitioner argues on appeal that he was denied effective assistance of counsel.
The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel
at trial.3 Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that this right is to “reasonably effective” assistance, which is assistance that falls
“within the range of competence demanded of attorneys in criminal cases.” Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). The deprivation of effective assistance of counsel at trial presents a claim cognizable
under Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103;
Pylant, 263 S.W.3d at 868.
In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient; and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.
To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688)). Our supreme court has explained
that:
[T]he assistance of counsel required under the Sixth Amendment is counsel
reasonably likely to render and rendering reasonably effective assistance. It
is a violation of this standard for defense counsel to deprive a criminal
3
The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).
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defendant of a substantial defense by his own ineffectiveness or incompetence.
Defense counsel must perform at least as well as a lawyer with ordinary
training and skill in the criminal law and must conscientiously protect his
client’s interest, undeflected by conflicting considerations.
Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell
v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).
As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). In the context of a guilty plea, our
analysis of this prong
focuses on whether counsel’s constitutionally ineffective performance affected
the outcome of the plea process. In other words, in order to satisfy the
“prejudice” requirement, the [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 Calvert v. State, 342 S.W.3d 477, 486
(Tenn. 2011).
The Petitioner claims that trial counsel failed to “explain to him that there was a
kidnapping statute and that the evidence in his case was insufficient to support a kidnapping
conviction.” Furthermore, the Petitioner contends that trial counsel “never reviewed State
v. Anthony[, 817 S.W.2d 299 (Tenn. 1991), overruled by State v. White, 362 S.W.3d 559
(Tenn. 2012),] and its progeny with him which h[e]ld that a kidnapping cannot be ‘essentially
incidental’ to the underlying robbery.” He maintains that “had he known about the State v.
Anthony issue he would not have entered a plea[] but would have proceeded to trial.”
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At the post-conviction hearing, trial counsel testified that she met with the Petitioner
approximately twenty times at the jail prior to trial. She also exchanged written
correspondence with the Petitioner approximately five to ten times. Trial counsel stated that
she thoroughly discussed with the Petitioner the law pertaining to his especially aggravated
kidnapping charges. She estimated that she spent “hours” discussing this issue because it
“was in flux in the Tennessee Supreme Court.” She noted that she was current on the issue
because of her involvement writing an amicus brief in the White case.
Trial counsel stated that, throughout these discussions of the law, the Petitioner at first
would say that he did not understand. Once they reviewed everything, however, trial counsel
believed that the Petitioner understood the law but did not think that the law was “right, or
fair, or reasonable.” At the hearing, the Petitioner acknowledged discussing with trial
counsel that he kept the victims “somewhere they didn’t want to be” and that “there was a
weapon involved.”
The post-conviction court accredited trial counsel’s testimony that she met with the
Petitioner at least twenty times “and thoroughly discussed with him the evidence and the
elements of the crimes for which he was charged.” The Petitioner has failed to establish
deficient performance on the part of trial counsel. Thus, we do not need to address the
prejudice prong. See Goad, 938 S.W.2d at 370. Accordingly, the Petitioner is entitled to no
relief on this basis.
The Petitioner also avers that trial counsel was not ready for trial, which was why the
Petitioner decided to enter a “best interest” plea on the day of the trial. His main assertion
at the post-conviction hearing was that trial counsel “was telling [him] that [he] was going
to get a life sentence” and that she also told his father this information “to try to talk [the
Petitioner] out of going to trial.” However, the Petitioner provided no other testimony or
evidence in furtherance of the contention that trial counsel was not prepared adequately for
trial.
Trial counsel confirmed that she was ready for trial if the Petitioner had decided not
to plead guilty and instead proceed to trial. However, trial counsel testified that
when we did the math [we] realized that the offer probably would have been
a matter of months of a difference of our best case scenario and what the offer
was. So what we explained to him was going to trial to save you six months
or so, but what we[ a]re risking is the rest of your life.
Trial counsel stated that, from this discussion, the Petitioner decided to enter his plea.
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On cross-examination at the post-conviction hearing, the Petitioner acknowledged
that, based on his prior felonies, he was facing a potential sentence of at least one hundred
years if convicted by a jury of these offenses and if he received consecutive sentencing. He
also agreed that his plea-bargained sentence of fifteen years was substantially less than what
he might have faced had he gone to trial.
The post-conviction court found that the Petitioner failed to present any evidence at
the hearing to support his allegation that trial counsel was not prepared for trial. We agree.
Thus, the Petitioner has failed to establish that trial counsel’s performance was deficient in
this regard. Therefore, we need not address the prejudice prong. See Goad, 938 S.W.2d at
370. Accordingly, he is entitled to no relief on his ineffective assistance of counsel claim.
Validity of the Plea
The Petitioner also asserts that his plea was constitutionally invalid. Specifically, the
Petitioner claims that he believed that trial counsel was not prepared for trial and that, for that
reason, he pleaded guilty. Additionally, he insists that he “was unaware that there was a
possibility that the kidnapping charge would be dismissed” and that, had he been aware of
this possibility, he would not have pleaded guilty. The Petitioner’s argument seems to fall
more squarely under an ineffective assistance of counsel claim, which we already have
addressed. Nevertheless, we will consider the validity of the Petitioner’s plea.
To be valid, a plea must be entered knowingly, voluntarily, and intelligently. See
Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); State v. Mackey, 553 S.W.2d 337, 340
(Tenn. 1977) superseded on other grounds by Tenn. R. of Crim. P. 37(b) and Tenn. R. of
App. P. 3(b). A plea meets constitutional muster when the defendant understands both what
the plea connotes and its consequences, Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993) (citing Boykin, 395 U.S. at 244), and makes a voluntary and intelligent choice from
the alternative courses of action available to plead guilty, Jaco v. State, 120 S.W.3d 828, 831
(Tenn. 2003) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In Mackey, 553
S.W.2d at 341, our supreme court set forth the procedure that a trial court should follow
when accepting a plea in order to ensure that a defendant’s plea is knowing, voluntary, and
intelligent. See also Tenn. R. Crim. P. 11(b). A trial court must “substantially” comply with
this procedure. State v. Newsome, 778 S.W.2d 34, 38 (Tenn. 1989).
We have reviewed the transcript of the guilty plea hearing and conclude that the
Petitioner’s plea was constitutionally sound. At the guilty plea hearing, the Petitioner
acknowledged that he understood: the nature of the charges for which he was pleading guilty
and the potential sentencing ranges; his right to representation by counsel at trial; his right
to a jury trial, wherein he could cross-examine the State’s witnesses and he could but would
not be forced to testify; his right to an appeal; and that these felony convictions could be used
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against the Petitioner in future proceedings to enhance his sentence in a future felony case.
The Petitioner also denied that anyone was forcing him to enter into this guilty plea or that
anyone was promising him anything other than what was included in the plea agreement. The
Petitioner has failed to establish that he did not knowingly, intelligently, and voluntarily enter
into his plea agreement. Accordingly, the Petitioner is not entitled to post-conviction relief
on this basis.
CONCLUSION
For the foregoing reasons, the Petitioner has failed to establish that he is entitled to
post-conviction relief. Therefore, we affirm the judgment of the post-conviction court
denying relief.
______________________________
JEFFREY S. BIVINS, JUDGE
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