IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 13, 2002
JAMES ROGER FORD v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Overton County
Nos. 3716, 3780, 4005 Lillie Ann Sells, Judge
No. M2001-01654-CCA-R3-PC - Filed June 5, 2002
Petitioner, James Roger Ford, pled guilty on October 28, 1998, to the following offenses: casual
exchange of marijuana, a Class A misdemeanor; sale of diazepam, a Class D felony; sale of more
than 1/2 ounce of marijuana, a Class E felony; and two counts of public intoxication, a Class C
misdemeanor. In addition, Petitioner entered a “best interest” plea of guilty to the charge of
introducing contraband in jail, a Class C felony. The trial court sentenced Petitioner as a Range I
offender to eleven months and twenty-nine days for the offense of casual exchange of marijuana,
thirty days each for the two counts of public intoxication, two years for the sale of more than 1/2
ounce of marijuana, and four years each for the sale of diazepam and introducing contraband in jail,
with all sentences to be served concurrently on a Community Corrections program. On November
24, 1998, a violation of Community Corrections warrant was filed. Petitioner pled guilty to violating
the terms of his community-based sentence and agreed to serve the remainder of his four-year
sentence in incarceration. On October 27, 1999, he filed a pro se petition for post-conviction relief,
which the trial court denied after a hearing on the merits. Petitioner appeals the court’s denial of
post-conviction relief, alleging that he received ineffective assistance of counsel prior to and during
the plea proceedings and that his guilty plea was not knowingly or voluntarily entered. Following
a thorough review of the record, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
THOMAS T. WOODALL , J., delivered the opinion of the court, in which JOE G. RILEY and JOHN
EVERETT WILLIAMS, JJ., joined.
Michael R. Giaimo, Livingston, Tennessee, for the appellant, James Roger Ford.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William Edward Gibson, District Attorney General; Anthony J. Craighead, Assistant District
Attorney General; and Owen G. Burnett, Assistant District Attorney General, for the appellee, State
of Tennessee.
OPINION
FACTUAL BACKGROUND
The petition for post-conviction relief filed by Petitioner alleged, inter alia, that his guilty
plea to the charge of introducing contraband in jail was unlawfully induced because it was based on
erroneous advice from his attorney and because Petitioner was under the influence of drugs at the
time of his plea. Petitioner also alleged that the incorrect advice received from his attorney
constituted ineffective assistance of counsel. The proof presented at the post-conviction hearing
consisted solely of Petitioner’s testimony. The attorney who had represented Petitioner--the subject
of his claim of ineffective assistance of counsel--was terminally ill with cancer at that time and
unable to appear.
At the post-conviction hearing, Petitioner testified that he was innocent of the charge
concerning the introduction of contraband into jail. Petitioner claimed that he had given his counsel
the names of four witnesses who could testify and exonerate him of guilt for this crime. At that time,
the four witnesses were inmates at the Overton County Jail, and counsel informed Petitioner that
persons who were incarcerated could not be subpoenaed to testify in court. On the day of his plea
hearing, however, Petitioner discovered the four potential witnesses sitting in the jury box in court.
They advised him against pleading guilty, but counsel informed him that it was “too late” then.
Petitioner testified that, but for counsel’s misinformation regarding Petitioner’s ability to subpoena
these witnesses to testify in his behalf, he would not have pled guilty to the charge of introducing
contraband into jail.
During cross-examination, Petitioner acknowledged that he had pled guilty to two felonies
and also entered a “best interest” plea of guilty to the contraband charge. Petitioner claimed that
counsel informed him that it was necessary to plead guilty to all three charges because it was a
“package” deal. Petitioner also testified regarding certain events that transpired during the plea
hearing on October 28, 1998. Specifically, Petitioner recalled that he swore to tell the truth and that
he was advised perjury charges would result if he did not. When asked whether he remembered
telling the presiding judge that she could forgo a review of the plea procedure because he knew what
was going to happen, he claimed that he could not recall the incident because “he was under the
influence of maybe ten different drugs at that present time.” Petitioner also testified that he had
informed the court of this condition during the plea proceeding. Thereafter, the assistant district
attorney questioned Petitioner concerning various other statements which he had made during that
time. Petitioner claimed that he was currently unable to recall them, however, because the drugs had
affected his memory. The prosecutor then asked Petitioner how, if his memory was so “fuzzy,” he
was he able to recall those things said to him by his attorney so clearly. Petitioner responded as
follows:
Well, each time that I . . . he set up about two or maybe three meetings for me to see
him in his office. He told me each . . . well, he just told me flat out that he can’t do
that. And the drugs hadn’t fully affected me at the time, you know, when I walked
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in and saw those guys there. They were affecting me pretty much. I can remember
that much pretty good. But from then on, the drugs kept affecting me more and more
and it’s hard for me to remember anything. That was a lot of drugs and there was
different kinds of drugs. And it’s hard to remember anything like that. And I had
drank some alcohol with them drugs, too. It’s very hard to remember.
Following the conclusion of the evidentiary hearing, the court denied Petitioner post-
conviction relief in an order which contained the following findings: Petitioner’s testimony at the
post-conviction hearing was contradictory to past proceedings and not credible. The post-conviction
court’s review of the transcript of the guilty plea proceeding revealed that a lengthy and specific one-
on-one discussion had transpired between the court and Petitioner concerning his rights, his decision
to plead guilty, and the facts and proof of the various cases underlying his pleas. At that time,
Petitioner was under oath and had assured the court that he was satisfied with his attorney, he was
not under the influence of any drugs or alcohol, and he knew what he was doing. Consequently, the
court had determined that his guilty pleas were voluntarily and knowingly entered. Petitioner’s
subsequent testimony at the post-conviction evidentiary hearing directly contradicted these
statements and, because the post-conviction court determined Petitioner’s credibility to be
questionable, it further found that the judgments regarding Petitioner’s convictions were valid and
supported by knowing and voluntary guilty pleas.
With regard to Petitioner’s claim that counsel had erroneously advised him that incarcerated
persons in possession of exculpatory information could not be subpoenaed to testify as witnesses,
the post-conviction court noted that Petitioner’s testimony was uncorroborated. Accordingly, under
Morgan v. State, 445 S.W.2d 477 (Tenn. Crim. App. 1969), the court found Petitioner’s testimony
was insufficient to sustain the burden of proof necessary to set aside a valid judgment. The court
further noted that Petitioner had failed to provide the alleged witnesses at the evidentiary hearing or
submit the affidavits necessary to confirm their existence.
ANALYSIS
I. Ineffective Assistance of Counsel
Petitioner first claims that his counsel failed to give him proper advice concerning his ability
to subpoena certain potential witnesses for trial and that this failure constituted ineffective assistance
of counsel. We disagree.
To succeed on a claim of ineffective assistance of counsel, a petitioner bears the burden of
showing both that his counsel’s performance was deficient and that this deficient performance
prejudiced the outcome of the proceeding. See Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). To satisfy the first prong of this two-prong test, the
petitioner must show that “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Put another way, to prove
deficient performance, counsel’s acts or omissions must be “so serious as to fall below an objective
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standard of reasonableness under prevailing professional norms.” Id. at 687-688, 104 S. Ct. at
2064-2065; see also State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). In Tennessee, satisfaction of
the first prong requires a showing that counsel’s performance was not within the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975).
In addition, a petitioner must establish prejudicial, and not merely deficient, performance by
trial counsel. In order to establish prejudice, a petitioner must demonstrate a reasonable probability
that but for the defective performance of counsel, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). In the context of a guilty plea, the petitioner must demonstrate a reasonable
probability that, but for counsel’s errors, the petitioner would not have pled guilty and would have
insisted upon going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985); House v.
State, 44 S.W.3d 508, 516 (Tenn. 2001). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Because a petitioner must establish both prongs of the test to prevail on a claim of ineffective
assistance of counsel, failure to prove either deficient performance or resulting prejudice provides
a sufficient basis to deny relief on the claim. Henley, 960 S.W.2d at 580. Indeed, a court need not
address the components in any particular order or even address both if the defendant makes an
insufficient showing of one component. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Goad v.
State, 938 S.W.2d 363, 370 (Tenn. 1996).
Further, the post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are conclusive
on appeal unless the evidence in the record preponderates against those findings. State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). By contrast,
the post-conviction court’s conclusions of law are reviewed purely de novo. Burns, 6 S.W.3d at 461.
The issue of ineffective assistance of counsel presents mixed questions of law and fact. Therefore,
our review is de novo, with a presumption of correctness given to the post-conviction court’s
findings of fact. Fields v. State, 40 S .W.3d 450, 458 (Tenn. 2001); Burns, 6 S.W.3d at 461.
Here, the sole evidence presented by Petitioner to support his claim of ineffective assistance
of counsel is his testimony, which the post-conviction court found was not credible and also
uncorroborated by additional evidence of any kind. The post-conviction court relied upon Morgan
v. State, 445 S.W.2d 477 (Tenn. Crim. App. 1969) for its finding that Petitioner’s uncorroborated
testimony did not sustain the burden of proof necessary to set aside the judgment in issue. Petitioner
argues that the court’s reliance on Morgan is error under Sherrill v. State, 772 S.W.2d 60 (Tenn.
Crim. App. 1998).
In Sherrill, a panel of this Court reversed the post-conviction court’s denial of relief, finding
that the petitioner had indeed received ineffective assistance of counsel. Id. at 62. The State had
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argued that, under Morgan, the uncorroborated testimony of a post-conviction petitioner, per se, does
not sustain the burden of proof resting upon him. This Court stated that, where an appellant alleges
ineffectiveness of counsel as to pretrial consultation and preparation, the prospects are remote that
he or she would normally be able to offer witnesses to corroborate his testimony given the
confidential nature of attorney-client relationships. Id. at 62. This Court further observed that to
hold as the State contended would effectively preclude a trial court from upholding a petitioner’s
claim of counsel ineffectiveness, “even where the court is convinced as to the veracity of [the
petitioner’s] testimony and the validity of his argument” and also “contradict the spirit if not the
letter of our Supreme Court’s ruling in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975).” Id. at 63.
In Sherrill, the petitioner’s sole contact with his counsel did not occur until fifteen minutes prior to
trial. Counsel failed to interview petitioner, properly advise him, or assist him in planning his
defense, a performance which this Court was unable to consider “competent,” especially when the
State presented no evidence whatsoever to refute the petitioner’s claim. Id. at 63.
The facts in Sherrill are clearly distinguishable from those presented in the case sub judice.
The petitioner’s counsel in Sherrill was clearly ineffective, and no reason was given for the absence
of testimony from the attorney involved. Here, the evidence concerning counsel’s ineffectiveness
is not so clear. The post-conviction court considered Petitioner’s credibility to be suspect and
counsel was unavailable to testify for medical reasons. Moreover, although Petitioner allegedly
could have substantiated his claim with evidence of the substance of the four missing witnesses’
testimony, no such evidence was presented at the post-conviction hearing. “When a petitioner
contends that trial counsel failed to discover, interview, or present witnesses in support of his
defense, these witnesses should be presented by the petitioner at the evidentiary hearing.” Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). “As a general rule, this is the only way the
petitioner can establish that . . . the failure to have a known witness present or call the witness to the
stand resulted in the denial of critical evidence which inured to the prejudice of the petitioner.” Id.
This Court will not speculate or guess concerning what the alleged witnesses’ testimony might have
been.
In sum, our de novo review reveals that Petitioner failed to show by clear and convincing
evidence that counsel’s performance was not within the range of competence demanded of attorneys
in criminal cases, as required by Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), or that a
reasonable probability existed that, but for counsel’s errors, the petitioner would not have pled guilty
and would have insisted upon going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370
(1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001). When an evidentiary hearing is held in
the post-conviction setting, the findings of fact made by the court are conclusive on appeal unless
the evidence in the record preponderates against those findings. State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999); Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). The evidence does not
preponderate against the factual findings of the post-conviction court in this case. Moreover,
questions concerning the credibility of the witnesses and the weight and value to be given their
testimony are resolved by the trial judge at the post-conviction proceeding, not this Court. Black,
794 S.W.2d at 755. Petitioner is not entitled to relief on this issue.
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II. Validity of Guilty Plea
Petitioner also contends that the presence of numerous drugs in his system at the time he pled
guilty affected his mental condition such that his plea cannot be considered knowing and voluntary.
Consequently, Petitioner contends that his guilty pleas were not valid and his convictions should be
set aside. We disagree.
According to our supreme court, “[t]he cases of Boykin v. Alabama and State v. Mackey are
the landmark constitutional cases for analyses of guilty pleas.” State v. Pettus, 986 S.W.2d 540, 542
(Tenn. 1999) (citing Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)
(outlining federal standard), and State v. Mackey, 553 S.W.2d 337 (Tenn. 1977) (Tennessee imposes
additional safeguards beyond the federal standard)). In Boykin, the United States Supreme Court
held that before a guilty plea is accepted, there must be an affirmative showing in the trial court that
the plea was voluntarily and knowingly given. Id. (citations omitted). To this end, the trial court
must discuss the matter with the accused to ensure that he has a full understanding of what the plea
connotes as well as its consequences. Id. In Mackey, our 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 . . . .” Mackey, 553 S.W.2d at 340. In North Carolina v. Alford, 400 U.S. 25, 31, 91 S.
Ct. 160, 164, 27 L. Ed. 2d 162 (1970), decided the year after Boykin, the United States Supreme
Court noted that “[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.”
In determining whether a defendant’s plea is “voluntary” and “intelligent,” our supreme court
stated that a court must consider various circumstantial factors, such as
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.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). A plea precipitated by ignorance,
incomprehension, coercion, terror, inducements, or threats, may not be considered “voluntary.” Id.
(citing Boykin, 395 U.S. at 242-3, 89 S. Ct. at 1712).
As previously stated, when this court undertakes review of a lower court’s decision on a
petition for post-conviction relief, the lower court’s findings of fact are given the weight of a jury
verdict and are conclusive on appeal absent a finding that the evidence preponderates against the
judgment. Davis v. State, 912 S.W.2d 689, 697 (Tenn. 1995). Questions concerning the credibility
of witnesses and the weight to be given their testimony are for resolution by the post-conviction
court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).
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First, we note that the transcript of the plea proceeding reflects that the trial judge
meticulously followed the requirements of Rule 11(c) of the Tennessee Rules of Criminal Procedure
and State v. Mackey, 553 S.W.2d 337 (Tenn.1977), specifically advising Petitioner of his rights and
making numerous inquiries to insure that his guilty plea was voluntarily and understandingly made.
Further, the record reflects that near the conclusion of the plea proceeding, the trial judge
introduced Petitioner to Gary Davis, the Community Corrections program officer that would be
overseeing Petitioner’s sentence and drug rehabilitation program. At that time, Davis informed
Petitioner and the court that Petitioner would be required to submit to a drug test immediately
following the plea proceeding, after which he would be taken to the Mount New Leaf facility for
twenty-eight days. Davis also explained that Community Corrections considers any participant’s
compliance with the rules of the program a serious matter and, if Davis was to discover that
Petitioner “slipped a beer” or anything similar, Petitioner would be automatically discharged and a
warrant would be issued requiring him to reappear before the court. Thereafter, the following
colloquy took place:
[PETITIONER]: Before we close, I would like to tell you right now, it’s very important. I
need to let you know this about the drug testing. Right now, I have probably
got twenty different drugs. Twenty different drugs in my system. And I
couldn’t pass a drug test right now. I have got marijuana and the marijuana
stays in my system 30 days.
THE COURT: Mr. Davis would everyone to get that through [sic], he will review you on
that procedure and he will find out what the last use and work-up with you
on the 30 day cycle and he won’t tell you until that cycle is past. Is that right,
Mr. Davis?
MR. DAVIS: What we have required, we send people to New Leaf. We do a drug test.
The reason for that is to tell us what they have in the system to see if they are
straight with us.
THE COURT: But, you won’t use that against him if he is honest.
MR. DAVIS: No, Ma’m.
THE COURT: When you tell us that you are not clean this morning, let me ask to clarify.
You tell me, you have several drugs in your system. Let’s be sure, to satisfy
what you are doing here today and let them know now what you are doing.
Okay?
[PETITIONER]: I know exactly. At the point I am getting to, I have been doing drugs
everyday and drinking for a lot of time and I have a lot of stuff into my
system.
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THE COURT: [Petitioner], I want to make sure that you understand everything here today.
[PETITIONER]: I do.
Clearly, Petitioner’s above statements notified the court that he could have had drugs and/or
intoxicants in his system during the plea proceeding. However, after considering Petitioner’s
remarks and questioning him further on the subject, the court determined that Petitioner’s mental
state was such that his pleas could lawfully be considered knowing and voluntary and that he was
not under the influence of alcohol or drugs at the time of the guilty pleas. The transcript contains
not one scintilla of evidence that Petitioner was impaired in his ability to understand the seriousness
of the proceedings or to voluntarily enter a plea of guilty. The trial court’s dialogue with Petitioner
at the time of his plea was lengthy, and Petitioner was articulate throughout his conversation with
the court. The post-conviction court determined that Petitioner’s testimony at the post-conviction
hearing was not credible, a matter which is solely within its province to resolve. In addition, the
record reveals that Petitioner considered the opportunity to serve his sentence in a Community
Corrections program (in lieu of going to prison) a “favor.” Following a review of the record, we find
the evidence does not preponderate against the post-conviction court’s finding that Petitioner’s pleas
of guilty were both knowing and voluntary. We note that, if Petitioner was indeed under the
influence of twenty different drugs at the time of his plea, this fact could have been substantiated by
the results of the drug test he was required to undergo immediately after the plea proceeding. No
such evidence was presented, however. Petitioner is not entitled to relief on this issue.
In sum, Petitioner has failed to prove by clear and convincing evidence that he received
ineffective assistance of counsel or that his guilty pleas were not knowing or voluntary.
Accordingly, we conclude that his petition for post-conviction relief was properly denied.
CONCLUSION
For the forgoing reasons, we AFFIRM the judgment of the post-conviction court.
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THOMAS T. WOODALL, JUDGE
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