Larry Wade v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 25, 2001

LARRY WADE v. STATE OF TENNESSEE

Appeal as of Right from the Criminal Court for Davidson County
No. 96-D-1952 Seth Norman, Judge

No. M2000-01260-CCA-R3-PC - Filed August 30, 2001

The petitioner, Larry Wade, appeals the denial of his petition for post-conviction relief by the
Criminal Court for Davidson County. He asserts that the ineffective assistance of counsel and the
unknowing and involuntary nature of his guilty pleas entitle him to relief from his convictions of
attempted second degree murder and possession of one-half gram or more of cocaine with intent to
sell. Following a review of the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN
E. GLENN, JJ. joined.

Rayburn McGowan, Jr., Nashville, Tennessee, for the appellant, Larry Wade.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Lisa Naylor and James W. Milam, Assistant
District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background
On March 6, 1997, the petitioner, Larry Wade, pled guilty in the Davidson County
Criminal Court to one count of attempted second degree murder and one count of possession of one-
half gram or more of cocaine with intent to sell. At the guilty plea submission hearing, the
prosecutor described the factual basis underlying the petitioner’s pleas:
If this matter went to trial the State’s witnesses would be present and
their testimony would show that on February the 6th of 1996, Officers
Charles Williams and Anita Ross were working undercover for the
Metro Crime Suppression Unit and they were doing that in the area
 of Third Avenue South and Mallory Street, a location here in
Davidson County.

As Officer Williams, who was driving, proceeded down Third
Avenue South, another car blew the horn at him. The officer backed
up to see who it was. It was a car occupied by a male, who he would
identify as Larry Wade, and a female who was with Mr. Wade.

Mr. Wade asked the officer what he was looking for, to which Mr.
Williams responded he needed a good thirty.

After a brief conversation an exchange was made of a small quantity
of cocaine for thirty dollars.

At that point Officer Williams gave the signal to other undercover
officers in the area to arrest Mr. Wade. One of those officers was
William McCall.

Officer McCall and Officer Donelson attempted then to effect the
arrest, at which point Mr. Wade, who was armed with a twenty-five
caliber semi-automatic, raised the weapon, pointed it in the direction
of Officer McCall, and the witnesses would testify he attempted to
pull the trigger.

At this point the officer yelled for him to drop the gun and Mr. Wade
turned and fled.

He was apprehended. The weapon was recovered.

In the pursuit of Mr. Wade, Mr. Wade dropped a brown piece of
paper that contained some rock-like substance. That was recovered
and later tested and found to be cocaine of at least twenty-five grams.

Also, there was some money recovered from Mr. Wade’s person.

At the time of his guilty pleas, the petitioner was eighteen years old and facing
charges of one count of attempted first degree murder, one count of sale of less than one-half gram
of cocaine, one count of possession of one-half gram or more of cocaine with intent to sell, one count
of evading arrest, one count of resisting arrest, and one count of criminal impersonation. The
transcript of the guilty plea submission hearing reflects that, in return for the petitioner’s pleas of
guilt to attempted second degree murder and possession of cocaine with intent to sell, the State
agreed to the dismissal of the remaining charges and also agreed to recommend concurrent sentences
of twelve years incarceration in the Tennessee Department of Correction. Additionally, the transcript

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reflects that, in return for the petitioner’s pleas in state court, federal authorities agreed to forego
prosecution of the petitioner in federal court on charges relating to his possession of cocaine and a
gun.

Prior to accepting the petitioner’s guilty pleas, the trial court obtained confirmation
from the petitioner that he was not suffering from any mental illness or under the influence of any
drug. The trial court then reviewed with the petitioner the charges pending against him and the
accompanying potential sentences. Moreover, the trial court ascertained that the petitioner had fully
discussed his proposed guilty pleas with his attorney and was otherwise satisfied with his attorney’s
representation. At the trial court’s request, the petitioner also acknowledged his signature on a
written petition to enter his guilty pleas and confirmed that he had signed the petition freely and
voluntarily. Finally, the trial court advised the petitioner of his constitutional rights and obtained
assurances from the petitioner that he understood those rights. Consequently, the trial court accepted
the petitioner’s guilty pleas, approving the sentencing recommendation of the State and imposing
concurrent sentences of twelve years incarceration in the Tennessee Department of Correction.

Following his convictions, the petitioner evidently wrote a letter to his attorney in
which he expressed his dissatisfaction with the disposition of his case. In a letter dated December
10, 1997, his counsel responded:
I take great offense to your letter of December 8. Please write the
Court and ask to withdraw your guilty plea. I will save this letter and
advise the Court that you obviously did not understand your situation,
and I am sure you will be allowed to withdraw your plea.

Once you are serving your sentence in the Federal Penitentiary, you
will realize that whoever has given you this bad advice is stupid.

The record contains no motion by the petitioner to withdraw his guilty pleas pursuant
to Tenn. R. Crim. P. 32(f). However, on March 11, 1998,1 the petitioner challenged his convictions
by filing a petition for post-conviction relief. The petitioner alleged in essence that he received
ineffective assistance of counsel and that his guilty pleas were neither knowing nor voluntary. The
post-conviction court appointed counsel and conducted an evidentiary hearing on September 16,
1998. The sole evidence presented by the petitioner at the hearing comprised his own testimony.

The petitioner testified that, at the time of his offenses, he was seventeen years old
and had attended high school through the eleventh grade. At the recommendation of a family
member, he retained Attorney Glenn Funk to represent him in this case. Funk represented the
petitioner both at a transfer hearing in juvenile court and at his guilty plea submission hearing.
According to the petitioner, he met with Funk approximately two or three times for the purpose of

1
The State filed a motion in the post-conviction court to dismiss the petition for post-conviction relief due to
the expiration of the applicable statute of limitations. However, in response, the petiti oner submitted proof that the
petition was “postmarked for filing on March 5, 1998,” in compliance with Tenn. Sup. Ct. Rule 28, § 2(G).

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discussing his case. The petitioner recalled that, during these meetings, he consistently denied to
Funk that he ever pointed his gun at a police officer or attempted to fire his gun on February 6, 1996,
and he provided Funk with a list of witnesses who would be able to corroborate his version of events
on that day. The petitioner further noted that the police officers’ testimonies at the transfer hearing
concerning the charge of attempted first degree murder were conflicting. He complained that Funk
nevertheless neglected to interview the witnesses identified by him.

The petitioner further asserted that, instead of investigating his case, Funk informed
him two or three weeks prior to the submission hearing that federal authorities intended to arrest him
for charges relating to his possession of cocaine and a gun on February 6, 1996. Funk advised the
petitioner that he would be wise to avoid prosecution in federal court as the potential sentences were
far greater than those he would face in criminal proceedings in the Davidson County Criminal Court.
According to the petitioner, he only agreed to enter the guilty pleas currently at issue due to his
attorney’s advice and his consequent fear of federal prosecution. The petitioner explained, “I didn’t
have a choice. I wanted to go to trial, [Funk] wouldn’t let me. He told me it was not possible to go
to trial.” As to the petitioner’s assurances to the trial court at the submission hearing that his guilty
pleas were voluntary, the petitioner asserted that he was “coached to come in and go through the
process.”

Following the petitioner’s testimony, the State presented the testimony of Glenn
Funk, the petitioner’s former attorney. Like the petitioner, Funk testified that he represented the
petitioner in this case both at the transfer hearing in juvenile court and at the guilty plea submission
hearing. In contrast to the petitioner, Funk recalled that he met with the petitioner on approximately
six to eight occasions during the course of his representation. According to Funk, the petitioner did
not contest his participation in the drug sale on February 6, 1996, or his possession of both cocaine
and a gun on that day, but he did deny attempting to shoot a police officer. Funk confirmed that the
petitioner provided him with a list of witnesses who might be able to corroborate the petitioner’s
version of events. Funk also confirmed that, at the transfer hearing, there were inconsistencies in
the testimonies of several officers concerning the charge of attempted first degree murder.
Specifically, Funk testified:
The two male officers, Officer Williams and Officer McCall, both
placed Mr. Wade as doing that act. And then Officer Ross who, due
to the rule was out in the hallway, did indicate that Mr. Wade was in
a position where he couldn’t have done that.

I mean, there was some inconsistency, he is correct about that. And
all along I had told him that was a triable case, especially if he could
get me some witnesses that would say that.

Funk conceded that he could not recall whether or not he interviewed the witnesses
identified by the petitioner. He also conceded that he did not listen to an audio tape recording of the
alleged drug sale. He explained, however, that his investigation of the petitioner’s case was
interrupted when an Assistant United States Attorney informed him that a federal grand jury would

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indict the petitioner in approximately one week due to the petitioner’s possession of cocaine and a
gun on February 6, 1996. Funk recalled:
I think Mr. Wade was looking at a minimum fifteen year sentence if
he didn’t cooperate with the government. Fifteen years in federal
time would have taken him about twelve to do. And that was a
minimum situation.

And that was without pointing the gun and firing it, just having the
gun and possessing the crack, which we kind of were in a position
where we had to concede. And his witnesses weren’t talking about
that.
Accordingly, Funk engaged in plea negotiations with the prosecutor handling the petitioner’s case
in state court. As a result of these negotiations, the prosecutor and the Assistant United States
Attorney offered the plea agreement that was ultimately accepted by the petitioner.

Funk testified that he fully discussed the plea agreement with the petitioner, including
reviewing the federal sentencing guidelines with the petitioner. Funk recalled that he and the
petitioner “had some pretty long discussions, including on the day of the plea.” Following these
discussions, the petitioner stated to Funk, “[O]kay, I’m trusting you and I’m going with this.” Funk
stated his belief that the petitioner’s guilty pleas were both knowing and voluntary. Funk concluded,
“I thought I got a better deal for Larry Wade than I had gotten for anybody all year.”

At the conclusion of Funk’s testimony, petitioner’s post-conviction counsel noted his
agreement with Funk that a federal prosecution would have resulted in a lengthier sentence than that
currently being served by the petitioner. The post-conviction court noted in turn that “this is an
absolute classic example of plea bargaining. It’s a classic example.” The court concluded that the
petitioner was afforded effective representation of counsel and that the petitioner’s guilty pleas were
knowing and voluntary.

II. Analysis
The petitioner was required at the post-conviction evidentiary hearing to prove the
factual allegations in his petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-
210(f)(1997). “‘Clear and convincing evidence means evidence in which there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.’” State v.
Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999), perm. to appeal denied, (Tenn. 2000)(quoting
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Moreover, on appeal, the post-
conviction court’s factual findings are binding upon this court unless the evidence preponderates
otherwise. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,
578 (Tenn. 1997). “In evaluating whether the evidence preponderates against the [post-conviction]
court's findings, we are guided by longstanding rules of appellate procedure.” Henley, 960 S.W.2d
at 578. Thus, questions concerning the credibility of witnesses and the weight and value of their
testimony are for resolution by the post-conviction court. Black v. State, 794 S.W.2d 752, 755
(Tenn. Crim. App. 1990). This court will not re-weigh or reevaluate the evidence or substitute its

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inferences for those of the post-conviction court. Owens v. State, 13 S.W.3d 742, 749 (Tenn. Crim.
App. 1999), perm. to appeal denied, (Tenn.), cert. denied, 531 U.S. 846, 121 S. Ct. 116 (2000). That
having been said, this court reviews de novo the post-conviction court’s resolution of questions of
law and mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

A. Ineffective Assistance of Counsel
The petitioner contends in this appeal, as in the court below, that his guilty pleas were
the result of ineffective assistance of counsel. In order to establish ineffective assistance of counsel
in contravention of the Sixth Amendment to the United States Constitution and Article I, Section 9
of the Tennessee Constitution, a petitioner must demonstrate that (1) his counsel’s representation
was deficient and that (2) the deficient performance was prejudicial. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see also Burns, 6 S.W.3d at 461; Henley, 960 S.W.2d
at 579; Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). Reviewing courts need not
address these components in any particular order or even address both if the petitioner fails to meet
his burden with respect to one. Burns, 6 S.W.3d at 461; Henley, 960 S.W.2d at 580.

In order to demonstrate that his counsel’s performance was deficient, the petitioner
must show that counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms. Strickland, 466 U.S. at 687-688; 104 S. Ct. at 2064-2065; see also
Burns, 6 S.W.3d at 462. In Tennessee, our supreme court has interpreted this test to require 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 applying this test, this
court should refrain from second-guessing tactical and strategic decisions by defense counsel.
Henley, 960 S.W.2d at 579. Rather, this court should defer to such decisions if they are based upon
adequate preparation. Burger v. Kemp, 483 U.S. 776, 794-795, 107 S. Ct. 3114, 3126 (1987); see
also Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Terry Lee Charlton v. State, No. M1998-00087-
CCA-MR3-PC, 2000 WL 127278, at *3 (Tenn. Crim. App. at Nashville, February 4, 2000), perm.
to appeal denied, (Tenn. 2000).

Ultimately, the primary concern of the court should be the fundamental fairness of
the trial court proceedings. State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). Thus,
as previously noted, a petitioner must establish prejudicial, as opposed to merely deficient,
performance by trial counsel. In order to establish prejudice, a petitioner must demonstrate a
reasonable probability that the result of the proceeding would have been different but for the
defective performance of counsel. Henley, 960 S.W.2d at 579. 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.

The issues of deficient performance by counsel and possible prejudice to the defense
are mixed questions of law and fact. Burns, 6 S.W.3d at 461. Thus, while the post-conviction

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court’s factual findings are entitled to a presumption of correctness unless the evidence
preponderates otherwise, this court should conduct a “purely de novo review” of the post-conviction
court’s “application of law to those factual findings to determine whether counsel’s performance was
deficient or whether the defendant was prejudiced by that deficiency.” Fields v. State, 40 S.W.3d
450, 457-458 (Tenn. 2001). Applying this standard, we decline to disturb the conclusion of the post-
conviction court that the petitioner received effective assistance of counsel.

The petitioner grounds his complaint of ineffective assistance of counsel on his
attorney’s recommendation that he plead guilty to attempted second degree murder and possession
of cocaine with intent to sell in order to avoid federal prosecution for charges relating to his
possession of cocaine and a gun and the consequent risk of a greater sentence. Specifically, the
petitioner asserts that, prior to advising him to plead guilty, his attorney (1) failed to interview
witnesses identified by the petitioner as capable of corroborating his version of the facts underlying
the State’s charge of attempted first degree murder; (2) failed to listen to an audio tape recording of
the alleged drug sale; and (3) failed to ascertain the total amount of drugs seized by police from the
petitioner.

Preliminarily, this court has previously cited with approval the United States Supreme
Court’s observation that the expectation or hope of a lesser sentence is a consideration that might
suggest the advisability of a guilty plea. See Henry Eugene Hodges v. State, No M1999-00516-
CCA-R3-PD, 2000 WL 1562865, at *20 (Tenn. Crim. App. at Nashville, October 20, 2000), perm.
to appeal denied, (Tenn. 2001)(citing United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392 (1976),
and Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463 (1970)). Indeed, we have acknowledged
that such calculations are the very heart of plea bargaining:
Plea agreements are often called “plea bargains,” and this term is
indicative of the nature of such agreements. As a general proposition,
a plea agreement is a bargained-for exchange between the state and
the defendant. In exchange for the defendant’s plea of guilty, the
state often agrees to drop additional charges, to reduce the charge to
which the defendant is to plead guilty, and/or to agree to a sentencing
structure that is more favorable than the defendant might otherwise
expect. In exchange for the state’s concession(s), the defendant may
agree to accept a conviction and/or sentence which is different than
that which he might have received had the charge(s) proceeded to
trial.
William Boyd v. State, No. E1999-02179-CCA-R3-PC, 2000 WL 1661526, at *5 (Tenn. Crim. App.
at Knoxville, November 6, 2000)(citations omitted); see also State v. Pettus, 986 S.W.2d 540, 543
(Tenn. 1999). As noted by the post-conviction court, the petitioner’s attorney in this case was
engaged in “classic” plea bargaining. In essence, Funk calculated that the petitioner’s best interests
would be served by pleading guilty in state court to possession of cocaine with intent to sell and
attempted second degree murder and receiving concurrent sentences of twelve years incarceration
rather than by proceeding to trial in state court on all the charged offenses and also facing federal
prosecution for charges that related to the petitioner’s possession of cocaine and a gun and entailed

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a minimum sentence of fifteen years incarceration. See, e.g., State v. Holmes, 995 S.W.2d 135, 139
(Tenn. Crim. App. 1998).

As noted earlier, this court need only defer to tactical and strategic decisions by
defense counsel if they are based upon adequate preparation. Burger, 483 U.S. at 794-795, 107 S.
Ct. at 3126. Addressing the petitioner’s allegations of inadequate preparation, we note that the
record is devoid of evidence that Funk was unaware of the total amount of drugs seized by police
from the petitioner or that Funk was otherwise unable to calculate the potential consequences of a
federal prosecution.2 The record does reflect Funk’s possible failure to interview witnesses
identified by the petitioner and his failure to listen to an audio tape recording of the alleged drug sale.
However, in assessing Funk’s calculation of the petitioner’s best interests and his consequent advice
to the petitioner to plead guilty, we must keep in mind that
strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words,
counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all circumstances,
applying a heavy measure of deference to counsel's judgments.
Strickland, 466 U.S. at 690-691, 104 S. Ct. at 2066; see also Harris v. State, 947 S.W.2d 156, 165
(Tenn. Crim. App. 1996). Applying a heavy measure of deference to counsel’s judgment in this
case, we must conclude that Funk’s decision to forego interviewing the witnesses identified by the
petitioner and listening to the audio tape recording of the alleged drug sale prior to advising the
petitioner to plead guilty was reasonable under all the circumstances of this case.

With respect to Funk’s failure to interview the witnesses identified by the petitioner,
the record reflects that Funk was nevertheless aware of the existence of the witnesses and their
potential value in defending the petitioner against the charge of attempted first degree murder.
Indeed, as noted earlier, Funk informed the petitioner that the attempted first degree murder
prosecution was a “triable case.” In contrast, however, the record reflects that the petitioner never
disputed his possession of and sale of cocaine, nor did he ever dispute his possession of a gun.
Accordingly, regardless of the disposition of the attempted first degree murder charge in state court,

2
In his brief on appeal, the petitioner notes Funk’s failure to object to the prosecutor’s statement at the
submission hearing that po lice seized at lea st twenty-five grams of cocaine from the pe titioner. He as serts that “the
record provided in this matter shows a total weight of 5.0 grams of cocaine in [the petitioner’s possession].” The
petitioner, however, does not follow this assertion with any citation to the record, and we have been unable to locate any
proof in the record contradicting the prosecutor’s statement concerning the amount of drugs seized by police from the
petitioner. Moreover, as noted earlier, petitioner’s post-conviction counsel conceded at the post-conviction evidentiary
hearing that a successful federal prosecution would have subjected the petitioner to a greater sentence than the sentence
afforded by the petitioner’s guilty pleas.

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the petitioner faced a significant likelihood of conviction in federal court of charges that related to
his possession of cocaine and a gun and entailed a minimum sentence of fifteen years incarceration.
In other words, even had Funk interviewed the witnesses identified by the petitioner and confirmed
their corroboration of the petitioner’s version of events occurring on February 6, 1996, this additional
investigation would not have diminished the benefit of the plea agreement offered by the State.

As to Funk’s failure to listen to the audio tape recording of the alleged drug sale, the
record reflects that the petitioner described to Funk the events that occurred on February 6, 1996.
Again, the petitioner never denied his sale of cocaine to the officers, his possession of the drugs
seized by police during his attempted flight, or his possession of a gun. “[W]hen a defendant has
given counsel reason to believe that pursuing certain investigations would be fruitless . . ., counsel's
failure to pursue those investigations may not later be challenged as unreasonable.” Burger, 483 U.S.
at 795, 107 S. Ct. at 3126; see also Harris, 947 S.W.2d at 167. In this regard, we are unconvinced
by the petitioner’s argument that “the inconsistency of the testimony shown by the police officers
at the time of the transfer hearing foreshadow[ed] inevitable problems which might arise in the
prosecution of this case by Federal authorities.” It was undisputed at the post-conviction evidentiary
hearing that inconsistencies in the police officers’ testimonies at the transfer hearing solely related
to the petitioner’s guilt or innocence of attempted first degree murder.

Additionally, even assuming that Funk’s performance was not within the range of
competence demanded of attorneys in criminal cases, the petitioner failed to present at the post-
conviction evidentiary hearing the testimony of the witnesses whom Funk failed to interview. “The
failure to present such witnesses precludes this court and the post-conviction court from making a
determination of how the petitioner was prejudiced . . . .” State v. James E. Gordon, No. M2000-
02435-CCA-R3-PC, 2001 WL 844404, at *4 (Tenn. Crim. App. at Nashville, July 26, 2001); see
also Black, 794 S.W.2d at 757-758 (“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.”). Similarly, the petitioner’s failure to include the audio tape
recording of the drug sale in the record before this court precludes any determination of prejudice.
This issue is without merit.

B. Knowing and Voluntary Nature of Petitioner’s Guilty Pleas
In a related argument, the petitioner also asserts that his guilty pleas were neither
knowing nor voluntary. In order to pass constitutional muster, an accused’s guilty plea must be
entered voluntarily, knowingly, and understandingly. Parke v. Raley, 506 U.S. 20, 28-29, 113 S. Ct.
517, 523 (1992); Boykin v. Alabama, 395 U.S. 238, 242-244, 89 S. Ct. 1709, 1711-1713 (1969); see
also Blankenship v. State, 858 S.W.2d 897, 904-905 (Tenn. 1993); State v. Mackey, 553 S.W.2d
337, 340 (Tenn. 1977); Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998). In other
words, a guilty plea must represent a voluntary and intelligent choice among the alternative courses
of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164
(1970). Thus, a defendant must possess a sufficient awareness of the relevant circumstances and
likely consequences of his plea. Brady, 397 U.S. at 748, 90 S. Ct. at 1469. Conversely, “the plea
cannot be . . . the product of ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or]

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subtle or blatant threats.’” State v. Wilson, 31 S.W.3d 189, 195 (Tenn. 2000)(alterations in original).

The determination of whether a guilty plea was entered voluntarily, knowingly, and
understandingly depends upon a court’s consideration of “all of the relevant circumstances that
existed at the entry of the plea.” Hicks, 983 S.W.2d at 247. Relevant circumstances include the trial
court’s compliance with procedures mandated by Boykin, 395 U.S. at 242-244, 89 S. Ct. at 1711-
1713, Mackey, 553 S.W.2d at 341, State v. McClintock, 732 S.W.2d 268, 273 (Tenn. 1987), and
Tenn. R. Crim. P. 11. Hicks, 983 S.W.2d at 247; see also Bates v. State, 973 S.W.2d 615, 624-625
(Tenn. Crim. App. 1997); Michael E. Waldron v. State, No. M2000-00772-CCA-R3-PC, 2001 WL
589173, at *10 (Tenn. Crim. App. at Nashville, June 1, 2001). For example, a trial court’s failure
to establish a factual basis for the plea on the record may contribute to the totality of the
circumstances reflecting an unknowing and involuntary plea. Powers, 942 S.W.2d at 555. More
broadly, a reviewing court should consider
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, 858 S.W.2d at 904. Again, on appeal, this court is bound by the post-conviction
court’s conclusions to the extent that they are supported by a preponderance of the evidence
contained in the record and do not entail the application of the law to factual findings. Burns, 6
S.W.3d at 461. In this case, the record substantiates the post-conviction court’s conclusion that the
petitioner entered his guilty pleas knowingly and voluntarily.

The petitioner primarily grounds his claim that his guilty pleas were unknowing and
involuntary on his claim of ineffective assistance of counsel. This court has held that “[i]f [guilty]
pleas were made in reasonable reliance upon the advice or representation of counsel, which advice
or representation demonstrated incompetence, then it can be said that the defendant’s pleas were not
voluntary.” Hodges, No M1999-00516-CCA-R3-PD, 2000 WL 1562865, at *19. However, we have
already concluded that petitioner’s counsel rendered effective representation. Nevertheless, the
petitioner cites his attorney’s December 10, 1997 letter in which Funk informed the petitioner that,
if he filed a motion to withdraw his guilty pleas, Funk would “advise the Court that you obviously
did not understand your situation.” However, as also acknowledged by the petitioner, Funk testified
at the post-conviction evidentiary hearing that he believed the petitioner’s guilty pleas to be both
knowing and voluntary. The post-conviction court was entitled to accredit Funk’s testimony at the
evidentiary hearing in lieu of a somewhat ambiguous statement included in a hastily and angrily
written letter, and the totality of circumstances in this case corroborates Funk’s testimony.

In closing, we note the petitioner’s assertion at the post-conviction evidentiary hearing
that he “didn’t have a choice.” In this regard, we have previously observed that “[t]he statement, ‘I
have no choice,’ may . . . well mean that, after considering the options before him, the petitioner

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concluded that the only intelligent choice was to plead guilty.” Hicks, 983 S.W.2d at 248. In fact,
on appeal, the petitioner elucidates:
[Petitioner] argues that he had no choice but to plead guilty to
attempted second degree murder. It was the [petitioner]’s
understanding that this would have to be done in order to avoid
[federal] prosecution . . . .
The record reflects that the petitioner’s understanding was correct. “However, the entry of a guilty
plea to avoid the risk of greater punishment does not make a plea involuntary.” Alphonso Bradford
v. State, No. M1998-00078-CCA-MR3-PC, 2000 WL 549278, at *6 (Tenn. Crim. App. at Nashville,
May 5, 2000), perm. to appeal denied, (Tenn. 2000); see also Hicks, 983 S.W.2d at 248. This issue
is without merit.

III. Conclusion
For the foregoing reasons, we affirm the judgment of the post-conviction court.

___________________________________
NORMA McGEE OGLE, JUDGE

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