Michael Joseph Lugiai, Sr. v. State of Tennessee

02/08/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 12, 2017

MICHAEL JOSEPH LUGIAI, SR. v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County
No. 2011-C-2551 J. Randall Wyatt, Jr., Judge
___________________________________

No. M2016-00369-CCA-R3-PC
___________________________________

In July 2012, the Petitioner, Michael Joseph Lugiai, Sr., entered a “best interests” guilty
plea to four counts of aggravated assault. He timely filed a petition for post-conviction
relief alleging that he received ineffective assistance of counsel and that his plea was
unknowing and involuntary. Following a hearing on the petition, the post-conviction
court denied relief. After a thorough review, we affirm the judgment of the post-
conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Kevin McClean Kelly, Nashville, Tennessee, for the appellant, Michael Joseph Lugiai,
Sr.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Deputy Attorney
General; Victor S. Johnson III, District Attorney General; and Chris Buford, Assistant
District Attorney, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

This appeal arises from the dismissal of a petition for post-conviction relief. The
Petitioner was indicted for attempted first degree murder (Count 1), three counts of
aggravated child abuse (Counts 2, 3, and 4), and aggravated assault (Count 5). He
entered a best interest guilty plea to four counts of aggravated assault in Counts 1 through
4. Count 5 was dismissed. He was sentenced as a multiple offender to nine years’
incarceration on each count to be served concurrently with release eligibility after service
of thirty-five percent of the sentence.

Plea Submission Hearing

The Petitioner appeared in court on July 16, 2012, for a jury trial on the indicted
offenses. Before the jury was brought into court, the Petitioner asked for an opportunity
to speak with lead trial counsel and associate counsel.1 After meeting with lead trial
counsel and associate counsel, it was announced that the Petitioner had agreed to a plea
offer, and the trial court allowed the Petitioner to enter a plea while the jury remained
outside the courtroom.

At the Petitioner’s plea submission hearing, after lead trial counsel explained the
terms of the plea agreement, the trial court explained the nature of a best interest guilty
plea. The trial court then informed the Petitioner of the nature of the charges to which the
plea was offered and the range of punishment for aggravated assault and for the indicted
offenses. The Petitioner then asked if he could “say something” and the following
dialogue occurred:

[THE PETITIONER]: Your Honor, uh, I - I, can I, can I say something,
your Honor?

THE COURT: Sure. Yes.

[THE PETITIONER]: The way it was explained to me was that if I do this
it is in my best interest and I, and I want to do this, but it was all contingent
upon my wife and her charges, charges that she has, and I was, I was under
the impression that I know [the assistant district attorney], I just want to, I
just don’t want her to be in trouble, you know, and . . .

THE COURT: And I don’t know what that all is, but I mean, it is fine with
me if she is not in any trouble if that is what is agreed to, but some of the
things that you are talking about I think may have to do with some sort of,
you know, discussion between you, your lawyer, and [the assistant district
attorney], that I haven’t [b]een a party to, so I don’t know what that is.

1
An attorney in lead trial counsel’s law firm assisted during final week’s preparation for trial and
was present at the trial when the Petitioner decided to enter a plea. We will refer to that attorney as
“associate counsel.”
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(Whereupon, [the Petitioner] and [lead trial counsel] conferred.)

[LEAD TRIAL COUNSEL]: Your Honor, I’ve informed [the Petitioner]
that I had been present when [the assistant district attorney] discussed with
his wife’s attorney the possible resolution to her case. I explained that was
not conditional on him pleading, that it would be dealt with independently,
but I attempted to give him my best impression of what would happen with
her case. However, I told him clearly there was not an agreement with the
State that her charges would be resolved in any particular way based on this
plea, but . . .

…

THE COURT: Okay. Well, I guess what he is saying, [the Petitioner], is
they haven’t finally determined that, but it sounds like what [lead trial
counsel] is saying is that he has the impression that if this plea goes through
on you that the State might be inclined favorably towards your wife’s
case[.]

[LEAD TRIAL COUNSEL]: Yes, your Honor.

…

[THE PETITIONER]: Your Honor, I re – I just - I respect [the assistant
district attorney] and I just wanted to say that I just wanted to put that out
there and that is all I wanted to say, so, yes, I’m taking it. I want to take
this –

[LEAD TRIAL COUNSEL]: Offer.

[THE PETITIONER]: – plea, plea.

THE COURT: Okay. So, in other words, you, you kind of get the feeling
that since you do respect [the assistant district attorney] that you feel like he
would honor that implied –

[THE PETITIONER]: Yes, your Honor.

THE COURT: – understanding about it?

[THE PETITIONER]: Yes, your Honor.
-3-
 The trial court then explained to the Petitioner his right to plead not guilty, his
right to a jury trial, the presumption of innocence, his right to confront and cross-examine
witnesses, and his right to be protected from self-incrimination. The trial court further
advised the Petitioner that by pleading guilty he waived the right to trial and appeal. The
Petitioner stated that he understood that he would be giving up those rights by entering a
plea. The Petitioner also agreed that he had “been over” the plea petition with lead trial
counsel.

The following dialogue concerning the voluntariness of the plea is quoted from the
transcript of the plea colloquy:

THE COURT: And did [lead trial counsel] sit down and explain to you in
great detail all of the different questions or issues that would come from
this plea?

[THE PETITIONER]: Yes, your Honor.

THE COURT: And do you feel like you understand what you are doing
here now?

[THE PETITIONER]: Yes, your Honor.

THE COURT: All right. And, are you doing what you are doing here now,
even though it’s obvious you have some reservations about it, and it is a
best interest plea, I realize that, are you doing this plea though of your own
voluntary decision?

(Whereupon, there was a brief pause in the proceedings.)

THE COURT: That question has to do with whether [lead trial counsel and
associate counsel] either one[,] have forced you into this or coerced you
into this?

[THE PETITIONER]: No. They, they have not. They have not.

THE COURT: So is this your own personal decision?

[THE PETITIONER]: Yes, your Honor.

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 The State next presented, as a factual basis for the plea, that on July 5, 2011, a
disagreement arose wherein the Petitioner struck the seventeen-year-old victim “with a
phillips head screw driver several times” and “struck him with a cord and also took a
kitchen knife and involved that in the altercation[.]” The victim fled and called “911 for
assistance.” The Petitioner then entered his guilty plea and was sentenced pursuant to the
terms of the plea agreement.

Post-Conviction Proceedings

The Petitioner subsequently filed a timely pro se petition for post-conviction relief
in which he raised three grounds: that he was denied the effective assistance of counsel,
that the plea bargaining proceedings violated his Fourteenth Amendment rights, and that
his witnesses were threatened with a lengthy prison sentence if they testified for him.
The post-conviction court appointed counsel, who filed an amended petition which
claimed that the Petitioner’s plea should be withdrawn because the Petitioner “was not
sufficiently prepared for trial” due to the ineffective assistance of counsel, that the
Petitioner “should have been referred for a forensic evaluation,” and that the Petitioner
involuntarily and unknowingly entered his plea due to the criminal prosecution of his
wife.

At the post-conviction hearing, the Petitioner testified that, following his service
as a United States Army Ranger in Panama and Afghanistan, he was diagnosed with
“mood disorder” and “panic anxiety disorder.” His Army medical record was admitted
without objection as an exhibit. The Petitioner read from certain portions of his medical
records which indicated that the Petitioner could “no longer maintain gainful
employment[]” and that he “continues to suffer from severe chronic anxiety, rapid
pressured speech, low self-esteem and social withdrawal, lack of insight, [but] no suicidal
plans.” The Petitioner claimed his condition caused him “to freeze up” and “kind of
black-out” when confronted with stressful situations. He said that the black-outs affect
his memory, which he described as “bits and pieces” or “in and out.” He stated the
discussion with lead trial counsel and associate counsel before the plea and the plea
colloquy itself was stressful and that associate counsel was “shouting in [his] face” to get
the Petitioner to accept the plea deal. The Petitioner stated that he wanted a
psychological evaluation, but lead trial counsel refused to have him examined. The
Petitioner said that both he and his wife were charged with criminal offenses arising from
the same incident, and while those charges were pending, his wife was charged in another
case.2 He was concerned about his wife’s well-being and felt like he “had a gun to his

2
Although the record is unclear regarding what offenses the Petitioner’s wife was originally
charged with, the subsequent charge arose from the alleged coercion of a witness, the victim in
Petitioner’s case.
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head” because associate counsel told him: “F’ing take this deal, if you don’t take some
kind of deal[,] if you keep on going to trial you are going to f’ing lose and they are going
to give her 64 years.” The Petitioner claimed that he was coerced into pleading guilty
and that he would have taken his case to trial if his wife had not been facing prosecution.

On cross-examination, the Petitioner said he was in the military from 1987
through 1995 and was honorably discharged. He was stationed part of that time in
Panama. He was diagnosed with his current medical condition ten years after he was
discharged. The doctors told him that his repetitive parachute jumps could have caused
his problems. He stated that he had not seen anyone for his medical condition during the
six months before he was charged in this case.

The Petitioner said that lead trial counsel represented him for about a year before
he pled guilty. The Petitioner said that throughout that time he was insistent upon going
to trial, but on the morning of trial, he was coerced into pleading guilty. When asked if
he was intimidated by lead trial counsel and associate counsel, the Petitioner responded:

Well, I mean, my gosh, if you have got two bullies in an alley and you are
the guy backed up against the wall and one of them is doing all the talking,
I mean, are you not going to be intimidated by the other one as well, just
because he is standing there not holding the knife or something?

The Petitioner agreed that no one threatened him while he was in court entering his plea.
He claimed however that he was going “in and out” during the plea and only heard “bits
and pieces” of what the trial court was asking. The Petitioner also agreed that he had
discussed with lead trial counsel the possibility of calling his wife as a witness even
though her cases were still pending. He stated that lead trial counsel did not discuss his
testimony with him even though he told lead trial counsel that he wanted to take his case
to trial. He said he was intimidated by associate counsel and that lead trial counsel was
“going along with it” and agreeing with associate counsel.

Lead trial counsel testified that he had been practicing law for seven or eight years
at the time the Petitioner entered his plea and that “80 or 90 percent of [his] practice was
criminal defense.” He said that he visited with the Petitioner approximately ten times
during the year before the Petitioner pled guilty. Lead trial counsel said that the
Petitioner had no problem communicating with him and that the Petitioner claimed that
the victim “fabricated this entire story because he was angry with [the Petitioner].” The
Petitioner’s wife and daughter were present during the incident that led to the charges,
and lead trial counsel interviewed both of them as potential witnesses and also had his
investigator interview them. The Petitioner claimed that he and the victim argued
concerning a broken “cutting machine” and that the victim left and did not return before
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the police arrived the next morning. The Petitioner told lead trial counsel that the victim
was injured by a person named “Latimer” during “some sort of gang initiation.” The
Petitioner told him Latimer was now deceased.

Lead trial counsel began to make “some substantial headway . . . on a negotiation”
during the pre-trial status conference ten days before trial. He said that the Petitioner had
previously been adamant about going to trial, but as the trial date neared, the Petitioner
began to express interest in a plea bargain. Lead trial counsel informed the Petitioner
about a six-year plea offer that would have allowed the Petitioner to serve his sentence
locally. The Petitioner had approximately one year of jail credit and “would [have] come
up for parole relatively soon.” Lead trial counsel had a “handshake kind of agreement”
with the State that the Petitioner’s wife’s charges would be resolved favorably if the
Petitioner pleaded guilty. However, the Petitioner would not agree to the six-year plea
offer. On the following Monday, a week before the trial was to begin, the State withdrew
the six-year offer, offering instead a nine-year sentence.

Lead trial counsel testified that he introduced associate counsel to the Petitioner
about a week before trial. On the date of the trial, lead trial counsel and associate counsel
met with the Petitioner for two and a half hours about pleading guilty. Lead trial counsel
testified that associate counsel was more direct than he was, but he did not “think
[associate counsel] physically intimidated [the Petitioner] into taking the plea.” Both
lead trial counsel and associate counsel were “adamant that this was as good of a deal as
the Petitioner was going to get,” and they advised the Petitioner to take the deal because
they thought the Petitioner’s “chances of winning were low.” Lead trial counsel stated
that the State alleged that the Petitioner “had stabbed [the victim] 15 or 20 times with a
screwdriver[.]” The “police had collected a screwdriver from [the Petitioner’s] residence
the next morning” and laboratory testing showed that the blood on the screwdriver
matched the victim’s blood. Lead trial counsel also stated that he and his investigator had
a telephone conversation with the victim’s sister who was staying in an extended stay
motel room with her mother. He said that the victim’s sister initially told him the victim
was making up the entire story. At some point, her mother left the room, and the victim’s
sister changed her story and stated that what the victim said was true but that she could
not say that with her mother in the room. Lead trial counsel’s investigator interviewed
the victim. Lead trial counsel characterized the victim’s statement to the investigator as
consistent with the victim’s statement to the police. Lead trial counsel said that he
explained the charged offenses and the applicable range of punishment for each offense
to the Petitioner.

On cross-examination, lead trial counsel said that he did not receive a written six-
year plea offer. He said that the oral six-year offer was the first plea offer he discussed
with the Petitioner, and he agreed that previously the Petitioner had been adamant about
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proceeding to trial. He said that he did not receive the forensic evidence report
concerning the screwdriver until a couple of months before trial because the laboratory at
the Tennessee Bureau of Investigation had a significant backlog of cases. He strongly
advised the Petitioner against testifying because the Petitioner had 2003 convictions in
Nevada “for felon in possession of a weapon and also impersonating a Federal officer”
and a 1990 Illinois felony conviction for impersonating an officer. Lead trial counsel
stated that the Petitioner never expressly stated that he wanted to testify, only that he
wanted to go to trial.

When questioned about not seeking a psychological evaluation, lead trial counsel
answered:

He said he had a lot of pain, you know, joint type things, but I don’t
recall him giving me a lot or asking me a lot of questions or making it
aware that he had a serious mental health diagnosis. He might have
mentioned that he had some sort of anxiety because of his service or
something else, but I don’t recall reading the excerpt that [post-conviction
counsel] had presented as an exhibit. I don’t recall him telling me anything
about blacking out ever.

…

I don’t think there was a competency issue. I actually think he is
fairly intelligent. He was able to converse with me a lot.

He had a lot to say every time we met and a lot of opinions about
issues, so I don’t think that an evaluation would have said that he is unable
to assist me or unable to understand what is going on.

Lead trial counsel agreed that they were seated at the counsel table in the
courtroom waiting for the trial to begin when the Petitioner told him that he “wanted to
talk some more.” The trial court allowed lead trial counsel and associate counsel an
opportunity to talk to the Petitioner in private. Lead trial counsel agreed that the
Petitioner was very concerned “about what was going to happen to his wife.” After
extensive discussions, the Petitioner agreed to accept the offer from the State and entered
the best interest plea while the jury waited. Following the hearing, the post-conviction
court took the matter under advisement.

-8-
 Post-Conviction Court’s Written Order

The post-conviction court entered a written order in which it summarized the post-
conviction hearing testimony and addressed the claims made in the petitions for post-
conviction relief. Concerning the claim for ineffective assistance of counsel, the post-
conviction court found that the Petitioner failed to prove that lead trial counsel and
associate counsel were ineffective. The post-conviction court credited the testimony of
lead trial counsel. The court found that lead trial counsel met with the Petitioner multiple
times and discussed the discovery and the State’s evidence with the Petitioner “at length.”
The post-conviction court found that lead trial counsel “had a thorough understanding of
the case and was ready to proceed with a trial.” The post-conviction court discredited the
Petitioner’s testimony that he pleaded guilty because lead trial counsel and associate
counsel did not prepare for and were not ready for trial, noting that even if that allegation
was true, it “did not affect the Petitioner’s decision to plead guilty[.]”

“With regard to the Petitioner’s physical and psychological health condition,” the
post-conviction court noted that “there is no proof before the [c]ourt that would suggest
that [lead trial] counsel was ineffective for failing to seek further evaluation, or that the
Petitioner suffered any sort of prejudice as a result of [lead trial] counsel’s decision not to
explore the issue further.” As to that claim, the post-conviction court found that the
Petitioner failed to meet his burden of proof to warrant post-conviction relief.

Concerning whether the Petitioner entered his plea freely and voluntarily, the post-
conviction court, quoting Jaco v. State, 120 S.W.3d 828, 831 (Tenn. 2003), found that the
Petitioner clearly made “a voluntary and intelligent choice among the alternative courses
of action open to” him. The post-conviction court noted that the plea transcript “speaks
for itself” and that, although the Petitioner had some “hesitancy about pleading guilty,”
the Petitioner agreed during questioning by the court that the plea was “in his best
interest” and that he was pleading guilty based on his “own voluntary decision.”

The post-conviction court discredited the Petitioner’s statement that he pleaded
guilty because the State threatened his wife with prosecution. The post-conviction court
noted that the Petitioner’s wife had already been charged with offenses arising from the
same incident that gave rise to Petitioner’s charges and that “the transcript reflects that it
was made explicitly clear to the Petitioner that the State made no promises regarding the
prosecution of his wife in connection with this plea.” Moreover, lead trial counsel
explained to the Petitioner that the “State’s decision regarding the Petitioner’s wife was
not conditional on [the Petitioner] pleading.” The post-conviction court found that the
State’s actions concerning the Petitioner’s wife’s case and the Petitioner’s plea “did not
amount to impermissible coercion.” The post-conviction court discredited the
Petitioner’s testimony that associate counsel shouted at him, noting that the Petitioner at
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the plea hearing “explicitly denied that either of his attorney[s] coerced him into
accepting the offer.” The post-conviction court denied post-conviction relief, and the
Petitioner timely appealed.

II. Analysis

On appeal, the Petitioner claims that the post conviction court erred in denying
post-convcition relief.

In the argument section of his brief, the Petitioner avers that his pleas were not
voluntarily or knowingly entered because the Petitioner was not sufficiently prepared for
trial due to lead trial counsel’s lack of preparation, he was coerced into pleading guilty
because his wife was threatened with criminal prosecution, and he suffered black outs
during the plea hearing as a result of his anxiety disorder. The State argues that the post-
conviction court properly found that lead trial counsel was not ineffective in preparing for
trial and by not seeking a psychological evaluation and that there was no impermissible
coercion regarding the Petitioner’s wife’s case. The State argues that the claim that the
Petitioner suffered black outs because of an anxiety disorder was not included in the
original or amended post-conviction petitions and is waived, and even if not waived,
there was no evidence of black outs during the plea submission hearing. We agree with
the State that the post-conviction court properly denied relief.

Standard of Review

In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco, 120 S.W.3d at 830. Post-
conviction relief cases often present mixed questions of law and fact. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound by the post-conviction
court’s factual findings unless the evidence preponderates against such findings.
Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing the post-
conviction court’s factual findings, this court does not reweigh the evidence or substitute
its own inferences for those drawn by the post-conviction court. Id.; Fields, 40 S.W.3d at
456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
“questions concerning the credibility of the witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the
[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The trial court’s conclusions of law and
application of the law to factual findings are reviewed de novo with no presumption of
correctness. Kendrick, 454 S.W.3d at 457.

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 Ineffective Assistance of Counsel

The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for a court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, a petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, a petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

A substantially similar two-prong standard applies when a petitioner challenges
counsel’s performance in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58
(1985); Don Allen Rodgers v. State, No. W2011-00632-CCA-R3-PC, 2012 WL 1478764,
- 11 -
at *4 (Tenn. Crim. App. Apr. 26, 2012). First, a petitioner must show that his counsel’s
performance fell below the objective standards of reasonableness and professional norms.
See Hill, 474 U.S. at 58. Second, “in order to satisfy the ‘prejudice’ requirement, a
[petitioner] must show that there is a reasonable probability that, but for counsel’s errors,
he would have not have pleaded guilty and would have insisted on going to trial.” Id. at
59.
Failure to Prepare the Petitioner for Trial. The Petitioner claims that he received
ineffective assistance of counsel because trial counsel did not prepare the Petitioner for
his direct testimony at trial. As a result, the Petitioner claims he thought it unwise to
proceed to trial, so he entered a plea. The post-conviction court found that lead trial
counsel “met with the Petitioner multiple times” and discussed the discovery and the
State’s evidence with the Petitioner “at length.” Lead trial counsel advised the Petitioner
against testifying for two reasons: (1) the Petitioner’s prior criminal record, which could
have been used to impeach the Petitioner’s credibility, and (2) the Petitioner’s
explanation that the victim was injured in a gang initiation, which conflicted with certain
physical evidence, namely the victim’s blood found on a screw driver recovered by the
police at the Petitioner’s residence the morning after the victim called 911 to report an
assault. The post-conviction court accredited lead trial counsel and discredited the
Petitioner. The evidence does not preponderate against the post-conviction court’s
findings, and the Petitioner has failed to prove by clear and convincing evidence that trial
counsel’s representation was deficient in preparing the Petitioner for trial. He is not
entitled to relief on this ground.

Failure to Seek Psychological Evaluation. The Petitioner claims that lead trial
counsel’s performance was deficient for failing to have him psychologically evaluated.
Lead trial counsel testified that the Petitioner told him about physical pain and some
anxiety but never told him about any serious mental health diagnosis or “blacking out.”
Lead trial counsel had no problems communicating with the Petitioner and did not
believe the Petitioner’s competency was an issue. The post-conviction court accredited
lead trial counsel’s testimony and discredited the Petitioner. The evidence does not
preponderate against the post-conviction court’s findings, and the Petitioner has failed to
prove that lead trial counsel was ineffective in not seeking a psychological evaluation.
He is not entitled to relief on this ground.

Unknowing and Involuntary Guilty Plea

Whether a guilty plea is intelligent and voluntary is a mixed question of law and
fact. Jaco, 120 S.W.3d at 830-31. Therefore, in such cases we review the post-
conviction court’s findings of fact de novo with a presumption of correctness. Id. The
post-conviction court’s findings of law are reviewed purely de novo. Id.

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 A guilty plea must be entered knowingly and voluntarily, i.e., the Petitioner must
have made the choice to plead guilty after being made aware of the significant
consequences of such a plea. State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). When
reviewing a guilty plea, this court looks to both the federal standard as announced in the
landmark case Boykin v. Alabama, 395 U.S. 238 (1969), and the state standard as
announced in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on other
grounds by Tenn. R. Crim. P. 37(b) and Tenn. R. App. P. 3(b). Don Allen Rodgers, 2012
WL 1478764, at *5. Under the federal standard, there must be an affirmative showing
that the plea was “intelligent and voluntary.” Boykin, 395 U.S. at 242. Likewise, the
Tennessee Supreme Court has 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. “[A] plea is not ‘voluntary’ if it is the product
of ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant
threats . . . .’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin,
395 U.S. at 242-43).

In order to determine whether a plea is intelligent and voluntary, the trial court
must “canvass[] the matter with the accused to make sure he has a full understanding of
what the plea connotes and of its consequence.” Boykin, 395 U.S. at 244. The trial court
looks to several factors before accepting a plea, including:

[T]he relative intelligence of the defendant; 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; Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006).
Once the trial court has conducted a proper plea colloquy, it discharges its duty to assess
the voluntary and intelligent nature of the plea and creates an adequate record for any
subsequent review. Boykin, 395 U.S. at 244.

Statements made by the petitioner, the defense counsel, and the prosecutor during
the plea colloquy, as well as any findings made by the trial court in accepting the plea,
“constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge v.
Allison, 431 U.S. 63, 73-74 (1977). Statements made in open court carry a strong
presumption of truth, and to overcome such presumption, a the Petitioner must present
more than “conclusory allegations unsupported by specifics.” Id. at 74.
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 In this case, the Petitioner maintains that lead trial counsel and associate counsel
coerced him into pleading guilty. The post-conviction court discredited the Petitioner’s
testimony that associate counsel shouted at him, noting that the Petitioner at the plea
hearing “explicitly denied that either of his attorney coerced him into accepting the
offer.” Next the Petitioner claimed he pleaded guilty because the State threatened to
prosecute his wife. The post-conviction court again discredited the Petitioner, noting that
the Petitioner’s wife had previously been charged and that “the transcript reflects that it
was made explicitly clear to the Petitioner that the State made no promises regarding the
prosecution of his wife in connection with this plea.”

Quoting Jaco, the post-conviction court found “that the Petitioner clearly made ‘a
voluntary and intelligent choice among the alternative courses of action open to’ him[.]”
The post-conviction court noted that the plea transcript “speaks for itself” and that,
although the Petitioner had some “hesitancy about pleading guilty,” the Petitioner agreed
during questioning by the court that the plea was “in his best interest” and that he was
pleading guilty based on his “own voluntary decision.” The plea submission hearing
transcript shows that the trial court conducted a thorough Tennessee Rule of Criminal
Procedure 11(b) colloquy with the Petitioner and accepted the Petitioner’s plea after the
Petitioner assured the trial court that he was entering his plea knowingly and voluntarily.
The Petitioner avoided a potentially greater sentence by entering his plea. Under these
circumstances, the Petitioner has failed to prove that his plea was not knowingly and
voluntarily entered, and he is not entitled to relief on this ground.

III. Conclusion

In conclusion, we hold that the Petitioner received the effective assistance of
counsel and that his plea was knowingly and voluntarily made. We, therefore, affirm the
denial of post-conviction relief.

____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE

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