Anthony D. Byers v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

December 6, 2011 Session

ANTHONY D. BYERS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 08-07888 James M. Lammey, Jr., Judge

No. W2011-00473-CCA-R3-PC - Filed March 15, 2012

The petitioner, Anthony D. Byers, appeals the post-conviction court’s denial of his petition

for post-conviction relief from his guilty plea convictions for seven counts of especially

aggravated kidnapping, four counts of aggravated robbery, and one count of possessing a

firearm during the commission of a dangerous felony. The petitioner raises stand-alone

claims that: (1) his convictions for especially aggravated kidnapping and possession of a

firearm during the commission of a dangerous felony are void because they are in direct

contravention of Tennessee Code Annotated section 39-17-1324(c); (2) his convictions for

especially aggravated kidnapping, aggravated robbery, and possession of a firearm during

the commission of a dangerous felony are voidable on double jeopardy grounds; and (3)

three of his convictions for especially aggravated kidnapping are contrary to State v. Dixon,

957 S.W.2d 532 (Tenn. 1998). The petitioner also argues that he received the ineffective

assistance of counsel and that his guilty pleas were involuntarily. After review, we affirm

the denial of post-conviction relief from the petitioner’s convictions for seven counts of

especially aggravated kidnapping and four counts of aggravated robbery. However, we

reverse the denial of post-conviction relief from the petitioner’s conviction for possession

of a firearm during the commission of a dangerous felony and vacate and dismiss that

conviction and sentence.

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

Part and Reversed in Part

A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and

J EFFREY S. B IVINS, JJ., joined.

R. Todd Mosley, Memphis, Tennessee, for the appellant, Anthony D. Byers.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Summer Morgan, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

In December 2008, the petitioner was indicted on seven counts of especially

aggravated kidnapping, four counts of aggravated robbery, one count of aggravated

burglary, one count of attempted aggravated robbery, and one count of employing a firearm

during the commission of a dangerous felony. Counsel was appointed and, on October 5,

2009, the petitioner entered a best interest plea, with the imposition of the minimum

sentences, to seven counts of especially aggravated kidnapping, with concurrent 13.5-year

sentences as a violent offender; four counts of aggravated robbery, with concurrent 7.2-year

sentences as a mitigated offender to run concurrently with the 13.5-year sentences; and one

count of possessing a firearm during the commission of a dangerous felony, with a 3-year

sentence to run consecutively to the other sentences, for an effective sentence of 16.5 years.

At the plea hearing, the trial court reviewed the charges against the petitioner and his

potential sentencing exposure, as well as answered any of the petitioner’s questions. There

was some mention regarding the petitioner being a Range III offender, but the court clarified

that the petitioner was actually a Range II offender.

Counsel explained to the petitioner that several of the State’s witnesses were missing,

one of whom counsel thought was very important to the defense’s case and whose absence

might require that the petitioner testify. Counsel reminded the petitioner that the State’s

original offer was for 25 years and that its present offer of 16.5 years was “as good as it’s

ever going to get.” Counsel made it clear to the petitioner that the trial court’s rule was that

a case set for trial would go to trial, so the trial would proceed if the petitioner rejected the

offer. The petitioner indicated that he wanted some time to think about the offer, and the

trial court said that it would not reset the trial. The petitioner informed the court that he felt

like he was being “forced into this situation” because he had complained about counsel,

whom he alleged had not done “a lot of things” he had asked. The petitioner then informed

the court that he was rejecting the offer, but counsel asked that the court wait on accepting

the rejection until the petitioner could discuss his complaints with the court.

In discussing his complaints, the petitioner stated that he wanted counsel to file a

motion to have his charges reduced to lesser-included offenses. The court explained that

factual determinations were made by the jury at trial, and the petitioner acknowledged that

he understood. The petitioner also complained about the absence of a State witness, Marcus

Wallace, whom the petitioner said “play[ed] a key role in this whole . . . thing,” and asked

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that the trial be postponed until Wallace could be found. The court explained that the

petitioner was not going to be held in jail indefinitely, while they waited for Wallace to be

found with no leads on his whereabouts.

The court asked if the petitioner had any other questions, and he said that he did not.

However, the petitioner then complained about a missing witness of his own, his aunt, Helen

Williams. Counsel explained that he was not given any contact information on Williams and

that it was his understanding that Williams could only testify to events that took place before

the actual events in the case.

The court reviewed the State’s current offer with the petitioner, noting that he had

already served a year in jail. Given the amount of time served and the possibility of 15%

good behavior credits, the petitioner faced about thirteen years in jail. The court reiterated

that if the petitioner went to trial and was convicted, he faced a sentence of twenty-five to

forty years on each one of the Class A felonies. The court noted that the petitioner also

faced the possibility of consecutive sentencing as a dangerous offender and as an offender

with an extensive record of criminal activity and explained those concepts to him.

The court recessed while the petitioner conferred with counsel. After the recess,

counsel informed the court that the State rejected a request by the petitioner to reduce the

sentence by six months because the instant sentences, based on mitigated offender status,

were the lowest the statutes provided. The petitioner told the court that he wanted to go to

trial. The court asked the petitioner if he was rejecting the offer because of the State’s

refusal to lower it by six months, and the petitioner said, “I’m so confused now I don’t know

what to do.” The court responded that it would not allow the petitioner to plead guilty if he

was confused. The petitioner then asked for clarification on the specifics of the amount of

time he would have to serve, after which he said, “I’ll take it.”

The court said that it was not going to allow the petitioner to take the plea if he was

only wanting to plead guilty because he had a complaint against counsel. The court then

asked the petitioner whether he was taking the plea because of his complaint against counsel,

and the petitioner did not respond. The court opined that the petitioner might be “playing

games,” but the petitioner denied such. The court said that it was probably best for the case

to go to trial, but the petitioner said that he wanted to plead. The court told the petitioner

to confer with counsel again.

After the petitioner consulted with counsel, the proceedings continued with the State

going over the specifics of the petitioner’s plea. The State then relayed the factual basis for

the plea as follows:

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[T]he facts in these matters . . . occurred back on June 21st of 08. Police were

actually called to . . . 3725 Millbranch, an apartment complex. The

complainant was a Marcus Wallace, he had just left his apartment at that

location. He was there with a Hugo Gomez, an acquaintance of his, when the

[petitioner] Mr. Anthony Byers and a second man, Jamey Jones, the co-

defendant, entered that apartment. They had a dog on a leash as well as

handguns.

[The petitioner] and his co-defendant Jamey Jones identified

themselves as police. They actually made Mr. Gomez get on the floor as well

as Marcus Wallace and another occupant Antonio Jones (sic). And during the

course of events they did take from Mr. Marcus Wallace several hundred

dollars in cash. They did search Hugo Gomez’s wallet and take it from his

possession in an effort to take his cash. Mr. Antonio Young was asked to

remove his wallet, they checked for contents, he had no cash and left the

wallet on the table.

Meanwhile Jose Rubio, Claudia Otero, as well as two children, Natalie

Rubio . . . and Markuila Sanders were outside awaiting Hugo Gomez who

they had given a ride to that location. [The petitioner] came outside with the

dog and the gun and forced the four other occupants into the apartment at

which time he did take Jose Rubio’s wallet and cash. And he proceeded

outside to the truck and went through Ms. Otero’s purse. She did lose I

believe credit cards and possibly a small amount of cash through the course

of these events.

And police did arrive before [the petitioner] left the scene. They

detained [the petitioner], found a handgun in his . . . back pocket or the back

of his pants matching the description given by the witnesses. The witnesses

did identify him as being the gunman in this scenario. The co-defendant fled

the scene but was later apprehended.

The petitioner’s counsel stipulated that those would have been the facts presented

by the State had they gone to trial and asked that the court accept the plea pursuant to Alford

v. North Carolina. Counsel then explained that

[h]ad [they] gone to trial the defense would ha[ve] been that Mr.

Marcus Wallace had sold [the petitioner] three hundred dollars of powder

cocaine. When [the petitioner] took this home to make crack for his own

personal use it turned out that there was only about twenty dollars worth of

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crack in it, the rest was filler. He went back over there to get back either his

money or drugs.

When he got there Mr. Wallace said that he had the money but [the

petitioner] wanted drugs. Mr. Wallace stated that there would be Mexicans

showing up to bring him drugs. He allowed one of Mr. Wallace’s partners to

go and call the Mexicans, I believe that was Antonio Jones, . . . but this person

left and made the call to the police instead and that would ha[ve] been the

defense’s statement to the jury or our evidence to the jury had this matter gone

to trial.

The court then began a lengthy plea colloquy with the petitioner. The court first

ascertained that the petitioner had received two years of college education. The court

explained that the petitioner’s plea was an Alford plea, or a best interest plea, and what that

meant. The court explained that the petitioner had the right to a trial and all that entailed.

The court also explained the difference between especially aggravated kidnapping by use

of a deadly weapon and aggravated kidnapping and that the jury would be charged on all

other lesser-included offenses.

The court again explained the possible sentences the petitioner faced if convicted

after a trial and that the sentences in the offer were the absolute lowest sentences that could

be imposed for each conviction. The court also explained that the petitioner was not eligible

for parole on the especially aggravated kidnapping convictions but could receive 15%

sentence credits for good behavior. The court noted that two of the charges against the

petitioner were being dismissed and that the firearm charge was being reduced from

“employing” to “just possession[.]” The court stated that the plea agreement included a

provision of no anticipated federal prosecution on the gun charge; however, if the federal

prosecutor decided otherwise, the court would immediately set aside the plea. The court

reiterated that the petitioner’s convictions, although Alford pleas, could still be used against

him in any future prosecutions.

The court then ascertained that the petitioner understood all of the ramifications of

his plea agreement and that he wanted to enter the pleas. The petitioner stated that he

understood everything the court had explained and that he still wished to plead guilty. The

court reviewed the petitioner’s prior concerns about feeling forced to enter a plea due to his

dissatisfaction with counsel, and the petitioner responded that was not the reason he wanted

to plead guilty. The court stated on the record that it had spent the entire afternoon making

sure the petitioner was aware of all the ramifications of the plea agreement and that it

appeared the petitioner was truthful in stating that he was entering a plea because he felt it

was in his best interest whether or not he committed the crime. Accordingly, the court

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accepted the petitioner’s guilty pleas as being freely and voluntarily entered.

The petitioner filed a pro se petition for post-conviction relief and, after the

appointment of counsel, several amended petitions were filed. The post-conviction court

conducted an evidentiary hearing, at which the petitioner testified that counsel did not

investigate certain issues, and they did not have enough time to discuss trial strategy.

However, he acknowledged that he told counsel his version of what had happened and gave

counsel the name of his aunt, Helen Williams, as a possible witness. The petitioner said that

counsel visited him only twice, once to bring him the discovery packet, but only after he

wrote the Board of Professional Responsibility, and the other the day before trial for about

ten minutes. The petitioner explained that he wanted to see the discovery packet so he could

make an informed decision whether to plead guilty or go to trial. He was not aware of

counsel using an investigator on the case.

The petitioner testified that counsel told him incorrectly that he was a Range III

offender and would “die in prison” if sentenced as such after a trial. Counsel advised him

that the plea agreement was a “good deal” because he would “never get out of prison” if

convicted. The petitioner said that he pled guilty under duress because he did not want to

die in prison.

The petitioner testified that he requested that counsel file a “motion for lesser

included offenses,” but counsel did not do so. The petitioner’s case was transferred to

another division, and the petitioner asked the new judge to let him have time to hire a private

attorney. However, the judge told him that he either had to plead guilty or go to trial that

day. The petitioner did not feel prepared to go to trial because he felt that counsel was mad

at him for having written a letter to the original trial judge complaining about him. He felt

pressured by both the court and counsel into taking the plea. Counsel kept telling him that

he would die in prison, and the petitioner was “scared.” The petitioner testified that the

entire plea hearing lasted about thirty minutes. He believed that his charges would have

been reduced to lesser charges if he had gone to trial, but he did not feel comfortable going

to trial with counsel as his attorney.

On cross-examination, the petitioner admitted that he told counsel that his aunt, Helen

Williams, was a crack addict who had purchased crack from one of the victims, but he

maintained that he thought the jury would nonetheless believe her. The petitioner

acknowledged that he talked to counsel on the day of his arraignment and gave him

information about his case, which counsel wrote down. The petitioner also acknowledged

that counsel had no control over the State’s decision to offer a plea. The petitioner recalled

that the trial court explained the elements of especially aggravated kidnapping and

aggravated kidnapping to him but that he did not understand everything he was told.

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On redirect examination, the petitioner insisted that his meetings with counsel were

short. He admitted that he told the trial court at the plea hearing that he understood what he

was doing, but explained that he did not answer the court’s questions correctly because of

the pressure he was feeling that day.

On examination by the court, the petitioner said that he was not a Range III offender,

despite having five prior Class C felony convictions, as well as a Class D and Class E felony

conviction. The petitioner admitted that he also had several misdemeanor convictions, a

criminal record dating back to 1991, and that he had entered many guilty pleas in his life.

The prosecutor then clarified that the petitioner had been determined to be a Range II

offender and that the trial court had made the petitioner aware of that at the plea hearing.

The petitioner asserted that his aunt, Helen Williams, would have testified that it was “a drug

deal [gone] bad,” not a robbery or kidnapping. Williams would have said that Marcus

Wallace sold the petitioner fake cocaine and that the petitioner went to Wallace’s house to

get his money back.

The petitioner’s trial counsel testified that he was appointed to represent the petitioner

at the petitioner’s arraignment and was given discovery by the State at that time. The State’s

original offer was for an effective twenty-five-year sentence. Counsel recalled that he gave

the petitioner a copy of the discovery that day and conducted an intake interview. The intake

interview related, in great detail, the petitioner’s version of events.

Counsel recalled that he learned in the discovery that the petitioner’s co-defendant,

Jamey Jones, gave a statement to police in which he admitted it was a robbery, and Jones’s

statement matched that of the victims. However, the petitioner told counsel that the incident

was the result of a bad drug deal with one of the victims. Counsel advised him that the only

way he could relay his version of events to the jury was if he testified but that the jury would

not like hearing that he had kicked down a door and had a gun. He also advised the

petitioner that the jury might not find Williams to be a credible witness in that she was a

drug addict.

Counsel testified that even though he thought it was favorable that the petitioner let

one victim leave, counsel told the petitioner that his “story’s not real good, and everybody

else’s story is pretty heinous because there’s small children involved. And the likelihood

of conviction on this is great.” Counsel based his assessment of the petitioner’s case on his

experience, including ten years of experience on the Major Violators Unit of the public

defender’s office. With regard to Major Violators cases, counsel explained that those are

the “wors[t] of the wors[t] in the State’s mind” and that those offers were always higher.

He said that the State also had a policy of not reducing charges on certain Class A felonies.

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Counsel testified that, on the day of trial, the State made an offer of thirteen and a half

years. Counsel felt that the State’s offer was good, as he had originally calculated the

petitioner to be a Ranger III offender, facing a minimum of fifty years and a maximum of

five hundred and eighty years. However, on the day of trial, it was clarified that the

petitioner was actually a Range II offender due to the dates of some of his prior offenses but

that he would still face a minimum of twenty-five years and a maximum of two hundred and

eighty years as such. Additionally, the plea included a provision for no federal prosecution

on the gun charge, which would have carried a consecutive fifteen to twenty-five-year

sentence as well.

With regard to the petitioner’s having filed a complaint against him with the Board

of Professional Responsibility, counsel testified that it was not unusual for him, as an

attorney in the public defender’s office, to have to respond to complaints from clients and

it “never affects [his] ability to do [his] job zealously for [his] clients.” Counsel said that

the petitioner was unhappy that he would not file certain motions that counsel believed were

improper or not supported by the record. Counsel did not believe that the charge of

possession of a firearm during the commission of a dangerous felony violated double

jeopardy, but he admitted that it was a relatively new statute at the time of the plea and that

he did not regularly practice appellate work. He did not ask the opinion of other attorneys

regarding the statute because “it seemed cut and dry, pretty straightforward[.]”

Counsel acknowledged that on page fifty-six of the plea hearing transcript, the

petitioner admitted that he thought he would get convicted at trial and probably be sentenced

to more time than that offered in the plea. Counsel said that he was prepared to go to trial

that day and to cross-examine the witnesses.

In denying post-conviction relief, the court found that counsel rendered effective

assistance, the petitioner’s guilty pleas were knowingly and voluntarily entered, and the

conviction on the gun charge was not void.

ANALYSIS

On appeal, the petitioner raises stand-alone claims that: (1) his convictions for

especially aggravated kidnapping and possession of a firearm during the commission of a

dangerous felony are void because they are in direct contravention of Tennessee Code

Annotated section 39-17-1324(c); (2) his convictions for especially aggravated kidnapping,

aggravated robbery, and possession of a firearm during the commission of a dangerous

felony are voidable on double jeopardy grounds; and (3) three of his convictions for

especially aggravated kidnapping are contrary to State v. Dixon. The petitioner also argues

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that he received the ineffective assistance of counsel and that his guilty pleas were

involuntary.

The post-conviction petitioner bears the burden of proving his allegations by clear

and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). 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 preponderates against them. See Tidwell v. State,

922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues,

the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960

S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to

the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978

S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance of counsel and possible

prejudice to the defense are mixed questions of law and fact and, thus, subject to de novo

review by the appellate court. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

I. Stand-Alone Claims

With regard to the petitioner’s stand-alone claims, the State responds that the

petitioner waived the claims because he waived his right to appeal when he pled guilty.

However, the State acknowledged, citing State v. Dennis Neil Bizzoco, No. E2009-00768-

CCA-R3-CD, 2011 WL 743404, at *6 (Tenn. Crim. App. Mar. 3, 2011), perm. to appeal

denied (Tenn. July 14, 2011), that this court has rejected such a waiver argument with regard

to double jeopardy claims and also determined that it would address the petitioner’s stand-

alone claims as the petitioner raised the same claims in the context of ineffective assistance

of counsel. We will address the petitioner’s claims.

A. Tennessee Code Annotated section 39-17-1324(c)

The petitioner argues that his convictions for especially aggravated kidnapping and

possession of a firearm during the commission of a dangerous felony are void as being in

direct contravention of Tennessee Code Annotated section 39-17-1324(c).

The statute in question provides, in pertinent part, as follows:

(a) It is an offense to possess a firearm with the intent to go armed

during the commission of or attempt to commit a dangerous felony.

....

(c) A person may not be charged with a violation of subsection (a) or

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(b) if possessing or employing a firearm is an essential element of the

underlying dangerous felony as charged. In cases where possession or

employing a firearm are elements of the charged offense, the state may elect

to prosecute under a lesser offense wherein possession or employing a firearm

is not an element of the offense.

....

(i) As used in this section, unless the context otherwise requires:

(1) “Dangerous felony” means:

....

(E) Especially aggravated kidnapping, as defined

in § 39-13-305[.]

Tenn. Code Ann. § 39-17-1324(a), (c), (i)(1)(E).

Especially aggravated kidnapping occurs when one:

knowingly removes or confines another unlawfully so as to interfere

substantially with the other’s liberty, when: (1) [a]ccomplished with a deadly

weapon or by display of any article used or fashioned to lead the victim to

reasonably believe it to be a deadly weapon; (2) [w]here the victim was under

the age of thirteen (13) at the time of the removal or confinement; (3)

[c]ommitted to hold the victim for ransom or reward, or as a shield or hostage;

or (4) [w]here the victim suffers serious bodily injury.

Id. § 39-13-305(a).

The petitioner argues that, because his especially aggravated kidnapping convictions

“were based upon the use of a weapon, namely, a firearm,” section 1324(c) “directs that in

order for the State to charge [him] with the firearm offense, the State may only do so by

reducing the underlying offense to one that does not require possessing or employing a

firearm.” The State responds that the petitioner was indicted on the especially aggravated

kidnapping charges for use of a deadly weapon, not specifically a firearm, and that the

statute precludes prosecution only if possession of a firearm is an essential element of the

underlying dangerous felony as charged.

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The issue raised is one of statutory construction. When interpreting a statute,

we “must first ascertain and then give full effect to the General Assembly’s

intent and purpose” in drafting those sections. Waldschmidt v. Reassure Am.

Life Ins. Co., 271 S.W.3d 173, 176 (Tenn. 2008). Our chief concern is to

carry out the legislature’s intent without unduly broadening or restricting the

statute. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn.

2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). We

presume that every word in a statute has meaning and purpose and should be

given full effect if so doing does not violate the legislature’s obvious intent.

In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When the statutory

language is clear and unambiguous, we simply apply its plain meaning.

Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). When

a statute is ambiguous, however, we may refer to the broader statutory scheme,

the history of the legislation, or other sources to discern its meaning. Colonial

Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008). We presume that

the General Assembly was aware of its prior enactments and knew the state

of the law at the time it passed the legislation. Owens, 908 S.W.2d at 926.

State v. Casper, 297 S.W.3d 676, 683 (Tenn. 2009).

Upon review, we are constrained to agree with the petitioner’s statutory

interpretation, and correspondingly we simply cannot agree with the State’s assertion. If the

State could avert the constraints of the statute by always using the term “deadly weapon”

instead of “firearm” when the deadly weapon at issue was clearly and solely a firearm, then

section 1324(c) would essentially become meaningless because the State would never use

the term “firearm” in an indictment. We cannot believe that it was our legislature’s intent

to draft a statute that could so easily be circumvented with a simple change of phraseology

in the indictment. We interpret the language “essential element of the underlying dangerous

felony as charged” to refer to the fact that some of the enumerated dangerous felonies can

be committed in a variety of ways, some having nothing to do with the use of a weapon of

any kind,1 see Tenn. Code Ann. § 39-17-1324(c) (emphasis added), and not to an invitation

for “fast and loose” play on words. Accordingly, we conclude that the petitioner’s

conviction for possession of a firearm during the commission of a dangerous felony is void.

The petitioner asserts that the appropriate remedy is that his especially aggravated

1

For instance, as noted above, an especially aggravated kidnapping can be considered as such where

the false imprisonment was of a victim under the age of thirteen; it was committed to hold the victim for

ransom or reward, or as a shield or hostage; or if the victim suffered serious bodily injury.

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kidnapping convictions should be reduced to misdemeanor false imprisonment convictions,

as that is the only offense that would satisfy the requirement in section 1324(c) in light of

the facts introduced at his plea hearing. However, this remedy is simply not available.

Because the record reveals, as we will address below, that the petitioner’s remaining guilty

pleas were knowingly and voluntarily entered, the petitioner’s convictions and sentences on

seven counts of especially aggravated kidnapping and four counts of aggravated robbery

remain intact, but we vacate and dismiss the possession of a firearm during the commission

of a dangerous felony conviction and sentence.

B. Double Jeopardy

The petitioner argues that his convictions for especially aggravated kidnapping and

aggravated robbery violate principles of double jeopardy when his conviction for possession

of a firearm during the commission of a dangerous felony is included in the calculus because

“the evidence offered to prove the robbery and kidnapping charges . . . included the evidence

necessary to prove the weapon charge.” However, in light of our determination above that

the petitioner’s conviction for possession of a firearm during the commission of a dangerous

felony is void, his allegation that the same conviction violates the principles of double

jeopardy is pretermitted. It is not necessary for a court to address a constitutional issue if the

resolution of the issue is not “absolutely necessary to determining the issues in the case and

adjudicating the rights of the parties.” State v. Taylor, 70 S.W.3d 717, 720 (Tenn. 2002)

(citing Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)).

C. State v. Dixon

The petitioner argues that three of his convictions for especially aggravated

kidnapping violate due process as set forth in Dixon because they were incidental to the

commission of his aggravated robberies. He acknowledges that he raised this issue for the

first time on appeal but urges this court to review it for plain error.

When an issue is not addressed with the post-conviction court, it will generally not

be addressed on appeal. Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn. 2005); see Tenn.

Code Ann. §§ 40-30-106(g), -110(f). Moreover, “the plain error rule, which would otherwise

permit an appellate court to address the issue sua sponte, may not be applied in

post-conviction proceedings to grounds that would otherwise be deemed either waived or

previously determined.” Grindstaff v. State, 297 S.W.3d 208, 219 (Tenn. 2009) (citing State

v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000)) (footnote omitted); Daniel Ewing v. State, No.

M2010-02282-CCA-R3-PC, 2011 WL 4449673, at *7 (Tenn. Crim. App. Sept. 27, 2011);

Charles Lee Rochell v. State, No. M2010-00150-CCA-R3-PC, 2010 WL 3774561, at *9

(Tenn. Crim. App. Sept. 29, 2010), perm. to appeal denied (Tenn. Feb. 16, 2011). The

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petitioner asserts that plain error review is no longer precluded in post-conviction actions

since the plain error rule became a rule of appellate procedure and not a rule of criminal

procedure and that “the Grindstaff appeal would have originated well before the July 1, 2009

revision [and] therefore the Grindstaff opinion did not rule out plain error relief when based

upon Tenn. R. App. P. 36(b).” However, our supreme court in Grindstaff cited to Tennessee

Rule of Appellate Procedure 36(b), the “new” plain error rule, indicating that the rationale

from West precluding plain error review in post-conviction actions remained applicable even

after the statutory revisions. This issue is waived.

II. Ineffective Assistance of Counsel

The petitioner argues that he received ineffective assistance of counsel because

counsel failed to dispute the applicability of the firearm charge in conjunction with the

especially aggravated kidnapping charges and raise a double jeopardy violation on the same

issue, failed to challenge the validity of the especially aggravated kidnapping charges as

violating the principles set forth in Dixon, failed to visit him and keep him informed about

his case, and coerced him into pleading guilty. He asserts that, but for counsel’s

deficiencies, he “would be facing a much shorter sentence, either reducing the time offered

by the [S]tate or the total time that the trial court could have sentenced [him] had he taken

the matter to trial and been convicted.”

The right to effective assistance of counsel is safeguarded by the Constitutions of

both the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn.

Const. art. I, § 9. To establish a claim of ineffective assistance of counsel, the petitioner has

the burden to show both that trial counsel’s performance was deficient and that counsel’s

deficient performance prejudiced the outcome of the proceeding. Strickland v. Washington,

466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.

1997) (noting that same standard for determining ineffective assistance of counsel that is

applied in federal cases also applies in Tennessee). The Strickland standard is a two-prong

test:

First, the [petitioner] must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the [petitioner] by the Sixth

Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose

result is reliable.

466 U.S. at 687.

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The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

The reviewing court must indulge a strong presumption that the conduct of counsel falls

within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and

may not second-guess the tactical and strategic choices made by trial counsel unless those

choices were uninformed because of inadequate preparation. See Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a

reasonable probability, i.e., a “probability sufficient to undermine confidence in the

outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. In the context of a guilty plea, the

petitioner must show a reasonable probability that were it not for the deficiencies in

counsel’s representation, he would not have pled guilty but would instead have insisted on

proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d

508, 516 (Tenn. 2001).

Upon review, we conclude that the petitioner has failed to show a reasonable

probability that, but for counsel’s alleged deficiencies, he would not have pled guilty and

would have insisted on going to trial. The petitioner claims that he “would be facing a much

shorter sentence,” yet the sentence he received was the absolute minimum faced by a

mitigated offender, which he was not, on one offense. Even hypothetically assuming

counsel had successfully made the same statutory, double jeopardy, and Dixon challenges

the petitioner made in this appeal, the petitioner would have still been facing four especially

aggravated kidnapping convictions, each carrying a possible sentence of fifteen to sixty

years, and four aggravated robbery convictions, each carrying a possible sentence of eight

to thirty years, and he faced the likelihood of consecutive sentencing based on either his

extensive criminal history or his being a dangerous offender. Given the lenient sentence the

petitioner received and the potentially egregious sentence he faced, we cannot conclude that

the petitioner has proven any alleged deficiencies by counsel caused him prejudice.

III. Unknowing and Involuntary Plea

The petitioner lastly argues that his guilty pleas were not voluntary because he felt

“coerced” into taking the plea bargain and “had little confidence that [counsel] would

represent his interests at trial.” When analyzing a guilty plea, we look to the federal standard

announced in Boykin v. Alabama, 395 U.S. 238 (1969), and the state standard set out in

State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542

(Tenn. 1999). In Boykin, the United States Supreme Court held that there must be an

affirmative showing in the trial court that a guilty plea was voluntarily and knowingly given

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before it can be accepted. 395 U.S. at 242. Similarly, our Tennessee Supreme Court in

Mackey required an affirmative showing of a voluntary and knowledgeable guilty plea,

namely, that the defendant has been made aware of the significant consequences of such a

plea. Pettus, 986 S.W.2d at 542.

A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,

inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial

court must determine if the guilty plea is “knowing” by questioning the defendant to make

sure he or she fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;

Blankenship, 858 S.W.2d at 904. Because the plea must represent a voluntary and

intelligent choice among the alternatives available to the defendant, the trial court may look

at a number of circumstantial factors in making this determination. Blankenship, 858

S.W.2d at 904. These factors include: (1) the defendant’s relative intelligence; (2) his

familiarity with criminal proceedings; (3) whether he was represented by competent counsel

and had the opportunity to confer with counsel about alternatives; (4) the advice of counsel

and the court about the charges against him and the penalty to be imposed; and (5) the

defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in a

jury trial. Id. at 904-05.

The petitioner argues that his guilty pleas were involuntary because he was coerced

by counsel and the trial court into taking the plea agreement. In ruling on this issue, the

post-conviction court noted that the plea colloquy was “unbelievably detailed.” The court

found that the petitioner “definitely knew what he was doing,” observing that the petitioner

had “so long of a record that he didn’t even know how many times he’s been arrested or

convicted.”

Our review of the record supports the ruling of the post-conviction court. The

transcript from the plea hearing shows that the trial court was adamant that it was not going

to allow the petitioner to take the plea if he was only wanting to plead guilty because he had

a complaint against counsel and repeatedly addressed the petitioner’s concerns and affirmed

that the petitioner was pleading guilty because he felt that it was in his best interest. The

court explained the possible sentences the petitioner faced if convicted after a trial and that

the sentences in the offer were the absolute lowest sentences that could be imposed for each

conviction. The court also explained all of the ramifications of the petitioner’s taking the

plea agreement. The petitioner suggests that part of the reason his plea was involuntary was

because he was not properly informed about his sentencing range; however, he

acknowledged at the post-conviction hearing that the trial court informed him that he was

a Range II offender. The record shows that the petitioner, one with a long criminal record

and experience with the justice system, was afforded the absolute minimum sentence and

entered his pleas knowingly and voluntarily after a lengthy and thorough discourse with the

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trial court.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the denial of post-

conviction relief from the petitioner’s convictions for seven counts of especially aggravated

kidnapping and four counts of aggravated robbery. However, we reverse the denial of post-

conviction relief from the petitioner’s conviction for possession of a firearm during the

commission of a dangerous felony and vacate and dismiss that conviction and sentence.

_________________________________

ALAN E. GLENN, JUDGE

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