James L. Lessenberry v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 12, 2011

JAMES L. LESSENBERRY v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. 09-353 Donald H. Allen, Judge

No. W2010-01549-CCA-R3-PC - Filed October 10, 2011

The Petitioner, James L. Lessenberry, appeals the Madison County Circuit Court’s denial of

post-conviction relief from his convictions for nine offenses: rape, a Class B felony; incest,

a Class C felony; four counts of sexual battery by an authority figure, Class C felonies; and

three counts of attempted rape, Class C felonies. Under the plea agreement, he is to serve

twelve years for rape as a violent offender and six years as a Range I offender for each of the

remaining convictions, with all sentences to be served concurrently with each other and

consecutively to a previous drug conviction for which the trial court revoked his five-year

community corrections sentence. On appeal, the Petitioner contends the trial court erred in

denying his post-conviction claim that he did not receive the effective assistance of counsel.

We affirm the judgment of the trial court.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

J OSEPH M. T IPTON, P.J, delivered the opinion of the court, in which T HOMAS T. W OODALL

and N ORMA M CG EE O GLE, JJ., joined.

George Morton Googe, District Public Defender; Gregory D. Gookin, Assistant Public

Defender (on appeal); and Cynthia Chandler-Snell, Humboldt, Tennessee (at hearing), for

the appellant, James L. Lessenberry.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Tommy A. Thomas, District Attorney General; and Shaun A. Brown, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant entered “best interest” guilty pleas pursuant to North Carolina v.

Alford, 400 U.S. 25 (1970). According to the State’s recitation of facts at the guilty plea

hearing:

[O]n several occasions in 2008 and once in 2009, [the

Petitioner] had unlawful sexual contact with . . . his

[thirteen-year-old] natural biological daughter. That led to the

incest charge in January of 2009 in Count 2. There was

penetration [in] January of 2009 and that’s the rape charge.

There was then also sexual battery by an authority figure

because he is her father and attempted rape as reflected in the

other counts of the indictment that range from Count 3,

December 2008; Count 4, June and July of 2008; Count 5, June

and July of 2008; Count 6, June and July of 2008; Count 7, June

and July of 2008; Count 8, June and July of 2008; and County

9, June and July of 2008.

[The Petitioner and his wife] are still married. They are I

believe going through proceedings. There was a period of time

when they were separated and there was some visitation and a

lot of this occurred while there was the visitation going on in

motel rooms and that type thing while [the victim] was alone

with [the Petitioner]. I’m sorry your Honor. They are no longer

married. These were through some visitation times that were

arranged when these all occurred and the victim in this matter

approached law enforcement and told law enforcement of these

incidents . . . . There was this touching of her private areas, the

sexual batteries by an authority figure and the attempted rapes.

[The Petitioner] did not admit to rapes and those type things, but

on some occasions he would wake up and parts of his body

would be touching parts of her body.

At the plea hearing, the Petitioner acknowledged his understanding of the charges and

the plea agreement and expressed his desire to accept the plea agreement. The Petitioner

expressed satisfaction with the services of trial counsel. The trial court entered judgments

on August 14, 2009. On September 8, 2009, the Petitioner filed a “Motion to Withdraw

Guilty Plea, or in the Alternative, Petition for Post-Conviction Relief.” He alleged that trial

counsel met with him twice before the plea deadline, that he received the State’s plea offer

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on Friday before the Monday plea deadline, that he relied on the advice of counsel in

accepting the plea agreement calling for the maximum sentence for every count of the

indictment, and that he notified counsel “almost immediately after the entry of the plea” that

he wanted to withdraw the plea. He claimed trial counsel advised him that he was a Range

II offender and that he would serve all of the offenses to which he was pleading guilty at

100%. The trial court conducted a hearing on the motion to withdraw and denied relief on

the basis that the Petitioner failed to establish manifest injustice.

Hearing on Motion to Withdraw Guilty Plea

Although this appeal relates to the trial court’s subsequent denial of post-conviction

relief, the evidence presented at the hearing on the motion to withdraw the guilty plea is

relevant to the post-conviction claim. At the hearing, trial counsel testified that he was

retained to represent the Petitioner in the sexual misconduct charges and the drug case

involving the alleged community corrections violation. He said that the Petitioner “had

enough time on the street to basically kill that sentence under Community Corrections” and

that the plea agreement did not call for the Petitioner to be resentenced. He thought he

advised the Petitioner of the possibility that the Petitioner would receive additional time for

the prior conviction and said he told the Petitioner that the new sentences would be served

consecutively to the sentence for the prior drug conviction.

Trial counsel testified that after he received the State’s notice of intent to seek

enhanced punishment, he researched the proper classification of the Petitioner’s prior

offenses, including one under the old criminal code, determined that the Petitioner had the

qualifying offenses for Range II sentencing, and advised the Petitioner accordingly.

Trial counsel testified that the Petitioner was confined in the county jail during his

representation. He communicated with the Petitioner through letters and said he went to the

jail every time the Petitioner’s family members told him that the Petitioner wanted to see him.

Trial counsel testified that the State’s first offer was for twelve years but did not

address the community corrections sentence. He said he convinced the State to agree not

to seek resentencing for the community corrections sentence. He agreed that he

communicated the State’s offer to the Petitioner on the Friday or Saturday before the

Petitioner’s Monday plea deadline. He said he had already obtained one continuance of the

plea deadline when the negotiations were ongoing. He acknowledged writing a letter to the

Petitioner that said he told the prosecutor the State’s twelve-year offer was “not good

enough.” He did not know if the letter was written after the negotiations about the

community corrections sentence.

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Trial counsel testified that he discussed the Petitioner’s range classification with the

Petitioner on the Friday or Saturday before the plea deadline. He said he also wrote to the

Petitioner and sent him copies of the State’s notice of intent to seek enhanced punishment

and the statute. He said that in addition to the Friday or Saturday meeting, he and the

Petitioner “talked this case to death.”

Trial counsel testified that on the day of the guilty plea hearing, he corrected his

previous erroneous advice that the Petitioner would be required to serve 100% for each

offense, rather than for only one of the offenses. He said he advised the Petitioner that the

other offenses would be served at 30%, that the Petitioner was a Range II offender, and that

the Petitioner could face a sentence of more than twelve years if the case went to trial. He

said that whether the Petitioner would serve his sentences at 30% or 100% was important in

the scenario of the Petitioner going to trial and being convicted of a lesser included offense

of rape but that it had no effect on the plea offer. He said the Petitioner signed pretrial

statements admitting seven or eight of the offenses. He said he also advised the Petitioner

about the enhancement factors that the court might apply to lengthen the individual

sentences. Trial counsel said that on the Friday or Saturday before the guilty plea hearing,

the Petitioner did not ask him to obtain a continuance. He said the Petitioner indicated he

would accept an offer of nine years. He advised the Petitioner that the twelve-year offer was

the best offer the State would extend. He said the Petitioner stated that he would let trial

counsel know on Monday how he wanted to proceed. He did not recall the Petitioner’s

mother requesting more time on the night before the hearing. He recalled, however, that on

the morning of the hearing, the Petitioner wanted to delay the guilty plea. He said his

response was, “That we might as well go ahead and do it.”

Trial counsel recalled that on the day of the Petitioner’s arraignment, the Petitioner

expressed his preference to plead guilty in order for the victim and his other children not to

have to testify. He said he urged the Petitioner to wait in order to allow him to investigate

the witnesses and negotiate with the State for a plea offer.

Trial counsel testified that he received a letter in which the Petitioner requested that

trial counsel represent him in withdrawing the plea and offered to pay an additional fee. He

said he viewed the Petitioner’s letter as asking whether the Petitioner should try to withdraw

the plea, rather than as a statement that the Petitioner wanted to withdraw the plea. He said

he advised the Petitioner that accepting the plea was a wise decision and that the Petitioner

should not attempt to withdraw it. He said that as an officer of the court, he did not think he

could represent the Petitioner because he believed the Petitioner entered his plea freely,

voluntarily, and intelligently. He said a child came to his office with a piece of paper

containing questions about the range classification, release eligibility date, and actions taken

by counsel in the Petitioner’s case. The child said she would return for the paper in a few

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days. He said that on September 1, 2009, he wrote a letter to the Petitioner that addressed

the questions and enclosed a copy of the paper he received from the child.

On cross-examination, trial counsel testified that he was able to question the victim

at the preliminary hearing. He said he communicated with the Petitioner in person, in

writing, and on the telephone with the Petitioner’s mother present. He said he had hoped that

one of the Petitioner’s ex-wives had a calendar showing that the ex-wife’s children were with

the Petitioner on the day the rape was alleged to have occurred. He said that he investigated

but that it “did not turn out the way I wanted it to.”

Trial counsel testified that at one point, he proposed a plea agreement to the State. He

noted that the Petitioner ultimately was allowed to plead guilty as a Range I offender but

could have been classified as Range II. He said he advised the Petitioner of the effect of the

prior convictions, both as to sentencing and as to impeachment. He said that on the day of

the guilty plea, he advised the Petitioner of the changes in the plea agreement that the Class

C felonies would be served at 30%, not 100%. He said the trial court conducted a review on

the record of the plea, the Petitioner’s rights, the sentencing ranges, and the sentences called

for by the agreement. He said the Petitioner indicated he wanted to proceed with the guilty

plea.

Trial counsel testified that the Petitioner’s statements were a “big part” of his

discussions with the Petitioner. He said the Petitioner wanted to have the statements

suppressed. He said that there were “a lot of hurdles to jump” to have the statements

suppressed and that if they were successful, the statements could still be used to impeach the

Petitioner if he testified. He said that if the Petitioner did not testify, the victim would testify

“with no one to contradict what she said.” He said the statements also enhanced the

credibility of some of the State’s witnesses.

On redirect examination, trial counsel testified that the trial court had the Petitioner

initial the changes to the percentage of service language in the plea agreement. He said the

twelve-year sentence was negotiated on the basis that if the Petitioner were convicted of a

Class B felony as a Range II offender, the sentencing range would be twelve to twenty years.

The Petitioner testified that trial counsel met with him twice about plea offers. He

said he wanted a continuance on the day of the arraignment and denied that he wanted to

enter a guilty plea that day. He acknowledged that he told trial counsel on the day of the

arraignment that he did not want his children to have to testify. He said that on the day of

the arraignment, he had not been given a plea offer from the State.

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The Petitioner testified that trial counsel conveyed the State’s twelve-year offer to him

on the Friday before the Monday plea deadline. He said that on the day of the plea hearing,

he asked trial counsel to request a continuance because he wanted to get a “second opinion”

from another attorney. He said trial counsel claimed they could not get another continuance

and said that if he did not enter his plea that day, the case would go to trial and he would get

a longer sentence than called for in the plea agreement.

The Petitioner testified that he accepted the plea agreement in part because he thought

that all of the charges required 100% service. He said he did not learn otherwise until he was

at the “podium” on the day of the plea hearing. He said his understanding from trial counsel

with respect to the community corrections sentence was that he could be resentenced for

another five years. He said he had already served almost five years for the conviction.

The Petitioner testified that he spoke with his mother on the day of the guilty plea

hearing about withdrawing the plea. He said he wrote a letter to trial counsel, as well. He

said trial counsel responded that he would not represent the Petitioner in a motion to

withdraw and that there was nothing trial counsel could do. The Petitioner acknowledged

telling the trial court that he was satisfied with trial counsel’s representation of him and the

amount of time he spent consulting with trial counsel.

On cross-examination, the Petitioner acknowledged that as evidenced by the transcript

of the guilty plea, he indicated that he was satisfied with trial counsel, that he understood the

range of punishment, that he understood the plea agreement, that he was entering the plea

freely and voluntarily, that he had not been subjected to force or promises other than the

terms of the agreement, that he was entering the plea because it was his best course of action,

and that he thought his attorney had advised him of all the possible defenses. He agreed that

he told the trial court he did not need to address anything trial counsel had said or done. He

acknowledged that he initialed the changes to the release eligibility dates listed in the written

plea agreement while he was at the podium. He said that he signed the written plea

agreement on the previous Friday or Saturday and that counsel told him he would “pull” the

paperwork on Monday if the Petitioner decided not to go forward. He said that when he

signed the document, the sentences were listed with 100% service and that he did not

remember discussing the change to 30% before he entered the plea.

On redirect examination, the Petitioner testified that his plea was a best interest plea.

On questioning by the court, he acknowledged that the trial court advised him at the plea

hearing that he could not withdraw the plea for any reason and that he told the court he

understood. He said he wanted to withdraw the plea because he was not guilty. He said, “I

just feel it would be in my best interest” to withdraw the plea. He said his statements to law

enforcement did not contain admissions to the crimes. He reiterated that he wanted a

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continuance in order to have another attorney give him a second opinion about the plea

agreement. He said, “I didn’t understand all this.” When asked why he did not say anything

when the trial court questioned him at the hearing, he said, “I didn’t know I could speak up.”

Barbara Swafford, the Petitioner’s mother, testified that she and her ex-husband

retained trial counsel to represent the Petitioner. She said that she did not speak with trial

counsel regularly but that on the Sunday evening before the plea hearing, she left a message

for trial counsel. She said that she called trial counsel on Monday morning and told him that

the Petitioner wanted a week to think over the plea agreement but that trial counsel said no.

She said she met with trial counsel on the morning of the hearing and told him again that the

Petitioner wanted a continuance. She said trial counsel told her that the case had been

continued once and that it was best to go ahead and resolve the case with the plea. On cross-

examination, Ms. Swafford denied that she encouraged trial counsel to finalize the plea

agreement.

In rebuttal, trial counsel testified that he spoke with Ms. Swafford periodically about

the case and that the Petitioner gave him a release to discuss the case with Ms. Swafford. He

said he remembered talking to Ms. Swafford before the plea hearing but did not recall exactly

when the conversation took place. He said that Ms. Swafford’s inflection when she said,

“You don’t see any reason to put this off, do you,” indicated she wanted the plea agreement

to go forward. He said that she asked whether the offer was the best one the Petitioner would

receive and that he said it was. He identified two chairs in the courtroom where he and the

Petitioner discussed the change in the plea agreement from 100% to 30% release eligibility.

The transcript of the guilty plea hearing, the September 1 letter trial counsel wrote to the

Petitioner, and the written plea agreement were received as exhibits.

The trial court denied the motion to withdraw the guilty plea. In its order, the court

declined to rule on the post-conviction allegations, stating that it would address them at a

later date.

Post-Conviction Hearing

The trial court conducted a hearing on the motion to reconsider and the post-

conviction claims. We note that the “Motion to Withdraw Guilty Plea, or in the Alternative,

Petition for Post-Conviction Relief” that raised the post-conviction allegations was verified

by the Petitioner and contained the certification of counsel required by Tennessee Rule of the

Supreme Court 28, Appendices A and C. After the trial court denied the motion to withdraw

the guilty plea, the Petitioner filed a motion to reconsider.

Trial counsel testified that he represented the Petitioner for a community corrections

violation and the sex offense charges. He said he was retained by the Petitioner’s mother and

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his father or grandfather. He did not know how many times he met with the Petitioner, but

he recalled about four visits to the jail in addition to telephone calls and consultation at court

appearances.

Trial counsel testified that the victim’s testimony was the most damaging to the

Petitioner’s case, followed by the Petitioner’s statements. He said that he and the Petitioner

discussed a motion to suppress at length and that he did not file one. He said he advised the

Petitioner that in his opinion, the statements would be found to have been given voluntarily.

He said he also told the Petitioner that if he were successful in having the statements

suppressed and the Petitioner did not testify at the trial, the victim’s testimony would be

uncontroverted through cross-examination.

Trial counsel acknowledged that the Petitioner said he did not have his glasses or

contacts. He said he saw the Petitioner reading documents and thought the Petitioner seemed

to be able to do so fairly well. He did not know whether the Petitioner received his contact

lenses at the jail but said the Petitioner reported that the officers read the Petitioner’s

statements to him. Trial counsel said he also read the statements to the Petitioner, who

claimed that the police “left a lot of stuff out.” He said he did not think a suppression

hearing would have benefitted the Petitioner. He said the Petitioner’s statements related to

incidents other than the rape charge. He said that he investigated a possible alibi for the date

of the rape but that the alibi “did not pan out.” He did not recall anyone telling him about

photographs taken after the date of the rape that depicted the Petitioner and the victim

smiling, nor did he recall anyone telling him that telephone records would show that the

victim had telephone contact with the Petitioner after the rape. He said he filed a motion for

discovery and obtained discovery but did not recall filing any other motions.

With regard to the Petitioner’s range classification, trial counsel testified that he did

not question that the Petitioner was a Range II offender, rather than Range I. He said he

reviewed the Petitioner’s prior convictions and the length of the sentences in reaching his

conclusion. He said that he received computer photographs of the victim in provocative

poses but that the prosecutor was not swayed in plea negotiations when he mentioned this

evidence. He recalled that the victim’s mother had an ex-husband who was incarcerated for

a rape conviction. He said that there was an allegation that the victim’s mother “was putting

the daughter up to this” and that the victim withstood extensive cross-examination at the

preliminary hearing. He thought that members of the family told him that the victim was

sexually active with a young man but did not recall allegations that the victim acted

inappropriately with her brother. He said the Petitioner reported that the family often went

nude. He reviewed a videotape that allegedly showed “some of this activity going on” but

said it did not depict such activity.

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Trial counsel testified that the Petitioner never expressed dissatisfaction with his

handling of the case. He said the Petitioner never notified him that he did not understand the

plea and its consequences or a trial and its consequences. Counsel said that on the day the

indictment was returned, the Petitioner said he did not want the victim to have to testify and

told trial counsel to obtain the best plea agreement possible. Counsel said that he suggested

the Petitioner take a polygraph examination but that the Petitioner declined. He said it would

have been helpful in plea negotiations if the Petitioner had passed a polygraph examination.

He denied that he told the Petitioner or the Petitioner’s family that he would have the

Petitioner out of jail in two days if the victim recanted, but he admitted advising the

Petitioner that he could file a coram nobis petition if the victim recanted after the best interest

plea.

Trial counsel testified that he did not recall anything in the victim’s medical records

that would incriminate the Petitioner. He said he did not speak with an expert or medical

care provider about whether the records were consistent with the victim’s account of the

crimes. He said he did not do so because the emphasis shifted from trial preparation to plea

negotiations. He acknowledged that if there were evidence that the victim’s account was

inconsistent with the medical records, it would have helped secure a favorable plea

agreement.

Trial counsel testified that it was his practice to make copies of discovery materials

and provide them to his clients, although he could not recall whether he did so in the

Petitioner’s case. He said that the Petitioner gave him a release to discuss the case with the

Petitioner’s mother and that he met with her frequently. He said there were other people the

Petitioner did not want him to talk to, one of whom was Mary Montes De Oca, the

Petitioner’s girlfriend or fiancee. He did not recall whether he questioned the victim at the

preliminary hearing about a three-week delay between the rape and her report of it, nor did

he recall anyone giving him a photograph of the Petitioner and the victim taken a week after

the rape.

Trial counsel testified that he and the Petitioner discussed the consequences of various

plea agreement alternatives “nearly every time” they met. He said that on the day of the plea

hearing, the Petitioner asked if they had to resolve the matter that day. He said the Petitioner

“wanted more time to talk to Mary.” He acknowledged he did not ask the trial court for a

continuance. He said that the victim and “various players” were present in court that day

based upon the Petitioner’s decision to enter the plea and that they went forward with it. He

said that although he incorrectly advised the Petitioner on the Saturday before the plea

hearing that the offenses all required 100% service, he corrected himself on the day of the

hearing. He said there was “quite a bit of time” after the conversation and before the

Petitioner’s case was called. He said that the Petitioner wanted a nine-year plea agreement

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but that the prosecutor would not agree to less than twelve years. He said he reviewed the

agreement with the Petitioner and explained that based upon the Petitioner’s prior

convictions and the enhancement factors, the Petitioner could easily receive a sentence of at

least twelve years if he went to trial. He said he explained to the Petitioner that parole

eligibility did not mean that parole would be granted and that parole often was not granted

in sex offense cases because a defendant must undergo psychological evaluation which

typically did not recommend parole unless the defendant admitted his crime. He said he did

not think the Petitioner was likely to admit guilt.

On cross-examination, trial counsel testified that the shift of focus from trial

preparation to plea negotiation took place after the preliminary hearing but before the

indictment was returned. He identified the July 8, 2009 notice of intent to seek enhanced

punishment and said the plea was entered on August 10, 2009. He said that he reviewed the

notice with the Petitioner and that the Petitioner acknowledged the prior convictions. He said

that in his opinion, the two felonies listed in the notice qualified the Petitioner for Range II

sentencing and that additional misdemeanors were listed. He reiterated that he conferred

with the Petitioner several times on court dates, by telephone, and at the jail. He said they

reviewed the Petitioner’s pretrial statements. He said he found no grounds to support a

motion to suppress the statements. Regarding the statements, trial counsel said the Petitioner

claimed he was not wearing his glasses but noted that the Petitioner had initialed almost

every line of the statements. He said that when he read the statements to the Petitioner, the

Petitioner said he did not remember the statements being exactly the way that counsel read

them. He said the Petitioner claimed that information was omitted that made the statements

more damaging. He said he and the Petitioner reviewed the probable effect of the statements

at trial in light of the victim’s testimony at the preliminary hearing. Three statements given

by the Petitioner were received as exhibits.

Trial counsel testified that the Petitioner was aware of the victim’s testimony at the

preliminary hearing and that they reviewed the victim’s statements before the guilty plea.

He said the Petitioner never expressed an opinion regarding the impact of the victim’s

testimony at trial other than that the Petitioner did not want her to have to testify again.

Three statements given by the victim were received as exhibits. Trial counsel denied that any

family members other than the Petitioner expressed a desire that the victim not have to

testify. He reaffirmed that he discussed a polygraph examination with the Petitioner and that

he did not discuss it with anyone else.

Trial counsel testified that he had a fairly lengthy consultation with the Petitioner

about the math involved in the release eligibility calculations. He said that the Petitioner kept

insisting he would “do nine” but that he told the Petitioner that declining the twelve-year plea

offer was not worth the risk of receiving a more lengthy sentence after a trial. He said that

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the Range II sentence for rape was twelve to twenty years and for the other C felony counts

was six to ten years. He said they discussed the possibility of consecutive sentencing. He

agreed that the Petitioner pled as a Range I offender, received concurrent sentences, was

permitted to make a best interest plea, and avoided resentencing for the prior community

corrections sentence.

Trial counsel testified that at the plea hearing, the Petitioner did not indicate that he

was not acting freely and voluntarily. He saw no signs of coercion. He said that during the

plea hearing, they had to stop to correct and initial a fee that was stated incorrectly. He said

that the Petitioner did not have a problem with this change and that the total amount did not

change. Trial counsel said that he “absolutely” would have prepared for and taken the case

to trial if the Petitioner had wanted to do so. He said he would have encouraged the

Petitioner to go to trial if the alibi and the video of nudity in the home had “checked out.”

He said that he felt comfortable and prepared at the plea hearing and that he felt like he had

adequately prepared the Petitioner.

Trial counsel testified that the Petitioner’s mother contacted him before the plea

hearing and told him she thought the Petitioner’s best course was to accept the plea

agreement. He denied that she asked him to request a continuance. He said that after the

plea was entered, the Petitioner’s mother told him “that Mary was going to see an attorney.”

Trial counsel testified that the provocative photographs of the victim surfaced shortly

after the preliminary hearing. He said that the medical records were generated after the

indictment was returned and that the Petitioner had already expressed his desire for the best

plea agreement possible. He said that he had learned from experts in other cases that there

was rarely medical evidence of a sexual assault because any trauma may heal. He said that

the Petitioner admitted being naked and aroused in bed with the victim but that the Petitioner

denied that intercourse occurred.

Barbara Swafford testified that she and her ex-husband retained trial counsel on behalf

of the Petitioner. She said she was in communication with the Petitioner. She said she called

counsel on the morning of the plea hearing and told him “that we wanted some more time”

to consider the plea agreement. She said counsel told her they needed to proceed that day.

She said that she came to court and requested a second time that trial counsel seek a

continuance but that counsel told her everyone was present and they needed to go forward,

although trial counsel said he would discuss it with the Petitioner.

Ms. Swafford testified that she went to trial counsel’s office to inquire about

withdrawing the plea and thought she did so on the day after the plea was entered. She said

that she talked to a female employee and that counsel called her later. She said counsel

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claimed there was no way to withdraw the plea. She said that on the day of the plea hearing,

counsel told her and other members of her family that if the victim recanted, the Petitioner

would be released within forty-eight hours. She thought the Petitioner relied on this

statement.

Ms. Swafford testified that she and her granddaughter met with trial counsel at his

office and asked whether there would be physical evidence of a rape. She said counsel stated

that this evidence would come out if there were a trial. She said that she talked to the

Petitioner almost daily but that she had difficulty discussing matters with counsel that the

Petitioner wanted her to address. She said that due to counsel’s lack of responsiveness, she

asked him at one point whether he believed the Petitioner was guilty. She said she thought

that counsel should have listened in more detail to the Petitioner. She said her understanding

was that the Petitioner and counsel met a couple of times, one of which was the Friday or

Saturday before the plea hearing.

On cross-examination, Ms. Swafford testified that she was at the preliminary hearing

but that she had little access to the discovery and no access to the victim’s statements. She

said, however, that she was able to review her son’s statements.

One of the Petitioner’s daughters testified that she was present when trial counsel said

the Petitioner would be released and the charges dismissed if the victim recanted. She said

that she discussed this statement with the Petitioner and that he thought it was important. She

said that counsel never called her but that she tried to contact him. She said that she asked

questions but that trial counsel always responded that it was not important unless the case

went to trial. She said that she did not think counsel “really talk[ed] to [the Petitioner] at all

while he was in jail” and that the Petitioner always asked her whether she had spoken with

counsel. She said that on the day of the plea hearing, she heard her grandmother ask counsel

for more time but that she did not hear his response.

On cross-examination, the Petitioner’s daughter identified Ms. Swafford as her

paternal grandmother. She said the Petitioner gave trial counsel permission to discuss his

case with both Ms. Swafford and her. She said counsel was incorrect if he said the waiver

applied only to Ms. Swafford. On redirect examination, the Petitioner’s daughter testified

that when she was present, counsel discussed the case with her grandmother and her and that

he never asked to speak with her grandmother privately.

Mary Montes De Oca testified that the Petitioner was her fiance. She said that after

the hearing at which the Petitioner entered his best interest plea, trial counsel met with the

Petitioner’s mother, the Petitioner’s brother, and her “to discuss any information we had.”

She said that although she did not hear counsel say that the Petitioner would be released

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within forty-eight hours if the victim recanted, the Petitioner and his family members told her

this. She said the Petitioner instructed her not to be involved in the case and told her not to

come to any hearings. She said she did not attend the plea hearing.

Ms. De Oca testified that when she tried to contact trial counsel before the plea, “they

wouldn’t let me.” She said that she and the Petitioner talked as many as several times a day

while he was incarcerated and that he gave her information to convey to counsel. She said,

however, that when she tried to convey the information, she was told “We can’t give out any

information to you.” She said that there were three-way telephone conferences involving

counsel, the Petitioner, and her but that she did not think counsel was aware she was listening

to the call. When asked how often trial counsel communicated with the Petitioner, she

responded, “He wasn’t basically.”

Ms. De Oca testified that on the weekend before the plea deadline, the Petitioner’s

mother tried several times unsuccessfully to contact trial counsel to request a continuance.

She thought she might have tried to contact counsel at his office, as well. She said she tried

to find another lawyer to represent the Petitioner.

Ms. De Oca testified that on the day of the arraignment, she gave trial counsel a

photograph of the Petitioner and the victim in which the victim was “smiling, happy, leaning

on her dad.” She said the photograph was taken seven days after the date of the alleged rape.

She said that about one week later, she gave trial counsel the Petitioner’s and the victim’s

telephone numbers and asked him to subpeona the telephone records. She identified copies

of telephone records and testified that they showed calls “all the time” between the victim

and the Petitioner, including after the date of the alleged rape. The telephone records were

received as an exhibit. She said that to her knowledge, trial counsel did not investigate based

on the information she provided.

Ms. De Oca testified that the Petitioner wanted to withdraw his plea immediately. She

said that either she or the Petitioner’s mother called trial counsel’s office to notify him.

On cross-examination, Ms. De Oca acknowledged that the Petitioner, not she, was

trial counsel’s client. She said that she prepared a form that would allow counsel to talk to

her about the Petitioner’s case but that the Petitioner told her it was not a good idea. She

could not say whether there was more than one three-way telephone call during which

counsel did not know she was listening to the conversation. She acknowledged that the

Petitioner was the person ultimately responsible for making the decision about the case and

that she was not present when he entered his plea.

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The Petitioner testified that he wanted the judge to consider his testimony from the

hearing on the motion to withdraw the guilty plea. He said that he agreed to trial counsel’s

suggestion that he take a polygraph examination but that counsel never arranged it. He said

he first discussed taking a polygraph examination with the investigators, who told him to talk

to his attorney. He said this was before the preliminary hearing.

The Petitioner testified that he wanted more time to consider the plea agreement after

meeting with trial counsel on Friday afternoon before the Monday plea deadline. He said he

had concerns about counsel’s performance and wanted to talk to another attorney. He

claimed he requested that counsel continue the case but that counsel said the case could not

be continued. He said he felt rushed into entering the plea. The Petitioner said he had

concerns about the changes in the plea agreement for the percentage of service for the

sentences. He said that while the judge was addressing him, he was asking counsel questions

about the range classification. He said trial counsel was unsure whether the Petitioner was

a Range I or Range II offender.

The Petitioner testified that he gave information to trial counsel but that counsel told

him the information was not necessary unless the case went to trial. He said that to his

knowledge, counsel never complied with his request to subpoena telephone records. He

claimed that when he told counsel of several photographs of himself and the victim taken

after the alleged rape and that he continued to take the children to school, counsel “just

discarded” the information.

On cross-examination, the Petitioner acknowledged that during the time period for the

Class C felonies, he and the victim spoke on the telephone, he had visitation, and he took her

to school. He acknowledged he and counsel discussed the victim’s statements and his

statements. He said he was present at the preliminary hearing when the victim testified. He

denied that he and counsel discussed the notice for enhanced punishment and claimed that

counsel merely mailed him a copy of it. He admitted, however, that they discussed Range

I and Range II classification. He said that he was classified as a Range I offender in the plea

agreement and that he was allowed to enter a best interest plea. He remembered discussing

the possibility of consecutive sentencing with trial counsel. He acknowledged that the trial

court reviewed the plea and sentence with him. He agreed that he told the court at the plea

hearing that he was satisfied with trial counsel’s representation and that he acknowledged his

understanding of what was taking place.

The Petitioner testified that he decided “basically immediately” after entering the plea

that he wanted to withdraw it. He said he asked trial counsel before he entered the plea if his

case could be continued but counsel said they needed to proceed that day. He acknowledged

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that it was his decision whether to accept the plea agreement and that he told counsel he did

not want to put his daughter through a trial.

When asked by the trial court whether he personally told the trial court that he wanted

a continuance, he said trial counsel told him that he could not address the court. He recalled,

however, that he responded negatively when the trial court asked him whether his attorney

had done anything that he wanted to address with the court. He acknowledged that he told

the trial court that he had not been forced or pressured to enter the plea, nor had any threats

or promises been made. He said he felt pressured by counsel’s statement that the case would

not be continued. He acknowledged that he should have asked the judge for a continuance

but maintained that at the time, he did not think he could.

On redirect examination, the Petitioner testified that he was nervous on the day of the

plea hearing and at the post-conviction hearing. He said that he was nervous about speaking

in public and that he and his family hired a lawyer to speak for him. He said he relied on trial

counsel’s advice. He said he did not feel like he had a choice when he entered the plea and

still felt he had no choice.

Although the trial court took the matter under advisement, the judge observed after

receiving the proof:

I feel like I gave the Defendant every opportunity to speak up

and to tell me if he was dissatisfied with his lawyer or if he

didn’t understand something about the plea arrangement or, you

know, even after the facts were stated, you now, “Do you still

want to go forward with this?” He never once indicated any

hesitancy about pleading or not, you know, going forward with

the best interest plea.

In its order denying relief, the trial court found that the Petitioner entered a knowing,

voluntary, and intelligent best interest plea, that the testimony of trial counsel was credible,

that the Petitioner’s testimony was not credible, and that trial counsel provided effective

assistance. The court denied post-conviction relief and denied the motion to reconsider the

motion to withdraw the plea.

On appeal, the Petitioner contends that he did not receive the effective assistance of

counsel. The State counters that the trial court correctly found that the Petitioner failed to

prove this claim. We agree with the State.

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We begin by noting the unusual procedure by which the Petitioner raised his post-

conviction allegations. As we have noted, he filed a “Motion to Withdraw Guilty Plea, or

in the Alternative, Petition for Post-Conviction Relief.” The motion requests that the trial

court grant relief either under Tennessee Rule of Criminal Procedure 32(f), in its nature a part

of the conviction case, or under the Post-Conviction Procedures Act, in its nature a collateral

attack on a final conviction. Compare Tenn. R. Crim. P. 32(f)(2) (permitting, in limited

circumstances, withdrawal of a guilty plea after the sentence is imposed but before the

judgment becomes final) with T.C.A. § 40-30-102 (2010) (permitting a post-conviction

challenge to a conviction “within one (1) year of the date of the final action [on appeal] or,

if no appeal is taken, within one (1) year of the date on which the judgment became final”).

Thus, the Petitioner requested alternative relief in the conviction case that should have been

pursued in two separate forms of action. A defendant who pleads for relief in this alternative

manner runs the substantial risk that a trial court will interpret the pleading as either a motion

to withdraw the guilty plea or as a post-conviction petition and dispose of it in its entirety on

a singular basis. In such a case, should the trial court deny the motion to withdraw the plea,

the defendant could either file a direct appeal from the judgment or, otherwise, forego the

appeal and file a post-conviction petition collaterally attacking the judgment. On the other

hand, should the trial court construe the pleading as a petition for post-conviction relief, the

petitioner risks that the court will dismiss the petition as having been prematurely filed, and

in the meantime, the thirty-day window for withdrawing the guilty plea will have expired.

See T.C.A. § 40-30-102(a) (providing for post-conviction petitions to be filed within one

year of a final judgment); Tenn. R. Crim. P. 32(f)(2) (allowing withdrawal of a guilty plea

before a judgment becomes final); State v. Green, 106 S.W.3d 646 (Tenn. 2003) (holding that

a judgment entered pursuant to a guilty plea becomes final thirty days after the plea is

accepted and the defendant is sentenced). A defendant must take care not to pursue both a

direct appeal and post-conviction relief at the same time. See Gary Rocco Denami v. State,

No. 01C01-9507-CR-00224, Davidson County (Tenn. Crim. App. July 5, 2006) (“The

Post-Conviction Procedure Act does not authorize the filing of a post-conviction petition

while a direct appeal of the conviction is pending in the Tennessee courts.”).

All of this is relevant in order for this court to determine whether there was a valid

post-conviction proceeding for the trial court to adjudicate and whether there is a valid appeal

before this court. We note that these issues were not raised by either party. The Petitioner

did not file a direct appeal of his convictions after the trial court denied his motion to

withdraw his pleas. Rather, the record reflects that the parties and the trial court all

proceeded with the understanding that the Petitioner desired to pursue the post-conviction

claims he raised in the earlier pleading. While we do not condone hybrid pleadings like the

one filed by the Petitioner, we note that in this case, the pleading complied with the

requirements for a proper post-conviction petition, including the certification of counsel and

verification by the petitioner. See generally T.C.A. § 40-30-104; Tenn. R. Sup. Ct. 28, §

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5(D), (E), Apps. A-C. We also note that the trial court, without objection by the State, held

the Petitioner’s post-conviction claims in abeyance and allowed the Petitioner to litigate them

after the trial court ruled against the Petitioner on the Rule 32(f) motion to withdraw the plea.

In this rare circumstance, we conclude that we may consider the merits of the Petitioner’s

appeal in his post-conviction case.

We turn now to the merits of the Petitioner’s claim. The burden in a post-conviction

proceeding is on the petitioner to prove his grounds for relief by clear and convincing

evidence. T.C.A. § 40-30-110(f) (2006). On appeal, we are bound by the trial court’s

findings of fact unless we conclude that the evidence in the record preponderates against

those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Because they relate

to mixed questions of law and fact, we review the trial court’s conclusions as to whether

counsel’s performance was deficient and whether that deficiency was prejudicial under a de

novo standard with no presumption of correctness. Id. at 457. Post-conviction relief may

only be given if a conviction or sentence is void or voidable because of a violation of a

constitutional right. T.C.A. § 40-30-103 (2006).

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is

made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient

and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing

that counsel’s performance fell below a reasonable standard is not enough because the

Petitioner must also show that but for the substandard performance, “the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland

standard has been applied to the right to counsel under article I, section 9 of the Tennessee

Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997). The performance prong requires a petitioner to show that counsel’s representation fell

below an objective standard of reasonableness or “outside the wide range of professionally

competent assistance.” Strickland, 466 U.S. at 690. The prejudice prong requires a

petitioner to demonstrate that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

A reasonable probability means a “probability sufficient to undermine confidence in the

outcome.” Id. When a petitioner pleads guilty, he must show a reasonable probability that,

but for the errors of his counsel, he would not have pled guilty. See Hill v. Lockhart, 474

U.S. 52, 59 (1985); Adkins v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994).

-17-

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were

“within the range of competence demanded of attorneys in criminal cases.” Further, the court

stated that the range of competence was to be measured by the duties and criteria set forth

in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v.

DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Baxter, 523 S.W.2d at 936. Also, in

reviewing counsel’s conduct, a “fair assessment of attorney 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 Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the defense

does not, alone, support a claim of ineffective assistance. Cooper v. State, 847 S.W.2d 521,

528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they

are informed ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201;

Hellard, 629 S.W.2d at 9.

In the present case, the trial court discredited the Petitioner’s testimony and accredited

trial counsel’s testimony. The record reflects that trial counsel consulted with the Petitioner

extensively, that they discussed the proof, that he investigated possible alibi evidence but

found it lacking, that he negotiated with the prosecutor for a favorable plea agreement, that

he advised the Petitioner of the likelihood of a more lengthy sentence if the Petitioner’s case

went to trial, that he discussed the plea offer with the Petitioner, and that he corrected his

initially mistaken advice about the percentage of service for the Class C felonies. The record

also contains proof to support the trial court’s finding “[t]hat nothing . . . suggests that the

Petitioner was in any way pressured or coerced into entering his guilty/best interest plea, or

that the Petitioner desired to go to trial in this case.” We conclude the evidence does not

preponderate against the court’s findings. The trial court properly concluded that the

Petitioner failed to prove his ineffective assistance of counsel claim. The Petitioner is not

entitled to relief.

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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