George T. McClain v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 27, 2010

GEORGE T. McCLAIN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2005-I-1125 Monte Watkins, Judge

No. M2009-02244-CCA-R3-PC - Filed January 26, 2011

The Petitioner, George T. McClain, appeals the Davidson County Criminal Court’s denial

of post-conviction relief from his conviction for sale of less than one-half gram of cocaine,

a Class C felony. See T.C.A. § 39-17-417 (2010). On appeal, he contends that (1) the trial

court imposed illegal sentences and (2) trial counsel rendered ineffective assistance of

counsel. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,

J R., and D. K ELLY T HOMAS, J R., JJ., joined.

George T. McClain, Nashville, Tennessee, pro se (on appeal); and Jennifer Booth and

Virginia Flack, Assistant District Public Defenders (at trial), for the appellant, George T.

McClain.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

Victor S. Johnson, III, District Attorney General; and Deborah Housel, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The Petitioner pled guilty on October 17, 2005, to the sale of less than one-half gram

of cocaine and was sentenced as a Range II, multiple offender to six years in community

corrections. The facts were presented by the State at the guilty plea hearing:

[O]n August 15, 2005, Officer Younek Deloria and other

officers were working undercover in the vicinity of Eighteenth

Avenue North and D.B. Todd to purchase crack cocaine or other

drugs from street-level dealers. Officer Deloria would testify

that he encountered [the Petitioner] at that location – which is

here in Davidson County, Tennessee – gave him twenty dollars

of previously photocopied buy money. [The Petitioner] took the

money and came back with a small rock of crack cocaine, which

field-tested positive for that schedule two drug.

On August 17, 2007, the Petitioner conceded that he violated the requirements of the

community corrections program. His sentence was amended, pursuant to a plea agreement,

to ten years in community corrections as a Range III, persistent offender. On November 28,

2007, the Petitioner conceded another violation of the community corrections program. His

sentence was again amended, pursuant to a plea agreement, to ten years’ confinement as a

Range II, multiple offender, with credit for time served. We note that the Petitioner had

different representation at each of his revocation hearings.

At the post-conviction hearing, trial counsel who represented the Petitioner at his

August 17, 2007 hearing testified that she attended Columbia Law School and that she had

practiced law for nearly six years. She said that she worked as an assistant public defender

and that she began representing the Petitioner at his revocation hearing on August 17. She

could not recall how many times she met with the Petitioner before his hearing but said she

discussed the Petitioner’s case with him. She said she investigated the circumstances of the

Petitioner’s community corrections violation and the law controlling revocation hearings and

resentencing. She said that although she was prepared for the hearing and had members of

the Petitioner’s family present in court, the Petitioner accepted a plea agreement offered by

the District Attorney on the day of the hearing. She said the Petitioner agreed to concede his

violation, to acknowledge that he had five qualifying felonies to make him a Range III

offender, and to be sentenced as a Range III offender to ten years in community corrections

at forty-five percent release eligibility.

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Trial counsel agreed that by conceding his violation, the Petitioner waived his right

to have a hearing in which the State would have the burden of proving his violation. She

disagreed the trial court did not have authority to increase the Petitioner’s sentencing range.

She agreed the trial court asked the Petitioner if he conceded his violation, if he had five

felonies, and if he understood that he agreed to be sentenced as a Range III, persistent

offender to ten years of community corrections. She agreed that the Petitioner answered by

stating, “Yes, sir.” She said that she believed the Petitioner knowingly and voluntarily

waived his right to a hearing and that the Petitioner understood the conditions of his plea

agreement because he was one of the most intelligent people she had ever represented. She

disagreed that Tennessee courts required a resentencing hearing when a person pled guilty

to a suspended sentence violation.

On cross-examination, trial counsel agreed that the Petitioner previously violated the

terms of his community corrections program and had his sentence revoked twice as a result.

She agreed she discussed community corrections and resentencing with the Petitioner. She

agreed she advised the Petitioner of his rights, of his ability to have a hearing, and of the

possibility that he could be incarcerated for violating the terms of the community corrections

program. She said that the Petitioner accepted the plea agreement to avoid being incarcerated

and that he voluntarily agreed to be sentenced to ten years in community corrections at forty-

five percent release eligibility. She agreed that the trial court advised the Petitioner of his

rights and that the Petitioner understood he waived his right to a hearing. She agreed that on

November 28, 2007, the Petitioner was resentenced as a Range II, multiple offender to ten

years’ confinement at thirty percent release eligibility.

The Petitioner testified that he violated the terms of the community corrections

program. He said that although he conceded his violation, he was unaware that he was

entitled to a revocation hearing. He said he would have made “different decisions” had he

known he was entitled to a revocation hearing. He said trial counsel informed him that the

State was not ready to proceed with his hearing on August 17, 2007. He said he requested

that the hearing be held anyway because his family was in attendance. He denied he had the

five felony convictions necessary to establish him as a Range III offender and said he only

had two felony convictions before pleading guilty to the sale of less than one-half gram of

cocaine.

On cross-examination, the Petitioner testified that he only had two prior felony

convictions. He then agreed he had felony convictions for possessing drugs, armed robbery,

and two convictions for aggravated burglary. He agreed that these four felony convictions

qualified him as a Range II offender and that he could have received up to ten years’

confinement at a sentencing hearing on August 17, 2007. He agreed he was willing to

receive a ten-year sentence in community corrections at forty-five percent release eligibility

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to avoid incarceration. He denied that he discussed resentencing with trial counsel or that

trial counsel informed him of his right to a hearing. He said that although family members

were present at his hearing, they were not there to testify.

The Petitioner agreed that he again violated the terms of the community corrections

program and that he was resentenced on November 28, 2007. He agreed he had a hearing

that day with his family present. He said that although he conceded his violation, he was still

unaware of his right to a revocation hearing. He said that he told trial counsel he wanted a

sentencing hearing and that trial counsel told him the District Attorney would inform the trial

court of additional charges pending against the Petitioner if they held a sentencing hearing.

He agreed that he decided to put his sentence into effect at thirty-percent release eligibility

with credit for time served and that he “came out” that same day. He disagreed that trial

counsel met with him before the hearing on November 28. He agreed he never told the trial

court or trial counsel at either of the hearings that he did not want to concede his violations.

On redirect examination, the Petitioner testified that had he been aware of his right

to a revocation hearing, he would have requested one. He denied knowing that he was

entitled to revocation hearings and said he thought his hearings were for purposes of

sentencing only.

The trial court discredited the Petitioner’s testimony and stated that the Petitioner

“knew [he] had a right to a revocation hearing.” The court also noted that the revocation of

a community corrections sentence and resentencing occurred at the same hearing. The court

found that the Petitioner had not established by clear and convincing evidence that his trial

counsel were deficient and denied the petition for post-conviction relief. This appeal

followed.

I

The Petitioner contends that the trial court imposed illegal sentences on August 17,

2007, and on November 28, 2007, because it failed to conduct formal sentencing hearings,

involving specific findings of fact and the weighing of sentencing considerations, before

increasing his original sentence. He argues that he was entitled to a sentencing hearing

because he did not knowingly and voluntarily enter into his plea agreements and waive his

right to a hearing. He also contends that the trial court imposed an illegal sentence on August

17, 2007, because it resentenced him in a higher range than that of his original sentence. The

State contends that the trial court properly sentenced the Petitioner after approving his

voluntary plea agreements. We agree with the State.

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The burden in a post-conviction proceeding is on the Petitioner to prove his

allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006);

Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). 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). 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).

A trial court has the power, upon revocation of a community corrections sentence, to

resentence a defendant to a period of incarceration up to the maximum for the offense

originally committed. T.C.A. § 40-36-106(e)(4) (2010). A formal sentencing hearing or a

revocation hearing is not required when a defendant concedes that he violated the terms of

the community corrections sentence and elects to accept, knowingly and voluntarily, an

increased sentence by agreement with the State. State v. Joe W. France, No.

E2003-01293-CCA-R3-CD, Jefferson County, slip op. at 4 (Tenn. Crim. App. July 19, 2004)

(citing State v. Mahler, 735 S.W.2d 226 (Tenn. 1987)).

Although a trial court has the power to resentence a defendant upon revocation of a

community corrections sentence, section 40-36-106(e)(4) does not authorize the court to

resentence the defendant in a higher range than that of the original sentence. See State v.

Patty, 922 S.W.2d 102, 103-04 (stating that “a trial judge imposing a new sentence as a result

of a community corrections failure is bound to sentence the defendant within the range of the

original sentence.”). However, in the context of plea agreements, “a defendant may plead

outside the range if the defendant expressly agrees to a particular offender classification and

the sentence imposed is within the statutory limits fixed for the offense of conviction.” Terry

L. Baker v. State, No. M2002-00400-CCA-R3-PC, Davidson County, slip op. at 7 (Tenn.

Crim. App. Dec. 29, 2003) (citing Mahler, 735 S.W.2d at 227; McConnell v. State, 12

S.W.3d 795, 798 (Tenn. 2000)). Furthermore, “a knowing and voluntary guilty plea waives

any irregularity as to offender classification or release eligibility.” Hicks v. State, 945

S.W.2d 706, 709 (Tenn. 1997).

In light of the above, in determining whether the court imposed illegal sentences by

failing to conduct a formal sentencing hearing or by resentencing the Petitioner in a higher

range than that of his original sentence, the dispositive issue is whether the Petitioner’s plea

agreements were knowingly and voluntarily entered into. When evaluating the knowing and

voluntary nature of a guilty plea, the United States Supreme Court has held that “[t]he

standard was and remains whether the plea represents a voluntary and intelligent choice

among the alternative courses of action open to the defendant.” North Carolina v. Alford,

400 U.S. 25, 31 (1970). The court reviewing the voluntariness of a guilty plea must look to

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the totality of the circumstances. See State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim.

App. 1995). The circumstances include

the relative intelligence of the defendant; the degree of his

familiarity with criminal proceedings; whether he was

represented by competent counsel and had the opportunity to

confer with counsel about the options available to him; the

extent of advice from counsel and the court concerning the

charges against him; and the reasons for his decision to plead

guilty, including a desire to avoid a greater penalty that might

result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (citing Caudill v. Jago, 747 F.2d

1046, 1052 (6th Cir. 1984)). A plea resulting from ignorance, misunderstanding, coercion,

inducement, or threats is not “voluntary.” Blankenship, 858 S.W.2d at 904.

With regard to the revocation hearing and resentencing on August 17, 2007, the record

reflects that trial counsel informed the trial court that the Petitioner and the State reached an

agreement that would allow the Petitioner to remain in community corrections. She said:

[The Petitioner] is going to concede his violation. He’s going

to acknowledge that he has the five qualifying felonies to make

him a range three offender, which would expose him to ten to

fifteen years at forty-five percent. He is going to concede that.

He would be released today. The sentence would be increased

to ten years at forty-five percent as a range three offender. . . .

He’s going to comply with the conditions of the Salvation Army

treatment center.

The trial court then stated:

Mr. McClain, you heard your attorney . . . state . . . that you’re

conceding your violation; that you have stipulated to the fact

that you have five prior felonies, which would make you a range

three offender; that you’re going to be reinstated to Community

Corrections, ten years . . . . You must go to the Salvation Army.

You must be accepted there . . . you understand all of that, don’t

you?

The Petitioner responded, “Yes, sir.”

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At the post-conviction hearing, trial counsel testified that she discussed the

resentencing with the Petitioner and advised him of his right to a hearing and of the

possibility that he could be incarcerated for violating the terms of his community corrections

program. She said that the Petitioner accepted the plea agreement to avoid being incarcerated

and that he voluntarily agreed to be sentenced to ten years in community corrections at

forty-five percent release eligibility. She said that the Petitioner knowingly and voluntarily

waived his right to a hearing and that the Petitioner understood the conditions of his plea

agreement because he was one of the most intelligent people she had ever represented. The

Petitioner testified that he conceded his violation and agreed that he was willing to receive

a ten-year sentence in community corrections at forty-five percent release eligibility in order

to avoid incarceration. He agreed that he never told the trial court or trial counsel that he did

not want to concede his violation. Although the Petitioner claimed at the post-conviction

hearing that he was unaware he was entitled to a revocation hearing, the trial court

discredited the Petitioner’s testimony and stated that the Petitioner knew he had a right to a

revocation hearing. The record also reflects that the Petitioner was familiar with revocation

hearings, as he had previously violated the terms of community corrections and had his

sentence to the program revoked as a result. We hold that under the totality of the

circumstances, the Petitioner failed to establish that he did not knowingly and voluntarily

enter into his plea agreement with the State on August 17, 2007.

With regard to the revocation hearing and resentencing on November 28, 2007, the

record shows that trial counsel informed the trial court that the Petitioner and the State

reached a plea agreement, subject to the court’s approval. She said:

[The Petitioner is] going to concede his Community Corrections

violation. His sentence will be amended today to a ten-year at

thirty percent sentence. Going to have the Court place the

sentence into [e]ffect with all of his jail credit and all of his

Community Corrections street time . . . [a]nd he understands that

all of that credit will count towards his parole eligibility.

The trial court then stated, “Mr. McClain, you heard your attorney state that you’re

conceding, waive your right to a hearing. Your sentence is being amended to a ten-year

TDOC sentence and you will receive all your jail credit. Is that your understanding?” The

Petitioner responded, “Jail credit and street credit.” The court clerk stated, “I’ll give him all

that, but it’s going to take me a few.” The Petitioner responded, “Yes, ma’am. I understand

that. I just wanted to make sure.” The court told the Petitioner that he would “be going

before the parole board before you can breath[e], once you get out there,” and he responded,

“Yes, sir.” This verbal exchange reflects that the Petitioner knew and understood the terms

of his plea agreement

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At the post-conviction hearing, the Petitioner agreed he conceded his violation. He

agreed he never told the trial court or trial counsel that he did not want to concede his

violation. He also agreed he decided to put his sentence into effect at thirty-percent release

eligibility after trial counsel told him that the District Attorney would inform the trial court

of additional charges pending against the Petitioner if they held a formal sentencing hearing.

Although the Petitioner claimed at the post-conviction hearing that he was unaware he was

entitled to a revocation hearing, the trial court discredited the Petitioner’s testimony and

stated that the Petitioner “knew [he] had a right to a revocation hearing.” The record also

reflects that the Petitioner was familiar with revocation hearings. We hold that under the

totality of the circumstances, the Petitioner failed to establish that he did not knowingly and

voluntarily enter into his plea agreement with the State on November 28, 2007.

Because the Petitioner conceded that he violated the terms of his community

corrections sentences and knowingly and voluntarily agreed to accept increased sentences

by agreements with the State, formal sentencing and revocation hearings were not required

on August 17, 2007, or on November 28, 2007. See Joe W. France, slip op. at 4.

Additionally, because the Petitioner’s plea agreement on August 17, 2007, reflects that he

agreed to a Range III offender classification and the ten-year sentence was within the

statutory limit fixed for his conviction for the sale of less than one-half gram of cocaine, the

trial court did not err by resentencing the Petitioner in a higher range than that of his original

sentence. See Terry L. Baker, slip op. at 7; T.C.A. § 40-35-112 (2010). Furthermore, the

Petitioner’s knowing and voluntary plea agreements waived any irregularities as to his

offender classification or release eligibility. See Hicks, 945 S.W.2d at 709. The Petitioner

is not entitled to relief on these issues.

II

The Petitioner contends that trial counsel at the August 17, 2007 hearing rendered

ineffective assistance by not informing him of his right to a revocation hearing where he

could contest his community corrections violation, by allowing the court to sentence him in

a higher range than that of his original sentence, by failing to conduct an adequate

investigation, and by “coercing” him to agree to an increased sentence. The Petitioner also

contends that trial counsel at the November 28, 2007 hearing rendered ineffective assistance

by failing to insist that the trial court conduct a formal sentencing hearing, by not informing

him of his right to a sentencing hearing, by not explaining the differences between sentencing

ranges, by allowing the trial court to impose an illegal sentence outside of his range, by

failing to conduct an adequate investigation, and by “coercing” him to agree to an increased

sentence. The State contends that the Petitioner has failed to show that trial counsel at either

hearing was deficient or that he was prejudiced by any perceived error. We agree with the

State.

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As noted above, the burden in a post-conviction proceeding is on the Petitioner to

prove his allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f);

Dellinger, 279 S.W.3d at 294. Once a petitioner establishes the fact of counsel’s errors, the

trial court must determine whether those errors resulted in the ineffective assistance of

counsel. Dellinger, 279 S.W.3d at 293; see Strickland v. Washington, 466 U.S. 668, 687-88,

694 (1984).

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, 40 S.W.3d at 456-57.

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.

Under the Sixth Amendment to the United States Constitution, 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,

466 U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). A petitioner will

only prevail on a claim of ineffective assistance of counsel after satisfying both prongs of the

Strickland test. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). The performance

prong requires a petitioner raising a claim of ineffectiveness to show that the 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. In the context of a guilty plea, in order to prove prejudice, a petitioner “‘must show

that there is a reasonable probability that, but for counsel’s error, he would not have pleaded

guilty and would have insisted on going to trial.’” House v. State, 44 S.W.3d 508, 516

(Tenn. 2001) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

Our supreme court has held 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. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). 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). See id. 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. “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,

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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. Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.

With regard to the Petitioner’s claim that trial counsel at the August 17, 2007 hearing

rendered ineffective assistance, the Petitioner has not shown by clear and convincing

evidence that trial counsel failed to inform him of his right to have a revocation hearing or

that counsel failed to conduct an adequate investigation before the hearing. Trial counsel

testified at the post-conviction hearing that she was prepared for the revocation and

sentencing hearing. She said she investigated the circumstances of the Petitioner’s

community corrections violation and the law controlling revocation hearings and

resentencing before the hearing. She agreed that she discussed community corrections and

the resentencing with the Petitioner and that she advised the Petitioner of his rights, of his

ability to have a hearing, and of the possibility that he could be incarcerated for violating the

terms of his community corrections program. She said that the Petitioner knowingly and

voluntarily waived his right to a hearing and that the Petitioner understood the conditions of

his plea agreement because he was one of the most intelligent people she had ever

represented.

With regard to the Petitioner’s claim that trial counsel “coerced” him into accepting

the plea agreement, nothing in the record suggests that trial counsel coerced the Petitioner,

and he has not shown otherwise. At the post-conviction hearing, the Petitioner agreed that

he was willing to receive a ten-year sentence of community corrections at forty-five percent

release eligibility in order to avoid incarceration. Trial counsel also testified that the

Petitioner voluntarily entered into the plea agreement to avoid incarceration.

Lastly, the Petitioner has not shown that trial counsel was deficient for allowing the

court to sentence him in a higher range than that of his original sentence. As noted above,

because the Petitioner’s plea agreement on August 17, 2007, reflects that he agreed to a

Range III offender classification and the ten-year sentence was within the statutory limits

fixed for his conviction, the trial court did not err by resentencing the Petitioner in a higher

range than that of his original sentence. See Terry L. Baker, slip op. at 7. We hold that the

Petitioner has not shown that trial counsel’s actions at the August 17, 2007 hearing were

deficient or prejudicial. The Petitioner is not entitled to relief on this issue.

With regard to the Petitioner’s claim that trial counsel at the November 28, 2007

hearing rendered ineffective assistance, the Petitioner has not shown by clear and convincing

evidence that trial counsel failed to inform him of his right to have a sentencing hearing. His

testimony at the post-conviction hearing reflected that he knew he was entitled to a

sentencing hearing, as he denied knowing that he was entitled to revocation hearings and said

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he thought his hearings were for purposes of sentencing only. The Petitioner also has not

shown that trial counsel was deficient for allowing the court to impose an “illegal sentence

outside of his range.” The record reflects that the Petitioner conceded a violation of the

community corrections program and that his sentence was amended, pursuant to a plea

agreement, to ten years’ confinement as a Range II, multiple offender but with thirty-percent

release eligibility, which is a release eligibility associated with Range I offenders. A Range

II offender convicted of a Class C felony can be sentenced to not less than six nor more than

ten years. See T.C.A. § 40-35-112. The Petitioner’s sentence was within this range.

Furthermore, the Petitioner’s knowing and voluntary plea agreement waived any

irregularities as to his offender classification or release eligibility. See Hicks, 945 S.W.2d

at 709. Additionally, the Petitioner has not shown that counsel rendered ineffective

assistance by failing to insist that the court conduct a formal sentencing hearing. Because

the Petitioner conceded that he violated the terms of his community corrections sentence and

knowingly and voluntarily agreed to accept a ten-year sentence by agreement with the state,

a formal sentencing and revocation hearing was not required. See Joe W. France, slip op. at

4.

With regard to the Petitioner’s claims that trial counsel failed to explain the

differences between sentencing ranges, failed to conduct an adequate investigation, and

coerced him to agree to an increased sentence, the Petitioner has not established these claims.

We note that trial counsel from the November 28, 2007 hearing did not testify at the post-

conviction proceedings. The Petitioner did not mention these claims at the post-conviction

hearing and has offered no proof to establish these claims. We hold that the Petitioner has

not shown that trial counsel’s actions at the November 28, 2007 hearing were deficient or

prejudicial. The Petitioner is not entitled to relief on this issue.

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

of the trial court.

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JOSEPH M. TIPTON, PRESIDING JUDGE

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