Thomas T. Nicholson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

July 28, 2009 Session

THOMAS T. NICHOLSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Loudon County

No. 10785 E. Eugene Eblen, Judge

No. E2009-00213-CCA-R3-PC - Filed May 12, 2010

The Petitioner, Thomas T. Nicholson, appeals the denial of post-conviction relief in the

Criminal Court for Loudon County from his conviction upon a plea of nolo contendere to

sexual battery by an authority figure, a Class C felony, for which he received a six-year

sentence in the Department of Correction. On appeal, the Petitioner contends that he

received the ineffective assistance of counsel and that as a result, his plea was not

voluntarily, knowingly, or intelligently entered. We hold that the Petitioner received the

ineffective assistance of counsel because he was given erroneous advice about release

eligibility. We reverse the judgment of the trial court denying post-conviction relief, we

vacate the Petitioner’s conviction, and we remand the case for further proceedings consistent

with this opinion.

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

Conviction Vacated; Case Remanded

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.

John E. Eldridge, Knoxville, Tennessee, for the appellant, Thomas T. Nicholson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; Russell Johnson, District Attorney General; Frank A. Harvey, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The case relates to the Petitioner’s plea of nolo contendere to the sexual battery by an

authority figure of his six-year-old neighbor, J.B. The Petitioner was originally charged with

aggravated sexual battery, a Class B felony, with a relevant range of punishment of eight to

twelve years. At the post-conviction hearing, Jim Widener of the Blount County Sheriff’s

Department testified that on December 23, 2003, before the Petitioner had been charged with

the offense underlying this appeal, he administered a polygraph test to the Petitioner at the

request of John Houston of the Loudon County Sheriff’s Office. He agreed that he gave the

Petitioner a rights waiver form, pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and

that he collected the Petitioner’s biographical data. He said a polygraph evaluation was on

the back of the form.

Mr. Widener agreed that he discussed the case and formulated questions with the

Petitioner during the “pretest phase,” which he said was normal procedure. He

acknowledged the difference between law enforcement and private polygraphers. He said

a control question was used to determine when a person was being truthful. He explained

that a person reacts the same to all questions and that the polygraph scores the intensity of

the reactions. He said that after he administered the polygraph examination, he scored it

while the Petitioner left for a while. He said the Petitioner failed the exam, and he agreed

that when he and Houston resumed their conversation with the Petitioner, they had already

determined that the Petitioner had violated the law.

Mr. Widener testified that he did not administer a second Miranda warning before he

resumed questioning of the Petitioner after the polygraph examination. He said the interview

was videotaped. He agreed that the purpose of the interrogation was to inquire why the

Petitioner failed the polygraph, to get an admission from the Petitioner, and to get a written

confession. He could not remember whether Houston was present for the entire interview,

but he said he would defer to whatever was shown on the videotape. He agreed that during

the interview, he and Houston used phrases such as, “You need to put this behind you,” “You

need to get straightened out and move on,” and “You need to fess up, it’s the best thing you

can do.” He said Houston told the Petitioner that Houston had not spoken with the district

attorney but that if the Petitioner would cooperate, things would be easier for the Petitioner.

He could not recall whether he told the Petitioner that the polygraph machine did not lie or

whether Houston told the Petitioner, “[J]ail is not in the cards. The parents of the child don’t

seem to care or be concerned. I just don’t see nothing bad coming out of this maybe just

simple assault.” He agreed that the videotape would give an accurate account.

On cross-examination, Mr. Widener testified that in every case, he wanted to uncover

the truth. He acknowledged that when a suspect submits to a polygraph examination, he

explains to them that they are doing so voluntarily. He agreed that he told the Petitioner that

the Petitioner was free to leave at any time and that he advised the Petitioner of his Miranda

rights even though he was not required to do so. He agreed that he talked to the Petitioner

in a “folksy” way and that he did not raise his voice. He did not agree that his job was to

make sure the State got a conviction or to help the Defendant’s case. He said that if another

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officer did something inappropriate, unethical, or illegal during a polygraph examination, he

would stop the examination. He said that he would not continue the examination of a person

who seemed to be overly distressed and that he did not feel that he or Houston had unduly

pressured the Petitioner. On redirect examination, Mr. Widener identified the Petitioner’s

written statement, which had been taken by Houston several days before the polygraph exam,

and the statement was received into evidence.

Marena Martin, a child protective services investigator with the Department of

Children’s Services (DCS), testified that she conducted an investigation involving the

Petitioner in December 2003. She said that she sent a “letter of indication” to the Petitioner

after her child protective services investigation was complete and that the Petitioner did not

make any contact with DCS. She said she received a letter from trial counsel asking her what

meetings had taken place and what had been documented. She said that there was a

videotaped forensic interview with the victim and that DCS also interviewed the Petitioner’s

children and three other children who were reported to have been in contact with the

Petitioner. She said that a representative from the district attorney general’s office was

present during the interview with the victim, during the protective investigative team review

meeting, and probably again before the trial. She could not remember when the DCS file was

turned over to the prosecutor. The DCS file was received into evidence under seal for in

camera viewing by the trial court.

On cross-examination, Ms. Martin testified that no additional allegations or charges

were brought as a result of the interviews with the other children. On redirect examination,

Ms. Martin testified that the other children did not report any wrongdoing by the Petitioner.

The Petitioner testified that he had never been in trouble with the police or arrested

before his conviction. He agreed that he had never been given a polygraph examination, that

he had never been interrogated by the police, and that he had never been in a courtroom on

a criminal matter before this case. He said that he had been a reserve officer with the Loudon

County Sheriff’s Department. He said that he received a call on December 20, 2003, asking

him to meet John Houston at the Loudon County Justice Center. He said that Houston was

a friend with whom he had twice ridden on patrol and that he assumed the request was related

to his work. He said that Houston asked him if he knew J.B. and that he replied his son and

J.B.’s brother were best friends. He said that Houston informed him that J.B. claimed he had

put his hand inside her pants. He said he denied it. He said that he also made a written

statement denying the allegation in response to Houston’s request, that Houston asked him

to take a polygraph test, and that he agreed.

The Petitioner testified that he telephoned J.B.’s mother and that J.B.’s mother stated

she believed the Defendant and also believed her daughter. The Defendant said he told J.B.’s

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mother that she had done the right thing, “which any concerned parent would have done and

which . . . I would have done.” He said he did not inquire about J.B.

The Petitioner testified that Houston asked him to meet at the Blount County Justice

Center to take a polygraph exam, which he did. He said that he, Houston, and Widener met

for quite a while before he took the exam and that they took about a thirty minute break after

the exam. He said he did not receive a second Miranda warning before questioning resumed.

He said that he could not remember receiving the first Miranda warning but that he must

have because he had seen the waiver form which he had signed. He said Widener told him

that the polygraph computer indicated he failed the polygraph examination but that what

mattered was Widener’s opinion and Widener believed he had lied. He said that after

questioning resumed, Widener and Houston tried to get him to say he did “something” to

J.B., and he kept saying that he had not. He said they told him that “it will go away” if he

admitted to touching J.B., that he might have done something to J.B. and not remembered,

that J.B. alleged more than one incident, that J.B.’s parents were more concerned about their

son remaining best friends with his son, and that the district attorney would charge him with

assault at most. He said that he told them any placement of his hands on J.B. had not been

sexual and that it would have been to keep her from falling off his lap while they sat at the

computer. He said they told him to “just say yes.” He said he did not give a written

statement. He said he told them he would have to make up a story and would need time.

The Petitioner testified that he did not suspect he would be charged but that his in-

laws encouraged him to hire a lawyer, which he did about a week after he took the polygraph

examination. He said that he hired trial counsel for $3,000, which he understood would

cover the handling of his case. He said that there was never any talk of additional charges

and that after the plea hearing, his mother received a bill for an additional $12,712.50. He

said that he told counsel about the DCS interviews with the other children but that trial

counsel did not do anything about them. He said that he appeared in court at the indictment,

that counsel went into the “back room,” and that when counsel returned, counsel stated trial

was set for June 2, 2005. He said that he did not appear before a judge and that from the day

he was indicted until the day of the plea, he was not in court again about his case. He said

that toward the end of his case, he spoke with counsel on the telephone and saw him perhaps

three or four times. He said that the only discovery he received from counsel was a copy of

his videotaped interview. He said that he did not receive a copy of the district attorney’s file

and that he first viewed the file after post-conviction counsel obtained it. He said he did not

see his written statement from December 20 until a few weeks before the post-conviction

hearing. He said that he never saw the videotape of J.B.’s interview with DCS. He said he

asked trial counsel to view it but that counsel said the district attorney would not allow the

Petitioner to see it. He said that counsel had watched it and had told him it was “pretty

believable.” He said counsel never discussed a trial strategy or a defense theory. He said

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counsel wanted to know what he planned to say and that they reviewed his planned

testimony. He said counsel did not review the elements of the offense charged or speedy trial

issues. He said counsel told him it was a good idea to delay his trial as long as possible

because stories change or people pass on or retire. He said he never heard of a plea bargain

until the day of the trial.

The Petitioner testified that about two or three weeks before trial, trial counsel told

him that he should plead guilty and accept an eight-year sentence. He said counsel advised

him that because of a recent television news broadcast about his case, if he went to trial, the

jury would find him guilty and he would be sentenced to twelve years at one hundred percent

service. He admitted that he felt as if he had said “yes” when questioned about touching J.B.,

and he said counsel told him he would need to explain in his testimony “why I said yes after

four hours talking with Houston and Widener.” When asked if counsel had discussed his

statement and whether it might be suppressed, he replied, “[Counsel] said that due to it being

a polygraph examination that it’s possible we might not be able to have the tape viewed while

Mr. Widener was in the room due to the fact that he was a polygraph examiner. And he was

going to try to do that.” He said that on the day of trial, however, the bailiff brought in a

television monitor in order that the videotape could be viewed. He said counsel told him they

were going to watch approximately ten minutes where only Houston and he appeared. He

said counsel did not inform him that counsel had filed motions to suppress or to dismiss. He

said that on the morning of trial, he anticipated going to trial, that he had not entertained any

notion of pleading guilty to anything, and that he had told counsel this on three to five

occasions. He said he told counsel he was innocent and wanted a trial. He said that in

response to J.B.’s mother’s statement to the media that he needed to pay and that there were

many more children who had been involved, counsel responded to the media that the

Defendant was innocent and planned to go to trial.

The Petitioner testified that his family accompanied him to the trial. He said that trial

counsel took them into the jury room and told them that due to the pressure of the news

broadcast, the jury would find him guilty and sentence him to twelve years. He agreed that

he believed he would receive a twelve-year sentence if he went to trial. He said counsel left

the room and came back with a plea offer of sexual battery by an authority figure, with a

sentence range of three to six years and service at thirty percent. He was told that he would

have to “take all six years.” He said that when he asked about serving three years, counsel

replied, “30 percent of six they might go with, 30 percent of three they won’t.” He said that

another offer contained the word “attempted” and that counsel and counsel’s assistant

explained he would have to serve thirty-five percent of six years, which was about one and

one-half months longer. He said that shortly before noon, counsel said the judge wanted an

answer. He said he chose to take what he thought was the shorter sentence. He said that

counsel told him the sentence would be a maximum of 1.8 years and that with “good time”

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it would shorten to about one year and two or three months. He said counsel told him that

if he took the plea offer, he would be out of prison in time to teach his son to drive.

The Petitioner testified that trial counsel explained that a plea of nolo contendere

meant that he was not admitting guilt. He said he again told counsel that he did not do

anything to J.B., that he understood the nolo contendere plea to mean that he did not do

anything, but that one year would be similar to going overseas as he had done in the Navy.

He said counsel and counsel’s assistant assured him that at the end of a year, he would be

able to put the whole thing behind him. He said he did not understand and counsel did not

explain that a nolo contendere plea was treated in the law as a guilty plea. He said that

counsel never mentioned parole or that a psychiatrist or licensed psychologist would have

to certify that he did not pose a likelihood of committing a sexual offense in order that he be

released on parole, pursuant to Tennessee Code Annotated 40-35-503(c).1 He said that he

had since been up for parole and that he was told to “take it to the door,” meaning that he

would have to serve the entire sentence of which over four years remained. He said that

counsel did not explain the lesser-included offenses of aggravated sexual battery or tell him

that if he had gone to trial, the jury would have been able to determine whether he was guilty

of a lesser-included offense. He said counsel did not say that sexual battery by an authority

figure was a lesser-included offense of aggravated sexual battery. He agreed that he pleaded

guilty to sexual battery by an authority figure to avoid the twelve-year sentence at one

hundred percent service and that he had since learned sex offenders were usually denied

parole. He said that he would have proceeded to trial had he known.

The Petitioner testified that neither trial counsel nor the trial court informed him that

his indictment for aggravated sexual battery required amendment to sexual battery by an

authority figure in order for the plea to be valid. He said that counsel also represented him

in his divorce and advised him to “just say yes” when he appeared before the judge, even if

he were unsure of a response. He said that this instruction affected him at the guilty plea

hearing because he felt he was only permitted to answer “yes.” He said that during the plea

hearing, there was a loud argument between his mother and his ex-wife in the hallway

1

T.C.A. § 40-35-503(c) provides in pertinent part:

No person convicted of a sex crime shall be released on parole unless a

psychiatrist or licensed psychologist designated as a health service provider

has examined and evaluated the inmate and certified that, to a reasonable

medical certainty, the inmate does not pose the likelihood of committing

sexual assaults upon release from confinement. The examination and

evaluation shall be provided by psychiatrists or licensed psychologists

designated as health service providers whose services are contracted or

funded by the department of correction or the board of paroles.

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outside the courtroom that distracted him. He agreed that the transcript from the guilty plea

hearing reflected that he nodded his head when the trial court asked him if he understood the

plea agreement. He said this occurred while he was distracted by the commotion in the

hallway.

The Petitioner testified that he asked trial counsel during the guilty plea hearing what

would happen if he changed his mind and counsel responded that “once you take the plea it’s

over.” He said that about two weeks later, he called counsel and stated he no longer thought

the plea bargain was a good idea. He said that counsel replied that he received a “great deal”

and that a year would pass quickly. He said he asked if he could set aside the plea and

counsel again stated that it was a “great deal.” He said he did not believe that his plea was

made voluntarily because counsel coerced him to take the plea because it was the “easy way

out” for counsel. He said he would not have taken the plea if he had known that he was

going to have to serve a six-year sentence in confinement. He said that from what he had

learned since the guilty plea hearing, he did not believe that counsel had ever been prepared

for the trial and that counsel’s lack of preparation affected the advice he was given. He said

he never saw a copy of the indictment prior to the plea hearing.

On cross-examination, the Petitioner would not agree that he wanted to have the case

resolved quickly. He said trial counsel told him the case would take a long time. He agreed

that initially, he did not think the case was a “big deal” because he had done nothing wrong.

When asked whether he remembered his girlfriend’s stating that she would convict him after

watching his videotaped interview, he responded that his girlfriend also said she would want

to see all the evidence. He said counsel told him that things looked bad for him. He agreed

that he did not have to take the polygraph examination, that he went voluntarily, that he could

have left at any time, and that he received Miranda warnings. He said that he understood his

rights and that he had seen them before on television. He said that although Widener told

him he was free to leave, he felt he could not until the police got a confession. He

acknowledged that he walked out at the end of the interview without giving the officers a

written statement. He said that Houston told him that he had some time to make up a story

and that he was supposed to contact Houston after Christmas and have a statement ready.

When asked why it took time to tell the truth, he replied, “It doesn’t. But it takes time to

make up a story.” When asked why he would do that, he replied, “They told me everything

I did was wrong. And the only way they could get rid of it was to say that I did it.” He

agreed that he never provided a written statement following the videotaped interview.

The Petitioner testified that he was told a $3,000 retainer was required by trial

counsel. When asked if he understood what the word “retainer” meant, he replied that he

“thought it was kind of expensive to have a case for $3,000.” He said he did not recall

counsel’s telling him that there might be more fees, nor did he recall counsel discussing the

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elements of the charge or of any other offenses to which he might have pled guilty. He said

he and his girlfriend investigated the elements of the charge on the Internet. He said counsel

never told him he might have to serve more than thirty percent of the sentence for sexual

battery by an authority figure. He said counsel guaranteed him he would be released in a year

and a few months. He said he did not remember the district attorney general’s announcement

of the plea agreement and sentence recommendations at the guilty plea hearing because there

was a commotion in the hallway. He said that there was a pause in the proceedings and that

the bailiff left the courtroom. He said he did not remember nodding yes to the trial court’s

question, “Is that the way you understand the agreement?” He said he did not nod because

he was told to “say yes or no” when he was in front of the judge or was asked a question. He

said that he asked counsel to view the videotape of the victim’s statement and that counsel

told him the district attorney would not allow it. He said his family members encouraged him

to take the plea offer because it was the better of two options. He acknowledged that the trial

court informed him he had a right to go to trial, that a jury was ready, and that he had the

right to compel and confront witnesses. When asked whether he understood that there was

always a gamble when a case proceeded to trial, he replied, “It wasn’t a gamble in this case.

I was told that if I went to trial I would be found guilty. It wasn’t a question of they may or

may not. [Trial counsel] told me they would find me guilty and they wouldn’t believe me[;]

they would believe her.” He said that he was told he would have to register for only ten years

on the sex offender registry if he accepted the plea offer and that this meant a lot to him. He

agreed the nolo contendere plea also meant a lot to him.

William Nicholson, the Petitioner’s son, testified that he was present for some of the

discussions between the Petitioner and trial counsel. He said that according to trial counsel,

the Petitioner was to be released after serving thirty percent of six years. He said he thought

the Petitioner would be released either before or when he got his driver’s license, which

would have been within a year and eight months. On cross-examination, Mr. Nicholson

acknowledged that he was not present for all the discussions about the plea offer and that he

could not remember exactly which words were used. He recalled the Petitioner’s being told

that he would have to serve thirty percent of his sentence in confinement.

Alice Baumeister, the Petitioner’s mother, testified that she met with trial counsel after

the Petitioner was indicted and that trial counsel said the Petitioner was the worst witness in

the world, that he had no defense for the Petitioner, that the jury would believe J.B., and that

the best thing would be for the Petitioner to plead guilty. She said that counsel told her the

district attorney would not allow them to view the video of J.B.’s statement. She said that

she encouraged her son to plead guilty because counsel stated the court would find him guilty

and the Petitioner would be “gone” for twelve years. She said that she also encouraged the

Petitioner to take the plea offer because he would be required to register with the sex

offender registry for only ten years. She said that she understood the Petitioner would be

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incarcerated for only one and one-half years. She said that they discussed the fact that the

Petitioner would probably miss his daughter’s high school graduation but that he would be

out of prison in time to teach his son to drive.

On cross-examination, Ms. Baumeister testified that she met with trial counsel at his

office maybe twice and that she inquired about a psychosexual evaluation. She said that

counsel responded that it was too soon for such an exam and that they would need to wait

until closer to the trial. She did not agree that she offered counsel $25,000 to have the case

dismissed, but she said she offered him $10,000. When asked how counsel was supposed

to accomplish a dismissal, she responded, “[S]uppos[ab]ly he had a defense. Finally.”

Joe Baumeister, the Defendant’s stepfather, testified that he was present for the first

half of the discussion between the Petitioner and trial counsel concerning the plea agreement.

He said that counsel recommended the Petitioner accept the plea because counsel did not

think counsel could win the case. He said counsel advised that the Petitioner would have had

to serve twelve years in confinement if the Petitioner went to trial. He said the plea offer was

for three to six years, and with parole, he expected the Petitioner to be released in eighteen

months or less. On cross-examination, Mr. Baumeister confirmed that he was not present for

the last half of the discussion and that the final decision was not made in his presence.

Trial counsel testified that he had been licensed to practice law in Tennessee in 1973

and that he practiced until 1996, when he left to work in the trust department of a bank. He

said he did not keep his law license up to date during the time at the bank. He said he

returned to practice in 2001.

Trial counsel testified that he met with the Petitioner before the Petitioner had been

charged with a crime. He said that he did not enter into written contracts with clients and that

he verbally informed the Petitioner of his fee. He said that the Petitioner paid the retainer in

two installments and that he believed the Petitioner paid him for handling the Petitioner’s

divorce. He said that he explained the retainer and hourly billing arrangement. He said that

the itemized statement from February 8, 2006, was prepared by his staff by their going

through his file, relying on his notations, and calculating the time spent on each task. He said

he did not always keep a contemporaneous record of his time. He said that he approved the

statement.

Trial counsel testified that the district attorney general’s office had an “open file”

policy and allowed him to view the Petitioner’s file and to copy what he wanted. He said he

filed a discovery request. He said that he did not give the Petitioner copies of the file’s

documents but that he gave the Petitioner a copy of the Petitioner’s videotaped statement.

He said that he viewed J.B.’s statement at the district attorney’s office. He could not recall

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whether the district attorney told him that he could not have a copy of the videotape, but he

believed he was not entitled to a copy because of the confidentiality rules involving minor

children. He said the Petitioner did not ask to see the videotape of J.B. He agreed that his

billing statements showed he met with the Petitioner in January 2004 and that he did not meet

with the Petitioner again until January 2006. He claimed that he had met with the Petitioner

a few other times, although he agreed that none of those meetings were reflected on the

billing statement. He acknowledged that the billing statement showed he reviewed the

videotape of the Petitioner’s statement one week before the trial. He agreed that the billing

statement listed 5.4 hours of reviewing videotape on January 28 and 5.5 hours of reviewing

videotape and research on January 29. He explained that he was documenting the statements

on the videotape by a numbering system in order to locate specific portions at the trial.

Trial counsel agreed that four witnesses were listed on the Petitioner’s indictment.

He said that he interviewed Houston and that he could not remember whether he talked to

Houston about the DCS file. He said he did not make a memorandum of the interview but

that he might have made notes. He said he spoke to someone at DCS, but he could not

remember whether it was Ms. Martin. He recalled that the other children’s father told him

that DCS had interviewed them and that the father was glad the Petitioner had not molested

them. He said he did not interview the other children because he did not believe the

interviews would have been exculpatory to the Petitioner. He would not agree that he should

have filed a motion for exculpatory evidence and asked for memoranda of the DCS

interviews with the other children. He said that he attempted to talk to J.B.’s mother via

telephone and that she refused. He said he did not attempt to interview J.B. He said he did

not interview Widener about the procedures for polygraph exams. He would not agree he

told the press that the Petitioner was innocent and that he would fight in court. He said that

he conducted most of the research himself and that he did not have an investigator.

Trial counsel testified that he filed motions in limine and to suppress about a week

before the trial. He said that he would not disagree with the court record showing the

motions were filed two days before trial. When asked if he knew that filing motions two

days before trial was too late, he replied that the motions were not necessarily late if the

purpose was to prompt the district attorney to negotiate. He said that he was familiar with

local rule 201(B), which stated that absent compelling reasons, new motions filed within ten

days of trial would be considered not timely filed and would be summarily overruled. He

acknowledged there was no hearing on the motion to suppress.

Trial counsel could not recall the instructions he gave the Petitioner regarding the

Petitioner’s statements to the court about the Petitioner’s divorce. He agreed that the

Petitioner persisted in saying that he had done nothing wrong and wanted a trial, even on the

morning the trial was scheduled. He said he told the Petitioner before the trial that if the

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district attorney would reduce the charges, he would recommend the Petitioner accept a plea

offer because he felt J.B. would make a credible witness and the Petitioner would not. He

disagreed that he recommended the Petitioner accept an eight-year sentence. He said the

Petitioner’s recollection that he stated “take the plea or get twelve years in jail” was not true.

He disagreed that he told the Petitioner he would have to serve only thirty percent of the six-

year sentence for sexual battery by an authority figure. He said that he told the Petitioner he

would have to serve at least thirty percent of the sentence. He said that he probably did not

tell the Petitioner that sexual battery by an authority figure was not a lesser included offense

of sexual battery, that the indictment would need to be amended, or that the Petitioner would

need to consent to an amended indictment. He said that he explained to the Petitioner the

range of punishment, the requirements for the range, and the consequences regarding the sex

offender registry. He said that he also explained that the Petitioner was allowed time off for

good conduct and that the plea did not mandate a day-for-day sentence. He could not

remember whether he reviewed the elements of the offense with the Petitioner. He assumed

but could not remember, whether he reviewed the statutes regarding a sex offender’s release

from custody, including the provision that the Petitioner would have to be certified by a

mental health expert. He said that he probably did not tell the Petitioner that sex offenders

usually do not get out of jail early or that the district attorney general likely would oppose

parole. He could not remember whether the Petitioner contacted him after the plea hearing.

On cross-examination, trial counsel testified that the materials in his file were made

available to the Petitioner. He agreed that having once been an assistant district attorney

general, he was familiar with the district attorney’s open file practice. He agreed that if the

Petitioner had indicated a desire to see J.B.’s videotaped statement, he would have arranged

it and taken the Petitioner to see it. He acknowledged that the Petitioner did not want to be

on the sex offender registry for life and that he researched the sex offender registry rules. He

said that he reviewed every element of the charged offense and the offense to which the

Petitioner pled. He agreed that his usual experience with the local rule regarding late-filed

motions was that the court leniently granted continuances. He explained the trial strategy had

been to assert that the Petitioner was not guilty, that the Petitioner had been misled and

admitted something he should not have, that there was a lack of opportunity to commit the

offense, and to limit the charge to one occurrence. He said that the Petitioner’s mother

offered him $25,000 to make the case “go away” and that he refused it. He said the

Petitioner’s mother told him after the plea hearing that she was pleased with the outcome and

was going to pay the rest of his fee, which he estimated to be $10,000. He said he had not

been paid.

Trial counsel testified that he did not promise the Petitioner he would be released after

serving thirty percent. He said he informed the Petitioner that the Petitioner would have to

go before the parole board. He said the disturbance during the guilty plea hearing occurred

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after the Petitioner’s plea had been entered, and he agreed that it did not make sense for the

Petitioner’s family to be outside the courtroom during the hearing.

On redirect examination, trial counsel testified that it was not true that he waited until

January 2006 to begin serious work on the Petitioner’s case. He recalled talking with the

Petitioner several times and meeting with the Petitioner and his girlfriend. He said he waited

until two weeks before trial to do the majority of the trial preparation because he avoided

having to prepare two or three different times. He said that he no longer had his trial

notebook from the case but that he still had some of the notebook’s contents. He produced

“at least a partial outline of [an] opening statement” and part of J.B.’s cross-examination,

which were received into evidence.

Knoxville attorney Jonathan Cooper testified that he had practiced law for fifteen

years and that his practice consisted almost exclusively of criminal defense. He said that he

had represented persons accused of sex offenses “many times.” He said that he had reviewed

the court file, the district attorney’s file, the plea hearing transcript, and the discovery,

including two videos, and that in his opinion trial counsel did not render effective assistance.

He said his opinion was based on trial counsel’s investigation and preparation of the case and

counsel’s representation of the Petitioner on the morning of the plea hearing. He based his

opinion on the Petitioner’s statements as well as the other witnesses’ testimony at the post-

conviction hearing. He said trial counsel’s performance failed because counsel did not

interview witnesses, did not prepare the Petitioner and witnesses for trial, did not

communicate with the Petitioner, did not provide discovery to the Petitioner, and waited until

the last two weeks before trial to “do the heavy lifting in his case preparation.” He said

counsel’s failure to interview witnesses would not have allowed counsel to prepare

adequately for the trial. He said counsel should have sought the statements from DCS

concerning the other children because it would have been important for a jury to hear that

similarly situated children who had been in the Petitioner’s house had not made allegations

of abuse. He said that counsel’s filing motions two days before trial was not adequate and

that it did not appear from the plea hearing transcript that counsel was willing to seek a

continuance to give him more time to litigate the case. He said that the motion to suppress

was critical and that counsel could not have effectively represented the Petitioner without

having prosecuted it. He said that if the statement had been suppressed, half of the State’s

case would have been lost and that even if the statement had not been suppressed, counsel

would have gained valuable testimony and insight into the State’s case.

Mr. Cooper testified that any time a client contemplates a verdict or a plea to a sex

offense, he informs them that the sentence will be different because parole eligibility for sex

offenders is different. He said that the percentage of time after which sex offenders are

eligible for parole is meaningless because they have to be certified eligible for release, which

-12-

does not happen on their release eligibility date. He agreed that trial counsel should have

explained this to the Petitioner. He said that he was familiar with a Tennessee Court of

Criminal Appeals case in which the dissenting judge stated that the odds of a person

convicted of a sex crime being released on parole were slim to none.2

On cross-examination, Mr. Cooper testified that he had not tried any cases in the

district in which the Petitioner had been prosecuted. He said he did not know the custom and

practice of the trial court regarding late-filed motions before hearing about it at the post-

conviction hearing. In response to a question regarding the custom and practice of the court

regarding continuances, he said that in his experience, they were liberally granted. When

asked if these were the sorts of things he should have investigated before coming to court to

render an opinion, he replied that he did not base his opinion on the trial court’s policy for

granting continuances. He said he did not interview the prosecuting attorney or the State’s

attorney handling the post-conviction hearing. He would not agree that it would have been

a good idea to interview the State’s attorneys because he did not know how the interviews

would be relevant. He said he did not speak to the trial judge about the alleged disturbance

in the courtroom. He said he did not talk to the court reporter, the bailiffs, or the court

officers from the day of the guilty plea hearing because the disturbance in the courtroom did

not factor into the terms of his opinion. He agreed there was a dispute as to what occurred

during plea negotiations. He said he was being paid an hourly rate of $225 for his work on

the case.

The trial court received into evidence the Defendant’s videotaped statement. In our

view, it reflects that after the Defendant submitted to the polygraph examination and was

informed that he had failed it, the following exchanges occurred:

Detective Widener: You failed. Every time you were asked if

you touched J.B., you failed. That’s a

foregone conclusion. We need to figure

out was it three or four times and nothing

more, or anything more than touching.

...

The Defendant: I don’t recall putting my hand deliberately

into her pants. I’ve been thinking about

this all weekend. Did I do this? Was it

wrong?

...

2

See Jerome William Devereaux v. State, No. E2004-01891-CCA-R3-PC, Jefferson County (Tenn.

Crim. App. June 8, 2005) (Tipton, J., dissenting), app. denied (Tenn. Oct 24, 2005).

-13-

Detective Widener: Let me ask you this from being an

investigator: Is [J.B.] the only child that

you’ve ever touched inappropriately?

The Defendant: Yes–yes.

...

Detective Widener: How long back do you remember it

happened?

The Defendant: I only recall the one time, maybe two

times. She sat on my lap–

Detective Widener: How long back does that go?

The Defendant: Six months, a year.

...

Detective Widener: And there was never anything other than

the touching? Right?

The Defendant: That would have been it, yes. She sat on

my lap, playing a game, my hands are

holding her so she don’t fall–

Detective Widener: Do you remember putting your hand into

her panties?

The Defendant: I don’t remember any arousal–

Detective Widener: Let’s just put the arousal out–

The Defendant: Or any intention.

Detective Widener: You remember it actually happening,

though. You have to.

The Defendant: I have to just since you’re saying it’s in

there (pointing to the polygraph

examination results).

...

Detective Houston: I’ve got down in here “a couple of times.”

The Defendant: No. Not a couple times.

Detective Houston: How many?

The Defendant: The one occurrence is all I can remember

... .

...

Detective Houston: You stuck your hand down there. You

know you did.

The Defendant: That’s what all the tests said.

...

Well, you know, anyways, since I said

before, I mean, six months ago, just

-14-

whatever got me. I don’t know what

date–eight months, six months, a year,

whatever it was, it’s kinda like “this ain’t

right, let’s throw it out the window.” And

after that–this ain’t right. Start over. Keep

going forward. . . . The one occurrence

that it happened. The next time she’s on

piggyback, I don’t think anything about it.

Okay. Bye. Have a good day. Just the

one occurrence. . . . It happened–it was

done, whatever it was.

...

Detective Widener: Just one time?

The Defendant: Yes.

Detective Widener: Remember when it happened?

The Defendant: No.

Detective Widener: About?

The Defendant: Yeah, . . . eight months ago.

...

I don’t recall. I want a little time to think

about the whole . . . I mean I . . . so I can

get it all straight instead of making it up

and adding–

Detective Widener: What was it that you did? That you

realized you did something wrong.

The Defendant: Had my hands in her pants.

Detective Widener: In her panties?

The Defendant: (nods)

In its written order denying post-conviction relief, the trial court noted the conflict in

testimony but did not make a credibility finding. The court stated:

A. The Petitioner alleges his decision to plead was based

upon his having been told that he would be released from prison

after “30% of six years[.]” The testimony presented is in

conflict. The Petitioner maintains he was so informed while

counsel testified he never assured Petitioner he would be

released after service of 30%. The Petitioner’s other witnesses

testified to conversations concerning a 30% release date but did

-15-

not testify Petitioner was explicitly told he would be released

after such percentage.

Very importantly, the Court notes that during the entry of

the plea, the fact that the Department of Correction would be the

agency governing his release date by parole was stated, as was

the fact that while he was pleading as a Range I Standard

Offender, he could do things that might cause him to serve more

time. Most importantly, it was clearly stated that he needed to

understand that this Range I Standard is an eligibility date and

did not mean that he would be released precisely at that time.

The Petitioner indicated that he understood his agreement in that

way by nodding yes as to his understanding. The Court finds

that the Petitioner has not carried his burden of proof as to this

issue.

B. Petitioner maintains that counsel unreasonably failed

to explain the nature and elements of the charge against him or

of the various charges discussed in terms of a plea. Original

counsel for the Petitioner testified that he was sure he had

covered the elements of the offense with the Petitioner prior to

the time of plea in that that was his practice in all cases. Trial

counsel testified that the Petitioner’s own family members

opined to him that the Petitioner would be found guilty by a jury

after they reviewed the evidence against him, and Petitioner in

his Petition acknowledges that he gave a confession on video,

albeit Petitioner claims said confession was false. It is the

Court’s opinion that Petitioner’s decision to plead guilty was a

tactical decision based upon the facts of the case and that even

if the Petitioner did not have a clear understanding as to each

and every element of each and every offense that might be

involved in the case, a more complete understanding by him of

the specific elements of any of the possibly involved offenses

would not have resulted in a different decision by him or a

different result. In any event, the Court does not find that he has

established this ground by clear and convincing proof nor that

he was so prejudiced by not understanding the elements of each

and every such offense. This ground is without merit.

-16-

C. Petitioner claims that trial counsel unreasonably failed

to prepare a defense for Petitioner at trial. Although not

elaborated upon within paragraph c, the Court takes this ground

to include Petitioner’s allegations with regard to his statement

and the potential suppression thereof.

At hearing the Court received testimony concerning the

statement made by the Petitioner which was the subject of the

Motion to Suppress filed by trial counsel. Had a hearing on said

Motion been held before this Court prior to entry of a plea,

based upon the proof presented at hearing the Court would not

have suppressed such statement, feeling it to have been

voluntarily and intelligently made. From the testimony at

hearing it appears the State conditioned the plea agreement

ultimately entered into upon the Petitioner not pursuing said

Motion to Suppress in any event. Finally, the Court notes that

even if said statement had been suppressed, the State would

have been allowed to use it in cross examination should the

Petitioner have testified and denied the allegations of the victim

herein. Being fully cognizant of a defendant’s right not to

testify, in the absence of denial by the Petitioner at a trial, his

odds of success would have been remote. The Court feels that

the decision not to pursue the Motion to Suppress was a tactical

one and within the realm of competent representation of the

Petitioner. Said ground is without merit.

Petitioner alleges that the Court was without jurisdiction

to accept the plea herein in that Sexual Battery by an Authority

Figure was not and is not a lesser included offense of

Aggravated Sexual Battery. Sexual Battery by an Authority

Figure was listed as the conviction offense on not only the

Judgement Order but also on the negotiated plea agreement

signed by the Petitioner and his trial counsel. Under the

applicable case law, the Court finds that the proceedings herein

sufficiently put the Petitioner on Notice of the charge for which

he was convicted and gave the Court jurisdiction to accept the

plea entered herein. The Court finds the Petitioner gave

knowing consent to what amounted to an amendment of the

indicted charge and pled to same for tactical reasons to avoid the

-17-

risk of a much more significant sentence should he have been

found guilty by a jury.

While the stipulation of fact did not cover all elements of

Sexual Battery by an Authority Figure, this is not a

constitutional defect and is not sufficient for Post Conviction

Relief. The Petitioner’s plea herein waived all non-

jurisdictional defects. This ground is without merit.

Petitioner alleges that counsel failed to fully advise him

of the impact of his plea in terms of the Sex Offender Registry

Laws. The Court notes that it is not alleged nor has it been

shown by any proof that counsel gave the Petitioner erroneous

advice but rather that the advice given by him was incomplete.

The Petitioner did not indicate in his testimony that these

matters were significant in his determination of whether to

accept or reject the plea offer ultimately entered into and clearly

did not establish that but for counsel’s advice concerning the

Sex Offender Registry issues the result or his decision would

have been different. This ground is without merit.

ANALYSIS

The Petitioner contends that the trial court erred when it dismissed his petition for

post-conviction relief. He argues that he received the ineffective assistance of counsel and

that, as a result, his plea was not voluntarily, knowingly, or intelligently made. In this regard,

the Petitioner lists six points on which he claims that counsel rendered ineffective assistance.

The State counters that the trial court properly determined that the Petitioner received the

effective assistance of counsel.

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).

-18-

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 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 professional 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).

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.

-19-

A. Motion to Suppress (Petitioner’s issue I.A.)

The Petitioner argues that he received the ineffective assistance of counsel because

trial counsel filed a motion to suppress and a motion to dismiss two days before the trial,

despite knowing that a local court rule mandated summary dismissal of the motion unless it

was filed at least ten days before trial. He argues that knowledge of the outcome of the

suppression hearing was and should have been a critical factor in his decision to plead guilty.

He also claims that his statement to Widener and Houston was not knowingly, voluntarily,

or intelligently made and would have been suppressed had counsel prosecuted the motion.

The State counters that the plea offer was conditioned on the Petitioner’s withdrawal of the

motion to suppress and that counsel made a tactical decision not to pursue it. Insofar as the

plea offer was conditioned upon the Petitioner’s withdrawal of the motion, we agree with the

State.

This court has stated that if arguable grounds exist to suppress incriminating evidence,

then an attorney, as a zealous advocate for the client, should move to suppress that evidence.

See Robert C. Bellafant v. State, No. 01C01-9705-CC-00183, Maury County, slip op. at 10

(Tenn. Crim. App. May 15, 1998). Where there are no arguable grounds to suppress, the

attorney is not ineffective by refraining from filing a motion to suppress. See Stephen

Bernard Wlodarz v. State, No. E2002-02798-CCA-R3-PC, Hawkins County, slip op. at 7

(Tenn. Crim. App., at Knoxville, Dec. 3, 2003), app. denied (Tenn. May 17, 2004). Even if

an attorney’s failure to timely file the motion was deficient performance, the Petitioner must

demonstrate that he was prejudiced by the deficiency.

In addition, the fact that a particular strategy or tactic failed or even hurt the defense

does not, alone, support a claim of ineffective assistance of counsel. Vaughn v. State, 202

S.W.3d 106, 121 (Tenn. 2006) (citing Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.

App. 1992)). A petitioner “may not second-guess a reasonably based trial strategy by his

counsel, and cannot criticize a sound, but unsuccessful, tactical decision made during the

course of the proceedings.” Dellinger v. State, 279 S.W.3d 282, 295 (Tenn. 2009) (quoting

Adkins v. State, 911 S.W.2d at 347). This court has stated that the abandonment of a motion

to suppress in exchange for a plea agreement is not ineffective assistance when it is a tactical

decision to avoid the risk of a greater punishment at trial. See Shon Maurice Pierce v. State,

No. W2005-01493-CCA-R3-PC, Dyer County, slip op. at 5 (Tenn. Crim. App. Mar. 16,

2006); see also Gary Randall Yarnell v. State, No. E2004-01762-CCA-R3-PC, Blount

County, slip op. at 7 (Tenn. Crim. App. Aug. 15, 2005), app. denied (Tenn. Feb. 6, 2006).

At the evidentiary hearing in this case, the evidence was undisputed that the Petitioner

made an inculpatory statement to the police before he hired trial counsel. In a videotaped

-20-

interview after the Defendant had voluntarily submitted to a polygraph examination, the

Defendant admitted that he put his hands inside J.B.’s panties.

Counsel testified that he had reviewed the Petitioner’s videotaped statement and J.B.’s

videotaped statement and that he did not believe the Petitioner would make a credible

witness. He said that he filed the motion to suppress to prod the State to make a plea offer

because the State had been unwilling to negotiate a plea agreement. He acknowledged that

the motion was filed late, but he noted that the trial court was lenient in granting

continuances. In its order denying post-conviction relief, the trial court found that the

decision not to pursue the motion to suppress was a tactical one. The court noted that the

plea offer was conditioned upon the Petitioner’s not pursuing the motion, and it stated that

it would have denied the motion to suppress because it believed the Petitioner’s statement

was freely and voluntarily given. The record does not preponderate against the trial court’s

determination that counsel’s decisions to file the motion to prod the district attorney to make

a plea offer and not to pursue the motion were tactical ones and that counsel’s decisions were

within the realm of competent representation. The Petitioner is not entitled to relief on this

issue.

B. Exculpatory Evidence (Petitioner’s issue I.B.)

The Petitioner claims that he received the ineffective assistance of counsel because

counsel failed to pursue exculpatory evidence from interviews of children conducted by a

DCS representative. When a Petitioner alleges that he received the ineffective assistance of

counsel based upon counsel’s failure to investigate a case properly, he bears the burden at

the post-conviction hearing of demonstrating what that investigation would have revealed.

Owens v. State, 13 S.W.3d 742, 756 (Tenn. Crim. App. 1999). If counsel failed to

investigate or discover exculpatory evidence, “the determination whether the error

‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will depend

on the likelihood that discovery of the evidence would have led counsel to change his

recommendation as to the plea.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The record

reflects that counsel was aware of the DCS interviews but that he did not seek to review them

because he believed that evidence tending to show that the Petitioner had not harmed

similarly situated children was not exculpatory:

[Post-conviction Counsel:] In your possession you don’t have

any interviews of the [other]

children do you?

[Trial Counsel:] No, I do not.

-21-

[Post-conviction Counsel:] That’s not in the D.A.’s file was it?

[Trial Counsel:] No, sir, it was not. However, I had

totally forgotten about this until it

came up in examination earlier. I

do recall [the other children’s

father] coming to me at some point

and saying that I was representing

[the Petitioner] and someone had

interviewed his children. And you

know he said he talked to them in

great length and that you know he

was lucky that they - [the

Petitioner] had not done anything to

them. And I had forgotten

completely about that.

[Post-conviction Counsel:] Would that be exculpatory as far as

you are concerned?

[Trial Counsel:] No, sir, I didn’t think that the fact

that the other children had been in

the house at some point in time

without having some sort of an

event was exculpatory.

[Post-conviction Counsel:] In all fairness should you not have

filed a motion for exculpatory

evidence and asked for

memorandums of those interviews?

[Trial Counsel:] Well, if I’m not mistaken I think

that part of my discovery motion

did include [a] motion for

exculpatory evidence-

[Post-conviction Counsel:] You did not press that motion to get

those memorandums of

interview[s] which are now part of

the sealed record?

-22-

[Trial Counsel:] No, sir, I took what the D.A. had in

the file in the open file policy.

We note that the interviews with the other children were received into evidence and

placed under seal at the post-conviction hearing, but they are not contained in the record on

appeal. Counsel testified that he filed a discovery motion which included a request for

exculpatory evidence. Counsel also testified that simply because other children did not report

sexual abuse at the hands of the Petitioner did not negate the victim’s allegations. Although

the trial court did not make findings of fact regarding counsel’s decision not to pursue

evidence contained within the DCS interviews, the record does not preponderate against the

trial court’s ultimate determination that the Petitioner failed to show that counsel’s

representation was deficient and that he was prejudiced as a result. He is not entitled to relief

on this issue.

C. Trial Preparation (Petitioner’s issue I.C.)

The Petitioner contends that trial counsel failed to prepare a defense, despite knowing

for two years that the Petitioner claimed he was innocent and wanted a trial, by failing to

interview or subpoena Widener, Martin, the victim’s parents, and the victim. The State

responds that counsel did not render ineffective assistance of counsel because counsel

prepared a defense strategy.

When a petitioner contends that trial counsel’s failure to investigate or interview

witnesses resulted in ineffective assistance, he must be able to “produce a material witness

who (a) could have been found by a reasonable investigation and (b) would have testified

favorably in support of his defense if called.” Black v. State, 794 S.W.2d 752, 758 (Tenn.

Crim. App. 1990). If a petitioner faults counsel for failure to interview known witnesses, he

must likewise show that the witnesses had critical evidence that was not used, which

prejudiced the petitioner. Id. at 757. Thus, a petitioner’s failure to present the testimony of

any witnesses that he claims should have been interviewed is fatal to his challenge of

ineffective assistance based on failure to interview or discover witnesses. Furthermore, when

a petitioner alleges that he received the ineffective assistance of counsel based upon

counsel’s failure to investigate a case properly bears the burden at the post-conviction

hearing of demonstrating what that investigation would have revealed. See Owens, 13

S.W.3d at 756.

At the post-conviction hearing, the Petitioner questioned Widener and Martin, but not

the victim’s parents or the victim. The record shows that trial counsel attempted to interview

the victim’s mother but that she had refused. Nothing precluded the Petitioner from issuing

subpoenas to the victim’s parents or to the victim to appear at the post-conviction hearing.

-23-

Widener’s testimony did not reveal any critical evidence that was not used and which

prejudiced the Petitioner. Martin testified that she interviewed the victim, the Petitioner’s

children, and another family’s children and that none but J.B. reported any inappropriate

sexual contact. Although the trial court did not issue findings of fact concerning trial

counsel’s failure to interview witnesses, the burden was on the Petitioner to show by clear

and convincing evidence what those interviews would have revealed and how the failure to

conduct interviews prejudiced his case. The Petitioner did not carry his burden. The record

does not preponderate against the trial court’s determination that the Petitioner failed to show

that he received the ineffective assistance of counsel with regard to counsel’s trial

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

D. Erroneous Advice (Petitioner’s issues III.A. and III.B.)

The Petitioner contends that his plea was based on trial counsel’s erroneous advice

that he would serve only thirty percent of a six-year sentence in confinement. The State

counters that the Petitioner has failed to prove that but for counsel’s alleged failure to inform

him about the consequences of his sentence, he would have proceeded to trial.

The record shows that during the entry of the plea, the court informed the Petitioner

that the Department of Correction governed the release date, that the release date was “an

eligibility date and did not mean that he would be released precisely at that time,” and that

the Petitioner nodded his head to indicate his understanding. The trial court found that

although trial counsel and the Petitioner’s witnesses testified the Petitioner would have to

serve at least thirty percent of his sentence in confinement, no witness testified that the

Petitioner was explicitly told he would be released after that time.

Given the requirement that a sex offender will not be released on parole until it has

been certified to a reasonably medical certainty that he or she poses no likelihood of

committing sexual assaults, a thirty percent release eligibility date for the Petitioner was quite

unlikely. See Clessie T. Jaco, Jr. v. State, No. M2001-02150-CCA-R3-PC, Maury County,

slip op. at 2 (Tenn. Crim. App. Aug. 14, 2002), aff’d, 120 S.W.3d 828 (Tenn. 2003). This

court has viewed as deficient performance an attorney’s giving erroneous advice to a sex

offender about release eligibility. See Alan Dale Bailey v. State, No.

M2001-01018-CCA-R3-PC, Coffee County (Tenn. Crim. App. Feb. 8, 2002), app. dismissed

(Tenn. July 11, 2002). However, an attorney who merely fails to discuss parole eligibility

with his client does not render ineffective assistance. See Wade v. State, 914 S.W.2d 97, 104

(Tenn. Crim. App. 1995); Ricky Rutledge v. State, No. 01C01-9706-CC-0001, Bedford

County, slip op. at 11 (Tenn. Crim. App. July 2, 1998), app. denied (Tenn. Mar. 1,1999).

-24-

In this case, trial counsel first testified that he would have informed the Petitioner

about release eligibility if that information were contained in the statute defining sexual

battery by an authority figure. Counsel next stated he assumed that he reviewed the release

eligibility statutes with the Petitioner but that he could not remember. Counsel testified that

he probably did not tell the Petitioner that sex offenders usually are not released on parole.

In his brief, the Petitioner notes the prosecuting attorney’s statement, “While it is a Range

One standard plea and sentence there are things that the defendant can do that might cause

him to serve more time. I don’t expect that is going to happen...,” supported his belief that

counsel’s advice about the plea offer was correct.

We note that the statute defining sexual battery by an authority figure does not address

release eligibility. See T.C.A. § 39-13-527. In trial counsel’s June 2, 2006 letter to Charles

Nicholson requesting payment, he wrote:

I am also enclosing herein a copy of the Judgment which

was entered on [the Petitioner’s] case with the Court and I have

highlighted the portion which directly addresses his release

eligibility to be “Standard 30%” which means after he has

served 30% of his sentence. I understand there may be

conflicting stories coming from someone at the prison but this

copy should confirm what agreement was made and entered

with the Court.

The testimony regarding what happened during the plea negotiations was in dispute.

Counsel testified that he recommended the Petitioner accept a reduced sentence that would

keep the Petitioner off the sex offender registry if the State offered it. He said he

recommended this because he did not feel that the Petitioner would make a good witness.

However, counsel said that he never told the Petitioner that the Petitioner would receive a

twelve-year sentence if he did not accept the plea. The Petitioner and his family members,

who were present at various times during the plea negotiations, all testified that the plea offer

was the Petitioner’s only alternative to a twelve-year sentence in confinement. The Petitioner

and his witnesses also agreed that the Petitioner was told he would be released after thirty

percent service. The Petitioner stated that if he had known that in practice, sex offenders

were not released on parole, he would not have pled guilty and would have insisted on

proceeding to trial. He said, without objection, that following a parole hearing, the parole

board told him to “take it to the door,” meaning that he would have to serve his entire

sentence in confinement.

We conclude that the evidence preponderates against the trial court’s findings that the

Petitioner did not establish the allegations of fact by clear and convincing evidence. In our

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view, the record reflects that trial counsel erroneously informed the Petitioner that he would

be released after serving thirty percent of his sentence, when the Petitioner’s chance of being

released was highly unlikely. Four witnesses testified that the Petitioner was told by trial

counsel that he would have to serve only thirty percent of six years. Counsel acknowledged

that he “probably did not” inform the Petitioner that sex offenders are not usually released

on parole. The State’s prosecuting attorney stated at the plea hearing that the State did not

believe the Petitioner would do anything to affect his thirty percent release eligibility. After

the Petitioner was incarcerated, counsel sent a letter to the Petitioner’s brother stating that

the Petitioner would be released after thirty percent service. Finally, the Petitioner stated that

he would not have pled nolo contendere had he known he would have to serve the full

sentence. Taken together, these facts support the determination that the Petitioner was

erroneously informed that he would have to serve only thirty percent of his sentence in

confinement. We conclude that the trial court erred in finding that counsel’s performance

was not deficient and that the Petitioner was not prejudiced by counsel’s deficient

performance. We hold that the Petitioner received the ineffective assistance of counsel, and

the Petitioner is entitled to relief on this issue.

E. Setting Aside the Plea (Petitioner’s Issue III.C.)

The Petitioner contends that he received the ineffective assistance of counsel when

trial counsel failed to seek to set aside his nolo contendere plea within thirty days. The

Petitioner did not raise this issue as grounds for relief in his original or amended petitions for

post-conviction relief. The State has not addressed this issue.

A party may not raise an issue for the first time on appeal, and issues not addressed

in the post-conviction court will not be addressed on appeal. Walsh v. State, 166 S.W.3d

641, 645 (Tenn. 2005); State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App. 1994).

“There is a rebuttable presumption that a ground for relief not raised before a court of

competent jurisdiction in which the ground could have been presented is waived.” T.C.A.

§ 40-30-110(f) (2006). The Petitioner has waived this issue.

F. Involuntary Plea (Petitioner’s Issue II.A., II.B.)

The Petitioner contends that his plea was not voluntarily, knowingly, and

understandingly entered because he received the ineffective assistance of counsel in that trial

counsel failed to explain the nature and elements of the indicted charge and of the offense

to which he pled nolo contendere. The Petitioner also contends that his decision to plead

guilty was not a tactical one. The State contends that based on the totality of the

circumstances, the Petitioner entered a knowing and voluntary plea of nolo contendere to

sexual battery by an authority figure.

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A plea of nolo contendere must be voluntarily, knowingly, and understandingly

entered, and it has the same effect as a guilty plea. Crowe, 168 S.W.3d at 747; State v.

Teague, 772 S.W.2d 932, 943-44 (Tenn. Crim. App. 1988). This requires that

before accepting a . . . nolo contendere plea, the court shall

address the defendant personally in open court and inform the

defendant of, and determine that he or she understands the

following:

(A) the nature of the charge to which the plea is

offered;

(B) the maximum possible penalty and any

mandatory minimum penalty;

....

(D) the right to plead not guilty or, having already

so pleaded, to persist in that plea;

(E) the right to a jury trial;

....

Tenn. R. Crim. P. 11(b)(1); see also Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); State

v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003).

A defendant who pleads nolo contendere “effectively consents to being punished as

if he were guilty.” Crowe, 168 S.W.3d at 747 (citing North Carolina v. Alford, 400 U.S. 25,

35-36 n.8 (1970)). In Alford, the Court stated that when evaluating the knowing and

voluntary nature of a guilty plea, “The standard was and remains whether the plea represents

a voluntary and intelligent choice among the alternative courses of action open to the

petitioner.” 400 U.S. at 31 (1970). The court reviewing the voluntariness of a guilty plea

must look to 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

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

result from a jury trial.

Powers v. State, 942 S.W.2d 551, 556 (quoting Blankenship v. State, 858 S.W.2d 897, 904

(Tenn. 1993)). A plea resulting from ignorance, misunderstanding, coercion, inducement,

or threats is not “voluntary.” Blankenship, 858 S.W.2d at 904. If a defendant has not been

made aware of the key consequences of a plea, it cannot be an “‘intentional abandonment of

a known right.’” Mellon, 118 S.W.3d at 345 (quoting State v. Mackey, 533 S.W.2d 337, 340

(Tenn. 1977)).

At the plea hearing, the prosecutor summarized the proof:

Your Honor, at a trial of this matter the State’s proof would

show thru [sic] the witnesses listed on the indictment that

between or during the month of May 2003, or at least the time

preceding the finding and returning of the indictment that [the

Petitioner] was a resident of Loudon County, Tennessee and that

his family were close friends with [J.B.’s] family. That they

often baby-sit with each other[’]s children in each other[’]s

homes. And that the witness would testify that [the Petitioner]

had an unlawful sexual contact with the victim alleged in the

indictment at a time when this child was in the age frame listed

by indictment.

The indictment charged the Petitioner with aggravated sexual battery and stated that the

Petitioner did “unlawfully, intentionally, and knowingly engage in sexual contact with” the

victim, who was “less than thirteen (13) years of age . . . .”

After the recitation of the State’s proof, the following exchange occurred:

THE COURT: Do you agree that that is what the

State’s proof would show?

[THE PETITIONER]: Yes, sir.

THE COURT: A lright. What is your

recommendation?

[THE STATE]: Your Honor, the State has agreed

upon [the Petitioner’s] entering a

Nolo Contendere plea to sexual

battery by an authority figure.

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To recommend to the Court

a sentence of six years, Range One

Standard, Class “C” . . . the

Department of Corrections of

course would be the agency

governing his released date by

... parole and so forth.

THE COURT: Is that the way you understand the

agreement?

[THE PETITIONER]: (nods yes to understanding)

Following the post-conviction hearing, the trial court found that the Petitioner’s

decision to plead nolo contendere was a tactical one and that

even if the Petitioner did not have a clear understanding as to

each and every element of each and every offense that might be

involved in the case, a more complete understanding by him of

the specific elements of any of the possibly involved offenses

would not have resulted in a different decision by him or a

different result. In any event, the Court does not find that he has

established this ground by clear and convincing proof nor that

he was so prejudiced by not understanding the elements of each

and every such offense. This ground is without merit.

Although not raised by either party, we note that the trial court applied an incorrect

standard. Our supreme court has recently clarified the correct standard for evaluating a post-

conviction claim of ineffective assistance of counsel. See Dellinger v. State, 279 S.W.3d

282, 293-94 (Tenn. 2009); see also Tenn. Sup. Ct. R. 28 § 8(D)(1) (amended 2009). The

petitioner must first “prove the fact of counsel’s alleged error by clear and convincing

evidence.” Dellinger, 279 S.W.3d at 294. Clear and convincing evidence is evidence which

leaves “no serious or substantial doubts about the correctness of the conclusions . . . .” Hicks

v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). If the petitioner meets his or her

burden, the trial court must apply the Strickland analysis and determine whether counsel’s

error “‘fell below an objective standard of reasonableness,’ and whether the error raised ‘a

reasonable probability . . . that the result of the proceedings would have been different.’” Id.

(quoting Strickland, 466 U.S. at 687-88, 694).

Under the standard expressed in Dellinger, the Petitioner was required to prove by

clear and convincing evidence that trial counsel erred when trial counsel did not inform him

of the nature and elements of the charges against him or the charge to which he pled. If the

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Petitioner established this fact by clear and convincing evidence, the trial court was then

required to apply the Strickland analysis. The court stated it found that the Petitioner did not

establish by clear and convincing evidence that a more complete understanding of the

specific elements of the charges would have resulted in a different plea or that the Petitioner

was prejudiced by not understanding all the elements. The court did not determine whether

the Petitioner had established counsel’s error and, if so, whether that error was deficient and

prejudiced the Petitioner.

Although the trial court applied an erroneous standard when evaluating whether the

Petitioner received the ineffective assistance of counsel regarding the entry of his plea, we

cannot conclude that the error “more probably than not affected the judgment” or resulted

“in prejudice to the judicial process.” T.R.A.P. 36(b). Notwithstanding the Petitioner’s

several meetings with trial counsel, the record reflects that the Petitioner was indicted for

aggravated sexual battery and that the indictment cited the Code section that the Petitioner

had been charged as violating. In addition, the waiver of jury trial form that the Petitioner

signed listed the offense charged and stated the possible minimum and maximum

punishments, including that the Petitioner would have to serve one hundred percent of his

sentence if convicted. The waiver form also listed the offense to which the Petitioner pled

nolo contendere, the applicable range of punishment, and the recommended sentence of six

years as a Range I, standard offender. The Petitioner testified that he researched the elements

of the offense charged. The record establishes that the Petitioner was aware of the nature and

elements of the indicted offense and the offense to which he pled nolo contendere. The

Petitioner is not entitled to relief on this issue.

Finally, the Petitioner contends that the trial court erred when it determined that he

made a tactical decision to enter a plea of nolo contendere. The Petitioner faced a minimum

sentence of eight years at one hundred percent service if he had proceeded to trial. The

sentence to which he pled carried a less severe punishment. The evidence does not

preponderate against the trial court’s determination that the Petitioner made a tactical

decision to plead to the offense with a lesser punishment.

CONCLUSION

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

of the trial court, we vacate the Petitioner’s conviction, and we remand the case for further

proceedings consistent with this opinion.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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