Chad Alan Parker v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 13, 2008 Session

CHAD ALAN PARKER v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Rutherford County

No. F-59907 Don R. Ash, Judge

No. M2007-02799-CCA-R3-PC - Filed July 31, 2008

The Petitioner, Chad Alan Parker, pled nolo contendre to one count of aggravated sexual battery

and one count of burglary of an automobile. The trial court sentenced him to ten years of

incarceration and community supervision for life for the aggravated sexual battery conviction,

and to two years for the burglary conviction. The trial court ordered that the sentences run

concurrently. The Petitioner filed a pro se petition for post-conviction relief, which was

amended by appointed counsel, alleging he received the ineffective assistance of counsel. After

reviewing the issues and applicable authorities, we reverse the post-conviction court’s judgment

and remand the case for the Petitioner to withdraw his best interest plea.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which J.C. MCLIN , J., joined.

D. KELLY THOMAS, JR., J., filed a dissenting opinion.

W.H. (Steve) Stephenson, II, Nashville, Tennessee, for the Appellant, Chad Alan Parker.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

Benjamin A. Ball, Assistant Attorney General; William C. Whitesell, Jr., District Attorney

General, for the Appellee, State of Tennessee.

OPINION

I. Facts

A Rutherford County Grand Jury indicted the Petitioner for one count of attempted

aggravated rape, one count of aggravated sexual battery, and one count of burglary of an

automobile. At the hearing on the Petitioner’s plea to one count of aggravated sexual battery and

one count of burglary of an automobile, the State informed the trial court that, had the case gone

to trial, the evidence would have shown:

Detective Craig Snyder of the Murfreesboro Police Department . . . would testify

as follows. That on or about the 28th day of December, 2005, he responded to the

Target parking lot in reference to sexual battery of a female victim. The

investigation revealed that the female victim was entering her vehicle at the

Target parking lot when a male subject, later identified as Chad Parker, pushed

her from behind into her vehicle, began pulling up her skirt, attempted to remove

her underwear. The victim began sounding her horn on the vehicle at which time

several witnesses approached the vehicle, tried to assist her, did follow Mr.

Parker, did call 9-1-1 and give the police directions on how to get there and did

keep him in view until the police did come. The police then apprehended him

near the Lowe’s. . . .

The trial court questioned the Petitioner and then accepted his guilty plea. The trial court entered

the sentence agreed to by the parties, that being ten years of incarceration, to be served at 100%,

and community supervision for life for the aggravated sexual battery conviction. It also entered

the agreed sentence for the burglary conviction, two years, and ordered the sentences to run

concurrently.

Although the Petitioner did not file an appeal, he subsequently filed a letter with the trial

court, which the trial court treated as a pro se petition for post-conviction relief. The trial court

appointed him counsel, and counsel amended the petition. At a hearing on the petition, the

following occurred: The Petitioner’s trial counsel (“Counsel”) testified about the charges the

Petitioner faced as part of this indictment and about those he also faced for seven pending

violations of the sexual offender registry. Counsel said that he received discovery from the State

early in the case, and he had access to the State’s complete file.

Counsel testified that he investigated this case by trying to interview witnesses and

reviewing the discovery, including the 9-1-1 calls. Based upon his investigation, he discussed

the preparation and trial strategy with the Petitioner. Counsel testified that the State made the

Petitioner an offer, which the Petitioner rejected. Counsel negotiated a deal with the State, and

the State accepted one of Counsel’s “counteroffers” on June 26, 2006, the day of the guilty plea

hearing. Counsel discussed the agreement with the Petitioner before the hearing. Counsel

agreed that the petition to enter the guilty plea agreement listed that the Petitioner was pleading

guilty as a Range I offender, which was incorrect.

Counsel testified that the plea agreement required that the Petitioner be on community

supervision for life, in accordance with Tennessee Code Annotated section 39-13-524. Counsel

said that, from his perspective on the 26th, this posed no additional consequences to the

Petitioner because the Petitioner was, as a result of a previous conviction, already required to be

on community supervision for life and on the sexual offender registry. Counsel explained as

much to the Petitioner, telling the Petitioner that there would be restrictions on where the

Petitioner lived and worked after he was released from prison. Counsel conceded that he later

learned that there was more to the statute than he represented to the Petitioner. Counsel said that

he did not discuss with the State’s attorney what community supervision for life entailed.

Counsel agreed that on the day of the hearing the Petitioner asked him questions about the

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community supervision. Counsel told him that he did not have his statute book with him, but he

would look up the statute later and “get back” to the Petitioner.

Counsel testified that he represented another defendant in a post-conviction case and

raised the same issue that the Petitioner in this case raised. He said that he reviewed statute 39-

13-524 and realized the “actual depths” of the statute and the requirements, which were more

than he represented to the Petitioner. After reading the statute, Counsel brought a copy of the

statute to the Petitioner in jail. He said that the actual status of the law and the requirements that

it imposed upon the Petitioner were greater than he had represented to the Petitioner. For

instance, the law requires that one on community supervision be under the supervision and

control of the Board of Probation and Parole similar to a person under parole supervision. The

board is authorized to establish conditions of community supervision that are necessary to

protect the public from a defendant committing a new sexual offense, as well as promoting the

rehabilitation of the person. Further, the law states that the board is authorized to impose and

enforce a supervision and rehabilitation fee upon a person on community supervision similar to a

fee imposed by the other parole statute. Counsel testified that the statute also states that the first

violation of community supervision is a Class A misdemeanor and the second is a Class E

felony, even though the supervisee is not technically on probation or parole.

When Counsel explained the law to the Petitioner, the Petitioner told him that if he knew

that the supervision was going to be as the statute proscribed it, then he would not have pled

guilty. Counsel said that he believed that there was a “significant difference” between the law as

he described it to the Petitioner and the actual law. Counsel stated he believed that it was error

for him not to explain all the provisions of this statute to the Petitioner before the Petitioner pled

guilty.

On cross-examination, Counsel testified that he could not be sure of the conditions with

which the Petitioner would have to comply upon the Petitioner’s release, in part because the

Petitioner’s probation officer could impose any conditions within his or her authority. Counsel

agreed that he cannot explain to any client the exact terms of their parole because those details

are not available to him. Further, he said that he also cannot tell his clients what their exact fee

for parole will be. Counsel agreed that the Petitioner had served prison time for a sex crime in

the past, making the Petitioner familiar with the requirements of the sexual offender registry.

Counsel also conceded that, had the Petitioner gone to trial and been convicted, the Petitioner

would be released subject to the same restrictions as he was subject to as a result of his guilty

plea.

Counsel testified that he felt he had a command of the facts of this case and that he

discussed the case with the Petitioner on numerous occasions. Further, Counsel testified that he

discussed the post-conviction case with the Petitioner, and the Petitioner understood that if the

petition is granted the Petitioner will go to trial. Counsel testified that the video surveillance

tape from the Target and Lowe’s involved in this case showed that the Petitioner was at the

scene of this attack.

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Counsel agreed that the trial judge explained to the Petitioner at the guilty plea hearing

that the Petitioner would be subject to community supervision. The court asked the Petitioner if

he had any questions, and the Petitioner responded that he did not.

The Petitioner testified that he recalled the plea negotiations went “back and forth” prior

to the guilty plea hearing, and they finally reached an agreement on June 26, before the hearing.

The Petitioner said that Counsel told him that the State was making their final offer, and he

could take the offer or they were going to try the case that day. The Petitioner said that it had

been his plan to go to trial. Counsel informed the Petitioner that the offer was ten years at 100%,

which the Petitioner did not like. Counsel also informed the Petitioner that he would be under

community supervision for life, and this was the first time during all the plea negotiations that

the Petitioner had heard this term. The Petitioner asked Counsel what that entailed, and Counsel

informed him that, to the best of his knowledge, it meant that the Petitioner could not live or

work around a daycare. Counsel told the Petitioner it was the same as his sex offender registry

requirements, which he had to comply with anyway. Counsel told him that he would not have a

parole officer but that he would be subject to the sexual offender registry requirements, which

was unsupervised. The Petitioner said that there were no fees involved for the sexual offender

registry, and he assumed this was the same for community supervision for life.

The Petitioner testified that, later, he learned that he would actually have to be on parole

the rest of his life and that he would have to pay a $45 fee every month for the rest of his life.

The Petitioner said that, had he known of these consequences, he would have asked Counsel to

get another plea agreement or to take the case to trial.

On cross-examination, the Petitioner agreed that the statute may not explicitly state that

he must pay $45 per month but that Counsel explained this to him after he had pled guilty. The

Petitioner said that he did not file a motion to withdraw his guilty plea because Counsel told him

to file a post-conviction petition.

Based upon this evidence and the filings of the parties, the post-conviction court

denied the Petitioner’s petition for post-conviction relief.

II. Analysis

On appeal, the Petitioner contends that the post-conviction court erred when it denied his

petition because he received the ineffective assistance of counsel. He also asserts his “best

interest” plea was not knowingly and voluntarily entered because it was entered as a result of

materially incorrect and/or deficient information provided to him by trial counsel. This is based

upon the fact that he was not informed of the consequences of the “community supervision for

life” provision of his sentence.

In order to obtain post-conviction relief, a petitioner must show that his or her conviction

or sentence is void or voidable because of the abridgment of a constitutional right. T.C.A. § 40-

30-103 (2006). The petitioner bears the burden of proving factual allegations in the petition for

post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). Upon

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review, this Court will not re-weigh or re-evaluate the evidence below; all questions concerning

the credibility of witnesses, the weight and value to be given their testimony and the factual

issues raised by the evidence are to be resolved by the trial judge, not the appellate courts.

Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79

(Tenn. 1997). A post-conviction court’s factual findings are subject to a de novo review by this

Court; however, we must accord these factual findings a presumption of correctness, which can

be overcome only when a preponderance of the evidence is contrary to the post-conviction

court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-

conviction court’s conclusions of law are subject to a purely de novo review by this Court, with

no presumption of correctness. Id. at 457. We will discuss each issue in turn.

A. Ineffective Assistance of Counsel

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453,

461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following two-prong

test directs a court’s evaluation of a claim for ineffectiveness:

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

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the [petitioner] by the Sixth Amendment.

Second, the [petitioner] must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive

the [petitioner] of a fair trial, a trial whose result is reliable. Unless a [petitioner]

makes both showings, it cannot be said that the conviction or death sentence

resulted from a breakdown in the adversary process that renders the result

unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419

(Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must determine

whether the advice given or services rendered by the attorney are within the range of competence

demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of

ineffective assistance of counsel, a petitioner must show that “counsel’s representation fell below

an objective standard of reasonableness.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)

(citing Strickland, 466 U.S. at 688 (1984)).

When evaluating an ineffective assistance of counsel claim, the reviewing court should

judge the attorney’s performance within the context of the case as a whole, taking into account

all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149

(Tenn. Crim. App. 1988). The reviewing court must evaluate the questionable conduct from the

attorney’s perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982). In doing so, the reviewing court must be highly deferential and “should indulge a

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strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a defendant in a criminal case is not

entitled to perfect representation, only constitutionally adequate representation. Denton v. State,

945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of

ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only what is

constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States

v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been

ineffective merely because a different procedure or strategy might have produced a different

result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). The fact that a

particular strategy or tactic failed or hurt the defense does not, standing alone, establish

unreasonable representation. House, 44 S.W.3d at 515 (citing Goad v. State, 938 S.W.2d 363,

369 (Tenn. 1996)). However, deference to matters of strategy and tactical choices applies only if

the choices are informed ones based upon adequate preparation. House, 44 S.W.3d at 515.

If the petitioner shows that counsel’s representation fell below a reasonable standard,

then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90 S.W.3d

576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine confidence

in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662, 665 (Tenn.

1994). In the context of a guilty plea, to satisfy the prejudice prong of Strickland, the petitioner

must show that “there is a reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59.

In the case under submission, the post-conviction court found Counsel’s performance

was deficient but that the Petitioner did not prove prejudice, stating:

This Court is of the opinion that Petitioner has not satisfied his burden of

proof required to establish an order for post-conviction relief. The court concedes

that the Petitioner’s counsel’s performance was deficient in some way. See Burns

6 S.[W].2d at 461. However, the Petitioner must satisfy both prongs of the Burns

test to prove ineffective assistance of counsel. The Court is of the opinion that

the Petitioner has failed to prove that “the deficient performance actually

prejudiced the defense.” Id. In order to show such prejudice, the Petitioner

would have had to offer proof that “there is a reasonable probability that, but for

counsel’s deficient performance, the result of the proceeding would have been

different.” The Court is of the belief Petitioner has failed his burden of proof for

this point. In fact, the Tennessee Court of Criminal Appeals has held that

counsel’s failure to advise his client about the details of his parole eligibility,

including sex offender programs, does not amount to ineffective assistance of

counsel. Studdard v. State, No. W2004-00500-CCA-R3-PC, LEXIS 752 at 15

(Tenn. Crim. App. 2006)

(some citations omitted).

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In order for the Petitioner to prevail herein, he must show, by clear and convincing

evidence, that his attorney failed to properly advise him of the possible consequences of his plea

and that trial counsel’s failure to do so resulted in prejudice. Once a guilty plea has been

entered, effectiveness of counsel is relevant only to the extent that it affects the voluntariness of

the plea. In this respect, such claims of ineffective assistance necessarily implicate the principle

that guilty pleas be voluntarily and intelligently made. See Hill, 474 U.S. at 56. The post-

conviction court concluded that Counsel was ineffective in informing the Petitioner of the

consequences of his guilty plea, and the evidence supports that conclusion.

We, however, conclude that the evidence preponderates against the post-conviction court

finding that the Petitioner has not proven prejudice. Counsel readily admits that the Petitioner

wanted to go to trial but participated in lengthy plea negotiations, after which he agreed to enter

a “best interest” plea. He maintained at the hearing that he would have insisted upon taking his

case to trial had he been properly informed of the consequences of his guilty plea. For the

reasons set forth in the following section concerning the knowing and voluntary nature of the

Petitioner’s guilty plea, we conclude that the Petitioner is entitled to post-conviction relief. See

Hill, 474 U.S. at 59.

B. Knowing and Voluntary Plea

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

353 (Tenn. Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim.

App. 1990). 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.” Id.

In the case under submission, the post-conviction court found:

Regarding the challenge to the knowing and voluntariness of his plea, the

Court is also of the opinion that the Petitioner has not satisfied his burden of

proof. Looking to the totality of the circumstances, the Court finds the Petitioner

entered a voluntary plea because he is very familiar with criminal proceedings, he

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is familiar with sex offender law as he was previously convicted as a sex

offender, he is relatively intelligent, he was represented by competent counsel, he

had opportunity to confer with his counsel, and he pled no contest in order to

receive sentence less than a trial possibility would have resulted in. The Court is

also of the opinion that the Petitioner entered a knowing plea because, according

to the plea transcript, the Court revealed that he fully understood the plea and its

consequences.

There is no case directly on point, discussing whether a petitioner who is misinformed

about the requirements of community supervision for life is entitled to post-conviction relief on

the grounds that his guilty plea was not knowingly and voluntarily entered. We, however, find

instructive the cases discussing whether a petitioner is entitled to post-conviction relief in the

context of the parole eligibility requirements of the sex offender statute. These cases distinguish

between circumstances in which the petitioner’s counsel fails to inform the petitioner of release

requirements of the sex offender statute and when the petitioner’s counsel misinforms the

petitioner of such requirements.

In Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003), the petitioner argued that his guilty

pleas to two counts of attempted rape were rendered unknowing and involuntary because he was

not advised of the mental health requirements he would be required to meet as a sex offender,

pursuant to Tennessee Code Annotated section 40-35-503(c) (2003), before he could be released

on parole. In rejecting the petitioner’s claim, our Supreme Court distinguished the facts of his

case, in which he was advised of the accurate parole eligibility date but not informed of the

specific conditions he would be required to meet to achieve release, from the facts in Howell v.

State, 569 S.W.2d 428, 435 (Tenn. 1975), in which the Court granted a petitioner post-conviction

relief on the basis that he entered his guilty plea while under a misunderstanding about his

release eligibility date:

Unlike the defendant in Howell, Mr. Jaco was not misinformed about his parole

eligibility date. He will in fact become parole eligible after serving thirty percent

of his sentence although he may not actually be released. His release eligibility

date is simply the point at which he will be considered for parole under the

applicable standards . . . .

In this case, the post conviction trial court found that no sex offender has

been released after serving only thirty percent of his sentence unless the mental

health professional concluded that a future sex offense was physically impossible.

Nonetheless, a Range I standard offender convicted of a sex crime becomes

parole eligible after serving thirty percent of the actual sentence imposed. Tenn.

Code Ann. § 40-35-501(c) (2003). The required evaluation affects the likelihood

of actual release, but it does not affect the release eligibility date. Thus, unlike

the defendant in Howell, Mr. Jaco received accurate information regarding his

release eligibility date prior to entering his plea.

Jaco, 120 S.W.3d at 832.

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This Court similarly concluded that erroneous information given to a petitioner – that

certain of his sentences would run concurrently – entitled him to the appointment of counsel and

an evidentiary hearing on the issue of whether his guilty pleas were unknowing and involuntary.

Charlton v. State, 987 S.W.2d 862, 867 (Tenn. Crim. App. 1998). We held that a petitioner is

entitled to “rely upon the advice of his attorney, especially when confirmed by the trial judge.”

Id. Further, we concluded that, “If, based upon the particular circumstances of this case, it is

established that the plea agreement was entered into under the collective misunderstanding that

[the sentences] would be concurrently served, the plea agreement should be set aside as neither

knowing nor voluntarily made . . . .” Id.

We have, in other instances, granted a petitioner post-conviction relief when his guilty

plea is entered after having been significantly misinformed. See Joseph A. Maine v. State, No

E2004-00143-CCA-R3-PC, 2005 WL 1996631, at *7 (Tenn. Crim. App., at Knoxville, Aug. 19,

2005) (granting post-conviction relief when a petitioner was misinformed about the sentences he

would be required to serve), no Tenn. R. App. P. 11 application filed; cf. Thomas Studdard v.

State, No. W2004-00500-CCA-R3-PC, 2006 WL 2771033, at *7 (Tenn. Crim. App., at Jackson,

Sept. 27, 2006) (denying post-conviction relief when counsel correctly informed the petitioner of

his parole eligibility date but failed to inform the petitioner about the requirements he must

complete prior to being paroled), no Tenn. R. App. P. 11 application filed.

In the case under submission, the totality of the circumstances of the case lead us to

conclude that the Petitioner’s guilty plea was not knowingly and voluntarily entered. Counsel

readily admits that the Petitioner wanted to go to trial but participated in lengthy plea

negotiations, after which he agreed to enter a “best interest” plea. Counsel informed the

Petitioner that community supervision for life would require nothing more of the Petitioner than

he was already required to do as part of his participation in the sex offenders registry. The sex

offenders registry program is unsupervised, free, and requires that an offender register his

address. The community supervision for life program is much more intensive, requiring the

offender to report to a parole officer, who has wide discretion in the imposition of requirements,

and to pay a monthly fee. Under these circumstances, we conclude that the Petitioner, relying on

Counsel’s advise that the two programs were the same, was significantly misinformed.

Therefore, under such circumstances, his plea cannot be found to have been knowing and

voluntary. Accordingly, we reverse the post-conviction court’s dismissal of the petitioner and

remand for the Petitioner to withdraw his best interest plea and for further proceedings

consistent with this opinion.

III. Conclusion

Based on the foregoing reasoning and authorities, we reverse the judgment of the post-

conviction court and remand the matter for the Petitioner to withdraw his best interest plea and

for further proceedings consistent with this opinion.

______________________________

ROBERT W. WEDEMEYER, JUDGE

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