Eric Vislosky v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 22, 2014 Session

ERIC VISLOSKY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Bradley County

No. 12-CR-141 Amy A. Reedy, Judge

No. E2013-01117-CCA-R3-PC - Filed July 31, 2014

The petitioner, Eric Vislosky, appeals the denial of his petition for post-conviction relief,

arguing that he received ineffective assistance of trial counsel and that his guilty plea to Class

B sexual exploitation of a minor was therefore unknowing and involuntary. Following our

review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and

R OGER A. P AGE, JJ., joined.

Stephen D. Crump, Cleveland, Tennessee, for the appellant, Eric Vislosky.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Robert Steven Bebb, District Attorney General; and Stephen M. Hatchett, Assistant

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

OPINION

FACTS

On April 18, 2011, the petitioner entered a best interest guilty plea in the Bradley

County Criminal Court to sexual exploitation of a minor, a Class B felony, in exchange for

a Range I sentence of eight years at 100% in the Department of Correction. The petitioner’s

conviction was based on his violation of Tennessee Code Annotated section 39-17-1003,

which makes it a Class B felony for a person “to knowingly possess material that includes

a minor engaged in: (1) [s]exual activity; or (2) [s]imulated sexual activity that is patently

offensive[,]” when “the number of individual images, materials, or combination of images

and materials . . . exceeds one hundred (100).” Tenn. Code Ann. § 39-17-1003(a), (d)

(2010). The prosecutor recited the facts upon which the State would have relied had the case

proceeded to trial:

On the date alleged in the indictment the Bradley County Sheriff’s Office

executed a search warrant at the residence where [the petitioner] was staying.

They sought the search warrant after the lady that lived there brought to the

Sheriff’s Department a thumb drive that belonged to [the petitioner]. On the

thumb drive, upon executing the search warrant officers found numerous

photographs of images that we believe a jury would find to constitute child

pornography. There were over a [sic] 100 images of this child pornography

on the thumb drive and the [petitioner] upon being brought to the Sheriff’s

Department for questioning waived his right to an attorney. He admitted that

the thumb drive belonged to him and he also admitted that he did know that the

images of child pornography were on his thumb drive and he admitted that he

had moved them there for safe keeping from his laptop computer. And so that

would be the images and the [petitioner’s] statement would be what we would

present to the jury tomorrow, your Honor.

On April 5, 2012, the petitioner filed a petition for post-conviction relief in which he

alleged that he was denied the effective assistance of counsel and entered an unknowing and

involuntary guilty plea. Specifically, he alleged that his counsel was deficient in his

representation, thereby leading him to enter an unknowing and involuntary plea, by failing

to properly examine the evidence and failing to seek an independent review of the thumb

drive to determine if it contained more than 100 images of child pornography sufficient to

support his Class B felony conviction.

At the evidentiary hearing, the petitioner’s expert legal witness, James F. Logan, Jr.,

testified that he had been practicing law in Cleveland since 1970 and had extensive

experience with criminal defense, including “[n]umerous sexual offenses.” He said he had

handled five sexual exploitation of a minor cases in federal court within the past five years

and believed himself to be “about as experienced as anybody in . . . southeast Tennessee in

the handling of such cases.” He described the steps he takes in reviewing the evidence and

determining a trial strategy in such a case and said that one step that often is overlooked is

determining exactly how many images are involved and whether those images constitute true

violations of the statute. He testified that he had reviewed the evidence in the petitioner’s

case and that it consisted of images in 174 frames, with the frames consisting of “multiple

collages,” and each collage of “28 different photographs.” He said that 72 of those images

focused on body parts or showed actual sexual activity involving children and thus were

“unquestionably violations of the statute.” In addition, there were two others that

“potentially could be considered to be without question a violation of the statute.” The

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remainder of the images, however, were of “nudist colonies” and “family gatherings” at

nudist colonies or beaches. These latter images, Logan believed, were ones that the trial

court might have ruled as a matter of law did not constitute violations of the statute, had trial

counsel raised the issue before the court.

On cross-examination, Logan acknowledged that the petitioner, with three prior

burglary convictions, would have been sentenced as a Range II offender had he been

convicted of Class C felony sexual exploitation of a minor. He testified that, had it been his

case, he would have counted the images. He further testified that he believed “the reasonable

standard of practice” for any attorney in such a case would be to count the images.

Detective J.P. Allman of the Bradley County Sheriff’s Department testified that, based

on Logan’s definition of child pornography, he considered that there were over 100 images

of child pornography involved in the case. He further testified that he and trial counsel had

gone through the images together. On cross-examination, he testified that the images on the

thumb drive included pictures of digital, penile, and oral penetrations of small children,

pictures of nude children, and “pictures of children mixed in with adults nude.”

The petitioner testified that he told trial counsel that he was not guilty of the offense

but that counsel kept pointing out to him throughout his representation that he was guilty, no

matter what he thought. He said that counsel advised him to take the State’s plea offer,

telling him that his choice was either to accept the plea or go to trial and receive twelve years,

or possibly more, at 100%. He said counsel told him that he had counted the images and that

there were 119 that were “verified” as a violation of the statute, 49 that were “in between,”

and 19 images that did not qualify as child pornography. He stated that counsel told him that

“[j]ust being naked” was enough for a photograph to violate the statute – that it did not have

to depict “any penetration or touching or anything.”

The petitioner testified that he still would have pled guilty had he been told there were

only 72 images of child pornography instead of 119. He explained:

And I was going to a jury trial all along but my mind was changed at the

last moment and I figured, you know, just go ahead and take this and come

back and try to fight it because I was not getting my counsel the way that I’m

suppose to and so I’m going to get it some other way.

The petitioner complained that trial counsel cursed him “quite a few times,” got angry at him,

and was in general “bullheaded” and “stubborn.” He said he still believed that counsel had

not counted the number of images but that he should have and that his failure to do so led

him to plead guilty to a Class B felony.

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On cross-examination, the petitioner testified that he was unhappy with counsel’s

representation and wanted a different attorney, but counsel would never let him go back to

court to “drop him.” He, therefore, decided to plead guilty and proceed with a later post-

conviction petition, as he saw “no other way to go to . . . getting assistance of counsel.” He

acknowledged, however, that he said nothing to the trial court about being unhappy with

counsel or wanting to go to trial at the plea colloquy, even after counsel told the court that

the petitioner disagreed with the prosecutor’s recitation of the facts but was pleading in his

best interest. He also acknowledged that counsel informed him that, due to his prior

convictions, he could receive more time than his negotiated plea deal should he be convicted

at trial.

Trial counsel testified that he had been with the public defender’s office for over six

years, had handled child pornography cases in the past, and had a firm understanding of the

law regarding the petitioner’s offense. Because he wanted to make sure that there were over

100 images on the thumb drive, he reviewed all the images on the device and found over 100

images “of what appeared to be child pornography.” In addition to the numerous images of

children in sex acts, there were “a lot of images” of naked children on a beach or in public

places who were engaged in “potentially provocative acts or provocative poses.”

Trial counsel testified that he discussed the images with the petitioner, including his

concerns that there were no images of nude adults on the thumb drive but instead only

children. He said that the petitioner told him that the images were not his, despite the fact

that he had admitted to law enforcement officers that he was the one who placed child

pornography on the thumb drive. Counsel explained that this was the reason he informed the

court at the plea colloquy that the petitioner had a different version of events and wanted to

enter a best interest plea. He said the petitioner told him that he planned to delete the files

at a later time. When he asked him why he had not immediately deleted them when he found

the thumb drive, the petitioner told him that he had “a very big interest in nudism.” He then

asked why, if he was interested in nudism, there were no images of nude adults, but the

petitioner was unable to answer his question. Trial counsel testified that, based on his

experience and his review of the thumb drive, he believed there was a chance that the

petitioner would be convicted of a Class B felony at trial.

Trial counsel testified that he discussed with the petitioner the plea bargain offered

by the State, the risks inherent in a jury trial, and the petitioner’s criminal record of six prior

convictions, including three felonies. Counsel agreed that the petitioner would not have been

sentenced as a Range I offender had he been convicted of a Class C felony and that his

sentencing, given his criminal record, would not have been at the low end of the range. He

said that the basis of the petitioner’s complaint against him with the Board of Professional

Responsibility, which counsel mentioned at the plea colloquy, was that the petitioner wanted

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to receive copies of the images on the thumb drive and wanted a better offer from the State.

Counsel said he plainly asked the petitioner if he still wanted him to represent him, and the

petitioner answered “yes.” He stated that the petitioner never expressed any intention of

going to trial but instead “always wanted whatever the best plea was.” He said he never

cursed the petitioner or pressured or coerced him into accepting the plea.

On cross-examination, trial counsel reiterated that, in his opinion, there were over 100

images on the thumb drive that would violate the statute. He said he did not take any notes

as to which particular photographs violated the statute and did not recall exactly how many

photographs depicted actual sex acts. He said he did not tell the petitioner that any images

of naked children would constitute a violation of the statute. Instead, he recalled having

discussed the images of nude children on the beach, some of which were in provocative

poses and some of which were not, and how the images “could be taken in context to a jury

with relevance to all these other images that were children in sexual acts with other children

and adults.”

On April 5, 2013, the post-conviction court entered an order denying the petition. In

so doing, the court accredited the testimony of trial counsel that he counted the images and

found over 100 that “could be viewed as child pornography”and that the petitioner never

expressed any interest in going to trial.

ANALYSIS

Post-conviction relief “shall be granted when the conviction or sentence is void or

voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee

or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2012). The

petitioner bears the burden of proving factual allegations by clear and convincing evidence.

Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the

findings of fact made by the court are conclusive on appeal unless the evidence

preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When

reviewing factual issues, the appellate court will not reweigh the evidence and will instead

defer to the post-conviction court’s findings as to the credibility of witnesses or the weight

of their testimony. Id. However, review of a post-conviction court’s application of the law

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

S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents

mixed questions of fact and law, is reviewed de novo, with a presumption of correctness

given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

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

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant 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 defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

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

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

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

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

prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability

sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

In the context of a guilty plea, the petitioner must show a reasonable probability that were

it not for the deficiencies in counsel’s representation, he or she would not have pled guilty

but would instead have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59

(1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

Before a guilty plea may be accepted, there must be an affirmative showing in the trial

court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242

(1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a showing that

the defendant was made aware of the significant consequences of the plea. State v. Pettus,

986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340). A plea is not

“voluntary” if it results from ignorance, misunderstanding, coercion, inducements, or threats.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if

the guilty plea is “knowing” by questioning the defendant to make sure he or she fully

understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858

S.W.2d at 904.

Because the plea must represent a voluntary and intelligent choice among the

alternatives available to the defendant, the trial court may look at a number of circumstantial

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factors in making this determination. Blankenship, 858 S.W.2d at 904. These factors

include: (1) the defendant’s relative intelligence; (2) the defendant’s familiarity with

criminal proceedings; (3) whether the defendant was represented by competent counsel and

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

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

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

jury trial. Id. at 904-05.

The petitioner argues that trial counsel was ineffective for failing to conduct an

extensive and adequate review of the evidence “that would be required to ensure that [the

petitioner] was pleading to the appropriate gradation of felony.” In support, he cites both the

testimony of his legal expert that there were, in his opinion, only 72 to 74 images of child

pornography and trial counsel’s admission that he made no notes on the specific images when

reviewing the evidence. The post-conviction court, however, accredited the testimony of trial

counsel that he carefully reviewed the images on the thumb drive and found over 100 that

he considered to be child pornography. The petitioner has not met his burden of showing that

counsel was deficient in his review of the evidence or that he was prejudiced as a result of

counsel’s alleged deficiency in performance.

The petitioner further argues that his guilty plea was unknowing and involuntary due

to the fact that he was “never fully informed by trial counsel of the number of incriminating

images on the thumb drive” and that counsel cursed and used “downgrading language” while

pressuring him into pleading guilty to “the incorrect gradation of offense.” Trial counsel,

however, testified that he reviewed with the petitioner the number and type of images he saw

on the thumb drive, that the petitioner never expressed any desire to go to trial but instead

was interested in the best plea bargain available, and that he never cursed, threatened, or

pressured the petitioner. During the plea colloquy, the petitioner affirmed that he understood

the rights he was waiving by pleading guilty, that he wanted to enter a best interest guilty

plea, and that he realized he would be found guilty of Class B sexual exploitation of a minor

based on the facts recited by the prosecutor. The petitioner denied that anyone had pressured

or threatened him into entering his plea and remained silent as trial counsel informed the

court that he and the petitioner had discussed the facts and that they “would argue it

differently than what the state has put together,” but that they understood the proof against

the petitioner and believed it was in his best interest to plead guilty. The petitioner has not,

therefore, shown that his guilty plea was unknowing or involuntary.

CONCLUSION

Based on our review, we conclude that the petitioner has failed to meet his burden of

showing that he received ineffective assistance of counsel or that his guilty plea was

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unknowing and involuntary. Accordingly, we affirm the denial of the petition for

post-conviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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