The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 12, 2014
WILLIAM CARTER KING v. STATE OF TENNESSEE
Appeal from the Criminal Court for Fentress County
No. 2012-CR-01 E. Shayne Sexton, Judge
No. M2014-00512-CCA-R3-PC - Filed December 17, 2014
The Petitioner, William Carter King, appeals the Fentress County Criminal Court’s denial
of his petition for post-conviction relief from his 2011 guilty plea to possession of a
controlled substance in a penal institution and his five-year sentence. The Petitioner
contends that (1) he received the ineffective assistance of counsel and (2) his guilty plea was
unknowingly and involuntarily entered. We affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
R OBERT H. M ONTGOMERY, J R., J., delivered the opinion of the court, in which N ORMA
M CG EE O GLE and C AMILLE R. M CM ULLEN, JJ., joined.
Ieshia Dupes (on appeal) and Harold E. Deaton (at post-conviction hearing), Jamestown,
Tennessee, for the appellant, William Carter King.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
William Paul Phillips, District Attorney General; and John W. Galloway, Jr., Deputy District
Attorney General, for the appellee, State of Tennessee.
OPINION
This case arises from the Petitioner’s possessing a controlled substance after he
returned to the Fentress County Jail from a furlough. On July 9, 2009, the Petitioner pleaded
guilty in case number 9536 to burglary and felony theft and received an effective seven-year
sentence with one year’s confinement and six years’ probation. On January 24, 2011, the
Petitioner pleaded guilty in case number 10-108 to possession of a controlled substance in
a penal institution and received a five-year sentence to be served on community corrections
and consecutively to his probation in case number 9536, for an effective twelve-year
sentence. The trial court also ordered the Petitioner to complete a drug rehabilitation
program.
On May 16, 2011, the Petitioner’s community corrections officer filed a petition for
community corrections revocation, alleging that the Petitioner was dismissed from the
rehabilitation program for selling pain medication and falsifying a drug screen. After an
evidentiary hearing, the trial court revoked the Petitioner’s alternative sentences and ordered
the Petitioner to serve his effective twelve-year sentence in confinement. The Petitioner
appealed the trial court’s revocation, and this court affirmed the revocation and summarized
the facts of the case as follows:
At the revocation hearing, Richard Moggett testified for the State that
he was the Assistant Director at Faith Farm Ministries in Fort Lauderdale,
Florida. He explained that Faith Farm was a sixty-year-old “faith based” drug
and alcohol regeneration program and that he was responsible for disciplinary
actions and overseeing drug testing. The appellant enrolled in the program in
February 2011. Moggett said that during the appellant’s stay, the appellant had
“some medical issues” and was granted “passes” to go to a hospital in the area.
Moggett said that the appellant was “progressing well, but every so often, we
would hear his name come to us in association with some other behavior.”
After the appellant’s last visit to the hospital, he exhibited unusual behavior.
Moggett asked the appellant if he had received medication at the hospital, and
the appellant said he had received a shot of Morphine. Due to the appellant’s
odd behavior, the appellant was tested for drugs. The appellant tested positive
for Morphine and Oxycodone. Although the appellant had not said he received
Oxycodone at the hospital, Moggett decided to let the appellant remain at Faith
Farm because “we could not find out if he had actually been given Oxycodone
at the hospital.” Four days later, the appellant was given another drug test.
Moggett said that the urine sample the appellant submitted for the test was “off
color, dark brown, very hot to the touch. In fact, the temperature was at 102
degrees.” The appellant was asked to leave the program, and he did so
immediately. Moggett notified the appellant’s probation officer that the
appellant had been dismissed from Faith Farm.
On cross-examination, Moggett testified that the appellant’s behavior
during his stay at Faith Farm was “[p]retty normal behavior for a student in our
program.” The appellant had written on his application that he had stomach
problems, and doctors had prescribed Prilosec. Due to the appellant’s
condition, he would have been allowed to go to the doctor at least once per
month. Moggett said that the appellant was allowed to go more often than
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once per month because his condition “was such a problem for him.” The
program at Faith Farm was a nine-month program, but the appellant stayed
only four months. He went to the hospital at least six times during his stay.
Moggett said that when the appellant returned from his last visit to the
hospital, the appellant was acting “[k]ind of lethargic, distracted.” Moggett
said he sensed that something was “out of the ordinary” for the appellant.
Moggett said he had been the Assistant Director of Faith Farm for four years,
had no education in drug rehabilitation, and was basing his intuition about the
appellant from his experience and eleven years of on-the-job training.
Moggett testified that the drug test kits used by Faith Farm were the
same ones used by the criminal justice system in that area. After a person gave
a urine sample for a test, the collector placed a security tab over the top of the
collection bottle, and the testee initialed it. The results of the test were read
within five minutes. A temperature strip on the bottle determined the urine’s
temperature. Moggett said that Faith Farm usually tried to have an employee
witness a testee give a urine sample and that “[w]e have on occasion found
devices that they attach to the thigh that would give a sample. They would
actually run a tube alongside of their genitals and use that.” He explained,
“Any invalidation of that test, we presume it is . . . on purpose and so, we
dismiss.” The appellant’s second test was negative for drugs, but the color and
high temperature of his urine invalidated the test and resulted in his dismissal
from the program. The appellant was not given prior notice of the test, and he
was not checked for a device attached to his thigh after the test. Moggett
acknowledged that he had no explanation for the urine’s dark color and high
temperature.
Candace Norman testified that she was the appellant’s community
corrections officer and began supervising him on January 24, 2011. Norman
said that she arranged for him to go to Faith Farm and that “I truly believe in
their program.” Norman had never known Faith Farm to dismiss someone
from the program inappropriately. On May 14, 2011, she received a letter
informing her that the appellant had been dismissed from the program. The
appellant also telephoned Norman and informed her that he had been
discharged. Norman filed the Petition for Violation of Community Corrections
and told the appellant that he needed to return to Fentress County. The
appellant did not return to Fentress County voluntarily.
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The trial court determined that the State had established a probation
violation by a preponderance of the evidence. Specifically, the trial court
stated,
The protocol in taking this - what was characterized as old urine
was established by the witness. The language itself speaks [that]
the client falsified. I think [defense counsel] takes exception to
that because there is no showing that he actually rendered the
test, that he received it from someone else or if he had -- had it
put up. The fact of the matter is that the Faith Farms has
established that there was a drug test that could not be tested. In
particular, when you’re -- the witness testified that the urine has
a temperature of 102 which is virtually impossible unless the
submitting person was running extended fever. I mean, just --
it’s just impossible.
The court noted that the appellant had been in various rehabilitation programs
over the years and stated that there was “nothing else to do.” The trial court
ordered that the appellant serve his alternative sentences in confinement.
State v. William Carter King, No. M2011-02561-CCA-R3-CD, 2013 WL 1143246, at *1-3
(Tenn. Crim. App. Mar. 20, 2013) (footnote omitted), no app. filed.
On January 4, 2012, the Petitioner filed a pro se petition for post-conviction relief in
case number 10-108 alleging multiple grounds, including the ineffective assistance of
counsel and an involuntary guilty plea to possession of a controlled substance in a penal
institution. After the appointment of counsel, an amended petition was filed on April 12,
2012, also alleging that counsel was ineffective and that the Petitioner entered an unknowing
and involuntary guilty plea. On November 13, 2012, appointed counsel was permitted to
withdraw after the Petitioner complained of counsel’s performance. The Petitioner told the
post-conviction court that he had filed complaints with the Tennessee Board of Professional
Responsibility. Subsequent counsel was appointed.
At the post-conviction hearing, the Petitioner testified that he was originally charged
with introduction of Schedule II and III controlled substances into a penal institution but
pleaded guilty to possession of a controlled substance in a penal institution. He said he was
sick on the day he entered his guilty plea, and he later learned that his gall bladder was
causing his illness. He said he was “physically sick” and did not know what he was signing
when he signed the plea agreement form. He said, though, that he knew he was signing
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something that he should not have signed. He said, “I was frustrated, I [knew] I would never
do 12 years, but I was pretty desperate.”
The Petitioner testified that in July 2009, he pleaded guilty to theft and to burglary
and that he had to serve one year in jail for theft, although he received six years for burglary.
He said he “flattened” his sentences and was released from confinement. He denied he was
released to probation for the remainder of his sentence. He said that after he was released,
he was charged with disorderly conduct. He said his “sentence was revoked” after a
probation revocation hearing. The Petitioner said he told counsel that he was not on
probation but that counsel never raised the issue with the trial court.
The Petitioner testified that he attempted to contact counsel after he pleaded guilty to
the drug-related charge in case number 10-108 because he was having trouble getting into
a rehabilitation program and that he told counsel to withdraw his guilty plea. Relative to the
Petitioner’s pleading guilty, the Petitioner said, “I didn’t make a smart choice at all, to say
the least.” He claimed that his illness affected his ability to make good decisions and that
had he not been sick, he would have rejected the plea offer. He said he vomited two or three
times before the plea hearing and asked counsel for a furlough. Counsel told the Petitioner
that the trial court would not grant a request for a furlough, and the Petitioner responded, “Go
tell [Deputy District Attorney] John [Galloway] I’ll give him three years running wild with
this.” Counsel told the Petitioner that the prosecutor would agree to five years for possession
of a controlled substance in a penal institution. The Petitioner said, “[T]hat was that on that.”
The Petitioner testified that although he was initially charged with introduction of a
controlled substance into a penal institution, the State sought to amend the charge to
possession of a controlled substance before he completed the indigency form. He said
counsel told him that he was charged with misdemeanor possession. He agreed he was not
represented by an attorney when the charge was amended and said he did not know it was
an issue until looking into the matter later. When asked if he talked to counsel about the
amendment, he said, “The best I got out of [counsel] was that on the plea date there was a
mistake . . . on the probation revocation.”
Relative to the Petitioner’s request for counsel to file a motion to withdraw the guilty
plea, the Petitioner testified that he attempted to use the telephone at the jail to contact
counsel, but “Vella” told him that he could not use the telephone because Ms. Norman did
not want the Petitioner using the telephone anymore. The Petitioner received a letter from
counsel regarding the guilty plea, and he read the relevant paragraph stating,
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Once you pleaded guilty, that ended any ability you had to challenge the
sentence based on its length, or on your opinion regarding the State’s case
against you. The phone conversation you refer to, involving Ms. Norman, took
place after your guilty plea; once you plead, you cannot “withdraw” your
agreement, at least not unless the State was not abiding by its end of the plea.
Now, believe me, if I felt that the State was not taking proper steps to let you
start treatment, I would have followed up and, ultimately, I would have taken
some sort of action if necessary. But that was not the case, at least in my
opinion. You were given the opportunity to seek treatment, and so the State
lived up to its side of the agreement.
On cross-examination, the Petitioner testified that he had a lengthy criminal history
with convictions for three counts of aggravated burglary in 2001, felony theft in 2000, two
counts of forgery in 1998, and four counts of forgery in 1996. He discussed with counsel his
potential of being sentenced as a persistent or career offender if he were sentenced after a
trial. He recalled the prosecutor filing a motion to have the Petitioner classified as a career
offender. He understood that without a plea agreement, he faced a considerably longer
sentence if convicted at a trial.
The Petitioner testified relative to case number 9536 that he was released on bond
when he entered his burglary and theft guilty pleas and that a sentencing hearing was later
held to determine if he would receive probation. He said that the parties agreed to seven
years’ supervised probation and that he was charged and convicted of two counts of
misdemeanor theft before the sentencing hearing. The theft convictions changed the State’s
position on sentencing relative to the burglary and theft convictions, and the Petitioner said
the parties agreed that the Petitioner would serve eleven months, twenty-nine days in jail and
that the Petitioner would be placed on probation for seven years. The Petitioner was unclear
about the two theft sentences but agreed that the trial court ordered him to spend one year in
jail followed by seven years’ probation and to attend a long-term rehabilitation program.
The Petitioner testified that while he was serving the one year in confinement, he was
given a furlough to obtain identification for the rehabilitation program he was going to attend
upon his release from jail. After returning from the furlough, the Petitioner was charged with
introduction of controlled substances into a penal institution. The Petitioner admitted he was
charged only days before his scheduled release. He said that Ms. Norman was his
community corrections officer and that she coordinated his release date and his acceptance
into the program.
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The Petitioner testified that the case in which he thought he “flattened” his sentence
was in general sessions court. He agreed that regardless of whether he was on probation in
general sessions court for an unrelated case, he still had a seven-year sentence in criminal
court related to the burglary and felony theft. When asked if he had understood that the
introduction of a controlled substance into a penal institution charge provided an adequate
basis for the State to revoke the seven-year plea offer relative to the burglary and theft, the
Petitioner stated, “Mr. Galloway, I’m a career criminal offender pretty much, and you’ve
been more than lenient with me on this, I know that. But, yeah, I [knew] what could happen
and what should happen.”
The Petitioner testified relative to case number 10-108 that during the plea
negotiations, counsel told him that “the State’s gonna dismiss this charge and throw it out
and . . . you can go ahead and do the violation time.” The Petitioner told counsel that he was
not on probation and said he understood counsel to be talking about the misdemeanor theft
probation. The Petitioner said he only wanted medical treatment while the controlled
substance charge was pending. He asked counsel to obtain a medical furlough, and counsel
advised that a furlough was no longer possible given the circumstances underlying the
controlled substance charge. The Petitioner agreed that he ultimately pleaded guilty to
possession of a controlled substance in a penal institution and understood the five-year
sentence was consecutive to the seven-year sentence related to the burglary and misdemeanor
theft. The Petitioner understood that after serving one year in jail, he would be released to
a long-term rehabilitation program and that he would serve the remainder of his sentence on
probation. He stated that he went to the rehabilitation program, that he was discharged from
the program, that a probation violation warrant was filed, and that the trial court revoked his
probation and ordered him to serve the effective twelve-year sentence.
The Petitioner testified that he asked counsel to withdraw his guilty plea about two
weeks after the guilty plea hearing but before he entered the rehabilitation program. He said
there was insufficient evidence regarding the controlled substance conviction. He said
counsel told him that the case did not have any discoverable evidence, although he agreed
the officer who found the drugs testified at the preliminary hearing. The Petitioner said he
asked counsel if he could be convicted based solely on the officer’s testimony, and counsel
said he could be convicted given the officer’s experience with narcotics. He understood he
would still face a probation revocation and a controlled substance charge even if the guilty
plea were successfully withdrawn.
Community Corrections Officer Candace Norman testified that she assisted the
Petitioner in finding a long-term rehabilitation program in Florida. She recalled that the
Petitioner had no identification or birth certificate and that some form of identification was
required for acceptance into a rehabilitation program. The Petitioner was granted a furlough,
but he failed to comply with the requirement that he was to be in the attendance of his
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brother, Mark King, at all times. The Petitioner was charged with the controlled substance
offense when he returned to the jail from his furlough.
Ms. Norman testified that during the furlough, she worked on finding a rehabilitation
program in Florida, but the Petitioner did not think she was working fast enough. The
Petitioner contacted counsel because he thought counsel could work faster. Ms. Norman and
counsel spoke twice and discussed who was going to work with the program administrators.
They decided Ms. Norman would work with the program because Ms. Norman had worked
with the program administrators previously and counsel had not. Ms. Norman agreed to keep
counsel informed of her progress. She said that the problem with the Petitioner was his
complaining about the speed in which she was working on his acceptance into the desired
program and that he “twist[ed] things” when he talked to counsel. She said the incident
during which she took the telephone from the Petitioner and spoke to counsel was one of the
conversations they had about who was going to work with the program. She denied she took
the telephone from the Petitioner when he and counsel were discussing the plea offer.
Ms. Norman testified that although the Petitioner did not obtain identification during
his furlough, she obtained an expired driver’s license from the Petitioner and sent it to the
rehabilitation program administrators. The Petitioner participated in an intake interview for
the program over the telephone, and Ms. Norman said the program accepted the Petitioner.
She said the Petitioner was ultimately discharged from the program. She had no knowledge
of the Petitioner’s desire to withdraw his guilty plea.
On cross-examination, Ms. Norman testified that the Petitioner was accepted into the
rehabilitation program about one month after he entered his guilty plea. She said that
acceptance into a program usually took about three weeks but that the Petitioner’s lack of
valid identification delayed the process.
On redirect examination, Ms. Norman testified that if the Petitioner told the person
conducting the intake interview that he had a bad gall bladder, the rehabilitation program
would have told her that the medical problem had to be resolved before the Petitioner could
be admitted into the program. She was not present during Mr. Moggett’s testimony at the
probation revocation hearing and had no knowledge he testified that the Petitioner reported
“stomach problems” on the program application.
Counsel testified that he had practiced law for two and one-half years and that he was
appointed to represent the Petitioner in 2010 in general sessions court. He said that the
Petitioner stated numerous times that he did not believe he was on probation because he had
flattened his sentence and that the probation violation was a mistake. Counsel researched the
issue. He explained to the Petitioner that the probation violation report was filed before the
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general sessions sentence expired. Counsel also learned that the Petitioner was on probation
in criminal court and explained to the Petitioner that he might face a probation revocation in
criminal court.
Counsel testified relative to amending the drug-related charge to possession of a
controlled substance that the probation violation warrant stated that the charge was
possession, not introduction, and that counsel advised the Petitioner that possession was a
misdemeanor charge. After he reviewed the arrest warrants from general sessions court, he
learned the charge was possession of Schedule II and III controlled substances in a penal
institution and explained the implications of that charge accordingly. The Petitioner told
counsel that the pills were not his and claimed that the tight living arrangements in the jail
made it relatively easy for another inmate to place the pills in a sock on the Petitioner’s mat.
Counsel spoke to another inmate who confirmed the Petitioner’s theory. Counsel planned
to present the inmate at the preliminary hearing, but the inmate’s testimony changed
completely when counsel prepared him for court.
Counsel testified that he explained the risk of going to trial given the Petitioner’s
extensive criminal history. Counsel requested the State’s discovery package but had not
received it at the time of the guilty plea. Counsel explained to the Petitioner that if he wanted
to accept the plea offer, his acceptance would be without the benefit of the State’s discovery
package. Counsel explained to the Petitioner, though, that they had the benefit of the
preliminary hearing testimony and that despite any weaknesses in the State’s case, the
Petitioner faced a potentially lengthy sentence and consecutive service.
Counsel testified that he did not have the laboratory analysis report regarding the
contents of the pills but said the officer who testified at the preliminary hearing identified
them by their appearance. He agreed that the Petitioner never claimed the pills were “fake”
or were not controlled substances. The Petitioner told counsel that his primary objective was
to negotiate a plea agreement that would permit him to attend a rehabilitation program.
Counsel and the prosecutor discussed a program at length. Counsel recalled the State was
not initially receptive to the proposal and wanted the Petitioner simply to serve his sentence.
Counsel testified that he explained to the Petitioner that the drug-related charge was
not the only concern because the Petitioner faced a probation revocation of his seven-year
sentence in case number 9536. Counsel discussed the risks associated with accepting twelve
years’ probation, and he noted the State’s agreeing to a rehabilitation program was very
important to the Petitioner. He noted the Petitioner immediately pleaded guilty when the
parties agreed to twelve years, which permitted him to attend a program.
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Counsel testified that he recalled the Petitioner’s complaining of bad headaches
related to black mold in the jail and that the Petitioner made these complaints when he visited
the Petitioner at the jail relative to preparing the Petitioner for the preliminary hearing and
for a criminal court appearance. Counsel mentioned the Petitioner’s concerns about the mold
to the sheriff and to correction officers. He did not recall any other health-related
complaints.
Counsel testified that the Petitioner complained about the speed in which Ms. Norman
worked to get him admitted into a rehabilitation program. Counsel and Ms. Norman
discussed her progress, and Counsel decided to permit Ms. Norman to continue her work
based on her experience with rehabilitation programs. Counsel relied on Ms. Norman
because probation officers had “better access to dealing with that.” The Petitioner
complained to counsel that he wanted to be released on a specific date and to a specific
program. Counsel explained to the Petitioner before he entered his guilty plea that those
terms were not part of the plea agreement. Counsel also explained after the plea hearing that
no guaranteed date of release existed and that no agreement existed for a particular program.
The Petitioner thought the plea agreement had been violated because he was not going to be
released on a certain date or to a specific program, and counsel said he explained to the
Petitioner that those were not grounds upon which a guilty plea could be withdrawn.
On cross-examination, counsel testified that he had only practiced law about one or
two months at the time he was appointed to the Petitioner’s case and that he had handled
about ten to twelve felony cases before his appointment in this case. He did not recall the
Petitioner’s being ill on the day he pleaded guilty but recalled the Petitioner said he was
“frustrated.” Counsel recalled that the Petitioner was given the option to flatten the seven-
year sentence and that the Petitioner rejected that plea offer because he wanted to attend a
rehabilitation program.
Counsel testified that the Petitioner asked for a medical furlough to be included in the
plea agreement but that the State would not agree to it. Counsel explained to the Petitioner
that a medical furlough would not be included in any plea agreement because the drug-related
charge came about after the Petitioner brought drugs into the jail after being granted a
furlough.
Upon questioning by the post-conviction court, counsel testified that he began
practicing law in 2010. He said that he would not have done anything differently during his
representation of the Petitioner. He said the Petitioner likely faced serving seven years on
his original conviction after a revocation hearing and also serving a lengthy sentence on the
drug-related charge because of his criminal history. Counsel noted the likelihood of
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consecutive service because the drug-related offense was committed while the Petitioner was
on a furlough.
On recross-examination, counsel testified that although the pills found inside the jail
had not been analyzed, he told the Petitioner that the identity of the pills would have been
proven at a trial. Counsel likewise told the Petitioner that if he pleaded guilty, he was doing
so without the benefit of a laboratory report. Counsel stated that the Petitioner was willing
to waive the right to receive a laboratory report in order to obtain the sentence he received
and to attend a rehabilitation program. On further redirect examination, counsel agreed that
he had no evidence showing the pills were lost and could not be analyzed.
The Petitioner was recalled in rebuttal and testified that Mr. Moggett from the
rehabilitation program had testified at the probation revocation hearing that the Petitioner
informed the staff of his stomach problems and that the staff allowed the Petitioner to obtain
outside medical treatment. The Petitioner claimed he did not know his stomach problems
were the result of his gall bladder. Relative to the plea negotiations, he recalled that at one
point, the State offered to dismiss the drug-related offense and proceed with a revocation
hearing on the seven-year sentence. He asked counsel if he could get a medical furlough
because he was sick, and counsel told him a furlough would not be possible. The Petitioner
said he “figured as much.” He said he was sick on the day he pleaded guilty and was “real
frustrated.” He said, “In hindsight, I would have never pled, never. I mean, it is what it is.”
Upon discussion with the parties, the post-conviction court permitted the Petitioner
to late file his medical records. Counsel told the court that the Petitioner believed the records
would show the Petitioner was suffering from gall bladder problems on January 24, 2011,
when he pleaded guilty. The court stated it would “take that for the truth ” but found that the
medical records were not suggestive of any involuntariness.
The post-conviction court reviewed the guilty plea hearing transcript and found that
the Petitioner answered questions appropriately and that his dialogue with the trial court was
appropriate. The post-conviction court found no evidence in the transcript suggesting “a
problem” with the guilty plea.
The post-conviction court noted the discrepancy between the Petitioner’s testimony
and that of counsel and Ms. Norman. The court credited counsel and Ms. Norman and noted
that the Petitioner would have been unsatisfied with “any situation that we could have
designed.” The court found that the prosecutor offered to dismiss the drug-related charge if
the Petitioner agreed to serve the seven-year sentence but that the Petitioner rejected that
offer. The court noted the Petitioner made a tactical decision, which carried risk. The court
found that no evidence showed that counsel was overbearing in his advice to the Petitioner
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and that the Petitioner entered a voluntary and intelligent wavier of all his rights at the guilty
plea hearing. The court found that the Petitioner failed to show that he did not understand
what was happening at the guilty plea hearing and stated that it was not sure if any
responsible lawyer would have pleased the Petitioner. The court found that counsel provided
effective assistance.
The post-conviction court filed a written order denying post-conviction relief. In the
order, the court found that the Petitioner’s guilty plea was freely, voluntarily, and intelligently
made and that counsel provided effective assistance. The court found that counsel’s advice
concerning the appropriateness of the guilty plea was proper and that counsel was adequately
prepared. The court found that counsel performed the necessary investigation to advise the
Petitioner properly and that the Petitioner knowingly waived any further preparations in order
to plead guilty. This appeal followed.
Post-conviction relief is available “when the conviction or sentence is void or voidable
because of the abridgement of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A. § 40-30-103 (2012). A petitioner has the burden
of proving his factual allegations by clear and convincing evidence. Id. § 40-30-110(f)
(2012). A post-conviction court’s findings of fact are binding on appeal, and this court must
defer to them “unless the evidence in the record preponderates against those findings.”
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see Fields v. State, 40 S.W.3d 450, 456-
57 (Tenn. 2001). A post-conviction court’s application of law to its factual findings is
subject to a de novo standard of review without a presumption of correctness. Fields, 40
S.W.3d at 457-58.
I
Ineffective Assistance of Counsel
The Petitioner contends that he received ineffective assistance because counsel failed
to inform him of the proper classification of the charge, failed to ask for a medical furlough,
failed to obtain all discoverable evidence, and failed to withdraw his guilty plea. The State
responds that counsel provided effective assistance. We agree with the State.
To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364,
368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to an
accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See State
v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
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A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services rendered
. . . , are [not] within the range of competence demanded of attorneys in criminal cases.”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The
post-conviction court must determine if these acts or omissions, viewed in light of all of the
circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may not
second-guess a reasonably based trial strategy by his counsel, and cannot criticize a sound,
but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference, however,
only applies “if the choices are informed . . . based upon adequate preparation.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice prong, a
petitioner must show that “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. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
Regarding counsel’s failure to inform the Petitioner of the proper classification of the
drug-related charge, the record reflects that counsel initially told the Petitioner that he was
charged with a Class A misdemeanor. Counsel, however, learned the Petitioner was charged
with a Class C felony after he received the arrest warrants from general sessions court.
Counsel told the Petitioner about the correct offense classification before the guilty plea
hearing. We note the Petitioner told the trial court at the guilty plea hearing that he
understood he was pleading guilty to a Class C felony that carried a possible sentence of
three to fifteen years. The Petitioner is not entitled to relief on this basis.
Relative to counsel’s failure to request a medical furlough, the record reflects that
counsel only recalled the Petitioner’s complaining about headaches associated with black
mold at the jail. Likewise, counsel said the Petitioner’s complaining occurred during
counsel’s visits at the jail, not at the courthouse, and counsel mentioned the Petitioner’s
complaints to the sheriff and to correction officers. Although the Petitioner claims that he
would have been granted a furlough for medical treatment had counsel requested it, counsel
testified that he requested a medical furlough during plea negotiations but that the State
refused. The Petitioner’s possession of a controlled substance in a penal institution charge
occurred as a result of the Petitioner’s return from a furlough. We note Ms. Norman’s
testimony that the Petitioner failed to obtain the identification required for his long-term
rehabilitation program and to remain in the attendance of his brother during that furlough.
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Counsel properly advised the Petitioner that the State and the trial court would not agree to
another furlough given his conduct during the previous furlough. The Petitioner is not
entitled to relief on this basis.
Relative to the State’s discovery package, the record reflects that at the time of the
guilty plea hearing, the pills found in the Petitioner’s possession had not been analyzed. The
officer who found the pills testified at the preliminary hearing regarding his experience with
controlled substances and identified the pills based on their appearance. During the plea
negotiations, counsel advised the Petitioner that he had not received the State’s discovery
package and that accepting the State’s plea offer at that time would be without the benefit
of the laboratory analysis. Counsel explained that in the absence of an analysis report, the
officer who testified at the preliminary hearing could provide consistent testimony at a trial.
Counsel also explained to the Petitioner that regardless of any weaknesses in the evidence,
he faced a potentially lengthy sentence as a possible career offender and consecutive service.
We note the Petitioner never claimed the pills were not a controlled substance. Counsel
explained to the Petitioner the risks associated with twelve years’ probation, but the
Petitioner’s primary objective was to obtain an agreement that would permit him to attend
a long-term rehabilitation program. Counsel testified that the Petitioner was willing to waive
the right to receive a laboratory report in order to obtain the sentence he received and to
attend a rehabilitation program. The record reflects that the Petitioner accepted the plea offer
after being informed of the status of the State’s discovery package. We note that at the guilty
plea hearing, the Petitioner told the trial court that he was satisfied with counsel’s work and
investigation in this case and that he had no complaints to report about counsel. The
Petitioner is not entitled to relief on this basis.
Relative to counsel’s failure to withdraw the Petitioner’s guilty plea, the record
reflects that the Petitioner complained to counsel about the slow rate in which Ms. Norman
worked to get him admitted into a long-term rehabilitation program. Counsel and Ms.
Norman spoke about who was going to coordinate the program, and they agreed Ms. Norman
would continue her work because she was familiar with the process and had more access to
the appropriate administrators. Although the Petitioner told counsel that the plea agreement
had been violated because he was not going to be released on a specific date or to a specific
program, counsel advised the Petitioner that those were not grounds upon which a guilty plea
could be withdrawn. The Petitioner failed to present evidence at the post-conviction hearing
that a basis existed to withdraw his guilty plea. The Petitioner is not entitled to relief.
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II
Involuntary Guilty Plea
The Petitioner contends that his guilty plea was not freely, voluntarily, and
intelligently entered. He argues that his sickness on the day of the guilty plea hearing
affected his ability to “make a smart choice” and that he would not have pleaded guilty had
he not been ill. The State responds that the Petitioner failed to show by clear and convincing
evidence that his guilty plea was unknowing and involuntary. We agree with the State.
The Supreme Court has concluded that a guilty plea must represent 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). A trial court must examine in detail “the matter
with the accused to make sure he has a full understanding of what the plea connotes and of
its consequence.” Boykin v. Alabama, 395 U.S. 238, 243-44 (1969); see Blankenship v.
State, 858 S.W.2d 897, 904 (Tenn. 1993). Appellate courts examine the totality of
circumstances when determining whether a guilty plea was voluntarily and knowingly
entered. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). A guilty plea is not
voluntary if it is the result of “[i]gnorance, incomprehension, coercion, terror, inducements,
[or] subtle or blatant threats.” Boykin, 395 U.S. at 242-43; see Blankenship, 858 S.W.2d at
904. A petitioner’s representations and statements under oath that his guilty plea is knowing
and voluntary create “a formidable barrier in any subsequent collateral proceedings [because]
[s]olemn declarations . . . carry a strong presumption of verity.” Blackledge v. Allison, 431
U.S. 63, 74 (1977).
The record reflects that at the guilty plea hearing, the trial court advised the Petitioner
that he was under oath and subject to the penalties of perjury if he answered the court’s
questions falsely. The court told the Petitioner that he should notify the court if he did not
understand any of the questions, and the Petitioner indicated he understood. The court told
the Petitioner that possession of a controlled substance in a penal institution was a Class C
felony and carried a possible sentence of three to fifteen years, and the Petitioner said he
understood the felony classification and the possible sentence. The Petitioner said he
understood he had the rights to plead not guilty, to have a trial, to testify or not to testify, to
subpoena witnesses, and to an appeal. The Petitioner said he understood that by pleading
guilty, he was giving up those rights.
The Petitioner told the trial court that he understood his conviction could be used to
enhance any future sentence and could be used to impeach any future sworn testimony. The
Petitioner understood that he was going to lose the right to vote and to run for public office
as a result of being convicted of a felony. The Petitioner said he was thirty-eight years old,
had completed the eleventh grade, and was literate.
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The Petitioner told the trial court that by signing the plea agreement form, he was
indicating that he read and understood the form. The Petitioner denied being under the
influence of alcohol, drugs, or medication that might cause him not to understand what was
happening. The Petitioner denied anyone threatened or forced him to plead guilty or made
promises in exchange for his guilty plea. The Petitioner claimed he was pleading guilty
freely.
The Petitioner told the trial court that he was satisfied with counsel’s work and
investigation of the facts and law relevant to his case and thought counsel would have been
ready for a trial. The Petitioner had no complaints about counsel’s performance. Counsel
told the court that he was satisfied with the court’s procedures at the guilty plea hearing and
with counsel’s investigation of the facts and law to the point that he was satisfied with the
recommendations he made to the Petitioner. The Petitioner told the court that he was guilty
of possession of a controlled substance in a penal institution and agreed he was pleading
guilty because he was guilty.
The parties stipulated that on August 20, 2010, the Petitioner knowingly possessed a
Schedule II controlled substance in the Fentress County Jail, a penal institution where
prisoners were quartered, and that the Petitioner possessed the substance without any express
authorization from the sheriff or jail administrator. The Petitioner agreed with the facts as
recited by the State, and counsel said the facts were consistent with his investigation. The
trial court accepted the guilty plea.
We conclude that the record does not preponderate against the post-conviction court’s
finding that the Petitioner knowingly, voluntarily, and intelligently entered his guilty plea.
The record shows that at the guilty plea hearing, the trial court reviewed the appropriate
matters with the Petitioner pursuant to Tennessee Criminal Procedure Rule 11 and that the
Petitioner understood his rights, the offense to which he was pleading guilty, and the agreed-
upon sentence. The transcript of the guilty plea hearing fails to show any mention of the
Petitioner’s being ill on the day he entered his guilty plea. Likewise, counsel testified that
the Petitioner only complained of headaches from black mold and that those complaints were
made when counsel visited the Petitioner at the jail. The record shows that the Petitioner had
an extensive criminal history and was familiar with court proceedings. The Petitioner wanted
a plea agreement that would permit him to attend a long-term rehabilitation program. In that
regard, counsel obtained what the Petitioner wanted. The Petitioner’s guilty plea was not the
result of ignorance, incomprehension, coercion, terror, inducements, or threats and as a
result, was not involuntary. See Boykin, 395 U.S. at 242-43; see also Blankenship, 858
S.W.2d at 904.
We note that the Petitioner actively participated in the plea negotiations on the day he
entered his guilty plea. After counsel advised the Petitioner that the State would not agree
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to a furlough, the Petitioner told counsel to tell Deputy District Attorney John Galloway, “I’ll
give him three years running wild with this.” Counsel told the Petitioner that Mr. Galloway
would agree to five years for possession of a controlled substance in a penal institution. The
Petitioner said, “[T]hat was that on that.” The Petitioner failed to present evidence that his
guilty plea was unknowing and involuntary. The Petitioner is not entitled to relief on this
basis.
In consideration of the foregoing and the record as a whole, the judgment of the post-
conviction court is affirmed.
____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
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