Henry Lee Burrell v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 10, 2017

HENRY LEE BURRELL v. STATE OF TENNESSEE

Appeal from the Circuit Court for Lincoln County

No. 2013-CR-57 Forest A. Durard, Jr., Judge

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No. M2015-02115-CCA-R3-PC – Filed March 9, 2017

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Henry Lee Burrell (“the Petitioner”) pled guilty to six counts of first degree murder and

was sentenced to four concurrent and two consecutive life sentences under the terms of a

plea agreement. The Petitioner filed a petition for post-conviction relief, which the post-

conviction court denied after a hearing. The Petitioner now appeals the denial of his

petition for post-conviction relief, contending: (1) that the post-conviction court erred in

denying his request for a psychological examination at the post-conviction hearing; (2)

that his guilty plea was unknowing and involuntary; and (3) that trial counsel rendered

ineffective assistance of counsel. After a thorough review of the record and applicable

case law, we affirm the post-conviction court‟s denial of relief.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Melissa L. Thomas (post-conviction hearing), Fayetteville, Tennessee, and Elizabeth

Russell (on appeal), Franklin, Tennessee for the appellant, Henry Lee Burrell.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Robert J. Carter, District Attorney General; Ann L. Filer, Deputy District Attorney

General; and Michael D. Randles, Assistant District Attorney General, for the appellee,

State of Tennessee.

OPINION

I. Factual and Procedural Background

Guilty Plea Submission Hearing

On January 22, 2014, the Petitioner entered a guilty plea to six counts of first

degree premeditated murder. Under the terms of the plea agreement, the Petitioner

received six life sentences; two life sentences were to be served consecutively to each

other and the remaining four life sentences were to run concurrently. The State offered

the following recitation of facts in support of the Petitioner‟s guilty plea:

The [Petitioner] in this case[] . . . met an individual named Warren

Vincent Crutcher while both of these men were incarcerated prior to 2012.

In 2012, Warren Crutcher was engaged in the sale of illegal drugs,

and [the Petitioner] became a member of Mr. Crutcher‟s crew. In the fall of

2012, another individual named [co-defendant] Zakkawanda Moss had

been released on parole. And [the Petitioner] brought [co-defendant] Moss

into the drug operation as well.

Warren Crutcher had expressed a desire or an interest in relocating

his operation to Atlanta, Georgia, or to ceasing his operation and ending his

involvement in the drug business. But the move to Atlanta . . . would have

left the [Petitioner] and [co-defendant] Moss without their current

livelihood of selling drugs.

In addition Mr. Crutcher was thought to have been using drugs

himself by the [Petitioner], to the point that [the Petitioner] considered

Warren Crutcher to be unreliable in the business.

The [Petitioner] and [co-defendant] Moss decided that they would

murder Warren Crutcher. And [they] decided that they would steal his

money and his drugs, which [the Petitioner] and [co-defendant] Moss knew

were customarily hidden at the Lincoln County home where Warren

Crutcher resided, at the time[,] [with] two of his female[] companions and

those females‟ children as well as his.

On October the 21st, and into October 22nd, the [Petitioner] lured

Warren Crutcher to meet [the Petitioner] and [co-defendant] Moss at one of

those residences here in Lincoln County, Tennessee.

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Unbeknownst to [the Petitioner], Warren Crutcher had a friend with

him, a relatively new girlfriend named Amber McCaulley.

Ms. McCaulley was executed, and her body was dragged from the

vehicle inside the garage of the Huntsville Highway house here in Lincoln

County, Tennessee, and ultimately placed or thrown into a makeshift

laundry room inside the garage of the Huntsville Highway house. . . .

Thereafter, the [Petitioner‟s] crime spree moved inside the

Huntsville Highway house. This house was then occupied by a pregnant

female named Chabreya Campbell as well as her two young sons; including

16-month-old [R.R.],1 who was ultimately stomped to death by [the

Petitioner] and [co-defendant] Moss. And the State‟s theory is that this was

to coerce information from Chabreya Campbell.

Chabreya Campbell was ultimately beaten, tied up, and placed in a

bathtub partially filled with water, where Chabreya Campbell was

ultimately strangled by means of ligatures around her neck, where she died.

Chabreya‟s unborn daughter at the time was an eight-month-old

fetus, [who] died along with her mother. That baby has since been named[]

and buried. Her name was [N.C.].

Thereafter, the [Petitioner] and [co-defendant] Moss moved their

killing spree to the home of another individual, a female named Jessica

Brown. . . . Inside Ms. Brown‟s house, Jessica lived with her two-month-

old son.

The two men entered the house and beat and subdued Ms. Brown,

tying her up and putting her in the bathtub, again, partially filled with

water.

There, Jessica Brown was tortured with ligatures around her throat,

pulled tight, pulled repeatedly, ultimately the cords and strings cut multiple

times into the flesh of Jessica Brown, and ultimately killed her.

1

It is the policy of this court to refer to minor victims by their initials. We intend no disrespect.

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The . . . Huntsville Highway house and . . . [Ms. Brown‟s house]

were ransacked by the two men, including the [Petitioner], and ultimately

looted by the two men.

Warren Crutcher was then executed. He was shot from behind,

while he was seated in a white rental car, a Hyundai Elantra. Warren

Crutcher bled copiously as his body was taken from the murder location in

Tennessee, to a secluded wooded spot located just across the Alabama state

line, and dumped, before being covered with branches and leaves on the

dumpsite. And this was located just off of BH Reeves Road, several

hundred yards south of the state line and ultimately in Madison County,

Alabama.

[Co-defendant] Moss and [the Petitioner] drove . . . Warren

Crutcher‟s vehicle to Huntsville, Alabama. The vehicle was dropped off at

an apartment complex on Sparkman Drive in Huntsville, where [the

Petitioner‟s] girlfriend was summoned to pick [the Petitioner] and [co-

defendant] Moss up.

When [the Petitioner] and [co-defendant] Moss got into the

girlfriend‟s vehicle, they had blood on them, [and] they had the odor of

blood on them as well.

[The Petitioner] was wearing gloves. [Co-defendant] Moss was

carrying weapons. And these weapons were taken from the deceased

Warren Crutcher.

The men then tried to get more money by using the deceased Warren

Crutcher‟s debit card at a location on Sparkman Drive, the Wal-Mart

shopping center.

In addition, these individuals stopped again at a Wavaho Gas Station

on Winchester Road in North Madison County, in an effort to use the

deceased Warren Crutcher‟s debit card, to again get more profit or more

gain from the murder[] [of] the deceased Warren Crutcher.

[The Petitioner] and [co-defendant] Moss‟[s] bloody clothes were

disposed of in a dumpster, at an apartment complex in Madison County,

Alabama.

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During the plea colloquy, the Petitioner agreed that he had read his plea petition

and understood its contents. The Petitioner also agreed that he understood the charges

against him and the potential sentences he could receive for those charges. The trial court

informed the Petitioner of the elements that the State would have to prove at trial before

the Petitioner could be convicted of first degree premeditated murder. The Petitioner

agreed that it was his desire to enter a guilty plea despite his prior request for a speedy

trial under the Interstate Compact on Detainers. The following exchange occurred

between the trial court and the Petitioner:

TRIAL COURT: Okay. Have you thought about your right to a trial

in this case --

THE PETITIONER: Yes, sir.

TRIAL COURT: -- and decided -- All right. And now having

previously been insisting upon that right, is it your desire to withdraw your

request for that speedy trial?

THE PETITIONER: No, sir.

TRIAL COURT: Do you understand my question?

THE PETITIONER: What did you say?

TRIAL COURT: All right. Are you insisting upon – I‟m asking you

what changed your mind.

THE PETITIONER: Eventually I just want[ed] to get it over with.

TRIAL COURT: Do you think it‟s – is it based upon what your

attorneys have presented to you and based upon of course what happened to

your co-defendant, that you decided to change your mind?

THE PETITIONER: No. I just want to get it over with myself.

TRIAL COURT: Okay. Well, in that particular situation, [the

Petitioner], are you just rushing in this to get it over with and . . . why are

you saying you want to get it over with? Define what you mean.

THE PETITIONER: Define what I mean?

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TRIAL COURT: Yes. Okay. At first you were insisting upon your

rights to a trial, and now you want to get it over with. I just want to make

sure that this is your free and voluntary act.

THE PETITIONER: Yeah, this is my free and voluntary act.

The Petitioner agreed that he had discussed the State‟s evidence against him with

counsel2 and that counsel answered any questions that he had concerning the State‟s

evidence. The Petitioner agreed that he understood that the plea agreement specified that

he would receive two consecutive and four concurrent life sentences of sixty years with

release eligibility after 100% of service with maximum credits of fifteen percent. The

Petitioner agreed that he had the right to proceed to trial, to be represented by counsel at

trial, to testify or not testify at trial, to confront the State‟s witnesses, and to present his

own proof. The Petitioner agreed that it was his desire to plead guilty and that he was

guilty of six counts of first degree premeditated murder. The Petitioner stated that he

understood that by entering a guilty plea he would waive his right to a jury trial and to

appeal his convictions. The Petitioner again affirmed that entering the guilty plea was his

free and voluntary act. The Petitioner stated that he had not been promised anything in

exchange for pleading guilty and had not been threatened or forced to plead guilty. The

Petitioner again agreed that entering the guilty plea was his free and voluntary act. The

Petitioner stated that he did not have any complaints about counsel‟s representation. The

trial court found that the Petitioner was “competent to enter his plea of guilty[,] that he

underst[ood] the direct and relevant consequences of that plea[,] that [he entered] th[e]

plea knowingly, understandingly and voluntarily[,] and [that there was] a factual basis for

th[e] plea.” The trial court accepted the Petitioner‟s guilty plea.

Post-Conviction Proceedings

The Petitioner filed a timely petition for post-conviction relief. At the post-

conviction hearing, the Petitioner testified that he finished the eighth grade in Alabama

and started the ninth grade but did not complete that grade. He stated that, while he was

in school, he was in a special education classroom because he was a “slow learner.” He

stated that he could read “all right” and that his writing skills were “decent” but “not

good.” The Petitioner testified that, while he was in school, he received mental health

counseling at the Mental Health Center in Huntsville, Alabama. He also received mental

health counseling while he was incarcerated in the Madison County Jail in Alabama, the

2

During the course of this case, several attorneys assisted with the Petitioner‟s representation.

For purposes of clarity, we will refer to the attorneys collectively as “counsel” and individually as “lead

trial counsel” or “co-counsel.”

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Alabama state prison system, and the Tennessee state prison system. The Petitioner

stated that he had been treated previously for bipolar disorder, stress, and anxiety.

The Petitioner testified that he met with counsel while he was incarcerated at

Riverbend Maximum Security Prison (“Riverbend”) in Nashville, where he was in

isolation and he had very little contact with other people. He stated that, during his first

meeting with counsel, they discussed whether the Petitioner would plead guilty and

accept a life sentence, but they did not discuss trial strategy or the evidence against him.

Moreover, counsel did not ask him about his education, his mental health, or the

possibility of having a competency evaluation. The Petitioner stated that he was later

transferred from Riverbend to a county jail in Lewisburg where he was also placed in

isolation. Two investigators from the Public Defender‟s Office met with him while he

was incarcerated in this facility and showed him some “films” of the crime scene, but the

investigators could not answer his questions about his case. The Petitioner stated that

lead trial counsel informed him that she was not “death certified” and that she would

“lose the case” if the State filed a notice seeking the death penalty, which made him feel

like he could not proceed to trial because he would lose and receive the death penalty.

The Petitioner also stated that he requested several times that lead trial counsel provide a

copy of his discovery materials, but he never received any discovery. The Petitioner

testified that he was unsure of how his cellphone records could affect his case because he

spoke with Mr. Crutcher every day, and counsel did not explain the ramifications of this

evidence to him.

The Petitioner testified that an employee from the Public Defender‟s Office

observed co-defendant Moss‟s trial, but counsel only told him that the testimony

presented at co-defendant Moss‟s trial was mostly about the Petitioner. The Petitioner

testified that, when he observed co-defendant Moss‟s sentencing hearing, he had been in

isolation for almost a year in different prison facilities, he was depressed, and he wanted

to “have contact with people.” He stated that lead trial counsel told him that he “might as

well just plead guilty, because she said the people from Lewisburg[,] they [were]

conservative, they [were] from her hometown.” The Petitioner stated that lead trial

counsel told him that, if his trial received a change of venue, the jury would not like the

fact that they had to travel and that the jury would find him guilty. The Petitioner also

testified that counsel showed him a death penalty notice from the State, but he stated that

counsel had not discussed the possibility that he might receive the death penalty until that

time.

The Petitioner testified that he felt forced to plead guilty because lead trial counsel

had told him that she was not “death certified” and that the jury would find him guilty

and because he had never received a copy of his discovery to help determine whether he

should proceed to trial. The Petitioner stated that he was not guilty of the six charges of

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first degree premeditated murder and that, during the plea colloquy, he informed the trial

court that his guilty plea was not coerced because he “want[ed] to get this over with.”

The Petitioner stated that he was “all [shaken] up” when he pled guilty because he was

defending himself against false allegations while separated from his family. He testified

that he thanked lead trial counsel for representing him because he was “trying to convince

her to give [him] [his] discovery.” The Petitioner stated that he was receiving treatment

for anger management and counseling while incarcerated.

On cross-examination, the Petitioner stated that he agreed with the State‟s

recitation of facts and agreed with the trial court that he was guilty of six counts of first

degree premeditated murder during the plea colloquy because he was not in his “right

state of mind at the time.” The Petitioner testified that, when the trial court asked the

Petitioner at the plea colloquy if he had any health problems, the Petitioner did not tell

the trial court that he was not in his “right state of mind” because “[he] wasn‟t in [his]

right state of mind to tell [the trial court] that.” The Petitioner stated that he informed the

trial court that he did not have any complaints about counsel‟s representation because he

“was ready to get this over with.” The Petitioner stated that he informed several

employees from the Public Defender‟s Office that he disliked being housed in isolation,

but he denied that “[his] main concern was finding out what privileges [he was] going to

get and what level [of] security [he was] going to be once [he was] sentenced[.]” The

Petitioner denied that he asked co-counsel for a mental evaluation approximately one

month before his scheduled trial date. The Petitioner did not remember that co-counsel

informed him that requesting a mental health evaluation so close to trial might give the

State more time to file a death penalty notice.

The Petitioner stated that he pled guilty to eleven different offenses between 1996

and 2008 in Alabama. The Petitioner testified that he had never been found to be

incompetent to stand trial or to plead guilty in any of his prior criminal cases in Alabama.

When asked if the trial court explained his rights to him during his plea colloquy in the

instant case, the Petitioner responded that he “believe[d] he did, [but he was not] for

sure.” The Petitioner testified that he experienced “a lot more stress” when he pled guilty

in the current case than he had experienced in past cases. The Petitioner agreed that he

never informed the trial court that he was stressed and did not understand what was going

on during the guilty plea submission hearing but stated that counsel should have informed

the trial court during the plea colloquy that he was experiencing stress. He explained that

he told the trial court during the plea colloquy that his guilty plea was made freely and

voluntarily and that no one had made threats or promises to force him to plead guilty

because counsel told him to answer “yes” to all of the trial court‟s questions.

The Petitioner stated that he did not remember informing counsel that a third

individual was involved in the offenses. The Petitioner denied that counsel told him that

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they investigated but could not find evidence of a third individual involved in the current

offenses. The Petitioner also denied that, after counsel investigated the possibility of a

third suspect, he admitted to them that he and co-defendant Moss were the only

individuals involved in the current offenses. The Petitioner agreed that counsel discussed

with him the possibility of testifying against co-defendant Moss but stated he could not

testify against co-defendant Moss because he could not testify about something he knew

nothing about. The Petitioner asserted that lead trial counsel never informed him that

Angela Hill testified at co-defendant Moss‟s trial that, when she picked up the Petitioner

and co-defendant Moss in Huntsville, they were covered in blood, that her testimony

would be damaging to him, or that evidence that was excluded in co-defendant Moss‟s

trial might be admitted in his trial. The Petitioner testified that he did not remember

winking or smiling at the news reporter‟s camera as he walked out of his guilty plea

submission hearing. The Petitioner agreed that he was depicted in two photographs of his

guilty plea submission hearing but denied that he was winking in the photographs.

Lead trial counsel testified that she had worked as a public defender since 1992,

either as an Assistant District Public Defender or as the elected District Public Defender

of the 17th Judicial District. She testified that she “actually had every single person in

[her] office, including [her] secretaries and every single attorney working at some point

in some manner on [the Petitioner]‟s case.” Lead trial counsel stated that her office had

previously handled three death penalty cases and a mass murder case. She explained that,

“[t]o do a death penalty case in Tennessee, you have to be death penalty qualified,” “have

so much training every two years . . . [,]” and submit a form to the Administrative Office

of the Courts with the attorney‟s qualifications. Lead trial counsel testified that her office

was death penalty qualified, meaning that “there [were] enough attorneys in [her] office

that [were] death penalty qualified that [they] could handle a death penalty case.”

Lead trial counsel stated that the Petitioner‟s trial was set for February 2014 and

that she informed the Petitioner that, if the State filed a death penalty notice in his case,

her office would need to attend training in March 2014 to retain its death penalty

certification. Lead trial counsel stated that her office requested discovery from the State

and met with the Petitioner for several hours the day that he was indicted by the Lincoln

County Grand Jury. During this meeting, she discussed the trial process and his speedy

trial motion with the Petitioner, and she asked the Petitioner questions “to try and

determine whether [she] had any grounds whatsoever to ask for a mental evaluation.”

She testified that “the very first thing [she] look[ed] for when [she had] a murder case,

particularly a murder case that involve[d] a mass number of victims, [were] mental health

issues.” However, she could not determine any grounds under which she could request a

mental evaluation for the Petitioner. She also stated that, during this meeting, the

Petitioner informed her that he attended high school, that he went as far as the eleventh

grade, and that he attended regular, not special education, classes. Lead trial counsel did

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not inform the Petitioner that she was scared to go to trial or that she did not want to go to

trial nor did she discuss the possibility of proceeding to trial or entering a plea during the

first meeting. Lead trial counsel stated that, “at the very beginning, [the Petitioner] was

very insistent upon going to trial.”

Lead trial counsel testified that she, co-counsel, and two other assistant public

defenders met with the Petitioner while he was incarcerated at Riverbend. She “wanted

the other attorneys to also see if they could come up with any reason . . . to file for a

mental evaluation.” She recalled that the Petitioner seemed “at home with his situation”

at Riverbend and noted that the Petitioner “was always smiling[,]” which was unusual for

“someone who was facing such serious charges.” Additionally, lead trial counsel

testified that the Petitioner informed her that “he was able to communicate with other

inmates” by passing notes. Lead trial counsel testified that the Petitioner “didn‟t show

the level of stress and anxiety that [she had] seen in many of [her] clients before.”

Lead trial counsel could not recall how many times counsel had visited the

Petitioner, but she stated that, at a later meeting with the Petitioner, she discussed with

him the possibility of testifying against co-defendant Moss. The Petitioner “was very

frank immediately that no, he would not be willing to do that.” Lead trial counsel noted

that, up until that point, the Petitioner had denied being involved in the current offenses;

however, after declining to testify against co-defendant Moss, the Petitioner stated that

there was a third person involved in the crimes, implicating himself. Lead trial counsel

stated that the Petitioner provided her with a name, but when her investigators attempted

to track down the suspect named by the Petitioner, they could not find the individual.

Lead trial counsel stated that “finally [the Petitioner] admitted there was no third person.”

During co-defendant Moss‟s trial in November 2013, lead trial counsel testified

that someone from her office attended the trial and took notes. Further, lead trial counsel

testified that she recorded the trial, which her legal secretaries transcribed. She stated

that she read through the transcripts from co-defendant Moss‟s trial and that she

discussed the trial with the Petitioner, including testimony from specific witnesses such

as Ms. Hill. Lead trial counsel informed the Petitioner that Ms. Hill‟s testimony “was

going to be extremely damaging to him, even more so than [for co-defendant] Moss[]”

because lead trial counsel believed that some of Ms. Hill‟s testimony that had been ruled

inadmissible in co-defendant Moss‟s trial would be admissible in the Petitioner‟s trial.

Based on the information gathered from co-defendant Moss‟s trial, counsel informed the

Petitioner that his chances of being acquitted at trial were “not good.” However, lead

trial counsel testified that she reviewed the lab reports from co-defendant Moss‟s trial and

believed that there was no DNA evidence that tied the Petitioner to the offenses, besides a

fingerprint on a beer can in Mr. Crutcher‟s front yard.

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Lead trial counsel testified that, on December 17, 2013, an investigator from her

office gave the Petitioner “the indictments, the Rule 16 discovery, the witness list, and

some State‟s motions.” Lead trial counsel stated that she or another attorney discussed

the discovery with the Petitioner, including information regarding cellphone towers and

pinpointing the caller‟s location. However, she explained that “early on [the Petitioner]

was not interested in seeing the discovery[,]” and it was not until co-defendant Moss‟s

trial that the Petitioner “began discussing pleas more seriously.” Lead trial counsel

testified that the State provided her office with “a copy of a document out of Alabama

involving a previous case that [the Petitioner] was involved in.” The case involved an

aggravated assault charge, and the document showed that the assault involved “an older

boy who was stomped in the head by [the Petitioner].” Lead trial counsel noted that a

young child had been stomped to death in the current offenses. This connection made

counsel “very concerned about the death penalty. And [counsel were] very concerned

about that [document] being allowed into evidence, because of a signature crime.”

Lead trial counsel stated that, although it was less than thirty days until the

Petitioner‟s trial, she believed that the trial court would have allowed the State to file a

death penalty notice, but she would have asked the trial court to continue the trial. Lead

trial counsel testified that she discussed with the Petitioner what death row was like and

how he would not likely be able to have contact with his family on death row. Lead trial

counsel testified that the Petitioner instructed her to “try and reach some sort of a plea

agreement[,]” but she noted that the Petitioner did not believe that co-defendant Moss

would receive six consecutive life sentences. Because the Petitioner wanted to plead

guilty but was unsure of what sentence co-defendant Moss would receive, lead trial

counsel offered to let the Petitioner observe co-defendant Moss‟s sentencing hearing.

She stated that, after observing co-defendant Moss‟s sentencing hearing, the Petitioner

wanted to enter a guilty plea on the same day. However, lead trial counsel encouraged

the Petitioner to enter his plea the next day because she “did not want [the Petitioner] [to]

feel[] pressured in any way, shape, or form.” Lead trial counsel stated that the Petitioner

did not inform her during or after the plea submission hearing that he did not want to

plead guilty. She explained that, immediately after the plea submission hearing, she was

not looking at the Petitioner‟s expression, but she heard a reaction from the audience and

later learned that the Petitioner “had evidently made some gestures to the crowd.”

On cross-examination, lead trial counsel stated that if she had found any reason to

request a mental health evaluation for the Petitioner, even if it was only a few days before

trial, she would have asked the trial court for a mental health evaluation. Lead trial

counsel explained that she believed a mental health evaluation was not needed in the

Petitioner‟s case because, after the Petitioner admitted that he had lied about a third

person being involved in the offenses, “[the Petitioner] sat and told [lead trial counsel]

about the murders.” She explained that she did not ask any of the Petitioner‟s family

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members about his mental health or experience in special education classes during his

childhood because the Petitioner only asked her to inform his family of his trial date.

Lead trial counsel testified that she could not remember when she showed the

unsigned death penalty notice to the Petitioner, but she stated that she discussed the

possibility that the State could seek the death penalty with the Petitioner several times.

She agreed that the Petitioner was kept in isolation during his incarceration in Tennessee

before pleading guilty. Lead trial counsel stated that she asked some of the guards in the

area where the Petitioner was housed about the Petitioner, but the guards had not noticed

anything wrong with the Petitioner. Lead trial counsel did not make an official inquiry

with the Riverbend warden or mental health unit about the Petitioner‟s mental health.

Lead trial counsel testified that, even if she had known that the Petitioner had only

completed the eighth grade, that information would not have changed her conclusion that

the Petitioner did not need a mental health evaluation.

Lead trial counsel stated that she did not give the Petitioner a copy of the transcript

of co-defendant Moss‟s trial that her office prepared; however, she discussed the

transcript with the Petitioner. Lead trial counsel testified that she did not file a motion

seeking to suppress the Petitioner‟s prior conviction that involved stomping a child

because, by the time that the State informed her of that prior conviction, the Petitioner

wanted to enter a guilty plea. On redirect-examination, lead trial counsel testified that

she spoke with co-defendant Moss‟s trial counsel about the motions that co-defendant

Moss filed and his trial strategy.

Co-counsel testified that he worked for the 17th Judicial District Public

Defender‟s Office while it represented the Petitioner. He stated that he met with the

Petitioner several times and that he filled out a portion of the Rule 12 report at the end of

the Petitioner‟s guilty plea submission hearing. Co-counsel testified that the information

regarding the highest school grade that the Petitioner completed came from his office‟s

interview with the Petitioner. The report listed the Petitioner‟s highest grade completed

as the eleventh grade. He testified that he did not know whether the Public Defender‟s

Office discussed the issue of IQ specifically with the Petitioner, but he stated that

someone from his office discussed with the Petitioner “the possible need for a mental

evaluation . . . .” Co-counsel testified that he had not seen a reason to discuss the

possibility of requesting a mental health evaluation for the Petitioner until “the very end,

just shortly before he entered a guilty plea.”

On cross-examination, co-counsel testified that to his knowledge, all of the

information in the Rule 12 report was correct. Co-counsel stated that, as the Petitioner‟s

trial approached, “[the Petitioner] wanted his trial to be put off.” He testified that various

members of the Public Defender‟s Office had discussed with the Petitioner co-defendant

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Moss‟s trial and the fact that the State had given the Public Defender‟s Office an

unsigned copy of a death penalty notice. When the Petitioner asked co-counsel for a

mental health evaluation, co-counsel explained that the Petitioner did not have any reason

for a mental health evaluation. Co-counsel testified that he advised the Petitioner that a

mental health evaluation may not be in the Petitioner‟s best interest because continuing

the trial to perform a mental health evaluation would give the State more time to consider

filing a death penalty notice. He stated that the Petitioner “seemed to agree” with his

advice against requesting a mental health evaluation and that the Petitioner wanted co-

counsel to continue settlement discussions with the State.

On redirect-examination, co-counsel testified that the Petitioner never informed

him that the Petitioner was in special education classes while in school or that the highest

education level that the Petitioner had completed was eighth grade. Co-counsel testified

that he was present during the Petitioner‟s guilty plea submission hearing but that he did

not see the Petitioner wink or stick his tongue out; however, he “heard the reaction from

the crowd.”

The Petitioner was recalled and testified that he never received a copy of the

transcript of Ms. Hill‟s testimony and that neither lead trial counsel nor co-counsel

discussed Ms. Hill‟s testimony with him. The Petitioner also stated that he did not

inform lead trial counsel that he had completed the eleventh grade. On cross-

examination, the Petitioner stated that he did not ask counsel about Ms. Hill‟s testimony

and instead asked for a copy of the discovery in his case.

The post-conviction court found that the Petitioner could read, write, and “talk

articulately.” The post-conviction court noted that, during the plea submission hearing,

the Petitioner answered all of the trial court‟s questions “clearly, concisely and directly.”

The post-conviction court found that the Petitioner was “no stranger to the criminal

justice system[]” and noted that none of the Petitioner‟s guilty pleas entered in Alabama

had been set aside “for any mental health issues or competency standards.” The post-

conviction court found that the Petitioner was aware of the evidence that would have

been presented against him had he proceeded to trial because an employee of the Public

Defender‟s Office observed co-defendant Moss‟s trial every day. The post-conviction

court noted that the Petitioner could have avoided a greater penalty by pleading guilty

than what he would have received after a jury trial because the State considered filing a

death penalty notice. The post-conviction court found that the Petitioner did not indicate

to the trial court during the plea submission hearing that he did not understand what was

happening and that he “answered all the questions of the [trial] court clearly and indicated

his understanding of the proceedings.” The post-conviction court noted that, “after his

plea and upon exiting the courtroom[, the Petitioner] turned his back and then very

smugly smiled and winked at the gallery which included families of those slain.” The

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post-conviction court found that the fact that lead trial counsel and co-counsel showed the

Petitioner the unsigned death penalty notice from the State before the Petitioner entered

his guilty plea was not coercive.

The post-conviction court credited the testimony of lead trial counsel and co-

counsel and found that lead trial counsel and co-counsel did not threaten or coerce the

Petitioner to plead guilty. The post-conviction court found that the Petitioner did not

present any credible evidence that a mental health evaluation was needed other than the

Petitioner‟s own testimony and that he “produced little to no credible evidence that, but

for any of his alleged deficiencies of counsel, he would have possibly risked his life and

gone to trial.” The post-conviction court concluded that the Petitioner had failed to prove

by clear and convincing evidence that his plea was coerced or involuntary and denied his

petition for post-conviction relief. The post-conviction court also denied the Petitioner‟s

request for a mental evaluation at the post-conviction stage under Tennessee Supreme

Court Rule 13 and found that this issue had no merit. The Petitioner‟s timely appeal

followed.

II. Analysis

Standard of Review

In order to prevail on a petition for post-conviction relief, a petitioner must prove

all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,

830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and

fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound

by the post-conviction court‟s factual findings unless the evidence preponderates against

such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing

the post-conviction court‟s factual findings, this court does not reweigh the evidence or

substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40

S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,

“questions concerning the credibility of the witnesses, the weight and value to be given

their testimony, and the factual issues raised by the evidence are to be resolved by the

[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);

see also Kendrick, 454 S.W.3d at 457. The post-conviction court‟s conclusions of law

and application of the law to factual findings are reviewed de novo with no presumption

of correctness. Kendrick, 454 S.W.3d at 457.

Expert testimony at post-conviction hearing

The Petitioner argues that the post-conviction court erred by denying his request

for a mental health evaluation at the post-conviction stage. The State contends that the

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post-conviction court properly denied the Petitioner‟s request for a mental health expert‟s

evaluation and testimony.

In Owens v. State, our supreme court held that Tennessee Code Annotated section

40-14-207(b) applies to post-conviction capital cases. 908 S.W.2d 923, 927-28 (Tenn.

1995). In Davis v. State, our supreme court noted that “[i]n Tennessee there is no rule or

statute that entitles a non-capital post-conviction petitioner to state funded expert

assistance.” 912 S.W.2d 689, 695 (Tenn. 1995) (citing Tenn. Code Ann. § 40-14-

207(b)). After examining applicable cases decided by the Supreme Court of the United

States, as well as the Tennessee Constitution, our supreme court held that “the state is not

required to provide expert assistance to indigent non-capital post-conviction petitioners.”

Id. at 696-97; see also Roy Earl Collins v. State, No. 03C01-9709-CR-00389, 1998 WL

619216, at *3 (Tenn. Crim. App. Sept. 16, 1998), perm. app. denied (Tenn. Mar. 8,

1999).

In Roy Earl Collins, the petitioner pled guilty to first degree murder and received a

life sentence. Id. at *1. On appeal from the denial of post-conviction relief, this court

determined that, at the post-conviction stage, the case no longer qualified as a capital

case. Id. at 4. This court noted that, in Beeler v. State, “our supreme court adopted a

definition of a capital case from Black‟s Law Dictionary, 3d ed., as follows: A capital

case or offense is one in or for which the death penalty may, but need not necessarily be

inflicted.” Id. at 4 (citing Beeler, 332 S.W.2d 203, 207 (Tenn. 1959); Black‟s Law

Dictionary, 3d ed.). The court determined that “[b]ecause the defendant was no longer at

risk at the time he filed his post-conviction claim, his petition c[ould not] be classified as

a capital case.” Id.; see also John Paul Seals v. State, No. E2001-01756-CCA-R3-PC,

2002 WL 1482772, at *1, 3 (Tenn. Crim. App. Jul. 11, 2002), perm. app. denied (Tenn.

Nov. 4, 2002) (concluding that the petitioner‟s case was not a capital case because he

pled guilty to first degree murder and received a life sentence).

Similarly, when the Petitioner filed his petition for post-conviction relief, he had

pled guilty, received four concurrent and two consecutive life sentences, and was no

longer at risk of receiving the death penalty. The Petitioner has not presented any reason

for this court to reverse prior precedent and establish a new rule of law allowing a

petitioner in a non-capital case to receive state funding for an expert at the post-

conviction stage. Therefore, the post-conviction court properly denied the Petitioner‟s

request for funding for an expert witness at the post-conviction stage. See Wesley Jones

v. State, No. W2015-01481-CCA-R3-PC, 2016 WL 4357422, at *22 (Tenn. Crim. App.

Aug. 11, 2016), perm. app. denied (Tenn. Oct. 21, 2016) (the post-conviction court did

not err in determining that the petitioner, who was convicted of first degree murder and

received a life sentence, was not entitled to assistance from a DNA expert at the post-

conviction hearing); Klein Adlei Rawlins v. State, No. M2010-02105-CCA-R3-PC, 2012

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WL 4470650, at *14 (Tenn. Crim. App. Sept. 27, 2012), perm. app. denied (Tenn. Feb.

25, 2013) (the post-conviction court did not err in determining that the petitioner, who

was convicted of first degree felony murder and aggravated child abuse and received a

life sentence plus twenty years, was not entitled to assistance from an expert at the post-

conviction hearing); Sammie Lee Taylor v. State, No. W1999-00977-CCA-R3-PC, 2000

WL 714387, at *5-6 (Tenn. Crim. App. May 26, 2000), perm. app. denied (Tenn. Dec. 4,

2000) (the post-conviction court did not err in determining that the petitioner, who was

convicted of felony murder, especially aggravated kidnapping, especially aggravated

robbery, and aggravated sexual battery and received a sentence of life without parole plus

sixty-two years, was not entitled to assistance from an expert at the post-conviction

hearing). The Petitioner is not entitled to relief on this ground.

Unknowing and Involuntary Guilty Plea

The Petitioner also argues that his guilty plea was coerced and involuntary based

on the circumstances surrounding his plea. The Petitioner argues that his guilty plea was

involuntary because he did not receive a mental health examination, he was in isolation

while incarcerated, he observed co-defendant Moss receive six consecutive life sentences

prior to his plea, and he only completed the eighth grade. The Petitioner also asserts that

the trial court erred by failing to explore the Petitioner‟s responses during the plea

colloquy to ensure that the Petitioner‟s guilty plea was knowing and voluntary. The State

responds that the Petitioner‟s guilty plea was knowing and voluntary.

Whether a guilty plea is intelligent and voluntary is a mixed question of law and

fact. Jaco, 120 S.W.3d at 830-31. Therefore, in such cases we review the post-

conviction court‟s findings of fact de novo with a presumption of correctness. Id. The

post-conviction court‟s findings of law are reviewed purely de novo. Id.

When reviewing a guilty plea, this court looks to both the federal standard as

announced in the landmark case Boykin v. Alabama, 395 U.S. 238 (1969), and the state

standard as announced in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on

other grounds by Tenn. R. Crim. P. 37(b) and Tenn. R. App. P. 3(b). Don Allen Rodgers

v. State, No. W2011-00632-CCA-R3-PC, 2012 WL 1478764, at *5 (Tenn. Ct. Crim.

App. Apr. 26, 2012). Under the federal standard, there must be an affirmative showing

that the plea was “intelligent and voluntary.” Boykin, 395 U.S. at 242. Likewise, the

Tennessee Supreme Court has held that “the record of acceptance of a defendant‟s plea of

guilty must affirmatively demonstrate that his decision was both voluntary and

knowledgeable, i.e., that he has been made aware of the significant consequences of such

a plea . . . .” Mackey, 553 S.W.2d at 340. “[A] plea is not „voluntary‟ if it is the product

of „[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant

threats . . . .” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin,

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395 U.S. at 242-43). A reviewing court must examine the totality of the circumstances to

determine if a guilty plea was knowing and voluntary. State v. Turner, 919 S.W.2d 346,

353 (Tenn. Crim. App. 1995).

In order to determine whether a plea is intelligent and voluntary, the trial court

must “canvass[] the matter with the accused to make sure he has a full understanding of

what the plea connotes and of its consequence.” Boykin, 395 U.S. at 244. The trial court

looks to several factors before accepting a plea, including:

[T]he relative intelligence of the defendant; 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, 858 S.W.2d at 904; Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006).

Once the trial court has conducted a proper plea colloquy, it discharges its duty to assess

the voluntary and intelligent nature of the plea and creates an adequate record for any

subsequent review. Boykin, 395 U.S. at 244.

Statements made by a petitioner, his attorney, and the prosecutor during the plea

colloquy, as well as any findings made by the trial court in accepting the plea, “constitute

a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison,

431 U.S. 63, 73-74 (1977). Statements made in open court carry a strong presumption of

truth, and to overcome such presumption, a petitioner must present more than

“conclusory allegations unsupported by specifics.” Id. at 74.

In Gary Randall Yarnell v. State, this court addressed the issue of an involuntary

or unknowing guilty plea in factual circumstances similar to that of the Petitioner. No.

E2004-01762-CCA-R3-PC, 2005 WL 1981471, at *1 (Tenn. Crim. App. Aug. 15, 2005),

perm. app. denied (Tenn. Feb. 6, 2006). In that case, the petitioner pled guilty to first

degree murder, especially aggravated robbery, and especially aggravated burglary, for

which he respectively received concurrent sentences of life, fifteen years, and twelve

years. Id. During post-conviction proceedings, the petitioner testified that he was

confined for two years prior to pleading guilty, was depressed, and requested a mental

health evaluation, but trial counsel maintained that the petitioner was competent to stand

trial. Id. at *4. On appeal from the denial of his petition for post-conviction relief, the

petitioner argued, in part, that his guilty plea was involuntary and unknowing because he

was depressed when he pled guilty. Id. at *8. This court determined that the post-

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conviction court correctly held that the petitioner‟s guilty plea was voluntarily and

knowingly entered because “[n]othing in the transcript of the petitioner‟s plea

submissions suggests that he was incapable of rationally weighing the advantages of

pleading guilty versus proceeding to trial.” Id. This court also noted that “other than the

petitioner‟s self-serving testimony regarding his depression, he offered no independent

corroboration that he was incapable of making a rational decision.” Id.

Similarly, the Petitioner offers no support for his contention that his mental health

caused his guilty plea to be unknowing and involuntary besides his own testimony. Lead

trial counsel, whose testimony the post-conviction court credited, testified that she looked

for grounds to request a mental health evaluation during her initial meeting with the

Petitioner, but she could not find a ground to request a mental health evaluation.

Additionally, lead trial counsel stated that the Petitioner seemed “at home with his

situation” at Riverbend and noted that the Petitioner “was always smiling[,]” which was

unusual for “someone who was facing such serious charges.” She also stated that the

Petitioner “didn‟t show the level of stress and anxiety that [she had] seen in many of [her]

clients before.” The Petitioner asserted at the post-conviction hearing that he was not in

his “right state of mind” when he pled guilty, but the post-conviction court did not credit

the Petitioner‟s testimony. The Petitioner testified that he had previously received

treatment in school and while incarcerated for mental health issues, but he did not

introduce any evidence into the record of this treatment. When the Petitioner asked co-

counsel about requesting a mental health evaluation approximately one month before

trial, co-counsel, whose testimony the post-conviction court credited, advised against

requesting a mental health examination because it would have given the State more time

to file a death penalty notice. Co-counsel testified that the Petitioner seemed to agree

with co-counsel‟s advice and authorized co-counsel to continue settlement discussions

with the State.

The totality of the circumstances establishes that the Petitioner made an intelligent,

rational, and voluntary decision to plead guilty. Lead trial counsel stated that she

suggested that the Petitioner observe co-defendant Moss‟s sentencing hearing so that the

Petitioner would have a better idea of the sentence he might receive if he proceeded to

trial or entered an open guilty plea. She also testified that she asked the Petitioner to wait

until the next day to enter his guilty plea to ensure that his plea was voluntary and not

coerced. The Petitioner conceded that none of his eleven prior guilty pleas in Alabama

were overturned on the grounds that the Petitioner‟s guilty plea was unknowing or

involuntary. The Petitioner avoided receiving a penalty greater than two consecutive life

sentences at trial by pleading guilty; if the Petitioner had proceeded to trial, the State may

have filed a death penalty notice, or the Petitioner may have received six consecutive life

sentences like co-defendant Moss.

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The plea submission hearing transcript shows that the trial court conducted a

thorough Tennessee Rule of Criminal Procedure 11(b) colloquy with the Petitioner and

accepted the Petitioner‟s plea as knowingly and voluntarily entered; the trial court asked

the Petitioner whether his guilty plea was freely and voluntarily entered three times.

Additionally, the trial court asked the Petitioner why he was pleading guilty after filing a

speedy trial motion and explored the Petitioner‟s answers when the Petitioner seemed

confused about the question. The Petitioner‟s action of winking at the visitor‟s gallery

after his plea submission hearing contradicts his claim that he was not in his “right state

of mind” during his plea, as does his letter to lead trial counsel thanking her for her

representation; both of these actions lead to an inference that the Petitioner was pleased

with the results of his guilty plea. We hold that, based on the totality of the

circumstances, the post-conviction court properly concluded that the Petitioner‟s guilty

plea was knowing and voluntary. The Petitioner is not entitled to relief on this ground.

Ineffective Assistance of Counsel

The Petitioner also asserts that “competent defense counsel” would have requested

a mental health evaluation for the Petitioner.3 The State responds that the Petitioner has

“failed to prove his factual allegations by clear and convincing evidence and failed to

meet his burden of demonstrating deficient performance and prejudice[.]”

The right to effective assistance of counsel is safeguarded by the Constitutions of

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,

a petitioner must prove: (1) that counsel‟s performance was deficient; and (2) that the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same

standard for ineffective assistance of counsel applies in both federal and Tennessee

cases). Both factors must be proven in order for the court to grant post-conviction relief.

Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,

370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is

no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)

(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of

counsel‟s performance “requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel‟s challenged conduct,

and to evaluate the conduct from counsel‟s perspective at the time.” Strickland, 466 U.S.

at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial

3

We note that the Petitioner failed to include any case law relating to ineffective assistance of

counsel in his brief and only included two factual sentences addressing this issue. See Tenn. Ct. Crim.

App. 10(b). However, we will address this issue out of an abundance of caution.

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strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,

tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel‟s performance is effective

if the advice given or the services rendered are within the range of competence demanded

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that

counsel was deficient, the petitioner must demonstrate “that counsel‟s acts or omissions

were so serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see

also Baxter, 523 S.W.2d at 936.

Even if counsel‟s performance is deficient, the deficiency must have resulted in

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong

of the Strickland analysis, the 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. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks

omitted).

A substantially similar two-prong standard applies when the petitioner challenges

counsel‟s performance in the context of a guilty plea. Hill v. Lockhart, 474 U.S.52, 58

(1985); Don Allen Rodgers, 2012 WL 1478764, at *4. First, the petitioner must show

that his counsel‟s performance fell below the objective standards of reasonableness and

professional norms. See Hill, 474 U.S. at 58. Second, “in order to satisfy the „prejudice‟

requirement, the [petitioner] must show that there is a reasonable probability that, but for

counsel‟s errors, he would have not have pled guilty and would have insisted on going to

trial.” Id. at 59.

The post-conviction court found that the Petitioner did not present any credible

evidence that a mental health evaluation was needed besides the Petitioner‟s own

testimony and that he “produced little to no credible evidence that, but for any of his

alleged deficiencies of counsel, he would have possibly risked his life and gone to trial.”

The evidence does not preponderate against the post-conviction court‟s findings. As

noted above, lead trial counsel testified that she and co-counsel looked for grounds to

request a mental health evaluation for the Petitioner but could not find any. Even when

the Petitioner asked co-counsel about a mental health evaluation one month before trial,

the Petitioner could not give co-counsel a reason to request the evaluation. Moreover, the

Petitioner failed to produce any evidence at the post-conviction hearing regarding his past

or current mental health treatment. He is not entitled to relief on this ground.

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III. Conclusion

For the aforementioned reasons, the judgment of the post-conviction court is

affirmed.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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