# Shawn L. Payne v. State of Tennessee

> Court of Criminal Appeals of Tennessee · August 25, 2022

URL: https://www.frixlaw.com/law-library/cases/7803867

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** August 25, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Camille R. McMullen
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

08/25/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 28, 2022

SHAWN L. PAYNE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County
No. 100235 Steven Wayne Sword, Judge
___________________________________

No. E2021-01017-CCA-R3-PC
___________________________________

Pursuant to a plea agreement, the Petitioner, Shawn L. Payne, pled guilty to second degree
murder, and the trial court sentenced him to 25 years’ incarceration. See Tenn. Code Ann.
§ 39-13-210(a)(1). The Petitioner subsequently filed a petition for post-conviction relief,
alleging ineffective assistance of counsel. After a hearing, the post-conviction court denied
the petition. On appeal, the Petitioner argues that he received ineffective assistance of
counsel, rendering him unable to make a “knowing and informed” guilty plea. Specifically,
he asserts that trial counsel was ineffective in failing to investigate the case adequately,
failing to provide discovery to the Petitioner, and failing to apprise the Petitioner of all the
consequences of his guilty plea. After careful review, we affirm the judgment of the post-
conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JILL BARTEE
AYERS and JOHN W. CAMPBELL, SR., JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, Shawn L. Payne.

Herbert H. Slatery III, Attorney General and Reporter; Kayleigh Butterfield, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios,
Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

The Knox County Grand Jury returned a two-count indictment against the
Petitioner, charging him with one count of first-degree murder and one count of attempted
first degree murder. On October 12, 2011, the Petitioner pled guilty to the lesser-included
offense of second degree murder, and the State dismissed the attempted murder charge.
At the guilty plea hearing, the State explained that the Petitioner did not agree to
testify against his co-defendants and provided the following summary of the facts
underlying the Petitioner’s charges:

Patricia Tipton, of the Knoxville Police Department, would testify that
she responded to a shooting call that occurred in Western Heights, at 1248
Better Tomorrow Drive, on September the 15th, 2009.

She would testify that she interviewed a number of witnesses. Three
people, Tawaun Mattress, Richard Westfield and Brandon Williams, advised
her that they, along with the victim, Christopher McBath, were on the front
porch of a residence in the neighborhood just talking and chatting. This is
about 10:30 p.m. They were approached by three figures dressed in black;
that gunfire erupted. Christopher McBath turned to run and was shot.
Richard Westfield would testify that he was also injured as he tried to flee
the scene.

Further proof would be that Tawaun Mattress . . . a later time, once
Investigator Tipton was able to receive information from anonymous tips that
[the Petitioner] was involved, she was able to develop a line-up. And
Tawaun Mattress identified [the Petitioner] as being one of the shooters
present.

Further proof would be that Trent Barton and Monica Wright were
also identified as two of the shooters.

Further, please, Ms. -- Investigator Tipton would testify that as she
pursued this investigation, but before she was able to apprehend [the
Petitioner], it came to her attention that he was making efforts to leave the
area. She feared that he was going to Indiana to escape apprehension. Proof
would be that he was taken into custody, however, in Knoxville, and, I
believe, has been in custody since October the 2nd, 2009.

Your Honor please, Darinka Mileusnic would testify that Mr. McBath
died of multiple gunshot wounds. He was shot three times, twice in the back.
This is consistent with the ballistics evidence that was recovered at the scene.
Crime Scene Technician Beth Goodman worked this scene and found
evidence that corroborates the witness’s testimony that there were three
shooters. Crime Scene Technician Goodman would testify that she found

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two .45-caliber casings at the scene, three .40-caliber casings, one 9-
millimeter casing and a couple of bullet fragments.

The State would further prove that with respect to -- with respect to
motive in this case, about a month prior to the shooting, Monica Wright was
in the car with a woman named Antanica Wade; that she was stopped and
was talking to Christopher McBath at a location in Knoxville; that shortly
after their conversation, Ms. Wright and Ms. Wade were arrested by officers
of the Knoxville Police Department because of a drug transaction that they
saw.

And our proof would be, from Investigator Phil Muhlfeld, that while
Ms. Wright and Ms. Wade were in his cruiser, that they were videotaped.
And the State would provide evidence that - of this tape-recording that shows
Ms. Wright accusing Mr. McBath of being a snitch and her verbal threats to
get back at him. And the State would present proof -- testimony proof,
through Officer Muhlfeld and through Antanica Wade, that this was the
motive behind Mr. McBath’s shooting.

Following the recitation of facts, the Petitioner stipulated that “that’s what the
State’s proof would be.” The trial court also questioned the Petitioner regarding his
understanding of the rights he waived by pleading guilty, to which he affirmed his
understanding. The Petitioner further affirmed that he had gone over the plea agreement
with trial counsel and understood the agreement. Before accepting the Petitioner’s guilty
plea, the following exchange occurred:

THE COURT: Are you entering into this agreement freely and knowingly
and voluntarily?
[THE PETITIONER]: Yes, sir.
THE COURT: Has anyone threatened you in any way or promised you
anything to get you to plead guilty today?
[THE PETITIONER]: No, sir.
THE COURT: Are you pleading guilty because you are, in fact, guilty?
[THE PETITIONER]: Yes, sir.
THE COURT: Are you satisfied with the services of your attorney?
[THE PETITIONER]: Yes, sir.
THE COURT: Is there any question about anything at all that you want to
ask the Court before we go through with this?
[THE PETITIONER]: No, sir.

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The trial court subsequently accepted the Petitioner’s guilty plea and sentenced him
as a Range I, standard offender to 25 years’ imprisonment. The Petitioner filed a pro se
petition for post-conviction relief on September 10, 2012, alleging, among other things,
ineffective assistance of counsel and that his guilty plea was involuntary. The Petitioner
filed an amended pro se petition for post-conviction relief the same day, again asserting
that he received ineffective assistance of counsel, specifying that trial counsel failed to
investigate his case. The post-conviction court appointed counsel on September 20, 2012,
and on September 9, 2013, the Petitioner filed a “motion to relieve counsel of record and
appoint new counsel.” In the motion, the Petitioner asserted that his appointed counsel had
not made contact with him or helped amend his petition, and the post-conviction court
appointed new counsel on December 10, 2013. On February 27, 2014, the Petitioner filed
a “motion for substitution of counsel,” seeking to replace the counsel that was appointed
on December 10, 2013, again asserting that he could not contact appointed counsel.
Although not included in the record, that motion was apparently denied, as the second
appointed counsel represented the Petitioner at the post-conviction hearing and represents
him again on appeal. The Petitioner filed another amended pro se petition for post-
conviction relief on February 27, 2014, again alleging, among other things, that he received
ineffective assistance of counsel, such that his guilty plea was not knowing and voluntary.
On December 10, 2019, the State filed an “answer to original pro se petition and amended
petition,” and the case was transferred to a different division of the Knox County Criminal
Court on December 11, 2019. The hearing on the petition for post-conviction relief was
not held until August 5, 2021. The record contains no explanation for the lengthy delay
between the Petitioner’s filing of his petition for post-conviction relief and its amendments
and the hearing. At the August 5, 2021 hearing, post-conviction counsel explicitly stated
that he would be “traveling under the original” petition.

At the August 5, 2021 hearing, the Petitioner testified that his plea was coerced
because trial counsel informed him he could potentially “go to trial and lose and get 60
years[.]” The Petitioner was “18, 19 years old” at that time and “didn’t know what coercion
meant.” He agreed that trial counsel met with him “[l]ess than five” times while in
“Sessions Court[.]” During his preliminary hearing, trial counsel did not object to “two
inconsistent statements” where “[o]ne person was saying one thing, the other person was
saying another.” The Petitioner explained that during his preliminary hearing, the court
stopped the hearing to tell Tawaun Mattress’ mother to stop “gesturing towards” Mr.
Mattress during his testimony. After the case was bound over to the grand jury and an
indictment was returned, trial counsel “came to the penal farm a couple of times” and
“wrote a couple of letters” to the Petitioner. Trial counsel brought the “motion of
discovery” to the penal farm for the Petitioner to view but did not bring “some CDs and
DVDs[,]” which the Petitioner did not know existed until he filed his post-conviction
petition. The Petitioner testified that trial counsel hired Michael Cohan, an investigator, to
assist in the case, and Cohan came to the penal farm with trial counsel “a few times[.]”
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Trial counsel provided to the Petitioner “paperwork of the motion of discovery . . . [and]
exculpatory Brady materials” but did not discuss “witness statements or anything like that”
with the Petitioner.

The Petitioner stated that trial counsel did not inform him of the plea agreement
offer from the State until the “day [he] was supposed to go to trial[.]” He clarified that he
also received an oral plea agreement offer at his preliminary hearing, which he did not
accept because he did not know, and trial counsel did not explain, the “potential
advantages” of a plea offer. He reiterated that trial counsel did not inform him of the instant
plea agreement offer until the morning of trial while he was in the “holding cell in the
back[.]” Trial counsel read and explained the written plea agreement to the Petitioner for
“about ten minutes” before giving it to him. The Petitioner denied that trial counsel ever
prepared him for trial, discussed the defense theory, discussed whether he should testify,
or provided him with any documents that the State was going to introduce at trial. The
Petitioner did not feel “prepared” to go to trial. Although the Petitioner understood that he
would “be pleading to 25 years,” he did not understand “the percentage of it or how long
[he] would be incarcerated.” The Petitioner felt like he “had no other choice” but to accept
the plea offer because he knew he would receive a higher sentence if he lost at trial. He
agreed that his failure to receive all of the State’s discovery affected his decision to accept
the plea offer. The Petitioner elaborated that he did not know about “the video footage or
phone calls” that the State possessed until post-conviction counsel sent them to him. He
did not know what the video footage contained but learned about it after reading the motion
for discovery. The Petitioner testified that he reported trial counsel to the Board of
Professional Responsibility “at the beginning of [his] case” for failing to represent the
Petitioner to the best of his ability. He elaborated that he felt like trial counsel was
“working for the State or with the State.” The Petitioner agreed that his reporting trial
counsel had “an effect upon [his] representation[.]” He “lost confidence” in trial counsel
but felt that he “was forced to keep him as [his] attorney.”

On cross-examination, the Petitioner agreed that he had “at least three trial dates[.]”1
He further agreed that the State’s proof at trial was “going to be that there were three people
who participated in . . . the victim’s murder” and that the Petitioner was identified in a
photographic lineup as one of the shooters by Tawaun Mattress. He affirmed that another
witness, Richard Westfield, identified two of the three shooters but was unable to identify
the Petitioner as the third. The Petitioner agreed that “two years went by” before he pled
guilty. He was “unaware” that Christopher Smalley, an inmate at the Knox County penal

1
Prior to the Petitioner’s cross-examination, the post-conviction court and the State clarified that
the Petitioner’s trial was originally set for September 1, 2010, but was continued to October 4, 2011. [II,
20]. On July 15, 2011, the October 4 trial date was rescheduled to December 12, 2011. [Id.]. The Petitioner
entered his guilty plea on October 12, 2011. [II, 21].

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farm, stated that the Petitioner admitted to him that he was one of the shooters or that
Monica Jones,2 one of the Petitioner’s co-defendants, told the State that the Petitioner was
one of the shooters. The Petitioner did not recall a letter sent to him from Trent Barton,
his other co-defendant, stating that they “would get away with it” if “everyone kept
quiet[.]” He agreed that the State’s theory was that co-defendant Jones was angry with the
victim because she believed he was responsible for her “getting busted for a drug offense.”
The Petitioner further agreed that the State’s theory was that he and co-defendant Barton
acted as “muscle” for co-defendant Jones and her husband, Donnie Jones, who allegedly
sold drugs in Knoxville. He agreed that the preliminary hearing was held a little over a
month after the victim’s murder, and he “had early knowledge of the facts around [his]
case” at the time of the hearing.

Although the Petitioner conceded that trial counsel filed various motions on his
behalf, he disputed that trial counsel collected discovery information on his behalf. The
Petitioner explained that although he answered negatively when the trial court asked if he
had any questions when he entered his guilty plea, he did not know at that time that he
“didn’t receive all [his] motion of discovery.” He asserted that there were phone calls and
“video footage” that he never saw, although he did not know their contents. The Petitioner
did not “understand all that” when he declined to object to the State’s offer of proof at the
plea hearing but agreed he had been to court “a few times” previously. The Petitioner
reiterated that he “would have rather [gone] to trial” than accept the guilty plea agreement,
though he was aware that he was “facing a life sentence” if convicted at trial.

The post-conviction court also questioned the Petitioner to ensure it understood the
Petitioner’s grievances with trial counsel. The Petitioner clarified that his primary
complaint against trial counsel was that he did not show the Petitioner all of the discovery
provided by the State prior to the Petitioner pleading guilty. When asked what information
he gained since pleading guilty, the Petitioner responded that he did not know his “whole
case was circumstantial” or know about “the audio and the video[.]” He conceded that he
did not know what was on the video and therefore was unsure if it could have helped him.
The Petitioner explained that he knew a video existed because “in [his] motion for
discovery it says … [there are] some DVDs and . . . some audio and video.” He reiterated
that he did not know about the video until post-conviction counsel took over his case, and
he still did not know what the DVD contained. When asked by the post-conviction court
how he knew he would have gone to trial if he were shown the DVD if he did not know its
contents, the Petitioner responded, “I mean, I don’t . . . . [W]hen I was going through my
motion of discovery and reading the whole motion and going through all my paperwork, I
just felt like I would have [gone] to trial and had a better chance of going to trial than taking

2
We note that the State referred to the Petitioner’s female co-defendant as both Monica Wright and
Monica Jones at the post-conviction hearing. For clarity, we refer to her as Monica Jones.
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this plea bargain.” The post-conviction court asked what “specific facts or legal theory”
he based such an assertion on, and the Petitioner responded, “The evidence . . . . It was
circumstantial, everything, the whole case.” The post-conviction court noted that Mattress
testified at the preliminary hearing that the Petitioner was one of the shooters, which was
not circumstantial. The Petitioner clarified that although Mattress testified he saw the
Petitioner “shoot somebody,” Westfield, the person who “he was charged with attempted
murder on[,] said he didn’t know” the Petitioner and had never seen him before. Further,
Westfield told Cohan that he had known the Petitioner a long time and had “seen [the
Petitioner] there, but [he] didn’t have a gun.” The Petitioner affirmed that if he had known
that information before pleading guilty, he would have gone to trial. The Petitioner further
affirmed that neither trial counsel nor Cohan talked to him about what Westfield’s trial
testimony would be, and he did not know about Westfield’s differing statements until after
he pled guilty. He clarified that at the preliminary hearing, Westfield testified that he did
not know the Petitioner and had never see him before but later told Cohan that he had
known the Petitioner a long time and saw him at the shooting, but he did not have a gun.

Trial counsel testified that he had been practicing law for nine years, primarily in
criminal defense, when he was appointed to represent the Petitioner in 2009. At that time,
he had tried several first-degree murder cases and “at least one” life without the possibility
of parole case. Upon being appointed, trial counsel obtained the affidavit of complaint,
identified potential witnesses, and attempted to develop an alibi for the Petitioner through
“Ms. Dale,” his significant other. He received discovery from the State, including an
interview of the Petitioner by Investigator Tipton, during which the Petitioner asserted that
he “had no awareness of what happened.” Trial counsel also sent a letter to the Petitioner
asking for any witnesses that he wanted trial counsel to interview, but trial counsel did not
“recall getting a name or a phone number or an address of . . . any witnesses” from the
Petitioner. He testified that his file for the Petitioner consisted of “over 2,000 pages” and
contained “quite a few memoranda . . . that [he] had prepared internally.”

Trial counsel testified that Mattress’ identification of the Petitioner as one of the
shooters at the preliminary hearing concerned him because he knew the Petitioner was
facing a life sentence, which the Petitioner was aware of “early on.” Trial counsel did not
recall the Petitioner sending a letter to the Board of Professional Responsibility but did
recall the Petitioner filing a motion to disqualify trial counsel as his attorney. After trial
counsel filed a motion for discovery and received discovery from the State, he turned “all
that” over to the Petitioner. He believed that he “sent a letter to [the Petitioner] with the
DVD and/or CDs[,]” though he was unsure what the “Knox County Sheriff’s Department
did with that when it got sent[.]” Trial counsel gave Cohan a copy of the discovery, and
Cohan prepared a “discovery summary.” Trial counsel noted in one of his “internal
memoranda” that the Petitioner reviewed the discovery summary. Trial counsel recalled
the State providing another round of discovery, which he also provided to the Petitioner.
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He explained that he “always” turned all discovery over to his clients because he thought
doing so was “very important.” Trial counsel recalled that the State was “stuck” on offering
a plea deal of 25 years at 100% for second degree murder. The Petitioner was “willing” to
do “15 years on a second[]degree,” which was the lowest end of the sentencing range. [II,
50]. The State “eventually came back” and offered 20 years if the Petitioner was willing
to testify against his co-defendants, which he did not want to do. Trial counsel believed
that the Petitioner did not want to testify against his co-defendants because he “knew a lot
more than what he wanted to talk about.” Trial counsel “did everything that [he] could” to
educate the Petitioner on the facts and law relevant to his case.

At some point, the Petitioner alluded to a fourth person being involved in the
shooting, but trial counsel did not “know who that was.” The Petitioner also mentioned to
trial counsel that there was another person named “Pain” that people confused him with,
and it was “almost his position” that “Pain” was the actual shooter. The Petitioner
ultimately “did not want to go down that road as that being a defense[,]” which trial counsel
respected. With respect to the DVD that the Petitioner alleged he did not know about until
after pleading guilty, trial counsel explained that the video was of co-defendant Jones and
another woman in the back of a police car following a traffic stop “fussing about getting
pinched” for drugs that did not belong to Jones. He recalled describing the video to the
Petitioner and discussing with him why such a video was included in discovery. Trial
counsel asked the State about the video and learned that the State’s theory was that the
victim set up co-defendant Jones to be arrested, and “then this hit was ordered to go take
care of” the victim. Essentially, the video corroborated the State’s theory of retaliation.
Trial counsel believed that co-defendant Jones was the Petitioner’s cousin. He did not
recall talking to the State about a proffer that co-defendant Jones made. Trial counsel did
not recall entering the guilty plea on the day of trial in the Petitioner’s case or any other
case. He agreed that the Petitioner would have received a significantly harsher sentence if
he had gone to trial and been convicted of first-degree murder. He further agreed that he
was satisfied as the Petitioner’s counsel that he entered his guilty plea knowingly,
voluntarily, and intelligently.

On cross-examination, trial counsel agreed that he attended a hearing in front of the
trial court to “flesh[] out” the Petitioner’s complaints against him. At the hearing, the trial
court told the Petitioner that trial counsel was “a good attorney” and “would be there to see
him when [he] had something of significance to talk to him about.” He recalled that the
Petitioner was “very upset about, maybe, [they] had not received the discovery at that point
or something.” Trial counsel explained that he had “at least two memoranda” in his internal
file showing that he and Cohan discussed the terms of the plea agreement with the
Petitioner prior to the day he entered his guilty plea, both “in general” and “what 15 looked
like at 100 percent, what 25 looked like at 100 percent, what 60 [] looked [like] at 100
percent[,]” though the Petitioner did not see the physical document until October 12. Trial
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counsel did not recall whether he read the document to the Petitioner or whether the
Petitioner had any difficulty reading. He met with the Petitioner “[l]ong enough to make
sure he understood what he was doing and that he was doing it voluntarily.” Trial counsel
did not recall whether he discussed with the Petitioner what the specific procedures for the
plea hearing would be but agreed that he had attended multiple plea hearings at that point
in his career.

The post-conviction court entered a “Findings of Fact and Conclusions of Law” on
August 10, 2021, denying the Petitioner’s post-conviction petition. In denying the petition,
the post-conviction court specifically accredited trial counsel’s testimony over that of the
Petitioner. With respect to whether the guilty plea was knowingly and voluntarily entered,
the post-conviction court found that “due process was satisfied[,]” noting that the
Petitioner’s refusal to testify against his co-defendants indicated “that there were detailed
discussions about the nature and reasons for the Petitioner’s guilty plea.” The post-
conviction court also noted that the Petitioner affirmed to the trial court that he understood
his rights and pled guilty because he was guilty. With respect to the Petitioner’s ineffective
assistance of counsel claims, the post-conviction court found that trial counsel “conducted
a thorough investigation of the case, had many discussions with the Petitioner about the
evidence, discussed potential trial strategies, and obtained more than one plea offer from
the State.” The post-conviction court concluded that there “was no evidence presented”
that trial counsel was deficient or that the Petitioner was prejudiced by the alleged
deficiencies. The Petitioner filed a timely notice of appeal on September 2, 2021, and this
case is now properly before this court for review.

ANALYSIS

The Petitioner asserts on appeal that the post-conviction court erred in denying him
relief because “trial counsel failed to investigate the case adequately, failed to provide
relevant information [to] the Petitioner and discuss it with him, and failed to apprise the
Petitioner of all the consequences of his plea agreement[,]” such that the Petitioner was
“prevented from making a knowing and informed guilty plea[.]” The State responds that
trial “counsel was not ineffective, and the [P]etitioner’s plea was voluntary and intelligent.”
We agree with the State.

Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. Tenn.
Code Ann. § 40-30-103. The Tennessee Supreme Court has held:

A post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. When reviewing factual issues, the
appellate court will not re-weigh or re-evaluate the evidence; moreover,
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factual questions involving the credibility of witnesses or the weight of their
testimony are matters for the trial court to resolve. The appellate court’s
review of a legal issue, or of a mixed question of law or fact such as a claim
of ineffective assistance of counsel, is de novo with no presumption of
correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation marks
omitted); Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010); see Felts v. State, 354
S.W.3d 266, 276 (Tenn. 2011). A post-conviction petitioner has the burden of proving the
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f);
Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
Evidence is considered clear and convincing when there is no serious or substantial doubt
about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562
(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998).

The right of a person accused of a crime to representation by counsel is guaranteed
by both the Sixth Amendment to the United States Constitution and article I, section 9, of
the Tennessee Constitution. Both the United States Supreme Court and this Court have
recognized that this right to representation encompasses the right to reasonably effective
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted). In order to prevail
on an ineffective assistance of counsel claim, a petitioner must establish that (1) his
lawyer’s performance was deficient and (2) the deficient performance prejudiced the
defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency or prejudice
provides a sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court
need not address the components in any particular order or even address both if the
[petitioner] makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d
363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard
of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466
U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once
the petitioner establishes “‘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. at 370
(quoting Strickland, 466 U.S. at 694). In order to satisfy the “prejudice” requirement in
the context of a guilty plea, the petitioner must show that, but for counsel’s errors, he would

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not have entered his guilty plea and would have proceeded to trial. Serrano v. State, 133
S.W.3d 599, 605 (Tenn. 2004) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

The validity of a guilty plea is a mixed question of law and fact that is reviewed de
novo. Lane, 316 S.W at 562. To be valid, a guilty plea must be entered knowingly,
voluntarily, and intelligently. Id. (citing State v. Mackey, 553 S.W.2d 337, 340 (Tenn.
1977) superseded on other grounds by rules as stated in State v. Wilson, 31 S.W.3d 189,
193 (Tenn. 2000); North Carolina v. Alford, 400 U.S. 25, 31 (1970); Brady v. United
States, 397 U.S. 742, 747 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969)).
“[T]he 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; see Tenn.
R. Crim. P. 11(b)(1). When determining whether a guilty plea was knowingly, voluntarily,
and intelligently entered, the court must consider “‘whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.’”
Lane, 316 S.W.3d at 562 (quoting Grindstaff, 297 S.W.3d at 218). If a guilty plea is not
knowingly, voluntarily, and intelligently entered, then the defendant has been denied due
process, and the guilty plea is void. Id. (citations omitted). In ascertaining whether a
petitioner’s guilty pleas were knowing and voluntary, this court looks to the following
factors:

the relative intelligence of the defendant; the degree of his familiarity with
criminal proceedings; whether he was represented by competent counsel and
had the opportunity to confer with counsel about the options available to him;
the extent of advice from counsel and the court concerning the charges
against him; and the reasons for his decision to plead guilty, including a
desire to avoid a greater penalty that might result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). Further, we note that “[a]
petitioner’s solemn declaration in open court that his plea is knowing and voluntary creates
a formidable barrier in any subsequent collateral proceeding because these declarations
‘carry a strong presumption of verity.’” Dale Wayne Wilbanks v. State, No. E2014-00229-
CCA-R3-PC, 2015 WL 354773, at *10 (Tenn. Crim. App. Jan. 28, 2015) (quoting
Blackledge v. Allison, 431 U.S. 63, 74 (1977)). In the context of a guilty plea, trial
counsel’s effectiveness is only relevant to the extent that it affects the voluntariness of the
plea. Ford v. State, No. E2018-00702-CCA-R3-PC, 2019 WL 1220790, at *3 (Tenn. Crim.
App. Mar. 14, 2019).

Applying the above law to the instant case, we conclude that the Petitioner is not
entitled to relief. The Petitioner asserts that trial counsel’s alleged deficiencies in failing
to provide him with certain discovery, namely “CDs and DVDs from the State[,]” failing
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to investigate his case adequately, and failing to “apprise the Petitioner of all of the
consequences of his plea agreement” rendered his guilty plea unknowing and involuntary.

The Petitioner has failed to establish that trial counsel was deficient because he did
not show that trial counsel’s representation fell below the range of competence demanded
of attorneys in criminal cases. The post-conviction court found that trial counsel
“conducted a thorough investigation of the case, had many discussions with the Petitioner
about the evidence, discussed potential trial strategies, and obtained more than one plea
offer from the State.” We reiterate that the post-conviction court specifically accredited
trial counsel’s testimony over that of the Petitioner. Trial counsel testified that upon being
appointed as the Petitioner’s trial counsel, he began investigating the case, including
attempting to establish an alibi defense through “Ms. Dale,” asking the Petitioner for a list
of witnesses, and hiring an investigator. The Petitioner also apparently discussed with trial
counsel a possible fourth shooter and his being confused with another person named “Pain”
as a potential defense. Trial counsel testified that he turned all discovery over to the
Petitioner and gave a copy of the discovery to Cohan, who prepared a summary of the
discovery. Internal memoranda indicated that the Petitioner reviewed the discovery
summary. Trial counsel recalled sending the DVD in question to the Petitioner, though he
was unsure if the Petitioner received it. Regardless, trial counsel recalled discussing the
contents of the DVD with the Petitioner, namely co-defendant Jones in the back of a police
car talking about being “set up” by the shooting victim. The DVD substantiated the State’s
theory of retaliation. We note that the State also referenced such a recording in its recitation
of facts at the plea hearing, which the Petitioner stipulated would be the State’s proof at
trial. Still, the Petitioner testified at the post-conviction hearing that he was unsure of what
the DVD contained, and neither the DVD nor Westfield’s allegedly conflicting statements
were introduced at the post-conviction hearing, nor did the Petitioner call Westfield as a
witness at the hearing.

The Petitioner also did not introduce the motion for discovery at the post-conviction
hearing. We note that initially the Petitioner responded, “I mean, I don’t,” when asked how
he knew he would have gone to trial if he possessed all of the discovery materials. Trial
counsel explained that the State offered the Petitioner a 20-year sentence if he was willing
to testify against his co-defendants, which he declined. His choice not to testify against his
co-defendants was reiterated by the State at the plea hearing. Trial counsel denied that the
Petitioner was scheduled for trial on the day of the guilty plea submission, which was
supported by the State’s clarification of dates at the post-conviction hearing; at the time of
his guilty plea submission on October 12, 2011, the Petitioner’s trial was set for December
12, 2011. Trial counsel testified that he and Cohan discussed the terms of the plea
agreement with the Petitioner prior to October 12, and he met with the Petitioner long
enough to ensure he was entering his plea voluntarily. Nothing in the record preponderates
against the post-conviction court’s conclusion that trial counsel was credible “in his
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testimony throughout the hearing” and that the Petitioner was not credible. Because the
Petitioner has failed to demonstrate trial counsel’s deficiencies or that such deficiencies
prejudiced him, he is not entitled to relief.

Having concluded that the Petitioner’s trial counsel was not ineffective, we further
conclude that the Petitioner’s claims that such ineffective assistance rendered his guilty
plea unknowing and involuntary are unpersuasive. With respect to the voluntariness of the
Petitioner’s plea, the post-conviction court found that the Petitioner’s due process rights
were satisfied. The post-conviction court concluded that

[T]he Petitioner was only 19 years old when he entered his guilty plea. There
is no evidence before the court concerning his intelligence. However, he was
represented by a very skilled attorney who consulted with the Petitioner
throughout the case from the very beginning. The Petitioner was adamant
that he would not testify against a co-defendant: [t]he plea colloquy
specifically spells this out. The court finds this fact to support the proposition
that there were detailed discussions about the nature and reasons for the
Petitioner’s guilty plea. Primarily, the Petitioner pled guilty to avoid a life-
sentence. The Petitioner informed the trial court that he understood each of
his rights and was pleading guilty because he was guilty. Thus, the court
finds that due process was satisfied.

The record reflects that trial counsel engaged in negotiations with the State
regarding sentence length, and the Petitioner rejected an offer of 20 years because he did
not want to testify against his co-defendants. Trial counsel testified that the State was
“stuck” on the Petitioner serving 25 years at 100% for second degree murder, to which the
Petitioner ultimately agreed. Such a sentence was significantly less than the life sentence
the Petitioner would have received if he were convicted of first degree murder at trial,
which trial counsel testified he was “worried about” due to Mattress’ identification of the
Petitioner as one of the shooters. Trial counsel also testified that he and Cohan went over
the terms of the agreement with the Petitioner and what different sentence lengths would
look like at 100% service prior to the plea hearing, and the Petitioner was not scheduled
for trial until two months after the plea submission, despite his claims to the contrary. At
the plea hearing, the Petitioner heard the State tell the trial court that his plea agreement
consisted of him pleading guilty to second degree murder with a sentence of 25 years to be
served at 100% minus any “good time credit that he could receive, up to 15 percent.” He
affirmed to the trial court that that was also his understanding of the agreement. We
likewise note that the “Waiver of Trial by Jury and Request for Acceptance of Plea of
Guilty” contained in the record on appeal and bearing the Petitioner’s signature states that
the plea agreement consisted of “25 years as a Range I standard offender . . . with a release
eligibility after service of 100% but may receive reduction to not less than 85%[.]” The
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Petitioner further affirmed to the trial court that he had gone over the agreement with trial
counsel and understood its terms. The Petitioner agreed that he understood the rights he
gave up by pleading guilty, that his plea was entered knowingly and voluntarily, that he
had not been threatened or otherwise coerced into pleading guilty, and that he was satisfied
with trial counsel’s services. He further denied that he had any questions for the trial court.
“[R]epresentations of the defendant, his lawyer, and the prosecutor at such a hearing, as
well as any findings made by the judge accepting the plea, constitute a formidable barrier
in any subsequent collateral proceedings. Solemn declarations in open court carry a strong
presumption of verity.” Blackledge, 431 U.S. at 73-74. Moreover, as noted above and as
noted by the State, the discovery that would have allegedly caused the Petitioner to go to
trial instead of pleading guilty was not introduced at the post-conviction hearing, and the
Petitioner’s testimony differed on whether he would have gone to trial if presented with all
the discovery. The post-conviction court accredited trial counsel’s testimony that the
Petitioner was provided with all discovery and reviewed a discovery summary prepared by
Cohan. Ultimately, the record reflects that trial counsel provided competent advice
regarding the guilty plea, and the Petitioner made a voluntary and informed decision to
plead guilty in order to avoid receiving a life sentence if convicted at trial. Because the
Petitioner has failed to establish that his plea was unknowing, involuntary, or unintelligent,
he is not entitled to relief.

CONCLUSION

Based on the above reasoning and authority, the judgment of the post-conviction
court is affirmed.

____________________________________
CAMILLE R. MCMULLEN, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7803867. Public record. Not legal advice.