Jeff Henson v. State of Tennessee ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 18, 2012
JEFF HENSON v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Bradley County
No. 11-CR-565 Amy Armstrong Reedy, Judge
No. E2012-00856-CCA-R3-PC - Filed November 26, 2012
The Petitioner, Jeff Henson, pled guilty1 to sexual exploitation of a minor, aggravated sexual
exploitation of a minor, attempted aggravated sexual battery, driving under the influence
third offense, and possession of a firearm during the commission of a felony. The trial court
sentenced the Petitioner, as a Range I offender, to an effective sentence of twelve years of
confinement followed by community supervision for life. The Petitioner filed a petition for
post-conviction relief, which the post-conviction court dismissed after holding a hearing. On
appeal, the Petitioner contends that the post-conviction court erred when it dismissed his
petition because his trial counsel was ineffective and because his guilty plea was not
knowingly and voluntarily entered. After a thorough review of the record and applicable
authorities, we affirm the post-conviction court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and D. K ELLY T HOMAS, J R., JJ., joined.
David K. Calfee, Cleveland, Tennessee, for the appellant, Jeff Henson.
Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Steven Bebb, District Attorney General, and A. Wayne Carter, Assistant
District Attorney General for the appellee, State of Tennessee.
OPINION
1
It is unclear from the record whether the Petitioner entered a plea of guilty or a plea of no
contest to the listed charges.
I. Facts
A Bradley County grand jury indicted the Petitioner in three separate indictments that
were disposed of pursuant to one plea agreement. In the first case, the Petitioner was
indicted for driving under the influence, third offense, felonious possession of a handgun,
and reckless endangerment with a deadly weapon. While released from jail on bond in this
case, the grand jury indicted the Petitioner for aggravated sexual battery of a minor based
upon allegations of sexual conduct with his niece. Once again the Petitioner was released
from jail on bond when he was charged with sexual exploitation of a minor and aggravated
sexual exploitation of a minor based upon pornographic images contained on his personal
computer.
A. Guilty Plea Hearing
At the Petitioner’s guilty plea submission hearing, the State provided the following
factual basis for the Defendant’s guilty plea to attempted aggravated sexual battery,
aggravated sexual exploitation of a minor and attempted aggravated sexual exploitation of
a minor:
In Case Number 10-379, the attempted aggravated sexual battery case, on the
date alleged in the indictment the [Petitioner] was babysitting a small child that
was at his home. The child stated that while she was there she was sitting in
[the Petitioner’s] lap and that he touched her crotch area and advised that it
was on top of her clothes and that he asked h[im] to take a bath with her. The
child was taken to the Children Advocacy Center and was interviewed by the
forensic interviewer and again made the exact same statement. [The
Petitioner] was interviewed, he denied that he touched the child, however he
did admit that she was there on the date that the child said this happened, he
admitted that she was sitting in his lap but he denied doing that. However, in
the possession of child pornography case in his interviews with the
investigators he stated that the reason he was downloading child pornography
was to try to beat the aggravated sexual battery case. We obviously would
argue if this case is to go to trial that there would be a nexus now between
those two cases to bring in evidence of the child pornography into the
aggravated sexual battery case or the aggravated sexual battery case into the
possession of child pornography case as a result of that statement to
investigators. In the child pornography case Detective J.T. Allman was
conducting an online investigation using an intellinetwork and as a part of that
program he can access other people’s computers through a pier network, and
the whole purpose of Detect[ive] Allman’s program is to find people who are
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possessing or trafficking in child pornography. He made contact with [the
Petitioner]’s computer. In the share folder there were files that lead Detective
Allman to believe that it was child pornography and Detective Allman as a
result of it being in a shared folder was able to download these images and
videos. Looking at these images and videos it was obvious to Detective
Allman and to Detective Sergeant Scoggins that it was in fact child
pornography. They obtained and executed a search warrant at [the
Petitioner’s] residence. Upon executing a search warrant they took his
computer and a forensic evaluation of the computer showed well over a 100
images, approximately 795 total images of confirmed child pornography on
[the Petitioner’s] computer. When they interviewed [the Petitioner] he claimed
that the child pornography got on his computer as a result of other people
downloading pornography onto his computer. However investigators
interviewed the people that [the Petitioner] identified as being the people who
would have downloaded it. All of the people that were interviewed [ ] stated
that that was not true, that they never downloaded any child pornography or
pornography on to [the Petitioner’s] computer. Most of them stated that they
had never used his computer at all. Those people would be called in to testify
if we were to go to trial in this matter. The aggravated sexual battery is being
reduced as a part of this plea just to keep the victim from coming in and
testifying and for no other reason than that, your Honor, and also the amount
of time that [the Petitioner] is receiving as to these charges. . . . .
The State went on to describe the factual basis for the Petitioner’s remaining charges as
follows:
Your Honor, as to [the other] charges against [the Petitioner], Count One and
Two, Count Two merges into Count One, and that’s DUI Third, and Count
Three i[s] felon in possession of a handgun, and Count Four is being nolled
pursuant to the plea agreement. . . .[O]n the date alleged in the indictment
Trooper Hamilin Asbell with the Tennessee Highway patrol stopped for a
welfare check on 1-75. When he made contact with [the Petitioner] he exited
the car and staggered and he smelled a strong odor of alcohol on his brea[th]
and person. He could not complete any sobriety test. On an inventory of the
car he did fin[d] a loaded handgun in the car.
The trial court then ensured that the Petitioner understood the rights that he was waiving by
entering his plea. After so doing, the trial court accepted the Petitioner’s plea to sexual
exploitation of a minor, aggravated sexual exploitation of a minor, attempted aggravated
sexual battery, driving under the influence, third offense, and possession of a firearm during
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the commission of a felony. The trial court sentenced the Petitioner to four years for the
attempted aggravated sexual battery conviction, stating that he would also be subject to
community supervision for life as a result of this conviction. The trial court sentenced him
to eight years each for the Petitioner’s convictions for sexual exploitation of a minor and
aggravated sexual exploitation of a minor, and the trial court ordered those sentence run
concurrently with each other but consecutively to his four- year sentence for the attempted
aggravated sexual battery conviction. The trial court ordered the Petitioner to serve eleven
months and twenty-nine days for the Petitioner’s DUI sentence, to be suspended after service
of 120 days. Finally, the trial court sentenced the Petitioner to a concurrent one-year
sentence for the firearm possession for a total effective sentence of twelve years.
B. Post-Conviction Hearing
The Petitioner filed a petition for post-conviction relief in which he alleged that his
trial counsel (“Counsel”) was ineffective and that his guilty plea was not knowingly and
voluntarily entered. At a hearing on the petition, the parties presented the following
evidence: The Petitioner’s sister, Janice Crawford, testified that she and the Petitioner were,
and always had been, “very close.” Crawford said the Petitioner had “battled mental health
since he was 14,” explaining that he suffered from bipolar disorder. Crawford testified that
the Petitioner had been hospitalized an estimated fifteen times since he was diagnosed, and
she said that he took Lithium to treat his disease. Crawford described the effects of the
Petitioner’s mental disease, saying that he had “severe high’s to severe lows.” She recounted
that, at times, he would appear coherent and, at other times, he would be incoherent. When
the Petitioner was incoherent, he was “[t]otally irrational, couldn’t make a decision, unable
to function, couldn’t handle money, didn’t or couldn’t understand when you tried to reason
with him, couldn’t even listen to you. He would look at you but you knew he wasn’t hearing
anything you said, he was in a different zone.” Crawford said that she and her parents had
been living with the Petitioner acting this way on an almost monthly basis.
Crawford testified that the Petitioner had no computer skills to speak of and that,
when he got a computer, Crawford herself took care of it. She said she set up every program
on it and taught him the basic functions for use. Crawford testified that, anytime the
Petitioner’s children sent him pictures, she had to go to the Petitioner’s house and download
them for him. Crawford testified that, many times, the Petitioner clicked on emails that he
thought were from people that he knew and, as a result, he downloaded viruses onto his
computer. She said, weekly, she went to his house to fix his computer. Crawford said there
was “[n]o way” that the Petitioner had the “capability of installing anything on that
computer,” including any file sharing program. Crawford explained that the Petitioner’s ex-
wife also had access to his computer.
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Crawford said she only met with the Petitioner’s trial counsel on the day of the
Petitioner’s guilty plea submission hearing. Counsel told Crawford and her parents that the
Petitioner needed to plead guilty in exchange for a twelve-year sentence and that he was
probably going to receive a twenty-five to forty-year sentence if he did not. Counsel, she
said, told them that if the Petitioner pled guilty he would be sent to a prison that “was
basically a mental hospital that had a fence around it.” Crawford said she later learned that
there was no such prison.
During cross-examination, Crawford agreed that although she spoke with the
Petitioner every day and saw him two or three times per week, she was not living with him
during the time period when he was arrested. Further, she worked during the day and would
see him for short periods of time during the evening. Crawford explained that when the
Petitioner was hospitalized throughout the years, it was a result of his failing to take the
medication that was prescribed to him. She said, however, that even when the Petitioner was
on his medication he did not function normally and sometimes required hospitalization.
Crawford conceded that the Petitioner obtained some ability to use his computer,
saying he learned how to access his bank account balance online, retrieve emails, and
navigate the internet. Crawford said that Counsel told her that he would do his best to get
the Petitioner into the “special needs” unit in the prison.
During redirect examination, Crawford testified that Counsel told her that if the
Petitioner pled guilty, the district attorney would agree to the Petitioner going to a prison that
was “basically a mental health facility with a big fence around it.” Crawford further
explained the effects of the Petitioner’s medications, saying that if the Petitioner took too
much medicine it affected him the same way as if he had not taken enough. Crawford
recalled that, when the Petitioner was incarcerated on these charges before pleading guilty,
the jail gave him too much medicine. This resulted in a heart attack and the Petitioner
requiring admission to the Erlanger hospital ICU.
The Petitioner testified that he pled guilty in this case to five charges and that he was
currently serving a twelve-year sentence. He recalled that the only times he met with
Counsel were one time at Counsel’s office while the Petitioner was released on bond and
then the day he entered his guilty plea. On both occasions, Counsel did not talk to the
Petitioner about the facts of the case and instead told the Petitioner he needed to plead guilty
or he would receive a forty-year prison sentence. The Petitioner testified that Counsel told
him that, if he pled guilty, he would serve his sentence in a “nursing home.” The Petitioner
said that he wanted Counsel to speak with his parents because they were present in the room
when this incident allegedly occurred. The Petitioner said there was “no truth” to the
allegation and that it was “an out right lie.” He said he never touched the child.
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The Petitioner testified that he had suffered from bipolar disorder his whole life,
saying that he had been institutionalized nineteen times in Moccasin Bend and forty-two
times in “GMHI” in Atlanta. He said he was currently taking Lithium for his diagnosis and
that he had been on Lithium for thirty-eight years. The Petitioner said that he was currently
prescribed 900 milligrams of Lithium daily. The day of his guilty plea hearing, the jail gave
him 1800 milligrams of Lithium, which was “way toxic” for him. He said that his
medication levels were so “bad” that he was “drooling at the mouth and [his] right hand
shook the whole time.” He said he sat on his hand to keep it from “hopping.” The Petitioner
recounted that, due to his high medication dosage, he could not stand up or walk straight,
saying the he walked into walls and rolled down the stairs. The Petitioner said that people
were handing him documents saying, “Here, sign this.” He said he had no glasses, he could
not see to read, and he did not know what was going on.
The Petitioner recalled a mental health evaluation administered at Hiwassee Mental
Health before his guilty plea hearing. He recalled that he “did good” that day, meaning he
could answer and talk and was not shaking badly. He said he could respond appropriately
to the evaluator. He estimated that the evaluation lasted two hours. The Petitioner said he
had been to Hiwassee Mental Health facility on multiple previous occasions because he had
to go here to get his medication.
The Petitioner testified that, at the time of his arrest, he was taking “12” Lithium but
that they increased his dosage when he went to jail because he was having difficulty falling
asleep. The Petitioner recounted again that, when they increased his dosage to “1800,” he
could not put on his clothes, and he was constantly throwing up. He said he told the woman
administering his medication that there was something wrong, and she insisted that he take
his prescribed medication. The Petitioner did as he was told, and, shortly thereafter, he
suffered a heart attack and was transported to Erlanger hospital.
During cross-examination, the Petitioner testified that he had previously been
convicted of driving charges and for “pointing a pistol.” He explained that the “pointing a
pistol” conviction was a felony but that it occurred nineteen years ago. At the time he pled
guilty in that case, a court-appointed lawyer represented him. The Petitioner said that he also
had “multiple” convictions for DUI but that there had been a period of nine years during
which he had not received any new convictions. He said that he had never had a jury trial,
pleading guilty to each of his convictions, and that he had been to jail twice. He said he
understood that each time he chose to plead guilty he had a right to a trial.
The Petitioner testified that when he said his levels of Lithium were “toxic” he meant
that he took so much that it made him throw up and rendered him unable to understand
questions and answer them properly.
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During further cross-examination, the Petitioner admitted that he had told the
investigating officer in this case that he had downloaded the child pornography onto his
computer. He agreed he told the officer that some man told him how to do this, and then he
did it himself.
Counsel testified that, initially, he was appointed to represent the Petitioner on charges
stemming from his possession of a firearm by a convicted felon and DUI, third offense.
While the Petitioner was on bond for those charges, he was arrested for aggravated sexual
battery. While on bond for the aggravated sexual battery charge, he was arrested for sexual
exploitation of a minor and aggravated sexual exploitation of a minor.
Counsel recounted that the aggravated sexual battery charge involved the Petitioner
allegedly groping his eight-year-old niece, the victim, while the two were at the Petitioner’s
mother’s house. The allegation included that he whispered into her ear that he wanted to take
a bath with her. When her mother picked her up later that evening, the victim told her
mother, who contacted law enforcement. Counsel said that the sexual exploitation charges
all stemmed from images and videos found on the Petitioner’s computer.
Counsel refuted the Petitioner’s claim that he did not adequately interview the
Petitioner’s parents. He said that the Petitioner’s parents came to his office on more than one
occasion, and that he spoke with the Petitioner’s mother on the phone “periodically” from
the first DUI charge through the date of the guilty plea hearing.
Counsel said that his file indicated that there were “a number” of dates upon which
he spoke with the Petitioner or met with the Petitioner. He disagreed that he and the
Petitioner met only twice. He said, during these meetings, the two discussed the facts of each
of the charges the Petitioner was facing. Counsel said that he did not think the proof
supporting the DUI charge was significant. Similarly, he thought that the Petitioner might
prevail on the charge of aggravated sexual battery, because the Petitioner’s family was
present during the incident and said they saw nothing consistent with the victim’s claim.
Counsel said that he and the Petitioner intended to take these charges to trial. Counsel’s
chances of success defending these two charges, however, diminished when the Petitioner
was subsequently charged in the child pornography cases. At that point, the Petitioner said
he no longer wanted to take the cases to trial and wanted Counsel to negotiate a guilty plea
agreement with the State that addressed all of the cases.
Counsel testified that he met with Janice Crawford, the Petitioner’s sister, and they
discussed the Petitioner’s medications. Counsel said he was already aware of the Petitioner’s
mental health at the time he met with Crawford.
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Counsel said that he had listened to the Petitioner’s recorded interview with Detective
Allman. He discussed that interview with the Petitioner and also discussed his options of
going to trial or agreeing to enter a plea of guilty. Counsel said he discussed with the
Petitioner the possible sentence he faced, which included the issue of consecutive sentences
because the Petitioner was on bond when he committed the subsequent offenses.
Counsel said he negotiated a plea offer with the State under which the Petitioner
would serve twelve years at 100%. Counsel informed the Petitioner of this plea offer and
discussed with the Petitioner his right to go to trial. The Petitioner never expressed to him
an intention to go to trial, and the Petitioner signed the paperwork agreeing to the State’s plea
offer. Counsel recalled that, after he discussed the Petitioner’s rights with the Petitioner, the
trial court also discussed these same rights during the guilty plea hearing. The Petitioner, at
that time, indicated that he had no questions.
Counsel said that the Petitioner was evaluated by Hiwassee Mental Health and that
the evaluators reviewed the Petitioner’s previous mental health records.
During cross-examination, Counsel conceded that the defense bar, generally, had
some issues or complaints about the quality of Hiwassee’s Mental Health evaluations.
Despite this, Counsel did not request an independent mental evaluation. Counsel agreed that
both the Petitioner’s parents were present during the time the victim said that he
inappropriately touched her. He said that there was no forensic evidence or an independent
witness supporting the victim’s claim.
Counsel testified that he referred the Petitioner to a special needs facility and also
called Teresa Hammons in an attempt to have him placed in such a unit. Counsel conceded
that neither he nor the trial court had any control over such referrals and that the decision
rested with the Department of Correction.
Counsel said he did not advise the Petitioner he had a right to file a motion to
withdraw his guilty plea within thirty days. He said he did review the discovery in each of
the cases the Petitioner faced. Counsel said he listened to the Petitioner’s recorded statement
and reviewed with the Petitioner the contents of that statement. Counsel said that he did not
see any physical evidence that led him to question the Petitioner’s competency or led him to
believe that the Petitioner did not understand their discussions.
Based upon this evidence, the post-conviction court dismissed the Petitioner’s petition
for post-conviction relief. The post-conviction court found:
The issues are very simple. We have two that are raised here in the post
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conviction petition: ineffective assistance of counsel being one; and whether
or not he was coerced into pleading guilty. He specifically petitioned saying
he was denied effective assistance of counsel which prevented him from
entering a knowing and voluntary plea and that he did not make a knowing
intelligent voluntary plea. As to effective assistance of counsel the question
for the Court, and of course the petition has to be proven. The burden is on the
[P]etitioner to prove by clear and convincing proof factual allegations. And
the primary allegations that we have seem to involve how much contact
[Counsel] had with the [Petitioner] and his family. Now, that’s common and
there’s absolutely no showing here that any counsel is required or should be
required, following objective standards, to meet with, counsel with emotionally
and otherwise family members of people that are charged. They are charged
with defending defendants and often times defendants feel as though they
don’t spend enough time talking to their lawyer and even more often times
family members feel like they don’t get to meet with the lawyer with the
[Petitioner]. It’s absolutely inappropriate for lawyers to meet with defendants
and family members and create all sorts of problems that could potentially [be]
used against them in a trial. So while I understand that people’s feelings get
hurt that has nothing to do with competent representation, and the question for
the Court is did [C]ounsel’s performance fall below objective standards. Did
he perform as well as a lawyer with ordinary training and skill in criminal law?
I would say at least, and in this case he stands up here and testifies, and the
record won’t reflect it but he seems to even today have a very clear memory
and is very familiar with the people [and the] facts in this case. [Counsel]
appears to recall it and recollect it and things that he did, discussions that he
had with the District Attorney General, the evidence that he reviewed, the
proof that was against him, the cases that he wanted to plead to, or the one case
he wanted to plead to and the ones he wanted to go to trial with. And again
[Counsel], this Court is familiar with, and he along with the detective that we
heard all this proof about here that questioned the [Petitioner], their manner is
very thorough, but one of a listener, meek and mild, and not in a bad way, but
in a very good way. [Counsel] has again exhibited a very thorough
representation in this case. So the [P]etitioner has failed to establish
ineffective assistance of counsel based on the criteria that the Court has laid
out. His performance did not fall below objective standards as well as any
other lawyer with ordinary training and skill in criminal law, and there were
no unprofessional errors that would have caused the result to be different. And
then moving on to whether or not again that his plea, whether or not it was
knowing, intelligent, and voluntary, which is coupled with that effective
assistance of counsel, it’s obvious from the testimony here today, and Exhibit
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Number One, the transcript, that the Court and [C]ounsel substantially if not
more than complied with the prescribed litany and his plea obviously passes
the due process scrutiny that you have to go through. Does this hearing show
that the [Petitioner] intended to plead guilty? It shows it more than one time.
It’s obvious that [the Petitioner] demonstrated in this litany and in this
transcript a desire to plead guilty and all this discussion about the Special
Needs Facility and everything that was testified to is right here in the litany,
and the very last thing because of that the Court discusses and not only was it
discussed the Court told him at the very end referral to a special needs facility
in Nashville is if they accept you. We can ask but they have to accept [him].
So all of this coupled together the [P]etitioner failed in the petition here today.
...
The only other thing I would add is that as to credibility of the witnesses
[the Petitioner’s] credibility, while painful at times, was effectively attacked
in cross-examination and the Court does not find that he was a credible witness
here today.
It is from this judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends that the post-conviction court erred when it
dismissed his petition because Counsel was ineffective and because his guilty plea was not
knowingly and voluntarily entered.
In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2006). Upon review, this Court will not re-weigh or re-evaluate the evidence below;
all questions concerning the credibility of witnesses, the weight and value to be given their
testimony, and the factual issues raised by the evidence are to be resolved by the trial judge,
not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999) (citing Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction court’s factual findings
are subject to a de novo review by this Court; however, we must accord these factual findings
a presumption of correctness, which can be overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40
S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.
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A. Ineffective Assistance of Counsel
On appeal, the Petitioner contends that Counsel was ineffective. He asserts that
Counsel failed to adequately investigate the facts of the underlying cases and failed to
adequately prepare for trial. He says [C]ounsel should have discussed this case further with
his family members, he should have reviewed the tape from his DUI arrest, and he should
have filed “some” pretrial motions. The State counters that, based upon the evidence
presented, the post-conviction court properly dismissed the Petitioner’s petition for post-
conviction relief.
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:
First, the [petitioner] must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the [petitioner] by the Sixth
Amendment. Second, the [petitioner] must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
result is reliable. Unless a [petitioner] makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 S.W.2d
417, 419 (Tenn. 1989).
In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, “a petitioner must show that counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Goad, 938 S.W.2d at 369).
When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
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S.W.2d 148, 149 (Tenn. Crim. App. 1988). The court should avoid the “distorting effects
of hindsight” and “judge the reasonableness of counsel’s challenged conduct on the facts of
the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 689-
90. In doing so, the reviewing court must be highly deferential and “should indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a defendant in a criminal case is
not entitled to perfect representation, only constitutionally adequate representation. Denton
v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering
claims of ineffective assistance of counsel, ‘we address not what is prudent or appropriate,
but only what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987)
(quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be
deemed to have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App.
1980). The fact that a particular strategy or tactic failed or hurt the defense, does not,
standing alone, establish unreasonable representation. However, deference to matters of
strategy and tactical choices applies only if the choices are informed ones based upon
adequate preparation. House, 44 S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)).
If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State,
90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875
S.W.2d 662, 665 (Tenn. 1994). In the context of a guilty plea as in this case, the effective
assistance of counsel is relevant only to the extent that it affects the voluntariness of the plea.
Therefore, to satisfy the second prong of Strickland, the petitioner must show that “there is
a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also
Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).
After reviewing the Petitioner’s contentions, the record, and the post-conviction
court’s findings, we conclude that the Petitioner has not proven he is entitled to post-
conviction relief. The Petitioner was arrested for DUI and being a felon in the possession
of a firearm. Counsel was appointed, and the two discussed the facts of the case. While on
bond, the Petitioner was arrested for aggravated sexual battery. Counsel said he met with the
Petitioner and his family and that they discussed this case and the previous cases. At this
point, Counsel and the Petitioner intended to take the two cases to trial. While on bond for
these two cases, the Petitioner was arrested for sexual exploitation of a minor and aggravated
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sexual exploitation of a minor. In a statement to police, the Petitioner agreed that he had
downloaded the pornographic images on his computer after another man showed him how
to do so. Counsel said, at this point, the Petitioner wanted Counsel to negotiate a package
agreement, encompassing all of the charges. Considering the sequence of these events, and
the Petitioner’s expressed desire, we do not think it unreasonable that Counsel did not
interview more witnesses or file any pretrial motions. The Petitioner has proven neither that
Counsel’s performance was deficient nor that, but for Counsel’s ineffective performance, he
would have insisted on going to trial. The Petitioner is not entitled to relief on this issue.
B. Knowing and Voluntary Guilty Pleas
The Petitioner contends that his guilty pleas were not knowingly and voluntarily
entered because he was over-medicated at the time of the guilty plea and suffering from
longstanding mental health issues. The State counters that the Petitioner has not proven this
allegation because he relies solely upon his own testimony, which the post-conviction court
did not credit.
To be valid, a guilty plea must be entered knowingly, voluntarily, and intelligently.
See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); State v. Mackey, 553 S.W.2d 337, 340
(Tenn. 1977). A plea meets constitutional muster when the defendant understands both what
the plea connotes and its consequences, Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993) (citing Boykin, 395 U.S. at 244), and makes a voluntary and intelligent choice from the
alternative courses of action available to plead guilty. Jaco v. State, 120 S.W.3d 828, 831
(Tenn. 2003) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In Mackey, 553
S.W.2d at 341, our Supreme Court set forth the procedure that a trial court should follow
when accepting a guilty plea in order to ensure that a defendant’s plea is knowing, voluntary,
and intelligent. See also Tenn. R. Crim. P. 11(b). A trial court must “substantially comply”
with this procedure. State v. Newsome, 778 S.W.2d 34, 38 (Tenn. 1989). A trial court can
look to a number of factors to find a “knowing and intelligent plea,” including “[t]he relative
intelligence of the petitioner, the degree of his [or her] familiarity with criminal proceedings,
the opportunity to confer with competent counsel and the trial court regarding the charges
faced, and the desire to avoid a greater punishment resulting from a jury trial.” Blankenship
v. State, 858 S.W.2d 897, 904 (Tenn. 1993).
During the guilty plea hearing, the trial court asked the Petitioner if he had ever been
treated for a mental disease or defense, and the Petitioner responded affirmatively. The trial
court further inquired, “Have you had any drugs or alcohol, prescription or otherwise in the
last 24 hours,” and the Petitioner responded, “Just my regular medicine, ma’am.” The trial
court asked, “Do you feel clear about what you are doing today?” to which the Petitioner
responded, “Yes, ma’am.” Counsel told the trial court then, and reiterated to the post-
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conviction court that he did not have any problem communicating with the Petitioner.
During the post-conviction hearing, the Petitioner testified that he was over medicated at
some point during his incarceration. He also said that, on the day of the guilty plea hearing,
he was drooling, his hand was shaking, and he was having difficulty walking. Further, he
said he did not understand the questions asked of him or the documents he signed. The
record indicates otherwise. The Petitioner repeatedly responded correctly to the trial court’s
questions. Counsel said that he did not see any physical evidence that led him to question
the Petitioner’s competency or led him to believe that the Petitioner did not understand the
consequences of his guilty plea. The post-conviction court found that the Petitioner’s
testimony was not credible. We defer to the post-conviction court’s findings regarding the
credibility of witnesses. See Momon, 18 S.W.3d at 156. Furthermore, we agree with the
post-conviction court that the Petitioner has failed to prove by clear and convincing evidence
that his plea was not made knowingly and voluntarily. See T.C.A. § 40-30-110(f) (2006);
Momon, 18 S.W.3d at 156. Therefore, the Petitioner is entitled to no relief on this issue.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we conclude that
the Petitioner has failed to prove by clear and convincing evidence that he was denied the
effective assistance of counsel or that his plea was not knowingly and voluntarily entered.
We therefore affirm the judgment of the post-conviction court denying relief.
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ROBERT W. WEDEMEYER, JUDGE
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