Derrick Chambers v. State of Tennessee

09/12/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 10, 2018
DERRICK CHAMBERS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 14-01027 Paula Skahan, Judge
No. W2017-01177-CCA-R3-PC
The Petitioner, Derrick Chambers, appeals from the denial of his petition for post-
conviction relief, wherein he challenged the validity of his guilty plea to attempted first
degree murder. On appeal, the Petitioner alleges that he received ineffective assistance
from his trial counsel because trial counsel (1) “failed to adequately investigate, or
prepare for trial, develop defenses, speak to witnesses, file motions, or meet with the
[Petitioner] to prepare for trial”; (2) “failed to object to raise a statutory claim with
respect to charging him with attempted murder by using a firearm and employing a
firearm in the commission of the same offense”; and (3) coerced him into pleading guilty
by providing incorrect advice. The Petitioner further contends that, but for trial
“counsel’s ineffective representation,” he “would have received a greatly reduced
sentence.” After a thorough review of the record, we affirm the judgment of the post-
conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ALAN E. GLENN
and CAMILLE R. MCMULLEN, JJ., joined.
Robert Brooks, Memphis, Tennessee, for the Appellant, Derrick Chambers.
Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On February 25, 2014, the Shelby County Grand Jury charged the Petitioner with
attempted first degree murder, aggravated assault, and employing a firearm during the
commission of a dangerous felony, to wit: attempted first degree murder. See Tenn.
Code Ann. §§ 39-12-101, -13-102, -13-202, -17-1324. Thereafter, the Petitioner pled
guilty on July 13, 2015, to attempted first degree murder, and the remaining charges were
dismissed. In exchange for his plea, he received a sentence of fifteen years as a Range I,
standard offender to be served at eighty-five percent.
At the plea submission hearing, the prosecutor provided the following factual
bases underlying the Petitioner’s charges:
On or around October 6, 2013, officers of the Memphis Police
Department responded to a shooting in the area of Dogwood and Barron,
that is in Shelby County, Tennessee.
This victim, Jasper Woods, drove away from the scene at Dogwood
and Barron after he was shot, several times, seeking medical attention. He
drove himself to the fire station located on Getwell and Rhodes. Medical
aid was being provided by a Memphis Fire Department, EMT personnel.
Mr. Woods said Derrick was the person who was responsible for shooting
him. He continued to say that someone named Derrick, or Little D, was the
person responsible for shooting him. The victim was transported to The
Med, in critical condition, with gunshot wounds to the face, arms, legs,
back, chest[,] and testicles.
Officers responded to The Med where, the victim, Mr. Woods[,]
stated again that someone he knew as Derrick lived in the area was the one
who shot him. Officers found shell casings located at the scene at
Dogwood and Barron.
On Monday, October 7th, the victim, Mr. Woods[,] provided a
formal statement to the Memphis Police Officers stating that Derrick
Chambers was the one who shot him.
After an investigation, Memphis Police Officers discovered that the
person named Little D, was known as Derrick Chambers [the Petitioner], a
photo of [the Petitioner] was placed in a photo lineup and he was identified
by the victim.
Officers proceeded to 1115 Will . . . Scarlet . . . . They located [the
Petitioner] at his residence, which is where his victim believed [the
Petitioner] should have lived. [The Petitioner] was transported to felony
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response and provided a formal statement. It was a statement of denial,
although there are many inconsistencies in the statement[.]
Trial counsel stipulated to the facts recounted by the State. Trial counsel maintained that
he was prepared for trial, which was to occur that afternoon. Trial counsel also noted that
“after heavily negotiating this with [the Petitioner], who consulted with [trial counsel]
and also his mother,” the Petitioner agreed to “this negotiated settlement.”
The trial court then engaged the twenty-year-old Petitioner in a plea colloquy. The
Petitioner informed the trial court that he had completed the eleventh grade and had
reviewed his “rights to trial” with his attorney. The trial court then advised the Petitioner
that he was to answer the trial court’s questions truthfully or otherwise he could be
charged with perjury. After affirming that he would tell the truth, the Petitioner indicated
that he understood that by pleading guilty he was waiving his right to a jury trial, at
which he could cross-examine the State’s witnesses, present witnesses in his defense, and
opt to remain silent. The Petitioner also said that he understood what the State would
have had to prove “on each of these charges” if he proceeded to trial.
The Petitioner maintained that he had no prior felony convictions. The trial court
then explained the potential punishments that the Petitioner faced on each of the charges
if he was found guilty by a jury, including that the employing a firearm offense would
require consecutive service, and the Petitioner affirmed his understanding. The Petitioner
acknowledged that, by pleading guilty, he was giving up his right to an appeal. He also
said that he understood his guilty-pleaded conviction would be on his permanent record
and could be used to enhance sentences if he had any convictions in the future.
The Petitioner said that no one had forced or pressured him into pleading guilty.
He stated his awareness that, by entering this plea, he would never be able to possess a
gun and that, if caught with a gun, he could be convicted of a crime. Moreover, the
Petitioner said that he understood that, if he was later charged with first degree murder,
his guilty-pleaded conviction could be used as an aggravating circumstance to seek the
death penalty.
The Petitioner also averred that he was satisfied with his attorney’s performance.
He had no questions about his plea agreement or the rights he was waiving. The trial
court found that the Petitioner pled guilty “freely, knowingly, voluntarily, and
intelligently.” The trial court accepted the Petitioner’s guilty plea and imposed a
sentence in accordance with the plea agreement.
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On July 20, 2016,1 the Petitioner filed a pro se petition seeking post-conviction
relief, which was later amended following the appointment of counsel. In the amended
petition, the Petitioner alleged that he received ineffective assistance because trial counsel
(1) “failed to adequately investigate, or prepare for trial, develop defenses, speak to
witnesses, file motions, or meet with the [Petitioner] to prepare for trial”; (2) “failed to
object to raise a statutory claim with respect to charging him with attempted murder by
using a firearm and employing a firearm in the commission of the same offense”; and (3)
coerced him into pleading guilty by providing incorrect advice. The Petitioner concluded
that, but for trial “counsel’s ineffective representation,” he “would have received a
greatly reduced sentence.” The post-conviction court held evidentiary hearings on
February 10th and March 9th of 2017.
The Petitioner testified that his “basis for” post-conviction relief was “ineffective
counsel, double jeopardy[,] and inconsistent statements of [his] victim.” According to
the Petitioner, trial counsel received this case from the Public Defender’s Office on June
24, 2014, almost thirteen months before it was set for trial. The Petitioner asserted that
trial counsel only met with him three times during that thirteen months and that the
meetings lasted for five minutes or less. The Petitioner claimed that he asked trial
counsel for a “discovery packet” and to have several witnesses subpoenaed. Regarding
the filing of motions, the Petitioner maintained that trial counsel ignored his requests to
file a “motion for bail reduction, motion for suppression of evidence, motion for
discovery, motion for dismissal[,] and motion for alibi defense.” The Petitioner further
asserted that trial counsel did not investigate the case and did not discuss trial strategy
with him prior to trial. When asked “[i]f trial counsel had done those things that [the
Petitioner] wanted him to do that [trial counsel] didn’t, how would that have helped [the
Petitioner],” the Petitioner replied, “I would have . . . gone home in 2015. I would have
beat my case on impeachment of the victim [and an] alibi defense.”
Regarding inconsistent statements made by the victim, the Petitioner averred that
the victim first told the police that “he was walking and getting into his vehicle” when he
was shot and that later, at the preliminary hearing, the victim said that “he never got
outside his vehicle” before getting shot. The Petitioner further asserted that the victim
said at the preliminary hearing that only the Petitioner was present on the scene of the
shooting. The Petitioner then referenced a narrative by a Memphis police officer that was
a part of the Petitioner’s “discovery packet.” In the narrative, admitted as an exhibit, the
officer stated “that an unknown male black said that he saw the victim standing outside
his vehicle . . . speaking with [two] male blacks”; that “[t]he unknown male black witness
1
Generally, “a judgment of conviction entered upon a guilty plea becomes final thirty days after
acceptance of the plea agreement and imposition of sentence.” State v. Green, 106 S.W.3d 646, 650
(Tenn. 2003). On appeal, the State acknowledges that the Petitioner’s guilty plea did not become final
until thirty days after July 13, 2015, and that his petition is timely filed. We agree.
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said that he briefly turned his head away and heard several gunshots”, and that, “[w]hen
he turned[,] around he saw the victim driving north bound on Dogwood.” In addition,
according to the Petitioner, the victim claimed that “he was coming to serve [the
Petitioner] drugs,” but no drugs were found in the victim’s car.
The Petitioner stated that, although he asked trial counsel for discovery,
“[e]verything that he got was from [his] old attorney.” He acknowledged that he had the
affidavit of complaint and the narrative report in his possession but claimed, “I don’t
have . . . nothing that I asked for and I filed for and still didn’t get it.” According to the
Petitioner, “new stuff ha[d] come about.” The Petitioner then referenced another
statement made by the victim to the Memphis Police Department (“MPD”), wherein,
according to the Petitioner, the victim identified the Petitioner but said that he did not
know the Petitioner’s last name. The Petitioner asserted that he had only one of the three
inconsistent statements in his possession, that being the narrative report, and that he did
not receive either a copy of the preliminary hearing or the victim’s MPD statement. The
Petitioner maintained that his original attorney had shown him those two statements but
failed to give him a copy of them before she withdrew.
Regarding specific motions the Petitioner wanted filed, the Petitioner alleged that
double jeopardy principles protected him from being charged with attempted first degree
murder, aggravated assault, and employing a firearm during the commission of a
dangerous felony. According to the Petitioner, although trial counsel sought to get the
Petitioner a deal on solely the aggravated assault charge, trial counsel was unsuccessful.
The Petitioner testified that, prior to trial, trial counsel was only able to secure a deal of
fifteen years for attempted first degree murder and six years each for aggravated assault
and employing a firearm. The Petitioner asserted that it was double jeopardy when the
State “offered [him] time on all three.”
The Petitioner claimed that, if he had been “appropriately represented,” he “would
have either got a much shorter sentence, or acquitted” of the charges. When asked how
he “would . . . have gotten a shorter sentence,” the Petitioner responded, “A shorter
sentence, either way they would have came [sic] at me . . . , because there’s three lesser
included offense[s] that I could have looked at[.]” In conclusion, the Petitioner was
asked if there was “anything else [he] would like the [j]udge to know about [his] post-
conviction,” and the Petitioner stated that he wanted the “MPD officer,” “the detectives
of felony response,” his six alibi witnesses, trial counsel, and the victim subpoenaed to
court.
On cross-examination, the Petitioner acknowledged that the victim had identified
him as the shooter in the victim’s original police statement, at the preliminary hearing,
and in a lineup. The Petitioner explained, “Because he knows me, he had just seen me,
probably an hour before.”
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The Petitioner was also asked about proceedings that occurred in December 2014,
from which trial counsel was absent. The Petitioner agreed that he indicated to the trial
court on this date that he “was leaning towards trial, but [he] didn’t really want a trial, but
[he] didn’t want the offer either[.]” The case was then set for trial.
When asked why he then decided to plea just before trial was to begin, the
Petitioner explained, “Because [trial counsel] wasn’t even back there thirty seconds and
he said, . . . you know you sign for the fifteen years everything else is dropped, they’ve
got a dead on case on you.” The Petitioner claimed that he still wanted to go to trial and
that he continued to ask trial counsel to file motions, but trial counsel would not comply.
The Petitioner acknowledged that he told the trial judge that he was satisfied with trial
counsel’s representation at the plea submission hearing, but he claimed that he only did
so relying on incorrect advice from trial counsel. The Petitioner asserted that trial
counsel counseled him on how to answer the trial judge’s questions during the plea
colloquy. However, the Petitioner claimed that he wanted to enter an Alford plea2 instead
because he was innocent, although he never mentioned this at the plea submission
hearing. When asked if he recalled speaking with his mother prior to accepting the guilty
plea, the Petitioner said that this conversation was short and that trial counsel had already
spoken with her. According to the Petitioner, his mother encouraged him to take the plea
because trial counsel was “a bad lawyer.”
The Petitioner acknowledged that he did have a juvenile record, which included
two aggravated burglaries and a robbery. The Petitioner agreed that those offenses could
have been used to enhance his sentence.
The Petitioner continued to claim that there was a significant difference between
the victim’s saying that he was walking to the car before the shooting began and that he
was sitting in the car when the shooting happened. In addition, the Petitioner confirmed
that he told police that the victim had been at his house earlier on the day of the shooting
and that the victim had sold him some marijuana. The Petitioner then acknowledged that
the victim would have known where he lived based upon this prior transaction. The
2
The Tennessee Supreme Court has explained an Alford plea as follows:
Although uncommon, criminal defendants also may plead guilty while
maintaining that they did not commit the crime charged. Such pleas are often referred to
as “Alford pleas” based on the United States Supreme Court case, North Carolina v.
Alford, 400 U.S. 25, 91 (1970). In Alford, our nation’s high court held that a defendant
who professed his innocence could nonetheless enter a constitutionally valid guilty plea
when the defendant “intelligently concludes that his interests require entry of a guilty
plea.” Id. at 37.
Frazier v. State, 495 S.W.3d 246, 250 n.1 (Tenn. 2016).
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Petitioner also asserted that he told the police that he was at home with his mother and
other family members when the shooting occurred.
The Petitioner’s mother, Nicole Johnson, testified. She stated that the Petitioner
did not “leave the house that day.” Ms. Johnson relayed that she picked up the Petitioner
from the Greyhound Station the night before, that he had only been in Memphis for less
than a day, and that, on the evening of October 6, 2013, she fixed dinner for the
Petitioner, his “younger siblings,” her sister, and some of her sister’s friends. According
to Ms. Johnson, she informed trial counsel that the Petitioner was home with her at the
time of the shooting, and she asserted that she would have been willing to testify for him.
Ms. Johnson said that she spoke with trial counsel only twice before the Petitioner’s
guilty plea, once in person and once over the phone. She maintained that she did not
have “too much communication” with trial counsel. Ms. Johnson asserted that she was
not aware of the nature of the Petitioner’s charges until the day the Petitioner pled guilty.
However, Ms. Johnson agreed that, after speaking with trial counsel, she spoke with the
Petitioner alone and advised the Petitioner to accept the State’s offer of fifteen years. In
addition, she stated that she did so because she “was just kind of relieved that it wasn’t a
life situation” for the Petitioner and “that he would still be able to get out and have a
productive life.”
In response to the Petitioner’s claim that trial counsel rarely visited him, trial
counsel testified that he met with the Petitioner “a few times, including one lengthy time
for trial prep[aration].” Trial counsel further averred that they “discussed [the
Petitioner’s] case in detail and trial strategies.” When asked about his investigation, trial
counsel replied that he took over the case from the Public Defender’s Office and that
“they had done a preliminary hearing, obtained discovery and had done an investigation
prior to this,” so by the time he took over “everything was fairly complete.” Trial
counsel continued, “[I]t just needed to be looked at, discussed, negotiated and then set for
trial, if negotiations failed.” Trial counsel averred that he investigated the Petitioner’s
case, reviewed discovery, and was “excited at the prospect” of going to trial.
Regarding potential witnesses, trial counsel testified that he “had a lengthy
conversation” with the Petitioner’s mother. In addition, trial counsel did not recall the
Petitioner’s asking him to file any motions. According to trial counsel, “discovery had
already been filed,” and he “did not see any grounds in a motion to suppress, or what
needed to be suppressed[.]” While trial counsel did not remember the Petitioner’s
wanting him “to file motions concerning the constitutionality of the charges against
him[,]” trial counsel opined that there was no merit to such a motion. When asked about
the inconsistencies in the victim’s statements, trial counsel thought that those “did not
seem particularly significant” given that the victim was shot multiple times regardless of
the victim’s position when he was shot.
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Trial counsel confirmed that the Petitioner told him “that he was with his family at
the time” of the shooting and that the Petitioner’s mother was present at trial “to support
him and [was] willing to testify.” Regarding why he did not advise the Petitioner to go to
trial given that the Petitioner had an alibi defense, trial counsel said, “Well, mothers are
never the greatest witness[es], because she obviously has an interest in saving her son and
keeping him out of jail. So she has an incentive to do anything to protect him.” Trial
counsel also confirmed that there were other credibility issues because the Petitioner
“actually put himself in contact with the victim and near the scene, at or near the time of
the murder[,] and additionally, . . . the victim knew where the [Petitioner] lived[.]”
Trial counsel testified that he did try to get the Petitioner an offer for aggravated
assault only, but he was unsuccessful. Trial counsel asserted “that the State had a very
strong case[.]” “The most helpful thing,” in trial counsel’s opinion, was “that the victim
in this case was very clearly not a good guy,” being a member of a gang and a drug
dealer, and this information would have “impugn[ed] his credibility” with the jury. Trial
counsel noted that “on the trial date[,] the offer got a lot better,” “get[ting] rid of the gun
charge [and] reducing six years to the sentence,” for an “ultimate settlement” of fifteen
years. Trial counsel continued, “I told him that was a very good idea and things were not
likely to get any better. But, I let him make the decision” about whether to plead guilty
or go to trial. Trial counsel also maintained that he based his advice to accept the fifteen-
year plea deal on the other evidence in the case, including that the Petitioner had given a
statement “put[ting] himself with the victim prior to the incident” and that “the victim
had been unwavering in his identification” of the Petitioner. Trial counsel confirmed that
the Petitioner’s mother spoke with the Petitioner for about “twenty minutes” before the
plea submission hearing, and trial counsel believed that the Petitioner’s mother “was
much more persuasive” in getting the Petitioner to accept the offer. According to trial
counsel, the Petitioner never gave him any indication that he was unhappy with trial
counsel’s representation.
The post-conviction court thereafter denied the Petitioner relief by written order
filed on June 6, 2017, concluding that the Petitioner had failed to establish his claims of
ineffective assistance of counsel. In denying the Petitioner’s claims, the trial court
reasoned as follows:
As reflected in the record, an investigation was conducted by the original
defense team in this case. Trial counsel . . . met with [the] Petitioner to
discuss his case several times. [Trial counsel] looked at the discovery and
the possible defenses and determined that there were no other reasonable
grounds for filing a motion to suppress or any other motion. [Trial counsel]
even met with [the] Petitioner’s mother (his potential alibi witness) and
discussed the case with her. [Trial counsel] also negotiated with the State
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and presented [the] Petitioner with an offer of fifteen years at eighty-five
percent—which he accepted when he pled guilty.
This timely appeal followed.
ANALYSIS
On appeal, the Petitioner raises the same issues as those in his amended petition
and submits that the post-conviction court erred when it denied him relief. The State
responds that the post-conviction court correctly concluded that the Petitioner failed to
carry his burden of proving that trial counsel was ineffective.
Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const.
amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective
assistance of counsel is made under the Sixth Amendment to the United States
Constitution, the burden is on the petitioner to show (1) that counsel’s performance was
deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “Because a
petitioner must establish both prongs of the test, a failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.”
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been
applied to the right to counsel under article I, section 9 of the Tennessee Constitution.
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. When a court
reviews a lawyer’s performance, it “must make every effort to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). Additionally, a
reviewing court “must be highly deferential and ‘must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’”
State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466 U.S. at
689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to
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tactical choices only applies if the choices are informed ones based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)).
As to the prejudice prong, the petitioner must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing Strickland, 466
U.S. at 694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. “That is, the petitioner must
establish that his counsel’s deficient performance was of such a degree that it deprived
him of a fair trial and called into question the reliability of the outcome.” Pylant v. State,
263 S.W.3d 854, 869 (Tenn. 2008) (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.
1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies
the second prong of Strickland.” Id.
The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94. On appeal, we
are bound by the post-conviction court’s findings of fact unless we conclude that the
evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d
450, 456 (Tenn. 2001). Additionally, “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 post-conviction court. Id. Because they relate to
mixed questions of law and fact, we review the post-conviction court’s conclusions as to
whether counsel’s performance was deficient and whether that deficiency was prejudicial
under a de novo standard with no presumption of correctness. Id. at 457.
In the context of a guilty plea, 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).
First, the Petitioner contends that trial counsel “failed to adequately investigate, or
prepare for trial, develop defenses, speak to witnesses, file motions, or meet with the
[Petitioner] to prepare for trial.” However, trial counsel’s testimony from the post-
conviction hearing belies this contention. Trial counsel testified that, when he received
the Petitioner’s case from the Public Defender’s Office, “everything was fairly
complete.” Trial counsel affirmed that he had reviewed the information provided to him
and that he was prepared for trial, even “excited at the prospect.” Trial counsel further
stated that, during his review of the case, he learned that the victim was not a “good guy,”
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being a drug dealer and a gang member, and he could use this information to attack the
victim’s credibility in front of the jury. According to trial counsel, he met with the
Petitioner “a few times, including one lengthy time for trial prep[aration,]” and they
“discussed [the Petitioner’s] case in detail and trial strategies.” In addition, the
inconsistencies in the victim’s statement were not “particularly significant,” in trial
counsel’s opinion. The post-conviction court clearly credited trial counsel’s testimony
over the Petitioner’s, which is a determination we will not disturb on appeal. See Fields,
40 S.W.3d at 456.
Regarding the presentation of an alibi defense, trial counsel said that he
interviewed the Petitioner’s mother but that, after speaking with her, he did not believe
she would make a credible witness. Trial counsel felt that her credibility was
questionable in light of her natural bias in favor of her son, the Petitioner. Furthermore,
trial counsel did not think that her testimony would overcome the Petitioner’s statement
that he was in the victim’s company shortly before the shooting. Trial counsel had
investigated the Petitioner’s alleged alibi and was adequately prepared. See Hellard, 629
S.W.2d at 9.
In addition, trial counsel did not recall the Petitioner’s requesting that he file any
motions, and in trial counsel’s opinion, there was no legal basis for a motion to suppress
or a motion to challenge the charges on double jeopardy grounds. We agree. The
Petitioner did not identify what evidence should have been suppressed or what legal
grounds would have supported suppression. There is also no support for the Petitioner’s
belief that trial counsel should have raised “a statutory claim with respect to charging [the
Petitioner] with attempted murder by using a firearm and employing a firearm in the
commission of the same offense.” The employment of a firearm is not an essential
element of attempted first degree murder. See State v. John Armstrong, No. W2016-
00082-CCA-R3-CD, 2016 WL 5210869, at *2 (Tenn. Crim. App. Sept. 20, 2016)
(“Possession of a firearm is not an essential element of attempted first degree murder, as
attempted first degree murder may be committed without the possession of a firearm.”)
(citation omitted).
The Petitioner also claimed that trial counsel coerced him into pleading guilty by
providing him with incorrect advice. Trial counsel testified that he advised the Petitioner
to accept the fifteen-year offer but that the ultimate decision was the Petitioner’s. Trial
counsel said that he counseled the Petitioner to take the deal because the State had a
strong case, which included the Petitioner’s statement placing himself with the victim just
before the shooting and the victim’s multiple statements identifying the Petitioner as the
shooter. Moreover, the Petitioner was allowed to speak with his mother before he made
the decision to accept the plea, and she also advised him to accept the plea deal.
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According to trial counsel, the Petitioner never gave him any indication that he was
unhappy with trial counsel’s representation.
The Petitioner argued that, but for trial “counsel’s ineffective representation,” he
“would have received a greatly reduced sentence.” The Petitioner asserted that he would
have received “[a] shorter sentence” because there were “three lesser included offense[s]
that [he] could have looked at” had trial counsel better represented him. However, he has
provided no further factual support or legal authority for his claim. See Alvin Waller, Jr.
v. State, No. W2016-00265-CCA-R3-PC, 2016 WL 6994984, at *5 (Tenn. Crim. App.
Nov. 30, 2016) (finding no merit to the petitioner’s summary claim of prejudice that he
“would have been acquitted of the kidnapping charge [had] the appropriate jury
instructions being given” because the petitioner failed to provide “further factual support
or legal authority” in support). And, although the Petitioner questioned counsel’s ability
to adequately represent him, trial counsel was able to negotiate the State down from an
initial offer of fifteen years on the attempted murder charge and six years each on the
aggravated assault and employing a firearm offenses to the offer ultimately agreed to,
fifteen years at eighty-five percent on the attempted first degree murder offense only.
Finally, at the plea submission hearing, the Petitioner indicated his understanding
of the plea agreement and affirmed his desire to plead guilty to the charge. He also stated
that he was satisfied with counsel’s representation. “Solemn declarations in open court
carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). “A
petitioner’s sworn responses to the litany of questions posed by the trial judge at the plea
submission hearing represent more than lip service. Indeed, the petitioner’s sworn
statements and admission of guilt stand as a witness against the petitioner at the post-
conviction hearing when the petitioner disavows those statements.” Alfonso C. Camacho
v. State, No. M2008-00410-CCA-R3-PC, 2009 WL 2567715, at *7 (Tenn. Crim. App.
Aug. 18, 2009). Accordingly, the Petitioner has failed to prove that trial counsel was
ineffective such that his pleas were rendered unknowing and involuntary. The Petitioner
is not entitled to relief.
CONCLUSION
Based upon the foregoing, the judgment of the post-conviction court is affirmed.
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D. KELLY THOMAS, JR., JUDGE
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