Christopher Lance Shockley v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 14, 2009
CHRISTOPHER LANCE SHOCKLEY v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County
No. 2004-A-138 J. Randall Wyatt, Judge
No. M2008-00143-CCA-R3-PC - Filed March 31, 2009
A Davidson County grand jury indicted the Petitioner, Christopher Lance Shockley, on four counts
of rape of a child and nine counts of aggravated sexual battery. The Petitioner pled guilty to four
counts of aggravated sexual battery, and the trial court imposed an effective sentence of sixteen
years. This Court affirmed the sentence on appeal. The Petitioner then filed a post-conviction
petition claiming that: (1) his guilty plea was not knowingly and voluntarily entered; and (2) he
received the ineffective assistance of counsel. The post-conviction court denied relief, and the
Petitioner now appeals. After a thorough review of the record and the applicable law, we affirm the
judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
JERRY L. SMITH , JJ., joined.
G. Kerry Haymaker, Nashville, Tennessee, for the Appellant, Christopher Lance Shockley.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, III, District Attorney General;
Brian Holmgren, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Facts
A. Guilty Plea Hearing
A Davidson County Grand Jury indicted the Petitioner on four counts of rape of a child and
nine counts of aggravated sexual battery. This case arose from the following facts, which were
recited by the State at the guilty plea hearing:
Your Honor, had this matter proceeded to trial, in . . . File 2004-A-138, the
state would have been prepared to present evidence that indicated that [S.C.]1, whose
date of birth is 5/22/90, disclosed to authorities that between the ages of eleven and
twelve years of age the [Petitioner] had engaged her in a variety of sexual behaviors.
She . . . had disclosed and . . . would have been prepared to testify that the
[Petitioner] on multiple occasions fondled her breasts and genitals, as well as kissing
her breasts at her residence, located here in Nashville,
[The Petitioner] was, also, interviewed, and in fact, volunteered information,
initially, to a DCS worker [that] indicated that he had engaged the victim in a variety
of sexual events, including rubbing her breasts and genitals and fingering her and
kissing her – her breasts, and that this occurred on multiple occasions, and also, that
he had her fondle his penis to the point of ejaculation.
[The Petitioner] made similar types of admissions to authorities, but claims
that the victim was twelve years of age at the time. The victim, basically, indicated
the same types of behaviors occurred during the time period that she was eleven to
twelve. All of these would have occurred on separate occasions.
During the hearing, the trial court explained to the Petitioner the offenses to which he was pleading
guilty, the potential sentences for those offenses, his right to a trial by jury and what that would
entail, his right to testify at a jury trial, and his right to appeal any jury verdict. The trial court asked
the Petitioner if he had any questions, and the Petitioner responded that he did not. The Petitioner
attested to the trial court that he had read the entire guilty plea petition and that his trial counsel
(“Counsel”) had explained it to him. The Petitioner then pled guilty to four counts of aggravated
sexual battery, and he agreed to let the trial court sentence him. Subsequently, the trial court held
a sentencing hearing, and it ordered the Petitioner to serve sixteen years. This Court affirmed the
sentence on appeal. State v. Christopher Lance Shockley, No. M2004-02086-CCA-R3-CD, 2005
WL 1683493 (Tenn. Crim. App., at Nashville, July 18, 2005), no Tenn. R. App. P. 11 application
filed.
B. Post-Conviction Hearing
At the post-conviction hearing, the following evidence was presented: The Petitioner testified
that he initially learned of the charges against him while he was being treated by several doctors.
One of those doctors was Dr. Okpaku, who prescribed the Petitioner an anti-depressant, Zoloft, and
a sleep aid, Ambien. The Petitioner took the Zoloft daily, and he took the Ambien as needed. He
related that the Ambien caused him to “black out . . . at times.” The Petitioner said that, on several
occasions, he took Ambien to sleep and woke up to find things he did not recall touching were
moved around within his room. Additionally, the Petitioner testified that one time after he took
Ambien, his uncle found him “up” in the middle of the night and had to put him back in bed, none
of which the Petitioner remembered. The Petitioner took Ambien the night before his plea hearing
“because [he] was really upset.” He said that he “remember[ed] getting up in the middle of the
1
It is the policy of this Court to use initials for the victims of child sexual cases.
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night” and that the medicine did not help him sleep “like it normally [did].” Consequently, the
Petitioner took more Ambien. He said he did not recall waking the morning of his plea hearing, and
he only remembers “bits and parts” of being in court.
The Petitioner initially said that he met with Counsel only once before his plea hearing. The
Petitioner then recounted several times that he met with Counsel. Three such times were when they
met in jail before the Petitioner made bond, in Counsel’s office when the indictments were not yet
available, and in Counsel’s office before the plea hearing. The Petitioner stated that Counsel told
him he would receive an eight-year sentence. The Petitioner thought this was a “bad deal” because
of “the circumstances of what happened.” The Petitioner said that Counsel did not explain that the
Petitioner would have to register as a sex offender and the ramifications of doing so. The Petitioner
also said Counsel did not go over the plea petition with him. He stated that he would not have plead
guilty if he knew he could have been sentenced to more than eight years.
The Petitioner admitted he had read the guilty plea hearing transcripts, which reflected that
the trial judge explained to him the plea’s requirements and the possibility of a sentence longer than
eight years; however, the Petitioner said that he did not recall that explanation and admonition. He
also said the trial court did not ask him if he was on medication when it accepted his guilty plea. The
Petitioner said Counsel did not discuss an amendment to the plea agreement with him. Only at the
sentencing hearing, of which the Petitioner claimed he did not understand the purpose, did the
Petitioner realize he could be sentenced to over eight years.
The Petitioner remembered meeting with Counsel before the sentencing hearing. He told
Counsel he wanted to withdraw his guilty plea because the charges were for “aggravated” sexual
battery. The Petitioner said Counsel became angry and walked out.
On cross-examination, the Petitioner said that he was upset because he was sentenced to
sixteen years instead of eight. He acknowledged that he pled guilty to four charges that all carried
a penalty of eight to twelve years in prison. He also acknowledged that the transcripts of the guilty
plea hearing showed that the trial court informed him that it could order his sentences to be served
consecutively or concurrently. The Petitioner said he participated in a juvenile court hearing in
which S.C., the victim of his crimes, testified that he did not penetrate her. Counsel used this
testimony denying penetration when negotiating the Petitioner’s guilty plea deal with the State. The
Petitioner admitted that, if he had gone to trial, his confession could have been used against him, and
that he would have faced a possible sentence of over one hundred years.
The Petitioner testified that he had more than a thirty-day supply of Ambien. He said that,
in addition to the Ambien he took the night before, he had also taken Zoloft and “some” Xanax
before the plea hearing, which caused him to not “think[] clearly and rationally” at the hearing. The
Petitioner explained that he did not express any confusion to the judge at the time of the guilty plea
hearing because it would have “disrupt[ed] the flow of things.” He said, “I just wanted to go through
the motion, the formalities. I already had a plea agreement for eight years. So I didn’t want to do
anything to disrupt that.”
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The Petitioner reiterated that he tried to withdraw his guilty plea within a week’s time of the
hearing because he learned he was being accused of “violent charges” and that the charged alleged
the victim was less than thirteen years old. He said that he did not have the indictment to read the
charge that included the reference to the victim’s age.
Dr. Samuel Okpaku, a medical doctor and an assistant professor at Vanderbilt University and
Meharry Medical College, testified that he treated the Petitioner for depression in 2003 for three
months. He prescribed Zoloft for the Petitioner’s depression and Ambien for his related sleep
difficulties. Dr. Okpaku said he knew of reports where some people who took Ambien fell asleep
and did not know they were completing tasks, such as driving. He agreed that “the more Ambien
that’s prescribed the more likely” such incidents would occur. Dr. Okpaku stated that the drugs he
prescribed for the Petitioner could cause confusion and agitation, but he said that “most of the drugs
that [he] prescribe[d] can cause confusion.” Dr. Okpaku was not aware of an FDA warning that
people who take Ambien need to get at least eight hours of sleep after taking it. He felt that the
warnings for taking Ambien were “common sense.” Dr. Okpaku added that he normally does not
prescribe refills. On redirect, Dr. Okpaku said that it was possible the Petitioner had not taken the
Ambien as he prescribed it.
On cross-examination, Dr. Okpaku said that prior to the sentencing hearing, he last saw the
Petitioner in January 2004.2 He stated that he normally prescribed a medicine for four weeks and
that he had no record of prescribing any medication to the Petitioner after February 2004. Dr.
Okpaku said he did not know what the Petitioner’s mental state was during the guilty plea hearing,
but he stated that the medicine he prescribed was to help the Petitioner think more clearly.
Frankie Shockley, the Petitioner’s mother, testified that she hired Counsel to represent the
Petitioner on the charges of rape of a child and aggravated sexual battery. She met with Counsel at
his office to discuss the plea agreement, and she understood that the Petitioner “would get . . .
probably eight years or maybe less.” She thought the worst-case scenario was eight years. Shockley
said the Petitioner was upset at receiving eight years as a sentence, and he walked out of the meeting.
Shockley further described the Petitioner’s mood, and she said, “He . . . just seemed to be just not
knowing what was going on.” She elaborated that he “was depressed. . . . Very depressed.” She said
the Petitioner had trouble sleeping, and the medication he took to help him sleep made him “lifeless”
and caused him to “just lay around.” Shockley then testified that she was very surprised at the
sixteen-year sentence the trial court imposed, and she opined that she “felt like two or three years
with some counseling would be plenty.” Shockley clarified that she was not present at the plea
hearing.
On cross-examination, Shockley recalled that Counsel talked about the Petitioner’s sentences
possibly “stacking,” but she did not recall hearing about “consecutive sentences.” She described her
son’s mental state the morning of the plea hearing as “very confused” to the point where he “didn’t
know what was happening.”
2
W e note that the Petitioner’s guilty plea hearing was held on June 10, 2004.
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Janet Brewster, a life-long neighbor of the Petitioner, testified that she talked with the
Petitioner in the span between his guilty plea hearing and his sentencing hearing. She opined that
the Petitioner did not understand the charges against him or how much time he could serve.
Brewster said she tried explaining to the Petitioner what the charges meant, which included telling
him that “aggravated” meant “violent” and that the crime involved a child under thirteen years old.
On cross-examination, Brewster stated that she heard from the Petitioner’s mother about the
guilty plea and that she subsequently researched those crimes. The Petitioner’s mother told Brewster
that the Petitioner did not understand the charges. Brewster said she wanted to clarify the
Petitioner’s lack of understanding with the court, but she did not want the judge to find her in
contempt of court for “standing up and saying this is a one-sided hearing.” Brewster said she was
dissatisfied with the sentencing hearing.
For the State, Counsel testified that he was a criminal defense attorney and that he
represented the Petitioner throughout the proceedings. He said he discussed each charge and the
possible penalties with the Petitioner prior to the plea hearing. Counsel stated that there was no
“question in [his] mind that [the Petitioner] knew that he was alleged to have engaged in sexual
behavior with a child under the age of thirteen.” They discussed the requirements of penetration and
touching, and Counsel informed the Petitioner of the sentence ranges of fifteen to twenty-five years
at one hundred percent for rape of a child and eight to twelve years at one hundred percent for
aggravated sexual battery. Counsel said he also told the Petitioner that he would likely receive
consecutive sentences if he went to trial. Counsel negotiated the plea deal with the State for four
counts of aggravated sexual battery. He said he discussed “the good, the bad, and the ugly” of each
offer from the State with the Petitioner.
Counsel said that, when he met with the Petitioner and his family, they discussed each offer
and its possible sentence range. He said he explained that, with the four counts of aggravated sexual
battery, the Petitioner could serve from eight to forty-eight years. Counsel stated that he never
suggested the Petitioner would serve less than eight years or that the Petitioner could receive a better
plea offer. Counsel then testified that nothing suggested the Petitioner did not understand the
ramifications of pleading guilty. Counsel said of the Petitioner, “He was clearly upset, but not that
he did not understand what he was doing.” Counsel assured the Court that he would have asked for
a continuance if he felt the Petitioner was not “of sound mind.”
Counsel said that, between the plea hearing and the sentencing hearing, he explained to the
Petitioner the purpose of a sentencing hearing and reiterated that he pled guilty to aggravated sexual
battery, and not simply sexual battery, because the victim was under thirteen years of age at the time
of the offense. He also explained to the Petitioner that at the sentencing hearing they needed to
convince the court the Petitioner was a first time offender and should serve concurrent minimum
sentences. Counsel then said he called witnesses on the Petitioner’s behalf at the sentencing hearing.
Counsel stated that neither the Petitioner nor any member of his family wanted to withdraw the
guilty plea. Counsel concluded by saying there was nothing he could have done better on this case.
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On cross-examination, Counsel testified that he met “numerous” times with the Petitioner
and the Petitioner’s mother before the plea hearing. He also met several times with the Petitioner
at the jail between the plea hearing and the sentencing hearing. Counsel did not recall the Petitioner
ever saying he wanted to withdraw his plea, and he said he would have withdrawn the plea if the
Petitioner wanted to do so. Counsel said it was “most likely” that he went over the plea petition with
the Petitioner the morning of the plea hearing. While going over the plea petition, Counsel had the
Petitioner read it and ask him any questions. He is “sure” that he explained the Sex Offender
Registry to the Petitioner, although he does not specifically recall discussing it with the Petitioner.
Counsel stated that he felt the deal was good. Counsel did not remember asking the Petitioner if he
was taking any medication, and he does not remember the trial court asking the Petitioner such a
question, either.
After hearing the evidence presented, the post-conviction court denied the Petitioner’s
petition for relief. It is from that judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner claims that: (1) he did not plead guilty voluntarily, knowingly, or
intelligently; and (2) he received the ineffective assistance of counsel.
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); 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.
A. Guilty Plea
The Petitioner claims that he did not plead guilty knowingly and voluntarily because: (1) he
was under the effects of medication that compromised his ability to think; and (2) he was not
informed that he would have to register as a sex offender.
When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.” North
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Carolina v. Alford, 400 U.S. 25, 31 (1970). The court reviewing the voluntariness of a guilty plea
must look to the totality of the circumstances. See State v. Turner, 919 S.W.2d 346, 353 (Tenn.
Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990).
The circumstances relevant to a guilty plea include:
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) (citing Caudill v. Jago, 747 F.2d 1046,
1052 (6th Cir.1984)). A plea resulting from ignorance, misunderstanding, coercion, inducement, or
threats is not “voluntary.” Id. “Whether a guilty plea meets the constitutional standards of voluntary
and knowing is a mixed question of law and fact.” Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003)
(citing United States v. Gray, 152 F.3d 816, 819 (8th Cir. 1998)). This Court review mixed
questions of law and fact de novo with a presumption of correctness “given only to the post-
conviction court’s findings of fact.” Id. (citing Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)).
1. Medication
The Petitioner alleges that, because he took several Ambien the night before the plea hearing,
his decision-making abilities were compromised, and that, therefore, he did not act in a knowing or
voluntary manner when pleading guilty. The State argues that the post-conviction court accredited
Counsel’s testimony that he did not have any indications that the Petitioner was not of sound mind.
Addressing this claim, the post-conviction court found the Petitioner failed to carry his
burden on this issue, and it wrote:
The Court finds that there is nothing, other than the testimony of the Petitioner, that
would indicate that the Petitioner was under the influence of Ambien at the time of
his plea such that he would have been unable to understand the plea agreement and
ma[k]e a knowing, voluntary, and intelligent decision to accept the State’s offer. The
Court finds that the Petitioner has failed to carry his burden in proving that he was
under the influence of medication such that he was unable to make a knowing,
voluntary decision.
After reviewing the totality of the circumstances, we agree with the post-conviction court that
the Petitioner has failed to prove that he was under the influence of medication at the time he entered
his plea. The record demonstrates that the Petitioner adeptly and correctly answered each one of the
trial court’s questions during the guilty plea proceeding. The trial court clearly and accurately
explained the charges facing the Petitioner and the potential implication of those charges. Counsel
found the Petitioner to be of sound mind during the hearing and noticed no indication that the
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Petitioner was under the influence of any medication. Counsel testified he explained to the
Petitioner in detail the charges and the plea offer and agreement. Under these circumstances, we
conclude that the Petitioner has not proven that he was under the influence of any medication at that
time of his guilty plea hearing. The Petitioner is not entitled to relief on this issue.
2. Sex Offender Registry
The Petitioner claims that his guilty plea was not knowingly or voluntarily entered because
he was not aware that he would have to register as a sex offender as a result of his conviction. The
State argues that both Counsel and the trial court informed the Petitioner that he would have to sign
up on the sex offender registry.
The post-conviction court found that Counsel informed the Petitioner “that his plea
agreement contemplated that he would be classified as a sex offender and forced to register on the
Sex Offender Registry.” It found that the Petitioner did not provide any proof that he was
uninformed about having to sign up with the Sex Offender Registry and that the Petitioner failed to
carry his burden on this issue.
On review, we conclude that the Petitioner has not proven that he was unaware he would
have to register with the sex offender registry. Counsel testified that he regularly explains the sex
offender registry to his clients who are convicted of sex crimes. Additionally, the trial court spoke
with the Petitioner about the registry:
The Court: Now, do you, also understand that this will be four convictions on
your record, sex related offenses that will be on your record, no
matter what happened with regard to the sentence, . . . when you are
parolled [sic], at some time in the future, you would have these on
your record. You, also, have to sign up on the sexual registry and –
and so forth, have certain kind[s] of treatment, probably, definitely,
I think. And that’s all a part of this, also. And do you understand
that?
The [Petitioner]: Yes, sir.
The trial court explained to the Petitioner that he would have to register as a sex offender and that
there were certain consequences of such a registration. The Petitioner is not entitled to relief on this
issue.
B. Ineffective Assistance of Counsel
The Petitioner alleges that he did not receive the effective assistance of counsel because: (1)
Counsel did not explain to him that he could have to serve more than eight years; (2) Counsel did
8
not inform him that he would have to register as a sex offender; and (3) Counsel did not file a motion
to withdraw the Petitioner’s guilty plea.
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); 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 Strickland,
466 U.S. at 688 (1984)).
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 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
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
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defense does not, standing alone, establish unreasonable representation. House, 44 S.W.3d at 515
(citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). 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.
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).
Additionally, in cases involving a guilty plea, a petitioner must establish that but for counsel's
deficiency, he would have gone to trial instead of entering the plea of guilty. Hill v. Lockhart, 474
U.S. 52, 59 (1985).
1. Sentence Range
The Petitioner claims that he did not receive the effective assistance of counsel because
Counsel did not inform him that he could be sentenced to serve more than eight years. The State
counters that both Counsel and the trial court informed the Petitioner that he could be ordered to
serve more than eight years.
The trial court found that Counsel informed the Petitioner and the Petitioner’s family the
sentence range of each of the four counts and the manner in which those sentences could be served.
It wrote, “The Court finds that [Counsel] specifically informed the Petitioner and his family that he
could receive consecutive sentencing and that he could receive more than eight years incarceration.”
Our review yields that Counsel explained in detail the possible sentence range for each of the
four counts to which the Petitioner pled guilty. Counsel also explained that the trial court might
order the four individual sentences to be served concurrently or consecutively, and he provided the
necessary definitions. Counsel even told the Petitioner that his sentence would be between eight and
forty-eight years. This is adequate representation of the Petitioner by Counsel to inform him that his
sentence may have been more than eight years. See Baxter, 523 S.W.2d at 936. We conclude that
the Petitioner has not proven that Counsel was deficient with respect to this issue, thus, the Petitioner
is not entitled to relief.
2. Sex Offender Registry
The Petitioner claims that he received the ineffective assistance of counsel because Counsel
failed to inform him that he had to register as a sex offender. The State counters that Counsel
informed the Petitioner that he had to register. The post-conviction court found that Counsel
believed he informed the Petitioner about having to register and that the Petitioner failed to carry his
burden otherwise.
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On review, we conclude that the Petitioner has not proven that Counsel was deficient for
failing to inform the Petitioner about the sex offender registry requirements. Counsel informed the
Petitioner about the requirements of the plea, which included having to register as a sex offender.
See Baxter, 523 S.W.2d at 936. Further, even if we were to conclude otherwise, the Petitioner has
failed to prove prejudice. As previously stated, the trial court informed the Petitioner at the guilty
plea about the requirement that he register with the sex offender registry, and the Petitioner indicated
that he understood that requirement. He cannot show, therefore, that he would not have pled guilty
if Counsel had informed him about the sex offender registration requirement. See Strickland, 466
U.S. at 694; Hill, 474 U.S. at 59 . The Petitioner is not entitled to relief on this issue.
3. Motion to Withdraw Guilty Plea
The Petitioner argues that Counsel was ineffective for failing to file a motion to withdraw
his guilty plea, which, he asserts, he asked Counsel to do. The State argues that, relying on the post-
conviction court’s findings of fact, the Petitioner never asked Counsel to withdraw the guilty plea.
After considering this issue, the post-conviction court found that the Petitioner never asked Counsel
to withdraw his guilty plea. It wrote that the Petitioner “provided insufficient evidence to
substantiate his claim that he sought such a motion.”
On review, we agree with the State. Relying on the post-conviction court’s findings of fact,
the Petitioner never asked Counsel to withdraw his guilty plea. As such, Counsel could not have
been deficient for failing to file a motion to withdraw the guilty plea. See House, 44 S.W.3d at 515.
The Petitioner is not entitled to relief on this issue.
III. Conclusion
After a thorough review of the record and the applicable law, we conclude that the
Petitioner’s guilty plea was knowingly and voluntarily entered and that he did not receive the
ineffective assistance of counsel. As such, we affirm the post-conviction court’s judgment.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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