         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs July 22, 2003

           DONALD MITCHELL GREEN v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Knox County
                          No. 70417    Mary Beth Leibowitz, Judge



                                  No. E2002-02517-CCA-R3-PC
                                       September 11, 2003

The petitioner, Donald Mitchell Green, pled guilty in the Knox County Criminal Court to aggravated
robbery, failure to appear, and theft. Subsequently, the petitioner filed for post-conviction relief,
alleging that he received the ineffective assistance of counsel. After a hearing, the post-conviction
court denied the petition and the petitioner appealed. Upon review of the record and the parties’
briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JOSEPH M. TIPTON, J., joined.

William C. Talman, Knoxville, Tennessee, for the appellant, Donald Mitchell Green.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Leland Price, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION


                                      I. Factual Background

        On April 28, 1998, the petitioner pled guilty to aggravated robbery. The plea agreement
provided that the petitioner would be sentenced as a Range III persistent offender on the aggravated
robbery conviction, with a possible sentence range of between twenty to thirty years. The petitioner
also pled guilty to failure to appear, with a sentencing recommendation of six years incarceration as
a career offender, and to theft of less than $500, with a sentencing recommendation of eleven months
and twenty-nine days. At the guilty plea hearing, the trial court thoroughly explained the provisions
of the plea agreement, specifically noting that sentencing was totally at the discretion of the trial
court. Additionally, the trial court inquired if the petitioner was satisfied with the representation of
counsel and the petitioner responded that he was. The trial court explained that the aggravated
robbery conviction carried a possible sentence of twenty to thirty years incarceration in the
Tennessee Department of Correction. The petitioner nevertheless asserted that he wanted to plead
guilty.

       The State provided the following factual basis for the appellant’s aggravated robbery
conviction:1

                  [A]round midnight of the morning of March 30th, 1997, Ms. Deana
                  May was doing her laundry at the laundromat on 17th Street. The
                  defendant, Donald Mitchell Green, entered the laundry, approached
                  Ms. May, pulled a knife on her, which he held to her stomach, and
                  demanded her money. Ms. May gave him all of her quarters, which
                  was about 29 quarters and two dollar bills. Mr. Green then left the
                  laundromat. Ms. May saw him get into a gold Escort, and she saw
                  the Escort drive away. Shortly thereafter she saw a U.T. police car,
                  which was driven by Officer Cynthia Chandler. She flagged down
                  the police car and sent it after the gold Escort. Officer Chandler
                  pulled over the Escort in which Mr. Green was a passenger. He
                  attempted to flee the car but she stopped him, arrested both him and
                  the driver of that car. Ms. May was then brought to the scene where
                  she positively identified the [petitioner], Mr. Green, as the person
                  who pulled the knife on her and took her money.

        The trial court accepted the pleas and proceeded to sentence the appellant to thirty years
incarceration for the aggravated robbery conviction, six years for the failure to appear conviction,
and eleven months and twenty-nine days for the theft conviction. The trial court ordered that the
sentence for the theft conviction be served concurrently with the sentence for the aggravated robbery
conviction, but ordered that the sentence for failure to appear be served consecutively, for a total
effective sentence of thirty-six years incarceration.

       The petitioner requested that his trial counsel, Darryl Humphrey, appeal his sentence for
aggravated robbery; however, counsel failed to do so. Regardless, the petitioner was granted a
delayed appeal. On appeal, this court affirmed the petitioner’s sentence for aggravated robbery
pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. See State v. Donald Mitchell
Green, No. 03C01-9808-CR-00276, 1999 WL 446560, at *1 (Tenn. Crim. App. at Knoxville, June
3, 1999).

        Subsequently, the petitioner, acting pro se, filed for post-conviction relief, alleging that he
received the ineffective assistance of counsel. Initially, the post-conviction court dismissed the
petition without conducting an evidentiary hearing. On appeal, this court concluded that the


       1
           The petitioner’s claims in this ap peal relate solely to his aggravated ro bbe ry conviction.

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petitioner had alleged colorable claims for relief and remanded to the post-conviction court for the
appointment of counsel and an evidentiary hearing. See Donald Mitchell Green v. State, No. E2000-
01941-CCA-R3-PC, 2001 WL 872791, at *3 (Tenn. Crim. App. at Knoxville, Aug. 2, 2001).
Thereafter, the post-conviction court appointed counsel to assist the petitioner and granted the
petitioner a hearing.

      The petitioner was the first witness to testify at the post-conviction hearing. The petitioner
acknowledged that his post-conviction petition alleged that counsel was ineffective in the following
ways:

               1. Failing to establish a defense or secure witnesses to testify for the
               petitioner;
               2. Failing to file an appeal;
               3. Failing to file a motion to withdraw his guilty plea; and
               4. Misrepresenting the length of sentence the petitioner would receive
               upon pleading guilty to aggravated robbery.

Specifically, the petitioner alleged that counsel “didn’t call no witnesses. . . . He didn’t do an
investigation on the case or nothing, question none of the witnesses.” The petitioner contended that
if counsel had properly represented him, he would have discovered witnesses; however, the only
witness the petitioner mentioned was the victim of the aggravated robbery. The petitioner stated that
he pled guilty despite counsel’s lack of investigation because “I went by – by him being a lawyer and
he knew what he was talking about and he told me to plead guilty.”

         Additionally, the petitioner complained that counsel did not appeal the sentence he received
upon pleading guilty to aggravated robbery. The petitioner testified that he asked counsel to file a
notice of appeal regarding his sentence and counsel said that he would. The petitioner also claimed
that he sent counsel a letter by certified mail informing counsel that he wished to appeal the thirty
year sentence that he received for his aggravated robbery conviction. The petitioner submitted both
the letter and a receipt bearing the signature of counsel, indicating that counsel received the letter.
However, the petitioner admitted that he was later granted a delayed appeal. Regardless, the
petitioner argued, “Yeah, I got an appeal later on, but – but on down the line. Look how many rights
was violated.”

        The petitioner’s final two grievances concern the length of sentence the petitioner received
upon conviction for aggravated robbery. The petitioner stated that he was willing to serve twenty
years incarceration for the aggravated robbery charge, but did not want to serve a lengthier sentence.
The petitioner claimed that counsel told him that “I promise you if you throw yourself on the mercy
of the Court I’ll get you twenty years.” Based upon this promise, the petitioner pled guilty to
aggravated robbery.

      The petitioner conceded that he had previously filed a “Motion for Reduction of Sentence”
in which he claimed that counsel had promised to obtain a sentence of twenty-five years


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incarceration for the aggravated robbery conviction. However, the petitioner claimed that he had
erred in alleging that counsel had promised a twenty-five year sentence, maintaining instead that
counsel promised that the petitioner would receive a twenty year sentence for the aggravated robbery
conviction.

        The petitioner asserted that because he was unhappy with the sentence he received, he asked
counsel to withdraw his guilty plea. Specifically, the petitioner alleged that on June 4, 1998, while
in court, he told counsel that he wanted to withdraw his guilty plea because he had received a
sentence of thirty years instead of a sentence of twenty years. Finally, the petitioner contended that
if he had gone to trial instead of pleading guilty, “I feel that I would have probably got a lesser
sentence than I – than I got.”

        The petitioner then called attorney Brandt Davis as an expert witness in the area of criminal
defense. Davis asserted that in criminal cases, he begins work on the case by conducting an
investigation, either on his own or by hiring an investigator. Davis maintained that he never
promised a client that they would receive a particular sentence unless the sentence was stipulated as
part of a plea agreement. Davis noted, “I understand it was a pretty serious case and a case that the
defendant was looking at the likelihood of being convicted. Plus, I know the defendant in this case
has a particularly bad record.” Davis opined that under similar conditions, it could be “reasonable
strategy” for an accused to enter a “blind plea” in the hope that the trial court would show leniency.

       Finally, Darryl Humphrey, the petitioner’s trial counsel, testified that the State had a “very
strong case against” the petitioner. Specifically, counsel observed that there had never been any
doubt that the petitioner was the perpetrator of the aggravated robbery. Counsel stated that he met
with the petitioner on several occasions regarding the case and they discussed the case in detail.
Moreover, counsel and the petitioner discussed the petitioner’s extensive criminal history. Counsel
explained to the petitioner that if he were convicted of aggravated robbery, he would be considered
a Range III offender with a possible sentencing range of twenty to thirty years incarceration.

        Counsel stated that the petitioner never offered any possible witnesses or any other evidence
to rebut the State’s proof. Regardless, counsel engaged the State in plea negotiations. Counsel
repeatedly attempted to convince the State to agree to a sentence of twenty years, the sentence the
petitioner desired. However, the lowest sentence the State offered was twenty-five years. Counsel
remarked, “ So I discussed it with [the petitioner] and I believed that entering a blind plea he would
have a much better chance of receiving the lower range of the sentence as opposed to the higher
range.” Therefore, the strategy was to enter a “blind plea” and “throw ourselves at the mercy of the
Court.” Nevertheless, counsel vehemently maintained that he warned the petitioner that the possible
sentencing range for the aggravated robbery conviction was twenty to thirty years and asserted that
he “never guarantee[s] any defendant that they’ll receive any specific number of years.” Moreover,
counsel averred that he reviewed the plea with the petitioner in detail prior to the entry of the plea.
Counsel further noted that the plea form specified that the potential sentence for aggravated robbery
was twenty to thirty years.



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        Counsel also stated that he did not call any witnesses during the sentencing hearing because
the petitioner informed him that the petitioner’s family lived out of state and it would not be feasible
for them to come to Tennessee for the sentencing hearing. Furthermore, counsel averred that the
only possible witnesses regarding the petitioner’s case would have been the victim or the officer who
arrested the petitioner. Counsel acknowledged that he did not interview any witnesses in connection
with the case and only discussed the facts of the case with the petitioner. Counsel explained, “I
didn’t feel there was a need for an investigator . . . [b]ecause after discussing the case with [the
petitioner], he didn’t deny that he committed this crime.”

        Counsel maintained that he did not recall the petitioner ever asking to withdraw his guilty
plea and could fathom no reason for the petitioner to do so other than the petitioner’s dissatisfaction
with the sentence he received. Nevertheless, counsel maintained that he would have made a motion
to withdraw the petitioner’s plea had the petitioner requested the withdrawal. Counsel also did not
recall receiving a letter from the petitioner requesting that counsel file a notice of appeal.

        At the conclusion of the hearing, the post-conviction court found:

                In [the petitioner’s] case the only failure of counsel was a failure to
                file an appeal on the issue of length of sentence. The Court saw
                through that issue for [the petitioner] upon his notification to the
                Court. [The petitioner] had no right to withdraw his plea under the
                law, and suffers no prejudice as result of any failure of [counsel] to
                file an appeal. Therefore the petition for post-conviction relief is
                respectfully denied.

The petitioner timely appealed the post-conviction court’s ruling.

                                             II. Analysis

        To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-210(f) (1997). “‘Clear and convincing evidence means evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses,
the weight and value to be accorded their testimony, and the factual questions raised by the evidence
adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). Specifically, we note that a claim of ineffective assistance
of counsel is a mixed question of law and fact. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
This court will review the post-conviction court’s findings of fact de novo with a presumption that
those findings are correct unless the evidence preponderates otherwise. See Fields v. State, 40
S.W.3d 450, 458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions
of law purely de novo. Id.


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        “To establish ineffective assistance of counsel, the petitioner bears the burden of proving
both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad
v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984)). We are not required to address these considerations in any particular
order; therefore, if the petitioner has failed to establish one prong of the test of the ineffectiveness
of counsel, we need not address the other prong in our analysis. See Harris v. State, 947 S.W.2d 156,
163 (Tenn. Crim. App. 1996).

         In evaluating whether the petitioner has met his burden, this court must determine whether
counsel’s performance was within the range of competence required of attorneys in criminal cases.
See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Additionally, we may not second-guess the
tactical or strategic choices of counsel unless those choices are based upon inadequate preparation,
nor may we measure counsel’s behavior by “20-20 hindsight.” See State v. Hellard, 629 S.W.2d 4,
9 (Tenn. 1982). Moreover, in the context of a guilty plea, “the petitioner must show ‘prejudice’ by
demonstrating that, but for counsel’s errors, he would not have pleaded guilty but would have
insisted upon going to trial.” Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also
Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

        As we earlier noted, the petitioner asserts that counsel was ineffective for failing to establish
a defense or secure witnesses to testify for the petitioner, failing to file an appeal, failing to file a
motion to withdraw his guilty plea, and misrepresenting the length of sentence he would receive
upon pleading guilty to aggravated robbery. In considering the petitioner’s first complaint, we
observe that the petitioner did not testify regarding what defense could have been propounded by
counsel. Furthermore, the petitioner did not suggest what evidence, if any, counsel could have
discovered upon further investigation or by interviewing witnesses. In fact, the victim was the only
witness that the petitioner alleged counsel did not interview. However, the petitioner did not produce
the victim to testify at his post-conviction hearing. Generally, “[w]hen a petitioner contends that trial
counsel failed to discover, interview, or present witnesses in support of his defense, these witnesses
should be presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752,
757 (Tenn. Crim. App. 1990). We may not speculate on what benefit this witness might have
offered to the petitioner’s case, nor may we guess as to what evidence further investigation may have
uncovered. Id. Accordingly, the petitioner has failed to demonstrate prejudice in this regard.

        The petitioner also complains that counsel failed to file a notice of appeal after his guilty
plea. As the trial court noted, denying the petitioner first tier appellate review could be considered
deficient performance. However, we also agree with the trial court’s determination that the
petitioner was not prejudiced by the inaction of counsel because the petitioner was ultimately granted
a delayed appeal to this court, during which appeal this court affirmed the petitioner’s sentences.

       The petitioner also complains that counsel misrepresented the length of sentence he would
receive upon pleading guilty and failed to file a motion to withdraw his guilty plea. At the post-
conviction hearing, the petitioner testified that counsel promised him that if he “threw [himself] on
the mercy of the Court,” he would receive a sentence of twenty years incarceration for the aggravated


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robbery offense. Contrastingly, counsel testified that he never promised the petitioner a certain
sentence. Instead, counsel and the petitioner discussed the case and made a strategic decision to
enter a “blind plea” in the hope that the trial court would give the petitioner a more lenient sentence
than the twenty-five year sentence the State offered. In short, the petitioner gambled on a lesser
sentence and lost. Cf. Lofton v. State, 898 S.W.2d 246, 249 (Tenn. Crim. App. 1994).

        In finding that counsel was deficient only in failing to file a notice of appeal, the post-
conviction court implicitly accredited the testimony of counsel. The evidence does not preponderate
against this finding. Moreover, we note that at the guilty plea hearing the trial court carefully
explained to the petitioner that he was entering a “blind plea” and that he could be sentenced to
twenty to thirty years incarceration. Thus, we conclude that counsel did not misrepresent the length
of sentence to the petitioner. Accordingly, the petitioner has failed to demonstrate either the
deficiency of counsel or any prejudice he may have suffered.

       The petitioner further complains that he asked counsel to withdraw his guilty plea, but
counsel failed to do so. The post-conviction court noted that “[the petitioner] had no right to
withdraw his plea under the law.” We note that Rule 32(f) of the Tennessee Rules of Criminal
Procedure provides that

                [a] motion to withdraw a plea of guilty may be made upon a showing
                by the defendant of any fair and just reason only before sentence is
                imposed; but to correct manifest injustice, the court after sentence,
                but before the judgment becomes final, may set aside the judgment of
                conviction and permit the defendant to withdraw the plea.

See also State v. Green, 106 S.W.3d 646, 650 (Tenn. 2003).

        In the instant case, the petitioner did not indicate a desire to withdraw his plea until after he
was sentenced. Therefore, the petitioner was entitled to a withdrawal of his guilty plea only to
correct “manifest injustice.” This court recently explained that

                “manifest injustice” has been determined to exist when it is
                established that the plea was entered as the result of (1) “coercion,
                fraud, duress or mistake,” (2) “fear,” (3) a “gross misrepresentation
                made by the district attorney general, or an assistant,” (4) the
                withholding of material or exculpatory evidence by the State, or (5)
                where the plea of guilty was “not voluntarily, understandingly, or
                knowingly entered.”

State v. Clifford Douglas Peele, No. E2001-02825-CCA-RM-CD, 2002 WL 54691, at *2 (Tenn.
Crim. App. at Knoxville, Jan. 16, 2002) (quoting State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim.
App. 1995)), perm. to appeal denied, (Tenn. 2002). The proof adduced at the post-conviction
hearing demonstrates that the petitioner was well aware that he could receive a sentence of between


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twenty to thirty years upon entering the “blind plea.” However, the petitioner testified at the post-
conviction hearing that the only reason he wished to withdraw his plea was because he was
displeased with the length of the sentence imposed. We do not consider this to be a “manifest
injustice.”

                                         III. Conclusion

       Based upon the foregoing, we affirm the judgment of the post-conviction court.


                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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