         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 28, 2004

             MARTIN PALMER JONES v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Unicoi County
                             No. 4861    Lynn W. Brown, Judge



                   No. E2004-00240-CCA-R3-PC - Filed December 15, 2004


This is an appeal from denial of post-conviction relief. The Defendant, Martin Palmer Jones, was
convicted of two counts of first degree felony murder upon entry of best-interest guilty pleas. He
was sentenced to two terms of life imprisonment, which were to be served consecutively. The
Defendant’s sentences were affirmed on direct appeal. See State v. Martin Palmer Jones, No.
03C01-9803-CR-00084, 1999 WL 93144 (Tenn. Crim. App., Knoxville, Feb. 25, 1999). On petition
for post-conviction relief, the Defendant claimed he received ineffective assistance of counsel in
conjunction with his guilty pleas. The trial court denied the petition, and the Defendant appealed
to this Court. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Bob McD. Green, Johnson City, Tennessee, Tennessee, for the appellant, Martin Palmer Jones.

Paul G. Summers, Attorney General and Reporter; Kathy Aslinger, Assistant Attorney General; Joe
Crumley, District Attorney General; and Anthony Clark and Fred Lance, Assistant District Attorneys
General, for the appellee, State of Tennessee.

                                            OPINION


                                              FACTS

        Following his arrest in October of 1996, the then fifteen-year-old Defendant admitted on
three separate occasions that he shot and killed the two victims, John Harder and Marsena Ratliff.
Just days prior, the Defendant stole a car from a local college and burglarized a residence, stealing
several guns. The Defendant drove up Unaka Mountain in east Tennessee intending to cross into
North Carolina when he noticed a car parked at a scenic overlook and decided to acquire additional
funds through robbery. The Defendant parked nearby and approached his two victims with a .22
caliber rifle in hand. In upholding the conviction on direct appeal, this Court summarized the
ensuing crimes as follows:

         [W]ithout any warning, [the Defendant] shot Harder once in the head. The
         Defendant confessed that he shot Harder twice more because “he didn’t look like he
         was dead . . . I didn’t want him to suffer.” At that point, the Defendant shot Ms.
         Ratliff, who had attempted to flee.

Jones, 1999 WL 93144 at *1. After killing the victims, the Defendant took one dollar from Mr.
Harder’s pocket and ten dollars from Ms. Ratliff’s purse.

        The Defendant denied sexually accosting Ms. Ratliff, but police found her body partially
undressed. In his haste to get down the mountain, the Defendant wrecked his stolen car and
continued his flight on foot. Two hunters came upon the wreck and witnessed the Defendant hiding
weapons and other items in a wooded area. Later that same evening, the Defendant was found in a
nearby trailer and apprehended by North Carolina authorities. When the Defendant was discovered,
he had in his possession the eleven dollars in stolen money, the murder weapon, and Mr. Harder’s
driver’s licence.

         Following a hearing in Juvenile Court, the Defendant was transferred to the Criminal Court
of Unicoi County to be tried as an adult. The Defendant was charged with two counts of felony
murder. At his plea hearing in August of 1997, the Defendant renounced his earlier confessions and
denied killing the victims. The Defendant claimed someone else stole the car and he just happened
to find it on the mountain along with the two victims. In his revised story, he said he merely picked
up the rifle, took the money and driver’s license from the dead victims, got in the car and drove
away. Professing innocence, the Defendant nevertheless entered two “best interest” guilty pleas,
or Alford pleas,1 as part of a plea agreement whereby he would get two life sentences (with the
possibility of parole).

        In accepting the guilty pleas, the trial court determined that the evidence presented by the
Tennessee Bureau of Investigation at the hearing established sufficient facts to establish the crimes,
and characterized the Defendant’s revised narration as “absolutely incomprehensible.” The trial
court found the Defendant guilty as charged and imposed two life sentences, but reserved the issue
of concurrent or consecutive sentences for a future sentencing hearing.

        At the conclusion of the Defendant’s sentencing hearing, the trial court ordered the Defendant
to serve his two life sentences consecutively. The Defendant appealed his consecutive sentencing


         1
            Under what is commonly termed an “Alford plea,” a Defendant is allowed to enter a plea of guilty when the
Defendant believes it is in his or her best interest to accept a plea agreement, but while still professing innocence. See
North Carolina v. Alford, 400 U.S. 25, 37 (1970). A Tennessee court has the discretion to accept an Alford plea only
if there is a factual basis for the plea. See State v. W illiam, 851 S.W .2d. 828, 830 (Tenn. Crim. App. 1992).

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to this Court, which affirmed the sentences. See Jones, 1999 WL 93144 at *1. The Defendant
timely filed a petition for post-conviction relief alleging, inter alia, ineffective assistance of trial
counsel. Counsel was appointed and amended petitions were filed. At the post-conviction hearing
conducted in January of 2004, the Defendant asserted several grounds as a basis for ineffective
assistance of counsel, one of which was his trial counsel's failure to adequately explain the nature
and effect of the best-interest guilty plea. We also note that at the post-conviction hearing much of
the testimony centered around the Department of Correction’s interpretation of the Defendant’s
sentence as two life sentences without parole, an issue which was resolved by agreement of all
parties involved and by order of the trial court.2 Upon conclusion of the hearing, the trial court
denied the Defendant post-conviction relief. The Defendant timely filed a Notice of Appeal with this
Court.

                                            ANALYSIS
        The Defendant claims that his appointed trial attorneys provided ineffective assistance of
counsel because they failed to fully explain the nature of the charges and the effects of his best-
interest guilty pleas and plea agreement. Specifically, the Defendant asserts that his attorneys should
have deferred the entry of the Defendant’s “nolo contendere plea” until the Defendant was assured
of the number of years that he must actually serve before he could be considered eligible for parole.
The Defendant now asserts that his trial counsel’s failure to withdraw or defer his guilty pleas after
questions on the actual “length” of a life sentence were raised at the plea hearing amounts to
ineffective assistance of counsel. We disagree.

        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). 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. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.

         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal Defendant the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the

         2
           The trial court noted that the Judgments for the two convictions clearly indicated “life” sentences, and not “life
without parole.” The State agreed that the plea bargain and sentence mandated two life sentences with the possibility
of parole. The Department of Correction conceded that the Defendant’s status as serving two life sentences without
parole was a clerical error on its part. Accordingly, the trial court issued an order to have the Department of Correction
correct the Defendant’s status in its files.

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range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the Defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The Defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The Defendant’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        This two-part standard of measuring ineffective assistance of counsel also applies to claims
arising out of a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice component
is modified such that the Defendant “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.” Id.
at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

        In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “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; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made. See Strickland, 466 U.S. at 690; Hicks, 983 S.W.2d
at 246.

        A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.

        The Defendant points to a dialog between the trial judge, the State, and his trial counsel at
the plea hearing which he asserts “illustrates the ambivalence and uncertainty” pertaining to the issue
of the number of years required to be served under a life sentence before parole could be considered.
The record reveals that during the course of the plea hearing the trial judge commented that a “life
sentence can be served in twenty (20) to twenty-five (25) years,” citing a case where the Defendant


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had been convicted of murder in 1980. The State immediately brought to the attention of the court
a “recent State Attorney General’s opinion that says a life sentence is fifty-one (51) years.”3 The
matter was not pursued further at that time, and the guilty pleas were entered and accepted.

         The Defendant correctly notes the significant difference between the two competing theories
raised at the plea hearing: if sentenced to two life terms to be served consecutively, he would be
eligible for parole in as few as forty years or as many as 102 years. However, the Defendant admits
in his brief that he was advised by his trial counsel that a life sentence required confinement of fifty-
one years before eligibility for parole. Nonetheless, the Defendant asserts through counsel that given
his situation, age, and lack of experience, it is “entirely reasonable to believe and conclude” that the
Defendant believed “the judge [knew] more than the PD.” Alleging his Alford pleas were not made
knowingly or intelligently, the Defendant now claims his trial counsel was deficient for failing to
advise him to defer entry of his guilty pleas until the issue of the requisite number of years
incarcerated under a life sentence before becoming parole eligible was clarified. In support of his
claim, the Defendant cites the United States Court of Appeals for the Sixth Circuit case of Sparks
v. Sowders, 852 F.2d 882 (6th Cir. 1988), which held that “gross misadvice concerning parole
eligibility can amount to ineffective assistance of counsel.” Id. at 885.

         In Tennessee, when a defendant’s claim of ineffective assistance of counsel is based on
inadequate advice concerning a guilty plea, as in the case sub judice, courts generally distinguish
between failure to inform of the direct and indirect consequences of the guilty plea. While counsel’s
failure to inform a Defendant of the direct consequences of a guilty plea may constitute ineffective
assistance of counsel, failure to inform of the indirect consequences of a guilty plea normally does
not. See Adkins v. State, 911 S.W.2d 334, 350 (Tenn. Crim. App. 1994).

         We note that the post-conviction court found that the Defendant’s trial counsel gave him the
correct information, advising him that he did face the possibility of 102 years of confinement before
becoming eligible for parole. The Defendant did not testify that his lawyer gave him erroneous
advice. The Defendant’s appointed trial counsel testified that, with regard to a life sentence, the
Defendant, “knew with certainty that we had advised him on numerous times that as we understood
the law, and as it would be applied at that point in time that he would have to serve fifty-one years
[per life sentence] before he was eligible for any kind of parole.” Thus, even if an error in advising
a client on the indirect consequence to a guilty plea could be considered deficient representation,
there simply was no error--and therefore no ineffective assistance of counsel–in this particular case.

        Moreover, the Defendant has failed to prove by clear and convincing evidence the existence
of any other facts which would support his assertion that his trial counsel’s performance was
constitutionally deficient. At the post-conviction hearing, the Defendant admitted that he met

        3
          Tenn. Op. Atty. Gen. No. 97-098 (1997), interpreting Tennessee Code Annotated section 40-35-501, states
that anyone sentenced to life imprisonment for a murder offence committed after July 1, 1995, must serve a mandatary
minimum of fifty-one years of confinement before becoming eligible for release or parole. See also State v. Charles
Golden, No. 02C01-9709-CR-00362, 1998 W L 518071 (Tenn. Crim. App., Jackson, Aug. 21, 1998) (holding that the
minimum release eligibility for a life sentence for crimes committed after July 1, 1995, is fifty-one years).

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“extensively” with his trial counsel, and they spent “hundreds of hours” on his case. The Defendant
agreed that his attorneys “fought for [him] every step of the way,” and conceded that their failure to
predict the possible Department of Correction error regarding his parole eligibility did not amount
to ineffective assistance of counsel. At the post-conviction hearing, the trial judge found no
evidence of deficient representation. With regard to the Defendant’s claim that his trial counsel did
not sufficiently explain the nature of his plea, the trial court ruled: “it’s not borne out by the proof.”
The trial judge concluded: “The proof in this case is overwhelming. I don’t know what defense
counsel could have done. From the record it appears the court finds that they [did] everything they
possibly could.”

        The Defendant does not claim that the information he received from his trial counsel was
inaccurate. All the evidence indicates that the Defendant was given correct and adequate advice
pertaining to the consequences of his guilty pleas. Based on the information contained in the record,
we conclude that the Defendant has failed to establish by clear and convincing evidence that his trial
counsel’s representation was constitutionally deficient.

        The Defendant admitted that he discussed his best interest guilty plea at length with his trial
attorneys, they explained the “ramifications” of his plea, and they made no guarantees concerning
his sentence. Despite the comments from the judge regarding “twenty or twenty-five years,” the
Defendant was fully and correctly informed by his trial counsel that a life sentence required fifty-one
years in confinement before becoming eligible for parole. In sum, the record reveals that the
Defendant both fully understood the nature of his best-interest guilty plea, and admitted that it was
his own decision to enter that plea. The Defendant has failed to demonstrate that “but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S.
at 59. Thus, the Defendant has also failed to show prejudice.

        The Defendant failed to prove by clear and convincing evidence that his trial counsel’s
representation fell outside the wide range of reasonable professional assistance. Based on the
evidence in the appellate record, the Defendant’s trial counsel provided representation that was
neither deficient nor prejudicial. Accordingly, we conclude that the Defendant’s trial counsel did
not provide ineffective assistance of counsel. This issue has no merit.

                                          CONCLUSION
        We affirm the trial court’s decision denying the Defendant post-conviction relief.



                                                         ___________________________________
                                                         DAVID H. WELLES, JUDGE




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