        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs December 21, 2010 at Knoxville

              MARIAM FADA DIRIE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                     No. 2004-C-2400     Monte Watkins, Judge


               No. M2009-02287-CCA-R3-PC - Filed January 31, 2011


The petitioner, Mariam Fada Dirie, pleaded guilty to two counts of aggravated child abuse
by neglect, a Class A felony, and received concurrent sentences of 17 years’ incarceration.
A timely filed petition for post-conviction relief followed wherein the petitioner alleged that
her guilty pleas were involuntary due to the ineffective assistance of counsel. Following the
appointment of counsel, amendment of the petition, and an evidentiary hearing, the post-
conviction court denied relief. On appeal, the petitioner contends that the post-conviction
court erred by denying relief. Discerning no error, we affirm the judgment of the post-
conviction court.

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

J AMES C URWOOD W ITT, J R., J.,delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and D. K ELLY T HOMAS, J R., J., joined.

Ashley Preston, Nashville, Tennessee, for the appellant, Mariam Fada Dirie.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Roger Moore, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

             The July 2004 term of the Davidson County grand jury indicted the petitioner
on two counts of aggravated child abuse causing serious bodily injury and three counts of
aggravated child abuse by neglect for acts and omissions concerning her two children, M.G.
and N.G.,1 both of whom were less than six years of age at the time of the offenses. On
October 5, 2007, the petitioner pleaded guilty to two counts of aggravated child abuse by
neglect in exchange for dismissal of the remaining three counts of the indictment. Pursuant
to the plea agreement, the trial court imposed two concurrent sentences of 17 years’
incarceration with a statutory release eligibility of 100 percent. See T.C.A. § 40-35-501(i)(1),
(2). The guilty plea submission transcript, made an exhibit at the evidentiary hearing, reflects
that the offenses involved the petitioner’s failure to seek recommended and necessary
medical attention for her two children.

               On October 9, 2008, the petitioner timely filed a pro se petition for post-
conviction relief alleging that her guilty pleas were involuntary due to the ineffective
assistance of counsel.2 On October 16, 2008, the post-conviction court entered a preliminary
order appointing counsel and ordered amendment of the petition. On June 22, 2009, the
petitioner, through counsel, filed an amended petition specifically alleging that trial counsel
was ineffective in failing to (1) formulate a reasonable defense, (2) inform the petitioner of
the consequences of her guilty pleas, (3) inform the petitioner of her constitutional rights
concerning a trial and plea, (4) give sufficient advice concerning her options of a trial or plea,
(5) consult with the petitioner, (6) investigate witnesses who could have provided
exculpatory information concerning the offenses, and (7) discuss the evidence that the State
would present against the petitioner. The amended petition alleged that these specific
instances of ineffective assistance of counsel left the petitioner no choice but to plead guilty.

               At the evidentiary hearing, the petitioner testified that she did not understand
everything concerning the plea agreement due to her lack of knowledge of the English
language at the time of her plea. She said that her attorney informed her that she was facing
a 25-year sentence if convicted and that she should take the 17-year sentence offer made by
the State. She denied knowing that the minimum sentence she faced was 15 years and said,
“if I knew I could get fifteen I wouldn’t have took the seventeen at all.” She was unsure
whether trial counsel had explained to her that she was actually facing 25-year sentences in
each count which could be ordered to be served consecutively. She did recall, however, that
trial counsel explained that she could receive up to 15 percent in good behavior credits to
reduce her 100 percent release eligibility requirement. The petitioner also claimed that she
was suffering from depression and on medication at the time of the guilty plea and that this


        1
           As is the practice of this court concerning child victims, we will refer to the victims in this case
by their initials.
        2
          The petitioner also alleged that her convictions violated certain terms of the Vienna Convention
because she, a citizen of Somalia, was not afforded consular assistance throughout the prosecution of her
case. This allegation, however, was abandoned in the amended petition and at the evidentiary hearing.

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impaired her ability to knowingly and voluntarily plead.

              The petitioner said that trial counsel failed to discuss the evidence that the State
would have presented against her. She said that her older child, M.G., suffered from autism,
and she claimed that this contributed to the accusations against her. Her younger child, N.G.,
suffered from a congenital limb defect. The petitioner claimed that these medical conditions
explained and somehow exonerated her from culpability for the offenses. She believed that
had she gone to trial, she would have been acquitted of the charges.

               On cross-examination, the petitioner acknowledged that, at the guilty plea
hearing, the trial court explained the good time credits which may reduce her service of the
sentence. She also admitted that she had in fact received good time credit and would not be
serving the full 17-year sentence.

              Trial counsel testified that the petitioner’s previous attorney failed to give him
any discovery materials, so he had to obtain all the materials from the State. Trial counsel
recalled discussing the evidence, charges, and full range of punishment with the petitioner.
He said that he communicated with the petitioner with the assistance of an interpreter some
of the time. He recalled, however, that even when he did not use an interpreter, he “never
got the impression that [the petitioner] was not understanding what [he] was telling her.”
Trial counsel said that the petitioner and her family members spoke English.

               Trial counsel recalled the petitioner was suffering from depression at the time
of the offenses and during the pendency of the proceedings. He was also aware that she was
taking medication for depression. He said, however, that there was never an indication that
the petitioner lacked any understanding of the proceedings.

               Trial counsel testified that there was “no doubt” that the State could have
proven their case had it gone to trial. He said that the petitioner “simply ignored the advice
of the doctors and didn’t care for her children.” Trial counsel testified that the petitioner told
him that in Somalia “children were just put out to play . . . . [and if] something [was] wrong
with them, it would just fix itself.” In light of this, trial counsel researched Somalian culture
in an effort to develop a defense theory that the petitioner had cared for her children in the
only way she knew.

               In its order denying post-conviction relief, the post-conviction court found that
trial counsel had met with the petitioner numerous times and had utilized the assistance of
an interpreter. The post-conviction court also found that trial counsel had discussed all the
evidence and possible defenses with the petitioner. Likewise, after interviewing witnesses
and determining none were favorable to the defense, trial counsel fully discussed the

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elements of the guilty plea with the petitioner. The post-conviction court noted that the plea
colloquy supported trial counsel’s testimony. In denying relief, it also found that the
petitioner’s testimony was not credible.

              On appeal, the petitioner argues that trial counsel’s failure to formulate a
defense and to explain the nature of the evidence against her gave her no choice but to plead
guilty. The State contends that the post-conviction court’s denial of relief should be
affirmed. We agree with the State.

               The post-conviction petitioner bears the burden of proving her allegations by
clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the appellate court
accords to the post-conviction court’s findings of fact the weight of a jury verdict, and these
findings are conclusive on appeal unless the evidence preponderates against them. Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

               In the context of ineffective assistance of counsel that resulted in a guilty plea,
the petitioner must establish that “counsel’s constitutionally ineffective performance affected
the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). To do so, she
must show “a reasonable probability that, but for counsel’s errors, [s]he would not have
pleaded guilty and would have insisted on going to trial.” Id.; see Hicks v. State, 983 S.W.2d
240, 246 (Tenn. Crim. App. 1998). The petitioner is not required to demonstrate that she
likely would have fared better at trial than she did by pleading guilty, although evidence of
this type can be persuasive that she would have insisted on her right to a jury trial. See Hill,
474 U.S. at 59. Should the petitioner fail to establish either deficient performance or
prejudice, she is not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996). Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               Claims of ineffective assistance of counsel are mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual
findings, our review is de novo, and the post-conviction court’s conclusions of law are given
no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

              The record in this case fully supports the findings of fact and conclusions of
law of the post-conviction court. The overall record belies the testimony of the petitioner

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that she did not understand the guilty plea and that trial counsel performed deficiently in any
manner. The guilty plea colloquy reflects that the petitioner answered the trial court’s
questions appropriately and asked specific questions concerning her plea agreement,
indicating an overall understanding of the proceedings. Therefore, the petitioner failed to
establish her entitlement to post-conviction relief. Accordingly, the order of the post-
conviction court is affirmed.


                                                    ________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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