        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 25, 2012

             DWIGHT RANDY ROWE v. STATE OF TENNESSEE

            Direct Appeal from the Criminal Court for Davidson County
                     No. 2009-C-2470     Steve Dozier, Judge



                             No. M2011-01148-CCA-R3-PC



The Petitioner, Dwight Randy Rowe, pled guilty to sale of a controlled substance in a
drug-free school zone and to possession of a weapon during the commission of a
dangerous felony. The trial court sentenced him to an effective sentence of eleven years
in the Tennessee Department of Correction. The Petitioner filed a petition for post-
conviction relief, claiming his trial counsel was ineffective because he incorrectly advised
him of parole eligibility and failed to throughly investigate the case or prepare a defense.
After an evidentiary hearing, the post-conviction court dismissed the petition. After a
thorough review of the record and applicable law, we affirm the post-conviction court’s
judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., J., joined. J ERRY L. S MITH, J., not participating.

William E. Griffith, Nashville, Tennessee, for the appellant, Dwight Randy Rowe.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; Rachel Sobrero,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                         I. Facts
                                 A. Guilty Plea Hearing



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        This case arises from the Petitioner’s sale of crack cocaine to a confidential police
informant. Based on this conduct, a Davidson County grand jury indicted the Petitioner
for sale of under .5 grams of cocaine within 1,000 feet of a school zone, possession with
the intent to sell or deliver .5 grams or more of cocaine within 1,000 feet of a school zone,
possession of a firearm during the commission of a dangerous felony, felony reckless
endangerment, and evading arrest.

       At the Petitioner’s plea submission hearing, the State offered the following facts as
a basis for the Defendant’s guilty plea:

       [O]n May 19 th , 2009, Metro police officers were working with a
       confidential informant. The confidential informant was given 20 dollars of
       previously photocopied buy money and went to Lewis Street where the
       [confidential informant] met up with individuals that included the
       [Petitioner], Dwight Rowe.

               During the confidential informant’s interaction with [the Petitioner],
       the confidential informant purchased a small amount of crack cocaine from
       [the Petitioner]. The confidential informant then walked away and gave the
       signal to the police officers. As Metro Police Officers came onto the scene
       in an effort to conduct the takedown, the [Petitioner] took off running. The
       [Petitioner] at one point during this, threw an additional bag of crack
       cocaine that was recovered by the police officers.

              He also had in his possession at that time, a loaded handgun. During
       the course of the takedown, he took the loaded [h]andgun out and attempted
       to throw it away from his body. But during the course of this action, the
       gun actually discharged and [the Petitioner] shot himself in the hand. He
       was taken down and taken into custody, the gun was recovered. The
       additional crack cocaine was recovered.

              And during the time that [the Petitioner] was in the hospital being
       treated for his wounds and after having been read his rights pursuant to
       Miranda, the [Petitioner] made statements to the police officers. The
       statement was recorded and on the tape recorded statement - - I don’t
       believe, [the Petitioner] knew at the time it was being recorded, [the
       Petitioner] made statements admitting that he had purchased cocaine earlier
       that day fro [sic] the purpose of selling, for the purpose of making money
       and that he had purchased the gun as well for the purpose of protection.




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              All of this occurred here in Davidson County.

       After the Petitioner was placed under oath, the trial court inquired as to whether
the Petitioner was under the influence of drugs or alcohol or suffered from any mental
health problems. The Petitioner responded in the negative. The trial court reviewed with
the Petitioner the charges and the potential sentences for each. The Petitioner confirmed
that he was “somewhat” satisfied with his attorney’s (“Counsel’s”) representation, and
agreed that there was not anything that he had requested of Counsel that Counsel had
failed to do. The trial court reviewed the parties’ recommended sentence with the
Petitioner, and the Petitioner stated that he understood the plea agreement. The Petitioner
agreed that he was waiving his right to a trial and his right to appeal from a trial verdict.
The Petitioner identified his signature on the guilty plea documents, and he acknowledged
that he was freely entering the plea bargain agreement. The Petitioner pled guilty to the
charges of sale of controlled substance in a school zone and possession of a weapon
during a dangerous felony. The trial court accepted the Petitioner’s guilty plea, finding
that the plea was “knowingly and voluntarily entered” and that a factual basis existed for
the guilty plea. The trial court imposed an eight-year sentence for the sale of a controlled
substance in a school zone conviction, to be served consecutively to a three-year sentence
for the possession of a weapon during a dangerous felony conviction. The effective
sentence was eleven years, to be served at 100%.

                               B. Post-Conviction Hearing

       The Petitioner filed a petition for post-conviction relief, claiming that he received
the ineffective assistance of counsel. The post-conviction court held an evidentiary
hearing wherein it heard the following evidence: The Petitioner testified that Counsel
represented him on these charges in both general sessions court and criminal court. The
Petitioner said that, when Counsel met with the Petitioner, he only discussed the State’s
plea offers and never presented any information as to the Petitioner’s charges. The
Petitioner said that he repeatedly asked Counsel for the discovery in his cases. When
Counsel did not provide discovery to the Petitioner, the Petitioner addressed the trial court
about his discovery and the trial court provided the Petitioner with the discovery in his
cases. The Petitioner said that he and Counsel never reviewed together or discussed the
discovery.

       The Petitioner testified that, in general sessions court, he entered an information
agreement with the State for a five-year sentence to be served at 30%. Once the cases
were transferred to criminal court, the State retracted the offer and instead offered eight
years to be served at 30%. The Petitioner said that he declined this offer, explaining that
Counsel had explained to him that, if he accepted the new offer, he would serve five



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years. The Petitioner said that later, after his guilty plea, he learned that he would have
been incarcerated for about two and a half years on the State’s offer of an eight-year
sentence to be served at 30%. The Petitioner said that, had he known this at the time of
the offer, he would not have declined the State’s offer. Subsequently, the State offered a
twelve-year sentence to be served at 30% and also offered a twelve-year sentence to be
served at 35%, both of which the Petitioner declined. The Petitioner said that, during the
course of negotiations for a settlement, he believed that Counsel should have been trying
to fight the charges rather than focus on plea bargains.

        The Petitioner testified that he never received any motions filed by Counsel or
attended any court hearings other than the hearing where the Petitioner requested Counsel
be relieved from representation.

       On cross-examination, the Petitioner agreed that he received the discovery for his
cases in November 2009 after requesting it from the Court. The Petitioner said that he
was not aware that the State did not provide discovery for his cases until November 2009.


         Counsel testified that the general sessions court appointed him to represent the
Petitioner. Counsel, at the time of the post-conviction hearing, had been licensed to
practice law for twenty-two years. During his career, he had served as a judge and had
been in private practice since 2006 with approximately 80% of his practice consisting of
criminal defense work. Counsel said that he met with the Petitioner five times while the
Petitioner was in jail awaiting disposition of the charges. Counsel recalled telling the
Petitioner that the State’s evidence was such that the Petitioner would likely be convicted
at trial. Counsel said that because the police, through a confidential informant, purchased
the drugs from the Petitioner and were present when the Petitioner dropped his gun and it
discharged, there was not much of a defense argument.

       Counsel testified that he spoke with various members of the Petitioner’s family six
or eight times during the course of his representation of the Petitioner.

       Counsel said that there was a discrepancy between the weight of the drugs as
reported by the police and as reported by the Tennessee Bureau of Investigation (“TBI”).
Counsel looked into the discrepancy and found that when police initially weigh drugs
recovered in the field, they weigh the drugs in the packaging while the TBI does not.

      Counsel agreed that he represented the Petitioner when the Petitioner entered the
information agreement for a five-year sentence to be served at 30%. The information
agreement was later stricken by the State, and Counsel filed a motion to enforce the



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agreement, arguing that the State should be required to honor its original offer. Counsel
said that he believed it was unfair for the offer to be stricken in light of the fact that the
Petitioner had no previous arrests and a “clean record.” The trial court, however, denied
Counsel’s motion.

       Counsel testified that the State made a second offer that he conveyed to the
Petitioner. The Petitioner would not accept the offer and told Counsel he wanted to
proceed to trial. Counsel said that he told the Petitioner that he did not think that “was a
good idea” because the State’s proof against the Petitioner was so strong. Counsel said
that he did not specifically recall advising the Petitioner on the length of time he would be
incarcerated before being paroled. He explained that he had a parole eligibility chart that
he used when discussing offers with clients. The State made several additional offers that
the Petitioner declined, maintaining he wanted a trial on his charges.

       Counsel said that eventually the Petitioner agreed to plead guilty to eleven years at
100%. Counsel recalled that the Petitioner was “very dissatisfied.” At one point in the
plea submission hearing, the trial court suggested Counsel step out of the courtroom to
discuss again with the Petitioner whether he wanted to plead guilty. Counsel said that he
specifically asked the Petitioner if he wanted to plead guilty and the Petitioner responded
that he did. Counsel said that the Petitioner never said anything that indicated that the
Petitioner did not understand the plea or his decision to enter into a plea agreement.

        On cross-examination, Counsel agreed that he had no independent recollection of
using the parole eligibility chart in his discussions with the Petitioner, but he maintained
that it was his “usual habit.”

         Based upon this testimony, the post-conviction court denied post-conviction relief.
It is from this judgment that the Petitioner now appeals.

                                        II. Analysis

       On appeal, the Petitioner contends that the post-conviction court erred when it
dismissed his petition. The Petitioner argues that Counsel failed to investigate his case
and prepare a defense and that Counsel gave the Petitioner incorrect release eligibility
information. The State responds that the post-conviction court accredited Counsel’s
testimony that he advised the Petitioner about the State’s overwhelming evidence against
him and about the Petitioner’s parole eligibility date and, therefore, properly denied the
Petitioner post-conviction relief. We agree with the State.

       In order to obtain post-conviction relief, a petitioner must show that his or her



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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 our review, the trial judge’s findings of fact are
given the effect and weight of a jury verdict, and this Court is “bound by the trial judge’s
findings of fact unless we conclude that the evidence contained in the record
preponderates against the judgment entered in the cause.” Black v. State, 794 S.W.2d
752, 755 (Tenn. Crim. App. 1990). Thus, 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 court 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 conclusions of law, however, are subject to a purely de novo review by
this Court, with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457
(Tenn. 2001).

       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



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v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

       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 defense does not,
standing alone, establish unreasonable representation. 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 (quoting Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996)).

        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).

      In its order denying the Petitioner relief on this issue, the post-conviction court
made the following findings:

       The Court credits the testimony of trial counsel that he gave the petitioner
       advice regarding parole. His advice was not a misstatement as the
       petitioner claims; even if the petitioner’s version is accurate, he could have
       to serve five to six years on an eight (8) year sentence. Regardless, the
       petitioner has not shown that but for the trial counsel’s advice he would not



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       have pled guilty.

              ....

       After reviewing the plea transcript, the Court finds that the petitioner
       entered into his plea agreement knowingly. The petitioner was not forced
       to enter the plea and there were no promises made regarding the plea.

              ....

              Based upon the foregoing analysis, the Court is of the opinion the
       petition for post-conviction relief shall be denied. He has not demonstrated
       by the requisite standard of clear and convincing evidence that counsel’s
       performance was deficient or that counsel was not acting with the
       competence required of attorneys in criminal cases, or that he would have
       determined to go to trial absent the deficient performance. The petition is
       dismissed.

(Citations omitted).

         The evidence in this case does not preponderate against the trial court’s findings
on this matter. Counsel testified at the post-conviction hearing that he met with the
Petitioner in jail five times and spoke with the Petitioner’s family members six or eight
times. Counsel testified that the State’s evidence against the Petitioner was strong. The
police bought drugs from the Petitioner through a confidential informant and then
observed the Petitioner with the gun during his flight from arrest. Counsel explained that
this evidence against the Petitioner made it difficult to create a defense. As to his
investigation and preparation of a defense in this case, Counsel said that he noted a
discrepancy in the weight of the drugs reported by police and the TBI. Upon further
investigation, however, he learned that the methods of weighing the drugs differed and
thus accounted for the discrepancy. Counsel acknowledged no independent recollection
of using his parole eligibility chart while advising the Petitioner; however, he testified
that it is his general practice to use the chart when discussing State offers with his clients.
The trial court specifically credited Counsel’s testimony in his written order.
Accordingly, the evidence in the record does not preponderate against the trial court’s
finding that Counsel was not deficient.

                                       III. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that



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the post-conviction court properly denied post-conviction relief. Accordingly, we affirm
the judgment of the post-conviction court.


                                               _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




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