                                                                                          09/17/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               February 6, 2018 Session

                MARLON YARBRO v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Hardin County
                     No. 9894PC Charles C. McGinley, Judge
                     ___________________________________

                           No. W2017-00125-CCA-R3-PC
                       ___________________________________

This is a State appeal of the Hardin County Circuit Court’s grant of post-conviction
relief. The Petitioner was convicted by a jury of various drug related offenses including
sale of .5 grams or more of a Schedule II controlled substance within 1000 feet of a
school zone, see Tenn. Code Ann. §§ 39-17-417(c)(1), 39-17-432(b)-(c), for which he
received an effective sentence of 25 years with no parole. State v. Marlon Yarbro, No.
W2015-00475-CCA-R3-CD, 2015 WL 5813383, at *3 (Tenn. Crim. App. Oct. 5, 2015),
perm. app. denied (Tenn. Feb. 18, 2016). After his conviction was affirmed by this court,
the Petitioner filed a pro se petition for post-conviction relief which did not include as
grounds for relief that trial counsel was ineffective in advising the Petitioner of his
sentence range or a due process claim based on the Petitioner’s rejection of a more
favorable settlement offer from the State. Post-conviction counsel was appointed, and no
amendments were filed. An evidentiary hearing was held, and the post-conviction court
granted the Petitioner relief based on the evidence adduced at the post-conviction
hearing. The State now appeals, raising the following issues: (1) whether the post-
conviction court may, on its own initiative, constructively amend a post-conviction
petition; (2) if the constructive amendment were proper and if the basis for relief was that
the petitioner’s rejection of the State’s plea offer was unknowing, whether that basis is a
cognizable ground for post-conviction relief where there is no constitutional right to a
knowing and voluntary rejection of a plea offer; and (3) if the constructive amendment
were proper and if the basis for relief was ineffective assistance of counsel, whether the
post-conviction court erred in granting relief where the court did not conduct the
Strickland two-pronged analysis. Upon our review, we affirm the judgment of the post-
conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and J. ROSS DYER, JJ., joined.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Matthew F. Stowe, District Attorney General; and Vance W. Dennis,
Assistant District Attorney General, for the appellant, State of Tennessee.

Lance R. Chism, Memphis, Tennessee, for the Petitioner-Appellee, Marlon Yarbro.

                                                OPINION

       The following proof, as relevant to the issues raised in this appeal, was adduced at
the August 15, 2016 post-conviction hearing.1 The Petitioner testified that he was
currently serving a 25-year sentence. He agreed that he had filed a petition for post-
conviction relief alleging six issues; however, post-conviction counsel asked him to focus
on issue six, whether trial counsel was ineffective. Although issue six did not explicitly
provide that trial counsel was ineffective in advising the Petitioner of his potential
sentence, this was post-conviction counsel’s line of questioning for the bulk of the
hearing. The State did not object to the line of questioning nor the Petitioner’s responses.
The Petitioner confirmed that he had discussed settling the case with trial counsel prior to
trial. The Petitioner said that trial counsel told him that if he lost at trial, then the
Petitioner would serve “25 years at 30 to 45 percent confinement. He never said nothing
about no 100 percent.” The post-conviction court asked for clarity, and the Petitioner
replied:

                  [Trial counsel] told me it would [be] 25 years, 30 to 45 percent
        confinement if I lost in trial. But he was so - - - I told him from the
        beginning when I first hired him, I said, look, this is my life, don’t gamble
        with my life or none of that. He just, [said] Come on, . . . I’ll beat him at
        trial . . . He just basically coerced me to go to trial.

        The Petitioner further said that trial counsel told him his chance of winning was
“like 60/40 the State way. Then after about maybe a month or two, he talking [sic] about
it’s like a 90 to 98 percent chance he could win, he could beat them in trial.” Later in his


        1
           The six issues raised in the Petitioner’s handwritten, pro se petition for post-conviction relief
were: (1) “the trial court error in applying the Drug free school zone enhancement to count one”; (2) “the
trial court error in dismissing indictment at count one after jeopardy attached”; (3) “the trial court error in
changing and/or altering the Grand jury indictment without the Grand jury consent”; (4) “the State error
in count-one of the indictment for failing to charge the fact that constitute the offense of T.C.A 39-17-
417(a)(3)(c)(1), contrary to T.C.A. 40-13-202”; (5)“the criminal judgment dated 3/3/15 count-one is void
because T.C.A. 39-17-417(c)(1) is an ‘B’ felony not ‘A’ felony”; and (6) “trial counsel was ineffective for
failing to raise the above claims, including sufficiency of evidence.” The post-conviction court denied
relief as to these issues, and they are not before us in this appeal.
                                                    -2-
testimony, the Petitioner restated what trial counsel told him when he asked trial counsel
what would happen if he lost after trial:

              Well, you’ll be looking at 25 years at 30 to 45 percent, somewhere
              in that gap. I said, Okay, that’s what’s up.

              Then he said, Man, something about you really don’t want to know
              and all that. He said, it will be 25 to serve and all that. The letter is
              over there. I can’t remember quite what he said.

        The Petitioner testified that had he known his sentence exposure was 25 years at
100%, he never would have gone to trial. The Petitioner referred to a three-page letter
from trial counsel, admitted as an exhibit, which he believed confirmed trial counsel’s
erroneous advice to him regarding sentencing. Although the letter was not dated, the
Petitioner said he received it approximately fifteen days after his trial. Trial counsel sent
the letter to the Petitioner in response to a letter the Petitioner had previously sent to him.
The letter provided, in pertinent, as follows:

                     One part of your letter that confused me was your reference to
              not being explained that your sentence would be 25 years. If you
              will recall, the following exchange took place at the jail before your
              trial:

                     [The Petitioner]: “What am I looking at if we lose the
                                       trial.”
                     [Trial Counsel]: “Man, you really don’t want to
                                       know.”
                     [The Petitioner]: “Yes, I do.”
                     [Trial Counsel]: “If you lose, it will be 25 years to
                                       serve.”

                    If you will recall, [initial trial counsel] explained this to you
              as well before you hired me. It was my understanding that you
              completely understood the seriousness of this crime, and severity
              was the primary reason that you sought my legal services.

                     I do recall incorrectly advising you very early in my
              representation of you that you would be eligible for a 30% to 45%
              confinement on the 25-year sentence. The rule of law is typically
              that a non-violent felony, such as what you were convicted of, does
              not require a day-for-day sentence. Obviously, the legislature has
                                             -3-
              carved out a new law as it relates to school zones that I had not
              thoroughly read during this early consult. I apologize for not
              knowing this early on, but you had time to make an appropriate
              decision should you have wished to enter into a plea agreement.

                      If you will recall, the state never offered us a plea agreement
              anywhere near where you told me that you would plead to. You
              wanted to do a 6-year sentence at 30% and concurrent to your other
              violation. Eventually, you told me to seek an 8-year sentence at
              30% again concurrent. The state always wanted a 12 to 15 year
              sentence, consecutive, and they always demanded more than 30% to
              serve. We never had a plea offer that you would take. As the client,
              that is completely your decision, but I agreed with you that the case
              was worth taking to trial based on the state’s plea offers and the lack
              of proof on the video.

              ....

                     I am sorry, sir, from the bottom of my heart for the way that
              your case unfolded. I do wish we had spent more time going over
              the consequences of a guilty conviction, but, since the state never got
              close with an offer where you needed to be, I think, today, that you
              made the right decision in fighting it. If you are granted a new trial,
              which you should be, I firmly believe that the state will offer you
              what you told me that you were willing to accept.

        The Petitioner explained that the quoted section in the letter was untrue because he
did not know that he was facing a sentence of 25 years confinement at 100% until after
trial. Based on trial counsel’s advice, the Petitioner believed he was facing a sentence of
25 years to be served at 30 to 45% or 7.5 to 8.75 years confinement before he would be
eligible for release. He testified that the District Attorney, through his attorney, offered
him a plea of “15 years at 45%” or 6.75 years of confinement before his release
eligibility. He did not provide details on the structure of the plea agreement. Compared
to the advice trial counsel had given him regarding his potential sentence, the Petitioner
believed he had nothing to lose by rejecting the plea offer and going to trial.

       When the prosecutor pressed the Petitioner about trial counsel’s explanation that
the Petitioner had time to make an appropriate decision after trial counsel corrected his
erroneous sentencing advice, the Petitioner replied, “Yeah, but how am I supposed to do
that, and he [sic] constantly coercing me to go to trial. Telling me, I can beat him . . .

                                           -4-
come on, man.” Trial counsel charged the Petitioner a flat rate for his case, which
included representation at trial.

       Trial counsel testified consistently with the testimony of the Petitioner. He was
retained to represent the Petitioner on the instant offenses “very early, right after the drug
round-up.” Trial counsel candidly acknowledged that “[i]n the very beginning, [he] was
not aware [of the drug free school zone sentencing penalties].” Trial counsel explained
that the drug free school zone enhancement was a “relatively new law, and [he] didn’t
realize that it required 100% [service].” Trial counsel initially believed that because the
drug offenses were non-violent crimes, the Petitioner would be required to serve his
sentence at either “30, 35% or 45%,” which is what he advised the Petitioner. Trial
counsel insisted that prior to trial and before the guilty plea deadline had expired, he
explicitly told the Petitioner that he had “25 years to serve.” Trial counsel conceded
however that he did not engage in detailed discussions with the Petitioner regarding his
potential sentence exposure. In trial counsel’s view, this did not impact the Petitioner’s
decision to proceed to trial because the State never made an offer of settlement that the
Petitioner was willing to accept. Trial counsel explained the extent of his conversations
with the Petitioner regarding his sentencing range as follows:

              Virtually every conversation I had with [the Petitioner] dealt with
       the State’s offer in whether he was going to take their offer or not take their
       offer. [The Petitioner], you know it was a little bit different than a lot of
       clients I have, because he was concentrating on what kind of offer I could
       get him. That was his main concern. That was everything that he cared
       about. That was what we talked about every time . . . well, what kind of
       offer do you got? Can you get them down to this? Well, this person has
       this. That was our main discussion.

              So we discussed – every time I came down there, I told him if there
       was a new offer, what it was. We’re going to do this. Or I’d go to the DA
       and present his new offer, and then go back to him and report to him what
       they said. We so discussed it on the front end when I mistakenly told him
       that he would have to get a percentage on a conviction. I did tell him that.
       I was wrong. I had not looked at the law yet. I believe it was a new law
       just came out or very soon. So he initially had [other counsel]. He came to
       me, because [other counsel], it’s my understanding that [other counsel] told
       him exactly what he was looking at if he loses, and that is the reason he
       came to me to begin with. So if that’s the truth, then I wouldn’t say that he
       didn’t care, but he wasn’t – he wanted to know what kind of offer we could
       get him. So I went to work tearing the case apart to show the State to get
       him a better offer, regardless of what he potentially could get.
                                            -5-
               So we discussed his potential range the first time I met with him, and
       the last time I met with him before we went to trial, and I told him that.
       And that was the gist of how many times we talked about what he’s looking
       at if he’s found guilty.

       The record shows that the Petitioner was arrested for the instant offense on June
23, 2014, indicted on July 21, 2014, and convicted on January 5, 2015. In total, trial
counsel represented the Petitioner for approximately six months. Trial counsel denied
pressuring the Petitioner to proceed to trial. Trial counsel agreed that “he had a good
chance of winning” based on the video not showing the drug transaction and the
informant’s lack of credibility. Finally, trial counsel said that the “standing” settlement
offer extended by the State was “15 years at 45%,” which was based on the Petitioner’s
prior convictions. There was no testimony regarding how the State would have treated
the mandatory minimum nature of the drug free school zone enhancement or the fact that
it was a non-paroleable offense.

       In granting the Petitioner relief, the trial court’s order provided as follows:

              In the [Petitioner’s] sixth claim, he claims that trial counsel was
       ineffective generally but particularly claims that trial [counsel] was
       ineffective in explaining sentence ramifications and giving unreasonable
       opinions concerning possible trial outcomes.

              The only possible deficiency in trial counsel’s performance that
       gives the trial court concern is relative to discussions surrounding possible
       negotiated plea agreements as opposed to potential sentences upon
       conviction. This is particularly problematic when viewed with trial
       counsel’s assessment of potential success at trial.

               It is unquestioned that the [Petitioner] was offered a negotiated plea
       agreement of fifteen years with a release classification status of 45%. This
       was consistent with the range notice that had been provided the [Petitioner]
       to enhance punishment. There were significant discussions between trial
       counsel and [the Petitioner] concerning his sentence with a bad trial
       outcome. Trial counsel acknowledged that he original[ly] told the
       [Petitioner] that the twenty-five year minimum sentence would be classified
       at 30%, 35%, or 45%. He testified that he told the [Petitioner] while the
       plea offer was still outstanding, that the twenty-five year sentence was to
       serve. Trial counsel did not testify, that he told the [Petitioner] he would
       have to serve 100% of this sentence. He simply testified that he told him it
       was twenty-five years to serve.
                                             -6-
              ....

              The court cannot speculate that the [Petitioner] understood that “25
       years to serve” means a minimum of 25 years at 100%, particularly in view
       that number and percentages had been discussed. This is of particular
       concern to the court when according to the [P]etitioner’s testimony trial
       counsel had suggested percentage of favorable outcome would be 90 to
       98%. While trial counsel did not confirm these handicapping numbers he
       did readily acknowledge that he thought they had a very good case for trial
       and had clearly communicated this in no uncertain terms to the Petitioner.

              While there is no constitutional right to a negotiated plea offer, if
       one is extended then a defendant has the right to make an intelligent and
       informed decision as to whether to accept the plea offer or to reject the plea
       offer and go to trial. This court [cannot] find in good conscience that the
       Petitioner made an intelligent and informed decision in rejecting the
       negotiated plea offer. The Petitioner testified that had he known that he
       could have potential[ly] received a minimum 25 year at 100% sentence that
       he would have accepted the negotiated plea offer. However, he rejected
       this plea offer based upon the assurances of trial counsel of a very high
       degree of favorable outcome at trial. Essentially the [Petitioner] was
       deprived of due process by being unable to make an intelligent and
       informed decision relative to the negotiated plea offer and possible outcome
       based upon the assurances of trial counsel.

              It is from this order that the State now appeals.

                                            ANALYSIS

       In its first issue, the State argues that the post-conviction court should be reversed
because it provided relief to the Petitioner without statutory authority. The State
contends that the Act requires a post-conviction petition to contain every claim for relief,
including factual grounds for each claim, and the post-conviction court must grant relief
on the petition or dismiss it. Because the Petitioner did not include the issue upon which
the post-conviction court granted relief in his petition for post-conviction relief, the State
claims the post-conviction court acted without authority, and therefore, the petition
should be dismissed. In response, the Petitioner argues that the State has waived review
of this issue for failure to object to the proof presented during the post-conviction




                                            -7-
hearing.2 Even if this court determines that there was no waiver, the Petitioner contends
that this court should reach the merits of this issue because it was fully litigated during
the post-conviction hearing and the post-conviction court ruled on the issue. For the
reasons that follow, we agree with the Petitioner.

       The following portions of the Post-Conviction Procedure Act (the Act), govern our
analysis. A petitioner filing for post-conviction relief must comply with the following:

               (d) The petitioner shall include all claims known to the
               petitioner for granting post-conviction relief and shall verify
               under oath that all the claims are included.

               (e) The petitioner shall include allegations of fact supporting
               each claim for relief set forth in the petition and allegations of
               fact explaining why each ground for relief was not previously
               presented in any earlier proceeding. The petition and any
               amended petition shall be verified under oath. Affidavits,
               records or other evidence available to the petitioner
               supporting the allegations of the petition may be attached to
               it.

Tenn. Code Ann. § 40-30-104(d), (e). Upon preliminary consideration of a petition for
post-conviction relief, the post-conviction court must comply with the following:

               (a) The trial judge to whom the case is assigned shall, within
               thirty (30) days of the filing of the original petition, or a
               petition amended in accordance with subsection (d), examine
               it together with all the files, records, transcripts, and
               correspondence relating to the judgment under attack, and
               enter an order in accordance with this section or § 40-30-107.

               ....

               (d) The petition must contain a clear and specific statement of
               all grounds upon which relief is sought, including full
               disclosure of the factual basis of those grounds. A bare
               allegation that a constitutional right has been violated and
       2
         Original post-conviction counsel was permitted to withdraw from representation by order of this
court on October 25, 2017, after he submitted his responsive brief to this court. New post-conviction
counsel was subsequently appointed and filed a supplemental brief. Our opinion utilizes the arguments
presented in the supplemental brief by new post-conviction counsel.
                                                 -8-
              mere conclusions of law shall not be sufficient to warrant any
              further proceedings. Failure to state a factual basis for the
              grounds alleged shall result in immediate dismissal of the
              petition. If, however, the petition was filed pro se, the judge
              may enter an order stating that the petitioner must file an
              amended petition that complies with this section within
              fifteen (15) days or the petition will be dismissed.

              (e) If a petition amended in accordance with subsection (d) is
              incomplete, the court shall determine whether the petitioner is
              indigent and in need of counsel. The court may appoint
              counsel and enter a preliminary order if necessary to secure
              the filing of a complete petition. Counsel may file an
              amended petition within thirty (30) days of appointment.

              (f) Upon receipt of a petition in proper form, or upon receipt
              of an amended petition, the court shall examine the
              allegations of fact in the petition. If the facts alleged, taken as
              true, fail to show that the petitioner is entitled to relief or fail
              to show that the claims for relief have not been waived or
              previously determined, the petition shall be dismissed. The
              order of dismissal shall set forth the court’s conclusions of
              law.

Tenn. Code Ann. § 40-30-106(a), (d)-(f).

        Rule 28 of the Rules of the Tennessee Supreme Court operates to supplement the
remedies and procedures set forth in the Act. After a petition for post-conviction relief is
filed with the court, the evidentiary hearing is limited to the issues raised in the petition.
Tenn. Sup. Ct. R. 28, § 8(D)(4). Our supreme court has further provided the following in
its post-conviction procedural rules:

              If evidence is objected to on the basis that it concerns issues not
       raised in the petition or answer, the court may allow amendments and shall
       do so freely when the presentation of the merits of the cause will otherwise
       be subserved. The court shall liberally allow a continuance in the event an
       amendment is allowed to enable the objecting party to meet the evidence.

Tenn. S. Ct. R. 28, § 8(D)(5) (emphasis added); see e.g., Adams v. State, No. W2001-
02488-CCA-R3-PC, 2003 WL 103205, at *3 (Tenn. Crim. App. Jan. 9, 2003). The post-
conviction court may dismiss a petition for post-conviction relief without a hearing if it
                                             -9-
fails to contain specific factual allegations or otherwise fails to comply with these
procedural rules. Tenn. S. Ct. R. 28, § 8(F)(3) (emphasis added).

       At the top of our analysis, we must disagree with the State’s assertion that the
post-conviction court granted relief without any authority to do so. The Petitioner
concedes that he did not explicitly include in his petition for post-conviction relief a
claim of ineffective assistance of counsel based on trial counsel’s failure to properly
advise him of his sentence or a free standing due process claim based on his rejection of a
more favorable settlement offer from the State. However, as noted in the order of the
post-conviction court, the Petitioner did in fact generally claim that trial counsel was
ineffective in issue six of his petition. At the hearing, post-conviction counsel narrowed
issue six, the ineffectiveness of counsel inquiry, to trial counsel’s failure to properly
advise the Petitioner of his sentencing range.3 Based on our review of the record, this
was the primary issue presented. The State did not interpose a single objection
throughout the hearing and questioned the Petitioner and trial counsel regarding trial
counsel’s failure to properly advise the Petitioner regarding sentencing. Rather than an
issue of statutory construction, as the State now argues for the first time on appeal, we
must determine whether the State properly preserved this issue because it failed to object
during the post-conviction hearing.

        In Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn. 2005), an appeal of the denial
of post-conviction relief, the State argued that the petitioner had waived the issue of
improper influence on the jury due to his failure to raise it on direct appeal. In rejecting
this argument, the Tennessee Supreme Court reasoned as follows:

        [T]he State did not assert the defense of waiver at the post-conviction
        hearing; instead, the State raises it for the first time in this Court. By doing
        so, the State has denied the petitioner an opportunity to rebut the
        presumption that this issue has been waived. See Tenn. Code Ann. § 40-
        30-110(f) (2003) (providing that “[t]here is a rebuttable presumption that a
        ground for relief not raised before a court of competent jurisdiction in
        which the ground could have been presented is waived”) (emphasis in
        original). Under these circumstances, we conclude that the State’s waiver
        argument has itself been waived. Issues not addressed in the post-
        conviction court will generally not be addressed on appeal. See Rickman v.
        State, 972 S.W.2d 687, 691 (Tenn. Crim. App. 1997); see also State v.
        White, 635 S.W.2d 396, 397-98 (Tenn. 1982) (rejecting an argument

        3
          It is obviously the better practice to explicitly amend petitions for post-conviction relief, which
is the purpose of appointing counsel to a post-conviction petitioner. The record is silent as to why
original post-conviction counsel failed to do so.
                                                   - 10 -
       presented by the State for the first time on appeal). We conclude therefore
       that the State may not properly assert the issue of waiver for the first time
       in this Court.

Walsh, 166 S.W.3d at 645-46.

        The State insists that any reliance on Walsh is misplaced because, in its view, the
issue “is not whether the petitioner waived a claim for relief (and therefore whether the
State could have waived its alleged waiver argument) but whether the post-conviction
court had the statutory authorization to adjudicate a claim never asserted in a petition but
constructed by the [post-conviction] court[.]” In support of its position, the State points
to the inclusion of waiver provisions in Tennessee Code Annotated sections 40-30-
106(g), -110(f), and omission of the term “waiver” in Tennessee Code Annotated sections
40-30-104(d)-(e), or 106(d). We agree with the State to the extent that the waiver in the
case before us, unlike Walsh, does not involve whether the Petitioner waived a claim by
failing to raise it in a lower court, such that it required the State to put the Petitioner on
notice of its affirmative defense and triggered the rebuttable presumption provision of
section 40-30-110(f). We rest our decision instead on the portion of Walsh which relies
on the fundamental legal tenet that “‘a party may not take one position regarding an issue
in the trial court, change his strategy or position in mid-stream, and advocate a different
ground or reason in this Court.’” See State v. Adkisson, 899 S.W.2d 626, 635-36 (Tenn.
Crim. App. 1994) (quoting State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App.
1988)).

       The State’s failure to object during the hearing, and choosing to assert this issue
for the first time on appeal, prevented the Petitioner from amending his petition, which
the Act contemplates and liberally allows. The State’s failure to object also deprived the
post-conviction court an opportunity to review the issue. We acknowledge the State’s
concern with the inability to object to matters not included in the petition; however, this
record clearly shows a prolonged period of question and answer on the issue by post-
conviction counsel and the State. It does not show a situation involving surprise or the
need for the State to have additional time to respond or prepare. Finally, even if we
reversed the judgment of the post-conviction court for failure to strictly comply with the
Act as the State insists, our remedy, at most, would be to remand the matter for another
hearing. Accordingly, because the State failed to object in the post-conviction court, it
has waived its claim of procedural default in this court.

       As for the remaining issues, the State essentially contends that the post-conviction
court’s order was too ambiguous to determine its basis for relief. The State argues that
the order could be based on a due process right to knowingly and voluntarily reject a plea
offer, which is not a cognizable claim for relief, or the ineffective assistance of trial
                                            - 11 -
counsel, a claim which cannot be supported because the order lacks analysis under
Strickland. Under either interpretation, the State maintains the post-conviction court
erred in granting the Petitioner relief. In response, the Petitioner contends, and we agree,
that “a fair reading” of the post-conviction court’s order demonstrates that it granted
relief based on the ineffective assistance of trial counsel to properly advise the Petitioner
of his sentence.4

        We begin by recognizing the State’s concern that the order of the post-conviction
court lacks explicit findings of fact regarding the ineffectiveness of trial counsel in failing
to properly advise the Petitioner of his sentencing range, see Tenn. Code Ann. § 40-30-
111(b) (requiring the court to enter an order containing its findings of fact and
conclusions of law for each ground raised by the petitioner) and Tenn. R. S. Ct. 28, §
9(A) (stating that the order must contain specific findings of fact and conclusions of law
for each issue raised by the petitioner). However, a review of the post-conviction hearing
shows that the proof was substantially dedicated to this issue. Indeed, there was no
dispute as to this issue, as both the Petitioner and trial counsel testified consistently
regarding his erroneous sentencing advice. Moreover, the order granting post-conviction
relief specifically refers to the ineffective assistance of trial counsel and notes:

               In the [Petitioner’s] sixth claim, he claims that trial counsel was
        ineffective generally but particularly claims that trial [counsel] was
        ineffective in explaining sentence ramifications and giving unreasonable
        opinions concerning possible trial outcomes.

               The only possible deficiency in trial counsel’s performance that
        gives the trial court concern is relative to discussions surrounding possible
        negotiated plea agreements as opposed to potential sentences upon
        conviction. This is particularly problematic when viewed with trial
        counsel’s assessment of potential success at trial.

Taken in context, we do not view the later language in the order as granting relief based
upon “an alleged Fifth Amendment due-process right to a knowing and voluntary
rejection of the State’s plea offer[,]” as argued by the State. Accordingly, we conclude
that the transcript of the post-conviction hearing and the order of the post-conviction
court provide a sufficient record for our review of whether trial counsel was ineffective in
failing to properly advise the Petitioner of his sentence. See State v. Swanson, 680
S.W.2d 487, 489 (Tenn. Crim. App. 1984) (holding that although written findings of fact
        4
          The Petitioner alternatively advocates for a due process right to knowingly and voluntarily reject
a plea offer, should this court so interpret the basis of the order of the post-conviction order. Because we
conclude that the post-conviction court properly granted relief based on the ineffective assistance of
counsel, we need not address this issue.
                                                  - 12 -
and conclusions of law on each issue facilitate appellate review, reversal is not required
when there is an adequate record for review).

       We now delve into the substance of the issue presented. Post-conviction relief is
only warranted when a petitioner establishes that his or her conviction or sentence is void
or voidable because of an abridgement of a constitutional right. Tenn. Code Ann. § 40-
30-103. The Tennessee Supreme Court has held:

       A post-conviction court’s findings of fact are conclusive on appeal unless
       the evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of
       their testimony are matters for the trial court to resolve. The appellate
       court’s review of a legal issue, or of a mixed question of law or fact such as
       a claim of ineffective assistance of counsel, is de novo with no presumption
       of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-
30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94
(Tenn. 2009). Evidence is considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).
A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney’s conduct fell “below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising
therefrom is demonstrated once the petitioner establishes “‘a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.’” Id. at 370 (quoting Strickland, 466 U.S. at 694). Moreover,



                                           - 13 -
       [b]ecause a petitioner must establish both prongs of the test, a failure to
       prove either deficiency or prejudice provides a sufficient basis to deny
       relief on the ineffective assistance claim. Indeed, a court need not address
       the components in any particular order or even address both if the
       [petitioner] makes an insufficient showing of one component.

Id. at 370 (citing Strickland, 466 U.S. at 697).

        In Hill v. Lockhart, 474 U.S. 52, 58-59 (1985), the United States Supreme Court
extended Strickland’s two-prong test to challenges of guilty pleas based on ineffective
assistance of counsel. Hill was based on the petitioner’s acceptance of a plea offer as a
result of trial counsel’s erroneous advice. While the first deficiency prong of Strickland
remained the same, a petitioner establishes the second prejudice prong by showing “a
reasonable probability that, but for counsel’s errors, [the petitioner] would not have
pleaded guilty and would have insisted on going to trial.” Id. at 59. Years later, and in
contrast to Hill, the Supreme Court extended the right to effective assistance of counsel to
defendants who reject plea bargains because of their lawyers’ deficient performance.
Lafler v. Cooper, 566 U.S. 156, 160-75 (2012); Missouri v. Frye, _ U.S. _, 132 S. Ct.
1399, 1407-09 (2012) (in the context of guilty pleas a defendant must show the outcome
of the plea process would have been different with competent advice); accord Bush v.
State, 428 S.W.3d 1, 20 (Tenn. 2014) (citing Frye, 132 S. Ct. at 1407); Wlodarz v. State,
361 S.W.3d 490, 503-04 (Tenn. 2012); see also McMann v. Richardson, 397 U.S. 759,
771 (1970) (“defendant [who] ... enters his plea upon the advice of counsel [entitled to]
advice ... ‘within the range of competence demanded of attorneys in criminal cases’”).

       In Lafler v. Cooper, the defendant shot at the victim’s head and ultimately struck
her “buttock, hip, and abdomen,” but she survived. Lafler, 566 U.S. at 161. After being
charged with various offenses, the defendant three times rejected plea offers, “allegedly
after his attorney convinced him that the prosecution would be unable to establish his
intent to murder the victim because she had been shot below the waist.” Id. The
defendant proceeded to trial, was convicted as charged, and received a sentence three and
a half times more severe than the initial offer conveyed by the prosecution. On appeal,
there was no dispute as to the deficiency prong of Strickland. The Court then elaborated
on the prejudice prong of Strickland in the context of a rejected plea offer and held:

       a defendant must show that but for the ineffective advice of counsel there is
       a reasonable probability that the plea offer would have been presented to
       the court (i.e., that the defendant would have accepted the plea and the
       prosecution would not have withdrawn it in light of intervening
       circumstances), that the court would have accepted its terms, and that the

                                            - 14 -
       conviction or sentence, or both, under the offer’s terms would have been
       less severe than under the judgment and sentence that in fact were imposed.

Id. at 164.

       In regard to the remedy for successful ineffective-assistance-of-counsel claims, the
Court cautioned that

       Sixth Amendment remedies should be tailored to the injury suffered from
       the constitutional violation and should not unnecessarily infringe on
       competing interests. Thus, a remedy must “neutralize the taint” of a
       constitutional violation, while at the same time not grant a windfall to the
       defendant or needlessly squander the considerable resources the State
       properly invested in the criminal prosecution.

Id. at 170 (internal citations and quotation marks omitted). Nevertheless, if the defendant
establishes a successful ineffective-assistance-of-counsel claim, then it is within the trial
court’s discretion to fashion the appropriate remedy. The Court envisioned the following
two remedial scenarios: when the charges that would have been admitted as part of the
plea bargain are the same as the charges the defendant was convicted of after trial, “the
court may exercise its discretion in determining whether the defendant should receive the
term of imprisonment the government offered in the plea, the sentence he received at
trial, or something in between.” Id. at 171. Or, if re-sentencing alone will not be full
redress for the constitutional injury, i.e. an offer was for a guilty plea to a count or counts
less serious than the ones for which a defendant was convicted after trial, or if a
mandatory sentence confines a judge’s sentencing discretion after trial, then “the proper
exercise of discretion to remedy the constitutional injury may be to require the
prosecution to reoffer the plea proposal[.]” Id. (internal citations omitted). Upon the
offer’s acceptance, the court has the discretion to vacate the conviction from trial, accept
the plea, or leave the conviction undisturbed. Id.

       In applying the above law to this case, the record does not preponderate against
the order of the post-conviction court. As to the deficiency prong, “[a] criminal
defendant has a right to expect at least that his attorney will review the charges with him
by explaining the elements necessary for the government to secure a conviction, discuss
the evidence as it bears on those elements, and explain the sentencing exposure the
defendant will face as a consequence of exercising each of the options available.” Joseph
Lamont Johnson, Jr. v. State, No. M2012-02310-CCA-R3-PC, 2014 WL 793636, at * 8
(Tenn. Crim. App. Feb. 27, 2014) perm. app. denied (Tenn. July 14, 2014) (finding
deficient performance based on counsel’s failure to properly advise of potential sentence)
(quoting Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003)). Moreover,
                                            - 15 -
“[k]nowledge of the comparative sentence exposure between standing trial and accepting
a plea offer will often be crucial to the decision whether to plead guilty.” United States v.
Day, 969 F.2d 39, 43 (3d Cir. 1992) (citing Williams v. State, 326 Md. 367, 605 A.2d
103 (1992) (counsel’s conduct was constitutionally deficient in failing to advise
petitioner of mandatory 25-year sentence upon conviction at trial when offer to plead
guilty to lesser offense involved exposure only to 10-year sentence) and Commonwealth
v. Napper, 254 Pa. Super. 54, 385 A.2d 521 (1978) (counsel ineffective in giving no
advice about desirability of plea offer with three-year maximum sentence when trial
risked ten to forty years and defendant’s chances of acquittal were slim)).

       Here, the record shows that the Petitioner, a Range II offender, was charged with
violating the drug free school zone law, which required a mandatory minimum 25-year
sentence with no parole. The Petitioner hired trial counsel instead of another attorney
based on trial counsel’s advice that his potential sentence exposure was 25 years to be
served at “30, 45%.” The Petitioner’s focus throughout the six months leading up to trial
was on receiving a favorable settlement offer from the State. During this six-month
period, trial counsel discussed the Petitioner’s potential sentence only twice: at the
beginning in error and at the end prior to trial. In the interim, the Petitioner received and
rejected settlement offers from the State believing that, at worst, his potential sentence
would be “25 years at 30, 45%.” Despite trial counsel’s attempt to correct his erroneous
sentencing advice at the end of his representation by replacing the percentage of service
with the words “to serve,” trial counsel never clarified that a conviction under the drug
free school zone law was not eligible for parole, meaning that the Petitioner would be
required to serve 25 years’ confinement at 100%. Under these facts and circumstances,
the Petitioner has established that trial counsel’s performance fell below an objective
standard of reasonableness under prevailing professional norms. Accordingly, we agree
with the post-conviction court, and conclude that trial counsel’s performance was
deficient.

        As to the prejudice prong, the Petitioner was required to demonstrate that, but for
counsel’s deficient representation, there is a reasonable probability that (1) the Petitioner
would have accepted the plea, (2) the prosecution would not have withdrawn the offer,
and (3) the trial court would have accepted the terms of the offer, such that the penalty
under its terms would have been less severe than the penalty actually imposed. While the
details of the offer are unclear, the undisputed proof shows that the “standing” offer from
the State to settle the matter was “15 at 45%.” The Petitioner testified that had he known
the correct sentencing exposure upon conviction at trial was 25 years’ confinement with
no parole, he would have accepted the State’s negotiated plea agreement. There is
nothing in the record indicating that the State would have withdrawn the offer or was in
any way prohibited by law from extending it. It is likewise reasonable to predict that the
trial court would have approved the terms of the offer and accepted the Petitioner’s plea.
                                           - 16 -
See Ebron v. Comm’r of Corr., 53 A.3d 983, 989 (Conn. 2012) (holding that in most
jurisdictions, prosecutors and judges are familiar with the boundaries of acceptable plea
bargains and sentences and therefore, in most instances, it is not difficult to make an
objective assessment as to whether or not the prosecution would withdraw an offer or the
court would accept). And finally, as to the last element of the Lafler prejudice prong, the
Petitioner has demonstrated that the 25-year-sentence with no parole imposed after trial
was more severe than the 15-year-offer to be served at 45% that was conveyed by the
State.

                                          CONCLUSION

       The Petitioner has established that, but for the ineffective advice of trial counsel, it
is reasonably probable that he would have accepted the plea offer, such offer would have
been submitted by the State and accepted by the court, and that his sentence would have
been less severe than the sentence that was in fact imposed. In other words, the Petitioner
has demonstrated that without trial counsel’s erroneous sentencing advice, the result of
his guilty plea negotiation phase would have been different. We therefore affirm the
judgment of the post-conviction court and remand this matter to determine the
appropriate remedy pursuant to Lafler.


                                              ____________________________________
                                              CAMILLE R. MCMULLEN, JUDGE




                                            - 17 -
