         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 10, 2009

              MARIO MARQUIS GRAY v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                           No. 2007-B-1432 Steve Dozier, Judge



                   No. M2009-00013-CCA-R3-PC - Filed November 23, 2009


Petitioner, Mario Marquis Gray, also known as Mario Marquis Grey, entered a best-interest plea in
Davidson County to one count of aggravated burglary in exchange for a sentence of six years, to run
consecutively to a prior conviction for which he was on probation at the time of his arrest. Petitioner
sought post-conviction relief on the basis that he received ineffective assistance of counsel and that
his guilty plea was unknowing and involuntary. After a hearing, the post-conviction court denied
relief. On appeal, Petitioner argues that he was improperly denied relief by the post-conviction court.
After a review, we determine that Petitioner has failed to show that he received ineffective assistance
of counsel or that his guilty plea was entered involuntarily. Accordingly, the judgment of the post-
conviction court is affirmed.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C.
MCLIN , JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the Appellant, Mario Marquis Gray.

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



                                             OPINION

                                        Factual Background

        Petitioner was indicted by the Davidson County Grand Jury in April of 2007 for one count
of aggravated burglary and one count of assault. On July 25, 2007, Petitioner entered a best-interest
guilty plea to one count of aggravated burglary in exchange for a six-year sentence as a Range I,
standard offender. The sentence was ordered to run consecutively to Petitioner’s “current sentence”
of ten years in case number 2006-1-1242 for attempted second degree murder. The assault charge
was dismissed.

       At the plea acceptance hearing, the State presented a factual basis for the plea. If the case
had gone to trial, the facts would have shown that:

       [O]n February 2nd, 2007, at approximately 11:00 o’clock, Officer Miller responded
       to a call at 63 Carrol Street in Davidson County. When the officer arrived, he spoke
       with Monica Holman, the victim in this case. Ms. Holman told officers that her boy
       friend [sic], [Petitioner], had assaulted her. She further stated that during a domestic
       argument, she asked the defendant to leave the residence. Once he was outside, the
       defendant became angry, kicked the victim’s door back open and popped the hinges
       in order to get back in the residence. This cost approximately three hundred dollars
       worth of damage to her door. Once the defendant gained entry back into the victim’s
       house, he began to assault her by punching her around the head and neck with his
       hands. The officer did note that the victim suffered a busted lip as a result of the
       assault. Photographs were taken of the injury.

         Subsequently, Petitioner filed a pro se petition for post-conviction relief in which he alleged
that he received ineffective assistance of counsel and that his conviction was based on an unlawfully
induced guilty plea that was also unknowing and involuntary. The post-conviction court appointed
an attorney to represent Petitioner and an amended petition was filed. In the amended petition,
Petitioner alleged that he received ineffective assistance of counsel because trial counsel failed to
inform Petitioner about the possible outcome of trial and failed to inform Petitioner about the
defenses available to him at trial. Petitioner also alleged that his guilty plea was not entered
knowingly or voluntarily because of his “limited education” and because there was “insufficient
time” taken “to ensure that the Petitioner understood what he was doing.” Petitioner alleged that his
bi-polar disorder and his ability to be easily confused amounted to Petitioner “not fully
comprehend[ing] what he was doing or the sentence he was going to receive.”

                             Evidence at the Post-conviction Hearing

       At the hearing on the post-conviction petition, the court heard the testimony of trial counsel
and Petitioner. Trial counsel testified that she was appointed to represent Petitioner after another
attorney had already begun representation of Petitioner. Trial counsel took over due to
communications problems between Petitioner and the other attorney.

        According to trial counsel, she talked with Petitioner on two or three occasions prior to his
plea and met with him on the day of the plea agreement. Petitioner informed her that he would take
a three-year sentence but immediately accepted the six-year sentence that was offered by the State
at the hearing.



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       Trial counsel remembered that Petitioner was adamant about being innocent of the charges.
Therefore, she advised him to go to trial. Petitioner was insistent on taking the plea agreement.

         Prior to the entry of the plea, trial counsel reviewed the terms of the plea agreement with
Petitioner. Trial counsel recalled that Petitioner had strange communication skills. In fact, she was
somewhat concerned about his mental condition. Despite his odd behavior, Petitioner was insistent
that he wanted to enter the plea agreement that day. At the hearing, trial counsel recalled that the
trial court repeatedly offered to postpone the hearing for a mental evaluation. Trial counsel recalled
that Petitioner refused to postpone the hearing and insisted that he understood the terms of the plea
and wanted to go forward with the deal. Trial counsel, while concerned, knew that Petitioner had
a prior criminal record and was familiar with the court system. Trial counsel testified that she was
satisfied that Petitioner understood what he was doing when he entered the plea.

        Petitioner, on the other hand, testified that he did not understand the plea agreement.
Petitioner claimed that he used Ecstasy and heroin heavily prior to his arrest and that the massive
drug use wiped out his memory of the plea hearing. Petitioner also claimed that he did not remember
meeting with trial counsel. Petitioner testified at the hearing that he wanted to get help but that no
one would listen to him. Petitioner insisted he entered the plea because “they don’t play around
about domestic violence.” Petitioner was under the impression that he would get less time with a
guilty plea than he would with a conviction from a trial. Petitioner admitted that the trial court
offered for him to have a jury trial “four or five times” during the plea hearing. Petitioner claimed
that he was scared of a trial and did not remember the trial court offering him a mental evaluation.
Petitioner insisted that had he known he could have had a trial, he would have insisted on a trial.

       On cross-examination, Petitioner admitted that he had a prior conviction for attempted
second degree murder as well as a prior drug conviction and numerous misdemeanor convictions.
Further, Petitioner acknowledged that he was not under the influence of drugs or alcohol when he
entered the plea.

        At the conclusion of the hearing, the post-conviction court took the matter under advisement.
In an order issued at a later date, the post-conviction court accredited the testimony of trial counsel,
specifically noting that trial counsel “met sufficiently with the petitioner regarding this case and it
was his intention to enter this negotiated plea agreement.” The post-conviction court further noted
that the guilty plea transcript reflected that Petitioner was entering the plea with knowledge and
understanding and that the plea was voluntary. Further, the post-conviction court found that
Petitioner’s prior criminal record evinced a familiarity with the judicial system. Finally, the post-
conviction court noted that Petitioner “was aware of the consequences of the entry of the plea but
is now second guessing his decision.” The post-conviction court denied the petition for relief.

       Petitioner filed a timely notice of appeal, alleging that the post-conviction court improperly
dismissed the petition for post-conviction relief.

                                               Analysis


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                                Post-Conviction Standard of Review

         The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issues raised, we will afford those findings of fact the weight of a jury verdict, and this court
is bound by the post-conviction court’s findings unless the evidence in the record preponderates
against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958
S.W.2d 138, 147 (Tenn. Crim. App. 1997). This court may not reweigh or re-evaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt,
54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. See Shields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).

                                  Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must
establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a sufficient basis to deny relief
on the claim.” Henley, 960 S.W.2d at 580.

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This court may
not second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound, but
unsuccessful, tactical decision made during the course of the proceedings. See id. However, such
deference to the tactical decisions of counsel applies only if counsel makes those decisions after
adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).



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         Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent
that it affects the voluntariness of the plea. In this respect, such claims of ineffective assistance
necessarily implicate the principle that guilty pleas be voluntarily and intelligently made. See Hill
v. Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). As
stated above, in order to successfully challenge the effectiveness of counsel, Petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. See Baxter, 523 S.W.2d at 936. Under Strickland, Petitioner must establish: (1)
deficient representation; and (2) prejudice resulting from the deficiency Strickland, 466 U.S. at 694
. However, in the context of a guilty plea, to satisfy the second prong of Strickland, Petitioner 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.” Hill, 474 U.S. at 59; see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        When analyzing a guilty plea, we look to the federal standard announced in Boykin v.
Alabama, 395 U.S. 238 (1969), and the state standard set out in State v. Mackey, 553 S.W.2d 337
(Tenn. 1977); State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin, the United States
Supreme Court held that there must be an affirmative showing in the trial court that a guilty plea was
voluntarily and knowingly given before it can be accepted. Boykin, 395 U.S. at 242. Similarly, our
Tennessee Supreme Court in Mackey required an affirmative showing of a voluntary and knowing
guilty plea, namely, that the defendant has been made aware of the significant consequences of such
a plea. Pettus, 986 S.W.2d at 542.

        A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court
must determine if the guilty plea is “knowing” by questioning the defendant to make sure he fully
understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858 S .W.2d
at 904.

        In the case herein, Petitioner has failed to show that trial counsel was deficient. Moreover,
Petitioner has failed to show that but for trial counsel’s alleged deficiencies, he would have refused
to plead guilty and insisted on going to trial. Trial counsel testified that she met with Petitioner once
prior to the plea and spoke with him several times prior to that day. The testimony at the hearing
indicated that Petitioner was informed by trial counsel prior to the plea hearing about the charges he
was facing and that he was facing a sentence of at least fifteen years if he went to trial. The
transcript of the guilty plea hearing reflects that the trial court went to great lengths to discuss the
ramifications of the guilt plea with Petitioner and that the trial court offered for Petitioner to have
a mental examination prior to trial. Petitioner was repeatedly asked by the trial court if he
understood the effects of the plea. The trial court accredited the testimony of trial counsel and
discredited Petitioner’s testimony. The plea hearing indicates that Petitioner felt it likely that he
would be convicted if he went to trial and that his best course of action would be to enter a plea in
exchange for a shorter sentence. Petitioner entered no proof at the post-conviction hearing
concerning his mental incapacity. Petitioner has failed to show by clear and convincing evidence
that he received ineffective assistance of counsel or that his guilty plea was involuntary.


                                                  -5-
                                   Conclusion

For the foregoing reasons, the judgment of the post-conviction court is affirmed.



                                     ___________________________________
                                     JERRY L. SMITH, JUDGE




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