        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs December 2, 2014

                  WILLIE MOORE v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                     No. 11-05488    James C. Beasley, Jr., Judge


               No. W2014-00334-CCA-R3-PC - Filed February 26, 2015


Petitioner, Willie Moore, pleaded guilty to eleven counts of identity theft, Class D felonies,
and received the agreed-upon sentence of eleven years on each count to be served
concurrently with each other as a persistent offender at forty-five percent release eligibility.
He filed the instant petition for post-conviction relief on the basis that his guilty pleas were
not knowingly, voluntarily, and intelligently entered. The post-conviction court denied relief,
and this appeal followed. Upon review, we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and D. K ELLY T HOMAS, J R., JJ., joined.

Mitchell W. Wood (on appeal) and Brent Heilig (at post-conviction hearing), Memphis,
Tennessee, for the appellant, Willie Moore.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Joshua Corman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                           I. Facts

                            A. Guilty Plea Submission Hearing

      At the August 7, 2012 guilty plea submission hearing, the parties agreed that petitioner
would be sentenced as a persistent offender at forty-five percent release eligibility, that all
eleven-year sentences would be served concurrently, and that petitioner would seek
alternative sentencing in a separate hearing. The facts underlying the guilty plea were
submitted by the State as follows:

        [Petitioner] used . . . Julian Carter’s information while he obtained a Sears
        credit card and Discover credit card and then had the cards mailed to
        [petitioner’s address].

               [Petitioner] then used the Sears credit card and the affiant’s information
        including the name, date of birth, social security numbers to make purchases
        totaling over [$5,000] to different Sears stores . . . .

               On February 2, 2011, [petitioner] used the Discover card in affiant’s .
        . . name . . . to make an auto purchase at Bugg’s Buggys . . . [Petitioner] did
        buy a 2001 Ford F150 silver vehicle for $5,407.39 from Daniel Bugg.

               [Petitioner] was picked out of a photo lineup by Mr. Edwards as the
        individual posing as Julian Carter presenting a Tennessee driver’s license in
        the name of Julian Carter but with the photo of [petitioner] on it to purchase
        a Ford truck.

       Following this recitation of the facts, the trial court reminded trial counsel that
petitioner could not receive probation on an eleven-year sentence. Trial counsel responded,
“I guess I’m asking for Community Corrections then.”

       During the plea colloquy, the trial court asked petitioner if he signed the plea
agreement and if trial counsel reviewed the terms with him, to which petitioner responded
affirmatively. When asked, petitioner stated that he was pleading guilty to identity theft and
forgery and was being sentenced to eleven years at thirty-five percent.1 He said that he
understood “part” of the plea agreement and acknowledged that he understood his rights with
respect to a trial. Petitioner offered, “[T]he only reason I pleaded was for community
correction, give me another chance at life . . . .”

                                         C. Sentencing Hearing

        At the beginning of the sentencing hearing, the trial court and petitioner engaged in
the following exchange:


        1
            As discussed herein, petitioner’s recitation during the plea colloquy that he was pleading guilty
to forgery was incorrect. In addition, he also stated that his release eligibility was thirty-five percent when
it was, in fact, forty-five percent.

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       Court:         Just for the purpose of being clear, do you understand . . .
                      you’ve already plead[ed] guilty to the counts as charged in this
                      matter?

       Petitioner:    Yes.

       Court:         You did that of your own free will and accord?

       Petitioner:    Yes.

       Court:         And nobody forced or made you do it?

       Petitioner:    No.

The hearing then continued, after which the trial court denied an alternative sentence.

                            C. Post-Conviction Evidentiary Hearing

        Trial counsel testified first and stated that he had practiced law for almost twenty years
in the district public defender’s office. He was appointed to represent petitioner shortly after
the August 2011 indictment for eleven counts of identity theft. Trial counsel said that
between petitioner’s indictment and his August 2012 guilty plea, he met with petitioner “on
each and every report date he had” and “at least a couple of times in the jail.” During each
meeting, trial counsel spent twenty to thirty minutes with petitioner.

       When petitioner’s case was in general sessions court, another assistant district public
defender sought and obtained a mental health evaluation of petitioner, which assessed
petitioner as competent. Trial counsel further stated that petitioner could communicate
clearly with him and understood what transpired.

      Trial counsel confirmed that in meeting with petitioner, he discussed petitioner’s
criminal history, which included eleven prior felony convictions, and the range of
punishment that would apply to him. With regard to the State’s plea offer, trial counsel
opined:

              I feel confident that given the nature of the charge, given the fact of this
       court’s feeling on identity theft, given the fact of the damages suffered by the
       victim, given the fact that he was a serving officer in the military, in a war
       zone, while this happened, and given the fact that it happened again, that it had
       previously happened, and given the fact of the brazenness of going to probate
       court and having his name changed to the victim’s, I think given all those

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       facts, my client probably, if he had gone to trial and been convicted of all these
       counts, would have never gotten out of jail.

As a result of plea negotiations, trial counsel secured for petitioner an offer of eleven years
on each count to be served concurrently, and petitioner would be permitted to apply to the
trial court for admittance into the community corrections program.

       Before petitioner entered into the plea agreement, trial counsel reviewed the
paperwork with him and confirmed that it was petitioner’s desire to enter the guilty pleas.
However, approximately one week to ten days later, petitioner contacted trial counsel and
told him that “he did not enter that plea under his own free will and that [trial counsel] had
tricked him or coerced him.” Trial counsel filed a motion to withdraw the guilty plea, and
because trial counsel then had a conflict of interest with petitioner, the trial court appointed
a second attorney to represent petitioner. While represented by subsequent counsel,
petitioner withdrew his motion and proceeded to a sentencing hearing for resolution of the
issue of alternative sentencing.

       Trial counsel stated that he had no reason to believe that petitioner did not understand
his range of punishment or the possible sentences at the time he entered the guilty pleas.
Moreover, he had no reason to suspect that petitioner did not understand the terms of the
guilty pleas.

       Petitioner testified next and agreed that he was indicted for eleven counts of identity
theft and that he pleaded guilty to all eleven counts. He explained that he completed the
eleventh grade through the special education program and that he suffered from bipolar
schizophrenia and suicidal tendencies, for which he received a shot every two weeks.

        Petitioner disagreed with the number of times that trial counsel visited with him,
claiming that counsel only met with him as he was going to court “on the other side of the
door” and once in jail. Petitioner maintained that as far as discussing his case, trial counsel
told him that he faced “a hundred and something years.” He did not recall discussing the
facts of the case. He stated that the original plea offer from the State was ten years, but the
State increased it to eleven years because petitioner wrote the victim a letter. Petitioner said
that trial counsel informed him that he would serve his sentence at forty-five percent release
eligibility. However, petitioner claimed that when he signed the plea agreement, he was
under the influence of medication that made him suicidal.

       Upon questioning by the post-conviction court, petitioner acknowledged that he
understood his actions when he pleaded guilty but that he felt that trial counsel was just
“trying to speed things up” and have him plead guilty.


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                          D. Ruling by the Post-Conviction Court

       At the conclusion of the evidentiary hearing, the post-conviction court rendered its
findings:

              [W]hen the plea was entered, I took a lot of extra time discussing issues
       with [petitioner], and went over everything with him, and I was satisfied at the
       time that he understood what he was doing.

              That under the circumstances this was what he wanted to do.

              It was obvious he was wanting some extraordinary relief.

               And when [petitioner] quite frankly, attempted to withdraw his plea, a
       short time later, I appointed new counsel to take [trial counsel] out of the
       equation.

              [Subsequent counsel] spent months working with [petitioner].

             Eventually he decided to withdraw his petition to withdraw his plea,
       and wanted to go forward with the probation hearing, which we did.

               Had an extensive hearing and the Court determined that [petitioner] was
       not a proper candidate for probation or community corrections. I was satisfied
       at the time . . . my notes even reflect that [petitioner] has mental conditions.

              There’s no question about that.

              But my recollection in reviewing the case and the file is that the extent
       and the complexity of the identity theft in this case gave this court a great deal
       of concern.

               But it also indicated that [petitioner] has even with his mental condition
       a unique ability to manipulate the system involving the identity of the victim
       to the extent of just - I mean, it went on and on and culminating in having his
       own name changed to the name of the victim while all these issues were
       pending.

              It was obvious that [petitioner] had the mental ability to work through
       these complexities to accomplish the identity theft that he had accomplished.


                                              -5-
        Even though the Court was aware that he had some mental conditions,
the Court was satisfied that he was competent from the hearings and I’m still
satisfied that he’s competent.

      And I’m still satisfied that he has some mental conditions that need to
be addressed and I think on medication, he may have some improvements.

         But there’s no question in my mind that he fully understood the nature
of the proceedings when he entered his guilty plea. He fully understood the
potential amount of punishment he was facing. And in light of the just
extensive and great injuries inflicted upon the victim by [petitioner], I think
[trial counsel] rightfully advised [petitioner] that had he been convicted in a
trial, the likelihood that this Court would have sentenced him to substantially
more time than the eleven years that he was allowed to plead guilty to, is
probably a very telling prediction by [trial counsel].

      [Trial counsel] has been working in these courts twenty years and
understands the nature of these offenses and understands the proof in this case
which was overwhelming that [petitioner] was guilty of these offenses.

       The proof was extremely overwhelming.

        And I think a jury would not have had any problem convicting
[petitioner] and I can assure [petitioner] that I would have not had any problem
imposing a sentence that would have been higher than eleven years.

      And I think all of those factors were taken into account by [petitioner]
when he entered his guilty plea.

       I’m convinced after I conducted the guilty plea that he understood it. He
entered it freely, voluntarily, and in full knowledge of what he was looking at
and full knowledge of what the allegations were, and full knowledge of what
the proof would be if the case went to trial.

       He accepted the guilty plea. He was upset when he did not get
probation. Did not get some extraordinary relief and as a result, this petition
has been filed.

      I don’t find that there’s any basis for me to find that [trial counsel] did
not do everything within his power in representing [petitioner]. That
[subsequent counsel] did everything within his power in representing

                                       -6-
        [petitioner], and that [petitioner] is just simply unsatisfied with the fact that
        he’s got to stay in jail.

Based upon these findings, the post-conviction court denied relief.

                                                II. Analysis

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her
factual allegations by clear and convincing evidence. Id. § 40-30-110(f). “‘Evidence is clear
and convincing when there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010)
(quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

        Appellate courts do not reassess the post-conviction court’s determination of the
credibility of witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S.
v. State, 245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a
matter entrusted to the post-conviction judge as the trier of fact. R.D.S., 245 S.W.3d at 362
(quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s
findings of fact are conclusive on appeal unless the preponderance of the evidence is
otherwise. Berry v. State, 366 S.W.3d 160, 169 (Tenn. Crim. App. 2011) (citing 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)). However, conclusions of law receive no presumption of correctness on
appeal. Id. (citing Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001)). As a mixed question
of law and fact, this court’s review of petitioner’s ineffective assistance of counsel claims
is de novo with no presumption of correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn.
2011) (citations omitted).

      In his appeal of the denial of post-conviction relief, petitioner presents one issue:
whether his guilty pleas were knowingly, intelligently, and voluntarily entered.2 A guilty plea
must be entered knowingly, voluntarily, and intelligently. Lane v. State, 316 S.W.3d 555,


        2
           We note that petitioner does not couch this issue in terms of ineffective assistance of counsel but
only as a free-standing constitutional claim. As such, the “but for provision,” as it is often called, of State
v. Neal, 810 S.W.2d 131, 139 (Tenn. 1991), which requires a post-conviction petitioner to allege and prove
that “but for the omission [of a Boykin waiver], he would not have entered the guilty plea, is inapplicable.
See Blankenship v. State, 858 S.W.2d 897, 901-02 (Tenn. 1993) (clarifying that the “‘but for’ rule is properly
applied only in those cases in which the alleged invalidity of a prior guilty plea is attributable to ineffective
assistance of counsel”).

                                                      -7-
562 (Tenn. 2010); see North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v. Alabama,
395 U.S. 238, 242-44 (1969). If a plea is not knowingly, voluntarily, and intelligently
entered, the guilty plea is void because appellant has been denied due process. Lane, 316
S.W.3d at 562 (citing Boykin, 395 U.S. at 243 n.5). To make such a determination, the court
must examine “whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” Id. Courts should consider the
following factors when ascertaining the validity of a guilty plea:

       (1) the defendant’s relative intelligence; (2) the defendant’s familiarity with
       criminal proceedings; (3) the competency of counsel and the defendant’s
       opportunity to confer with counsel about alternatives; (4) the advice of counsel
       and the court about the charges and the penalty to be imposed; and (5) the
       defendant’s reasons for pleading guilty, including the desire to avoid a greater
       penalty in a jury trial.

Id. (quoting Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006)). “[A] plea is not
voluntary if it results from ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or]
subtle or blatant threats.’” Id. at 563 (quoting Blankenship v. State, 858 S.W.2d 897, 904
(Tenn. 1993)). Thus, the transcript of the plea colloquy must affirmatively show that a
defendant’s decision to plead guilty was both voluntary and knowledgeable. Id. The trial
court must ensure that the defendant entered a knowing and intelligent plea by thoroughly
“‘canvass[ing] the matter with the accused to make sure that he has a full understanding of
what the plea connotes and of its consequences.’” Id. (quoting Blankenship, 858 S.W.2d at
904).

       To ensure that defendants’ guilty pleas are voluntarily, knowingly, and intelligently
entered, Rule 11 of the Tennessee Rules of Criminal Procedure sets forth, in pertinent part,
the requirements for guilty pleas:

       Before accepting a guilty or nolo contendere plea, the court shall address the
       defendant personally in open court and inform the defendant of, and determine
       that he or she understands, the following:

              (A)    The nature of the charge to which the plea is offered;

              (B)    the maximum possible penalty and any mandatory minimum
                     penalty;

              (C)    if the defendant is not represented by an attorney, the right to be
                     represented by counsel--and if necessary have the court appoint
                     counsel--at trial and every other stage of the proceeding;

                                              -8-
               (D)    the right to plead not guilty or, having already so pleaded, to
                      persist in that plea;

               (E)    the right to a jury trial;

               (F)    the right to confront and cross-examine adverse witnesses;

               (G)    the right to be protected from compelled self incrimination;

               (H)    if the defendant pleads guilty or nolo contendere, the defendant
                      waives the right to a trial and there will not be a further trial of
                      any kind except as to sentence;

               (I)    if the defendant pleads guilty or nolo contendere, the court may
                      ask the defendant questions about the offense to which he or she
                      has pleaded. If the defendant answers these questions under
                      oath, on the record, and in the presence of counsel, the answers
                      may later be used against the defendant in a prosecution for
                      perjury or aggravated perjury; and

               (J)    if the defendant pleads guilty or nolo contendere, it may have an
                      effect upon the defendant’s immigration or naturalization status,
                      and, if the defendant is represented by counsel, the court shall
                      determine that the defendant has been advised by counsel of the
                      immigration consequences of a plea.

Tenn. R. Crim. P. 11(b)(1).

       Rule 11 also requires that the trial court ascertain that the plea is “voluntary and is not
the result of force, threats, or promises,” other than those contained in the plea agreement.
Tenn. R. Crim. P. 11(b)(2). In addition, Rule 11 requires the trial court to inquire “whether
the defendant’s willingness to plead guilty results from prior discussions between the district
attorney general and the defendant or the defendant’s attorney.” Id. Finally, the trial court
must confirm that there is a factual basis for the plea. Tenn. R. Crim. P. 11(b)(3). Tennessee
case law has further refined the requirements of a plea colloquy to include informing a
defendant and ensuring that he understands that different or additional punishment may result
from his guilty plea due to prior convictions or other factors and that the resulting conviction
may be used for enhancement purposes in any subsequent criminal actions. Lane, 315
S.W.3d at 564 (citing Howell, 185 S.W.3d at 331).



                                                   -9-
        In this case, the trial court made the requisite inquiries pursuant to Lane. 316 S.W.3d
at 562. In considering petitioner’s relative intelligence, the post-conviction court noted that
petitioner had some mental issues but that he possessed a “unique ability to manipulate the
system involving the identity of the victim” and “had the mental ability to work through these
complexities to accomplish the identity theft.” Although not specifically mentioned by the
post-conviction court, the record reflects that petitioner had eleven prior felony convictions
on his criminal record, indicating a familiarity with the criminal justice system. The post-
conviction court noted trial counsel’s experience and understanding of the nature of the case
in which petitioner was involved. The court also credited trial counsel’s testimony with
regard to petitioner’s knowledge of the sentencing range and other considerations, such as
consecutive sentencing. Finally, the post-conviction court opined that petitioner became
upset with the plea agreement when he was not granted an alternative sentence. Petitioner
testified at the post-conviction hearing that he understood the consequences of the guilty
pleas he entered.

        However, we must also consider petitioner’s understanding of his rights pursuant to
Tennessee Rule of Criminal Procedure 11. “In determining whether a plea of guilty was
voluntarily, understandingly, and intelligently entered, this [c]ourt, like the trial court, must
consider all of the relevant circumstances that existed when the plea was entered.” State v.
Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995) (citation omitted). The Sixth Circuit
Court of Appeals has stated, “‘[A] reviewing court may look to any relevant evidence in the
record of the proceedings – including post-conviction proceedings – to determine the
voluntariness of a guilty plea.’” Id. (quoting Cochran v. Norvell, 446 F.2d 61, 63 (6th Cir.
1971)). Accordingly, “whether an accused’s plea of guilty was voluntarily, understandingly,
and knowingly entered is to be determined based upon the totality of the circumstances.” Id.
(citations omitted).

       Despite petitioner’s brief statements at the guilty plea submission hearing that he
understood “part” of the plea agreement and that he believed he was pleading to identity theft
and forgery to be served at thirty-five percent release eligibility, the record as a whole
preponderates otherwise. At the conclusion of the plea colloquy, the trial court correctly
noted, “I will accept you[r] guilty plea[s] . . . to the charge[s] of identity theft, [and] it is the
judgment of the court . . . that you be confined for a period of eleven years as [a] range three
persistent offender in each count and that you pay the costs . . . .” After filing a motion to
withdraw his guilty pleas, petitioner subsequently withdrew that motion on his own accord.
He affirmed at the sentencing hearing that he understood the terms of his plea agreement, and
he also testified at the post-conviction evidentiary hearing that he understood the
consequences. Petitioner further confirmed that prior to entering the guilty pleas, trial
counsel wrote him a letter explaining that his release eligibility would be forty-five percent.
Trial counsel stated at the hearing that he had no reason to believe that petitioner did not
understand his range of punishment or the possible sentences at the time he entered the guilty

                                                -10-
pleas, and the post-conviction court credited his testimony. Indeed, no evidence was
presented to support petitioner’s allegation that he lacked understanding of any material
component of the plea agreement. The evidence does not preponderate against the post-
conviction court’s findings that petitioner’s guilty plea was knowingly, intelligently, and
voluntarily entered.

       In sum,

       [t]he evidence does not preponderate against the findings of the
       post-conviction court. It appears the petitioner is suffering from a classic case
       of ‘Buyer’s Remorse,’ in that he is no longer satisfied with the plea for which
       he bargained. A plea, once knowingly and voluntarily entered, is not subject
       to obliteration under such circumstances.

Robert L. Freeman v. State, No. M2000-00904-CCA-R3-PC, 2002 WL 970439, at *2 (Tenn.
Crim. App. May 10, 2002).

                                      CONCLUSION

       Based on the record as whole, the briefs of the parties, and the applicable legal
authorities, we affirm the judgment of the post-conviction court.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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