        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs January 5, 2011

               VICTOR PRITCHARD v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                        No. 05-05258     Lee V. Coffee, Judge


               No. W2009-02602-CCA-R3-PC - Filed March 23, 2011


The petitioner, Victor Pritchard, appeals the post-conviction court’s denial of his petition for
post-conviction relief, arguing that he received the ineffective assistance of counsel, which
caused him to enter unknowing and involuntary guilty pleas. After review, we affirm the
denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J.C. M CL IN and C AMILLE
R. M CM ULLEN, JJ., joined.

John H. Parker, II, Memphis, Tennessee, for the appellant, Victor Pritchard.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William
L. Gibbons, District Attorney General; and Kate Edmands, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS

       In August 2005, the petitioner was charged, in four indictments, with especially
aggravated kidnapping, aggravated burglary, and four counts of aggravated rape. The
petitioner pled guilty to all the charges in March 2007 and, per the plea agreement, was
sentenced to twenty years for each count of aggravated rape, three years for aggravated
burglary, twenty years for especially aggravated kidnapping, and one year for an outstanding
sexual battery conviction.
       On February 14, 2008, the petitioner filed a pro se petition for post-conviction relief.
After the appointment of counsel, an amended petition and second amended petition were
filed. In his petitions, the petitioner raised various allegations of ineffective assistance of
counsel and asserted that his guilty pleas were unknowing. The post-conviction court
conducted an evidentiary hearing,1 at which the petitioner testified that the State had offered
him a plea deal of fifteen years on all of his charges but increased it to twenty years because
counsel failed to resolve an issue concerning the petitioner’s violation of his diversion or
probation on his 2002 sexual battery conviction.2 The petitioner claimed that on the day of
his guilty plea, he was expecting to plead to fifteen years, but was rushed through the plea
process and did not understand what was going on.

        The petitioner explained that he originally received an offer of twenty years, then he
received an offer of fifteen years plus five years on a robbery charge to be served
consecutively. He claimed that he later received a “today only” offer of fifteen years as a
Range II offender. The petitioner introduced a letter that had been given to him by his
attorneys showing where he had originally been offered twenty years, but he was given the
“today only” offer of fifteen years. However, the court noted that the writing on the letter
indicated that the offer was contingent on the petitioner’s offenses not falling under the
attorney general’s “no-deals” policy. The petitioner said that he also received information
that the State offered him a deal of eight years, with “all counts reduced to rape,” but he was
never actually presented that offer. The petitioner elaborated that he ended up with twenty
years after he asked his attorney “something . . . about [his] diversion, probation,” and the
State “increas[ed] [his] sentence back to twenty years due to the fact of [his] diversion,
probation.”

       On cross-examination, the petitioner admitted that the transcript of the guilty plea
hearing reflected that he said he was pleading freely and voluntarily and that he told the
court he was not confused about the aspects of his plea. However, he claimed that the
transcript showed that he was confused at an earlier point in the colloquy. The petitioner
denied having raped anyone.



        1
            We attempt to limit the majority of our factual recitation to information relevant to this appeal.
        2
           Although confusing, it appears that the petitioner was placed on diversion for his 2002 sexual
battery conviction, but the post-conviction court questioned the possibility of that action given that the trial
court had already entered judgment making it more akin to probation. The record indicates that a violation
of probation warrant was filed and soon after recalled, but the court determined that it still had jurisdiction
over the case because the filing of the warrant occurred before the expiration of the diversion period and
therefore tolled the expiration of the diversion. It is not clear what action, if any, was taken in the matter
until that case was disposed of along with the petitioner’s present guilty pleas.

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       The petitioner’s original counsel testified that he was appointed to represent the
petitioner on his 2005 rape indictments. Another attorney was later hired by the petitioner’s
mother, and the two attorneys worked together on the petitioner’s case. Original counsel
recalled that from the beginning, the petitioner wanted to plead and not go to trial, so they
primarily worked on obtaining the best possible settlement offer for the petitioner.

        Original counsel testified that he was briefly appointed to represent the petitioner on
an issue concerning the 1999 indictment that resulted in the 2002 sexual battery conviction,
and at a hearing held on May 17, 2006, the judge ordered that original counsel be allowed
to listen to the recordings from the court proceedings on September 16, 2003, when a
violation of probation warrant was issued, and September 22, 2003, when the warrant was
recalled. The judge presiding over the 1999 indictment issues determined that the violation
warrant was timely and valid, which tolled the expiration of the petitioner’s probationary
period. A hearing was apparently set in that court regarding the petitioner’s violation of his
diversion or probation, but original counsel was not involved in that hearing.

        When questioned about the plea offers made to the petitioner by the State, original
counsel said that the State never offered anything less than twenty years. He elaborated that
the State did offer the petitioner fifteen years on the rape cases, consecutive to five years on
a robbery charge, but the effective sentence was still twenty years. Original counsel recalled
that second counsel had hoped to get the State to offer six years, but he told second counsel
that was not realistic but that it did not hurt to try. Original counsel stated that there also had
been discussion with one of the assistant district attorneys about the petitioner getting a
sixteen-year deal, but “that never came to fruition.” Original counsel explained that the
reason the judgment sheets had “fifteen years” marked through and “twenty” written in was
because second counsel had prepared them in hopes that the State would see that the
petitioner was seriously prepared to accept fifteen years and go with it. He recalled that the
petitioner was ultimately not able to get anything better than an effective twenty-year term
because his offenses fell under the district attorney’s “no-deals” policy. As far as the
petitioner’s violation of probation or diversion was concerned, original counsel explained
that “the State basically threw it in for free. They ran it concurrent.”

       Original counsel testified that he had been able to get the State to change its mind
before on a “no-deals” case before he was appointed to represent the petitioner, but the last
time he had tried, the prosecutor said that she could not ask her superiors because they had
already made exceptions recently.

       The petitioner’s second counsel affirmed original counsel’s testimony that the
petitioner never wanted to go to trial and decided that he would take an offer of twenty years
because he did not want to risk getting consecutive sentences. He said that the only thing

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he heard about the petitioner having a fifteen-year offer was from the petitioner, and the
State made it clear that there was not an offer of fifteen years. Second counsel said that a
letter he wrote to the prosecutor asking that the offer to the petitioner be reduced from
fifteen to six years was either a mistake caused by his secretary looking at notes in his file
or he was still acting under the incorrect information from the petitioner that he had received
an offer of fifteen years. With regard to judgment sheets he prepared showing sentences of
eight years, second counsel explained that he took them to the State hoping that it would
rethink its position, but “of course, they said, ‘No.’”

       In denying the petitioner post-conviction relief, the court found, relevant to this
appeal, that the petitioner understood his guilty pleas and that they were knowingly given.
The court accredited the testimony of the petitioner’s attorneys; specifically, that the
petitioner never received an offer of less than twenty years. With regard to the petitioner’s
allegation that counsel failed to have the sexual battery charge dismissed, the post-
conviction court found that the attorneys had no grounds to challenge the revocation of the
petitioner’s suspended sentence on the sexual battery charge and that the revocation of
probation had no effect on the petitioner’s sentence or his decision to plead guilty.

                                          ANALYSIS

       The petitioner argues that his original counsel was ineffective in failing “to have the
charges under indictment 99-14405 dismissed. As a result, a [j]udgment was entered,
sentencing [the petitioner] to a one (1) year sentence on a Class ‘E’ felony.” He asserts that
because of the 1999 charge, he received a higher offer on the charges in the present
indictments; therefore, his pleas were unknowingly and involuntarily entered.

       The petitioner was indicted for rape in 1999 and apparently pled guilty in 2002 to the
lesser charge of sexual battery and, as indicated above, was placed on diversion. A
probation violation warrant was filed on what was determined to be the last day of the
petitioner’s diversion; therefore, the trial court found that the filing of the warrant tolled the
expiration of the diversion. The petitioner contends that the diversion expired, but it appears
that the issue remained unresolved until it was disposed of along with the present pleas.
Thus, the petitioner’s averments in this post-conviction proceeding are: his counsel was
ineffective for allowing the diversion case to be included and not having it dismissed, which
resulted in his receiving a higher offer in the present cases; and his guilty pleas were
unknowing and involuntary because he was not expecting the higher sentence.

       Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee
or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2006). The

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petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the
findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the trial court’s findings as to the credibility of witnesses or the weight of their
testimony. Id. However, review of a trial court’s application of the law to the facts of the
case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96
(Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed
questions of fact and law, is reviewed de novo, with a presumption of correctness given only
to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn.
Const. art. I, § 9. To establish a claim of ineffective assistance of counsel, the petitioner has
the burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v. Washington,
466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is
applied in federal cases also applies in Tennessee). The Strickland standard is a two-prong
test:

       First, the defendant 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 defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is
       reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall 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 v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and
may not second-guess the tactical and strategic choices made by trial counsel unless those

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choices were uninformed because of inadequate preparation. See Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. “In cases involving a guilty plea or plea
of nolo contendere, the petitioner must show ‘prejudice’ by demonstrating that, but for
counsel’s errors, he would not have pleaded guilty but would have insisted upon going to
trial.” Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998) (citing Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim.
App. 1991)).

        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. 395
U.S. at 242. Similarly, in Mackey, our supreme court required an affirmative showing of
a voluntary and knowledgeable 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. Because the plea must represent a voluntary and
intelligent choice among the alternatives available to the defendant, the trial court may look
at a number of circumstantial factors in making this determination. Blankenship, 858
S.W.2d at 904. These factors include: (1) the defendant’s relative intelligence; (2) his
familiarity with criminal proceedings; (3) whether he was represented by competent counsel
and had the opportunity to confer with counsel about alternatives; (4) the advice of counsel
and the court about the charges against him 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. at 904-05.

       Although the underlying issue is somewhat complex and unclear, it is clear in this
post-conviction proceeding that the petitioner is not entitled to relief. Again, in order to
prove his entitlement to post-conviction relief, the petitioner had to show that counsel
rendered deficient performance and that such deficiency caused him prejudice. Contrary to
the petitioner’s assertion that he received a “today only” offer of fifteen years, but the offer
was increased to twenty years due to the unresolved diversion/probation issue, original

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counsel testified that the petitioner never received an offer of less than twenty years.
Original counsel explained that the petitioner did receive an offer of fifteen years on the rape
charges to run consecutively to five years on a robbery charge, but the effective sentence was
still twenty years. Original counsel stated that the sentence on the diversion/probation case
was “thrown in for free” and ran concurrently to the twenty-year sentence for the rapes and
was never used to increase the State’s offer. Second counsel corroborated the testimony of
original counsel and even explained the unsuccessful attempts he made to obtain a lesser
offer from the State, including his preparing judgment forms indicating a lesser sentence in
hopes the State would go along with it. Second counsel stated that the only thing he heard
about the petitioner having an offer of fifteen years was from the petitioner and that was
refuted by the State. The post-conviction court explicitly accredited the testimony of
original counsel and second counsel over that of the petitioner. Thus, the petitioner has
failed to show any prejudice caused by the inclusion of the diversion/probation case in his
plea because his effective sentence was what it would have been even without the
diversion/probation case – twenty years.

       As to the petitioner’s averment that his guilty pleas were unknowing and involuntary,
such argument is without merit. The record shows that the petitioner had been through
guilty plea proceedings on two other occasions, he was represented by competent counsel,
and he faced a possible penalty of more than 100 years if convicted after a jury trial. Both
original counsel and second counsel testified that the petitioner never wanted to go to trial
and was always wanting to plead. At the guilty plea hearing, the petitioner specifically
inquired of the court, “Did they run the diversion time current with the other time?” When
the court informed that it was, the petitioner stated, “That’ll be fine.” The petitioner also
verified to the court that he was entering his plea freely and voluntarily and that he was not
“confused about anything.” Thus, the petitioner has failed to prove that his pleas were
unknowingly or involuntarily entered.

                                      CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the post-conviction
court’s denial of post-conviction relief.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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