        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 10, 2012

            JOHNNY WAYNE BEARD v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Tipton County
                       No. 6200     Joseph H. Walker, Judge


                No. W2011-00800-CCA-R3-PC - Filed March 20, 2012


The petitioner, Johnny Wayne Beard, appeals the denial of his petition for post-conviction
relief from his rape of a child conviction, arguing he received the ineffective assistance of
counsel which caused him to enter an unknowing and involuntary guilty plea. After review,
we affirm the lower court’s denial of post-conviction relief.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

Andrea D. Sipes, Jackson, Tennessee (on appeal); and Mark E. Davidson, Covington,
Tennessee (at hearing), for the appellant, Johnny Wayne Beard.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Jason Poyner, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS

       On July 9, 2009, the petitioner pled guilty to rape of a child in exchange for a
sentence of twenty-five years in the Department of Correction. At the guilty plea hearing,
the prosecutor recited the following factual basis for the plea:

              This is Case No. 6200, State v. Johnny Wayne Beard. [The petitioner],
       through his attorney, [counsel] with the Public Defender’s Office, has come
       to a resolution in this case. [The petitioner] was charged in a one count
indictment of rape of a child in Docket No. 6200. [The petitioner] is going to
enter a guilty plea. . . . Upon speaking with the victim and looking at the
forensic interview, there may be other counts from Lauderdale County and
Tipton County. As part of his guilty plea with respect to this victim, the State
has agreed not to indict or prosecute any other count with respect to this
victim upon his guilty plea to this one count of rape of a child. The State
knows of and believes that there’s only one sentence possible on a case like
this. It’s 25 years, 100 percent per the statute.

        Had the State gone to trial, they would [have] put on evidence to the
effect that on October 8, 2008, [the petitioner] was babysitting his children at
their mother’s home at 316 Boswell Road in Burlison, Tennessee. The mother
was out of town doing a job somewhere else and [the petitioner] had his
children that night. [The petitioner], in his confession or in his statement to
the police, admits to drinking that day and does admit to some sexual contact
with his daughter where he called it a kiss between her legs on her vagina.

         The daughter . . . has met with our office and would testify that there
was sexual penetration during that with his mouth on her vagina. Her brother,
his son, also talked to our office and would be able to testify. Though he
didn’t testify or was able to say anything in his forensic interview, he did talk
to . . . myself and would testify that he couldn’t describe the activity but his
dad was between his sister’s legs, that he hit him because he was doing
something bad and ultimately, the son is the one who told the mom the next
day. Like I said earlier, . . . this was some sort of ongoing activity which [the
petitioner] will not be prosecuted on, on his plea to this one count of rape of
a child.

        [Counsel] from the Public Defender’s Office would like to make a copy
of the taped confession by Detective Wassel part of the record and has a copy
here and I’ll submit it now as part of the record of this hearing if the Court
will allow and we’ll pass that up now. This is a copy that the State received
from the Sheriff’s Office. This is the copy that was provided to the Public
Defender. The State would have called Detective Wassel to put on the
evidence of the confession by the [petitioner] . . ., would have called the
victim, his daughter -- her initials in the indictment are “JAB”. Her date of
birth was 04/28/98. [The petitioner]’s date of birth is 06/09/74 which would
make this a rape of a child with his age being way in excess of 18 years old
and hers being less than 13 years old at the time of the crime.


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              The State would also call the victim to talk about the contact, would
       have also called her brother who was a witness to the contact and ultimately
       told the mother and this [is] how we ended up in court today.

        The petitioner filed a pro se petition for post-conviction relief on May 14, 2010,
alleging that his confession was coerced, that counsel was ineffective, and that his guilty
plea was not knowing and voluntary. Counsel was appointed, and an evidentiary hearing
was conducted on the petition. At the hearing, the petitioner testified that he was pressured
into pleading guilty by counsel. He stated that he first met with counsel on January 20 after
he had been charged with aggravated sexual battery, and counsel “talked [him] into waiving
[his] preliminary [hearing]” by telling him that he would “be waiting in the back of the jail”
six months later if he did not. The petitioner understood the proof against him to consist of
his “statement [to police] saying [he] kissed [his] daughter between the legs.”

       The petitioner testified that he was coerced into making the statement because he was
drunk and tired from working all day, and the detectives talked to him for three hours. He
said that he had drunk “six 50-milliliter shots of vodka” when he talked to the police and
that he did not understand what was going on. He admitted an accidental touching of his
daughter but insisted she had her clothes on. However, he and counsel never talked about
his confession or about the proof the State might have against him. Counsel also never had
any conversation with him about suppressing his statement, but he recalled that counsel told
him “it wouldn’t do any good” to file a motion to suppress. The petitioner acknowledged,
however, that counsel evidently filed a motion to suppress.

       The petitioner testified that, at the time of his statement to police, he was taking
Prozac for severe depression and slight schizophrenia. He explained that the Prozac
combined with alcohol caused him to have “mental distortion, confusion, [and] lack of
concentration.” However, he never discussed his being on medication and under the
influence with counsel because “[he] never had a chance to bring it up . . . [and] [counsel]
never asked.” Counsel never asked him if he suffered from any mental health problems.
The petitioner said that, during the time he was incarcerated prior to entering the plea, he
was taking “Elavil mixed with Prozac and Amitriptyline.”

       The petitioner recalled that counsel brought him an offer from the State for eight
years at eighty-five percent based on the aggravated sexual battery charge, but the petitioner
told counsel that he was innocent. The petitioner thought he would be released if he rejected
the offer. When he next talked to counsel, counsel informed him that he had been charged
with rape of a child and that he “would be getting at least 50 years if [he] didn’t take the 25-
year plea.” Counsel had not informed him, when he rejected the eight-year offer, that he
might be indicted for rape of a child.

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       The petitioner testified that he met with counsel for about thirty minutes to discuss
the State’s plea offer on the rape of a child charge, and he decided later that day to take the
offer. He had been in jail for seven months at that point, experiencing “harsh” conditions
and cramped quarters, and was “confused” and did not know what his options were. He and
counsel had had no discussions about going to trial or what his possible defenses might be.

      The petitioner testified that, when he actually entered his plea, he did not understand
what was going on due to the medications he was taking that caused him to “see demons[.]”
However, he did not report this to counsel, and counsel did not ask him if he was on any
medication. He said that he pled guilty because he felt he had no other option in that he
would otherwise face a fifty-year sentence.

        On cross-examination, the petitioner testified that he had wanted to go to trial and
only pled guilty after he was told he faced a fifty-year sentence. Asked how his case would
have changed had he not waived his preliminary hearing, the petitioner said that he did not
know. The petitioner said that he never mentioned to counsel his being drunk and on
medication when he confessed to the police, explaining that he thought it was the attorney’s
job to ask all the pertinent questions. He insisted that he knew nothing about the
suppression motion and did not recall discussion of such prior to entering his plea. The
petitioner admitted that the transcript of the plea hearing showed that he was advised of his
rights and informed the court that he was satisfied with counsel’s representation.

       The petitioner admitted that he knew the original allegation about his crime was
reported by his five-year-old son and that the police “probably” talked to the victim as well.
However, he never asked counsel about what either of them may have told the police. The
petitioner denied being warned when rejecting the eight-year offer that the State would
upgrade the charge to rape of a child. The petitioner said that he was not aware that the
police were investigating an additional charge against him in Lauderdale County. He
admitted that he “wish[ed] [he] had [taken] the eight [year offer].”

       Counsel testified that the petitioner was originally charged with aggravated sexual
battery, but was then charged with rape of a child. Counsel filed basic pretrial motions, as
well as a motion to suppress the petitioner’s statement to police. He intended to try and
suppress the petitioner’s statement based on his review of the video interrogation of the
petitioner in which the officers stated on two occasions that they smelled alcohol and asked
the petitioner if he had been drinking. Counsel believed that there was “[s]ome chance” of
success on the motion, which would have meant that the State’s case would have relied
solely on the victim’s testimony and the corroborating testimony of her brother. Counsel did
not personally attempt to interview the victim, but his investigator had tried and been denied
permission by the victim’s mother.

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        Counsel testified that he discussed the suppression motion with the petitioner and his
concerns that the petitioner was under the influence during the interrogation. Counsel
informed the petitioner that the “case against us looked a lot worse” if they were
unsuccessful on the motion to suppress. Prior to the suppression hearing, the petitioner
informed counsel that he wanted to accept the State’s offer. The offer the petitioner
accepted was essentially the same sentence he would have received had he gone to trial and
lost, but the State provided that it would not indict the petitioner on an additional charge of
rape of a child in Lauderdale County if he accepted the plea. Counsel was concerned that
the petitioner could be exposed to consecutive sentencing if he rejected the plea and was
convicted on additional charges. Counsel stated that there was no guarantee the State would
have kept the offer on the table had they been unsuccessful at the suppression hearing.
Counsel explained the options to the petitioner and advised him that, in his opinion, it would
be best to hear the motion to suppress before deciding, but he also told the petitioner that it
was his decision to make as to whether he accepted the plea.

       Counsel was aware that the petitioner was taking an antidepressant, but he did not
have a mental evaluation performed. Counsel did not know if the petitioner had been on
medication in addition to drinking at the time of his confession. Counsel believed that the
main issue was whether the police had reason to know that the petitioner was impaired when
they were interrogating him. Counsel did not know that the medication the petitioner was
taking caused him to hallucinate.

       On cross-examination, counsel testified that he met with the petitioner two or three
times during the period the case was in general sessions court and discussed with him the
proof he knew about at that time, including the petitioner’s confession. The petitioner was
offered an eight-year sentence on the original aggravated sexual battery charge, which
counsel explained to the petitioner. Counsel also explained to the petitioner that he faced
the possibility that the charge would be upgraded to rape because penetration could be
established by mouth to genital contact. Counsel said that any testimony alleging he did not
discuss the motion to suppress with the petitioner, was not aware that the petitioner was
taking Prozac, and was not aware of the petitioner’s concerns about being under the
influence of alcohol or drugs when he gave his confession, was contrary to his recollection.

       Counsel testified that he met in order to discuss the motion to suppress with the
petitioner two days before the petitioner ultimately pled guilty. Counsel acknowledged that
the suppression motion he filed was “bare bones” but explained that was his strategy as he
did not see a “point in pre-warning them where [he] was going.” Counsel had conducted
research to support his arguments and was planning to call the two officers to testify if the
State did not. Counsel said that it was the petitioner’s idea to plead guilty instead of
proceeding on the motion to suppress and that he appeared to be mentally coherent and

                                              -5-
aware of the evidence against him. Counsel recalled that the petitioner told him that “he
didn’t want to put his daughter through testimony.” In addition to the times they met when
the case was in general sessions court, counsel met with the petitioner another three or four
times during the period the case was in criminal court.

       Following the conclusion of the evidentiary hearing, the post-conviction court entered
an order denying relief, finding that the petitioner understood the significance and
consequences of his plea and was not coerced and that he had not shown any deficiencies
in counsel’s performance or that he was prejudiced.

                                        ANALYSIS

        On appeal, the petitioner argues that counsel rendered ineffective assistance, which
caused him to enter an unknowing and involuntary plea. 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 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).

                           I. Ineffective Assistance of Counsel

       The petitioner argues that counsel rendered ineffective assistance in failing to
investigate the extent of his intoxication when he made the statements to law enforcement;
advising him to plead guilty prior to the suppression hearing; failing to investigate his
history of mental illness; and failing to investigate the circumstances of the indictment and
allegations surrounding the second offense of rape in Lauderdale County.

       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.

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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 [petitioner] must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
       Amendment. Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable.

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
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 the context of a guilty plea, the
petitioner must show a reasonable probability that were it not for the deficiencies in
counsel’s representation, he would not have pled guilty but would instead have insisted on
proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d
508, 516 (Tenn. 2001).

       As to the petitioner’s assertion that counsel failed to investigate the extent of his
intoxication when he gave his statement to police and advised him to plead guilty prior to
the suppression hearing, the post-conviction court found that the petitioner admitted that he
did not tell counsel he was intoxicated. Instead, counsel filed the suppression motion based
on what he saw on the video of the interrogation. The court found that the petitioner wanted

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to plead and not go forward on the motion to suppress. The court lastly found that the
petitioner failed to make any showing that he would have been successful at the suppression
hearing.

        The record supports these findings by the post-conviction court. Counsel testified
that he discussed the suppression motion with the petitioner and his concerns that the
petitioner was under the influence during the interrogation. Counsel informed the petitioner
that their case would be much weaker if they were unsuccessful on the motion to suppress.
Counsel explained the options to the petitioner and advised him that, in his opinion, it would
be best to hear the motion to suppress before deciding whether to accept the State’s offer.
However, he also told the petitioner that it was his decision to make as to whether he
accepted the plea. The petitioner informed counsel that he wanted to accept the State’s offer
prior to the suppression hearing. The post-conviction court implicitly accredited counsel’s
testimony. Accordingly, we conclude that the petitioner has failed to prove that counsel
performed deficiently in this regard.

       With regard to the petitioner’s assertion that counsel failed to investigate his history
of mental illness and the circumstances of the indictment and allegations surrounding the
second offense of rape in Lauderdale County, the post-conviction court found that the
petitioner failed to show in what way counsel failed to investigate. The record supports this
finding by the post-conviction court. The only proof that the petitioner experienced any
side-effects from his medication came from his own assertion at the evidentiary hearing.
However, counsel, although aware that the petitioner was taking an antidepressant
medication, testified that he was not informed of the petitioner’s allegation that the
medication he was taking caused him to hallucinate. We cannot conclude that the petitioner
has shown any deficiency in counsel’s failure to investigate his mental health issues when
he did not inform counsel of such. Moreover, the petitioner has not shown prejudice as he
offered no proof, such as his medical records or the results of a psychological evaluation,
that he was, as he claimed, “incompetent to assist in his own defense.”

       As to the alleged failure to investigate the circumstances of the indictment and
allegations surrounding the second offense, we note that counsel testified that his
investigator attempted to interview the victim but was denied permission by the victim’s
mother. In any event, the petitioner failed to offer any evidence at the evidentiary hearing
that would call into question the validity of the victim’s allegations and has therefore failed
to show how he was prejudiced by any failure to investigate on counsel’s part. See Black
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).




                                              -8-
                          II. Unknowing and Involuntary Plea

        The petitioner also argues that counsel’s ineffectiveness caused him to enter an
unknowing and involuntary plea. 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, our Tennessee Supreme Court in
Mackey 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 or she 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.

        As to this issue, the post-conviction court found that the petitioner understood the
significance and consequences of his plea and that his decision was not coerced. At the
evidentiary hearing, counsel testified that it was the petitioner’s idea to plead guilty instead
of proceeding to the motion to suppress and that the petitioner was aware of the evidence
against him. Counsel said that the petitioner told him that “he didn’t want to put his
daughter through testimony.” The transcript from the plea colloquy shows that the petitioner
affirmed to the court that he understood what he was doing, had been apprised of his right
to a trial and ramifications of pleading guilty, that he was satisfied with counsel’s
representation, had enough time to meet with counsel to discuss the case and any defenses
to the charge, and that he was pleading guilty because he was in fact guilty of the charge.
The evidence shows that the petitioner, who faced the possibility of another rape charge if
he did not plead, made the informed decision to accept the State’s offer after fully discussing
the issue with counsel. We cannot conclude that the petitioner’s guilty plea was anything

                                              -9-
other than knowingly and voluntarily entered.

                                    CONCLUSION

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


                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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