         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     June 2, 2009 Session

                    GERALD JONES v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Shelby County
                            No. 05-00734 Lee V. Coffee, Judge



                 No. W2008-01337-CCA-R3-PC - Filed September 30, 2009


Petitioner, Gerald Jones, appeals the post-conviction court’s dismissal of his petition for post-
conviction relief in which he argued that his guilty plea was unknowing and involuntary and that he
received ineffective assistance of counsel. Petitioner also argues on appeal that the post-conviction
court improperly excluded evidence at the post-conviction hearing related to his diminished mental
capacity. We determine that Petitioner has failed to show that he received ineffective assistance 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 JOHN EVERETT WILLIAMS and
CAMILLE R. MCMULLEN , JJ., joined.

Michael R. Working, Memphis, Tennessee, for the appellant, Gerald Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General;
William L. Gibbons, District Attorney General, Tiffani Taylor and Doug Carriker, Assistant District
Attorneys General; for the appellee, State of Tennessee.



                                            OPINION

       On March 13, 2007, Petitioner pled guilty in Shelby County to one count of especially
aggravated robbery and one count of aggravated burglary. Pursuant to the plea agreement, Petitioner
received a thirteen-and-a-half-year sentence for the especially aggravated robbery conviction, to be
served as a violent offender at 100%. Petitioner received a sentence of 2.7 years for the aggravated
burglary conviction, to be served at twenty percent. The sentence for the aggravated burglary
conviction was ordered to be served concurrently to the sentence for the especially aggravated
robbery conviction.
       At the guilty plea 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 November the 13th, 2003, Mr. Sam Dukes was at his residence when three males
        entered his home and began beating him with a walking cane and a pipe, a metal
        pipe.

               The males demanded money from Mr. Dukes and ransacked his bedroom.
        Took several pieces of jewelry and left the scene.

                Mr. Dukes recognized [Petitioner], his neighbor, as one of the gentlemen.

                Mr. Dukes was transported to the MED in critical condition for a deep
        laceration to the head. He had broken bones in his right hand, which had rendered
        his hand not in the same condition that it had been in before. He still has difficulty
        using it.

                He required stitches to his head to close the wound, a plaster cast for his hand.

                        ....

                [Appellant] gave a statement of admission to setting this up, but not to
        actually beating the defendant [sic].

        At the conclusion of the lengthy plea hearing, the trial court accepted the guilty pleas.
Subsequently, Petitioner filed a petition for post-conviction relief in which he alleged that his trial
counsel: (1) failed to investigate and interview witnesses, including the alleged accomplices; (2) gave
Petitioner incorrect information about his sentencing range; (3) coerced him into pleading guilty; (4)
withheld exculpatory evidence; and (5) allowed Petitioner to plead guilty where there was no factual
basis to support the convictions. Further, Petitioner alleged that his guilty plea was unknowing and
involuntary. Counsel was appointed to represent Petitioner during the post-conviction proceedings,
and an amended petition was filed. In the amended petition, Petitioner included additional
allegations of ineffective assistance of counsel. Petitioner claimed that trial counsel: (1) failed to file
an IQ test conducted by court-appointed evaluators; (2) failed to disclose that the IQ test was not
conducted pursuant to the trial court’s prior order; (3) failed to conduct a hearing to determine the
knowing and voluntary nature of Petitioner’s guilty plea; and (4) failed to adequately communicate
with Petitioner.

                               Evidence at the Post-conviction Hearing

         At the hearing on the post-conviction petition, the post-conviction court heard testimony from
trial counsel, who was appointed to represent Petitioner as part of her job with the Public Defender’s
Office in Shelby County. According to trial counsel, Petitioner reported that he had a mild learning


                                                   -2-
disability. In response to Petitioner’s claim, trial counsel requested a mental evaluation. The trial
court granted her request and a report was completed by Midtown Mental Health. The report
indicated that Petitioner was competent to stand trial, understood the nature of the legal process and
the charges against him, and could assist his attorney in his defense.

         Trial counsel recalled that she met with Petitioner at least four or five times. She also
remembered that she sent discovery documents to Petitioner on two separate occasions. Petitioner
later claimed at the guilty plea hearing that he was never shown discovery documents. The trial court
granted a recess so that Petitioner could review the documents prior to the entry of the plea.

       Trial counsel explained that she filed a motion to suppress Petitioner’s statements to police
on the basis of his low IQ scores from high school that placed Petitioner’s IQ somewhere in the
range of 60-65. Trial counsel filed this motion despite the fact that she estimated it would be
unsuccessful when the trial court learned that Petitioner had not only graduated from high school but
had also taken several college courses.

         Trial counsel specifically remembered that Petitioner was interested in a guilty plea. He and
his family were interested in the most lenient outcome to Petitioner’s charges. Trial counsel
explained to Petitioner prior to the plea that if he went to trial he was facing a sentence of fifteen to
twenty-five years. The State initially came forward with the offer of a sentence of 13.5 years on a
Friday. The offer was extended until the following Monday in order to give Petitioner time to talk
to his family prior to accepting the offer despite the fact that the offer was given as a “today only”
offer.

        Trial counsel explained the plea offer to Petitioner. She did not remember Petitioner telling
her at any point that he was confused by the plea or did not understand the offer. In fact, trial
counsel felt that Petitioner understood the plea and never had any indication that Petitioner had
mental problems.

        Petitioner testified at the hearing on the post-conviction petition that despite his education,
he does not read or write very well. Petitioner explained to the post-conviction court that he received
assistance from another inmate in preparing his post-conviction petition.

       Petitioner did not recall receiving discovery materials from trial counsel prior to the plea
hearing. He did not remember discussing the materials with trial counsel but acknowledged that the
discussion took place prior to the entry of the plea.

        Petitioner insisted that he was pressured to accept the plea by his trial counsel. He was told
it was his best option. He felt that trial counsel was not trustworthy and was not working in his best
interest. Petitioner also explained that he felt pressured to accept the guilty plea because of the time
limit placed on his ability to accept the offer. Petitioner admitted that he pled guilty in order to
receive the sentence of 13.5 years. Further, Petitioner acknowledged that had he not pled guilty, he
would have been subjected to a fifteen to twenty-five year sentence. Petitioner also admitted that


                                                  -3-
he was unaware how he could receive less than his current sentence if the post-conviction court were
to grant relief.

        Petitioner informed the post-conviction court that he graduated from high school in 1999 and
earned mostly B’s and C’s on his report cards. Petitioner had attended at least one year of college,
during which he maintained a “D” average. Petitioner claimed that he was unable to read well but
was able to attend college and read a portion of the police report aloud from the stand with little
difficulty. At the time of his arrest, Petitioner was working for FedEx.

        Three of Petitioner’s sisters also testified at the hearing. They all described Petitioner as
“retarded” or “slow” with a penchant for trying to please authority figures. Petitioner’s sisters also
informed the post-conviction court that Petitioner was a follower.

        At the conclusion of the hearing, the post-conviction court denied relief and made extensive
findings of fact and conclusions of law. Specifically, the post-conviction court found that
Petitioner’s testimony from the guilty plea hearing and the post-conviction hearing were riddled with
inconsistencies. In other words, the post-conviction court found Petitioner’s testimony should be
afforded little credibility. The post-conviction court specifically noted the great lengths that the trial
court went to at the guilty plea hearing to ensure that Petitioner understood the ramifications of the
guilty plea. Further, the post-conviction court accredited the testimony of trial counsel concerning
her preparation for the case and the assistance she provided to Petitioner in advance of and during
plea negotiations.

        After the denial of his petition for relief, Petitioner filed a timely notice of appeal. On appeal,
Petitioner challenges the dismissal of the petition and argues that the post-conviction court
improperly ruled that trial counsel could not submit proof of Petitioner’s “substantial lack of
understanding of the rights he [wa]s alleged to have waived.”

                                              Analysis
                                 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


                                                   -4-
        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 v. State, 960 S.W.2d 572, 580 (Tenn. 1997).

        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).

         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 v. Washington, 466 U.S. 668,
694 (1984), Petitioner must establish: (1) deficient representation; and (2) prejudice resulting from
the deficiency. 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).




                                                  -5-
        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 four
or five times prior to the plea and provided him with discovery materials twice. Despite her efforts,
Petitioner claimed at the guilty plea hearing that he had not seen the discovery materials so the trial
court allowed for a recess so that Petitioner could review the documents prior to the entry of the plea.
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. Further, even though trial counsel filed a motion to suppress Petitioner’s confession
on the basis of Petitioner’s diminished mental capacity, trial counsel felt that the motion would not
likely be successful. Petitioner also felt that the testimony of one of his sisters indicated that he at
all times wanted to forego the plea and go to trial. The transcript of the guilty plea hearing, as noted
by the post-conviction court, is in direct opposition to Petitioner’s argument. The trial court went
to great lengths to discuss the ramifications of the guilt plea with Petitioner in what is undoubtedly
one of the most thorough guilty plea colloquys ever encountered by this Court. Petitioner was
repeatedly asked by the trial court if he understood the effects of the plea. Finally, Petitioner’s
frustration with the inability of the State to prosecute the remaining co-defendants has nothing to do
with the effectiveness of his trial counsel. The trial court accredited the testimony of trial counsel
and discredited Petitioner’s testimony. Petitioner has failed to show by clear and convincing
evidence that he received ineffective assistance of counsel or that his guilty plea was involuntary.
Petitioner is not entitled to relief.

                             Exclusion of Evidence of Mental Capacity

        Petitioner also argues that, in addition to receiving ineffective assistance of counsel and
entering an unknowing and involuntary plea, that the post-conviction court improperly deemed
“irrelevant” a “line of questioning [aimed at] gauging [Petitioner’s] understanding of the rights he
waived” by pleading guilty.


                                                  -6-
        At the post-conviction hearing, counsel for Petitioner launched into a line of questioning
regarding Petitioner’s mental capacity. In order to demonstrate Petitioner’s level of education and
understanding to the post-conviction court, counsel asked Petitioner to read a portion of a waiver of
rights that was similar or identical to the form that Petitioner signed at his guilty plea hearing.
Counsel then attempted to question Petitioner about the content of the material that he just read.
Petitioner stated that he did not know the meaning of some of the words in the waiver. Counsel for
the State objected, and the post-conviction court instructed counsel for Petitioner that he could only
question Petitioner about his understanding of the terms of the waiver that he signed at the guilty
plea.

        We have already concluded that the post-conviction court properly determined trial counsel’s
representation of the petitioner was not ineffective and that the guilty plea was entered voluntarily
and knowingly. The introduction of testimony from Petitioner about his understanding of a
document other than the guilty plea waiver he actually signed, read aloud at the post-conviction
hearing in order to demonstrate his mental acumen would not change that decision. The record
amply supports the denial of post-conviction relief.

                                            Conclusion

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




                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




                                                 -7-
