        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 7, 2014

               DEMOND HUGHLETT v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Tipton County
                  No. 7167   Honorable Joseph H. Walker, III, Judge


              No. W2013-02159-CCA-R3-PC - Filed November 19, 2014


The Petitioner, Demond Hughlett, appeals the denial of his petition for post-conviction relief.
He argues that counsel was ineffective in failing to obtain a determination from a medical
expert or the court regarding his competency to stand trial and in failing to inform him of his
right to file a motion to reduce his sentence or to appeal his sentence. The Petitioner also
argues that counsel’s errors rendered his guilty plea involuntary and unknowing. Upon
review, we affirm the denial of post-conviction relief.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which N ORMA M CG EE
O GLE and T IMOTHY L. E ASTER, JJ., joined.

Lyle A. Jones, Covington, Tennessee, for the Petitioner, Demond Hughlett.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Jason R. Poyner, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

        Plea Submission Hearing. At the May 10, 2012 guilty plea hearing, the State
asserted that on June 3, 2011, the Petitioner knowingly delivered .28 grams of cocaine within
a thousand feet of a daycare in Covington, Tennessee. The Petitioner stipulated to the State’s
recitation of the factual basis supporting his plea.

       The Petitioner stated that he was twenty-six years old and had a tenth grade education.
He said he had discussed the plea agreement with counsel and understood the terms of the
plea. He also said he wanted to enter a plea of guilty and was waiving his right to a trial by
jury and his right to an appeal. The trial court informed the Petitioner that he was charged
with a Class B felony, which had a sentence range of twelve to twenty years, and was
requesting that he be allowed to enter a guilty plea to a Class C felony, which carried a range
of six to ten years, although the State had recommended a ten-year sentence in his plea
agreement. See T.C.A. § 40-35-112. The trial court further informed the Petitioner that his
conviction in this case, along with his prior convictions, could be used to enhance his
punishment for future offenses. The Petitioner asserted that no one had forced him to enter
his guilty plea and that he was voluntarily entering his plea after discussing his case with
counsel because he was guilty of the offense. He said he was satisfied with counsel’s
performance. The Petitioner then entered his guilty plea to the offense of delivery of less
than .5 grams of cocaine. When the trial court asked the Petitioner if he had any questions,
the Petitioner asked about whether he could receive a sentence of probation, and counsel
explained on the record that a hearing regarding his request for probation would occur at a
later date. Although the Petitioner was charged with delivery of less than .5 grams of cocaine
in a school zone, a Class B felony, the court accepted his guilty plea to delivery of less than
.5 grams of cocaine, a Class C felony, in exchange for a sentence of ten years as a Range II,
multiple offender, with the manner of service of the sentence to be determinated at a later
hearing. See T.C.A. §§ 39-17-417, -432, 40-35-112. Because the Petitioner was on parole
in another case at the time he committed the offense in this case, his ten-year sentence was
required to be served consecutively to his prior sentence. See Tenn. R. Crim. P. 32(c)(3)(A)
(requiring consecutive sentencing for a felony committed while on parole for a felony). The
trial court later ordered that he was to serve his ten-year sentence in confinement.1

       Post-Conviction Hearing. At the August 16, 2013 post-conviction hearing, the State
entered Dr. John Hutson’s letter to counsel, the guilty plea transcript, and the presentence
investigation report as exhibits. Counsel testified that she was an assistant public defender
and began representing the Petitioner after he was indicted. She obtained discovery and
reviewed the lab report detailing the amount of cocaine involved in this case as well as the
videotape of the drug transaction. Based on the information she received from the
Petitioner’s family, counsel investigated the Petitioner’s competency to stand trial. She also
investigated the credibility of the criminal informant involved in the drug transaction.
Counsel said that although the video recording of the incident was of a poor quality and did
not show “a hand to hand transaction,” two police officers had witnessed the exchange of
drugs.




        1
          Although the record indicates that the trial court denied the Petitioner’s request for probation or
house arrest at a later hearing, a copy of the transcript from this hearing was not included in the record on
appeal.

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        When counsel investigated the Petitioner’s competency to stand trial, the Petitioner
informed her that he had been recently hospitalized at Lakeside for mental health issues. She
filed a motion to obtain funds for an expert and contacted Dr. John Hutson, a clinical
psychologist, to conduct an evaluation of the Petitioner. She said Dr. Hutson met with her
and the Petitioner for approximately two hours at the Hardeman County Correctional Facility.
While there, she had the Petitioner sign a medical release for all of the facilities where he had
been treated, and Dr. Hutson obtained these medical records. She said she never viewed the
Petitioner’s medical records because they were sent directly to Dr. Hutson. Counsel never
scheduled any hearings to consider the Petitioner’s competency at the time of the offense or
his competency to stand trial because Dr. Hutson did not believe that the Petitioner had any
issues regarding competency. Counsel stated that Dr. Hutson’s letter “put the burden [of
determining competency to stand trial] on me more so than on himself.” She said Dr. Hutson
“felt so long as I felt that [the Petitioner] was capable of working with me that he could
recommend that he [was] competent if we [were] working together.” She acknowledged that
she had never received any training in psychiatry or mental health. Counsel stated that one
of the reasons that Dr. Hutson did not believe that the Petitioner had any competency issues
was that competency had already been addressed in a prior criminal case:

       I spoke with Dr. Hutson in depth on this issue, and one of the reasons he cited
       that he did not think there was a competency issue was that the issue had
       already been looked at in previous cases. I think that [the Petitioner] had
       already been sent either to Pathways or Western State, possibly both, and that
       those records indicated that he was found competent at the time.

When she received Dr. Hutson’s letter regarding the Petitioner’s competency, she discussed
the contents of this letter with the Petitioner and discussed the possibility of a plea
agreement.

        Counsel stated that before the Petitioner’s competency evaluation, the State had
presented an offer of twelve years with a release eligibility of thirty-five percent. Following
the competency evaluation, the State presented an offer of ten years with a release eligibility
of thirty-five percent. Counsel informed the Petitioner that the offer of ten years was a good
one; however, she continued to prepare for trial. She discussed the nature of the charges and
the possible penalties for these charges with the Petitioner in the presence of Dr. Hutson for
approximately two hours. She explained that any sentence the Petitioner received on this
charge would be served consecutively to the unserved portion of his prior sentence because
he had committed the instant offense when he was on parole. She also informed him that the
charge in this case and his other charge in an unrelated case would revoke his parole. She
was confident that the Petitioner understood what they had discussed because she asked him



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to tell her how the judicial process worked, what a plea agreement was, and if there was an
offer he wanted to accept.

       Counsel said she talked to Dr. Hutson about testifying at trial, at a competency
hearing, or at a sentencing hearing when she asked him to get involved in this case.
Although Dr. Hutson agreed to testify at a competency hearing if he were needed, counsel
never scheduled a competency hearing because, based on her conversations with Dr. Hutson,
she “didn’t feel like his opinion was going to definitively prove that [the Petitioner] was not
competent to stand trial.” While acknowledging that the Petitioner had shown some evidence
of intellectual limitations and confused or confounded thinking during Dr. Hutson’s
evaluation, counsel said Dr. Hutson had opined that the Petitioner had exaggerated his
psychiatric problems. Moreover, while acknowledging that Dr. Hutson’s testimony could
have been helpful in providing mitigation proof at the sentencing hearing, she asserted that
the Petitioner and his mother were able to provide proof of his intellectual disabilities.
Counsel recognized that the Petitioner’s presentence report showed the Petitioner had been
diagnosed with schizophrenia, bipolar disease, and attention deficit disorder and had received
treatment for two weeks at Lakeside for these mental health issues. Counsel stated that if she
were able to handle the case again, she still would not have scheduled a competency hearing
because she did not believe that Dr. Hutson would have opined that the Petitioner was not
competent to stand trial. Instead, she encouraged the Petitioner to consider the plea
agreement because he was facing a sentence with a release eligibility of one hundred percent
based on his charge of delivery of drugs in a school zone, which would have required prison
time. She said that with the offer of ten years at thirty-five percent, the Petitioner had a
chance of receiving probation. However, she acknowledged that the trial court ultimately
denied the Petitioner probation. Counsel said she did not appeal the sentence because she
informed the Petitioner that it was “unlikely we’d get a different result[.]” She also said she
did not file any motions to reduce the sentence under Rule 35 of the Tennessee Rules of
Criminal Procedure. Counsel said she did not give the Petitioner any information about how
he could appeal his case pro se.

        The Petitioner testified that he did not recall any conversations that he had with
counsel and only recalled her face. He did not remember counsel working with him on his
charge. He also did not remember counsel telling him that he could appeal his sentence or
file a motion to reduce his sentence. The Petitioner said counsel mentioned that he could be
transferred to the state mental hospital one time, and he never heard anything more about it.
When he was asked if he remembered filing his post-conviction petition, he said, “Somebody
helped me with that, sir.” When he was asked if he recalled his plea submission hearing, the
Petitioner responded, “Oh, let me see. I think I’ll say yeah. I didn’t understand nothing that
was going on.” He said counsel just wanted him to “get a plea,” although he did not
understand what a plea was. The Petitioner said he told the trial court at the plea submission

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hearing that he understood what he was doing by entering his plea, even though he did not
understand the consequences of pleading guilty.

       Following the hearing, the post-conviction court accredited the Petitioner’s statements
during the plea colloquy over his testimony at post-conviction hearing. After considering the
evidence from the plea submission hearing and the post-conviction hearing, the court held
that the Petitioner had failed to establish that counsel’s performance was deficient or
prejudicial or that his plea was unknowing or involuntary.

                                       ANALYSIS

       The Petitioner argues that counsel was ineffective in failing to obtain a determination
from a medical expert or the court regarding his competency to stand trial and in failing to
inform him of his right to file a motion to reduce his sentence or to appeal his sentence. The
Petitioner also argues that counsel’s errors rendered his guilty plea involuntary and
unknowing. We conclude that the court properly denied post-conviction relief.

       Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation marks
omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State, 303 S.W.3d
674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of proving the factual
allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Tenn. Sup. Ct. R. 28,
§ 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). Evidence is considered
clear and convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); Grindstaff v.
State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998).



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       In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)). “[A] failure to
prove either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. Indeed, a court need not address the components in any
particular order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S.
at 697).

       A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney’s conduct fell “below an objective standard of reasonableness
under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S. at 688; Baxter,
523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the petitioner
establishes “‘a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting Strickland, 466
U.S. at 694). In order to satisfy the “prejudice” requirement in the context of a guilty plea,
“the petitioner must show that, but for counsel’s errors, he would not have entered into the
sentencing agreement.” Serrano v. State, 133 S.W.3d 599, 605 (Tenn. 2004) (citing Hill v.
Lockhart, 474 U.S. 52, 59 (1985)).

        The validity of a guilty plea is a mixed question of law and fact that is reviewed de
novo. Lane, 316 S.W.3d at 562. To be valid, a guilty plea must be entered knowingly,
voluntarily, and intelligently. Id. (citing State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977);
North Carolina v. Alford, 400 U.S. 25, 31 (1970); Brady v. United States, 397 U.S. 742, 747
(1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969)). “[T]he record of acceptance of
a defendant’s plea of guilty must affirmatively demonstrate that his decision was both
voluntary and knowledgeable, i.e., that he has been made aware of the significant
consequences of such a plea[.]” Mackey, 553 S.W.2d at 340; see Tenn. R. Crim. P. 11(b)(1).
When determining whether a guilty plea was knowingly, voluntarily, and intelligently
entered, the court must consider “‘whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the defendant.’” Lane, 316 S.W.3d
at 562 (quoting Grindstaff, 297 S.W.3d at 218). If a guilty plea is not knowingly, voluntarily,
and intelligently entered, then the defendant has been denied due process, and the guilty plea
is void. Id. (citations omitted).

        A plea is not voluntary if it is the result of “‘[i]gnorance, incomprehension, coercion,
terror, inducements, [or] subtle or blatant threats . . . .’” Blankenship v. State, 858 S.W.2d
897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43). In determining whether a

                                              -6-
guilty plea is voluntarily and intelligently entered, a trial court must look at a number of
factors, which include the following:

       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.

Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006) (citing Blankenship, 858 S.W.2d at
904).

        The Petitioner asserts that his plea was unknowingly and involuntarily entered without
the effective assistance of counsel. He claims counsel did not obtain a determination from
a medical expert or the court regarding his competency to stand trial and did not inform him
of his right to file a motion to reduce his sentence or his right to appeal his sentence.

        We conclude the court properly denied post-conviction relief. The record shows
counsel obtained the services of Dr. Hutson, a clinical psychologist, to evaluate the
Petitioner’s competency to stand trial. Dr. Hutson opined that as long as “[the Petitioner
was] working with [counsel] and [was] capable of working with [counsel],” he was
“competent to proceed with the disposition of his charges.” Although the Petitioner was
charged with a Class B felony and faced a sentence of twelve to twenty years with a release
eligibility of one hundred percent, counsel was able to negotiate a plea deal to a Class C
felony in exchange for a ten-year sentence with a release eligibility of thirty-five percent,
which was ultimately accepted by the trial court. While counsel acknowledged that she did
not appeal the Petitioner’s sentence and did not file any motions to reduce his sentence, she
asserted that it was “unlikely we’d get a different result” had she done so. We note that any
relief on appeal regarding the Petitioner’s sentence would have been limited to whether the
trial court should have imposed an alternative sentence rather than a sentence of confinement
because the manner of service of the ten-year sentence was the only sentencing issue not
covered by the plea agreement. See Tenn. R. Crim. P. 37(b)(2)(B). Moreover, it is unlikely
that the Petitioner would have received any relief from his plea agreement at the trial court
level because Rule 35(b) only permits modification of a sentence in the interest of justice.
See Tenn. R. Crim. P. 35(b), Advisory Comm’n Comment; State v. McDonald, 893 S.W.2d
945, 947 (Tenn. Crim. App. 1994). We fail to see how the Petitioner was prejudiced by
counsel’s failure to seek relief on his sentence, given his extensive criminal history involving
drug offenses. The Petitioner, at the time he entered his guilty plea in this case, had violated
his parole on a twenty-two-year sentence for multiple cocaine convictions by committing the


                                              -7-
cocaine offense in this case. The transcript from the plea submission hearing shows that the
trial court properly advised the Petitioner of his rights, the charge against him, and the
consequences of entering a guilty plea and demonstrates that the Petitioner was satisfied with
counsel’s performance. Moreover, the evidence at the post-conviction hearing establishes
that the Petitioner entered his guilty plea because he was in fact guilty of the charged offense,
which was memorialized in a videotape of the drug transaction, and because he was facing
a substantially harsher sentence if convicted at trial. Although the Petitioner claims that
expert testimony would have established he was incompetent to stand trial, he failed to
present any expert witnesses at the post-conviction hearing. See Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990) (concluding that a post-conviction petitioner generally
fails to establish his claim that counsel did not properly investigate or call a witness if the
petitioner did not present the witness to the post-conviction court because “neither a trial
judge nor an appellate court can speculate or guess [about] what a witness’s testimony might
have been if introduced”). Accordingly, we agree with the post-conviction court that the
Petitioner failed to establish that counsel’s performance was ineffective or that the plea he
entered was unknowing, involuntary, or unintelligent.

                                      CONCLUSION

        The Petitioner has failed to establish that he received ineffective assistance of counsel
or that his guilty plea was unknowingly, involuntarily, or unintelligently entered. The denial
of post-conviction relief is affirmed.

                                                     ___________________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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