         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      July 12, 2005 Session

                      ROY WILSON v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-27002    Arthur T. Bennett, Judge



                    No. W2004-01256-CCA-R3-PC - Filed August 31, 2005


The petitioner, Roy Wilson, pled guilty to four (4) counts of aggravated rape, eleven (11) counts of
especially aggravated kidnapping, seven (7) counts of aggravated robbery, and two (2) counts of
aggravated burglary, for convictions stemming from multiple indictments. As a result of the guilty
pleas, the petitioner received a fifteen (15) year sentence for one (1) of the aggravated rape
convictions that was ordered to run consecutive to all of the other convictions, which ran concurrent
to each other for a total of fifteen (15) years, for a total effective sentence of thirty (30) years. The
petitioner filed a pro se petition for post-conviction relief based upon ineffective assistance of
counsel with respect to his guilty plea on one (1) of the aggravated rape convictions. After an
evidentiary hearing, the post-conviction court denied the petition. On appeal, the petitioner
challenges the trial court’s denial of the petition. Because the petitioner failed to prove that he
received ineffective assistance of counsel or that his guilty plea was involuntary, we affirm the
judgment of the post-conviction court.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
NORMA MCGEE OGLE, JJ., joined.

Paul J. Springer, Memphis, Tennessee, for the appellant, Roy Wilson.

Paul G. Summers, Attorney General and Reporter; Seth Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Chris Scruggs, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                              OPINION

        In 1999, the Shelby County Grand Jury returned multiple indictments against the petitioner
arising out of two (2) separate events, occurring on July 21 and August 31, 1999. Pursuant to a plea
agreement with the State, several of the charges were dismissed or nolle prossed in exchange for
guilty pleas to four (4) counts of aggravated rape, eleven (11) counts of especially aggravated
kidnapping, seven (7) counts of aggravated robbery and two (2) counts of aggravated burglary. As
a result, the petitioner received an effective sentence of thirty (30) years. During the plea hearing,
the prosecutor stated that if the case had gone to trial, the State would have proven that:

               On August 31st, 1999, late in the evening, the victims in this case, Cory
       Johnson and Tiffany Porter returned with their two small children, . . . to their
       apartment on Commonwealth Avenue, found a group of gentlemen standing outside.
       As the victims walked up the stairs in their apartment complex, four - the defendant
       and the co-defendants approached them at gunpoint, at which point the victim, Cory
       Johnson, tried to escape by running away. The defendant fired a shot. The victim
       was not hit, but he returned and was forced into the apartment at gunpoint.

              Once inside the apartment, the victims were split. Ms. Porter and her children
       were forced into a bedroom. A pillowcase or mask was put over her head as was Mr.
       Johnson who was taken into the kitchen . . . .

              Mr. Johnson was stabbed repeatedly in the leg. Money was demanded of him.
       Threats were made to him.

                In the bedroom where Ms. Porter and her children were, she was forcibly
       raped several times and later was forced to go to the bathroom to the bathtub to wash
       herself - to wash away the evidence of the crime. While she was left in the bathroom,
       . . . Cory Johnson, was able to escaped [sic] jumped out of the . . . window . . . and
       was able to run for help.

                       ....

              Ms. Porter had numerous items of personal property stolen in that incident
       from the apartment.

                       ....

              [T]he facts would [also] be on July 21st, 1999, the defendant and his co-
       defendants in that matter went to a house at 5063 Christopher. Inside of the house
       were Dena Taylor and Albert Smith and Mr. Smith’s eight-year-old son, Kevin.

                Initially Rashe Moore and Genore Dancy entered the apartment, ordered all
       the occupants to strip, demanded money at gunpoint. Eventually they were forced
       to strip and removed to the kitchen. The co-defendants, including the defendant, later
       joined in the apartment, and while they were in robbing . . . other victims . . . came
       up to the apartment . . . and were forced inside at gunpoint . . . .


                                                 -2-
                As those victims arrived at the apartment while the crimes were going on,
        they were each forced to strip, robbed of their personal belongings, and forced into
        the kitchen where the entire group was bound by duct tape, a sheet was put over their
        heads to cover them . . . .

               In the course of the kidnapping, Shauntel Knox and Latoya Knox were each
        separately raped by one of the defendants. Dena Taylor was initially raped by Genore
        Dancy. Then after the others had arrived, she was pulled out of the . . . kitchen. She
        was pulled out and raped by several of the defendants . . . .

                When the defendants left the house, they left . . . in one of the victim’s trucks.

        The petitioner subsequently filed a petition for post-conviction relief, alleging ineffective
assistance of counsel with respect to his guilty plea on one (1) of the aggravated rape conviction that
ran consecutively to the sentences on the other convictions.

                                        Post-Conviction Hearing

         The post-conviction court held an evidentiary hearing on the petition on February 12, 2004.
The evidence at the hearing consisted of the following. The petitioner testified that his trial counsel
was ineffective because he forced the petitioner into pleading guilty by explaining to him that the
plea was his “best option.” The petitioner felt that trial counsel was ineffective because he failed to
call two (2) witnesses, failed to give the petitioner discovery on the aggravated rape conviction that
ran consecutive to the other charges and never gave the petitioner the results of the DNA testing.
The petitioner admitted that trial counsel visited with him approximately two (2) or three (3) times
while he was awaiting trial. The petitioner stated that he told counsel repeatedly that he wanted to
go to trial and claimed that the matter was set for trial five (5) or six (6) times prior to the guilty plea
hearing. The petitioner stated that he felt he was being forced into the guilty plea when his attorney
told him he was going to lose at trial and that the trial court would give him a 1,700-year sentence.

       The petitioner conceded on cross-examination that he participated in a lengthy plea colloquy
with the trial judge and was asked whether he was entering the plea of guilty freely and voluntarily
and that he responded affirmatively to the trial judge’s questions. The petitioner also admitted that
this was not his first guilty plea.

         The assistant district attorney that handled the case for the State testified that, if convicted
on all the charges as indicted, the petitioner was facing a possible sentence of 1,410 years. The
State’s attorney also stated that the petitioner was set to enter a plea in the case herein on two (2)
separate occasions. On the first occasion, the plea was withdrawn for unspecified reasons. On the
second occasion, the petitioner went through with the plea. The assistant district attorney explained
that he provided the petitioner’s trial counsel with all the discovery and DNA evidence that was in
the file and that the State was prepared to proceed to trial on a criminal responsibility theory.


                                                    -3-
         Trial counsel for the petitioner was unavailable to testify. According to the attorney for the
State, trial counsel for the petitioner was not practicing law at the time of the post-conviction hearing
because his license had been suspended for failure to complete the mandatory continuing legal
education requirements.1

        The post-conviction court denied the petition after hearing the evidence. On appeal, the
petitioner argues that his guilty plea was not knowingly and voluntarily entered and that he received
ineffective assistance of counsel.

                                       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

        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


        1
            Despite trial counsel’s suspension, we fail to see why counsel was unable to testify as a witness.

                                                            -4-
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).

       In the case herein, the petitioner argues that trial counsel was ineffective because he failed
to properly investigate the case and did not provide the petitioner with discovery materials and the
evidence against him. Further, the petitioner argues that trial counsel forced him to plead guilty.

       After listening to the testimony at the post-conviction hearing, the trial court determined that

       [T]he Court has heard your Post Conviction Petition and you’re petitioning the Court
       in this one case here of aggravated rape, . . . . You entered a guilty plea to this case
       along with a lot of others of aggravated rapes, other aggravated kidnappings and
       things.

                       ....

              And you were not a novice like you had indicated initially. You were a
       multiple offender, had numerous convictions before all of these convictions came.
       I mean, all of these cases came about. So it’s not a situation that you’re in a dither
       as to what’s going on. You knew what was going on.

               And the Judge asked you all these questions about whether you wanted to
       plead guilty, whether you’re doing it freely and voluntarily, anyone threatening you,
       forcing you, coercing you, anything like that. You said no. And you were somebody
       that had been through the system knowing this had been asked you numerous
       occasions in the past. So you’re not telling me, you’re not telling this Court that you
       didn’t know what you could do.

               You knew what you could do. You could have just said I want a trial and
       stayed with that, or told the Judge when he asked you these questions, that I want a
       trial, Your Honor. My attorney is saying that I should go ahead and enter a plea of
       guilty to this and accept this offer, but I want a trial. You knew you had - - you
       weren’t scared to do that.

              Now, attorney’s job is to help you. In other words to give you his best advise.
       His advice is his stock and trade . . . . [H]e . . . may have suggested to you that you


                                                 -5-
        need to take this offer because based on all of these cases and your background,
        you’re at least a Range 2 offender, multiple offender, and this offer of 30 - - dropped
        it from 60 to 30 total.

                 And I find no ineffective assistance of counsel at all on this. I find - - what
        I find is you’re coming back some years later because you are not satisfied now with
        the fact that you’re serving the time. I don’t find that you didn’t know what was
        going on, that you did not know what you were doing at the time.

                        ....

                Alright, so the Court’s of the opinion that I don’t see anything in this hearing
        that would indicate that this defendant did not plead freely and voluntarily, and he
        knew what he was doing when he pled guilty to all of these charges. And there’s no
        ineffective assistance of counsel at all in this matter.

         In order for the petitioner to prevail herein, he must show, by clear and convincing evidence,
that his attorney failed to properly advise him of the possible consequences of his plea and that trial
counsel’s failure to do so resulted in prejudice. 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, the 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. at 687, the 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, the 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).

        The record does not preponderate against the finding that trial counsel was effective. Implicit
in the post-conviction court’s findings and conclusions was that the court did not accept the
testimony of the petitioner as credible. “[Q]uestions of credibility of the witnesses, the weight and
value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial
judge as the trier of fact.” State v. Odum, 928 S.W.2d 18, 23 (Tenn.1996). As stated previously,
this Court affords 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.
After a de novo review, we conclude that the evidence in the record does not preponderate against
the post-conviction court’s decision that trial counsel was effective.

                                 Voluntary and Knowing Guilty Plea


                                                  -6-
       The second issue raised by the petitioner in this post-conviction appeal questions the knowing
and voluntary nature of his guilty plea.

        When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.” Alford, 400
U.S. at 30. The court reviewing the voluntariness of a guilty plea must look to the totality of the
circumstances. See State v. Turner, 191 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also
Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). Specifically, a reviewing
court must consider “the relative intelligence of the defendant; the degree of his familiarity with
criminal proceedings; whether he was represented by competent counsel and had the opportunity to
confer with counsel about the options available to him; the extent of advice from counsel and the
court concerning the charges against him; and the reasons for his decision to plead guilty, including
a desire to avoid a greater penalty that might result from a jury trial.” Blankenship v. State, 858
S.W.2d 897, 904 (Tenn. 1993).

        A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Id. at 904. 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. State
v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999); Blankenship, 858 S.W.2d at 904.

        In Boykin v. Alabama, the United States Supreme Court held that an accused’s guilty plea
must be voluntarily, knowingly, and understandingly entered before a conviction resting upon a
guilty plea may comply with due process. 395 U.S. 238 (1969). In Boykin, the Supreme Court
stated that a guilty plea constituted a waiver of various rights and that it would not presume a waiver
of the following federal constitutional rights from a silent record: (1) the privilege against
compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront one’s
accusers. Id. at 242. Thus, Boykin placed a premium on a showing in the record of a sufficient
waiver of these specified rights.

         Exercising “its supervisory power to [e]nsure that the courts of this State afford fairness and
justice to defendants in criminal cases,” our Supreme Court, in State v. Mackey, 553 S.W.2d 337,
340-41 (Tenn. 1977), developed stricter standards than those mandated by the Boykin decision,
superseded on other grounds by Tenn. R. Crim. P. 37(b) & Tenn. R. App. P. 3(b). Mackey requires
that trial judges accepting pleas of guilty in criminal cases substantially adhere to the following
procedure:

       [T]he court must address the defendant personally in open court and inform him of,
       and determine that he understands, the following:
       (1) The nature of the charge to which the plea is offered, and the mandatory
       minimum penalty provided by law, if any, and the maximum possible penalty
       provided by law; and, if applicable, that a different or additional punishment may
       result by reason of his prior convictions or other factors which may be established in


                                                  -7-
       the present action after the entry of his plea; and
       (2) If the defendant is not represented by an attorney, that he has a right to be
       represented by an attorney at every stage of the proceeding against him, and if
       necessary, one will be appointed to represent him; and
       (3) That he has a right to plead not guilty or to persist in that plea if it has already
       been made, and, that he has the right to be tried by a jury and at that trial has the right
       to the assistance of counsel, the right to confront and cross-examine witnesses against
       him, and the right not to be compelled to incriminate himself; and
       (4) That if he pleads guilty, there will not be a further trial of any kind except to
       determine the sentence so that by pleading guilty he waives the right to a trial; and
       (5) That if he pleads guilty, the court or the state may ask him questions about the
       offense to which he has pleaded, and if he answers these questions under oath, on the
       record, and in the presence of counsel, his answers may later be used against him in
       a prosecution for perjury or false statement, and, further, that, upon the sentencing
       hearing, evidence of any prior convictions may be presented to the judge or jury for
       their consideration in determining punishment.

Id. at 341. The Mackey court also stated:

       The court shall not accept a plea of guilty without first, by addressing the defendant
       personally in open court, determining that the plea is voluntary and not the result of
       force or threats or of promises apart from a plea agreement. The court shall also
       inquire as to whether the defendant’s willingness to plead guilty results from prior
       discussions between the District Attorney General and the defendant or his attorney.

Id. The Mackey requirements have been adopted into Rule 11 of the Tennessee Rules of Criminal
Procedure.

        The lengthy colloquy between the petitioner and the trial court at the plea hearing indicates
that the trial court asked the petitioner if the plea was freely and voluntarily made; if he had been
informed of the elements of the crime, burden of proof, and defenses; and if he understood: (1) the
nature of the charges against him; (2) that by pleading guilty he was giving up the right to a trial by
jury; (3) that by pleading guilty he was giving up the right to confront witnesses; and (4) that by
pleading guilty he was giving up the right to self-incrimination. In other words, the trial court
satisfied the requirements of Boykin. Moreover, the petitioner had pled guilty in the past and
presumably was aware of his options even before this colloquy, The petitioner has failed to prove
that his guilty plea was not knowing or voluntary. This issue is without merit.




                                              Conclusion


                                                  -8-
For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                                     ___________________________________
                                     JERRY L. SMITH, JUDGE




                                        -9-
