        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs July 23, 2013

               STEVEN A. PUGH, JR. V. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Hamblen County
                        No. 11CR696     John Dugger, Judge


               No. E2012-02649-CCA-R3-PC - Filed September 9, 2013


The petitioner, Stephen A. Pugh, Jr., appeals the denial of his petition for post-conviction
relief. Specifically, he contends that trial counsel was ineffective by failing to recognize a
defective indictment and by allowing the petitioner to plead guilty under that indictment,
which did not charge a crime recognized under the law of Tennessee. The petitioner is
currently serving an effective seventeen-year sentence in the Department of Correction
following his guilty plea to two counts of attempted first degree murder. Following review,
we affirm the denial of relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and J EFFREY S. B IVINS, JJ., joined.

Douglas L. Payne, Greeneville, Tennessee, for the appellant, Steven A. Pugh, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle Consiglio-Young, Assistant
Attorney General; C. Berkeley Bell, District Attorney General; and Victor Vaughn, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Procedural History

        The petitioner is currently serving two concurrent seventeen-year sentences, as a
Range I offender, after he entered a best interest guilty plea to two counts of attempted first
degree murder. The convictions are based upon the act of shooting his pregnant girlfriend
in the stomach.
       A Hamblen County grand jury returned a two-count indictment in the case.1
According to the captions of the indictment, the petitioner was charged with two counts of
attempted first degree felony murder. However, in the body, the first count of the indictment
charged that the petitioner did “intentionally and premeditatedly attempt[ ] to kill [the victim]
by shooting her with a handgun.” Count two charged that the petitioner did “intentionally
and premeditatedly attempt[ ] to kill the unborn viable fetus of [the victim] by shooting [the
victim] in the stomach with a handgun.” In the caption of count two, the word “felony” was
stricken, and the change was initialed by the district attorney general and the foreman of the
grand jury. No amendment was made to the caption in count one.

        At the guilty plea submission hearing, the trial court summarized the charges against
the petitioner, indicating that he was charged with two counts of attempted first degree
murder. No mention was made of attempted felony murder. The court further explained the
elements of the offense to the petitioner, and he stated that he understood the charges against
him. The petitioner also stated that trial counsel had reviewed the lesser-included offenses
of the charged offense and had explained the consequences of entering the best interest guilty
plea. The petitioner stated that, based upon the evidence in the case, it was in his best
interest to accept the State’s offer. After accepting the plea, the court imposed concurrent
seventeen-year sentences in the case, which were ordered to be served consecutively to a
one-year sentence imposed in a probation violation case.

       Thereafter, the petitioner filed a timely pro se petition for post-conviction relief
alleging, among other grounds, that he was denied his right to the effective assistance of
counsel. Following the appointment of counsel, an amended petition was filed. A hearing
was later held, at which two attorneys and the petitioner testified.

       Trial counsel testified that the petitioner was originally represented by private counsel,
but the petitioner requested a change after his initial attorney attempted to settle the case.
Consequently, after his appointment, trial counsel did not initially discuss a possible plea
with either the petitioner or the State. Trial counsel testified that he and the petitioner
discussed possible defenses and that an investigation was conducted. As the investigation
continued, trial counsel was told by the petitioner that he was considering entering a plea.
Trial counsel testified that he then approached the State and began negotiations. However,
he was clear that the investigation continued up until the plea was accepted.

       Trial counsel also testified that he was aware of the wording in the caption of the
indictment and believed it was not fatal to the State’s case as it “could be corrected fairly


        1
         There is some indication in the record that the grand jury may have initially returned two separate
indictments, which were later joined.

                                                    -2-
simply.” According to trial counsel, the proper elements of first degree murder were listed
in the body, and the indictment could be remedied by “simply strik[ing] out the felony in
front of murder.” Trial counsel testified further that he did not see the variation as being
useful except as a possible attempt to “buy time” if they needed it before trial. While
testifying that they did discuss the indictment in general and the charges against the
petitioner, trial counsel did not recall discussing the variation with the petitioner.
Specifically, he stated that they did discuss how the indictment was worded but not that the
indictment varied from the plea agreement. He also acknowledged that the issue was never
discussed with the trial court.

       On cross-examination, trial counsel testified that he believed that the petitioner was
aware that he was pleading guilty to two counts of attempted first degree murder and, further,
was aware of the consequences of entering the plea. Trial counsel stated that there was no
discussion between himself and the petitioner of pleading to attempted felony murder.

        The petitioner testified that he met with trial counsel on several occasions and that
trial counsel did a “good job” meeting with him. He indicated that there were discussions
regarding the investigation of the case with both trial counsel and an investigator. However,
the petitioner felt that trial counsel was not prepared to go to trial, and, as a result, he began
discussing the possibility of a plea in the case. The petitioner testified that trial counsel told
him that if he did not accept a plea agreement, he would likely spend the rest of his life in
prison. The petitioner stated he was given two days to decide whether he wanted to enter a
guilty plea and decided it was in his best interest to do so.

        The petitioner testified that he first became aware of a variance between the crimes
he pled guilty to, attempted first degree murder, and the crime for which he had been
indicted, attempted felony murder, while researching his possible post-conviction in prison.
According to the petitioner, he discovered a case that held that attempted felony murder was
not a recognized crime in Tennessee.

        The petitioner also testified that trial counsel never discussed with him the difference
between the wording of the indictment and that on the guilty plea form. According to the
petitioner, trial counsel told him that he was entering a plea to two counts of attempted first
degree murder. The petitioner also acknowledged that at the guilty plea hearing, the trial
court enumerated the elements of attempted first degree murder, and he entered his pleas to
that crime. There was no mention of attempted felony murder at the hearing. However, he
testified that he now did not believe it was fair that he had entered a plea for crimes not
included in the indictments.

       After hearing the evidence presented, the post-conviction court took the matter under

                                               -3-
advisement. The court subsequently entered a written order denying the petition for post-
conviction relief. The petitioner has timely appealed that denial.

                                            Analysis

       On appeal, the petitioner contends that the post-conviction court erred in concluding
that he was denied his right to the effective assistance of counsel. His only allegation of
ineffective assistance is that trial counsel failed to recognize the defective indictment and
allowed the petitioner to plead guilty under an indictment which did not charge recognized
crimes under Tennessee law. The petitioner further argues that his pleas were not entered
knowingly and voluntarily based upon trial counsel’s alleged deficient performance.

       In 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.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). In making this determination,
the reviewing court must look to the totality of the circumstances. State v. Turner, 919
S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534,
542 (Tenn. Crim. App. 1990). Indeed, a

       court charged with determining whether . . . pleas were “voluntary” and
       “intelligent” must look to various circumstantial factors, such as 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). 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 that
guilty pleas be voluntarily and intelligently made. Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(citing Alford, 400 U.S. at 31).

       To succeed in a challenge for ineffective assistance of counsel, a petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded of
attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under
Strickland v. Washington, 466 U.S. 668, 687 (1984), the petitioner must establish (1)
deficient representation and (2) prejudice resulting from the deficiency. In the context of a

                                               -4-
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.” Lockhart, 474 U.S. at 59; see also Walton v. State,
966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). The petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably-based trial strategy, and cannot criticize a
sound, but unsuccessful, tactical decision made during the course of the proceeding. Adkins
v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This deference to the tactical
decisions of trial counsel, however, is dependent upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).

        The issues of deficient performance by counsel and possible prejudice to the defense
are mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A
trial court’s findings of fact underlying a claim of ineffective assistance of counsel are
reviewed on appeal under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d)). However, conclusions of
law are reviewed under a purely de novo standard, with no presumption of correctness. Id.
at 458.

        Again, on appeal, the petitioner’s only claim of ineffective assistance of counsel is
based upon trial counsel’s failing to recognize that the indictment was defective and in
allowing the petitioner to plead pursuant to an indictment which charged a crime not
recognized by Tennessee law. He claims that the trial court was without jurisdiction to enter
judgment because the indictment, on its face, charged crimes not recognized and further
failed to state what the predicate underlying felony is. In denying relief, the post-conviction
court made the following relevant findings in its order:

               Petitioner testified that there was a variance between his indictment and
       his convicted offense. Petitioner correctly said that Attempted Felony Murder
       is not an offense. On cross-examination, Petitioner testified that he entered the
       best interest plea because it was in his best interest to plea and accept the
       agreement. Petitioner agreed that his plea was two counts of Attempted First
       Degree Murder and there was nothing about “felony” murder mentioned. . . .

               Petitioner’s first alleged ground in his amended petition challenges the
       legality of the indictments and alleges the attorneys were ineffective for not
       filing to dismiss the indictments. The Tennessee Supreme Court . . . [has] held
       that: “An indictment is sufficient to satisfy the constitutional guarantees of
       notice to the accused if the indictment contains allegations that: (1) Enables the

                                              -5-
       accused to know the accusations to which answer is required; (2) Furnish the
       trial court an adequate basis for entry of a proper judgment; and (3) Protect the
       accused from a subsequent prosecution of the same offense. The indictments
       in this cause erroneously alleged attempted first degree felony murder but
       correctly stated the elements and Tennessee Code Annotated Sections for
       Attempted First Degree Murder. During the evidentiary hearing Petitioner’s
       trial attorney . . . testified he noticed the issue of attempted first degree felony
       murder in the indictment but did not file a Motion to Dismiss because it could
       have been a quick fix by the State moving to strike the word felony. On pages
       3-7 of Exhibit 3 plea allocution transcript, the Court explained the elements
       with definitions of Attempted First Degree Murder. Petitioner was asked if he
       understood and Petitioner answered “Yes.” The Court finds that the two
       indictments satisfy the three requirements for the constitutional guarantees of
       notice to the accused as set forth in State v. Hammonds, 30 S.W.3d 299 (Tenn.
       2000).

              ....

              Petitioner is simply not credible on his allegations that he was denied
       the effective assistance of counsel or that his best interest plea was
       involuntary. Petitioner testified during plea allocution that [trial counsel]
       explained his waiver of rights and plea of guilty, possible lesser included
       offenses and he was satisfied with [trial counsel] and that he did everything he
       wanted him to do. During the [post-conviction] evidentiary hearing, Petitioner
       surprised the court by testifying on cross-examination that he entered his best
       interest plea because he thought it was in his best interest to do so. By that
       testimony, it is clear to the Court that Petitioner knew what he was charged
       with, knew the evidence against him and he, knowingly, voluntarily and
       understandably entered his best interest plea.

        After review, we find nothing in the record before us which preponderates against the
post-conviction court’s findings. We agree with the petitioner that the caption of count one
of his indictment purports to charge attempted first degree felony murder, and we recognize
that attempted first degree felony murder is not a crime in Tennessee. See State v.
Kimbrough, 924 S.W.3d 888 (1996). However, the petitioner did not enter a plea to that
crime; rather, he pled guilty to the crime which was expressly charged within the body of the
indictment, ie., attempted first degree murder. He acknowledged that there was never a
mention of felony murder by either trial counsel or the court. The petitioner was clearly
aware of the charges to which he pled guilty and chose to enter that plea, by his own
testimony, because it was in his own best interest to do so.

                                               -6-
       As did the post-conviction court, we conclude that the indictments in this case gave
more than ample notice of the crimes alleged. Just as the post-conviction court noted, the
purpose of an indictment is to provide a defendant with notice of the offense charged,
provide the trial court with an adequate ground upon which a judgment may be entered, and
provide a defendant with protection against double jeopardy. See State v. Hill, 954 S.W.2d
725, 727 (Tenn. 1997). The body of this indictment was amply clear that the petitioner was
being charged with attempted first degree premeditated murder, setting out the elements and
referencing the appropriate statutes for the charge. He in no way stands to be prosecuted
again for the same acts against the victim and her child. Judgments were appropriately
entered. Despite the improper captions, the indictment at issue in this case satisfied the
requirements.

       The petitioner has simply failed to carry his burden of establishing that trial counsel
offered defective representation or that he was prejudiced. According to trial counsel’s
testimony, he did recognize the error on the indictments. He was aware that it would be a
“simple fix” should he choose to challenge the indictment because, in his opinion, proper
notice was given by the indictment. As he prepared for trial, he saw the error only as a way
to “buy time” should the need arise. The petitioner’s decision to enter a guilty plea negated
the need for possible additional time. Moreover, trial counsel did not allow the petitioner to
plead guilty to a crime not recognized by Tennessee law. The petitioner pled guilty to the
appropriate crimes, and he has failed to show in any way how trial counsel was deficient in
allowing him to enter the plea.

        There can be no other conclusion in this case than that the petitioner knew the crime
for which he was charged, knew the evidence against him, and that he knowingly and
voluntarily entered the plea because it was in his best interest to do so. His own testimony
at the post-conviction court supports that conclusion. His testimony that he pled guilty
because it was in his best interest to do so precluded a conclusion by the post-conviction
court or this court that the petitioner proved that, but for any error made by trial counsel, he
would have insisted upon going to trial. The petitioner stood before the court at the plea
submission hearing and stated that he understood the charges against him and that he
voluntarily chose to enter the pleas. The petitioner cannot not disavow that testimony in an
attempt to circumvent the bargain that he made and entered into. He has failed to establish
his entitlement to relief in this case.

                                       CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                              -7-
      _________________________________

      JOHN EVERETT WILLIAMS, JUDGE




-8-
