            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                               Assigned on Briefs July 21, 2010

               ANN MARIE SHANNON v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Rutherford County
                               No. 63434 Don R. Ash, Judge



                    No. M2009-02375-CCA-R3-PC - Filed January 20, 2011


The Rutherford County Grand Jury indicted Petitioner, Ann Marie Shannon, for four counts
including one count of driving under the influence (“DUI”), second offense. On June 19,
2009, Petitioner entered a negotiated plea agreement to DUI, first offense. Pursuant to the
agreement, she was ordered to serve forty-eight hours in the Swaim Center1 and serve eleven
months and twenty-nine days on probation. Petitioner subsequently filed a petition for post-
conviction relief arguing that she received ineffective assistance of counsel. After an
evidentiary hearing, the post-conviction court denied the petition. We have reviewed the
record on appeal and conclude that the evidence does not preponderate against the findings
of the post-conviction court. Therefore, we affirm the post-conviction court’s denial of the
petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which A LAN E. G LENN and R OBERT
W. W EDEMEYER, JJ., joined.

Jason N. King, Smyrna, Tennessee, for the appellant, Ann Marie Shannon.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General, and Trevor Lynch, Assistant
District Attorney General, for the appellee, State of Tennessee.




        1
          Although it is not clear from the record, it appears the Swaim Center is an addiction treatment
facility and a school for DUI offenders.
                                          OPINION

                                     Factual Background

                                          Guilty Plea

       Petitioner was indicted for one count of DUI, second offense; one count of driving
while license suspended, cancelled, or revoked; one count of violation of financial
responsibility; and one count of violation of registration law. On June 19, 2009, Petitioner
entered a negotiated guilty plea to one count of DUI, first offense. The other three counts
were dismissed. Pursuant to the plea agreement, Petitioner was sentenced to eleven months
and twenty-nine days. All but forty-eight hours of the sentence was suspended. Petitioner
was ordered to serve forty-eight hours in the Swaim Center within thirty days of the guilty
plea hearing. She was placed on probation for eleven months and twenty-nine days. She was
also required to perform twenty-four hours of public service of litter removal, however, if her
physical disabilities prevented her from participating, an alternative public service could be
substituted. She was also required to pay a $350 fine and court costs. Finally, she was
required to attend and complete alcohol safety school.

                                  Post-conviction Petition

      On August 4, 2009, Petitioner filed a pro se petition for post-conviction relief. An
amended petition alleging ineffective assistance of counsel was filed by court-appointed
counsel on September 4, 2009. On October 26, 2009, the post-conviction court held an
evidentiary hearing on the petition.

        Petitioner testified at the hearing. She stated that she suffers from Guillian-Barre
Syndrome which is neurological disorder. The disorder affects her mobility. She admitted
that she pled guilty to DUI, first offense. She stated that the reason she pled guilty is because
she has a young son. She also pled because she would be able to serve her forty-eight hours
in the Swaim Center. She admitted that she spoke with trial counsel about her disability.
They spoke about the jail being less comfortable than the Swaim Center and that the jail
could not manage her drug therapy which included seven separate drugs and her other
medical needs.

        However, she maintained at the hearing that she could not afford the $350 charge for
the Swaim center in addition to her court costs and fines which totaled almost $2,000. She
testified that she was not anticipating a hefty fine for her DUI conviction in addition to the
court costs and the Swaim Center charges. She knew that there would be an extra charge for

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the Swaim Center but thought that it would be $200 or $300. She figured she could afford
that amount. She stated that if she had known she would be serving her time in jail instead
of the Swaim Center, she would have gone to trial.

        On cross-examination, she admitted that she has previously been convicted of DUI,
first offense. On that occasion, the fine was about $1,000. She did not anticipate such a high
fine for the conviction in question because she believed that the fine was calculated on the
defendant’s income. At the time she was convicted of the first DUI, she was living on
disability and was not working. She testified that she did not pay her Swaim Center fee
because the probation department was very insistent that she pay her probation fees.

        She stated that trial counsel had pushed her into pleading guilty. She believed that this
was not fair when he knew her financial situation. She admitted that trial counsel did advise
her about the potential sentence if she went to trial on DUI, second offense. She admitted
that trial counsel informed her that she would have a minimum jail time of 45 days and a
minimum fine of $600. She also stated that she did not need to attend alcohol safety school
because it was unnecessary.

        Trial counsel also testified at the hearing. He stated that he told Petitioner that it was
her choice as to whether to serve her time at jail or the Swaim Center. Trial counsel did not
tell her what the fees would be for the Swaim Center because he did not know what the fees
would be. He stated that his common practice is to tell his clients that their court costs will
be at least $200 or $300, but he never tells them a specific amount. He testified that he knew
of Petitioner’s medical situation and physical limitations. He did not recall discussing the
jail’s ability to accommodate her medical needs. He specifically stated that it was the
Petitioner’s decision whether to accept the plea offer. He told Petitioner that she would get
more jail time if she lost at trial than the time that was set out in the guilty plea offer.

       On October 28, 2009, the post-conviction court filed an order denying the petition.
The post-conviction court found that “the transcript and Petitioner’s testimony in Court
indicated that she was aware and understood the terms of the plea agreement to which she
entered.” Petitioner filed a timely notice of appeal.

                                          ANALYSIS

      On appeal, Petitioner argues that she was afforded ineffective assistance of counsel.
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 issue raised, we will afford those findings of fact the weight of a jury verdict,
and this Court is bound by the court’s findings unless the evidence in the record

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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 Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

        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). “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, 960 S.W.2d at 580.

       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. State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999).

        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. Crim.
App. 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, 106 S. Ct. 366 (1985) (citing North Carolina
v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160 (1970)). As stated above, in order to successfully
challenge the effectiveness of counsel, the petitioner must demonstrate that counsel’s

                                               -4-
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, 104 S.
Ct. 2052 (1984), 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).

       When analyzing a guilty plea, we look to the federal standard announced in Boykin
v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (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 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 fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S.W.2d at 904.

       The post-conviction made the following findings regarding the voluntariness of
Petitioner’s plea:


               The transcript of the plea hearing shows Petitioner was neither coerced
       nor pressured into the plea agreement. The Court, in accepting Petitioner’s
       plea, made a thorough and direct inquiry as to its voluntary nature. Petitioner
       swore under oath that her plea was voluntary, that she understood the nature
       of her [sic] agreement with the State, and that she understood the rights given
       up by pleading guilty. When asked if she had any questions, Petitioner
       declined. The court told Petitioner the exact amount of her fine, and that it
       would be in addition to court costs, to which she agreed. Furthermore,
       Petitioner had a previous DUI conviction in which she paid fines. Petitioner
       also acknowledged in Court that she was aware of that there were costs
       associated with attending the Swaim Center, and the transcript shows that she

                                              -5-
       agreed to attend and complete Alcohol and Safety school. In light of all the
       above, this Court finds petitioner’s guilty plea was given knowingly and
       voluntarily.


      We have reviewed the record on appeal and conclude that the evidence in the record
does not preponderate against the findings of the post-conviction court set out above.
Therefore, these findings are conclusive on appeal. For this reason, Petitioner’s guilty plea
was knowingly and voluntarily entered.

      Having determined that the guilty plea was entered knowingly and voluntarily, we
now turn to the question as to whether trial counsel’s representation was deficient and
whether Petitioner would not have pled guilty but for the deficient representation.

        Trial counsel testified that he left the decision to accept the plea offer up to Petitioner.
He stated that he informed her that her court costs would be at least $200 to $300. He knew
of Petitioner’s medical situation. He also informed her that if she were to go to trial and be
convicted she would be looking at a longer sentence. This representation is without question.
Petitioner was charged with DUI, second offense, as well as three other charges, and she pled
guilty to the lesser charge of DUI, first offense and the other three charges were dismissed.
We find no basis for a finding of deficient representation under these facts. Furthermore,
even if trial counsel’s representation was deficient, Petitioner has not proven prejudice. As
stated above, Petitioner must prove that she would not have pled guilty. She stated at the
hearing that she wanted to enter a plea because she needed to care for her young son and she
did not want to serve her time in jail. We cannot conclude from her testimony that she would
have chosen to go to trial and face a much more lengthy time in jail.

       The post-conviction court found that Petitioner did not show that trial counsel was
deficient or that she was prejudiced by his representation. We conclude that the evidence
does not preponderate against this finding.

                                        CONCLUSION

       Therefore, we affirm the post-conviction court’s denial of the petition.




                                              ___________________________________
                                              JERRY L. SMITH, JUDGE



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