                                                                                           08/07/2018
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 24, 2018

                 JOSHUA BROWN v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                       No. 106367 Bobby R. McGee, Judge
                     ___________________________________

                            No. E2017-01788-CCA-R3-PC
                       ___________________________________


The Petitioner, Joshua Brown, appeals the denial of his petition for post-conviction relief,
arguing that his trial counsel provided ineffective assistance of counsel and that his guilty
pleas were unknowingly and involuntarily entered. Following our review, we affirm the
denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Joshua Brown.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS

       On September 5, 2014, the Petitioner pled guilty in the Knox County Criminal
Court to two counts of felony theft, for the theft of a chainsaw and a hedgetrimmer with a
total value of more than $500 but less than $1,000 from Lowe’s, a Class E felony. He
also pled guilty to the theft of 22 cartons of cigarettes with a value of more than $1,000
but less than $10,000 from KenJo market, a Class D felony, and for two counts of
misdemeanor theft. On that day, he was also sentenced to four years as a Range I
standard offender in Case 102342, a case for which he pled guilty on September 20,
2013, to three felony thefts and three misdemeanor thefts.1 The Petitioner was sentenced
to an effective two-year sentence as a Range I offender for the charges at issue to be
imposed consecutive to the four-year sentence he received in Case 102342 for a total
effective sentence of six years. His sentence was suspended and he was placed in the
Community Alternatives to Prison Program (CAPP).

       On September 2, 2015, the Petitioner gave prison authorities his post-conviction
petition to mail, and the petition was filed on September 16, 2015. Counsel was
appointed, and an amended post-conviction petition was filed on April 12, 2017, in which
he alleged that trial counsel was ineffective and coerced him into pleading guilty to the
two felonies and two misdemeanors on September 5, 2014.

        At the post-conviction hearing on August 16, 2017, the Petitioner confirmed that
trial counsel explained the two-year sentence that he would receive for the two felonies
and two misdemeanors at issue, and he verified that he understood the sentence.
However, the Petitioner later testified that he did not understand that the two-year
sentence would run consecutive to the four-year sentence for a total effective sentence of
six years.

        While the Petitioner acknowledged that trial counsel explained that he did not
have to plead guilty and that he could receive a jury trial, the Petitioner alleged that trial
counsel influenced his decision to plead guilty by informing the Petitioner that he would
likely remain in jail for a year while he fought the theft charges, which the Petitioner
characterized as a scare tactic. The Petitioner also said that if he had not been told that
there was a possibility that he would sit in jail for a year if the case went to trial, then he
would not have pled guilty. Further, the Petitioner testified that trial counsel told him
that not pleading guilty might affect his acceptance into the Jellinek Center, a treatment
facility, which the Petitioner asserted also greatly influenced his decision. Specifically,
the Petitioner alleged, “[t]hat’s what made me be a dummy and, I guess, agree to a felony
that I told [trial counsel] that I was innocent of.” The Petitioner was under the impression
that if he and trial counsel had discussed his charges more, trial counsel would not have
recommended that the Petitioner plead guilty.

        The Petitioner acknowledged that he remembered his plea colloquy. He testified
that he had concerns about trial counsel’s representation on the day of his plea and was
“[n]ot really satisfied,” but did not raise his concerns to the trial court. He claimed that
he began to regret taking the plea immediately after accepting it, but he did not inform
trial counsel or the court of these regrets.

        1
          The Petitioner is only challenging the guilty pleas entered on September 5, 2014, in his post-
conviction petition.
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       When cross-examined, the Petitioner acknowledged that he was currently serving
an eighteen-year sentence due to his career criminal status. The Petitioner also admitted
that he had three previous felonies on his record that the court could have considered
when sentencing him for the two felonies at issue in this case if he had gone to trial. The
Petitioner believed that if he had not pled guilty in the instant case, then he would not
have the requisite number of felonies to be considered a career criminal, he would be
facing a Range II or III sentence, and he would have received a shorter sentence overall.

        However, in addition to answering “yes” when asked if he was guilty during the
plea hearing, the Petitioner admitted to stealing a chainsaw from Lowe’s during his post-
conviction hearing, but attempted to mitigate this admission by testifying that he did not
steal a chainsaw and hedgetrimmer at the same time. Further, the Petitioner testified that
his co-defendant in the cigarette case, Kendall Steiner, should not have pled guilty since
Mr. Steiner was not with the Petitioner at KenJo market on the date when the cigarettes
were stolen. The Petitioner maintained that he did not steal cigarettes from KenJo
market, instead claiming that he only stole brake fluid. Additionally, the Petitioner
testified that it was possible that a co-defendant took cigarettes from KenJo market, but
not enough to amount to a Class D felony. However, the State reminded the Petitioner
that his theft charges could be combined with a co-defendant’s theft. The State also
established that the Petitioner had a criminal history and was familiar with the criminal
justice system, as he had previously pled guilty to misdemeanors and felonies and had
admittedly been in and out of jail for “[m]ost of [his] life.”

        The Petitioner later acknowledged that it was his decision to plead guilty. Further,
the Petitioner also admitted that he made statements during his plea colloquy which
indicated that he was entering his plea freely, voluntarily, and knowingly and that he was
satisfied with his representation.

        Trial counsel testified that he had been practicing criminal law for fourteen years.
Trial counsel said he was “waved down” by the Petitioner in jail on September 5, 2014, at
which point the Petitioner wanted counsel to take his case immediately and get the
Petitioner’s plea entered that day. The Petitioner told counsel that he had a bed reserved
at Jellinek Center and wanted the plea entered so that he could go there. Trial counsel
said he was hesitant to enter a plea that day because he was not knowledgeable about the
Petitioner’s case. However, soon after the Petitioner waved him down, trial counsel
discovered that a plea agreement had been worked out for the Petitioner to be placed on
CAPP and to go to the Jellinek Center. Despite all of this, trial counsel cautioned the
Petitioner that he felt uncomfortable proceeding with the plea that day, and he asked the
Petitioner to allow him to request a reset. However, trial counsel said that the Petitioner
was insistent that the plea be entered that day because the Petitioner was worried a delay
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in entering the plea could result in his losing his place at the Jellinek Center. Therefore,
trial counsel went forward with entering the plea. Trial counsel reiterated on re-direct
that the decision to plead guilty was the Petitioner’s, the Petitioner never mentioned being
innocent prior to pleading guilty, and the cigarette case was not discussed. Trial counsel
testified that possible defenses to the charges also were not discussed because the
Petitioner was adamant that he wanted to plead guilty that day.

       Following the post-conviction hearing, the court issued oral findings denying the
petition. Specifically, the post-conviction court found that the “credibility issues” of the
Petitioner “weighed in favor of [trial counsel].” Therefore, the court found that the
Petitioner “failed to establish, by clear and convincing evidence, that counsel was
deficient in any way,” that the Petitioner did not establish that he was prejudiced, and that
the Petitioner made the decision to plead guilty. This timely appeal followed.


                                       ANALYSIS



       The Petitioner argues on appeal that trial counsel was ineffective and coerced him
into entering guilty pleas, resulting in unknowing and involuntary guilty pleas. The State
responds that the post-conviction court properly denied the petition on the basis that the
Petitioner received effective assistance of counsel and the Petitioner’s claims that trial
counsel coerced him into entering the guilty pleas were “directly refuted by the factual
findings of the post-conviction court.” The State also asserts that the issue of
voluntariness is waived because of a lack of support for the argument in the brief. We
agree with the State.

       Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103
(2012). The petitioner bears the burden of proving factual allegations by clear and
convincing evidence. Id. § 40-30-110(f). When an evidentiary hearing is held in the
post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Wiley v. State, 183 S.W.3d 317,
325 (Tenn. 2006). When reviewing factual issues, the appellate court will not reweigh
the evidence and will instead defer to the post-conviction court’s findings as to the
credibility of witnesses or the weight of their testimony. Id. However, review of a post-
conviction court’s application of the law to the facts of the case is de novo, with no
presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The
issue of ineffective assistance of counsel, which presents mixed questions of fact and law,
                                            -4-
is reviewed de novo, with a presumption of correctness given only to the post-conviction
court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v.
State, 6 S.W.3d 453, 461 (Tenn. 1999).
        To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

     First, the defendant must show that counsel’s performance was deficient. This
     requires showing that counsel made errors so serious that counsel was not
     functioning as the “counsel” guaranteed the defendant by the Sixth
     Amendment. Second, the defendant must show that the deficient performance
     prejudiced the defense. This requires showing that counsel’s errors were so
     serious as to deprive the defendant of a fair trial, a trial whose result is
     reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. In the context of a guilty plea, the petitioner must show a
reasonable probability that were it not for the deficiencies in counsel’s representation, he
would not have pled guilty but would instead have insisted on proceeding to trial. Hill v.
Lockhart, 474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

        Before a guilty plea may be accepted, there must be an affirmative showing in the
trial court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S.
                                           -5-
238, 242 (1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a
showing that the defendant was made aware of the significant consequences of the plea.
State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340).
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 or she fully understands the plea and its consequences. Pettus, 986 S.W.2d
at 542; Blankenship, 858 S.W.2d at 904.

        Because the plea must represent a voluntary and intelligent choice among the
alternatives available to the defendant, the trial court may look at a number of
circumstantial factors in making this determination. Blankenship, 858 S.W.2d at 904.
These factors include: (1) the defendant’s relative intelligence; (2) his familiarity with
criminal proceedings; (3) whether he was represented by competent counsel and had the
opportunity to confer with counsel about alternatives; (4) the advice of counsel and the
court about the charges against him 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. Id. at 904-05.

       The record fully supports the post-conviction court’s findings that the Petitioner
received effective assistance of counsel and entered his guilty pleas knowingly and
voluntarily. While the Petitioner asserted that trial counsel coerced him into accepting
the guilty pleas, the court rejected the Petitioner’s allegations and accredited trial
counsel’s testimony that counsel wanted to reset the guilty plea hearing due to his
retention as counsel that morning and lack of familiarity with the case, but the Petitioner
insisted on pleading that day due to his fear that he might otherwise lose his spot at
Jellinek Center. Trial counsel’s decision to abide by the Petitioner’s request after
counseling the Petitioner and explaining the sentences that the Petitioner would receive if
he pled guilty did not constitute deficient legal representation and did not prejudice the
Petitioner. Moreover, the two-year sentence that the Petitioner received was the
minimum sentence that he could have received for his theft charges. Additionally, the
Petitioner was familiar with pleading guilty and the rights being given up by doing so,
having pled guilty in a previous case on September 20, 2013.

       Further, during the plea colloquy on September 5, 2014, the Petitioner
acknowledged that he was entering into the plea agreement freely, voluntarily, and
knowingly. The Petitioner agreed that he was pleading guilty because he was guilty. He
further testified that he was satisfied with the services of his attorney and that he had no
questions for the court. Therefore, the Petitioner has failed to meet his burden of
demonstrating that he was prejudiced by the actions of trial counsel and that but for
counsel’s actions, he would not have pled guilty.
                                           -6-
        We conclude, therefore, that the evidence does not preponderate against the post-
conviction court’s findings that the Petitioner received effective assistance of counsel and
that his guilty pleas were knowingly, voluntarily, and intelligently entered.


                                     CONCLUSION



       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court denying the petition for post-conviction relief.




                                              ____________________________________
                                              ALAN E. GLENN, JUDGE




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