        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 7, 2013

              TIMOTHY CHATMAN v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 08-05905     W. Otis Higgs, Jr., Judge


                  No. W2012-01469-CCA-R3-PC - Filed June 5, 2013


The petitioner, Timothy Chatman, appeals the dismissal of his petition for post-conviction
relief, arguing that the post-conviction court erred in finding that his guilty pleas were
knowing and voluntary and that he received effective assistance of trial counsel. Following
our review, we affirm the dismissal of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and N ORMA
M CG EE O GLE, JJ., joined.

Sean H. Muizers (on appeal) and Jeffrey Odom (at hearing), Memphis, Tennessee, for the
appellant, Timothy Chatman.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

        Based on his participation with an accomplice in a robbery in which a victim was shot,
the petitioner was indicted by the Shelby County Grand Jury with especially aggravated
kidnapping, attempted second degree murder, aggravated robbery, and employing a firearm
during the commission of a dangerous felony. On July 21, 2009, the petitioner pled guilty
in the Shelby County Criminal Court to attempted second degree murder, a Class B felony,
and employing a firearm during the commission of a dangerous felony, a Class C felony, in
exchange for the dismissal of the other counts of the indictment and with sentencing to be
set by the trial court at a later date. On September 8, 2009, the trial court sentenced the
petitioner as a Range I offender to consecutive terms of eight years for the attempted murder
conviction and six years for the firearms conviction, for an effective sentence of fourteen
years in the Department of Correction.

       On February 1, 2010, the petitioner filed a pro se petition for post-conviction relief
in which he raised claims of ineffective assistance of counsel and involuntary and unknowing
guilty pleas. Post-conviction counsel was appointed, and an amended petition was filed on
December 2, 2010, in which the petitioner alleged that his counsel was ineffective for failing
to adequately communicate the consequences of his guilty pleas, which rendered them
unknowing and involuntary.

        At the evidentiary hearing, the petitioner testified trial counsel told him that he would
lose at trial because his co-defendant was going to testify against him but never explained
“what would have happened if [he] was going to win.” The petitioner elaborated that counsel
never discussed his chances at trial other than to tell him that he would lose, which was why
the petitioner opted to plead guilty. The petitioner acknowledged on both direct and cross-
examination that both trial counsel and the trial court explained his constitutional rights and
his guilty pleas to him and that he had assured the trial court that it was his decision to plead
guilty. However, at the time he entered his pleas, he was ignorant of the law and believed
that he and his co-defendant would be pleading guilty to the same counts and would receive
the same sentence. Since that time, he had learned that his co-defendant had pled guilty to
robbery in exchange for a twelve-year sentence. The petitioner disagreed that his plea bargain
was a “good deal” and expressed his belief that he would have fared better had he opted to
go to trial:

              No, because at the time, my ignorance of the law, I was just going by
       what my attorney was saying. That was my first time ever being incarcerated.
       This is my first time ever being incarcerated and this is a lawyer that I’m
       paying for and my life’s on the line, he’s telling me that I can’t win that trial.
       I have to go by what he is saying, because I don’t want to go – I done thought
       about it and I probably should have took my shot at trial.

       Trial counsel, who said that he had been practicing exclusively criminal law for the
past twelve years, testified that the victim in the case had been prepared to testify that he was
fleeing an altercation when the petitioner shot him twice. He said that as they neared the trial
date, they learned that the co-defendant was also going to identify the petitioner as the
shooter. He stated that he discussed with the petitioner the evidence the State had against
him and explained the potential punishment he faced if convicted at trial. He said he told the
petitioner that they had “a tough road to go” in light of the State’s evidence and

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recommended that the petitioner accept the plea offer in which the Class A felony would be
dismissed, but he was fully prepared to try the case had the petitioner opted to proceed to
trial. On cross-examination, he testified that he told the petitioner he would vigorously cross-
examine the State’s witnesses if the petitioner chose to go to trial. He said he told the
petitioner that he was not commenting on the weight of the witnesses’ testimony, but if the
jury believed the witnesses, the petitioner was “done,” whereas if the jury did not find them
credible, they had “a shot.”

       On May 29, 2012, the post-conviction court entered an order dismissing the petition,
finding that the proof, which included the guilty plea colloquy, made it “clear” that the
petitioner’s pleas were knowingly and voluntarily entered and that he received the effective
assistance of trial counsel. Thereafter, the petitioner filed a timely appeal to this court.

                                         ANALYSIS

        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, 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

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       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).

       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. 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.

       In support of his argument that his guilty pleas were involuntary and unknowing due

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to counsel’s failure to communicate the consequences of the pleas to him, the petitioner cites,
among other things, his unfamiliarity with the adult criminal system, the fact that he finished
high school but did not graduate due to his “scores,” and his evidentiary hearing testimony
that his trial counsel never discussed with him the possibility that he would win at trial.

        The record, however, fully supports the post-conviction court’s findings that the
petitioner received effective assistance of counsel and entered his guilty pleas knowingly and
voluntarily. Trial counsel testified that he discussed the evidence against the petitioner and
his chances at trial and explained the plea agreement to him. The transcript of the guilty plea
hearing reveals that the petitioner was fully informed of his constitutional rights, including
those that he was waiving by pleading guilty, the offenses with which he was charged, and
the possible punishments he faced if convicted at trial. The transcript also reveals that the
petitioner affirmed that trial counsel had informed him that the credibility of the State’s
witnesses would be a key issue if he went to trial and that if the jury did not believe them,
there was “a good chance” that the petitioner would not be convicted or would be convicted
of a lesser offense. If, however, the jury believed the witnesses’ accounts, their testimony
would be sufficient for the jury to convict him of the indicted offenses. During that voir dire,
the petitioner also affirmed that he was satisfied with counsel’s representation and that it was
his decision to plead guilty. 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 and voluntarily entered.

                                       CONCLUSION

      Based on our review, we conclude that the petitioner has failed to meet his burden of
showing that he received ineffective assistance of counsel or that his guilty pleas were
unknowing and involuntary. Accordingly, we affirm the dismissal of the petition for post
conviction relief.




                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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