         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs June 2, 2009

           JOSE JORDAN RODRIGUEZ v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                          No. 2007-I-346    Steve Dozier, Judge



                    No. M2008-01960-CCA-R3-PC - Filed October 16, 2009


The petitioner, Jose Jordan Rodriguez, appeals the denial of his petition for post-conviction relief.
Pursuant to a plea agreement, the petitioner pled guilty to possession of a weapon with intent to
employ it during the commission of an offense, a Class E felony, and possession with intent to sell
over 26 grams or more of cocaine, a Class B felony. Following a sentencing hearing, the trial court
sentenced the petitioner, as agreed, to concurrent sentences of one year and eight years for the
respective convictions. The court further ordered that the sentences be served in confinement. On
appeal, the petitioner contends that his guilty pleas were not knowingly and voluntarily entered due
to the ineffective assistance of counsel. Specifically, he contends counsel was ineffective in failing
to adequately advise him of the consequences of entering the guilty pleas. Following review, we
affirm the judgment of the post-conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
CAMILLE R. MCMULLEN , JJ., joined.

William E. Griffith, Nashville, Tennessee, for the appellant, Jose Jordan Rodriguez.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Rachel Sobrero and Amy Eisenbeck,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

       The underlying facts of the case, as recited at the guilty plea hearing, are as follows:
               On February second, two-thousand-seven, Metro Police executed a search
        warrant at Twenty-Nine-Eleven Knight Drive, which is located here in Nashville-
        Davidson County.

                The [petitioner] was found inside this residence, lying in the floor in the
        kitchen. Police saw a large bag of cocaine sticking from the right thigh pocket of the
        [petitioner’s] pants. It weighed approximately one-hundred-seventy grams.

               Police recovered from the [petitioner’s] left front pocket seventy-one grams
        of cocaine. And, in a black bag in the same left front pocket, was thirty grams of
        cocaine, for a total of two-hundred-seventy grams of cocaine.

                In the same pocket as some of the drugs, the officers located a fully-loaded
        forty-five-caliber magazine. Lying in the floor, in the general area where the
        [petitioner] was, was found a fully-loaded forty-five-caliber semiautomatic pistol.

                The [petitioner] had four-hundred-ninety-two dollars in cash on him. Other
        money was found hidden in the house, for a total of one-thousand-two-hundred-
        eighty-six dollars.

        A criminal information was returned which charged the petitioner with possession of a
weapon with intent to employ it during the commission of an offense and possession with intent to
sell 26 grams or more of cocaine. The petitioner subsequently pled guilty to the charged offenses
and was sentenced, as a Range I standard offender, to concurrent sentences of one year and eight
years for the respective convictions. Following a sentencing hearing, the trial court also ordered that
the sentences be served in the Department of Correction. No direct appeal was taken.

         The petitioner filed a timely pro se petition for post-conviction relief alleging that his guilty
plea was not entered knowingly and voluntarily based upon the ineffective assistance of counsel.
Following the appointment of counsel, an amended petition was filed. A hearing was subsequently
held, at which the petitioner and the two attorneys who represented him testified. The petitioner
testified that he was initially appointed an attorney to represent him. According to petitioner, he
spoke no English at the time and that he first met his appointed counsel on the day he was to appear
in court. The petitioner testified that no interpreter was present for the meeting. However, he
testified that appointed counsel informed him that if he pled guilty, he would receive an eight-year
sentence which would be suspended to probation. The petitioner specifically testified that appointed
counsel informed him, during the two to three minute meeting, that if he “signed the paper”, he
would get probation.

        According to the petitioner, he was subsequently approached by trial counsel, who informed
him that he had been retained by a friend of the petitioners. The petitioner testified that, prior to the
guilty plea hearing, trial counsel informed him that it was the judge who would decide whether he
would receive probation. However, the petitioner stated trial counsel informed him that, if probation


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was not given, he would serve no more than 1.4 years and then automatically be released from
confinement. On cross-examination, however, the petitioner acknowledged that he was aware when
he pled guilty before the trial court that the court would determine the manner of service of his
sentence. He further acknowledged that prior to accepting the plea, the trial court carefully reviewed
the sentences and the rights that he was waiving, and he stated to the court that he understood.

         Next appointed counsel testified and stated that he had represented the petitioner only
through the criminal information agreement. According to appointed counsel, he spoke with the
petitioner prior to entry of the agreement and that an interpreter was present during the meeting. He
testified that he specifically explained to the petitioner that it was the trial court who would
determine the way in which the sentence would be served, either imposing probation, split
confinement, or incarceration. He specifically stated that he never guaranteed that the petitioner
would receive probation.

        Finally, trial counsel testified and stated that he was retained to represent the petitioner by
a friend of the petitioners. During their first meeting, the petitioner informed trial counsel that he
had already “pled guilty and I’m going on probation.” Trial counsel explained to the petitioner that
it was the trial court who would make the determination regarding the manner of service of the
sentence and that probation was not guaranteed. Trial counsel testified that he explained the
procedures involved in the sentencing hearing, the possible sentence alternatives, and the petitioner’s
status with immigration. He stated that he specifically explained to the petitioner that after service
of 30% of his sentence, he would be eligible for release on parole but that it was not guaranteed.
Trial counsel, in contradiction to the petitioner’s testimony, stated that he never told the petitioner
that he would only have to serve 1.4 years of his sentence.

        A transcript of the guilty plea hearing was also admitted into evidence. The transcript
reflected that an interpreter was present during the entire proceeding. Moreover, it showed that the
trial court specifically explained the possible sentencing alternatives which the petitioner could
receive following the sentencing hearing, the rights he was waiving by pleading guilty, and that he
had the right not to enter the pleas.

        After hearing the evidence presented, the post-conviction court determined that the petitioner
had received the effective assistance of counsel and that the guilty plea was entered knowingly and
voluntarily. Accordingly, the court concluded that post-conviction relief was not appropriate. The
petitioner timely appeals that decision.

                                              Analysis

       On appeal, the petitioner contends that his guilty plea was not entered knowingly and
voluntarily based upon the ineffective assistance of counsel. Specifically, he contends that trial
counsel “misrepresented to him the ramification of his guilty plea to the eight (8) year sentence,
convincing him that if he had to serve the sentence, he would be mandatory released after serving
1.4 years.”


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        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, 91 S. Ct. 160, 164 (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, 106 S. Ct. 366, 369 (1985)
(citing Alford, 400 U.S. at 31, 91 S. Ct. at 164).

        To succeed in a challenge for ineffective assistance of counsel, the 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, 104 S. Ct. 2052, 2064 (1984), the petitioner must establish (1)
deficient representation and (2) prejudice resulting from the deficiency. 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.” Lockhart, 474 U.S. at 59, 106 S. Ct. at 370; 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 dependant
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)



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(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.

        Other than a recitation of relevant post-conviction law, the petitioner’s entire argument on
appeal is as follows:

               Trial counsel never adequately explained the plea consequences and the legal
       aspects of the case with [the petitioner.] [The petitioner] testified he did not
       understand how much time he would have to serve and that his release was at the
       discretion of the parole board rather than an automatic release. . . . Trial counsel
       disputed that the [petitioner] was told he would only serve 1.4 years then be released
       automatically. . . .

              Trial counsel was ineffective, and [the petitioner] should have been granted
       post conviction relief.

       In its written order denying relief, the post-conviction court found as follows:

               The Court is of the opinion that the petitioner failed to prove any factual
       allegations by clear and convincing evidence that his counsel was ineffective. The
       Court reviewed the transcript of the guilty plea and notes that petitioner was asked,
       by way of an interpreter, if he understood the counts against him and the sentences
       which accompanied those counts. The petitioner asserted that he did understand this
       fact. The Court then told petitioner that based on his plea agreement he would have
       two felony convictions on his record, and petitioner said he understood. The Court
       appraised the [petitioner] that a sentencing hearing would be held on April 27, 2008.
       The petitioner next identified his signature at the base of the plea agreement and
       informed the Court that the document was read to him, he was not forced to enter the
       plea, and he had no questions regarding the plea agreement. . . .

                The Court accredits the testimony of counsel that he never promised the
       petitioner probation in exchange for his guilty pleas. The Court finds that counsel,
       assisted by an interpreter, explained the petitioner’s options in full and that the
       petitioner had complete comprehension of those options. The Court finds the
       petitioner could not have believed he was entering a plea in exchange for probation.
       Next, the Court finds that petitioner’s second attorney never told petitioner that he
       could serve 1.4 years and then receive mandatory parole. Instead, the Court finds
       likely that [trial counsel] informed the petitioner that he would serve 2.4 years, after
       serving 30% of the eight (8) year sentence, and then be eligible for parole. Also, the
       Court was clear with the petitioner as to the sentence he could receive based upon the
       plea he was entering. The Court does not find the testimony of the petitioner at the
       post-conviction hearing credible.



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         Review of the record reveals nothing which preponderates against the post-conviction court’s
findings that the petitioner, but for counsels’ actions, would not have entered the plea. The
petitioner’s argument essentially asks this court to reweigh the credibility of the witnesses who
testified at the post-conviction hearing. However, issues of credibility of witnesses and the weight
to be given to their testimony are to be resolved by the trier of fact. See Henley, 960 S.W.2d at 579.
It is not the province of this court to reweigh such determinations. While the petitioner testified that
he was not aware of the ramifications of the plea agreement, specifically that he was not guaranteed
probation or release after serving 30% of his sentence, both attorneys who represented the petitioner
specifically testified that they informed the petitioner of the possible sentences he would receive.
The post-conviction court accredited their testimony. Moreover, as noted by the post-conviction
court, interpreters were used to ensure that the petitioner was properly informed, and the court itself
at the plea acceptance hearing explained the possible sentences to the petitioner. Thus, the petitioner
has failed to carry his burden in establishing that counsels were ineffective. Because the petitioner
was represented by competent counsel who adequately explained the ramifications of pleading guilty,
the petitioner has also failed to establish that his plea was not entered knowingly and voluntarily.
As such, the petitioner was not entitled to relief.

                                          CONCLUSION

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




                                                          ____________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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