        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 13, 2013

                 HARVEY TAYLOR V. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                     No. 2008-B-1760     Monte Watkins, Judge




               No. M2012-01228-CCA-R3-PC - Filed February 21, 2013


The Petitioner, Harvey Taylor, pled guilty to rape, a Class B felony, and, pursuant to the plea
agreement, the trial court sentenced him to twelve years in the Tennessee Department of
Correction. The Petitioner timely filed a petition for post-conviction relief claiming that his
guilty plea was not knowing and voluntary because he received the ineffective assistance of
counsel. After a thorough review of the record and applicable authorities, we affirm the
post-conviction court’s dismissal of the petition.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J ERRY L. S MITH
and J EFFREY S. B IVINS, JJ., joined.

Ashley Preston, Nashville, Tennessee for the appellant, Harvey Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Roger Moore, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION
                                          I. Facts

                           A. Guilty Plea Submission Hearing


       At the Petitioner’s guilty plea submission hearing, the State provided the following
factual basis for the Petitioner’s guilty plea:
[O]n May the 4th , 2007 [the Petitioner] entered [the victim’s] room and had
vaginal-penile intercourse with her. The witnesses would [have] testified that
[the victim], who is a patient at Madison Health Care and Rehabilitation
Center, which is a nursing home in Davidson county, was seventy years old at
[the] time, suffered from advanced condition of bipolar, diabetes, and a host
of other ailments.

        When Charlotte Boyd, on May the 5th , 2007 - - who is a certified nurse
technician - - entered [the victim’s] room to find out how she was doing and
take her to get a shower[,] [the victim] was very upset. She began telling [the]
nurse - - or, Certified Nurse Technician Boyd, again and again, that a large
black man had entered her room last night and had had sex with her. At one
point Ms. Boyd was continually asking her “What do you mean?’ And the
victim in the case used her hands to explain that this man had inserted his penis
into her vagina. And she actually made hand gestures to convince Ms. Boyd
that there was a problem.

        Ms. Boyd, following the chain of command, reported the rape to Marcia
Patterson. And as Marcia Patterson began to approach [the victim] to ask her
about the incident [the victim] was frantically telling other CNTs, including
Pamila Hatton, Diane Heddon, and Shawnta Brown, what had happened. At
one point [the victim] was so upset that she poured water on the floor,
[claiming] that her water just broke and that she needed someone to take her
to the emergency room immediately because she was having a baby.

       Finally, Linda Thompson who is the primary nurse of [the victim] was
notified. And [the victim] . . . was taken into a room where Nurse Thompson
began to ask her questions about what had happened last night. [The victim]
reported over and over to Nurse Thompson that the man had come into her
room, that he had put her legs over [his] shoulder, and that he had inserted his
penis into her vagina.

        At that point Detective Jason Terry with the Metropolitan Police
Department was notified and met Linda Thompson and [the victim] at General
Hospital. At General Hospital, Nurse Practitioner Beverly Byrum (ph.) would
have testified that . . . she began doing a medical-legal exam. As part of the
medical-legal exam she collected the victim’s panties. She would have
testified that she noted that there was blood in the crotch of [the victim’s]
panties. And during the medical-legal exam she noted bruising to the victim’s
inner thigh, a hematoma in the victim’s vaginal wall, and small tears to all the

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       sides of her vaginal wall. There were several swabs that were collected. And
       all of these items were sent to the TBI for analysis.

              Detective Terry spoke with the [Petitioner] several times. And,
       although the . . . [Petitioner] provided several different [ac]counts of the
       incident he denied repeatedly ever having sexual contact with the victim. . .
       . Detective Terry then provided the TBI with oral swabs from [the Petitioner].
       And found in the crotch of [the victim’s] underwear was semen. That semen
       matched the DNA profile of the [Petitioner].


       At the plea submission hearing, the trial court reviewed the proposed sentence with
the Petitioner. The Petitioner denied being under the influence of any drug or alcohol or
suffering from a mental illness. The Petitioner affirmed that he was satisfied with his
attorney’s (“Counsel”) representation. The trial court told the Petitioner that he was charged
with aggravated rape, and the Petitioner agreed that the original charge and range of
punishment had been explained to him. The trial court told the Petitioner that he was
pleading guilty to the reduced charge of rape. The Petitioner agreed that he understood that
this conviction could be used to enhance his punishment for any future felony offenses. The
Petitioner stated that he understood his constitutional rights and the rights he waived by
entering a guilty plea. The Petitioner than affirmed that he was willingly entering the plea
agreement with the State. When asked if he understood the plea petition, the Petitioner
responded, “Somewhat.” Upon further discussion with the trial court, the Petitioner
responded, “Yes. I understand it.”

        The Petitioner said he did not have any questions for Counsel or the trial court about
his plea agreement with the State. The Petitioner stated that he “freely” signed the plea
petition. Counsel then stated that she believed the Petitioner understood the plea agreement
and was entering the plea agreement “freely and voluntarily.” The Petitioner entered his plea
of “guilty.” The trial court found a factual basis to support the Petitioner’s guilty plea and
that the plea was “freely” and voluntarily given.

       Pursuant to the plea agreement, the trial court sentenced the Petitioner to serve twelve
years in the Tennessee Department of Correction.

                                B. Post-Conviction Hearing

       The Petitioner filed a petition for post-conviction relief, alleging that he had received
the ineffective assistance of counsel. The post-conviction court held a hearing, during which
the parties presented the following evidence: The Petitioner testified that an attorney from

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the Public Defender’s Office represented him during this case. The Petitioner was charged
with aggravated rape, but Counsel negotiated a plea offer with the State that allowed the
Petitioner to plead guilty to the lesser charge of rape. The Petitioner recalled that, during
Counsel’s representation of approximately a year, she met with him “about four times” at the
Criminal Justice Center where he was detained.

         The Petitioner testified that Counsel never discussed the option of a trial. The only
mention of a trial was when Counsel told the Petitioner that the State did not want to “take
it to trial.” The Petitioner said that Counsel never discussed potential defenses with him.
The Petitioner said that “most of the time” Counsel told him there was “no offer at all.” The
week before the Petitioner’s trial date, however, Counsel told the Petitioner that she had
talked with the State’s attorney and requested a plea offer.

        The Petitioner testified that he entered a guilty plea five days before his trial date. He
said that Counsel never reviewed the plea petition with him. Counsel instructed the
Petitioner to sign a document telling him that, if he did not, he would go to jail for twenty-
five or thirty years and then she broke down and cried. The Petitioner said that this “scared”
him, so he signed the plea petition. After the Petitioner signed the paperwork, Counsel
“jumped up” and left the room, leaving her investigator in the room with the Petitioner. The
Petitioner said that he and the investigator “sat there and prayed, and then [the investigator]
left.” The Petitioner reiterated that he signed the plea petition because Counsel scared him.

        The Petitioner testified that he told Counsel about potential witnesses to contact in
defense of his case and that Counsel failed to do so. He believed that he would have
proceeded to trial had he been fully informed of “everything,” and the outcome would have
been different. The Petitioner said that his defense at trial would have been that “the incident
never happened.” The Petitioner denied raping the victim and said that he was “just doing
[his] job.”

        The Petitioner testified that Counsel did not inform him of his rights, explain the
consequences of entering a guilty plea, or review the plea petition with him. The Petitioner
said that Counsel had told him that the State’s offer was a twelve-year sentence to be served
at 85%. During the plea submission hearing, the trial court said that the sentence was to be
served at 100%, which confused the Petitioner. The Petitioner explained that he proceeded
with the guilty plea despite his confusion because he was “scared” and had “never been in
this situation before.”

       The Petitioner testified that, because Counsel failed to render advice sufficient to
allow him to make an informed decision about whether to plead guilty or proceed to trial, he
believed that he had no choice but to enter a guilty plea. The Petitioner asked the post-

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conviction court to set aside his guilty plea and allow him a trial in his case.

       On cross-examination, the State asked the Petitioner how his semen got onto the
victim’s underwear. The Petitioner responded as follows:

               Like I told [Counsel], what it was, I was dating one of the girls - - I was
       messing with two or three different nurses on the thing. Me and her had been
       fore-playing. I went into the privacy of a bathroom, of the patient bathroom,
       and relieving myself. And like I said, the patient is known to take her clothes
       off. I picked up her clothes, wiped my hands on them, and put it in the clothes
       hamper. That’s how it got in her.

The Petitioner explained the injuries to the victim’s genitals as “self-inflicted” due to the
victim’s history with yeast infections.

       Counsel testified that she was licensed to practice law in three states and practiced
solely criminal law. Counsel recalled that she met with the Petitioner twice before the
preliminary hearing and then conducted the hearing. Counsel said that the Petitioner’s case
had “some interesting legal issues.” One of which was the fact that, due to the victim’s
medical condition, she would be unable to testify at trial. Thus, there were a number of
issues dealing with the admissibility of out-of-court statements challenged on various
theories. Counsel said that she consulted with a DNA expert on this case but was unable to
find any basis upon which to attack the DNA evidence against the Petitioner.

       Counsel testified that she reviewed her notes in preparation for her testimony at the
post-conviction hearing and found that she had met with the Petitioner in jail on sixteen
occasions after the case was indicted. Counsel said that she understood the Petitioner’s
version of how the injuries could have happened to the victim and believed that she could
have made a case for it being consistent with what he told police. The semen in the victim’s
underwear was problematic, however, and the issue that she kept “coming back to over and
over again.”

        Counsel testified that there was not an offer in the case for a long time because of the
pre-trial motions related to out-of-court statements and the necessary review of medical
records in the case. Counsel said her investigator met with “most” of the witnesses identified
by the Petitioner, including some of the women with whom the Petitioner said he might have
had consensual sexual contact. Based on the investigation, Counsel said she understood the
Petitioner’s case “very, very well.”

       Counsel testified that, two days before the plea submission hearing, Counsel went to

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the jail twice to discuss the plea offer with the Petitioner in an effort to ensure that he
understood the State’s offer. In response to the question of whether she had reason to believe
the Petitioner understood “what was going on,” Counsel responded:

       I think, and in reviewing my notes, I think [the Petitioner] had some issues
       understanding what was going on, partly because of what he says: He had
       never been in trouble before. I think the whole thing was just a horrible shock
       to him. So it took him longer to understand things, and that’s partly why I
       spent so much time with him. But he definitely understood what was going on
       by the time we were standing in front of the judge.

 Counsel testified that she did not remember crying in the Petitioner’s presence but that she
advised the Petitioner that it was in his best interest to accept the State’s plea offer.

        On cross-examination, Counsel testified that she represented the Petitioner for about
a year. Counsel said that she fully discussed the Petitioner’s defenses with him and whether
those defenses would be enough to overcome the detrimental DNA evidence. Counsel
agreed that the Petitioner told her about a number of employees with whom the Petitioner
said he had engaged in consensual sexual conduct. Counsel said that she spoke with two or
three employees, who denied any sexual interaction with the Petitioner, and she was unable
to locate one of the employees. Counsel testified that she reviewed the Petitioner’s sentence
with him and believed that he understood the sentence.

        After the post-conviction hearing, the post-conviction court issued an order denying
the Petitioner’s petition for post-conviction relief, finding that the Petitioner had failed to
establish that Counsel was ineffective in her representation of him. It is from this judgment
that the Petitioner now appeals.

                                         II. Analysis

        On appeal, the Petitioner claims that he received the ineffective assistance of counsel,
warranting post-conviction relief. Specifically, he claims that Counsel did not adequately
discuss his potential defenses with him. The Petitioner states that he felt “pushed into the
plea agreement” due to Counsel’s emotional breakdown during plea discussions and the
threat that he would serve twenty-five or thirty years if he did not accept the State’s offer.
The State responds that the post-conviction court properly denied the post-conviction
petition. We agree with the State.

      In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.

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T.C.A. § 40-30-103 (2012). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2012). Upon review, this Court will not re-weigh or re-evaluate the evidence below;
all questions concerning the credibility of witnesses, the weight and value to be given their
testimony, and the factual issues raised by the evidence are to be resolved by the trial judge,
not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999) (citing Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction court’s factual findings
are subject to a de novo review by this Court; however, we must accord these factual findings
a presumption of correctness, which can be overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40
S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:

       First, the [petitioner] 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 [petitioner] by the Sixth
       Amendment.         Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 S.W.2d
417, 419 (Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, “a petitioner must show that counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

       When evaluating an ineffective assistance of counsel claim, the reviewing court

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should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the “distorting
effects of hindsight” and “judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S.
at 689-90. In doing so, the reviewing court must be highly deferential and “should indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a defendant in a
criminal case is not entitled to perfect representation, only constitutionally adequate
representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other
words, “in considering claims of ineffective assistance of counsel, ‘we address not what is
prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483
U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)).
Counsel should not be deemed to have been ineffective merely because a different procedure
or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276, 279-
80 (Tenn. Crim. App. 1980). The fact that a particular strategy or tactic failed or hurt the
defense, does not, standing alone, establish unreasonable representation. However, deference
to matters of strategy and tactical choices applies only if the choices are informed ones based
upon adequate preparation. House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

       If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State,
90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875
S.W.2d 662, 665 (Tenn. 1994). In the context of a guilty plea, as in this case, the effective
assistance of counsel is relevant only to the extent that it affects the voluntariness of the plea.
Therefore, 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 v. Lockhart, 474 U.S. 52, 59 (1985) (footnote
omitted); see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

       In its order denying relief, the post-conviction court made the following findings:

              A close review of the record and testimony presented, reveals that
       [C]ounsel meet [sic] with the [Petitioner] and informed him of the nature of
       the charges against him, the likelihood of and range of punishment, and the
       nature and consequences of the plea agreement to the [P]etitioner.



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              Therefore, Petitioner has failed to demonstrate by clear and convincing
       evidence ineffective assistance of counsel and that the plea was a violation of
       due process rights in violation of a constitutional right to render his conviction
       and sentence void or voidable under the Post Conviction Relief Act. The
       Court does not find the [P]etitioner’s testimony credible. Accordingly, the
       Court finds Petitioner has failed to show that he was prejudice[d] by
       [C]ounsel’s allegedly deficient conduct.

        The evidence in this case does not preponderate against the post-conviction court’s
findings. Our review of the record reveals that Counsel thoroughly investigated the
Petitioner’s potential defenses and communicated with the Petitioner about his case and its
progress. Counsel filed multiple motions seeking to exclude detrimental testimony to the
Petitioner’s case based on recent changes in the law at the time. Counsel met with the
Petitioner twice on the same day before the plea submission hearing to ensure that the
Petitioner understood the plea petition and the consequences. Although the Petitioner
testified that he was scared and felt forced into entering the guilty plea, the post-conviction
court did not find his testimony credible. Furthermore, Counsel testified that, after many
discussions with the Petitioner, she believed the Petitioner understood his sentence and the
plea agreement at the time of the entry of his guilty plea. The record of the guilty plea
submission hearing also reflects that the Petitioner understood the nature of his charges,
guilty plea and punishment.

       Accordingly, the evidence in the record does not preponderate against the post-
conviction court’s finding that the Petitioner failed to show by clear and convincing evidence
that Counsel was deficient. The Petitioner is not entitled to relief.

                                       III. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that the
post-conviction court properly denied post-conviction relief. Accordingly, we affirm the
judgment of the post-conviction court.

                                                    _________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE




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