        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 29, 2011

                   TERRY JONES v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Knox County
                      No. 89857    Mary Beth Leibowitz, Judge




                  No. E2010-01896-CCA-R3-PC - Filed June 13, 2011


The petitioner, Terry Jones, pleaded guilty to possession with the intent to sell more than
twenty-six grams of cocaine, a Class B felony, and received a sentence of ten years in the
Tennessee Department of Correction and a $2,000 fine. He filed a petition for post-
conviction relief alleging the ineffective assistance of counsel. The post-conviction court
denied relief, and the petitioner appeals the post-conviction court’s denial of relief. After a
thorough 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

J.C. M CL IN, J., delivered the opinion of the court, in which J ERRY L. S MITH and J AMES
C URWOOD W ITT, J R., JJ., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Terry Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; and Randall E. Nichols, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

                                        Background

        On January 17, 2006, the petitioner, Terry Jones, pleaded guilty in the Knox County
Criminal Court to possession with the intent to sell more than twenty-six grams of cocaine,
a Class B felony. The trial court sentenced the petitioner to ten years in the Tennessee
Department of Correction and ordered him to pay a $2,000 fine. As a condition of his guilty
plea, the petitioner reserved a certified question of law challenging the denial of his motion
to suppress based upon his allegation that police subjected him to an unconstitutional
investigative stop. The facts of the petitioner’s case, as summarized by this court’s opinion
on direct appeal, are as follows:

       [T]he proof at the July 15, 2004[,] suppression hearing showed that on October
       2, 2001, Knoxville Police Department Officer Melvin Pierce and trainee
       Officer Anthony Barnes initiated a traffic stop because an automobile was
       impeding traffic flow in front of Max’s Lounge, located at the corner of
       Harrison Street and Wilson Avenue in Knoxville. The officers observed a
       female passenger exit the car and enter Max’s Lounge. Upon investigation,
       the officers received permission from the car’s driver to search the vehicle, and
       they found drug paraphernalia. When the officers attempted to enter Max’s
       Lounge to speak with the female passenger, the doors were locked, and no one
       responded to their repeated knocking.

               At some point, Officers Pierce and Barnes called for assistance, and
       Officers Joseph Mattina, Larry Jason Jones, Doyle Lee, and Sergeant Tammy
       Hamblin responded. The police officers suspected criminal activity inside
       Max’s Lounge, but they reiterated they only wanted to enter to find the female
       passenger. The officers also observed several open alcohol containers in the
       parking lot, and several of the parking lot’s cars had registration violations and
       improper license tags. During their subsequent attempts to enter the lounge,
       the officers contacted a fire marshal and learned that the lounge was not “per
       se a business, [but] a private club, [which] could restrict entry.” The officers
       also attempted to gain access via a beer inspector, yet this attempt also failed.
       Therefore, the officers decided to stand by and observe from a location
       approximately one and one-half blocks north of the lounge.

               The officers observed the lounge’s front porch lights flash on and off,
       and a person exited the lounge, walked around the building, and re-entered the
       lounge. The officers assumed that the person was looking for them. Seconds
       after the person re-entered the lounge, a neighbors’ house lights came on, and
       then people began to exit the lounge.

              Officer Lee informed the other officers of the exodus, and Officer
       Mattina was the first officer to stop a vehicle leaving the parking lot. Officers
       Pierce and Barnes drove south on Harrison Street to ensure Officer Mattina’s
       safety, passing the lounge on their right. When they learned that Officer
       Mattina did not need assistance, they drove north on Harrison, passing the
       lounge on their left. Officers Pierce and Barnes both testified that at this point,

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       they observed the defendant walking from the lounge’s porch towards a
       Toyota Corolla, and he appeared to be intoxicated because “[h]e was unsteady
       on his feet [and] had a staggered gait.” The testimony is somewhat confusing
       as to where they drove next, especially since Officers Pierce and Barnes both
       testified that they could not remember the route they took to effectuate the
       stop. However, we discern from the record that they continued north on
       Harrison, made a series of right turns, turned onto Wilson Avenue, and from
       Wilson Avenue, they drove into Max’s parking lot and parked behind the
       Toyota Corolla, preventing its departure.

              As they pulled into the parking lot, a police car was already present.
       Again the testimony is somewhat unclear as to whether another officer was on
       the lounge’s porch and provided assistance to Officers Pierce and Barnes.
       Nonetheless, the officers approached the vehicle and spoke with the defendant.
       Both officers testified that they smelled alcohol, that the defendant’s eyes were
       bloodshot, that his speech was slurred, and that he was “digging at his
       waistband and in his pockets.” Also, the defendant had difficulty exiting his
       vehicle because he was “extremely unsteady,” and he refused to follow the
       officers’ commands. Shortly after exiting the vehicle, the defendant ran in an
       easterly direction. After a foot chase, the officers caught the defendant.
       During the chase, Officer Barnes observed the defendant “digging in his
       pockets” and saw him drop something behind a heat pump. After the chase,
       Officer Barnes discovered a “baggy” containing approximately 131 grams of
       cocaine powder behind the heat pump. The officers also found loose crack
       cocaine rocks and $2,081 cash on the defendant’s person.

               The trial court denied the defendant’s motion to suppress any evidence
       of drug possession, finding that Officers Pierce and Barnes effected a traffic
       stop in front of Max’s Lounge which led to further investigation of the lounge
       by Officers Pierce and Barnes and four other police officers in a total of four
       patrol cars.

State v. Terry D. Jones, No. E2006-00228-CCA-R3-CD, 2007 WL 1515011, at *1-3 (Tenn.
Crim. App., at Knoxville, May 24, 2007). This court affirmed the trial court’s judgment
denying the petitioner’s motion to suppress. Id. On October 22, 2007, the Tennessee
Supreme Court denied the petitioner’s application for permission to appeal. Id.

        On August 26, 2008, the petitioner timely filed a pro se petition for post-conviction
relief. The post-conviction court found that the petitioner presented a colorable claim and
appointed post-conviction counsel for him. The petitioner, through post-conviction counsel,

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filed an amended petition for post-conviction relief on January 20, 2009. The state filed a
response and an amended response arguing that the post-conviction court should dismiss the
petition. On August 12, 2010, the post-conviction court held a hearing on the petition.

       At the hearing, trial counsel testified that the petitioner retained him as counsel. He
did not remember whether the petitioner was in custody when he hired him or how many
times he had met with the petitioner. He recalled that the petitioner pleaded guilty and made
a reservation regarding the stop that led to his arrest. Trial counsel said that he thought the
police officers’ stop of the petitioner was illegal. He said that the basis of the motion to
suppress the stop was that “[t]he police officers wanted to get into a private club. The doors
were locked.” Trial counsel testified that he believed the police officers did not have
probable cause to enter the club.

       Trial counsel stated that when they could not gain entry into the club,

       the police officers backed up a couple of blocks[,] laid in wait, [and] piled up
       about six police cruisers on a side street. They had a lookout outside of the
       club. And they decided they were going to pull everybody over as they left the
       club. The first car left the club [and] the first officer went and pulled [the
       driver] over.

              [The petitioner] came out and . . . started to get into his car. Police
       officers said they drove by and saw him staggering to his car, except their story
       did not make any sense because they drove off for two minutes after that and
       came back around and decided to . . . investigate.

        Trial counsel did not believe that the police officers saw the petitioner when he left
the bar. He said that when the police officers drove by the second time people were in the
car, and the police officers “rousted everybody out of the car.” Trial counsel also did not
think that the police officers had probable cause to stop the people, and he reserved the issue
of whether the officer’s had probable cause to stop the petitioner as a certified question for
appeal.

       Trial counsel said that he “spent tens of hours coordinating the videos and audio[]”
of the stop, and he played them at both the trial court and appellate court levels. Trial
counsel could not recall the officers’ exact testimony from the suppression hearing; however,
he said that they “may have said something that was maybe a little bit of a surprise.” Trial
counsel said that the police officers chased the petitioner and found cocaine near him or on
him, and the sole issue was whether the stop was “a good stop.” He said that, had the matter
gone to trial, he thought that the jury would have found that the petitioner was in possession

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of the drugs. Trial counsel stated that the petitioner never asserted his guilt or innocence to
him.

       On cross-examination, trial counsel stated that he “worked very hard on [the
petitioner’s] case because [he] believed . . . in the issue. [He] believed that [it] was a bad
stop, and [he] spent countless hours getting [the] tapes . . . coordinated.” At the motion to
suppress hearing, he played the tapes and argued the issue.

        The petitioner was in federal custody and was unable to attend the hearing; however,
he filed an affidavit asserting that trial counsel was ineffective for failing to (1) attack a “non
ranking” officer’s decision to stop one car at a time in a non exigent circumstance when a
ranking officer was present; (2) investigate Knoxville Police Department’s policy on road
blocks and checkpoints; (3) stop the suppression hearing after an officer perjured his
testimony; and (4) object to the court’s ruling “without reviewing all the evidence which [it]
would have seen and heard the unconstitutionality from police conduct.”

       After hearing the evidence, the post-conviction court took the case under advisement.
On August 26, 2010, the post-conviction court entered a written order denying post-
conviction relief. In its order, the court found that this court had previously determined the
petitioner’s claims regarding the legality of the road blocks and trial counsel’s failure to stop
the hearing after the allegedly perjured testimony. The post-conviction court further found
that there was no proof that the trial court did not review all of the evidence or that trial
counsel was ineffective. Accordingly, the post-conviction court denied the petition for post-
conviction relief, and the petitioner now appeals the post-conviction court’s denial of relief.

                                            Analysis

        On appeal, the petitioner argues that he received the ineffective assistance of counsel.
Specifically, he argues that trial counsel was ineffective for failing to “conduct a more
[thorough] and aggressive examination of the officers, and this failure prevented the trial and
appellate court[s] from [having] a more complete record on which to decide if the officers
had justifiable reason to stop the car driven by [the petitioner].” He further argues that the
trial court disregarded and did not review the video and audio evidence. The state responds
that the petitioner did not show that he was entitled to relief by clear and convincing
evidence, and the post-conviction court properly dismissed the petition. We agree with the
state.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). On appeal,
this court is bound by the post-conviction court’s findings of fact unless the evidence

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preponderates against those findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our
review of the post-conviction court’s factual findings is de novo with a presumption that the
findings are correct. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001). Our review of
the post-conviction court’s legal conclusions and application of law to facts is de novo
without a presumption of correctness. Id.

       When determining the knowing and voluntary nature of the guilty plea, the standard
is “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 (1970).
See also State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). The reviewing court must look
to various circumstantial factors, including:

       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). In order for a guilty plea to be
voluntary, the petitioner must have an understanding of the charges against him and the
consequences of pleading guilty, including “the sentence that he will be forced to serve as
the result of his guilty plea and conviction.” Id. at 905. A petitioner’s solemn declaration
in open court that his or her plea is knowing and voluntary creates a formidable barrier in any
subsequent collateral proceeding because these declarations “carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

       To establish the ineffective assistance of counsel, the petitioner bears the burden of
proving that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced the defense rendering the outcome unreliable or fundamentally unfair. Strickland
v. Washington, 466 U.S. 668, 687 (1984). See also Arnold v. State, 143 S.W.3d 784, 787
(Tenn. 2004). Deficient performance is shown if counsel’s conduct fell below an objective
standard of reasonableness under prevailing professional standards. Strickland, 466 U.S. at
688. See also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that
representation should be within the range of competence demanded of attorneys in criminal
cases). A fair assessment of counsel’s performance “requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689. See also Nichols. v. State, 90 S.W.3d 576, 587 (Tenn. 2002).
Deference is made to trial strategy or tactical choices if they are informed ones based upon

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adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a
particular strategy or tactical decision failed does not by itself establish ineffective assistance
of counsel. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves
that counsel’s representation fell below a reasonable standard, the petitioner must also prove
prejudice. Strickland, 466 U.S. at 694. In relation to a guilty plea, the petitioner must show
a reasonable probability that, but for the errors of his counsel, he would not have pled guilty
and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985);
Adkins v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994).

       Here, the petitioner argues that trial counsel did not conduct a proper cross-
examination of the police officers regarding inconsistencies between their testimony and the
audio and visual evidence. The post-conviction court accredited trial counsel’s testimony
that he had met with the petitioner and spent several hours reviewing the evidence in
preparation for trial. The court found that trial counsel did not fail in his obligations as the
petitioner’s counsel and that the petitioner’s complaints did not meet the standards set forth
in Baxter and Strickland. The evidence does not preponderate against the post-conviction
court’s findings. The petitioner has failed to meet the burden of proving that his trial
counsel’s performance was deficient by clear and convincing evidence. The record does not
suggest that trial counsel’s performance did not meet an objective standard of
reasonableness. Thus, the petitioner is not entitled to relief based on this issue.

        The petitioner also argued that the trial court failed to review the video and audio
evidence that he presented at the suppression hearing. The post-conviction court found that
there was no proof that the trial court did not review the evidence before it made its ruling
on the motion to suppress. The evidence does not preponderate against this finding.
Furthermore, considering that this court reviewed the tapes on direct appeal and found no
error, the petitioner cannot show prejudice. Moreover, the petitioner has not stated that his
guilty plea was unknowing or involuntary nor has he showed a reasonable probability that,
but for the alleged errors of his counsel, he would not have pled guilty and would have
insisted on going to trial. See Blackledge, 431 U.S. at 74; Hill, 474 U.S. at 59. Accordingly,
we conclude that the petitioner is not entitled to post-conviction relief.

                                           Conclusion

       Based on the forgoing reasons, we conclude that the petitioner’s claim is without
merit, and we affirm the denial of post-conviction relief.


                                                      ___________________________________
                                                      J.C. McLIN, JUDGE

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