                                                                                          07/11/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 16, 2018

         RAYMOND THOMAS SWEATT v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2015-B-1506 Steve R. Dozier, Judge
                     ___________________________________

                           No. M2017-01803-CCA-R3-PC
                       ___________________________________

The Petitioner, Raymond Thomas Sweatt, appeals the Davidson County Criminal Court’s
denial of his petition for post-conviction relief from his convictions of robbery and
carjacking and resulting effective twenty-year sentence. On appeal, the Petitioner
contends that he received the ineffective assistance of trial counsel, which resulted in his
guilty pleas being unknowing and involuntary. Based upon the record and the parties’
briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and ROBERT H. MONTGOMERY, JR., JJ., joined.

Manuel B. Russ, Nashville, Tennessee, for the appellant, Raymond Thomas Sweatt.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Glenn R. Funk, District Attorney General; and J. Wesley King, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       In June 2015, the Davidson County Grand Jury indicted the Petitioner and his
codefendant, Summer Sawyers, for aggravated robbery, a Class B felony; carjacking, a
Class B felony; and possessing a weapon during the commission of a dangerous felony, a
Class C felony. On September 2, 2016, the Petitioner pled guilty to robbery and
attempted carjacking, Class C felonies, and the State dismissed the weapon charge.
Pursuant to the plea agreement, the Petitioner was to receive consecutive, ten-year
sentences as a Range II, multiple offender.
       At the guilty plea hearing, the State advised the trial court that on May 3, 2015, the
male victim went to watch a fight at the San Jose Fiesta Restaurant on Wallace Road.
Sawyers approached him and asked for a ride to an apartment complex on Maudina
Road. The victim agreed and drove Sawyers to the apartment complex. There, the
Petitioner and an unidentified male stopped the victim’s Honda. Sawyers got out of the
Honda, and the Petitioner, who was armed with a handgun, pulled the victim out of the
car. Sawyers got back into the Honda and fled with the vehicle. The victim gave the
Petitioner and the unidentified male his wallet containing $200, and the two men punched
the victim and knocked him to the ground. When the victim tried to get up, the two men
knocked him unconscious and fled the scene. Two days later, a police officer stopped the
Honda for a traffic violation. The Petitioner was driving the car.

        On February 17, 2017, five months after the Petitioner pled guilty, he filed a
petition for post-conviction relief, claiming that he received the ineffective assistance of
counsel in that trial counsel failed to inform him about the “ramifications of [his] plea
deal.” The post-conviction court appointed counsel, and counsel filed an amended
petition. In the amended petition, the Petitioner claimed that he received the ineffective
assistance of counsel because trial counsel knew he wanted to go to trial, did not properly
prepare his case for trial, and insisted that he plead guilty. The Petitioner also claimed
that his guilty pleas were unknowing and involuntary because trial counsel failed to
“make it clear” to him that he would serve the two, ten-year sentences consecutively for a
total effective sentence of twenty years.

       At the evidentiary hearing, the Petitioner testified that trial counsel represented
him for almost one year before he pled guilty. The Petitioner “mostly” saw trial counsel
at court dates, but counsel met with him in jail “every once in a while.” The Petitioner
received discovery from the State, and trial counsel and the Petitioner discussed some of
the State’s evidence. The State made five or six plea offers to the Petitioner, but the
Petitioner rejected them because he wanted to go to trial. Trial counsel and the Petitioner
discussed possible sentences if the jury convicted him of aggravated robbery and
carjacking, and trial counsel told the Petitioner that he was facing a “substantial” amount
of time in confinement. Nevertheless, the Petitioner wanted to go to trial.

        The Petitioner testified that his codefendant, Sawyers, was his girlfriend at the
time of the crimes but was going to testify against him at trial. The Petitioner’s planned
trial strategy was that the victim could not identify him in a photograph array and that
Sawyers’ testimony was “lies.” The Petitioner was on parole when he was charged in
this case, and his parole was revoked. He met with the parole board, and the board asked
him about the new charges. The Petitioner told the parole board that “I assaulted
someone, but I didn’t steal no car. I didn’t rob no one.” Trial counsel later told the
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Petitioner that his statement to the parole board was harmful to his case. The Petitioner
disagreed with counsel and told counsel that he “didn’t admit to nothing having to do
with the crime.”

       The Petitioner testified that about three weeks before his scheduled trial date, trial
counsel told him that the State had made a “better” offer for “10-years at 35 . . . for
simple robbery and attempted car jacking.” The Petitioner did not want to take the offer,
but counsel did not want the Petitioner to go to trial. The Petitioner said that trial counsel
“wasn’t ready to go to trial to fight” on his behalf and that trial counsel said his case
“look[ed] bad.” The Petitioner stated that counsel “was basically all doubts and negative
speaking” and that he wanted to go to trial but not with trial counsel. Therefore, he did
not think he had any choice but to accept the State’s offer.

       The Petitioner testified that when he pled guilty, he thought his effective sentence
was going to be “collectively 10.” He explained, “Because in 2009 when I signed for my
time, I had two 8’s and a 6 and they was collectively eighteen. So I was expecting the
same thing [in this case].” He acknowledged that trial counsel went over the plea
agreement form with him, that the form stated he was going to serve the sentences
consecutively, and that he signed the form. He also acknowledged that the judgments of
conviction reflected consecutive sentences and that the trial court told him at the guilty
plea hearing that he was receiving an effective twenty-year sentence. He acknowledged
that he did not pay much attention to what the trial court said at the hearing and said that
he did not realize he had received a twenty-year sentence until he got to prison. Post-
conviction counsel asked how the Petitioner could have misunderstood the length of his
effective sentence, and the Petitioner stated,

              When I was signing the plea -- I wanted to go to trial, but
              when I signed the plea, I was thinking that the 10s was
              together. At first I thought it was the ten for the robbery or
              the ten for attempted car jacking, but then I guess I realized it
              -- I thought they was going to be just one -- one 10.

       On cross-examination, the Petitioner acknowledged that trial counsel told him that
he was facing twelve to twenty years to be served at 85% release eligibility for
aggravated robbery, twelve to twenty years for carjacking, and a mandatory consecutive
sentence to be served at 100% for possessing a weapon during the commission of a
dangerous felony. However, the Petitioner wanted to go to trial. At first, the Petitioner
and trial counsel thought the Petitioner had a strong case. In February 2016, though,
Sawyers pled guilty and agreed to testify against the Petitioner. The Petitioner
acknowledged that she was going to say he committed the crimes. He said he still
wanted to go to trial because Sawyers was lying “about a lot of things.”
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       The Petitioner testified that in 2009, he pled guilty to aggravated robbery,
attempted aggravated robbery, and carjacking. He acknowledged that he pled guilty to
those offenses because he was afraid of the potential punishments. He was on parole for
those convictions when he committed the offenses in this case. When the Petitioner met
with the parole board, he told the board that he did not rob anyone or take anyone’s car
but that he was “assaulting the guy [for] the way he was touching my old lady.”

        The Petitioner testified that he used to take mental health medications but that he
had not taken them “in a long time.” He said that he dropped out of school in the eighth
grade but obtained his GED, that he could read and write, and that he understood the
allegations in this case but did not understand “legal terms.” The Petitioner did not have
any mental or psychological issues on the day of his guilty plea hearing. He
acknowledged that trial counsel went over the plea agreement form with him but said that
he did not remember counsel’s telling him that he would serve the two, ten-year
sentences consecutively. He then said that trial counsel told him that he was going to
serve the two sentences consecutively but that counsel did not tell him that he was going
to receive a twenty-year sentence. The Petitioner stated, “I just thought I was getting the
total of a 10-year sentence is what it was.” The Petitioner said he should have voiced his
concerns about trial counsel during the guilty plea hearing. At the end of October 2016,
the Petitioner learned that he had an effective twenty-year sentence. By that time, it was
too late to file a motion to withdraw his guilty pleas.

        On redirect examination, the Petitioner acknowledged that although he admitted to
the parole board that he committed an assault, he did not admit to robbery or possessing a
weapon. He also acknowledged that he and trial counsel discussed the impact of his
statement to the parole board on his upcoming trial. On recross-examination, the
Petitioner testified that he did not know the victim prior to the assault. He said he was
found in the victim’s car a couple of days after the assault because Sawyers “showed up
in the car.”

       Trial counsel testified for the State that he had been licensed to practice law just
over three years and that he primarily practiced criminal defense. The trial court
appointed him to represent the Petitioner in October 2015, and their first meeting
occurred via video conference while the Petitioner was in the custody of the sheriff’s
department. Trial counsel and the Petitioner then met four to five times at the “CJC,” and
they discussed the charges against the Petitioner and his possible punishments.

      Trial counsel testified that when he first started representing the Petitioner, he
thought the Petitioner “had a good case.” The victim had misidentified the Petitioner
twice in a six-photograph array. Moreover, the defense “could very possibly have
                                           -4-
explained away the circumstantial evidence around him being found in the car and there
[was] seemingly no lack of a connection to the actual robbery.” However, Sawyers later
entered into a plea agreement with the State and agreed to testify against the Petitioner.
A detective then contacted trial counsel about an audio-recording of a parole hearing in
which the Petitioner “did admit his involvement.” At that point, trial counsel told the
Petitioner that “our biggest defense was identification.” Counsel explained to the
Petitioner that he thought he could impeach Sawyers’ testimony with the State’s plea deal
and that he could argue the Petitioner’s being found in the victim’s car was
circumstantial. It was going to be “very, very difficult,” though, to explain the
Petitioner’s admission during the parole hearing to a jury. Counsel told the Petitioner
that the admission, combined with the State’s other evidence, “would most likely lead to
a conviction.” The Petitioner understood what counsel said.

       Trial counsel testified that as the trial date approached, the State made a plea offer.
Counsel “laid out all of the cards on the table” for the Petitioner, told him the risks of
going to trial, and told him “what he was facing.” Counsel also played the recording of
the parole hearing for him. Counsel told the Petitioner that the offer was for “two 10-
year sentences consecutively at 35 percent” and that “his parole eligibility would be
roughly seven years.” The Petitioner agreed to plead guilty, so trial counsel filled out a
plea agreement form. Counsel said that his “habit” was to read plea forms to defendants
and “physically show them the portions, make sure they are seeing the portions that
contain the possible sentence. And the agreed upon sentence.” The Petitioner signed the
form. Counsel stated, “I don’t think he had any questions [about the form]. My belief
was that he understood.” During the plea hearing colloquy, the Petitioner never indicated
he did not understand the trial court’s questions. The State asked, “At any point did he
question you or [the trial court] about the 20-year sentence that he was pleading guilty
to?” Counsel answered, “Not to my recollection.” Counsel said he thought the Petitioner
“fully understood” the plea agreement and the length of his effective sentence.

       On cross-examination, trial counsel acknowledged that the Petitioner admitted at
the parole hearing to an assault but did not admit to a robbery or carjacking. Counsel
explained the theory of criminal responsibility to the Petitioner and how his being found
in the victim’s car hurt his case. Counsel said that at first, the Petitioner “absolutely”
wanted to go to trial. However, after the Petitioner heard the parole hearing recording,
counsel thought the Petitioner “felt defeated.” Moreover, Sawyers was going to testify
against the Petitioner. Counsel said he did not remember the Petitioner’s ever saying he
wanted a new attorney.

       In a written order, the post-conviction court denied the petition for post-conviction
relief. The post-conviction court specifically accredited trial counsel’s testimony that
counsel explained the length of the Petitioner’s effective sentence to him and that counsel
                                            -5-
told the Petitioner that the Petitioner would be eligible for parole after serving about
seven years in confinement. The court found that trial counsel was not ineffective. The
post-conviction court also accredited trial counsel’s testimony that he read the plea
agreement form to the Petitioner and “showed him the sentence portion.” The post-
conviction court noted that the Petitioner signed the form. The court found that the
transcript of the guilty plea hearing corroborated trial counsel’s testimony that he
explained the plea agreement to the Petitioner and found that the transcript confirmed the
Petitioner entered his pleas knowingly and voluntarily.

                                       II. Analysis

       On appeal, the Petitioner contends that he received the ineffective assistance of
counsel, which resulted in his guilty pleas being unknowing and involuntary.
Specifically, the Petitioner claims that although he wanted to go to trial, trial counsel
lacked confidence in his case and was “overly negative” about the potential outcome. As
a result, the Petitioner did not want to go to trial with trial counsel and thought he had no
choice but to plead guilty. The Petitioner also claims that trial counsel failed to advise
him that he would have to serve his two, ten-year sentences consecutively for a total
effective sentence of twenty years. The State argues that the post-conviction court
properly denied the petition. We agree with the State.

        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.



                                            -6-
        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Further,

              [b]ecause a petitioner must establish both prongs of the test, a
              failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance
              claim. Indeed, a court need not address the components in
              any particular order or even address both if the [petitioner]
              makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Moreover, in the context
of a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for
counsel’s errors, he would not have pleaded guilty but would have insisted upon going to
trial.” Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v.
Lockhart, 474 U.S. 52, 59 (1985).

        When a defendant enters a plea of guilty, certain constitutional rights are waived,
including the privilege against self-incrimination, the right to confront witnesses, and the
right to a trial by jury. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in
order to comply with constitutional requirements a guilty plea must be 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). In order to ensure that a defendant
understands the constitutional rights being relinquished, the trial court must advise the
defendant of the consequences of a guilty plea, and determine whether the defendant
understands those consequences. Boykin, 395 U.S. at 244.

       In determining whether the petitioner’s guilty pleas were knowing and voluntary,
this court looks to the following factors:

              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
                                           -7-
              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).

        As to the Petitioner’s claim that he received the ineffective assistance of counsel,
trial counsel explained at the evidentiary hearing that he thought a jury would convict the
Petitioner because Sawyers was going to testify against the Petitioner at trial and because
the Petitioner made a statement to the parole board admitting his involvement in the
crimes. If convicted, the Petitioner was facing a “substantial” amount of time in prison.
Due to the problems with the Petitioner’s case, trial counsel advised the Petitioner to
plead guilty, and the Petitioner took his advice. Trial counsel testified that he explained
the plea agreement, including the effective twenty-year sentence, to the Petitioner, and
the post-conviction court accredited counsel’s testimony. Therefore, the Petitioner has
failed to demonstrate that counsel rendered deficient performance or that he was
prejudiced by any deficiency.

        As to the Petitioner’s claim that his guilty pleas were unknowing and involuntary,
trial counsel testified that he explained the risks of going to trial to the Petitioner and that
the Petitioner decided to accept the State’s offer to plead guilty in exchange for two
consecutive ten-year sentences to be served at 35%. Trial counsel stated that he went
over the guilty plea form with the Petitioner and that the Petitioner never questioned his
effective sentence. We note that the form is in the appellate record and provided that the
sentences were to “run consecutively.” The form also stated that “consecutive” meant
“one after the other.” At the guilty plea hearing, the trial court repeatedly informed the
Petitioner that the ten-year sentences were to be served consecutively. Our review of the
plea hearing transcript reveals that the trial court never specifically advised the Petitioner
that his effective sentence would be twenty years. However, trial counsel testified that he
thought the Petitioner understood the length of his effective sentence. Moreover, the
Petitioner answered yes and no at the appropriate times during the guilty plea hearing,
never questioned the length of his effective sentence, and never expressed any concern
about trial counsel’s representation. The Petitioner could read and write, was familiar
with criminal proceedings because he had pled guilty to almost the exact same offenses
previously, and was facing a substantially greater punishment if convicted at trial. Thus,
we conclude that the post-conviction court did not err in ruling that the Petitioner entered
his guilty pleas knowingly and voluntarily.



                                             -8-
                                 III. Conclusion

       Based upon the record and the parties’ briefs, we affirm the post-conviction
court’s denial of the petition for post-conviction relief.


                                      ____________________________________
                                      NORMA MCGEE OGLE, JUDGE




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