        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 13, 2010

                  ORLANDO KNOX v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Madison County
                   Nos. C-08-369, 07-555     Donald H. Allen, Judge


                  No. W2009-01843-CCA-R3-PC - Filed July 26, 2010


The petitioner, Orlando Knox, appeals the Madison County Circuit Court’s denial of his
petition for post-conviction relief. The petitioner entered best interest pleas to two counts
of aggravated burglary, a Class C felony; one count of burglary, a Class B felony; two counts
of vandalism, a Class A misdemeanor; and one count of theft, a Class A misdemeanor. The
agreement prescribed an eight-year sentence, which was to be suspended following service
of six months. On appeal, the petitioner contends that his guilty plea was not knowingly and
voluntarily entered due to the ineffective assistance of counsel. Specifically, he contends that
trial counsel was ineffective in failing to adequately investigate the case and prepare for trial.
Following review of the record, we affirm the denial of post-conviction relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which N ORMA M CG EE
O GLE and A LAN E. G LENN, JJ., joined.

Joseph T. Howell, Jackson, Tennessee, for the appellant, Orlando Knox.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
James G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                     Factual Background

        The underlying facts of the case, as recited by the State at the guilty plea hearing, are
as follows:
              [On] June 26th, 2007, the sheriff’s deputies responded to the Jerry
       Crawford residence which is the indictment in Counts [one, two, and three]
       concerning an aggravated burglary of his residence. He discovered entry had
       been made and several items were taken, money and rings and a watch. I
       believe all of those were recovered, but there was a little bit of damage to his
       residence thus being the aggravated burglary of his residence, the theft of
       property under $500 in Count [two] and the vandalism under $500. While they
       were taking that report, Mr. Cherry, the victim in Counts [four and five] came
       over and filed a report that he had been burglarized, entry gained through a
       rear window into his home. No items were taken, but there was some damage
       to his residence and thus the aggravated burglary in Count [four] and the
       vandalism in Count [five] under the value of $500. In Count [six], Your
       Honor, also while Mr. Crawford was filing a report, Mr. Johnson, the victim
       in Count [six] notified the police that he was the victim of vandalism that an
       outbuilding that he owned had been entered and he kept a couple of cars in
       there and that a couple of his cars were spray painted and thus committing
       vandalism of his vehicles in this outbuilding. In Counts [seven and eight],
       Your Honor, we are moving to dismiss those. It should have been vandalism.
       He was indicted for theft, but there was no theft from Mr. Johnson, it was just
       vandalism of that property. All of these victims live in the same general area.
       These offenses occurred in Madison County, Tennessee.

               There was a witness who identified that they saw [the petitioner]
       walking up and down the street carrying a baseball bat and they asked him
       what he was doing and that he said about to break into a house. There was
       also another witness that observed several young black males, three of whom
       were identified later as juveniles involved in this matter, and they were all in
       the area and all apprehended including [the petitioner] and identified as the
       people who were responsible for perpetrating these crimes. All of these
       offenses occurred in Madison County, Tennessee, all on the same day within
       relatively the same time period, Your Honor.

       The petitioner then filed a timely pro se petition for post-conviction relief, asserting
an involuntary and unknowing guilty plea based upon the ineffective assistance of counsel.
Counsel was appointed, and an amended petition was filed. Thereafter, a hearing was held
at which the petitioner and trial counsel testified. The petitioner testified that he felt he was
pressured and coerced into accepting the best interest pleas, despite his innocence, by trial
counsel’s ineffectiveness. The nineteen-year-old petitioner testified that this was his first
felony charge as an adult and that he did not understand the ramifications of entering the
plea. He stated that trial counsel focused all his discussions on the plea agreement and did

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not discuss possible outcomes and defenses if the petitioner chose to go to trial. He further
alleged that trial counsel failed to investigate the facts of the case or interview potential
defense witnesses. He also contended that trial counsel failed to investigate possible forensic
evidence, specifically finger prints and shoe prints found at the scene, which he alleged
would have exonerated him. According to the petitioner, he was not present during the
commission of some of the crimes, but he acknowledged that he was present during the
Crawford crimes, although asserting he did not participate. On cross-examination, he
acknowledged that, in his statement to police, he admitted being present at all the crimes.

        Trial counsel testified and stated that he met with the petitioner on multiple occasions.
He stated that he reviewed all discovery materials with the petitioner, which included
statements from three co-defendants implicating the petitioner. Trial counsel testified that
the petitioner had also given a statement to the police in which he acknowledged his presence
at the crime scenes but denied participation in the actual crimes. Trial counsel further
testified that the petitioner had no alibi and that he felt there were no additional witnesses to
interview. He stated that it was the petitioner’s choice to seek a plea agreement because he
wanted to get out of jail and move forward with his life. Trial counsel stated that he
informed the petitioner of his rights, including the right to go to trial. He also testified that
the petitioner seemed happy with his plea agreement until the suspended sentence was
revoked.

       After hearing the evidence presented, the post-conviction court denied relief. This
timely appeal followed.

                                           Analysis

        On appeal, the petitioner contends that the trial court erred in denying his petition for
post-conviction relief. He asserts that his plea was not entered knowingly and voluntarily
because he was denied his right to the effective assistance of counsel. 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 (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

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       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 made voluntarily and intelligently. Hill
v. Lockhart, 474 U.S. 52, 56 (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 (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; 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). However, this deference to the
tactical decisions of trial counsel 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) (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.

I. Ineffective Assistance of Counsel

       The petitioner contends that he was denied his right to the effective assistance of

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counsel because trial counsel failed to adequately investigate the facts of the case and prepare
for trial. Specifically, he contends that trial counsel should have explored possible
exculpatory forensic evidence, the facts surrounding the case, and possible defense witnesses.
He asserts that trial counsel focused only on plea negotiations rather than on trial preparation.
He contends that trial counsel’s alleged ineffectiveness “coerced” him into pleading guilty,
thereby establishing the prejudice prong as well.

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

               The Court credits the testimony of [trial counsel] when he testified that
       his client wanted to “work out” a guilty plea arrangement with the State and
       was willing to enter a guilty/best interest plea in exchange for probation.
       Furthermore, the willingness of at least two [of] the three juveniles involved
       in these burglaries to testify that [the petitioner] was also involved in these
       same burglaries, along with the [petitioner’s] own statements and admissions
       in this case along with his presence at [the] scene of the crimes, made for a
       relatively strong case against [the petitioner].

               The Court finds that the [advice] given and the services rendered by
       [trial counsel] were well within the bounds of generally accepted professional
       standards. Likewise, nothing presented in the evidence suggests that [the
       petitioner] was in any way pressured or coerced into entering his guilty/best
       interest plea, or that he desired to go to trial in this case. The Court does not
       credit [the petitioner’s] testimony as truthful when he stated that he [did not]
       understand what he was doing at the time his plea was entered.

         Review of the record reveals nothing to preponderate against the post-conviction
court’s findings that relief should be denied. The court expressly accredited the testimony
of trial counsel that it was the petitioner’s decision to proceed with the plea agreement after
trial counsel had explained all the rights available to him. It has been held on multiple
occasions that “questions of credibility of witnesses, the weight and value of the evidence,
and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of facts.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). As such, the post-conviction
court’s credibility determinations will not be revisited on appeal.

        Moreover, the petitioner failed to produce any forensic evidence or possible witnesses
at the post-conviction hearing. It is the burden of the petitioner to produce witnesses and to
establish what their testimony would have been at trial. Pursuant to Black v. State,
production of these witnesses is generally the only way to establish that the failure to
discover or interview witnesses “inured to his prejudice” or that “the failure to have a known

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witness present or call the witness to the stand resulted in the denial of critical evidence
which inured to the prejudice of the petitioner.” Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). Thus, the petitioner also failed to establish the prejudice prong by his
failure to produce this evidence at the hearing. As such, we must conclude that the petitioner
has failed to carry his burden of establishing the ineffective assistance of counsel.

II. Unknowing/Involuntary Plea

        The petitioner also makes the assertion that his plea was not entered knowingly and
voluntarily because of the ineffective assistance of counsel. He relies upon his youth, limited
education, and lack of experience with the criminal justice system to support his argument.
However, having concluded that trial counsel was not ineffective, this argument must also
fail. Nonetheless, we would note that the record fully supports the post-conviction court’s
ruling that the plea was entered knowingly and voluntarily. As previously noted, trial
counsel testified that he explained the plea agreement and all rights available to the
petitioner. He stated that there was no indication that the petitioner did not understand and,
further, that it was the petitioner’s decision to proceed with the agreement based upon his
desire to be released from custody. Moreover, the record indicates that, at the guilty plea
hearing, the trial court conducted an extensive voir dire of the petitioner prior to the
acceptance of the plea agreement. The petitioner stated on the record that he wanted to enter
the best interest plea, understood his rights, and was satisfied with the representation he had
received. Thus, our review of the record affirmatively demonstrated that the petitioner’s plea
“represent[ed] a voluntary and intelligent choice among the alternative courses of action open
to the [petitioner].” See Alford, 400 U.S. at 31.

                                      CONCLUSION

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




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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