                                                                                          08/10/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 15, 2020

                DERRICK D. CARR v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Wilson County
                     No. 13-CR-651     Brody N. Kane, Judge
                     ___________________________________

                           No. M2019-00201-CCA-R3-PC
                       ___________________________________


Petitioner, Derrick D. Carr, was indicted by a Wilson County grand jury for two counts of
first-degree murder, one count of attempted first-degree murder, one count of especially
aggravated robbery, and two counts of reckless endangerment involving a deadly
weapon. Pursuant to a negotiated plea agreement, Petitioner pled guilty to second-degree
murder and attempted first-degree murder and received concurrent twenty-five-year
prison sentences. Petitioner subsequently filed a timely pro se petition for post-conviction
relief claiming that he had received ineffective assistance of counsel and that he had
newly discovered evidence from one of the victims. After an evidentiary hearing, the
post-conviction court denied the petition. After a careful review of the record, we affirm.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT L. HOLLOWAY, JR., JJ., joined.

Jay Umerley (on appeal), Laural Hemenway (at post-conviction hearing) Nashville,
Tennessee, for the appellant, Derrick D. Carr.

Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; and Justin Harris,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                              Facts and Procedural History
      Petitioner was indicted by a Wilson County grand jury on August 13, 2013, for
one count of premeditated first-degree murder, one count of felony first-degree murder,
one count of attempted first-degree murder, one count of especially aggravated robbery
and two counts of reckless endangerment that involved a deadly weapon.

        At the August 20, 2015 plea hearing, the State relayed the following facts of the
case. On August 10, 2013, Petitioner along with co-defendant, Shawn Betty, went
around the back of a house where Justin Johnson, Lereco Abston, Andre Logue, Maurice
Ward, and Darryl Wallace were playing dice. Petitioner and Mr. Betty demanded money
from the people playing dice and pulled their weapons as they made the demand. The
pair fired the weapons, hitting Mr. Johnson multiple times, and Mr. Logue one time with
gun fire. Mr. Logue was pronounced dead at the scene. Mr. Johnson was taken to the
hospital and survived his injuries.

       Lebanon Police Department officers arrived at the scene. They collected evidence
that included bullet fragments and cartridges from .45 caliber ammunition and 9
millimeter ammunition. The other dice game attendees gave statements to the officers.

       Mr. Johnson told police that he met Petitioner previously and that Petitioner was
the one that shot him. Mr. Johnson identified Mr. Betty from a photographic lineup. Mr.
Johnson stated that Petitioner and Mr. Betty were together when they came around the
house shooting. During surgery, Mr. Johnson had a .45 caliber round removed from his
shoulder, and a 9 millimeter round removed from his leg. Mr. Ward also told police that
he knew Petitioner and Mr. Betty and that they were the ones that did the shooting. Mr.
Wallace and Mr. Abston both told police that they saw the weapons and ran but they
could not identify Petitioner or Mr. Betty.

       Cecilia Beasley told police that she was asleep inside the house when she heard
the shooting. She looked out the window and saw Petitioner get into a vehicle with
another person that she did not know. Ms. Beasley recognized Petitioner because she had
met him before. Based on the witness statements, an indictment was obtained against
Petitioner and Mr. Betty.

        Police found Mr. Betty’s and Petitioner’s wallets at a home on Toshiba Drive
fifteen days after the shooting. The State claimed they would have argued that Petitioner
and Mr. Betty intentionally left their wallets behind to “get rid of their identifying
information in case they were pulled over.” Petitioner and Mr. Betty were pulled over by
police in Farmington Hills, Michigan nineteen days after the shooting. During the stop,
the pair gave officers false names. The officers properly identified Petitioner and Mr.

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Betty and took them into custody.        Petitioner agreed with the facts of the case as
presented by the State.

       Petitioner told the trial court that he understood he had the right to plead not
guilty, that the State would have to present evidence to a jury and had the burden of
proving Petitioner’s guilt, and that the jury would decide if Petitioner was guilty or not
guilty. Petitioner agreed to waive his rights and enter a guilty plea.

        Petitioner agreed that he had been effectively represented by trial counsel and that
there was nothing trial counsel had failed to do given the facts of the case. Petitioner was
not under the influence of any drugs or alcohol. Petitioner was not threatened or coerced
into pleading guilty. Petitioner agreed that it was solely his decision to plead guilty.
Petitioner agreed that trial counsel had met with him on several occasions and answered
any questions that Petitioner had prior to the hearing. Petitioner agreed that he was
pleading guilty against the advice of his family members. Petitioner agreed that trial
counsel told him that he had a chance of winning the case and what the outcomes would
be if the State won the case.

      Petitioner pled guilty to second-degree murder and attempted first-degree murder.
The other counts were dismissed. In exchange, Petitioner received twenty-five-year
sentences for each conviction. The sentences were to be served concurrently.

        On April 21, 2016, Petitioner filed a pro se petition for post-conviction relief. The
post-conviction court appointed counsel for Petitioner, and Petitioner filed an amended
petition. Petitioner argued that trial counsel failed to provide sufficient counsel for him
to fully understand the nature and consequences of trial and sentencing hearing decisions.
Petitioner claimed that trial counsel failed to inform the court of a conflict of interest, and
that trial counsel failed to advise Petitioner he could not be sentenced to the maximum
sentence within the range of his convictions absent proof of enhancement factors.
Petitioner further argued that his sentences were illegal, that new evidence from Mr.
Johnson surfaced which refuted the factual basis for Petitioner’s plea, and that certain
individuals in the court room during his plea made Petitioner fear the consequences for
him and his family if he did not plead guilty. Finally, Petitioner argued that the
cumulative effect of these arguments served as grounds for relief.

       On September 28, 2018, the post-conviction court held an evidentiary hearing.
Mr. Johnson testified that the shooting happened differently than the facts that Petitioner
had agreed to at the plea hearing. Mr. Johnson testified that Petitioner was a participant
in the dice game and that he and Petitioner got in a dispute about kissing the dice.
Petitioner had kissed the dice, and Mr. Johnson did not like it. Mr. Johnson pulled a gun
but Petitioner was able to produce his gun first and shoot Mr. Johnson. Mr. Johnson
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stated that trial counsel called him to arrange a meeting prior to the guilty plea but that
trial counsel never followed up.

        Mr. Johnson admitted that he gave a statement to police the night of the shooting
that was different than his testimony at the post-conviction hearing. Mr. Johnson stated
that when the shooting happened, all he did “was sell drugs, did drugs, and gambled.” He
was angry with Petitioner so he told the police a lie to make it look like Petitioner tried to
rob him. Since then he had changed his life and wanted to make amends. Mr. Johnson
testified that if Petitioner had gone to trial his testimony would have matched the
statement he gave the police. On cross-examination, Mr. Johnson agreed that although
each of the other witnesses’ stories matched the version Mr. Johnson had given to police,
his testimony at the post-conviction hearing was the truth.

       Petitioner testified that during the dice game, others accused him of cheating.
There was an argument that led Mr. Johnson to pull out his gun. Petitioner pulled his gun
and shot Mr. Johnson in the leg and ran to his car. As Petitioner ran, he heard other
gunshots. When Petitioner arrived at the front of the house, Mr. Betty was getting out of
the car. Petitioner told Mr. Betty to get in the car and they drove away.

        Petitioner stated that trial counsel rarely visited him due to the long travel time
from Nashville. When trial counsel did visit, all he and Petitioner spoke about was a plea
deal. Trial counsel did not discuss trial strategy with Petitioner. Trial counsel explained
to Petitioner that the plea offer was contingent on both Petitioner and Mr. Betty accepting
the offer. Trial counsel told Petitioner that “he could take the twenty-five[-year offer] or
either to go trial and more than likely get life.” Trial counsel explained to Petitioner that
the offer was valid for twenty-four hours.

      Petitioner felt that trial counsel was not ready for trial. Petitioner asked trial
counsel to interview the witnesses, specifically Mr. Johnson and Mr. Ward, to see if their
statements had changed.

       On the day of the plea hearing, Petitioner informed trial counsel that he did not
want to accept the plea offer because he acted in self-defense and was not guilty. He
wanted trial counsel to go to trial. Petitioner felt intimidated by the victim’s family and
“a couple of dudes that was there that night” who were attending the hearing. Petitioner
also felt intimidated by trial counsel because he “put his pen down hard” when it was
time for Petitioner to sign the plea agreement. Although Petitioner felt his attorney was
“not fighting” for him, ultimately Petitioner agreed to the plea because his “back was
against the wall.”



                                            -4-
       Petitioner dismissed the entirety of his plea colloquy testimony. Petitioner
claimed that he “was not in a right state of mind” and “was just ready to get it over with.”
He claimed that he “really wasn’t listening to what the [trial court] said.” Petitioner
wanted trial counsel to come see him more often and discuss trial strategy so that they
would “build a better relationship” and so that trial counsel would have “really believed
in what [Petitioner] was telling him was going on and that [trial counsel] would have
fought for [Petitioner] even harder . . . and take my case more seriously.”

      Trial counsel testified that he had been a criminal defense attorney for about
twenty-five years. Trial counsel visited with Petitioner six to eight times, possibly more,
while Petitioner was housed in Davidson County, for an hour or more each visit. Some
days he visited Petitioner more than once. Trial counsel met with Petitioner more often
when Petitioner was transferred to Wilson County. Trial counsel petitioned the court to
appropriate funds for a private investigator and that he ultimately received those funds.

       The private investigator met with Petitioner multiple times. The investigator tried
to reach out to the witnesses, but had no cooperation from any of them. Trial counsel
tried to get assistance from Petitioner’s mother to see if she could get some of the
witnesses to speak to the investigator. No witnesses would cooperate.

       Trial counsel stated that he was unaware of any conflict that he had in Petitioner’s
case. Trial counsel believed that Petitioner’s mother had raised the issue about the
possibility that trial counsel represented a relative of one of the victims in this case. Trial
counsel did not know who it was.

       During plea negotiations, trial counsel recalled that Petitioner wanted a ten-year
deal, and the State’s best offer initially was thirty years. The parties came to an
agreement of twenty-five years about a week prior to the trial date. Petitioner asked a lot
of questions and understood the agreement. Trial counsel stated that Petitioner asked
about mitigating factors. Trial counsel told Petitioner that mitigating factors only came
into play if they had a sentencing hearing and would not come into play in an agreed
upon plea.

       Trial counsel testified that the problem during negotiations was the six count
indictment, particularly the felony murder charge. Trial counsel felt that the State would
have a difficult time proving the premeditated first-degree murder charge. He felt if the
State could prove the underlying robbery charge, Petitioner was “in a lot of trouble.”
Trial counsel stated that he told Petitioner that there was a fifty/fifty chance of acquittal.
Trial counsel explained to Petitioner that “because of the felony murder, . . . if [the State]
could prove robbery, the rest – it all falls into place for the State.” Trial counsel told
Petitioner that if the State could not prove robbery, Petitioner would “go home.” If the
                                             -5-
State proved the robbery, he told Petitioner that he would get life in prison. Trial counsel
felt he had a winnable case, but it was not a certainty. Trial counsel believed that the fact
that Petitioner fled to Michigan and gave a false identity would present a problem for
Petitioner at trial. Trial counsel kept Petitioner’s files in storage with outlines ready for
trial. Trial counsel was prepared to go to trial if that was what Petitioner decided.

       Trial counsel was familiar with the witness statements. He knew that each witness
had provided “very detailed statements.” Trial counsel believed Mr. Ward was a “wild
card.” Mr. Ward made several statements and had changed his statement a couple of
times. Mr. Ward was an FBI informant and trial counsel believed him to be “not a very
savory character.”

        On cross-examination, trial counsel stated that the “whole case was a contradiction
from a defense perspective.” Because of the contradictions, that is why trial counsel told
Petitioner that he thought it was a winnable case. Trial counsel stated that it was “a
struggle for [Petitioner]” to decide whether to take the plea offer. Trial counsel stated
that “[t]o say there was not evidence to convict [Petitioner], [trial counsel didn’t] think
that [was] accurate either or certainly we would not have [accepted the plea].” The
statement from Mr. Johnson said that Petitioner attempted to rob him. Trial counsel
testified that Mr. Johnson’s statement was “[p]retty strong evidence and [trial counsel]
had [his] work cut out for Mr. Johnson. [Mr. Johnson] wouldn’t speak with [the] private
investigator. That was a problem.” Petitioner never admitted guilt to trial counsel.
Petitioner always claimed it was self-defense.

       Co-counsel testified and confirmed that he was trial counsel’s law partner and that
he had agreed to meet with Petitioner and help with jury selection as a favor to trial
counsel. Co-counsel was present when trial counsel presented the plea offer to Petitioner.
Co-counsel observed trial counsel explain the plea offer, talk about the chances of
winning the case, and explain the time Petitioner faced if he did not win at trial.
Petitioner did not accept the plea at the meeting, but trial counsel told Petitioner to
discuss the plea offer with his family.

       At a subsequent meeting, Petitioner indicated to co-counsel and trial counsel that
his family did not want him to accept the plea offer but that Petitioner had decided to
accept the offer anyway. Petitioner asked questions about the plea offer and trial counsel
answered. Co-counsel did not witness Petitioner sign the agreement.

       The post-conviction court found that

       [t]he essential issue in a [p]etition alleging ineffective assistance of counsel
       is whether [Petitioner’s] attorney’s representation fell below an objective
                                            -6-
       standard of reasonableness for criminal attorneys. The Petitioner has failed
       to meet his burden of showing that Counsel’s representation was performed
       outside the range of competence and that but for Counsel’s mistakes, he
       would not have pled guilty and instead gone to trial.

The post-conviction court found Petitioner’s arguments without merit and dismissed the
petition. It is from that dismissal that Petitioner now appeals.

                                          Analysis

        Petitioner argues that the trial court erred in determining that trial counsel was not
ineffective and that the plea was made voluntarily. The State argues that Petitioner has
not shown that trial counsel performed deficiently or prejudicially during plea bargaining.
The State argues that the post-conviction court’s decision to dismiss the petition should
be affirmed. We agree with the State.

        Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a post-
conviction court’s findings of fact are conclusive unless the evidence preponderates
otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions
concerning witness credibility, the weight and value to be given to testimony, and the
factual issues raised by the evidence are to be resolved by the post-conviction court, and
an appellate court may not substitute its own inferences for those drawn by the post-
conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However,
the post-conviction court’s conclusions of law and application of the law to the facts are
reviewed under a purely de novo standard, with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).

       Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a 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 the two
prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
                                            -7-
must prove that counsel’s performance was deficient and that the deficiency prejudiced
the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that the same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). Because a petitioner must establish both elements in
order to prevail on a claim of ineffective assistance of counsel, “failure to prove either
deficient performance or resulting prejudice provides a sufficient basis to deny relief on
the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “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 v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” State v. Burns,
6 S.W.3d 453, 462 (Tenn. 1999).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694).

       To satisfy constitutional standards of due process, a guilty plea must be entered
knowingly, intelligently, and voluntarily. Boykin v. Alabama, 395 U.S. 238, 243 (1969).
When 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. See
State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); Chamberlain v. State,
815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). This Court may consider the following
circumstantial factors:

      the relative intelligence of the defendant; the degree of his familiarity with
      criminal proceedings; whether he was represented by competent counsel
                                           -8-
        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 trial.

Blankenship v. State, 858 S.W.2d 897, 905 (Tenn. 1993). “[A] plea is not ‘voluntary’ if it
results from ignorance, misunderstanding, coercion, inducements, or threats.” Ward v.
State, 315 S.W.3d 461, 465 (Tenn. 2010). “Before a Tennessee court can accept any
guilty plea, the court must determine that the defendant is pleading guilty voluntarily and
with an understanding of the nature of the plea and its consequences” and that there is an
adequate factual basis for the plea. Hicks, 983 S.W.2d 240 at 247. A defendant’s solemn
declaration in open court that his 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).

        Specifically, Petitioner argues that trial counsel did not discuss any trial strategy
with him and that “failure to communicate any strategy seems unprofessional and below
the standard of reasonableness for a criminal defense attorney.” Petitioner argues that but
for trial counsel’s lack of communication regarding strategy, he would have gone to trial
and not pled guilty. Petitioner appears to argue that because Mr. Johnson changed his
story, trial counsel was ineffective.1

        Here, trial counsel met with Petitioner multiple times, twice in the presence of co-
counsel. Trial counsel informed Petitioner that the case was winnable and had a
fifty/fifty chance of a favorable outcome. Trial counsel stated that he informed Petitioner
that the premeditated first-degree murder charge would be difficult for the State to prove
but given Mr. Johnson’s original statement, it would be difficult to defend the felony
murder charge. Trial counsel thoroughly went over the sentencing guidelines and
informed Petitioner about sentence exposure if he were convicted at trial. Trial counsel
used a private investigator to prepare for trial. He also developed a strategy based on
Petitioner’s assertion of self-defense and the credibility of the State’s witnesses.
Petitioner asked questions of trial counsel, and trial counsel obliged Petitioner with an
answer to each question. Trial counsel suggested that Petitioner consult with his family
while trying to come to his decision to accept the plea offer. In his plea colloquy,
Petitioner acknowledged that trial counsel had done everything he needed to do and


        1
         Petitioner raised additional allegations of ineffective assistance of counsel in his petition for
post-conviction relief, but has abandoned those allegations on appeal. See Jackson v. State, No. W2008-
02280-CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn Crim. App. Oct. 26, 2009), perm. app. denied
(Tenn. Apr. 16, 2010). Therefore, we will not address them on appeal.

                                                  -9-
answered any questions Petitioner had prior to the plea hearing. Petitioner stated that no
one had threatened or promised him anything in order for him to plead guilty.

       The post-conviction court found that “[trial counsel] did everything required of
him in his representation of Petitioner. This [c]ourt cannot make a finding that [trial
counsel] failed, in any respect, in his manner of representation.” The post-conviction
court further found that “[t]his appears to be a case where Petitioner has grown to regret
his decision and has resort[ed] to this petition to withdraw his guilty plea.” The post-
conviction court found that “a review of the guilty plea transcript reveals the decision to
plea was his and his alone, and was not the result of coercion or ineffective assistance [of
counsel].” The evidence does not preponderate against the findings of the post-
conviction court. Petitioner is not entitled to relief.

       We discern that Mr. Johnson’s testimony at the post-conviction petition
evidentiary hearing fails to prove that trial counsel was ineffective. Trial counsel sent an
investigator to speak with Mr. Johnson. Mr. Johnson was uncooperative. Further, Mr.
Johnson admitted that he would have testified consistent with his original statement to
police if this case had gone to trial. The post-conviction court found that “[t]hough [Mr.
Johnson’s] testimony, if true, [was] concerning to the [c]ourt it does not relate to the
issues before the [c]ourt on a post-conviction petition.” We agree. This issue is without
merit.

                                        Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.



                                              ____________________________________
                                              TIMOTHY L. EASTER, JUDGE




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