                                                                                         12/05/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 7, 2017

                 RONALD CURRY v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                      No. 13-00365       Chris Craft, Judge
                     ___________________________________

                           No. W2016-02158-CCA-R3-PC
                       ___________________________________


The petitioner, Ronald Curry, pled guilty to rape of a child for which he received a
sentence of twenty-five years. He filed the instant post-conviction petition, and following
an evidentiary hearing, the post-conviction court denied relief. On appeal, the petitioner
contends that trial counsel was ineffective for failing to adequately evaluate the mental
health issues of the petitioner and for failing to secure and present evidence of his
innocence. The petitioner also claims trial counsel coerced him into pleading guilty.
Upon review of the record and the applicable law, 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. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.
and NORMA MCGEE OGLE, J., joined.

Constance Wooden Alexander, Memphis, Tennessee, for the appellant, Ronald Curry.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Melanie Cox,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                       I.     Facts from the Guilty Plea Hearing

       On December 17, 2013, the petitioner, who was twenty-one at the time of the
offense, pled guilty to rape of a child for which he received a sentence of twenty-five
years in confinement to be served at 100%. The facts underlying the plea, as explained
by the State, were as follows:

               Had this matter gone to trial, the State’s proof would have been that
       on July 23[], 2012, Memphis Police Department responded to a complaint.
       And the complainant in this case advised that his 11 year-old daughter,
       initials A.T., was the victim of a rape by [the petitioner].

              Apparently, [the petitioner] had been staying with their family. And
       during the course of that, the child disclosed that [the petitioner] waited
       until all of the adults in the house left. There were other children. [The
       petitioner] told all the kids to go outside except for [the victim]. [The
       petitioner] told [the victim] to go get on the bed. And on June the 17th, or
       thereabout, 2012, [the petitioner] forced penile/vaginal penetration on [the
       victim]. [The victim] also disclosed that she told [the petitioner] to stop
       because it hurt, but he would not and he finished.

               [The victim] was taken both to a doctor and to Rape Crisis. She was
       found to be pregnant. The pregnancy was terminated. DNA was
       performed on the tissue and it was found that [the petitioner] was the father
       of that baby.

              In addition, [the petitioner] was interviewed by the Memphis Police
       Department . . ., and he confessed. As I stated earlier, however, [the
       petitioner] did try to put some responsibility [on the victim] by saying it
       was the child’s fault.

        During the plea colloquy, the petitioner, a high school graduate, informed the trial
court that he understood his rights. The petitioner affirmed that trial counsel reviewed
the plea petition and his rights with him. He also acknowledged he had the rights to a
trial by jury, to confront witnesses against him, and to compel his own witnesses to come
to court. Finally, the petitioner affirmed he was entering his plea freely and voluntarily.
The trial court accepted the plea agreement and found the petitioner guilty of rape of a
child, sentencing him to the agreed upon sentence of twenty-five years.

                         II. Facts from the Post-Conviction Hearing

        On July 31, 2015, the post-conviction court conducted an evidentiary hearing
concerning the instant petition. The petitioner testified that trial counsel only visited him
in the jail on one occasion. He also stated trial counsel failed to provide him with a copy
of the discovery trial counsel obtained from the State. According to the petitioner, trial
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counsel’s main concern was convincing the petitioner to plead guilty. The petitioner
testified that trial counsel “force[d]” him to plead guilty by telling him and his family, “If
you go to trial[,] they are going to railroad you.”

         The petitioner testified that he provided trial counsel with a “list of things” he
wanted investigated and that he wanted trial counsel “to talk to a certain witness and my
family and talk to the victim[’s] family. He didn’t do none of that.” According to the
petitioner, trial counsel should have contacted the victim and her family because “they
had a change of heart.” The petitioner also testified that he knew he could have received
a longer sentence had he gone to trial. However, he also stated that he would have gone
to trial if he had known twenty-five years was the minimum sentence.

       On cross-examination, the petitioner testified that he wanted to go to trial but trial
counsel “kept telling me [to] plead guilty to it you’ll be alright.” The petitioner admitted,
however, that the trial court spent significant time explaining the terms of the plea and the
petitioner’s rights to him during the plea hearing. The trial court also allowed the
petitioner to meet with trial counsel and his mother before making his decision whether to
plead guilty or go to trial.

        The petitioner’s mother, Geillica Williams, and the petitioner’s brother, Vernon
Deandre Crenshaw, also testified on behalf of the petitioner during the post-conviction
hearing. While Ms. Williams could not provide any substantive examples of what trial
counsel should have done, she testified generally that trial counsel “could have [done] a
better job.” Similar to Ms. Williams’s testimony, Mr. Crenshaw questioned trial
counsel’s representation of the petitioner but was unable to articulate any examples of
what trial counsel should or could have done differently. Additionally, Mr. Crenshaw
testified the family informed trial counsel that the petitioner was mentally retarded.
However, Mr. Crenshaw admitted that he was unaware the petitioner received a mental
health evaluation.

        Trial counsel was the final witness called during the post-conviction hearing.
Trial counsel testified that he had been practicing criminal law for 34 years and, during
that time, had handled “a very fair amount” of criminal trials. Trial counsel testified he
thoroughly investigated the petitioner’s case, including requesting a mental health
evaluation to ensure the petitioner was “competent to confer with me and he understood
the proceedings.” Trial counsel explained that he did not file a formal motion for
discovery because the State provided him with open file discovery. When questioned
about his consultation with the petitioner, trial counsel noted the difficulty of a defense of
actual innocence since the petitioner confessed and DNA testing of the fetus established
the petitioner as the father.

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       On cross-examination, trial counsel noted the petitioner received the minimum
sentence allowed for the charged offense. Trial counsel also testified that the State had a
“very strong” case and, therefore, he advised the petitioner that pleading guilty was in his
best interest. In addition to explaining the strength of the State’s case and the “chances”
of a longer sentence should the petitioner choose to go to trial, trial counsel also had these
discussions with the petitioner’s mother “[a]s well as some other family members.” In
order to ensure the petitioner fully understood his options and circumstances, trial
counsel enlisted the help of another experienced attorney to speak with the petitioner and
provide him with another perspective. Trial counsel concluded his testimony stating “I’m
confident [the petitioner] made his own decision especially after talking with his mother.”

       At the close of the testimony, post-conviction counsel informed the post-
conviction court “there is some information [the petitioner] wants me to get from his
mother” and introduce in court. The post-conviction court granted the petitioner’s
request and recessed the hearing until August 28, 2015.           On August 28, 2015, the
petitioner filed, as an exhibit to his petition, “some reports from Memphis City Schools
when [the petitioner] was a student . . . in the school system.” The petitioner then argued
his school records showed he suffered “some mental health ailments” and “that he did not
understand the ramifications of submitting the guilty plea.”

       On September 23, 2015, the post-conviction court entered a written order denying
the petition for post-conviction relief. This appeal followed.

                                      III.    Analysis

                                  A. Standard of Review

       Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103
(2012). The petitioner bears the burden of proving factual allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-110(f). “Evidence is clear and
convincing when there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.” Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010)
(quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).


       When an evidentiary hearing is held in the post-conviction setting, the findings of
fact made by the post-conviction court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). The
appellate court will not reweigh the evidence and will defer to the post-conviction court’s
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findings when reviewing factual issues such as the credibility of witnesses or the weight
of their testimony. Id. However, the appellate court will review a post-conviction court’s
application of law to the facts of the case de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d
450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

                           B. Ineffective Assistance of Counsel

       Both the Sixth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution mandate that criminal defendants receive effective
assistance of counsel. Dwayne Williams v. State, No. W2014-02415-CCA-R3-PC, 2016
WL 409780 at *6 (Tenn. Crim. App. Feb. 3, 2016) (citing Cauthern v. State, 145 S.W.3d
571, 598 (Tenn. Crim. App. 2004)). To establish a claim of ineffective assistance of
counsel, the petitioner has the burden of showing both that trial counsel’s performance
was deficient, and the deficient performance prejudiced the outcome of the proceeding.
Strickland v. Washington, 466 U.S. 668, 687 (1984); accord 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)).

       The Strickland standard is a two-prong test. First, the defendant must show trial
counsel’s performance was deficient. Strickland, 466 U.S. at 687. This requires showing
counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed to the defendant by the Sixth Amendment. Id. Second, the defendant must
show the deficient performance prejudiced his defense. Id. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Id. In the context of guilty pleas, the defendant must show “a
reasonable probability that, but for the errors of his counsel, he would not have entered
the plea.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); accord Adkins v. State, 911 S.W.2d
334, 349 (Tenn. Crim. App. 1994).

        The petitioner alleges that trial counsel was ineffective for failing to “elicit the
expert opinion of an educational specialist trained in mental defects and retardations.”
However, trial counsel had a mental health evaluation conducted on the petitioner at the
outset of his representation. The evaluation revealed the petitioner understood the
charges against him and was competent to aid counsel in his defense. Furthermore, as
noted by the post-conviction court, “the petitioner presented no proof of any witnesses or
facts that might have been uncovered through a more thorough investigation. No mental
health experts were produced to refute the competency evaluation . . . .” In order “[t]o
succeed on a claim of ineffective assistance of counsel for failure to call a witness at trial,
a post-conviction petitioner should present that witness at the post-conviction hearing.”
Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008) (citing Black v. State, 794 S.W.2d
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752, 757 (Tenn. Crim. App. 1990)). “As a general rule, this is the only way the petitioner
can establish that . . . the failure to have a known witness present or call the witness to the
stand resulted in the denial of critical evidence which inured to the prejudice of the
petitioner.” Id. Because the petitioner failed to call an “educational specialist trained in
mental defects and retardation” during the post-conviction hearing, he cannot meet his
burden. See id. This issue is without merit.

        The petitioner also alleges that counsel was ineffective for failing to secure and
introduce evidence of his actual innocence. However, the petitioner failed to present any
proof of innocence during the post-conviction hearing. Additionally, the petitioner
conceded that the evidence against him consisted of the testimony of a cooperative
victim, his own confession, and DNA analysis of the victim’s unborn child establishing
the petitioner as the father. Again, in order “[t]o succeed on a claim of ineffective
assistance of counsel for failure to call a witness at trial, a post-conviction petitioner
should present that witness at the post-conviction hearing.” Pylant, 263 S.W.3d at 869.
“As a general rule, this is the only way the petitioner can establish that . . . the failure to
have a known witness present or call the witness to the stand resulted in the denial of
critical evidence which inured to the prejudice of the petitioner.” Id. Because the
petitioner failed to offer any proof refuting or contradicting the State’s proof and simply
argued counsel should have presented proof of his innocence, he cannot meet his burden.
See id. This issue is without merit.

                          C. Knowing and Voluntary Guilty Plea

       Our supreme court set forth the following standards pertaining to the constitutional
requirements for valid guilty pleas:

               The cases of Boykin v. Alabama and State v. Mackey are the
       landmark constitutional cases for analyses of guilty pleas. Boykin v.
       Alabama, 395 U.S. 238 (1969) (federal standard); State v. Mackey, 553
       S.W.2d 337 (Tenn. 1977) (state standard). In Boykin, the United States
       Supreme Court held that before a trial judge can accept a guilty plea, there
       must be an affirmative showing that it was given intelligently and
       voluntarily. Id. at 242. In order to find that the plea was entered
       “intelligently” or “voluntarily,” the court must “canvass[ ] the matter with
       the accused to make sure he has a full understanding of what the plea
       connotes and of its consequences.” Id. at 244 (emphasis added).

State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). Further, the Court has explained that
“a plea is not ‘voluntary’ if it is the product of ‘[i]gnorance, incomprehension, coercion,
terror, inducements, [or] subtle or blatant threats,’” Blankenship v. State, 858 S.W.2d
                                             -6-
897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43), or if the defendant is
“incompetent or otherwise not in control of [his] mental facilities” when the plea is
entered. Id. at 904 (quoting Brown v. Perini, 718 F.2d 784, 788 (6th Cir. 1983)). In
determining whether a plea is knowing and voluntary the court should examine the
totality of the circumstances, including the following factors:

              [T]he 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.

Powers v. State, 942 S.W.2d 551, 556 (Tenn. 1996) (quoting Blankenship, 858 S.W.2d at
904).

        In the case under submission, the petitioner contends that trial counsel “force[d]
and coerce[d] him to plead guilty . . . .” However, a review of the transcript of the
petitioner’s guilty plea does not support the petitioner’s claim. On the day of the plea, the
trial court explained, in depth, the sentence the petitioner was agreeing to as part of the
plea, even noting that “you can’t, by law, get a sentence less than twenty-five years.”
The trial court also had the State recite the proof against the petitioner. After hearing the
trial court’s explanation concerning potential sentences, a summary of the evidence
against him, and having the trial court explain the difference between pleading guilty and
a jury trial, the petitioner informed the trial court that he wanted to accept the State’s plea
offer. However, before accepting the petitioner’s plea, trial counsel requested, and was
granted, the opportunity to speak with the petitioner and to allow the petitioner to speak
with his mother. After speaking with trial counsel and his mother, the petitioner again
informed the trial court of his desire to plead guilty.

       Additionally, after the petitioner concluded his conversation with trial counsel and
his mother, the trial court again fully advised the petitioner of his rights. The transcript of
the guilty plea hearing reflects that the trial court fully questioned the petitioner regarding
his right to a jury trial, his right to testify, and his rights to call and cross-examine
witnesses. The transcript also reflects that the petitioner told the trial court that he fully
understood his rights and wished to plead guilty. The petitioner also informed the trial
court that he understood what he was doing, that he was not confused about anything, and
that he had no questions of the trial court. When voir dired by trial counsel, the petitioner
admitted that he was entering the plea “by his own choice.” The post-conviction court
found that the petitioner was not coerced and entered his pleas knowingly and
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voluntarily. Based on the record before us, we find no error in the judgment of the post-
conviction court.

                                    CONCLUSION

       Based upon the briefs of the parties, the record, and the applicable law, we affirm
the judgment of the post-conviction court.



                                            ____________________________________
                                            J. ROSS DYER, JUDGE




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