       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                         Assigned on Briefs March 25, 2015


         DAVID ANTHONY LAJENISS v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Sullivan County
                 No. C60,687    Robert H. Montgomery, Jr., Judge




                 No. E2014-01434-CCA-R3-PC – Filed July 7, 2015
                       _____________________________


David Anthony Lajeniss (“the Petitioner”) filed a petition for post-conviction relief
claiming that he received ineffective assistance of counsel and that his guilty plea was
involuntary and unknowing. After a hearing, the post-conviction court denied relief.
Upon 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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which JOHN
EVERETT WILLIAMS, and NORMA MCGEE OGLE, JJ., joined.

C. Brad Sproles, Kingsport, Tennessee, for the Appellant, David Anthony LaJeniss.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Barry Staubus, District Attorney General; and William Harper, Assistant District
Attorney General, for the Appellee, State of Tennessee.
                                           OPINION

                            Factual and Procedural Background

                                   Guilty Plea Proceedings

       The Sullivan County Grand Jury indicted the Petitioner with one count of
attempted first degree murder and two counts of aggravated assault. 1 The Petitioner
pleaded guilty to both counts of aggravated assault, which were merged. Pursuant to a
plea agreement, the Petitioner was sentenced out of range to twelve years‟ incarceration
with a 30% release eligibility. The attempted first degree murder charge was dismissed.

       During the plea colloquy, the trial court explained that a Range I sentence for
aggravated assault normally carried three to six years and a Range III sentence normally
carried ten to fifteen years. The Petitioner affirmed that he understood the charges
against him, their respective ranges of punishment, and that he was not a Range III
offender. Additionally, the following exchange took place:

       THE COURT: Now, I‟m sure your attorney also explained to you that if
       you went to trial on this attempt to commit first-degree murder that that‟s a
       Class A felony and it carries 15 to 25 years and so it would appear probably
       what you‟re doing is agreeing to a longer sentence but at a lower
       percentage. Is that what you‟re doing as part of your plea agreement in this
       case?

       [THE PETITIONER]: Yes, sir.

       THE COURT: Now do you have any questions about that?

       [THE PETITIONER]: No, sir, I just wanted to ask if you could file for
       immediate transfer.

        The trial court informed the Petitioner of his rights to a trial by jury, to have
representation during a trial, to be present at the trial, to cross-examine witnesses, to
maintain his innocence, to call his own witnesses, to remain silent, and to appeal. The
Petitioner affirmed that he understood these rights and that he knowingly and voluntarily
gave them up in exchange for the plea agreement. The Petitioner denied being forced,
threatened, coerced, intimidated, or pressured into accepting the plea agreement. He also
stated that he was not under the influence of any drug or narcotic.



       1
          It appears that the Petitioner was also indicted on a fourth count. However, because the
indictment is not included in the record on appeal, we must glean the Petitioner‟s charges from the
transcript of the guilty plea proceedings.
                                               -2-
       The State made the following offer of proof:

       [O]n July the 7th, 2010[,] officers with the Kingsport Police Department
       were called to 1501 Waverly Road in Kingsport, Sullivan County. When
       they arrived there they found the victim in this case whose name was Lloyd
       Allen McDavid who had been beaten and assaulted by three individuals,
       Mr. Troy Bartley, Mr. Andrew Goldbach, and [the Petitioner]. The State‟s
       proof would be that, on that evening Mr. McDavid was walking in the area
       of the Waverly Road near the back of the laundry mat when he ran into
       those three individuals who produced an axe handle as well as a knife and
       began threatening Mr. McDavid calling him a snitch. Evidently Mr.
       Bartley had learned that Mr. McDavid had been cooperating with the
       Kingsport Vice Unit and the three of those individuals then began attacking
       Mr. McDavid hitting him several times in the head, kicking him in the
       body. As a result of this assault Mr. McDavid was taken to Holston Valley
       Hospital where he was treated for various injuries including a broken left
       arm . . . .

       Before entering his plea, the Petitioner confirmed his satisfaction with the
representation of trial counsel. After accepting the Petitioner‟s plea, the trial court
merged both counts of aggravated assault and sentenced the Petitioner to twelve years‟
incarceration with a Range I 30% release eligibility.

                               Post-Conviction Proceedings

       The Petitioner filed a petition for post-conviction relief claiming he received
ineffective assistance of counsel when trial counsel failed to, among other things: (1)
properly advise the Petitioner about the possibility of his co-defendants‟ testifying against
him at trial; (2) obtain forensic tests of the weapons used in the commission of the
offense; (3) interview or subpoena possible defense witnesses; (4) investigate the victim‟s
level of intoxication at the time of the offense; (5) obtain a recorded conversation with
the victim that could have been used to impeach the victim‟s testimony; and (6) advise
the Petitioner that he could have filed a motion to withdraw his guilty plea within thirty
days of its entry. Additionally, the Petitioner claimed that his guilty plea was
involuntarily and unknowing.

       At the post-conviction hearing, the Petitioner testified that trial counsel was
ineffective for failing to “properly” advise him about the possibility that his co-
defendants, Troy Bartley and Andrew Goldbach, could testify against him at trial. Trial
counsel told the Petitioner that his co-defendants may testify against him. However, the
Petitioner claimed that Mr. Goldbach was actually deceased at the time the Petitioner
entered his guilty plea. Had the Petitioner known of Mr. Goldbach‟s death, he would
have rejected the plea and proceeded to trial.


                                            -3-
        The Petitioner also claimed that trial counsel was ineffective for failing to
investigate the victim‟s level of intoxication at the time of the offense. The Petitioner
noted that a drug screen was requested for the victim. However, the Petitioner believed
that the Kingsport Police Department (“KPD”) vice unit cancelled the screen before it
was performed. The Petitioner stated that he discussed the cancelled drug screen with
trial counsel. The Petitioner averred that, had the test been performed, it would have
shown that the victim was under the influence of drugs and alcohol on the day of the
offense. The Petitioner stated that such evidence would have helped his defense and
shown that the victim lied during the preliminary hearing. Additionally, the Petitioner
explained that trial counsel‟s failure to investigate the victim‟s drug use on the day of the
offense made the Petitioner feel that he “had no way of providing a reasonable defense.”
Consequently, the Petitioner accepted the plea deal.

         The Petitioner averred that trial counsel should have obtained forensic testing of
the knife and axe handle that were used in the offense. The Petitioner explained that
those weapons were in the State‟s custody and were never tested for physical evidence
such as blood or fingerprints. The Petitioner told trial counsel that he wanted the
weapons to be tested, but trial counsel informed him that the trial court likely would not
grant a request for tests. The Petitioner claimed that had the knife been tested, the results
would have shown that any blood on the knife was the Petitioner‟s, not the victim‟s.
Additionally, forensic testing of the axe handle would have shown fingerprints from two
individuals on the handle, not three. The Petitioner explained that he and Mr. Bartley had
both held the axe handle a couple of days before the offense. The Petitioner claimed that
forensic tests showing only two fingerprints on the axe handle would contradict the
victim‟s claim that all three co-defendants had used the axe handle to beat him. The
Petitioner claimed that had the forensic testing been performed, he would have proceeded
to trial instead of accepting a guilty plea.

        The Petitioner claimed that trial counsel was ineffective for failing to subpoena
Emily Gibson. Ms. Gibson was the mother of the Petitioner‟s daughter. Earlier on the
day of the offense, the Petitioner accompanied Ms. Gibson to the hospital to find out if
she was pregnant. The Petitioner claimed that, had Ms. Gibson been subpoenaed and
testified about the Petitioner‟s activities during the day of the offense, her testimony
would have shown that the Petitioner had not planned to kill the victim, thereby
undermining the attempted first degree murder charge. The Petitioner told trial counsel
about Ms. Gibson. The Petitioner believed that trial counsel may have spoken with Ms.
Gibson on the phone, but trial counsel did not subpoena Ms. Gibson. Prior to the
scheduled trial date, Ms. Gibson disappeared. The Petitioner stated that, had she been
under subpoena and available to testify at trial, he would not have entered a guilty plea
and would have proceeded to trial.

       The Petitioner also claimed that trial counsel failed to investigate allegations that
the victim had threatened Ms. Gibson in order to prevent her from testifying. According

                                            -4-
to the Petitioner, the victim contacted Ms. Gibson and said, “You need to stop talking
about the case and [] if you don‟t then I‟m going to put you away, I‟m going to make sure
your kids get taken by social services.” Several people, including the Petitioner‟s mother,
heard the threat. Shortly after the threat, Ms. Gibson disappeared. The Petitioner
informed trial counsel of the threat, but the Petitioner did not know whether trial counsel
tried to contact Ms. Gibson to discuss the threat before she disappeared.

        The Petitioner asserted that trial counsel was ineffective for failing to investigate
or call witnesses to impeach the victim‟s testimony that the Petitioner and his co-
defendants knew that the victim was a confidential informant for KPD. The Petitioner
stated that Kathy Smith was on the scene at the time of the offense, and she would have
testified that the Petitioner and his co-defendants were not waiting for the victim and
“brandishing weapons” as the victim claimed. The Petitioner asked trial counsel to
interview Ms. Smith and to subpoena her. However, trial counsel failed to do either
because he could not find Ms. Smith.

       The Petitioner also claimed that trial counsel failed to investigate witnesses who
reported seeing the victim days after the preliminary hearing showing no signs of injury.
Ms. Gibson and Ms. Smith saw the victim playing with children. He had a sling on his
arm but was moving his arm in a way that it appeared his arm was not hurt. According to
the Petitioner, the victim had testified at the preliminary hearing that he could not move
his arm. The Petitioner told trial counsel about this encounter, but trial counsel did not
investigate the issue further.

        The Petitioner also claimed that trial counsel was ineffective for failing to
investigate exculpatory statements the victim made, which were recorded by Ms. Gibson
and Ms. Smith. Ms. Gibson told the Petitioner that she had a recording of the victim
telling Ms. Smith that the Kingsport district attorney and KPD vice unit told him to “say
and do everything to put [the Petitioner and his co-defendants] away for a long time.”
The Petitioner asked trial counsel to obtain a copy of the recording, but trial counsel told
him the recording was probably inadmissible. The Petitioner thought trial counsel may
have tried to meet with Ms. Gibson to listen to the recording, but the Petitioner was not
sure whether that meeting occurred. The Petitioner stated that he never received a copy
of the recording. He stated that he would have proceeded to trial had he received a copy
of the recording.

       The Petitioner called trial counsel four or five days after entering his guilty plea
and told trial counsel that he wanted to withdraw his plea. Trial counsel informed him
that there was nothing else the Petitioner could do after his guilty plea had been entered.
When the Petitioner was transported to prison, other inmates informed him that he could
have withdrawn his guilty plea within thirty days. The Petitioner stated that, had he
known he could withdraw his plea, he would have done so and proceeded to trial.



                                            -5-
       The Petitioner recalled that trial counsel did not request a continuance to allow
time for more investigation prior to the Petitioner‟s entering the guilty plea. The
Petitioner had asked trial counsel to request a continuance because the Petitioner was not
prepared to go to trial. However, trial counsel told the Petitioner that the district attorney
would not agree to a new trial date and did not move for a continuance. Consequently,
the Petitioner signed the guilty plea.

       Although the Petitioner could not recall who told him that Mr. Goldbach had died,
he agreed that neither the State‟s attorney nor trial counsel gave him that information.
The Petitioner also admitted that he had no proof that the KPD vice unit had cancelled the
victim‟s drug screen. Instead, he explained that “the word on the street” was that the
KPD vice unit had suppressed the evidence.

      The Petitioner agreed that trial counsel had met with Ms. Gibson once to talk to
her about testifying on behalf of the Petitioner. He also agreed that trial counsel
attempted to contact Ms. Gibson and locate her after she disappeared.

       The Petitioner also admitted that he had asked trial counsel to try to negotiate a
plea that would allow the Petitioner to serve three years in custody and three years on
probation. Trial counsel brought the offer to the State, but it was rejected. Later, trial
counsel informed the Petitioner that the State was offering a twelve-year sentence. Trial
counsel also explained that, although the Petitioner was not a Range III offender, he
could accept the out-of-range plea agreement to avoid the attempted first degree murder
charge. The Petitioner also confirmed that he told the trial court during the plea colloquy
that he was entering his plea voluntarily and that he had not been coerced in any way.
The Petitioner explained that he wanted to withdraw his guilty plea because he wanted to
get a better sentence.

        On redirect examination, the Petitioner stated that, at the time of his guilty plea, he
did not have a clear understanding of whether his co-defendants would have testified
against him. The Petitioner had heard a rumor that Mr. Bartley was going to testify on
behalf of the State, and he did not want to proceed to trial in light of that knowledge. The
State informed the post-conviction court that, at the time of the Petitioner‟s guilty plea,
Mr. Bartley had already pleaded guilty and was available to testify against the Petitioner.
However, the charges against Mr. Goldbach were still pending. The charges against Mr.
Goldbach were ultimately dismissed because he died before the case was resolved.
However, Mr. Goldbach‟s death occurred almost a year after the Petitioner pleaded
guilty.

        In response to questions from the post-conviction court, the Petitioner admitted
that, at the time he entered his plea, he knew he could not have been sentenced to twelve
years for the aggravated assault charge had he been sentenced after a trial. However, the
Petitioner also acknowledged that, had he gone to trial, he could have been convicted of
attempted first degree murder.

                                             -6-
       Elana Hartman, the Petitioner‟s mother, testified that she spoke with trial counsel
one time during the pendency of the Petitioner‟s case. She and Ms. Gibson called trial
counsel to inform him that Ms. Gibson had a recording of the victim speaking with Ms.
Smith. Ms. Hartman had listened to the recording and could hear the voices of the victim
and Ms. Smith. In that recording, Ms. Smith commented that the victim looked very well
for having recently been in the hospital, and the victim replied, “Well, I wasn‟t hurt as
bad as what it was made out to be.” The victim stated that his arm was in a brace, but he
had no other injuries. The victim also told Ms. Smith that he was working with the
authorities and that the charges against the Petitioner and his co-defendants were a
“setup.” Ms. Hartman and Ms. Gibson played the recording over the phone so that trial
counsel could hear it, but Ms. Hartman did not hear trial counsel‟s response.

        Shortly after Ms. Gibson played the recording for trial counsel, Ms. Hartman
received a call from a blocked number. A male voice on the other end of the line told her
that she “needed to get [her] daughter-in-law to stop playing that recording, that
somebody could get hurt[,] and that they knew she had a daughter.” Ms. Hartman stated
that the phone call scared her to the point that she was crying and shaking. A few days
later, Ms. Hartman received another phone call from a person who told her that he knew
Ms. Hartman had Ms. Gibson‟s child and that “people can get hurt.”

      Ms. Hartman confirmed that Ms. Gibson had disappeared for a period of time and
no one was able to find her. During that time, Ms. Gibson‟s daughter lived with Ms.
Hartman.

       Trial counsel testified that, throughout the case, the Petitioner‟s primary concern
was that he did not want to plead guilty to the attempted first degree murder charge.
Therefore, trial counsel tried to negotiate a plea agreement that would allow the Petitioner
to plead guilty to the aggravated assault charges. Initially, the State was resistant to
dropping the attempted first degree murder charge, but once Mr. Bartley pleaded guilty,
the State was more open to negotiation with the Petitioner. Trial counsel recalled that, at
the time the Petitioner pleaded guilty, Mr. Goldbach was still alive and that the charges
against him were still pending.

       Trial counsel described the Petitioner as a “very . . . involved client” and reported
that he had discussed the case with the Petitioner “dozens and dozens of times”
throughout his representation. Trial counsel recalled that the Petitioner seemed to
understand the plea agreement and that he was pleading out-of-range. Although the
Petitioner wanted to negotiate a plea agreement with a six-year sentence, trial counsel
explained that he could not force the State to accept the Petitioner‟s counteroffer and that
it appeared that twelve years was the best sentence the State was going to offer. The
Petitioner ultimately agreed to accept the State‟s offer when trial counsel explained that
the Petitioner could face the attempted first degree murder charge if he went to trial.



                                           -7-
       Trial counsel reported that he spoke with Ms. Gibson several times and was
considering calling her as a witness. Trial counsel also recalled Ms. Gibson playing a
recording for him, and he instructed her to bring the recording to his office. However,
Ms. Gibson never brought him the recording. She disappeared, and even though trial
counsel tried to reach her several times, he was unable to find her. Trial counsel also
tried to located Ms. Smith, with no success. Trial counsel explained that both Ms.
Gibson and Ms. Smith could have been called as witnesses, but their testimony would
have been very limited because they did not witness the incident.

        The Petitioner called trial counsel shortly after he entered his guilty plea to discuss
the possibility of withdrawing his plea. Trial counsel thought the Petitioner simply had
“buyer‟s remorse” about his plea agreement and wanted a better sentence. Trial counsel
explained that there were limited grounds for withdrawing a guilty plea and that
dissatisfaction with his sentence was not a legitimate ground. Trial counsel did not file a
motion to withdraw the guilty plea.

       On cross-examination, trial counsel stated that he had looked into the victim‟s
intoxication level at the time of the offense, but he could not recall whether the victim‟s
medical records indicated whether the victim underwent a drug screen.

       Trial counsel explained that he did not request forensic testing of the axe handle
because there was good reason to believe that the Petitioner‟s fingerprints would have
been found there. Additionally, the Petitioner‟s trial strategy was to say that he used the
axe handle in self-defense, so trial counsel did not believe fingerprint analysis would
have been useful.

        In a detailed written order, the post-conviction court denied relief. The post-
conviction court noted that the Petitioner never indicated during the plea colloquy that he
did not understand the nature or the consequences of his plea or that his plea was not
knowingly or voluntarily given. The record reflected that the Petitioner was an active
participant in the plea negotiations and that he accepted the out-of-range plea to avoid
trial on the attempted first degree murder charge. Additionally, the post-conviction court
found that the Petitioner had failed to show that trial counsel was deficient or that he was
prejudiced by any deficiency. In doing so, the post-conviction court expressly credited
trial counsel‟s testimony.

                                          Analysis

       On appeal, the Petitioner claims trial counsel was ineffective for failing to: (1)
inform him that his co-defendant had passed away and would not be available to testify
against him at trial; (2) subpoena possible defense witnesses; (3) investigate the victim‟s
level of intoxication at the time of the offense; (4) obtain a copy of the recorded
conversation between the victim and Ms. Smith; (5) obtain forensic tests of the knife and
axe handle; and (6) inform the Petitioner that he could have withdrawn his plea within

                                             -8-
thirty days.   Additionally, the Petitioner claims that his plea was involuntary and
unknowing.

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). As such, we review a trial
court‟s findings of fact under a de novo standard with a presumption that those findings
are correct unless otherwise proven by a preponderance of the evidence. Id. (citing Tenn.
R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). The trial court‟s
conclusions of law are reviewed “under a purely de novo standard, with no presumption
of correctness . . . .” Id.

       When reviewing the trial court‟s findings of fact, this court does not reweigh the
evidence or “substitute [its] own inferences for those drawn by the trial court.” Id. at
456. Additionally, “questions concerning the credibility of the witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge.” Id. (citing Henley, 960 S.W.2d at 579).

                             Ineffective Assistance of Counsel

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove two factors: (1) that counsel‟s performance was deficient; and (2)
that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that
the same standard for ineffective assistance of counsel applies in both federal and
Tennessee cases). Both factors must be proven in order for the court to grant post-
conviction relief. Strickland, 466 U.S. 687; Henley, 960 S.W.2d at 580; Goad v. State,
938 S.W.2d 363, 370 (Tenn. 1996). Additionally, review 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
Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial strategy, and we
will not grant relief based on a sound, yet ultimately unsuccessful, tactical decision.
Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel‟s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that the counsel‟s acts or
omissions were so serious as to fall below an objective standard of reasonableness under

                                            -9-
prevailing professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at
688); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

        Even if counsel‟s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, 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.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

         A substantially similar two-prong standard applies when the petitioner challenges
counsel‟s performance in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58
(1985); Don Allen Rodgers v. State, No. W2011-00632-CCA-R3-PC, 2012 WL 1478764,
at *4 (Tenn. Ct. Crim. App. Apr. 26, 2012). First, the petitioner must show that his
counsel‟s performance fell below the objective standards of reasonableness and
professional norms. See Hill, 474 U.S. at 58. Second, “in order to satisfy the „prejudice‟
requirement, the [petitioner] must show that there is a reasonable probability that, but for
counsel‟s errors, he would have not have pleaded guilty and would have insisted on going
to trial.” Id. at 59.

      In this case, the Petitioner argues that trial counsel was ineffective for failing to
inform him that his co-defendant, Mr. Goldbach, had passed away and would not have
been available to testify against the Petitioner at trial. However, the record reflects that
Mr. Goldbach did not pass away until after the Petitioner had entered his guilty plea.
Additionally, the Petitioner testified that he knew his other co-defendant, Mr. Bartley,
could testify against him and that he did not want to proceed to trial in light of that
information. The Petitioner is not entitled to relief based upon this allegation.

       Second, the Petitioner contends that trial counsel was ineffective for failing to
subpoena possible defense witnesses. On appeal, the Petitioner does not identify which
witnesses should have been subpoenaed, but we presume he means Ms. Gibson and Ms.
Smith. Trial counsel testified that he tried to get in touch with both Ms. Gibson and Ms.
Smith but he was unable to find them. Additionally, it is well-settled law that, to succeed
on a claim of ineffective assistance of counsel for failure to subpoena a witness for trial,
a post-conviction petitioner should present that witness at the post-conviction hearing.
Plyant v. State, 263 S.W.3d 854, 869 (Tenn. 2008); see also Black v. State, 794 S.W.2d
752, 757-58 (Tenn. Crim. App. 1990). Neither Ms. Gibson nor Ms. Smith testified at the
post-conviction hearing. Therefore, the Petitioner has failed to show that trial counsel
was deficient or that he was prejudiced.

       Third, the Petitioner contends that trial counsel was ineffective for failing to
investigate the victim‟s intoxication level at the time of the offense. The record shows
that the victim did not undergo a drug screen when he was taken to the hospital. Trial

                                           - 10 -
counsel cannot be expected to determine the victim‟s intoxication level months or years
after the victim was alleged to be intoxicated. Therefore, the Petitioner has failed to
show that trial counsel was deficient in this regard.

        Fourth, the Petitioner avers that trial counsel was ineffective for failing to obtain a
copy of the recorded conversation between the victim and Ms. Smith. Trial counsel
testified that he asked Ms. Gibson to bring him a copy of the recording but she
disappeared before he could obtain a copy. Trial counsel attempted to locate Ms. Gibson
without success. In light of these facts, we conclude that the Petitioner has failed to
demonstrate any deficient performance on the part of trial counsel.

        Fifth, the Petitioner argues that trial counsel was ineffective for failing to obtain
forensic tests of the knife and axe handle. The Petitioner freely admitted that his blood
and fingerprints would have been found on both weapons. Additionally, trial counsel
testified that forensic testing would not have been useful because the Petitioner‟s defense
strategy was that he had used the weapons in self-defense. Accordingly, the Petitioner
failed to show deficient performance or prejudice.

       Sixth, the Petitioner contends that trial counsel should have advised him that he
could have withdrawn his guilty plea within thirty days of its entry. Trial counsel
explained to the Petitioner that there were limited grounds by which the Petitioner could
withdraw his guilty plea. Tennessee Rule of Criminal Procedure 32(f)(2) states:

       After a sentence is imposed but before the judgment becomes final, the
       court may set aside the judgment of conviction and permit the defendant to
       withdraw the plea to correct a manifest injustice.

Courts have identified certain circumstances when “manifest injustice” warrants
withdrawal of a plea, such as:

       (1) the plea was entered through a misunderstanding as to its effect, or
       through fear and fraud, or where it was not made voluntarily; (2) the
       prosecution failed to disclose exculpatory evidence as required by Brady v.
       Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and this
       failure to disclose influenced the entry of the plea; (3) the plea was not
       knowingly, voluntarily, and understandingly entered, and (4) the defendant
       was denied the effective assistance of counsel in connection with the entry
       of the plea.

State v. Virgil, 256 S.W.3d 235, 240 (Tenn. Crim. App. 2008). “Buyer‟s remorse” about
the plea agreement does not warrant the withdrawal of a guilty plea. Therefore, the
Petitioner has failed to show that trial counsel was deficient in this regard. The Petitioner
is not entitled to relief on this issue.


                                            - 11 -
                                 Involuntary Guilty Plea

       When reviewing a guilty plea, this court looks to both the federal standard as
announced in the landmark case Boykin v. Alabama, 395 U.S. 238 (1969), and the state
standard as announced in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on
other grounds by Tenn. R. Crim. P. 37(b) and Tenn. R. App. P. 3(b). Don Allen Rodgers,
2012 WL 1478764, at *5. Under the federal standard, there must be an affirmative
showing that the plea was “intelligent and voluntary.” Boykin, 395 U.S. at 242.
Likewise, the Tennessee Supreme Court has held that “the record of acceptance of a
defendant‟s plea of guilty must affirmatively demonstrate that his decision was both
voluntary and knowledgeable, i.e. that he has been made aware of the significant
consequences of such a plea . . . .” Mackey, 553 S.W.2d at 340. “[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 897,
904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43).

       In order to determine whether a plea is intelligent and voluntary, the trial court
must “canvass[] the matter with the accused to make sure he has a full understanding of
what the plea connotes and of its consequence.” Boykin, 395 U.S. at 244. The trial court
looks to several factors before accepting a plea, including:

       [T]he relative intelligence of the defendant; 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, 858 S.W.2d at 904; Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006).
Once the trial court has conducted a proper plea colloquy, it discharges its duty to assess
the voluntary and intelligent nature of the plea and creates an adequate record for any
subsequent review. Boykin, 395 U.S. at 244.

       Statements made by a petitioner, his attorney, and the prosecutor during the plea
colloquy, as well as any findings made by the trial court in accepting the plea, “constitute
a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison,
431 U.S. 63, 73-74 (1977). Statements made in open court carry a strong presumption of
truth, and to overcome such presumption, a petitioner must present more than
“conculsory allegations unsupported by specifics.” Id. at 74.

       In this case, the Petitioner argues he was unprepared for trial and that trial
counsel‟s failure to request a continuance left the Petitioner feeling that he had no other
option than to enter a guilty plea. However, during the plea colloquy, the Petitioner did

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not indicate that his plea was involuntary or unknowing. Additionally, trial counsel‟s
testimony at the post-conviction hearing shows that the Petitioner actively participated in
the negotiations of his plea and sentence. Trial counsel explained to the Petitioner that he
was accepting an out-of-range plea for the aggravated assault charges in order to avoid a
trial on the attempted first degree murder charge. The Petitioner indicated that he
understood the nature of the plea. As such, we conclude that the Petitioner has failed to
prove, by clear and convincing evidence, that his plea was involuntary or unknowing.
The Petitioner is not entitled to relief on this issue.

                                       Conclusion

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

                                                    _________________________________
                                                    ROBERT L. HOLLOWAY, JR., JUDGE




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