            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                             Assigned on Briefs September 23, 2003

                    PAMELA J. MOSES v. STATE OF TENNESSEE

                     Direct Appeal from the Criminal Court for Knox County
                            No. 73066    Mary Beth Leibowitz, Judge



                                      No. E2002-02319-CCA-R3-PC
                                            October 2, 2003

The Defendant, Pamela J. Moses, pled guilty pursuant to a plea agreement to aggravated assault and
numerous misdemeanors. The plea agreement encompassed the length of the sentences, but left the
manner of service for the trial court’s determination. The trial court denied an alternative sentence
and ordered the Defendant to serve her terms in confinement. The Defendant subsequently filed for
post-conviction relief, alleging ineffective assistance of counsel in conjunction with her plea. After
an evidentiary hearing, the post-conviction court denied relief and this appeal followed. We affirm
the judgment of the post-conviction court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
ROBERT W. WEDEMEYER , JJ., joined.

Mark Stephens and Bob Edwards, Knoxville, Tennessee, for the appellant, Pamela J. Moses.

Paul G. Sumers, Attorney General and Reporter; ReneeW. Turner, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Patti Cristil, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                                  OPINION

        Pursuant to her plea agreement with the State, the Defendant received an effective eight-year
sentence for a single felony conviction and eight misdemeanor convictions.1 The plea agreement did
not specify the manner in which these sentences would be served. After a sentencing hearing at
which a manager of the enhanced probation program, a program manager for the CAP Program in
Community Corrections, and the Defendant’s mother testified, the trial court declined to grant any
alternative sentence. The judge ordered the Defendant to begin serving her felony sentence in the


        1
          The Defendant received a three-year sentence on the felony conviction, and eleven-month, twenty-nine day
sentences on the misdemeanors.
Department of Correction. The Defendant now alleges that her plea was the result of ineffective
assistance of counsel because her lawyer assured her that her guilty plea would result in her
sentences being served on probation. She argues that her guilty plea was therefore unknowing and
involuntary.

       At the post-conviction hearing, the Defendant testified that her attorney told her that
“probation was guaranteed, ” and that the judge’s questions during the plea hearing were “just a
formality.” Darryl Humphrey, the Defendant’s lawyer during her plea process, testified to the
contrary. He stated that he “never ever, ever told [the Defendant] that probation was guaranteed.”
Mr. Humphrey testified that the Defendant “understood, as [he] explained to her, that the decision
was the Judge’s.”

        In addition to hearing this testimony, the trial judge, who had also presided over the
Defendant’s plea hearing and her sentencing hearing, reviewed the transcripts of those proceedings.
After the post-conviction hearing, the trial judge issued a written order denying the Defendant’s
petition and further set forth in writing her findings of fact and conclusions of law. That order states,
in pertinent part, as follows:

        the Court does not find that Mr. Humphrey misled [the Defendant] such that she
        entered into a plea that was not knowing, voluntary and understanding. The Court
        further finds that [the Defendant] did understand that probation was not automatically
        granted. While the [D]efendant now finds it easy to say that she did not understand,
        when she was asked the questions by the Court, and signed the waiver[,] she
        understood. Mr. Humphrey worked hard to represent [the Defendant] and that as a
        result of his work many of the charges were reduced, nolled prossed, or dismissed as
        a result. Due to her behavior at bond hearings, Mr. Humphrey and [the Defendant]
        both knew that probation would be an uphill battle and that [the Defendant] knew or
        should have known that probation rested upon her good behavior. . . . From all of
        the forgoing the Court finds that the attorney for [the Defendant], Mr. Darryl
        Humphrey, not only met but exceeded the requirements of Baxter v. Rose, 523
        S.W.2d 93 (Tenn. 1975) in competency and effort in this case. Mr. Humphrey clearly
        discussed all of [the Defendant’s] rights and liabilities with her on numerous
        occasions, [the Defendant] has conveniently forgotten those things which do not
        achieve her desired ends in this case, because [the Defendant’s] behaviors have had
        consequences. There is no question that at the time of [her] plea, [the Defendant]
        freely, voluntarily and knowingly understood her rights, the content of the plea
        agreement, the fact that no promises had been made to her about probation, and the
        very grave danger that she was in. The state at the time of the announcement of the
        plea agreement emphatically denied any willingness to place [the Defendant] on
        probation and [the Defendant] knew from the outset that it would be necessary for
        her to prove her worthiness for probation. She did not do so as is evidenced by the
        transcript of the sentencing hearing which is also an exhibit in these pleadings. [The
        Defendant’s] petition is therefore respectfully denied.


                                                  -2-
        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-210(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not
reweigh or re-evaluate the evidence below; all questions concerning the credibility of 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, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578-79.

         Both the Sixth Amendment to the United States Constitution and Article I, § 9 of the
Tennessee Constitution guarantee a defendant the right to representation by counsel. See State v.
Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This
right to counsel includes the right to effective counsel. See Strickland v. Washington, 466 U.S. 668,
686 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

       To determine whether counsel provided effective assistance at trial, the court must decide
whether counsel’s performance was within the range of competence demanded of attorneys in
criminal cases. See Baxter, 523 S.W.2d at 936; Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998). To succeed on a claim that his or her counsel was ineffective at trial, a defendant bears
the burden of showing that counsel made errors so serious that he or she was not functioning as
counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced
the defendant resulting in a failure to produce a reliable result. See Strickland, 466 U.S. at 687;
Burns, 6 S.W.3d at 461; Hicks, 983 S.W.2d at 245. To satisfy the second prong, the defendant must
show a reasonable probability that, but for counsel’s unreasonable error, the fact finder would have
had reasonable doubt regarding the defendant’s guilt. See Strickland, 466 U.S. at 694-95. This
reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694; see
also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State, 13 S.W.3d 742, 750 (Tenn.
Crim. App. 1999).

       When reviewing trial counsel’s actions, this Court should not use the benefit of hindsight to
second-guess trial strategy and criticize counsel’s tactics. See Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982); Owens, 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they
were made in light of all facts and circumstances. See Strickland, 466 U.S. at 690; Hicks, 983
S.W.2d at 246.

        This two-part standard of measuring ineffective assistance of counsel also applies to claims
arising out of the plea process. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). The prejudice
requirement is modified so that the defendant “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.”
Id. at 59; see also Hicks, 983 S.W.2d at 246.



                                                 -3-
       The evidence in the record before us does not preponderate against the trial court’s findings.
Moreover, we are convinced upon our review of the record that the Defendant has failed to
demonstrate that her attorney was in any way ineffective, and has further failed to demonstrate that
her plea was not knowing or voluntary. Accordingly, we affirm the judgment of the trial court.




                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




                                                -4-
