                                                                                       02/21/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                       Assigned on Briefs November 28, 2017

             JOHN ASHLEY SNIDER v. STATE OF TENNESSEE
                   Appeal from the Circuit Court for Madison County
                       No. C-16-131      Donald H. Allen, Judge



                             No. W2017-00582-CCA-R3-PC
                        _____________________________
The Petitioner, John Ashley Snider, pleaded guilty to six drug-related charges in
exchange for an effective sentence of ten years of Community Corrections, after the
service of eleven months and twenty-nine days. At the time of the plea, he reserved a
certified question for appeal regarding law enforcement officers’ warrantless entry into
his home and the seizure of his person. This court dismissed the appeal, holding that the
certified question was not dispositive of the case. State v. John Ashley Snider, No.
W2014-01848-CCA-R3-CD, 2015 WL 5014605, at *3-4 (Tenn. Crim. App., at Jackson,
Aug. 25, 2015), perm. app. denied (Tenn. Dec. 14, 2015). The Petitioner filed a petition
for post-conviction relief, alleging that he had received the ineffective assistance of
counsel. The post-conviction court held a hearing, after which it denied the petition. On
appeal, we affirm the post-conviction court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which J. ROSS DYER,
J. joined. THOMAS T. WOODALL, P.J., filed a concurring opinion.

Daniel J. Taylor, Jackson, Tennessee, for the appellant, John Ashley Snider.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Alfred Lynn Earls,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                     OPINION
                                       I. Facts
                                A. Guilty Plea Hearing

      This case arises from the Petitioner’s possession of controlled substances and drug
paraphernalia. He entered a plea of guilty to three counts of possession of a controlled
substance with the intent to sell, one count of simple possession of a controlled substance,
one count of possession of synthetic cannabinoid, and one count of possession of drug
paraphernalia. See T.C.A. §§ 39-17-417 (Supp. 2012) (amended 2014) (possession of
psilocybin, marijuana, diazepam, alprazolam with intent to sell), 39-17-418 (2010)
(amended 2014) (simple possession of oxycodone), 39-17-425 (2014) (possession of drug
paraphernalia), 39-17-438 (Supp.2012) (amended 2013, 2014, 2015) (possession of
synthetic cannabinoids). The trial court sentenced the Petitioner to an effective ten years,
ordered him to serve eleven months, twenty-nine days in confinement, and ordered him
to serve the remainder on Community Corrections. At the time of the guilty plea hearing,
the Petitioner reserved a certified question of law regarding the legality of the warrantless
entry into the Petitioner’s home and the seizure of the Petitioner from his doorway.

       This Court summarized the facts relevant to the certified question as follows:

              This case relates to a “knock and talk” encounter at the [Petitioner’s]
       home on January 9, 2013, and to the seizure of the [Petitioner] from his
       doorway by an officer. The [Petitioner] was detained and held in an
       officer’s vehicle while a search warrant for his home was obtained. After
       the search warrant was executed, the [Petitioner] was arrested for multiple
       drug-related offenses. The [Petitioner] filed a motion to suppress the
       evidence obtained during the search, alleging that the search was tainted by
       the officer’s prior unlawful warrantless entry into the [Petitioner’s] home
       and by the unlawful detention of the [Petitioner].

              At the suppression hearing, Madison County Sheriff’s Office
       Investigator Tikal Greer testified that on January 9, 2013, he and other
       officers went to the [Petitioner’s] home after receiving two anonymous tips
       from Crime Stoppers that the [Petitioner] was growing marijuana. Officer
       Greer arrived at the [Petitioner’s] home around 6:25 p.m. without a warrant
       to conduct a knock and talk.

              Officer Greer testified that he and another officer went to the front
       door and knocked several times. He heard music coming from inside the
       house. He said the [Petitioner] opened the door “[p]robably shoulder
       width.” Officer Greer said that he immediately smelled the odor of
       marijuana once the door was opened. He said that he had worked in the
       narcotics division for five years and that he had smelled marijuana
       numerous times. The officers explained to the [Petitioner] why they were
       there, and the [Petitioner] told the officers that he would not consent to a
       search of his home. Officer Greer said they told the [Petitioner] that they
       were not asking for his consent to search his home. Officer Greer said that
                                             2
the [Petitioner] attempted to close the door and that Officer Greer “got [the
[Petitioner] out” and detained him to prevent the [Petitioner] from
destroying the marijuana Officer Greer suspected was inside the home.
Officer Greer left the scene to obtain a search warrant.

      Officer Greer returned with the warrant and the home was searched.
He said that officers found 6.2 pounds of marijuana and seventy-three jars
of fermented psilocybin mushrooms. In four or five of the jars, the
mushrooms were growing. The police also found equipment for cultivating
marijuana and mushrooms, six ounces of “hashite,” 2.5 ounces of synthetic
cannabinoids, 169 pills of assorted controlled substances, and
approximately $2000 in cash.

        On cross-examination, Officer Greer testified that he received the
first anonymous tip regarding the [Petitioner] around December 18, 2012.
The officers began driving past the [Petitioner’s] home twice daily and also
conducted nighttime surveillance. Officer Greer said the surveillance was
unproductive. He said that the officers discussed a “trash pull” but that
they decided to conduct a knock and talk instead. The officers did not
conduct regular surveillance between Christmas and New Year’s.

       Officer Greer testified that he received the second anonymous tip on
January 3, 2013. Surveillance resumed, but no unlawful activity was
observed. Officer Greer stated that he was not frustrated or irritated at the
lack of suspicious activity at the [Petitioner’s] home and agreed that he had
no specific reason to conduct the knock and talk on January 3.

      Officer Greer agreed that a weather report from the day of the search
showed temperatures in the low 50’s with rain and 5.8 to 6.9 m.p.h. wind
speeds. He said he smelled the marijuana despite the weather.

       Officer Greer testified that he knocked for two or three minutes
before the [Petitioner] opened the door. Officer Greer agreed music was
playing inside the home and said it was possible the [Petitioner] did not
hear the initial knock.

       Officer Greer testified that he placed his foot inside the front door to
“grab” the [Petitioner] and to ensure the [Petitioner] did not close the door.
He said the [Petitioner] was standing at the door. Officer Greer said that it
took about two hours to obtain the search warrant and return and that the
other officers reported no one entered or left the home while he obtained
                                      3
the warrant.

      Officer Greer testified that the raw marijuana he smelled initially
was found in the [Petitioner’s] bedroom, ten to fifteen feet from the front
door. The [Petitioner’s] bedroom door was open when officers entered.
Marijuana was found in plastic containers, in jars, and loose on the
bedroom dresser.

      On redirect examination, Officer Greer testified that he was
approximately two feet from the front door when the [Petitioner] opened it,
that he leaned in closer to smell, and that the home smelled of raw
marijuana.

        The trial court denied the [Petitioner’s] motion to suppress. The
court reviewed the search warrant and credited Officer Greer’s testimony.
The court stated that an officer “has a right to detain someone who the
officer believes is attempting to perhaps destroy evidence.” The court
found that Officer Greer’s testimony supported a conclusion that the
marijuana would have been destroyed if the [Petitioner] had closed the
door. The court noted that the detention was brief and concluded that based
on the totality of the circumstances, the officers did not violate the
[Petitioner’s] rights. The court stated that the officers had a right to
approach the [Petitioner’s] home. The court also stated,

      They approached the residence and smelled marijuana
      coming from inside . . . it would appear that there’s quite a bit
      of carpeting . . . fabric and material of that nature would
      absorb the odor of marijuana and it would be apparent, so I
      credit the testimony when the officer said he could smell
      marijuana[.]

       After the suppression hearing, the [Petitioner] pleaded guilty on all
counts, and pursuant to his plea agreement reserved one certified question
for appeal:

      Whether the warrantless entry and subsequent search of the
      [Petitioner’s] home by officers . . . on or about January 9,
      2013, violated the [Petitioner’s] rights granted pursuant to the
      Fourth, Fifth, and Fourteenth Amendments to the United
      States Constitution and Article I, Sections 7, 8, and 9 of the
      Tennessee Constitution and whether any evidence obtained as
                                     4
               a result of said search should be suppressed as the fruits of an
               unconstitutional search in that:

                      a. The original forcible entry and detention of
                      the [Petitioner] was made without a warrant and
                      without the consent of the [Petitioner],

                      b. There were no exigent circumstances present
                      to justify the original warrantless entry and
                      search [the Court having found that exigent
                      circumstances existed because of the strong
                      odor of marijuana coming from inside the
                      [Petitioner’s] residence which was detected by
                      the officers as they stood just outside the front
                      door of the [Petitioner’s residence], and

                      c. The consensual nature of the knock and talk
                      procedure was effectively nullified by the action
                      of the officers, resulting in the [Petitioner’s]
                      unlawful detention and ultimate unlawful search
                      [the Court having found that the [Petitioner]
                      attempted to close the front door of his
                      residence which caused the officers to enter the
                      residence to prevent possible destruction of
                      evidence of drug activity].

Id. at *1-3.

       After summarizing the facts, this court noted that the trial court had confirmed the
dispositive nature of the certified question both in an order and in the judgments. Id. at
*3. It appeared to this court that the trial court and the parties had assumed that the initial
entrance and seizure and detention of the Petitioner affected the validity of the search
warrant. We held that, even if the investigator detained the Petitioner in a manner that
exceeded constitutional limits, the search warrant remained valid. Id. We stated that the
search warrant was based on the anonymous tips and the smell of marijuana, all of which
were known before the officer placed his foot inside the residence and physically seized
the Petitioner. A neutral and detached magistrate determined that the anonymous tips, as
corroborated by Officer Greer’s observations, gave rise to probable cause that the house
contained marijuana. This court treats that determination with deference. See Illinois v.
Gates, 462 U.S. 213, 236 (1983); State v. Jacumin, 778 S.W.2d 430, 431 (Tenn. 1989).
We further held that the police obtained no information or evidence to secure the warrant
                                              5
as a result of seizing and detaining the Petitioner before execution of the search warrant.
Id. Because the legality of the initial detention does not affect the admissibility of the
evidence obtained pursuant to the search warrant, the certified question was not
dispositive.

                                B. Post-Conviction Facts

       The Petitioner filed a petition for post-conviction relief in which he alleged that he
had received the ineffective assistance of counsel because Counsel did not communicate
with him and did not properly craft the certified question of law. He requested that the
post-conviction court reverse his conviction and also grant him approximately $110,000
in damages (including emotional pain and suffering) based upon Counsel’s
representation. The State responded, positing that Counsel was not ineffective and that
the petition did not satisfy all the statutory requirements. The post-conviction court
found that the Petitioner had presented a colorable claim, and appointed the Petitioner
counsel, who filed an amended petition. In the amended petition, the Petitioner asked
that his guilty plea be set aside because he had only entered it upon the belief that he
would be allowed to present the suppression issues to the appellate court.

       The post-conviction court held a hearing during which the parties presented the
following evidence: The Petitioner testified that law enforcement officers searched him
on January 9, 2015, after which time he was arrested. The Petitioner said that he retained
Davis Camp to represent him, and Mr. Camp filed a motion to suppress, which the trial
court denied after a hearing. The Petitioner said that he was not totally satisfied with Mr.
Camp, so he hired Counsel before the guilty plea. In accordance with Counsel’s advice,
he entered a guilty plea, reserving a certified question of law. He deemed the certified
question “[v]ery” important to his agreeing to enter the guilty plea. In exchange for his
guilty plea, the parties agreed to a ten-year sentence, with the trial court to determine how
much time, up to eleven months and twenty-nine days, he would serve in jail. The trial
court ordered that he serve 75% of that time in jail, and the Petitioner testified that he had
already served that time and was currently serving the remainder of his sentence on
Community Corrections.

       The Petitioner said that he relied on Counsel’s advice about what the certified
question should be. The two discussed it, but, ultimately, the wording of the question
was Counsel’s decision. The Petitioner testified that, after he entered his guilty plea and
Counsel had filed his notice of appeal, Counsel changed positions and gave the case to
Lee Sparks to represent the Petitioner for the appeal. Mr. Sparks argued the case before
the Court of Criminal Appeals.

       The Petitioner said that his guilty plea was dependent on his appeal being heard
                                              6
and decided by the Court of Criminal Appeals. He did not anticipate that his appeal
would be dismissed. When he learned that it had, he was angry and disappointed. He
appealed the Court of Criminal Appeals’s decision to the Tennessee Supreme Court,
which denied him permission to appeal.

       The Petitioner said that, after he learned of the supreme court’s denial, he filed a
pro se petition for post-conviction relief. He then retained post-conviction counsel, who
amended his petition for post-conviction relief. The Petitioner said he was seeking to
have his judgments set aside so that he could have his day in court and give him the
opportunity to clarify the certified questions of law.

      During cross-examination, the Petitioner agreed that the trial judge explained to
him that he was waiving all of his rights to appeal other than the certified questions. He
informed the judge that he had spoken with Counsel about all of the documents and that
he was “[v]ery satisfied” with Counsel’s representation.

        Mr. Sparks testified that he was not involved in the case until after the notice of
appeal had been filed. He said that he received the case as a result of Counsel’s career
change, and Mr. Sparks drafted the appellate brief. Mr. Sparks testified that, during oral
argument, he contended that the issue was whether the Petitioner was seized by law
enforcement officers before he answered the door based upon the officers’ authoritative
knocking on the door. This court ultimately decided that issue had been waived by
Counsel’s failure to raise it in the trial court. He agreed that this issue was not contained
in the certified question, and he believed it should have been.

       After the hearing, the post-conviction court issued an order denying the
Petitioner’s petition for post-conviction relief and made the following findings:

              After considering all of the [P]etitioner’s grounds for relief, and also
       after considering the testimony of the [P]etitioner and of his appellate
       counsel, Mr. Lee Sparks, and after considering all of the evidence in this
       case, the Court finds that the [P]etitioner has failed to prove the allegations
       in his petition by clear and convincing evidence, therefore his Petition for
       Post Conviction Relief will be denied.

              The Court finds that the advice given and the services rendered by . .
       . Counsel . . ., and by Appellate Counsel Lee Sparks, were certainly within
       the range of competence demanded of attorneys representing defendants in
       criminal cases. The Court also finds that [the Petitioner] has failed to show
       that his attorney’s performance was deficient or that any alleged deficient
       performance by [Counsel] and/or Attorney Lee Sparks somehow prejudiced
                                             7
[him].

        Upon review of the [P]etitioner’s original “Petition for Relief from
Conviction of Sentence” which was filed pro se on May 19th, 2016, he
alleges that his “conviction was based on use of evidence gained pursuant
to an unconstitutional search and seizure.” [The Petitioner] states in his
petition that he “wishes to re-enter his guilty plea and properly reserve the
certified questions of the law which is now before this court.”

       [The] Petitioner also alleges as a ground for post conviction relief,
the “denial of effective assistance of counsel.”

        In his amended petition filed on September 23rd, 2016, he alleges
that his guilty plea was entered only upon the belief that he was reserving a
certified question of law regarding the suppression issues raised in his pre-
trial motion to suppress. He alleges that the “proper issues were not
addressed through ineffective assistance of his counsel” [Counsel] at the
time of the guilty plea, and that his counsel failed to “properly certify the
proper dispositive questions or issues.” The [P]etitioner now seeks to set
aside his guilty plea.

       [The Petitioner] alleges that because his “direct appeal” was
dismissed by the Court of Criminal Appeals, which included his certified
questions of law, that he now claims that his guilty plea was involuntarily
entered. Specifically, the [P]etitioner contends that “trial counsel’s failure
to properly preserve the certified questions of law rendered his guilty plea
involuntary.”

       After review of the transcript of evidence of the guilty plea hearing
held before this Court on May 19th, 2014, (Exhibit #3), and after review of
all the other evidence in this case, including exhibits #1 and #2 and the
entire court record, the Court finds that the [Petitioner] did freely,
voluntarily, knowingly and intelligently enter his guilty plea on all counts,
and that the defendant testified that he was “very satisfied” with
[Counsel’s] representation and advice at the time of the guilty plea. [The
Petitioner] also testified that no force or pressure had been applied to him to
cause him to ple[a]d guilty and that he did admit under oath that he was in
fact guilty of each of the drug offenses for which he was pleading.

       According to the guilty plea transcript, this Court also advised [the
Petitioner] that once his guilty plea was accepted that he could not
                                      8
withdraw it for any reason. The [Petitioner] testified that he understood
that and still wished to go forward with his guilty plea.

       At his post conviction hearing, [the Petitioner], testified that he was
“very satisfied” with [Counsel’s] representation (at the trial level), but that
he had hoped to have a more “meaningful appeal” of the suppression issue.
He said he wanted his appeal heard and ruled upon by the Court of
Criminal Appeals.

       Attorney Lee Sparks also testified at the post conviction hearing that
he was the attorney who represented [the Petitioner] on the appeal before
the Court of Criminal Appeals. Attorney Sparks drafted and filed the
appellate brief and also orally argued the matter before The Court of
Criminal Appeals. The Court of Criminal Appeals dismissed the appeal,
but did state in its opinion that:

              “even if the investigator [Tikal Greer] had detained
       [the Petitioner] in a manner that exceeded constitutional
       limits” pursuant to the knock and talk, the court of Criminal
       Appeals concluded that the search warrant remained valid.

The Appeals Court also found:

       “that the search warrant was based upon the anonymous tips
       and the smell of marijuana, all of which were known before
       the officer (Investigator Greer) placed his foot inside the
       residence and physically seized the [Petitioner].”

The Appeals Court further stated in its opinion,

       “that the police obtained no information or evidence to secure
       the warrant as a result of seizing and detaining the defendant
       before execution of the valid search warrant.”

       The Appellate Court found that the legality of the initial detention
did not affect the admissibility of the evidence obtained pursuant to the
valid search warrant. By such language, it appears to this trial Court that
the [P]etitioner was granted a “meaningful appeal” that was simply denied
by the Court of Criminal Appeals, and then dismissed.

       After a careful review of all the evidence in this case, this Court
                                      9
       finds that [the Petitioner] has failed to prove by credible evidence that his
       guilty plea was involuntarily entered or that he received ineffective
       assistance from his trial counsel. Therefore his petition is denied.

              The Court finds that none of [Counsel’s] or appellate counsel’s
       actions or omissions were so serious as to fall below the objective standard
       of reasonableness under prevailing professional norms. The Court finds
       that both counsels’ representation was appropriate and that each attorney
       provided [the Petitioner] with reasonably effective assistance. The Court
       further finds that the [P]etitioner has failed to show that there is a
       reasonable probability that, but for [Counsel’s] performance, he would not
       have entered his guilty plea or that the appellate proceeding would have
       been different. The Court finds that the defendant freely, voluntarily,
       knowingly and intelligently entered his guilty plea because he wanted to
       take the State’s plea bargain agreement and sentence as agreed too.

              Since the [P]etitioner has failed to bear his burden of proof in this
       matter, his Petition will be denied.

It is from this judgment that the Petitioner now appeals.

                                       II. Analysis

        On appeal, the Petitioner contends that Counsel was ineffective for not identifying
the appropriate issue as the certified question of law, an issue that was later identified by
Mr. Sparks during oral argument. The Petitioner further asserts that this rendered his
appeal meaningless and his guilty plea involuntarily entered. The State counters that the
post-conviction court correctly ruled because this Court found on appeal that the certified
question was not dispositive not because it was poorly drafted but because the evidence
did not require suppression. The State further contends that the Petitioner did not prove
that, but for Counsel’s errors, he would have proceeded to trial. We agree with the State.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh 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. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-
                                             10
conviction court’s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which can
be overcome only when a preponderance of the evidence is contrary to the post-
conviction court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
A post-conviction court’s conclusions of law are subject to a purely de novo review by
this Court, with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

      First, the [petitioner] must show that counsel’s performance was deficient.
      This requires showing that counsel made errors so serious that counsel was
      not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
      Amendment. Second, the [petitioner] must show that the deficient
      performance prejudiced the defense. This requires showing that counsel’s
      errors were so serious as to deprive the [petitioner] of a fair trial, a trial
      whose result is reliable. Unless a [petitioner] makes both showings, it
      cannot be said that the conviction or death sentence resulted from a
      breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the
“distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel's conduct.”
Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be highly
                                           11
deferential and “should indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally,
we note that a defendant in a criminal case is not entitled to perfect representation, only
constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v.
Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been
ineffective merely because a different procedure or strategy might have produced a
different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).
“‘The fact that a particular strategy or tactic failed or hurt the defense, does not, standing
alone, establish unreasonable representation. However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate
preparation.’” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

        If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

       This standard also applies to claims arising out of the plea process. Hill v.
Lockhart, 474 U.S. 52, 58 (1985). To satisfy the requirement of prejudice in a case
involving a guilty plea, the petitioner must demonstrate a reasonable probability that, but
for counsel’s errors, he or she “would not have pleaded guilty and would have insisted on
going to trial.” Id. at 59.

       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). The court
reviewing the voluntariness of a guilty plea must look to the totality of the circumstances.
See State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also
Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). A plea resulting
from ignorance, misunderstanding, coercion, inducement, or threats is not “voluntary.”
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). A petitioner’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).
                                             12
        The Petitioner claims that Counsel was ineffective in his preparation of the
certified questions of law. This Court has previously indicated that a post-conviction
petition is the proper mechanism for challenging any purported deficiency in failing to
preserve a certified question “[b]ecause the reasons a defendant pleads guilty may be
varied, [and] it is not necessarily the case that the inducement to plead guilty is the ability
to have a certified question considered on appeal.” State v. Sigifredo Ruiz, No. M2000-
03221-CCA-R3-CD, 2001 WL 1246397, at *4 (Tenn. Crim. App., Nashville, Oct. 17,
2001), no Tenn. R. App. P. 11 application filed. An attorney’s failure to preserve an issue
as a certified question is “not automatically the ineffective assistance of counsel” because
“[a] guilty plea based upon the reasonably competent advice of counsel may not be
attacked because of the possibility that the eventual outcome of an issue may have been
favorable to the petitioner had he or she proceeded to trial.” Eddie Lee Lowe v. State, No.
W1999-00881-CCA-R3-PC, 2000 WL 1285333, at *7 (Tenn. Crim. App., at Jackson,
Aug. 30, 2000), perm. app. denied (Tenn. Apr. 9, 2001). Instead, the petitioner must
show by clear and convincing evidence that he would not have pled guilty absent the
ability to appeal the certified question. Id. If a petitioner is able to demonstrate both
deficiency and prejudice in counsel’s failure to properly present a certified question for
review, the proper remedy is to vacate the judgment of conviction and allow the
petitioner to withdraw the guilty plea. State v. Boyd, 51 S.W.3d 206, 211 (Tenn. Crim.
App. 2000).

        The Petitioner alleges his counsel was deficient in failing to properly frame his
legal issues as a certified question. Under Tennessee Rule of Criminal Procedure 37, the
defendant who pleads guilty may nevertheless lodge an appeal if he reserves a certified
question of law. Among other things, this Rule requires that the question appealed must
be dispositive. Tenn. R. Crim. P. 37(b)(2)(A). A question is dispositive when the
appellate court is left with two options: to affirm the judgment or to reverse the trial court
and dismiss the case. State v. Dailey, 235 S.W.3d 131, 134 (Tenn. 2007); State v.
Robinson, 328 S.W.3d 513, 518 n.2 (Tenn. Crim. App. 2010). Although the parties and
trial court may be in agreement that a question is dispositive, the reviewing court is not
bound by such an agreement, and must make an independent determination that the
certified question is dispositive. Dailey, 235 S.W.3d at 134-35. When the record
contains incriminating evidence apart from that challenged through the certified question,
the appellate court must dismiss the appeal because the certified question is not
dispositive. See id. at 135-36 (citing State v. Walton, 41 S.W.3d 75 (Tenn. 2001)).

        In State v. Preston, the Tennessee Supreme Court required that in reserving a
certified question, “the final order or judgment from which the time begins to run to
pursue a T.R.A.P. 3 appeal must contain a statement of the dispositive certified question
of law reserved by defendant for appellate review and the question of law must be stated
                                              13
so as to clearly identify the scope and the limits of the legal issue reserved.” 759 S.W.2d
647, 650 (Tenn. 1988); see Tenn. R. Crim. P. 37(b)(2)(A)(ii). Regarding the scope of the
certified question, the Court in Preston elaborated:

                For example, where questions of law involve the validity of searches
        and the admissibility of statements and confessions, etc., the reasons relied
        upon by defendant in the trial court at the suppression hearing must be
        identified in the statement of the certified question of law and review by the
        appellate courts will be limited to those passed upon by the trial judge and
        stated in the certified question, absent a constitutional requirement
        otherwise.

Preston, 759 S.W.2d at 650. These requirements regarding the framing of the question
are “‘explicit and unambiguous.’” State v. Day, 263 S.W.3d 891, 899 (Tenn. 2008)
(quoting State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998)); State v. Pendergrass, 937
S.W.2d 834, 837 (Tenn. 1996). “No issue beyond the scope of the certified question will
be considered.” Preston, 759 S.W.2d at 650.

        On direct appeal, this court held that the certified question was not dispositive of
the case and dismissed the appeal. The court’s reasoning was that law enforcement
officers had a valid search warrant based upon anonymous tips and the smell of
marijuana. As such, whether the Petitioner was unlawfully seized was not dispositive of
the case because, even if he were, the evidence need not be suppressed because of the
valid search warrant. We understand that Mr. Sparks identified another issue, namely
whether the Petitioner was “seized” before the officers smelled the marijuana because of
the authoritativeness of their knocking, but his identification of this issue does not render
Counsel’s representation ineffective.1 As the post-conviction court found, the Petitioner
received a meaningful appeal. Further, the Petitioner cannot prove that, but for Counsel’s
error in drafting the certified questions of law, he would not have entered a plea of guilt
and gone to trial. In fact, the Petitioner sought to withdraw his guilty pleas so that he
could clarify his certified questions but still plead guilty and avoid trial. We conclude
that the Petitioner has not proven that Counsel’s performance was deficient or that he was
prejudiced. The Petitioner is not entitled to relief on this issue.

                                               III. Conclusion

      In accordance with the foregoing reasoning and authorities, we affirm the post-
conviction court’s judgment.

1
 As a side note, the validity of the “knock and talk” procedure has been upheld by this Court. State v. Cothran, 115
S.W.3d 513, 521 (Tenn. Crim. App. 2003).
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     _________________________________
     ROBERT W. WEDEMEYER, JUDGE




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