         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 15, 2008

                THOMAS E. KOTEWA v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Anderson County
                         No. A7CR0020      Donald R. Elledge, Judge



                      No. E2007-02193-CCA-R3-PC - Filed June 11, 2009


The petitioner, Thomas Edward Kotewa, appeals the denial of his petition for post-conviction relief.
He pled guilty to second degree murder and received an agreed-upon sentence of fifteen years as a
Range I, violent offender. On appeal, he contends that: he received ineffective assistance of
counsel; his guilty plea was not entered knowingly and voluntarily; the post-conviction court erred
by failing to enter specific factual findings or legal conclusions; and Supreme Court Rule 28 was
violated by both the State and the post-conviction court. After careful review, we affirm the
judgment from the post-conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER , JJ., joined.

Brennan P. Lenihan, Oak Ridge, Tennessee, for the appellant, Thomas E. Kotewa.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General;
David S. Clark, District Attorney General; and Sandra N. C. Donaghy, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        This case concerns the shooting death of the victim, LaShawn Terence Mims. Two witnesses
identified the petitioner as the shooter, and the petitioner admitted to police that he shot the victim.
The petitioner pled guilty on November 6, 2006, in exchange for a sentence of fifteen years. He filed
a pro se petition for post-conviction relief on January 26, 2007. He filed an amended petition on
February 14, 2007, after which the post-conviction court appointed counsel. Another amended
petition was filed on April 9, 2007, with the assistance of counsel. The trial court held an evidentiary
hearing on September 21, 2007, and denied the petition for post-conviction relief on September 24,
2007. This appeal followed.
        In his initial petition for post-conviction relief, the petitioner alleged that counsel rendered
ineffective assistance and that he did not understand the nature of his plea. In his first amended
petition, the petitioner alleged that the indictment against him was void due to the absence of an
allegation of “malice aforethought.” Post-conviction counsel again amended the petition to include
the additional claims that counsel had been ineffective for failing to pursue discovery, interview
witnesses, pursue a valid defense, investigate the petitioner’s competence and that “11th hour”
counsel was ineffective.

        The petitioner was represented by two attorneys during the course of his prosecution.
“Counsel” represented the petitioner from May 9, 2006, until November 6, 2006. The petitioner
entered his guilty plea on November 6, 2006, but was not represented by Counsel when he entered
his plea. Counsel met with the petitioner two or three times and spoke with him on the phone
concerning his case. Counsel testified that he filed a motion for discovery and reviewed the State’s
file.

        Counsel testified that the petitioner’s strategy changed on a weekly basis. Counsel said that
the petitioner requested that he make several motion requests but would change his mind as to what
he wanted filed. Counsel negotiated a guilty plea, which the petitioner agreed to enter only to
attempt to raise an issue regarding his indictment via a petition for post-conviction relief. Counsel
advised the petitioner that, if he chose to pursue this strategy, he would have to do so with another
attorney. Counsel moved to withdraw with the agreement of his client, the State, and the trial court.
The order was entered on the day scheduled for the petitioner’s plea hearing. The petitioner declined
to postpone the plea hearing and entered the plea notwithstanding the appointment of new counsel.

         “New Counsel” was appointed for the purpose of entering the petitioner’s guilty plea. The
petitioner and New Counsel met four days before the entry of his guilty plea. The petitioner did not
raise any issues of a defective indictment with New Counsel. The petitioner only raised a concern
about when he would be transferred to Michigan to serve an outstanding sentence. New Counsel
testified that he would have gone to trial had the petitioner decided not to pursue a guilty plea.

         Both attorneys testified that the petitioner appeared competent and participated in matters
related to his defense. Prison records showed that the petitioner was prescribed Lexapro for
depression. The petitioner claimed that his counsel refused to cooperate with him and acknowledged
that he insisted on entering a guilty plea. The petitioner had seven prior convictions without a jury
trial but claimed that he would not have pled guilty had counsel pursued his self-defense claim.

                                              Analysis

        On appeal, the petitioner argues that he received ineffective assistance of counsel. He argues
that Counsel’s representation was below the standard of a conscientious advocate and that Counsel
should have secured a mental evaluation for him, should have investigated potential witnesses, had
a conflict, and failed to file motions that he requested.



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        When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the
petitioner bears the burden of proving that (1) counsel’s performance was deficient, and (2) the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings were fundamentally unfair. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). This standard has also been applied to
the right to counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989). When a petitioner claims ineffective assistance of counsel in
relation to a guilty plea, the petitioner must prove that counsel performed deficiently, and that, but
for counsel’s errors, the petitioner would not have pled guilty but would have, instead, insisted upon
going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).

        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the
services rendered by counsel be within the range of competence demanded of attorneys in criminal
cases. In reviewing counsel’s conduct, a “fair assessment of attorney 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, 104 S. Ct. at 2065; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn.
2002).

        The petitioner bears the burden of proving by clear and convincing evidence the factual
allegations that would entitle the petitioner to relief. T.C.A. § 40-30-210(f) (2006). This court will
not disturb the findings of fact entered by the post-conviction court unless the evidence
preponderates against them. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

        Here, the petitioner contends that the post-conviction court should have found trial counsel
ineffective for failing to properly inquire about the petitioner’s competence at the time he insisted
on entering a guilty plea. However, the petitioner presented no proof at his post-conviction hearing
to demonstrate that he was not competent at the time of his plea. Counsel testified that the petitioner
insisted on entering a plea throughout his representation, appeared to be in command of his faculties,
and assisted in devising legal arguments and conducting legal research. The petitioner has not met
his burden of demonstrating that he would not have entered his guilty plea if counsel had secured
a mental evaluation for him.

        Next, the petitioner argues that Counsel was ineffective for failing to interview and
investigate potential witnesses. However, the petitioner presented no witnesses at the evidentiary
hearing. “When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner at the
evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990); see also Scott
v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a general rule, this is the only way the
petitioner can establish that (1) a material witness existed who could have been discovered but for
counsel’s negligent investigation of the case; (2) a known witness was not interviewed; (3) the
failure to discover or interview the witness caused him prejudice; or (4) the failure to present a
known witness resulted in the denial of critical evidence which caused the petitioner prejudice.


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Black, 794 S.W.2d at 757. Neither the trial court nor this court can speculate on what a witness’s
testimony might have been if introduced by counsel. Id. The petitioner has not demonstrated that
counsel was ineffective for failing to pursue potential witnesses because the petitioner failed to
present any witnesses during the evidentiary hearing to support his position.

         Next, the petitioner contends that he was denied effective assistance because Counsel had
a conflict of interest. Specifically, he argues that a conflict of interest arose when Counsel decided
not to advance a defense unsupported by the facts. A defendant who pleads guilty with the assistance
of an allegedly conflicted attorney must still show ineffective assistance in a collateral attack. Cuyler
v. Sullivan, 466 U.S. 335, 349 (1980); see also Dukes v. Warden, 406 U.S. 250, 257 (1972). This
court has previously held that the mere possibility of a conflict of interest does not raise the
presumption of ineffective assistance of counsel. Netters v. State, 957 S.W.2d 844, 847-48 (Tenn.
Crim. App. 1997). To obtain relief, a petitioner must show “an actual conflict adversely affected the
counsel’s performance.” Cuyler v. Sullivan, 466 U.S. at 350. An actual conflict of interest exists
when counsel cannot represent the petitioner without “compromising interests and loyalties.” State
v. White, 114 S.W.3d 469, 476 (quoting Clinnard v. Blackwood, 46 S.W.3d 177, 183 (Tenn. 2001)).

        The conflict in the petitioner’s case resulted from Counsel’s refusal to comply with the
petitioner’s attempt to defraud the court. Counsel testified at the evidentiary hearing that the
petitioner intended to plead guilty to an indictment that the petitioner felt was defective. Counsel
advised the petitioner that any claim as to the validity of the indictment should be made at the first
opportunity. The petitioner refused to raise a challenge and insisted on entering a plea. Counsel
moved to withdraw from representing the petitioner as a result of the conflict. The petitioner was
afforded the opportunity to continue his plea hearing but insisted on entering the plea. Here, the
petitioner was not adversely affected by the conflict and is not entitled to relief on this issue.

        Next, the petitioner argues that Counsel should have filed additional motions on his behalf.
The testimony at the evidentiary hearing reflects that the petitioner asked Counsel to file several
motions and then changed his mind about entering the motions. The requests varied from insistence
on a plea to preparation for trial. The petitioner testified that he would not have entered his plea had
these motions been filed. The post-conviction court did not accredit the testimony of the petitioner
and specifically determined that it was not credible. In his brief, the petitioner mentions that Counsel
had a duty to file motions to suppress confessions, suppress witness statements, and search for
possible violations of his constitutional rights. However, he does not demonstrate that any of these
motions would have been successful. They are merely allegations that the motions would have
somehow altered the petitioner’s decision to enter a guilty plea. The petitioner has not provided any
support for his conclusion that Counsel was ineffective for failing to file additional motions.
Therefore, the petitioner is not entitled to any relief on this issue.

        The petitioner also argues that the State violated Tennessee Supreme Court Rule 28, section
5(G), by failing to admit or deny every allegation in the petition. The State submits that the plain
language of Rule 28, section 5(I) states that failure to comply with the requirements of section 5(G)
“shall not entitle the petitioner to relief without proof, but may result in the imposition of sanctions


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in the exercise of the trial judge’s discretion.” Tenn. R. Sup. Ct. 28 § 5(I). The State further argues
that no challenge to the sufficiency of the State’s response was made until after the proof had been
heard and that the failure to raise a contemporaneous objection results in a waiver of this claim. By
failing to make a contemporaneous objection to testimony, a defendant waives appellate
consideration of the issue. State v. Adler, 71 S.W.3d 299, 302 (Tenn. Crim. App. 2001); State v.
Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000).

       The record reflects that the State responded to the petitioner’s claims of ineffective assistance
by making specific denials of those claims. The State also denied the petitioner’s allegation that his
plea was entered involuntarily. Thus, he is entitled to no relief on this issue.

          Next, the petitioner argues that the trial court denied his right to call a witness after the trial
court declared the witness would not be credible. The petitioner sought to call a witness who was
in the custody of the Department of Correction due to a recent conviction. During the hearing, the
petitioner stated that the proposed witness would have been a witness for the State at trial. He argues
that the witness’s lack of credibility would have been beneficial to the petitioner had he proceeded
to trial. The petitioner attempted to call the witness at the conclusion of the post-conviction hearing,
but the witness was not available. The trial court stated that the proposed witness had recently been
sentenced to a “considerable amount of time for a wide range of things” and that he would not be
considered credible if he were to testify. The petitioner did not make a motion to continue the matter
to secure the testimony of the witness nor did he attempt to depose the witness to secure his
testimony. Here, the petitioner claims that the alleged credibility determination by the trial court
supports his claim of ineffective assistance of counsel.

        As previously stated, “When a petitioner contends that trial counsel failed to discover,
interview, or present witnesses in support of his defense, these witnesses should be presented by the
petitioner at the evidentiary hearing.” Black, 794 S.W.2d at 757 (Tenn. Crim. App. 1990); see also
Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). Neither the trial court nor this court
can speculate on what a witness’s testimony might have been if introduced by counsel. Id. The
petitioner’s failure to secure the testimony of the proposed witness is fatal to his claim, and he is not
entitled to relief on this issue.

        Next, the petitioner argues that his guilty plea was involuntarily entered because he did not
understand that he was pleading guilty to a knowing killing. This claim is based solely on his own
testimony at the evidentiary hearing, which was discredited by the post-conviction court. As
previously stated, the petitioner bears the burden of proving by clear and convincing evidence the
factual allegations that would entitle him to relief. T.C.A. § 40-30-210(f). This court will not
disturb the findings of fact entered by the post-conviction court unless the evidence preponderates
against them. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Witness credibility
determinations rest within the sound discretion of the trial court. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996).




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        Both of the petitioner’s counsel testified that he insisted on entering a plea of guilty, and, at
his plea colloquy, the petitioner affirmed that he was entering his plea both freely and voluntarily.
He stated that he was familiar with the elements of the crime and that he understood his sentence.
Again, the only evidence that he might not have understood what he was doing came from the
petitioner. The petitioner has offered no evidence to discredit the determinations of the trial court,
and he is not entitled to relief on this issue.

        Next, the petitioner argues that the post-conviction court failed to enter specific factual
findings to support its conclusions. However, the order from the post-conviction court denying the
petition for relief does contain factual findings based on the testimony from the hearing on the
petition. The order contains the post-conviction court’s conclusions based on the testimony offered
during the hearing. The order is not lengthy, but it is sufficient for this court to review the
proceedings on appeal. The petitioner is not entitled to relief on this issue.

                                              Conclusion

       Based on the foregoing and the record as a whole, we affirm the holding of the post-
conviction court.




                                                         ___________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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