        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 3, 2014

                DEMARIO THOMAS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 08-03938    James M. Lammey, Jr., Judge


               No. W2013-01818-CCA-R3-PC - Filed October 10, 2014


The petitioner, Demario Thomas, appeals the denial of his petition for post-conviction relief,
arguing that his guilty plea was unknowingly and involuntarily entered without the effective
assistance of counsel. After review, we affirm the denial of post-conviction relief.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which C AMILLE R. M CM ULLEN,
J., joined. J EFFREY S. B IVINS, J., Not Participating.

Rosalind E. Brown, Memphis, Tennessee, for the appellant, Demario Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

        The petitioner was charged with the first degree murder of Durell McVay. After the
first day of trial, the petitioner entered an Alford plea to second degree murder and was
sentenced to twenty-three years at 100% in the Department of Correction. On direct appeal,
this court modified the petitioner’s sentence to twenty-one years. See State v. Demario
Thomas, No. W2010-00949-CCA-R3-CD, 2011 WL 2698320, at *1 (Tenn. Crim. App. July
11, 2011), perm. app. denied (Tenn. Nov. 15, 2011). In our opinion, this court provided the
following summary of the facts supporting the petitioner’s guilty plea:

       On August 14, 2007, a gang-related altercation occurred outside a gas station
       located across the street from Waldon Pointe Apartments in Memphis,
       Tennessee. While the [petitioner] was not present during this altercation, his
       younger brother, Donye Garrett, was present. During this altercation, Donye
       Garrett engaged in aggressive language and flashed gang signs to a group of
       men that included the victim. The gas station owner asked the men to leave
       and they complied. While this altercation was occurring, the [petitioner] was
       informed that his mother’s apartment was being burglarized. After running to
       his mother’s apartment armed with a weapon, he discovered that the apartment
       was not, in fact, being burglarized. Soon after he left his mother’s apartment,
       his older brother, Michael Garrett, told him about the gas station altercation
       and also that Donye Garrett was at the apartment mailboxes alone.

              Approximately twenty minutes later, the two groups of men from the
       gas station met in the apartment complex. Michael Garrett, the [petitioner]’s
       older brother, and another man began to fight when the victim and several
       other men arrived. Donye Garrett and the victim engaged in some “words”
       and then prepared to fight but, before they could do so, the [petitioner] fired
       three shots at the victim. All of the men except for the victim, who was lying
       on the ground, fled the scene. Police were called, and the victim was
       transported to the hospital where he was pronounced dead. The following day
       the [petitioner] went to the homicide office of his own accord, initially denying
       he shot the victim but later offering an admission.

Id.

        On August 21, 2012, the petitioner filed a timely pro se petition for post-conviction
relief. The petition was initially denied as untimely because the petitioner failed to indicate
that application for permission to appeal to the Tennessee Supreme Court had been denied
on November 15, 2011. However, the court subsequently determined that the petition was
timely and, on April 1, 2013, an amended post-conviction petition was filed by appointed
counsel.

        The post-conviction court conducted an evidentiary hearing on July 3, 2013, at which
the petitioner admitted that counsel discussed his sentencing exposure with him because he
was pleading open to the court. However, he believed that he would receive a fifteen-year
sentence given he was a first-time felon. He claimed that “[i]t wasn’t explained like [I] could
get twenty-five years for what [I] did.” The petitioner admitted that he was not promised that
he would receive a sentence of fifteen years but said that he was told “you should get a
fifteen. You’re a first-time felon. You don’t have any reason to get anything more.” He
claimed that he would not have pled guilty had he known he could receive a sentence closer

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to the maximum in the range.

       The petitioner recalled being questioned by the trial court before the court accepted
his guilty plea. He acknowledged that the transcript of the guilty plea hearing reflected that
the court told him that he was pleading open to the court and that he faced a possible
sentence of fifteen to twenty-five years. However, he claimed that he thought the court’s
statement meant “this [is] what the charge carries. [The court was] not saying this is what
you will get if you sign this open plea.”

        Evelyn Scott, the petitioner’s mother, testified that counsel told the petitioner that the
range of punishment he faced for second degree murder was fifteen to twenty-five years.
However, counsel said that “he’d probably do fifteen. But, you know, he said he couldn’t
do no more than seventeen.” The petitioner was also not informed that he would have to
serve 100% of his sentence. Scott acknowledged, however, that counsel never promised the
petitioner that he would get a fifteen-year sentence and that it was clear to her that the
petitioner could get more than fifteen years. Scott admitted that the transcript of the plea
hearing showed that the court informed the petitioner that he faced a sentence between
fifteen and twenty-five years and that it would be served at 100%.

       The petitioner’s trial counsel testified that the petitioner was charged with first degree
murder and, before the trial, received an offer of twenty-five years to second degree murder.
Counsel discussed the State’s offer “a number of times” and eventually voir-dired the
petitioner in court where the petitioner rejected the offer. Counsel said that he continued to
attempt to negotiate a settlement in the days leading up to trial. He proposed to the petitioner
to sign the guilty plea paperwork to a fifteen- or twenty-year sentence so that he could
present it to the State for consideration, but the petitioner refused.

        Counsel recalled that the State proposed a settlement to second degree murder after
it had almost completed its case-in-chief. He explained that the policy of the court was that
any plea made after the commencement of trial had to be an open plea. Counsel and his
assistant counsel thoroughly explained to the petitioner that, because it was an open plea, he
could face a sentence between fifteen and twenty-five years at 100%. Although it was an
open plea, the State had indicated that it would recommend a sentence of twenty years to the
court, but counsel informed the petitioner that “it was ultimately up to the judge what type
of sentence he would receive.” Counsel pointed to portions of the transcript from the plea
acceptance hearing which clearly showed that the petitioner was informed of the range of
punishment he faced and that, regardless of the State’s recommendation on the sentence, the
trial court could sentence him anywhere between fifteen and twenty-five years. Counsel was
adamant that the petitioner was never promised a fifteen-year sentence.



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      Counsel stated that, prior to trial, the petitioner was hesitant “about pleading guilty in
general.” However, the petitioner ultimately decided to plead guilty because

       we had gone through a majority of the [S]tate’s proof at trial. He had seen
       what a lot of the witnesses had said against him. He knew what our defense
       was; and he knew that the reality was, if he was convicted of first-degree
       murder, the only sentence he could receive was a life sentence, which was
       fifty-one years.

               Explaining that to him, talking to his family outside of the courtroom
       – also knowing that his own brother basically threw him under the bus and said
       he shot this individual for no reason.

       Following the conclusion of the proof, the post-conviction court made extensive oral
findings in denying the petition.

                                         ANALYSIS

      On appeal, the petitioner argues that his guilty plea was unknowingly and
involuntarily entered without the effective assistance of counsel.

        Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee
or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2012). The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the
findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the post-conviction court’s findings as to the credibility of witnesses or the weight
of their testimony. Id. However, review of a post-conviction court’s application of the law
to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents
mixed questions of fact and law, is reviewed de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

      To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

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668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies in Tennessee). The Strickland standard is a two-prong test:

       First, the defendant 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 defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The
prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability
sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
In the context of a guilty plea, the petitioner must show a reasonable probability that were
it not for the deficiencies in counsel’s representation, he or she would not have pled guilty
but would instead have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

       Before a guilty plea may be accepted, there must be an affirmative showing in the trial
court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242
(1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a showing that
the defendant was made aware of the significant consequences of the plea. State v. Pettus,
986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340). A plea is not
“voluntary” if it results from ignorance, misunderstanding, coercion, inducements, or threats.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if
the guilty plea is “knowing” by questioning the defendant to make sure he or she fully
understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858
S.W.2d at 904.

       Because the plea must represent a voluntary and intelligent choice among the
alternatives available to the defendant, the trial court may look at a number of circumstantial
factors in making this determination. Blankenship, 858 S.W.2d at 904. These factors
include: (1) the defendant’s relative intelligence; (2) the defendant’s familiarity with criminal

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proceedings; (3) whether the defendant was represented by competent counsel and had the
opportunity to confer with counsel about alternatives; (4) the advice of counsel and the court
about the charges against the defendant and the penalty to be imposed; and (5) the
defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in a
jury trial. Id. at 904-05.

        The petitioner asserts that his plea was unknowing and involuntary because counsel
failed to “thoroughly explain and request the court to explain his sentencing exposure as a
result of his guilty plea.”

       In denying the petitioner relief, the post-conviction court ruled, in part, as follows:

       I do recall that I voir-dired [the petitioner] when we set this for trial initially
       indicating he would have to plead to the court – my usual litany of things I
       usually go through with each person who sets their case for trial; that I would
       not accept a negotiated plea agreement.

              [The State and the defense] attempted . . . to come to me with a
       negotiated plea agreement, and I said I wouldn’t accept it because it says here,
       “You have to plead to the court.” . . . I don’t know if it actually was on the
       record or they came to me and I said, no, I wouldn’t take it; but that’s the
       reason why it was a plea open to the court.

               The record pretty much speaks for itself. I mean, all of this was on the
       record. [The State] talked about it. It was an open plea; what he was facing.
       [Counsel] did as well. And then I, of course, went over his rights with him,
       and I told him he was facing between fifteen to twenty-five years. I didn’t say
       I was going to give him fifteen years. I was satisfied, at the time, that he
       understood that we were going to have a sentencing hearing, and it was up to
       me, especially after hearing what his counsel had to say and the prosecution,
       it was up to me to sentence.

              ....

               So, the allegation is ineffective assistance of counsel and [counsel] not
       telling him – apprising him of what he is really facing and what could really
       happen. To be honest, I don’t believe a single word [the petitioner] had to say
       – not a single word – especially compared to [counsel] who is a reputable
       attorney who did his best to represent this man; and now he is accused of being
       a liar. I don’t think that’s appropriate because I believe [counsel] – I believe

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       it transpired the way he said it did and not the way [the petitioner] did.

       The record demonstrates that counsel, the State, and the trial court explained the
ramifications of pleading guilty in an open plea to the petitioner, specifically that the court
could reject the State’s recommendation for a twenty-year sentence and sentence him to the
maximum in the range. Moreover, the petitioner acknowledged at the post-conviction
hearing that neither counsel nor the State had promised him a fifteen-year sentence by
pleading guilty. Based on the totality of circumstances, we conclude that the petitioner
entered a knowing, voluntary, and intelligent plea and failed to prove that counsel performed
deficiently or that any deficiency affected the knowing and voluntary nature of his plea.

                                      CONCLUSION

        Based on the foregoing authorities and reasoning, we conclude that the petitioner has
failed to meet his burden of showing that he received ineffective assistance of counsel or that
his guilty plea was unknowing and involuntary. Accordingly, we affirm the denial of the
petition for post-conviction relief.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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