        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              On Brief September 22, 2010

       MAREY ATEF ABOU-RAHMA, JR. v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Davidson County
                 No. 2005-D-2779, 2983, 3341 J. Randall Wyatt, Jr., Judge



                   No. M2009-02523-CCA-R3-PC - Filed March 8, 2011


Based upon the facts in three cases, the Davidson County Grand Jury indicted Petitioner,
Marey Atef Abou-Rahma, Jr., for five counts of aggravated robbery, two counts of felony
murder, two counts of first degree murder, and two counts of attempted first degree murder.
On February 8, 2008, Petitioner pled guilty to two counts of aggravated robbery and two
counts of felony murder. Petitioner was sentenced to two consecutive life sentences for the
felony murder convictions and sentenced to two, eight-year sentences for the aggravated
robbery convictions to be served concurrently to each other and the life sentences. On
November 24, 2008, Petitioner filed a petition for post-conviction relief arguing among other
things that he received ineffective assistance of counsel and that he did not enter his guilty
plea voluntarily and knowingly. After an evidentiary hearing, the post-conviction court
denied the petition. After a thorough review of the record, we affirm the denial of the post-
conviction petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which D AVID H. W ELLES and
R OBERT W. W EDEMEYER, JJ., joined.

David M. Hopkins, Nashville, Tennessee, for the appellant, Marey Atef Abou-Rahma, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Victor S. Johnson, District Attorney General; and Ben Ford, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                   OPINION

                             Factual Background

The following facts were related at Petitioner’s guilty plea hearing:


[T]he proof would have shown that on July 1st of 2005, at approximately 2157
hours at the apartments located at 441 Harding Place, specifically G-6, the
victims in this case were relaxing outside that apartment, visiting with one
another. They had been out there since 1930 hours. And the people present
included Alfredo Vargas Zarco, Gueraldo Domingus, Christino Maciel,
Amador Cysto Sasudo. These individuals had been talking and visiting with
one another. When they noticed a green Ford Explorer drive past the group,
it was at a dead-end, actually, and didn’t think much of it. And then, a short
time later they noticed several individuals coming back to them and they
believed were linked to that car.

        The proof would further show that his defendant and the co-defendant,
Miles Armstrong, had gone out that evening for the purpose of committing a
robbery. Miles Armstrong was in possession of a long shotgun and this
defendant was in possession of a handgun. They had approached these
individuals, essentially, walking up to them with the intent to commit a
robbery. When they came up upon them, Miles Armstrong fired his weapon
into the air, the long gun, and this defendant fired his weapon into the crowd.

       He, ultimately, caused the death of Alfredo Vargas Zarco and Guerado
[sic] Porto Domingus by the – by his – the shots and the injuries sustained. He
also caused injuries to two other people present, Amador Cysto Sasudo, and
Chrisino [sic] Maciel. There were other persons present, as well, that the state
would anticipate calling, in fact, the two survivors. The state would anticipate
calling [sic] that these are the facts as they happened. But, actually, no robbery
was able to take place. The shooting occurred almost simultaneously as these
men came upon them. They, then fled the scene.

       The proof would further show that the men’s faces were partially
covered with various bandanas. The survivors, obviously, contacted the police
immediately and were able to give somewhat of a description of the various
heights, weights, the car that they had seen earlier and described the events of
what happened, including the types of weapons that were used.

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               Within a very short time, . . . within a matter of several days, the
       defendant . . . was ultimately, taken into custody . . . . Following a waiver of
       Miranda Rights . . . [Petitioner] ultimately implicat[ed] himself by indicating
       that, in fact, he was present when this took place, that he was within ten feet
       of the actual people . . . .


       In October 2005, the Davidson County Grand Jury indicted Petitioner for three counts
of aggravated robbery in case number 2005-D-2779; two counts of aggravated robbery in
case number 2005-D-2983; and two counts of felony murder, two counts of first degree
murder, and two counts of attempted first degree murder in case number 2005-D-3341. On
February 8, 2008, Petitioner entered a best interest guilty plea to one count of aggravated
robbery in case number 2005-D-2779, one count of aggravated robbery in case number 2005-
D-2983, and two counts of felony murder in case number 2005-D-3341. Pursuant to the
guilty plea, Petitioner was sentenced to consecutive sentences of life without parole for the
felony murder convictions. He was also sentenced to eight years for each aggravated robbery
conviction to be served concurrently to each other and concurrently with the life sentences.

       On November 24, 2008, Petitioner filed a petition for post-conviction relief. In his
petition he argued that he received ineffective assistance of counsel and that he entered his
guilty plea unknowingly and involuntarily. The post-conviction court held an evidentiary
hearing.

                           Post-conviction Evidentiary Hearing

       Petitioner was the first witness at the hearing. He testified that if he had gone to trial,
the State would have sought the death penalty. Petitioner stated that the trial counsel did not
meet with him enough and did not explain the evidence against him. While his case was
pending, Petitioner was the subject of a mental evaluation. He was diagnosed with Schizo
Affective Disorder. He was prescribed medication. Petitioner informed trial counsel of his
condition. Petitioner testified that on the day he entered his plea, he was not taking his
medication. He stated that trial counsel did go over his plea petition with him before he
entered his plea. However, he stated that he did not understand one aspect of his plea. He
and trial counsel discussed Petitioner being sentenced to DeBerry Special Needs Facility
(“DeBerry”), a prison that houses prisoners with medical issues. He understood he was to
be sentenced to DeBerry but has not been permanently placed there.

       Petitioner also testified that trial counsel did not explain various items in trial
discovery in a sufficient manner. He testified that he did not know of questionable evidence
in discovery, including conflicting witness statements, before he entered his guilty plea.

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Petitioner maintained that had he known about the evidence in discovery he would not have
pled guilty. However, Petitioner admitted that he had the discovery in his possession before
he entered the guilty plea. Petitioner also stated that he believed trial counsel should have
filed a motion to suppress based upon contradictory statements made by a detective.
Petitioner was also unhappy that there were no DNA tests on the bandanas used by the
shooters.

       Petitioner said that trial counsel only met with him one time prior to the entry of his
guilty plea. He met with him in the main jail downtown. Petitioner also met with Patrick
Wells, a private investigator, working with trial counsel. Mr Wells was responsible for
tracking down witnesses. They did not discuss any legal issues.

        Petitioner stated that he and trial counsel met twice to discuss the plea bargain. He
stated they met in the courthouse and that trial counsel told him it was the best thing.
Petitioner had stopped taking his psychiatric medications at that time, but he did not inform
trial counsel of that fact. Petitioner stated that because he had stopped taking his medication,
he was not thinking clearly. He maintained that had he been thinking clearly, he would not
have pled guilty.

       On cross-examination, Petitioner admitted that trial counsel had reviewed the plea
petition with him. He stated that trial counsel fully explained all aspects of the plea and the
consequences of entering the plea. Petitioner agreed that he had had a mental health
evaluation. He admitted that trial counsel had explained the results of the evaluation. The
results showed that while Petitioner’s mental condition could be used as mitigation in
sentencing, it was not sufficient to support an insanity defense at trial.

       Trial counsel also testified at the hearing. He stated that he represented Petitioner
throughout the proceedings in this case. Trial counsel testified that Petitioner informed him
that he had been diagnosed with some mental health issues. Trial counsel filed a request to
have Petitioner undergo a psychiatric evaluation. The request was granted. The reports
generated by the evaluation reflected that Petitioner was suffering from mental illness and that
he should continue on medication for his condition. The examining physician determined that
Petitioner’s mental illness could not support an insanity defense nor a diminished capacity
defense. Trial counsel reviewed the reports with Petitioner. Regardless of the evaluation, trial
counsel was concerned about Petitioner’s mental health. He testified that Petitioner would
sometimes be distracted when trial counsel was talking to him. He also stated that Petitioner
would become fixated on inconsequential issues. For an example, trial counsel stated that
Petitioner became fixated on a witness’ statement when the witness said one thing early in the
statement but said something different later in the statement. Trial counsel agreed that the
witness’s statement contained two conflicting statements, however, the differences were in

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no way a material fact. It was an issue upon which there was no basis to justify a suppression
or with which to impeach the witness.

        Trial counsel stated that he met with Petitioner more than two times. He recalled that
he met with Petitioner at the CJC about three or four times; the Hill Detention Center once;
and CCA once. Trial counsel stated those are the times he could specifically remember
visiting Petitioner in a particular facility, and he met with Petitioner more times than those
listed above. Trial counsel testified that he never filed a motion to suppress because he had
no basis upon which to file such a motion. When trial counsel discussed Petitioner’s
conversation with the police, Petitioner had total recall of what he was asked and how he
responded. Petitioner did not indicate to trial counsel that he disputed anything the officers
said he said, and Petitioner did not indicate to trial counsel that he did not know what he was
doing when he spoke with the police. Trial counsel stated that Petitioner told him he wanted
to continue to get treatment for his mental illness. Trial counsel told Petitioner that the
District Attorney had agreed to recommend to the Court that Petitioner be housed in DeBerry.
The District Attorney sent the letter to the trial court, and the trial court in turn contacted the
Department of Corrections. However, trial counsel stated that all they could do was
recommend that he be housed in DeBerry. Trial counsel, the District Attorney and even the
trial court could not promise Petitioner that he could be housed in DeBerry.

        On cross-examination, trial counsel stated that he was unaware that Petitioner stopped
taking his medication after his evaluation and also did not check with the jail officers to see
if Petitioner was taking any medication. He stated that he did not ask because he did not
notice a change in Petitioner’s demeanor.

       On November 24, 2009, the post-conviction court filed a written order denying the
petition. The post-conviction court made the following findings:


               The Petitioner first contends that [trial counsel’s] counsel was
       ineffective because he failed to adequately consult with the Petitioner and
       explain the evidence against him and the options available to him. The
       Petitioner states in his Amended Petition that he did not receive the State’s
       response to discovery from [trial counsel] nor did [trial counsel] discuss the
       details of the guilty plea with him. The Court finds that the Petitioner’s own
       testimony in this hearing contradicts both of these claims since he admitted to
       having the discovery and to going over the details of the plea agreement with
       [trial counsel]. The Court finds that [trial counsel] adequately explained to the
       Petitioner the evidence against him and his available options. The Court
       therefore finds that the Petitioner has failed to demonstrate particular

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inadequacies through clear and convincing evidence. This issue is without
merit.

       The Petitioner next contends that [trial counsel’s] counsel was
ineffective because he failed to obtain housing for the Petitioner at the
DeBerry facility as [trial counsel] promised he would. The Court credits [trial
counsel’s] testimony and, in reviewing the plea transcript, finds that the
Petitioner was advised from multiple sources, including [trial counsel], the
State, and even this Court during his plea of guilty that none of the parties
present claimed to exercise control over the Tennessee Department of
Corrections. The Court finds that the Petitioner was present for these
conversations and understood that each parties’ participation in attempting to
obtain housing for the Petitioner in the DeBerry facility would be a
recommendation only. The Court therefore finds that the Petitioner has failed
to demonstrate that [trial counsel] promised him that the Petitioner would
definitely be housed in the DeBerry facility. This issue is without merit.

       The Petitioner next contends that [trial counsel’s] counsel was
ineffective because he failed to file a motion to suppress the Petitioner’s
statements to police. The Court credits [trial counsel’s] testimony and finds
that he pursued this avenue of suppression in defense of the Petitioner even
though he never filed a motion. The Court finds that ultimately the
Petitioner’s medical reports in conjunction with the observations from the
recorded interview with police made it clear to [trial counsel] that a
suppression motion would be baseless and unsuccessful. This Court will not
undertake to second guess [trial counsel’s] failure to submit a suppression
motion does not constitute action below the range of competence of an
attorney in a criminal case. This issue is without merit.

        The Petitioner next contends that [trial counsel’s] counsel was
ineffective because he failed to recognize that the Petitioner was not taking his
medication at the time he entered his guilty pleas, thereby negating his
understanding of the ramifications of his plea. The Court has reviewed the
transcript of the guilty plea and finds that the Petitioner demonstrated an
understanding of the Court’s directions during his guilty plea. The Court also
finds that , even if the Petitioner failed to comprehend parts of what the Court
directed because he was not on medication, there was no action on the part of
[trial counsel] that contributed to this disconnect. The Court finds that the
Petitioner testified , and [trial counsel] confirmed, that both the Petitioner and
[trial counsel] understood that the Petitioner was on strong medication to

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       control his psychotic problems but that [trial counsel] was unaware that at the
       time of the plea of guilty the Petitioner had stopped taking his medication. The
       Court finds that [trial counsel] cannot be punished for failing to address a
       problem he was unaware of and that his inaction is not below the range of
       competence of an attorney in a criminal case. This issue is therefore without
       merit.

               The Petitioner also appears to argue that [trial counsel] should not have
       permitted him to plead guilty at all because of the Petitioner’s mental health
       problems. The Court finds that [trial counsel] was able to obtain a plea offer
       that permitted the Petitioner to avoid facing the death penalty. The Court finds
       that to prohibit his client from entering such a plea because there were
       reservations about his full mental capacity, thereby possibly subjecting him to
       execution, would assuredly have constituted ineffective assistance. The Court
       therefore finds that [trial counsel’s] actions in this respect are not below the
       range of competence of an attorney in a criminal case. This issue is without
       merit.


[emphasis in original]

       Petitioner filed a timely notice of appeal from the denial of his petition.

                                          ANALYSIS

       On appeal, Petitioner argues that he received ineffective assistance of counsel. He
argues that trial counsel: (1) did not go over the State’s discovery with him; (2) did not discuss
alleged discrepancies in witness statements; (3) did not request DNA testing; (4) did not
discuss the possibility of filing a motion to suppress; (5) advised Petitioner that he was going
to serve his sentence in DeBerry; and (6) did not realize that Petitioner was not taking his
medication and that Petitioner was not competent to plead guilty.

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001).

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However, the post-conviction court’s conclusions of law are reviewed under a purely de novo
standard with no presumption of correctness. See Shields v. State, 40 S.W.3d 450, 458 (Tenn.
2001).

                                Voluntariness of Guilty Plea

       When analyzing a guilty plea, we look to the federal standard announced in Boykin v.
Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), and the State standard set out in State v.
Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999).
In Boykin, the United States Supreme Court held that there must be an affirmative showing
in the trial court that a guilty plea was voluntarily and knowingly given before it can be
accepted. Boykin, 395 U.S. at 242. Similarly, our Tennessee Supreme Court in Mackey
required an affirmative showing of a voluntary and knowing guilty plea, namely, that the
defendant has been made aware of the significant consequences of such a plea. Pettus, 986
S.W.2d at 542.

       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 fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S.W.2d at 904.

                             Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers v.
State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). “Because a petitioner must establish both
prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to prove
either deficient performance or resulting prejudice provides a sufficient basis to deny relief
on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).

      As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record

                                              -8-
preponderates against the court's findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . .; thus, [appellate] review of [these issues] is
de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
This Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief
based on a sound, but unsuccessful, tactical decision made during the course of the
proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Once a guilty plea has been entered, effectiveness of counsel is relevant only to the
extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective
assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently
made. See Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366 (1985) (citing North Carolina v.
Alford, 400 U.S. 25, 31, 91 S. Ct. 160 (1970)). As stated above, in order to successfully
challenge the effectiveness of counsel, Petitioner must demonstrate that counsel’s
representation fell below the range of competence demanded of attorneys in criminal cases.
See Baxter, 523 S.W.2d at 936. Under Strickland v. Washington, 466 U.S. 668, 694, 104 S.
Ct. 2052 (1984), Petitioner must establish: (1) deficient representation; and (2) prejudice
resulting from the deficiency. However, in the context of a guilty plea, to satisfy the second
prong of Strickland, Petitioner 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.”
Hill, 474 U.S. at 59; see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

       When making its findings, the post-conviction court accredited the testimony of trial
counsel with regard to Petitioner’s argument that trial counsel did not explain the case
sufficiently as far as the State’s discovery, alleged witness statement discrepancies, and DNA
testing. The post-conviction court found that Petitioner himself testified that he had the
discovery materials and that trial counsel had explained all aspects of the plea to him. In
addition, trial counsel testified that he met with Petitioner several times and fully discussed
the guilty plea. He stated that in preparation for trial Petitioner became fixated on what he
perceived as discrepancies when comparing one witness’s statements. However, the
discrepancy was not a material fact.

        Petitioner argues that trial counsel erred in failing to request DNA tests. Trial counsel
stated that the police concluded that there were no items containing DNA. They looked, but



                                               -9-
they did not find anything. The post-conviction court accredited this testimony. We find no
evidence to preponderate against these facts.

       As for the motion to suppress, the post-conviction court found that the trial counsel’s
testimony with regard to this issue was credible. According to trial counsel, a motion to
suppress would have been baseless and unsuccessful. We have found no evidence to
preponderate against this finding.

        Petitioner argues that his plea was entered unknowingly because he did not realize he
might not be housed in DeBerry. The post-conviction court found that Petitioner was advised
by trial counsel, the State, and the trial court that they had no control of the Department of
Corrections’s decision over where to house him. The post-conviction court once again
accredited the testimony of trial counsel and concluded that trial counsel had indeed advised
Petitioner of the steps taken to request that Petitioner be housed in DeBerry. As stated above,
the conclusions of the post-conviction court are conclusive on appeal. Burns, 6 S.W.3d at
461. We find no evidence in the record to preponderate against this finding.

        Petitioner also argues that trial counsel was ineffective because he allowed Petitioner
to plead guilty even though he was suffering from mental illness. Trial counsel obtained a
mental evaluation for Petitioner. The results were that Petitioner was mentally ill, but the
illness was not so severe as to support an insanity or diminished capacity defense. Trial
counsel testified that he knew of Petitioner’s diagnosis and that he had been prescribed
medication for his illness. Trial counsel did not notice a change in Petitioner’s demeanor and
had no idea that Petitioner had stopped taking his medication.

       As stated above, the post-conviction court accredited the testimony of trial counsel.
We have found no evidence in the record to preponderate against the findings of the post-
conviction court. We conclude that Petitioner has not proven the first prong under the
Strickland test, that the services rendered by trial counsel were deficient. It is clear from the
record that trial counsel was adequately prepared and met with Petitioner several times to
discuss the case. Trial counsel had to make tactical decisions, but all were based upon
adequate preparation.

       Therefore, we conclude that trial counsel’s representation was not deficient.




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                                      CONCLUSION

       For the foregoing reasons, we affirm the post-conviction court’s denial of the petition
for post-conviction relief.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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