                                                                                        02/27/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs December 20, 2017

               SHAWNTE L. SHADE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                          No. 107438   Scott Green, Judge


                            No. E2017-00562-CCA-R3-PC


The Petitioner, Shawnte L. Shade, appeals from the Knox County Criminal Court’s
denial of his petition for post-conviction relief. The Petitioner contends that his guilty
plea was not knowingly and voluntarily entered because of the ineffective assistance of
his trial counsel. Following our review, we affirm the judgment of the post-conviction
court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Shawnte L. Shade.

Herbert H. Slatery III, Attorney General and Reporter; Linda D. Kirklen, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             FACTUAL BACKGROUND

       On March 31, 2015, the Petitioner pled guilty to one count of especially
aggravated robbery. In exchange for the Petitioner’s guilty plea, the State dismissed a
second count of especially aggravated robbery and recommended that the Petitioner be
sentenced as a Range I, standard offender to the minimum fifteen-year sentence with
service at one hundred percent pursuant to Tennessee Code Annotated section
40-35-501(i).
       At the plea submission hearing, the prosecutor recommended a sentence of fifteen
years “to serve . . . at [one hundred] percent.” The trial court then explained that the
Petitioner would be sentenced to “[fifteen] years at [one hundred] percent, with the
possibility of earning [fifteen] percent off.” The trial court further explained that the
Petitioner would have to serve at least eighty-five percent of his sentence before he would
be eligible for release.

       The trial court then reviewed the rights the Petitioner was waiving by pleading
guilty. During this review, the Petitioner stated that trial counsel had reviewed the plea
agreement form with him and that he was satisfied with trial counsel’s representation.
The trial court also stated as follows:

               It’s my understanding that you have agreed to receive the minimum
       of [fifteen] years for [the] offense; however, that is at a [one hundred]
       percent service rate, meaning, that you must serve at least [eighty-five]
       percent before you could meet with the parole board and receive good time
       credit off the back-end of the sentence.

The trial court asked the Petitioner if he understood his sentence, and the Petitioner
responded that he did.

        As a factual basis for the Petitioner’s guilty plea, the State provided that the
Petitioner had gone to the apartment of a coworker, stabbed her in the neck, and took
$1,800 “that was left over from [the victim’s] income tax return.” The trial court asked
the Petitioner how he pled, and the Petitioner responded “[g]uilty.” Sensing some
hesitation from the Petitioner, the trial court asked the Petitioner if he was “certain this
[was] what [he] want[ed] to do,” and the Petitioner responded that it was “the best thing”
he could do.

        The trial court questioned the Petitioner further, and the Petitioner stated that he
had gone to the victim’s apartment “to buy dope.” The Petitioner admitted that he
stabbed the victim in the neck and that he “took the drugs (inaudible) hand from her
property.” The Petitioner then stated that he was “taking [the] plea because it[ was]
[fifteen] years” and because it was the “best of both bad situations.” After this, the trial
court accepted the Petitioner’s guilty plea and the State’s sentencing recommendation.

        On February 26, 2016, the Petitioner filed a pro se petition for post-conviction
relief alleging that his guilty plea was not knowing and voluntary because trial counsel
was ineffective and had misinformed him about the amount of time he would actually
have to serve before he could be released from prison. An attorney was appointed to
represent the Petitioner in this matter, but no amended petition for post-conviction relief
was filed.
                                            -2-
       The Petitioner testified at the post-conviction hearing that he told trial counsel that
he “never committed a robbery.” The Petitioner admitted that he stabbed the victim in
the neck. However, the Petitioner claimed that he did not take any money from the
victim. According to the Petitioner, he stabbed the victim because she had not provided
him “the amount [of cocaine] that [they] agreed on,” and he left her apartment with only
“the dope that was put in [his] hand.”

       The Petitioner claimed that trial counsel never showed or reviewed with him the
discovery materials provided by the State. The Petitioner testified that he reviewed the
discovery materials after his guilty plea and learned that there was no evidence regarding
“the amount of the money” and “[h]ow the money was obtained” by the victim. The
Petitioner asserted that he wanted trial counsel to attempt to prove that the victim did not
have $1,800. The Petitioner explained that he thought “if somebody tells you that [they]
have a receipt for this, well, [they should] show [] the receipt.”

       The Petitioner admitted that the detective who questioned him told him that he
was accused of stabbing the victim and taking money from her. The Petitioner testified
that he confessed to the detective that he stabbed the victim, although he told the
detective that he thought he stabbed the victim in the chest rather than her neck. The
Petitioner further admitted that trial counsel told him that he was accused of taking “some
money” from the victim.

        The Petitioner claimed that he would not have pled guilty had he known he was
accused of taking $1,800 from the victim as opposed to “just a number.” The Petitioner
testified that trial counsel told him that “nobody really cares how much the money” that
was stolen. The Petitioner further testified that he “would almost agree” if he had been
accused of taking the cocaine and “the money that [he] spent” on the cocaine, but that he
would not admit to taking $1,800 because that “could’ve been proven or not proven.”

         Despite this, the Petitioner testified that he “deserved what [he] got.” The
Petitioner explained that he agreed to accept the State’s plea offer of fifteen years to be
served at one hundred percent and that he did so without knowing how much money he
was accused of taking because trial counsel advised him that his time would be “stretched
. . . out more” if he went to trial and that he “was looking at almost a life sentence.”

        With respect to his sentence, the Petitioner admitted that his plea agreement form
stated that his sentence would be fifteen years to be served at one hundred percent. The
Petitioner claimed that he did not read the plea agreement form and that trial counsel
“just ran through it right fast.” The Petitioner admitted that this was not the first time he
had pled guilty to a felony.


                                             -3-
       The Petitioner testified that when he pled guilty, he believed that he would only
have to serve twelve years and nine months because he had “been in prison” and he knew
“when somebody says a hundred percent, that there’s not a hundred percent.” The
Petitioner claimed that he told trial counsel that he could not serve a fifteen-year sentence
“day-for-day.” The Petitioner further claimed that once he got to prison, he discovered
that he was not eligible for any sentencing credits.

        Both the prosecutor and the Petitioner’s attorney agreed when the post-conviction
court stated that the Petitioner was wrong and that, as was explained at the plea
submission hearing, the Petitioner was eligible to receive sentencing credits for up to
fifteen percent of his sentence. The Petitioner admitted that he may have “read [the law]
wrong,” but he asserted that he was told by a prison “legal aid” that he could not get any
sentencing credits.

       The Petitioner testified that he “understood that [he] was signing [the plea
agreement form] in lieu of going to trial and getting a [R]ange [II sentence] starting at
[twenty-five] and ending up with [forty] years, or multiple charge[s] with [twenty-five]
years stacked together” and that he thought “it was better for [him] to sign [it] and go
ahead and do [his] time,” but that his “time sheet” said “a hundred percent” and did not
have a “deduction” or “say standard, mitigated, [R]ange [I], none of that.”

        Trial counsel testified that he met with the Petitioner several times and that he
spoke with the detective and the prosecutor about the case. Trial counsel could not recall
if he spoke to the victim, but he did speak to the victim’s attorney. Trial counsel recalled
that the Petitioner had confessed to stabbing the victim and had “admitted to taking
something away from the house.” The Petitioner told trial counsel that the stabbing “was
a drug deal that went wrong.”

       Trial counsel testified that he talked about the State’s discovery response with the
Petitioner. However, trial counsel could not recall if he showed the Petitioner the
photographs or documents from the discovery materials. Trial counsel testified that he
told the Petitioner that the victim had accused the Petitioner of taking money from her
and that he explained to the Petitioner that the amount of the money was not legally
relevant for purposes of an especially aggravated robbery charge.

        Trial counsel testified that he was able to negotiate with the prosecutor and secure
an offer where the Petitioner would be sentenced as a Range I, standard offender to
fifteen years to be served at one hundred percent. Trial counsel admitted that he initially
told the Petitioner the wrong percentage of time that could be taken off his sentence, but
that he corrected himself and informed the Petitioner that “with good time he would get
[fifteen] percent off his sentence.” Trial counsel testified the he felt confident that the

                                             -4-
Petitioner would earn sentencing credits because he had “always been good . . . in
custody.”

       Trial counsel testified that he advised the Petitioner to accept the plea offer. Trial
counsel explained that the Petitioner had enough prior felony convictions to be classified
as a Range II, multiple offender and would have faced a minimum sentence of twenty-
five years if convicted at trial. Trial counsel further explained that he believed the
Petitioner was more likely to be sentenced near the maximum of forty years because the
Petitioner had prior convictions for “attempted murder” and aggravated robbery.
Additionally, the prosecutor had advised trial counsel that she was considering seeking a
superseding indictment for attempted first degree murder and especially aggravated
kidnapping.

       Trial counsel recalled that he advised the Petitioner that the Petitioner’s claim that
he thought he had stabbed the victim in her chest and only took the cocaine he had
bought from the victim would not be a convincing defense at trial. Trial counsel testified
that he reviewed the plea agreement form with the Petitioner, that the Petitioner signed
the form, and that it was the Petitioner’s choice to plead guilty. Trial counsel believed
that the Petitioner was “well aware of what kind of jeopardy he was in,” that he “knew
what he was getting into[,] and he entered his plea.”

        On March 8, 2017, the post-conviction court entered a written order denying post-
conviction relief. The post-conviction court accredited the testimony of trial counsel over
the Petitioner’s. The post-conviction court concluded that the Petitioner was properly
advised “that he was pleading guilty to an offense with a service rate of one hundred
percent [] with the possibility of receiving credit of up to fifteen percent [] of the
sentence.” The post-conviction court further concluded that the Petitioner “made a
knowing and intelligent choice to waive his right to trial and to enter a plea of guilty.”
The post-conviction court stated that “[g]iven the enormity of the potential punishment
[the Petitioner] faced, coupled with the strength of the [S]tate’s case, no competent
attorney providing effective assistance of counsel would [have] advise[d] [the Petitioner]
to reject the offer he ultimately accepted.”

                                       ANALYSIS

        The Petitioner contends that his guilty plea was not voluntarily and knowingly
entered. The Petitioner argues that trial counsel was ineffective for failing to properly
investigate his case and for failing to share the State’s discovery response with him. The
Petitioner further argues that trial counsel misinformed him about the amount of time he
would actually have to serve before he could be released from prison. The State responds
that the post-conviction court did not err in denying the petition.

                                             -5-
       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). On appeal, we are bound by the post-conviction court’s findings of fact unless we
conclude that the evidence in the record preponderates against those findings. Fields v.
State, 40 S.W.3d 450, 456 (Tenn. 2001). Additionally, “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 post-conviction court. Id.
However, we review the post-conviction court’s application of the law to its factual
findings de novo with no presumption of correctness. Id. at 457.

       Post-conviction relief is available when a “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.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger, 279 S.W.3d at 293 (citing U.S. Const. amend. VI; Cuyler v. Sullivan,
446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made
under the Sixth Amendment to the United States Constitution, the burden is on the
petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993).

       Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “Because a petitioner must
establish both prongs of the test, a failure to prove either deficiency or prejudice provides
a sufficient basis to deny relief on the ineffective assistance claim.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has 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).

        In the context of a guilty plea, like the present case, the effective assistance of
counsel is relevant only to the extent that it affects the voluntariness of the plea.
Therefore, to satisfy the second prong of Strickland, the petitioner must show that “there
is a reasonable probability that, but for counsel’s errors, he would not have [pled] guilty
and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see
also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).


                                             -6-
        Here, the post-conviction court accredited trial counsel’s testimony over the
Petitioner’s. Trial counsel testified that he met with the Petitioner several times and
spoke with the detective, the prosecutor, and the victim’s attorney. Trial counsel further
testified that he discussed the State’s discovery response with the Petitioner. At the post-
conviction hearing, the Petitioner took issue with the fact that trial counsel did not inform
him of the exact amount of money he was accused of taking from the victim and that trial
counsel did not attempt to investigate whether the victim actually got an income tax
refund for that amount. We doubt that the Petitioner would not have accepted the State’s
plea offer for those reasons given the possibility of receiving a forty-year sentence at trial
and facing other charges in a superseding indictment.

        Despite having conceded this issue in the post-conviction court, the Petitioner’s
attorney argues that trial counsel misinformed the Petitioner about the amount of time he
would actually have to serve before he could be released from prison. The Petitioner
cites to Gordon Wayne Davis v. State, No. E2015-00772-CCA-R3-PC, 2016 WL
4737010 (Tenn. Crim. App. Sept. 9, 2016), to support his argument. However, Davis is
inapplicable here. The Petitioner in Davis had been misinformed by his trial counsel and
the trial court that he could receive sentencing credits when he statutorily could not. Id.
at *9. Here, the Petitioner was properly informed by trial counsel and the trial court that
he could receive sentencing credits to reduce his sentence by fifteen percent pursuant to
Tennessee Code Annotated section 40-35-501(i). Accordingly, we conclude that the
post-conviction court did not err in denying the petition.

                                      CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of
the post-conviction court is affirmed.



                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




                                             -7-
