         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     July 12, 2005 Session

         HAROLD BERNARD SCHAFFER v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Dyer County
                              No. C00-99    Lee Moore, Judge



                    No.W2004-02212-CCA-R3-PC - Filed October 11, 2005


The petitioner pled guilty to one count of failure to appear in case number 00-99 stemming from the
terms included in a previous guilty plea in case number 99-228. The petitioner then filed a petition
for post-conviction relief stating he was afforded ineffective assistance of counsel in case number
00-99. The post-conviction court denied this petition. On appeal, the petitioner argues that he was
afforded ineffective assistance of counsel in his guilty plea for case number 00-99 and that his guilty
plea for case number 99-228 is unenforceable because it lacks clarity. We affirm the denial of the
petition by the post-conviction court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
NORMA MCGEE OGLE, JJ., joined.

Timothy Boxx, Dyersburg, Tennessee, for the appellant, Harold Bernard Schaffer.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and
C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        The petitioner, Harold Bernard Schaffer, entered a guilty plea on October 5, 1999, to one (1)
count of possession of cocaine with intent to sell or deliver and one (1) count of possession of
marijuana over one half (.5) ounce with intent to sell or deliver. The trial court sentenced the
petitioner to eight (8) years as a Range I offender on the cocaine conviction with a fine of $2,000,
and to two (2) years as a Range I offender for the marijuana conviction with a $2,000 fine. The
second $2,000 fine was suspended. As part of the plea, the petitioner was allowed to go to a drug
rehabilitation program lasting one (1) year or more with credit for successful completion. Following
successful completion of the one (1) year drug rehabilitation program, the petitioner would be placed
on supervised probation if he returned to court and the trial court approved the supervised probation.
The petitioner was given a report date of October 29, 1999, if he was not already in a rehabilitation
program. If he was already in a program, the State agreed to submit an order which stated that the
petitioner was in a program.

        The petitioner did not report on October 29, 1999. The public defender’s office, represented
him in the plea, received a fax from a rehabilitation facility which stated that the petitioner was a
patient. However, the petitioner called the public defender’s office on November 16, 1999 to state
that the facility was closed. The public defender he spoke with told him to report to jail. The
petitioner did not. He attended a series of rehabilitation programs. The district attorney’s office did
not receive proof of attendance. The petitioner was indicted for one (1) count of failure to appear
by the Dyer County Grand Jury on April 10, 2000. The petitioner pled guilty on April 13, 2004 to
the charge of failure to appear in Case Number 00-99. The trial court sentenced the petitioner to two
(2) years to run consecutively to the sentences imposed in his October 5, 1999 plea to possession of
cocaine and possession of marijuana.

         The petitioner filed a motion to withdraw his guilty plea on May 18, 2004. On May 20, 2004,
the trial court entered an order treating the May 18th motion as a petition for post-conviction relief
and appointed counsel. The petitioner filed an amended petition for post-conviction relief on July
26, 2004. Following a hearing on the petition, the trial court denied the petition. The petitioner filed
a timely notice of appeal.


                                 Evidence at the Post-conviction Hearing

        The post-conviction hearing consisted of the testimony of several witnesses. The first of the
petitioner’s witnesses was his trial counsel on the failure to appear charge, which was Case Number
00-99.1 Case 00-99 counsel testified that his investigation consisted of speaking with the petitioner
concerning what happened with his plea in Case Number 99-228 and the various rehabilitation
programs in which the petitioner participated. Counsel stated that he met with the petitioner several
times prior to the petitioner entering his guilty plea. According to Case 00-99 counsel, the petitioner
had participated in two (2) rehabilitation programs where the petitioner was discharged. In the first
program, the petitioner was discharged for being a danger to the community. In the second program,
the petitioner was discharged against medical advice. Case 00-99 counsel discovered that the public
defender’s office, who represented the petitioner in Case Number 99-228, never put down a furlough
order after his guilty plea to the drug charges. The petitioner’s mother also gave Case 00-99 counsel
several copies of faxes from the Tony Rice Center rehabilitation facility, but none of these actually
confirmed that the petitioner was at the facility for any length of time.

       Case 00-99 counsel went on to testify regarding the actual plea. He stated that the last time
he spoke with the petitioner, the petitioner said that “he wanted to get this over.” Counsel
encouraged the petitioner to slow down and went over the indictment with him. Case 00-99 counsel


       1
           To minimize confusion, we will refer to this attorney as Case 00-99 counsel.

                                                         -2-
spoke with the district attorney’s office and discovered that the State believed that the petitioner was
actually in a rehabilitation program on his report date. The petitioner told Case 00-99 counsel that
he was not in a rehabilitation program at that time because he had been asked to leave. Case 00-99
counsel also testified that he discussed the likelihood of success at trial with the petitioner. Counsel
did not believe that it was likely the petitioner would receive a favorable outcome. On the actual
date of the petitioner’s indictment for failure to appear, he was not in a rehabilitation program
according to Case 00-99 counsel’s information.

         The petitioner also testified at the post-conviction hearing on his own behalf. The petitioner
testified that on October 29, 1999, he was in Texas. The petitioner stated that he was at Miracles in
Motion, a rehabilitation facility, that turned out to be a hoax. Petitioner testified he was at Miracles
in Motion from October 25, 1999 to November 17, 1999. He stated that he returned from Texas on
November 18, 1999 and went to the public defender’s office with his mother. The petitioner testified
at length regarding his short stays at various facilities. The petitioner testified that he did not remain
at any facility for a year, as required by his plea in case number 99-228, because there was no
treatment available for that length of time. He stated that long-term treatment at the facilities
consisted of twenty-eight (28) days of in-patient treatment followed by a half-way house. Petitioner
testified that he did stay at one (1) facility in particular, Serenity Recovery Center (“Serenity”), for
twenty-eight (28) days and then moved to half-way house status. He started at Serenity sometime
in November of 1999 and remained in that program until January 30, 2000.

         The petitioner also testified regarding his dealings with Case 00-99 counsel. Petitioner
testified that he never met with Case 00-99 counsel until two (2) hours before the plea agreement.
He also stated that Case 00-99 counsel did not show him the indictment on the failure to appear
charge. The petitioner stated that he told his counsel that he was where he was supposed to be on
October 29, 1999. The petitioner stated that he entered a guilty plea to failure to appear because
Case 00-99 counsel told him he was supposed to be in jail on October 29, 1999, and he knew that
he was not in jail. The petitioner also maintained at the post-conviction hearing that the State’s
attorney did not enter the furlough order which was a stipulation to the guilty plea in Case 99-228.
The petitioner did admit that upon completion of a rehabilitation program he was supposed to return
to court. However, he maintained that he did not return because he did not have a court date. The
petitioner also admitted that he never gave proof to the State or the public defender’s office about
his whereabouts in April of 2000.

        The petitioner’s mother also testified at the hearing. She testified that she spoke with a
member of the district attorney’s office about the petitioner when she was meeting with the district
attorney regarding her niece. She stated that she told him that the petitioner was doing well. The
petitioner’s mother admitted that during this conversation, the attorney did not pull out the
petitioner’s file. She also testified that the petitioner knew he had to report to jail after a year of
rehabilitation because she knew that he had to return.




                                                   -3-
        The petitioner’s final witness was his trial counsel in Case Number 99-228, in which the
petitioner pled guilty to the drug charges.2 Case 99-228 counsel testified that in pleading guilty to
the drug charges the petitioner agreed to be in a rehabilitation program or jail on October 29, 1999,
and a furlough order would be submitted if he was in a rehabilitation program. If petitioner
successfully completed a one (1) year program, he would be placed on supervised probation and
could petition for a suspended sentence. At the time of the petitioner’s plea, the public defender’s
office was not in the habit of preparing a furlough order and supplying it to defendant at the time of
the plea. Case 99-228 counsel specifically testified that the petitioner did not have a furlough order.
On cross-examination, Case 99-228 counsel stated that the petitioner had not been admitted to a
rehabilitation program when he pled guilty. Counsel stated that his office did receive a fax from
Miracles in Motion on October 29,1999 stating that the petitioner was there and had been there for
a few days. However, Case 99-228 counsel was not familiar with the facility, because it was located
in Texas. His office requested more information about the facility. For this reason, Case 99-228
counsel did not prepare a furlough order. On November 16, 1999, Case 99-228 counsel received a
telephone call from the petitioner stating that the facility was shutting down. Case 99-228 counsel
told the petitioner he needed to report to the jail. The public defender’s office later received faxes
on more than one (1) occasion informing them that the petitioner was absent without leave from
Miracles in Motion.

        Case 99-228 counsel stated that he received confirmation on November 22, 1999, that the
petitioner was in Methodist Healthcare, a rehabilitation facility in Memphis. Case 99-228 counsel
was also informed that after completing about a week at Methodist Healthcare, the petitioner was
to report to Serenity. However, Case 99-228 counsel never received confirmation that the petitioner
was at Serenity. Case 99-228 counsel did not hear of the petitioner being in a rehabilitation facility
for the remainder of 1999 or the years of 2000, 2001, 2002 or 2003.

        The State’s only witness at the post-conviction hearing was another member of the public
defender’s office who worked with Case 99-228 counsel. This attorney stated that after the public
defender’s office received the fax on October 29, 1999 regarding Miracles in Motion, he made a note
on the fax that the public defender’s office did not know anything about the facility. This attorney
then faxed a copy of this to the district attorney’s office. This attorney also did not remember the
petitioner coming to the public defender’s office upon his return to Tennessee from Texas. He
believed the petitioner was remembering a meeting that occurred before the petitioner entered his
guilty plea.

       At the conclusion of the hearing, the post-conviction court stated on the record its findings
and denied the petitioner’s petition for post-conviction relief. The post-conviction court entered an
order denying the petition on the grounds of ineffective assistance of counsel and entering a
voluntary and knowing guilty plea on August 16, 2004.

                                                   ANALYSIS

       2
           To minimize confusion, we will refer to this attorney as Case 99-228 counsel.

                                                         -4-
         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 issue raised, we will afford those findings of fact the weight of a jury verdict, and this Court
is bound by the 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). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).

        At the conclusion of the post-conviction hearing, the trial court made the following findings
of fact and conclusions of law:


                All right, gentlemen, I’ve read through both files, I’ve read the transcripts of
       the guilty pleas in both cases. I’ve listened to the evidence here today and I think it
       all boils down to one thing, [Petitioner], you said it yourself. I opted out of this
       program, I opted for more, for more of the rehab. The problem that we’ve got in this
       case, it’s not the fact that there was no furlough order entered. It’s not the fact that
       you didn’t know you were supposed to do [sic]. The problem that we have in both
       of these cases is you were acting on your options.

               Unfortunately, you were being allowed to do some of that I think because
       everyone in Dyersburg loves your mother and father and respects your mother and
       father greatly. They’re wonderful people. But you were acting, [Petitioner], on your
       own and you were opting to do these things and they were violating every rule that
       we have in our court system up here.

                In the first case you can’t have it both ways. If there’s no furlough order then
       you should have been in jail. And you knew what that situation was, there’s no
       question in my mind. If there is a furlough order then you could have gone to rehab.
       But the whole purpose of these furlough orders is it’s not just to let you know what
       you’re supposed to be doing, the furlough order is the document that keeps you from
       being in jail at that particular time. You didn’t – it’s a strange thing to me, I have no
       idea why you chose to go to Texas but it was a horrible mistake and again, you opted
       to do that and you opted to do that without ever discussing it with [your attorneys].
       You just did it and it didn’t work out and you went from that one to another one.
       You never finished any of the rehabs. You should have been in – I’m talking now,
       your talking has finished, [Petitioner]. Then you get charged finally, several years
       later I might add, with a failure to appear. Everything that you said – I let you make
       a speech that day you gave your, you entered your plea of guilty on the failure to


                                                 -5-
        appear and you admitted everything, you know, just as [the State’s attorney] says.
        And I thought at that particular time in your life that you were maybe beginning to
        accept some responsibility for your actions, but you weren’t. You know, you were
        evidently blowing smoke at me because you obviously are not accepting
        responsibility still for anything that you’ve done in these two cases.

                There is no ineffective assistance of counsel. You were well represented.
        You obviously knew what you were doing at the time of the plea was taken [sic] on
        the failure to appear and there is no basis to set aside or to grant any relief on the
        motion for specific performance on your plea agreement.

                You failed to carry your burden of proof on the issuance of ineffective
        assistance of counsel or any prejudice that there might be and the petition will be
        dismissed and your motion will be dismissed.


        On appeal from the denial of his petition for post-conviction relief the petitioner argues two
(2) issues: (1) whether his trial counsel was ineffective in Case number 00-99 and (2) whether the
petitioner’s plea agreement in Case number 99-228 should be enforced due to lack of clarity.

                                 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 (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, 960 S.W.2d at 580.

        In order for the petitioner to prevail where he has plead guilty, he must show, by clear and
convincing evidence, that his attorney failed to properly advise him of the possible consequences of
his plea and that trial counsel’s failure to do so resulted in prejudice. 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 (1985)


                                                  -6-
(citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). As stated above, in order to successfully
challenge the effectiveness of counsel, the 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. at 687, the 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, the 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).

        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 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. Crim. App. 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).

         We conclude that the evidence does not preponderate against the post-conviction court’s
findings that the petitioner was afforded effective assistance of counsel. Case 00-99 counsel testified
that he met with the petitioner several times, went over the indictment and discussed the likelihood
of the outcome if the petitioner went to trial. In addition, when the petitioner told his trial counsel
that he just wanted to get the plea over with, Case 00-99 counsel urged the petitioner to slow down.

        In his brief to this Court, the petitioner makes several arguments based upon the specifics of
his guilty plea in Case number 99-228 and his sporadic attendance in rehabilitation programs from
1999 until he was arrested at some point, which is unclear from the record, for his indictment for
Case number 00-99. However, the issue in this case is restricted to whether the petitioner was
afforded effective assistance of counsel in his guilty plea to Case number 00-99. Because we have
found that the petitioner has failed to establish that his counsel’s performance was deficient, this
issue is without merit.

                           Clarity of Case number 99-228 Guilty Plea

       The petitioner’s second argument is whether his guilty plea in case number 99-228 is
enforceable because it lacked clarity or ambiguity. We are unable to review the petitioner’s claim


                                                 -7-
because the sole issue presented to the post-conviction court in this case was whether or not the
petitioner was afforded ineffective assistance of counsel. We are constrained to review the issues
presented to and ruled upon by the post-conviction court. Tenn. R. App. P. 3(b). In addition, the
petitioner would be outside the time for filing a petition for post-conviction relief for his guilty plea
in Case number 99-228. A petitioner must file a petition for post-conviction relief “within one (1)
year of the date . . . from which the judgment is final.” Tenn. Code Ann. § 40-30-102.

        Therefore, this issue is without merit.


                                           CONCLUSION

        For the foregoing reasons, we affirm the judgment of the post-conviction court.

                                                  ___________________________________
                                                  JERRY L. SMITH, JUDGE




                                                   -8-
