        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 11, 2012

       CHARLES EDWARD WILBOURN v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                        No. 2010-A-11 Cheryl Blackburn, Judge



                   No. M2012-00488-CCA-R3-PC - Filed March 8, 2013


Appellant, Charles Edward Wilbourn, was indicted by the Davidson County Grand Jury for
one count of possession of more than .5 grams of cocaine for sale in a drug-free zone. On
February 19, 2010, Appellant pled guilty in a negotiated plea to the charge and an eight-year
sentence to be served at 100 percent. Appellant subsequently filed a timely petition for post-
conviction relief. After appointment of counsel, an amended petition was filed. One of the
issues raised was that trial counsel afforded Petitioner ineffective assistance of counsel
because she did not adequately investigate whether the incident actually occurred in a drug-
free non-school zone. After an evidentiary hearing, the post-conviction court denied the
petition. On appeal, Petitioner argues that the post-conviction court erred with respect to the
above issue. After a thorough review of the record, we conclude that the post-conviction
court did not err in denying the petition. Therefore, we affirm the denial of the petition for
post-conviction relief.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and A LAN E. G LENN, JJ., joined.

Everette E. Parrish, Brentwood, Tennessee, for the appellant, Charles Edward Wilbourn.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Victor S. Johnson, District Attorney General, and Bret Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                   Factual Background

       On February 19, 2010, Appellant pled guilty to one count of possession of more than
.5 grams of cocaine for sale in a drug free zone in exchange for an eight-year sentence to be
served at 100%. The State set out the following stipulated facts at the guilty plea hearing:

       Officer Bray stopped this defendant. A drug dog came to -- it was on
       Clarksville Pike near Kings Lane. It alerted. There was approximately 150
       grams of cocaine, some of it crack cocaine, some of it powder cocaine. They
       found $17,000 plus at his residence. The location of the traffic stop was
       within 1,000 feet of a child care facility that’s located at the Cathedral of
       Praise Church, 4300 Clarksville Pike.

       Appellant subsequently filed a timely pro se petition for post-conviction relief.
Counsel was appointed and an amended petition was filed. The post-conviction court held
a hearing on the petition on September 21, 2011.

       The first witness at the hearing was Brenda Ramsey, who is employed by the City of
Life Corporation located at the Cathedral of Praise Church. Ms. Ramsey testified that the
Cathedral of Praise Church runs both an after-school program for children during the school
year and a summer enrichment program for children during the summer.

       Ms. Ramsey testified that the after-school program and summer enrichment program
were not required to be licensed under the State’s day care licensing requirements because
the after-school program lasted fewer than three hours a day and the summer enrichment
program lasted fewer than forty-nine days in one year.

        Ms. Ramsey testified that on June 4, 2007, the date upon which the incident in
question occurred, the summer enrichment program would have just begun. Ms. Ramsey
identified a letter of exemption from licensure for child care. The letter was dated July 13,
2007. Ms. Ramsey opined, as a former licensing counselor in the 1970’s, that the Cathedral
of Praise’s after-school program and summer enrichment program would not be considered
a child care center, library, recreation center, park, or child care agency.

       On cross-examination, Ms. Ramsey testified both the after-school program and
summer enrichment program cared for school-aged children. According to Ms. Ramsey a
the time of the incident, the after-school program had an estimated enrollment of forty

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children and the summer enrichment program had an enrollment of sixty to sixty-two
children. Ms. Ramsey admitted with regard to the licensure that there are child care agencies
that are not required to be licensed. The exemption letter did not say that the summer
enrichment program did not constitute a child care agency but that the program did not
require licensure.

       The post-conviction court also asked Ms. Ramsey the following:

       THE COURT: Okay. So if the legislature were to say that the purpose of a
       drug free zone is so that children can learn, play, and enjoy themselves without
       distractions and dangers that are incident to illegal drug activities, your
       organization would fall within that?

       [Ms. Ramsey]: That’s correct, it would.

        Appellant also testified at the hearing. He stated that he did not know of the charge
being in a drug-free non-school zone until December 2009, which was a few months before
his trial. He stated that trial counsel filed a motion to suppress, but she did not make any
arguments with regard to the drug-free zone issue. Petitioner testified that trial counsel “told
[him he] should plea because if it’s a school zone – and if [he] wanted to take it to trial, she
would. But [he] should take a plea.” He stated that he would have taken it to trial if he had
known that he was not facing a sentence that would be served at 100 percent. On cross-
examination, Appellant stated that he believed that trial counsel should have investigated the
question of the drug-free non-school zone more than she did.

       Trial counsel also testified at the hearing. She stated that she had read the indictment.
She stated that she did not address the question of whether the arrest occurred in a drug-free
non-school zone. When asked whether she pursued the question of whether the location of
the arrest was a drug-free non-school zone, trial counsel stated the following:

       I got the information from the District attorney that it was the Cathedral of
       Praise – let me give you a little background. I’m from that area. I was born
       in that area, grew up in that area, my kids were in that area. I thought long
       ago, not Cathedral of Praise, but there were two other locations, one being a
       school school [sic] that I always wondered why they didn’t use that and
       another one being a drug free zone area. So the Cathedral of Praise, I didn’t
       specifically think about that one. I had always known that just to be a church.
       I didn’t know about the day care and all of that there. But there were two other
       places, that you know, I was just – I had always thought and wondered why
       didn’t they use that. Of course, I didn’t bring it to their attention, but I always

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       thought about those other two areas, two places I was familiar with, and that
       my children have actually attended. . . .

She was also asked whether she assumed that the zone used in the indictment was a valid
zone because it was on the indictment. She responded in the following manner:

       Well, not necessarily saying it’s valid. I knew that was something they would
       have to prove to a jury. I knew that that’s something they were asserting, but
       I knew they would also have to prove that to a jury. But, no, as far as saying
       you’re wrong on this, I didn’t do that because I know the D.A.’s office. I
       know they’ll keep looking and find a school, and I knew schools were there.

        On cross-examination, trial counsel stated that there had been earlier plea offers. She
stated that she encouraged Appellant to accept a plea that was an offer of eight years at thirty
percent to run concurrently with his sentence from a prior conviction. Appellant refused.
Trial counsel said that the State was offering thirty percent up until right before trial, but
Appellant refused those offers. At the conclusion of her testimony, trial counsel agreed with
the post-conviction court that trial counsel did not want to “do anything that might signal the
State to look hard and fast for a school” because then the charge would have been a Class A
felony with a minimum sentence of fifteen years at 100 percent.

       On January 24, 2012, the post-conviction court filed a written order denying the
petition. The post-conviction court made the following findings:

               Petitioner essentially raised on complaint regarding trial counsel’s
       representation: that is, trial counsel failed to investigate whether the non-
       school drug free zone entity named by the State in its letter actually fell within
       1000' of the area where the crime was alleged to occur. The parties submitted
       substantial briefings as to whether the activities at the Cathedral of Praise
       constitute a “child care agency” for purposes of the non-school drug free zone
       definition in T.C.A. § 39-17-432(b). While this is a relevant issue, the Court
       finds that whether or not City of Life is considered a childcare facility for drug
       free zone purposes is not determinative to this issue as Petitioner’s claim
       focuses on whether trial counsel was ineffective for failing to
       investigate.[FN4]

              [FN4 This Court however, agrees with the State that City of Life
              is a childcare facility for purposes of the drug free zone laws
              (T.C.A. § 39-17-432) even though it is not required to be



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              licensed as a child car facility under Department of Human
              Services’ regulations set forth at T.C.A. § 71-3-503.]

               Trial counsel testified that she made a strategic decision not to
       challenge the zone, citing that she is highly familiar with the area in question
       having grown up and lived there, and she knew that even if Cathedral of Praise
       did not fall within 1000', she was certain that the scene fell within two other
       drug free zones, including one school zone, which would have increased the
       felony charge from a B to an A. Thus, she did not want to alert the State to the
       possibility it could use a school zone instead of a non-school drug free zone
       charge. Additionally, trial counsel stated that she planned to hold the State to
       its burden at trial to prove that the location at issue was within 1000' of the
       Cathedral of Praise. The Court credits trial counsel’s testimony and finds that
       she made a reasonable tactical decision. Strickland, 466 U.S. at 688-89. Like
       the counsel in Davis v. State, trial counsel knew there was no question that the
       scene was within a drug free zone and her goal was to minimize her client’s
       exposure. Davis v. State, No. M2005-01902-CCA-R3-PC, 2006 WL 3290822,
       at *4 (Tenn. Crim. App., at Nashville, Nov. 13, 20060, perm. to appeal denied
       (Tenn. Mar. 12, 2007) affirming that counsel’s performance was not deficient
       when petitioner alleged counsel did not investigate school zone because the
       post-conviction court credited trial counsel’s testimony that he had no way to
       contest the charge that petitioner sold drugs within 1000' feet of a school
       zone).


Petitioner now appeals from the denial of his petition.

                                        ANALYSIS

                           Post-conviction Standard of Review

       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 re-weigh 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

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de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing by clear and convincing evidence 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); see also T.C.A. § 40-30-110(f). 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). “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.

       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. State v. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, 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).

       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) (citing North Carolina v. Alford, 400
U.S. 25, 31 (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, Petitioner must establish: (1) deficient representation; and (2) prejudice resulting
from the deficiency. 466 U.S. at 694. 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,

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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).

        We conclude that the evidence presented does not preponderate against the findings
of the post-conviction court. The post-conviction court was correct that the issue in the case
is whether trial counsel was ineffective in failing to investigate whether the location was in
a drug-free non-school zone. Appellant has been unable to meet the two prongs set out in
Strickland. As stated above, we are not to second-guess a reasonably-based trial strategy,
Adkins, 911 S.W.2d at 347. We agree with the post-conviction court’s conclusion that trial
counsel decision to not press the issue of the drug-free non-school zone was a strategy to
prevent Appellant’s potential exposure to a Class A felony with a minimum sentence the
length of which was almost twice that of the eight-year sentence to which he pled.

        Furthermore, Appellant has not proven that he would have gone to trial had he not
pled guilty. Trial counsel stated that Appellant received plea offers that carried a thirty
percent release eligibility. He does not convincingly argue that he would not have pled
guilty to the eight-year, 100 percent release eligibility sentence even if trial counsel had
discovered that the incident did not occur in a drug-free non-school zone. When given an
offer which would have negated the 100 percent release eligibility that accompanied the
drug-free non-school zone charge, Appellant refused it.

                                      CONCLUSION

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




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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