        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 13, 2014

             TERRY R. WHITEFIELD v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                     No. 2009-D-3396     Monte Watkins, Judge


                  No. M2013-02029-CCA-R3-PC - Filed June 12, 2014


The petitioner, Terry R. Whitefield, appeals the denial of post-conviction relief from his 2012
Davidson County Criminal Court guilty-pleaded convictions of aggravated sexual battery,
for which he received a sentence of 16 years’ incarceration. In this appeal, the petitioner
contends that he was denied the effective assistance of counsel and that his guilty pleas were
not knowingly and voluntarily entered. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and R OGER A. P AGE, JJ., joined.

Ryan K. H. Nevin, Nashville, Tennessee, for the appellant, Terry R. Whitefield.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Roger Moore, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                On March 7, 2012, the petitioner, originally charged with six counts of child
rape and six counts of aggravated sexual battery, entered pleas of guilty to two counts of
aggravated sexual battery in exchange for consecutive sentences of eight years’ incarceration,
for a total effective sentence of 16 years, and dismissal of the other 10 counts. The transcript
of the guilty plea colloquy contains the following factual summary of the offenses:

                     Judge, had this matter . . . proceeded to trial the State’s
              proof would be that on November the 9th, 2009[,] Metro Police
              were contacted by the mother of the victim, who is the child
               named in the indictment. Her date of birth is 1-3-2002. The
               victim’s mother . . . contacted the police because the child had
               disclosed to her that the defendant, who is the child’s paternal
               grandfather, had been touching her genital and buttocks.

                      The mother contacted the police, a forensic interview was
               set up and the child disclosed numerous instances of sexual
               contact perpetrated on her by the defendant, Mr. Whitefield.

                      The child’s mother . . . agreed to participate in a body
               wire conversation with the defendant, wherein he admitted to
               several instances of touching the child in a sexual manner on the
               intimate parts.

                      The defendant is going to plead – two counts that he’s
               choosing to plead to, that we’re pleading him to today, Count
               Seven and Count Eight, involve – both involve two separate
               discreet instances of him touching the child’s genital area with
               his hand.

               On April 16, 2012, the petitioner filed a pro se petition for post-conviction
relief, and the petitioner’s counsel filed an amended petition on April 25, 2013. In his
amended petition, the petitioner claimed, inter alia, that he was deprived of the effective
assistance of counsel and that his guilty plea was not knowingly and voluntarily made.

               At the evidentiary hearing, the petitioner testified that trial counsel continually
counseled the petitioner that he would lose if he proceeded to trial. The petitioner insisted
that, on the day he was brought into court to enter his plea, he “had no clue” what was about
to happen. Prior to entering his guilty plea, the petitioner met with trial counsel at least five
or six times, and he conceded that it “[c]ould have been more.” With respect to allegations
that trial counsel failed to prepare a defense, the petitioner stated that counsel did not
“thoroughly” question his wife about allegations that she had witnessed the petitioner’s
assaulting the victim. The petitioner testified that he “really, really, did want to go to trial”
but that he could not because trial counsel “kept telling [him] that [he] can’t win.” The
petitioner admitted that he did review his indictment with trial counsel but stated that counsel
did not explain the indictment very well.

               On cross-examination, the petitioner acknowledged that trial counsel reviewed
his constitutional rights with him, and the petitioner conceded that his signature was on the
guilty plea form dated March 7, 2012. The petitioner admitted that, in responding to

                                               -2-
questions on the form, he denied being under the influence of alcohol or drugs, denied
suffering from a mental illness, and understood that he was pleading guilty, but at the post-
conviction hearing, the petitioner insisted that his answers to all of those questions had been
untruthful. The petitioner explained that, at the time he entered his plea, he was taking
“mental health medicine” for “stress and depression.” The petitioner denied understanding
the plea petition that he signed although he acknowledged that he had “a twelfth grade
education.” The petitioner understood that he was facing a potential sentence of more than
100 years’ incarceration if he had been convicted at trial, but the petitioner was not
convinced that a jury would have convicted him.

                Trial counsel testified that he had been a licensed attorney for almost nine
years, focusing primarily on criminal defense. Trial counsel stated that he had been
appointed to represent the petitioner and that he had met with the petitioner several times.
With respect to the facts of the petitioner’s case, trial counsel testified as to numerous facts
that were detrimental to the petitioner, including the petitioner’s own admissions of guilt
during both the body wire conversation with the victim’s mother and his statement to law
enforcement officers following his arrest, as well as eyewitness testimony. Trial counsel
stated that his conversation with the petitioner’s wife led him to believe that she would have
been a positive witness for the petitioner although her testimony would not have been enough
to exonerate the petitioner “as to many of the counts.”

               Trial counsel recalled having “many discussions” with the petitioner about the
benefits and risks of proceeding to trial. Believing that the petitioner’s only possible defense
was to claim that he had given a false confession, which trial counsel did not believe would
be very successful, counsel advised the petitioner that he would likely be convicted on all
counts and that he would likely receive an effective sentence of life imprisonment. After
extensive negotiations with the State’s attorney, trial counsel presented the petitioner with
a plea offer of 16 years in exchange for a guilty plea to two of the six counts of aggravated
sexual battery and dismissal of all remaining charges. Because the petitioner was
approximately 60 years of age, trial counsel told the petitioner that the plea offer would likely
permit him to “make it out of incarceration before he would die.”

               Although trial counsel was aware that the petitioner suffered from depression,
counsel did not believe that the petitioner’s condition affected his ability to enter a plea.
Trial counsel acknowledged that the petitioner did, at one point, seek to withdraw his guilty
plea, but following a consultation with trial counsel in which counsel explained the potential
ramifications of such an action, the petitioner chose to withdraw his motion.

             On cross-examination, trial counsel recalled that he reviewed both the
indictment and the bill of particulars with the petitioner, but he could not recall with certainty

                                               -3-
whether he provided the petitioner with a copy of those materials. Trial counsel admitted that
he never filed a motion to dismiss any of the charges against the petitioner.

               In the post-conviction court’s order denying post-conviction relief, the court
accredited trial counsel’s testimony that he had “met with the [petitioner] and advised him
of the evidence against him,” as well as advising the petitioner of “the likelihood of
conviction and the range of punishment.” Despite the petitioner’s claims to the contrary, the
post-conviction court found that the petitioner had been advised of both the nature and
consequences of his plea as evinced by the petitioner’s signature on the plea petition.
Moreover, the post-conviction court observed that, in the transcript of the plea proceedings,
the petitioner affirmed that he understood the contents of the petition and denied that he had
any questions about the petition. Specifically finding that the petitioner’s testimony was not
credible, the post-conviction court found that the petitioner had “failed to demonstrate by
clear and convincing evidence ineffective assistance of counsel and that the plea was a
violation of due process rights,” and that the petitioner “failed to show that he was prejudiced
by counsel’s allegedly deficient conduct.”

               In this appeal, the petitioner reiterates his claims of ineffective assistance of
counsel and involuntary guilty pleas, claiming that trial counsel performed deficiently by
failing to move for dismissal of one of the child rape charges and by failing to adequately
prepare and advise him regarding his guilty plea and that counsel’s failures rendered his
guilty pleas unknowing and involuntary. The State contends that the post-conviction court
did not err by denying relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or voidable
because of the abridgement of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A. § 40-30-103 (2006). A post-conviction petitioner
bears the burden of proving his or her factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s
findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

               To establish entitlement to relief via a claim of ineffective assistance of
counsel, the defendant must affirmatively establish first that “the advice given, or the services
rendered by the attorney, are [not] within the range of competence demanded of attorneys in
criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and second that his

                                               -4-
counsel’s deficient performance “actually had an adverse effect on the defense,” Strickland
v. Washington, 466 U.S. 668, 693 (1984). In other words, the defendant “must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. Should the defendant fail to establish
either deficient performance or prejudice, he is not entitled to relief. Id. at 697; Goud v.
State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be
followed.” Strickland, 466 U.S. at 697.

              When reviewing a claim of ineffective assistance of counsel, we will not grant
the defendant the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

                Apart from whether a guilty plea is the product of ineffective assistance of
counsel, it is invalid if otherwise made unknowingly or involuntarily. “Whether a plea was
knowing and voluntary is an issue of constitutional dimension because ‘the due process
provision of the federal constitution requires that pleas of guilty be knowing and voluntary.’”
State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2000) (quoting Johnson v. State, 834 S.W.2d
922, 923 (Tenn. 1992)). A plea “may not be the product of ‘[i]gnorance, incomprehension,
coercion, terror, inducements, [or] subtle or blatant threats.’” Wilson, 31 S.W.3d at 195
(quoting Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)); see also State v. Mellon, 118
S.W.3d 340, 345 (Tenn. 2003) (citing Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993)).

              Both claims of ineffective assistance of counsel and involuntary guilty plea are
mixed questions of law and fact. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v.
Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). When reviewing the application of law to the trial court’s factual findings, our review
is de novo, and the trial court’s conclusions of law are given no presumption of correctness.
Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

              In our view, the record fully supports the ruling of the post-conviction court.
With respect to the petitioner’s claim that trial counsel should have sought dismissal of one
of the child rape charges, the petitioner argues that, because counts five and six of the
indictment were identical, the two counts violated double jeopardy principles. That trial
counsel did not move for dismissal of one of these child rape charges – charges that were

                                               -5-
dismissed by the State pursuant to the petitioner’s plea agreement – in no way altered the
outcome of the petitioner’s case. See Strickland, 466 U.S. at 694. The record of the guilty-
plea submission hearing and the accredited testimony of the petitioner’s trial counsel evince
the petitioner’s understanding of the proceedings and his willingness to enter into the plea.
Moreover, the record demonstrates that trial counsel rendered effective assistance in
representing the petitioner.

              Accordingly, the judgment of the post-conviction court is affirmed.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                             -6-
