                                                                                       01/17/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                        Assigned on Briefs November 6, 2018

                  ROBERT WADE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                 Nos. 13-00145 & 13-01655   Chris B. Craft, Judge


                            No. W2017-01042-CCA-R3-PC


The Petitioner, Robert Wade, appeals from the Shelby County Criminal Court’s denial of
his petition for post-conviction relief. The Petitioner contends that his plea agreement
was not knowingly and voluntarily entered into because of his trial counsel’s ineffective
assistance. Discerning no error, 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 TIMOTHY L.
EASTER and J. ROSS DYER, JJ., joined.

Eric J. Montierth, Memphis, Tennessee, for the appellant, Robert Wade.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jose Francisco Leon,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             FACTUAL BACKGROUND

       In January 2013, the Petitioner was indicted in case number 13-00145 on one
count of aggravated burglary and one count of theft of property valued at $1,000 or more
but less than $10,000. The Petitioner was released on bond and then committed a second
set of crimes which resulted in the April 2013 indictment in case number 13-01655 for
one count of aggravated burglary, one count of vandalism valued at $1,000 or more but
less than $10,000, and one count of theft of property valued at $500 or less. The State
tried the Petitioner in case number 13-01655 and the jury convicted the Petitioner of
aggravated burglary and the lesser-included offense of vandalism valued at more than
$500 but less than $1,000. The State dismissed the theft charge.
        At the sentencing hearing for case number 13-01655, trial counsel informed the
trial court that the State had made an offer to settle both cases. However, trial counsel
stated that the Petitioner did not understand why he would not receive jail credits for both
cases if they were served consecutively. The trial court explained to the Petitioner that
his sentences in case numbers 13-00145 and 13-01655 were required by law to be served
consecutively. The trial court then explained, at length, why the Petitioner could not
receive jail credits for both sentences if they were to be served consecutively. At the end
of the trial court’s colloquy, the Petitioner stated that he understood the trial court’s
explanation.1 The Petitioner also asked the trial court about his offender classification
and why the State would not offer him an alternative sentence.

       The State announced that it would be willing to postpone the Petitioner’s
sentencing hearing to give him some time to think about the proposed plea agreement.
The Petitioner asked, “Can we just get it over with today?” At that point, the trial court
took a recess to allow trial counsel to speak with the Petitioner. When they returned, the
State announced that the Petitioner had accepted the plea agreement. The State explained
that the Petitioner would receive an effective sentence of three years as a Range I,
standard offender in case number 13-00145 and an effective sentence of seven years as a
Range II, multiple offender in case number 13-01655. The sentences for both cases
would be served consecutively, for a total effective sentence of ten years.

       The trial court explained to the Petitioner the applicable sentencing ranges that
would apply had he gone to trial in case number 13-00145. The Petitioner, at that point
under oath, stated that he understood this. The trial court then explained the sentencing
alignment for each case and that the sentences for each case would be served
consecutively. Again, the Petitioner stated that he understood. When asked by the trial
court, the Petitioner stated that he wanted to accept the plea agreement. The trial court
concluded that the Petitioner had entered into the plea agreement “freely and voluntarily”
as well as “knowingly and intelligently.” The trial court accepted the plea agreement.

       The Petitioner filed three pro se petitions for post-conviction relief, alleging that
his plea agreement was not knowingly and voluntarily entered because he believed that
his sentences were to be served concurrently.2 Counsel was appointed to represent the
Petitioner in this matter, but no amended petition for post-conviction relief was filed.
The post-conviction court held an evidentiary hearing on April 7, 2017, at which the
Petitioner and trial counsel testified.


1
  The Petitioner was not under oath during this exchange.
2
  The Petitioner also raised several claims that trial counsel was ineffective for various reasons. However,
this opinion will focus solely on the claim raised in the Petitioner’s brief. All other claims have been
waived. See Tenn. R. App. P. 36(a).
                                                    -2-
        The Petitioner claimed that he was innocent of offenses charged in case number
13-01655. However, he admitted that he committed the offenses charged in case number
13-00145. The Petitioner claimed that he only accepted the State’s plea offer because he
was afraid of what would happen to him if he was convicted of a crime he actually had
committed given his belief that he was wrongfully convicted in case number 13-01655.
The Petitioner further claimed that he believed his sentences would be served
concurrently because “that was . . . the way they explained it to” him. The Petitioner
testified that he only “kind of, sort of” understood the trial court’s explanation of his
sentencing and that he “just was saying yes to it” because he “just was trying to get it on
out of the way.”

        Trial counsel testified that he explained to the Petitioner that his sentences in case
numbers 13-00145 and 13-01655 would have to be served consecutively. Trial counsel
recalled that the Petitioner did not understand why he could not receive jail credits toward
both sentences if they were served consecutively. Trial counsel noted that this was “a
pretty common misunderstanding.” Trial counsel testified that he explained to the
Petitioner why he would not receive jail credits toward both sentences if he accepted the
State’s plea offer and then had the trial court explain it to the Petitioner. Trial counsel
testified that the Petitioner “seemed to understand” their explanations.

       Trial counsel noted that if the Petitioner had taken case number 13-00145 to trial,
he would have been sentenced as a Range II, multiple offender and would have a
sentencing range of six to ten years. Instead, the Petitioner was sentenced as a Range I,
standard offender and received a three year sentence as part of the plea agreement. Trial
counsel testified that he advised the Petitioner that this was the best offer the State had
proposed and explained to the Petitioner that he faced a significantly longer sentence if he
went to trial on case number 13-00145 and lost.

       On May 22, 2017, the post-conviction court entered a written order denying
post-conviction relief. The post-conviction court found the Petitioner’s testimony at the
evidentiary hearing “completely lacking in credibility.” The post-conviction court further
found that trial counsel and the trial court “took great pains to [e]nsure that [the
Petitioner] understood the nature and the consequences” of the plea agreement. The post-
conviction court concluded that the Petitioner had failed to establish the allegation that
his plea agreement was not knowingly and voluntarily entered. The Petitioner now
appeals to this court.

                                        ANALYSIS

       The Petitioner contends that his plea agreement was not voluntarily and knowingly
entered into. The Petitioner argues that trial counsel was ineffective in failing to properly
explain the consecutive nature of his sentencing. The Petitioner maintains that he
                                             -3-
believed he was receiving concurrent sentences when he entered into the plea agreement.
The State responds that the post-conviction court did not err in denying the petition.

       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
                                             -4-
also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). However, we note
that a petitioner’s “[s]olemn declarations in open court carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

       A petitioner’s sworn responses to the litany of questions posed by the trial
       judge at the plea submission hearing represent more than lip service.
       Indeed, the petitioner’s sworn statements and admission of guilt stand as a
       witness against the petitioner at the post-conviction hearing when the
       petitioner disavows those statements.

Alfonso C. Camacho v. State, No. M2008-00410-CCA-R3-PC, 2009 WL 2567715, at *7
(Tenn. Crim. App. Aug. 18, 2009).

       Here, the Petitioner has failed to prove his factual allegation by clear and
convincing evidence. The Petitioner claimed at the evidentiary hearing that he believed
he would receive concurrent sentences when he entered into the plea agreement. The
post-conviction court found the Petitioner’s testimony to be “completely lacking in
credibility.” The evidence in the record does not preponderate against that finding. Trial
counsel testified that he explained to the Petitioner that his sentences in case numbers
13-00145 and 13-01655 had to be served consecutively. Trial counsel also testified that
he and the trial court explained to the Petitioner why he could not receive jail credits
toward both sentences if they were being served consecutively. Trial counsel recalled
that this was “a pretty common misunderstanding” and that the Petitioner “seemed to
understand” their explanation.

       Furthermore, the transcript of the guilty plea submission hearing belies the
Petitioner’s claims. The trial court spent a significant amount of time explaining to the
Petitioner why he could not receive jail credits on both sentences, and the Petitioner
stated that he understood the trial court’s explanation. The trial court also explained the
consecutive nature of the Petitioner’s sentences. The Petitioner stated, under oath, that he
understood and that it was his desire to enter into the plea agreement. As such, the
evidence supports the post-conviction court’s conclusion that the Petitioner knowingly
and voluntarily entered into the plea agreement. 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
                                            -5-
