        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 5, 2012

               LADERIUS STEPHENS V. STATE OF TENNESSEE

                   Appeal from the Criminal Court of Shelby County
                      No. 09-03098    W. Otis Higgs, Jr., Judge


              No. W2011-02564-CCA-R3-PC - Filed November 13, 2012


Laderius Stephens (“the Petitioner”) filed a petition for post-conviction relief from his
convictions for especially aggravated robbery and attempted second degree murder. Pursuant
to his plea agreement, the Petitioner received an effective sentence of fifteen years to be
served in the Tennessee Department of Correction. In his petition for relief, he argued that
he was denied effective assistance of counsel in conjunction with his guilty plea and that his
plea was constitutionally infirm. After an evidentiary hearing, the post-conviction court
denied relief. The Petitioner now appeals, raising the same two issues. As his bases for
ineffective assistance of counsel, the Petitioner contends that his counsel at trial: (1) failed
to file the appropriate discovery motions; (2) failed to prepare adequately for trial; and (3)
failed to hire an investigator in a timely manner. Upon our thorough review of the record and
the applicable law, we affirm the judgment of the post-conviction court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
C AMILLE R. M CM ULLEN, JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Laderius Stephens.

Robert E. Cooper, Jr., Attorney General & Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Katie Ratton, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                           OPINION

                           Factual and Procedural Background

       A Sumner County grand jury indicted the Petitioner on three counts: especially
aggravated robbery; attempted second degree murder; and possessing a firearm during the
commission of a dangerous felony. On February 11, 2010, the Petitioner pleaded guilty to
especially aggravated robbery and attempted second degree murder. The indicted count of
possessing a firearm during the commission of a dangerous felony was nolle prossed.
Pursuant to the Petitioner’s plea agreement, the Petitioner was sentenced to concurrent
sentences of fifteen years at 100% on the especially aggravated robbery count and eight years
at 30% on the attempted second degree murder count, for a total effective sentence of fifteen
years at 100%.

                                          Guilty Plea

        At the guilty plea hearing, the State recited the factual basis for the Petitioner’s plea
as follows:

              [O]n November the 3rd, 2008, around 3:00 A.M., [the Petitioner], along
       with Porter Mills . . . , backed up to the entrance of the Getwell Express
       located at 4106 Getwell. [The Petitioner] and a co[-]defendant, Sylvester
       Warren, placed bandanas on their faces and approached the clerk, Mr. Ali,
       shoving him inside the business at gunpoint.

              Both [the Petitioner] and Warren demanded money from the cash
       register and the safe of the business.

              [The Petitioner] struck Ali in the head with his handgun, took an
       amount of money from the register while Warren held him at gunpoint. They
       both threatened to kill the clerk, and Warren did shoot Mr. Ali one time in the
       arm.

              The police arrived on the scene while [the Petitioner and co-defendant]
       were fleeing the store; and both Warren and [the Petitioner] fired at the officer
       in an attempt to flee the scene.

              [The Petitioner] was later . . . found to be in possession of . . . Mr. Ali’s
       wallet with his ID inside. Mr. Ali did give a typewritten statement – identified
       both [the Petitioner] and Mr. Warren in separate photographic lineups as the
       persons responsible for this incident.

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        The Petitioner testified at the guilty plea hearing that he graduated from high school.
He confirmed that he understood the convictions for which he was pleading guilty and their
respective sentences, as well as the fact that the sentences would run concurrently. He
acknowledged that he understood that he was waiving his right to a trial by jury where he
could present a defense and cross-examine the State’s witnesses; his right to have an attorney
represent him at trial; his right to testify or not testify at trial; and his right to an appeal and
representation on appeal by an attorney. Finally, the Petitioner confirmed that he was
satisfied with his attorney’s representation of him and that no one was forcing him to plead
guilty. The trial court accepted the Petitioner’s guilty plea and entered the judgments against
the Petitioner, sentencing the Petitioner to fifteen years’ incarceration.

                                         Post-Conviction

        The Petitioner subsequently filed for post-conviction relief on December 22, 2010,
alleging that he had received ineffective assistance of counsel in conjunction with his guilty
plea and that his plea was constitutionally infirm. Specifically, the Petitioner argued that his
appointed attorney (“Trial Counsel”) was ineffective in failing to investigate the case in an
adequate manner, in failing to move to suppress evidence of the victim’s photographic
identification of the Petitioner, and in failing to interview a potential witness.

       At the post-conviction hearing, the Petitioner testified that, prior to the Petitioner
entering his guilty plea, Trial Counsel visited him in custody on two or three occasions. The
Petitioner informed Trial Counsel that the victim likely would be unable to identify the
Petitioner. According to the Petitioner, however, Trial Counsel told the Petitioner that he
simply needed “to sign for some time.”

        The Petitioner learned from Trial Counsel that the victim had identified the Petitioner
in a photographic lineup. Although the Petitioner wanted Trial Counsel to suppress evidence
regarding the victim’s identification, he was unaware whether Trial Counsel did so prior to
the Petitioner entering his guilty plea. Additionally, Trial Counsel informed the Petitioner
that a co-defendant would testify against the Petitioner should the Petitioner decide to go to
trial. The Petitioner acknowledged that a gunshot residue test was performed on him and that
the test results were positive for the presence of gunpowder.

        The Petitioner stated that he did not want to plead guilty but that “they just kept
calling me in [to court].” On the occasion in which the Petitioner decided to plead guilty, the
Petitioner’s mother was present and crying, so “[t]hat’s the reason why [he decided to plead
guilty].” The Petitioner remembered saying at the time that he entered his plea that he was
satisfied with Trial Counsel’s representation, but he insisted that he was so upset that he was
“[j]ust saying yes, sir and no, ma’am to [the court].”


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       The Petitioner contended that he was somewhere else during the course of the
robbery. However, he did not provide the name of an alibi witness to Trial Counsel because
“[h]e didn’t ask.”

        The Petitioner acknowledged that he heard the State announce his effective sentence
of fifteen years at 100% prior to the Petitioner entering his plea. He remembered the State
providing an overview of the facts at the plea hearing. However, the Petitioner disagreed
with the allegation that he was found with the victim’s wallet. Nevertheless, the Petitioner
admitted that he did not make his disagreement known at the plea hearing.

        Trial Counsel testified at the post-conviction hearing that he requested the
appointment of an investigator approximately four months after Trial Counsel’s appointment
on the case. He stated that he did not create a trial work-up but that he devoted at least five
hundred hours to the case. Trial Counsel also did not move to suppress the photographic
identification but agreed that if the case had gone to trial he could have requested a
suppression hearing at some point throughout the course of the trial.

        Trial Counsel received the discovery on the case from the public defender who was
first assigned to the case, and he extensively reviewed that discovery with the Petitioner. He
also reviewed with the Petitioner the potential risks of taking the case to trial, noting the
case’s “bad facts,” such as the Petitioner being found in close proximity to the robbery
location with the victim’s identification card and wallet and the victim’s identification of the
Petitioner in a photographic lineup.

        Trial Counsel stated that, on the day that the Petitioner pleaded guilty, Trial Counsel
expected the Petitioner to reject the State’s offer. However, during the process, the Petitioner
changed his mind and decided to plead guilty. Trial Counsel stated that, had the case gone
to trial, he would not have proffered evidence of an alibi because the Petitioner never
informed him of a potential alibi witness. Rather, Trial Counsel’s sole strategy would have
been to hold the State to its proof. Trial Counsel noted that he would have asked for a
continuance had the Petitioner maintained his desire to go to trial.

        The post-conviction court took the matter under advisement and subsequently denied
the Petitioner relief. In its written ruling, the post-conviction court found neither deficient
performance nor prejudice resulting from Trial Counsel’s representation. Regarding the
Petitioner’s claims of ineffective assistance of counsel and an involuntary plea, the court
found that he “failed to meet his burden of proving his allegations of fact by clear and
convincing evidence.” The Petitioner now appeals, arguing that Trial Counsel was
ineffective in failing to file a motion for discovery, failing to prepare adequately for trial, and
failing to hire an investigator in a timely manner.


                                                -4-
                                             Analysis

                                       Standard of Review

        Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “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 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.

                                Ineffective Assistance of Counsel

        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel
at trial.1 Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that this right is to “reasonably effective” assistance, which is assistance that falls
“within the range of competence demanded of attorneys in criminal cases.” Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). The deprivation of effective assistance of counsel at trial presents a claim cognizable
under Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103;
Pylant, 263 S.W.3d at 868.

       In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to


       1
         The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).

                                                 -5-
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.

        To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688)). Our supreme court has explained
that:

       [T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It
       is a violation of this standard for defense counsel to deprive a criminal
       defendant of a substantial defense by his own ineffectiveness or incompetence.
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell
v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).

       As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). In the context of a guilty plea, our
analysis of this prong

       focuses on whether counsel’s constitutionally ineffective performance affected
       the outcome of the plea process. In other words, in order to satisfy the
       “prejudice” requirement, the [petitioner] must show that there is a reasonable


                                             -6-
       probability that, but for counsel’s errors, he would not have pleaded guilty and
       would have insisted on going to trial.

Hill v. Lockhart, 474 U.S. 52, 59 (1985). See also Calvert v. State, 342 S.W.3d 477, 486
(Tenn. 2011).

                                  Filing Discovery Motions

       The Petitioner asserts that Trial Counsel was ineffective in failing to file the proper
motions for discovery. As a result, the Petitioner avers that “it is unclear whether [Trial
C]ounsel had access to all relevant materials.” Further, although the Petitioner acknowledges
that Trial Counsel received the case file from the public defender first assigned to the case,
the Petitioner contends that “it is unclear whether the [public defender] had filed discovery
motions.” The State responds that the Petitioner has failed to show deficient performance
or prejudice by clear and convincing factual evidence.

         Turning first to the prejudice prong, the Petitioner has failed to show by clear and
convincing evidence that, even if deficient, Trial Counsel’s actions prejudiced the Petitioner
in any way. The Petitioner has failed to provide any evidence that Trial Counsel could have
but failed to discover. Consequently, it is impossible to prove that the Petitioner, as a result
of such undiscovered evidence, would not have pleaded guilty and instead would have gone
to trial. See Hill, 474 U.S. at 59. Thus, the Petitioner may enjoy no relief on this issue.

                                     Preparation for Trial

        The Petitioner contends that Trial Counsel failed to prepare adequately for trial. As
support, the Petitioner relies on Trial Counsel’s admission that he had not yet completed a
“trial work-up,” noting that the trial was on schedule for less than a week from the time that
the Petitioner entered into his plea agreement.

        Trial Counsel testified at the post-conviction hearing that he had not yet completed
a trial work-up at the time of the plea hearing. However, he stated that he had devoted at
least five hundred hours to the case. Additionally, Trial Counsel testified that he would have
requested a continuance on the day of the Petitioner’s guilty plea had the Petitioner decided
to go to trial. Moreover, Trial Counsel stated that, had the Petitioner’s case gone to trial,
Trial Counsel’s sole strategy would have been to hold the State to its proof. He would not
have proffered proof of an alibi because the Petitioner never informed Trial Counsel of a
potential alibi witness.

      The Petitioner has failed to establish by clear and convincing evidence that Trial
Counsel was deficient in his representation or that such representation prejudiced the

                                              -7-
Petitioner. Although Trial Counsel had not yet completed a trial work-up, Trial Counsel
knew what his strategy would be for the trial, which was to hold the State to its proof. The
Petitioner has failed to prove that Trial Counsel’s representation was deficient in this regard.

        Moreover, even if Trial Counsel somehow was deficient in not preparing a trial work-
up, the Petitioner pleaded guilty days prior to the beginning of trial. Thus, the Petitioner has
failed to show how Trial Counsel’s behavior prejudiced him. Accordingly, he is entitled to
no relief on this issue.

                                Timely Hiring an Investigator

       Lastly, the Petitioner asserts that Trial Counsel failed to hire an investigator in a
timely manner. He points to Trial Counsel’s testimony that he waited several months after
his assignment to the case before hiring an investigator.

        We hold that the evidence does not preponderate against the post-conviction court’s
findings. The Petitioner has failed to establish that Trial Counsel was deficient in waiting
four months to hire an investigator. Moreover, the Petitioner has failed to establish any
prejudice he suffered as a result of Trial Counsel’s actions. Accordingly, the Petitioner is not
entitled to post-conviction relief on the grounds of ineffective assistance of counsel.

                                    Validity of Guilty Plea

        The Petitioner also asserts that his pleas were entered involuntarily. In his appellate
brief, he claims that “he did not want to accept the plea agreement.” Rather, only “after
having been brought to the courtroom day after day and watching his mother cry, he entered
the plea.” We agree with the post-conviction court that the Petitioner has failed to establish
by clear and convincing evidence that his plea was involuntary.

        To be valid, a guilty plea must be entered knowingly, voluntarily, and intelligently.
See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); State v. Mackey, 553 S.W.2d 337, 340
(Tenn. 1977) superseded on other grounds by Tenn. R. of Crim. P. 37(b) and Tenn. R. of
App. P. 3(b). A plea meets constitutional muster when the defendant understands both what
the plea connotes and its consequences, Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993) (citing Boykin, 395 U.S. at 244), and makes a voluntary and intelligent choice from
the alternative courses of action available to plead guilty. Jaco v. State, 120 S.W.3d 828, 831
(Tenn. 2003) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In Mackey, 553
S.W.2d at 341, our supreme court set forth the procedure that a trial court should follow
when accepting a guilty plea in order to ensure that a defendant’s plea is knowing, voluntary,
and intelligent. See also Tenn. R. Crim. P. 11(b). A trial court must “substantially” comply
with this procedure. State v. Newsome, 778 S.W.2d 34, 38 (Tenn. 1989).

                                              -8-
       We have reviewed the transcript of the guilty plea hearing and conclude that the plea
was constitutionally sound. At the guilty plea hearing, the Petitioner acknowledged that he
understood: the nature of the charges for which he was pleading guilty and potential
sentencing ranges; his right to a jury trial, wherein he could cross-examine the State’s
witnesses and he could but would not be forced to testify; and his right to an appeal and to
be represented by counsel on appeal. Thus, the Petitioner has failed to establish that he did
not knowingly, intelligently, and voluntarily enter into his plea agreement. Accordingly, the
Petitioner is not entitled to post-conviction relief on this basis.

                                      CONCLUSION

       For the foregoing reasons, the Petitioner has failed to establish that he is entitled to
post-conviction relief. Therefore, we affirm the judgment of the post-conviction court
denying relief.


                                                    ______________________________
                                                    JEFFREY S. BIVINS, JUDGE




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