         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  December 11, 2001 Session

                 ALAN DALE BAILEY v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Coffee County
                           No. 30,566    L. Craig Johnson, Judge



                    No. M2001-01018-CCA-R3-PC - Filed February 8, 2002


The petitioner, Alan Dale Bailey, appeals the Coffee County Circuit Court’s denial of post-
conviction relief. The petitioner sought relief from his 1999 Coffee County convictions of
aggravated burglary and sexual battery on the basis that his guilty pleas to those charges were
unknowing and involuntary and were prompted by ineffective assistance of counsel. The petitioner’s
primary complaints focus upon trial counsel’s failure to inform the petitioner about the impact of a
conviction of a sexual offense, including the risk that parole might not be granted. The trial court
denied relief after an evidentiary hearing, and we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOE G. RILEY and JOHN
EVERETT WILLIAMS, JJ., joined.

Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the Appellant, Alan Dale Bailey.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
and C. Michael Layne, District Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

               The district public defender was appointed in January, 1999 to represent the petitioner
on charges of aggravated burglary and sexual battery. On May 25, 1999, the petitioner submitted,
and the trial court approved, a plea agreement. Pursuant to the agreement, the court imposed
convictions of aggravated burglary, with a Range I, four-year incarcerative sentence, and of sexual
battery, with a Range I, two-year incarcerative sentence. The sentences were imposed to run
concurrently.

                  In his petition for post-conviction relief, the petitioner challenges his convictions
on the basis that his guilty pleas were unknowing and involuntary and were the product of ineffective
assistance of counsel. Specifically, he alleges that the public defender told him that, after serving
30 percent of his four-year sentence, he should be home in 14.4 months. He claims that the public
defender did not tell him that he would be labeled a sex offender, would undergo DNA identification
as a sex offender, and would be required to serve 100 percent of his four-year sentence before being
released.

                At the post-conviction evidentiary hearing, both the petitioner and his wife testified
that the public defender and his investigator told them that the petitioner, with good behavior, would
be released from custody in fourteen months. The petitioner testified that his counsel failed to advise
him that he would be listed on a sex-offender registry for the rest of his life, that he would have to
provide a DNA sample for sex-offender identification, that his picture would appear on the internet
identifying him as a sex offender, and that he would have to serve the entirety of the four-year
sentence in prison because of his sex-offender status. The petitioner testified that, at the time of the
hearing, he had already served eighteen months of his sentence and would be required to serve the
entire four years. He stated that he would not have pleaded guilty had he known about these aspects
of his plea.

                 The public defender’s investigator testified that he presented the plea offer to the
petitioner at counsel’s request and calculated for him the release eligibility date of 14.4 months,
being 30 percent of the four-year sentence. The investigator did not guarantee a release date; he
testified that he “would never tell anybody they would get out at [the release eligibility] time because
[he] simply [did] not know.”

                 The district public defender testified at the evidentiary hearing that he began
representing the petitioner prior to the preliminary hearing. Throughout the proceedings, the
petitioner wanted to go to trial. Counsel stated that the case had been fully investigated, he had
obtained complete discovery, and he was ready to try the case. Just before trial, however, at a
meeting in counsel’s office, the petitioner decided to accept the state’s offer of an effective four-year
sentence. Counsel told the petitioner that, with good behavior, he would be eligible for parole in
14.4 months, that counsel could not guarantee he would be released upon his release eligibility date,
and that the Department of Correction “runs by its rules rather than by law a lot of times.” Counsel
testified that, prior to the plea, he told the petitioner about the DNA test. Additionally, the petitioner
read the proposed conviction judgments, which stated the requirement of the DNA test. Before the
plea, counsel also gave the petitioner a copy of the statutes proscribing the charged offenses and
setting forth the sentencing guidelines.

                Counsel testified that he thought the plea offer was beneficial to the petitioner, who
otherwise could have been classified as a Range II offender. Counsel denied making any promises
to influence the petitioner into pleading or coercing the petitioner into making the plea. Counsel
admitted telling the petitioner that he “had the keys to the jail in his pocket.”

               The transcript of the plea-submission hearing was admitted in the post-conviction
evidentiary hearing and reveals that the trial court thoroughly administered the customary litany of
explanations of rights and admonitions about waiving the rights. The petitioner acknowledged under
oath that he was making the plea freely, voluntarily, and without fear. He acknowledged that he


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understood the nature of the charges, that counsel had explained the elements of the offenses, and
that he was pleading guilty because he was guilty.

                Before examining the petitioner’s claims that his plea was vitiated by the lack of
pertinent information and was prompted by ineffective assistance of counsel, we review a few
familiar principles of law. Post-conviction relief is available when “a conviction or sentence is void
or voidable because of the abridgment” of a constitutional right. Tenn. Code Ann. § 40-30-203
(1997). The burden rests upon a post-conviction petitioner to establish his claims by clear and
convincing evidence. Id. § 40-30-210(f).

                 When a post-conviction petitioner seeks relief on the basis of ineffective assistance
of counsel, he or she must establish that the service 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). Also, the petitioner must show that the deficiencies “actually had an adverse
effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984).
Should the petitioner fail to establish either factor, he or she is not entitled to relief. See id. at 697,
104 S. Ct. at 2069. “The Strickland standard has been applied to the right to counsel under Article
I, Section 9 of the Tennessee Constitution.” Michael E. Christian v. State, No. E2000-00922-CCA-
R3-PC, slip op. at 9 (Tenn. Crim. App., Knoxville, June 24, 2000), perm. app. denied (Tenn. 2001);
see State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989). A court scrutinizing a claim of
ineffective assistance of counsel must indulge a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065.

                When a post-conviction petitioner asserts that ineffective assistance of trial counsel
resulted in a guilty plea the “prejudice” prong of Strickland must focus “on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process.” Hill v. Lockhart,
474 U.S. 52, 58-59, 106 S. Ct. 366, 370 (1985). The petitioner must establish “a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Id.; see Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998). In the
context of ineffective assistance of counsel that resulted in a guilty plea, the petitioner is not required
to demonstrate that he likely would have fared better at trial than he did by pleading guilty, although
evidence of this type can be persuasive that he would have insisted on his right to a jury trial. See
Hill, 474 U.S. at 59-60, 106 S. Ct. at 370.

                The Due Process Clause of the United States Constitution requires that guilty pleas
be knowing and voluntary. State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2001); see Boykin v.
Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969). The constitutional mandate that guilty
pleas be knowing is essentially fulfilled by the court informing the accused of his or her
constitutional rights against self-incrimination, to confront witnesses, and to trial by jury. Boykin,
395 U.S. at 243, 89 S. Ct. at 1712.

               In the present case, we discern from our review of the record before us that the parties
and the court below were at a loss to comprehend any basis for the petitioner being required to serve

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his full sentence by virtue of being convicted of a sexual offense. Our review of Tennessee statutes,
however, reveals several bases for limiting or preventing parole to sexual offenders. Code section
40-35-321(c) provides that a person convicted of sexual battery, inter alia, must submit a specimen
for DNA analysis, and such a person may not be released until he or she provides the specimen.
Tenn. Code Ann. § 40-35-321(c) (Supp. 2001). Section 41-21-235(b), as it applied to the time of
the petitioner’s offenses committed on August 26, 1998, provides, “Successful participation and
completion of [a sexual abuse treatment program for incarcerated sex offenders] shall be a
consideration for parole from a correctional institution.” Id. § 41-21-235(b). Finally, Code section
40-35-503(c) provides,

                   No person convicted of a sex crime shall be released on parole unless
                  a psychiatrist or licensed psychologist designated as a health service
                  provider has examined and evaluated such inmate and certified that,
                  to a reasonable medical certainty, the inmate does not pose the
                  likelihood of committing sexual assaults upon release from
                  confinement.

 Id. § 40-35-503(c).1

                                             I. Knowing Guilty Plea.

                The Boykin requirement that guilty pleas be knowing and voluntary may stand
independently of the claim that an unknowing or involuntary guilty plea is the result of ineffective
assistance of counsel. As we have pointed out above, the constitution requires that, to satisfy due
process, the trial court must inform the guilty-pleading defendant of his rights to avoid self-
incrimination, to confront witnesses, and to be tried by a jury. However, “a guilty plea is not
rendered constitutionally infirm because a criminal defendant is not informed about ‘the details of
his parole eligibility, including the possibility of being ineligible for parole.’” Rickey Sams v. State,
No. 03C01-9511-CC-00368, slip op. at 4, (Tenn. Crim. App., Knoxville, Nov. 14, 1996) (quoting
King v. Dalton 17 F.3d 151, 154 (6th Cir. 1994), perm. app. denied (Tenn. 1997). Thus, in the
present case, the petitioner’s claim that he should have been informed of the various consequences
of being convicted of a sex offense is not a constitution-based claim. As we have also pointed out
above, post-conviction relief is only available to address the abridgment of a constitutional right.
Therefore, the petitioner’s claim that he had a right to be informed of the sex-offense conditions to
or consequences of his conviction and sentence is not cognizable in this proceeding. Id.


                                    II. Ineffective Assistance of Counsel.

                                             A. Performance Prong.


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                   We are at a loss to com preh end how this statutory provision would affect the service of the aggravated
burglary senten ce, the lengthier of the tw o concu rrent senten ces.

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                 We now review the adequacy of counsel’s performance in assisting the petitioner to
enter a knowing and voluntary plea. This court has held that “failure of counsel to discuss parole
eligibility or the parole condition of successfully completing a sexual offender treatment program
does not constitute ineffective assistance of counsel.” Ricky Rutledge v. State, No. 01C01-9706-CC-
00201, slip op. at 11 (Tenn. Crim. App., Nashville, July 2, 1998), perm. app. denied (Tenn. 1999)
(basing holding upon the principle that “‘silence by counsel’ on ‘any collateral consequences of a
plea’ does not ‘fall below the range of competence demanded of attorneys in criminal cases,’”
quoting Adkins v. State, 911 S.W.2d 334, 350 (Tenn. Crim. App. 1994)); see also Rickey Sams, slip
op. at 5 (counsel provided effective assistance by informing guilty-pleading defendant of his release
eligibility date, despite not informing him of the applicability and effect of the parole provision in
Code section 40-35-503(c)); Rogers Lamont McKinley v. State, No. 03C01-9308-CR-00255, slip op.
at 9-11 (Tenn. Crim. App., Knoxville, Aug. 17, 1994) (refusing to find that “the failure of the
Defendant’s attorneys to advise the Defendant of [the terms of Code section 40-35-503(c)]
constituted ineffective assistance of counsel”). Thus, a defendant’s counsel does not deficiently
perform by remaining silent on the matter of the “collateral consequences” implicated by that
defendant pleading guilty to sexual battery.

                  We must now point out, however, that Ricky Rutledge was “not a case, as in Hill v.
Lockhart . . . in which counsel [had] given erroneous advice.” See Ricky Rutledge, slip op. at 10 n.6.
 In the present case, however, counsel gave erroneous advice, as opposed to merely remaining silent,
when he told the petitioner that the petitioner held “the keys to the jail in his pocket.” In effect,
counsel told the petitioner that he had it within his power to win release once he had attained the
release eligibility date. Because Code section 40-35-503(c) conditions the release of a person
convicted of committing a “sex crime” upon a professional’s certification that the offender is not
likely to commit further sexual assaults, the inmate does not hold “the keys to the jail.” Such an
inmate, even one who has provided the DNA sampling and who has completed the treatment
program, lacks the power to win his release. To the extent that counsel ventured this bit of
inaccurate advice, he performed deficiently in representing the petitioner.

                                        B. Prejudice Prong.

                In the wake of this limited instance of deficient performance, however, we conclude
that the petitioner has failed to establish the “prejudice prong” of Strickland and Hill. We realize
that the petitioner testified at the evidentiary hearing that he would have eschewed the plea had he
known that he would be branded a sex offender and that he would serve more than 14.4 months in
prison. This testimony, however, does not ipso facto establish that he would not have pleaded guilty
but for counsel’s deficient performance. The attempt to establish the “but for” claim through his
own testimony exclusively is fraught with the risk that the finder of fact might not accredit him as
a witness. See Sneed v. State, 942 S.W.2d 567, 569 (Tenn. Crim. App. 1996) (trial judge who
accepted guilty plea and later presided over post-conviction evidentiary hearing “was in a proper
position to consider the petitioner’s credibility at both appearances” and to give “greater credence
to his responses” during the plea hearing than to his claims during the evidentiary hearing). Indeed,
in the present case, the post-conviction court specifically found that the petitioner was not a credible


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witness. We defer to the lower court’s resolution of credibility issues. Massey v. State, 929 S.W.2d
399, 403 (Tenn. Crim. App. 1996); Taylor v. State, 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993).

                Moreover, as Hill suggests, the probability that the petitioner might have received a
more severe penalty following a trial may, in a proper case, serve as an indicator that the petitioner
nevertheless would have pleaded guilty had he known all the relevant facts. Given that he would
be characterized as a sex offender, forced to undergo DNA testing, subjected to monitoring after
leaving custody, and put at risk for being denied any parole - - all because of his status in being
convicted of sexual battery - - he nevertheless would have faced the same prospects in the wake of
a jury conviction. Indeed, the prospects could well have been exacerbated by the imposition of a
longer term of incarceration. See Wade v. State, 914 S.W. 2d 97, 104 (Tenn. Crim. App. 1995);
Carl A. Jones v. State, No. 02C01-9204-CC-00099, slip op. at 9 (Tenn. Crim. App., Jackson, Oct.
21, 1992) (despite counsel’s failure to acquaint petitioner with Code section 40-35-503(c), no
prejudice was shown because petitioner “could not have avoided these requirements” by going to
trial). Given this circumstance, we cannot conclude that the petitioner has established by clear and
convincing evidence that he would not have pleaded guilty but for counsel’s performance.

               Therefore, for these reasons, we hold that the petitioner has failed to establish the
prejudice prong promulgated in Strickland and Hill, and consequently he has failed to establish his
claim of ineffective assistance of counsel.

                                         III. Conclusion.

               We affirm the denial of post-conviction relief.




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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