                                                                                          12/05/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 2, 2018

                WILLIAM FARMER v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 15-06277       J. Robert Carter, Jr., Judge
                     ___________________________________

                           No. W2017-00729-CCA-R3-PC
                       ___________________________________


The Petitioner, William Farmer, appeals the post-conviction court’s denial of his petition
for post-conviction relief in which he challenged his guilty plea to carjacking and his ten-
year sentence. On appeal, the Petitioner contends that he received ineffective assistance
of counsel and that his guilty plea was not knowingly entered. After a review of the
record and applicable law, we affirm the post-conviction court’s judgment.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Stephen K. Barnes (at hearing and on appeal) and Michael R. Working (on appeal),
Memphis, Tennessee, for the appellant, William Farmer.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy Weirich, District Attorney General; and Leslie Fouche, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                 PROCEDURAL AND FACTUAL BACKGROUND

       The Petitioner’s plea agreement is the result of a carjacking which he committed
with two co-defendants. According to the prosecutor’s statement of facts at the plea
hearing, the Petitioner and his co-defendants approached the victim’s car while it was
stopped at an intersection. One of the co-defendants, armed with a black handgun,
overpowered the victim, and the victim exited the vehicle. The perpetrators’ vehicle was
stopped almost immediately after the carjacking, and the police apprehended the
Petitioner and one of the co-defendants. The victim later identified the Petitioner as one
of the individuals involved in the carjacking

       The indictment charged the Petitioner and two co-defendants with carjacking,
employing a firearm during the commission of a dangerous felony, and evading arrest.
The Petitioner pleaded guilty to one count of carjacking. As part of the plea agreement,
the Petitioner’s other charges were dismissed. The Petitioner received a sentence of ten
years to be served as a Range I standard offender at thirty percent.

        During the plea hearing, the Petitioner affirmed that he understood he was waiving
his right to a jury trial, his right to confront witnesses, his right to call witnesses on his
own behalf, and his right to appeal. The trial court asked the Petitioner if trial counsel
“discussed any possible defenses and all the usual things before you made this decision.”
The Petitioner responded, “Yes, sir.” The Petitioner signed the plea agreement, which
stated that he understood the nature of the charges against him and what the State would
have had to prove to establish his guilt. The trial court accepted the plea and entered the
agreed-upon sentence.

      The Petitioner timely filed a petition for post-conviction relief arguing that he was
denied effective assistance of counsel and that his plea was not knowing and voluntary.
He argued that his trial counsel was ineffective because he failed to inform him about the
Bruton rule as it relates to the admissibility of his co-defendant’s statement. See
generally United States v. Bruton, 391 U.S. 123 (1968).

        During an evidentiary hearing, the Petitioner testified that trial counsel met with
him approximately six times, with two of those meetings occurring outside of the
courtroom. The Petitioner stated that trial counsel mailed him a discovery packet, but
that trial counsel never discussed the discovery with him. The Petitioner said the
majority of the time he spent with trial counsel was dedicated to discussing a motion to
suppress the co-defendant’s statement that the Petitioner wanted trial counsel to file. The
Petitioner testified at the post-conviction that trial counsel said the “co-defendant would
testify against me.” When post-conviction counsel asked the Petitioner, “Did [trial
counsel] tell you that was definitely going to happen or maybe going to happen,” the
Petitioner responded, “he just described it as I ain’t have no luck.”

      On cross-examination, the Petitioner testified that “Bruton wasn’t mentioned to
me.” The Petitioner maintained that his understanding of the plea agreement was limited
to a comprehension of the terms of his sentence. He said he only “acted like he
understood” the plea agreement at the time he signed it. He later admitted that he
understood that as part of the plea agreement, the State was going to drop the firearms
                                            -2-
charge that required the six-year minimum sentence to be served at one hundred percent.
Further, the Petitioner testified that he made the decision to enter the plea after trial
counsel explained the terms of the plea agreement.

        Trial counsel agreed with the Petitioner that he met with him two times outside of
court and four times in court. Trial counsel testified that it was his practice to mail
discovery packets to his clients to allow them to review the documents prior to meeting
with them. When trial counsel met with the Petitioner, they “discussed all of his
concerns and issues with everything.” Trial counsel acknowledged that he never
mentioned Bruton by name to the Petitioner, but he discussed the possibility of the co-
defendant testifying if the Petitioner proceeded to trial. Trial counsel testified that “we
did discuss the co-defendant being able to testify against him . . . and I didn’t say for
certain he would testify against him.” Trial counsel explained that he used the co-
defendant’s statement as a negotiation tool because the co-defendant’s statement revealed
that the Petitioner did not have the gun during the carjacking. The firearm charge carried
a mandatory six-year sentence required to be served in its entirety and consecutively to
any other sentence. After meeting with three different prosecutors, trial counsel was able
to negotiate a plea deal for the Petitioner where the firearm and evading arrest charges
were dismissed, and the Petitioner pleaded guilty only to the carjacking charge.

       Trial counsel also testified that he thoroughly discussed all of the other evidence
implicating the Petitioner. This evidence included the victim’s identification of the
Petitioner and the fact that police officers apprehended the Petitioner in the stolen vehicle
shortly after the offense. Because the Petitioner was focused on suppressing the co-
defendant’s statement, trial counsel urged him to consider the overwhelming nature of the
evidence against him absent the statement. After these discussions, the Petitioner decided
to enter the plea agreement.

       The post-conviction court denied the Petitioner relief, finding that trial counsel
was not ineffective and that the Petitioner entered the plea knowingly. The post-
conviction court found that trial counsel explained the evidence that the Petitioner could
potentially face, including the co-defendant’s statement, if he proceeded to trial.
Specifically, the post-conviction court found that “counsel may not have quoted the case
name, but discussed the matter with Petitioner in a way that explained both possibilities
for the trial.” Further, the post-conviction court found that trial counsel explained the
other evidence against the Petitioner. The post-conviction court found that the
Petitioner’s guilty plea was “clearly knowingly and intelligently entered.” The Petitioner
timely appealed.




                                            -3-
                                       ANALYSIS

        The Petitioner argues that he is entitled to post-conviction relief for two reasons.
First, he claims that he received ineffective assistance of counsel. Second, he claims that
because he was not informed regarding the admissibility of the co-defendant’s statement,
he did not enter his plea knowingly, voluntarily, and intelligently. The State disagrees
and argues in response that the Petitioner did receive effective assistance of counsel and
entered his plea knowingly, voluntarily, and intelligently.

       A petitioner is entitled to post-conviction relief from any conviction or sentence
that is “void or voidable because of the abridgment of any right guaranteed by the
Constitution of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103.
The petitioner has the burden of proving the allegations of fact in the petition by clear and
convincing evidence. T.C.A. § 40-30-110(f); Grindstaff v. State, 297 S.W.3d 208, 216
(Tenn. 2009). “‘Evidence is clear and convincing when there is no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.’” Grindstaff,
297 S.W.3d at 216 (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998)).

       Both a claim of ineffective assistance of counsel and a claim that a guilty plea was
not knowing and voluntary are mixed questions of law and fact. Kendrick v. State, 454
S.W.3d 450, 457 (Tenn. 2015); Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010). An
appellate court reviews de novo with no presumption of correctness the post-conviction
court’s conclusions of law, its determinations of mixed questions of law and fact, and its
application of law to factual findings. Kendrick, 454 S.W.3d at 457. “The trial judge’s
findings of fact are afforded the weight of a jury verdict and are conclusive on appeal
unless the evidence preponderates against those findings.” Jaco v. State, 120 S.W.3d
828, 830 (Tenn. 2003).

                            A. Ineffective Assistance of Counsel

       To establish an ineffective assistance of a counsel claim, the Petitioner “must
show that counsel’s performance was deficient and that the deficiency prejudiced the
defense.” Wiley v. State, 183 S.W.3d 317, 329 (Tenn. 2006) (citing Strickland v.
Washington, 466 U.S. 668, 692 (1984); Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996)). This court “need not address both elements if the petitioner fails to demonstrate
either one of them.” Kendrick, 454 S.W.3d at 457. To establish deficiency, the
Petitioner is required to show that trial counsel’s actions “fell below an objective standard
of reasonableness under prevailing professional norms.” Wiley, 183 S.W.3d at 329. Trial
counsel’s performance is not deficient when the advice given is “within the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930,
                                            -4-
936 (Tenn. 1975). In order to establish prejudice as a result of trial counsel’s deficient
performance, the Petitioner “‘must establish a reasonable probability that but for
counsel’s errors the result of the proceeding would have been different.’” Finch v. State,
226 S.W.3d 307, 316 (Tenn. 2007) (quoting Vaughn v. State, 202 S.W.3d 106, 116
(Tenn. 2006)). When the case involves a guilty plea, “a petitioner must establish that but
for counsel’s deficiency; he would have gone to trial instead of entering the plea of
guilty.” Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002) (citing Hill v. Lockhart, 474
U.S. 52, 59 (1985)).

       The Petitioner asserts that trial counsel was ineffective because he did not discuss
the rule articulated in United States v. Bruton, 391 U.S. 123 (1968). In Bruton, the
United States Supreme Court held that admission of a statement of a non-testifying co-
defendant which expressly incriminates the complaining defendant violates the
complaining defendant's constitutional right of confrontation. 391 U.S. at 126; see U.S.
Const. amend. VI; Tenn. Const. art. I, § 9. “[T]he rule in Bruton does not apply to
confessions which do not implicate the non-confessing defendant, nor does it apply to
confessions from which all references to the moving defendant have been effectively
deleted, provided that, as deleted, the confession will not prejudice the moving
defendant.” Dorsey v. State, 568 S.W.2d 639, 642 (Tenn. 1978) (citations omitted). The
Petitioner maintains on appeal that trial counsel’s failure to discuss Bruton caused him to
believe that his co-defendant would be required to testify against him.

       The post-conviction court credited trial counsel’s testimony that he reviewed the
potential evidence during his six meetings with the Petitioner and discussed the co-
defendant’s statement and any plea offers that the State proposed. Trial counsel also
discussed with the Petitioner the possibility that his co-defendant could testify against
him. Trial counsel said that he spent a large amount of time with the Petitioner
discussing that, even if the co-defendant’s statement was suppressed, there was a
significant amount of evidence against the Petitioner. This evidence included the victim
identifying the Petitioner and the police arresting the Petitioner after removing him from
the stolen, wrecked car. The post-conviction court credited trial counsel’s testimony that
he advised Petitioner of his exposure, discussed the potential evidence against Petitioner,
and negotiated a settlement of the case that Petitioner decided to accept.

       This court “will not re-weigh or re-evaluate the evidence; moreover, factual
questions involving the credibility of witnesses or the weight of their testimony are
matters for the trial court to resolve.” Vaughn, 202 S.W.3d at 115 (quoting Nichols, 90
S.W.3d at 586). We conclude that the Petitioner has failed to demonstrate that trial
counsel was deficient. We need not address the second Strickland element because the
Petitioner has failed to establish that trial counsel’s performance was deficient. Kendrick,
454 S.W.3d at 457.
                                           -5-
                         B. Knowing, Voluntary, and Intelligent Plea

        The Petitioner also argues that he did not knowingly enter his plea because his trial
counsel did not explain whether his co-defendant’s statement was admissible and in what
capacity the statement could be used. The Petitioner maintains that his ignorance of the
rule in Bruton rendered his plea involuntary. The State responds that the Petitioner’s plea
was entered into knowingly because trial counsel explained that it was only a possibility
that his co-defendant’s statement could be admitted, and the Petitioner chose to enter the
plea with that knowledge. We agree with the State.

       A guilty plea must be entered voluntarily, knowingly, and intelligently to satisfy
the due process requirement. Lane, 316 S.W.3d at 562. A plea is not voluntary if it
results from “‘ignorance, incomprehension, coercion, terror, inducements, [or] subtle or
blatant threats ....’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting
Boykin, 395 U.S. at 242-43). This court considers the totality of the circumstances,
including evidence at the post-conviction hearing, to determine whether a guilty plea was
entered voluntarily, knowingly, and intelligently. State v. Turner, 919 S.W.2d 346, 353
(Tenn. Crim. App. 1995).

       A plea is not entered into intelligently or knowingly unless the petitioner had “a
full understanding of what the plea connotes and of its consequences.” Blankenship, 858
S.W.2d at 904. In determining whether a guilty plea was voluntary and intelligent, we
look to several factors including:

       The relative intelligence of the defendant; the degree of his familiarity with
       criminal proceedings; whether he was represented by competent counsel
       and had the opportunity to confer with counsel about the options available
       to him; the extent of advice from counsel and the court concerning the
       charges against him; and the reasons for his decision to plead guilty,
       including a desire to avoid a greater penalty that might result from a jury
       trial.

Id.

       The post-conviction court found that the Petitioner fully understood the
consequences of his guilty plea. The Petitioner understood the sentence that would be
imposed when he entered the guilty plea, as well as the sentence he was facing if he
pursued a trial. Trial counsel explained to the Petitioner what the proof would be at trial
if the co-defendant’s statement were not admitted into evidence. By entering into the
plea, the Petitioner avoided the evading arrest and firearms charges and the mandatory
consecutive sentence the firearm charge required. During the plea hearing, the Petitioner
                                            -6-
confirmed that before he entered the plea he and trial counsel “discussed any possible
defenses” and that he was entering the plea freely and voluntarily. His “solemn
declaration[ ] in open court carr[ies] a strong presumption of verity.” Blackledge v.
Allison, 431 U.S. 63, 75 (1977). When the Petitioner entered the plea, he created a
“formidable barrier in any subsequent collateral proceedings.” Id. The post-conviction
court found that the Petitioner’s plea “was clearly knowingly and intelligently entered.”

        The Petitioner was informed about all of the evidence that potentially could be
introduced if he were to proceed to trial. He understood the sentence he would serve if he
accepted the plea agreement and the potential sentences he was facing if he proceeded to
trial. Therefore, the Petitioner is not entitled to relief on the ground that his plea was not
knowing and voluntary.


                                      CONCLUSION

       Based on the foregoing, the judgment of the post-conviction court is affirmed.




                                     JOHN EVERETT WILLIAMS, PRESIDING JUDGE




                                            -7-
