        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 11, 2013

                STEVIE R. DICKSON v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Montgomery County
                      No. 40700511        John H. Gasaway, Judge



                   No. M2013-01322-CCA-R3-PC - Filed April 21, 2014


Petitioner, Stevie Dickson, was indicted by the Montgomery County Grand Jury for first
degree murder, attempted first degree murder and aggravated assault. Petitioner entered a
best interest plea to second degree murder and attempted second degree murder. He was
sentenced to an effective sentence of twenty years. Petitioner subsequently filed a petition
for post-conviction relief arguing that he was afforded ineffective assistance of counsel.
After conducting an evidentiary hearing, the post-conviction court denied the petition. On
appeal, Petitioner argues that the post-conviction court erred. After a thorough review of the
record, we conclude that the record supports the post-conviction court’s denial of the
petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which A LAN E. G LENN and C AMILLE
M CM ULLEN, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Stevie R. Dickson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; John W. Carney, District Attorney General, and Arthur Bieber, Assistant District
Attorney General for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

       The following facts were recited by the State at Petitioner’s guilty plea hearing:


               On or about January 13th , 2007, around 2:30 in the morning, at a
       location of Chapel Street and Locust Street in Clarksville, Montgomery
       County, Tennessee, a vehicle – the State would present was driven by
       [Petitioner], pulled up to a one Christopher Palmer and a Cameron Williams,
       shots were fired, the State – through witness, Decavius Duvall (phonetic),
       would testify that [Petitioner] was the man doing the shooting from the
       vehicle. Mr. Palmer was struck and injured and went to the hospital. Mr.
       Cameron Williams was struck, shot and killed at that time and in the vehicle
       was [Petitioner], the driver; they would say that Corey Gardner was in the back
       seat along with Decavius Duvall was also in the back seat of that vehicle, with
       a Quintin Dukes sitting in the passenger seat of that vehicle. The State would
       also bring a Joshua Dunlap, who would say that [Petitioner] told him while
       they were in jail together, that he admitted the shooting of Mr. Cameron
       Williams.


       On April 19, 2010, Petitioner entered a best interest plea to one count of second
degree murder and one count of attempted second degree murder in the Montgomery County
Criminal Court. Petitioner was sentenced to an effective twenty-year sentence to be served
at 100 percent.

       On April 13, 2011, Petitioner filed a pro se petition for post-conviction relief. The
post-conviction court appointed counsel. On February 7, 2013, the post-conviction court
conducted an evidentiary hearing. At the hearing, Petitioner testified that he felt that he did
not have any other option than to enter his guilty plea. He stated that trial counsel did not
speak with him enough prior to the entry of his plea. He also stated that one of the witnesses
to whom the State referred in the plea colloquy, Joshua Dunlap, later contacted Petitioner and
recanted his version of events. Furthermore, a witness named “Cavious” claimed that he was
the person who had shot the victim. However, according to Petitioner, Cavious “was
currently on the run from the law.”




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       Trial counsel also testified at the hearing. He stated that he met with Petitioner
multiple times. He also hired a private investigator. Trial counsel remembered that he went
over the discovery responses with Petitioner and obtained a transcript of the preliminary
hearing. At the time trial counsel was representing Petitioner, Petitioner was wearing an
ankle bracelet because he was under juvenile court supervision. However, the day of the
incident in question, the bracelet had been deactivated.

       Trial counsel testified that he remembered the witness, Joshua Dunlap. He stated that
Mr. Dunlap would not speak with him at the time of Petitioner’s plea. Mr. Dunlap had his
own attorney. Trial counsel’s expectation was that Mr. Dunlap would testify that Petitioner
was the person who fired the gun. The private investigator who had been hired by trial
counsel spoke with another occupant of the car on the night in question. This witness would
have testified that he did not know who the shooter was. Trial counsel stated he met with
Petitioner, Petitioner’s family, and the private investigator in order to lay out a defense. One
possibility for a witness was discussed, however, it was discovered that the potential witness
was deceased. Trial counsel stated that he discussed the plea offer with Petitioner. He stated
that he specifically explained the “best interest” plea prior to entry of the plea.

       The post-conviction court denied the petition in a written order. The post-conviction
court made the following findings:


       (A) Ineffective Assistance of Counsel

               Regarding the petitioner’s ineffective assistance of counsel claim,
       [Appellant] argues that counsel met with him only briefly, did not provide the
       petitioner with a copy of discovery, and did not investigate the petitioner’s
       electronic monitoring system. The court does not find this testimony credible;
       rather, the Court accredits [trial counsel’s] testimony. [Trial counsel] testified
       that he had no problems communicating with the petitioner effectively.
       Counsel provided the petitioner with all discovery in this case and investigated
       the electronic monitoring issue only to find that the ankle monitoring bracelet
       had been deactivated by the day of the offense. [Trial counsel] also retained
       an investigator who interviewed witnesses and followed leads identified by the
       petitioner. Counsel testified that after his investigation, he reviewed the
       investigative findings with the petitioner before the petitioner decided to enter
       a best interest plea. Counsel’s performance in preparing for this case cannot
       be considered deficient. Accordingly, the Court concludes that counsel did not
       render ineffective assistance in this case. [FN5]



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      [FN5 The petitioner also presented no evidence regarding his claims that
      counsel failed to explain the mens rea element of the charged offenses and that
      counsel failed to seek bond for the petitioner. Thus, he has failed to establish
      these factual claims by clear and convincing evidence.]

      (B) Unknowing and Involuntary Guilty Plea

              The petitioner argues that counsel’s actions rendered his ([Petitioner’s])
      guilty plea unknowing and involuntary. However, as explained above, counsel
      conducted a more-than-adequate investigation in this case and related the
      findings of his investigation to the petitioner. Counsel testified that he and the
      petitioner met twice regarding the plea agreement; at the first meeting, the two
      men discussed the proposed agreement, and one week later [Petitioner] told
      [trial counsel] that he (the petitioner) would accept the deal. At the plea
      submission hearing, the petitioner admitted that he understood the terms of the
      plea agreement and acknowledged that the plea was in his best interest. The
      petitioner now argues that he only entered the plea because he felt compelled
      to do so, but such a conclusion is not reasonable given [trial counsel’s]
      testimony.

              [Petitioner] also argues that had he known that Mr. Dunlap’s proposed
      testimony would have been perjured, he would not have pled guilty. However,
      Mr. Dunlap did not testify at the post-conviction hearing, nor did the petitioner
      introduce Mr. Dunlap’s supposed letter regarding the “perjured” testimony into
      evidence, so the Court cannot accredit the petitioner’s testimony regarding Mr.
      Dunlap. Also, the petitioner claimed to have received the Dunlap letter after
      entering his plea, and [trial counsel] was unable to speak to Mr. Dunlap before
      trial given Mr. Dunlap’s own plea, so there is no evidence that the petitioner
      or counsel could have known about Mr. Dunlap’s supposedly perjured
      testimony before trial. In short, there is not evidence to support the petitioner’s
      assertion that his best interest plea was entered unknowingly or involuntarily.
      The petitioner is therefore not entitled to post-conviction relief.


                                        ANALYSIS

       On appeal, Petitioner argues that the post-conviction court erred in denying his
petition because he was afforded ineffective assistance of counsel. The State disagrees.




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                           Post-conviction Standard of Review

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not re-weigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                              Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing by clear and convincing evidence that
“(a) the services rendered by trial counsel were deficient and (b) that the deficient
performance was prejudicial.” See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.
1996); see also T.C.A. § 40-30-110(f). In order to demonstrate deficient performance, the
petitioner must show that the services 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). “Because a petitioner must establish both prongs of the test to prevail on a
claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960
S.W.2d at 580.

      As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that the issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . .; thus, [appellate] review of [these issues] is
de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

       Furthermore, on claims of ineffective assistance of counsel, Petitioner is not entitled
to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994). This Court may not second-guess a reasonably-based trial strategy, and we cannot
grant relief based on a sound, but unsuccessful, tactical decision made during the course of
the proceedings. See id. However, such deference to the tactical decisions of counsel applies


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only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Once a guilty plea has been entered, effectiveness of counsel is relevant only to the
extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective
assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently
made. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400
U.S. 25, 31 (1970)). As stated above, in order to successfully challenge the effectiveness of
counsel, Petitioner must demonstrate that counsel’s representation fell below the range of
competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. Under
Strickland v. Washington, Petitioner must establish: (1) deficient representation; and (2)
prejudice resulting from the deficiency. 466 U.S. 668, 694 (1984). However, in the context
of a guilty plea, to satisfy the second prong of Strickland, Petitioner must show that “there
is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.” Hill, 474 U.S. at 59; see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        Petitioner has failed to show that but for trial counsel’s alleged deficiencies, he would
have refused to plead guilty and insisted on going to trial. Petitioner testified that trial
counsel did not meet with him very many times before entering his guilty plea, that one of
the State’s star witnesses wrote a letter to him recanting his testimony, and he felt that
entering into a guilty plea was his only option. Trial counsel testified that he met with
Petitioner several times and that he hired a private investigator to investigate his case. Trial
counsel stated that he attempted to speak with the witness in question, but the witness had
his own attorney and refused to speak with him. The post-conviction court specifically found
trial counsel’s testimony to be credible. It is up to the trial court to determine credibility of
witnesses and the post-conviction court’s findings have the weight of a jury verdict. Momon,
18 S.W.3d at 156. Therefore, Petitioner has not proven that trial counsel’s representation
was deficient and that he would not have pled guilty if not for trial counsel’s representation.

        Furthermore, the transcript of the guilty plea hearing reflects that the trial court
discussed the ramifications of the guilty plea with Petitioner. He was thoroughly questioned
by the trial court to ascertain whether he understood the effects of the plea. The plea hearing
also indicates that Petitioner knew what he was doing, understood the plea, and agreed that
it was what he wanted to do to resolve the case. Petitioner has failed to show by clear and
convincing evidence that he received ineffective assistance of counsel or that his guilty plea
was involuntary. Moreover, Petitioner has failed to prove he did not understand the
consequences of his plea.




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                                      CONCLUSION

       For the foregoing reasons, we affirm the post-conviction court’s denial of the petition
for post-conviction relief.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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