        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 16, 2013

               DAKOTA CISNEROS v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
            No. 2008-B-1579, 2008-B-1580   Cheryl A. Blackburn, Judge




                No. M2012-00944-CCA-R3-PC - Filed March 26, 2013


The Petitioner, Dakota Cisneros, appeals the Davidson County Criminal Court’s denial of
his petition for post-conviction relief from his 2010 convictions upon guilty pleas for
aggravated sexual battery and three counts of aggravated robbery and his effective twenty-
four-year sentence. On appeal, the Petitioner contends that the trial court erred by finding
that his guilty pleas were knowing, voluntary, and intelligent. We affirm the judgment of the
trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., J., and P AUL G. S UMMERS, S R. J., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Dakota Cisneros.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Thomas Gunn,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       According to the State’s recitation of the facts in case number 2008-B-1580,

       on January 19th, 2008, this defendant confronted Lori Parker in the parking lot
       of an apartment complex on Creekwood Drive, Nashville, Davidson County,
       Tennessee and took at gunpoint a number of personal items from her. In the
       midst of doing so he also had unlawful sexual contact with her, touching her
       breasts and reaching into her pants. . . . There was a fingerprint identification
       to him, and she also selected him from a photo lineup.

       According to the State’s recitation of the facts in case number 2008-B-1579,

       as to count 1 . . . Mr. Marlon Burnett would testify that he identified defendant
       from a photo lineup as a person who robbed him at gunpoint at 3301
       Creekwood Drive, which is in . . . Davidson County, Tennessee on November
       17th, 2007.

       In count 2 . . . on December 17th, 2007, a Mr. Beason . . . identified the
       defendant . . . as the person who robbed him at gunpoint at 3248 Vail View
       Drive. . . . Mr. Beason would have identified defendant. He saw his picture
       on television as the person being . . . arrested. So he didn’t identify him from
       a photo lineup, which the other person in the other cases did. . . .

       The Petitioner entered best interest guilty pleas in both cases. Case number 2008-B-
1621 was dismissed pursuant to the plea agreement. The Defendant received concurrent
eight-year sentences for the two counts of aggravated robbery in case number 2008-B-1579.
The Defendant received twelve-year sentences for aggravated robbery and aggravated sexual
battery in case number 2008-B-1580 to be served concurrently to the eight-year sentences but
consecutively to each other.

       At the post-conviction hearing, the Petitioner testified that counsel met with him to
discuss his cases approximately five times, which occurred on the dates he was scheduled to
appear in court. He said that counsel first told him that he faced eight to twelve years but that
he received twenty years at the sentencing hearing. He did not recall counsel’s reviewing the
possible sentencing outcomes before the sentencing hearing. He said he thought he would
receive an eight-year sentence, though he was not certain.

        The Petitioner testified that counsel was not prepared for a trial and that counsel
attempted to convince him to plead guilty by telling him that he would receive a lengthy
sentence if convicted by a jury. He denied talking to counsel about possible defenses he
might use at a trial. He said he pleaded guilty because counsel told him he would receive a
longer sentence if he went to trial. He denied counsel’s telling him that he was required to
serve 100% of the aggravated sexual battery sentence. He did not recall the trial court’s
telling him before he pleaded guilty that he was required to serve 100% of the aggravated
sexual battery sentence. He denied counsel’s talking to him about becoming a registered sex
offender after his release from confinement and said he did not recall the court’s discussing
the sex offender registry with him before he pleaded guilty.

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        The Petitioner testified that he thought counsel pressured him into pleading guilty and
that he and counsel had disagreements. He said that counsel told him the State’s plea offer,
that they would have a trial if he did not accept the offer, and that he faced thirty to forty
years if convicted at a trial. He said that before the sentencing hearing, counsel told him the
trial court could order consecutive sentences.

       The Petitioner testified that he could read “a little” and that he left school in the
eleventh grade. He said that he was diagnosed with schizophrenia before his arrest and that
counsel had him evaluated by a psychiatrist. He did not recall the trial court’s asking if the
Petitioner suffered from mental illness or disease. He stated that he thought counsel could
have visited him more and ensured the Petitioner understood the plea agreement before he
signed it. He said, “If I had a clue, I wouldn’t have signed it.”

       On cross-examination, the Petitioner testified that he remembered a portion of the trial
court’s questions and his responses during the guilty plea hearing. He did not recall the
court’s discussing lifetime supervision, his telling the court that he and counsel discussed all
possible sentencing outcomes, and his telling the court that counsel discussed the State’s case
against him. He recalled that counsel did not discuss with him the State’s evidence against
him. He denied telling the court that he was satisfied with counsel’s representation and that
counsel had done everything he could on the Petitioner’s case. He agreed, though, that he
told the truth to the best of his ability at the guilty plea hearing.

        Upon examination by the trial court, the Petitioner testified that at the time of the post-
conviction hearing he was taking Thorazine and Zyprexa and that he was taking the same
medication when he entered his guilty pleas. He did not recall discussing his medication with
the court at the guilty plea hearing. He said that he did not receive his medication daily from
the Tennessee Department of Correction, that he was moved to the local jail pending the
post-conviction hearing, that he had received his medication daily while at the local jail, and
that his medication helped his memory. He agreed his memory problems might have resulted
from his not taking his medication daily. He agreed that it was possible counsel did the
things the Petitioner claimed counsel did not do and that the Petitioner forgot because of his
medication.

       Counsel testified that he had practiced law for ten years and that seventy-five to eighty
percent of his practice was criminal defense. He said that he noticed the Petitioner had
mental health issues and that after speaking with the Petitioner’s family, he requested a
mental health evaluation. He said the Petitioner began taking medication after the evaluation,
which improved the Petitioner’s abilities to communicate and to understand his surroundings.
He said that although the Petitioner’s three cases were complex, he “went to great lengths”
to ensure the Petitioner understood what was happening.

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        Counsel testified that he met with the Petitioner “quite a bit” and recalled that he met
with the Petitioner daily the week before he entered his guilty pleas. He said, though, that
there was a period of time when he did not speak to the Petitioner often “because of the way
these cases play out.” He said he spent time interviewing the victims and other witnesses in
the three cases. He concluded that an acquittal would have been difficult in the robbery
charges. He said, though, that he thought the contact with the victim that led to the
aggravated sexual battery charge was an effort to search for money, not for sexual
gratification.

        Counsel testified that before the guilty plea hearing, he and the Petitioner discussed
the Petitioner’s receiving lifetime community supervision, the substance of the charges, the
possible sentences, and his serving 100% of the aggravated sexual battery sentence. He said
he did everything the Petitioner requested with regard to preparing for a trial. He said the
plea negotiations involved “a lot of back and forth” with the State. He said that before the
trial date, the Petitioner understood that two people could identify him, that his palm print
was found on a cigarette carton, and that his fingerprints were found inside one victim’s car.
He said the fingerprints inside the car corroborated the victim’s statement. He said the
Petitioner no longer wanted a trial once he understood the evidence against him. He said he
had lengthy conversations with the Petitioner about the plea offer and the possible outcome
at a trial to ensure the Petitioner understood his choices. He said he thought that he did
everything he could to ensure the Petitioner understood his choices and that the Petitioner
understood what was happening.

       On cross-examination, counsel testified that he and the Petitioner discussed the
charges against the Petitioner at the time he was appointed to the Petitioner’s cases and that
he believed the Petitioner understood the charges. He said that his discussions with the
Petitioner were contentious at times because counsel did not always provide the Petitioner
with favorable information. He said the Petitioner spoke periodically during their
discussions. He said that with regard to plea negotiations, the Petitioner never said he would
accept whatever counsel wanted and that the Petitioner told counsel to negotiate a better plea
offer.

       Counsel testified that he and an investigator interviewed the victim and other
witnesses. He said he believed that the Petitioner understood the substance of the plea offer
and the potential sentences he might receive at the sentencing hearing. He said that he did
not appeal the sentence and that although he did not recall discussing an appeal with the
Petitioner, he probably mentioned it. He said the Petitioner did not sign a written waiver of
an appeal.




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        The trial court found that the guilty plea hearing transcript contradicted the
Petitioner’s contentions that counsel failed to defend his case adequately, failed to
communicate about developments in his case, failed to investigate adequately, and applied
undue pressure on him to accept the plea offer. The court credited counsel’s testimony that
he prepared for a trial and planned to establish that the Petitioner’s touching the victim was
an effort to locate money rather than an effort to seek sexual gratification. The court found
that counsel met with the Petitioner on a regular basis and increased the frequency with
which they met during the negotiation of the plea agreement and in the days leading to the
trial date. The court found that counsel investigated the scene and interviewed the victims
and witnesses.

       The trial court found that the Petitioner entered knowing, voluntary, and intelligent
guilty pleas. The court found that counsel “went to great lengths” to ensure that the
Petitioner knew the consequences of his guilty pleas, including discussing community
supervision for life, registering as a sex offender, and serving 100% of the aggravated sexual
battery sentence. The court found that before the Petitioner entered his guilty pleas, counsel
met with the Petitioner frequently to explain the consequences of his pleas. The court found
that the Petitioner was evaluated by a mental health professional and that he was found
competent. The court credited counsel’s testimony that the Petitioner was focused and
understood their conversations when he took his medications.

       The trial court found that the guilty plea hearing transcript contradicted the
Petitioner’s contention that his guilty pleas were unknowing, involuntary, and unintelligent.
The court found that the transcript showed a lengthy exchange between the Petitioner and the
court, which included a discussion about lifetime supervision, the sex offender registry, the
Petitioner’s educational history, the Petitioner’s mental health, and the court’s discretion to
order consecutive sentencing. The court concluded that the Petitioner entered knowing,
voluntary, and intelligent guilty pleas. This appeal followed.

       The Petitioner contends that the trial court erred by concluding that his guilty pleas
were knowing and voluntary. He argues that because counsel failed to meet with him
adequately, failed to review with him the possible sentencing outcomes, failed to prepare any
defenses and for a trial, and failed to inform him that he was required to serve 100% of the
aggravated sexual battery sentence, his guilty pleas were unknowing and involuntary. He
also argues that his mental condition prevented his entering knowing and voluntary guilty
pleas. The State responds that the trial court properly found that the Petitioner’s guilty pleas
were knowing and voluntary. We agree with the State.




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        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we
are bound by the trial 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, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

        The United States Supreme Court has held that a plea must represent a “voluntary and
intelligent choice among the alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970). The court reviewing the voluntariness of a guilty
plea must look to the totality of the circumstances. See State v. Turner, 919 S.W.2d 346, 353
(Tenn. Crim. App. 1995). A plea resulting from ignorance, misunderstanding, coercion,
inducement, or threats is not “voluntary.” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993). A petitioner’s solemn declaration in open court that his or her plea is knowing and
voluntary creates a formidable barrier in any subsequent collateral proceeding because these
declarations “carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74
(1977).

       We conclude that the Petitioner entered knowing, voluntary, and intelligent guilty
pleas. Counsel’s credited testimony was that he met with the Petitioner numerous times and
that he increased his meetings with the Petitioner during plea negotiations and the time
leading to the guilty plea hearing. The record reflects that counsel “went to great lengths”
to ensure that the Petitioner understood the plea offer. Counsel investigated the Petitioner’s
case by interviewing the victims and other witnesses in each of the Petitioner’s three cases.
With regard to the aggravated sexual battery conviction, counsel thought the Petitioner’s
touching the victim was an effort to locate money, not for sexual gratification. Counsel was
prepared to present this defense had the Petitioner rejected the offer. Counsel said that
before the guilty plea hearing, he and the Petitioner discussed the substances of the charges,
the possible sentencing outcomes, lifetime community supervision, and 100% service of the
aggravated sexual battery sentence.

        Counsel testified that two witnesses could identify the Petitioner, that his palm print
was found on a cigarette carton, that his fingerprints were found inside one victim’s car, and
that the fingerprints inside the car corroborated the victim’s statement. After learning the
State’s evidence, the Petitioner did not want a trial. Counsel had lengthy conversations with
the Petitioner about the plea offer and the possible outcome at a trial to ensure the Petitioner



                                              -6-
understood his choices. Counsel said that the Petitioner never said he would accept whatever
counsel wanted and that the Petitioner told counsel to negotiate a better plea offer.

         Likewise, the guilty plea hearing transcript contradicts the Petitioner’s contentions.
The guilty plea transcript shows that the trial court told the Petitioner that he was required
to serve 100% of the aggravated sexual battery sentence. Counsel told the court that he and
the Petitioner had discussed this, and the Petitioner told the court that he understood he was
required to serve the entire sentence. With regard to the possible sentencing outcomes, the
trial court asked the Petitioner if counsel reviewed each indictment and the possible
punishments he might receive at the sentencing hearing, and the Petitioner said, “Yes.” The
Petitioner told the court that counsel discussed the possibility of consecutive sentencing. The
Petitioner told the court that he and counsel reviewed the State’s discovery package, the
State’s evidence against him, any available defenses, and any witnesses he might have called
at a trial.

        With regard to the Petitioner’s mental health at the guilty plea hearing, the Petitioner
told the trial court that he was taking Vistaril twice daily and Zyprexa at night and that he
took his medication the night before and the morning of the hearing. When the court asked
if the Petitioner understood what he was doing, the Petitioner said, “I believe so.” He said
that the medication made him understand “a little bit” better and that he understood what he
was doing. The Petitioner stated that he was not being forced to plead guilty and agreed it
was his choice. He said he was satisfied with counsel’s work and thought counsel did
everything possible on his behalf. He said that he signed his name to the guilty plea petitions
after counsel reviewed and explained them. The Petitioner is not entitled to relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.




                                            ___________________________________
                                            JOSEPH M. TIPTON, PRESIDING JUDGE




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