        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 12, 2014

            BROOKE LEE WHITAKER v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Bedford County
                       No. 17464     Robert G. Crigler, Judge


                    No. M2013-00919-CCA-R3-PC Filed 06/04/2014


The petitioner, Brooke Lee Whitaker, pleaded guilty to rape and received a twelve-year
sentence. In her petition for post-conviction relief she alleges that she received ineffective
assistance of counsel, that her guilty plea was not knowingly and voluntarily entered, and that
trial counsel had a conflict of interest as the former sheriff of Bedford County that prejudiced
his representation of the petitioner. After a thorough review of the record, we affirm the
judgment of the post-conviction court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which JERRY L. S MITH
and N ORMA M CG EE O GLE, JJ., joined.

Andrew J. Hazley, Jr., Murfreesboro, Tennessee, for the appellant, Brooke Lee Whitaker.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Robert
Carter, District Attorney General; and Michael D. Randles, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

        The petitioner was originally indicted for rape, a Class B felony. After the petitioner
rejected an offer to plead guilty to rape in exchange for an eight-year sentence, the State
superseded the indictment to charge the petitioner with aggravated rape, a Class A felony.
She ultimately entered an open best interest plea to one count of rape, a Class B felony, with
the trial court to determine the length of her sentence at a sentencing hearing. The trial court
sentenced the defendant to serve twelve years as a Range I offender. The petitioner
appealed, and this court affirmed the sentence. State v. Brooke Lee Whitaker, No.
M2009–02449–CCA–R3–CD, 2011 WL 2176511, at *1 (Tenn. Crim. App. May 31, 2011)
perm. app. denied (Tenn. Sept. 21, 2011).

       At the guilty plea hearing, the petitioner stated that she read and understood her
petition to enter a plea of guilty1 and that she understood that entering a best interest plea had
the same effect as a guilty plea. As factual support for the guilty plea, the State offered
evidence that in August 2008, the petitioner was housed in the same cell as the victim and
four other women. On the evening of August 20, 2008, the petitioner and another inmate
approached the victim after the lights were shut off and the cell door was locked. The
women held the victim down and penetrated her vagina digitally. They also performed oral
sex on the victim. The petitioner shouted for other inmates to help hold the victim down, and
two additional inmates proceeded to assist in holding down the victim while the sexual
assault continued. The victim reported the assault to authorities the next day. A detective
from the Bedford County Sheriff’s Department conducted an investigation and obtained
statements from nearly every inmate in the cell.

         At the conclusion of the State’s proof, the petitioner stated that her plea to the
amended charge of rape was “best interest.” The trial court then clarified, “[P]lea of guilty;
is that correct? Not trying to put words in your mouth. I understand it is a best interest plea.
It is still a guilty plea. Is that what you want to do?” The petitioner responded that it was,
and she agreed that she made this decision freely and voluntarily and that she was neither
promised anything other than the agreement announced in open court nor was she threatened
in any way. The petitioner further confirmed that she did not have any complaints with trial
counsel’s representation and that there was nothing further he could have done to research
or investigate her case that he had not already done. After finding that the petitioner entered
her plea freely, voluntarily, and understandingly, the trial court accepted the best interest
plea.

       At the sentencing hearing, the State and the petitioner agreed that she was a Range I
offender because at the time of the offense she did not have any convictions that would
classify her as a Range II offender. The only statement made by trial counsel at the hearing
was that the medical proof and record did not show any physical injury. The trial court found
that enhancement factor number one, the petitioner’s prior criminal history, alone justified
an enhancement of her sentence because the “Prior Record” section of the pre-sentence
report began at the bottom of page five, filled pages six through twelve, and had two entries
at the top of page thirteen. The court also found that the enhancement factor thirteen,
committing an offense while incarcerated for a felony charge, and enhancement factor
number eight, failure to comply with conditions of a sentence involving release into the


        1
        Based on the petitioner’s complaint, we note that the trial court noted that “best interest” was written
above “plea of guilty.”

                                                      -2-
community prior to trial or sentencing, applied because the offense was committed while the
petitioner was incarcerated on a felony charge and the petitioner’s probation had been
revoked seven times. The trial court sentenced the petitioner to serve twelve years with one
hundred percent release eligibility, the maximum sentence for a Range I offender convicted
of a Class B felony.

        At the post-conviction hearing, the court heard testimony from both the petitioner and
trial counsel. The petitioner testified that while she pleaded guilty to rape, she felt that
throughout her case trial counsel “did everything he could to get evidence against me, but not
evidence to help me with my case.” The petitioner contended that trial counsel
communicated with her very infrequently, writing only two letters and discussing the case
only “five minutes” before she entered the courtroom. The petitioner stated that she did call
trial counsel and spoke with him on several occasions but that she did not receive any copies
of discovery until three days prior to her trial. She testified that when she attempted to
discuss her case, trial counsel would respond, “[o]h, everything is okay. Nothing has
changed. I did this and I have done that[.]” She claimed that he made these statements “to
blow me off, tell me -- it’s like pacify me. Give me whatever I need to be told to shut up .
. . .” The petitioner contended that trial counsel failed to arrange interviews with the
witnesses the petitioner suggested, such as other women in her cell block and the supervising
officer on the night of the offense.

       The petitioner was initially charged with rape and offered an eight-year plea
agreement by the State, with the condition that if she rejected the offer the State would
supersede the indictment to include aggravated rape. However, she testified that she was
unaware that her potential sentence would increase if she rejected the offer. After the
petitioner refused the agreement, the State superseded the indictment and charged the
petitioner with aggravated rape. On the eve of trial, the State offered to let the petitioner
enter a best interest plea to the amended charge of rape, with the trial court to impose
sentencing. The petitioner stated that trial counsel urged her to plead nolo contendere to the
charge of rape and that he informed her that nolo contendere meant best interest. She stated
that she later found out nolo contendere meant “no contest,” and was a plea where “I don’t
have anything to say whether I did or didn’t do it.”

          She testified that trial counsel told her that she needed to enter a best interest plea
because she would be a multiple offender and would “get 25 years at 100 percent.” She
believed that information was incorrect; she believed she would have only been sentenced
as a standard offender and would not have received a twenty-five year sentence. She stated
that trial counsel “kept telling me, ‘[n]o, do not go to trial because you can face 25 years at
100 percent.’” The petitioner contends that trial counsel misinformed her about the sentence
she was facing and that, because she was not a multiple offender, she would have faced a

                                               -3-
twelve-year, rather than a twenty-five year sentence on the charge of aggravated rape.

       She told trial counsel that she “didn’t feel comfortable taking a plea to a rape charge,
especially if I didn’t commit it.” The petitioner testified that trial counsel failed to conduct
an investigation after she informed him that the medical reports “clearly state that the girl
wasn’t raped.” She contended that DNA testing should have been conducted on a toothbrush
holder to determine if it was used to penetrate the victim, and she believed trial counsel did
not do so because “anything to the investigation was of no concern to him.”

        She stated that three days before trial, she asked trial counsel if she could plead to the
original eight-year sentence that the State offered. Trial counsel responded “[w]ell, no, they
are not going to do that. They are not going to do that.” The petitioner testified that trial
counsel never asked the judge if he would be willing to consider the eight-year sentence and
that she pleaded guilty because her “back was against the wall.” She stated that she felt like
trial counsel was “letting [the State] railroad me. It’s, if you don’t want to take the 8, then
we are going to charge you with this, instead of, ‘We’ll go ahead to trial on the rape charge.’”
She further testified that while trial counsel “kept telling her” not to go to trial because she
could face twenty-five years at one hundred percent, “I wasn’t a multiple offender, so I
wouldn’t have been facing 25 years. . . . Therefore, I was misinformed. Had I been informed
correctly, 12 years was all I was facing, I would have jeopardized 12 years because that is
what I got anyway, was the max.”

        The petitioner also testified that trial counsel was previously the sheriff of Bedford
County before becoming an attorney. She stated that she had “been getting in trouble since
[she] was 11 years old” and that it was a conflict of interest to appoint an individual to
represent her “who was the sheriff the whole time I have been getting in trouble.” She
testified that trial counsel was incapable of representing her because he already had his “mind
made up” that the petitioner was “trouble,” based on his opinion of her character and
personality. While trial counsel did not specifically say that the petitioner was a troubled
person, the petitioner indicated that he implied this sentiment because he continued to bring
up her criminal background. She testified that if trial counsel had fully informed her of the
sentence she faced that she would not have taken the plea agreement but instead would have
proceeded to trial. She stated that she did not want to plead guilty to something she did not
do and that the medical reports clearly exonerated her but that trial counsel repeatedly said
“[y]eah, but the medical reports aren’t really all that important.”

        On cross-examination, the petitioner admitted that trial counsel had visited her in jail
one time. She agreed that there were only six people in her cell the night of the offense,
including the victim, and four of them were initially charged with rape. She also confirmed
that trial counsel informed her that the one cell mate who was not charged, Ms. Kimberly

                                               -4-
O’Neal, was going to testify against her and that “what she had to say was not good and was
probably going to get [the petitioner] convicted.” She agreed that trial counsel also informed
her that two of her co-defendants were going to testify against her and that they also would
offer testimony harmful to the petitioner. She further confirmed that if the victim had taken
the stand at trial, trial counsel would have been permitted to question her about her
conviction for filing a false report.

        The petitioner testified that Becky Stringer, the officer who was on duty the night of
the offense, asked her why she agreed to the plea and that Ms. Stringer stated that she would
have been the petitioner’s best witness. The petitioner claimed that Ms. Stringer told her she
would have been a good witness because “I did my rounds every 30 minutes and everything
was normal. [The victim] was asleep in the bed.” She stated that while she did not inform
trial counsel of the potential exculpatory testimony, trial counsel would have been aware of
the testimony had he spoken to the officer as the petitioner requested. The petitioner did not
call this officer to testify at the post-conviction hearing.

         Trial counsel testified that he was the sheriff of Bedford County for twelve years
before he became a licensed attorney. He was appointed to represent the petitioner after her
first attorney was forced to withdraw from representation due to a conflict of interest. There
were four defendants in this case, and all four were initially charged with rape. Trial counsel
frequently met with the co-defendants’ attorneys to discuss the case. He stated that the co-
defendants had a united front until two or three days before the trial was scheduled. Trial
counsel confirmed that he received a letter with the State’s plea offer for eight years as to the
initial rape charge and that the offer included the condition that if the offer were rejected, the
State would seek a superseding indictment on aggravated rape.

       Trial counsel spoke several times with the detective investigating the case, who was
a former employee of his. He stated that he had no reason to believe that she would answer
his questions untruthfully. She provided him with a list of individuals who were actually in
the cell at the time of the offense, and trial counsel spoke to several of these individuals,
including Ms. Kimberly O’Neal. Trial counsel determined that Ms. O’Neal’s testimony
“would have been pretty severe,” as it would implicate the petitioner and one other defendant
as the main perpetrators of the rape. Trial counsel informed the petitioner of the nature of
Ms. O’Neal’s testimony and that the testimony would likely result in the petitioner’s
conviction. After speaking with Ms. O’Neal, trial counsel “spent two or three days there
pretty much back and forth to the jail, speaking with our clients several times.”

      Only days before the trial was scheduled to begin, trial counsel learned that two of the
co-defendants were planning to testify on behalf of the State. The counsel for the co-
defendants did not convey to trial counsel what the substance of their clients’ testimony

                                               -5-
would be, but trial counsel “assumed it was going to be bad.” Trial counsel had obtained
written or recorded statements of all the alleged participants at the preliminary hearing and
was able to formulate an idea of what the testimony of the women would be. He asked the
petitioner whether she ever made any statements to law enforcement, and the petitioner
informed him that she had not been Mirandized and had not made any statements at all to law
enforcement. However, when he viewed the tape of the petitioner’s statements he realized
that she was Mirandized and had made “six or eight” statements that trial counsel considered
“to be pretty much admissions . . . . It was pretty bad.”

        Trial counsel testified that the petitioner called him from a cell phone that she gained
access to and that she called him “all the time” from this cell phone. They talked at length
about the information that was on the tape of the petitioner’s statement. Trial counsel
frequently talked to the petitioner, answering her letters, which he testified numbered more
in the ten to twelve range, rather than the two that petitioner claimed. He stated that he
“communicated back with her, or tried to, on what she was asking me.” The petitioner called
trial counsel “at least once a week with somebody’s phone” and at one point called and left
a phone number so trial counsel could contact her where she was incarcerated. Trial counsel
testified that “on at least one, maybe two occasions” that he called back “to some counselor’s
office,” and he felt as though he communicated with her as well as he could.

       Trial counsel and petitioner discussed a variety of individuals to whom trial counsel
could speak, and trial counsel talked to “some of them.” He believed that he “talked to
maybe the Stringer lady. I am pretty sure I talked to her.” He testified that he “followed
through” on “a lot” of the information that petitioner relayed to him.

       Trial counsel testified that while the medical reports did not indicate that the victim
received “any cuts, bruises, scarring or whatever,” having “people that will testify that this
happened, and you have got four against one or four against two, you know, that is pretty
damning.” Trial counsel did not recall telling the petitioner that the medical reports did not
make a difference but stated that a person did not have to cause any damage to penetrate
someone.

        Had the petitioner proceeded to trial, trial counsel stated that he would have addressed
the fact that the victim had been charged with and convicted of being untruthful. He also
would have attempted to use the criminal record of the co-defendants in order to impeach
their testimony.

        Trial counsel spent the majority of the two days leading up to the trial date speaking
with the petitioner, her co-defendant, and counsel for co-defendant. He again explained to
the petitioner that she was charged with aggravated rape and that the charged carried a range

                                              -6-
of punishment of fifteen to twenty-five years of imprisonment for a Range I offender. When
she asked why the original eight-year agreement could not be reinstated, trial counsel stated
that the reason was:
               [T]hat was a ship that had sailed, I guess is as good a way of putting it.
              It was pretty much clear that this is your deal. If you don’t take it, [the
              district attorney does] have the ability to supersede, which is the district
              attorney’s right, right up to the time the jury is impaneled to do. So
              there is not any way we could do anything to stop the State from doing
              that.
He also explained that the State offered to permit the petitioner to enter an open plea for the
charge of rape as a Range I offender, which would carry a sentence in the range of eight to
twelve years. The petitioner seemed to understand the nature of the plea agreement, and trial
counsel stated that he did not believe the petitioner “was particularly happy to be pleading
to anything, but she did understand that and made the conscious choice to accept the plea.”
Trial counsel testified that the petitioner made the decision to plead guilty and that he had
informed her of what he believed to be the nature of the case against her, the applicable law,
and the advantages and disadvantages of going to trial as opposed to taking a plea deal. He
believed that if the petitioner had proceeded with a trial, she likely would have been
convicted and received a twenty-two to twenty-three year sentence.

        On cross-examination, trial counsel testified that he believed that the petitioner was
“extremely bright” and likely could “have been anything she wanted to.” He stated that his
prior role as a sheriff did not create a conflict of interest in his representation of the
petitioner. Trial counsel had represented individuals that he arrested as an officer, and many
clients considered it an advantageous representation strategy. He stated that “I’ve had more
than one person say a person that can take the book and put you in jail, can take the book and
get you out.” Trial counsel stated that the petitioner had maintained her innocence
throughout the proceeding but that the realization that two of her co-defendants were going
to testify for the State and the nature of Ms. O’Neal’s testimony likely made her realize that
a best interest plea was the most successful course of action. He informed the petitioner that
by taking the best interest plea she would leave the determination of her sentence entirely
with the trial judge and that the judge would likely impose a sentence closer to the high end
of the sentencing range.

       Trial counsel explained to the petitioner that there was additional evidence against her
besides the medical records of the victim. He explained that the lack of cuts or bruises did
not indicate a lack of sexual activity, and he noted that he had investigated “several crimes”
where there was little physical evidence but physical contact still occurred.

       Trial counsel testified that he relayed to the petitioner the discussions he had with co-

                                              -7-
counsel and the State, the negotiations between the parties, and offers that the State proposed.
Particularly on the weekend before the trial, he made “three or four trips back and forth
between the courthouse and the jail” talking with the State and with the petitioner. He
testified that it was his practice to frequently visit clients in jail.

       Trial counsel did not speak with every witness that the petitioner provided, noting that
some of the witnesses were not in a position to have seen or heard anything when the offense
occurred. He could not recall specifically whom he talked to because of the time span
between the offense and the post-conviction hearing but agreed that he did not speak with
every witness the petitioner suggested.

        The post-conviction court reviewed the transcript from the sentencing hearing and
found that the petitioner admitted to knowingly and voluntarily pleading guilty to one count
of rape and that the petitioner had no complaints about trial counsel and was able to speak
with him as much as she wanted in deciding to plead guilty. The court observed that the
petitioner was not someone who “could be easily intimidated or coerced into pleading guilty
if [she] didn’t want to.” While the petitioner may not have been happy to plead guilty, the
court noted that it doubted “that anybody charged with an A felony pleading guilty to a B
felony is in a real joyful position,” but it appeared the petitioner voluntarily decided to plead
guilty. The court found that it was not bad-faith on the part of the State to indict the
petitioner for aggravated rape. The post-conviction court also noted that the petitioner did
not seem to understand that she could actually receive a sentence of twenty-five years if she
were to proceed to trial. While the State offered a plea of eight years, this plea was for the
charge of rape, and the State superseded the indictment to charge the petitioner with
aggravated rape. Had the petitioner proceeded to trial, it would have been for the offense of
aggravated rape, a Class A felony that carried a sentence of fifteen to twenty-five years for
a Range I offender, rather than the offense of rape. The court credited the testimony of trial
counsel and the work that he did on the case, stating that the petitioner did not “have any
personal knowledge of what [trial counsel] was doing” because the petitioner was in jail.
The post-conviction court noted that trial counsel “probably negotiated a pretty good deal for
[the petitioner] just to plead guilty to rape and spared [her] the 15 to 25.” The court
subsequently denied the petition for post-conviction relief.

                                         ANALYSIS

       The petitioner alleges that counsel was ineffective for failing to adequately convey the
consequences of rejecting the State’s initial eight-year plea offer, failing to adequately
interview all the witnesses the petitioner proposed, and failing to procure DNA testing on a
toothbrush holder alleged to have been used in the commission of the offense. The petitioner
further contends that she did not “knowingly and voluntarily” enter her guilty plea, and lastly

                                               -8-
that trial counsel’s previous employment as the sheriff of Bedford County created a conflict
of interest that resulted in counsel performing ineffectively.

A. Ineffective Assistance of Counsel

        In a post-conviction proceeding, the petitioner bears the burden of proving the
allegations of fact giving rise to the claim by clear and convincing evidence. Dellinger v.
State, 279 S.W.3d 282, 293-94 (Tenn. 2009); T.C.A. § 40-30-110(f) (2012). On appeal, a
post-conviction court’s findings of fact are conclusive unless the evidence preponderates
otherwise. State v. Vaughn, 202 S.W.3d 106, 115 (Tenn. 2006). This court may not
substitute its own inferences for those drawn by the post-conviction court, as questions
concerning the credibility of witnesses, the weight and value of the evidence, and the factual
issues raised by the evidence are to be resolved by the post-conviction court. State v.
Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). A claim of ineffective assistance of
counsel raises a mixed question of law and fact which this court reviews de novo. Fields v.
State, 40 S.W.3d 450, 455 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
Therefore, this court reviews the trial court’s factual findings de novo with a presumption of
correctness unless the evidence preponderates against the trial court’s findings. Fields, 40
S.W.3d at 458. The trial court’s conclusions of law on the claim are reviewed under a purely
de novo standard with no presumption of correctness. Id.

        Both the Sixth Amendment to the United States Constitution and Article I, section 9
of the Tennessee Constitution guarantee the right to counsel. This right affords an individual
representation that is “within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Counsel is ineffective when
“counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466
U.S. 668, 686 (1984).

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
prove by clear and convincing evidence that: (1) counsel’s performance was deficient; and
(2) the deficiency prejudiced the petitioner to the degree that the petitioner did not receive
a fair trial. Strickland, 466 U.S. at 687. A petitioner satisfies the deficiency prong of the
test by showing that “counsel’s representation fell below an objective standard of
reasonableness;” that is, “the services rendered or the advice given must have been below
‘the range of competency demanded of attorneys in criminal cases.’” Strickland, 466 U.S.
at 688; Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009) (quoting Baxter 523 S.W.2d
at 936). The petitioner must demonstrate that “counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. Courts evaluating the performance of an attorney “should

                                              -9-
indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Burns, 6 S.W.3d at 462. In order to fairly assess counsel’s conduct,
every effort must be made “to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. “The fact that a particular strategy or
tactic failed or hurt the defense, does not, standing alone, establish unreasonable
representation.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).

       Prejudice requires the petitioner to show “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. If the petitioner fails to establish either
deficiency or prejudice, post-conviction relief is not appropriate, and this court need not
address both components if the petitioner makes an insufficient showing as to one
component. Grindstaff, 297 S.W.3d at 216; Goad, 938 S.W.2d at 370.

       Trial counsel testified that he informed the petitioner of the State’s initial offer and
that the State would supersede the indictment to charge aggravated rape if the petitioner
rejected the offer. The petitioner admitted that she was aware that she received an eight-year
offer and later was aware that she was facing a twenty-five year sentence if convicted on the
charge of aggravated rape. The post-conviction court credited the testimony of trial counsel,
implicitly finding that he informed the petitioner of the ramifications of rejecting the State’s
offer and resolving the factual dispute in favor of trial counsel.

        The post-conviction court also credited the testimony of trial counsel that he either
interviewed or ascertained the nature of the statements of the witnesses who would provide
the most damaging testimony to the petitioner’s case. The court found that trial counsel “did
a lot of work on this case.” Further, the petitioner failed to present any witnesses at the post-
conviction hearing, including the prison guard who the petitioner claimed informed her that
she would have been her “best witness.” As a general rule, the only way a petitioner may
establish that the failure to discover or interview a witness resulted in prejudice is to present
this witness at the post-conviction hearing. State v. Black, 794 S.W.2d 752, 757 (Tenn. Crim.
App. 1995). Trial courts and appellate judges cannot speculate or guess “what a witness’
testimony might have been if introduced by defense counsel.” Id.

       The petitioner lastly argues that trial counsel was ineffective for failing to procure
DNA testing on a toothbrush holder allegedly used in the offense. In this case, the petitioner
did not seek DNA testing at the post-conviction hearing, and the only proof she offered that
DNA evidence would prove her innocence is her statement at the post-conviction hearing that
“the medical reports clearly state that the girl wasn’t raped.” In order to show prejudice, the

                                              -10-
petitioner must prove that but for trial counsel’s failure to procure DNA testing on the
toothbrush holder “the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. As this court has stated, the issue in regards to the lack of a DNA test “is
whether the proof at the post-conviction hearing established that if trial counsel had in fact
obtained DNA testing, the test would have established the Petitioner’s innocence as he
alleges.” Tommy Nunley v. State, No. W2003-0294-CCA-R3-PC, 2006 WL 44380, at *6
(Tenn. Crim. App. Jan. 6, 2006) perm. app. denied (Tenn. June 26, 2006). “Normally, a
petitioner would be unable to show prejudice from trial counsel’s failure to obtain DNA
testing, unless the petitioner could show at the post-conviction hearing what the results of the
DNA testing would have been.” Id. at *7 (Woodall, J., concurring). We conclude that the
petitioner has not met her burden of demonstrating prejudice. She has offered no proof to
indicate that the toothbrush holder would not contain the victim’s DNA, nor did she make
any showing as to what the results of the DNA testing would have been or how it would have
affected her decision to accept the plea.

       We conclude that the record does not preponderate against the finding that trial
counsel performed effectively and that his performance did not prejudice the petitioner.
Accordingly, we conclude that these issues are without merit, and the petitioner is not entitled
to any relief on these claims.

B. Guilty Plea

       The petitioner next argues that she did not knowingly and voluntarily enter her guilty
plea. Specifically, she contends that trial counsel informed her that “nolo contendere” meant
“best interest,” and that she entered her best interest plea with the understanding that it was
not an admission of guilt. The record does not support the petitioner’s assertion.

       A guilty plea is constitutional only when it is entered into knowingly, intelligently, and
voluntarily. Boykin v. Alabama, 395 U.S. 238, 242 (1969). In evaluating whether a guilty
plea was knowingly and voluntarily entered, “[t]he standard was and remains whether the
plea represents 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). A reviewing court
must make this determination “based upon the totality of the circumstances.” State v. Turner,
919 S.W.2d 346, 353 (Tenn. Crim. App. 1996). A court charged with determining the nature
of a guilty plea:

              must look to various circumstantial factors, such as 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

                                              -11-
               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.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The record indicates that the
petitioner entered her plea knowingly and intelligently. The trial court engaged in a lengthy
colloquy with the petitioner in regards to her right to proceed to trial, the potential
punishment she faced if she proceeded to trial, and the nature of a best interest plea. The trial
court informed her that a best interest plea did not require the petitioner to admit guilt but
carried the same effect as a guilty plea, and the petitioner stated that she understood the
consequences of a best interest plea. The petitioner agreed that she understood the charges
against her and that trial counsel had fully explained the plea agreement to her before she
signed it. She affirmed that she wished the trial court to accept her plea of guilty as a best
interest plea. The petitioner stated that her plea to the amended charge of rape was “[b]est
interest.” The trial court then clarified,“[p]lea of guilty; is that correct? Not trying to put
words in your mouth. I understand it is a best interest plea. It is still a guilty plea. Is that
what you want to do?” The petitioner then stated that she did wish to enter that plea and that
it was her free and voluntary decision to do so.

        The post-conviction court noted that, based on the tone of testimony of the petitioner,
she did not seem to be someone “that could be easily intimidated or coerced into pleading
guilty if [she] didn’t want to.” The court further found that while the petitioner may not have
been “happy” to plead guilty, it appeared that her decision to do so was voluntary. We agree
that the plea was knowingly and voluntarily entered. The petitioner had a lengthy discussion
with the trial court about the nature of a best interest plea, and was able to hear the trial judge
have the same discussion with her co-defendant, before she entered her plea. The petitioner’s
mistaken belief that she would proceed to trial on the charge of rape, where she could have
received a maximum sentence of twelve years, does not indicate deficient performance on
the part of trial counsel. Trial counsel testified that he informed the petitioner that she was
charged with aggravated rape, and, during her testimony, the petitioner admitted that she
knew that she could potentially receive a twenty-five year sentence if convicted. Trial
counsel informed her that the State’s offer was to enter an open best interest plea to the
amended charge of rape, with sentencing to be left to the discretion of the trial court. The
petitioner testified at the post-conviction hearing that when she agreed to enter her best
interest plea to the charge of rape, she was aware that the judge would determine her
sentence and that it would be within the range of eight to twelve years. Thus, we conclude
that the evidence does not preponderate against a finding that the petitioner entered her plea
knowingly and voluntarily. The petitioner is entitled to no relief on this claim.



                                               -12-
C. Conflict of Interest

      The petitioner lastly contends that trial counsel had a conflict of interest that prevented
him from rendering effective assistance of counsel. Specifically, she claims that trial
counsel’s previous employment as the Bedford County Sheriff prejudiced trial counsel’s
opinion of her based on their prior interactions.

        In order to succeed on a post-conviction argument of ineffective assistance of counsel
the petitioner must demonstrate by a preponderance of the evidence that: (1) an actual
conflict of interest existed; and (2) the conflicting interest caused trial counsel to perform
adversely. Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980). An actual conflict of interest
exists when an attorney is unable to exercise “independent professional judgment free of
‘compromising interests and loyalties.’” State v. White, 114 S.W.3d 469, 476 (Tenn. 2003)
(citing State v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000)). This court defines a
conflict of interest “in the context of one attorney representing two or more parties with
divergent interests.” State v. Tate, 925 S.W.2d 548, 552 (Tenn. Crim. App. 1995).

        There is a presumption of prejudice “only if the defendant demonstrates that counsel
‘actively represented conflicting interests’ and that an ‘actual conflict of interest adversely
affected his lawyer’s performance.” Strickland, 466 U.S. at 692 (quoting Cuyler, 446 U.S.
at 350)). However, if a defendant does not raise an objection at trial he “must demonstrate
that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446
U.S. at 348. Until the defendant meets this burden, “he has not established the constitutional
predicate for his claim of ineffective assistance.” Id. at 350.

        The petitioner has not met the burden of demonstrating that trial counsel had an actual
conflict of interest that adversely affected his performance. While trial counsel was a former
sheriff of Bedford County and had prior dealings with the petitioner, the petitioner has not
proved that this prior employment caused trial counsel to actively represent conflicting
interests. Trial counsel testified that he had represented many people that he arrested as an
officer and that many people considered it an advantage, as “a person that can take the book
and put you in jail, can take the book and get you out.” The fact that an attorney may be
aware of prior bad acts committed by his client does not automatically create a conflict of
interest. The petitioner has not provided any proof that trial counsel’s former employment
as a sheriff caused him to develop a prejudicial opinion of the petitioner that adversely
affected his ability to represent her. The post-conviction court credited the testimony of trial
counsel that he frequently communicated with the petitioner and kept her adequately
informed as to the charges against her and the potential sentences they carried. The post-
conviction court further found that trial counsel “probably negotiated a pretty good deal” for
the petitioner, as she was able to plead guilty to rape instead of aggravated rape and avoided

                                              -13-
a fifteen to twenty-five year potential sentence. We conclude that the petitioner has not
demonstrated that any material conflict of interest existed in this case. Thus, the petitioner
is not entitled to any relief on this claim.

                                      CONCLUSION

       For the above listed reasons, we affirm the denial of post-conviction relief.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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