                                                                                              03/05/2019
             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                             Assigned on Briefs January 9, 2019

               ALMONDA DUCKWORTH v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Madison County
                          No. C-18-45 Roy B. Morgan, Jr., Judge
                         ___________________________________

                               No. W2018-00920-CCA-R3-PC
                           ___________________________________


The Petitioner, Almonda Duckworth, appeals the denial of his petition for post-
conviction relief, arguing that he received ineffective assistance of counsel and his guilty
pleas were unknowing and involuntary. Following our review, we affirm the judgment of
the post-conviction court denying the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and J. ROSS DYER, J., joined.

Joseph T. Howell, Jackson, Tennessee (on appeal) and Jeremy B. Epperson (at trial), for
the appellant, Almonda Duckworth.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Al Earls, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                           OPINION

                                             FACTS

       According to the Petitioner’s testimony at the evidentiary hearing, he was charged
in case number 16-338 in Madison County Circuit Court with attempted first degree
murder, aggravated assault, especially aggravated robbery, and employing a firearm
during the commission of a dangerous felony.1 On March 13, 2017, the Petitioner pled
         1
             Neither the indictment nor the plea agreement is included in the record before this
court.
guilty in the Madison County Circuit Court to the lesser included offenses of attempted
second degree murder in count one and aggravated robbery in count three. Pursuant to
the terms of his negotiated plea agreement, he was sentenced to concurrent terms of
twelve years at 30% for the attempted second degree murder conviction and twelve years
at 85% for the aggravated robbery conviction, with the other two counts of the indictment
dismissed.

      On March 2, 2018, the Petitioner filed a pro se motion for post-conviction relief in
which he raised a number of claims, including ineffective assistance of counsel and
unknowing and involuntary guilty pleas. Among other things, the Petitioner alleged that
his guilty pleas were unknowing and involuntary because his counsel erroneously
informed him twelve years was the minimum sentence the trial court could impose for his
convictions and failed to interview the alleged victim regarding his inconsistent
statements.

        Following the appointment of post-conviction counsel, an evidentiary hearing was
held at which the Petitioner acknowledged that he informed the trial court during the plea
colloquy that he was satisfied with trial counsel’s representation, knew what he was
doing in entering his pleas, and wanted the court to approve the plea agreement. He later
testified, however, that he felt compelled to plead guilty due to his belief that trial counsel
was unprepared to proceed to trial. He complained that trial counsel failed to file a
motion to exclude the statement of the victim, who had provided inconsistent accounts to
the police about who shot him. Trial counsel also failed to subpoena four police officers,
who could have provided supplemental reports that the victim named someone other than
the Petitioner as the shooter. In addition, trial counsel never told him that the minimum
sentence he could have received as a first time offender for his convictions was eight
years rather than the twelve years he received as part of his plea deal. The Petitioner
testified that he was only twenty years old at the time he entered his pleas, had never
before been through a jury trial or before a judge, and did not understand what he was
doing.

       On cross-examination, the Petitioner acknowledged that his trial counsel reviewed
the plea agreement with him and that he read and signed it. He further acknowledged
that he understood at the time of his guilty pleas what offenses he was pleading to and the
sentences he would receive. He reiterated, however, that he was unhappy with trial
counsel’s representation and felt he had no other choice but to accept the plea deal
because trial counsel “act[ed] like his intention was to lose” if they proceeded to trial.
The Petitioner stated that he had complained about trial counsel a week before the guilty
plea hearing, but the trial court took no action.



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       Trial counsel, a public defender, testified that he began his representation of the
Petitioner in August 2016. He agreed that the case involved a drug deal “that went
bad[,]” during which the drug dealer had been shot. During his investigation and
preparation of the case he, among other things: obtained and reviewed with the Petitioner
the videotaped interviews of the Petitioner, the victim, and a witness; discussed various
defenses with the Petitioner, including the inconsistent statements of the witnesses; and
informed the Petitioner of the charges and his potential sentences if convicted at trial.
Trial counsel said that the Petitioner was initially uninterested in a plea bargain but
ultimately decided to accept the final plea bargain offered by the State.

        Trial counsel testified that the Petitioner requested that he make certain motions in
limine and motions to suppress. He said he explained to the Petitioner that there was no
factual or legal basis for the motions he wanted. However, had the case gone to trial, he
was prepared to cross-examine the victim and other witnesses regarding their inconsistent
statements. He said the Petitioner made the decision to plead guilty. Before the
Petitioner entered his pleas, he went over with him the facts of the case, his constitutional
rights, and the plea agreement. On cross-examination, trial counsel testified that he
thought two factors in the Petitioner’s decision to plead guilty were health issues his
mother was experiencing and his risk of exposure to more time if convicted of the
indicted offenses at trial.

       At the conclusion of the hearing, the post-conviction court found that the
Petitioner failed to meet his burden of demonstrating that he received ineffective of
counsel or that his guilty pleas were unknowing, unintelligent or involuntary. On May
31, 2018, the court entered a detailed written order dismissing the petition. The
Petitioner filed premature notices of appeal to this court on May 21 and May 23, 2018.

                                       ANALYSIS

       The Petitioner argues that his guilty pleas were unknowing and involuntary due to
his ignorance of the justice system and his trial counsel’s deficient performance as
evidenced by his “lack of attention to his defense[.]” The State argues that the post-
conviction court properly denied relief on the basis that the Petitioner failed to meet his
burden of demonstrating he received ineffective assistance of counsel or that his guilty
pleas were not knowing, intelligent, and voluntary. We agree with the State.

       Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The
petitioner bears the burden of proving factual allegations by clear and convincing
evidence. Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction
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setting, the findings of fact made by the court are conclusive on appeal unless the
evidence preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn.
2006). When reviewing factual issues, the appellate court will not reweigh the evidence
and will instead defer to the post-conviction court’s findings as to the credibility of
witnesses or the weight of their testimony. Id. However, review of a post-conviction
court’s application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that the same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

              First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. In the context of a guilty plea, the petitioner must show a
reasonable probability that were it not for the deficiencies in counsel’s representation, he
would not have pled guilty but would instead have insisted on proceeding to trial. Hill v.
Lockhart, 474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).
                                           -4-
       When analyzing a guilty plea, we look to the federal standard announced in
Boykin v. Alabama, 395 U.S. 238 (1969), and the state standard set out in State v.
Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn.
1999). In Boykin, the United States Supreme Court held that there must be an
affirmative showing in the trial court that a guilty plea was voluntarily and knowingly
given before it can be accepted. Boykin, 395 U.S. at 242. Similarly, our Tennessee
Supreme Court in Mackey required an affirmative showing of a voluntary and
knowledgeable guilty plea, namely, that the defendant has been made aware of the
significant consequences of such a plea. Pettus, 986 S.W.2d at 542.

        A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The
trial court must determine if the guilty plea is “knowing” by questioning the defendant to
make sure he or she fully understands the plea and its consequences. Pettus, 986 S.W.2d
at 542; Blankenship, 858 S.W.2d at 904. Because the plea must represent a voluntary
and intelligent choice among the alternatives available to the defendant, the trial court
may look at a number of circumstantial factors in making this determination.
Blankenship, 858 S.W.2d at 904. These factors include: (1) the defendant’s relative
intelligence; (2) his familiarity with criminal proceedings; (3) whether he was represented
by competent counsel and had the opportunity to confer with counsel about alternatives;
(4) the advice of counsel and the court about the charges against him and the penalty to
be imposed; and (5) the defendant’s reasons for pleading guilty, including the desire to
avoid a greater penalty in a jury trial. Id. at 904-05.

        In denying the petition, the post-conviction court accredited the testimony of trial
counsel about his investigation of the case, his discussions with the Petitioner about
discovery and possible defenses, and the fact that he was prepared to proceed to trial if
the Petitioner did not accept the plea agreement. The court also noted the Petitioner’s
own testimony that trial counsel advised him of the terms of the plea agreement, as well
as the transcript of the plea colloquy in which the Petitioner assured the trial court that he
understood his rights and the plea agreement and wished to enter his pleas. Accordingly,
the post-conviction court found that the Petitioner failed to meet his burden of showing
that he was denied effective assistance of counsel or that his pleas were not knowing,
intelligent, and voluntary.

       The record fully supports the findings and conclusions of the post-conviction
court. Trial counsel’s testimony, which was accredited by the post-conviction court,
established that he was fully prepared for trial, that the decision to plead guilty was the
Petitioner’s, and that trial counsel explained the plea agreement to the Petitioner. The
Petitioner himself admitted at the evidentiary hearing that he understood the offenses to
which he was pleading and the sentences he would receive as part of the plea agreement.
                                            -5-
Moreover, the transcript of the guilty plea hearing reveals that the trial court reviewed
with the Petitioner the Petitioner’s constitutional rights, the offenses to which the
Petitioner would be pleading, and the specific sentences he would receive, including the
release eligibility percentage associated with his aggravated robbery conviction. The
Petitioner assured the trial court that he was satisfied with counsel’s representation,
understood the plea agreement, had no questions, and was freely and voluntarily making
the decision to plead guilty without pressure or coercion.

                                    CONCLUSION

      Based on our review, we conclude that the Petitioner has not met his burden of
showing that trial counsel was ineffective or that his guilty plea was unknowing and
involuntary. Accordingly, we affirm the denial of the petition for post-conviction relief.




                                             ____________________________________
                                             ALAN E. GLENN, JUDGE




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