       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                       Assigned on Briefs November 1, 2016

               ANDREW TAYLOR v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Madison County
                      No. C-15-168        Kyle Atkins, Judge
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             No. W2016-00664-CCA-R3-PC - Filed December 28, 2016
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The Petitioner, Andrew Taylor, appeals the denial of his petition for post-conviction
relief in which he challenged his guilty pleas to carjacking and aggravated robbery and
his effective sentence of eight years in prison at eighty-five percent. On appeal, the
Petitioner contends that he was denied his right to the effective assistance of counsel,
which rendered his pleas unknowing and involuntary. We affirm the post-conviction
court’s denial of relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.

George Morton Googe, District Public Defender, and Susan D. Korsnes, Assistant
District Public Defender, Jackson, Tennessee, for the appellant, Andrew Taylor.

Herbert H. Slatery III, Attorney General and Reporter; Katherine Redding, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Nina Seiler, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                      OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The Petitioner pled guilty to carjacking and aggravated robbery. Pursuant to the
guilty plea agreement, the trial court sentenced the Petitioner to eight years at thirty
percent for the carjacking conviction and to eight years at eighty-five percent for the
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aggravated robbery conviction, to be served concurrently for an effective sentence of
eight years at eighty-five percent.

                            Guilty Plea Submission Hearing

      Although the Petitioner now challenges its accuracy, the Petitioner was arrested
and gave the following signed statement to police:

               I met Austin Rogers on Facebook. He started messaging me asking
       how things were going. He asked me through a message would I be willing
       to let him give me oral sex for $50.00. I told him no I don’t get down like
       that and he continued to take the price up. He said $100.00, [$]200.00, and
       all the way up to $350.00 cash he would pay if I let him give me oral sex.
       He asked for my number and he started calling and texting me which was
       around the beginning of December. Every time he called he would ask if I
       was trying to make some money and I would say no or just make an excuse
       to not meet up.

              On New Year’s Eve Austin called me around 6 [p.m.] or 7 [p.m.]
       and he asked me where I lived. I told him where I lived and he came to my
       apartment …. Before he even came I knew he only had $50.00 and I wasn’t
       gonna throw my life away for $50.00. I had no intentions of robbing him
       but I was going through some issues at this time. Austin came to the
       apartment and I was sitting on the table playing the video game. I asked
       him if he had the money and he put $50.00 cash on the table. We left and
       got into his vehicle and he drove to North Park. He parked and turned the
       car off. We got in the back seat and he reached towards me and tried to
       touch me. I snapped and pulled out a black pellet handgun that I had in my
       jacket. Austin put his hands up and said please don’t kill me. He took his
       wallet out and gave me $6.00 cash, a debit card, a bottle of cologne, his cell
       phone, and his car keys. I gave him the keys back but I didn’t want to walk
       back home so I took the keys. Austin walked towards a black car and I
       began to drive his car away and I slowed down. I started to get out and run
       but I knew it was a long way to the apartment so I drove off. I left and
       drove to an abandoned house off of University Parkway. I walked back to
       the house where Austin picked me up.

       At the plea hearing, the Petitioner affirmed that he understood that he could be
prosecuted for perjury; that he could ask the court, prosecution, or trial counsel questions
that he might have had during the plea submission hearing; that he did not face “any force
or pressure” “to do anything in [the] matter he [did] not wish to do”; that he was not
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under the influence of drugs or alcohol at the time of the plea hearing; that he was
entering his plea “freely” and “voluntarily”; that he was satisfied with trial counsel’s
representation; that he understood and wished to accept the plea agreement; that, by
accepting the plea, he was waiving his right to a speedy trial, right to a jury trial, right to
confront witnesses, right to present a defense, right to testify, and right to appeal his
conviction and sentence; that he had the ability to change his mind at that moment; that
the issues of guilt were being decided upon the entry of the plea; that his guilty plea
conviction would go on his record; that his guilty plea conviction could increase the
penalty for future convictions he may face; and that he understood the crimes with which
he was charged. The Petitioner also affirmed that the facts in the indictment were
“substantially correct”; that he committed the charged offenses charged against him; and
that, as a result of his plea agreement, he was to be sentenced to an effective eight-year
sentence to be served at eighty-five percent. The trial court found that the Petitioner
entered his plea freely, voluntarily, and intelligently and that the Petitioner was satisfied
with the advice of trial counsel.

                                 Post-Conviction Hearing

       The Petitioner’s petition for post-conviction relief alleged that counsel was
ineffective by failing to investigate the Petitioner’s claim that he was only trying to
escape the victim’s unwanted advances and did not rob the victim, investigate and obtain
the cell phone records of the Petitioner and the victim, develop a theory of defense, and
challenge the indictment.

       The Petitioner testified that prior to entering his guilty plea, he received and
reviewed his discovery packet and informed trial counsel that the packet was missing his
and the victim’s cell phone records. The Petitioner stated that trial counsel then
requested a continuance because the discovery packet was missing the cell phone records,
and the continuance was granted. The Petitioner said that he did not receive the cell
phone records before the next court date and that trial counsel was unable to obtain them
as well. He stated that trial counsel did not give a reason for not obtaining the cell phone
records, despite the fact that the Petitioner had given his cell phone to the police and had
executed a waiver allowing the police to search the contents of his cell phone.

       The Petitioner stated that he and trial counsel reviewed the facts upon which his
guilty plea was based. He stated he did not understand how he could be charged with
aggravated robbery if he “just took a vehicle and not property from [his] victim.” The
Petitioner testified that trial counsel explained that he was being charged with aggravated
robbery not for taking the victim’s money or cell phone but for taking the keys to the
victim’s car from the victim and that if the victim had simply left “the keys inside the
ignition, it would have been just carjacking.” The Petitioner maintained that he did not
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take the victim’s cell phone or fifty dollars. He stated that the victim left the fifty dollars
at the apartment where they met and that the victim was using his own cell phone later
“that same night.” The Petitioner noted that the victim’s car keys, cell phone, and debit
card were all on the front seat of the vehicle when the Petitioner took the vehicle. He
stated that trial counsel did not discuss the location of the victim’s belongings with him.
The Petitioner testified that he relied on trial counsel’s “incorrect legal advice” in
entering the guilty pleas.

       On cross-examination, the Petitioner conceded that he did not contest the accuracy
of a copy of his statement and agreed that trial counsel provided him with a copy of the
statement in his discovery. He acknowledged that he “told the investigators that … after
displaying a pellet handgun [he] took the victim’s cash, debit card, bottle of cologne, [cell
phone], car keys, and his car.” The Petitioner explained that what the police officer wrote
down for his statement was not “very accurate.” He conceded, however, that he signed
the statement, “attesting that that information [was] correct.” He stated that he believed
the victim fabricated the charges against him because he denied the victim’s sexual
advances. The Petitioner testified that he wanted to retrieve the cell phone records to
show that the victim had “made sexual advances” towards him and that they had “texted
back and forth.” He conceded, however, that the victim, in his statement to police,
admitted “that he had been texting [the Petitioner] through Facebook and on his phone,
wanting sexual favors from [the Petitioner.]” He admitted that a copy of the cell phone
records would merely corroborate the victim’s own admissions about the sexual
advances. The Petitioner recalled the facts of the guilty plea hearing and testified in the
affirmative that the transcript of the guilty plea hearing accurately reflected his
recollection of the hearing.

        On redirect examination, the Petitioner testified that he did not demand the
victim’s cell phone, the victim’s cologne, the victim’s debit card, or money from the
victim. The Petitioner explained that the victim essentially offered the aforementioned
items after he displayed the gun to the victim. He said that the items never left the car
and that the victim voluntarily left the vehicle. The Petitioner stated that he “just wanted
the attempted sexual act to end.”

        On re-cross examination, the Petitioner confirmed that he “displayed a pellet
handgun to the victim” after which the victim “offered” him the money, a debit card, and
a cell phone. He denied taking the items and testified that police found the victim’s keys
and headphones at the apartment. He confirmed, however, that his statement to the
police reflected that he took the money, a debit card, a cell phone, keys, and headphones.

      Trial counsel testified that he provided the Petitioner with a copy of his discovery
and that he reviewed the discovery with the Petitioner “[s]everal times.” He recalled
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discussing the cell phone records with the Petitioner and said he told the Petitioner that
the records were irrelevant in light of the Petitioner’s statement to the police because “it
was uncontroverted that the victim was contacting him for sexual favors.” Trial counsel
acknowledged that it was his decision to not pursue a cell phone records request. He
stated that he discussed “the fact that what [the police] claim[ed] was robbed from the
victim was, in fact, left in the vehicle” with the Petitioner. He testified that he would
have “pursued” that theory at trial and that he advised the Petitioner on the matter. Trial
counsel also testified that he spoke with the Petitioner about the victim’s statements and
the Petitioner’s own statement to the police. Trial counsel stated that it was in his
“professional opinion that to go to trial would not be in [the Petitioner’s] best interest.”
Trial counsel testified that he attempted to interview the victim but that the victim refused
his request. He acknowledged that he and the Petitioner spoke about the Petitioner’s
concerns regarding the accuracy of the statement provided to the police. He did not recall
the Petitioner expressing concerns or questions about the guilty plea form.

       On cross-examination, trial counsel testified that the discovery file did not contain
information regarding the location of the victim’s cell phone. He also testified that he
explained the elements of both of the charges to the Petitioner, including possible
defenses and outcomes. Trial counsel testified that the Petitioner did not raise concerns
regarding the different aspects of the charges against him.

       On re-direct examination, trial counsel testified that he specifically explained to
the Petitioner the distinguishing elements of carjacking and aggravated robbery: “the
taking from the person in robbery versus just the taking of property.” Trial counsel
conceded that the location where the victim’s property was left was a threshold question
as to whether the Petitioner could be convicted of aggravated robbery. He acknowledged
that the Petitioner’s stated reason for displaying the pellet gun was to avoid the victim’s
sexual advances and get out of the vehicle.

       In its order denying the Petitioner’s petition for post-conviction relief, the post-
conviction court found that the Petitioner did not present proof to support his contention
that he did not take the victim’s property. The court noted that the Petitioner, in fact, said
otherwise in his statement to the police. The court found that the Petitioner did not
present proof on the evidentiary value of the cell phone records for purposes of
determining whether the Petitioner took the victim’s property. The court noted that the
Petitioner conceded that the cell phone records would only serve to corroborate the
victim’s own admission that he was pursuing the Petitioner for sexual contact.




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                                       ANALYSIS

       On appeal, the Petitioner argues that he received ineffective assistance of counsel
when trial counsel failed to request the Petitioner’s and victim’s cell phone records,
which the Petitioner contends rendered his guilty plea unknowing and involuntary.
While the Petitioner also argued at the hearing that trial counsel failed to investigate his
claim that he was only trying to escape the victim’s unwanted advances and did not rob
the victim, develop a theory of defense, and challenge the indictment, the only issue he
presents on appeal is that he received the ineffective assistance of counsel when counsel
failed to obtain the cell phone records. The Petitioner contends that the records would
have confirmed that the victim’s cell phone was left in the front seat of the victim’s
vehicle, that he, thus, could not be found guilty of aggravated robbery. He claims that
absent trial counsel’s failure to secure the records, he would have proceeded to trial on
the aggravated robbery charge instead of pleading guilty.

      In evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[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) (citations omitted). In
making this determination, the reviewing court must look to the totality of the
circumstances. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see
Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). Indeed,

       a court charged with determining whether ... pleas were “voluntary” and
       “intelligent” 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 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) (citation omitted).

       Once a guilty plea has been entered, effectiveness of counsel is relevant only to
the extent that it affects the voluntariness of the plea. Hill v. Lockhart, 474 U.S. 52, 56
(1985) (citing Alford, 400 U.S. at 31). To succeed in a challenge for ineffective
assistance of counsel, the petitioner must demonstrate that counsel’s representation fell
below the range of competence demanded of attorneys in criminal cases. Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v. Washington, 466 U.S.
668, 687 (1984), the petitioner must establish (1) deficient representation and (2)
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prejudice resulting from the deficiency. In the context of a guilty plea, to satisfy the
second prong of Strickland, the 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.” Lockhart, 474 U.S. at 59; see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997). Courts evaluating the performance of an
attorney “should indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453, 462
(Tenn. 1999). 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 issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). “A trial court’s findings of fact underlying a claim of ineffective assistance of
counsel are reviewed on appeal under a de novo standard, accompanied with a
presumption that those findings are correct unless the preponderance of the evidence is
otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.
13(d)). However, conclusions of law are reviewed under a purely de novo standard, with
no presumption of correctness. Id. at 458. To obtain post-conviction relief, the Petitioner
bears the burden of proving the allegations of fact in the petition by clear and convincing
evidence. T.C.A. § 40-30-110(f).

        Here, the Petitioner has failed to carry his burden to establish prejudice. The
Petitioner failed to present any evidence that the victim’s or his own cell phone records
would have demonstrated that the victim’s cell phone remained in the front seat of the
victim’s vehicle. The Petitioner also failed to produce evidence supporting his contention
that if the victim’s cell phone was in the front seat of the victim’s vehicle, then he could
not be convicted of aggravated robbery. The Petitioner asserts that he believed the
records would prove that the cell phone was in the vehicle. In fact, the post-conviction
court found that the Petitioner admitted that the cell phone records “would have merely
confirmed” the victim’s sexual advances to the Petitioner—nothing more. The post-
conviction court also found that the Petitioner did not present any evidence to contradict
his own statement to the police about whether he took the victim’s property or whether
the victim gave him the property.

       In other words, even if trial counsel retrieved the cell phone records, the records
would have only corroborated the victim’s and the Petitioner’s statement about their prior
relationship and, at best, would have shown that the victim recovered his cell phone at
some point during the night of the aggravated robbery and carjacking. Indeed, the cell
phone records would have had no effect on the other items that the Petitioner
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acknowledged taking from the victim: the victim’s six dollars, cologne, debit card, and
car keys. Moreover, we note that the Petitioner admitted in his signed statement to the
police that the victim “gave” him the aforementioned items while he had a gun drawn on
the victim. At the post-conviction hearing, the Petitioner stated that that he “displayed a
pellet handgun to the victim” after which the victim “offered” him the money, a debit
card, and a cell phone. The Petitioner’s testimony is sufficient to establish that he took
the victim’s property, which satisfies the elements of aggravated robbery. See T.C.A. §
39-13-402. Even if trial counsel were deficient in failing to procure the cell phone
records, such deficiency did not result in prejudice. We conclude there is no reasonable
probability that the Petitioner would not have pled guilty, even if trial counsel had
retrieved the cell phone records.

                                    CONCLUSION

         Based on the foregoing analysis, we affirm the judgment of the post-conviction
court.




                                             ____________________________________
                                            JOHN EVERETT WILLIAMS, JUDGE




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