        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 18, 2012

                   JUAN D. HALL v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                         No. 97729    Bob R. McGee, Judge


                 No. E2012-01131-CCA-R3-PC - Filed March 25, 2013


The Petitioner, Juan D. Hall, appeals the Knox County Criminal Court’s denial of his petition
for post-conviction relief from his convictions of possession with intent to sell cocaine,
possession of a firearm during the commission of a dangerous felony, and coercion of a
witness, for which he received an effective sentence of thirteen years. In this appeal, the
Petitioner contends that the post-conviction court erred in determining that his guilty pleas
were not knowingly and voluntarily made. Upon review, we affirm the judgment of the post-
conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which JOSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

J. Liddell Kirk, Knoxville, Tennessee for the Petitioner-Appellant, Juan D. Hall.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel,
Assistant Attorney General; Randall E. Nichols, District Attorney General; and Jennifer
Welch, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       The Petitioner entered guilty pleas to possession with intent to sell more than twenty-
six grams of cocaine, a Class B felony, and possession of a firearm during the commission
of a dangerous felony and coercion of a witness, Class D felonies. As part of the plea
agreement, the remaining thirteen counts of the information were dismissed, as well as three
other cases, and the State agreed “there will not be a federal referral on Mr. Hall on the gun
case.” The Petitioner stipulated to the facts recited by the State at the plea submission
hearing:
              If called to trial in this case, the State would call the witnesses listed on
       the indictment. Officer Phil Jinks from the Knoxville Police Department
       Repeat Offender Unit would testify that he did a search warrant on the home
       where Juan Hall was staying on July 31st, 2008.

              When they went in, among all of the different things that were found in
       the house, there were multiple firearms, there was about 38 grams of crack
       cocaine among other drugs, there were 11 children in the house. It was a very
       chaotic scene when they entered the residence.

              After they did the search and got everything back to the police
       department, at that time Officer Jinks interviewed Juan Hall who did admit that
       he would have fingerprints or DNA very likely on at least one of the guns, that
       he had picked it up and carried it around.

              There was proof throughout the house that the drugs were for resale,
       both between the scales and the weight. All of the large amount of drugs were
       packaged. There had been buys at the residence where Mr. Hall was seen
       participating in at least one of the buys.

              And there would be proof from Alicia Piety, the person that was also
       charged in this case, that she and Mr. Hall were both selling drugs out of the
       residence. There would be further proof that all of these events did occur in
       Knox County. And that Mr. Hall did, in fact, have these prior felony
       convictions, which increase his sentence on the gun charge.

             And a witness from the TBI would testify that these drugs did, in fact,
       come back positive for crack cocaine.

As to the coercion of a witness offense, the Petitioner stipulated to the following facts recited
by the State:

               If called to trial in this case we would call the witness listed on the
       information. Ms. Piety would come in and testify that she received a phone
       call from the Knox County Penal Farm on Friday and it was Mr. Hall, and he
       asked her if she was really going to come to testify. And when she said she
       had received a subpoena, he told her she needed to lie in this case for trial
       today in 94465.




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               There’s also proof from a jailer at the Knox County Jail who would
       testify that Mr. Hall was out working in the pod, that Mr. Hall asked to use the
       pod desk telephone, which is an unrecorded line, that he agreed because Mr.
       Hall had been working hard that day, that he let him–that Mr. Hall told him he
       needed to call his wife, and made some comment about getting bond money.
       So he thought it was a routine call. The officer dialed Ms. Piety’s number,
       because the inmate could not dial it himself. So the officer would testify that
       the call was in fact placed to Alicia Piety. There would be further proof that
       all these events occurred in Knox County.

The Petitioner testified that he had reviewed the petition to plead guilty with his attorney, that
he understood the petition, that he understood each of the constitutional rights he was
waiving by pleading guilty, that he was satisfied with his counsel’s representation, that he
did not have any questions for the court, and that he was entering his plea freely, voluntarily,
and knowingly and because he was in fact guilty. For the possession of a firearm during the
commission of a dangerous felony and the coercion of a witness, the Petitioner was sentenced
to concurrent terms of five and two years, respectively. For the possession with intent to sell
offense, the Petitioner received a consecutive eight-year sentence, for a total effective
sentence of thirteen years.

      The Petitioner timely filed a pro se petition for post-conviction relief and was
appointed counsel who filed an amended petition.

        At the evidentiary hearing, the Petitioner testified that counsel met with him “a few
times” and discussed his charges and gave him copies of the State’s discovery. Counsel
discussed with him the fact that police recovered thirty-three rocks of crack cocaine in a
purse inside the master bedroom where the Petitioner was found. He also discussed the
discovery of a bag containing approximately 29 grams of marijuana found by the police
during the search. The Petitioner complained that he had been charged with possession of
these drugs when they weren’t “on [him].” He denied discussing other evidence found in the
residence or the significance of such evidence for proving intent to resell controlled
substances. He admitted counsel explained the significance of the statement the Petitioner
made to the police in which he denied knowledge of drug dealing in the residence but
admitting knowledge of a gun in the house. He said he pled guilty because he “was
concerned about all this time [counsel] was telling me I was going to get. And if I was found
guilty [the district attorney] was gonna stack all these charges.” He was also concerned about
possible federal charges. He complained that counsel told him he should enter a guilty plea
or he “would never see the streets again.”




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        The Petitioner testified that counsel did not “go over” the plea agreement with him
and he “didn’t understand what [he] was signing.” He said he “didn’t know that [he] was
pleading guilty to possession of 26 grams that was found in the purse, not on me.” He
admitted he understood he was entering a plea of guilty to a felony drug charge, but he
thought he would get “eight years probation” for that offense. He recalled the State’s reciting
the facts at the plea colloquy but said “no one never told me that I was pleading to possession
of 26 grams, or I would have never pled to that. Why would I plead to something that was
not on me?” He said he thought he was pleading guilty to what his wife, Alicia Piety, sold
the night the police searched the residence. He admitted knowing she made a statement to
police confessing she had been selling drugs from that residence. He denied discussing
constructive possession with counsel. He said counsel told him he “was just as guilty
because [he] knew what Alicia Piety was doing,” and after the plea he learned that the State
would have had to prove knowledge, and he did not think the State could prove that he knew
about the drugs. He understood the weapons charge and its sentence.

       On cross-examination, the Petitioner eventually admitted that at the plea hearing, he
heard the State announce that it had found 38 grams of crack cocaine and other drugs in his
residence and that the State did not talk about Alicia Piety’s drug sales. He admitted he had
eighteen previous convictions in Knox County alone and that he entered a guilty plea for
each. He admitted having convictions for possessing drugs for resale. He admitted he had
rejected an earlier plea in this case and had planned to go to trial the Friday before the
Monday trial. He admitted counsel answered a “few” questions about the discovery material
and that he read a “very detailed” police report.

        Counsel testified that he met with the Petitioner “at least 12 to 15 times” on this case
and explained the discovery materials to him. Counsel said meeting with the Petitioner was
like “the movie Groundhog Day . . . it would be a restart, and we would go through
everything every time.” Counsel testified he explained the drug charge to the Petitioner “in
detail” each time he met with him because counsel “wanted to make sure [the Petitioner]
knew what he was doing.” Counsel said the Petitioner asked him how he could have a felony
drug charge “[d]espite the fact that [counsel] explained constructive possession and actual
possession and all the other issues that are prevalent in this case.” Counsel said he “went
through every count . . . and then explained sentencing options . . . . So he was aware of what
he was facing, what he was charged with, and what the potential exposure was to going to
trial.” Counsel said he was prepared to go to trial but that after he told the Petitioner that the
State knew he had coerced Alicia Piety, the Petitioner “instructed [him] to see if there was
any way that [he] could come up with an agreement.” Counsel pursued a plea agreement
even though the State’s deadline for entering plea agreements had passed. On cross-
examination, counsel said the original plea agreement was for ten years, five on the drug
charge and five on the weapons charge. He testified that the day before the Petitioner entered

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his guilty pleas, counsel met with him in jail “for three hours and went over everything with
him once again to make sure there [was] no confusion.” He said he does not make
recommendations to his clients but instead explains all the risks to them.

        The defense recalled the Petitioner, who testified that on the morning of the guilty
plea, he asked counsel if he could fire him, and counsel replied that the court would not allow
that then, as it had denied the Petitioner’s prior request to fire counsel.

       The post-conviction court denied relief and determined that the Petitioner had failed
to present any evidence that counsel was deficient by failing to advise the Petitioner of the
circumstances of entering the guilty plea. It further determined that the Petitioner failed to
demonstrate prejudice as a result. The Petitioner then filed a timely notice of appeal.

                                         ANALYSIS

        I. Ineffective Assistance of Counsel. The extent of the issue presented in the
Petitioner’s brief is whether “[t]he trial court erred in denying post-conviction relief.” Based
on the authority cited, the Petitioner apparently argues that counsel was ineffective in failing
to properly advise him of the law concerning actual and constructive possession of drugs or
guns. Instead, the Petitioner believed he was pleading guilty to “some kind of accomplice
liability” for the offenses committed by his co-defendant, wife. Consequently, the Petitioner
argues that his guilty pleas were unknowing and involuntarily entered because he “materially
misunderstood the nature of the plea agreement” and the sentence imposed. The State
responds that “the record supports the post-conviction court’s determination that both counsel
and the trial court informed the [P]etitioner of the charges and that the [Petitioner] knowingly
and voluntarily pleaded guilty.” We agree with the State.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2006). The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.



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Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

202 S.W.3d at 116 (internal quotations and citations omitted).

        In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any particular order or even address both
if the [petitioner] makes an insufficient showing of one component.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting
Strickland, 466 U.S. at 694). In order to satisfy the “prejudice” requirement in the context
of a guilty plea, a 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.”



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Hill v. Lockhart, 474 U.S. 52, 59 (1985); see Serrano v. State, 133 S.W.3d 599, 605 (Tenn.
2004).

       Based on the Petitioner’s argument at the post-conviction hearing, he specifically
contends that Counsel was ineffective in failing to properly advise him of the culpability
requirement for his convictions or the law concerning actual or constructive possession. In
denying relief on this issue, the post-conviction court stated:

                      Trial counsel has testified that he believes that [the
              Petitioner] did have some difficulty understanding some of the
              nuances of the law pertaining to possession and how it can be
              actual and how it can be constructive, and the Court understands
              that. Some law students sometimes have a hard time
              understanding all the ways that you can be in possession of
              something without actually having your hands on it.

                     Trial counsel has testified that they spoke about it
              repeatedly, and that he talked with him at least 12 to 15 times.
              ...

                     Each time they talked about the charge, each charge, the
              range of punishment, the possible penalties he could get, the
              possibilities of getting consecutive sentencing, which would
              have been an important topic because with 18 prior convictions
              the defendant would certainly qualify under several of the
              statutory criteria for consecutive sentencing when there are
              multiple convictions, which is what this would’ve been.

                      And so the Court will find that the evidence does not
              support the . . . petitioner’s contention that counsel failed to
              properly advise him even though the Court does accept that
              some concepts–some legal concepts are difficult to understand.
              But it does appear that it was explained to him as thoroughly as
              could be done.

        The record shows that the Petitioner provided the only testimony regarding his
“misunderstanding” of the charges against him and the applicable law. Counsel testified that
he met with the Petitioner over twelve times and each time he explained the law applicable
to the Petitioner’s case to ensure that the Petitioner understood it. The post-conviction court
credited the testimony of counsel and determined that counsel was in no way deficient.

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Nothing in the record preponderates against the determination of the post-conviction court.
Accordingly, the Petitioner has failed to show deficient performance or prejudice arising
therefrom. He is not entitled to relief on this issue.

        II. Guilty Plea. As previously noted, the Petitioner apparently contends that he was
coerced into entering his guilty pleas based on counsel’s failure to properly advise him of the
applicable law. The State counters that the Petitioner entered knowing and voluntary guilty
pleas “[b]ased on counsel’s testimony that he explained the charges and the plea agreement
to the petitioner, as well as the [State and court’s] colloquy at the plea hearing[.]” We agree
with the State.

       When analyzing the validity of a guilty plea, we follow the federal landmark case of
Boykin v. Alabama, 395 U.S. 238 (1969), and the Tennessee landmark case of State v.
Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on other grounds by rule as stated in
State v. Wilson, 31 S.W.3d 189, 193 (Tenn. 2000). State v. Pettus, 986 S.W.2d 540, 542
(Tenn. 1999). In Boykin, the United States Supreme Court held that a trial court may not
accept a guilty plea unless there is an affirmative showing that the guilty plea was “intelligent
and voluntary.” 395 U.S. at 242. When accepting a guilty plea, the trial court is responsible
for “canvassing the matter with the accused to make sure he has a full understanding of what
the plea connotes and of its consequence.” Id. at 244. In Mackey, the Tennessee Supreme
Court held that “the record of acceptance of a defendant’s plea of guilty must affirmatively
demonstrate that his decision was both voluntary and knowledgeable, i.e., that he has been
made aware of the significant consequences of such a plea; otherwise, it will not amount to
an ‘intentional abandonment of a known right.’” 553 S.W.2d at 340.

        The Tennessee Supreme Court has emphasized that a plea is not voluntary if it is the
result of “‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant
threats . . . .’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395
U.S. at 242-43). A trial court must look at a number of circumstantial factors before
determining whether a guilty plea is voluntary and intelligently made. Id. These factors
include “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.” Id. (citing
Caudill v. Jago, 747 F.2d 1046, 1052 (6th Cir. 1984)).

       In regard to this issue, the post-conviction court determined that the Petitioner failed
to present any evidence supporting his claim that he did not understand the nature and



                                               -8-
consequences of entering his guilty pleas. After noting the Petitioner’s extensive history in
the criminal justice system, the post-conviction court stated:

                       [T]he Court has reviewed the transcript of the plea
              procedure itself and it is abundantly clear that the attorney
              general clearly announced the agreement, clearly announced that
              [the Petitioner] was pleading guilty to possession with intent to
              sell or deliver. [The Petitioner] was present, he heard that, the
              evidence before this Court, and today the testimony, as well as
              the transcript, indicate that [the Petitioner] couldn’t have helped
              but hear that, that he was pleading guilty to possession with
              intent, and his attorney entered a plea of guilty for him. And
              that . . . [the Petitioner] went through the entire procedure and
              answered the questions propounded by the Court to make sure
              that he understood what he was doing, and that he understood
              what rights he was giving up, and that he was pleading guilty
              because he was in fact guilty. And he answered those questions
              in the affirmative.

                     So from the testimony of the witnesses and the transcript
              of the plea procedure itself, this Court cannot find that trial
              counsel was deficient in any way. That [the Petitioner] was
              given a lot of advice, sound advice, and that certainly there’s no
              evidenced that he’s prejudiced. In fact, all the evidence suggests
              that had the State not agreed to do a plea bargain, [the
              Petitioner] was quite possibly looking at a much worse result
              than he ended up with.

       The record shows that the trial court followed the guidelines of Rule 11(b) of
Tennessee Rules of Criminal Procedure and thoroughly questioned the Petitioner about the
terms of the plea agreement and consequences of his guilty plea. In response, the Petitioner
acknowledged that he understood and stated that his counsel had explained the plea
agreement to him, that he was satisfied with counsel’s representation, and that he was
entering the plea freely, knowingly and voluntarily. Prior to his entering his plea, the
prosecutor announced that the Petitioner would “enter a guilty plea in this case to count one,
possession with intent to sell a schedule II controlled substance more than 26 grams,” and
the “recommended sentence would be eight years to serve at 30 percent.” The court then
asked the Petitioner if “the agreement that was announced by the attorney general . . . [was
his] understanding of the agreement in [his] case,” and the Petitioner agreed. The record



                                              -9-
supports the post-conviction court’s determination that the Petitioner’s guilty pleas were
knowingly and voluntarily entered. Accordingly, the Petitioner is not entitled to relief.

                                        CONCLUSION

      Upon review, we affirm the judgment of the post-conviction court.




                                                  ______________________________
                                                  CAMILLE R. McMULLEN, JUDGE




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