         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs May 18, 2005

                   YOLANDO ODOM v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                         No. 78355     Richard Baumgartner, Judge



                     No. E2004-02286-CCA-R3-PC - Filed August 19, 2005


The Appellant, Yolando Odom, appeals the Knox County Criminal Court’s denial of his petition for
post-conviction relief. Under the terms of a plea agreement, Odom pled guilty to one count of
robbery and accepted an eight-year sentence as a Range II offender, despite only meeting the
statutory criteria for a Range I offender. On appeal, Odom contends that his plea was not knowingly
and voluntarily entered due to trial counsel’s ineffectiveness in failing to inform him of possible
defenses at trial and in failing to review the proof with respect to the elements of the indicted offense
of aggravated robbery. Following review of the record, we affirm the denial of the petition.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the Appellant, Yolando Odom.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Marsha Mitchell, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

        The Appellant’s conviction stems from his participation in the robbery of the victim, Leona
Ziegler, in May 2001. The victim’s purse was taken by two of the Appellant’s co-defendants,
resulting in serious injuries to the elderly victim. The Appellant’s role in the robbery involved
driving the co-defendants to and from the crime scene.

       On February 7, 2003, the Appellant pled guilty under the terms of a plea agreement to
robbery, a Class C felony. As part of the agreement, the State agreed to reduce the charge of
aggravated robbery to simple robbery, in exchange for the Appellant accepting an eight-year sentence
as a Range II offender, despite only meeting the statutory requirements for Range I. The agreement
further provided that the manner of service of the eight-year sentence would be submitted to the trial
court for determination. Following a sentencing hearing, the trial court imposed an eight-year
sentence of split confinement with service of one year in jail. The Appellant was given one week
to report to the jail to begin service of his sentence, but he failed to appear. As a result, the trial court
revoked the Appellant’s probation and ordered that the entire eight-year sentence be served in the
Department of Correction.

         On October 24, 2003, the Appellant filed a pro se petition for post-conviction relief, which
was later amended after the appointment of counsel. The petition alleged that the Appellant’s guilty
plea was not knowingly and voluntarily entered based upon counsel’s ineffectiveness. A hearing was
held on August 30, 2004, at which only the Appellant and trial counsel testified. The Appellant
testified that his participation in the robbery was limited to driving his co-defendants to and from the
scene and that he never exited the vehicle or had any contact with the victim. The Appellant asserted
that he accepted the plea agreement because trial counsel told him it was “the best offer he was going
to get.” He further testified that he did not understand the difference between aggravated robbery
and simple robbery, did not understand sentencing ranges and the effect they would have on his
sentence, and did not discuss with trial counsel any possible defenses or mitigation which might have
been available had he proceeded to trial. However, the Appellant also stated on the record that he
wanted a sentence for which probation was available, but he maintained that if he had been properly
informed, he would have proceeded to trial.

        Trial counsel testified that he spoke with the Appellant regarding the sentencing ranges and,
further, that the Appellant only qualified as a Range I offender based upon his prior criminal history.
He testified that the plea agreement to an eight-year sentence was in exchange for the State reducing
the charge to simple robbery, a crime for which probation was available, rather than aggravated
robbery for which probation was not available. Trial counsel also discussed with the Appellant his
concerns that the State could secure a conviction for aggravated robbery if the case went to trial due
to the victim’s age and the serious injuries which she suffered. At the conclusion of the proof, the
post-conviction court denied relief, finding that trial counsel was not ineffective and that the guilty
plea was entered knowingly and voluntarily. This appeal followed.

                                                 Analysis

        In order to succeed on a post-conviction claim, the Appellant bears the burden of showing,
by clear and convincing evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-
110(f) (2003). On appeal, the Appellant challenges the knowing and voluntary nature of his plea
based upon trial counsel’s ineffectiveness. His principal assertion appears to be that he did not
understand the nature of the proof that the State would be required to present in order to convict him
of aggravated robbery as opposed to simple robbery. He contends that had he known this difference,
he would not have accepted the plea agreement, despite being told that it was the best offer he would
get.


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        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, 91 S. Ct. 160, 164 (1970). 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 also 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).

         Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent
that it affects the voluntariness of the plea. In this respect, such claims of ineffective assistance
necessarily implicate that guilty pleas be voluntarily and intelligently made. Hill v. Lockhart, 474
U.S. 52, 56, 106 S. Ct. 366, 369 (1985) (citing North Carolina v. Alford, 400 U.S. at 31, 91 S. Ct.
at 164).

        To succeed in a challenge for ineffective assistance of counsel, the Appellant 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, 104 S. Ct. 2052, 2064 (1984), the Appellant must establish (1)
deficient representation and (2) prejudice resulting from the deficiency. In the context of a guilty
plea, to satisfy the second prong of Strickland, the Appellant 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.” Hill v. Lockhart, 474 U.S. at 59, 106 S. Ct. at 370; see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        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)); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
conclusions of law, are reviewed under a purely de novo standard, with no presumption of
correctness. Fields, 40 S.W.3d at 458.



                                                 -3-
After hearing the evidence presented, the post-conviction court found:

       [The Appellant] testifies today that he did not know that he was pleading as
a range II offender. . . .

        [Trial counsel’s] recollection of the conversation differs with that, and indeed,
a review of the plea agreement establishes without question that during the Court’s
colloquy with [the Appellant] that I clearly reviewed with him the fact that he was
pleading as a range II offender and that the - - meaning that if you’d have to serve the
sentence, you would have to serve at least 35 percent of it before being eligible for
release. . . .

       So the first allegation, that [the Appellant] was not aware of the fact that he
was pleading as a range II offender, I find not to be supported by the evidence in this
case.

....

[I]t is the Court’s belief that [the Appellant] was satisfied with this agreement until
he violated the terms of his sentence and became an absconder and was ultimately
picked up and sent to the penitentiary.

....

        I think that [the Appellant] knew exactly what he was doing when he took this
sentence. I think he understood that he was having the range increased in exchange
for having the sentence reduced - - or having the charge reduced from an aggravated
nonprobatable felony to a probatable felony, and that was his objective, to get
probation in this case.

        [The Appellant] also says he really wasn’t responsible for this robbery. The
allegations in the original warrant indicate that he drove this individual, the person
who actually snatched the purse, to the scene and drove away. And I asked him at
the sentencing hearing, I said, “How did you get mixed up in this robbery. . . ?” And
he said, “Well, I didn’t know” - - he said, “Well, I knew about it. . . .”

         Well, I think it’s pretty clear that he knew exactly what was going on that day,
and I think for that reason, his allegation . . . that there aren’t any mitigating factors
to this robbery charge and that he wasn’t aware that - - that there were mitigating
factors that would have allowed him to escape culpability, I guess, for the aggravated
robbery just does not - - is not borne out by the facts. So I do not find that to be a
basis for relief in this case.



                                           -4-
       ....

                I think [the Appellant] made a voluntary decision back in February of 2003,
       and I do not find any basis to grant post-conviction relief in this case. I think [trial
       counsel] lived up to the standards of counsel that we expect in this jurisdiction and
       is not in violation of any case law that would find him deficient in this matter.

        The post-conviction court clearly concluded that the Appellant had received the effective
assistance of counsel and, consequently, entered his plea knowingly and voluntarily. The proof does
not preponderate against these findings. Trial counsel’s testimony at the hearing contradicted that
of the Appellant’s. On cross-examination, trial counsel testified that he did explain the difference
between aggravated robbery and simple robbery to the Appellant. Moreover, trial counsel testified
that he had explained the sentencing ranges to the Appellant prior to the Appellant’s accepting the
plea. He further testified to informing the Appellant that he would have to accept the higher range
in order to get the plea agreement offered by the State. Trial counsel also explained to the Appellant
that the offense of aggravated robbery was not a probatable offense, as opposed to robbery which
was. By the Appellant’s own admission, he wanted to obtain probation, a goal discussed between
trial counsel and the Appellant. Moreover, at the guilty plea hearing, the trial court explained the
consequences of pleading as a Range II offender prior to accepting the Appellant’s plea. The post-
conviction court accredited trial counsel’s testimony that he fully advised the Appellant of the
options before him, and we will not reweigh or reevaluate the evidence or substitute our inferences
for those drawn by the trial court. Henley, 960 S.W.2d at 578-79. Questions concerning the
credibility of witnesses, the weight and value given to their testimony, and the factual issues raised
by the evidence are to be resolved by the trial court. Id. at 579.

                                          CONCLUSION

         After review, we find nothing in the record to contradict the post-conviction court’s finding
that trial counsel was not ineffective and that the plea was knowing and voluntary. Finding the
Appellant’s allegations without merit, the judgment of the post-conviction court is affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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