        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs June 3, 2014

                 FELTON McNEAL v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                          No. 10-00295   Chris Craft, Judge


                No. W2013-02014-CCA-R3-PC - Filed October 10, 2014


The petitioner, Felton McNeal, appeals the denial of his petition for post-conviction relief,
arguing that his guilty pleas were unknowingly and involuntarily entered without the
effective assistance of counsel. After review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which C AMILLE R. M CM ULLEN,
J., joined. J EFFREY S. B IVINS, J., Not Participating.

Michael R. Working, Memphis, Tennessee, for the appellant, Felton McNeal.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; and Katie Ratton, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS

       In January 2010, the petitioner was indicted for various offenses arising out of a large-
scale drug conspiracy. The petitioner pled guilty to three counts of selling cocaine in an
amount greater than .5 grams, Class B felonies; four counts of conspiracy to sell cocaine in
an amount greater than .5 grams, Class C felonies; conspiracy to commit aggravated
burglary, a Class D felony; two counts of conspiracy to sell Hydrocodone, Class D felonies;
and conspiracy to sell cocaine in an amount less than .5 grams, a Class D felony. The trial
court sentenced the petitioner as a multiple offender to concurrent sentences for a total of
eighteen years.
At the guilty plea hearing, the State summarized the underlying facts as follows:

      The facts of these matters had they gone to trial, first generally, officers
were alerted to a large scale drug network, which included as one of its
members, [the petitioner].

       [The petitioner] was contacted at a telephone number . . . by a
confidential source in concert with police officers. They arranged a purchase
of cocaine from [the petitioner] in the amount of two ounces. On Friday, June
19, 2009, [the petitioner] showed up at the exchange and sold officers what
later tested positive for two ounces, fifty-eight-point-one-two-grams, of
cocaine, in exchange for $2,000.00 in marked funds.

       Thereafter, [an] officer obtained a court ordered wire tap . . . for [the
petitioner]’s telephone. The various cases that follow deal with calls and
surveillance which occurred over the next two months on [the petitioner]’s
telephone.

       On August the 6th of 2009, [the petitioner] communicated with another
individual with regard to that other individual going to a house without the
consent of the owner and breaking into the house to take various merchandise
that was inside the house.

       Officers were sent to the location and stopped the burglary before it
happened, however, the individual that [the petitioner] was contacting with
went to the home to commit the burglary. . . .

       On July the 30th of 2009, officers monitored phone calls in which [the
petitioner] communicated with James Thomas, in which he conspired with Mr.
Thomas to sell him half an ounce of cocaine.

       On July 26th of 2009, officers monitored calls between [the petitioner]
and an unknown party, using a certain telephone number in which [the
petitioner] conspired with the individual and met the individual in order to sell
him a very small amount of cocaine, approximately, half a gram of cocaine.

      On July 29th of 2009, officers monitored calls between [the petitioner]
and an unknown individual in which [the petitioner] conspired to sell forty
Hydrocodone pills to that individual.



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              On July the 30th of 2009, officers monitored calls between [the
       petitioner] and an individual who identified himself as Robert, in which [the
       petitioner] conspired with that individual to provide one-point-seven grams of
       cocaine, half of a what [the petitioner] referred to as an eight ball.

                On July the 30th of 2009, [the petitioner] conspired with Keith Rankin,
       Sr., to provide him three-point-five grams of cocaine. [The petitioner] and Mr.
       Rankin[] traveled to meet each other for the cocaine exchange.

              On August the 1st of 2009[,] [the petitioner] conspired with an
       individual by the name of Marcus to provide him half of an eight ball of
       cocaine, it’s approximately one-point-seven grams. The individuals, again,
       traveled to meet each other.

             On August the 3rd of 2009[,] [the petitioner] conspired with Michael
       Waters with regard to purchasing Lor[tab] from [the petitioner].

                Most of the facts of all of the cases are the same, if the [S]tate went to
       trial[,] we would present telephone calls which [the petitioner] spoke with
       these various individuals. Most of these incidents here were also surveilled by
       officers who followed [the petitioner] to and from various locations as he was
       delivering the cocaine, or meeting the various parties.

             In each of the deals it’s more than just talk on the telephone, there’s
       some overt act that either [the petitioner] or his co-conspirator took toward
       completion of those various conspiracies.

              ....

               . . . [The petitioner] gave a statement of admission with regard to his
       activities at the time he was arrested.

               . . . [The petitioner] has provided assistance and will continue, or at
       least, that is expected, to continue to provide assistance in various matters.

       At the plea hearing, the petitioner told the court that counsel explained everything in
the waiver of jury trial and request for acceptance of guilty plea petitions to him, and he
understood the contents. He said that he understood the charges against him and to what he
was pleading guilty. The petitioner acknowledged that he understood his right to a trial and
what that would entail. The petitioner acknowledged that he understood the possible

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sentences he faced for the various offenses to which he was pleading. The petitioner stated
that he understood that he was giving up his right to a trial by pleading guilty and said that
he wanted to plead guilty. He agreed that no one was forcing him to plead guilty or
promising him anything in exchange for doing so.

       The petitioner stated that counsel had received the discovery and discussed his case
“completely” with him. The petitioner told the court that he was satisfied with counsel’s
representation. The court read the guilty plea petition aloud in segments, with the petitioner
acknowledging his understanding and consent to the terms after every segment and agreeing
that he had signed it. The petitioner acknowledged his understanding that the court would
determine his sentence. Afterward, the court again received affirmative answers from the
petitioner when asked if the petitioner agreed to the plea and had no questions. The
petitioner averred to the court that he wanted to plead guilty. The trial court ruled that the
petitioner understood his plea and the process, and he was entering his plea freely and
voluntarily without threat or coercion.

        The petitioner filed a timely petition for post-conviction relief and, following the
appointment of counsel, an amended petition was filed. In his petitions, the petitioner
argued, among other things, that he received the ineffective assistance of counsel and his
guilty pleas were unknowingly and involuntary entered. The post-conviction court conducted
an evidentiary hearing at which counsel testified that he had been a defense attorney for
thirteen years. Counsel said that the petitioner’s case was part of a “pretty huge drug
conspiracy case” involving 100 indictments, of which the petitioner was personally
mentioned “in about a dozen.” Counsel recalled that the petitioner’s case was somewhat
unusual in that the petitioner had already “given a full confession to OCU” before his
representation began and there were “hours and hours of wire tap on [the petitioner]’s
phone[.]” Counsel said that, although he did not play the tapes of the wire tap for the
petitioner, counsel “went over them [him]self and . . . talked to [the petitioner] about the
subject matter on there.” Counsel stated that because the petitioner was eager to cooperate
with the State in order to get out of jail and “help himself out,” counsel and the prosecutor
met with the petitioner “multiple times” and discussed the evidence the State had against
him. Counsel also discussed the difference between consecutive and concurrent sentencing
with the petitioner.

       Counsel testified that, according to the terms of the plea agreement, the petitioner was
to plead guilty but be sentenced at a later time. Depending on the petitioner’s level of
cooperation with the State, the State would make a recommendation to the trial court as to
the sentence the petitioner should receive or the trial court could determine the petitioner’s
sentence. The State also agreed to reduce the petitioner’s bond from almost $700,000 to
$20,000. In exchange, the petitioner was to keep in touch with his OCU officer and counsel,

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as well as have periodic status court dates. However, the petitioner did not abide by the
conditions of his bond, including missing court appearances, not staying in contact with the
agent or counsel, and then disappearing for approximately six months. A warrant was
eventually issued for his arrest.

       Counsel testified, with regard to sentencing, that the State filed notices to seek
consecutive sentencing and of enhancement factors. Counsel said that he did not file any
responses because “if we went forward with a contested sentencing hearing, . . . [the
petitioner] . . . would probably have gotten a lot more time from the Judge than anything I
would have worked out.” He did not file any mitigating factors because his investigation did
not reveal any.

       Counsel testified that the focus of his representation was on negotiating the best deal
he could for the petitioner, not preparing for a contested matter as the petitioner “was
adamantly, adamantly against going to trial.” He said that he and the petitioner “went over
the indictments, we went over the discovery. We even had the prosecutor that had
prosecuted him and had reviewed all the discovery come in and meet with him and go over
the discovery with him as well.” Counsel estimated that he met with the petitioner between
five and fifteen times while the petitioner was in custody, but the petitioner continually failed
to keep his appointments after he was released from jail.

        On cross-examination, counsel stated that he included an attachment to the guilty plea
as an extra step of ensuring that the petitioner understood the implications of his plea.
Counsel said that the petitioner never indicated that he wanted a trial and was candid with
counsel that he knew he potentially faced a long term. The petitioner faced the possibility
of sixty years, but counsel and the State were able to agree on a sentence of eighteen years.

        The prosecutor assigned to the petitioner’s case testified that he met with the
petitioner four or five times over the course of the matter. He asserted that, without the plea
negotiated by counsel, the petitioner would have likely been sentenced to thirty-two or thirty-
four years instead of eighteen. The prosecutor stated that, although counsel did not present
a written notice of mitigating factors, counsel presented him with mitigating considerations
which were taken into account in their negotiations.

        On cross-examination, the prosecutor stated that he agreed with counsel’s assessment
that the petitioner was intelligent and understood the situation he was in. He said that the
petitioner understood the possible sentence he faced and recalled that, when he asked the
petitioner what would happen if he did not cooperate, the petitioner said, “You’re going to
bury me.” The prosecutor stated, “I don’t think there’s any question in the world as to
whether or not [the petitioner] understood the situation or understood what he was facing.

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I had absolutely no doubt that he understood those things.”

       The petitioner testified that he did not have the opportunity to go over the evidence
against him and only told the trial court that he had at the plea hearing because he “was just
following suits of my lawyer.” He elaborated that he “was just trying to speed the process
and me go on home.” He maintained that he did not have a chance to discuss the evidence
with counsel or talk about what was going on in his case. He said that he did not have a
chance to listen to any of the surveillance tapes. The petitioner admitted that he had given
a confession to officers, which he had a chance to review.

       The petitioner acknowledged that he had previously entered guilty pleas in five other
felony drug cases and, because of this, knew the consequences involved with guilty pleas.
However, he said that he “didn’t know [he] was going to get that much time[.]” The
petitioner conceded that counsel met with him several times prior to the guilty plea, as well
as a couple of times between the plea and sentencing, before the petitioner fell out of touch.

       The petitioner testified that he disagreed with his sentence in that he believed his
conspiracy convictions were for the same offenses as the convictions for selling the drugs.
He also felt there was a vast disparity in the length of sentence for his various offenses.
However, he admitted that he signed fifteen or twenty pieces of paper agreeing to his
sentence but said that, after conducting research, he felt his sentence was “uncalled for” and
“too much time.”

        On cross-examination, the petitioner admitted that he met with counsel “many, many
times” and spoke with counsel in great detail about his case, and he told counsel that he did
not want to go to trial. He acknowledged that he did not uphold his part of the agreement
with the State. He admitted that he was “just unhappy that [his sentence was] 18 years.” The
petitioner said that counsel was “a great lawyer” and did everything he wanted him to do.
He agreed that the only reason he was in court was because he felt that his sentence was
excessive but that counsel “really didn’t have much to do with that” because he pled open
to the court.

       Following the hearing, the post-conviction court denied relief. The court found that
there was no deficiency in counsel’s performance or any prejudice to the petitioner due to any
alleged deficiency. The court further found that the petitioner’s pleas were “freely and
voluntarily made, and knowingly and intelligently entered into, with an understanding of the
nature and consequences of his plea[s].”




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                                          ANALYSIS

      The petitioner argues that his guilty pleas were unknowingly and involuntarily entered
without the effective assistance of counsel.

        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 (2012). 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 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); State v. Burns, 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 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)

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(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 or she 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).

       Before a guilty plea may be accepted, there must be an affirmative showing in the trial
court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242
(1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a showing that
the defendant was made aware of the significant consequences of the plea. State v. Pettus,
986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340). 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) the defendant’s familiarity with criminal
proceedings; (3) whether the defendant 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 the defendant 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.

        Again, the petitioner argues that his guilty pleas were unknowingly and involuntarily
entered without the effective assistance of counsel. He asserts that counsel did not review
discovery with him, causing him to not “make a properly informed decision” in pleading
guilty. He also asserts that counsel failed to prepare for the sentencing hearing, leaving him
“with a false choice . . . [to] proceed with an attorney who was unprepared, or . . . accept an
extremely harsh sentence for crimes that nearly all lacked any physical proof.”

       We have reviewed the record and determine that the petitioner’s claims are wholly
unsupported by the record. Counsel testified to his investigation of the case and review of
the evidence, and the post-conviction court determined that the proof at the hearing did not

                                               -8-
show any deficiency in counsel’s performance. The testimony at the hearing showed that the
petitioner consistently expressed an urgent desire to plead guilty, and the petitioner had
previously entered guilty pleas and was aware of the consequences that followed. The
petitioner himself testified at the evidentiary hearing that counsel was a “great lawyer” and
had done all he could to help him and that he was simply unhappy with the sentence he
received, which was well within the purview of the court to impose.

        Even though the petitioner faced a sentence of up to sixty years, counsel negotiated
a sentence of eighteen years with the State that was ultimately accepted and imposed by the
trial court. Counsel did not file an official notice of mitigating factors, but he discussed
mitigating considerations with the State in their negotiations. The record shows that the
petitioner, who was “very intelligent” and familiar with criminal proceedings, was
represented by competent counsel, who met with him often and discussed the evidence
against him, and that he pled guilty because he was admittedly guilty and stood to receive a
greater sentence if convicted at trial. The transcript of the guilty plea hearing showed that
the trial court went over the petitioner’s rights, the ramifications of pleading guilty, the nature
of the charges against him, and the range of sentencing. Based on the totality of
circumstances, we conclude that the petitioner entered knowing, voluntary, and intelligent
pleas and failed to prove that counsel performed deficiently or that any deficiency affected
the knowing and voluntary nature of his pleas.

                                        CONCLUSION

        Based on the foregoing authorities and reasoning, we conclude that the petitioner has
failed to meet his burden of showing that he received ineffective assistance of counsel or that
his guilty pleas were unknowing and involuntary. Accordingly, we affirm the denial of the
petition for post-conviction relief.


                                                      _________________________________
                                                      ALAN E. GLENN, JUDGE




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