         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  October 24, 2007 Session

        CHRISTOPHER JAMES DODSON V. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Williamson County
                       No. CR011596     Robert E. Lee Davies, Judge



                  No. M2007-00643-CCA-R3-PC - Filed March 31, 2008



The Petitioner, Christopher James Dodson, pled guilty to facilitation of robbery, a class D
felony. The trial court sentenced the Petitioner, a Range I offender, to four years to be served at
thirty percent. The Petitioner filed a petition for post-conviction relief in which he alleged that
the parties and the trial court agreed at sentencing that the Petitioner should receive thirteen
months of jail credit, which he was not given by the Tennessee Department of Correction.
Because he was not given this jail credit, the Petitioner alleged he was entitled to post-conviction
relief because his guilty plea was not voluntarily entered, and he had received the ineffective
assistance of counsel. The post-conviction court dismissed the petition after a hearing. The
Petitioner appeals that dismissal, and we affirm the judgment of the post-conviction court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which J.C. MCLIN , J., joined.
JOSEPH M. TIPTON , P.J, filed a dissenting opinion.

Samuel B. Dreiling, Franklin, Tennessee, for the Appellant, Christopher James Dodson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Cameron L. Hyder, Assistant Attorney General; Ronald L. Davis, District Attorney General;
Derek K. Smith, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                            OPINION
                                             I. Facts

        The Petitioner was originally indicted for robbery and theft of property valued under
$500. At the Petitioner’s guilty plea hearing, the State asserted, and the Petitioner agreed, that
the facts supporting the guilty plea were as follows:
       We would offer proof, Your Honor, in case number II-CR07240, that the victim
       in this cause was at a video store located here in Williamson County, that the
       victim was robbed, not at gun point but rather she was sort of accosted, thrown
       down to the ground by an individual by the name of Samuel Bennett, [we] would
       offer proof that the defendant offered Samuel Bennett the . . . hooded sweatshirt
       that Mr. Bennett . . . used in the commission of the offense, and this would
       conclude in large manner our proof at trial.

The State then informed the trial court of the agreement that it had reached with the Defendant,
stating:

       In case number II-CR07420, to the defendant’s plea of guilty to the offense of . . .
       facilitation of robbery, a Class D Felony, the agreement is four years as a Range I
       Standard Offender. This sentence is to be run concurrently with II-CR08526, and
       II-CR08527, but it is to run consecutively to his current sentence. And that
       concludes our agreement.

The trial court ensured that the Defendant wished to plead guilty, found the Defendant guilty,
and then stated the following when sentencing the Defendant:

       I sentence you to four years to run concurrently with the other two cases [in
       which you are currently pleading guilty], but consecutive[ly] to your current
       sentence that you’re serving now, and likewise, you still get your pre-trial jail
       credit from March 30, 2004.1

       At the hearing on the Petitioner’s petition for post-conviction relief, the Petitioner’s
attorney noted that the Petitioner had made parole on his sentence and that he was no longer
incarcerated. The Petitioner’s attorney stated that he informed the Petitioner that it was not
within the court’s power to grant the pretrial jail credit that the Petitioner thought he would
receive under the original agreement.

        The Petitioner’s counsel (“Counsel”) during the guilty plea proceedings testified that she
represented the Petitioner on this charge, and she was aware that he filed two petitions to have
her removed as his counsel, which were both denied. She said that the Petitioner never
expressed to her concerns about a speedy trial, and, in fact, he did not want a trial at all. Counsel
also testified that she never told the Petitioner that she would “get him convicted” as he claimed.
Counsel said that she negotiated a plea deal for the Petitioner. The State sought to have the
Petitioner sentenced to a “significant” amount of time based upon the Petitioner’s prior record.
The Petitioner appeared in court to enter a plea, and then he refused to enter the plea.

       Counsel recalled the specifics of the plea deal and that she got the State to agree to
sentencing the Petitioner as a Range I offender to four years. The Petitioner was in custody at


       1
           The trial court sentenced the Defendant on April 25, 2005.

                                                         -2-
this time, and the deal included that his sentence would run concurrently to two other
convictions and consecutively to the sentence that he was currently serving. He was to receive
jail credit for every day that he was in jail, and TDOC was to be responsible for how jail credit
was assigned.

        Counsel identified Tennessee Rule of Criminal Procedure 32(c)(3)(a), which provides
that consecutive sentencing is mandatory when a trial court sentences a defendant for a felony
committed while the Petitioner was on parole for another felony. She then stated that she was
aware that the Petitioner was pleading guilty to a felony, facilitation of robbery, he committed
while on bond for another felony. She did not think Rule 32 would make the Petitioner
ineligible for pretrial jail credit for the thirteen months he served before the guilty plea hearing.
Counsel agreed that the guilty plea transcript reflected that the parties thought the Petitioner
would get his pretrial jail credit, and she said the credits were “very important” to the Petitioner.

         On cross-examination, Counsel testified that she went over this case with the Petitioner
multiple times and that she spoke with him numerous times on the telephone. She said that, on
several occasions, she spoke with him for so long that the jail cut off his telephone service.
Counsel recalled a time when the Petitioner threatened to kill her, but she did not request to be
recused from representing him because she thought he was upset when he threatened her.
Counsel said she still zealously represented the Petitioner, and she told him that he should go to
trial if the State did not reduce the charge to facilitation of robbery. The State subsequently
agreed to the Petitioner’s pleading guilty to facilitation of robbery and being sentenced as a
standard offender. Counsel said that, at the time, all the parties were aware that the Petitioner
committed this offense while he was on parole, as evidenced by the State’s demand that the
Petitioner’s sentence run consecutively to the two-year sentence he was serving.

        Counsel said that the Petitioner came to court to plead guilty, but he changed his mind,
and the trial court set a date for trial. The Petitioner later sent a letter to the judge apologizing
for his behavior in court and asking if he could please enter his plea. The trial court agreed, and
the Petitioner entered his plea. Counsel agreed that the negotiated plea included that the
Petitioner was to receive some pretrial jail credit, but his sentence was to run consecutively to his
current sentence. Counsel said that she explained to the Petitioner how his sentences would run
and that he understood this explanation.

        The parties stipulated to the fact that the Petitioner was incarcerated between March 29,
2004, and April 24, 2005, and that the time he served was not credited towards his sentence in
this case. The time was, rather, served against the two-year sentence that he had for a prior
conviction.

        The Petitioner testified about his pretrial jail credits, saying it was his understanding that
he would receive 391 days pretrial jail credit plus 104 pretrial behavioral credits, for a total of
sixteen months of credit. He said that he did not enter a plea before April 25, 2005, because
“nobody . . . want[ed] to put [the jail credits] in writing as part of the plea bargaining.” He said
that he would not have pled guilty had he known that he would not receive this pretrial jail
credit. On cross-examination, the Petitioner agreed that he did not mention pretrial jail credits in

                                                 -3-
his letter asking the judge to accept his plea. He also said that he received credit for the time that
he served towards a two-year sentence he received for another conviction.

       Based upon this evidence, the post-conviction court found:

       I want to first address [the Petitioner’s] initial ground . . . that his plea was not
       knowingly and voluntarily entered.

               In reviewing the law that’s applicable to this type of a claim, that is the
       knowing and voluntary nature of the guilty plea, the standard was and remains in
       the State of Tennessee and the United States for that matter, but the plea
       represents a voluntary and intelligent choice among the alternative courses of
       action open to the defendant.

                In making that determination this Court must look to the totality of the
       circumstances. A Court, such as this Court, charged with determining whether a
       plea was voluntary and intelligently entered, must look to the very circumstantial
       facts . . . .

               ....

               The Court finds based upon the evidence before the Court, the evidence
       does not support a finding that his plea was involuntarily entered or the result of a
       coerced plea. It was anything but involuntary. In support of that, I point to the
       exhibits that have been introduced today, including Exhibit 2 which clearly states
       that the defendant certifies to the Court at that time that he fully understands the
       nature of his actions here today, and that his actions are voluntary and not the
       result of force, threat or promise of any nature.

               Additionally, his claim of involuntary plea is not supported by Exhibit 3
       which is the transcript of the April 25, 2005 entry of the plea. Neither of these
       support a finding even in this Court’s view by a preponderance of the evidence let
       alone clear and convincing that this plea was somehow the result of conduct that
       the defendant or petitioner didn’t want to participate in. This was a voluntary
       plea. And therefore, on the ground of involuntariness of the guilty plea, the Court
       finds that the petitioner has failed to meet his burden.

         Further, the post-conviction court found that Counsel was not ineffective. The court
noted that Counsel met with the Petitioner on several occasions, took several phone calls from
him, adequately reviewed the discovery, discussed the Petitioner’s situation on numerous
occasions with him, fully explained his options, and gave “solid” counsel on a conviction for
facilitation as opposed to the underlying charge of robbery. The court also found that Counsel
effectively assisted the Petitioner in negotiating a plea that was very favorable to him. After
finding that counsel was not ineffective, the court also found that the Petitioner had not been
prejudiced.

                                                 -4-
       The post-conviction court then explained:

              And finally, I think, the Court needs to make this finding that a post
       conviction petition is designed to redress constitutional violations, not technical
       complaints about how the Department of Correction computes the
       commencement dates or any other type of jail credits of a sentence.

              In general terms this whole issue of ineffective assistance of counsel and
       involuntary plea revolves around Mr. Dodson’s claim that he did not receive
       proper pretrial jail credits or the application of credits. This alleged problem is
       not one that rises to a proper ground for post conviction release. I think, our law
       in Tennessee is clear on that. . . .

               ....

               For all of those reasons, I find that the [P]etitioner has failed to prove by
       clear and convincing evidence that he is entitled to post conviction relief on this
       matter, and the petition is denied.

It is from this judgment that the Petitioner now appeals.

                                           II. Analysis

        On appeal, the Petitioner contends that the trial court erred when it dismissed his petition
because: (1) Counsel was ineffective by not informing him of the direct consequences of his
conviction, namely that he could not receive credit for the days he spent in jail pursuant to
Tennessee Rule of Criminal Procedure 32; and (2) his guilty plea was not knowingly and
voluntarily entered because Counsel did not discuss the actual consequences of his pleading
guilty in that he and Counsel were both under the impression that he would receive the jail credit
towards his four-year sentence and not towards his two-year sentence.

        In order to obtain post-conviction relief, a petitioner must show that his or her conviction
or sentence is void or voidable because of the abridgment of a constitutional right. T.C.A. § 40-
30-103 (2003). The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2003). Upon
review, this Court will not re-weigh or re-evaluate the evidence below; all questions concerning
the credibility of witnesses, the weight and value to be given their testimony and the factual
issues raised by the evidence are to be resolved by the trial judge, not the appellate courts.
Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997). A post-conviction court’s factual findings are subject to a de novo review by this
Court; however, we must accord these factual findings a presumption of correctness, which can
be overcome only when a preponderance of the evidence is contrary to the post-conviction
court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-
conviction court’s conclusions of law are subject to a purely de novo review by this Court, with
no presumption of correctness. Id. at 457.

                                                -5-
         The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following two-prong
test directs a court’s evaluation of a claim for ineffectiveness:

       First, the [petitioner] 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 [petitioner] by the Sixth Amendment.
       Second, the [petitioner] must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive
       the [petitioner] of a fair trial, a trial whose result is reliable. Unless a [petitioner]
       makes both showings, it cannot be said that the conviction . . . resulted from a
       breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

        In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of competence
demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of
ineffective assistance of counsel, a petitioner must show that “counsel’s representation fell below
an objective standard of reasonableness.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)
(citing Strickland, 466 U.S. at 688 (1984)).

        When evaluating an ineffective assistance of counsel claim, the reviewing court should
judge the attorney’s performance within the context of the case as a whole, taking into account
all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149
(Tenn. Crim. App. 1988). The reviewing court must evaluate the questionable conduct from the
attorney’s perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). In doing so, the reviewing court must be highly deferential and “should indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a petitioner in a criminal case is not
entitled to perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only what is
constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States
v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been
ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). The fact that a
particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. House, 44 S.W.3d at 515 (citing Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996)). However, deference to matters of strategy and tactical choices applies only if
the choices are informed ones based upon adequate preparation. House, 44 S.W.3d at 515.

                                                 -6-
        If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90 S.W.3d
576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662, 665 (Tenn.
1994). When a petitioner makes a claim of ineffective counsel within the context of a guilty
plea, the petitioner must demonstrate a reasonable probability that, but for counsel’s deficiency,
the petitioner would not have pleaded guilty and would have insisted on going to trial. Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Manning v. State, 833 S.W.2d 635, 637 (Tenn. Crim. App.
1994).

        The Due Process Clause of the United States Constitution requires that guilty pleas be
knowing and voluntary. Id. When 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). The court
reviewing the voluntariness of a guilty plea must look to the totality of the circumstances. See
State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). The circumstances include:

         [T]he 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.

Blakenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (citations omitted). A plea resulting
from ignorance, misunderstanding, coercion, inducement, or threats is not “voluntary.” Id. The
United States Supreme Court has “never held that the United States Constitution requires the
State to furnish a defendant with information about parole eligibility in order for the defendant’s
plea to be voluntary.” Hill, 474 U.S. at 56.

        We understand the Petitioner’s complaint to be that, because he was sentenced as a
Range I offender to serve his time at thirty percent, if his 391 day jail credit had been applied to
his four-year sentence he would have only 48 days until possible release on that four-year
sentence.2 The TDOC instead applied these days to a two-year sentence the Petitioner received
for a prior conviction that was to be served prior to the service of the four year sentence at issue.
A copy of the judgment for the prior two-year sentence is not in the record. For argument sake,
however, if the Petitioner were sentenced to two years at thirty percent he would likely only



         2
         A four year sentence amounts to approximately 1461 days in jail. If this is served at thirty percent, this
amounts to actually serving 439 days.

                                                         -7-
serve 219 days,3 if he were paroled after serving thirty percent. Therefore, his argument seems
to be that, if the 391 days had been applied to his four-year sentence, he would have served 48
days plus 219 days (on the two year sentence) for a total of 267 days. However, because it was
applied to his two-year sentence, he was required to serve 439 days, or an additional 172 days.
The Petitioner asserts that, had Counsel properly informed him about the rule requiring that his
jail credits be applied to his two-year sentence, he would not have entered his guilty plea.

         The Petitioner contends that his plea was not knowing and voluntary because his trial
counsel was ineffective when explaining jail credits to him. As stated above, the Petitioner
would have to show he was prejudiced to be entitled to relief, and he has not done so. The
judgment of conviction from his two-year sentence is not included in the record. If that
judgment ordered the Petitioner, whose record is extensive, to serve his sentence as a career
offender, at sixty percent, or a violent offender, at one hundred percent, then the TDOC’s
application of his pretrial jail credit to that sentence, rather that the four-year sentence, would be
of no consequence. Further, there is no guarantee that an inmate obtain parole after serving the
allocated percentage. “The release eligibility date provided for in this section is the earliest date
an inmate convicted of a felony is eligible for parole . . . .” T.C.A. § 40-35-501(k) (2003). After
an inmate becomes parole eligible, release is not guaranteed. “Release on parole is a privilege,
not a right . . . .” T.C.A. § 40-35-503(b) (2003). The Criminal Sentencing Reform Act includes
the following criteria for denying release to a parole eligible inmate: (1) if there is substantial
risk that the defendant will not conform to the conditions of the release programs; (2) if the
release at that time would depreciate the seriousness of the crime or promote disrespect of the
law; (3) if the release would have a substantially adverse effect on institutional discipline; or (4)
if the inmate’s continued correction treatment, medical care, or vocation or other training in the
institution will substantially enhance the inmate’s capacity to lead a law-abiding life at a later
release time. Id.

        The Petitioner was made aware multiple times that his four-year sentence would be
served consecutively to his two-year sentence. The fact that he may have been eligible for parole
after serving thirty percent of either sentence, and the application of his jail credits to one
sentence rather than the other would have made his sentence potentially shorter, does not render
his guilty plea unknowing or involuntary.

                                                     III. Conclusion

       Based on the foregoing reasoning and authority, we affirm the judgment of the post-
conviction court.


                                                                       ________________________________
                                                                        ROBERT W. WEDEMEYER, JUDGE



       3
           Thirty percent of 730 days is 219 days.

                                                           -8-
