        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs July 27, 2010 at Knoxville

                     ERIC DAVIS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                       No. 2005-C-2271 Seth Norman, Judge




               No. M2009-01560-CCA-R3-PC - Filed November 18, 2010



The Petitioner, Eric Davis, appeals as of right from the Davidson County Criminal Court’s
denial of his petition for post-conviction relief. The Petitioner pled guilty to possession with
intent to sell 300 grams or more of cocaine, a Class A felony, and received a sentence of 15
years to be served consecutively to prior sentences. The Petitioner challenges the
performance of trial counsel and the voluntariness of his guilty plea. Following our review,
we affirm the judgment of the post-conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Fikisha Swader, Nashville, Tennessee, attorney for appellant, Eric Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulaney Faughn, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm,
Assistant District Attorney General, attorneys for appellee, State of Tennessee.

                                          OPINION

       The Petitioner was charged with possession with intent to deliver over 26 grams of
cocaine, a Class B felony; possession with intent to sell or deliver 300 grams or more of
cocaine, a Class A felony; and two counts of conspiracy to sell or deliver 300 grams or more
of cocaine, a Class A felony. The Petitioner pled guilty to possession with intent to sell or
deliver 300 grams or more of cocaine, a Class A felony, and the trial court sentenced the
Petitioner as a Range I, standard offender to 15 years. Upon its acceptance of the plea
agreement, the trial court dismissed all of the other counts. The trial court ordered the 15-
year sentence to be served concurrently with a 15-year sentence that the Petitioner received
in Wilson County but consecutively to sentences received in Dickson and Montgomery
Counties.

     At the Petitioner’s April 11, 2007 guilty plea submission hearing, the State
summarized the proof that it would have presented had the Petitioner’s case gone to trial:

              On November 13th, police intercepted telephone conversations
              relating to a proposed delivery by co-defendant, Jerry Smith, and
              co-defendant Johnetta [Smith]. They agreed to deliver a
              kilogram of cocaine to the [Petitioner] at the Mcdonald’s
              restaurant located at 3300 Dickerson Pike. The police
              surveillance observed [the co-defendants] go to that location and
              make the delivery with the [Petitioner].

              Following discussions on the telephone that were intercepted,
              [the Petitioner] complained that the kilogram was 18 grams
              short. Further police surveillance and interception of telephone
              calls revealed that on November 15th, 2004 co-defendant, [Jerry
              Smith], went to Lebanon . . . to see the [Petitioner], where he
              received $22,000 from him for the kilogram of cocaine that was
              fronted.

At the guilty plea submission hearing, the Petitioner did not indicate that he was unhappy
with trial counsel or that he did not wish to plead guilty. On the contrary, he answered all
of the trial court’s questions and admitted that the facts, as stated by the Assistant District
Attorney, were “basically true and correct.” The Petitioner timely filed a petition for post-
conviction relief in which he claimed that trial counsel was ineffective and that he did not
voluntarily plead guilty.

        The proof at the evidentiary hearing consisted solely of the testimony of the Petitioner
and trial counsel. The Petitioner testified that when counsel was appointed to represent him,
he was facing felony charges in both Wilson and Davidson Counties based upon the same
transactions. He admitted that he was charged with different crimes in each county but stated
that each county was using the same evidence. He testified that he only met with trial
counsel twice when he was in incarcerated and that he only spent approximately one hour
discussing his case with trial counsel.

      The Petitioner stated that trial counsel did not review the nature of the charges in
Davidson County with him or show him any of the documents relating to those charges. He

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stated that trial counsel never discussed trial strategy or any possible defenses that he may
have had in his case. He stated that trial counsel did not investigate his case or identify any
potential witnesses. He stated that he accepted the 15-year plea agreement for the charges
in Davidson County because he had already accepted a similar 15-year plea agreement in
Wilson County. The Petitioner testified that after he pled guilty, he realized that the trial
court probably did not have jurisdiction in Davidson County and that the State did not have
any evidence that he possessed the cocaine in Davidson County.

        He stated that he remembered asking trial counsel how the State could convict him
of possession in Davidson County when he did not possess any drugs in Davidson County.
He asked trial counsel if he could file a motion, but he did not believe that trial counsel ever
filed any motions on his behalf. He asked trial counsel to review the recordings from the
wiretaps in his case, but trial counsel never discussed the recordings with him. He admitted
that trial counsel explained the charges against him and the possible sentence he might
receive. He noted that when he pled guilty, he received a 15-year sentence, the minimum
amount of time that he would have had to serve if he were convicted.

        The Petitioner stated that if he had realized that he had a possible jurisdictional
defense, he would have asked counsel to file a motion to challenge the trial court’s
jurisdiction. He also stated that if he realized that the trial court may have granted a motion
to suppress the wiretaps in his case, he would have also asked counsel to file a motion to
suppress the wiretaps. He further stated that he did not understand that he had possible
viable defenses because trial counsel never discussed these possibilities with him.

        On cross-examination, the Petitioner admitted that as a result of his decision to plead
guilty, the trial court ordered his conviction in Davidson County to be served concurrently
with his conviction in Wilson county. The Petitioner admitted that he had three prior felony
convictions and that he would have been sentenced as a Range II offender if he had gone to
trial and been convicted. The Petitioner also admitted that he was on parole when he pled
guilty to the charges in Davidson County.

        On re-direct examination, the Petitioner stated that he pled guilty to the charges in
Wilson County because the State promised they would drop the charges against his girlfriend.
He stated that he discussed the State’s offer in Wilson County with trial counsel but that trial
counsel never investigated whether his cooperation in Wilson County would be helpful for
his case in Davidson County. He stated that after he pled guilty in Wilson and Davidson
Counties, he learned that the State was never intending to convict his girlfriend. He stated
that he pled guilty in Davidson County because he believed that everything in Wilson County
was related to his case in Davidson County. He stated that trial counsel never told him that
he had any other options for his case in Davidson County.

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        Trial counsel testified that the Petitioner was notified that he would be sentenced as
a multiple offender and would receive enhanced punishment if he went to trial. Trial counsel
stated that the case in Davidson County was related to the Petitioner’s case in Wilson County
because the investigation in Wilson County “lead [sic] to the issuance of a number of
warrants which allowed wiretaps of both [the Petitioner’s] and a number of co-defendants’
cell phones.” He stated that there were “many, many hours of cell phone conversations
which were transcribed.” He stated that he reviewed and discussed the transcripts and
everything he was given through the discovery process with the Petitioner. He admitted that
a lot of the evidence for the charges in Wilson County was the same evidence that was used
for the charges in Davidson County, but he stated that he was not concerned with the venue
because “there was evidence that he was [in Davidson County] as well as [in Wilson
County].” He even discussed the Petitioner’s case with the Petitioner’s attorney in Wilson
County.

       Relative to the plea agreement in Davidson County, trial counsel stated that the
Petitioner did not receive any additional time as a result of his decision to plead guilty. He
admitted that he did not really establish a defense in the Petitioner’s case but stated that the
only potential defense the Petitioner had was to attack the recordings. Trial counsel stated
that he believed the “proof was the strongest on the conspiracy counts because of all of the
numerous conversations that were recorded” and that he did not believe that the trial court
would have granted a motion to suppress the recordings. He believed that the 15-year plea
agreement was a good offer, given the evidence against the Petitioner and the fact that the
Petitioner was on parole and had several prior similar offenses. He stated that he was
prepared to proceed with a trial if the Petitioner chose to go to trial.

        On cross-examination, trial counsel stated that he spoke with the Petitioner for
approximately 10 to 15 hours and that he visited the Petitioner two or three times. He said
that he filed motions for discovery in the Petitioner’s case, spoke with the detectives, and
evaluated the warrants and the recordings. He believed that the warrants appeared to be
facially valid but admitted that he did not file a motion to suppress the recordings. He stated
that he would have filed a motion if the case had gone to trial and that he waited to file the
motion because he did not want the State to remove their 15-year offer. He stated that he
discussed these options with the Petitioner and that the Petitioner “seemed satisfied with the
plea bargain.” He did not recall any issues with the trial court’s jurisdiction in the
Petitioner’s case because he believed that the wiretaps proved that the exchange occurred in
Davidson County. He admitted that the recordings did not conclusively prove the Petitioner
actually had possession of the drugs in Davidson County but stated that the evidence in
support of the conspiracy charge was sound. He did not recall whether the Petitioner pled
guilty in Wilson County in order to prevent the State from proceeding with a case against the
Petitioner’s girlfriend.

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         Following the evidentiary hearing, the post-conviction court credited the testimony
of trial counsel over that of the Petitioner and noted that the Petitioner was “a convicted felon
with an extensive criminal history, while counsel [was] an experienced, well-respected
member of the legal community.” The post-conviction court also noted that trial counsel
rendered “sound and prudent” advice to the Petitioner. In denying the petition for post-
conviction relief, the post-conviction court found that the Petitioner failed to prove that trial
counsel was deficient or that he was prejudiced by any alleged deficiencies.

                                         ANALYSIS

       The Petitioner contends that trial counsel was ineffective because he failed to
challenge the trial court’s jurisdiction in the Petitioner’s case. The Petitioner further
contends that the Petitioner pled guilty because he was not informed of the potential defenses
available to him. The State responds that the trial court had valid jurisdiction in the
Petitioner’s case. The State further responds that trial counsel was not deficient and that trial
counsel investigated the Petitioner’s case. The State also notes that given the Petitioner’s
criminal history and the fact that he was on parole when he committed the offenses in
Davidson County, the Petitioner cannot establish that he would have insisted on going to trial
because he would have received “extremely long sentences” had he been convicted.

        The burden in a post-conviction proceeding is on the petitioner to prove the factual
allegation to support his grounds for relief by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f); See Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). If the
petitioner proves his grounds by clear and convincing evidence, the trial court must then
determine whether trial counsel was ineffective according to Strickland v. Washington, 466
U.S. 668, 687 (1984). Dellinger, 279 S.W.3d at 293-94. On appeal, we are bound by the
trial court’s findings of fact unless we conclude that the evidence in the record preponderates
against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they
relate to mixed questions of law and fact, we review the trial court’s conclusions as to
whether counsel’s performance was deficient and whether that deficiency was prejudicial
under a de novo standard with no presumption of correctness. Id. at 457.


        Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). Failure to satisfy either prong results in the denial of relief. Strickland, 466 U.S. at
697. In other words, a showing that counsel’s performance falls below a reasonable standard
is not enough; rather, the petitioner must also show that “there is a reasonable probability”


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that but for the substandard performance, “the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. The Strickland standard has been applied to the right to
counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d
417, 419 n.2 (Tenn. 1989). In the context of a guilty plea as in this case, the effective
assistance of counsel is relevant only to the extent that it affects the voluntariness of the plea.
Therefore, 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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also
Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).


        Relative to the Petitioner’s assertion that trial counsel should have questioned the trial
court’s jurisdiction, trial counsel stated that the proof established that the Petitioner
committed criminal acts in Davidson County as well as in Wilson County. Following our
review of the factual basis of the Petitioner’s guilty plea submission hearing, we believe that
the State established that the crime the Petitioner pled guilty to occurred in Davidson County;
therefore, venue rested with the Davidson County Criminal Court. See Tenn. Const. Art. I
§ 9 (stating that an accused must be tried by “an impartial jury of the County in which the
crime shall have been committed”); see also Tenn. Code Ann. § 40-1-108 (providing that
“[t]he circuit and criminal courts have original jurisdiction of all criminal matters not
exclusively conferred by law on some other tribunal”). Accordingly, we conclude that the
post-conviction court did not err in finding that the Petitioner failed to establish that trial
counsel was deficient in this regard and that the Petitioner failed to establish that but for trial
counsel’s alleged deficiency, he would have insisted on going to trial.


        Relative to the Petitioner’s assertion that the Petitioner pled guilty without knowledge
of his available defenses, trial counsel stated that he reviewed the discovery provided in the
Petitioner’s case and that he did not believe that the Petitioner had any viable defenses. Trial
counsel further stated that he considered filing a motion to suppress the transcript of the
wiretap recordings but that he believed that the motion would not be successful and that the
State might remove the offer of a 15-year sentence. Trial counsel stated that he discussed
these options with the Petitioner and that the Petitioner chose to plead guilty. Additionally,
the post-conviction court stated that trial counsel rendered sound and prudent advice
throughout his representation of the Petitioner. Given the Petitioner’s criminal history and
the number of charges against the Petitioner in the instant case, we also believe that trial
counsel rendered prudent advice. Accordingly, we conclude that the post-conviction court
did not err in finding that the Petitioner failed to establish that trial counsel was deficient and
that the Petitioner received the effective assistance of counsel.


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                                      CONCLUSION


      In consideration of the foregoing and the record as a whole, the judgment of the post-
conviction court is affirmed.


                                                  ___________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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