         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 25, 2005

               J. C. OVERSTREET, JR. v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                         No. 2003-A-104    Cheryl Blackburn, Judge



                   No. M2005-00170-CCA-R3-PC - Filed December 20, 2005


The petitioner appeals the denial of his post-conviction petition, contending that: (1) counsel was
ineffective in failing to adequately inform him of the consequences of his plea; and (2) his pleas were
coerced by counsel’s assurances that he would be placed in the DeBerry Special Needs Facility.
Upon review, we conclude that counsel explained the consequences of the pleas with the petitioner
and that his plea was knowingly and voluntarily entered, as it was made clear to the him that
placement was not part of his plea agreement but was within the discretion of the Department of
Correction. Therefore, we affirm the denial of post-conviction relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
NORMA MCGEE OGLE, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, J. C. Overstreet, Jr.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Victor
S. (Torry) Johnson, III, District Attorney General; and Brian K. Holmgren, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                    Facts and Procedural History

        The petitioner, J.C. Overstreet, Jr., pled guilty to rape of a child (a Class A felony) and
entered a best interest plea to aggravated sexual battery (a Class B felony). Pursuant to the plea
agreement, the petitioner was sentenced as a mitigated offender to thirteen and a half years for the
charge of rape of a child and to eight years as a standard offender for the remaining charge of
aggravated sexual battery. The sentences were ordered to be served concurrently at one hundred
percent, pursuant to Tennessee Code Annotated section 39-13-523(b). Thereafter, the petitioner filed
a pro se petition for post-conviction relief. Following the appointment of counsel and an evidentiary
hearing, the post-conviction court denied relief. On appeal to this court, the petitioner contends that:
(1) trial counsel rendered ineffective assistance by failing to adequately convey the consequences of
his pleas and his imposed sentence; and (2) trial counsel coerced his pleas by assuring him that he
would be placed in DeBerry Special Needs Facility (DeBerry) due to his medical condition.

        At the post-conviction hearing, the petitioner testified that trial counsel met with him
approximately six times prior to his plea. He stated that he asked counsel about the factual basis of
the charges against him and that he received varying answers which never gave him any clarification.
The petitioner recalled that he believed he would be pleading to a twelve-year sentence at eighty-five
percent release eligibility and that he did not want to plead to thirteen years at one hundred percent
service but “was not told [he] could change his mind.”

        The petitioner testified that he could write but could not read well and that counsel explained
the plea petition to him. He stated that he was under stress at the time of his plea and that he had
previously been hospitalized four or five times for anxiety. He further noted that he suffers from
high blood pressure, light strokes, and diabetes, all of which require medication. The petitioner
stated that, for approximately seven months prior to his plea, he requested a jury trial but did not do
so on the day of the hearing. He further testified that counsel told him that he would be housed at
DeBerry as part of his plea agreement; however, he was never sent there.

        When asked if his placement at DeBerry influenced his decision to plead guilty, the petitioner
responded, “Well, it had an effect on it. I knowed [sic] I’d be close to my wife.” The petitioner
stated that he was experiencing numbness in his neck, arms, and legs at the time of the post-
conviction hearing but had not received any treatment at the Department of Correction (DOC).

        On cross-examination, the petitioner acknowledged that counsel discussed the State’s
evidence with him and that he knew his plea agreement was for a thirteen and one-half year sentence.
He also testified that counsel read the plea petition to him and that he knew it was his option to plead
or go to trial. The petitioner admitted that he told the trial court that counsel discussed the case with
him, read the plea petition to him, and answered all questions to his satisfaction. He further
acknowledged that he was given multiple opportunities to decline or to question the plea agreement
in court but failed to do so. However, the petitioner indicated that counsel did not do everything the
petitioner wanted her to do on his case. Finally, he testified that he thought he was going to get
“good days” and be placed at DeBerry, but neither occurred.

         Counsel testified that she and the petitioner discussed the factual allegations and reviewed
the State’s evidence. She indicated that the State’s initial offer was sixteen years at one hundred
percent service with the possibility of credit altering the release eligibility to eighty-five percent.
However, counsel ultimately negotiated an effective sentence of thirteen and a half years. She
testified that, although the petitioner was displeased with the length of the sentence, he would not
indicate an acceptable offer but simply stated that he wanted a “lower” sentence. She further recalled
that the petitioner was upset that there was no DNA evidence, but the victims did not have injuries
that produced DNA evidence.


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        Counsel acknowledged that she discussed a placement at DeBerry with the petitioner and
“frankly assumed that he would go [there].” She further noted that the issue was discussed at the
plea hearing and that the trial court indicated that it was not a condition of the plea. Counsel stated
that she explained to the petitioner that the ultimate decision as to placement rested with the DOC.
She recalled that the petitioner spoke to her in the middle of the plea hearing and that she explained
to him that he would have to either plead or go to trial. In conclusion, counsel testified that, while
the petitioner was not pleased with the plea, it was entered voluntarily.

         On cross-examination, counsel testified that although the petitioner could not read or write
well, he sent letters to her that she “certainly was able to understand.” She stated that she did not
recall whether she explained to the petitioner that his placement at DeBerry was not a part of his
plea, and further noted that it was “fair to say” that the petitioner believed he would be sent to
DeBerry. Counsel indicated that she explained to the petitioner that he would be sentenced to
thirteen and a half years at one hundred percent service. She testified that she believed the petitioner
would be placed at DeBerry without any further action due to his medical condition; nonetheless,
she sent a letter to alert the DOC to the possibility of a special needs classification and to “assure the
client that [she had] done everything [she could] to aid them in that.” Counsel further indicated that
the DOC performs its own independent classification. In conclusion, she testified that, until the time
of the plea, she was unsure that the petitioner would go through with the plea.

         After taking the matter under advisement, the post-conviction court entered an order denying
relief, which found that:
         [A]s demonstrated by the plea transcript the Court thoroughly advised the Petitioner
         of the nature and consequences of his plea during the plea colloquy prior to accepting
         Petitioner’s plea. (citation omitted). The Court explained in detail to Petitioner that
         the sentence for Count 1 must be served at 100% but that the sentence in Count 2
         could possibly be reduced from 100% to 85% release eligibility with good and honor
         credit. (citation omitted).

        In addition [to] the Court advising Petitioner of the nature and consequences of his
        plea, Petitioner also advised the Court during his plea colloquy that he and [counsel]
        had discussed his case. (citation omitted). When the Court explicitly inquired if
        Petitioner was satisfied with the work [counsel] had performed on his case, Petitioner
        answered affirmatively . . . . Accordingly, as set forth above, Petitioner has failed to
        demonstrate by clear and convincing evidence that counsel was ineffective in her
        communications with him or that he was prejudiced by counsel’s alleged deficient
        performance.

                ....

        During his plea hearing, the Court advised Petitioner he would be going to prison, but
        that the Lois DeBerry Special Needs Facility may be a possibility for him and that he
        would need to bring his medical conditions to the attention of the TDOC officials as


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        he was being classified. (citation omitted). Based on the reasons above, the Court
        finds that Petitioner has not demonstrated by clear and convincing evidence that he
        was coerced to enter his plea.
The petitioner now appeals to this court, contending that the post-conviction court erred in failing
to find that trial counsel rendered ineffective assistance and that the petitioner’s pleas were not
knowingly and voluntarily entered.

                                              Analysis

                               I. Ineffective Assistance of Counsel

         The petitioner first alleges that counsel was ineffective in failing to accurately convey the
consequences of his guilty plea and his sentence of thirteen and a half years at one hundred percent
service. When a claim of ineffective assistance of counsel is made under the Sixth Amendment,
the petitioner bears the burden of proving that: (1) counsel’s performance was deficient, and (2)
the deficiency was prejudicial in terms of rendering a reasonable probability that the result of the
trial was unreliable or the proceedings were fundamentally unfair. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). This standard has also 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). When a petitioner claims ineffective assistance of counsel in relation to a
guilty plea, the petitioner must prove that counsel performed deficiently and, but for counsel’s
errors, the petitioner would not have pled guilty but would have, instead, insisted upon going to
trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the
services be rendered within the range of competence demanded of attorneys in criminal cases. In
reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also Nichols v. State, 90 S.W.3d 576, 587
(Tenn. 2002).

        The petitioner bears the burden of proving by clear and convincing evidence the factual
allegations that would entitle petitioner to relief. Tenn. Code Ann. § 40-30-110(f). This court is
bound by the post-conviction court’s findings of fact unless the evidence preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

        A review of the plea proceedings reveals that the petitioner discussed the case with counsel
and that counsel reviewed the plea petition with him. During the plea colloquy, the petitioner
indicated that counsel had done everything he asked of her and had answered all questions to his
satisfaction. Generally, the petitioner conveyed that he was well pleased with counsel’s
representation and noted during the plea hearing that “[she’d] done great.” Furthermore, the trial
court explicitly stated on more than one occasion that the petitioner’s total effective sentence for


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the two charges would be thirteen and a half years at one hundred percent service. At the
conclusion of the hearing, the petitioner accepted the plea agreement and indicated that he did not
have any questions for the trial court. For these reasons, we agree with the post-conviction court
that counsel effectively communicated the consequences of the petitioner’s plea to him, including
his effective sentence of thirteen and a half years.

                                II. Unknowing and Involuntary Plea

        In his final issue, the petitioner contends that his plea was coerced by trial counsel’s
assurances that he would be placed in DeBerry due to his medical condition. Our supreme court
has stated the following:
                The cases of Boykin v. Alabama and State v. Mackey are the landmark
        constitutional cases for analyses of guilty pleas. Boykin v. Alabama, 395 U.S. 238,
        89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) (federal standard); State v. Mackey, 553
        S.W.2d 337 (Tenn. 1977) (state standard). In Boykin, the United States Supreme
        Court held that before a trial judge can accept a guilty plea, there must be an
        affirmative showing that it was given intelligently and voluntarily. Id. at 242, 89 S.
        Ct. at 1711, 23 L. Ed. 2d at 279. In order to find that the plea was entered
        “intelligently” or “voluntarily,” the court must “canvass[ ] the matter with the
        accused to make sure he has a full understanding of what the plea connotes and of its
        consequences.” Id. at 244, 89 S. Ct. at 1712, 23 L. Ed. 2d at 280 (emphasis added).
                Likewise, in Mackey, this 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 . . . .” 553 S.W.2d at 340.
State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999).

         A review of the plea transcript reflects that the trial court advised the petitioner that he was
being transported to the DOC for his sentence and that he should alert the facility to his medical
condition at the time of his classification. Moreover, at the post-conviction hearing, counsel testified
that the DOC does an independent classification of inmates, and she explained to the petitioner that
placement is at the discretion of the DOC. Therefore, we conclude that the petitioner was aware that
his placement at DeBerry was not a part of his plea agreement and that he knowingly and voluntarily
entered into the agreement with that knowledge.

                                              Conclusion

        Based upon the foregoing, we affirm the denial of post-conviction relief.



                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE


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