        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                   Assigned on Briefs May 4, 2010

              BRANDON FORBES v. STATE OF TENNESSEE
                Appeal from the Circuit Court for Lauderdale County
                      No. 8537 Joseph H. Walker, III Judge


                 No. W2009-02007-CCA-R3-PC - Filed July 21, 2010




The Petitioner, Brandon Forbes, pled guilty in the Lauderdale County Circuit Court to one
count of aggravated burglary and one count of theft of property valued at over $1,000 with
an agreed total effective sentence of six years as a Range I, standard offender, leaving the
manner of service to the discretion of the trial court. Following the denial of alternative
sentencing, the Petitioner filed a timely petition for post-conviction relief alleging that his
guilty pleas were involuntary due to the ineffective assistance of counsel. After the
appointment of counsel and an evidentiary hearing, the post-conviction court denied relief.
In this appeal as of right, the Petitioner contends that the post-conviction court erred by
denying relief. Following our review, we affirm the judgment of the post-conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
J.C. M CL IN, JJ., joined.

Scott A. Lovelace, Ripley, Tennessee, attorney for appellant, Brandon Forbes.

Robert E. Cooper, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Julie K. Pillow, Assistant District Attorney
General, attorneys for the appellee, State of Tennessee.

                                         OPINION

       The guilty plea submission hearing of April 2, 2009, reflects that the Petitioner and
a codefendant, Sterling Hampton, were arrested for the January 22, 2009 burglary of the
residence of Mike Douglas when officers from the Ripley Police Department saw Mr.
Hampton carrying a plasma television from the residence and attempting to load it into the
vehicle driven by the Petitioner. In statements to the police, the Petitioner initially denied
any knowledge that Mr. Hampton intended to steal the television, but he later admitted that
Mr. Sterling asked him “to watch out [for the police] while he got the TV.” Still, the
Petitioner claimed that he had “something against stealing.”

        In exchange for the plea, the State agreed not to seek range classification enhancement
against the Petitioner, who the State contended qualified as a Range III, persistent offender.
The Petitioner pled guilty with agreed Range II, multiple offender sentences of six years for
the aggravated burglary count to be served concurrently with four years for the theft of
property valued at over $1,000 count. Pursuant to the agreement, the parties deferred to the
trial court’s discretion concerning manner of service of the sentence and restitution. The
guilty plea submission hearing reflects that the Petitioner made a knowing and voluntary
plea. The Petitioner also indicated that he was satisfied with the representation provided by
his attorney.

       Although a transcript of the alternative sentencing hearing was not included as an
exhibit at the post-conviction evidentiary hearing or as part of the record on appeal, the
technical record reflects that on April 17, 2009, the trial court denied alternative sentencing
based upon the Petitioner’s history of criminal convictions and previous noncompliance with
probation or parole. The trial court ordered the Petitioner’s sentences to be served in
confinement with the Department of Correction and ordered restitution of $1,000.

        On May 13, 2009, the Petitioner filed a petition for post-conviction relief alleging that
his guilty pleas were the result of the ineffective assistance of counsel. He specifically
asserted that his attorney told him that if he pled guilty he would receive probation. The
Petitioner also claimed that a conflict of interest existed by the assistant district attorney
general’s undisclosed friendship with the victim. Following the appointment of counsel,
additional allegations of ineffective assistance concerning the quality of trial counsel’s
explanation of the terms of the guilty plea were made as amendments to the petition, as well
as an allegation that the trial court’s sentencing decision violated Blakely v. Washington, 542
U.S 296 (2005).

       At the September 1, 2009 evidentiary hearing, trial counsel testified that the Petitioner
was fully advised by counsel as well as the trial court concerning the terms of the plea
agreement. Trial counsel testified that the State agreed not to oppose the trial court’s
consideration of alternative sentencing but that the grant of alternative sentencing was not
a term of the plea agreement. Trial counsel recalled that the Petitioner was able to avoid a
more serious range classification by pleading guilty. Likewise, the Petitioner also received
the minimum sentences as a Range II offender. Trial counsel also testified that the State had
indicated that they would recommend probation if the Petitioner provided truthful

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information to the Tennessee Bureau of Investigation (TBI) concerning ongoing criminal
activity. However, trial counsel stated that the Petitioner always understood that alternative
sentencing was not a guarantee under the terms of the plea agreement. Furthermore, the
information provided by the Petitioner to the TBI proved to be untruthful. In summary, trial
counsel stated that

               [The Petitioner] understood. I mean, once we – and I don’t blame
       people that are in jail. I mean, their main consideration is to get out of jail.
       And once he thought that he had that avenue to get out of jail and might get on
       probation, I mean, that’s mainly what he was interested in, is how to get to that
       point . . . .

               And I had told him, and I still think that this is correct, that had he given
       information that was going to be truthful and had the information that he
       provided – if it were helpful in that case, I still believe that [the assistant
       district attorney general] would have lobbied to have him placed on probation
       or even agreed to it. . . .

              But . . . none of it panned out.

The Petitioner chose not to testify at the evidentiary hearing.

        The post-conviction court took the matter under advisement and issued a written order
on September 1, 2009, denying the post-conviction petition. The post-conviction court found
that the Petitioner failed to establish his allegations of ineffective assistance of counsel by
clear and convincing evidence. The post-conviction court found that the guilty plea
submission hearing showed that the Petitioner understood the terms of the plea agreement
and was satisfied with counsel’s representation. The post-conviction court found that the
Petitioner was advised and understood that the manner of service of his sentences would be
determined by the trial court at a separate hearing. In summary, the post-conviction court
found that the “Petitioner made a rational decision to accept the plea offer.”

       On appeal, the Petitioner argues that his trial counsel did not follow “normal
procedures,” rendering him “unaware or otherwise did not understand the plea agreement.”
He also contends that he has a mental disability making him “not competent to understand
the plea.” The State argues that there is no evidence in the record to support the Petitioner’s
claim of ineffective assistance of counsel and that the trial court properly denied relief.
Following our review, we agree with the State.




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                                         ANALYSIS

       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). 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, 368-372
(1993). In other words, a showing that counsel’s performance falls below a reasonable
standard is not enough; rather, the petitioner must also show that but for the substandard
performance, “the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. 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).


        Trial counsel testified that the Petitioner was informed of the specific elements of the
plea agreement and that he understood that alternative sentencing was not guaranteed but was
to be determined by the trial court. The guilty plea acceptance form corroborates trial
counsel’s testimony that “further hearing on [the] service of sentence” was to be held. The
guilty plea transcript shows that the Petitioner fully understood the nature and consequences
of his guilty plea. There is no evidence in the record that the Petitioner was suffering from
any mental deficiency rendering his plea involuntary. The Petitioner elected not to testify or
present any proof in support of his allegations. Accordingly, we conclude that the evidence
does not preponderate against the post-conviction court’s findings.




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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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