         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs June 18, 2013

                  GREGORY EIDSON v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Sumner County
                        No. 303-2012     Dee David Gay, Judge


                 No. M2012-02482-CCA-R3-PC - Filed December 6, 2013


The Petitioner, Gregory Eidson, appeals as of right from the Sumner County Criminal
Court’s denial of his petition for post-conviction relief. The Petitioner contends that his
guilty pleas were not knowingly and voluntarily entered and that his trial counsel was
ineffective. Discerning no error, we affirm the judgment of the post-conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and A LAN E. G LENN, JJ., joined.

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Gregory Eidson.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Lawrence Ray Whitley, District Attorney General; and C. Ronald Blanton, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                   FACTUAL BACKGROUND

        The Petitioner has failed to include a copy of his judgments of conviction in the record
for this appeal. However, it appears from the record that the Petitioner was indicted for
aggravated assault, attempted premeditated first degree murder, and resisting arrest. On
February 3, 2012, the Petitioner entered “best interest” pleas1 to charges of aggravated assault


1
 Because the judgments of conviction are not included in the appellate record it is unclear whether the
Petitioner entered pleas of nolo contendere or “best interest” guilty pleas pursuant to North Carolina v.
Alford, 400 U.S. 25 (1970).
and attempted second degree murder. Pursuant to the plea agreement, the charge of resisting
arrest was dismissed. The Petitioner received an effective eleven-year sentence and was
given credit for 469 days of pretrial incarceration. The remainder of the Petitioner’s sentence
was to be served on community corrections.

        The following factual basis was provided to support the Petitioner’s pleas: In the
early morning hours of October 23, 2010, the Petitioner attacked his uncle, Danny Suttle,
outside the home of their mutual friend, Timmy Vanatta. As Mr. Suttle left the house, the
Petitioner approached him and, without saying anything to him, began to beat and kick Mr.
Suttle for approximately thirty minutes. The Petitioner then poured gasoline over Mr. Suttle
and attempted to set him on fire, but was unable to find a lighter. Mr. Suttle crawled under
a car to get away from the Petitioner and eventually crawled to his home where he called the
police. Mr. Suttle suffered several broken ribs, a punctured lung, and a concussion from the
Petitioner’s attack.

        At the plea submission hearing, the trial court explained to the Petitioner that his “best
interest” pleas would have the same effect as “a guilty verdict by a jury,” and the Petitioner
stated that he understood this. The trial court also explained that the Petitioner was to be
placed on community corrections and what would occur if he violated the terms of his
release. The Petitioner stated that he understood his sentence and had no questions about it.
The Petitioner stated that it was his signature on the plea agreement, that he had reviewed the
agreement with trial counsel, and that he understood the terms of his plea agreement. The
Petitioner also stated that no one had coerced him into accepting the plea agreement and that
he understood the constitutional rights he was waiving by entering the pleas.

        At the conclusion of the plea submission hearing, the Petitioner was released on
community corrections. On April 25, 2012, the Petitioner filed a petition for post-conviction
relief alleging that he received ineffective assistance from his trial counsel and that his “best
interest” pleas were not knowingly and voluntarily entered. At the post-conviction hearing,
the Petitioner testified that he wanted to take his case to trial and was pressured into
accepting “best interest” pleas by trial counsel. The Petitioner claimed that he was unaware
his “best interest” pleas would have the same effect as guilty pleas. The Petitioner also
claimed that trial counsel never explained to him the terms and conditions of his release on
community corrections.

       The Petitioner testified that he accepted the State’s plea offer because his grandmother
and his girlfriend had “pressured [him] into taking it” by crying when he told them he wanted
to take his case to trial. The Petitioner also testified that he accepted the plea agreement
because he felt trial counsel was not prepared for trial. The Petitioner claimed that trial
counsel refused to investigate his claim of self-defense. The Petitioner also claimed that trial

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counsel failed to interview or call several witnesses at his preliminary hearing. According
to the Petitioner, Timmy Vanatta, Tiffany Vanatta, and Robert Cleveland all had information
that would bolster his claim of self-defense, but all three had died prior to the plea
submission hearing.

        The Petitioner denied that he assaulted Mr. Suttle. Instead, the Petitioner claimed that
Mr. Suttle fell on his face after the Petitioner “swung at” him. The Petitioner further claimed
that Mr. Suttle threatened to “burn [him] up” and poured gasoline on his truck. To stop Mr.
Suttle, the Petitioner “knocked him down,” causing the gas can to fly into the air and spill
gasoline on both of them. The Petitioner admitted that while Mr. Suttle was on the ground,
he “poured [gasoline] down the crack of his rear end,” but claimed that he never attempted
to set Mr. Suttle on fire. The Petitioner admitted on cross-examination that Mr. Vanatta and
Ms. Vanatta did not see the incident with Mr. Suttle because they were asleep at the time.
The Petitioner also admitted that trial counsel had interviewed Mr. Cleveland prior to his
death.

        On cross-examination, the Petitioner admitted that he was familiar with the criminal
justice system, having been convicted of driving under the influence on four occasions as
well as several other offenses. The Petitioner also admitted that the trial court informed him
at the plea submission hearing that his “best interest” pleas would have the same effect as a
guilty verdict by a jury. The Petitioner further admitted that he had gone through four
different lawyers before trial counsel was appointed to represent him. The Petitioner
acknowledged that while this case was pending, he had written several letters to the
prosecutor asking for a plea agreement and to be released on probation.

        Catherine Britt testified on the Petitioner’s behalf at the post-conviction hearing. Ms.
Britt testified that she was the Petitioner’s fiancé and lived with him at the time of the assault
on Mr. Suttle. Ms. Britt testified that she could have given testimony favorable to the
Petitioner but that she was not called as a witness at the preliminary hearing. However, Ms.
Britt admitted that she “did not observe the incident” because she was in the shower at the
time. Instead, Ms. Britt claimed that she could testify that the police officers used excessive
force when they arrested the Petitioner.

       Trial counsel testified that he recalled speaking to the Petitioner about what a “best
interest” plea was and what effect it would have. Trial counsel could not specifically recall
if he went over the terms and conditions of the Petitioner’s community corrections sentence
with him but testified that he would “typically go over that with all [his] clients that go on
community corrections.” Trial counsel testified that he did not call any witnesses at the
preliminary hearing because he did not “want to tip off the [State] as to what avenues [he]
might [have taken] at trial.” Trial counsel further explained that the burden was so low in

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a preliminary hearing that he was “not inclined to give [the State] any more information than
[it] need[ed].”

        Trial counsel testified that in investigating the case, he spoke to several of the police
officers that responded to the scene. Trial counsel recalled that the Petitioner wanted him
to speak with Mr. Vanatta, but trial counsel testified that based upon his investigation, he did
not “see where Mr. Vanatta would have been helpful in this case.” Trial counsel did not
recall the Petitioner asking him to speak with Ms. Britt or call her at the preliminary hearing.
With respect to Mr. Cleveland, trial counsel testified that he did not call him at the
preliminary hearing because he was incarcerated at the time. Trial counsel testified that he
spoke with the Petitioner several times about this case but that every time the Petitioner was
more concerned with a civil case against the arresting officers.

        Trial counsel testified that he had the Petitioner submit to a mental health evaluation
to determine if there was a mental health defense because the Petitioner had a history of
mental health issues. Trial counsel also testified that he investigated the Petitioner’s
“tumultuous history” with Mr. Suttle and the Petitioner’s claim that Mr. Suttle had sexually
assaulted him when he was younger as possible defenses. According to trial counsel, the
Petitioner was adamant at times about taking his case to trial. However, trial counsel
identified several letters sent to him by the Petitioner in which the Petitioner asked for him
to negotiate a plea agreement with the State and specifically asked for an agreement allowing
him to be released on community corrections. The Petitioner stated in these letters that he
would be willing to accept a sentence of eight years.

        In one letter written to trial counsel, the Petitioner stated that he did not “intentionally
assault” Mr. Suttle. The Petitioner further stated that he did not understand why the
prosecutor was “being so stubborn” because he had “abandoned intent when [he] pulled off
[Mr. Suttle’s gasoline soaked] blue sweater” and went back inside the house. Trial counsel
testified that while the Petitioner had been indecisive about accepting a plea agreement at
times, he believed “everything changed” when the State reduced its offer from thirteen to
eleven years and agreed to dismiss the charge of resisting arrest. Trial counsel explained that
the Petitioner “really hung his hat on . . . [the fact] that he wasn’t guilty of doing anything to
the officers” and that the Petitioner believed that he would be in a better position to pursue
his civil case if he was placed on community corrections.

       At the conclusion of the hearing, the post-conviction court dismissed the Petitioner’s
petition for post-conviction relief. The post-conviction court concluded that the Petitioner
was not a credible witness. The post-conviction court noted that the Petitioner had numerous
prior convictions spanning twenty-two years and that the Petitioner had repeatedly “told
different versions” of what happened with Mr. Suttle. The post-conviction court found the

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letters the Petitioner had written to both the prosecutor and trial counsel to be “very
convincing” and that they made clear that the Petitioner “wanted to work toward . . . a
settlement.” The post-conviction court concluded that it was “a strain to believe that [the
Petitioner] did anything other than knowingly and voluntarily enter” his “best interest” pleas.

       The post-conviction court accredited the testimony of trial counsel over that of the
Petitioner. The post-conviction court found that trial counsel thoroughly investigated the
case and explored several possible defenses. The post-conviction court stated that it would
not second guess trial counsel’s tactic of not calling witnesses during a preliminary hearing.
The post-conviction court concluded that trial counsel was not ineffective. Instead the post-
conviction court stated that trial counsel’s performance was “very good” and that he had
“represented this client well.” The post-conviction court further concluded that had the
Petitioner’s case gone to trial instead of accepting the plea agreement negotiated by trial
counsel, the Petitioner likely “would have gone to the penitentiary for a substantially longer
period of time instead of getting released on time served” with the remainder of his sentence
to be served on community corrections.

                                         ANALYSIS

       The Petitioner contends that the post-conviction court erred in dismissing his petition
for post-conviction relief. The Petitioner argues that he wanted to take his case to trial but
was coerced into accepting the “best interest” pleas by trial counsel, his girlfriend, and his
grandmother. The Petitioner further argues that trial counsel was ineffective because trial
counsel made no effort to prepare for trial. The State responds that the “evidence clearly
established” that the Petitioner chose to enter into the plea agreement and that he understood
the nature of his actions. The State further responds that the Petitioner failed to show by
clear and convincing evidence that trial counsel’s performance was deficient in any way.

        The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting 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).
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). Additionally, “questions concerning the credibility of the witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence
are to be resolved” by the post-conviction court. Id. Because they relate to mixed questions
of law and fact, we review the post-conviction 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.



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        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). 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, like the present 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 [pled] 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).

         Here, the post-conviction court accredited the testimony of trial counsel over the
Petitioner’s testimony. In fact, there was overwhelming evidence to discredit the Petitioner’s
testimony that his “best interest” pleas were not knowingly and voluntarily entered. At the
plea submission hearing, the trial court explained to the Petitioner that his pleas would have
the same effect as a guilty verdict by a jury and that he was being placed on community
corrections. The Petitioner stated under oath that he understood both of these facts. The
Petitioner also stated that no one had coerced him into entering into the plea agreement. In
addition to the transcript of the plea submission hearing, the Petitioner wrote numerous
letters to both the prosecutor and trial counsel expressing his desire for a plea agreement and
to be placed specifically on community corrections so that he could get out of jail. Indeed,
the Petitioner was released immediately after entering his pleas.

        With respect to trial counsel’s performance, we again note that it is relevant only to
the extent that it affects the voluntariness of the Petitioner’s pleas. The evidence clearly
demonstrates that the Petitioner wanted to enter into a plea agreement with the State so that
he could be released from jail; therefore, trial counsel’s performance had no impact on the
voluntariness of the Petitioner’s pleas. Furthermore, the evidence established that trial
counsel thoroughly investigated the case and explored several possible defenses. The fact
that trial counsel did not call any witnesses at the preliminary hearing was a sound trial tactic
that we will not second guess on post-conviction review. The fact that three witnesses the
Petitioner wanted to call at trial died before the plea submission hearing was outside the
control of trial counsel. Accordingly, we conclude that the post-conviction court did not err
in dismissing the petition for post-conviction relief.



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                                    CONCLUSION

       Upon 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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