        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs April 10, 2012

               JOE EDDIE MACLIN v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Tipton County
                     Nos. 6270, 6271   Joseph H. Walker, Judge


                 No. W2011-01112-CCA-R3-PC - Filed June 28, 2012


The Petitioner-Appellant, Joe Eddie Maclin, appeals the denial of post-conviction relief,
contending that he did not enter his guilty plea knowingly and voluntarily due to the
ineffective assistance of counsel. Upon review, we affirm the judgment of the post-
conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

William Michael Thorne, Lexington, Tennessee (on appeal); Mark E. Davidson, Covington,
Tennessee (at post-conviction hearing), for the Petitioner-Appellant, Joe Eddie Maclin.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel,
Assistant Attorney General; D. Michael (Mike) Dunavant, District Attorney General; and
Jason Poyner, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

        In case number 6270, the petitioner pleaded guilty on August 10, 2009, to robbery, a
Class C felony, theft of property valued less than $500, a Class A misdemeanor, and resisting
arrest, a Class B misdemeanor. On the same date, he also pleaded guilty in case number
6271 to theft of property more than $500, a Class E felony. Pursuant to the plea agreement
presented to the trial court, the petitioner received an effective sentence of ten years as a
multiple offender in case 6270 and six years as a career offender in case 6271, to be served
consecutively for a total effective sentence of sixteen years. The petitioner filed a timely
petition for post-conviction relief, and counsel was appointed. Following an evidentiary
hearing, the post-conviction court entered an order denying relief on April 15, 2011. This
timely appeal followed.

                              FACTUAL BACKGROUND

       Plea Submission Hearing. The State summarized the facts supporting the
petitioner’s guilty pleas at the August 10, 2009 plea submission hearing:

              Had this gone to trial in 6270 the State feels it could have met its
      burden that on 11/27/08 deputies were dispatched to Midway Market on
      Highway 59 South at 14, in reference to an irate customer. While en route
      deputies were advised that the suspect displayed a gun toward the clerk and
      left in a gold vehicle travelling toward Covington.

              Deputy Chunn observed the vehicle travelling west on Mueller-Brass
      Road toward Old Brighton Road. Deputy Chunn conducted a traffic stop on
      the vehicle. Chunn ordered the suspect, Eddie Maclin out of the vehicle.
      Eddie began cussing and walking aggressively toward Deputy Chunn, ignoring
      all of his commands. Deputy Chunn administered a single cycle of taser on
      Mr. Maclin. Mr. Maclin was then taken into custody without further incident.

             And upon further investigation Mr. Maclin displayed the gun while
      stealing beer and gas from the store. And he was also found in possession of
      a black pistol pellet gun.

             Deputy Sheriff Daugherty transported Mr. Maclin to the jail. Judge
      Peeler was contacted and advised, placed a no bond on Mr. Maclin.

             Those are the facts in 6270, Your Honor.

              In 6271, on October 31, 2008, officers responded to a theft complaint
      at Walmart in Covington, Tipton County. Sergeant Black spoke with a Ms.
      Hawkins and Mr. Randal Tilfer, who both work for Walmart. Ms. Hawkins
      stated that a black male, later identified as Joe Eddie Maclin, attempted to walk
      out of the store with a shopping cart full of merchandise that he did not pay
      for. Mr. Maclin was confronted by Randal Tilfer, co-manager, about the
      merchandise. Mr. Maclin then attempted to leave the property. Sergeant
      Black made contact with Mr. Maclin in the parking lot of Walmart. The total
      amount of merchandise was $532.42, which was all recovered. Mr. Maclin is
      charged with theft over [$]500.

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        The State informed the court that the petitioner was going to enter a guilty plea as a
multiple offender to the robbery charge and a career offender to the theft charge. Counsel
for the petitioner added that the sentences would be served consecutively and requested that
the trial court schedule a hearing to consider alternative sentencing.

        The trial court placed the petitioner under oath and questioned him regarding the
pleas. The petitioner stated that he was forty-six years old and had attended school through
the eleventh grade. The trial court stated that it had received forms in each of the cases
indicating that the petitioner wanted to waive his right to a jury trial. The trial court further
stated that the petitioner had apparently signed the forms.1 The petitioner acknowledged that
he reviewed the forms with his attorney and that he understood what he was doing. The trial
court outlined the petitioner’s rights to have a jury trial, to have the assistance of counsel
during trial, to confront the State’s witnesses, to call his own witnesses, to decide whether
to testify in his own behalf, and to appeal after trial. The petitioner stated that he had
sufficient time to meet with his attorney to discuss the cases and possible defenses available
to him. He stated that he was satisfied with the representation counsel provided. No one
forced him to plead guilty, and he was doing so as a result of discussions with counsel and
because he was guilty of the offenses.

       The court summarized the petitioner’s plea agreement in these cases. In case number
6271, the petitioner would serve six years as a career offender for theft of property valued
more than $500. In case number 6270, the petitioner would receive an effective ten-year
sentence as a multiple offender for the offenses of robbery, misdemeanor theft, and resisting
arrest. The petitioner acknowledged that the court’s summary was consistent with his
understanding of the plea agreement. The court noted that the sentences in the cases were
required to be run consecutively because the petitioner was on bond when he committed the
robbery. The court then stated:

       [Counsel] has indicated that you will be seeking relief from sentence, but
       there’s no guarantee that will be granted. Whether or not you qualify for
       alternate sentencing, which is house arrest, or for probation are matters that
       would be determined at another hearing. You’ll end up having a sentence of
       ten years consecutive, with a consecutive six-year sentence; then a six-month
       and eleven-month-29-day concurrent with the ten-year sentence. But whether
       or not you receive any relief from incarceration would depend upon another
       hearing.



       1
           These forms are not included in the record on appeal.

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The trial court inquired whether the petitioner understood, and the petitioner responded
affirmatively.

        The petitioner entered guilty pleas to the charges of robbery, misdemeanor theft, and
resisting arrest in case 6270 and to theft of more than $500 in case 6271. He stated that he
had no questions regarding the proceedings. The court then accepted the pleas after
determining that the petitioner was competent to enter the pleas, that he understood what he
was doing, and that there was a factual basis to support the pleas.

        Post-Conviction Hearing. Trial counsel and the petitioner were the only witnesses
to testify at the April 15, 2011 post-conviction hearing. At the outset, a transcript of the plea
submission hearing was admitted as an exhibit.

        The petitioner testified that when he pleaded guilty, he understood the agreed sentence
to be an effective ten-year sentence. Trial counsel’s discussions with the petitioner led him
to believe the sentences would all run concurrently to each other. The petitioner testified that
he agreed to plead guilty only because he expected an effective sentence of ten years, to be
served on house arrest. Had he known that the sentence was for an effective sixteen years,
he would not have pleaded guilty despite the fact that he likely would have received a
substantially longer sentence after a conviction at trial. The petitioner maintained that he did
not understand when the trial court said at the plea hearing that the sentences would be
served consecutively.

       The petitioner learned at the later hearing to determine whether he would receive
alternative sentencing that he did not, in fact, receive a ten-year sentence as he had expected.
He filed through different counsel a “Motion to Amend or Correct Sentence” on December
8, 2009. In the motion, admitted as an exhibit to the hearing, the petitioner alleged that he
did not understand the consequences of the plea and that he believed he would receive an
effective sentence of ten years.

       The petitioner testified that he assisted law enforcement officers with the investigation
of a murder, and he expected his assistance to result in less severe sentences in his own cases.
He did not believe that his assisting with the investigation had such a result. According to
the petitioner, his guilty plea was involuntary. He voluntarily pleaded guilty to a ten-year
sentence but not to a sixteen-year sentence.

        On cross-examination, the petitioner testified that when he committed these offenses,
he was classified as a career offender. He conceded that he was not “new to the system” and
that he had numerous prior felony and misdemeanor convictions. The petitioner testified that
he was on bond for the theft offense when he committed robbery, and he acknowledged that

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the trial court was required to order consecutive sentences as a result. However, he expected
concurrent sentences because of the help he provided law enforcement officers in the murder
investigation.

        Trial counsel testified that he was an assistant public defender. Before the petitioner
pleaded guilty, trial counsel discussed with the petitioner the plea agreement and explained
that the offer involved an effective sentence of sixteen years. He told the petitioner that the
court would decide whether the petitioner received alternative sentencing, “but there was no
guarantee one way or the other.” Additionally, the petitioner was aware that the court was
required to order consecutive sentences because he committed some of the offenses while
he was on bond. Counsel explained to the petitioner that the court’s only option after guilty
jury verdicts would have been to sentence the petitioner to serve thirty-six years at sixty
percent. The negotiated agreement resulted in a sentence twenty years shorter.

        On cross-examination, counsel testified that the plea form that the petitioner signed
indicated that the sentences would be consecutive. Counsel mailed the petitioner a letter,
dated November 22, 2009, and admitted as an exhibit to the hearing, discussing the evidence
in these cases and the petitioner’s prior criminal record, including the petitioner’s history of
unsuccessful probation and parole. It also addressed possible sentencing outcomes after trial
and compared them to the negotiated plea agreement, concluding that the plea agreement
“saved [the petitioner] TEN (10) calendar years of day for day prison time.” Trial counsel
acknowledged that he sent the petitioner this letter after the petitioner pleaded guilty, but he
testified that he discussed the information contained in the letter with the petitioner before
the plea hearing.

      Following the evidentiary hearing, the post-conviction court entered a written order
denying relief. In the order, the court stated:

               The Court finds that the defendant actually understood the significance
       and consequences of the particular decision to plea [sic] guilty and the decision
       was not coerced. The defendant was fully aware of the direct consequences
       of the plea, including the possibility of the sentence actually received. He
       failed to show that any promise or inducement was made for the entry of the
       plea other than the State agreeing to sentencing to a lesser range tha[n] Career
       Offender.

              The Court finds that [trial counsel] provided adequate assistance.

              Petitioner failed to show any deficient performance by his attorneys or
       that he was prejudiced.

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       ....

              The Court finds that the petitioner has failed to establish the factual
       allegations contained in his petition by clear and convincing evidence. Tenn.
       Code Ann. § 40-30-210. The petitioner has not shown that (a) the services
       rendered by trial counsel were deficient and (b) the deficient performance was
       prejudicial. The petitioner has not shown that the services rendered or the
       advice given was below the range of competence demanded of attorneys in
       criminal cases. The petitioner has not shown that there is a reasonable
       probability that, but for counsel’s deficient performance, the result of the
       proceeding would have been different.

               The Court finds that the petitioner knowingly and voluntarily entered
       a plea, that defendant actually understood the significance and consequences
       of the plea and sentence. The Court finds that the petitioner was not coerced
       into entering a plea.

                                        ANALYSIS

       The petitioner argues that he received the ineffective assistance of counsel based on
counsel’s failure to explain the consequences of the guilty plea, specifically consecutive
sentencing and the improbability of alternative sentencing. As a result, he maintains that his
guilty plea was not knowingly and voluntarily entered. The State argues that the petitioner
has not produced clear and convincing evidence to support his claims. We agree with the
State.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2006). The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.




                                             -6-
Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

      Vaughn repeated well-settled principles applicable to claims of ineffective assistance
of counsel:

       The right of a person accused of a crime to representation by counsel is
       guaranteed by both the Sixth Amendment to the United States Constitution and
       article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

        In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any particular order or even address both
if the [petitioner] makes an insufficient showing of one component.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 370. “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” Id. (quoting
Strickland, 466 U.S. at 694). In order to satisfy the “prejudice” requirement in the context
of a guilty plea, a 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.”



                                              -7-
Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Serrano v. State, 133 S.W.3d 599, 605
(Tenn. 2004).

       When analyzing the validity of a guilty plea, we follow the federal landmark case of
Boykin v. Alabama, 395 U.S. 238 (1969), and the Tennessee landmark case of State v.
Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on other grounds by rule as stated in
State v. Wilson, 31 S.W.3d 189, 193 (Tenn. 2000). State v. Pettus, 986 S.W.2d 540, 542
(Tenn. 1999). In Boykin, the United States Supreme Court held that a trial court may not
accept a guilty plea unless there is an affirmative showing that the guilty plea was “intelligent
and voluntary.” 395 U.S. at 242. When accepting a guilty plea, the trial court is responsible
for “canvassing the matter with the accused to make sure he has a full understanding of what
the plea connotes and of its consequence.” Id. at 244. In Mackey, the Tennessee Supreme
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; otherwise, it will not amount to
an ‘intentional abandonment of a known right.’” 553 S.W.2d at 340.

        The Tennessee Supreme Court has emphasized that a plea is not voluntary if it is the
result of “‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant
threats . . . .’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395
U.S. at 242-43). A trial court must look at a number of circumstantial factors before
determining whether a guilty plea is voluntarily and intelligently made. Id. These factors
include “the 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.” Id. (citing
Caudill v. Jago, 747 F.2d 1046, 1052 (6th Cir. 1984)).

        The record supports the post-conviction court’s ruling that the petitioner failed to
prove his claims by clear and convincing evidence. Regarding the claim of ineffective
assistance of counsel, counsel testified that, before the petitioner’s plea, he discussed with
the petitioner the evidence in the cases and likely sentencing outcomes after trial. He
explained the plea offer, informing the petitioner that it entailed an effective sixteen-year
sentence. Counsel testified that the petitioner was aware the trial court was required to order
the sentences in the separate cases to be served consecutively. Counsel also explained to the
petitioner that the decision regarding alternative sentencing was within the trial court’s
discretion and would be determined at a hearing after the petitioner’s plea. We conclude that
the petitioner has not produced clear and convincing evidence that counsel did not adequately
explain to the petitioner the consequences of the plea agreement relative to consecutive

                                               -8-
sentencing or the likelihood of alternative sentencing. As a result, the petitioner has failed
to prove either deficient performance or prejudice necessary to prove he received the
ineffective assistance of counsel.

       The petitioner has also failed to prove that his plea was not knowing and voluntary.
The record belies his assertion that he did not know the sentences would be served
consecutively and that the trial court would later decide whether he received alternative
sentencing. At the plea submission hearing, the petitioner, when asked by the trial court,
acknowledged understanding both of these facts. At the post-conviction hearing, the
petitioner also conceded that he understood the trial court was required to order consecutive
sentences in his cases. Furthermore, the petitioner’s extensive experience with the court
system accumulated in his lengthy criminal career indicates that he was sufficiently familiar
with the criminal proceedings to understand his guilty plea and the sentences he was to
receive as a result. The record, therefore, supports the post-conviction court’s finding that
the plea was knowing and voluntary. The petitioner is not entitled to relief.

                                      CONCLUSION

       Upon review, we affirm the judgment of the post-conviction court.




                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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