                                                                                         02/06/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               October 17, 2017 Session

           RANDY WAYNE BENNETT v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Williamson County
                   No. CR-160657     Joseph A. Woodruff, Judge


                            No. M2017-00575-CCA-R3-PC


The Petitioner, Randy Wayne Bennett, appeals from the Williamson County Circuit
Court’s denial of his petition for post-conviction relief. The Petitioner contends that the
ineffective assistance of his trial counsel led to his rejection of a more beneficial plea
offer from the State. Discerning no error, we affirm the judgment of the post-conviction
court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

M. Stuart Saylor, Franklin, Tennessee, for the appellant, Randy Wayne Bennett.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Tammy J. Rettig,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             FACTUAL BACKGROUND

       In September 2015, the Petitioner entered into an “open” plea agreement with the
State. The Petitioner agreed to plead guilty to one count of delivery of less than .5 grams
of oxymorphone and one count of failure to appear with his sentences to be determined
by the trial court. Following a November 2015 sentencing hearing, the trial court
determined that the Petitioner was a Range III, persistent offender with respect to the
delivery conviction and a career offender with respect to the failure to appear conviction.
The trial court imposed a sentence of twelve years for the delivery conviction and six
years for the failure to appear conviction. The trial court ordered the sentences to be
served consecutively for a total effective sentence of eighteen years.

        On October 14, 2016, the Petitioner filed a pro se petition for post-conviction
relief, alleging that his trial counsel failed to inform him of a plea offer from the State
that would have recommended a total effective sentence of ten years. Post-conviction
counsel was appointed to represent the Petitioner in this matter, and an amended petition
was filed alleging that trial counsel either advised the Petitioner to reject the State’s ten-
year offer or that trial counsel failed to inform the Petitioner that ten years was the
minimum possible sentence he could receive for the offenses to which he pled guilty.

       At the post-conviction hearing, the Petitioner testified, contrary to his pro se
petition, that trial counsel had informed him of the State’s ten-year offer. The Petitioner
claimed that he only met with trial counsel once prior to his guilty plea. The Petitioner
further claimed that trial counsel did not review the applicable sentencing ranges and
offender classifications with him and that he was unfamiliar with these concepts. The
Petitioner also claimed that trial counsel did not show him the State’s notice of intent to
seek an enhanced sentence based on his prior convictions and that she never reviewed his
criminal history with him.

       The Petitioner testified that trial counsel never informed him of the possible
minimum sentence he could receive. However, the Petitioner later claimed that trial
counsel informed him that he could get a sentence of “six or eight or something” if he
entered an open guilty plea. The Petitioner denied that he agreed to plead “open” in
hopes of serving his sentence on probation or receiving some type of drug treatment. The
Petitioner claimed that he never asked his trial counsel about an alternative sentence.
Rather, the Petitioner insisted that he had wanted to spend a year in drug treatment and
then serve nine years in confinement.

       The Petitioner claimed that he only accepted the open plea agreement because trial
counsel told him that he would probably get a better sentence if a judge sentenced him.
The Petitioner denied getting angry with trial counsel when she attempted to discuss his
criminal history and its impact on his sentences in this case. The Petitioner admitted he
signed a plea petition that stated his trial counsel had advised him of his possible
punishment. However, the Petitioner stated that he did not understand the plea petition
and that he “probably really never read” it before he signed it.

      Trial counsel testified that the State originally offered the Petitioner a twelve-year
plea agreement and that it lowered the offer to ten years as the scheduled trial date
approached. Trial counsel testified that she advised the Petitioner about the State’s offer
“several times.” However, the Petitioner was “very agitated” by the State’s offers. Trial
counsel explained that the Petitioner wanted an agreement where he would serve less
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than a year in prison, receive “some drug treatment,” and serve the remainder of his
sentence on probation.

       Trial counsel testified that the Petitioner originally wanted to take his case to trial,
but that she advised him against that because he had confessed to the delivery offense.
Rather, trial counsel advised the Petitioner to accept the State’s ten-year offer because it
was the minimum possible sentence the Petitioner could have received. However, the
Petitioner rejected this advice. Trial counsel reiterated that the Petitioner wanted to serve
less than a year in confinement and that he accepted the open plea agreement in an
attempt to get an alternative sentence. Trial counsel testified that she explained to the
Petitioner that it was possible he could receive an alternative sentence but that it was “not
probable with [his criminal] history.” Nevertheless, trial counsel argued for full
probation at the sentencing hearing because the Petitioner wanted her to do so.

        Trial counsel testified that it was her practice to advise her clients of “the
minimum and maximum range” they faced and to advise them of what she thought a
“realistic outcome” would be based upon their criminal history and other factors. Trial
counsel testified that she had reviewed the State’s enhancement notice and that she
discussed it with the Petitioner. Trial counsel explained that the Petitioner had a lengthy
criminal history that included thirteen felony convictions and four misdemeanor
convictions. However, the Petitioner became “really agitated” when trial counsel
attempted to discuss how his criminal history would affect his potential punishment. The
Petitioner would tell trial counsel that his criminal history did not matter because he had
“found God” and was “a changed man.”

        Trial counsel denied that she told the Petitioner he could receive a six- or eight-
year sentence. Trial counsel explained that she reviewed the Petitioner’s prior offenses,
determined his offender classifications, determined the applicable sentencing ranges, and
came to the conclusion that the minimum sentence the Petitioner could have received was
ten years. Trial counsel testified that she told the Petitioner the applicable sentencing
ranges for the charged offenses and that she told the Petitioner that a ten-year sentence
was the minimum sentence he could receive. Trial counsel admitted that while she did
take the Petitioner’s offender classifications into account when she determined the
applicable sentencing ranges, she forgot to tell the Petitioner what his offender
classifications would be because the Petitioner was “just so heated in arguing” with her
that his criminal history was not relevant.

        On February 28, 2017, the post-conviction court entered a written order denying
post-conviction relief. The post-conviction court found that the Petitioner’s testimony
was not credible. In contrast, the post-conviction court found trial counsel to be “highly
credible.” The post-conviction court concluded that trial counsel had not been ineffective
in her representation of the Petitioner, that she had “repeatedly advised” him to accept the
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State’s ten-year offer, and that the Petitioner had knowingly and voluntarily entered the
open guilty plea in hopes of receiving an alternative sentence. This timely appeal
followed.

                                       ANALYSIS

        The Petitioner contends that the ineffective assistance of trial counsel caused him
to reject the State’s more favorable ten-year offer and agree to an “open” guilty plea. The
Petitioner’s argument on appeal is based largely on his post-conviction hearing
testimony. The Petitioner argues that his testimony should be accredited over trial
counsel’s because “[t]he fact that the plea bargain offer was rejected is itself the evidence
that improper advice was given regarding the possible sentencing outcome.” The State
responds that the Petitioner failed to establish that trial counsel performed deficiently or
that he was prejudiced by her performance.

       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 post-conviction 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 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.
However, we review the post-conviction court’s application of the law to its factual
findings de novo with no presumption of correctness. Id. at 457.

       Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger, 279 S.W.3d at 293 (citing U.S. Const. amend. VI; Cuyler v. Sullivan,
446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made
under the Sixth Amendment to the United States Constitution, 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).

       Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result
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of the proceeding would have been different.” Id. at 694. “Because a petitioner must
establish both prongs of the test, a failure to prove either deficiency or prejudice provides
a sufficient basis to deny relief on the ineffective assistance claim.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). 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”
to the open plea agreement and would have accepted the State’s ten-year offer. 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 trial counsel’s testimony over the
Petitioner’s. The evidence does not preponderate against this finding. The Petitioner
initially claimed in his pro se petition that trial counsel never informed him of the State’s
ten-year offer. At the post-conviction hearing, the Petitioner admitted that trial counsel
had informed him of the State’s offer but claimed that trial counsel had not advised him
of what the minimum sentence would be for the offenses. However, the Petitioner later
claimed that trial counsel incorrectly advised him that the minimum sentence would be
“six or eight or something.”

       In contrast, trial counsel testified that she reviewed the Petitioner’s criminal
history, determined the applicable offender classifications, determined the applicable
sentencing ranges, came to the conclusion that ten years was the minimum sentence the
Petitioner could receive, and advised the Petitioner of this, except for not telling the
Petitioner what offender classifications were applicable. Trial counsel testified that she
advised the Petitioner to accept the State’s ten-year offer, in part because of the
Petitioner’s lengthy criminal history, but that the Petitioner refused because he believed
his criminal history was not relevant and he wanted to serve less than a year in
confinement. Trial counsel then argued for a sentence of full probation at the sentencing
hearing with the Petitioner’s approval.

       Contrary to the Petitioner’s argument, the fact that he rejected the State’s ten-year
offer and entered an open guilty plea does not in and of itself evidence that he received
ineffective assistance from trial counsel. Rather, the Petitioner rejected the advice of trial
counsel in an attempt to secure an alternative sentence despite trial counsel’s advice that
such a sentence was “not probable.” Accordingly, we conclude that the post-conviction
court did not err in denying the petition.

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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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