                                                                                         06/27/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs February 23, 2017 at Knoxville

           SHAUN RONDALE CROSS v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Marshall County
                      No. 15-CR-129      F. Lee Russell, Judge


                            No. M2016-01578-CCA-R3-PC


The Petitioner, Shaun Rondale Cross, appeals as of right from the Marshall County
Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends
that his guilty plea was not voluntary because one of his trial attorneys “terrorized” him
by threatening that he would receive “an all[-]white jury” that would “hang” him if he
went to trial. 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 JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

M. Wesley Hall IV, Unionville, Tennessee, for the appellant, Shaun Rondale Cross.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Robert J. Carter, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                              FACTUAL BACKGROUND

        On October 2, 2014, the Petitioner pled guilty to one count of possession with
intent to sell 26 grams or more of cocaine and received a sentence of twenty-five years as
a Range III, persistent offender. The Petitioner filed a timely pro se petition for post-
conviction relief. The gravamen of the petition was that the Petitioner had been
“terrorized” into pleading guilty when one of his trial attorneys threatened him by stating
that he would face “an all[-]white jury” that would “hang” him if he did not accept the
State’s plea offer.1 Counsel was appointed to represent the Petitioner, and a post-
conviction hearing was held on this matter.

        Original counsel testified that she was appointed to represent the Petitioner.
Original counsel recalled discussing the facts of the case with the Petitioner, reviewing
the discovery materials with him, and discussing with him the fact that he had enough
prior convictions to qualify as a career offender. Original counsel advised the Petitioner
that he faced a minimum sentence of thirty years to be served at sixty percent if convicted
at trial. Original counsel testified that the Petitioner understood and wanted to go
forward with a jury trial.

       Original counsel admitted that during these initial discussions, she spoke to the
Petitioner about the possible composition of the jury, the demographics of Marshall
County, and that, in her opinion, Marshall County was “a particularly conservative
jurisdiction.” Original counsel denied that she told the Petitioner that “he was going to
get an all-white jury.” She also denied that she told the Petitioner that the jury would
“hang” him, stating that she did not “think [she] would use a term like that . . . [e]ven
figuratively.” Original counsel testified that after her discussion with the Petitioner about
the possible composition of the jury, “he still chose to go forward with a jury trial.”

       As the trial date neared, the Petitioner’s family hired a different attorney to
represent him. Due to the closeness of the scheduled trial date, the trial court ordered
original counsel to continue to represent the Petitioner and to assist successor counsel in
preparing for trial. Original and successor counsel then received supplemental discovery
from the State. The supplemental discovery included recordings of phone calls the
Petitioner had made from jail. Both original and successor counsel reviewed the
recordings and discussed them with the Petitioner.

       Original counsel believed that the recordings were “very incriminating.” Original
counsel recalled that the recordings contained “an admission” by the Petitioner that was
“pretty close to a confession.” After reviewing the recordings, the Petitioner wanted to
reopen plea negotiations. Original counsel testified that “it was not until [they] received
[the] supplemental discovery that [the Petitioner] chose to enter the plea.” Given the
nature of the supplemental discovery, the trial court broke with its normal policy and
allowed the Petitioner to enter a guilty plea a few days before the scheduled trial date.



1
  The petition raised other grounds for post-conviction relief. However, this issue was the main issue
addressed at the post-conviction hearing and the only issue raised on appeal. Additionally, the
Petitioner’s post-conviction counsel at the post-conviction hearing and on appeal couched this issue as
one of ineffective assistance of counsel, unlike the pro se petition.
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        Successor counsel recalled that the Petitioner raised “the issue of the jury and jury
makeup” and that they had “a discussion about just juries in general.” However,
successor counsel did not recall the Petitioner’s ever stating to him that original counsel
had “made the statement that he’d be tried by an all-white jury.” Successor counsel
testified that had the Petitioner made such a claim he would have, “[a]t a minimum,”
spoken to original counsel about it. Furthermore, successor counsel testified that the
Petitioner wanted to proceed to trial even after their discussion about juries.

        Successor counsel testified that it was only after they had received and reviewed
the supplemental discovery that the Petitioner decided to plead guilty. Successor counsel
agreed with original counsel’s assessment of the recordings. Successor counsel testified
that the recordings were “a hurdle too high to overcome given the risk involved.”
Successor counsel negotiated the plea agreement with the State and was able to get the
State to reduce its original offer of a thirty-year sentence to be served at sixty percent to a
sentence of twenty-five years to be served at forty-five percent. Successor counsel
testified that he was not able to attend the plea submission hearing, but that he reviewed
the plea agreement with the Petitioner before the hearing.

        The Petitioner claimed that his family hired successor counsel because original
counsel urged him to accept the plea offer of twenty-five years. The Petitioner further
claimed that he did not want to accept the plea agreement because he “wasn’t in
possession of the drugs.” Contrary to the testimony of original and successor counsel, the
Petitioner testified that he accepted the plea offer after original counsel told him “it was
going to be an all-white jury” and that he “was going to be found guilty if [he] went to
trial.” The Petitioner denied that he pled guilty because of the recordings of his jail
phone calls. However, the Petitioner admitted that original counsel’s alleged statement
about the possible jury composition was not the only reason that he pled guilty.

       The Petitioner claimed that he told successor counsel about the “all-white jury”
comment but that successor counsel “never responded on it.” The Petitioner admitted
that he told the trial court during the plea submission hearing that he was satisfied with
the performance of both original and successor counsel. The Petitioner also admitted that
he told the trial court that no one had threatened him into pleading guilty. The Petitioner
claimed that he did not tell the trial court about original counsel’s alleged threat because
“it was [a] no-win situation.”

       The post-conviction court denied post-conviction relief. In doing so, the post-
conviction court accredited the testimony of original and successor counsel over the
Petitioner’s testimony. The post-conviction court found that original counsel never made
the threatening statements claimed by the Petitioner. Furthermore, the post-conviction
court concluded that the Petitioner had failed to show that he pled guilty because of the

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alleged statements. The post-conviction court found that the Petitioner chose to accept
the plea agreement after he received the incriminating recordings of his jail phone calls.

                                        ANALYSIS

       On appeal, the Petitioner contends that original counsel “terrorized” him by
threatening that he would receive an “all-white jury” if he went to trial, that these
statements constituted ineffective assistance of counsel, and that they caused him to
involuntarily plead guilty. The State responds that the Petitioner has failed to prove his
factual allegations by clear and convincing evidence.

       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
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
                                             -4-
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 original and successor counsel that the
statements alleged in the petition were never made. There is no proof in the record
before us that would preponderate against that finding. Furthermore, the evidence at the
post-conviction hearing established that the Petitioner chose to plead guilty after
reviewing the State’s supplemental discovery. Accordingly, we conclude that the post-
conviction court did not err in denying the petition.

                                     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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