        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs August 16, 2016 at Knoxville

    TIMOTHY RICHARD SINGLETON v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2013-B-1136    Cheryl A. Blackburn, Judge


               No. M2015-02319-CCA-R3-PC – Filed October 17, 2016


The Petitioner, Timothy R. Singleton, appeals as of right from the denial of his petition
for post-conviction relief, wherein he challenged the validity of his guilty plea to
aggravated robbery. See Tenn. Code Ann. § 39-13-402. On appeal, the Petitioner
contends that he did not enter into his guilty plea knowingly and voluntarily because he
did not understand the agreement due to his mental illness. Additionally, he claims his
attorney provided ineffective assistance of counsel by failing to adequately investigate
the Petitioner’s mental health history and using such information to arrange a better plea
deal with the State. Finally, the Petitioner claims he received ineffective assistance of
counsel based on trial counsel’s failure to file a motion to suppress his confession.
Following our review, 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. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and NORMA MCGEE OGLE, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Timothy Richard Singleton.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and Megan King, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                       OPINION

                              FACTUAL BACKGROUND

      On May 3, 2013, the Davidson County Grand Jury indicted the Petitioner for one
count of aggravated robbery. On August 15, 2013, the Petitioner pled guilty as charged
in exchange for a sentence of eight years, at eighty-five percent, to be served in the
Tennessee Department of Correction. In the “special conditions” section of the
judgment, the trial court recommended that the Petitioner serve his sentence at the Lois
M. DeBerry Special Needs Facility (DeBerry).

       The Petitioner timely filed a pro se petition for post-conviction relief from the
judgment. Upon appointment of counsel, the Petitioner filed an amended petition. The
post-conviction court held an evidentiary hearing, and the Petitioner testified first.

        The Petitioner explained that he was then housed in the Morgan County
Correctional Facility. He testified that the same attorney represented him in both general
sessions and criminal court. He claimed that during the time leading up to his guilty plea
agreement, he was housed in the Blackwood Detention Center, and during this time, his
trial counsel visited him twice to discuss his case. He stated the conversations lasted
“thirty, maybe forty-five minutes if that.” The Petitioner testified that trial counsel
explained the possible penalties, including the sentencing range. Additionally, he said
that trial counsel presented him with the eight-year guilty plea offer from the State during
his first court date.

       The Petitioner further testified that during this conversation in which his trial
counsel explained the State’s plea offer, the Petitioner was under the influence of
medication. When asked what type of medication he was taking, the Petitioner
responded that “they had [him] on . . . Risperdal and a couple other medications that [he]
got from the county psych people.” He then testified that he was diagnosed with
“[b]ipolar one, major depressive disorder.” The Petitioner was then asked if he had ever
met with an individual from Vanderbilt who may have assessed his mental health history.
The Petitioner recalled meeting with a woman from Vanderbilt but claimed that this
person did not “ask [him] about [his] mental health history[,]” but instead asked “[him]
did [he] know anything about the proceedings of court.”

       The Petitioner explained that he had an extensive mental health history. He
described the following:

       I have multiple suicide attempts. Centennial has records of that. I’ve been
       housed in Middle Tennessee for about forty-five days. There’s another
       hospitalization I had. I forgot the name of the hospital, but it’s on Eastland
       and Gallatin. Mental Health Co-Op and the crisis center has numeral [sic]
       evidence of me going there and being on respite houses, getting new
       medication. I was currently -- even at the time of this I was currently
       housed on mental health property from Park Center.


                                            -2-
The Petitioner explained trial counsel told him that “she was going to send somebody out
to evaluate [him],” and he believed “the evaluation was going to be about [his] mental
health background, not the court proceedings.”

        The Petitioner claimed that he was under the influence of medication the day he
pled guilty to aggravated robbery pursuant to an agreement with the State. He stated that
he had taken “Risperdal” and other medications, but he “couldn’t remember the name of
them.” The Petitioner claimed that he complained about his mental state to trial counsel
the day he entered the guilty plea and said “[he] asked her specifically why she never
tried to speak up on [his] mental health history and why she didn’t have any paperwork
on [his] mental health history.” The Petitioner claimed his counsel’s response was that
she would “try to get [him] recommended to DeBerry.”

        The Petitioner further testified about the nature of the discussions he had with trial
counsel regarding the State’s plea offer. When asked if the Petitioner understood “what
[he was] pleading guilty to,” the Petitioner responded that “[he] understood, but it wasn’t
an intelligent plea because [he] felt like . . . [he] was backed into a corner, like [trial
counsel] kept saying . . . you don’t have to take [the plea offer], you can wait, but [the
offer is] not going to change.” The Petitioner said he asked his trial counsel about
“showing [the State] the mental health paperwork and getting [his] record[,]” to which
she responded, “it wouldn’t matter.” According to the Petitioner, trial counsel explained
that “the prosecutor didn’t want to see it.”

       The Petitioner also testified that he believed there were other pretrial defense
strategies that his attorney should have pursued. He elaborated and claimed that “she
should have at least let [him] know the extent of how serious [his] mental health
paperwork would have been and had [him] evaluated correctly for [his] mental health
background and not the competency of the court.”

        The Petitioner was then asked about his education level. The Petitioner indicated
he had completed school through the ninth grade and that he was dyslexic. When asked
if he was able to understand the terms of the plea agreement, the Petitioner stated that “all
[he] remember[ed] [was] just saying, yes, [he] under[stood] and signing it. [He] didn’t
really even get a chance to read anything.”

       The Petitioner was also questioned about a statement he had previously given to
law enforcement regarding his case. When asked if he was under the influence of any
kind of medication at the time he made this statement, the Petitioner explained that “[he]
was definitely under the influence, and [he] had been up for about three or four days, a lot
of stressful nights going through things with [his] family life, pressure again because of
what had been going on. So when [law enforcement] came and got [him] . . . [he] had
alcohol and other narcotics in [his] system.” The Petitioner was asked if the presence of
                                             -3-
these substances “affected [his] ability to voluntarily consent . . . to giving a statement[,]”
to which he responded, “Yeah[.]”

       The Petitioner then testified about what his defense would have been had his case
gone to trial. The Petitioner explained he believed his defense at trial would have been
“not guilty by reason of mental disease or defect.” He further explained that the woman
from Vanderbilt was the only person to evaluate him. He asserted that no one else did
any sort of “assessment or evaluation to determine whether or not [he] was competent or
insane . . . at the time of the alleged offense.”

        On cross-examination the Petitioner was asked if he remembered speaking to his
attorney at his “four [c]riminal [c]ourt appearances[,]” and the Petitioner said, “if [he]
came to court, yeah, [he] talked to her. There wasn’t no time that [trial counsel] wasn’t
[in court].” The Petitioner agreed that “every time [he] came to court [he] talked to [trial
counsel].” The Petitioner also explained trial counsel came to visit him twice while he
was in custody at Blackwood and, during one of those visits, she gave him “a copy of
discovery.” The Petitioner stated that trial counsel told him about the State’s plea offer.
When asked if his case “was continued multiple times for [him] to think about that
offer[,]” the Petitioner responded, “It was continued and same thing, yes.” The Petitioner
was then asked if he had discussed his “options of either accepting that deal or taking the
case to trial[.]” The Petitioner explained that he

       talked to [trial counsel] about the options of getting [his] records and seeing
       what that was going to do. And when [trial counsel] let [him] know that
       [the prosecutor] wasn’t going to pay no attention to that . . . then [he] asked
       [trial counsel] for a professional opinion and that was her professional
       opinion.

Counsel for the State asked the Petitioner if he “understood [he] had the right to go to
trial if [he] wanted to, but [he] chose to plead guilty.” The Petitioner testified that “I
chose to plead guilty because I took her opinion, her professional opinion, because she’s
saying the defense I asked her about wasn’t going to go any further.”

       The Petitioner was questioned about his guilty plea. The Petitioner testified that
he did not remember reading the plea agreement, but he did remember signing it. The
Petitioner was asked if he told the judge he could read, and the Petitioner explained that
he told the judge he could read, he had obtained his GED, and he had started his first
semester of college. The Petitioner also testified that he told the judge he had thoroughly
discussed “everything about [his] case with [trial counsel.]” The Petitioner also agreed
that he told the judge he was taking medication at the time of entering the plea but that it
“wasn’t affecting [his] ability to understand.” When asked if he told the judge at the plea
hearing that he understood his right to a trial, the Petitioner said, “That’s correct.” The
                                              -4-
Petitioner also agreed that he told the trial judge he was “satisfied with the work [trial
counsel] did.”

       Following cross-examination, the court asked the Petitioner several questions.
The Petitioner clarified that he left school after completing the ninth grade, but he later
completed his GED and had started his first semester of college. He said that he could
read but explained that reading was difficult for him due to his dyslexia. The court asked
him if he remembered that trial counsel asked for a recommendation that the Petitioner
serve his sentence at DeBerry, and the Petitioner testified that “[y]es, he remember[ed]
the recommendation to DeBerry.” When the court stated that the Petitioner’s attorney
“was obviously aware of [his] condition” because “she asked about recommendations[,]”
the Petitioner explained that “[trial counsel] asked for the recommendation because [the
Petitioner] kept mentioning the mental health court. But she never obtained any records
that I asked her for the mental health system, period.” The court again asked the
Petitioner if he “understood [he] had a right to go to trial if [he] wanted to.” The
Petitioner repeated that he trusted his trial counsel but claimed that he did not actually
understand anything about “the system.” He further explained:

       [He] trusted his attorney. Until [he] found out differently and when [he]
       talked to somebody that knew about law and he showed [the Petitioner] in
       law books how [his] defense and [trial counsel] should have took [his]
       defense is the only reason [he] came back on post[-]conviction.

        The State then called the Petitioner’s trial counsel to testify. Trial counsel testified
that she was a Tennessee licensed attorney and had been licensed for nine and a half
years. She stated she had been an assistant public defender for those nine years and that
one hundred percent of her legal practice had been criminal defense. Trial counsel
explained that she was assigned to the Petitioner’s case. She stated that she attended his
preliminary hearing, attended his arraignment, and filed for discovery regarding his case.
She testified that she met with the Petitioner on his “arraignment date” and then met with
him on “three or four discussion dates.” Trial counsel explained that most of these
discussion dates involved her discussing the Petitioner’s case with the State and “trying
to get a plea offer and then going back and talking to [the Petitioner].”

        Also, trial counsel testified that she met with the Petitioner outside of those court
dates. She stated that she “met with [the Petitioner] . . . twice before he was indicted and
then three times since he was indicted.” She explained that the first three visits were to
check in on the Petitioner, inquire about his medication, and make sure “that he was
good” and “stable.” The three visits following the Petitioner’s indictment were to review
and discuss discovery, including the statement the Petitioner made to the police. She
testified that these visits occurred at the facility where the Petitioner was being held and
that she discussed with him the charges brought against him, his range of punishment,
                                              -5-
and possible defenses that he might have. She further testified that she and the Petitioner
discussed the risk of going to trial, and she said that she “thought the defense in his case
would have been that it was a simple robbery and not an aggravated robbery. And the
video surveillance was not very helpful to us on that.” Trial counsel was asked if she
remembered the Petitioner’s asking her about filing a motion to suppress his statement,
but she did not remember his mentioning that to her. She stated that she could not
“remember looking into [suppressing the statement,]” but she knew that the Petitioner
“gave a recorded interview to the police.” She claimed that she watched the video
recording and that she did not “have notes of any issues with the statement.”

         Trial counsel further testified that the State made an offer regarding the
Petitioner’s case. She stated that she thought the State made an offer “by the second
discussion date, and then it never changed.” She then explained that the Petitioner’s case
was continued several times so that the Petitioner would have time to consider the State’s
offer and discuss it with trial counsel and his family. Trial counsel also testified that she
explained to the Petitioner his right to go to trial and what might happen at such a trial.
She said that, eventually, the Petitioner decided to accept the State’s offer rather than go
to trial.

       The State then asked trial counsel to discuss the Petitioner’s mental health history.
Trial counsel explained that the first time she met the Petitioner “he seemed very flat”
and that he “was completely out of it.” Because of this interaction, trial counsel
consulted an attorney in her office who had experience with “mental health court[.]” She
then postponed the Petitioner’s preliminary hearing and placed the Petitioner on forensic
evaluation. She testified that following his forensic evaluation, “he came back competent
and sane.” She further testified that the next time she saw the Petitioner, “he seemed to
be a lot better” and that she thought “his medication had been corrected.” After seeing
him in an improved state, she proceeded with a preliminary hearing.

       Trial counsel further stated that following the Petitioner’s forensic evaluation, she
did not have any concerns that the Petitioner’s medication was not working or that he did
not understand what he was doing. She said that he was prescribed medication and that,
to her knowledge, the Petitioner took this medication throughout her representation. Trial
counsel was asked if “at the time of [the Petitioner’s] plea [she] [felt] like he could fully
appreciate the nature and the consequences of the offense and the plea,” to which trial
counsel responded, “Yes.” Trial counsel testified that she met with the Petitioner the day
he pled guilty to go over the agreement with him. When asked whether she read the
agreement to the Petitioner or if he read the agreement, trial counsel said that she could
not “remember specifically, but generally [she] always read [the agreement] and ha[d] it
for the client to see.” She stated that the Petitioner signed the plea agreement, and she
did not remember his having any questions or concerns regarding the agreement.

                                             -6-
       On cross-examination, trial counsel testified further about the Petitioner’s possible
defenses if he had chosen to proceed to trial. She agreed that the defense strategy would
have been to argue that the Petitioner was guilty of simple robbery rather than aggravated
robbery. Trial counsel also explained that she had the forensic evaluation done to
determine the Petitioner’s competency to stand trial and whether a not guilty by reason of
insanity defense would be supported. Trial counsel testified that when she received the
report from Vanderbilt regarding the Petitioner’s evaluation, she visited him before the
preliminary hearing and told him the results of the testing. Trial counsel testified that
when she met with the Petitioner, she also discussed the State’s plea offer of an eight-
year sentence, and she affirmed that this offer never changed. She then said that she did
not hire an investigator for the Petitioner’s case because she did not think one was
necessary.

       The transcript of the Petitioner’s guilty plea proceeding was entered as an exhibit
at the post-conviction hearing. During his guilty plea submission hearing, the Petitioner
told the court that he had completed his first year of college and that he read through his
plea agreement together with his trial counsel. He testified that he did not have any
questions while reading over the agreement, and he did not have any questions for the
court either. The court then asked the Petitioner if he was taking any medications, and
the Petitioner responded that he was taking “Risperdal” and “two other medicines.” The
court asked the Petitioner the following questions:

       Q: Now, the fact that you’ve taken your medication, is that affecting your
       ability to understand what you’re doing?

       A: No, ma’am.

       Q: And are you having any trouble understanding what you’re doing?

       A: No, ma’am.

       Q: Do you understand . . . that you don’t have to plead guilty? You have a
       right to go to trial but that you are giving that right up as part of this plea?

       A: Yes, ma’am.

       Q: Is anybody forcing you to do that or promising you anything other than
       what we’ve talked about?

       A: No, ma’am.



                                             -7-
       Q: Have you been satisfied with the work [trial counsel] has done on your
       case?

       A: Yes, ma’am.

Also, the court asked the Petitioner’s trial counsel if she had discussed this plea
agreement with the Petitioner and if she believed that he understood what he was doing
and was “entering this plea freely and voluntarily[,]” to which trial counsel responded,
“Yes, your honor.” After listening to the State’s proof regarding the Petitioner’s case and
determining that the Petitioner’s plea was “voluntarily and factually based[,]” the court
found the Petitioner guilty of aggravated robbery, imposed an eight-year sentence, and
recommended that the Petitioner serve his sentence at DeBerry.

       Additionally, the letter from Vanderbilt regarding the Petitioner’s forensic
evaluation was entered as an exhibit at the post-conviction hearing. The letter was from
the Director of the Vanderbilt Forensic Evaluation Team (Director), and it indicated that
the Petitioner had been evaluated to determine his competency to stand trial and his
mental condition at the time of the alleged offense. The Director interviewed the
Petitioner and reviewed “available case-related, jail, and mental health documents.” The
Director made the following conclusions:

       In regards to [the Petitioner’s] competency to stand trial, we have
       concluded that [the Petitioner’s] mental condition at the time of the
       evaluation was such that he had sufficient present ability to consult with his
       lawyer with a reasonable degree of rational understanding and a rational as
       well as factual understanding of the proceedings against him. It is
       recommended that he continue to receive and remain compliant with mental
       health services in jail to maintain competency.

       After the completing of the insanity evaluation based on T.C.A. 39-11-501,
       it is our opinion that a defense of insanity cannot be supported. This
       opinion is based on the determination that at the time of the commission of
       the act(s) constituting the alleged offenses, the available evidence does not
       suggest that [the Petitioner] was experiencing mental illness that caused
       him to be unable to appreciate the nature or wrongfulness of such alleged
       act(s).

       The post-conviction court subsequently denied the petition. In its order denying
the Petitioner relief, the post-conviction court found that the Petitioner’s trial counsel
reviewed the charges brought against the Petitioner with him and discussed the risks of
going to trial. Trial counsel discussed the discovery with the Petitioner, and she had him
complete a forensic evaluation regarding his mental health. The court noted that the
                                            -8-
Petitioner had two unappealing options to either accept the State’s plea offer or proceed
to trial in a “case where the State had strong evidence . . . .” The court then stated,
“Granting post-conviction relief would simply place the Petitioner in that same position
of either going to trial or accepting the State’s offer should the State be willing to engage
in plea negotiations.” The court concluded by stating, “A review of the record here,
including the guilty plea transcript, affirmatively demonstrates that the [P]etitioner’s
guilty plea was made with an awareness of the consequences, and, as such, the guilty plea
was voluntarily, intelligently, and knowingly entered.”

       On December 2, 2015, the Petitioner filed a timely notice of appeal.

                                           ANALYSIS

       On appeal, the Petitioner argues that the post-conviction court erred in finding that
the Petitioner entered his guilty plea knowingly. The Petitioner argues that his guilty plea
was not knowing and voluntary because he was unable to understand his plea agreement
due to his mental illness. The Petitioner further argues that his trial counsel failed to
adequately investigate his mental illness in an effort to persuade the State to reduce the
charge brought against the Petitioner or find that the Petitioner was unfit to stand trial.
The Petitioner contends that he would have demanded a trial by jury if he had understood
the nature and consequences of his plea. The State responds that the Petitioner entered a
knowing and voluntary guilty plea.

        As a separate issue, the Petitioner argues that he did not receive effective
assistance of counsel at his trial due to trial counsel’s deficient performance.
Specifically, the Petitioner argues that his trial counsel did not thoroughly investigate his
mental health history in an effort to show that the Petitioner was unfit to stand trial. The
Petitioner also argues that because trial counsel did not have an adequate understanding
of the Petitioner’s mental health history, trial counsel failed to file a motion to suppress a
statement he made to law enforcement. The Petitioner contends he was under the
influence of narcotics and alcohol at the time he made this statement. The Petitioner
avers that this claim of intoxication, along with his mental health history, should have led
trial counsel to file a motion to suppress the Petitioner’s statement to law enforcement.
The State responds that he did receive effective assistance of counsel.1

                                          I. Standard of Review


1
  The Petitioner has commingled his arguments regarding his involuntary and unknowing guilty plea
claim and his ineffective assistance of counsel claims. For the sake of clarity, we will address them
separately in the analysis section of this opinion.

                                                 -9-
       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. 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 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.

                           II. Involuntary and Unknowing Guilty Plea

        We discern the Petitioner’s contention in this regard to be that his mental illness
rendered his guilty plea unknowing and involuntary. When analyzing the voluntariness
of a guilty plea, we look to the federal standard announced in Boykin v. Alabama, 395
U.S. 238 (1969), and the state standard set forth in State v. Mackey, 553 S.W.2d 337
(Tenn. 1997). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin, the United
States Supreme Court held that there must be an affirmative showing in the trial court
that a guilty plea was voluntarily and knowingly given before it can be accepted. 395
U.S. at 242. Similarly, in Mackey the Tennessee Supreme Court required an affirmative
showing of a voluntary and knowledgeable guilty plea, namely, that the defendant has
been made aware of the significant consequences of such a plea. Pettus, 986 S.W.2d at
542. A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The
trial court must determine if the guilty plea is “knowing” by questioning the defendant to
make sure he or she fully understands the plea and its consequences. Pettus, 986 S.W.2d
at 542; Blankenship, 858 S.W.2d at 904.

        At the outset, we note that the Petitioner has failed to present any medical records
or testimony, other than his own assertions, in support of his claim that his mental health
illness rendered his plea unknowing or involuntary. Ordinarily, a petitioner should
provide medical records or medical testimony when relying on a medical condition to
assert that a plea was not entered voluntarily or knowingly. See Darrell Wayne Bumpas
v. State, No. M2010-00222-CCA-R3-PC, 2010 WL 5140673, at *8 (Tenn. Crim. App.
Dec. 14, 2010) (concluding that the petitioner’s “bare allegations, unsupported by
medical testimony, about the use of psychiatric drugs was insufficient to support a claim
that his guilty plea was not knowingly and voluntarily entered”).
                                            -10-
       Moreover, at the guilty plea submission hearing, the Petitioner indicated that he
understood the charges against him and the details of his guilty plea. When asked if he
was taking any medications at the time of the hearing, the Petitioner asserted that he was
taking several medications, but he informed the trial court that these medications were
not affecting his ability to understand what he was doing. The Petitioner further told the
court that he understood he had the right to take his case to trial rather than entering a
guilty plea. And finally, the Petitioner assured the court that he was satisfied with the
work trial counsel had done on his case. Additionally, trial counsel informed the trial
court that she had discussed the plea agreement with the Petitioner and that she believed
he was entering the plea knowingly and voluntarily.

        The post-conviction court found that the Petitioner understood what he was
pleading guilty to and knew that if he did not wish to plead guilty, he could take his case
to trial. In its order denying the Petitioner post-conviction relief, the court noted that the
“Petitioner agreed that the State extended an offer on the first discussion date and that the
case was continued for [the] Petitioner to consider whether to accept the offer or proceed
to trial.” The post-conviction court stated that the Petitioner “conceded that . . . during
the plea hearing he told the judge that he had discussed his case with his attorney, that he
was taking medication and it did not affect his decision-making, and that he was satisfied
with his [t]rial [c]ounsel.” The court further observed that the Petitioner had received his
GED and had enrolled in college classes. Moreover, the court noted that the Petitioner
testified he was able to read, however due to his dyslexia, he had to read a document
multiple times before he could fully understand it.

       The post-conviction court concluded that the Petitioner had “two unappealing
options: to go to trial in a case where the State had strong evidence – including video
surveillance, witness identification from a photo lineup, and his own confession – or to
accept the State’s only offer to plead guilty to the offense charged for a sentence to be
served at a mandatory 85% release eligibility.” Granting the Petitioner relief “would
simply place [the] Petitioner in that same position of either going to trial or accepting the
State’s offer should the state be willing to engage in plea negotiations.” The post-
conviction court concluded that the Petitioner’s plea was entered voluntarily and
knowingly, and the record supports this conclusion.

                           III. Ineffective Assistance of Counsel

       The Petitioner also asserts that his plea was not knowing or voluntary due to the
ineffective assistance of his trial counsel. Criminal defendants are constitutionally
guaranteed the right to effective assistance of counsel. Dellinger v. State, 279 S.W.3d
282, 293 (Tenn. 2009) (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)
                                             -11-
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). “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).

        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. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. In reviewing
counsel’s conduct, a “fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective
at the time.” Id. at 689. “Thus, the fact that a particular strategy or tactic failed or even
hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is made to trial strategy
or tactical choices if they are informed ones based upon adequate preparation. Hellard v.
State, 629 S.W. 2d 4, 9 (Tenn. 1982).

       In the context of a guilty plea, the effective assistance of counsel is relevant only
to the extent that is 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).

        Regarding trial counsel’s failure to adequately address the Petitioner’s mental
health, the post-conviction court concluded that the Petitioner did not suffer from
deficient representation. The evidence presented at the post-conviction hearing reflects
that trial counsel discussed the plea agreement with the Petitioner and explained that if he
chose not to accept the deal, he could proceed to trial. After meeting with the Petitioner,
trial counsel was concerned about the Petitioner’s mental health and ordered a mental
health evaluation for the Petitioner. The results of this evaluation revealed that the
Petitioner was competent to stand trial and that a defense of insanity could not be
supported. Trial counsel discussed the plea offer, sentence range, and potential defense at
trial. She also discussed the risks of taking the case to trial with the Petitioner. The
Petitioner decided to accept the State’s plea offer. The record supports the post-
                                            -12-
conviction court’s conclusion that the Petitioner received effective assistance of counsel
in this regard.

      Next, the Petitioner contends that his trial counsel was ineffective for not filing a
motion to suppress his statement to law enforcement. In order to demonstrate that
counsel’s failure to file a motion to suppress prejudiced the petitioner, this court has
addressed the evidence necessary at a post-conviction hearing:

       It is well settled that when a [p]etitioner in post-conviction proceedings
       asserts that counsel rendered ineffective assistance of counsel by failing to
       call certain witnesses to testify, or by failing to interview certain witnesses,
       these witnesses should be called to testify at the post-conviction hearing;
       otherwise, [p]etitioner asks the [c]ourt to grant relief based upon mere
       speculation. Black v. State, 794 S.W.2d 752, 757 (Tenn. 1990). The same
       standard applies when a [p]etitioner argues that counsel was
       constitutionally ineffective by failing to file pre-trial motions to suppress
       evidence. In order to show prejudice, [a] [p]etitioner must show by clear
       and convincing evidence that (1) a motion to suppress would have been
       granted and (2) there was a reasonable probability that the proceedings
       would have concluded differently if counsel had performed as suggested.
       Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006) (citing Strickland, 466
       U.S. at 687). In essence, the petitioner should incorporate a motion to
       suppress within the proof presented at the post-conviction hearing.

Terrance Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436, at *8 (Tenn.
Crim. App. Sept. 12, 2011). This court further explained, “In other words, it is
incumbent upon a petitioner to prove that what he says trial counsel should have done
would have had merit and produced admissible, relevant evidence.” Sanders v. State, No.
W2012-01685-CCA-R3PC, 2013 WL 6021415, at *4 (Tenn. Crim. App. Nov. 8, 2013).

        At the post-conviction hearing, the Petitioner failed to present any evidence to
suggest that the trial court would have granted a motion to suppress his statement to law
enforcement. Trial counsel testified that she reviewed this statement and had made no
notes mentioning any problems with the admissibility of the Petitioner’s statement. The
Petitioner offered no proof at the post-conviction hearing that his statement to law
enforcement was not voluntary other than his assertion that he “was definitely under the
influence” when he made the statement because he had “alcohol and other narcotics in
[his] system” when law enforcement detained him for questioning. We agree with the
post-conviction court’s conclusion that trial counsel’s failure to file a motion to suppress
this statement did not amount to ineffective assistance.

                                  CONCLUSION
                                             -13-
      Based upon consideration of the foregoing and the record as a whole, the post-
conviction court’s denial of the petition for post-conviction relief is affirmed.




                                                  __________________________________

                                                  D. KELLY THOMAS, JR., JUDGE




                                        -14-
