        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  March 6, 2013 Session

                 MICHAEL YOUNG v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                      No. 10-03359     W. Mark Ward, Judge


                 No. W2012-01127-CCA-R3-PC - Filed April 10, 2013


Petitioner, Michael Young, pleaded guilty to two counts of attempted first degree murder and
one count of aggravated robbery in exchange for an effective forty-year sentence.
Subsequently, petitioner filed a petition for post-conviction relief. After an evidentiary
hearing, the post-conviction court denied relief. On appeal, petitioner argues that trial
counsel provided ineffective assistance by failing to file a motion to suppress petitioner’s
statement to police based on his being a juvenile and by failing to ensure that petitioner
understood the sentence alignment included in the plea agreement. He also contends that his
guilty plea was rendered involuntary because of trial counsel’s ineffective assistance.
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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
J ERRY L. S MITH, J., joined.

Marvin Adams, III, Memphis, Tennessee, for the appellant, Michael Young.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Jennifer Morris, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                        I. Guilty Plea

       On December 15, 2010, petitioner pleaded guilty to two counts of attempted first
degree murder, and received the agreed-upon twenty-year sentences on each count, to be
served consecutively. Petitioner also pleaded guilty to aggravated robbery in exchange for
an eight-year sentence to be served concurrently with his other sentences. At the guilty plea
hearing, the State offered the following factual basis for the plea:

       [On] . . . January the 20th of 2010, two Memphis police officers who were
       operating [in an] undercover capacity . . . had arranged a meeting with Bernard
       Frazier in . . . Shelby County, Tennessee[,] in the area of 331 Howard. That
       meeting was to be with regard to the purchase of narcotics from Mr. Frazier.
       However, Mr. Frazier and [petitioner] had hatched a plan . . . to rob the
       undercover officers and not sell [narcotics to] the undercover officers . . . .

                 The officers met Mr. Frazier and [petitioner] behind a car at which time
       [petitioner] and Mr. Frazier -- [petitioner] in particular, pulled a firearm on the
       . . . officer and demanded his property. He stole from the officer a cell phone
       and also a handgun. As [petitioner was] checking the person of the officer, he
       came across a wire that was attached to a recording device that the officer was
       wearing[,] at which time [petitioner] fired . . . five shots in the direction of the
       officer as the officer ran.

               There were also shots fired at the other undercover officer who was at
       the side of the car at the time. [Petitioner] was identified as the individual who
       fired the shots. He was arrested later that day in possession of the officer’s
       property[,] and he later gave a statement of admission to officers as well.

Trial counsel stipulated to the facts presented by the State. The trial court accepted
petitioner’s guilty plea after questioning him about his understanding of the plea bargain and
of the rights he would waive by pleading guilty.

                                      II. Post-Conviction

       Petitioner filed a pro se petition for post-conviction relief on June 6, 2011. The post-
conviction court appointed counsel, and petitioner filed an amended petition on September
16, 2011. The post-conviction court held a hearing on the petition during which petitioner,
petitioner’s mother, and trial counsel testified. Subsequently, the post-conviction court
denied the petition by written order.

       At the evidentiary hearing, petitioner testified that he had an “average” relationship
with trial counsel prior to the State’s offer of a forty-year sentence. At that time, the
relationship deteriorated. Petitioner said that trial counsel did not visit him in custody or
review discovery with him. Regarding his statement to police, petitioner testified that he
“was on Xanax bars and [had smoked] marijuana” that day. He had been in custody for nine

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to ten hours prior to giving the statement, and he was not allowed to speak to his mother
despite his asking to do so. Petitioner said that he did not sign a waiver of rights form prior
to giving his statement. He stated that an investigator told him that he would receive a fifty-
two-year sentence and would not be allowed to leave the room until he gave a statement.
According to petitioner, trial counsel never discussed the possibility of getting the statement
suppressed.

       Petitioner testified that trial counsel advised him to plead guilty in exchange for a
forty-year sentence, and trial counsel “told [him] that it was going to be one [forty]-year
sentence, that everything was going to be run together.” His understanding at the time was
that he “could parole out in [twelve] to [thirteen] years.” When he got his “time sheet[s]”
from the department of correction, he realized that he was actually serving two separate
twenty-year sentences. He explained that he would have to be paroled on the first twenty-
year sentence before beginning to serve the second twenty-year sentence. Petitioner said that
he did not know what the term “consecutive” meant when he entered his guilty plea, and he
further said that trial counsel did not explain the term to him when he asked.

       On cross-examination, petitioner said that the only discovery he received was his
statement, his co-defendants’ statements, and one hundred pictures. He testified that his
understanding about his sentences was that “it was a [twenty]-year sentence for this and a
[twenty]-year sentence for that[,] but it was all just [an] equal [forty]-year sentence.” He also
understood that his potential sentence exposure, had he gone to trial, was eighty to one
hundred years. He said, “[Forty] years is a lot of time[,] but it’s less[] than [eighty] to [one
hundred] years[,] so why would I go to trial with [trial counsel] telling me that I’m going to
have to do [eighty] to [one hundred] years automatic[?]”

       Petitioner’s mother testified that she found out that petitioner was in jail after he had
been in custody for three days. Someone with the juvenile court told her that the juvenile
court was not obligated to tell her that petitioner was in custody because he was sixteen years
of age at the time. She said that she encouraged petitioner to accept the State’s offer because
“[forty] years [was] way better than [one hundred] years.”

        Trial counsel testified that he met with petitioner at the jail and before court
appearances. He described the jail visits as “nonproductive” because petitioner did not want
to review the discovery packet despite trial counsel’s repeated attempts. Trial counsel agreed
that his investigator provided him with a report about the circumstances of petitioner’s
statement to police. He stated that he did not believe that a motion to suppress petitioner’s
statement to police would have succeeded because petitioner’s understanding of the system
would have had a greater bearing on the validity of his statement than his being a juvenile.
He filed a general motion to suppress instead. Regarding petitioner’s guilty plea, trial

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counsel said that he “informed [petitioner] [that] he had a [twenty] and a [twenty] with an
[eight] within for a total of a [forty]-year sentence.”

        On cross-examination, trial counsel testified that he stopped visiting petitioner in the
jail because petitioner became “antagonistic.” He said that he discussed with petitioner
“[e]very bit of” the evidence against him, his potential exposure at trial, and the “high
likelihood of conviction.” According to trial counsel, petitioner wanted to argue at trial that
if he had wanted to kill one of the undercover officers, he would have shot him instead of
“just trying to shoot the gun.” Trial counsel said that petitioner’s version of a defense was
“fairly ludicrous.” He testified that he explained the meaning of “consecutive” to petitioner
“[m]ore than once.”

       The post-conviction court denied relief after finding that petitioner was “fully aware
that he was receiving two twenty[-]year sentences;” that petitioner had not shown that
counsel’s performance was deficient; and that petitioner had not shown that he was
prejudiced by counsel’s performance. In its findings, the post-conviction court specifically
accredited “counsel’s testimony that he fully explained the terms of the guilty plea and
evidence with the [p]etitioner.”

                                         III. Analysis

                            A. Ineffective Assistance of Counsel

       On appeal, petitioner claims that he received ineffective assistance of counsel.
Specifically, he contends that trial counsel provided deficient performance by failing to
request the suppression of petitioner’s statement to police and by failing to ensure that
petitioner understood the sentence alignment to which he was agreeing by pleading guilty.
He argues that trial counsel’s deficient performance rendered his guilty plea involuntary.

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103 (2012). A post-conviction petitioner bears the burden of proving his
or her allegations of fact by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)
(2012). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009)).




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        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)), perm. app. denied
(Tenn. Feb 16, 2012). However, conclusions of law receive no presumption of correctness
on appeal. Id. (citing Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001)). As a mixed
question of law and fact, this court’s review of petitioner’s ineffective assistance of counsel
claims is de novo with no presumption of correctness. Felts v. State, 354 S.W.3d 266, 276
(Tenn. 2011) (citations omitted).

        The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. 2004) (citing Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975)).
When a petitioner claims that he received ineffective assistance of counsel, he must
demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citations omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court has previously held:

       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of

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hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).

        To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).
Moreover, when a petitioner’s claims that ineffective assistance of counsel contributed to his
entering a guilty plea that was not voluntary, the Supreme Court has required a petitioner to
demonstrate a reasonable probability that but for counsel’s ineffectiveness, he would not
have entered the guilty plea and would have insisted on standing trial. Hill v. Lockhart, 474
U.S. 52, 59 (1985). Accordingly, in this case, petitioner must demonstrate that trial counsel’s
representation was deficient, and that but for counsel’s mistakes, he would not have entered
the guilty plea. Veldora L. Trout v. State, No. W2000-00857-CCA-R3-PC, 2001 WL
359238, at *2 (Tenn. Crim. App. Apr. 9, 2001).

        In this case, petitioner has not shown that trial counsel provided ineffective assistance
by failing to file a motion to suppress petitioner’s statement to police based on his being a
juvenile. Trial counsel testified that a motion to suppress petitioner’s statement to police
based on his being a juvenile had little likelihood of succeeding, essentially because of
petitioner’s familiarity with the judicial system. Based on his testimony as accredited by the
post-conviction court, trial counsel’s decision was strategic and was based on adequate
preparation, not due to deficient performance. Petitioner has not shown that trial counsel’s
performance fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn, 202 S.W.3d at 116).
Furthermore, petitioner has not shown that a motion to suppress would have been successful
or that he would have gone to trial but for trial counsel’s failure to file a suppression motion
based on petitioner’s being a juvenile. Therefore, he is not entitled to relief as to this issue.

        Petitioner also argues that counsel was ineffective for failing to explain the sentence
alignment to him. He maintains that he believed he was agreeing to one forty-year sentence
rather than two consecutive twenty-year sentences and that he would have gone to trial if he
had known that he would be serving two consecutive sentences. The post-conviction court
accredited trial counsel’s testimony that he explained to petitioner the sentence alignment
under the plea agreement and noted that petitioner’s argument described “a distinction

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without a difference.” Petitioner has not shown that trial counsel provided ineffective
assistance in this regard.

                              B. Voluntariness of Guilty Plea

        Because petitioner maintains that he entered his guilty plea unknowingly as a result
of trial counsel’s alleged failure to explain the sentence alignment, we will consider the
voluntariness of his guilty plea as a free-standing issue. See Jamal Cooper v. State, No.
M2001-00593-CCA-R3-PC, 2001 WL 1246394, at *6 (Tenn. Crim. App. Oct. 17, 2001)
(“The petitioner’s claim of ineffective assistance of counsel necessarily implicates the
voluntariness of his guilty plea.”)

       A guilty plea must be entered knowingly, voluntarily, and intelligently. Lane, 316
S.W.3d at 562; see North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v. Alabama, 395
U.S. 238, 242-44 (1969). If a plea is not knowingly, voluntarily, and intelligently entered,
the guilty plea is void because appellant has been denied due process. Lane, 316 S.W.3d at
562 (citing Boykin, 395 U.S. at 243 n.5; State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003)).
To make such a determination, the court must examine “whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the
defendant.” Id. (quoting Grindstaff v. State, 297 S.W.3d 208, 218 (Tenn. 2009)). Courts
should consider the following factors when ascertaining the validity of a guilty plea:

       (1) the defendant’s relative intelligence; (2) the defendant’s familiarity with
       criminal proceedings; (3) the competency of counsel and the defendant’s
       opportunity to confer with counsel about alternatives; (4) the advice of counsel
       and the court about the charges and the penalty to be imposed; and (5) the
       defendant’s reasons for pleading guilty, including the desire to avoid a greater
       penalty in a jury trial.

Id. (quoting Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006)). “[A] plea is not
voluntary if it results from ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or]
subtle or blatant threats.’” Id. at 563 (quoting Blankenship v. State, 858 S.W.2d 897, 904
(Tenn. 1993)). Thus, the transcript of the plea colloquy must affirmatively show that a
defendant’s decision to plead guilty was both voluntary and knowledgeable. Id. The trial
court must ensure that the defendant entered a knowing and intelligent plea by thoroughly
“‘canvass[ing] the matter with the accused to make sure that he has a full understanding of
what the plea connotes and of its consequences.’” Id. (quoting Blankenship, 858 S.W.2d at
904).




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         In this case, petitioner’s only argument regarding the voluntariness of his guilty plea
is that he claims he believed he was agreeing to serve one forty-year sentence rather than two
consecutive twenty-year sentences. There is no debate that petitioner knew he was agreeing
to serve a total of forty years in the department of correction. He testified at the post-
conviction court that forty years was preferable to the “possible one hundred years” he might
have received at trial. Furthermore, the record indicates that petitioner knew he was agreeing
to two consecutive twenty-year sentences. Trial counsel testified that he “informed
[petitioner] [that] he had a [twenty] and a [twenty] with an [eight] within for a total of a
[forty]-year sentence,” and the transcript of the guilty plea shows that the State announced
the agreed-upon sentences at the beginning of the hearing. In addition, petitioner testified
at the post-conviction hearing that he knew there were two twenty-year sentences involved.
Petitioner’s claim that he entered his guilty plea involuntarily is without merit, and he is not
entitled to relief on this issue.

                                       CONCLUSION

      After a thorough review of the record, the parties’ arguments, and the applicable case
law, we affirm the judgment of the post-conviction court.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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