        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  August 17, 2010 Session

           RUSSELL NOLEN QUARLES v. STATE OF TENNESSEE

             Direct Appeal from the Circuit Court for Williamson County
                     No. CR-084387     Timothy L. Easter, Judge




                No. M2010-00196-CCA-R3-PC - Filed January 14, 2011


The Petitioner, Russell Nolan Quarles, pled guilty to possession of drug paraphernalia and
received a sentence of eleven months and twenty-nine days. Subsequently, the Petitioner
filed a petition for post-conviction relief, alleging that his trial counsel was ineffective and
that his guilty plea was not knowingly and voluntarily entered. The post-conviction court
denied the petition, finding the Petitioner failed to prove his claims. On appeal, the Petitioner
challenges the post-conviction court’s ruling. 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 is Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which D AVID H. W ELLES and
R OBERT W. W EDEMEYER, JJ., joined.

Dale M. Quillen (at trial) and Ken Quillen (on appeal), Nashville, Tennessee, for the
appellant, Russell Nolen Quarles.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Derek Smith, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                   I. Factual Background

       On January 14, 2009, the Petitioner entered in the Williamson County General
Sessions Court a plea of guilty to possession of drug paraphernalia in exchange for a
probationary sentence of eleven months and twenty-nine days and the dismissal of the charge
of possession of marijuana. On July 21, 2009, the general sessions court found that the
Petitioner had violated the terms of his probation and ordered the Petitioner to serve ninety
days in jail.1

        Thereafter, on August 31, 2009, the Petitioner filed a petition for post-conviction
relief, and on September 9, 2009, he filed an amended post-conviction petition. In the
petitions, the Petitioner alleged that his counsel was ineffective, that his plea was not
knowingly and voluntarily entered, and that, because his plea was “not recorded,” it violated
the dictates of State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1977), superseded on other
grounds by Tenn. R. Crim. P. 37(b) and Tenn. R. App. P. 3(b).

       At the post-conviction hearing, the Petitioner’s trial counsel testified that he had been
licensed to practice since 1988 and that approximately one-third of his practice was dedicated
to criminal law. The Petitioner hired trial counsel after he was charged with possession of
marijuana and possession of drug paraphernalia in the instant case. Trial counsel and the
Petitioner discussed the case. Trial counsel stated that the Petitioner had a potential defense
regarding the search of the Petitioner’s vehicle, during which the evidence against the
Petitioner was discovered. Trial counsel advised the Petitioner about the potential for a
motion to suppress.

        Trial counsel said that while the Petitioner’s case was in general sessions court, the
State offered to allow the Petitioner to plead guilty to possession of drug paraphernalia in
exchange for the dismissal of the possession of marijuana charge. Trial counsel told the
Petitioner of the State’s offer but advised him against taking the plea bargain, reminding the
Petitioner of the potential for a successful motion to suppress the evidence found during the
car search. However, the Petitioner was concerned about the cost of pursuing the case to
circuit court and decided to plead guilty.

       Trial counsel stated that he advised the Petitioner of all of the rights he was waiving
by entering a guilty plea. The Petitioner did not ask any questions about his rights and
appeared to understand the consequences of the guilty plea and the rights he was waiving.
Trial counsel said that during the plea proceeding in general sessions court, the trial judge
advised the Petitioner and two other defendants at the podium of the rights waived by a guilty
plea. After receiving the advice of the court, the Petitioner signed in front of the judge a
guilty plea form, which also advised of the rights being waived.

       The Petitioner testified that he met with trial counsel once or twice during the course
of representation. He said that he was concerned about the cost of pursuing his case in circuit

       1
           This sentence was stayed pending the outcome of the post-conviction proceedings.

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court, noting that he did not think he could afford to hire another attorney to help him. The
Petitioner said he could not remember whether he was present when the trial judge went over
his rights, explaining that he might have been late for court that day. However, the Petitioner
later acknowledged that he heard the trial judge “verbally going over [his] rights.” The
Petitioner stated he did not understand the rights he was waiving by pleading guilty, but he
could not specifically state what right or rights of which he was not informed. Additionally,
the Petitioner acknowledged that trial counsel explained the rights waived by pleading guilty
and that ten or fifteen years earlier he “went to court . . . [with] a lawyer” regarding a driving
under the influence charge.

        A compact disc (CD) and transcript of the guilty plea proceedings were submitted as
exhibits at the hearing. The proceeding reflects that the general sessions court “call[ed] the
docket,” specifically asking whether the Petitioner was present. The Petitioner’s trial counsel
told the court the Petitioner was present, and the court instructed all of the defendants present
to “stay in the courtroom until you’ve heard your rights.” Thereafter, the court advised all
defendants present of the rights being waived by entering a guilty plea. However, the
proceeding does not reflect that the court individually addressed the Petitioner. Additionally,
the Petitioner produced a “certificate” from the court reporter who transcribed the
proceedings, stating that “after listening twice (from commencement to adjournment of
proceedings) of the audio cd dated January 14, 2009, after the initial call of the docket, no
further recorded proceedings were found as to the [Petitioner].”

        At the conclusion of the hearing, the post-conviction court found that the Petitioner
failed to prove his claims by clear and convincing evidence. The court observed that the
Petitioner had been fully advised by trial counsel and the trial court about the consequences
of the guilty plea, and the Petitioner nevertheless chose to plead guilty. Further, the post-
conviction court found that although the plea proceedings were not formally recorded in
accordance with Mackey, that failing did not entitle the Petitioner to post-conviction relief.
On appeal, the Petitioner challenges the post-conviction court’s ruling.

                                          II. Analysis

       To be successful in a claim for post-conviction relief, a petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). “‘Clear and convincing evidence
means evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved

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by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Further,

                       [b]ecause 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.
              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, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Moreover, in the context of
a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s
errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks
v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S.
52, 59 (1985).

        When a defendant enters a plea of guilty, certain constitutional rights are waived,
including the privilege against self-incrimination, the right to confront witnesses, and the
right to a trial by jury. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in order
to comply with constitutional requirements a guilty plea must be a “voluntary and intelligent
choice among the alternative courses of action open to the defendant.” North Carolina v.

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Alford, 400 U.S. 25, 31 (1970). In order to ensure that a defendant understands the
constitutional rights being relinquished, the trial court must advise the defendant of the
consequences of a guilty plea, and determine whether the defendant understands those
consequences. Boykin, 395 U.S. at 244.

        In Mackey, 553 S.W.2d at 341, our supreme court set out the procedure trial courts
in Tennessee should follow when accepting guilty pleas. Prior to accepting the guilty plea,
the trial court must address the defendant personally in open court, inform the defendant of
the consequences of the guilty plea, and determine whether the defendant understands those
consequences. See id.; Tenn. R. Crim. P. 11(c). A verbatim record of the guilty plea
proceedings must be made and must include, without limitation, “(a) the courts advice to the
defendant, (b) the inquiry into the voluntariness of the plea including any plea agreement and
into defendant’s understanding of the consequences of his entering a plea of guilty, and (c)
the inquiry into the accuracy of a guilty plea.” Mackey, 553 S.W.2d at 341.

       In determining whether the petitioner’s guilty pleas were knowing and voluntary, this
court looks to the following factors:

              the relative intelligence of the [petitioner]; 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.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

        The post-conviction court found that the Petitioner “could not point to any particular
reason that he was dissatisfied with the service” of counsel. Further, the court noted that
counsel met with the Petitioner, discussed the case with him, and advised him of the
consequences of pleading guilty. The court accredited the testimony of trial counsel, who
testified that the Petitioner understood his rights and his guilty plea. Therefore, the court
found that counsel was not ineffective and that the Petitioner knowingly and voluntarily pled
guilty. We agree.

       Regarding the Petitioner’s complaint about the guilty plea proceeding not being
properly recorded, the post-conviction court stated:



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                      The Petitioner claims his plea was not recorded and
               therefore his plea is invalid. To support this position, the
               Petitioner submitted the affidavit of [the] court reporter, stating
               that she reviewed the record (CD) and could not find the plea of
               the Petitioner.

                      The State provided the Court with a copy of the record
               from the January 14, 2009, Williamson County General Sessions
               hearing which the Court has fully reviewed. . . . The Court finds
               that the [Petitioner] was present in the courtroom when the
               General Sessions Judge went over the Petitioner’s rights with
               him at the opening of court. The Petitioner has failed to
               demonstrate by clear and convincing evidence otherwise.

                      The record establishes that [trial counsel] explained the
               plea agreement and the resulting consequences to the Petitioner
               before the Petitioner entered his plea.

                      This Court concludes that the Petitioner’s plea . . . was
               made knowingly and voluntar[ily]. The Court also finds the
               Petitioner was present when the Court advised him of his rights
               and such proceeding was recorded.

       Although the record before us does not reflect whether the Petitioner was individually
advised of his rights, the record does reflect that the Petitioner was aware of his rights. As
this court has previously noted, “‘[i]t is the result not the process, that is essential to a valid
plea. The critical fact is the defendant’s knowledge of certain rights, not that the trial judge
was the source of that knowledge.’” Patrick Joseph Rigger v. State, No. E2009-01052-CCA-
R3-PC, 2010 WL 3529000, at *10 (Tenn. Crim. App. at Knoxville, Sept. 10, 2010) (quoting
Johnson v. State, 834 S.W.2d 922, 924 (Tenn. 1992), application for perm. to appeal filed
(Oct. 21, 2010). Therefore, even if a trial court failed to strictly adhere to the procedure
outlined in Mackey, “the petitioner is not ‘ipso facto, entitle[d] . . . to relief.’” Id. (quoting
Johnson, 834 S.W.2d at 925). Upon our review of the record, we conclude that the evidence
does not preponderate against the post-conviction court’s findings. Thus, the Petitioner is
not entitled to relief on this issue.

                                        III. Conclusion

       We conclude that the Petitioner failed to establish that his counsel was ineffective, that
his plea was not knowingly and voluntarily entered, and that he was prejudiced by the failure

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to properly record his guilty plea. Accordingly, we affirm the judgment of the post-
conviction court.

                                              ___________________________________
                                              NORMA McGEE OGLE, JUDGE




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