        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 10, 2013

                  KELVIN COLLINS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
              Nos. 11-01617, 11-01618, 11-01801    Paula Skahan, Judge


              No. W2013-00321-CCA-R3-PC - Filed September 30, 2013


The petitioner, Kelvin Collins, petitioned the Shelby County Criminal Court for post-
conviction relief from his 2011 guilty-pleaded convictions of facilitation to commit robbery
and aggravated robbery, arising out of two separate incidents. The convictions resulted in
a total effective sentence of eight years to serve in the Department of Correction. Following
an evidentiary hearing, the post-conviction court denied relief, and following our review, we
affirm the order of the post-conviction court.

            Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and D. K ELLY T HOMAS, J R., JJ., joined.

Kevin P. Henson, Memphis, Tennessee, for the appellant, Kelvin Collins.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Marques Young, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               The transcript of the petitioner’s guilty plea hearing included a statement of the
basis for the guilty pleas and convictions:

                     Had the [S]tate gone to trial in [docket number] 11-01801
              it would have put on proof that on September 18th, 2010,
              [Jakeena Nathan] was walking in the area of Millbranch and
              Victoria. She observed a male following her motioning for
              other males to come where she was walking. She said that the
              males soon joined her, walked up to her and told her to, “Drop
              it off,” when he produced a .9 mm handgun.

                    He grabbed the money from her and fled the scene. She
              knew the co-defendant, Antonio Richardson, from school and
              through that association [the petitioner] was developed as a
              suspect and Ms. Nathan positively identified [the petitioner] as
              the male who pulled a gun on her and snatched her money. Mr.
              Richardson was with him at the time.

                     ....

                      In Docket No. 11-01617, had [the] [S]tate gone to trial
              and put on proof, that on September 9th, 2010, [Mamadou
              Anne] was parking his car at the Summit Park Apartments when
              two females approached him telling him that one had been
              struck by his car. . . . [Mr. Anne] stated that he was not going to
              give her any money and one of the females said she was going
              to call her boyfriend. The females – then he told them to call the
              police.

                     He stated during the altercation he was approached by
              several males, one of whom he knew as Cash, . . . and stated that
              the male known as Cash stated that he was (Indiscernible)
              boyfriend and should pay for hitting her.

                      During the altercation [Mr. Anne] was hit and his wallet
              was taken. [The petitioner] was identified as Cash and was one
              of the people involved in the altercations involving [Mr. Anne]
              that resulted in his wallet being taken.

The petitioner stipulated to these facts as presented by the State. The guilty plea hearing
transcript evinces that the trial court conducted a thorough Tennessee Rule of Criminal
Procedure 11(b) colloquy with the defendant. In the colloquy, the trial judge informed the
petitioner that, if he had proceeded to trial and been convicted of aggravated robbery, he
would have faced a sentence of eight to 30 years with mandatory service of 85 percent of that
sentence, and that, for the charge of robbery, he would have faced a sentence of two to 12
years. The petitioner indicated his understanding of the potential sentencing. The petitioner
also confirmed that his trial counsel explained the plea agreement to him and that he
understood the charges to which he was pleading guilty. The trial court asked the petitioner

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whether he was “satisfied with [trial counsel] and everything that he’s done for” him, to
which the petitioner responded in the affirmative.

               Following the entry of the plea, the petitioner filed a timely petition for post-
conviction relief,1 alleging ineffective assistance of counsel which resulted in the entry of a
guilty plea that “was not entered willingly or knowingly.” On November 2, 2012, the post-
conviction court conducted an evidentiary hearing.

                In the evidentiary hearing, the petitioner confirmed that, in July 2011, he was
facing charges in three separate indictments: robbery, unlawful possession of a controlled
substance, and aggravated robbery. The petitioner testified that his trial attorney only met
with him two or three times during the pendency of the three cases. The petitioner testified
that his trial counsel provided him with all discovery materials received from the State and
that, even though the discovery materials were “substantial,” he perused all of the discovery
documents. When asked about his highest level of education, the petitioner responded that
he completed the tenth grade.

               The petitioner admitted that his trial attorney had fully discussed the charges
pending against the petitioner and the potential sentence that each charge carried. With
respect to the aggravated robbery case, the petitioner claimed that he informed his trial
attorney that he did not have a weapon on his person at the time he committed the robbery;
rather, he claimed that he stole a handgun from the victim during the robbery, and that was
the only handgun involved in the crime. In addition, the petitioner testified that he informed
trial counsel that another victim, Ms. Nathan’s younger cousin, was present during the
aggravated robbery offense but that this second victim was not mentioned in any of the
State’s discovery materials. Despite the petitioner’s claim that he was unarmed at the time
of the robbery of Ms. Nathan, he testified that he heeded the advice of counsel and pleaded
guilty to the offense of aggravated robbery.

              The petitioner testified that, following his convictions, he examined the
discovery materials more closely and discovered what he believed to be several
inconsistencies in Ms. Nathan’s statement, such as the number of firearms involved in the
aggravated robbery. In addition, the petitioner found it puzzling that Ms. Nathan’s cousin
had not been interviewed by the police when he was allegedly present when the robbery was
committed.

                On cross-examination, the petitioner admitted that his trial attorney had


        1
         The petitioner also filed a writ of error coram nobis contemporaneously with his petition for post-
conviction relief. The post-conviction court denied the petition for the writ.

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successfully negotiated a reduction of the robbery charge in case 11-01617 to facilitation of
robbery and that the State had agreed to dismiss the drug possession charge. The petitioner
also acknowledged that the State agreed to the minimum sentence of eight years on the
aggravated robbery charge, when the maximum available sentence was 30 years. The
petitioner admitted that he stipulated to the facts as read into evidence by the State at the
hearing on his guilty plea and that he did not attempt to enter a best interests guilty plea.

                The petitioner’s trial counsel testified that the State initially offered the
petitioner an eight-year sentence in exchange for his plea of guilty to the aggravated robbery
charge, to be served concurrently with a three-year sentence for the robbery charge and a
one-year sentence for the drug possession charge. Trial counsel testified that he was
successful in his bid to have the drug charge dismissed and have the robbery charge reduced
to facilitation of robbery with a two-year sentence.

                With respect to discovery in the aggravated robbery case, trial counsel testified
that the petitioner informed him that Ms. Nathan intended to “change her story” to say that
the petitioner did not, in fact, rob her. When trial counsel contacted Ms. Nathan, she
“essentially said that [the petitioner] robbed her and that was the extent of it.” Trial counsel
admitted that the petitioner maintained that he was not armed when he robbed Ms. Nathan
and that the petitioner never wavered from this position. Trial counsel stated that he and the
petitioner had discussed the inconsistencies in Ms. Nathan’s statement. Trial counsel
admitted that he did not attempt to contact Ms. Nathan’s cousin because “he wasn’t the
victim in the indictment.”

               When questioned about the plea agreement, trial counsel testified that it “was
the only offer [the petitioner] was going to get, according to the State.” Trial counsel
explained that it was a “No Deals” situation and that the State conveyed to him that if the
petitioner did not accept the plea agreement, the State would “push for all the indictments to
be run consecutive.” Trial counsel testified that he relayed this information to the petitioner.
In addition, trial counsel explained to the petitioner that he would be forced to serve 85
percent of his sentence for the aggravated robbery conviction. Trial counsel denied that he
recommended to the petitioner that he accept the plea agreement, testifying that, in his
practice, he does not recommend any course of action and does not make any promises to his
clients.

              On cross-examination, trial counsel addressed the issue of the inconsistencies
in Ms. Nathan’s statement by explaining that it was his practice to handle those
inconsistencies on cross-examination at trial. Trial counsel testified that the petitioner
considered going to trial but that he ultimately chose to plead guilty after trial counsel
explained all of the consequences of both going to trial and pleading guilty. Trial counsel

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stated that he met with the petitioner on seven or eight occasions and that he reviewed the
discovery materials with the petitioner at those meetings.

               In the post-conviction court’s thorough order denying post-conviction relief,
the court affirmatively accredited trial counsel’s testimony. Noting the discrepancy between
the testimony of the petitioner and that of trial counsel regarding the number of times trial
counsel met with the petitioner and whether trial counsel had discussed the weaknesses in
the State’s case, the post-conviction court stated that “[t]his conflicting testimony hardly
constitutes clear and convincing proof that [trial counsel’s] representation fell below an
objective standard of reasonableness.” The court further stated that the petitioner failed to
show “that he was prejudiced by his supposed ignorance of the weaknesses in the case,”
finding as follows:

                      Throughout his testimony, it was clear that [p]etitioner’s
              decision to accept the plea bargain was based on the victim’s
              willingness to testify against him, not on the legitimacy of the
              charge (which he contested from the beginning). Petitioner
              testified that he planned to go to trial when the victim said she
              would not testify against him. . . . He then testified that when the
              victim changed her mind, he decided to take the plea bargain. .
              . . This testimony, too, falls short of providing clear and
              convincing proof in support of [p]etitioner’s claim.

                      It is far from clear that [p]etitioner’s decision to plead
              guilty hung on a more thorough analysis of the case against him;
              rather, it seems he simply wanted to know whether or not the
              victim would testify against him. Thus, there is not a reasonable
              probability that [p]etitioner would have chosen a different
              course if he had known the victim’s statements were
              inconsistent – he already knew her to be a story-changing liar,
              so learning of inconsistencies in her statements hardly would
              have given him a dramatically new view of her strengths as a
              witness. And because the prosecution took a “no deals” stance
              with regard to this specific charge, . . . presenting to them
              weaknesses in their case would not have led to a more favorable
              plea offer.

The court concluded that the petitioner “failed to prove by clear and convincing evidence that
he was denied the right to effective counsel.”



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               Following the entry of this order, the petitioner effected a timely appeal.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the 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.” T.C.A. § 40-30-103 (2006). A post-conviction petitioner
bears the burden of proving his or her factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s
findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. 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). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                To establish entitlement to relief via a claim of ineffective assistance of
counsel, the defendant must affirmatively establish first that “the advice given, or the services
rendered by the attorney, are [not] within the range of competence demanded of attorneys in
criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and second that his
counsel’s deficient performance “actually had an adverse effect on the defense,” Strickland
v. Washington, 466 U.S. 668, 693 (1984). In other words, the defendant “must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. Should the defendant fail to establish
either deficient performance or prejudice, he is not entitled to relief. Id. at 697; Goud v.
State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be
followed.” Strickland, 466 U.S. at 697.

              When reviewing a claim of ineffective assistance of counsel, we will not grant
the defendant the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

                Apart from whether a guilty plea is the product of ineffective assistance of
counsel, it is invalid if otherwise made unknowingly or involuntarily. “Whether a plea was
knowing and voluntary is an issue of constitutional dimension because ‘the due process
provision of the federal constitution requires that pleas of guilty be knowing and voluntary.’”
State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2000) (quoting Johnson v. State, 834 S.W.2d

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922, 923 (Tenn. 1992)). A plea “may not be the product of ‘[i]gnorance, incomprehension,
coercion, terror, inducements, [or] subtle or blatant threats.’” Wilson, 31 S.W.3d at 195
(quoting Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)); see also State v. Mellon, 118
S.W.3d 340, 345 (Tenn. 2003) (citing Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993)).

              Both claims of ineffective assistance of counsel and involuntary guilty plea are
mixed questions of law and fact. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v.
Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). When reviewing the application of law to the trial court’s factual findings, our review
is de novo, and the trial court’s conclusions of law are given no presumption of correctness.
Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               In the present case, the record fully supports the post-conviction court’s
findings and holdings. The record of the guilty-plea submission hearing and the accredited
testimony of the petitioner’s trial counsel evince the petitioner’s understanding of the
proceedings and his willingness to enter into the plea. Moreover, the record demonstrates
that trial counsel rendered effective assistance in representing the petitioner.

              Accordingly, the order of the criminal court is affirmed.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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