         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 25, 2005

     DEANGELO DEMOND JOHNSON v. STATE OF TENNESSEE
                   Direct Appeal from the Criminal Court for Knox County
                           No. 80587 Richard Baumgartner, Judge



                   No. E2005-00707-CCA-R3-PC - Filed December 14, 2005


The petitioner, Deangelo Demond Johnson, pled guilty in the Knox County Criminal Court to
possession of more than .5 grams of cocaine with the intent to sell, felony evading arrest, and driving
on a suspended license. He received a total effective sentence of ten years. Subsequently, the
petitioner filed a petition for post-conviction relief, alleging that his counsel was ineffective. The
post-conviction court dismissed the petition, and the petitioner appeals. Upon our review of the
record and the parties’ briefs, we affirm the judgment of the post-conviction court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Deangelo Demond Johnson.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

       On September 18, 2003, the petitioner pled guilty to possession of more than .5 grams of
cocaine with the intent to sell, a Class B felony; evading arrest, a Class E felony; and driving on a
suspended license, a Class C misdemeanor. At the plea hearing, the State recited the following facts
underlying the charges:

                       Your Honor, if called to trial in this matter, the State’s
               witnesses and proof would show that on July 25th, 2003, the
               [petitioner] was observed by officers – or Deputies James Hammond
                and Keith Lyons of the Knox County Sheriff’s Department involved
                in what looked like a drug transaction. He was stopped in the middle
                of the roadway by Johnston Street and Crozer Avenue.

                        When they activated their emergency equipment, he took off
                with them pursuing. He fled, sped through residential areas, at one
                point driving on the wrong side of the road and then sliding off the
                roadway and bailing out of the car and ran on foot. At one point he
                was apprehended, and then they went back to the vehicle and in plain
                view in the vehicle with a clear bag containing approximately nine
                grams of a white powdery substance – a white hard substance
                believed to be crack cocaine. That substance was confiscated, and if
                we had gone to trial, it would have tested positive to be over .5 grams
                of Schedule II crack cocaine by forensic scientist. A license check
                was run on the [petitioner’s] license, and it was found to be
                suspended. All these events did occur in Knox County.

        Pursuant to the plea agreement, the petitioner received a sentence of eight years for the
cocaine conviction, two years for the evading arrest conviction, and six months for the driving on
a suspended license conviction. The plea agreement further provided that the six-month sentence
was to be served concurrently with the other sentences and the evading arrest sentence was to be
served consecutively to the cocaine sentence for a total effective sentence of ten years. The
petitioner requested that he be granted probation. Probation was denied, but the petitioner was
allowed to serve his sentence in the Community Alternatives to Prison Program (CAPP). One month
after he began serving his sentence, the petitioner’s alternative sentence was revoked, and he was
ordered to serve the remainder of his sentence in confinement.

        Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his trial
counsel had been ineffective. Specifically, the petitioner complained that counsel had not explained
to him the consequences of pleading guilty as opposed to going to trial, counsel failed to explain that
his prior juvenile convictions could be used to enhance his sentence, counsel did not discuss the
elements of the offenses the State would have to prove at trial, nor did counsel explain the possibility
of a suppression motion to keep out the cocaine evidence discovered by police during a search of the
petitioner’s vehicle.

        At the post-conviction hearing, the petitioner testified that he was nineteen years old and had
earned his General Equivalency Diploma (GED). He stated that he did not recall meeting with
counsel more than once. The petitioner maintained that he and counsel never discussed where the
cocaine had been found or how the State would prove that the petitioner possessed the cocaine with
the intent to sell. Counsel never told the petitioner the elements of the offenses with which he was
charged. The petitioner claimed that counsel did not fully discuss with the petitioner the reason
police initially stopped him, and counsel did not explain why police had searched the petitioner’s
vehicle. Nevertheless, the petitioner stated that he was aware of the evidence the State had against


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him, and he and counsel had discussed the facts of the case.

        The petitioner testified that at the time of the instant offenses, he was on probation for a
misdemeanor sentence. Therefore, because of the new offenses, his probation was revoked, and he
was required to serve nine months of that sentence in confinement. He stated that he and counsel
discussed a potential plea while the case was in sessions court. Counsel told the petitioner that if he
accepted the ten-year offer in the instant case, he would not be required to serve the remainder of his
misdemeanor sentence in confinement. He would also be allowed to request a probationary sentence
on the instant offenses. The petitioner explained that he accepted the plea because it “just sounded
good at the time. The first offer, I guess I was just dumb and I ran with it.” He claimed that he did
not understand that he had an alternative other than pleading guilty.

         The petitioner maintained that he did not understand the difference between concurrent and
consecutive sentencing. However, he stated that he was aware that he was agreeing to an eight-year
sentence for the cocaine conviction and a two-year sentence for the evading arrest conviction, for
a total sentence of ten years. The petitioner stated that he did not know what factors the trial court
would consider in determining the length of his sentences or the manner of service. The petitioner
acknowledged that he had a long juvenile criminal history. He claimed that he did not understand
that his juvenile offenses could be used to enhance his sentences.

        The petitioner stated that he did not know how much time he was facing if he had taken the
case to trial. However, he was aware that he faced charges on the three offenses to which he pled
guilty.1 The petitioner stated that counsel did not explain “all the facts. I mean, like I said, that’s
how it was explained to me, take these 10 years or serve these nine months on unsupervised
probation.” The petitioner maintained that if he had known all of the information, he would not have
pled guilty and would have gone to trial.

        The petitioner’s trial counsel testified that he had been licensed to practice law since 1993
and that eighty-five percent of his practice was devoted to criminal defense work. Counsel stated
that the petitioner’s family contacted him to represent the petitioner because the public defender’s
office was representing the petitioner’s co-defendant. Counsel stated that he had many discussions
regarding the case with the assistant district attorney general. He also spoke with the arresting
officer concerning the evidence against the petitioner. Counsel opined that the State had a strong
case against the petitioner; therefore, much of counsel’s effort on the case was spent “trying to
minimize the damage to [the petitioner].”

        Counsel recalled that the State made two plea offers. The first offer provided that the
petitioner would receive an effective six-year sentence to be served as a Range I standard offender,
but he would have been required to serve the sentence in confinement. Additionally, the petitioner
would have been required to serve nine months in confinement due to his probation violation. The
second offer provided for an effective ten-year sentence but allowed the petitioner to seek alternative


       1
           The record is unclear as to whether the petitioner could have faced additional charges at trial.

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sentencing. Additionally, the petitioner was not required to serve the remaining nine months of the
misdemeanor sentence in confinement. Counsel discussed both plea offers with the petitioner and
the petitioner’s family. After consulting with his family, the petitioner accepted the second offer.


       Counsel recalled that the petitioner’s primary concern was that he not serve any time in
confinement. Therefore, the second plea offer was more attractive to the petitioner. However, one
month into serving his sentence in CAPP, the petitioner violated the terms of his alternative sentence
and was ordered to serve the remainder of his sentence in confinement.

        Counsel recalled that the petitioner had a good understanding of the law. They discussed the
facts of the case, including “the probabilities and possibilities of going to trial.” Counsel informed
the petitioner that he was facing a sentence of eight to twelve years if he were convicted of the Class
B felony offense at trial. Counsel advised the petitioner that he would likely be convicted because
he had only his word against that of his co-defendant and the police officer to refute the proof against
him. Counsel maintained that he discussed all potential punishments with the petitioner.

         Counsel stated that he did not explicitly discuss a suppression hearing with the petitioner.
However, they did discuss the fact that police officers knew the petitioner and were aware that the
petitioner was driving without a license. Additionally, police had a be on the lookout (BOLO) order
for the petitioner. Police stopped the petitioner after witnessing suspicious activity in an area known
for its high drug trafficking.

        At the conclusion of the hearing, the post-conviction court accredited the testimony of
counsel. The court found that the petitioner was aware of his options, and he chose to plead guilty
and receive a ten-year sentence. The court noted that the petitioner’s main desire had been to remain
on the street. The court found that the petitioner received the deal for which he had bargained. On
appeal, the petitioner challenges the post-conviction court’s dismissal of his petition for post-
conviction relief.

                                             II. Analysis

         To be successful in his claim for post-conviction relief, the 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) (2003). “‘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.2 (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 by the post-conviction court as the trier of fact. See Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings
of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing
that the evidence in the record preponderates against those findings. Id. at 578.


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        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 v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. Id.

        “To establish 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,
104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court
must determine whether counsel’s performance was within the range of competence required of
attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). 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, 106 S. Ct. 366, 370 (1985).

        In dismissing the petition for post-conviction relief, the post-conviction court noted that the
petitioner had a long history of involvement in the criminal justice system, namely an extensive
juvenile history of criminal behavior. The court found that counsel discussed with the petitioner the
options available to him. After weighing the options, the petitioner chose to accept the ten-year plea
agreement so that he would have the opportunity to avoid confinement. The court stated that the
petitioner failed to prove by clear and convincing evidence either that counsel was deficient or that
the petitioner was prejudiced by the alleged deficiency. Finally, the court opined that the petitioner
received the deal for which he bargained, which deal the petitioner believed, at the time, was in his
best interest. The evidence does not preponderate against the findings of the post-conviction court.
Therefore, we conclude that the post-conviction court properly dismissed the petition for post-
conviction relief.

                                          III. Conclusion

       Finding no error, we affirm the judgment of the post-conviction court.


                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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