        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 10, 2009

               TRAVIS JAY LESTER v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Wilson County
                       No. 06-0769    Jane Wheatcraft, Judge




                  No. M2009-00523-CCA-R3-PC - Filed May 21, 2010


The Petitioner, Travis Jay Lester, pled guilty in the Wilson County Criminal Court to
introduction of contraband into a penal facility, resisting arrest, and two counts of assault.
He received a total effective sentence of four years in the Tennessee Department of
Correction. Subsequently, the Petitioner filed a petition for post-conviction relief, alleging
that his trial counsel was ineffective and that his guilty pleas were not knowingly and
voluntarily entered. The post-conviction court denied the petition, and the Petitioner now
appeals. Upon review, 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.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JERRY L. S MITH and
J.C. M CL IN, JJ., joined.

A. Ensley Hagan, Jr., Lebanon, Tennessee, for the appellant, Travis Jay Lester.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; and Jason Lawson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       The record before us reveals that on July 12, 2007, the Petitioner entered an “open”
guilty plea to introduction of contraband into a penal facility, a Class C felony, with the
sentence to be determined by the trial court. At the guilty plea hearing, the Petitioner
acknowledged that he knew he could receive a sentence between three and six years. The
Petitioner was released on bond while awaiting sentencing. After the guilty plea to the felony
was entered, but before the Petitioner was sentenced, he incurred three misdemeanor charges,
resisting arrest and two counts of assault. At the sentencing hearing on the felony drug
charge on September 10, 2007, the Petitioner also entered guilty pleas to the three
misdemeanor charges. The plea agreement provided that the Petitioner would receive a
sentence of six months for the resisting arrest conviction and eleven months and twenty-nine
days for each assault conviction. Additionally, the Petitioner entered into an agreed sentence
of four years in the Tennessee Department of Correction for the felony conviction. The
agreement provided that the misdemeanor sentences were to be served concurrently with
each other and with the felony sentence. At the September hearing, the trial court reviewed
the terms of the agreement for the felony and misdemeanor sentences and asked the
Petitioner if that was his understanding of the agreement. The Petitioner answered
affirmatively.

        At the post-conviction hearing, the Petitioner testified that he had no complaints
regarding the July 12, 2007 proceedings but that he did not fully understand the implications
of the guilty plea/sentencing hearing on September 10, 2007. The Petitioner acknowledged
that he agreed to a four-year sentence at thirty percent. However, he averred that counsel
explained to him that he would be released after serving thirty percent, fifteen months, of his
four-year sentence in confinement, not that he was only eligible for release at that point. He
maintained that he was never informed about the parole board or that he was required to meet
criteria to be released on parole. He said if he had understood the sentence, he would not
have pled guilty to the felony offense.

        The Petitioner stated that he had never been convicted of a felony. Regardless, he
conceded that he had twenty-four prior misdemeanor convictions, some of which were the
result of guilty pleas. He stated that when he pled guilty to the felony drug offense, he was
aware that the trial court could sentence him to as few as three years or as many as six years.

        The Petitioner said that he and counsel discussed getting him into the drug court
program, but the plan never came to fruition. The Petitioner said he spoke with individuals
involved in the drug court program and was told that he would be evaluated for admittance
into the program. However, no evaluation was ever performed, and the Petitioner was sent
to the Tennessee Department of Correction. The Petitioner said he hoped to get into the drug
court program, but he understood he might not be accepted.

       The Petitioner said he entered guilty pleas to the misdemeanor charges because he was
told the misdemeanor sentences would be run concurrently with the felony sentence. The
Petitioner acknowledged he was aware that if convicted at trial, he could have been
sentenced to six years for the felony conviction, eleven months and twenty-nine days for each

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assault conviction, and six months for the resisting arrest conviction. The Petitioner further
acknowledged that if consecutive sentences were imposed, his potential sentence could have
been as much as eight and one-half years.

       The Petitioner maintained that he saw trial counsel infrequently. He conceded that
he did not visit counsel while he was out on bond between the July guilty plea hearing and
the September guilty plea/sentencing hearing. The Petitioner acknowledged he had telephone
conversations with trial counsel, but he said he wrote counsel letters to which she never
responded.

       The Petitioner said he had an eighth grade education and had difficulty reading. He
said that when he told the trial court that he had a tenth grade education he was “[p]robably
not even thinking about it.”

       The Petitioner’s trial counsel testified that she was appointed to represent the
Petitioner. She said she never guaranteed that he would be released from his four-year
sentence after serving fifteen months in prison; she very carefully explained to him that he
was only “parole eligible” at that time. Counsel informed the Petitioner that the parole board
would consider factors such as behavior during incarceration and sentencing credits in
determining whether to grant parole. She said she had detailed notes about calculating the
Petitioner’s possible prison sentences.

       Counsel said she was aware the instant case was the Petitioner’s first felony
conviction; however, because of his extensive misdemeanor history and his three new
misdemeanor charges, the Petitioner faced a possible total sentence of eight and one-half
years. Counsel stated that she tried to negotiate a three-year sentence for the felony
conviction, but her attempts were unsuccessful.

        Trial counsel opined that a trial was not in the Petitioner’s best interest. She observed
that the State had an audiotaped recording of a telephone conversation in which the
Petitioner, who was at that time incarcerated, instructed his mother to obtain drugs and leave
them for someone on the jail work crew to pick up and bring into the jail. Counsel said that
during the conversation, the Petitioner was obviously “calling the shots” and spoke to his
mother in a “seriously abusive nature.” Counsel believed the audiotape, which clearly
established the Petitioner’s guilt of the charged felony, and his considerable misdemeanor
history would reflect poorly on him at trial and at sentencing, making a longer sentence more
likely. Therefore, she considered the four-year sentence offered by the State, encompassing
the Petitioner’s felony and misdemeanor convictions, to be the Petitioner’s best option.
Counsel stated that the Petitioner was frustrated because a three-year sentence could not be
negotiated. Counsel was also frustrated by her unsuccessful attempts to secure a shorter

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sentence during plea negotiations, but she felt it was in the Petitioner’s best interest to enter
guilty pleas and accept the four-year total sentence.

       Counsel acknowledged that she and the Petitioner discussed his participation in a drug
court program. Counsel knew the Petitioner spoke with administrators of the program. She
opined that the administrators may not have followed through with an evaluation because of
the Petitioner’s lengthy record, which included some assault convictions.

       Counsel said that after the Petitioner was released on bond following his July guilty
plea hearing, she told him to “stay in touch.” However, the Petitioner never made any
appointments or came to see counsel at her office. Regardless, they had several telephone
conversations. During a conversation on or around August 31, 2007, counsel relayed the
State’s four-year offer, and the Petitioner indicated his desire to accept it. Counsel said that
she did not have any letters from the Petitioner in her case file.

        At the conclusion of the hearing, the post-conviction court accredited the testimony
of trial counsel, finding that counsel advised the Petitioner that he was eligible for release
after serving thirty percent of his sentence but that his release was not guaranteed. The post-
conviction court noted that the audiotaped conversation between the Petitioner and his
mother was “extremely damaging” and that the Petitioner would likely have received an eight
and one-half year sentence if he had proceeded to trial. The court noted that when the
Petitioner pled guilty to the misdemeanors, the court did not repeat the detailed explanation
of the Petitioner’s rights. However, the court noted that “the fact that they all run
concurrently with each other and then all [run] concurrently with the four years . . . kind of
corrects itself or becomes moot.” The court found that the Petitioner knew what he was
doing when he entered all of his guilty pleas and that counsel was “wise” to recommend that
the Petitioner plead guilty. On appeal, the Petitioner challenges the post-conviction court’s
ruling.

                                         II. Analysis

       The Petitioner maintains that the post-conviction court erred in finding that his trial
counsel was effective and that his guilty pleas were knowingly and voluntarily entered. 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) (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,

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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.

                           A. Ineffective Assistance of Counsel

       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. Moreover,

                       [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). 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).

       The Petitioner argues that trial counsel failed to explain to him the length of the
sentence he was facing and the parole board’s requirements for release. The Petitioner
maintains that due to this failure, he pled guilty under the mistaken impression that he would
serve only fifteen months in confinement. He further asserts that trial counsel did not advise
him that his convictions could be used to enhance his punishment in subsequent proceedings.
Finally, the Petitioner maintains that counsel met with him infrequently, failed to properly
interview witnesses, and failed to prepare a defense against his misdemeanor charges.



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        The post-conviction court found that counsel fully informed the Petitioner that he was
eligible for, not entitled to, release after serving thirty percent of his sentence in confinement.
Additionally, the court found credible counsel’s testimony that she informed the Petitioner
about the parole board. The Petitioner’s felony guilty plea hearing reflects that the Petitioner
was fully informed about the consequences of his guilty plea, including the use of the
conviction to enhance punishment for future convictions. Moreover, the Petitioner did not
introduce any proof regarding the benefit of further meetings or investigation regarding the
misdemeanor charges. The post-conviction court found that trial counsel was effective.
There is nothing in the record to preponderate against this finding. Accordingly, the
Petitioner is not entitled to relief on this issue.

                           B. Knowing and Voluntary Guilty Pleas

        The Petitioner contends that his guilty pleas to the felony and misdemeanor charges
were not knowingly or voluntarily entered. In State v. Mackey, 553 S.W.2d 337, 341 (Tenn.
1977), our supreme court set out the procedure trial courts should follow when accepting a
guilty plea. 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. Id.; see also Tenn. R.
Crim. P. 11(c). A verbatim record of the guilty plea proceedings must be made and must
include, without limitation, “(a) the court’s 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.

        To pass constitutional muster, a guilty plea must be made voluntarily, understandingly,
and knowingly. Hicks, 983 S.W.2d at 246 (citing Boykin v. Alabama, 395 U.S. 238, 244
(1969)); see also Mackey, 553 S.W.2d at 341. To determine the voluntariness and
intelligence behind a guilty plea, the court must look to various circumstantial factors, i.e.,

               the relative intelligence of the defendant; 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).

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        The Petitioner contends that he did not realize that he might have to serve more than
30 percent of his sentence in confinement and that if he had been made aware of the
possibility he would have insisted on going to trial. However, the record belies this
contention. The Petitioner initially entered open guilty pleas, informing the trial court that
he was aware he could receive a sentence between three and six years. At the sentencing
hearing, the Petitioner agreed to plead guilty to outstanding misdemeanor charges and
accepted the State’s recommendation of a total effective sentence of four years. Counsel
testified that she told the Petitioner that he was only eligible for, not entitled to, release after
serving thirty percent of his four-year sentence. Accordingly, there is nothing in the record
to suggest that confusion, if any, regarding a four-year sentence played a pivotal role in the
Petitioner’s decision to plead guilty.

        The Petitioner further contends that when he entered his misdemeanor pleas, the trial
court did not inform him on the record of his rights or of the consequences of his pleas. The
Petitioner maintains that if he had been properly informed, he would not have pled guilty and
would have insisted on going to trial. The post-conviction court stated that it had “somewhat
of a problem with the misdemeanor pleas because obviously all the rights that were available
were not gone over at that time.” However, the court found that the Petitioner suffered no
prejudice by the court’s failure to reiterate his rights at the time of the misdemeanor pleas.
While the better practice, of course, would have been to review with the Petitioner the entire
panoply of his rights, the record supports the post-conviction court’s finding that the
Petitioner suffered no prejudice by the trial court’s failure to do so. The Petitioner has a long
history of entering misdemeanor pleas, demonstrating his familiarity with the plea process.
Moreover, the Petitioner had been informed of his rights during the felony guilty plea
proceedings. See State v. Neal, 810 S.W.2d 131, 139 (Tenn. 1991) (stating that a trial court’s
error in failing to review a defendant’s rights during a guilty plea proceeding is harmless “[i]f
it can be shown that the defendant already knew what he was not advised”), overruled in part
on other grounds by Blankenship v. State, 858 S.W.2d 897, 902 (Tenn. 1993); see also Dwight
A. Mayton v. State, No. 01C01-0708-CC-00376, 1998 WL 749413, at *3 (Tenn. Crim. App.
at Nashville, Oct. 28, 1998). Accordingly, the record does not preponderate against the post-
conviction court’s ruling.

                                        III. Conclusion

       Based upon the foregoing, we affirm the judgment of the post-conviction court.


                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE



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