        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 1, 2009

                  WALTER HIMES v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                   Nos. 06-08498, 07-00800 John Fowlkes, Judge




              No. W2009-00587-CCA-R3-PC - Filed September 7, 2010


Petitioner, Walter Himes, appeals the post-conviction court’s dismissal of his post-conviction
petition in which Petitioner alleged that his trial counsel rendered ineffective assistance of
counsel, and that his guilty pleas were not voluntarily or knowingly entered. After a
thorough review we affirm the judgment of the post-conviction court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and J.C. M CL IN, JJ., joined.

Andre B. Mathis, Memphis, Tennessee, for the appellant, Walter Himes.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Garland Erguden, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

I. Background

       On October 26, 2006, Petitioner was indicted in case no. 06-08492 for aggravated
burglary, a Class C felony, and theft of property valued between $1,000 and $10,000, a Class
D felony. On February 8, 2007, Petitioner was indicted in case no. 07-00800 for aggravated
robbery, a Class B felony, and aggravated kidnapping, a Class B felony. Petitioner entered
a plea of guilty to aggravated burglary in case no. 06-08492, and the State agreed to enter a
nolle prosequi as to the theft charge. The trial court sentenced Petitioner as a Range I,
standard offender, to the agreed upon sentence of three years for his burglary conviction.
Petitioner entered pleas of guilty to aggravated robbery and aggravated kidnapping in case
no. 07-00800. The trial court sentenced Defendant to the agreed upon sentences of ten years
for each conviction. The trial court ordered Defendant to serve his sentences in case no. 07-
00800 concurrently, but consecutively to his sentence in case no. 06-08492, for an effective
sentence of thirteen years.

       The State submitted the following factual basis in support of Petitioner’s conviction
in case no. 06-08492 at the guilty plea submission hearing:

       [On] July 15, 2006, officers responded to a domestic service [call] at 6550
       Baybrook. Victims Rory [sic] and Deborah Himes advised that their son,
       [Petitioner], who had not lived in the home for years due to a drug addiction,
       had broken into their home. They observed their son leaving the house with
       a female, white, with several items from the property. Officers observed signs
       of the break-in including broken glass and pry marks on the door. An
       estimated $1500 in coins were missing from the location.

       The State provided the following factual basis in support of Petitioner’s convictions
in case no. 07-00800:

       [O]n September 13, 2006, Heather Stalling [sic] stated she had gone to her
       residence in Bartlett located at 3327 Sandstone Cove. The victim noticed that
       several pieces of electronics were missing from her home, and [Petitioner] was
       present. She began to question [Petitioner] as the whereabouts of the items.
       At this point, she stated that he struck her in the face with a closed fist,
       knocked her to the ground. He then grabbed her by the throat, choking her
       with one hand while striking her repeatedly again in the facial area. During the
       course of the assault, the victim advised she did periodically black out, losing
       consciousness, at which time [Petitioner] bound her hands and feet with duct
       tape and a cord. He removed the jewelry from her person, including a watch,
       a ring, and a pair of earrings. She then was placed in a bedroom closet. She
       was not discovered until the next day by Officer Keyrig (phonetic) of the
       Bartlett Police Department who had been sent to the home with regard to a
       missing person’s complaint concerning the victim. The closet where the
       victim was located had been barricaded by [Petitioner] with a large kitchen
       table top as well as a bed. The victim was found – discovered in the room still
       partially bound. She was found to have a (indiscernible) swelling and
       breathing, as well as obvious hemorrhaging of the eyes. She also suffered
       broken lower teeth as a result of the attack. She also suffered severe bruising
       and swelling of the face and other parts of her body.

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        At the guilty plea submission hearing, Petitioner acknowledged that he had entered
a plea of guilty in another case prior to the current offenses and understood his rights. The
trial court explained to Petitioner the constitutional rights he was waiving by entering pleas
of guilty, and Petitioner said that he understood the consequences of his pleas. Petitioner
acknowledged that he had reviewed the negotiated plea agreement with his counsel and that
he was “freely and voluntarily” entering his pleas of guilty. Before imposing Petitioner’s
sentence for aggravated kidnapping, the trial court explained to Petitioner that this conviction
carried a release eligibility of one hundred percent as a violent offender. At the conclusion
of the guilty plea submission hearing, the trial court accepted Petitioner’s pleas of guilty and
imposed the agreed upon sentences.

II. Post-Conviction Hearing

        At the post-conviction hearing, Petitioner testified that the victim in case no. 06-08492
was his fiancee, Heather Stone, and the victim in case no. 07-00800 was his father, Roy
Himes. Petitioner stated that he pled guilty on May 10, 2007, and “received [a sentence of]
ten years at thirty percent for aggravated robbery. Ten years at a hundred percent running
concurrent for the aggravated kidnapping and three years at thirty percent consecutive for the
aggravated burglary.” Petitioner said that he retained the services of trial counsel after
initially being represented by the public defender.

       A transcript of a court appearance on May 1, 2007, was introduced as an exhibit at the
post-conviction hearing. Petitioner indicated in his post-conviction testimony that before the
May 1, 2007, court appearance, trial counsel told him that he would have a release eligibility
of thirty percent for the aggravated kidnapping sentence. At the May 1, 2007, court
appearance, however, the trial court informed Petitioner “that sentence was subject to a
hundred percent.” Petitioner said that the hearing was continued because Petitioner “was
confused as to what to do,” and he was hesitant to go to trial with trial counsel because trial
counsel had not been aware that there was no parole release for the offense of aggravated
kidnapping.

       Petitioner said that he had met with trial counsel approximately three times before the
May 1, 2007, hearing. Petitioner stated that trial counsel “actually did his job,” but trial
counsel told Petitioner that “he wasn’t educated as to that aspect [the release eligibility] of
aggravated kidnapping.” Petitioner said that there was “nothing personal” with trial counsel,
but Petitioner asked the trial court at the May 1, 2007, hearing if it would appoint new
counsel to represent him. The trial court denied his request. Petitioner then agreed to enter
pleas of guilty because he did not feel comfortable going to trial with trial counsel.




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        On cross-examination, Petitioner said that he was a high school graduate and had
received his LPN degree. Petitioner acknowledged that at the May 1, 2007, hearing, the trial
court asked him if he understood that aggravated kidnapping had a one hundred percent
release eligibility. According to the transcript, trial counsel responded, “Actually, I didn’t
tell him that. I forgot to look that over. I haven’t brought that up to him.” Petitioner was
called as a witness at the May 1, 2007, hearing, and the following colloquy occurred:

       [TRIAL COUNSEL]:             [Petitioner], since I was hired as your lawyer, do
                                    you understand what’s going on in your case and
                                    the offer from the State in your case?

       [PETITIONER]:                I’m aware of the offer. . . It was ten years and
                                    three years consecutive.

       [TRIAL COUNSEL]:             Yes, because you were out on bond when you got
                                    these new charges.

       [PETITIONER]:                That’s right. I was not aware that it was [a] 100
                                    percent crime. We didn’t go over that. . . .

       [TRIAL COUNSEL]:             Do you understand that now?

       [PETITIONER]:                Well, I do understand that now.

       ...

       [TRIAL COUNSEL]:             Do you need some time to think about this before
                                    you set your case for trial?

       [PETITIONER]:                I would prefer a week or so if I could have that. .
                                    ..

        Petitioner acknowledged that the trial court continued the hearing. Petitioner stated
that at the time of the guilty plea submission hearing on May 10, 2007, he understood that
the offense of aggravated kidnapping had a one hundred percent release eligibility. Petitioner
said, however, that he asked the trial court at the hearing to appoint a public defender to
represent him, and the trial court denied his request. Petitioner acknowledged that his request
was not reflected in the transcript of the hearing. Petitioner stated:




                                              -4-
       [s]o that left me in a situation where I go to trial, I take this charge right here or the
       judge said that I was facing like, you know, I don’t know if it was fifty-two years or
       something like that . . . with an attorney who is not educated as to the Tennessee law.
       And . . . I have to take this [settlement offer] because . . . if I can’t beat this ten year
       thing then I’m . . . definitely not going to beat the fifty-two year thing.

        Roy Himes, Petitioner’s father, testified that he retained trial counsel at Petitioner’s
request. Mr. Himes stated that he hired trial counsel because trial counsel was confident
“that he could get it down to thirty percent.” Mr. Himes stated that he would have let the
public defender represent Petitioner if he had known that aggravated kidnapping had a one
hundred percent release eligibility. Mr. Himes explained that he just wanted Petitioner to go
to “jail for a couple of years . . . to try to get him to get rid of the drug problem.”

       Trial counsel testified that he graduated from the law school at the University of
Memphis in 2005, and approximately eighty percent of his practice involved criminal cases.
Trial counsel said that Petitioner learned his name from an inmate at the Shelby County Jail.
Trial counsel spoke with Petitioner before Petitioner was indicted and visited him at the jail.
Trial counsel told Petitioner to call him after he was indicted so that trial counsel could give
him an estimated fee. Petitioner called trial counsel approximately two months later.
Petitioner said that he was currently represented by the Public Defender’s Office, but he
wanted to retain trial counsel’s services, and the trial court allowed trial counsel to be
substituted as counsel.

        Trial counsel stated that a settlement offer had already been extended by the time he
was retained to represent Petitioner. Trial counsel said that Petitioner always maintained that
he did not want to go to trial and “wanted to simply get the best deal that he could.” Trial
counsel stated that he was able to negotiate a lower sentence than originally offered on one
of the offenses. Trial counsel acknowledged that he was not aware that the offense of
aggravated kidnapping had a release eligibility of one hundred percent until the May 1, 2007,
hearing. Trial counsel said that he realized his error before Petitioner signed the guilty plea
acceptance and waiver form. Trial counsel immediately explained the situation to Petitioner.
Trial counsel stated that Petitioner was upset and told trial counsel that he wanted to proceed
to trial. The trial court continued the guilty plea submission hearing in order to give
Petitioner time to discuss the matter further with trial counsel. Trial counsel stated that
during the next ten days, Petitioner decided to go ahead and enter into a negotiated plea
agreement.

      On cross-examination, trial counsel said that Petitioner told him that he wanted
another attorney when he found out the aggravated kidnapping sentence must be served at
one hundred percent. Trial counsel stated, however, that Petitioner did not request substitute

                                               -5-
counsel during the May 1, 2007, hearing. Trial counsel stated that he explained to petitioner
the sentences he would receive before the guilty plea submission hearing.

III. Standard of Review

        To succeed on a challenge of ineffective assistance of counsel, the petitioner bears the
burden of establishing the allegations set forth in his petition by clear and convincing
evidence. T.C.A. § 40-30-210(f). However, the trial court’s application of the law to the
facts is reviewed de novo ,without a presumption of correctness. Fields v. State, 40 S.W.3d
450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed
question of fact and law and therefore also subject to de novo review. Id.; State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he or she must establish that counsel’s performance fell below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). In addition, he or she must show that counsel’s ineffective performance
actually adversely impacted his defense. Strickland v. Washington, 466 U.S. 668, 693, 104
S. Ct. 2052, 2067 (1984). In reviewing counsel’s performance, the distortions of hindsight
must be avoided, and this Court will not second-guess counsel’s decisions regarding trial
strategies and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court,
therefore, should not conclude that a particular act or omission by counsel is unreasonable
merely because the strategy was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at
2065. Rather, counsel’s alleged errors should be judged from counsel’s perspective at the
point of time they were made in light of all the facts and circumstances at that time. Id. at
690, 104 S. Ct. at 2066.

        A petitioner must satisfy both prongs of the Strickland test before he or she may
prevail on a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572,
580 (Tenn. 1997). That is, a petitioner must not only show that his or her counsel’s
performance fell below acceptable standards, but that such performance was prejudicial to
the petitioner. Id. Failure to satisfy either prong will result in the denial of relief. Id.
Accordingly, this Court need not address one of the components if the petitioner fails to
establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. In cases involving a
guilty plea, the petitioner must show prejudice by demonstrating that, but for counsel’s
errors, he or she would not have pleaded guilty but would have insisted on going to trial. See
Hill v. Lockhart, 474 U.S. 42, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d
213, 215 (Tenn. Crim. App. 1991).




                                              -6-
IV. Ineffective Assistance of Counsel

       Petitioner argues that his trial counsel rendered ineffective assistance of counsel
because he erroneously advised Petitioner that he would be eligible for release on his
sentence for aggravated kidnapping after serving thirty percent of his sentence.

        In Baxter, our supreme court concluded that attorneys should be held to the general
standard of whether the services rendered were “within the range of competence demanded
of attorneys in criminal cases” as measured by the duties and criteria set forth in Beasley v.
United States, 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCoster, 487 F.2d
1197, 1202-04 (D.C. Cir. 1973). Baxter, 523 S.W.2d at 936. Failure by counsel to correctly
advise a defendant on a clear point of law may constitute ineffective assistance of counsel.
Beasley, 491 F.2d at 696. As pertinent here, it was clear at the time Petitioner entered his
pleas of guilty that a defendant convicted of aggravated kidnapping was required to serve one
hundred percent of the sentence imposed less sentence reduction credits, if any, not to exceed
fifteen percent of the sentence. T.C.A. § 40-35-501(I).

        Although Petitioner relies on this Court’s decision in Dwane Washington v. State, No.
M2008-01062-CCA-R3-PC, 2009 WL 1676058 (Tenn. Crim. App., at Nashville, June 16,
2009), no perm. to appeal filed, the situation presented in that case and the one in the case
sub judice are clearly distinguishable. In Dwane Washington, trial counsel advised the
defendant that he was eligible for participation in the boot camp program after sentencing
when, in fact, he was not because he was sentenced as a Range II, multiple offender. Id.,
2009 WL 1676058, at *2. The error was not corrected prior to the guilty plea submission
hearing, and the defendant relied on that advice in deciding to enter a plea of guilty. A panel
of this Court concluded that trial counsel’s advice was directly contrary to the statute, and
thus her assistance in this regard was deficient. Id. at *8. However, the matter was remanded
to the trial court to determine whether this deficiency was prejudicial to the defendant. See
also Howell v. State, 539 S.W.2d 428, 435 (Tenn. 1978) (granting post-conviction relief
when the petitioner’s plea of guilty was based on a misunderstanding about his release
eligibility date).

        In the current case, however, trial counsel discovered his mistake before the
negotiated settlement agreement was accepted by Petitioner. The trial court gave Petitioner
the opportunity to consider whether to proceed to trial or enter pleas of guilty in light of this
new information. The record shows that Petitioner was clearly informed about the release
eligibility for an aggravated kidnapping sentence at the guilty plea submission hearing, and
Petitioner acknowledged that he understood that he would be required to serve one hundred
percent of his ten-year sentence for this offense. Thus, Petitioner has failed to establish that
he was prejudiced by trial counsel’s initial advice. See Shannon Pattum v. State, No. M2002-

                                               -7-
02435-CCA-R3-PC, 2003 WL 22927136, at *3 (Tenn. Crim. App., at Nashville, Dec. 11,
2003), no perm. to appeal filed (concluding that the petitioner had failed to show prejudice
when a letter sent to Petitioner containing erroneous information was “quickly corrected and
clearly caused no harm”). Moreover, counsel testified at the post-conviction hearing that
Petitioner always intended to enter pleas of guilty and obtain the least sentence possible.
Therefore, Petitioner did not show that absent counsel’s initial error, Petitioner would have
gone to trial. Petitioner is not entitled to relief on this issue.

V. Entry of Guilty Pleas

       When an accused enters a plea of guilty, constitutional considerations mandate that
the plea be voluntarily, understandingly and knowingly entered. See Boykin v. Alabama, 395
U.S. 238, 243, 89 S. Ct. 1709, 1713 (1969); State v. Mackey, 553 S.W.2d 337 (Tenn. 1997).
By entering a plea, the defendant waives certain constitutional rights including the privilege
against self-incrimination, the right to a trial by jury, and the right to confront witnesses.
Boykin, 395 U.S. at 243, 89 S. Ct. at 1714. The defendant’s waiver of these constitutional
rights may not be presumed from a silent record. Id. The trial court must ascertain if the
defendant fully understands the significant consequences of his or her plea. State v. Pettus,
986 S.W.2d 540, 542 (Tenn. 1977). The trial court may consider a number of factors
including the defendant’s relative intelligence, his or her familiarity with criminal
proceedings, whether the defendant was represented by competent counsel and had the
opportunity to confer with counsel about options, the advice given by counsel and the trial
court about the charges against the defendant and the penalty to be imposed, and the
defendant’s reasons for pleading guilty. Blakenship, 858 S.W.2d at 904.

       Petitioner contends that he felt compelled to enter his pleas of guilty because he had
lost confidence in trial counsel, and the trial court denied his request for substitute counsel.
The post-conviction court found trial counsel’s testimony credible. Trial counsel testified
that Petitioner was upset when he learned that he would have to serve one hundred as
opposed to thirty percent of his aggravated kidnapping sentence. Petitioner expressed
impatience with trial counsel and mentioned that he wanted different counsel to represent
him. Trial counsel stated, however, that Petitioner did not request the trial court for
substitute counsel at the May 1, 2007, hearing immediately following trial counsel’s and
Petitioner’s discussion concerning release eligibility dates. Instead, Petitioner was extended
the opportunity to decide whether to proceed to trial or enter pleas of guilty during a ten day
continuance. Again we note that trial counsel stated that Petitioner always intended to enter
pleas of guilty, and his goal was to secure the least sentence possible. Trial counsel
explained that the offenses involved Petitioner’s parents and his fiancee so that identity was
not an issue. At the guilty plea submission hearing, the trial court again explained to
Petitioner that he would have to serve one hundred percent of his sentence for aggravated

                                              -8-
kidnapping, and Petitioner acknowledged that he was knowingly and voluntarily entering his
pleas of guilty. Based on our review, we conclude that the evidence does not preponderate
against the post-conviction court’s finding that Petitioner knowingly and voluntarily enter
his pleas of guilty. Petitioner is not entitled to relief on this issue.

                                     CONCLUSION

       After a thorough review, we affirm the judgment of the post-conviction court.

                                                  _________________________________
                                                  THOMAS T. WOODALL, JUDGE




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