        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs at Jackson September 1, 2015

               CAYETANO FLORES v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                    No. 2011-B-1579     Steve R. Dozier, Judge




               No. M2014-02257-CCA-R3-PC – Filed December 2, 2015
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Petitioner, Cayetano Flores, appeals the denial of his petition for post-conviction relief.
He argues that his trial counsel provided ineffective assistance by operating under a
conflict of interest, inadequately discussing various aspects of the case and the details of
the plea agreement, and failing to file a motion to sever. After a careful review of the
record, we affirm the prost-conviction court‟s denial of post-conviction relief.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD
WITT, JR., and ROGER A. PAGE, JJ., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Cayetano Flores.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
and Rachel Sobrero, Special Prosecutor, for the appellee, State of Tennessee.


                                        OPINION

                                    Procedural History

       In a narcotics case involving forty-five codefendants, Petitioner was indicted for
(1) one count of conspiracy to sell a controlled substance within a drug-free school zone;
(2) three counts of possession of a controlled substance with intent to deliver; (3) three
counts of possession of a controlled substance with intent to deliver within a drug-free
school zone; and (4) one count of money laundering. On March 8, 2013, Petitioner pled
guilty to conspiracy, three counts of possession of a controlled substance with intent to
deliver, and money laundering. The plea agreement provided that Petitioner would be
classified as an especially mitigated offender and that all sentences would run
concurrently, resulting in an effective sentence of fifteen years with parole eligibility
after twenty-percent service.


       On March 7, 2014, Petitioner filed a pro se petition for post-conviction relief.
After receiving an amended pro se petition, the post-conviction court appointed counsel,
who filed another amended petition. An evidentiary hearing was held on October 10,
2014, and the post-conviction court denied relief through a written order entered on
October 31, 2014. Petitioner timely filed a notice of appeal.

                                            Facts

        At the evidentiary hearing, Petitioner testified that he discussed the case with trial
counsel during the proceedings in General Sessions court. Trial counsel informed
Petitioner that another attorney in his office could represent Petitioner. About a week
later, however, trial counsel informed Petitioner that “there was a conflict with Hector
Flores,” one of the codefendants, and that trial counsel would be personally representing
Petitioner, instead of the other attorney in trial counsel‟s office. Trial counsel did not
explain any details of the conflict of interest to Petitioner. After receiving the discovery,
Petitioner learned that there was an affidavit proffered from an individual named Joe
Williams, whom trial counsel had previously represented. If Petitioner had known the
details of the conflict of interest, he would have “fired” trial counsel. Petitioner did not
sign a written waiver of the conflict of interest. Petitioner admitted that Joe Williams was
not named as a codefendant in Petitioner‟s case and that he did not know Joe Williams.

       According to Petitioner, he only saw trial counsel four times during a period of
twenty-eight months, each meeting was at the jail and only lasted between five and ten
minutes. Initially, Petitioner and Hector Flores shared a jail cell. Despite the alleged
conflict of interest, Hector Flores was present at each meeting with trial counsel.
Petitioner did not understand why Hector Flores was present during these meetings, if he
had a conflict of interest with trial counsel. Petitioner admitted though that there were
about five occasions when Petitioner and trial counsel spoke privately.

       When trial counsel discussed the case with Petitioner, he told Petitioner that they
would “work something out” because Petitioner and Hector Flores were “attached [at the]
hip.” Trial counsel did not explain what that meant. Petitioner instructed trial counsel to
“separate” him from Hector Flores, but trial counsel told Petitioner that the prosecutor
would not allow a severance. Trial counsel‟s strategy was to reach a plea agreement with
the State because Petitioner had been caught “red-handed.”

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       Petitioner claimed that he did not receive all of the discovery. Trial counsel sent
Petitioner the discovery on computer CDs and told Petitioner in a letter that he would
provide hard copies of the discovery at Petitioner‟s request but Petitioner would have to
pay for the copying costs. Petitioner did not request hard copies from trial counsel,
choosing instead to send the CDs to his sister for printing. There were tens of thousands
of pages of discovery, most of which Petitioner believed did not pertain to him. Trial
counsel told Petitioner that there were two wiretap recordings relevant to his case, but
Petitioner only identified one wiretap in the discovery he received from trial counsel.

       When trial counsel eventually reached a plea agreement with the State, trial
counsel showed Petitioner where to sign the plea petition form, but trial counsel never
explained the terms of the plea agreement to Petitioner. Petitioner signed the form
because he thought trial counsel was working for his “best interest.” During the plea
colloquy, Petitioner was “dumbfounded,” and he explained, “I didn‟t know what to
expect. I just kept saying „Yes.‟” Trial counsel never explained to Petitioner what the
sentencing ranges were for the charged offenses.

       Trial counsel testified that, after the arrests in this case, he was contacted about
representing Hector Flores. He was also contacted about representing Petitioner. Trial
counsel met briefly with Hector Flores and then made a “courtesy” call to the prosecutor
about his potential involvement with the case. The prosecutor informed trial counsel that
there could have been a conflict of interest if he represented Hector Flores because Joe
Williams had identified Hector Flores as being involved with marijuana dealings in a
proffer made in a previous case. However, because the Joe Williams proffer did not
implicate Petitioner, there was no potential conflict of interest in trial counsel‟s
representation of Petitioner.

       Trial counsel represented Joe Williams in 2007 and 2008 in a different case. Trial
counsel began representing Petitioner in this case in November of 2010. To trial
counsel‟s knowledge, neither Joe Williams nor Petitioner knew each other. Trial counsel
did not get any information during his representation of Joe Williams which related to
Petitioner.

        After speaking with the prosecutor, trial counsel explained to Petitioner and
Hector Flores why he could only represent Petitioner but not Hector Flores. Trial counsel
clarified that the other attorney in his office, who ultimately represented Hector Flores,
was not one of his law partners but only shared office space with trial counsel. The State
submitted a copy of a handwritten document signed by both Petitioner and Hector Flores
consenting to their respective representations by trial counsel and the other attorney.

      During plea negotiations, the prosecutor said that any settlement in Petitioner‟s
case would benefit from Hector Flores‟s disclosure of forfeiture assets. Accordingly, trial
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counsel had some discussions involving both Petitioner and Hector Flores. However,
trial counsel also had several meetings alone with Petitioner. Trial counsel estimated that
he met with Petitioner between fifteen and forty times, half of which also involved
Hector Flores. These meetings typically were no shorter than forty-five minutes.

        Because a favorable plea bargain depended on Hector Flores‟s cooperation, trial
counsel could not resolve Petitioner‟s case any faster. Petitioner told trial counsel to
leverage his willingness to testify against Hector Flores in the plea negotiations.
However, the prosecutor was not interested in a proffer from Petitioner because the
evidence against Hector Flores was strong and the prosecutor felt that Petitioner was
substantially involved in the crimes. Petitioner also provided trial counsel with
information about a potential forfeiture asset, a house which belonged to Hector Flores
but was titled in Petitioner‟s name. Trial counsel disclosed the existence of the house to
the prosecutor and the drug task force but that information never materialized into any
benefit for Petitioner. Eventually, trial counsel secured an alternative plea offer, in the
event that Hector Flores chose not to cooperate, but the terms of that offer were less
favorable than those of the offer contingent on Hector Flores‟s cooperation. Hector
Flores did not want to cooperate with the State and waited until shortly before trial to
disclose forfeiture assets. Petitioner was prepared to take the alternative offer rather than
go to trial and was relieved when Hector Flores eventually cooperated.

        Trial counsel opined that Petitioner was in “serious peril” of being convicted at
trial and of receiving “a fairly long sentence” given “some very strong proof” against
Petitioner. Trial counsel‟s trial strategy would have been to argue that Petitioner was
merely a facilitator rather than a conspirator. However, trial counsel believed that the
strength of the evidence favored conspiracy over facilitation. Trial counsel would have
advised Petitioner not to testify at trial because he knew too much information about the
crimes. Before the plea submission, trial counsel went through everything in the plea
petition before having Petitioner sign the form.

       Trial counsel testified that he discussed with Petitioner “how much time he was
facing” for the charges as well as the “chances” of being convicted of lesser included
offenses. They discussed the difference between the school zone sentences, with
mandatory service, and those that were not. They also talked about the potential for
consecutive sentencing. Trial counsel compared Petitioner‟s potential sentences with
Hector Flores‟s potential sentences. They also talked about the potential benefits of
Petitioner‟s testifying for the State.

       Trial counsel agreed that the discovery was voluminous and that most of it was not
relevant to Petitioner. However, trial counsel maintained that he reviewed all of the
pertinent evidence with Petitioner. It was trial counsel‟s recollection that Petitioner did

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not want any hard copies of the discovery sent to him because he did not want the
information to be available in the jail for others to find.

        Trial counsel discussed with Petitioner filing a motion for severance but explained
that he thought such a motion might adversely impact Petitioner‟s position with the State
and with Hector Flores. Trial counsel also discussed the viability of a motion to suppress
the wiretap that was part of the State‟s case and explained that such a motion was very
unlikely to prevail. Trial counsel explained that there was an error with one of the
wiretap applications in which law enforcement officers listed Petitioner‟s name as an
alias for Hector Flores because they did not know that those names were for two different
individuals. Petitioner was aware of this error “very early” in the case because trial
counsel discovered it prior to the preliminary hearing. Trial counsel and Petitioner made
a strategic decision together not to file either motion.

       Trial counsel testified that he and Petitioner had a positive relationship and that
Petitioner never displayed any frustration with trial counsel until after he was denied
parole. Because the case had taken so long to be resolved, Petitioner‟s pre-trial jail credit
was considerable, and he became eligible for parole shortly after the guilty plea was
entered. Petitioner found the plea agreement quite favorable because he was hopeful
about his chances for parole as a nonviolent, first-time offender.

                                            Analysis

       On appeal, Petitioner argues that the post-conviction court erred in denying post-
conviction relief for the following reasons: (1) trial counsel failed to adequately inform
Petitioner of a conflict of interest; (2) trial counsel failed to adequately discuss the case
with Petitioner; (3) trial counsel failed to seek a severance of Petitioner‟s trial; (4) trial
counsel failed to adequately review the discovery material with Petitioner; and (5) trial
counsel failed to adequately advise Petitioner of the range and length of the potential
sentences for the charged offenses and did not fully explain the plea agreement with
Petitioner.1 The State argues that the post-conviction court properly denied post-
conviction relief because the evidence does not establish that trial counsel provided
ineffective assistance. We agree with the State.

       Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations

       1
          Petitioner raised several other arguments in the proceeding below, but because he has not
pursued those on appeal, they are abandoned. See Ronnie Jackson, Jr. v. State, No. W2008-02280-CCA-
R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App. 2009), perm. app. denied (Tenn. Apr. 16, 2010).
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by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel‟s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel‟s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a
claim of ineffective assistance of counsel, “failure to prove either deficient performance
or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley,
960 S.W.2d at 580. “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 v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466
U.S. at 697).

       The test for deficient performance is whether counsel‟s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney‟s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel‟s
conduct falls within the wide range of reasonable professional assistance.” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999). A defendant in a criminal case is not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, „we address not what is prudent or appropriate, but only
what is constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). This Court will not use
hindsight to second-guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334,
347 (Tenn. Crim. App. 1994), even if a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense does
not, standing alone, establish unreasonable representation.” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). However, this deference to
the tactical decisions of trial counsel is dependent upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).
                                            -6-
        Even if a petitioner shows that counsel‟s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. Prejudice is shown where “there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.” Burns, 6
S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). This reasonable probability must be
“sufficient to undermine confidence in the outcome.” Id. In the context of a guilty plea,
the specific inquiry is whether “there is a reasonable probability that, but for counsel‟s
errors, [the petitioner] would not have pleaded guilty and would have insisted on going to
trial.” Calvert v. State, 342 S.W.3d 477, 486 (Tenn. 2011) (quoting Hill v. Lockhart, 474
U.S. 52, 59 (1985)).

        Whether a petitioner has been denied the effective assistance of counsel presents a
mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the
post-conviction court‟s findings of fact “under a de novo standard, accompanied with a
presumption that those findings are correct unless the preponderance of the evidence is
otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.
13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh
or re-evaluate the evidence presented or substitute our own inferences for those drawn by
the trial court. Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the
weight and value to be given to testimony, and the factual issues raised by the evidence
are to be resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing
Henley, 960 S.W.2d at 578). However, the post-conviction court‟s conclusions of law
and application of the law to the facts are reviewed under a purely de novo standard, with
no presumption of correctness. Fields, 40 S.W.3d at 458.

        “[A] lawyer shall not represent a client if . . . there is a significant risk that the
representation of one or more clients will be materially limited by the lawyer‟s
responsibilities to another client, a former client, or a third person or by a personal
interest of the lawyer.” Tenn. Sup. Ct. R. 8, RPC 1.7(a)(2). In this case, Petitioner has
not shown any evidence that trial counsel faced a conflict of interest between his previous
representation of Joe Williams and later representation of Petitioner. Neither Petitioner
nor trial counsel identified any connection between these two individuals or their criminal
cases. Petitioner has not suggested any basis for imputing any potential conflict between
trial counsel and Hector Flores to trial counsel‟s representation of Petitioner simply
because Hector Flores was a codefendant in this case. The same goes for Hector Flores‟s
representation by another attorney with whom trial counsel shared office space but did
not practice law together as partners. This issue is without merit.

       As for Petitioner‟s claims that trial counsel inadequately discussed the case, the
discovery, and the plea agreement with Petitioner, the post-conviction court specifically
accredited trial counsel‟s testimony on these matters. Because the evidence does not
                                             -7-
preponderate otherwise, we accept the findings that “[t]rial counsel met with the
petitioner numerous times and discussed discovery, the law, the facts, and potential trial
strategies” and “went over the plea agreement with the petitioner „line by line.‟” Because
there is no evidence that trial counsel acted deficiently in this regard, there is no basis for
Petitioner‟s claim that his guilty plea was entered involuntarily due to the ineffective
assistance of counsel. Petitioner is not entitled to relief on these issues.

       The post-conviction court also accredited trial counsel‟s testimony that he advised
Petitioner about filing a severance motion but that they made an informed and tactical
decision not to file such a motion based on their plea negotiation strategy. Petitioner has
failed to prove that trial counsel‟s conduct in this regard was deficient or prejudicial.
Accordingly, Petitioner is not entitled to relief on this issue.

                                         Conclusion

        Because Petitioner has failed to prove by clear and convincing evidence that he is
entitled to post-conviction relief, the decision of the post-conviction court is affirmed.



                                                          ____________________________
                                                          TIMOTHY L. EASTER, JUDGE




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