             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                               Assigned on Briefs November 22, 2005

             SIMON AVALOS VILLAGOMEZ v. STATE OF TENNESSEE

                         Appeal from the Criminal Court for Davidson County
                           No. 2003-C-1874    J. Randall Wyatt, Jr., Judge


                      No. M2004-03064-CCA-R3-PC - Filed February 17, 2006


The Appellant, Simon Avalos Villagomez, appeals the Davidson County Criminal Court’s denial
of his petition for post-conviction relief. On appeal, Villagomez argues that his guilty plea for felony
possession of seventy pounds or more of marijuana for resale was not knowing and voluntary due
to the ineffective assistance of counsel. After review of the record, we affirm the denial of post-
conviction relief.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY L.
SMITH , JJ., joined.

Ronald E. Munkeboe, Jr., Nashville, Tennessee, for the Appellant, Simon Avalos Villagomez.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor
S. Johnson III, District Attorney General; and Kathy Morante, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                                     OPINION

                                            Procedural Background

        In July of 2003, the Appellant was indicted for two counts of the sale of marijuana, Class E
felonies, one count of felony possession of a weapon, a Class E felony, and one count of felony
possession of seventy pounds or more of marijuana with intent to sell in a Drug-Free School Zone.
On December 16, 2003, the Appellant pled guilty to possession of seventy pounds or more of
marijuana for resale, a Class B felony, and received a nine-year sentence. The remaining counts
were dismissed.1 The Appellant filed a pro se petition for post-conviction relief on May 13, 2004,
alleging that he had been denied the effective assistance of counsel. Following the appointment of


         1
           The transcript of the guilty plea hearing, the plea agreement, and the judgment of conviction are not included
in the record.
counsel, an amended petition was filed, and an evidentiary hearing was held on November 22, 2004.
The post-conviction court denied relief by written order of November 30, 2004. This appeal
followed.

                                              Analysis

         The Appellant alleges that his guilty plea was not knowing and voluntary due to the
ineffective assistance of counsel. Specifically, he contends that trial counsel was deficient in (1)
failing to adequately consult and “advise him of the plea’s consequences” and (2) “failing to explore
suppression issues surrounding his illegal arrest.”

        In order to succeed on a post-conviction claim, the Appellant bears the burden of showing,
by clear and convincing evidence, the allegations set forth in the petition. T.C.A. § 40-30-110(f)
(2003). To support a Sixth Amendment claim of ineffective assistance of counsel, the Appellant
must establish that counsel’s performance fell below the range of competence of attorneys demanded
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v.
Washington, the Appellant must establish (1) deficient representation and (2) prejudice resulting
from the deficiency. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). It is unnecessary for a court
to address deficiency and prejudice in any particular order, or even to address both if the petitioner
makes an insufficient showing on either. Id. at 697, 104 S. Ct. at 2069. With a guilty plea, to satisfy
the “prejudice” prong, the Appellant “must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of 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)). However, conclusions
of law are reviewed under a purely de novo standard with no presumption of correctness. Fields, 40
S.W.3d at 458.

         The Appellant’s argument of an involuntary guilty plea is premised upon his contention that
trial counsel’s performance was so deficient that it precluded his ability to enter a knowing plea of
guilty to felony possession of seventy pounds or more of marijuana for resale. First, the Appellant
asserts that trial counsel was deficient because she failed to adequately consult with him and discuss
the consequences of a guilty plea. At the hearing, trial counsel testified that she was appointed to
represent the Appellant in May of 2003 and met with the Appellant on at least six occasions. She
stated that she explained to the Appellant that had he gone to trial and been found guilty, he would
have received a minimum sentence of fifteen years at one hundred percent for the Class A felony
possession of seventy pounds or more of marijuana in a school zone; whereas, by pleading guilty and
accepting the plea agreement, he would receive a nine-year sentence at thirty percent. The Appellant


                                                 -2-
admitted that trial counsel advised him that it was his decision whether to plead guilty or go to trial
and that he chose to plead guilty. The post-conviction court accredited the testimony of trial counsel
and concluded that the Appellant failed to prove that he “was uninformed as to the State’s evidence
against him, the consequences of the plea, or his options if he did not plead guilty.” The record does
not preponderate against these findings.

        The Appellant next asserts that trial counsel was deficient for not investigating or filing a
motion to suppress the evidence seized as a result of the search of his home. The search was
conducted by Metro police officers under the authority of a search warrant. The Appellant testified
that he discussed with counsel the fact that his wife’s signature was forged by the police on a “piece
of paper” that was involved in the search. The “piece of paper” was introduced at the hearing and
identified as a Department of Safety property seizure form, noting the seizure of one hundred twenty-
eight pounds of marijuana from the Appellant’s residence and bearing the purported signature of the
Appellant’s wife, Claudia Villagomez. The Appellant’s wife was not called as a witness at the
hearing. Trial counsel testified that she reviewed the search warrant but found no defect in the
warrant or its execution. Additionally, she stated she examined the document which was the subject
of the Appellant’s complaint; however, she “couldn’t find a way to use [the form] in a suppression
motion, in that it was essentially, a receipt.”

        With regard to this allegation, the Appellant was required to show by clear and convincing
evidence (1) that a motion to suppress would have been granted and (2) that there was a reasonable
probability that the proceedings would have concluded differently if counsel had performed as
suggested. The Appellant has failed to establish either of these factors. Indeed, the proof at the
hearing and the post-conviction court’s findings convincingly suggest that a motion to suppress
would not have prevailed.2 Clearly, counsel cannot be considered ineffective for failing to make or
pursue a motion that would have been meritless. After review, we conclude that the proof does not
preponderate against the post-conviction court’s finding that the Appellant received the effective
assistance of counsel.

                                                  CONCLUSION

       Based upon the foregoing, we conclude that the post-conviction court properly denied the
Appellant’s petition for post-conviction relief. Accordingly, the judgment of the Davidson County
Criminal Court is affirmed.

                                                                 ___________________________________
                                                                 DAVID G. HAYES, JUDGE




         2
           The post-conviction court’s findings recite that “[trial counsel] was adequately informed of the circumstances
surrounding the search of the Petitioner’s home, and her decision to not pursue a suppression motion was an informed,
tactical decision not to be second guessed by the Court.”

                                                          -3-
