        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 29, 2014

            ADRIAN LAMONT HENRY v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                    No. 2010D3439    Cheryl A. Blackburn, Judge




             No. M2014-00034-CCA-R3-PC           - Filed December 5, 2014


The petitioner, Adrian Lamont Henry, pled guilty to second degree murder, a Class A felony,
and was sentenced to forty years in confinement. The petitioner filed the instant petition for
post-conviction relief, in which he alleged that he received the ineffective assistance of
counsel and that his guilty plea was involuntary. Following an evidentiary hearing, the post-
conviction court denied relief. On appeal, the petitioner argues that his constitutional rights
were violated when he was not given proper Miranda warnings and when he was interviewed
while under the influence of marijuana. The petitioner also argues that he received
ineffective assistance of counsel when trial counsel: (1) failed to communicate the defense
strategy, defenses, or theory of the case with the petitioner; (2) failed to file a motion to
suppress the petitioner’s statements to law enforcement; (3) failed to utilize important
witnesses; and (4) pressured the petitioner into pleading guilty. The petitioner argues that
due to these errors, his guilty plea was not knowingly and voluntarily entered. After our
review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of
the post-conviction court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which R OGER A. P AGE,
and R OBERT H. M ONTGOMERY, J R., JJ., joined.

Jennifer J. Hall, Nashville, Tennessee, for the appellant, Adrian Lamont Henry.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Katrin Miller, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                           I. Facts

       The petitioner was indicted for first degree, premeditated murder and arson after
police officers discovered his girlfriend’s body burning in a field and her vehicle burning
nearby. On January 11, 2012, the petitioner pled guilty to second degree murder and was
sentenced to forty years in confinement to be served at 100% and consecutively to his prior
convictions. The arson charge was dismissed.

                    A. Facts from Guilty Plea Submission Hearing

        At the guilty plea submission hearing, the petitioner agreed that the following
recitation of facts was “generally true”:

              [O]n Thursday, August the 12th, 2010, Metro police officers
              responded to a report of what appeared to be a human body on
              fire near the intersection of Brick Church Lane and Knight
              Drive here in Davidson County. Upon the officers’ arrival[,]
              they discovered the charred, burning remains of what appeared
              to be an adult female. Detectives responded to the scene along
              with I.D. and the medical examiner’s office. Also while
              investigating this death[,] detectives were advised that a van had
              been discovered burned approximately two miles from the scene
              where the body was discovered. The van was registered to a Mr.
              Rat, R-A-T, Vit, V-I-T. And it was determined that his daughter
              Saret Vit[,] who is age twenty-two[,] was the last person known
              to be driving the van.

                      An autopsy was conducted and performed, and through
              dental records[,] it was determined that the body found burn[ed]
              was that of Saret Vit. Through speaking with her employer and
              family[,] the last person to have been seen with Ms. Vit was her
              boyfriend, Adrian Henry. Evidence from the autopsy showed
              that Ms. Vit suffered trauma to her head. The cause of death
              was strangulation, and it was determined that she was deceased
              at the time her body was set on fire.

                     Based on information from the fire marshal’s office[,] an
              accelerant gasoline was used to start the fire, and it was believed

                                              -2-
that the suspect may have suffered some burns when the fire was
started.

        On August the 13th[,] Adrian Henry was interviewed by
detectives. The detectives observed burnt skin on his face and
right arm. He also had several deep scratches on his chest and
back that appeared that he had been in some type of a physical
confrontation. Mr. Henry was asked what he was wearing when
he went to see the victim at her place of employment on August
the 12th. He stated he was wearing a gray tank top with some
type of shorts. On August the 14th[, a] video surveillance tape
was retrieved from the business Bob Evans Restaurant, and it
showed Mr. Henry with Ms. Vit wearing the same white shirt
and black pants she was wearing when her body was discovered.
It also showed that Mr. Henry was wearing a gray tank top and
white shorts.

       On August the 14th[,] Mr. Henry was interviewed again.
During both of the interviews with detectives[,] Mr. Henry was
inconsistent in his statements regarding his burns and scratches.
He stated that the place on his nose was from a sunburn. He
stated that his ear was also sunburned. It did not appear to
detectives that these were sunburns. He also stated that he
burned his arm in a grease fire. When questioned about the
fresh scratches on his chest and back, he stated it was from
playing basketball several days earlier. The detectives observed
the scratches appeared to be fresh and that some of the scratches
were still clotting. He also stated that’s how he got his nose
scratched when he previously stated that it had been sunburned.

      His statements about where he went after he met with
Ms. Vit on August the 12th are also inconsistent with other
witnesses Roderick (phonetic) and Robert Left.

        Detectives also interviewed Darren Ricks (phonetic). He
is the person who was driving by the field where the body was
found and saw a black man leaving the field and get into a white
van and drive away with the lights off. DNA was recovered
under Ms. Vit’s fingernails. This DNA was sent to Orchid
Cellmark Lab. Barbara Leal[,] who tested the DNA[,] would

                               -3-
              testify that the DNA belonged to either Mr. Henry or someone
              in his paternal lineage.

       The petitioner affirmed that he understood the plea agreement; that he understood the
crimes with which he was charged and their potential punishment; that he and trial counsel
had thoroughly discussed his case, including the discovery and potential witnesses; that he
could not think of anything he had asked trial counsel to do that they had not done; that he
was not under medication or having difficulty understanding what he was doing; and that he
wished to waive his right to continue to trial and wanted instead to plead guilty.

                            B. Facts from Post-Conviction Hearing

       At the post-conviction hearing, Detective Lawrence Brown testified that he responded
to the report of a body burning in a field at about 11:00 p.m. on August 12, 2010. The
victim’s identity was traced through the discovery of her father’s burned van in the vicinity
and confirmed through dental records. Detective Brown testified mainly to the circumstances
under which the petitioner gave police a statement and permission to take a sample of his
DNA.

       Detective Brown testified that police discovered the petitioner was the victim’s
boyfriend after speaking with the victim’s family and the manager of the restaurant where
she worked. Detective Brown spoke to the petitioner either two or three times. Two video
recorded interviews were admitted as late-filed exhibits to the post-conviction hearing.
According to Detective Brown, the first interview took place on the morning of August 13,
when he returned to the station after obtaining the victim’s dental records and found the
petitioner waiting in the lobby. Detective Brown testified that the petitioner “voluntarily
came to the station on his own” and that he told police he had heard the victim’s van was
found and he wanted to help. The petitioner was interviewed about his relationship to the
victim. Detective Brown testified that the petitioner was free to leave during this interview
and that he did, in fact, leave the station on his own at the interview’s conclusion.

        A video of the August 13, 2010 interview was introduced into evidence at some time
after the conclusion of the hearing. The petitioner told the detectives about his relationship
with the victim and stated he had just given her $943 for her parents’ rent, money he had
obtained from selling his personal possessions. He accounted for his whereabouts at the time
of the crime by telling detectives that he was playing poker with Roderick Left’s father and
a neighbor and that he later went to Wal-Mart with Mr. Left and his wife. The petitioner told
police that he had last heard from the victim a little before 10:00 p.m. the night before and
that she had lost her telephone charger.



                                             -4-
        The petitioner had free use of his phone during the first part of the interview, sending
and receiving messages. When detectives informed him that the burned body was his
girlfriend, he began to cry for some minutes. Detectives allowed him to leave the interview
room to go outside to “get some air.” The petitioner had offered his phone to the detectives
during the first part of the interview. As they were leaving the interview room, the petitioner
asked to make a call, and a detective asked him to “wait on phone calls for a minute,”
requesting to take the phone. When detectives and the petitioner returned to the room, the
detectives asked him to turn off the phone to avoid interruptions. However, the petitioner
nevertheless spoke to his brother during a later break. The petitioner made some equivocal
references to obtaining counsel, including, “Do I need somebody here with me, or am I OK?”
The petitioner executed a waiver of his rights. The petitioner interrupted to ask, “Can I stop
right here? Anytime I want to stop, can I?” The detective answered, “Yeah, I’m going to get
to that part,” and then read the next few sections, including the right to stop answering
questions. He later asked, “How long do I have to be here?” to which detectives responded,
“You’re here for [the victim].”

        During the interview, the petitioner alluded to certain burn marks on his nose and ears,
noting that his skin sunburns very easily and that the spots were sunburns, which had peeled
off when he washed his face. He later told police the spot on his nose was a sore that had
gotten infected and then sunburned. He also stated that a burn on his arm was a grease burn.
The petitioner gave police permission to photograph his injuries. They also asked if he had
any tattoos other than those visible on his arms. The petitioner responded that he had tattoos
on his torso, and the officers asked him to remove his shirt so they could photograph the
tattoos, at which point the officers noticed scratches on his chest and back. The petitioner
stated he got the scratches while playing basketball and that his nose was also scratched
while playing basketball. The petitioner agreed to give a DNA sample, and he told detectives
he had last had sex with the victim on Tuesday. He also wrote a statement detailing
everything he had done the day before. At the conclusion of the August 13, 2010 interview,
the petitioner was not detained by police and left the station to go home.

       Detective Brown testified that on August 14, 2010, police were at the house of the
petitioner’s friend, Roderick Left, and they asked Mr. Left to go to the station to give a
statement. The petitioner, who happened to be present, volunteered to accompany them, and
he rode to the station with Mr. Left. Detective Brown testified that police did not ask the
petitioner to go to the station for this final interview. According to Detective Brown, “Mr.
Henry basically placed himself in this case from day one.”

      The petitioner was not given further Miranda warnings during the second interview,
which lasted a little over an hour and a half. He brought the white shorts he had been
wearing the night of the crime and explained that there was a cigarette burn on them as he

                                              -5-
handed them over to police. The detectives continued to question the petitioner about his
relationship with the victim, his activities the night of the murder, and his wounds.

        At one point, the petitioner requested to leave and was told to “hang on just a second”
while a detective looked at his phone; the detective left the petitioner alone in the room with
his phone. The petitioner asked to use the bathroom, and he requested to leave again and was
told, “We’ll see where they’re at.” The petitioner made a phone call in the interview room.
The detectives returned and confronted him with inconsistencies between his statement and
other evidence. The petitioner announced, “That’s it, I think it’s time for me to get an
attorney.” Police implied that he would then be arrested. The petitioner asked if he would
be able to leave to get an attorney. During the remaining few minutes of the interview, the
petitioner continued to deny his involvement when confronted with the implausibility of his
claims about the burns and scratches on his body. The petitioner finally said, “I want to talk
to an attorney, please.” Detectives then placed him under arrest and refused to speak to him
further, even when he tried to withdraw his request.

       Detective Brown testified that he did not smell marijuana on the petitioner either day
and that the petitioner was coherent and able to give a narrative of events. He denied asking
the petitioner if he had “burned one” the prior day or saying he could smell “it” on the
petitioner. Detective Brown testified that he did not use that phrase.

       Detective Hanson also testified that he did not recall smelling marijuana on the
petitioner and that petitioner did not appear to be under the influence of drugs. The petitioner
had no difficulty articulating what he wanted to say. Detective Hanson did not remember
asking the petitioner if he had “burned one.”

        The petitioner’s lead trial counsel testified regarding his work investigating and
litigating the case. Lead counsel testified that the petitioner was evaluated for competency
by two experts; that his IQ was tested; and that trial counsel investigated mitigating evidence,
including hiring an expert in substance abuse and emotional trauma. Experts determined that
the petitioner was competent, and his IQ tested in the seventies. Trial counsel investigated
trauma suffered by the petitioner in his youth, particularly the “troubling” facts regarding the
petitioner’s proceedings for his prior convictions, during which his juvenile transfer hearing
was waived and he was sent to the penitentiary as a fourteen-year-old.

       Lead counsel testified that the petitioner gave them the names of witnesses who the
petitioner thought would provide favorable evidence. One of these witnesses, Mr. Left,
refused to be interviewed and eluded contact with trial counsel even when they waited
outside his home. Other witnesses changed their stories, and lead counsel felt some would
not be credible to a jury. He testified that he went over the petitioner’s and Mr. Left’s

                                              -6-
statements to the police in great detail and would have been aware of any inconsistencies.

        Lead counsel denied that he coerced the petitioner into pleading guilty. Lead counsel
testified that he discussed the case with the petitioner many times. He testified that he
believed that the evidence was overwhelming, that the petitioner would be convicted, and
that the best outcome from trial would be a conviction for a lesser-included offense. He
talked to the petitioner “many, many” times about pleading guilty, but the petitioner did not
want to plead guilty until right before trial. He denied telling the petitioner that he would
never see the light of day or that his witnesses could be convicted of perjury. The State had
filed a notice that it intended to seek a sentence of life without parole, and lead counsel told
the defendant it was highly probable he would be convicted and sentenced to life without
parole. Lead counsel stated that he spoke to the petitioner’s family about the possibility of
pleading guilty early in the proceedings but that, due to the petitioner’s preferences, he and
co-counsel did not contact the family about the plea bargain at the time that it was negotiated.
He did not pressure the petitioner’s family regarding a plea. Lead counsel recalled that the
petitioner initiated the negotiations by contacting him in early December to express an
interest in pleading guilty in exchange for a forty-year sentence.

        Regarding the suppression of the evidence, lead counsel testified that he did not feel
that there was a strong argument to suppress the statement to police. When it became clear
that the case would go to trial, however, he and co-counsel drafted a motion to suppress and
contacted the court to ensure the motion would be heard prior to trial. This motion was
attached to the petition for post-conviction relief. However, before the motion was filed, the
petitioner expressed an interest in pleading guilty, and trial counsel shifted focus to plea
negotiations, opting not to file the motion. Lead counsel noted that even if the motion had
been granted, there was overwhelming evidence pointing to the defendant as the perpetrator,
including the burns on his face and arms, scratches on his chest and back, DNA found under
the victim’s fingernails, and video showing an argument with the victim on the evening of
the crime. Lead counsel also noted that the prosecution had probable cause to obtain the
petitioner’s DNA, and any motion to suppress the DNA evidence would at most have delayed
the proceedings.

       Co-counsel confirmed much of lead counsel’s testimony, including that over 176
hours were logged on the case and that the defense did not limit spending but, in fact, hired
several expert witnesses. She did not recall any statements that money would not be spent
on the case and testified that expending the necessary money and time “wasn’t an issue for
us.” Trial counsel shared discovery with the petitioner’s mother and with Shamiah McMillen
Henry, petitioner’s current wife. She and lead counsel discussed different theories and
strategies with the petitioner.



                                              -7-
        Co-counsel testified that she never asked the petitioner’s mother to persuade him to
plead guilty and that the petitioner did not want her to be involved due to her health. The
petitioner told trial counsel not to discuss the plea negotiations with his family or friends, and
trial counsel did not do so. Co-counsel testified that several of the petitioner’s family and
friends only became aware that he had pled guilty when they saw it on the news and that they
called the office afterward because they were surprised by the plea. The petitioner had
contacted trial counsel through his current wife on December 8, 2011, regarding a plea, and
trial counsel attempted to negotiate a plea before the trial date set for late January. The
petitioner called again on January 3 to ask if the plea had been accepted, and he entered a
plea on January 11. Co-counsel testified that on the morning of January 11, trial counsel met
with the petitioner in a booth in the holding area and that the petitioner did not express doubt
about his decision to plead guilty, although he was worried about media coverage. Co-
counsel confirmed lead counsel’s statements regarding the facts around the drafting and
filing of the motion to suppress, noting that trial counsel did not file the motion because they
were concerned that the opportunity to plead guilty would expire.

       The petitioner’s mother, Patricia Henry, testified that lead counsel asked her to ask the
petitioner to plead guilty. She also testified that lead counsel told her that “it was political
season and that they had already had somebody for the crime and they were not going to
spend [any more] money on that trial.” She told her son that no more money would be spent,
and she felt he was under a lot of pressure when he pled guilty. She elaborated that this was
in December 2011 and that trial counsel did not want to spend money because of the election
for “the senate and all that kind of . . . elections.” She testified that the petitioner did not
want her to testify at trial because of her illness and that trial counsel did not predict any
adverse consequences from her testimony. She opined that the crime “was a hate crime, and
my son [doesn’t] have that kind of hate in his heart.”

        Shamiah Henry, who was the petitioner’s girlfriend at the time of the plea agreement
and who subsequently married the petitioner, testified that she would have provided an alibi
for the petitioner if trial counsel had called her to testify. According to the petitioner’s wife,
Mr. Left took the petitioner to the restaurant where the victim worked at around 4:30 or 5:00
p.m. At 7:00 p.m., she picked the petitioner up at Mr. Left’s house, and they went to a Days
Inn to have sexual intercourse. During intercourse, the petitioner’s phone rang four or five
times. Later, the phone rang again, and the petitioner answered it and put it on speaker
phone. The petitioner’s wife heard Mr. Left say in a panicked voice that the petitioner
needed to return to the house, and she gave him a ride to Mr. Left’s home. She also stated
that she frequently scratched the petitioner during sex. On cross-examination, she
acknowledged that she did not immediately give her alibi evidence, explaining that she was
living with the father of her children at the time and did not want to get caught cheating. She
testified that the petitioner was also involved with a third woman, the mother of his children,

                                               -8-
at the time. The petitioner’s wife at first testified that the petitioner had no burns on his body
that night. She later amended her answer to say that he had “a burn before from cooking.”
She stated that he did not have burns on his nose, ear, and arm at the hotel.

       The petitioner’s wife also testified that trial counsel pressured her to tell the petitioner
to plead guilty to life without parole. Although she claimed she was pressured several times,
she also testified that she never told the petitioner to plead guilty because she did not believe
he was guilty and because she felt it should be his decision. The petitioner’s wife
acknowledged that trial counsel investigated her testimony; trial counsel told her she would
not be a credible witness.

         The petitioner also testified regarding the performance of trial counsel and the
circumstances of his plea. He testified that trial counsel told him that the witnesses he
wanted to be present at trial would not be credible and that they could be charged with
perjury. He acknowledged that his wife’s testimony was inconsistent with the statement Mr.
Left gave to the police and with his own statement to police. He also admitted that “[w]hat
Mr. Roderick told the police is something we decided together to tell the police.” He
testified that he did not tell police he was with his wife, stating, “[B]ecause at the time I did
not recollect – I didn’t remember that part. I did not even actually know what time they said
all this had happened.” He elaborated that he was not sure if it was relevant because he did
not know the timeline and that he did not want her to get caught cheating. He stated at the
post-conviction hearing that the scratches police found on his chest and back could have
come from basketball or sex. He also stated that the wound on his nose was not a burn but
an injury from doing cocaine, which was exacerbated by sun exposure. The wound on his
ear “could have come from . . . cooking, too.” He stated that Mr. Left and “three other guys”
were involved in the victim’s death, which was motivated by $24,000 that he had given her
that day. Mr. Left called the hotel because the men wanted to “get” the petitioner, too. He
lied in his statement to police in order to protect Mr. Left and Mr. Left’s family from these
men. He explained that his DNA might have been under the victim’s fingernails because he
had sex with her on Wednesday.

       The petitioner testified that he felt coerced into pleading guilty. He had initially
rejected a forty-five year plea offer. He claimed that trial counsel then talked to his family,
including his two girlfriends and his mother, about pleading guilty. The petitioner stated that
he never talked to his family about pleading guilty “because it was understood I wasn’t going
to plead guilty,” but he did talk to them about not pleading guilty. He stated that he did not
know about the plea offer until he met with lead counsel in the “booth” prior to the hearing
and that he only had fifteen minutes to consider the offer. He felt that he had no choice
because lead counsel had told him he could not win at trial and that his witnesses were not
credible. He had told the court that he was acting voluntarily and was not coerced because

                                                -9-
he was “in a zombie[-]type trance.”

       The petitioner also testified regarding the circumstances of his statement to police.
He testified that he did not go to the police station of his own initiative. Instead, after trying
to contact the victim, he called the restaurant and was told police were looking for him and
had left their cards for him. He called the contact information given to him by the restaurant
and left messages, and he was asked to come to the station by law enforcement when they
returned his calls. He was afraid that not contacting the police would have consequences for
his parole. The petitioner testified that, during the first interview, he was under the influence
of marijuana, describing his impairment as a “thirty” on a scale from one to ten, and he stated
he was even more under the influence the second day. He acknowledged that he never
admitted being involved with the crime during the interviews.

        The post-conviction court denied the petition. In its detailed findings of fact, the court
credited trial counsel’s testimony regarding the investigation of the case and the assessment
of witness credibility. The post-conviction court specifically found that the petitioner’s tale
that “three other guys” killed the victim lacked credibility, and it noted that two of the
witnesses the petitioner faulted trial counsel for not presenting did not testify at the post-
conviction hearing. The post-conviction court found that trial counsel did not coerce the
petitioner into pleading guilty, that trial counsel secured funding for three medical experts,
and that significant time and money were spent on the case. The post-conviction court found
that trial counsel kept the petitioner informed about the case and possible strategies. The
court also found that the petitioner’s friends and family did not pressure him to plead guilty,
as they were unaware of the plea negotiations. The post-conviction court concluded, “In
short, [p]etitioner did not like his options[;] he did not want to enter a plea[,] yet he did not
have any evidence or witnesses to contradict the State’s evidence that he was present at the
crime scene when the victim was killed.” The court further found that the plea was knowing
and voluntary based on the petitioner’s statements made at the time the plea was entered.
Regarding the motion to suppress, the post-conviction court again credited the testimony of
trial counsel. The post-conviction court found that it would not have suppressed the evidence
because the petitioner was not in custody during either interview, because the waiver was
valid for the first and second interviews, because the defendant’s waiver was not invalidated
by intoxication or mental impairment, and because the State had probable cause to obtain the
petitioner’s DNA. The petitioner now appeals.

                                          II. Analysis

       On appeal, the petitioner argues that his constitutional rights were violated when he
was not given proper Miranda warnings and when he was interviewed while under the
influence of marijuana. The petitioner also argues that he received the ineffective assistance

                                              -10-
of counsel when trial counsel: (1) failed to communicate the defense strategy, defenses, or
theory of the case with the petitioner; (2) failed to file a motion to suppress the petitioner’s
statements to law enforcement; (3) failed to utilize important witnesses; and (4) pressured
the petitioner into pleading guilty. The petitioner argues that due to these errors, his guilty
plea was not knowingly and voluntarily entered. The State responds that the petitioner
received the effective assistance of counsel and that the petitioner’s plea was voluntary.

        In order to obtain post-conviction relief, the petitioner bears the burden of proving the
allegations of fact in the petition by clear and convincing evidence. T.C.A. § 40-30-110(f)
(2010). The findings of fact made by a post-conviction court are conclusive on appeal
unless the evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465 (Tenn.
2010). Whether a guilty plea was knowing and voluntary and whether the petitioner received
the ineffective assistance of counsel are mixed questions of fact and law. Id.; Vaughn v.
State, 202 S.W.3d 106, 115 (Tenn. 2006). Legal issues and mixed issues of fact and law are
reviewed de novo without any presumption of correctness. Vaughn, 202 S.W.3d at 115.

                        A. Interviews as Constitutional Violation

        To the extent that the petitioner alleges a free-standing constitutional violation
separate from his ineffective assistance of counsel claim regarding his interviews, the
petitioner is without relief. Post-conviction relief is available only where a judgment is void
or voidable due to an abridgement of the petitioner’s rights. Any violation of the petitioner’s
constitutional rights during custodial interrogation in this case does not render the judgment
void or voidable; it simply determines what evidence would have been admissible had the
case gone to trial. Accordingly, this allegation is not, in itself, a ground for post-conviction
relief. See State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (“[T]he voluntary entry of an
informed and counseled guilty plea constitutes an admission of all facts necessary to convict
and waives all non-jurisdictional defects and constitutional irregularities which may have
existed prior to the entry of the guilty plea.”).

                           B. Ineffective Assistance of Counsel

       The Post-Conviction Procedures Act provides relief when a conviction or sentence
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. Both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution guarantee the right to counsel, and the denial of the effective assistance of
counsel is a proper ground for post-conviction relief. Vaughn v. State, 202 S.W.3d 106, 115-
16 (Tenn. 2006). The right to counsel “encompasses the right to ‘reasonably effective’
assistance, that is, assistance ‘within the range of competence demanded of attorneys in

                                              -11-
criminal cases.’” Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008) (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)).

        To show that relief is warranted on a claim of ineffective assistance of counsel, the
petitioner must establish both that counsel’s performance was deficient and that the
deficiency prejudiced the defense. Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007).
Failure to show either deficiency or prejudice precludes relief. Felts v. State, 354 S.W.3d
266, 277 (Tenn. 2011). Deficiency can be shown by proving that counsel’s acts or omissions
were so serious that they fell outside an objective standard of reasonableness under prevailing
professional norms. Vaughn, 202 S.W.3d at 116. “Upon our review of counsel’s
performance, ‘we must make every effort to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from the
perspective of counsel at that time.’” Finch, 226 S.W.3d at 316 (quoting Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006)). In evaluating counsel’s performance, “strategic choices
made after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Strickland, 466 U.S. at 690-91. The defendant’s own
statements and actions may determine the reasonableness of counsel’s actions. Felts, 354
S.W.3d at 277.

        To show prejudice, the petitioner must show a reasonable probability that, but for
counsel’s errors, the results of the proceeding would have been different. Vaughn, 202
S.W.3d at 116. “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” State v. Honeycutt, 54 S.W.3d 762, 768 (Tenn. 2001) (quoting Strickland,
466 U.S. at 694).

       When a petitioner challenges his guilty plea on the basis of ineffective assistance of
counsel, the petitioner must prove deficient performance and that “‘there is a reasonable
probability that, but for counsel’s errors, he would not have pled guilty and would have
insisted on going to trial.’” Grindstaff v. State, 297 S.W.3d 208, 216-17 (Tenn. 2009)
(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

                                1. Failure to Communicate

       The petitioner argues that trial counsel was ineffective for failing to communicate the
defense strategy, defenses, or theory of the case with him. The petitioner argues that had he
known the defense strategy he would have known to question the handling of his case during
the plea negotiations.



                                             -12-
        The post-conviction court found that trial counsel kept the petitioner informed about
the case and possible strategies. The testimony of trial counsel, which was credited by the
trial court, also indicated that the petitioner was informed regarding trial strategy. Trial
counsel recalled discussing the defense strategy and the likely outcome at trial with the
petitioner. Furthermore, during the petitioner’s plea colloquy, the petitioner indicated that
trial counsel had discussed the case with him thoroughly, including the discovery, defenses,
and potential witnesses. The petitioner has failed to show that trial counsel acted deficiently
in communicating with him regarding the case or that he suffered any prejudice.

                         2. Failure to File a Motion to Suppress

        The petitioner also faults trial counsel for failing to move to suppress his statement
to police and his DNA. The petitioner argues that he was not properly given Miranda
warnings despite being interrogated in police custody. He also claims he was intoxicated at
the time the statements were taken and that police did not allow him to leave or cease
questioning him when he requested an attorney. The evidence credited by the post-
conviction court showed that a motion to suppress was prepared and that trial counsel were
in the midst of scheduling a hearing on the motion when the petitioner expressed a desire to
initiate plea negotiations. Trial counsel did not file the motion because they shifted their
focus to negotiating the plea. The post-conviction court also found that the petitioner was not
intoxicated, a finding which is conclusive on appeal unless the evidence preponderates
otherwise. Ward v. State, 315 S.W.3d 461, 465 (Tenn. 2010).

       When a petitioner who pled guilty alleges deficiency in the failure to suppress
evidence, the court may consider the likelihood that the motion to suppress would have
succeeded and whether suppression would have led the attorney to change his or her
recommendation regarding the plea. See Lueptow v. State, 909 S.W.2d 830, 832-33 (Tenn.
Crim. App. 1995). We conclude, however, that it is unnecessary to decide the merits of a
motion to suppress petitioner’s statement or whether trial counsel’s recommendation
regarding the plea would have changed because the petitioner has failed to prove prejudice.

        The petitioner’s statements to police were not determinative of his decision to plead
guilty. The petitioner’s statements were only marginally useful to the prosecution insofar as
he presented inconsistent explanations for his wounds and insofar as his statements conflicted
with those of any alibi witness he may have later developed and wanted to present. He never
admitted to committing the crime during either interview. Furthermore, the prosecution had
other, more conclusive proof of the petitioner’s involvement, including a video of him and
the victim at the restaurant on the evening of the crime, scratches on the petitioner’s chest




                                             -13-
and back, burn marks on his ear, nose, and arm,1 information from the fire marshal that the
perpetrator would have burns, and DNA from the petitioner or someone in his paternal
lineage under the victim’s fingernails. The petitioner was facing a possible sentence of life
without parole, and he chose instead to plead guilty in exchange for a forty-year sentence.
We further note that trial counsel did, in fact, draft a motion to suppress and was in the
process of filing it when they were diverted by the petitioner’s expressing a desire to enter
into plea negotiations. This circumstance suggests that the suppression of evidence played
a negligible role in the petitioner’s decision to plead guilty. Having considered the nature
of the evidence sought to be suppressed, the other evidence available to the prosecution, and
the circumstances surrounding the guilty plea, we conclude that, even if we were to assume
that the motion to suppress should have been filed and would have succeeded, the petitioner
has failed to establish that “there is a reasonable probability that, but for counsel’s errors, he
would not have pled guilty and would have insisted on going to trial.” Grindstaff, 297
S.W.3d at 217 (quoting Lockhart, 474 U.S. at 59). Because the petitioner cannot establish
prejudice, we will not consider whether trial counsel’s decision to file the motion close in
time to the trial or whether trial counsel’s decision not to file the motion during plea
negotiations was ineffective assistance, although we note that the petitioner introduced no
evidence that the motion could not have been filed and heard prior to trial had he decided not
to plead guilty. We also note that trial counsel’s decision not to file the motion after the
petitioner expressed an interest in pleading guilty was a strategic one. See Strickland, 466
U.S. at 690-91.

        The petitioner likewise objects to trial counsel’s failure to suppress the DNA evidence
obtained while he was in custody, but he cannot show either deficiency or prejudice in trial
counsel’s failure to suppress this evidence because, as lead counsel noted at the hearing, even
if the court had found that the defendant’s consent to give a DNA sample was not valid, the
State had probable cause to obtain another sample through a warrant. The petitioner
therefore cannot show either that failure to suppress the evidence was deficient or that there
is a reasonable probability that he would not have pled guilty had a motion to suppress the
DNA been filed.

                                  3. Failure to Utilize Witnesses




        1
          We note that the burns on the petitioner’s ear, nose, and arm were clearly visible to detectives
during the interviews, and that this evidence is accordingly not subject to suppression regardless of the
circumstances under which the interviews were conducted. The evidence of the scratches on his torso was
likewise nontestimonial evidence which was obtained without coercion and after the petitioner was advised
of his right to remain silent during the first interview. See State v. Climer, 400 S.W.3d 537, 567 (Tenn.
2013).

                                                  -14-
        The petitioner asserts that his decision to plead guilty was influenced by trial counsel’s
representation that some of the petitioner’s witnesses, including alibi witnesses, could not
testify because they would not be credible and could be charged with perjury.

       Generally, a petitioner will not be able to establish prejudice pursuant to a claim that
counsel failed to investigate or present a witness unless the witness testifies at the post-
conviction hearing. Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990).
Neither Mr. Left nor the petitioner’s brother testified at the post-conviction hearing, and the
petitioner therefore cannot demonstrate any prejudice from any alleged deficiency in trial
counsel’s investigation related to these witnesses.

        Both the petitioner’s mother and his wife testified at the hearing. The petitioner’s
mother testified that she was available to testify at trial but did not expect to do so because
the petitioner wanted to protect her due to her health. She testified trial counsel did not tell
her that testifying would have any adverse results for her or the petitioner. The substance of
her testimony did not address the State’s evidence but consisted of the opinion that her son
did not have the kind of hate in his heart necessary to commit the crime. She also made an
allegation that trial counsel had told her that no more resources would be expended on the
case due to an upcoming election.

        The petitioner’s wife testified that trial counsel told her that her testimony would not
be credible to a jury. She then proceeded to testify that the petitioner had been with her on
the night of the crime, that she had scratched him during sex, and that he had left after a
panicked Mr. Left called him numerous times. She testified that she picked up the petitioner
around 7:00 p.m. but did not testify regarding how long he was with her. The victim’s body
was found at around 11:00 p.m. The petitioner’s wife did not explain how he got burn marks
on his face, and her testimony established that he was not burned when he was with her at
the hotel; she later amended this testimony to say he had some burns from cooking but not
on his nose, ear, or arm. The petitioner’s wife’s testimony conflicted with the petitioner’s
own statement to police regarding his whereabouts. Trial counsel’s prediction that the trier
of fact would question her credibility proved correct, as the post-conviction court found that
there were not “any credible alibi witnesses to show that Petitioner was not with the victim
at the time she was killed.”

        Both lead counsel and co-counsel testified regarding the investigation of the case.
Trial counsel testified that over 176 hours were spent on the case, that three expert witnesses
were hired, that trial counsel attempted to contact all the witnesses whose names the
petitioner had provided, that trial counsel interviewed those witnesses who cooperated, and
that trial counsel communicated with the petitioner regarding case strategies and witnesses.
Trial counsel also testified that they did not mention perjury to the witnesses but provided

                                               -15-
the witnesses and the petitioner with an honest assessment of the likelihood that a jury would
find the proffered testimony not credible. Co-counsel testified that there were no issues
regarding funding for the petitioner’s case. The post-conviction court found that the
testimony of trial counsel on these matters was credible, a determination that is binding on
this court unless the evidence preponderates otherwise. Accordingly, the petitioner cannot
show deficiency with respect to trial counsel’s investigation of the case. Considering the
nature of the testimony of the witnesses, neither has he demonstrated a reasonable probability
that he would not have pled guilty had trial counsel advised him to present the testimony of
these witnesses.

                                 4. Pressure to Plead Guilty

       The petitioner next asserts that trial counsel were deficient in pressuring him to plead
guilty. However, the post-conviction court found that trial counsel did not coerce the
petitioner into pleading guilty and that the petitioner’s friends and family did not pressure
him to plead guilty, as they were unaware of the plea negotiations.

         Trial counsel testified that they never pressured either the petitioner or his friends and
family regarding a guilty plea; rather, the petitioner, less than two months before trial,
contacted them to express interest in negotiating a plea. Trial counsel discussed the
possibility of a plea with the petitioner’s family early in the case but that, pursuant to the
petitioner’s wishes, they never discussed the plea negotiations with his family while the
negotiations were taking place. Co-counsel testified that the petitioner’s family and friends
were surprised by the entry of the guilty plea and called the office because the petitioner
evidently had not told them he was planning to plead guilty. The petitioner’s wife testified
that trial counsel pressured her to convince the petitioner to plead guilty; however, she also
testified that she never did so. The petitioner’s mother testified that lead counsel asked her
to tell the petitioner to plead guilty because no more money would be spent on his case and
that she told the petitioner what lead counsel had said. The petitioner testified that trial
counsel pressured his family but also that he never talked to his family about pleading guilty
“because it was understood I wasn’t going to plead guilty.” The petitioner stated he talked
to his family about not pleading guilty. The post-conviction court credited trial counsel’s
testimony that they did not pressure the petitioner or his friends or family regarding the guilty
plea. Accordingly, trial counsel’s performance was not deficient. Also, the petitioner’s and
his wife’s testimony that the alleged pressure from trial counsel was not conveyed to the
petitioner shows that the petitioner suffered no prejudice.

                                   C. Voluntariness of Plea

       Insofar as the petitioner also challenges his plea on the basis that it was not knowing

                                               -16-
and voluntary, we conclude he is not entitled to relief. The petitioner argues that because of
trial counsel’s deficiencies his plea was not knowingly and voluntarily entered and that he
would not have entered his guilty plea had he received effective assistance of counsel.

        A guilty plea is only valid if it is voluntarily, understandingly, and knowingly entered.
Howell v. State, 185 S.W.3d 319, 330 (Tenn. 2006). “In determining whether a guilty plea
was knowingly and voluntarily entered, the standard, of course, is ‘whether the plea
represents a voluntary and intelligent choice among the alternative courses of action open to
the defendant.’” Grindstaff v. State, 297 S.W.3d 208, 218 (Tenn. 2009) (quoting Jaco v.
State, 120 S.W.3d 828, 831 (Tenn. 2003)). Prior to accepting a guilty plea, the trial court
must conduct an inquiry into the defendant’s understanding of the proceedings to ensure the
plea is knowing and voluntary. Grindstaff, 297 S.W.3d at 218 & n.11.

        The transcript of the plea hearing shows that the trial court conducted a thorough
examination of the petitioner to ensure that the petitioner understood the rights he was
waiving in entering the plea. During this colloquy, the petitioner indicated that trial counsel
had discussed the case with him thoroughly, including the discovery, defenses, and potential
witnesses. The testimony of trial counsel, which was credited by the trial court, also
indicated that the petitioner was informed regarding trial strategy. While the petitioner
testified that he only had fifteen minutes to consider the plea, trial counsel testified that the
petitioner first suggested negotiating a forty-year sentence approximately one month before
the plea hearing. The petitioner’s testimony that trial counsel pressured him to plead guilty
was likewise contradicted by trial counsel. The post-conviction court credited trial counsel’s
testimony. The petitioner was aware of the potential sentence of life without parole.

       Factors to be considered in evaluating the voluntariness of a plea include:

              (1) the defendant’s relative intelligence; (2) the defendant’s
              familiarity with criminal proceedings; (3) the competency of
              counsel and the defendant’s opportunity to confer with counsel
              about alternatives; (4) the advice of counsel and the trial court
              about the charges and the penalty to be imposed; and (5) the
              defendant’s reasons for pleading guilty, including the desire to
              avoid a greater penalty in a jury trial.

Grindstaff, 297 S.W.3d at 218 (quoting Howell, 185 S.W.3d at 330-31). In this case, while
trial counsel testified that the petitioner’s IQ was in the seventies, all other factors suggest
that the plea was voluntary. The petitioner was familiar with criminal proceedings, having
pled guilty to two prior felonies. Trial counsel conferred with the petitioner throughout the
case, discussed alternatives, and were prepared to proceed to trial. The petitioner initiated

                                              -17-
the plea negotiations and had over a month to consider the possibility of pleading guilty in
exchange for a forty-year sentence. Trial counsel correctly informed petitioner regarding the
potential sentence and the sentence to which he was agreeing. The abundant evidence
against the petitioner was a strong inducement to plead guilty in order to avoid a greater
penalty. Accordingly, we conclude that the plea was knowing and voluntary.

                                     CONCLUSION

       Based on the foregoing analysis, we conclude that the petitioner’s judgment is not
void or voidable, and we affirm the judgment of the post-conviction court.


                                                   _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




                                            -18-
