             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                  Assigned on Briefs February 5, 2008

                          CEDRIC DOSS v. STATE OF TENNESSEE

                           Appeal from the Criminal Court for Shelby County
                                  No. 04-01213   Chris Craft, Judge



                          No. W2007-01963-CCA-R3-PC - Filed April 1, 2008


The Petitioner, Cedric Doss, appeals from the order of the Shelby County Criminal Court denying
post-conviction relief. On appeal, he asserts that the post-conviction court erred by denying his
petition because the evidence presented below demonstrated that he did not receive the effective
assistance of counsel prior to pleading guilty to especially aggravated robbery. Following our review
of the record and the parties’ briefs, we affirm the post-conviction court’s order denying relief.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and
JERRY L. SMITH , J., joined.

R. Andrew Hutchinson, Memphis, Tennessee, for the appellant, Cedric Doss.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Alanda Dwyer, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                                      OPINION

                                       Factual Background
       The Petitioner was indicted in February 2004 for attempted first degree murder and especially
aggravated robbery.1 Subsequently, he incurred additional charges in a separate indictment for
burglary, unspecified drug offenses and more than one count of failure to appear. Pursuant to a plea

         1
             The record on appeal is sparse. All information regarding the Petitioner’s convictions and sentences is
gleaned from the technical record— which includes only the Petitioner’s original petition, an amended petition, the order
denying relief, and a notice of appeal. The only other component of the record is a transcript of the evidentiary hearing
held in the post-conviction court, which this Court allowed to be late-filed. No transcript of the Petitioner’s guilty plea
submission hearing is included in the record. As a result, the record contains very little information about the crime for
which the Petitioner was convicted.
agreement, he pled guilty to especially aggravated robbery and was sentenced as an especially
mitigated offender to thirteen and one-half years in the Department of Correction. He also received
concurrent sentences of eleven months and twenty-nine days for the drug offenses (which had been
reduced to misdemeanors) and one count of failure to appear. The remaining charges were
dismissed.

        He filed a pro se petition for post-conviction relief, and after counsel was appointed, an
amended petition was filed. The post-conviction court held an evidentiary hearing during which the
Petitioner and his trial counsel were the only witnesses.

         At the hearing, the Petitioner testified that he met with trial counsel “approximately” three
times. The Petitioner explained that after he was arrested, he made an inculpatory statement to
authorities, so the “main thing” he discussed with trial counsel was getting his statement suppressed
because it was coerced. Specifically, the Petitioner testified that he gave the statement because the
person responsible for the crimes, Marlando Bates, had threatened to harm or kill the Petitioner’s
daughter if he did not “take the charges.” The Petitioner conveyed this circumstance to trial counsel,
but trial counsel told him that those were not grounds on which the statement could be suppressed.

        If his statement had been suppressed, the Petitioner contended, he would have gone to trial
on his charges rather than entering a guilty plea. The Petitioner testified that he understood his plea
agreement, including the fact that his sentence would be served at 100%, but he thought that he could
have received a better offer from the district attorney’s office had his statement been suppressed.
However, according to the Petitioner, trial counsel did not take any action to have his statement
suppressed.

         On cross-examination, the Petitioner further explained that he was only able to provide
details of the crime (such as the type of gun with which the victim was shot) in his statement to the
police because this information was “already on the computer.” The Petitioner further averred that
his statement was coerced because the police detectives who took his statement “kicked his chair,”
yelled at him, and threatened to take his daughter away in order to get him to confess. The Petitioner
did not tell trial counsel about the alleged police misconduct.

        The Petitioner agreed that he had testified at his guilty plea submission hearing that he was
satisfied with trial counsel’s representation.

       Trial counsel testified at the post-conviction evidentiary hearing that the Petitioner had told
him about the threats made against his daughter by Marlando Bates, and trial counsel stated that he
believed the Petitioner was being truthful about these threats. However, trial counsel said that there
were no grounds to support a motion to suppress, explaining as follows:

               There were no grounds for the [m]otion to suppress. I asked him about
       the—how he was treated in the interrogation room. He gave me no indications of
       threats or coercion by the police themselves. And also, you know, the fact—the fact


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       of the matter is, he was looking at significantly more time and the risk reward
       analysis was pretty simple. The absolute minimum on the especially aggravated
       robbery versus [the victim] getting shot four times running away from people trying
       to rob him, if he were convicted, there’s no doubt they were going to max him out.
       And if the state went forward with the failures to appear [it] would [have been]
       almost impossible to defend. The drug conviction looked strong—the drug
       indictment looked strong. There had been another E [f]elony and the burglary of a
       building had weaknesses. But if he’s convicted on all of it, I mean, obviously he may
       never get out of jail again. So that was all discussed. He understood that. And it
       was, like I said, a risk reward analysis.

         Trial counsel further testified that he had discussed these various possibilities with the
Petitioner and that the Petitioner understood everything. The Petitioner never told trial counsel that
the police had coerced his confession. Trial counsel agreed that if he had secured a motion to
suppress hearing regarding the Petitioner’s statement, the Petitioner would have had an opportunity
to testify about how his statement was coerced. However, trial counsel knew that the State would
have withdrawn the thirteen and one-half year offer if he pursued a motion to suppress.

        Trial counsel testified that he had petitioned the trial court for funds and then hired an
investigator, but trial counsel said that he could not remember whether the investigator had actually
made inquiries regarding the Marlando Bates matter.

        Subsequent to the hearing, the post-conviction court entered a written order dismissing the
petition, ruling as follows:

       This court finds [trial counsel’s] testimony very credible, and the [P]etitioner’s
       testimony not credible. Even had the [P]etitioner been telling the truth about the
       police threats, his attorney cannot be blamed for failing to act on information that
       only the [P]etitioner knew but admittedly withheld from his attorney. The Strickland
       standard for ineffective assistance has been modified for guilty pleas so that [a]
       petitioner “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, 59 (1985). As counsel has committed no error, the
       [P]etitioner is not entitled to relief.


                                             ANALYSIS
        On appeal, the Petitioner argues that trial counsel’s performance was inadequate because he
failed to fully investigate whether the Petitioner’s statement was coerced. The Petitioner’s brief
indicates generally that if these matters had been investigated more thoroughly, he would not have
pled guilty. The Petitioner also contends that the weight of the evidence supports a finding of
ineffective assistance of counsel.



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        Initially, we must address the State’s argument that this appeal should be dismissed because
the Petitioner failed to supply this Court with an adequate appellate record. Had defense counsel not
made a tardy request to supplement the record with a transcript of the post-conviction evidentiary
hearing (which this Court granted), we would have to agree, but with that transcript in the record,
we conclude that a sufficient review is possible. We will review the issue on its merits.

        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Both
the United States Supreme Court and the Tennessee Supreme Court have recognized that the right
to such representation includes the right to “reasonably effective” assistance, that is, within the range
of competence demanded of attorneys in criminal cases. Strickland v. Washington, 466 U.S. 668,
687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

       A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer and actual prejudice to the defense
caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d at 461. The defendant bears the
burden of establishing both of these components by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either deficiency or
prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of counsel claim.
Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        This two-part standard of measuring ineffective assistance of counsel also applies to claims
arising out of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice component is
modified such that the defendant “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.” Id.
at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

         In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court must
be highly deferential to counsel’s choices “and should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462;
see also Strickland, 466 U.S. at 689. The court should not use the benefit of hindsight to second-
guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982), and counsel’s alleged errors should be judged in light of all the facts and circumstances as
of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246
(Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This Court
reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de novo


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standard, accompanied with a presumption that those findings are correct unless the preponderance
of the evidence is otherwise. Id. “However, a trial court’s conclusions of law—such as whether
counsel’s performance was deficient or whether that deficiency was prejudicial—are reviewed under
a purely de novo standard, with no presumption of correctness given to the trial court’s conclusions.”
Id. (emphasis in original).

        We agree that the Petitioner did not demonstrate that trial counsel’s performance was
deficient. Bare assertions that the Petitioner would not have pled guilty if trial counsel had more
thoroughly investigated his allegations that his confession was coerced are not persuasive. The post-
conviction court accredited the testimony of trial counsel, who explained that there were no viable
grounds upon which the Petitioner’s inculpating statement could have been suppressed. Trial
counsel knew that if a motion to suppress were filed, the favorable plea agreement offer would be
withdrawn. Further, trial counsel informed that arguing to a jury that the Petitioner’s statement was
coerced by the actual perpetrator of the crime would have been risky—considering that a conviction
on the principle charge would have resulted in a much longer sentence. Accordingly, we agree with
the post-conviction court’s conclusion that trial counsel did not perform deficiently in counseling
the Petitioner to accept the State’s plea offer of thirteen and one-half years. The Petitioner has not
demonstrated that he received the ineffective assistance of counsel.

                                           Conclusion
       Based on the foregoing authorities and reasoning, we affirm the post-conviction court’s order
denying post-conviction relief.



                                                       ______________________________
                                                       DAVID H. WELLES, JUDGE




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