         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                 September 12, 2000, Session

                  JACKIE L. GOOCH v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Lake County
                          No. 98-CR-7752, R. Lee Moore, Jr., Judge



                  No. W2000-00032-CCA-R3-PC - Decided October 24, 2000


The appellant, Jackie L. Gooch, appeals from the trial court’s denial of his petition for post-
conviction relief. Pursuant to a plea agreement, the appellant entered a “best interest” plea to the
charge of voluntary manslaughter. On appeal, the appellant contends: (1) that his guilty plea was
coerced and, thus, involuntarily entered; and (2) that trial counsel was ineffective. After review, we
affirm the judgment of the post-conviction court.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS
T. WOODALL , J., joined.

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Jackie L. Gooch.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Mark E.
Davidson, Assistant Attorney General, C. Phillip Bivens, District Attorney General, for the appellee,
State of Tennessee.


                                             OPINION


        The appellant, Jackie L. Gooch, was indicted by a Lake County Grand Jury for the second
degree murder of his brother, Randy Gooch. On June 22, 1998, pursuant to a plea agreement, the
appellant entered a “best interest” or Alford plea to a charge of voluntary manslaughter and was
sentenced to six years as a multiple Range II offender. On January 22, 1999, the appellant filed a
pro se petition for post-conviction relief. A hearing was held and the post-conviction court entered
an order dismissing the petition. On appeal, the appellant collaterally challenges his conviction and
asserts the following errors: (1) The appellant’s guilty plea was not knowingly, voluntarily and
intelligently made; and (2) the appellant’s trial counsel was ineffective. Following review, we find
no error. Therefore, the judgment of the Lake County Circuit Court is affirmed.
                                             Background
        On November 24, 1998, the appellant and a friend, Gregory Hayes, encountered the
appellant’s brother, Randy Gooch, and Randy’s girlfriend, Jackie Hollister. The appellant asked
Randy for the $30 he owed him, but Randy refused to give it to him. Randy and Hollister then left
and went to Hollister’s trailer. As Randy and Hollister were sitting on the couch, the appellant and
Hayes drove up. Hayes waited outside while the appellant went inside the trailer. A fight ensued
between the appellant and his brother. According to the appellant’s testimony, Randy hit the
appellant in the head with a baseball bat, knocking him unconscious. The appellant states that when
he woke up, he saw Randy lying on the floor and went to aid him. It was at this time that he found
that Randy had been stabbed with his [appellant’s] pocketknife. The victim later died as a result of
the stab wounds. The appellant states that he does not recall stabbing his brother. Hollister contends
she did not actually see the fight because she went outside to seek Hayes’ help.

                                            I. Guilty Plea
        The appellant asserts that the post-conviction court erred in denying his petition for post-
conviction relief. Specifically, the appellant contends that his guilty plea “was induced, coerced and
not made voluntarily and with understanding.” The State counters his assertion by arguing that the
appellant “freely, knowingly and voluntarily entered his guilty plea and agreed to the sentence he is
presently serving.”1
        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 his petition. Tenn. Code Ann. § 40-30-
210(f)(1997). When this court undertakes review of a lower court’s decision on a petition for post-


       1
           THE COURT:   Have you been advised by your attorney a nd/or M r., as District
                        Attorney Genera l, Mr. Bive ns, as to the proof tha t the State feels
                        that they have in this case?
       MR. GOOCH:       Well, they showed me all the evidence that they had - -
       ...
       THE COURT:       You’ve been ov er all the evid ence that th ey have with your
                        attorney?
       MR. GOOCH:       Well, I seen all of it I wanted to see.
       THE COURT:       What do you mean by that now?
       MR. GOOCH:       I saw - - Th at’s what I seen. That’s all I want - - I just am tired
                        of - - I know - - I know I was involved in it, you kno w. If I
                        hadn’t been there, couldn’t have happened, I know that. And
                        it’d be in my b est interest to go ahead and take this six years and
                        go on.
       THE COURT:       Are you telling me that with the proof that you’ve been shown,
                        that you fee l like they ha ve, the State has enough proof if the
                        case went to trial to convict you, whether you agree with it or
                        not?
       MR. GOOCH:       Oh, yes. See, it’s - - I’ve got enough proof myself, you know,
                        myself. I k now it.
       THE COURT:       You k now w hat?
       MR. GOOCH:       I know that I’m guilty. So, I d on’t, you know , I just want to do
                        what I’ve got to do and move on.



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conviction relief, the lower court’s findings of fact are given the weight of a jury verdict and are
conclusive on appeal absent a finding that the evidence preponderates against the judgment. Davis
v. State, 912 S.W.2d 689, 697 (Tenn. 1995). Furthermore, once a guilty plea has been entered,
effectiveness of counsel is relevant only to the extent it affects the voluntariness of the plea. In this
respect, such claims of ineffective assistance necessarily implicate the principle that guilty pleas be
voluntarily and intelligently made. See North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164
(1970).

        In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366 (1985), the United States Supreme Court
addressed the issue of alleged involuntary guilty pleas resulting from erroneous or negligent advice
by trial counsel. The result reached was a formulation of a merger of the Strickland test for
ineffective assistance of counsel and the traditional requirements for a valid guilty plea. The
Strickland test provides that, in order to prevail on a claim of ineffective assistance of counsel, the
defendant must establish that (1) the services rendered by counsel were deficient; and (2) the
defendant was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). As applied
to guilty pleas, the first prong above, that the services rendered were deficient, remains the same.
See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Walton v. State, 966 S.W.2d 54, 54-55
(Tenn. Crim. App. 1997). The prejudice requirement, however, is different in that it focuses on
whether counsel’s ineffective performance affected the outcome of the plea process. Hill v.
Lockhart, 474 U.S. at 58, 106 S. Ct. at 370. In other words, in order to satisfy the prejudice
requirement, the appellant must show 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. Id.; see also Walton
v. State, 966 S.W.2d at 55. Accordingly, the focus is not only upon the actual “error” committed by
counsel, but whether had counsel acted competently (1) would counsel have changed his
recommendation as to the plea, or (2) would the competent performance have been likely to change
the outcome of a trial. See Hill v. Lockhart, 474 U.S. at 59, 106 S. Ct. at 370-371.

        In the present case, the appellant first contends that his plea was not voluntary because his
trial counsel coerced him into pleading guilty. After review, the post-conviction court found the
appellant’s plea to be voluntary and explained its reasoning as follows:

        Petitioner first states that the conviction was based on an unlawfully induced guilty
        plea or guilty plea involuntarily entered without understanding of the nature or
        consequences of the plea. Mr. Naifeh [appellant’s trial counsel] and District
        Attorney, Phil Bivens, met with Mr. Gooch on Friday before his guilty plea was
        entered the following Monday. The proof is unrebutted that they discussed all phases
        of the case including the State’s proof and possible ranges of punishment for second
        degree murder and manslaughter. On the following Monday, the Petitioner entered
        a plea indicating that it was in his best interest to enter such a plea. The Petitioner
        was advised of all his constitutional rights. Range of punishment was explained.
        Petitioner indicated that he was completely satisfied with his attorney and that his
        attorney had answered all questions that he had about the case and his plea. Mr.


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       Gooch also testified that Mr. Naifeh had carried out all of the investigation of this
       case and made necessary preparations. He was satisfied with the manner in which
       Mr. Naifeh had represented him. The guilty plea was entered two (2) days prior to
       trial. It is clear that Mr. Gooch had considered the possibility of being convicted of
       second degree murder or voluntary manslaughter in a higher range and with a much
       longer sentence than the plea agreement would require. The Court finds the plea to
       be made knowingly and understandably (sic) and given voluntarily.

The established test for determining the validity of the guilty plea is “whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the defendant.” Hill,
474 U.S. at 56, 106 S. Ct. at 369 (citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160,
164 (1970)). We find this test was met in this case.

         The record indicates that the trial court questioned the appellant extensively as to whether
his plea was made with knowledge and understanding. When asked if he was satisfied with his
counsel’s performance, the appellant replied that he was satisfied and had seen all the information
that he wanted to see. Although the appellant now argues that he was “halfway crazy” because he
was on medication at the time he made the plea, the record indicates that he told the trial court the
only medication he was on at the time of the plea was blood-pressure medicine which had no effect
on his ability to understand or comprehend the proceedings. The appellant further argues that the
theory of self-defense was never explained to him. Once again, however, the record does not support
this contention. Trial counsel testified that he explained the self-defense theory on numerous
occasions but the appellant refused to accept this defense because he denied murdering his brother.
Finally, the appellant argues that his plea was not knowingly made because trial counsel informed
him that he could get 50 to 60 years at 85% if he did not plea. However, both trial counsel and the
district attorney’s office met with the appellant two days before he entered his plea and explained
the State’s proof and the possible ranges of sentences. Likewise, trial counsel testified that he went
over the possible ranges with the appellant before he pled guilty. Most importantly, however, the
trial court explained the possible sentencing ranges to the appellant who stated that he understood
his options and chose to plead guilty.

       We conclude that the record fully supports the findings of the post-conviction court that the
appellant has not proven by clear and convincing evidence that his guilty pleas were involuntarily
entered. Therefore, this issue is without merit.

                               II. Ineffective Assistance of Counsel
         To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show
two things: (1) The lawyer’s performance fell below an “objective standard of reasonableness,”
Strickland, 466 U.S. at 687-688, 104 S. Ct. at 2064-65; Baxter, 523 S.W.2d at 936; and (2) “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland 466 U.S. at 694, 104 S. Ct. at 2068. In State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999), our supreme court held that “[c]ases that involve mixed questions
of law and fact are subject to de novo review.” (citing Harris v. State, 958 S.W.2d 799, 802 (Tenn.


                                                 -4-
Crim. App.), perm. to appeal denied, (Tenn. 1997)). Specifically, the supreme court determined that
issues involving alleged deficient performance of counsel and possible prejudice to the defense are
mixed questions of law and fact. See Burns, 6 S.W.3d at 461. Although we perform a de novo
review of the issue, the appellant must still establish his allegations by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-210(f)(1997).

        The appellant argues that the post-conviction court erred in finding that he had effective
assistance of counsel when he pled guilty to voluntary manslaughter. First, the appellant contends
that his attorney was ineffective because he told the appellant his fingerprints were found on the
baseball bat when no matching prints were, in fact, found. The appellant contends he would not
have pled guilty had he known his fingerprints were not on the bat. However, the appellant himself
introduced two witnesses at the post-conviction hearing who testified that they saw the appellant
holding a bat after the incident occurred. Furthermore, the appellant’s brother died from a stab
wound. He was not beaten with a baseball bat. Therefore, no prejudice can be shown from trial
counsel’s error.

         The appellant next contends that trial counsel was ineffective because he failed to interview
some of the police officers involved, Gregory Hayes, and Jackie Hollister. Trial counsel, however,
testified that he did interview one officer. He also testified that he interviewed Hollister twice and
made several unsuccessful attempts to contact Hayes. Furthermore, trial counsel testified that he
viewed all of the evidence collected by the officers and reviewed all statements made by witnesses.
Additionally, trial counsel testified that the testimony of Hayes would be of little importance since
he was not in the trailer when the actual stabbing took place and could offer no explanation of what
actually happened in the trailer.

        The appellant also argues that trial counsel was ineffective because he refused to speak with
the medical examiner who performed the autopsy. The appellant contends that it would have been
difficult for him to stab the victim under the victim’s left armpit because he is left-handed. Trial
counsel, however, testified that he did not see any need to subpoena the medical examiner because
she would simply testify that the victim died as a result of a stab wound.

         The appellant next asserts that trial counsel was ineffective because he failed to file a motion
to suppress the appellant’s statements to police. The appellant contends that he requested that an
attorney be present before he signed the statement, but was refused his request by the sheriff. The
appellant further asserts that trial counsel should have made a motion to suppress the appellant’s
statements to police because he had a knot on his head from the baseball bat at the time he made the
statements. The proof at the post-conviction hearing, however, was that the appellant was read his
rights, agreed to make the statements, and did not request an attorney. Furthermore, trial counsel
testified that he reviewed the medical records which indicated that the appellant had some blood in
his ear, but was not suffering from any head trauma. Consequently, trial counsel felt there was no
basis for suppressing the statements.




                                                  -5-
        The appellant further contends that he received ineffective assistance of counsel because trial
counsel failed to pursue a theory of self-defense. Trial counsel, however, testified that he had
discussed the self-defense theory with the appellant on more than one occasion and felt that “he had
a pretty good case for self-defense,” but the appellant would not allow him to pursue that theory
because he “did not have anything to do with the stabbing, that someone else killed Randy.” The
State also agreed that the appellant consistently denied he stabbed the victim.

        Finally, the appellant asserts that he was denied effective assistance of counsel when his trial
counsel coerced him into speaking with the district attorney a few days before he entered his plea
of guilty. However, the record clearly reveals that this discussion was made pursuant to the
appellant’s request and against the advice of trial counsel.

         We conclude that the appellant has failed to establish, by clear and convincing evidence, that
he was denied effective assistance of counsel. The transcript of the guilty plea hearing reveals that
the trial court thoroughly advised the appellant that he was waiving his rights to appeal by pleading
guilty. Additionally, the trial court provided the appellant relevant sentencing information.
Moreover, the appellant testified that he was satisfied with his counsel’s performance and agreed that
the guilty plea was in his “best interest.” Thus, the record supports the post-conviction court’s
conclusion that the appellant received competent and effective assistance of counsel when he entered
his plea. Therefore, this issue is without merit.

                                          CONCLUSION

       After a thorough review of the record, we find the appellant has failed to establish that he
received ineffective assistance of counsel. Furthermore, we find that the appellant’s guilty plea was
entered into voluntarily and knowingly, with full awareness of his constitutional rights. Therefore,
the judgment of the Lake County Circuit Court is affirmed.




                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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