        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 18, 2009

              ERIC TYREESE DAVIS v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Wilson County
                        No. 06-0427 Jane W. Wheatcraft, Judge



                  No. M2008-01982-CCA-R3-PC - Filed January 11, 2010

Petitioner, Eric Tyreese Davis, appeals the post-conviction court’s dismissal of his post-
conviction petition in which Petitioner alleged that his trial counsel rendered ineffective
assistance of trial counsel in connection with the entry of his pleas of guilty, and that his
guilty pleas were not voluntarily or knowingly entered. After a thorough review we affirm
the judgment of the post-conviction court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

A. Ensley Hagan, Jr., Lebanon, Tennessee, for the appellant, Eric Tyreese Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney
General; Tom P. Thompson, Jr., District Attorney General; and David E. Durham, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                        OPINION

I. Background

        On September 26, 2006, Petitioner entered a plea of guilty in the Wilson County
Criminal Court to possession of more than 300 grams of cocaine, a Class A felony. Pursuant
to the negotiated plea agreement, Defendant agreed to a sentence of fifteen years as a Range
I, standard offender. The sentence was to be served concurrently with a Davidson County
sentence. The negotiated plea agreement also provided that Petitioner would serve his
sentence consecutively to his sentences in case no. CR1094 in Dickson County and in case
nos. 37362 and 38578 in Montgomery County.
       At the guilty plea submission hearing, the State offered the following factual basis for
the pleas:

       Your Honor, the facts would show that the 20 th Judicial District out of
       Nashville got a court authorized wire tap on [Petitioner]’s phone as well as
       other co-defendants. As a result of the information that was obtained from that
       Title 3, the search warrant was issued by a Judge here in Wilson County. A
       search of the residence where [Petitioner] was staying was executed, and in
       that particular residence, over 300 grams of cocaine was found and recovered.
       [Petitioner] was interviewed and he did admit that the cocaine belonged to
       him.

       At the guilty plea submission hearing, Petitioner stated that he understood the length
of his bargained for sentence, and that the sentence would be served consecutively to his
sentences in Wilson and Dickson Counties, but concurrently with the Davidson County
sentence. The trial court explained the constitutional rights Petitioner was foregoing by
entering a plea of guilty, and Petitioner responded, “Correct.” In response to his trial
counsel’s questions, Petitioner stated that he understood that the charges against him arose
out of a lengthy investigation by several different county Task Forces, that he had read and
reviewed with trial counsel the transcripts of the taped telephone conversations, and that
based on this information, he decided to enter a plea of guilty to the charged offense. At the
conclusion of the hearing, the trial court found that Petitioner was voluntarily and knowingly
entering his plea of guilty to the charged offense and accepted Petitioner’s plea.

II. Post-Conviction Hearing

       Petitioner testified that prior to his indictment on the current charge, he retained trial
counsel to represent him in approximately March or April 2005. Petitioner stated that
although he received approximately twelve letters from his trial counsel, he did not physically
meet with trial counsel until immediately prior to the guilty plea submission hearing.
Petitioner said that meeting lasted “briefly five or ten minutes.” Petitioner stated that trial
counsel never discussed trial strategy with him, and as far as Petitioner knew, trial counsel
did not investigate his case.

        Petitioner stated that he decided to enter a plea of guilty only because the State agreed
not to prosecute his girlfriend, Crystal Moore, as a co-defendant. Petitioner said that he later
learned that the State had never intended to prosecute his girlfriend because the information
revealed through the wire taps indicated that she was not involved in the offense.




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        Petitioner said that trial counsel should have challenged the constitutionality of his
arrest through a motion to suppress. Petitioner said that he was stopped while driving on the
interstate based on information from a criminal informant that Petitioner was traveling to buy
a kilo of cocaine. Petitioner stated that he did not have any cocaine in his vehicle when he
was arrested. Petitioner said that he had $5,108 in cash, but that was not enough money to
purchase a kilo of cocaine. Petitioner stated that trial counsel “failed to seek the truth,” and,
therefore, “his advice was that of ill will.”

        Petitioner acknowledged on cross-examination that he had previously entered pleas
of guilty in Montgomery County and Dickson County. Petitioner said that he was convicted
of a drug charge in Dickson County in 1996 and received an eight-year sentence. Petitioner
stated that he understood the plea submission process and the constitutional rights he was
waiving by entering a plea in that case. Petitioner acknowledged that he knew that he was
facing a sentence of between fifteen and twenty-five years for the charged offense, and that
his agreed upon sentence would be served consecutively to his sentences in Montgomery and
Dickson Counties and concurrently with the sentence in Davidson County. Defendant
acknowledged that he entered a plea of guilty in Davidson County after his Wilson County
conviction, and that he understood the guilty plea submission process in Davidson County.
Defendant said that the guilty plea submission form in Davidson County was similar to the
one he signed in Wilson County, and that he understood the waiver of his constitutional
rights which were explained to him by the Davidson County trial court. Petitioner also
acknowledged that he entered a plea of guilty to a robbery charge in Montgomery County
prior to the case in Wilson County and that he understood the plea submission process in that
case. Petitioner reiterated, however, that he would not have agreed to enter a plea of guilty
in either Wilson County or Davidson County if he had known that the State did not intend
to prosecute Ms. Moore.

       Trial counsel testified that he was retained to represent Petitioner on the drug charge
in Wilson County. Trial counsel said that he initially met with Petitioner in approximately
December 2004 before Petitioner was indicted on the current charge. At that time, trial
counsel was representing Petitioner on an unrelated matter. Trial counsel stated that he
subsequently met with Petitioner on several occasions, and met with both the State and the
Wilson County Drug Task Force about the charged offense. Trial counsel reviewed the
search warrant and the transcripts of the wire tap and interviewed Ms. Moore before she was
indicted.

       Trial counsel said that he did not believe a challenge to either the search warrant or
the wire taps would have been successful. In any event, trial counsel stated that the State
offered to settle the outstanding drug charge before a trial date was set, and Petitioner wanted



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to accept the settlement. Trial counsel said that if the case had proceeded to trial he would
have revisited the potential of filing a motion to suppress.

       Trial counsel said that a part of the negotiated plea agreement included the State’s
agreement to enter a nolle prosequi as to the charge against Ms. Moore. Trial counsel stated
that Petitioner and Ms. Moore were co-tenants at a residence on Trousdale Ferry Pike. After
Petitioner was arrested, Ms. Moore consented to a search of the residence which revealed the
presence of various drugs and weapons. Ms. Moore was indicted, and she was represented
by counsel at Petitioner’s guilty plea submission hearing.

       On cross-examination, trial counsel stated that he began practicing law in 1979 and
had represented “thousands” of criminal defendants on various felony charges including first
degree murder. Trial counsel reiterated that he reviewed the extensive discovery with
Petitioner as well as the arresting officer’s statement concerning Petitioner’s
acknowledgment that the cocaine found in the residence was his.

III. Standard of Review

        To succeed on a challenge of ineffective assistance of counsel, the petitioner bears the
burden of establishing the allegations set forth in his petition by clear and convincing
evidence. T.C.A. § 40-30-210(f). However, the trial court’s application of the law to the
facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W.3d
450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed
question of fact and law and therefore also subject to de novo review. Id.; State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he or she must establish that counsel’s performance fell below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). In addition, he or she must show that counsel’s ineffective performance
actually adversely impacted his defense. Strickland v. Washington, 466 U.S. 668, 693, 104
S. Ct. 2052, 2067 (1984). In reviewing counsel’s performance, the distortions of hindsight
must be avoided, and this Court will not second-guess counsel’s decisions regarding trial
strategies and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court,
therefore, should not conclude that a particular act or omission by counsel is unreasonable
merely because the strategy was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at
2065. Rather, counsel’s alleged errors should be judged from counsel’s perspective at the
point of time they were made in light of all the facts and circumstances at that time. Id. at
690, 104 S. Ct. at 2066.



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        A petitioner must satisfy both prongs of the Strickland test before he or she may
prevail on a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572,
580 (Tenn. 1997). That is, a petitioner must not only show that his or her counsel’s
performance fell below acceptable standards, but that such performance was prejudicial to
the petitioner. Id. Failure to satisfy either prong will result in the denial of relief. Id.
Accordingly, this Court need not address one of the components if the petitioner fails to
establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. In cases involving a
guilty plea, the petitioner must show prejudice by demonstrating that, but for counsel’s
errors, he or she would not have pleaded guilty but would have insisted on going to trial. See
Hill v. Lockhart, 474 U.S. 42, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d
213, 215 (Tenn. Crim. App. 1991).

IV. Ineffective Assistance of Counsel

       Petitioner argues that the assistance of his trial counsel was ineffective because trial
counsel inaccurately claimed that the State would prosecute his girlfriend if Petitioner did
not enter a plea of guilty. Petitioner also contends that trial counsel’s performance was
deficient because trial counsel failed to investigate his case, confer with Petitioner prior to
the guilty plea submission hearing, interview witnesses, or challenge the constitutionality of
the wire tap, search warrant or Petitioner’s arrest.

        At the post-conviction hearing, trial counsel testified that he has over thirty years’
experience representing criminal defendants. Trial counsel stated that he met with Petitioner
on several occasions prior to the guilty plea submission hearing. Trial counsel stated that he
reviewed the State’s discovery, which was extensive, and shared this information with
Petitioner. Petitioner acknowledged at the guilty plea submission hearing that he had read
and reviewed the transcripts of the wire taps, and the extent of the State’s discovery was one
of the reasons Petitioner decided to enter his plea of guilty. Trial counsel stated at the post-
conviction hearing that he reviewed the circumstances surrounding Petitioner’s arrest and the
execution of the search warrant for Petitioner’s residence. Based on his review, trial counsel
believed that a constitutional challenge would not be successful. Trial counsel said, however,
that Petitioner accepted the State’s offer to settle the outstanding charge before a trial date
was set, and had the matter proceeded further, trial counsel would have revisited the
possibility of a suppression motion.

        Trial counsel said that the settlement of the charged offense against Ms. Moore was
part of Petitioner’s negotiated plea agreement. Trial counsel said that Ms. Moore consented
to a search of the residence she shared with Petitioner, and that the search revealed the
presence of various drugs and weapons in the house. Ms. Moore was indicted following the



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execution of the search warrant and was represented by counsel at Petitioner’s guilty plea
submission hearing.

       The post-conviction court found trial counsel’s testimony to be credible and found
“that unquestionably [Petitioner] received effective assistance of counsel.” Based on our
review, we conclude that the evidence does not preponderate against the post-conviction
court’s finding. Petitioner is not entitled to relief on this issue.

V. Entry of Guilty Plea

        At the post-conviction hearing, Petitioner acknowledged that he understood the
sentence he was receiving as a result of his negotiated plea agreement, the manner of service
of that sentence, and the constitutional rights he was foregoing by entering his plea of guilty.
On appeal, however, Petitioner argues that both the State and trial counsel misrepresented
Ms. Moore’s potential for prosecution following the execution of the search warrant on Ms.
Moore’s and Petitioner’s residence. Petitioner contends that he learned after the guilty plea
submission hearing that the State never intended to prosecute Ms. Moore. Petitioner argues
that as a result his guilty plea was not knowingly entered into.

       When an accused enters a plea of guilty, constitutional considerations mandate that
the plea be voluntarily, understandingly and knowingly entered. See Boykin v. Alabama, 395
U.S. 238, 243, 89 S. Ct. 1709, 1713 (1969); State v. Mackey, 553 S.W.2d 337 (Tenn. 1997).
By entering a plea, the defendant waives certain constitutional rights including the privilege
against self-incrimination, the right to a trial by jury, and the right to confront witnesses.
Boykin, 395 U.S. at 243, 89 S. Ct. at 1714. The defendant’s waiver of these constitutional
rights may not be presumed from a silent record. Id. The trial court must ascertain if the
defendant fully understands the significant consequences of his or her plea. State v. Pettus,
986 S.W.2d 540, 542 (Tenn. 1977). The trial court may consider a number of factors
including the defendant’s relative intelligence, his or her familiarity with criminal
proceedings, whether the defendant was represented by competent counsel and had the
opportunity to confer with counsel about options, the advice given by counsel and the trial
court about the charges against the defendant and the penalty to be imposed, and the
defendant’s reasons for pleading guilty. Blakenship, 858 S.W.2d 897, 904 (Tenn. 1993).

        “The plea must, of course, be knowingly, voluntarily and understandingly entered, and
if it was induced by promises, the essence of those promises must in someway be made
known.” State v. Virgil, 256 S.W.3d 235, 240 (Tenn. Crim. App. 2008) (citing Santobello
v. New York, 404 U.S. 257, 92 S. Ct. 495 (1971)). “This phase of the process of criminal
justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended
by safeguards to insure the defendant what is reasonably due in the circumstances. Those

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circumstances will vary, but a constant factor is that when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the
inducement or consideration, such promise must be fulfilled.” Santobello, 404 U.S. at 262,
92 S. Ct. at 499; see also Blankenship, 858 S.W.2d at 904 (quoting Brady v. United States,
397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970)) (observing that “a plea of guilty by one fully
aware of the direct consequences, including the actual value of any commitments made to
him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or
promises to discontinue improper harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are by their nature improper as having
no proper relationship to the prosecutor’s business (e.g. bribes)). A State’s promise to forego
prosecution may be part of the bargaining process. See Pettus, 986 S.W.2d at 543.

       The post-conviction court found:

       that this [petitioner] has been in the system for a long time. He’s certainly
       entered guilty pleas before. He’s very articulate. He has a knowledge of the
       criminal system as a whole which probably exceeds that of most of the
       defendants that come through the system. I have no doubt that he is highly
       intelligent. I find from the proof here today that there is no question that this
       was a voluntarily entered guilty plea. [Petitioner] has said that he understood
       the plea, and the thrust of his argument seems to be that . . . he was induced to
       do it so that the State would not prosecute his girlfriend. However, I think that
       that was an inducement, but the fact is, she was indicted. The grand jury
       indicted her. She had counsel. She was living in the home with [Petitioner].
       She’s the one that consented to the search, and the State did exactly what the
       State said it was going to do. In return for a knowing and voluntary plea on his
       part, they nolled [sic] the case against her. Part of the plea inducement
       obviously was that she wouldn’t be prosecuted further, but it was also fifteen
       years, which is the bottom of the range, and it was also a concurrent sentence
       with that out of Davidson County.

        Based on our review, we conclude that the evidence does not preponderate against the
trial court’s finding that Petitioner’s guilty pleas were knowing, voluntary, and intelligent.
Petitioner is not entitled to relief on this issue.

                                      CONCLUSION

       After a thorough review, we conclude that the evidence does not preponderate against
the post-conviction court’s findings that trial counsel’s assistance was effective and that



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Petitioner’s pleas of guilty were voluntary and knowing. We, therefore, affirm the judgment
of the trial court in dismissing Petitioner’s petition for post-conviction relief.

                                                  ___________________________________
                                                  THOMAS T. WOODALL, JUDGE




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