         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 14, 2004
                                   Heard at Knoxville

             ALI ALVDU MOHAMMAD v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                         No. 2002-B-935 Cheryl Blackburn, Judge



                   No. M2004-00493-CCA-R3-PC - Filed January 11, 2005


The petitioner, Ali Alvdu Mohammad, appeals the trial court's denial of post-conviction relief. The
issues presented for review are whether the petitioner’s plea of guilt was knowingly and voluntarily
entered and whether the petitioner was denied the effective assistance of counsel. The judgment is
affirmed.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which J. CURWOOD WITT , JR., and ALAN
E. GLENN , JJ., joined.

David R. Whittaker, Nashville, Tennessee, for the appellant, Ali Alvdu Mohammad.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and
Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        On May 28, 2002, the petitioner was indicted for one count of conspiracy to sell more than
300 grams of cocaine in violation of the Drug-Free School Zone Act and one count of possession
with intent to sell more than 300 grams of cocaine. See Tenn. Code Ann. §§ 39-17-417, -432. The
grand jury had returned a total of eleven counts in the indictment against the petitioner and five co-
defendants. Pursuant to a plea agreement, the state dismissed the conspiracy charge and the
petitioner entered a guilty plea to possession with intent to sell more than 300 grams of cocaine. The
trial court imposed a Range I sentence of fifteen years. There was no direct appeal.

        On March 20, 2003, the petitioner filed a petition for post-conviction relief alleging, among
other things, that he was denied the effective assistance of counsel. The petitioner later amended his
petition to include allegations that his plea was neither knowingly, voluntarily, nor intelligently
made. The amended petition unveiled the claim that but for the ineffectiveness of his counsel, he
would not have entered into the plea agreement. It was the contention of the petitioner that had he
gone to trial, the state would have been unable to produce evidence establishing that he had either
actually or constructively possessed or possessed with the intent to sell the cocaine, an essential
element of the crime. The petitioner also argued that his trial counsel misinformed him about the
potential length of the sentence and failed to advise him of the law governing accomplice testimony.
Further, the petitioner contended that trial counsel was ineffective for having failed to discover and
consider exculpatory impeachment evidence and inconsistent statements contained within police
reports.

         After the appointment of counsel, the petition was again amended to include allegations that
because of a lack of skill in the English language, the petitioner was unable to fully comprehend the
plea agreement without the assistance of an interpreter. The amended petition also included charges
that trial counsel was ineffective for having failed to adequately investigate the facts and having
failed to adequately prepare a defense.

         At the evidentiary hearing, the petitioner, an Iraqi Kurd who had lived in the United States
since he was ten years old, was afforded an interpreter. While the petitioner testified in English for
the most part, the transcript includes notations indicating when the petitioner answered in the
Kurdish language. It was his contention that when he was placed in the Department of Correction,
he tested at a third-grade English level, but that after eight months in prison he had improved his
skills to an eighth grade level. The petitioner also claimed that he met with his trial counsel only
three times prior to trial, that trial counsel failed to explain the nature of the charges, and that trial
counsel had coerced a guilty plea by suggesting that in view of the events of September 11, 2001,
a jury would likely convict because he was of Iraqi heritage. He also contended that his trial counsel
suggested that he accept the plea because if he were to be convicted on the Drug-Free School Zone
conspiracy charge, he would have to serve one hundred percent of his sentence before being eligible
for release. The petitioner asserted that he asked for his trial counsel to arrange for an interpreter at
the guilty plea hearing and that trial counsel answered that it was not necessary, instructing the
petitioner to simply answer, "Yes," to every question asked by the trial judge.

         On cross-examination, the petitioner acknowledged that he had made bail on the date of his
arrest. He also admitted that he had said more than "yes" when questioned by the trial judge at his
sentencing hearing. The petitioner conceded that at that time he had testified under oath that his trial
counsel had not forced him to enter the guilty plea. While insisting that he did not understand the
charge of conspiracy at the time of the guilty plea, the petitioner did admit that he understood the
difference between a fifteen-year sentence at 30% and a fifteen-year sentence at 100% release
eligibility.

        Courtney Misere, a close friend to the petitioner, accompanied the petitioner at his request
to the submission hearing but left before the guilty plea. She stated that before she left the hearing,
trial counsel had informed her that the petitioner would get another court date. She recalled that the
petitioner had said that he was being told to plead guilty, to which she responded, "[D]on't sign
anything." According to Ms. Misere, the petitioner was in jail when she next heard from him. On


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cross-examination, she confirmed that she generally spoke to the petitioner in English and that she
could only say "some words in Kurdish." It was nevertheless her opinion that the petitioner did not
understand what he was doing when he signed the guilty plea documents.

        Trial counsel, who had practiced criminal law for fourteen years and described "99%" of his
clients as either immigrants or new Americans, testified that he and the petitioner never had any
difficulty in terms of communicating. He recalled that prior to trial, he had filed for and received
discovery materials, provided the petitioner with a copy, and discussed with him the information
received. Trial counsel stated that his primary concern was the school zone charge and the potential
length of the sentence, especially because the petitioner had recently become a father. It was trial
counsel's opinion that the state had made its best possible offer before he recommended acceptance
of the plea agreement. He acknowledged that he did discuss the possible ramifications of 9/11 in
the context of a jury trial but insisted that he never coerced or threatened the petitioner in any way.
It was his assessment that an interpreter was unnecessary in view of the petitioner's ability to
communicate in English.

       The transcript of the guilty pleas was made a part of the evidence. The facts offered by the
state were as follows:

               Had this matter . . . gone to trial the [s]tate would have presented witnesses who
        would have testified that on January 8th of 2002 a codefendant in this matter, a Mr. Jerry
        Amomele (phonetic), set up a deal to sell a half a kilo of cocaine to a vice [squad] informant
        for $12,500. Mr. Amomele told the informant to meet him . . . at the Piccadilly Row
        Apartments . . . in Davidson County. . . . [L]ater Mr. Amomele called back to the informant
        and said to meet him at the Murfreesboro Road Burger King, also here in Davidson County.

               Officers followed [c]odefendant Amomele and [c]odefendant Shaw to the Burger
        King, where they briefly met with the informant. Amomele got into the informant's car
        where the informant then gave Amomele $12,500 in previously photocopied buy money.
        Mr. Amomele gave that money to Shaw. The [confidential informant] and Amomele and
        Shaw then left and were followed to 5154 Linbar Drive . . . in Davidson County. A short
        time later a white Mercury automobile driven by [the petitioner] did arrive at the Linbar
        Drive address. This car was also seen at the Piccadilly Row address earlier in the day.
        Officers saw [the petitioner] handing an item to Shaw. Shaw and the petitioner then got into
        the same vehicle. They were stopped by vice later on as they were leaving to get the cocaine.
        The $12,500 in previously photocopied buy money was found on [the petitioner’s] person.

        During the proceeding, the petitioner acknowledged the truth of the state's theory. It was his
contention, however, that the $12,500.00 was in the car rather than on his person. While the
petitioner pointed out to the trial judge that he did not like any of his alternatives, he confirmed that
the plea of guilt and her acceptance of the plea agreement was his best possible choice.




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        The post-conviction court filed an extensive order denying relief and quoting portions of the
transcript of the guilty plea proceeding. In summary, the post-conviction court found that the guilty
plea was knowingly and voluntarily made and that trial counsel had provided the petitioner with the
effective assistance of counsel. The post-conviction court also determined that the petitioner had
failed to demonstrate the presence of any exculpatory evidence or any other inconsistencies that
might have demonstrated that his trial counsel's performance was deficient or that he would not have
pled guilty absent those deficiencies.

        In this appeal, the petitioner first asserts that because he did not understand the nature of the
plea, the plea was neither knowingly nor voluntarily entered. In support of that argument, he asserts
that he should have been provided an interpreter before being allowed to enter into the plea
agreement. Finally, the petitioner contends that trial counsel, who expressed concern in the wake
of the events of September 11, 2001, told him that a jury trial would result in conviction “based upon
the color of his skin.” The petitioner asserts that the advice qualifies as a threat, precluding a
voluntary decision to enter into the plea.

         In a post-conviction proceeding, the petitioner bears the burden of proving his allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003). Claims of ineffective
assistance of counsel are regarded as mixed questions of law and fact. State v. Honeycutt, 54 S.W.3d
762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). On appeal, the findings
of fact made by the trial court are conclusive and will not be disturbed unless the evidence contained
in the record preponderates against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App.
1988). The burden is on the petitioner to show that the evidence preponderated against those
findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). The credibility of the
witnesses and the weight and value to be afforded their testimony are questions to be resolved by the
trial court. Bates v. State, 973 S.W.2d 615 (Tenn. Crim. App. 1997). When reviewing the
application of law to those factual findings, however, our review is de novo, and the trial court's
conclusions of law are given no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457-58
(Tenn. 2001); see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given were below “the range
of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the
defense.” Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, he is not entitled to relief. Our supreme court described the standard of review
as follows:

                Because a petitioner must establish both prongs of the test, a failure to prove
        either deficiency or prejudice provides a sufficient basis to deny relief on the
        ineffective assistance claim. Indeed, a court need not address the components in any
        particular order or even address both if the defendant makes an insufficient showing
        of one component.


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Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). As to guilty pleas, the petitioner must establish
a reasonable probability that, but for the errors of his counsel, he would not have entered the guilty
pleas and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

        When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that "[t]he standard was and remains whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant." North
Carolina v. Alford, 400 U.S. 25, 30 (1970). In Boykin v. Alabama, 395 U.S. 238 (1969), the Court
ruled that defendants should be advised of certain constitutional rights, including the right against
self-incrimination, the right to confront witnesses, and the right to trial by jury. Id. at 243. If the
proof establishes that the petitioner was aware of his constitutional rights, he is entitled to no relief.
Johnson v. State, 834 S.W.2d 922, 926 (Tenn. 1992).

        In our view, the evidence does not preponderate against the post-conviction court’s finding
that the petitioner received the effective assistance of counsel and that he entered a knowing and
voluntary plea of guilt. The petitioner has been unable to establish any level of miscommunication
with his trial counsel, what exculpatory evidence was undiscovered, or how counsel coerced the
guilty plea. The petitioner has failed to establish any deficiency in the performance of his trial
counsel and has also failed to demonstrate that he would not have pled guilty absent any deficiencies
in performance.

         As observed by the state, the petitioner appeared to have understood the questions of counsel
during the evidentiary hearing. There were only a few occasions when the interpreter intervened.
Other testimony established that the petitioner understood the English language. Moreover, the trial
judge saw and heard the witness firsthand and specifically concluded that the petitioner was able to
understand the nature of his plea and the consequences thereof. Of particular importance is that the
petitioner understood the difference between a Range I sentence of fifteen years with a release
eligibility at 30% of service and a sentence at 100%, which had to be fully served before release.

        The petitioner has also failed to establish that his trial counsel coerced him into accepting
a guilty plea. It is the professional responsibility of defense counsel to not only communicate with
his client, investigate the circumstances, and prepare an appropriate defense, but also to advise as
to any surrounding circumstances which might have any effect upon the trial. In our view, the more
information that counsel was able to provide the petitioner before his acceptance of any plea
agreement, the better. When the accused is fully aware of the potential result of a trial, he is more
likely to make an informed, voluntary plea of guilt.

        In summary, the evidence in the record does not preponderate against the post-conviction
court's conclusion that the petitioner was effectively represented by counsel and knowingly and
voluntarily entered a plea of guilt. Accordingly, the judgment of the post-conviction court is
affirmed.



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      ___________________________________
      GARY R. WADE, PRESIDING JUDGE




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