            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                 Assigned on Briefs May 1, 2012

            RANDY MARAY CHEAIRS, JR. v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Hardeman County
                       No. 09-01-0820    J. Weber McCraw, Judge


                 No. W2011-01293-CCA-R3-PC - Filed December 4, 2012


The Petitioner, Randy Maray Cheairs, appeals the denial of post-conviction relief from his
convictions of second-degree murder, especially aggravated robbery, especially aggravated
burglary, and possession of a handgun in the commission of a felony for which he received
an effective forty-year sentence. In this appeal, he contends that he received the ineffective
assistance of counsel and that his guilty pleas were not knowing and voluntary. Upon
review, we affirm the judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

Lisa M. Miller, Selmer Tennessee, for the Petitioner-Appellant, Randy Maray Cheairs

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Joe Van Dyke, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                                OPINION

       The Petitioner was indicted for first degree felony murder, especially aggravated
robbery, especially aggravated burglary, and possession of a handgun in the commission of
a felony.1 Pursuant to a plea agreement, on September 11, 2009, the Petitioner entered guilty
pleas to second degree murder, a Class A felony, especially aggravated burglary, a Class B
felony, and possession of a handgun in the commission of a felony, a Class D felony. He


        1
          Neither the indictments or the judgments in this case are included in the record on appeal. We glean
this information from the guilty plea colloquy.
was sentenced to twenty-five, twelve, and three years, respectively, for an effective forty-year
sentence. This sentence was to be served consecutively to another unrelated sentence. The
charge of especially aggravated robbery was dismissed. There was no direct appeal filed. On
August 30, 2010, the Petitioner, acting pro se, filed a petition for post-conviction relief.
Counsel was appointed and an amended petition was apparently filed.2 On May 2, 2011, the
trial court conducted a hearing at which the Petitioner and trial counsel testified. By written
order on May 10, 2011, the trial court denied relief. This timely appeal followed.

                                    FACTUAL BACKGROUND

       At the guilty plea colloquy, the Petitioner stipulated to the following factual basis
in support of his guilty pleas:

              Your Honor, had this matter gone to trial, the State would have
       introduced proof that on or about the 7th day of January of 2009, officers of
       the Hardeman County Sheriff’s Department responded to a 9-1-1 call from
       Grand Junction wherein the caller had stated that André Smith had been shot
       at his residence at 160 Smith Road in Grand Junction there in Hardeman
       County. When the officers arrived on the scene, Mr. Smith had been taken by
       family members toward Bolivar in an attempt to meet the ambulance to get
       him to the hospital more expeditiously.

               Prior to Mr. Smith reaching the hospital, he did expire, died en route.
       His body was subsequently taken to the medical examiner’s office. It was
       shown that he was - the cause of death was a gunshot wound that entered his
       left arm in a down and back trajectory, piercing lung, liver, stomach and
       intestines.

              T.B.I. was called in to investigate. That was Agent Parker along with
       a crime scene team that was brought in. They worked the scene of the home
       gathering evidence, among that evidence being roughly six cartridge cases and
       some expended rounds also found in the house. Those pieces of evidence were
       taken and submitted to the T.B.I. Crime Lab also.

              On or about the 13th of January, Agent Parker received a phone call
       from Mr. Lane Teague, [a] teacher at Middleton High School, that said one of
       his former students had come to him to discuss the shooting of André Smith.


       2
           No amended petition is included in the record on appeal.

                                                    -2-
       An interview was set up with [the Petitioner] . . . . In the statement given to
       the T.B.I. agents, [the Petitioner] admitted his involvement along with another
       principal, Jeffrey Talley, who has already entered a plea before this Court. In
       that statement, [the Petitioner] did admit his involvement in this. However, at
       that point in time, both Mr. Talley and [the Petitioner] . . . seemed to think that
       the fatal round had been fired from Mr. Talley’s gun. Both of the parties, Mr.
       Talley and [the Petitioner], admitted that the gun that [the Petitioner] was using
       when he went into the home was a .45 caliber Para-Ordnance, semi-automatic
       handgun.

               On the night that this happened, Mr. Smith, along with some other
       individuals, were throwing dice in Mr. Smith’s home. [The Petitioner] and
       Mr. Talley went in with masks and handguns and began firing rounds. Mr.
       Smith fell to the ground - or to the floor, being shot. A brief search was made
       for a roll of money that was supposedly hidden in a sock. Mr. Talley had told
       [the Petitioner] he thought it was somewhere between ten and fifteen thousand
       dollars. They did not locate that money and left in the victim’s car. The
       search by the crime lab investigative team did turn up that sock of money. It
       was roughly $3,000.000. Again, the ballistics showed that the slug that killed
       the victim in this matter, Mr. Smith, was fired from the Para-Ordnance .45 that
       both Mr. Talley and [the Petitioner] said that [the Petitioner] had that evening.

       After trial counsel stipulated to the above factual basis for the guilty pleas, she advised
the court that she had represented the Petitioner from the arraignment of his cases, or “within
24 hours after [the Petitioner] gave his statement [to the police].” Prior to a ballistic report
that confirmed the bullet that struck and killed the victim came from the Petitioner’s gun,
counsel believed that they would be “fighting for facilitation.” However, after the report, she
advised the Petitioner “that if we proceeded to trial under the Tennessee Felony Murder
Statute, his participation in the events that occurred at [offense location] would certainly rise
to meet the elements of the crime of felony murder.”

         Counsel also alluded to the motion to suppress, which the trial court heard and denied
the day before the guilty plea. In regard to the motion to suppress the Petitioner’s statement,
counsel stated the following: (1) the Agent’s testimony was very thorough; (2) the Petitioner
drove himself to the location of the interview; (3) the Petitioner voluntarily participated in
the interview with the Agents; (4) the Petitioner was advised and waived his rights under
Miranda; and (5) [the Petitioner’s] statement “would have been the best evidence against us
at trial, the statements made from [the Petitioner’s] own mouth, voluntarily to the agent prior
to counsel, prior to even being in custody[.]”



                                               -3-
        Counsel also confirmed that the Petitioner cooperated with law enforcement by
providing them information to recover weapons as well as information, which was confirmed
by DNA results, regarding “the . . . hoodie sweatshirt . . . the steering wheel of [the victim’s]
car, [and] the footprints and shoes found by the car[.]” She believed the Petitioner’s
cooperation “turned the events [in the case] early this morning[.]” Counsel initially “foresaw
this matter proceeding to trial on Monday,” and stated that she had interviewed as many
witnesses listed on the indictment “as would talk with us.” She had reviewed “voluminous
documentation over numerous periods of times.” She also stated that the Petitioner had
“somewhat of a learning disability, was evaluated and found competent and sane and able
to participate in the defense of his case.” She included the Petitioner’s family in their
discussions given the Petitioner’s learning disability. Finally, counsel stated, “I feel
comfortable that this is what is best for my client and he does this this afternoon with my
recommendation but also when I tendered it to him this morning it was almost his immediate
desire to ask the Court to take this plea.”

         The Petitioner affirmed his understanding of the charges against him and their penalty
ranges as well as the charges to which he was pleading and their penalty ranges. He stated
that he understood that he did not have to plead guilty, that he had the right to trial, and that
a trial was scheduled for the following Monday. He acknowledged that if he went to trial and
were found not guilty, he would be free of the charges. However, if he were found to be
guilty, he could appeal. He understood that if he decided to go to trial, he would have the
right to question, challenge and confront witnesses and would have the right not to
incriminate himself. He understood that by entering the guilty plea he would be “giving up
very valuable constitutional rights.” He acknowledged that he had signed the plea
agreement, that he understood what he was signing and that his lawyer had been available
to answer any questions he had as he reviewed the agreement. He agreed that he had initialed
changes that were made to the agreement, had an opportunity to discuss those changes with
his lawyer, and had understood what he had “been doing all the way through this process.”

       The court read the parties’ agreed upon sentence and asked the Petitioner if “those
[were] the things that [he] agreed to.” The Petitioner replied that they were and, when asked
by the court, responded that he did not have any questions.

        At the post-conviction hearing, the Petitioner and trial counsel were the only witnesses
to testify. The transcript of the plea hearing was admitted into evidence but the plea
agreement, indictment, presentence report, and sentencing order were not and do not appear
in the record on appeal.

       The Petitioner testified that counsel did not talk to him about his presentence report
or any mitigating factors, and he did not know counsel had waived the report at the plea

                                               -4-
hearing. He stated that counsel did not tell him that it was not possible for him to be charged
with especially aggravated burglary and murder under Tennessee Code Annotated Section
39-14-404(d). He also said counsel did not discuss with him any defenses to the murder
charge. The Petitioner complained that counsel “kept on mentioning the [fifty-one year]”
sentence that attached to a felony murder conviction, and he said that she spoke to him as if
she found no reason to go to trial. He testified that he accepted the plea because of his fear
of serving fifty-one years if convicted at trial of felony murder.

        The Petitioner testified that he gave a statement to Investigator Joy without counsel
present. He told Investigator Joy that he wanted his counsel present and Joy told him he was
trying to reach her. However, counsel never appeared. The Petitioner informed counsel that
he wore the black hoodie on the night of the crime until his co-defendant asked for it. The
co-defendant put on the hoodie before the crime was committed.

       The Petitioner agreed that trial counsel filed discovery motions, obtained the State’s
evidence, and discussed the evidence with him. He acknowledged that counsel told him
“exactly what the witnesses said to her when she talked to them.” He believed she had
adequately prepared for trial, had subpoenaed enough witnesses, and had “effectively told
[him] the other options that [he] had” and explained those options to him. The Petitioner
believed he “had a choice in the matter, to take the plea or go to trial.” He denied feeling
pressure to accept the plea agreement. The Petitioner acknowledged that counsel read the
plea agreement to him and explained each part.

        The Petitioner acknowledged that he refused the State’s first two plea offers. The first
offer dropped all charges except the felony murder, which would be served as a life sentence.
The Petitioner was advised that a life sentence meant a minimum of fifty-one years. The
second offer reduced the felony murder to second degree murder with twenty years at one
hundred percent, twenty years at one hundred percent for the especially aggravated robbery
charge, and dismissed the especially aggravated burglary and possession of a firearm. The
sentences were to be served consecutively for an effective sentence of forty years. The third
offer reduced felony murder to second degree murder with twenty-five years at one hundred
percent, twelve years at thirty percent for especially aggravated burglary and three years at
one hundred percent for possession of a handgun in the commission of a felony. The
especially aggravated robbery charge was dismissed. The third offer was an effective
sentence of forty years, but unlike the second offer, it reduced service of the especially
aggravated burglary to thirty percent.

       Trial counsel, a Senior Assistant District Public Defender, had been a public defender
for over twenty years. She had participated in twenty-five murder trials as either lead counsel
or co-counsel and some death penalty cases. Counsel had viewed the crime scene twice and

                                              -5-
had spoken to “as many witnesses listed on the indictment as would cooperate with us and
talk with us.” She discussed defenses to murder with the Petitioner but found no witnesses
to help with that defense.

        Discovery revealed the victim’s neighbor, Mr. Marshall, had given police a statement
that he witnessed two people with masks and dark clothing approach the victim’s house and
fire a gun into the kitchen. Mr. Marshall gave the police the names of two individuals whom
he believed the masked gunmen to be, and these names did not include the Petitioner’s name.
Counsel testified that she attempted to interview Mr. Marshall and had a subpoena for him.
However, Mr. Marshall responded by hiring an attorney, who did not allow counsel to speak
with Mr. Marshall.

       Counsel said neither she nor her office was contacted at the time Investigator Joy
interviewed the Petitioner. Though she was out of town that day, she was available by
phone, and others in her office would have met with the Petitioner. As mentioned
previously, counsel confirmed that she filed a motion to suppress all of the Petitioner’s
statements.

        The parties all thought that the Petitioner’s co-defendant had fired the fatal shot until
the ballistics report was returned. Therefore, counsel had discussed lesser included charges
with Petitioner and had hoped to reduce the felony murder charge to facilitation. However,
after the ballistics report indicated Petitioner’s bullet caused the victim’s death, counsel and
the Petitioner “were very disheartened.” The State “would not move off of a felony murder
offer,” and counsel aspired to “argue it down to a second degree. I mean, that was kind of
our goal, was at trial if we could get second degree, we would - that would be a win.”
Counsel testified that because the Petitioner had confessed his intent to rob the victim and
the ballistics report indicated his bullet caused the victim’s death, “I did not feel like the State
would have much problem in carrying their burden on felony murder.”

       The State offered its third plea agreement the day after the trial court denied the
Petitioner’s motion to suppress his statements. Counsel testified that she read the plea
agreement aloud to the Petitioner, explained its terms, and involved his family in their
discussions. The Petitioner chose to accept the plea, which counsel believed to be in his best
interests.

       In its written order, the post-conviction court determined that the Petitioner
“knowingly and voluntarily entered a plea, that petitioner actually understood the
significance and consequences of the plea and sentence.” The Court found that the Petitioner
“was not coerced into entering a plea.” It credited the testimony of trial counsel and found
that she had “provided adequate assistance” and that the Petitioner “failed to show any

                                                -6-
deficient performance by [trial counsel] or that he was prejudiced.” The court concluded that
the evidence against the Petitioner was “overwhelming” and that trial counsel “negotiated
the best deal possible” for the Petitioner.

                                        ANALYSIS

        The Petitioner contends that the trial court erred in denying his petition for post-
conviction relief. He argues that he received ineffective assistance of counsel and did not
enter a knowing, intelligent, and voluntary guilty plea. The State responds that Petitioner has
failed to present evidence supporting his allegations. We agree.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2006). The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

      Vaughn repeated well-settled principles applicable to claims of ineffective assistance
of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation



                                              -7-
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

202 S.W.3d at 116 (internal quotations and citations omitted).

       In order to prevail on an ineffective assistance of counsel claim, the Petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[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 [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is
demonstrated once the petitioner establishes “‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” Id. at 370
(quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). In order to satisfy the “prejudice”
requirement in the context of a guilty plea, 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, 106 S. Ct. 366, 370 (1985); see
Serrano v. State, 133 S.W.3d 599, 605 (Tenn. 2004).

       I. Ineffective Assistance of Counsel. The Petitioner contends that trial counsel
provided ineffective assistance of counsel by failing to fully investigate the case, failing to
argue suppression of his statement, failing to introduce the presentence report at the plea
hearing, and failing to advise the Petitioner that he could not be convicted of both murder and
especially aggravated burglary. The State responds that the Petitioner failed to establish by
clear and convincing evidence that counsel’s performance was deficient.

       In regard to the Petitioner’s claim that trial counsel failed to fully investigate the case,
the Petitioner alleges counsel failed to fully investigate the trajectory of the bullet, the
number of casings at the scene, and how the Petitioner’s DNA appeared on his hoodie. He
also argues that counsel should have interviewed more witnesses and obtained an affidavit
from Mr. Marshall. Further, the Petitioner complains that counsel knew the .45 caliber gun

                                                -8-
was used by the Petitioner only through his own admissions, and counsel did not inquire
whether the gun was registered to anyone or whether there was a fingerprint analysis of the
weapons involved. Thus, the Petitioner contends counsel did not pursue all possible defenses
for him and failed “to discuss fully the potential strategies and tactical choices with him.”

        Upon our review of the post-conviction proceedings, the Petitioner failed to present
any evidence regarding counsel’s failure to investigate his case. He did not present any
witnesses, and without such evidence, the Petitioner cannot show either deficiency of counsel
or prejudice therefrom. “When a petitioner contends that trial counsel failed to discover,
interview, or present witnesses in support of his defense, these witnesses should be presented
by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). In addition, “For purposes of proving an ineffective assistance of counsel
claim, proof of deficient representation by omission requires more than a speculative
showing of a lost potential benefit.” Owens v. State, 13 S.W. 3d 742, 756 (Tenn. Crim. App.
1999) (affirming denial of post-conviction relief where petitioner “failed to produce any
evidence at the post-conviction hearing indicating that an investigator would have discovered
any information favorable to her case.”). The post-conviction court determined that the
Petitioner “failed to establish the factual allegations contained in his petition by clear and
convincing evidence.” The record supports this determination, and the Petitioner is not
entitled to relief on this issue.


        Next, the Petitioner contends that trial counsel’s performance was deficient because
she failed to move to suppress a statement he provided to Investigator Joy. Counsel testified
that she focused her argument and moved to suppress the Petitioner’s statements to agents
of the Tennessee Bureau of Investigation. Here, the Petitioner failed to produce the
statement made to Investigator Joy. Accordingly, the State asserts, and we agree, that this
argument is waived. See Smith v. State, No. W2010-00305-CCA-R3-PC, 2011 WL
3912811, at *10 (Tenn. Crim. App. Sept. 7, 2011), perm. app. denied (Tenn. Jan. 13, 2012);
Walton v. State, No. M2007-02549-CCA-R3-PC, 2008 WL 2648929, at *3 (Tenn. Crim.
App. July 2, 2008).


       The Petitioner also contends trial counsel was ineffective by failing to present the
presentence report to the court at the guilty plea hearing. The Petitioner claims the
presentence report would have shown mitigating factors, including his age of nineteen at the
time of the offense and his lack of a criminal record. He states he was unaware that counsel
waived the report. In response, the State argues that the presentation of mitigating factors
would not have affected the Petitioner, because he was entering into an agreed upon
sentence.


                                             -9-
       At the post-conviction hearing, counsel testified that because this was a negotiated
plea she did not introduce a presentence report or any mitigating factors to the court. In her
negotiations with the State, counsel presented these mitigating factors and sought imposition
of concurrent sentences. Counsel believed that it was “just a normal procedure to waive” the
presentence report at a guilty plea hearing. Here, we fail to see, and the Petitioner has failed
to explain, how the absence of a presentence report at his guilty plea proceedings was
prejudicial. The Petitioner is not entitled to relief on this issue.


        Finally, the Petitioner contends that trial counsel was ineffective in failing to tell him
that he could not be convicted of both second degree murder and especially aggravated
burglary under Tennessee Code Annotated, Section 39-14-404(d), because both offenses
require evidence of serious bodily injury. In response, the State argues that the Petitioner has
failed to establish prejudice because his testimony does not show that knowledge of this legal
issue would have influenced his decision to accept the plea offer.


       Counsel testified that she discussed this issue with the Petitioner, other attorneys in
her office, and the prosecutor before entry of the guilty plea. Counsel specifically told the
Petitioner that second degree murder and especially aggravated burglary may be
“duplicitous” because each offense included an element of serious bodily injury and a killing.
 However, “in light of the fact that [the Petitioner] was facing 51 years . . . and that it was a
felony murder charge,” counsel believed the settlement offer involving both offenses was in
the Petitioner’s best interest. Additionally, had the case gone to trial and the Petitioner
received convictions on both second degree murder and especially aggravated burglary,
counsel was prepared to raise the issue on appeal.


        In regard to this issue, the Petitioner confirmed that counsel told him that the State
could not “charge [him] with especially aggravated robbery and especially aggravated
burglary.” However, he denied that counsel informed him that he could not be charged with
especially aggravated burglary and murder. Throughout his testimony, the Petitioner
acknowledged that he was advised of and rejected two previous offers of settlement by the
State, neither of which included a guilty plea to the especially aggravated burglary offense.
He and counsel were “trying to get [him] a second degree murder plea.” The Petitioner knew
that upon receiving the third offer to plead guilty to second degree murder and especially
aggravated burglary, it was “better” and that his release eligibility date for the especially
aggravated burglary would be sooner.




                                              -10-
       In its written order, the trial court stated:


              [Counsel] discussed the ramifications of T.C.A. [§] 39-14-
              404(d) with [the Petitioner], but as a way to negotiate a lesser
              sentence, proceeded with the entry of [the] negotiated plea to
              second degree murder, especially aggravated burglary and
              possession of a firearm during the commission of a felony.
              [Counsel] testified that this was a negotiated plea with the plea
              intentionally structured so that a portion of the sentence, or more
              particularly, the especially aggravated burglary[,] could be
              served at a rate of thirty percent (30%) thereby reducing the
              actual incarceration time. By utilizing this tactic, [Counsel] was
              able to structure a settlement which was somewhat less than any
              previous offers by the State and was also successful in being
              able to enter the negotiated plea beyond the Court imposed
              deadline for such negotiated settlements.


       We acknowledge that the State’s prosecution of the Petitioner for especially
aggravated burglary in addition to his prosecution for second degree murder was precluded
by Tennessee Code Annotated section 39-14-404(d), which states that “[a]cts which
constitute an offense under this section may be prosecuted under this section or any other
applicable section, but not both.” This statute prohibits use of the same proof to enhance the
conviction based upon the element of serious bodily injury. See State v. Larry Darnnell
Pinex, No. M2007-01211-CCA-R3-CD, 2008 WL 4853077, at *17 (Tenn. Crim. App. Nov.
6, 2008), perm. app. denied (Tenn. May 11, 2009); State v. Daniel O’Sicky, No.
E2010-02439-CCA-R3-CD, 2011 WL 3371486 at *6 (Tenn. Crim. App. 2011). However,
upon our review of the record, we are unable to conclude that trial counsel was unreasonable
in negotiating the guilty plea in this matter.


       First, the record shows extensive plea negotiations in this case. Throughout this
process, the Petitioner was informed of the consequences of each offer and chose to focus
primarily on reducing the first degree felony murder charge to the lesser included offense of
second degree murder. He expressed his desire to only accept an offer to plead guilty to
second degree murder. When he received the offer to plead guilty to second degree murder
and especially aggravated burglary, counsel discussed the potential violation of section 39-
14-404 (d) with the Petitioner. The Petitioner acknowledged that he was receiving a lesser
sentence under the plea agreement, and accepted its terms, despite the potential statutory
violation. This offer, as explained by trial counsel and the post-conviction court, reduced the

                                               -11-
Petitioner’s effective sentence by ten years and made him eligible for parole. Finally, the
record shows that the Petitioner did not testify at the post-conviction hearing that he would
have rejected the State’s offer of settlement had he known that he could not be charged with
both especially aggravated burglary and second degree murder. See Hill v. Lockhart, 474
U.S. 52, 60 (1985) (requiring the Petitioner to show “a reasonable probability that, but for
counsel’s errors, he would not have pled guilty and would have insisted on going to trial.”).


       In our view, the Petitioner made a deliberate and strategic choice to enter a guilty plea
to second degree murder and especially aggravated burglary. Under these circumstances, we
are unable to conclude that counsel’s performance was in any way deficient or that the
Petitioner suffered any prejudice as a result. The record supports the judgment of the post-
conviction court. Accordingly, the Petitioner is not entitled to relief on this issue.


        II. Voluntariness of Plea. The Petitioner contends that he did not enter a knowing,
intelligent, and voluntary plea because he was “low functioning,” and this was his first
encounter with the criminal justice system. The State contends this issue is without merit.


        When analyzing the validity of a guilty plea, we follow the federal landmark case of
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), and the Tennessee landmark case
of State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on other grounds by rule as
stated in State v. Wilson, 31 S.W.3d 189, 193 (Tenn. 2000). State v. Pettus, 986 S.W.2d 540,
542 (Tenn. 1999). In Boykin, the United States Supreme Court held that a trial court may
not accept a guilty plea unless there is an affirmative showing that the guilty plea was
“intelligent and voluntary.” 395 U.S. at 242, 89 S. Ct. at 1711. When accepting a guilty
plea, the trial court is responsible for “canvassing the matter with the accused to make sure
he has a full understanding of what the plea connotes and of its consequence.” Id. at 244, 89
S. Ct. at 1712. In Mackey, the Tennessee Supreme Court held that “the record of acceptance
of a defendant’s plea of guilty must affirmatively demonstrate that his decision was both
voluntary and knowledgeable, i.e., that he has been made aware of the significant
consequences of such a plea; otherwise, it will not amount to an ‘intentional abandonment
of a known right.’” 553 S.W.2d at 340.


        The Tennessee Supreme Court has emphasized that a plea is not voluntary if it is the
result of “‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant
threats . . . .’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395
U.S. at 242-43, 89 S. Ct. at 1712). A trial court must look at a number of circumstantial
factors before determining whether a guilty plea is voluntary and intelligently made. Id.


                                              -12-
These factors include “the relative intelligence of the defendant; the degree of his familiarity
with criminal proceedings; whether he was represented by competent counsel and had the
opportunity to confer with counsel about the options available to him; the extent of advice
from counsel and the court concerning the charges against him; and the reasons for his
decision to plead guilty, including a desire to avoid a greater penalty that might result from
a jury trial.” Id. (citing Caudill v. Jago, 747 F.2d 1046, 1052 (6th Cir. 1984))).


       At the guilty plea hearing, the trial court followed the guidelines of Rule 11(b) of
Tennessee Rules of Criminal Procedure and thoroughly questioned the Petitioner about the
terms of the plea agreement and consequences of his guilty plea. In response, the Petitioner
acknowledged that he understood. Counsel addressed the Petitioner’s learning disability by
reading the plea agreement and other documents to him aloud and explaining terms in more
understandable language. At his request, she also allowed his family to participate in their
discussions regarding the case. The Petitioner testified at the post-conviction hearing that
he accepted the plea because he feared serving fifty-one years if convicted at trial on felony
murder. He further acknowledged that he understood the charges, his sentences, and the
risks of a trial.


        Based on this record, the trial court concluded, and we agree, that the Petitioner
entered knowing, intelligent, and voluntary guilty pleas. The Petitioner is not entitled to
relief in this matter.


                                          CONCLUSION


       Upon review, we affirm the judgment of the post-conviction court.




                                                     _______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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