            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                              Assigned on Briefs October 9, 2012

            FLOYD RODRIQUEZ JOHNSON v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Montgomery County
             Nos. 40601144, 40700186, 40700310      John H. Gasaway, Judge


                 No. M2012-00747-CCA-R3-PC Filed - February 12, 2013


The petitioner, Floyd Rodriquez Johnson,1 appeals the Montgomery County Circuit Court’s
denial of his petition for post-conviction relief. The petitioner is currently serving an
effective twenty-five year sentence in the Department of Correction following his guilty pleas
to multiple drug charges. On appeal, the petitioner contends that his guilty pleas were not
knowingly and voluntarily entered due to the ineffective assistance of counsel. Specifically,
he contends trial counsel was ineffective by failing to ensure that the petitioner understood
the terms of the plea agreement and the resulting sentencing consequences if the petitioner
failed to complete a drug rehabilitation furlough. Following review, we conclude that the
post-conviction court properly determined that the petitioner was not denied his right to the
effective assistance of counsel and that the pleas were entered knowingly and voluntarily.
The denial of post-conviction relief is affirmed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J ERRY L. S MITH
and N ORMA M CG EE O GLE, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Floyd Rodriquez Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
John W. Carney, Jr., District Attorney General; and John E. Finklea, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                               OPINION



        1
        There is indiction in the record that the petitioner is also known by the name of Floyd Harris, his
mother’s maiden name.
                      Procedural History and Factual Background

       A Montgomery County grand jury issued multiple indictments against the petitioner.
In case number 40601144, he was charged with possession with intent to sell more than .5
grams of cocaine, possession of marijuana, and contributing to the delinquency of a minor.
In case number 40700186, he was charged with the sale and delivery of more than .5 grams
of marijuana. Finally, in case number 40700310, the petitioner was indicted for possession
with intent to sell more than .5 grams of cocaine, possession of marijuana, and possession
of drug paraphernalia. Following negotiations with the State, the petitioner was allowed to
plead to two counts of possession of more than .5 grams of cocaine with intent to sell and one
count of the sale of more than .5 grams of cocaine. All other charges were dismissed. The
underlying facts, as recited at the guilty plea hearing are as follows:

       [In case number 4060114] the female in the car, the passenger, had cocaine
       and marijuana under her shirt and the discovery indicates that the [petitioner]
       told the police that it belonged to him.

       [In case number 40700186] the [petitioner] is in a video tape. He has seen the
       video, he has had a chance to review it at the jail, sold cocaine to informant
       whose identity has been made known to us in the video tape. I think the State
       will contend that he continually repeated his cell phone number during the
       transaction.

       [In case number 40700310] the police were called to 66A Lincoln Homes. . .
       . [D]uring a subsequent search, they learned the [petitioner] had a room
       allegedly in the Lincoln Homes apartment and they then obtained a search
       warrant, wherein over a half of a gram of cocaine was found, in what [the
       State] alleged to be the [petitioner’s] room.

State v. Floyd Rodriquez Johnson, No. M2009-01270-CCA-R3-CD (Tenn. Crim. App., at
Nashville, July 22, 2010). During the same hearing, the record indicates that the petitioner
was also admitting probation violations, based upon these new charges, in other separate
cases. In those four cases, the petitioner had previously been sentenced to an effective ten-
year sentence.

        Following the recitation of the facts, trial counsel for the petitioner addressed the
court, stating that the State had agreed a furlough period prior to sentencing in the cases to
allow the petitioner to complete a drug rehabilitation program at Lighthouse Mission
Ministries. If the court approved the action, and the petitioner successfully completed the
program, the State agreed to recommend that the balance of any sentences imposed be served

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on community corrections. The agreement also called for re-sentencing disposition to occur
at the same time in the probation violation cases. Trial counsel stated that he had
“extensively” spoken with the petitioner about the agreement and “answered all of his
questions.”

        Prior to acceptance, the court reviewed the dates of the new charges and noted that
the petitioner had been on bond when some were committed. The court expressed reluctance
to allow the petitioner, whom it stated had shown “contempt for the Judicial Process” by his
continued sale of drugs, a chance to participate in a rehabilitation program. After questioning
the petitioner regarding his drug usage, the court reluctantly agreed to the proposal but stated
on the record:

       . . . I am going to take this proposal but you[r] going to rehab is a
       recommendation from the State, it doesn’t mean that I have to swallow it, I
       likely will, but I don’t want you coming in here in six months and they say
       well, you know - - he had a few problems, but he managed to struggle through,
       that is not going to impress me. So before you plead guilty to all this, you just
       need to understand - - I am not going to give you the benefit of any doubt, you
       are going to have to walk the straight and narrow. You are going to have to do
       it just right. You sure you want to do that?

The petitioner responded in the affirmative, and the court proceeded to review the rights the
petitioner would be waiving by entering the pleas. The court also specifically informed the
petitioner that he had the right to plead not guilty and proceed to trial. The petitioner
responded that he understood.

      The court next informed the petitioner that the crimes to which he was pleading guilty
were Class B felonies, that he was a Range II offender, and that the possible range of
punishment was twelve to twenty years on each charge. After the petitioner responded that
he understood, the court further commented:

              Also, you need to understand that the plan here is for you to go to rehab
       for a minimum of six months, for you to complete that and come back into
       Court, the State make[s] a recommendation that whatever the sentence is by
       the Court, that it be with community correction[s]. And that these other ten
       year sentences [for the probation violations] will be transferred to community
       corrections. Just so that you understand the seriousness of this, just on the new
       charges, forget about the ten years, just the new charges, you can get as much
       as twelve years or a[s] little - - a minimum of twelve. You can get as much as
       eighty years[.] Plus by being sentenced to community corrections, whatever

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       the Court sentences you - - suppose it is twelve years concurrent, I can change
       that if you violate community corrections and make them consecutive and even
       add on to it. I am trying to get through to you . . . that today is the day, you
       will either go one way or the other[.] If you go the way you say you want to
       go, then you have actually got an opportunity to be on a release status, work,
       and have a life. Or if you go the other way, you could end up in the
       penitentiary for a very, very, very long time, as much as eighty years. And I
       am not going to put up with any shenanigans from you. I’ll just tell you that
       right now. Do you understand me?

The petitioner again responded in the affirmative. The court then accepted the pleas, and the
petitioner was released to Lighthouse Mission Ministries’ personnel.

       On June 9, 2009, a sentencing hearing was held where it was ascertained that the
petitioner had not successfully completed the drug rehabilitation. The petitioner testified in
his own behalf, stating that he was removed from the program because of a fight which he
had broken up at his workplace. After reviewing the evidence presented, the trial court
imposed an effective ten-year sentence in the cases for which the petitioner had violated
probation. Thereafter, applying various enhancing and mitigating factors, the trial court
imposed concurrent sentences of twelve years, fifteen years, and fifteen years. That effective
fifteen-year sentence was ordered to be served consecutively to the effective ten-year
sentence in the revocation cases, for a total effective sentence of twenty-five years.

       The petitioner thereafter filed a direct appeal with this court challenging the trial
court’s decision that his sentences be served in incarceration. Id. Following review, the
decision of the trial court was affirmed, and the petitioner’s application for permission to
appeal to the Tennessee Supreme Court was denied. Id.

       The petitioner subsequently filed a pro se petition for post-conviction relief alleging
that his pleas were not entered knowingly and voluntarily because trial counsel was
ineffective. Following the appointment of counsel, an amended petition was filed.
Thereafter, on March 13, 2012, a post-conviction hearing was held at which the petitioner
and his attorney testified.

       The petitioner clarified at the beginning of his testimony that he had no complaints
against the attorney who represented him at his sentencing hearing- he faulted only the
attorney who represented him prior to and at the acceptance hearing of his guilty pleas (“trial
counsel”). The petitioner testified that at the time of the pleas, he was only twenty-two years
old with an eleventh-grade education. Although he had previously entered pleas in at least
four cases, he testified that he was not familiar with the judicial process and did not

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understand the plea and sentencing process.

        The petitioner testified that trial counsel met with him on only two to three occasions
prior to the guilty plea hearing. He denied that trial counsel had to contact him while he was
released on bond because he failed to attend scheduled meeting with trial counsel at his
office. The petitioner also denied that he had received multiple written communications from
trial counsel while he was incarcerated, including one a few days prior to entry of the pleas
detailing the entire agreement. The petitioner stated that trial counsel failed to discuss all the
evidence against him in the pending cases, stating that trial counsel seemed focused on the
one case in which the evidence was the strongest. The petitioner did acknowledge that trial
counsel informed him that he thought it likely that the petitioner would be convicted in that
case and that it might result in convictions in the remaining cases. The petitioner testified
that he rejected two prior offers from the State and that he is the one that brought up the
possibility of a rehabilitation program to trial counsel.

        After discussions began, trial counsel informed him that he was pretty sure he would
get to go to rehab but that the final decision lay with the trial court. The petitioner testified
that he understood the agreement to mean that if he completed the program, he would serve
the balance of his sentences on community corrections. If he failed to complete the program,
he understood that he would serve twelve years at thirty-five percent. The petitioner
indicated that there was no discussion of consecutive sentencing.

        According to the petitioner, trial counsel told him to go into the courtroom on the day
of his plea submission hearing and to just agree with everything said. The petitioner
acknowledged that the trial court had informed him about waiving trial rights and that he
answered that he understood. The petitioner also recalled that the court had mentioned that
if he failed to complete the program, the sentences could be longer. The petitioner claimed
he thought this was irrelevant and a “scare tactic.” He insisted that he understood, because
that is what trial counsel had told him, that the sentence would be twelve years at thirty-five
percent to serve if he failed to complete the rehabilitation program. Had he understood the
true range of possible punishment he faced, i.e., the twenty-five year term he is currently
serving, the petitioner contends he would not have entered the pleas.

        Trial counsel testified that he was appointed to represent the petitioner while he was
incarcerated but that the petitioner was eventually released on bond. Trial counsel testified
that the petitioner did not keep his appointments to meet with trial counsel at his office to
discuss the defense. Because the petitioner kept picking up new charges, his bond was
eventually revoked. Once the petitioner was returned to jail, trial counsel indicated that he
wrote him numerous letters detailing the situation in an effort to make sure the petitioner
understood everything. Trial counsel did acknowledge that a great deal of his

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communication with the petitioner was written, but he did visit him at the jail at times.

        Trial counsel testified that he reviewed and discussed the facts with the petitioner
regarding each of his pending cases. Trial counsel did agree that the evidence in one case
was particularly stronger than in the others, and he discussed the strengths and weakness of
each case with the petitioner. Trial counsel specifically covered the range of possible
punishment in each case with the petitioner. He also informed the petitioner about the
possibility of consecutive sentencing being imposed, particularly with regard to the sentences
resulting from the revocation of probation.

       Trial counsel testified that after the petitioner had been in jail for approximately four
months, he expressed a strong desire to get out. Trial counsel stated he began negotiations
with the State. Two offers were made and rejected by the petitioner. During this period, trial
counsel stated that he was still continuing to prepare for trial. Trial counsel informed the
petitioner that he felt that he would be convicted in some cases but not others if he chose to
proceed to trial. Nonetheless, the State refused to discuss a plea agreement that did not
encompass all cases. Trial counsel testified that he wrote multiple letters to the petitioner
explaining the situation.

       Trial counsel testified that in December, 2007, the petitioner expressed an interest in
getting into a rehabilitation program because he thought it would benefit him. Trial counsel
presented this information to the State, and, eventually, an agreement was reached. After the
terms of the agreement were set, trial counsel he had a long letter detailing those terms in
great detail hand delivered to the petitioner at the jail. In that letter, trial counsel stated that
he went through each case number and provided the facts and nature of each case, as well
as the possible ranges of punishment.

        Trial counsel also testified that he recalled that at the plea submission hearing, the
court had expressly informed the petitioner of the possible consequences if he did not
complete the rehabilitation program. Trial counsel testified that he had no reason to believe
that the petitioner did not have a true understanding of the agreement. Trial counsel stated
that the petitioner was happy with the deal, as it allowed him to be released from custody.

       After hearing the hearing evidence presented, the post-conviction court, by written
order, denied the petition. This appeal followed.

                                             Analysis

       On appeal, the petitioner contends that his guilty pleas were not knowingly and
voluntarily entered because he was denied the effective assistance of counsel. Specifically,

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he contends that trial counsel was ineffective for failing to ensure his understanding of the
plea agreements and the consequences of not completing the rehabilitation program. In
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, 31 (1970). In making this determination, the reviewing
court must look to the totality of the circumstances. State v. Turner, 919 S.W.2d 346, 353
(Tenn. Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim.
App. 1990). Indeed, a

       court charged with determining whether . . . pleas were “voluntary” and
       “intelligent” must look to various circumstantial factors, such as 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.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). Once a guilty plea has been
entered, effectiveness of counsel is relevant only to the extent that it affects the voluntariness
of the plea. In this respect, such claims of ineffective assistance necessarily implicate that
guilty pleas be voluntarily and intelligently made. Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(citing Alford, 400 U.S. at 31).

        To succeed in a challenge for ineffective assistance of counsel, a petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded of
attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under
Strickland v. Washington, 466 U.S. 668, 687 (1984), the petitioner must establish (1)
deficient representation and (2) prejudice resulting from the deficiency. In the context of a
guilty plea, to satisfy the second prong of Strickland, the 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.” Lockhart, 474 U.S. at 59; see also Walton v. State,
966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). The petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably-based trial strategy, and cannot criticize a
sound, but unsuccessful, tactical decision made during the course of the proceeding. Adkins
v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This deference to the tactical
decisions of trial counsel, however, is dependant upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).

                                               -7-
        The issues of deficient performance by counsel and possible prejudice to the defense
are mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A
trial court’s findings of fact underlying a claim of ineffective assistance of counsel are
reviewed on appeal under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d)). However, conclusions of
law are reviewed under a purely de novo standard, with no presumption of correctness. Id.
at 458.

I. Ineffective Assistance of Counsel

        As his only ground for ineffective assistance of counsel, the petitioner contends that
trial counsel was ineffective by failing to ensure that he understood the terms and conditions
of the plea agreement, including the possible resulting sentences if the petitioner failed to
complete the rehabilitation program. The petitioner insists that trial counsel explained that
he would only serve twelve years at thirty-five percent if he failed to complete the program.
In support of his argument, he relies up the fact that there was no proof the letter written by
trial counsel was ever delivered to him, that trial counsel could not specifically recall a
conversation reviewing the agreement with the petitioner, and trial counsel’s statement that
the agreement was “more complex than usual” because of the number of cases involved.

        After review of the record, we are unable to find any evidence which preponderates
against the post-conviction court’s finding that trial counsel’s “representation of [the
petitioner] was not ineffective, in fact, he did a good job.” In fact, the only evidence put
forth to show that trial counsel failed to ensure the petitioner’s understanding of the
agreement is the petitioner’s own self-serving statement that he did not understand.
However, in its findings, the post-conviction court also specifically accredited the testimony
of trial counsel over that of the petitioner. It has been noted on multiple occasions by this
court that we will not reweigh or reevaluate such credibility determinations made by the trier
of fact. See Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). All questions involving
the credibility of witnesses, the weight and value to be given their testimony, and the factual
issues raised by the evidence are to be resolved by the trial judge, not the appellate courts.
Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley, 960 S.W.2d at 578-79.

        Trial counsel testified at the hearing that he extensively covered the evidence against
the petitioner in each case and the possible sentences he faced. Trial counsel also testified
that he explained to the petitioner the possibility of consecutive sentencing. Trial counsel
testified that he wrote twelve to eighteen letter to the petitioner while he was incarcerated
explaining various aspects of the case to him. He specifically testified about a two to three
page letter he wrote to the petitioner which detailed the final settlement agreement between

                                              -8-
the parties. Although trial counsel could not recall the exact conversation between him and
the petitioner, he testified that he was certain that he had talked to the petitioner before court
about the detailed letter and the terms of the guilty pleas. Thus, based upon trial counsel’s
testimony, we can not conclude that trial counsel rendered deficient performance to the
petitioner.

B. Voluntariness of the Guilty Plea

       Having rejected the petitioner’s claim that trial counsel was deficient in explaining the
plea agreement, the petitioner is somewhat constrained in his effort to establish that his pleas
were not entered knowingly, intelligently, and voluntarily. The record establishes that both
trial counsel and the trial court explicitly informed the petitioner of the terms and
consequences contained within his plea agreement. The court vehemently stressed to the
petitioner those terms prior to accepting the agreement. The petitioner stood before the court
and stated he understood and that he wished to enter the pleas. The petitioner was twenty-
two years old at the time and had prior felony convictions.

        A defendant’s plea of guilty constitutes an admission in open court that the defendant
committed the acts charged in the indictment. Brady v. United States, 397 U.S. 742, 748
(1970). The plea, however, is more than an admission; it is the defendant’s consent that
judgment of conviction may be entered without a trial. Id. A defendant’s sworn responses
to the litany of questions posed by the trial judge at the plea submission hearing represent
more than simply lip service. Indeed, the defendant’s sworn statements and admissions of
guilt stand as witness against the defendant at the post-conviction hearing when the
defendant disavows those statements. We note that in this case the transcript of the plea
hearing is strong evidence against and belies the petitioner’s contentions. Following review
of the record, we conclude that the petitioner has failed to establish that the proof
preponderates against the findings made by the post-conviction court that he received the
effective assistance of counsel and that his plea was entered knowingly and voluntarily. See
State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977).

                                       CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.


                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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