        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs April 28, 2015 at Knoxville

             KENNETH L. WILLIAMS v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                     No. 41200673     Michael R. Jones, Judge




                   No. M2014-01527-CCA-R3-PC           - May 26, 2015


The Petitioner, Kenneth L. Williams, pursuant to a plea agreement, pleaded guilty to
aggravated sexual battery with a sentence of twelve years in the Tennessee Department of
Correction. The Petitioner filed, pro se, a motion to withdraw his guilty plea and a petition
for post-conviction relief. After a hearing, the post-conviction court issued an order denying
the motion and dismissing the petition. On appeal, the Petitioner maintains that his guilty
plea was not knowingly entered and that he received the ineffective assistance of counsel.
After a thorough review of the record and relevant law, we affirm the post-conviction court’s
judgments.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS
J R. and T IMOTHY L. E ASTER, JJ., joined.

Wayne Clemons, Clarksville, Tennessee, for the Defendant-Appellant, Kenneth L. Williams.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; John W. Carney Jr., District Attorney General; and C. Daniel Brollier,
Assistant District Attorney General, for the Appellee, State of Tennessee.



                                         OPINION
                                          I. Facts

       The Petitioner was charged with two counts of rape of a child. Pursuant to a
negotiated plea agreement with the State, the Petitioner pleaded guilty to one count of
aggravated sexual battery on July 12, 2013. At the guilty plea submission hearing, the State
presented the following facts as a basis for the trial court’s acceptance of the Petitioner’s
guilty plea:

       The State would introduce at sometime around Thanksgiving of 2011, [the
       Petitioner] was in [Department of Children’s Services] custody. He went
       home at some point to stay with his family. [The victim], who was twelve
       years old at the time, was home and there was some sexual contact on the
       couch or in the bedroom. [The Petitioner] was interviewed, I believe, a couple
       months later by Detective Slaven (phonetic). The major issue would be
       apparently he acknowledges some contact did occur on the couch of the house
       with [the victim], when she was - - on that Thanksgiving.

              ....

       [H]e was in State’s custody for four years before this, [for] having similar
       contact with the same victim. He was removed from the home and he went
       back home on this Thanksgiving and the contact occurred again.

Following this recitation of the facts, the trial court defined the elements of aggravated sexual
battery, and the Petitioner confirmed his understanding of the charge against him. The trial
court then reviewed the range of sentence for aggravated sexual battery and the specific
statutory provisions required for sex crime convictions. The Petitioner again stated his
understanding. The trial court reviewed the Petitioner’s rights, and the Petitioner confirmed
his waiver of those rights upon entry of a guilty plea. The Petitioner stated that he did not
have any questions regarding the sentence or his decision to enter a guilty plea. The
Petitioner stated that he understood everything and that he wanted to enter a guilty plea. The
Petitioner affirmed that he was guilty of aggravated sexual battery, and the trial court found
him guilty, ordering him to serve twelve years in the Tennessee Department of Correction.


       On August 6, 2013, the Petitioner filed a pro se motion to withdraw his guilty plea
and, on November 1, 2013, a petition seeking post-conviction relief. The post-conviction
court held a hearing on the motion and the petition on June 19, 2014, and the parties
presented the following evidence: The Petitioner testified that he was seventeen years old
when this offense occurred and that his case was transferred from juvenile court to criminal
court. As to his education, he stated that he had completed “all the way into the 12 th grade”
and that he believed he had performed well on any IQ or achievement tests administered.
The Petitioner acknowledged that, before this offense, he had been charged in juvenile court
with robbery and drug-related offenses. The Petitioner stated that, “to the best of [his]

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understanding,” if he had not pleaded guilty, the charges would have been dropped, and he
would have gone “home.” He acknowledged that he would have had to go to trial on the
charges but explained that there was “no physical evidence.”

       The Petitioner testified that he told his attorney (“Counsel”) about there being no
physical evidence, but she responded that it was “too late for them to go back and try to find
evidence.” She told the Petitioner that the State would try to have him sentenced to twenty-
five years if he proceeded to trial. The Petitioner said that he told Counsel about his foster
family being potential witnesses who would testify that he “didn’t do it.” Counsel met with
the witnesses, but the Petitioner never learned the outcome of those meetings.

        The Petitioner testified that he met with Counsel approximately four times and that
he felt that Counsel coerced him into accepting the State’s offer. He explained that while in
a visitation booth, he expressed to Counsel that he wanted to proceed to trial, and Counsel
“hung up the phone in [his] face and kinda got an attitude about it, like she wanted [him] to
ple[a]d guilty.” The Petitioner said that, because of this interaction, the Petitioner pleaded
guilty. He said that he did “not necessarily” understand the implications of his guilty plea,
such as the amount of time he would be away from his family and the percentage of service
of his sentence. The Petitioner testified that the victim had lied in juvenile court when she
alleged the contact with the Petitioner.

        On cross-examination, the Petitioner testified that he had previously been accused of
rape involving the same victim, his younger sister. He agreed that he understood the charges
and that, if convicted at trial, he could potentially receive a twenty-five year sentence to be
served at 100%. The Petitioner agreed that, at the guilty plea submission hearing, he told the
trial court that he wanted to enter the plea. He agreed that, during this plea colloquy, no one
was intimidating or threatening him. The Petitioner denied admitting to the police that he
had sex with the victim, maintaining that the officer “changed” his words. The Petitioner
agreed that he chose to enter the plea rather than face the possibility of twenty-five to fifty
years in prison.

       Counsel testified that during her representation of the Petitioner on these two charges,
she met with the Department of Children’s Services (“DCS”) attorney who was pursuing the
DCS investigation of this matter. Counsel stated that she discussed with the Petitioner the
difference between being tried as a juvenile and being tried as an adult. She also obtained
juvenile records indicating a history of low IQ and special education, so she requested a
forensic evaluation for competency. After the determination was made that the Petitioner
was competent to stand trial and able to appreciate the wrongfulness of his conduct, Counsel
contacted potential witnesses, including the Petitioner’s foster family. The witnesses’
statements created some question as to the State’s timeline for the first count of rape of a

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child, but their statements supported the occurrence in the second count. Counsel stated that
she discussed in detail with the Petitioner her investigation and the evidence in the case. She
told the Petitioner that his statement to police was the “most difficult” obstacle to his defense
and that she did not believe there were grounds for suppression. The Petitioner’s statement
described the contact as consensual. Counsel explained to the Petitioner that a twelve-year-
old cannot consent under the law.

        Counsel testified that she believed the State’s offer, one count of aggravated sexual
battery serving a twelve-year sentence at 85%, was a “good settlement” of the charges.
Counsel agreed that on the day of the guilty plea submission hearing, the Petitioner expressed
hesitation about his decision to enter a guilty plea. Counsel stated that she was prepared to
go to trial but advised the Petitioner that he had to make a decision because it was unlikely
the State would keep the offer open until the trial date.

      On cross-examination, Counsel denied having a conversation with the Petitioner
where she angrily slammed down the telephone.

       The trial court issued an order denying the Petitioner’s motion to withdraw his guilty
plea and dismissing the petition for post-conviction relief. It is from this judgment that the
Petitioner now appeals.

                                         II. Analysis

        On appeal, the Petitioner asserts that the trial court should have granted his motion to
withdraw his guilty plea because his plea was the result of coercion and, therefore, not
knowing and voluntary. The Petitioner maintains that he received the ineffective assistance
of counsel because Counsel: (1) failed to advise him of the difference between juvenile and
adult criminal charges; and (2) coerced him to plead guilty. The State responds that the trial
court properly exercised its discretion in denying the motion to withdraw the guilty plea and
that the Petitioner has failed to prove that he received the ineffective assistance of counsel.

                            A. Motion to Withdraw Guilty Plea

        Generally, “a criminal defendant who has pled guilty does not have a unilateral right
to later withdraw his plea either before or after sentencing.” State v. Phelps, 329 S.W.3d
436, 444 (Tenn. 2010); see also State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App.
1995). Although the trial court “‘should always exercise [its] discretion with caution in
refusing to set aside a plea of guilty, to the end that one accused of crime may have a fair and
impartial trial,’” Phelps, 329 S.W.3d at 444 (quoting Henning v. State, 201 S.W.2d 669, 671
(Tenn. 1947)), “the defendant bears the burden of establishing sufficient grounds for

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withdrawing his plea.” Id. (citing Turner, 919 S.W.2d at 355).

        Whether a defendant should be allowed to withdraw his guilty plea is within the sound
discretion of the trial court. State v. Mellon, 118 S.W.3d 340, 345-46 (Tenn. 2003) (citing
Henning v. State, 201 S.W.2d 669, 671 (Tenn. 1947)). On appeal, “[t]he trial court’s
decision ‘will not be reversed unless it clearly appears that there was an abuse of discretion.’”
State v. Crowe, 168 S.W.3d 731, 740 (Tenn. 2005) (quoting Henning, 201 S.W.2d at 671).
“An abuse of discretion exists if the record lacks substantial evidence to support the trial
court’s conclusion.” Id. (citing Goosby v. State, 917 S.W.2d 700, 705 (Tenn. Crim. App.
1995)).

      Rule 32(f) of the Tennessee Rules of Criminal Procedure provides the standards
governing the withdrawal of a guilty plea. The rule is as follows:

       (1) Before Sentence Imposed. Before sentence is imposed, the court may grant
       a motion to withdraw a guilty plea for any fair and just reason.

       (2) After Sentence But Before Judgment Final. After sentence is imposed but
       before the judgment becomes final, the court may set aside the judgment of
       conviction and permit the defendant to withdraw the plea to correct manifest
       injustice.


Tenn. R. Crim. P. 32(f) (emphasis added). The rule dictates that one of two standards is to
be applied, and which standard governs depends on whether a defendant moves to withdraw
his guilty plea before or after a sentence is imposed. Crowe, 168 S.W.3d at 740-41. As the
Petitioner in the present case moved to withdraw his guilty plea after the sentence was
imposed, the latter, more strenuous standard applies. See id. Accordingly, the trial court
should have allowed the guilty plea to be withdrawn only to correct a “manifest injustice.”
See id.; see also Tenn. R. Crim. P. 32(f)(2).

        Tennessee courts have allowed the withdrawal of guilty pleas to prevent manifest
injustice where:

              (1) the plea was entered through a misunderstanding as to its effect, or
       through fear and fraud, or where it was not made voluntarily; (2) the
       prosecution failed to disclose exculpatory evidence as required by Brady v.
       Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963), and this
       failure to disclose influenced the entry of the plea; (3) the plea was not
       knowingly, voluntarily, and understandingly entered; and (4) the defendant

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       was denied the effective assistance of counsel in connection with the entry of
       the plea.


Crowe, 168 S.W.3d at 742 (citations, footnotes, and internal quotations omitted). Further,
manifest injustice may be found where the State’s prosecutor has induced the plea through
“gross misrepresentation.” Turner, 919 S.W.2d at 355; see also Swang v. State, 42 Tenn. 212
(1865). Courts have also found that manifest injustice resulted from the trial court’s failure
to advise a defendant of the appropriate sentencing range, to apply the appropriate sentencing
statute, or to inform a defendant of the consequences flowing from the guilty plea. State v.
Antonio Demonte Lyons, No. 01 C01-9508-CR-00263, 1997 WL 469501, at *12 (Tenn.
Crim. App., at Nashville, Aug. 15, 1997), no Tenn. R. App. P. 11 application filed.

        The trial court found no reason to allow the Petitioner to withdraw his guilty plea.
Our review of the record supports the trial court’s decision. The plea submission hearing
transcript indicates that the Petitioner understood his sentence and willingly entered the plea.
The Petitioner was properly advised of all of his rights. Counsel, as well as the trial court,
advised him of the sentence, and the Petitioner stated that he wanted to plead guilty to
aggravated sexual battery. Further, the Petitioner confirmed at the June 19, 2014 hearing
that, at the time of the guilty plea submission hearing, he chose to enter the plea rather than
face the possibility of twenty-five to fifty years in prison. Counsel acknowledged that the
Petitioner struggled with the difficult decision of whether to enter the plea but ultimately
made the decision to accept the State’s offer to serve twelve years at 85%. Accordingly, we
cannot conclude that the trial court abused its discretion when it denied the Petitioner’s
motion.

                                B. Post-Conviction Petition

        In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2012). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2012). Upon review, this Court will not re-weigh or re-evaluate the evidence below;
all questions concerning 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) (citing Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-conviction court’s factual findings
are subject to a de novo review by this Court; however, we must accord these factual findings
a presumption of correctness, which can be overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40

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S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:

               First, the [petitioner] must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the [petitioner] by the
       Sixth Amendment. Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 S.W.2d
417, 419 (Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, “a petitioner must show that counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

        When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the “distorting
effects of hindsight” and “judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S.
at 689-90. In doing so, the reviewing court must be highly deferential and “should indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a defendant in a
criminal case is not entitled to perfect representation, only constitutionally adequate
representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other

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words, “in considering claims of ineffective assistance of counsel, ‘we address not what is
prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483
U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)).
Counsel should not be deemed to have been ineffective merely because a different procedure
or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276, 279-
80 (Tenn. Crim. App. 1980). “The fact that a particular strategy or tactic failed or hurt the
defense, does not, standing alone, establish unreasonable representation. However, deference
to matters of strategy and tactical choices applies only if the choices are informed ones based
upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

       If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State,
90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875
S.W.2d 662, 665 (Tenn. 1994). In the context of a guilty plea, as in this case, the effective
assistance of counsel is relevant only to the extent that it affects the voluntariness of the plea.
Therefore, 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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985) (footnote
omitted); see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

       The Petitioner alleges that Counsel was “ineffective by failing to advise him of the
difference between juvenile and adult criminal charges, and by coercing him to plea guilty
even though he believed that he would be able to win at trial.” In its order denying relief, the
post-conviction court stated that there was “no showing that [Counsel] was ineffective
counsel” and concluded that based upon the evidence she was “certainly effective in her
representation.”

       We agree that the evidence does not show that Counsel was ineffective in her
representation or coerced the Petitioner into pleading guilty. Counsel testified that she
reviewed with the Petitioner his charges, the elements of the offense of conviction, and the
sentencing range for aggravated sexual battery. Counsel explained to the Petitioner the
difference between being tried as a juvenile and being tried as an adult. Counsel reviewed
the results of her investigation of the case with the Petitioner and advised the Petitioner that
his admission to the acts in his statement to the police would be a difficult obstacle to
overcome at trial. Counsel negotiated a plea agreement with the State for one count of an
offense with significantly less jail time than the charged offenses. This evidence supports
the post-conviction court’s conclusion that Counsel was “certainly effective in her

                                                8
representation of the Petitioner.”

       The Petitioner testified that he pleaded guilty because Counsel slammed down a phone
during a conversation when the Petitioner expressed his desire to proceed to trial. At the
hearing, however, Counsel denied that this ever occurred. Counsel stated that she advised
the Petitioner that it was his decision but that he would have to make the decision because
the State would likely not hold the offer open until the day of trial. The guilty plea
submission hearing transcript supports her testimony that the Petitioner willingly entered the
guilty plea.

       Accordingly, the Petitioner has failed to show by clear and convincing evidence that
Counsel was deficient and that, but for counsel’s errors, he would not have have pleaded
guilty but proceeded to trial. The Petitioner is not entitled to relief.

                                      III. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that the
post-conviction court properly denied the Petitioner’s motion to withdraw his guilty plea and
the petition for post-conviction relief. Accordingly, we affirm the judgments of the post-
conviction court.

                                                  _________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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