         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs October 18, 2011

                   RANDY FLIPPO V. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court of Moore County
                        No. 1099     Robert G. Crigler, Judge


                No. M2010-02325-CCA-R3-PC - Filed January 6, 2012


Randy Flippo (“the Petitioner”) filed for post-conviction relief, alleging (1) that he was
denied effective assistance of counsel in conjunction with his guilty plea to theft of property
between five hundred and one thousand dollars; and (2) that his plea was not voluntarily
made. After an evidentiary hearing, the post-conviction court denied relief, and the
Petitioner has appealed solely as to the ineffective assistance of counsel claim. After a
thorough review of the record, we affirm the judgment of the post-conviction court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J.,
and J OHN E VERETT W ILLIAMS, J., joined.

David L. Stewart, Winchester, Tennessee, for the appellant, Randy Flippo.

Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Assistant Attorney
General; Charles Frank Crawford, Jr., District Attorney General; Hollynn Eubanks, Assistant
District Attorney General; for the appellee, State of Tennessee.

                                         OPINION

                           Factual and Procedural Background

                                         Guilty Plea

       The Petitioner was indicted on two counts of Class D felony theft of property over one
thousand dollars. On March 20, 2009, the Petitioner pleaded guilty to one count of Class E
felony theft of property between five hundred and one thousand dollars. At the start of the
plea hearing,1 the trial court confirmed with the Petitioner, who had hearing difficulties, that
he was able to hear the proceedings. The Petitioner wore a hearing device during the plea
acceptance hearing, and the trial court asked the Petitioner to speak up if he was unable to
hear at any point during the proceedings. The State then recited the factual basis for the
charges, stating that on December 6, 2008, Glen Flippo reported that some walnut trees on
his property that he shared with his brother, Fred Flippo, had been cut down. Glen Flippo
is the Petitioner’s uncle, and Fred Flippo is the Petitioner’s father. After finding the trees cut
down, Glen Flippo placed a chain and lock on a gate that provided access to the land.
However, the next day he found that someone had returned to the property and removed the
trees from the land. After investigation by Investigator Mike Rainey of the Moore County
Sheriff’s Department, the Petitioner became a suspect in the case.

        When Investigator Rainey met with the Petitioner, the Petitioner was advised of and
waived his Miranda rights. The Petitioner then admitted that he had taken the logs.
Although the Petitioner had asked for permission for a year, he told Investigator Rainey that
he had never been given an answer. He told Investigator Rainey that he decided to cut down
the trees in the absence of permission from his father or uncle. The Petitioner explained to
Investigator Rainey that he entered the property and took the trees without permission
because he needed money.

       The State also stated in its factual basis for the charges that the logs had not been
properly cut, which reduced their value. The State asserted that, had the logs been cut
properly, the trees would have been worth $1500. However, the Petitioner only received
$843 from the sale of the logs, which had already been paid to the victims at the time of the
plea. The Petitioner’s counsel at the plea hearing (“trial counsel”), after conferring with the
Petitioner, indicated to the trial court that the Petitioner did not agree that the logs were
valued at more than a thousand dollars.2 The Petitioner told the trial court that he agreed to
everything else in the recitation except for the value of the logs. He also agreed that the
value of the logs was five hundred dollars or greater and that he was, in fact, guilty of the
theft. Under the terms of the plea bargain, the Petitioner agreed to a six-year sentence as a
career offender.




        1
            A transcript of the plea hearing was admitted as an exhibit at the post-conviction hearing.
        2
          Although the State mentioned in its factual basis for the charges that the value of the timber was
over a thousand dollars, the plea agreement was to theft of property between five hundred and one thousand
dollars. The State noted that the actual value of the timber was not the reason that it was willing to lessen
the charge.

                                                      -2-
      The Petitioner indicated that he did not have any difficulty communicating with trial
counsel about the case. He also acknowledged that there was nothing that trial counsel could
have done to research or investigate that he had not done already.

        After the trial court determined that the Petitioner had made his decision to plead
guilty “freely and voluntarily,” it accepted the plea and sentenced the Petitioner to six years
in accordance with the plea agreement. The Petitioner then filed his petition for post-
conviction relief, claiming that he was denied effective assistance of counsel and that his plea
was not voluntary.

                             Proof at Post-Conviction Hearing

        We will limit our review of the facts to those facts relevant to the Petitioner’s claim
on appeal. At the post-conviction hearing, trial counsel indicated that he did not have any
direct discussions with the Petitioner until after his indictment. A different attorney
represented the Petitioner in general sessions court. Trial counsel testified that he had
approximately two or three discussions with the Petitioner and that those discussions likely
took place in the courtroom. Trial counsel stated that, on one occasion, the Petitioner and
trial counsel may have had their discussion in the back room of the courtroom. He could not
remember whether he spoke with the Petitioner while the Petitioner was in jail.

        Trial counsel recalled that the Petitioner was hard of hearing. Although he was able
to communicate with the Petitioner, trial counsel said, “You had to almost yell at him for him
to understand.” Trial counsel did not think that the Petitioner had a hearing device with him
during their conversations. He stated that, at the plea acceptance hearing, trial counsel asked
the court to speak loudly, and he remembered that other accommodations were made to
facilitate the Petitioner’s ability to hear. Trial counsel acknowledged that the Petitioner was
given a hearing device at the hearing and that the Petitioner indicated that he could hear the
trial court.

        Trial counsel testified that, in preparation for the Petitioner’s case, he discussed the
case at length with the Petitioner’s previous counsel, he reviewed the preliminary hearing
transcript, he spoke with the Petitioner, he researched the proper way to cut down trees, and
he received general discovery information from the State. In his discussion with the
Petitioner, the Petitioner told trial counsel that he had asked permission to cut down the trees
in the past and was denied permission. Trial counsel said that, according to the Petitioner,
at the time he cut down the trees, he did so without asking permission.

      Trial counsel acknowledged receiving the State’s proposed witness list which included
Glen and Fred Flippo as potential witnesses, but he testified that he did not interview Glen


                                              -3-
or Fred Flippo. Trial counsel stated that he believed that Glen and Fred Flippo were co-
owners of the property on which the trees were cut. The Petitioner’s counsel asked,
“[W]ould you agree that as co-owners of the property, either one of them could have given
permission for the trees to have been cut?” to which trial counsel agreed. However, trial
counsel testified that he had not been told that either co-owner had given permission. In fact,
trial counsel testified that he had reviewed the preliminary hearing transcript, in which Glen
Flippo stated that neither he nor Fred Flippo had given the Petitioner permission to cut down
the trees. Trial counsel indicated that his reasoning for not interviewing Glen or Fred Flippo
stemmed from his discussions with the Petitioner, the sworn testimony of Glen Flippo at the
preliminary hearing, and trial counsel’s discussions with Investigator Rainey and the
Petitioner’s previous counsel.

       Trial counsel’s advice to the Petitioner when the State offered a plea bargain of twelve
years was to reject the offer because the sentence offered was the maximum sentence he
could receive at trial. However, once trial counsel negotiated with the State and the State
agreed to a plea bargain of six years, he advised the Petitioner to accept the offer.

       Trial counsel testified that, had he been made aware that one of the property owners
had given the Petitioner permission to cut down the trees, it would have changed his advice
regarding whether the Petitioner should accept the plea. He clarified, however, that he would
need to be sure that the witness’s statements were truthful and that the witness would give
consistent testimony at trial.

        The Petitioner’s counsel asked trial counsel about his investigation regarding the price
of the timber. Trial counsel responded that he spoke at length with Investigator Rainey, who
apparently knew the proper method of cutting trees. Trial counsel also said that he conducted
research via the internet to learn about the variations in value of the timber depending on the
way it is cut.

        Fred Flippo acknowledged at the post-conviction hearing that he was aware of the
allegations and proceedings against his son, the Petitioner, for cutting down trees on his
property. However, he testified that he had given the Petitioner general permission to cut
trees off the land “some time before” and that he had never revoked that permission. Fred
Flippo stated that he was present when the investigator spoke with his brother, Glen Flippo,
but that he was never interviewed by anyone. When the State asked why he waited until the
post-conviction hearing to come forward, Fred Flippo stated, “None of this even occurred
to me when all of this was happening. It was kind of, hurts a bit, you know, when something
like that happens. When your son is arrested in front of you like that, you don’t think of all
that stuff.” Fred Flippo clarified that it hurt him to see the Petitioner being arrested.



                                              -4-
       The post-conviction court asked Fred Flippo if he thought it would be important to tell
the police that he had given the Petitioner permission. Fred Flippo agreed that it would be
important but that “[i]t never occurred to [him] at that time.”

        Moore County Sheriff Mark Logan recognized the Petitioner from seeing him in jail
and in court and remembered obtaining a hearing piece for the Petitioner in his plea
proceeding. The State asked Sheriff Logan if he was aware of the Petitioner’s hearing
problems prior to the hearing. Sheriff Logan responded, “I was not aware until he come [sic]
to court on this matter and said he had to have some type of hearing device[], but I was not
aware of that.” He acknowledged that the Petitioner did not use a hearing device while in
jail and that sign language was not necessary to communicate with him. Sheriff Logan also
agreed that the Petitioner “suffers greater hearing loss in the courtroom than he does in the
jail or out in the community[.]” He stated that the hearing device obtained for the Petitioner
came from Wal-Mart and that the device had been misplaced since the hearing. Sheriff
Logan also indicated that the Petitioner was wearing an “almost identical” device at the post-
conviction hearing.

        The post-conviction court denied relief, stating that the Petitioner failed to prove that
trial counsel’s representation was deficient and that the Petitioner’s plea was “voluntarily,
intelligently and understandingly made.”

       Although the post-conviction court noted that it was unnecessary to make a finding
as to Fred Flippo’s credibility at the post-conviction hearing, the post-conviction court,
nevertheless, found that:

       I have to agree with the State, it is just beyond the pale of reason that you
       could see your son arrested, and if you had given permission to take the thing
       that was at issue that you would just stand there mute and not say anything
       about it. It is just not reasonable to believe that.

        Regarding trial counsel’s decision not to interview Fred Flippo, the post-conviction
court stated: “I suppose it would have been better to interview the [Petitioner’s] father, but
based on the information [trial counsel] had, most importantly, his own client’s testimony and
the preliminary hearing tape, that it was reasonable for him to assume that there was a factual
basis for the plea.” The post-conviction court noted that the failure to interview a witness
is not per se ineffective assistance of counsel and that the present case was one such case in
which the failure to interview Fred Flippo did not equate to a deficiency on trial counsel’s
part. The post-conviction court also indicated that the record was silent as to indicating
prejudice because the Petitioner did not take the stand.



                                               -5-
        The Petitioner timely appealed, arguing that he was denied effective assistance of
counsel in the plea process because trial counsel failed to interview Fred Flippo and that such
a failure to interview was prejudicial to the Petitioner.

                                             Analysis

                                       Standard of Review

        Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel and challenges to the validity of a guilty plea, our review is de novo with no
presumption of correctness. See Pylant, 263 S.W.3d at 867-68; Jaco v. State, 120 S.W.3d
828, 830-31 (Tenn. 2003); Sexton, 151 S.W.3d at 531.

                                Ineffective Assistance of Counsel

         The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel
at trial.3 Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that this right is to “reasonably effective” assistance, which is assistance that falls
“within the range of competence demanded of attorneys in criminal cases.” Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). The deprivation of effective assistance of counsel at trial presents a claim cognizable
under Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103;
Pylant, 263 S.W.3d at 868.


       3
         The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).

                                                 -6-
        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.

        To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688)). Our Supreme Court has explained
that:

       [T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It
       is a violation of this standard for defense counsel to deprive a criminal
       defendant of a substantial defense by his own ineffectiveness or incompetence.
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell
v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).

       As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). In the context of a guilty plea, our
analysis of this prong


                                              -7-
       focuses on whether counsel’s constitutionally ineffective performance affected
       the outcome of the plea process. In other words, in order to satisfy the
       “prejudice” requirement, 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). See also Calvert v. State, 342 S.W.3d 477, 486
(Tenn. 2011).

       In the present case, the Petitioner argues that trial counsel’s representation was
deficient because he failed to interview Fred Flippo and that, had trial counsel interviewed
Fred Flippo, he would not have advised the Petitioner to accept the plea.

       Turning to the deficiency prong, the Petitioner points to his hearing problem and the
manner and place of trial counsel’s discussions with the Petitioner to argue that trial
counsel’s deficient interviewing of the Petitioner contributed to his decision not to interview
Fred Flippo. Further, the Petitioner asserts that, “[h]ad trial counsel conducted his interviews
with the [Petitioner] in a proper manner, perhaps he could have avoided the
misunderstanding as to whether or not the [Petitioner] had permission to cut the timber in
question.” However, trial counsel did not appear to have any misunderstanding as to what
the Petitioner told him. Furthermore, to the extent the Petitioner asserts that there might be
a misunderstanding, the Petitioner did not testify at the post-conviction hearing concerning
such a misunderstanding. Thus, the Petitioner has failed to provide clear and convincing
evidence that there was a misunderstanding between the Petitioner and trial counsel. See
Tenn. Code Ann. § 40-30-110 (a) (2006) (“The petitioner shall appear and give testimony
at the evidentiary hearing if the petition raises substantial questions of fact as to facts in
which the Petitioner participated . . . .”); see also Cauthern v. State, 145 S.W.3d 571, 607
(Tenn. Crim. App. 2004).

       Trial counsel stated that, prior to advising the Petitioner to accept the plea bargain, he
discussed the case with the Petitioner and the Petitioner’s previous counsel, reviewed the
preliminary hearing transcript and general discovery, and conducted research. Although trial
counsel admitted that he did not interview Fred Flippo, he indicated that he did not interview
Fred Flippo based upon his discussions with the Petitioner, the sworn testimony of Glen
Flippo from the preliminary hearing, and his discussions with the Petitioner’s previous
counsel and Investigator Rainey.

       The post-conviction court found that “it was reasonable for [trial counsel] to assume
that there was a factual basis for the plea.” Although the Petitioner has shown that trial
counsel did not interview Fred Flippo, he has not carried his burden to show that such a


                                               -8-
decision was deficient. Based on what trial counsel knew when he advised the Petitioner to
accept the plea, there was no reason for trial counsel to believe that Fred Flippo would testify
that he had given the Petitioner permission when the Petitioner himself said that he cut down
the trees without permission. See Howell, 185 S.W.3d at 326 (holding that reviewing courts
should evaluate the case by looking through the perspective that counsel had at that time to
determine the reasonableness of counsel’s actions). Furthermore, “[t]he reasonableness of
counsel’s actions may be determined or substantially influenced by the [petitioner’s] own
statements or actions.” Strickland, 466 U.S. at 691. Here, the Petitioner told trial counsel
that he did not have permission when he cut down the trees. Additionally, trial counsel knew
that the Petitioner had told Investigator Rainey that he did not have permission. Based on
the Petitioner’s statements as well as Glen Flippo’s sworn testimony, it was reasonable for
trial counsel to believe that neither owner of the property had given the Petitioner permission
to cut down the trees. Therefore, the Petitioner has failed to prove that trial counsel
performed deficiently by not interviewing Fred Flippo.

        As to the second prong, the Petitioner asserts that he suffered prejudice because trial
counsel testified that, had Fred Flippo given the Petitioner permission to cut the trees, trial
counsel would not have advised the Petitioner to accept the plea. However, the standard for
an ineffective assistance claim in the context of a guilty plea requires a showing of “a
reasonable probability that, but for counsel’s errors, [the Petitioner] would not have pleaded
guilty and would have insisted on going to trial.” Calvert, 342 S.W.3d at 486. As the trial
court pointed out, the Petitioner did not testify at his post-conviction hearing. Moreover, the
Petitioner also failed to allege in his petition that, had trial counsel interviewed Fred Flippo
before the plea, he would not have pleaded guilty and instead would have insisted upon going
to trial. Because the record is silent as to what the Petitioner would have done had trial
counsel chosen to interview Fred Flippo, the Petitioner has failed to prove the second prong
of his ineffective assistance of counsel claim. See Steven Mason v. State, No. 01C01-9610-
CC-00428, 1997 WL 602912, at *1 (Tenn. Crim. App. Sept. 30, 1997) (holding that, because
“the appellant did not testify, nor allege in his petition, that had he been so advised, he would
not have pled guilty and would have insisted on going to trial[,] [t]he appellant failed to
demonstrate how any defect in his counsel’s advice caused him prejudice in the
proceedings”).

        Moreover, the Petitioner presented Fred Flippo as a witness at the post-conviction
hearing as required when asserting ineffective assistance for failure to call a witness. See
Pylant, 263 S.W.3d at 869. However, the post-conviction court must determine whether that
witness is credible. Id. at 869-870. Here, the trial court did not find Fred Flippo’s testimony
to be credible, stating that “it is just beyond the pale of reason that you could see your son
arrested, and if you had given permission to take the thing that was at issue that you would
just stand there and not say anything about it. It is just not reasonable to believe that.”


                                               -9-
      Having failed to establish that trial counsel’s performance was deficient or that trial
counsel’s actions were prejudicial to the Petitioner, the Petitioner is not entitled to post-
conviction relief.

                                        Conclusion

      For the foregoing reasons, we affirm the judgment of the post-conviction court
denying relief.

                                          _________________________________
                                          JEFFREY S. BIVINS, JUDGE




                                            -10-
