                                                                                           01/26/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 3, 2017

                WILLIAM GREENE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
           Nos. 14-06056, 12-06396, I1300007   Glenn Ivy Wright, Judge
                      ___________________________________

                           No. W2017-00222-CCA-R3-PC
                       ___________________________________


The Petitioner, William Greene, appeals the denial of his petition for post-conviction
relief. The Petitioner pled guilty to aggravated assault, being a convicted felon in
possession of a firearm, and intentionally evading arrest in a motor vehicle. Pursuant to
the plea agreement, he received an effective three-year sentence. The Petitioner sought
post-conviction relief, asserting that he received ineffective assistance of counsel and that
his guilty plea was not voluntarily and intelligently entered because trial counsel failed to
inform him of a special condition waiving his ability to petition to suspend the remainder
of his sentence. Following a hearing, the post-conviction court denied relief. After
review of the record and applicable law, we affirm the post-conviction court’s denial of
relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Seth M. Segraves, Memphis, Tennessee, for the appellant, William Greene.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Dennis Johnson, Assistant
District Attorney General, for the appellee, State of Tennessee.



                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY
       The Petitioner pled guilty to aggravated assault, being a convicted felon in
possession of a firearm, and intentionally evading arrest in a motor vehicle. Pursuant to
the plea, he was sentenced to three years for aggravated assault, three years for the
firearm offense, and one year for evading arrest. The sentences were to run concurrently
with each other, but consecutively to an effective five-year sentence for two prior
convictions, in both of which he consented to a probation revocation. As a special
condition of the guilty plea, the Petitioner was barred from filing a petition to suspend the
remainder of his sentence.

                                   Guilty Plea Hearing

       At the plea hearing, the State proffered the factual basis for the Petitioner’s guilty
plea. The State asserted that on July 30, 2014, the Petitioner and another individual were
observed getting inside a vehicle by law enforcement officers. When one officer noticed
that the vehicle’s tags were expired, the officers attempted to stop the vehicle, but the
Petitioner fled at a high rate of speed and swerved at the officers’ car. When the officers
eventually caught the Petitioner, a gun was located in the vehicle near the Petitioner. The
individual in the car with the Petitioner claimed ownership of the gun.

        During an extensive colloquy, the Petitioner stipulated a factual basis for the plea,
testified that his attorney went over a petition for waiver of trial by jury with him, and
stated that he understood the rights he was waiving. The trial court went over each
charge and the respective sentence. Nothing was mentioned regarding the special
condition that the Petitioner would be prohibited from petitioning to suspend the
remainder of his sentence.

       The Petitioner testified that he was entering his plea freely and voluntarily and that
nobody was forcing him to do so. Although the Petitioner maintained that he was
innocent of the aggravated assault and firearm charges, he agreed that the evidence would
be sufficient to support the convictions and that entering a plea was in his best interest.
The trial court explained that although the Petitioner considered himself innocent of some
of the charges, the Petitioner was guilty under the eyes of the law once the court accepted
his guilty plea. The Petitioner testified that he understood. Accordingly, the trial court
found that the Petitioner entered his plea knowingly and voluntarily and accepted his
guilty plea.

        Each judgment included the special condition, which prevented the Petitioner from
petitioning to suspend the remainder of his sentence. The judgments were signed by the
trial judge, the prosecutor, and trial counsel. The Petitioner’s signature was not included
on any of the judgments.

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       The Petitioner filed a post-conviction petition, which was amended following the
appointment of counsel. On appeal, the Petitioner claims that because trial counsel failed
to inform the Petitioner of the special condition prior to the guilty plea, he did not receive
effective assistance of counsel and his plea was not entered into freely and voluntarily.

                                 Post-Conviction Hearing

        Trial counsel represented the Petitioner in this case and in the hearings addressing
the revocation of probation for his prior convictions. Trial counsel testified that he met
with the Petitioner “on a couple of occasions,” during which they reviewed discovery and
“discussed [the Petitioner’s] options and what offers were being made.” Trial counsel
testified that the first offer he received from the prosecution was five years to run
consecutively to the remaining sentences from the Petitioner’s prior convictions. The
only special condition mentioned at that time was that the Petitioner would not be able to
petition the court to suspend the entire sentence. This initial offer was corroborated by an
e-mail message between the prosecution and trial counsel. Trial counsel further testified
that he was able to negotiate with the prosecution to reduce the offer to three years to run
consecutively to the sentences resulting from the probation revocations. Nothing was
mentioned about petitioning for a suspension of the remainder of the sentence until the
day of the plea hearing.

       Trial counsel testified that when he was with the Petitioner in a back room going
over the plea agreement paperwork, the Petitioner asked if he could file for a “time cut.”
Trial counsel testified that this was the first time the Petitioner ever mentioned petitioning
to suspend his sentence. Trial counsel responded that although the prosecutor had not
specifically excluded a “time cut,” he did not want to ask the prosecutor about the term
because the prosecutor would refuse the term and include it in the agreement. Trial
counsel testified that he told the Petitioner that if the prosecutor said the Petitioner could
not petition for suspension of the remainder of his sentence, “then that’s the deal and [the
Petitioner’s] got to live with it.” Trial counsel testified that the Petitioner responded,
“[O]kay.”

       Trial counsel stated that as soon as he exited the back room with the Petitioner,
and before the plea was entered, the prosecutor told trial counsel that the Petitioner would
not be able to “file a time cut.” Trial counsel responded, “[O]kay.” Trial counsel stated
that he turned to the Petitioner, who was present when the statement was made, and said,
“[Y]ou can’t file a time cut.” The Petitioner again responded, “[O]kay.”

       The special condition was not mentioned during the plea hearing but was included
on the judgment, which was signed by trial counsel. Trial counsel testified that the
Petitioner signed the waiver of rights but did not sign the judgment sheet.
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        The Petitioner agreed that he asked trial counsel about a “time cut” when they
were reviewing the guilty plea paperwork. Petitioner testified that trial counsel said he
did not know if the Petitioner could petition for the suspension of the remainder of his
sentence and that he was not going to ask the prosecutor about it because the prosecutor
would refuse. The Petitioner testified that he knew he could not petition to suspend his
entire sentence but that he never knew he was prohibited from filing a petition to suspend
the remainder of his sentence. The Petitioner stated that he never would have agreed to
the plea if he had known he could not file a petition to suspend the remainder of his
sentence. On cross examination, the Petitioner testified that after leaving the back room,
trial counsel never told him about the special condition. He stated, “I would have
remembered if he told me because I wouldn’t have accepted the sentence.” He further
testified that the prosecutor never told the Petitioner or trial counsel about the special
condition.

       The Petitioner also testified that he is a “changed individual.” He stated that he
had completed four of the five classes in which he was enrolled at the penal institution,
that he had had no write-ups, and that he had passed frequent drug screenings. To show
the Petitioner’s rehabilitation, the results from a recent drug screening and a letter of
recommendation from the Petitioner’s case manager in a program entitled Hope Works
were introduced into evidence.

        Following the hearing, the post-conviction court denied the petition for post-
conviction relief. The court held that the Petitioner did not meet his burden of showing
that trial counsel’s performance was deficient, noting that trial counsel indicated that he
reviewed the details of the plea with the Petitioner. The court also determined that the
guilty plea was entered into voluntarily, knowingly, and intelligently.

                                       ANALYSIS

       On appeal, the Petitioner argues that trial counsel provided ineffective assistance
by failing to inform him that he would be prohibited from petitioning to suspend the
remainder of his sentence as a condition to his guilty plea. The Petitioner also argues that
his plea was not voluntary and intelligent because the special condition was added after
the paperwork had been completed and signed. The State responds that the proof
presented at the post-conviction hearing established that trial counsel did inform the
Petitioner of the condition before the guilty plea was entered.

       To be granted post-conviction relief, a petitioner must establish that his conviction
or sentence is void or voidable due to the abridgement of any constitutional right. T.C.A.
§ 40-30-103. The petitioner has the burden of proving the allegations of fact by clear and
convincing evidence. Id. § 40-30-110(f); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
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2009). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Grindstaff, 297
S.W.3d at 216 (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)).
Factual findings made by the post-conviction court are conclusive on appeal unless the
evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465 (Tenn. 2010).
This court may not substitute its inferences for those drawn by the post-conviction court,
and “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
[post-conviction court].” Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).

                          I. Ineffective Assistance of Counsel

        The Sixth Amendment to the United States Constitution and article I, section 9 of
the Tennessee Constitution guarantee the accused the right to effective assistance of
counsel. To prevail on a claim for ineffective assistance, a petitioner must prove “that
counsel’s performance was deficient and that the deficiency prejudiced the defense.”
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). “Failure to establish either deficient performance or prejudice
necessarily precludes relief.” Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011).

       To demonstrate deficiency, a petitioner must show “‘that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment.’” Id. (quoting Strickland, 466 U.S. at 687). A petitioner “‘must show
that counsel’s representation fell below an objective standard of reasonableness’ guided
by ‘professional norms’ prevailing at the time of trial.” Id. (quoting Strickland, 466 U.S.
at 688). On review, counsel’s performance is not to be measured by “20-20 hindsight.”
Id. at 277 (citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). Instead, there is a
“strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. (citing State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999)).
The court must presume that counsel’s acts might be “‘sound trial strategy,’” and
strategic decisions are “‘virtually unchallengeable’” when made after a thorough
investigation. Id. (quoting Strickland, 466 U.S. at 689).

       To establish prejudice, “a petitioner must establish ‘a reasonable probability that,
but for counsel’s unprofessional errors, the results of the proceeding would have been
different.’” Id. (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. In the context of a
guilty plea, the focus is “‘on whether counsel’s constitutionally ineffective performance
affected the outcome of the plea process.’” Calvert v. State, 342 S.W.3d 477, 486 (Tenn.
2011) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). A petitioner “‘must show that

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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.’” Id. (quoting Hill, 474 U.S. at 59).

       Claims of ineffective assistance of counsel in post-conviction petitions are
regarded as mixed questions of law and fact. Grindstaff, 297 S.W.3d at 216. Factual
findings made by the post-conviction court are reviewed de novo with a presumption of
correctness, unless the evidence preponderates against the court’s factual findings. Id.
The post-conviction court’s conclusions of law, however, are reviewed under a purely de
novo standard with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001).

        Here, the Petitioner argues that trial counsel’s performance was deficient because
trial counsel failed to inform him of the special condition barring him from petitioning to
suspend the remainder of his sentence. Trial counsel testified in the post-conviction
hearing that he told the Petitioner that if the prosecution asked for the special condition,
“then that’s the deal and [the Petitioner’s] got to live with it,” to which the Petitioner
responded, “[O]kay.” Later on, in the presence of the Petitioner, the prosecution told trial
counsel that the Petitioner could not “file a time cut.” Trial counsel turned to the
Petitioner and relayed the message, to which the Petitioner again responded, “[O]kay.”
Although the Petitioner testified that he was never told by trial counsel that the special
condition would be part of the guilty plea, the post-conviction court accredited trial
counsel’s testimony over the Petitioner’s testimony by denying the petition for post-
conviction relief.

        We note that all special conditions to a plea agreement should be announced
during the plea colloquy. If a special condition is important enough to be included in the
judgment, we see no justification for not explaining the special condition to a defendant
during the plea colloquy. The trial court here expressed reservation about allowing a
defendant to waive his right to petition the court to suspend the remainder of his sentence.
A trial judge must be informed of all special conditions to a guilty plea at the time of the
plea colloquy. The record is unclear as to when the special condition was added to the
judgment. It is clear, though, that the better practice of announcing the special condition
during the plea colloquy was not followed. However, the post-conviction court
accredited trial counsel’s testimony that the Petitioner was informed of the special
condition prior to entering his guilty plea, and the evidence does not preponderate against
this finding. Accordingly, the Petitioner has not established that trial counsel failed to
inform the Petitioner about the special condition to his plea agreement.

      Because the Petitioner has failed to show deficiency in trial counsel’s
performance, he is not entitled to relief, and we need not reach the issue of prejudice. See

                                           -6-
Felts, 354 S.W.3d at 277. Thus, we conclude that trial counsel was not ineffective in his
representation of the Petitioner’s guilty plea.

                            II. Voluntariness of Guilty Plea

        The United States Supreme Court has held that the Due Process Clause of the
United States Constitution requires a guilty plea to be entered knowingly, voluntarily, and
intelligently. Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). The standard for
evaluating whether a plea was entered into knowingly and voluntarily is “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. 24, 31 (1970) (citations
omitted). To determine whether a guilty plea was voluntary and intelligent, the court
must look to the totality of the circumstances. State v. Turner, 919 S.W.2d 346, 353
(Tenn. Crim. App. 1995); see Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim.
App. 1990). In making this determination, the court looks 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) (citation omitted).

        The Petitioner argues that he did not enter his guilty plea voluntarily and
intelligently because he was not aware of the special condition until after he signed the
paperwork. The fact that the Petitioner had reviewed and signed the paperwork before
learning of the special condition is not determinative. Trial counsel testified that he
informed the Petitioner that if the prosecution wanted to include the special condition,
“then that’s the deal,” to which the Petitioner responded, “[O]kay.” In denying the
Petitioner’s petition for relief, the post-conviction court accredited trial counsel’s
testimony that the Petitioner was informed of the special condition before his guilty plea
was entered.

       The Petitioner also notes that only trial counsel signed the judgment form, which
included the special condition. However, the judgment form’s signature line explicitly
denotes that the Petitioner’s signature is optional. The fact that the Petitioner did not opt

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into signing the form does not preponderate against the evidence that the Petitioner was
aware of the special condition before he entered his guilty plea in open court.

       We again note that the better practice is to explain any special condition on the
judgment to a defendant in open court, but because Petitioner was aware of the special
condition before entering his guilty plea, we hold that his plea was entered voluntarily
and intelligently.

                                   CONCLUSION

       Based on the foregoing, we affirm the post-conviction court’s denial of the
Petitioner’s post-conviction petition.




                                               _________________________________
                                               JOHN EVERETT WILLIAMS, JUDGE




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