         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs February 3, 2004

                DARRYL D. JACKSON v. STATE OF TENNESSEE

           Post-Conviction Appeal from the Criminal Court for Davidson County
                       No. 2001-D-2147    Cheryl Blackburn, Judge



                   No. M2003-00730-CCA-R3-PC - Filed February 18, 2004


On November 2, 2001, the Davidson County Grand Jury returned a three count indictment against
the Petitioner, Darryl D. Jackson. He was charged with possession of a schedule VI controlled
substance with intent to sell or deliver, possession of a schedule II controlled substance, and driving
on a suspended license. On January 22, 2002, he pled guilty to possession of a schedule VI
controlled substance with intent to sell or deliver. The other two charges were dismissed. The
appellant received a two year and one month sentence and was given a recommendation for the
Department of Correction’s Boot Camp program. On October 4. 2002, the petitioner filed a petition
for post-conviction relief and an amended petition on November 14, 2002. A hearing was held on
February 18, 2003 and on March 3, 2003, the trial court entered an order denying the petitioner’s
request for post-conviction relief. In this appeal, the appellant argues that the post-conviction court
erred in finding that his guilty plea was entered knowingly and voluntarily and was not the result of
trial counsel’s ineffective assistance. After a review of the record, we affirm the judgment of the trial
court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES, and THOMAS T.
WOODALL, JJ., joined.

Richard D. Dumas, Jr., Nashville, Tennessee, for the appellant, Daryl D. Jackson.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Victor
S. Johnson, District Attorney General; and Roger Moore, Assistant District Attorney General, for
the appellee, State of Tennessee.
                                             OPINION


                                        Factual Background


        On July 25, 2001, the petitioner was arrested for possession of a schedule VI controlled
substance with intent to sell or deliver in violation of Tennessee Code Annotated section 39-17-417
(a)(4)(g)(1). In a three-count indictment returned by the Davidson County Grand Jury, the petitioner
was charged with possession of a controlled substance with intent to sell or deliver in violation of
Tennessee Code Annotated section 39-17-417; possession of a controlled substance in violation of
Tennessee Code Annotated section 39-17-418; and driving with a cancelled license in violation of
Tennessee Code Annotated section 55-50-504. On November 20, 2001, at the petitioner’s
arraignment, he pled not guilty and was appointed counsel. On January 22, 2002, the petitioner
entered into a plea agreement negotiated by his trial counsel and the State. Pursuant to the
agreement, the petitioner pled guilty to Count 1 and was fined $2,000 and sentenced to two years and
one month to be served at 30%. The sentence was ordered to be served consecutive to a four-year
sentence the petitioner received in a Division IV case for a total effective sentence of six years and
one month. The petitioner also received a recommendation that he be assessed for TDOC’s Special
Incarceration Unit, commonly known as Boot Camp. The remaining charges against the petitioner
were dismissed.



                              Post-Conviction Standard of Review

         The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issue raised, we will afford those findings of fact the weight of a jury verdict, and this court
is bound by the court’s findings unless the evidence in the record preponderates against those
findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138,
147 (Tenn. Crim .App. 1997). This Court may not reweigh or re-evaluate the evidence, nor substitute
its inferences for those drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762,
766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are reviewed under a
purely de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                              Effectiveness of Assistance of Counsel

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the


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petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.
2d 674 (1984). “Because a petitioner must establish both prongs of the test to prevail on a claim of
ineffective assistance of counsel, failure to prove either deficient performance or resulting prejudice
provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580.

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

         Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins, 911 S.W.2d at 347. This Court may not second-guess a
reasonably based trial strategy, and we cannot grant relief based on a sound, but unsuccessful,
tactical decision made during the course of the proceedings. See id. However, such deference to the
tactical decisions of counsel applies only if counsel makes those decisions after adequate preparation
for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Turning to the specific allegations made by the petitioner, we note that 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 the principle
that guilty pleas be voluntarily and intelligently made. See Hill v. Lockhart, 474 U.S. 52, 56,106 S.
Ct. 366, 369 (1985) (citing North Carolina v. Alford, 400 U.S. at 31, 91 S. Ct. 160, 164 (1970)).
As stated supra, in order to successfully challenge the effectiveness of counsel, the petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. See Baxter, 523 S.W.2d at 936. Under Strickland v. Washington, 466 U.S. at 687,
104 S. Ct. at 2064, the petitioner must establish (1) deficient representation and (2) prejudice
resulting from the deficiency. However, 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.” Hill, 474 U.S.
at 59, 106 S. Ct. at 370; see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        The petitioner testified at the evidentiary hearing that he remembered getting an initial offer
from the District Attorney of 18 months at 30%. He stated that his trial counsel indicated to him that
the eighteen months would be served day for day and that counsel recommended that he not take the
offer. The petitioner further testified that trial counsel proposed Boot Camp and indicated that the
Boot Camp program was 120 days. The petitioner then stated that he took the State’s offer of two
years and one month with a recommendation for Boot Camp. He indicated that he was aware that


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he would be recommended to Boot Camp and was not guaranteed that he would be placed there.
The petitioner was found not eligible for the Boot Camp program because he had two prior felonies
in 1994 and 1997. The petitioner alleges that had he known that he was not even eligible for Boot
Camp he would have taken the State’s initial offer of eighteen months.

        Trial counsel testified that he was aware of the prior felonies, but based on information
received from the petitioner, that he had not served his prior sentence to expiration, he suggested
Boot Camp as a possible option. Counsel relied on the petitioner’s criminal history as provided by
the petitioner and because he operated under the belief that petitioner’s prior sentence had not
expired, he suggested that one possible argument, albeit a weak one, they could make was that under
the TDOC guidelines, the petitioner was eligible for Boot Camp if they argued that the term “served”
in the guidelines meant not completed. Even though counsel had access to the State’s discovery
and was aware of the prior convictions and the requirements of Boot Camp, he relied on the
petitioner’s claims that he had not completed his sentences. For these reasons, we find that trial
counsel’s representation was not deficient.

         The trial court found that the petitioner admitted that he believed that the eighteen month
offer was a day for day offer. With the petitioner operating under the belief that the eighteen month
offer would be served day for day, he received a lighter sentence than he anticipated with his two-
year and one-month sentence at 30%, the Range I Standard Offender percentage. The petitioner
actually benefitted from the fact that he was categorized as a Range I offender for his sentence when
in fact he falls under the Multiple Offender categorization. Based on these findings, the petitioner
has failed to demonstrate by clear and convincing evidence that he was prejudiced by counsel’s
alleged deficient conduct.

                                            Conclusion

       Based on the foregoing, we affirm the judgment of the trial court.



                                              ___________________________________
                                              JERRY L. SMITH, JUDGE




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