        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 28, 2012

             ROGER HATHAWAY, JR. v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Knox County
                        No. 96280    Steven W. Sword, Judge




               No. E2011-02175-CCA-R3-PC - Filed September 20, 2012


Petitioner, Roger Hathaway, Jr., pleaded guilty to attempted aggravated arson, attempted
second degree murder, and possession of a firearm during the commission of a felony and
received a total effective sentence of 12 years to be served at 30 percent. Petitioner appeals
the trial court’s denial of his petition for post-conviction relief, in which he alleged that he
received the ineffective assistance of counsel and that his plea was not voluntarily and
knowingly entered. After a careful 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 Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and C AMILLE R. M CM ULLEN, J., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Roger Hathaway.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald,
Assistant District Attorney General, for the appellee, the State of Tennessee.

                                          OPINION

Facts

       The following is a summary of the stipulated facts as stated by the prosecutor at
Petitioner’s plea submission hearing:
        On March 21, 2009, at approximately 11:30 p.m., a man known as “Rog” drove sisters
Lekeya Allen and Latoya Allen from the home of a mutual friend to the Morningside
Apartments in a 1980’s model dark blue Chevy Caprice. Latoya Allen later identified
Petitioner in a photo lineup as the person who drove them home. The women told Petitioner
that they would pay him gas money when they arrived at the apartments; however, when they
arrived, they went inside and did not take Petitioner any money. Petitioner went to their
apartment, and their mother, Debra Allen, answered the door. He asked where the women
were and demanded his money, and Ms. Allen told him that the women were inside. He then
“got angry, smacked his fist into his hand several times, and said he would be back and that
he had something for them.”

        The following day, at approximately 7:30 p.m., the same man, whom Latoya Allen
later identified as Petitioner, knocked on the Allens’ door. The women told Andre Emery,
the father of Lekeya Allen’s children, to answer the door and tell him that they were not there
because they owed him money. When Mr. Emery opened the door, a young black male
wearing a white hat and white sunglasses was standing there holding a match. Petitioner
dropped the match and the door, the floor, and the ceiling caught on fire. He then ran toward
the exit to the building. The women and Lekeya’s child crawled out of the apartment
window, and Mr. Emery ran after Petitioner.

       Several witnesses in the courtyard of the building saw a black male wearing a white
hat and white sunglasses run from the building toward the parking lot. They then saw smoke
coming from the building. The witnesses saw the man seated in the passenger seat of an
older dark blue car. He fired several shots at the witnesses from the car. A seven-year-old
victim suffered a gunshot wound to his leg.

      Police officers found four shell casings in the parking lot, near the exit, where the
witnesses reported they saw the man flee. Investigators viewed a security video, which
showed a 1980’s model dark blue Chevy Caprice drive into the complex on the night of
March 21, 2009, at approximately 11:24 p.m. with multiple occupants inside. It left the
parking lot at 11:35 p.m. The video taken on March 22, 2009, showed the same vehicle enter
the complex at approximately 7:48 p.m. The driver was wearing a white shirt and a white
hat.

       On March 31, 2009, police officers stopped a blue Chevy Caprice. Petitioner was
detained for driving on a suspended license. In the trunk of Petitioner’s vehicle, police
officers found a Winchester .380 bullet. Ballistics testing determined that the bullet was
consistent with shell casings recovered from the scene, and that the bullet and shell casings
were created by the same bunter instrument around the same time.



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Post-conviction hearing

        At the evidentiary hearing, Petitioner testified that his trial counsel was court-
appointed to represent him. He met with counsel prior to entering his guilty pleas. Petitioner
testified that trial counsel reviewed with him some “minor issues” concerning the State’s
discovery response, but he “did [not] receive all of [his] paperwork.” Trial counsel hired an
investigator to assist in his case. Petitioner testified that he was not aware that witnesses
claimed that he was at the apartment complex on the day of the incident and that he had been
there the previous night. He was aware that shell casings were found at the scene and was
aware of the results of the ballistics testing. He was also aware that there was a security
video of the apartment complex parking lot, but he did not view it.

        Petitioner testified that trial counsel hand delivered a letter to him three days prior to
his plea submission hearing. Petitioner testified that trial counsel “misadvised [him] of the
[sentencing] ranges that [he] was facing,” and that trial counsel did not “fully” explain the
charges against him and the penalties. He testified that the State initially offered a sentence
of 14 years to be served at 30 percent. Petitioner told trial counsel that if the sentence was
12 years, he would sign, but he changed his mind because of “certain circumstances that [he]
. . . wasn’t comfortable with.” He ultimately signed the plea agreement and a waiver of his
rights because trial counsel was “pressuring” him and “inflicting bad faith upon [him].”
When he signed the plea agreement, Petitioner “thought it was a good deal” and that
“everything was going right.” Petitioner later felt pressured into signing it, and he testified
that he felt he did not have a choice because trial counsel advised him that he “was in major
danger of being sentenced to 20 years.” Petitioner believed that the minimum sentence he
could receive was 15 years to be served at 100 percent.

        Petitioner testified that trial counsel advised him that the State’s case had “strong
spots” and “weak spots” and that it was circumstantial. Petitioner testified that after he
pleaded guilty, the Assistant District Attorney stated the facts underlying the offenses, and
Petitioner asked trial counsel if he could withdraw his guilty pleas, but trial counsel told him
that “it was too late.” Petitioner was concerned by the prosecutor’s statement that the
eyewitnesses stated that the perpetrator wore a hat and sunglasses. Petitioner explained that
a hat and sunglasses would have prevented witnesses from positively identifying him as the
perpetrator. He testified that trial counsel had not previously told him about the witnesses’
statements that the perpetrator wore sunglasses. Petitioner also testified that trial counsel did
not explain to him the elements of the offenses for which he was charged and that if he had
known, he would not have accepted the plea offer. He testified that he did not know that he
was pleading guilty to attempted second degree murder and that trial counsel should have
filed a motion to sever the offenses.



                                               -3-
        Petitioner acknowledged on cross-examination that the trial court inquired about the
voluntariness of his pleas and that he had an opportunity to tell the trial court that he was
being pressured by counsel. Petitioner testified that he felt “[n]o pressure from the [trial
court] judge.” Petitioner also acknowledged that he signed a waiver of rights form, but he
testified he “never read that form.”

       Petitioner’s trial counsel did not testify at the post-conviction hearing.

Analysis

       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 issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction 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).

        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.” Powers v.
State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the 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, 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 v. State, 960 S.W.2d 572, 580 (Tenn. 1997).

      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 the issues of deficient performance by counsel and possible prejudice to the

                                              -4-
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 v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
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).

        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, 88 L. Ed. 2d 203 (1985) (citing
North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)). As stated
above, in order to successfully challenge the effectiveness of counsel, 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. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 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, 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; see also Walton v.
State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        When analyzing a guilty plea, we look to the federal standard announced in Boykin
v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and the State standard
set out in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on other grounds by
Tennessee Rule of Criminal Procedure 37(b) and Tennessee Rule of Appellate Procedure
3(b). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin, the United States
Supreme Court held that there must be an affirmative showing in the trial court that a guilty
plea was voluntarily and knowingly given before it can be accepted. Boykin, 395 U.S. at 242.
Similarly, our Tennessee Supreme Court in Mackey required an affirmative showing of a
voluntary and knowing guilty plea, namely, that the defendant has been made aware of the
significant consequences of such a plea. Pettus, 986 S.W.2d at 542.

       A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial
court must determine if the guilty plea is “knowing” by questioning the defendant to make

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sure he fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S.W.2d at 904.

        At the conclusion of the evidentiary hearing, the post-conviction court found that
Petitioner “for the most part” was a credible witness and that trial counsel did not testify to
contradict Petitioner’s testimony. Based on Petitioner’s testimony at the post-conviction
hearing, the transcript of the plea submission hearing, and the letter written by trial counsel
to Petitioner, the post-conviction court found that there was adequate communication
between counsel and Petitioner and that trial counsel “accurately reported the evidence” to
Petitioner. The court also found that Petitioner was aware of what the State’s witnesses
would have testified to at trial, and the court did not find credible Petitioner’s statement that
he was not aware that witnesses had stated that the perpetrator wore sunglasses. The post-
conviction court further found that if Petitioner and his trial counsel had not discussed that
fact, that it would not have made a difference.

        The post-conviction court found that trial counsel accurately stated the potential
penalties Petitioner would face if he was found guilty of the crimes. The court also found
that trial counsel did not pressure Petitioner to accept the pleas based on the letter from trial
counsel to Petitioner, in which trial counsel stated, “Based on my 21 years of criminal
defense experience, I’d encourage you to at least consider it.” Additionally, the post-
conviction court found that Petitioner

        did raise concerns at the plea [hearing] multiple times about the
        representation. Ironically, I think that cuts against him in his argument here
        because what happened when [Petitioner] expressed concerns about the plea
        deal, he calls the judge to do the proper thing, and that is, to inquire further
        about what your concerns were, and I find that [the trial court] did, in fact,
        do the proper thing and ask [Petitioner] repeatedly what [he] wanted to do,
        if [he] wanted to withdraw this plea, which is the right thing to do. And I
        have no doubt that [the trial court] would have done that had [Petitioner] at
        least once stated that [he] did not want to accept this deal.

       The post-conviction court concluded that the evidence was clear and convincing that
Petitioner was not pressured to accept the plea agreements and that trial counsel provided
effective assistance. The court further concluded that Petitioner was not prejudiced by
counsel’s representation and that there was a reasonable probability that the result would
have been the same had trial counsel done what Petitioner claims counsel did not do.

      Although trial counsel did not testify at the post-conviction hearing, the evidence
shows that trial counsel met with Petitioner prior to Petitioner’s plea hearing and that he

                                               -6-
discussed with Petitioner the evidence against him and communicated the charges against
him and the possible sentences. Petitioner testified at the post-conviction hearing and at the
plea submission hearing that he did not know that he was charged with attempted second
degree murder; however, the letter from trial counsel to Petitioner clearly states that
Petitioner was charged with attempted second degree murder. In the letter, sent two months
prior to Petitioner’s guilty pleas, trial counsel also evaluated the evidence against Petitioner,
stated the potential sentences, and made a recommendation to Petitioner to consider
accepting the plea agreement.

       The transcript of the guilty plea hearing clearly shows that the trial court apprised
Petitioner of his rights and the rights he was waiving by entering his guilty pleas. The trial
court allowed Petitioner opportunities to withdraw his guilty pleas. At the outset of the plea
submission hearing, Petitioner presented to the trial court a document which apparently
purported to indicate other individuals were involved in or responsible for the crimes. The
following exchange was then had between Petitioner and the court:

        THE COURT:             Well, you know, of course, I don’t know all the facts
                               around this. You know, I’m here today to take a plea.
                               You know, you’re pleading to a couple of serious
                               charges here. You know, it’s up to you whether or not
                               you want to – you want to accept this – take this plea
                               or not.

        [PETITIONER]:          Yes, sir. I didn’t understand that I was taking a plea
                               deal to attempted second-degree murder. I thought it
                               was attempted aggravated arson. My lawyer didn’t
                               inform me –

        THE COURT:             Well, it is attempted aggravated arson, and also
                               attempted second-degree murder, and they’re going to
                               run concurrent with each other.

        [PETITIONER]:          My lawyer didn’t inform me of the attempted murder.
                               I just found it out when [the Assistant District
                               Attorney] started talking about it.

        THE COURT:             [Petitioner], you know, my function here today is to
                               either – is to either take this plea from you or not and
                               –



                                               -7-
        [PETITIONER]:          My –

        THE COURT:             I mean, that’s it. Now, if you want – if you don’t want
                               to take the plea and you want to go to trial, we’ll do
                               that.

        ....


        THE COURT:             You know, it sounds to me, [Petitioner], like you’ve
                               got some serious questions about whether or not you
                               want to plead here, and I’m reluctant to take a plea
                               from somebody who has serious questions. Maybe
                               you need to – maybe you need to think about this [ ] a
                               little more.

        [PETITIONER]:          I’ll take – I’ll take the plea deal, sir.

        THE COURT:             Excuse me.

        [PETITIONER]:          I’ll take the plea deal.

        THE COURT:             You want to go forward with this?

        [PETITIONER]:          Yes, sir.

        At the plea submission hearing, Petitioner testified that he did not graduate high
school but that he had obtained his GED while in custody. Petitioner responded that he
understood his rights and that he was waiving those rights freely and voluntarily. Petitioner
responded that no one had forced him, threatened him, or pressured him in any way to accept
the plea agreement. Petitioner responded that he was not satisfied with trial counsel’s
services. Trial counsel then proposed to the trial court that Petitioner be appointed new
counsel and not enter the pleas, and counsel stated that he “was surprised [Petitioner] got an
offer like [that], given the state of the evidence.” Petitioner responded, “I just said I wasn’t
satisfied with my lawyer. I didn’t say I don’t want to take the plea deal.” The trial court then
gave Petitioner another opportunity to decline the plea offer and stated, “[Petitioner], do you
want to go through with this plea or not?” Petitioner again responded that he wanted to
accept the plea offer:




                                               -8-
        [PETITIONER]:         I take the deal, sir. I just – I just said I wasn’t satisfied
                              with my lawyer. I mean, I keep it, you know, honest.
                              But, sir, I take –

        THE COURT:            Well, it’s not a question of whether or not you
                              personally like the individual. The question is
                              whether or not they’ve performed – they’ve performed
                              services on your behalf that are – that are appropriate
                              –

        [PETITIONER]:         Then – then –

        THE COURT:            – and sounds to me like he has.

        [PETITIONER]:         Yes, sir.

        We conclude that Petitioner has failed to show that trial counsel’s performance was
deficient or that he was prejudiced by counsel’s alleged deficient performance. Petitioner
has not shown that he would not have pleaded guilty and insisted on going to trial had trial
counsel informed him of the only evidence that he claims counsel did not communicate, that
witnesses stated that the perpetrator wore sunglasses. Finally, we conclude that the evidence
does not preponderate against the trial court’s finding that Petitioner was not pressured by
trial counsel to accept the plea agreement. Petitioner is not entitled to relief.

                                      CONCLUSION

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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