        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs at Jackson September 1, 2015

                 MORGAN MOORE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Sumner County
                     No. CR1522014     Dee David Gay, Judge


                No. M2015-00139-CCA-R3-PC – Filed October 6, 2015
                         _____________________________

Petitioner, Morgan Moore, entered guilty pleas to first degree murder and criminal
responsibility for first degree murder for his involvement in the murders of his parents.
He received concurrent sentences of life in prison. He thereafter filed a timely petition
for post-conviction relief alleging that trial counsel failed to properly inform him of the
nature and consequences of his guilty pleas, specifically, the length of a life sentence, and
that as a result, his guilty pleas were not entered knowingly, intelligently, and voluntarily.
Following an evidentiary hearing, the post-conviction court denied relief, and this appeal
follows. Upon review, we affirm the judgment of the post-conviction court.

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

ROGER A. PAGE, J., delivered the opinion of the Court, in which JAMES CURWOOD WITT,
JR., and TIMOTHY L. EASTER, JJ., joined.

Micah Cagney Ketron, Gallatin, Tennesse (at evidentiary hearing); and Christopher V.
Boiano, Nashville, Tennessee (on appeal), for the Appellant, Morgan Moore.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Lawrence Ray Whitley, District Attorney General; and Lytle Anthony
James and Tara Wyllie, Assistant District Attorneys General, for the Appellee, State of
Tennessee.


                                         OPINION

                                          I. Facts

                            A. Guilty Plea Submission Hearing
       At the February 19, 2013 guilty plea submission hearing, the State advised the
court that petitioner was charged in a four-count indictment with two counts of first
degree murder, one count of theft of property valued at greater than $10,000 but less than
$60,000, and arson. Pursuant to the plea agreement, petitioner would plead guilty to one
count of first degree murder, one count of criminal responsibility for first degree murder,
and the remaining counts of the indictment would be dismissed. The two sentences were
to be served concurrently. The State set forth the following factual basis for the pleas:

       [Petitioner], along with Chase Vinson, conspired to kill his parents. On that
       day – the days leading up to that, there were text messages between
       [petitioner] and [Vinson] where they were trying to get – they termed it “a
       piece” for this murder. On the night of the incident, right up to the incident,
       [petitioner] was exchanging text messages with [Vinson] just right up to the
       time of the murder.

              After [petitioner] committed – according to his own statement that
       he gave to the Sumner County Sheriff‟s Department the day after the
       murder, his statement was that he had taken a .38 caliber revolver; that he
       had shot his father, then handed the revolver to [Vinson] and said,
       [“][F]inish this;[”] and [Vinson] then killed his mother. He said the reason
       for that was that he could not kill his mother.

        The trial court inquired into petitioner‟s background and health then began the
plea colloquy. During the colloquy, petitioner indicated that he understood the contents
of the petition to enter guilty pleas; that he understood the sentences to be imposed and
the sentence alignment; and that he was entering his guilty pleas freely and voluntarily,
without coercion. The court asked about petitioner‟s current medications and asked if
those prescriptions affected petitioner‟s decision or his understanding of the proceedings,
to which petitioner answered in the negative. The trial court placed on the record its
perception of petitioner, stating that petitioner was responsive, well-oriented, and alert
and that he understood the questions and understood the terms of the plea agreement.
Petitioner agreed that trial counsel had offered him sound advice and good legal
representation. Petitioner acknowledged that he was waiving the constitutional rights
attendant to a jury trial and that he was entering the guilty pleas because he was, in fact,
guilty.

                         B. Post-Conviction Evidentiary Hearing

       Petitioner timely filed a petition for post-conviction relief, and the post-conviction
court appointed counsel, who filed an amended petition. The post-conviction court held
an evidentiary hearing on January 13, 2015, at which petitioner and trial counsel testified.

                                             -2-
       Petitioner stated that trial counsel represented him from the outset of the
proceedings, which originated in juvenile court. When petitioner was arrested, he was
seventeen years old and had completed the ninth grade. Although he enrolled in GED
classes, he did not earn his certificate.

       Petitioner acknowledged that trial counsel provided him with the discovery
information supplied by the State but stated that trial counsel did not review with him the
evidence against him. However, he admitted that through reading the discovery, he
learned of the evidence against him, including text messages that were sent between him
and his co-defendant, his personal journal, and a statement that his sister gave to law
enforcement officers. He was also privy to reports from the Sumner County Sheriff‟s
Department, which he reviewed.

        Petitioner explained that trial counsel advised him that a life sentence was a term
of twenty-five years or until petitioner died. He said that had he known that a life
sentence was at least fifty-one years, he would not have agreed to the plea offer. He said,
“That‟s stupid for a man to do something like that; to throw away his life like that.” At
the time of the plea, petitioner understood the difference between a life sentence and life
in prison without the possibility of parole, but he thought that he would be parole-eligible
after twenty-five years. Petitioner asserted that trial counsel informed him in the same
manner “every time that [they] talked.” He claimed that he was influenced to plead
guilty because he “thought at the time if [he] only had to do 25 years, if maybe then [he]
could actually get out, you know . . . that‟s a chance to get out.” Petitioner said that trial
counsel explained that the possible consequence of rejecting the plea offer was that the
trial court would align the life sentences consecutively.

       Petitioner further contended that the medication that he was taking at the time of
the guilty plea submission hearing caused him to misunderstand his plea. He agreed that
the doctor who performed his mental health evaluation found him competent to stand
trial.

       Upon questioning by the post-conviction court, petitioner agreed that at the plea
submission hearing, he responded affirmatively when asked if trial counsel had reviewed
with him the elements of the crimes, the possible punishments for the crimes, and the
evidence against him. He agreed that he answered that he had all of the information
necessary to make the decision to plead guilty. However, petitioner claimed that these
statements were not true based on his lack of understanding at the time. When asked if
petitioner told the psychiatrist that he wanted to plead guilty in exchange for concurrent
sentence alignment, petitioner agreed that he “preferred to serve less time.”

       Trial counsel testified next and stated that he had practiced law for thirty-one
years, primarily in the field of criminal defense. His representation of petitioner began in
                                             -3-
juvenile court, and trial counsel estimated that he met with petitioner twelve to fifteen
times during the course of the proceedings. Trial counsel provided petitioner with the
discovery in his case and reviewed, specifically, petitioner‟s journal entry, which trial
counsel opined would be used by the jury to establish premeditation. Petitioner was
“adamant” about going to trial, and trial counsel told him that they would thoroughly
review the discovery about a month prior to trial. However, petitioner changed his mind
prior to that and decided to plead guilty. Before trial counsel would pursue a guilty plea,
he insisted on having petitioner evaluated by a mental health professional to establish
petitioner‟s competency. After trial counsel confirmed that petitioner was competent to
stand trial and to decide whether to plead guilty, trial counsel continued to negotiate a
plea offer. Trial counsel said that petitioner was motivated to plead guilty based upon a
facsimile from the State that indicated it would seek consecutive alignment of the
sentences if the case proceeded to trial and petitioner was found guilty.

       Trial counsel stated that he explained to petitioner that because he committed the
offenses while he was a juvenile, life in prison without the possibility of parole was not a
potential sentence for him.1 The only sentence that could be imposed was a life sentence,
which was sixty years. Trial counsel told petitioner that after serving eighty-five percent
of his sentence, or fifty-one years, he would be eligible for parole. Trial counsel
emphasized that he had this conversation with petitioner on more than one occasion. He
said that the only time he mentioned “twenty-five years” was when he explained to
petitioner that if he were convicted of second degree murder instead, the range of
punishment would be fifteen to twenty-five years to be served at 100% release eligibility.
Trial counsel recalled that petitioner never expressed hesitation about entering his guilty
plea after he decided to do so.

                            C. Post-Conviction Court‟s Ruling

      The post-conviction court ruled on the petition from the bench following the
evidentiary hearing. It made the following findings:

               At the hearing today, we have introduced five exhibits. I have read
       through each exhibit thoroughly[;] . . . I have considered the testimony of
       [petitioner], and I have considered the testimony of [trial counsel].

       ....



       1
           In Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the Supreme Court held that “the
Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility
of parole for juvenile offenders.” (emphasis added).
                                             -4-
       In weighing the testimony of [petitioner] and [trial counsel], I find
the testimony of [trial counsel] to be credible and believable. This Court
makes a . . . finding of fact based on the testimony of [trial counsel] . . . .

....

        The facts show that [trial counsel] was appointed shortly after the
first appearance in juvenile court, and he represented him about 17 months
through the plea in criminal court . . . .

[Trial counsel] met with him a total of 12 to 15 times . . . . He had several
phone calls from [petitioner] while he was in . . . detention . . . . He got all
the discovery . . . .

....

       [Petitioner] was adamant that he wanted a trial with [trial counsel].
And [trial counsel] said that they would gear up before the trial. And [trial
counsel] noticed that the defendant‟s attitude changed when he showed him
the [fax] from General James saying that they would go for consecutive life
sentences.

        I credit the testimony of [trial counsel] when he said that they had
extensive conversations about life and the time, that they were not
concerned about life without parole; they were concerned about consecutive
life sentences.

       He said that he went over with [petitioner] specifically that a life
sentence is 60 years at 80 [sic] percent, which equals 51 years. And this
conversation occurred on more than one occasion. And this is borne out by
what is stated and transcribed in the guilty plea and completely contrary to
everything that [petitioner] testifies to from the witness stand today.

       [Trial counsel] never mentioned 25 years in a first degree murder
conviction. He did mention it in the context of the range for second degree
murder, 15 to 25. He said that, all the way up to the plea, after he got Dr.
Caruso on board to confirm his own conclusion, what he believed about the
mental condition, that he was competent and knew what he was doing.
After he had that confirmed, he said he never had any second thoughts
about the plea. I find those to be the findings of fact in this particular case.

       I find the following conclusions of law . . . .
                                      -5-
       [Petitioner] has not carried the burden of proving his allegations of fact by
       clear and convincing evidence. To the contrary, the reverse has been
       proven by clear and convincing evidence, that the lawyer‟s performance
       was not deficient, but he did a very good job in representing a young man
       that was charged with the most serious crime that anybody could ever come
       before this Court on, the killing of his own mother and father.

       ....

               But somehow when [petitioner] goes to the penitentiary, he changes
       his mind. And what he said today is not truthful and not credible.
       Therefore, the Court finds that the petitioner has not carried the burden of
       proof in the petition for post-conviction relief. The Court further finds that
       [trial counsel] did a very good job in representing [petitioner] in an
       extremely difficult situation. Therefore, the petition for post-conviction
       relief is dismissed.

       Petitioner now appeals the denial of post-conviction relief.

                                    II. Analysis

       Petitioner raises two issues for our review: (1) whether trial counsel rendered
ineffective assistance in failing to adequately advise petitioner of the length of a life
sentence and (2) whether petitioner‟s guilty plea was entered knowingly, intelligently,
and voluntarily.
                               A. Standard of Review

       To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of
proving his or her factual allegations by clear and convincing evidence. Tenn. Code Ann.
§ 40-30-110(f). “„Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.‟”
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)).

       Appellate courts do not reassess the post-conviction court‟s determination of the
credibility of witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing
R.D.S. v. State, 245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of
witnesses is a matter entrusted to the post-conviction judge as the trier of fact. R.D.S.,
                                            -6-
245 S.W.3d at 362 (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The post-
conviction court‟s findings of fact are conclusive on appeal unless the preponderance of
the evidence is otherwise. Berry v. State, 366 S.W.3d 160, 169 (Tenn. Crim. App. 2011)
(citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d
615, 631 (Tenn. Crim. App.1997)). However, conclusions of law receive no presumption
of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001)).
As a mixed question of law and fact, this court‟s review of petitioner‟s ineffective
assistance of counsel claims is de novo with no presumption of correctness. Felts v.
State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

       The Sixth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and article I, section 9 of the Tennessee
Constitution require that a criminal defendant receive effective assistance of counsel.
Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose,
523 S.W.2d 930 (Tenn. 1975)). When a petitioner claims that he received ineffective
assistance of counsel, he must demonstrate both that his lawyer‟s performance was
deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984); Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007) (citation
omitted). It follows that if this court holds that either prong is not met, we are not
compelled to consider the other prong. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn.
2004).

       To prove that counsel‟s performance was deficient, petitioner must establish that
his attorney‟s conduct fell below an objective standard of “„reasonableness under
prevailing professional norms.‟” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202
S.W.3d 106, 116 (Tenn. 2006)). As our supreme court held:

      “[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.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial
counsel‟s performance, this court “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).

                                           -7-
        To prove that petitioner suffered prejudice as a result of counsel‟s deficient
performance, he “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). “A „reasonable probability is a probability sufficient to
undermine confidence in the outcome.‟” Id. (quoting Strickland, 466 U.S. at 694). As
such, petitioner must establish that his attorney‟s deficient performance was of such
magnitude that he was deprived of a fair trial and that the reliability of the outcome was
called into question. Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463
(Tenn. 1999)).

                                     B. Issues

                1. Trial Counsel Failed to Inform Petitioner of the
                   Nature and Consequences of His Guilty Plea

        The post-conviction court considered the testimony of petitioner and trial counsel
and credited trial counsel‟s testimony that he fully informed petitioner that a life sentence
was sixty years in length but that petitioner would be parole-eligible after serving eighty-
five percent of the sentence, or fifty-one years. The post-conviction court further credited
trial counsel‟s testimony that he only mentioned “twenty-five years” in relation to a
conviction for second degree murder. The post-conviction court noted, in further support
of the factual findings, that petitioner was adamant about going to trial until he learned
that the State intended to seek consecutive alignment of his life sentences in the event of
a jury conviction. Accordingly, petitioner changed his mind and sought to enter guilty
pleas. The evidence does not preponderate against these findings of fact. We will not
reassess the post-conviction court‟s determination of the credibility of witnesses, which is
a matter entrusted to the post-conviction court as the finder of fact. Dellinger, 279
S.W.3d at 292; R.D.S., 245 S.W.3d at 362. Petitioner is not entitled to relief on this claim.

                  2. Petitioner‟s Plea Was Not Knowingly, Intelligently,
                                  and Voluntarily Entered

       A guilty plea must be entered knowingly, voluntarily, and intelligently. Lane, 316
S.W.3d at 562; see North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v. Alabama,
395 U.S. 238, 242-44 (1969). If a plea is not knowingly, voluntarily, and intelligently
entered, the guilty plea is void because appellant has been denied due process. Lane, 316
S.W.3d at 562 (citing Boykin, 395 U.S. at 243 n.5). To make such a determination, the
court must examine “whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.” Id. Courts should
consider the following factors when ascertaining the validity of a guilty plea:


                                            -8-
      (1) the defendant‟s relative intelligence; (2) the defendant‟s familiarity with
      criminal proceedings; (3) the competency of counsel and the defendant‟s
      opportunity to confer with counsel about alternatives; (4) the advice of
      counsel and the court about the charges and the penalty to be imposed; and
      (5) the defendant‟s reasons for pleading guilty, including the desire to avoid
      a greater penalty in a jury trial.

Id. (quoting Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006)). “[A] plea is not
voluntary if it results from „[i]gnorance, incomprehension, coercion, terror, inducements,
[or] subtle or blatant threats.‟” Id. at 563 (quoting Blankenship v. State, 858 S.W.2d 897,
904 (Tenn. 1993)). Thus, the transcript of the plea colloquy must affirmatively show that
a defendant‟s decision to plead guilty was both voluntary and knowledgeable. Id. The
trial court must ensure that the defendant entered a knowing and intelligent plea by
thoroughly “„canvass[ing] the matter with the accused to make sure that he has a full
understanding of what the plea connotes and of its consequences.‟” Id. (quoting
Blankenship, 858 S.W.2d at 904).

        To ensure that defendants‟ guilty pleas are voluntarily, knowingly, and
intelligently entered, Rule 11 of the Tennessee Rules of Criminal Procedure sets forth, in
pertinent part, the requirements for guilty pleas:

      Before accepting a guilty or nolo contendere plea, the court shall address
      the defendant personally in open court and inform the defendant of, and
      determine that he or she understands, the following:

              (A)    The nature of the charge to which the plea is offered;

              (B)    the maximum possible penalty and any mandatory minimum
                     penalty;

              (C)    if the defendant is not represented by an attorney, the right to
                     be represented by counsel-and if necessary have the court
                     appoint counsel-at trial and every other stage of the
                     proceeding;

              (D)    the right to plead not guilty or, having already so pleaded, to
                     persist in that plea;

              (E)    the right to a jury trial;

              (F)    the right to confront and cross-examine adverse witnesses;

                                                  -9-
              (G)    the right to be protected from compelled self-incrimination;

              (H)    if the defendant pleads guilty or nolo contendere, the
                     defendant waives the right to a trial and there will not be a
                     further trial of any kind except as to sentence;

              (I)    if the defendant pleads guilty or nolo contendere, the court
                     may ask the defendant questions about the offense to which
                     he or she has pleaded. If the defendant answers these
                     questions under oath, on the record, and in the presence of
                     counsel, the answers may later be used against the defendant
                     in a prosecution for perjury or aggravated perjury; and

              (J)    if the defendant pleads guilty or nolo contendere, it may have
                     an effect upon the defendant‟s immigration or naturalization
                     status, and, if the defendant is represented by counsel, the
                     court shall determine that the defendant has been advised by
                     counsel of the immigration consequences of a plea.

Tenn. R. Crim. P. 11(b)(1).

        Rule 11 also requires that the trial court ascertain that the plea is “voluntary and is
not the result of force, threats, or promises,” other than those contained in the plea
agreement. Tenn. R. Crim. P. 11(b)(2). In addition, Rule 11 requires the trial court to
inquire “whether the defendant‟s willingness to plead guilty results from prior
discussions between the district attorney general and the defendant or the defendant‟s
attorney.” Id. Finally, the trial court must confirm that there is a factual basis for the
plea. Tenn. R. Crim. P. 11(b)(3). Tennessee case law has further refined the
requirements of a plea colloquy to include informing a defendant and ensuring that he
understands that different or additional punishment may result from his guilty plea due to
prior convictions or other factors and that the resulting conviction may be used for
enhancement purposes in any subsequent criminal actions. Lane, 315 S.W.3d at 564
(citing Howell, 185 S.W.3d at 331).

       As noted above, the trial court conducted a thorough plea colloquy during which
petitioner indicated that he understood the contents of the petition to enter guilty pleas;
that he understood the sentences to be imposed and the sentence alignment; and that he
was entering his guilty pleas freely and voluntarily, without coercion. The court
confirmed that petitioner‟s current medications did not affect petitioner‟s decision or his
understanding of the proceedings. Petitioner agreed that trial counsel had offered him
sound advice and good legal representation. Petitioner acknowledged that he was
waiving the constitutional rights attendant to a jury trial and that he was entering the
                                             -10-
guilty pleas because he was, in fact, guilty. The trial court scrupulously protected
petitioner‟s constitutional rights in accepting his guilty pleas.

       In addition, trial counsel assured that petitioner was competent to enter the guilty
pleas. Even after having been previously subjected to a mental health evaluation, trial
counsel sought and secured a second evaluation due to petitioner‟s change of heart from
“adamantly” insisting on a trial to desiring to enter a guilty plea.

        Moreover, petitioner‟s testimony at the post-conviction hearing was in direct
conflict with his testimony at the guilty plea hearing. “A petitioner‟s testimony at a
guilty plea hearing „constitute[s] a formidable barrier‟ in any subsequent collateral
proceeding because „[s]olemn declarations in open court carry a strong presumption of
verity.‟” Bruce S. Rishton v. State, No. E2010-02050-CCA-R3-PC, 2012 WL 1825704, at
*17 (Tenn. Crim. App. May 21, 2012) (quoting Blackledge v. Allison, 431 U.S. 63, 74
(1977)). In this case, the post-conviction court credited petitioner‟s testimony during the
guilty plea hearing over his testimony at the post-conviction hearing. In sum,

       [t]he evidence does not preponderate against the findings of the post-
       conviction court. It appears the petitioner is suffering from a classic case of
       „Buyer‟s Remorse,‟ in that he is no longer satisfied with the plea for which
       he bargained. A plea, once knowingly and voluntarily entered, is not
       subject to obliteration under such circumstances.

Robert L. Freeman v. State, No. M2000-00904-CCA-R3-PC, 2002 WL 970439, at *2
(Tenn. Crim. App. May 10, 2002). The record before us, together with the post-
conviction court‟s accrediting the testimony of trial counsel and specifically discrediting
that of petitioner, belies petitioner‟s contention that his guilty pleas were not knowingly,
intelligently, and voluntarily entered.

                                     CONCLUSION

       Based on the record as a whole, the briefs of the parties, and the applicable legal
authorities, we affirm the judgment of the post-conviction court.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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