         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 12, 2005

                JASON DWIGHT KING v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Chester County
                      No. 04-4501, 03-221    Roy B. Morgan, Jr., Judge



                    No. W2005-00507-CCA-R3-PC - Filed August 18, 2005


The petitioner, Jason Dwight King, pled guilty to DUI, driving on a suspended license, felony
evading arrest, reckless endangerment, and reckless driving. The petitioner pled nolo contendere to
theft over $1,000 and theft under $500. As a result, he received an effective sentence of two-and-a-
half (2 1/2) years. The petitioner filed a pro se petition for post-conviction relief alleging ineffective
assistance of counsel. After a hearing, the post-conviction court dismissed the petition. We affirm
the dismissal of the petition.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
NORMA MCGEE OGLE, JJ., joined.

Richard L. Finney, Jackson, Tennessee for the appellant, Jason Dwight King.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Jerry Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the
appellee, State of Tennessee.


                                               OPINION

        The appellant was indicted in June of 2003 by the Chester County Grand Jury on charges of
DUI, driving on a suspended license, felony evading arrest, reckless endangerment, reckless driving,
theft over $1,000 and theft under $500. The petitioner was apparently driving a vehicle when he was
approached by an officer who suspected the petitioner was driving under the influence. After he was
approached by the officer, the petitioner fled in his vehicle, nearly struck another vehicle, drove
through a yard, got stuck, exited the vehicle and ran into the woods.
        On December 1, 2003, the petitioner pled guilty to DUI, driving on a revoked license, felony
evading arrest, reckless endangerment by use of a deadly weapon, and reckless driving. The
petitioner pled nolo contendere to both theft charges. As a result of the pleas, the petitioner was
sentenced to an effective sentence of two-and-a-half (2 1/2) years.

       Subsequently, the petitioner filed a pro se petition for post-conviction relief, alleging that he
received ineffective assistance of counsel concerning his guilty plea. The post-conviction court
appointed counsel, and an amended petition was filed. A hearing was conducted on the petition.

          At the hearing, the petitioner testified that trial counsel did not adequately advise him of the
evidence against him. The petitioner felt that “[trial] counsel should have, you know, directed [him]
in a - - in a better direction than she did, and [he] might not have took [sic] that plea bargain if [he’d]
have seen [his] evidence.” The petitioner claimed that he knew there was a statement from a
potential witness who lived near a church and that there was also fingerprint evidence being held by
the police department, but that trial counsel never followed up on the witness. The petitioner also
claimed that trial counsel never gave him a copy of the discovery or the fingerprint evidence, but he
later admitted on cross-examination that he had in fact seen the discovery. He also claimed that he
never saw the police report; however, he stated that at some point prior to the plea hearing, the police
report was read to him by someone.

         The petitioner testified that he was aware that at least two (2) officers, Kevin Roder and
Donnie Davis, would testify against him, but that he was not aware that Officer Ricky Hardy would
testify. Further, the petitioner claimed that his trial counsel failed to interview any witnesses and
never discussed possible defenses. The petitioner claimed that he asked trial counsel to file a motion
for speedy trial and that she failed to do so. As a result, the petitioner claimed he had to file his own
motion for speedy trial in general sessions court and in circuit court. There was never a ruling on
the motion and the petitioner testified that he made the choice not to pursue the motion prior to the
plea hearing.

        The petitioner also stated that he did not know the facts of the case when he pled guilty.
However, he admitted that he knew to what the officers would testify because the warrant was read
to him at some point. The petitioner further agreed that the trial court had advised him of his rights
at the guilty plea hearing and that he told the trial court at the plea hearing that he was satisfied with
trial counsel’s representation. The petitioner also admitted that he swore under oath to portions of
his petition for post-conviction relief which were not true.

        Trial counsel testified at the hearing on the post-conviction petition. At the time of the post-
conviction hearing, trial counsel was an assistant public defender and had been licensed to practice
law for three-and-a-half (3 1/2) years. Trial counsel had handled over fifty (50) cases prior to being
appointed to represent the petitioner.

        Trial counsel explained that, on the day of arraignment, the State made an offer of three (3)
years as a Range I offender, even though the petitioner was classified as a Range II offender. Trial


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counsel testified that she relayed the offer to the petitioner, and that he was not interested in the offer.
At that time, she reviewed everything in the State’s file pursuant to their “open file” policy. Trial
counsel visited the petitioner at the Department of Correction and reviewed everything in the file.
Trial counsel stated that the petitioner was on parole at the time of the offenses and that she
explained to him that he would most likely be required to serve consecutive sentences because he
was on parole at the time of the offenses.

        Trial counsel testified that she explained many things to the petitioner, including the charges
against him, his status as a Range II offender, and the evidence against him. Trial counsel stated that
the petitioner did not identify any potential alibi witnesses. Further, trial counsel stated that although
the police report listed fingerprints as a form of evidence against the petitioner, the file did not
contain any fingerprint evidence. Trial counsel informed the post-conviction court that it was the
petitioner’s idea to plead guilty to DUI and the driving-related offenses, but to plead nolo contendere
to the theft charges, because he felt the evidence was not as strong. Trial counsel thought that the
petitioner completely understood the difference between a nolo contendere plea and a guilty plea.
Trial counsel also felt that the petitioner never wanted the case set for trial.

      At the conclusion of the hearing, the trial court dismissed the post-conviction petition,
making the following findings of fact and conclusions of law:

                Of course, counsel is well aware of the burden of proof in a post-conviction
        matter. I reviewed what’s [sic] been filed in this case and the entire record which
        includes the original record also. I specifically reviewed the transcript which was
        furnished by the court reporter regarding the guilty plea of December 1st, 2003. The
        Court notes that it’s [sic] not been established sufficiently to grant post-conviction
        noting the following.

                There’s been no basis here regarding the denial of a preliminary hearing in
        this case which would justify post-conviction being granted.

                 This Defendant was actually in TDOC. I believe that I had to go do a go-get
        to get him back here to face these charges, him having been indicted in June of ‘03
        and was brought back by a go-get order signed September of ‘03. Although he did
        have a Motion for Speedy Trial filed, he was pleading guilty within six months or
        less of his indictment after making court appearances and made more than one court
        appearance, and that was getting him back from TDOC. I also note that on the date
        he entered his plea, in reviewing Exhibit 2, the transcript, he was specifically advised
        of his rights which includes on Page 5 of this Exhibit 2 the Court speaking:

                “Now you understand, [petitioner], that you would have a right to proceed on
        with a not guilty plea, and by doing so, you would have a right to demand a jury trial
        and a speedy trial.”



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                It was specifically addressed on that occasion. I went through the rest of his
        rights, and the Defendant acknowledged he understood those rights, and he
        acknowledged that he understood he was waiving those rights which specifically
        included a speedy trial.

               As far as ineffective assistance of counsel, it appears that considering the
        standard required in representation, there’s been no violation. Discovery was filed,
        conferences were had, opportunities were given, and this was thoroughly discussed
        with the Defendant regarding his satisfaction with counsel in open court on the date
        he pled guilty, and he acknowledged his satisfaction.

        After reviewing the record further, it’s quite clear that the Defendant was so aware of what
was going on, he opted, and the judgment so indicates, to even differentiate between pleas. He
entered guilty pleas to some things and nolo contendere pleas to others and was advised by the Court
of the consequences of entering those pleas, and that’s evidenced by Exhibit 2.

        For those reasons stated, the Court notes that the petition should be dismissed.

        Following the dismissal of the petition for post-conviction relief, the petitioner filed a timely
notice of appeal.

                                               Analysis

                                Post-Conviction Standard of Review

        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). 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 trial 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). All questions
concerning the credibility of the witnesses, the weight and value to be given their testimony, and the
factual issues raised by the evidence are to be resolved by the trial judge, not the appellate courts.
See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d at 578-79. 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).


                                  Ineffective Assistance of Counsel


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        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
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). “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. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

       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. Crim. App. 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).

        On appeal, the petitioner argues that trial counsel was ineffective because she failed to
effectively communicate with the petitioner. Further, the petitioner argues that he suffered prejudice
by entering into an unknowing and unintelligent guilty plea.


         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 (1985) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970). As
stated above, 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. 668,
694 (1984), 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; see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).


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       When analyzing a guilty plea, we look to the federal standard announced in Boykin v.
Alabama, 395 U.S. 238 (1969), and the State standard set out in State v. Mackey, 553 S.W.2d 337
(Tenn. 1977). 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.

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

        The transcript from the plea hearing herein reveals that the trial court carefully and correctly
informed the petitioner regarding his constitutional rights, and specifically asked if he understood
that he was waiving those rights by pleading guilty. The petitioner responded in the affirmative.
Further, he stated that he understood the plea agreement and the significance of the guilty plea
hearing, and was entering his guilty plea voluntarily. The petitioner also acknowledged that he was
satisfied with counsel’s representation. Accordingly, we determine that the petitioner’s guilty plea
was knowing and voluntary.

         The petitioner claims that trial counsel was ineffective because she failed to effectively
communicate with the petitioner. Specifically, the petitioner complains that he did not understand
the evidence against him and was not made aware of any “alternative courses of action he could
undertake other than the plea.” Further, the petitioner complains that trial counsel failed to discuss
any discovery materials, including physical evidence, witness names and statements. The record
does not preponderate against the finding that trial counsel was effective. Implicit in the post-
conviction court’s findings and conclusions was that the court accredited the testimony of trial
counsel rather than that of the petitioner. As stated previously, credibility determinations are
entrusted to the trial court. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The post-conviction
court accepted as true the testimony of trial counsel concerning the circumstances of the plea and the
conversations leading up to that decision, including the fact that trial counsel met with the petitioner
and discussed not only the discovery materials, but the plea offer and the ramifications of pleading
guilty. Trial counsel testified that it was the petitioner’s idea to plead guilty to the driving related
offenses, but to plead nolo contendere to the theft offenses because he felt that the evidence was not
as strong and that the petitioner knew the difference between a guilty plea and a nolo contendere plea
because of past guilty pleas. Further, trial counsel testified that the petitioner never wanted his case
set for trial. The record not only supports the determination of the post-conviction court, but the
petitioner has also failed to establish that he suffered any prejudice as a result of trial counsel’s
representation and failed to show that there was a reasonable probability that but for trial counsel’s
alleged errors he would not have pleaded guilty and would have gone to trial. This issue is without
merit.

                                             Conclusion


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For the foregoing reasons, we affirm the judgment of the trial court.


                                      ___________________________________
                                      JERRY L. SMITH, JUDGE




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