                                                                                          10/16/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 May 15, 2018 Session

        MARCUS DWAYNE TOWNSEND v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                    No. 2013-C-2084 Mark J. Fishburn, Judge


                             No. M2017-00117-CCA-R3-PC


The Petitioner appeals from the Davidson County Criminal Court’s denial of his post-
conviction petition related to his guilty plea convictions of two counts of rape of a child,
for which he is serving concurrent twenty-five-year sentences as a violent child rapist
with 100% service. On appeal, he contends that the post-conviction court erred in
denying his petition and argues that he received the ineffective assistance of counsel. We
affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and NORMA MCGEE OGLE, JJ., joined.

Michael Richard Meise (on appeal), Dickson, Tennessee; and Edward Herbert (at
hearing), Nashville, Tennessee, for the appellant, Marcus Dwayne Townsend.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Glenn R. Funk, District Attorney General; Tammy Meade, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       The Petitioner’s convictions pertain to sexual assaults of his stepdaughter. On
March 5, 2013, the then-thirteen-year-old victim disclosed to her mother that the
Petitioner had repeatedly forced her to perform oral sex on him between December 16,
2010 and October 31, 2012. The Petitioner was charged with six counts of aggravated
sexual battery and three counts of rape of a child. The evidence against the Petitioner
included a recording of a telephone call between the victim and the Petitioner in which
the Petitioner admitted he had committed the offenses. The call was arranged by a
Metropolitan Nashville law enforcement detective, who provided the recording
equipment and instructed the victim to confront the Petitioner about the relevant events
and to talk to him until he made an admission. By all accounts, the Petitioner was a
resident of California and was physically present in California when the call occurred.
The Petitioner did not consent for the call to be recorded.

        After the indictment was returned, counsel filed a motion to suppress evidence of
the recorded call on the basis that the Petitioner had a reasonable expectation of privacy
at the time of the recording. The motion alleged that California was a statutory two-party
consent state in which both parties to a conversation must be aware and must consent to a
recording of their conversation. In its response to the motion, the State took the position
that only one party’s consent was necessary under California law if a recording was made
in order to obtain evidence for a prosecution of a violent felony. The State argued that
the offenses for which the Petitioner was under indictment in Tennessee were violent
felonies pursuant to California law. The court conducted a hearing on the motion to
suppress and took the matter under advisement.

       The parties reached a plea agreement before the court issued a ruling on the
motion to suppress. Thereafter, the Petitioner pleaded guilty to two counts of rape of a
child and was sentenced pursuant to the agreement to an effective twenty-five-year
sentence. At the guilty plea hearing, the following occurred:

               THE COURT: . . . [Y]ou’re charged with six counts of aggravated
       sexual battery, carrying sentences of 8 to 30 years in the state penitentiary
       and fines of up to $25,000, if [convicted] of any of those counts, you would
       have to serve whatever sentence was imposed at a hundred percent, you
       would not be a [sic] parole eligible. Also if convicted of that offense, any
       of those offenses, you would be required to be on lifetime community
       supervision and sex offender registry. You’re also charged in count seven
       through nine with rape of a child, carrying a sentence of 25 to 40 years in
       the state penitentiary, fines of up to $50,000, if convicted of those offenses,
       again, you would not be eligible for parole and you would have to be on
       lifetime community supervision and sex offender registry; is that your
       understanding, sir, of what you’re charged with and the possible
       punishment related to those offenses?

              [THE PETITIONER]: Yes, sir[.]

              ....

              THE COURT: I understand you’re going to be pleading guilty to
       three counts of rape of a child. You’re [going to] be – excuse me, it’s
       counts seven and nine, not eight. Two counts of rape of a child, you’re

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       [going to] be sentenced in each case to 25 years as a violent child rapist, so
       therefore the sentences will be at a hundred percent with no parole
       eligibility. Those sentences will run concurrently for a total effective
       sentence of 25 years. It says “sex offender registry,” but it’s lifetime
       community supervision and sex offender registry, those are two different
       things, do you understand that?

              [THE PETITIONER]: I don’t understand[.]

             THE COURT: Lifetime community supervision is almost like being
       on parole for the rest of your life.

              [THE PETITIONER]: Okay.

              ....

             THE COURT: Do you have any questions at all regarding what
       you’re charged with, the possible punishment related to those offenses or
       what you’re pleading to and the actual punishment being imposed:

              [THE PETITIONER]: No, sir.

        The Petitioner answered affirmatively when asked (1) if he had had the
opportunity to discuss in detail the facts and circumstances of the events which led to his
arrest, (2) if his attorney had explained the applicable law and the State’s evidence, (3) if
his attorney had discussed any available defenses and strategies, and (4) if his attorney
had answered any questions satisfactorily. The Petitioner responded negatively when
asked if he had any complaints about his attorney. The Petitioner indicated that he had
not been threatened or promised anything in exchange for his guilty pleas and that he was
pleading guilty because he was guilty.

        Counsel stated that he and the Petitioner had “gone over . . . extensively” the
change in the law relative to punishment for the charged offenses, noting that the
indictment alleged conduct occurring over the course of “several years.” Counsel stated,
“[T]his is what he wants to do.” Counsel stated that the Petitioner should receive pretrial
jail credit for time following his arrest in California. The court stated that the Petitioner
did not contest his extradition and was entitled to the credit.

       Thereafter, the Petitioner filed a timely pro se petition for post-conviction relief.
Appellate counsel was appointed, and an amended petition was filed. As pertinent to this
appeal, the Petitioner alleged that he received the ineffective assistance of counsel
because he was “misinformed that he would be subject to lifetime supervision and the sex

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offender registry for life,” that he was not informed that he would be sentenced as a
Range II offender and that he would not receive “good time credits,” that he was misled
about his release eligibility date, and that he was not informed that he would be required
to serve 100% of his sentence. The Petitioner alleged that his guilty plea was not
knowing and voluntary due to counsel’s shortcomings.

       At the post-conviction hearing, counsel testified that he was retained to represent
the Petitioner after the Petitioner was detained in California. He described the Petitioner
as having a high intelligence level. He said that he and the Petitioner made the decision
“not to bond out” in order to facilitate the plea negotiation process. He said that their
goal had always been to reach a plea agreement and that the evidence was “damning.”
He said that he and the Petitioner discussed the charges and the possible sentences,
including consecutive sentencing. Counsel said they discussed the fact that the
sentencing law had changed during the time period alleged in the indictment. Counsel
said he pursued a theory at one hearing that some of the offenses fell within the time
period in which the sentencing range was fifteen to twenty-five years, rather than the new
range of twenty-five to forty years. Counsel said they discussed the sex offender registry.
Counsel said that although he did not put “community supervision for life” on the written
plea agreement, he was “almost positive” they discussed this requirement.

       Counsel testified that he reviewed the discovery with the Petitioner, except that he
did not review the victim’s forensic interview with the Petitioner because the district
attorney’s policy was that the forensic interview had to be reviewed in the office.
Counsel said that the Petitioner had admitted his culpability and that “it wasn’t really a
case of who done it [sic].” Counsel said his practice in advising a person who was
charged with a sexual offense was to tell the person to be prepared to serve 100% of a
sentence. Counsel had no specific recollection but did not think he and the Petitioner
discussed behavioral credits.

       Counsel testified that the victim “came off extremely well in the forensic
interview” and that she was an “A-plus witness.” He said the recorded call, “basically
where [the Petitioner] admitted his involvement in this,” provided corroborating
evidence.

       Counsel testified that he filed a motion to suppress the recorded call in an effort to
obtain leverage in plea negotiations. He said that the use of “reverse phone calls” was the
subject of well-settled Tennessee law and that he moved for suppression based upon
California’s two-party consent law.

       Counsel testified that he did not attempt to speak with the victim for tactical
reasons and because he “felt like [he] knew what was going on.” Counsel said that once
the Petitioner admitted his culpability, counsel did not think it was necessary to speak to

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the victim and cause her to relive the relevant events. Counsel said he had information
that the victim and the victim’s mother did not want a harsh sentence, which he hoped
would be useful in settling the case. He said that two assistant district attorneys had been
involved in the case and that the second one, who was the prosecutor with whom he
negotiated the plea agreement, thought that uncharged criminal conduct had occurred and
that she “stood firm” on a twenty-five year offer and had not made an offer involving a
plea to a lesser offense, such as aggravated sexual battery. Counsel said the Petitioner
did not want to subject the victim to a trial and “candidly admitted” his culpability.
Counsel said the Petitioner wanted to spend the least amount of time possible in jail.
Counsel said, “[T]his was a case for trying to get the best deal we could.”

       Counsel testified that the trial was scheduled for the Monday following the hearing
on the motion to suppress. Counsel said that he reviewed the plea agreement with the
Petitioner and that the Petitioner read the document. Counsel said that, during the guilty
plea hearing, the Petitioner asked the court about the community supervision for life
requirement and that the court seemed satisfied with the Petitioner’s understanding and
acceptance of the terms. Counsel said it had been the Petitioner’s decision to plead
guilty and that counsel did not make the decision. Counsel said that he would have been
prepared for a trial on the following Monday if the Petitioner had not pleaded guilty but
that “there was really no defense.” Counsel said he told the Petitioner that if the case
went to trial, consecutive sentencing was likely. Counsel said the Petitioner was
remorseful, “a pleasure to deal with,” and had family support.

       The Petitioner testified that he had never been arrested before this case. He said
he had a college degree in aircraft maintenance. He said he had been open with counsel,
whom he trusted and upon whose advice he felt he could rely. The Petitioner said that,
due to his lack of familiarity with criminal proceedings, he had not known many times
what to ask counsel. The Petitioner said that he asked numerous times for counsel to
contact the victim and the Petitioner’s wife, that counsel assured the Petitioner he would,
and that counsel never gave the Petitioner a reason why he had not.

       The Petitioner testified that around counsel’s third visit with him, counsel said he
had been talking with the prosecutor about a plea agreement for aggravated sexual battery
and an eight-year split confinement sentence. The Petitioner said counsel showed him a
sentencing chart which reflected an eight- to twelve-year sentence for aggravated sexual
battery, the range, and the release eligibility date. The Petitioner said counsel “didn’t
really break down any other specifics as far as mandatory or community supervision or
anything[.]” The Petitioner did not recall counsel ever mentioning community
supervision for life.

      The Petitioner testified that on the day of the guilty plea hearing, counsel advised
him of the twenty-five-year offer, which the Petitioner rejected. The Petitioner said that

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he asked counsel if counsel had spoken with the victim and the victim’s mother. The
Petitioner said he wanted counsel to investigate to see that the Petitioner was not the
“monster” that the charges might otherwise suggest. The Petitioner thought this might
help with the plea negotiations. The Petitioner said that he was later “called back over to
the courtroom,” where counsel advised him that he was going to have to sign the plea
agreement or “do life” because counsel had no defense to present and the prosecution
thought the Petitioner was a monster. The Petitioner said he told counsel he did not want
to sign the agreement. The Petitioner said he was prepared to go to trial and testify in his
own defense. The Petitioner said counsel had not explained, and the Petitioner had not
known, that he faced a sentence much greater than twenty-five years by going to trial.
The Petitioner said that the only part of the plea agreement he read was “‘100 percent,’
the rape, two counts of rape and the sex offender[.]” The Petitioner said he asked counsel
why 100% was required and that counsel said, “that’s what they’re offering you[.]” The
Petitioner said he asked counsel, “Do I still get my good time?” The Petitioner said
counsel raised his hands and said he did not know. The Petitioner said that he signed the
agreement with the thought of “being able to get good time and . . . to knock a 25-year
sentence down to at least 12 years with good behavior credits[.]” The Petitioner said that
he had not understood the full meaning of 100% as it regarded ineligibility for behavior
credits but that he had understood it meant he could not receive parole.

       The Petitioner testified that, during the guilty plea hearing, he had told the trial
court that he did not understand lifetime community supervision. The Petitioner said this
was the first time he had heard of lifetime community supervision. The Petitioner said
the court told him it was similar to the sex offender registry and to being on parole. The
Petitioner said he did not understand what the court meant about it being similar to parole
but that he told the court he understood because he “didn’t want to hold up the court
proceedings.” The Petitioner said he was not told he could reject what he had already
signed. He said that all he could think about was counsel’s statement that either he could
sign the plea agreement or “do life.” He said he did not fully understand the plea
agreement. He said that he would have chosen to go to trial if he had understood the
consequences of community supervision for life.

       When the prosecutor said on cross-examination, “Sir, you admitted you did it,” the
Petitioner responded, “I didn’t – I never made that admission.” When asked if he was
saying that the victim was lying, he said, “Yes.” On questioning by the court, the
Petitioner was asked about his acknowledgment at the guilty plea hearing that he sexually
assaulted the victim more than one time and was asked whether he would have denied the
offenses if he had gone to trial. The Petitioner responded, “Yes, sir, I would have denied
it.” He said he never told counsel the offenses had not occurred “[b]ecause we never
talked about it.” The Petitioner then said he told counsel that he had not done the things
with which he had been charged. He later clarified, “I didn’t deny sexual contact, but I
did deny the oral sex to my attorney and that’s why we never talked about it.”

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       The plea agreement and a transcript of the guilty plea hearing were received as
exhibits.

       The Petitioner acknowledged that he faced a sentence of 123 years at 100%. He
said he remembered the trial court’s advising him during the plea hearing that the court
would stop the proceedings for the Petitioner to confer with counsel if the Petitioner
requested. The Petitioner agreed he never asked to speak to counsel during the hearing.

       After receiving the evidence, the post-conviction court found that the Petitioner
had failed to prove by clear and convincing evidence that he received the ineffective
assistance of counsel. This appeal followed.

       Post-conviction relief is available “when the 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.” T.C.A. § 40-30-103 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court’s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

        The Petitioner contends that he received the ineffective assistance of counsel. He
argues that counsel was ineffective in (1) advising him to plead guilty before the court
ruled on the motion to suppress and the motion to dismiss, (2) failing to preserve a
certified question of law relative to the suppression issue, and (3) failing to advise him
that he would be ineligible for sentence reduction credits. Some of the issues the
Petitioner has raised on appeal were not raised in the post-conviction court. To the extent
he contends on appeal that counsel was ineffective for advising him to plead guilty before
the court ruled on the motion to suppress, for advising him to plead guilty before the
court ruled on the motion to dismiss, and for failing to preserve the suppression issue as a
certified question of law, these theories were not raised in the post-conviction court. Our
consideration of them is waived. See, e.g., State v. Rowland, 520 S.W.3d 542, 545 (Tenn.
2017) (“Generally, issues raised for the first time on appeal are waived.”); State v.
Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996). We will consider the merits of
the remaining issue.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the

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defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
standard to an accused’s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

       The Petitioner’s claim is that due to counsel’s ineffective assistance, his guilty
plea was not knowingly and voluntarily entered. The Supreme Court has concluded that
a guilty plea must represent a “voluntary and intelligent choice among the alternative
courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31
(1970). A trial court must examine in detail “the matter with the accused to make sure he
has a full understanding of what the plea connotes and of its consequence.” Boykin v.
Alabama, 395 U.S. 238, 243-44 (1969); see Blankenship v. State, 858 S.W.2d 897, 904
(Tenn. 1993). Appellate courts examine the totality of circumstances when determining
whether a guilty plea was voluntarily and knowingly entered. State v. Turner, 919
S.W.2d 346, 353 (Tenn. Crim. App. 1995). A guilty plea is not voluntary if it is the
result of “[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or
blatant threats.” Boykin, 395 U.S. at 242-43; see Blankenship, 858 S.W.2d at 904. A
petitioner's representations and statements under oath that his guilty plea is knowing and
voluntary create “a formidable barrier in any subsequent collateral proceedings [because]
[s]olemn declarations . . . carry a strong presumption of verity.” Blackledge v. Allison,
431 U.S. 63, 74 (1977).


                                            -8-
        The post-conviction court found that the Petitioner, a college graduate, understood
that he was pleading guilty and would serve twenty-five years at 100% without the
opportunity for parole. The court found that the Petitioner and counsel discussed the
evidence, the sentencing ranges, the possibility of consecutive sentencing, and the
possibility the Petitioner might remain in prison for the rest of his life. The court found
that the transcript of the guilty plea hearing reflected the following: (1) that the Petitioner
acknowledged that counsel had satisfactorily answered questions, (2) that the Petitioner
stated he did not have questions regarding the charges and the punishment, (3) that the
Petitioner understood his plea and had the opportunity to clarify any uncertainties,
including any uncertainties regarding “good time,” (4) that the court explained
community supervision for life and gave the Petitioner an opportunity to ask questions or
withdraw his plea if he did not accept the condition. The post-conviction court made the
following findings:

               Based on the evidence of the Petitioner’s intelligence, the testimony
       provided by Petitioner and Counsel, and the excerpts of the plea colloquy,
       the court is satisfied that Petitioner knew what he was pleading to, the
       consequences of the plea and had the opportunity to ask questions when he
       was uncertain. Petitioner clearly stated that he understood what he was
       pleading to and that he was satisfied with Counsel’s representation during
       the plea colloquy. Petitioner also did not hesitate to ask questions about
       community supervision for life when given the opportunity, and could have
       asked questions about “good time” credit as well if he so desired. It is clear
       from the record that Petitioner weighed the possible outcomes of a plea or
       trial, and, although begrudgingly, knowingly decided to take the 25 year
       plea with no possibility of parole instead of risking a possible cumulative
       life sentence at trial.

              Further, Counsel testified that his strategy from the outset of the case
       was to obtain a plea deal for Petitioner because the evidence in the case was
       strong and Petitioner was facing possible consecutive sentencing if
       convicted at trial. There is no evidence before the court that Counsel did
       not reasonably investigate the case and make the decision to advise
       Petitioner to take the plea based on this investigation. There is also ample
       evidence before the court that Counsel made every effort to explain to
       Petitioner the consequences of his plea versus the consequences of going to
       trial. The Court finds by clear and convincing evidence that Petitioner
       made a knowing and voluntary plea, and Counsel was not deficient in his
       representation of Petitioner prior to the guilty plea.




                                             -9-
The court concluded that no analysis of the prejudice prong of Strickland was necessary
because the Petitioner had failed to establish that trial counsel’s performance had been
deficient.

       The record reflects that counsel discussed the facts, the charges, and the possible
punishment with the Petitioner. Counsel filed a motion to suppress as a strategic measure
designed to elicit a plea offer, and when the prosecutor extended an offer, counsel
advised the Petitioner of the offer, its terms, the strength of the State’s evidence, and the
sentencing exposure. Counsel reviewed the offer with the Petitioner and advised him that
he was likely to spend the rest of his life in jail if he were convicted at a trial. Counsel
did not recall whether he and the Petitioner discussed behavioral credits, although he
thought they had not. Counsel said, though, that his practice when advising a person who
was charged with a sexual offense was to tell the person to be prepared to serve 100% of
a sentence. The Petitioner claimed that he asked counsel if he would receive “good time”
if he accepted the plea agreement and that counsel had responded that he did not know.
The Petitioner’s post-conviction hearing testimony reflects that he was aware the plea
agreement called for sentences to be served at 100%. At the guilty plea hearing, the trial
court questioned the Petitioner about his understanding of the agreement and the
voluntariness of his plea. The court provided the Petitioner with the opportunity to ask
questions, and the Petitioner took advantage of the opportunity by asking questions to
clarify his understanding of community supervision for life. The court advised the
Petitioner that his sentences would be served at 100% with no parole eligibility. The
Petitioner did not ask the court about the possibility of accruing behavioral credits, and
the court did not address behavioral credits.

        The evidence does not preponderate against the post-conviction court’s findings
that the Petitioner was advised of the terms and consequences of his pleas, that he
weighed the advantages of accepting the plea agreement against the risks of going to trial
and facing the possibility of serving a sentence that exceeded his lifetime, and that he
knowingly and voluntarily pleaded guilty. The record supports the court’s determination
that the Petitioner failed to establish clear and convincing evidence of counsel’s deficient
performance. The record also supports the court’s determination that the plea was
knowingly and voluntarily entered, which means, in turn, that the Petitioner failed to
prove he was prejudiced by counsel’s alleged deficient performance. He is not entitled to
relief on this basis.

       In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.


                                             _____________________________________
                                              ROBERT H. MONTGOMERY, JR., JUDGE

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