        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs July 9, 2013

                   LEWIS YOUNG v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                      No. 10-01646     W. Mark Ward, Judge


              No. W2012-01057-CCA-R3-PC - Filed September 30, 2013


The petitioner, Lewis Young, appeals the denial of his petition for post-conviction relief,
arguing that he received ineffective assistance of counsel at trial. Following our review, we
affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J ERRY L. S MITH, J., joined.

Anna R. Smith, Memphis, Tennessee, for the appellant, Lewis Young.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Pamela Fleming, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       On January 31, 2011, the petitioner pled guilty to aggravated rape, aggravated
kidnapping, and robbery in exchange for an effective sentence of forty years to be served at
100%. On August 29, 2011, the petitioner, pro se, submitted an unnotarized petition for
post-conviction relief. The petitioner then filed a notarized petition on January 4, 2012.

       Because neither a transcript of the post-conviction evidentiary hearing nor a transcript
of the guilty plea hearing is included in the record on appeal, we glean the following facts
from the post-conviction court’s order entered on April 11, 2012, denying the petitioner’s
petition:
              An evidentiary hearing was conducted on April 9, 2012. A transcript
       of the guilty plea proceeding was made Ex. 1 to the hearing. The guilty plea
       hearing was conducted before [the trial judge] on January 31, 2011. The
       petitioner testified during the hearing and was questioned thoroughly by the
       judge as to whether he understood his legal rights. As for the range of
       punishment, [the trial judge] advised the [p]etitioner, among other things, that
       as a persistent offender, his 40 year sentence was the minimum sentence
       authorized by law. He also explained, at length, that there was no parole for
       the sentence which must be served at 100%. Finally, the transcript reveals the
       following question and answer: “Are you entering this plea freely and
       voluntarily without any threats or pressures or promises? A: (by petitioner)
       Yes, sir.”

              [The petitioner] testified in the post-conviction evidentiary hearing. He
       was represented by [counsel]. He said he had been on psychiatric medication
       since he was 15 years of age. He was on medication at the time he entered his
       plea, but not at the time he committed the crime. He has a prior diagnosis of
       paranoid schizophrenia. He testified further that he told his attorney about
       being on medication. He testified further that at the time of his plea he was not
       fully explained the consequences of entering the plea.

             He further testified that his lawyer advised him that if he went to trial
       he might receive more time in prison. He further claimed that he did not
       understand anything the judge told him in the guilty plea proceeding.

             When pressed as to what he did not understand, he could not provide
       much in the way of details.

              The [S]tate presented no witnesses.

                                        ANALYSIS

       The petitioner argues that he received ineffective assistance of trial counsel, which
resulted in unknowing and involuntary guilty pleas.

       Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee
or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2012). The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the

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findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the post-conviction court’s findings as to the credibility of witnesses or the weight
of their testimony. Id. However, review of a post-conviction court’s application of the law
to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents
mixed questions of fact and law, is reviewed de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.
668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies in Tennessee). The Strickland standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The
prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability
sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
In the context of a guilty plea, the petitioner must show a reasonable probability that were
it not for the deficiencies in counsel’s representation, he would not have pled guilty but
would instead have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985);
House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

       Before a guilty plea may be accepted, there must be an affirmative showing in the trial

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court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242
(1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a showing that
the defendant was made aware of the significant consequences of the plea. State v. Pettus,
986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340). 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 or she fully
understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858
S.W.2d at 904.

       Because the plea must represent a voluntary and intelligent choice among the
alternatives available to the defendant, the trial court may look at a number of circumstantial
factors in making this determination. Blankenship, 858 S.W.2d at 904. These factors
include: (1) the defendant’s relative intelligence; (2) his familiarity with criminal
proceedings; (3) whether he was represented by competent counsel and had the opportunity
to confer with counsel about alternatives; (4) the advice of counsel and the court about the
charges against him 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. at 904-05.

       In its order denying the petition, the post-conviction court concluded:

               As for [the petitioner’s] claim that he failed to understand the full
       consequences of his guilty plea, the [p]etitioner was unclear and not specific
       about what he did not understand. Basically, he took the stand in the post-
       conviction hearing and did nothing more than make generalized claims that he
       did not fully understand what was occurring. When questioned further by the
       court, however, he appeared to admit that he did have an understanding at the
       time. In short, in light of his less than clear testimony and the abundantly clear
       transcript of the guilty plea proceedings which evidence an understanding on
       the [petitioner’s] part, this court resolves this issue against the petitioner and
       concludes that he did have an adequate understanding of the consequences of
       the guilty plea. Stated otherwise, the [p]etitioner has failed to carry his burden
       of proof on this issue.

               In summary, the [p]etitioner has failed to prove ineffective assistance
       or that his guilty plea was unknowing, unintelligent, or involuntary.

       It was the petitioner’s duty to provide a record that conveys a fair, accurate, and
complete account of what transpired with regard to his petition. See Tenn. R. App. P. 24(b);
State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). Our supreme court has held: “Where

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the record is incomplete and does not contain a transcript of the proceedings relevant to an
issue presented for review, or portions of the record upon which the party relies, an appellate
court is precluded from considering the issue.” State v. Ballard, 855 S.W.2d 557, 560-61
(Tenn. 1993) (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988)). This
court is to presume the trial court’s findings are correct if a relevant transcript is not included
in the record. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993); State v. Oody,
823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

       The transcripts of the guilty plea hearing and the post-conviction evidentiary hearing
are not included in the record on appeal. The post-conviction court resolved the claims
raised by the petitioner by making credibility determinations upon the evidence presented.
Accordingly, we presume that the transcripts support the court’s findings and, therefore,
conclude that the petitioner is not entitled to post-conviction relief.

                                        CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.


                                                      _________________________________
                                                      ALAN E. GLENN, JUDGE




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