        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs September 28, 2010

               KORINNA STEPHENS v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                    No. 90415     Richard R. Baumgartner, Judge


             No. E2009-02634-CCA-R3-PC - FILED OCTOBER 26, 2010


The Petitioner, Korinna Stephens, appeals as of right from the order of the Knox County
Criminal Court denying her petition for post-conviction relief challenging her convictions
of aggravated robbery, theft of property valued at over one thousand dollars, and possession
of drug paraphernalia for which she received an effective sentence of twelve years as a
Range I, standard offender. On appeal, she contends that her guilty pleas were rendered
involuntarily by the ineffective assistance of counsel. Following our review, we affirm the
judgment of the post-conviction court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Korinna Stephens.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and TaKisha M. Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        The Petitioner’s convictions arise from her involvement in the October 20, 2007
“purse-snatching” incident during which the victim was dragged approximately 125 feet
beside a vehicle driven by the Petitioner’s codefendant. The Petitioner testified that she was
initially charged, via an arrest warrant, with especially aggravated robbery, theft of property
valued at over one thousand dollars, public intoxication, and possession of drug
paraphernalia.
        The Petitioner testified that during her initial meeting with trial counsel, the Petitioner
learned that the victim was hospitalized in the intensive care unit (ICU) for injuries sustained
in the incident. The Petitioner said that trial counsel told her to “pray that [the victim did not]
die because if she died, [the Petitioner] would be looking at 51 years to life in the
penitentiary.”

        At a November 4, 2007 hearing, the Petitioner saw the victim for the first time since
the incident. She said that the victim was walking with a cane. She recalled being overcome
with “remorse and guilt” at the sight of the victim, an elderly woman. The Petitioner said
that she began crying and “had [to be] carr[ied] out of the courtroom.” The Petitioner said
that she was “grateful that the victim was alive.”

       On November 4, the Petitioner and trial counsel discussed the possibility of a guilty
plea. The Petitioner understood that she faced up to 25 years of incarceration for the
especially aggravated robbery charge. On November 29, 2007, trial counsel informed the
victim of the State’s offer to allow the Petitioner to plead to an information charging her with
aggravated robbery, and the other offenses, with an agreed effective sentence of 12 years’
incarceration as a Range I, standard offender. On November 30, 2007, the Petitioner waived
her right to a preliminary hearing in preparation to enter guilty pleas to an information.

        On December 5, 2007, the Petitioner pled guilty as agreed. During the guilty plea
submission hearing, the Petitioner showed some hesitation because she did not understand
that she was pleading guilty to a theft offense related to the theft of a truck. She understood
the theft offense to be related to the theft of the victim’s purse, despite admitting that she also
understood the offense to be a felony theft of property valued at over one thousand dollars.
She stated at both the guilty plea submission hearing and the evidentiary hearing that she “did
feel guilty of that robbery” but that she “didn’t steal the truck.” Although the trial court
allowed the Petitioner some time to reconsider her plea, she ultimately decided to plead guilty
to the information. She admitted that she knew prior to the entry of her guilty plea that the
victim had spent six hours in the hospital, rather than a substantial time in ICU as had been
reported to her by trial counsel. However, she claimed at the evidentiary hearing that had she
not been misled by trial counsel’s report of the victim’s condition during their first meeting
she believed that her case “would all have just come out different.”

       Trial counsel testified that he did not intentionally mislead the Petitioner concerning
the victim’s condition. He explained that his girlfriend was a critical care nurse at the
University of Tennessee Hospital and that, through some mistake about the identity of her
patient, he was led to believe that the victim was in ICU. Trial counsel recalled that the
Petitioner “spent a lot of time crying” due to the severity of the offenses with which she was
charged.

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       Trial counsel testified that the plea negotiations and guilty plea submission hearing
occurred within a short time frame from the Petitioner’s arrest. He said that the guilty plea
submission hearing was “extremely lengthy” and that the trial judge “tried to talk [the
Petitioner] out of the deal four or five times.” Trial counsel said that he advised the
Petitioner specifically that the theft offense related to the theft of the truck and that the victim
was no longer in the hospital. He said that the “overriding factor” of the plea negotiations
was to mitigate the Petitioner’s sentence as much as possible so that she would have a
favorable release eligibility of 30 percent, instead of the 100 percent that would have
accompanied a conviction for especially aggravated robbery. Trial counsel added that the
Petitioner had, in fact, reached her release eligibility by the time of the evidentiary hearing,
but she had been denied parole. Trial counsel admitted that many defendants are emotional
when they learn what they have been charged with and, particularly, that “[a] lot of females
do spend a lot of time crying when they’re in custody.” He said that the Petitioner was sober
while in jail and at the guilty plea submission hearing. Trial counsel testified that the
decision to plead guilty was “all” the Petitioner’s choice and that he told her that he was
willing to go to trial.

        The post-conviction court made specific findings relative to the claims alleged in the
petition. The court found that the Petitioner had known that the victim was no longer
hospitalized for some days prior to the entry of her guilty plea. The court also found that trial
counsel advised the Petitioner that the lesser charge of aggravated robbery with an agreed 12
year sentence to be served at 30 percent was a more favorable outcome than risking a trial
for especially aggravated robbery and facing the possibility of a 25 year sentence to be served
at 100 percent. The court noted that the trial court had allowed the Petitioner considerable
time to discuss the terms of the plea agreement after the Petitioner questioned the theft
offense and indicated some misgivings about the plea. The court found that the only incident
of the Petitioner’s being “hysterical” occurred when she first saw the victim in court but that
“[t]here’s absolutely no indication that there’s any show of emotion . . . when the submission
hearing t[ook] place.” The court also noted that the trial court afforded the Petitioner every
opportunity to turn down the plea agreement at the submission hearing, but the Petitioner
ultimately decided to plead guilty. Based upon these findings, the post-conviction court ruled
that the Petitioner failed to prove her allegations of ineffective assistance and an involuntary
plea by clear and convincing evidence and denied the petition. This timely appeal followed.

       On appeal, the Petitioner contends that the misrepresentations of trial counsel
regarding the victim’s injuries, based upon his inadequate investigation, and the ensuing
threat of greater charges in the event of the victim’s death rendered her guilty pleas
involuntary. The State responds that the Petitioner failed to show evidence of any deficiency
or prejudice flowing from trial counsel’s representation. Following our review, we agree
with the State.

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        To be successful in a claim for post-conviction relief, a petitioner must prove all
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn.Code Ann. § 40-30-110(f) (2006). “‘Clear and convincing evidence
means evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight
of a jury verdict, with such findings being conclusive on appeal absent a showing that the
evidence in the record preponderates against those findings. Id. at 578.

       The Petitioner contends that his trial counsel was ineffective. A claim of ineffective
assistance of counsel is a mixed question of law and fact. See State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). We will review the post-conviction court’s findings of fact de novo with
a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001). However, we will review the post-conviction court’s conclusions of law purely de
novo. Id.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the 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. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover,
       [b]ecause a petitioner must establish both prongs of the test, a failure to prove
       either deficiency or prejudice provides a sufficient basis to deny relief on the
       ineffective assistance claim. Indeed, a court need not address the components
       in any particular order or even address both if the [petitioner] makes an
       insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). In the context of a guilty plea,
“the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s errors, he
would not have pleaded guilty but would have insisted upon going to trial.” Hicks v. State,
983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S. 52, 59 (1985).



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        We conclude that the record supports the post-convictions court’s findings. The
Petitioner testified that she saw the victim in court several days before the entry of her guilty
plea. Although she was overcome with guilt on that day, she obviously knew prior to the
guilty plea submission hearing that the victim was no longer hospitalized or in imminent risk
of dying. Trial counsel acknowledged that he relied on inaccurate information regarding the
victim’s health. Nevertheless, this mistake clearly was ameliorated by the date of the
submission hearing. The transcript of the guilty plea submission hearing, which was
exhibited to the evidentiary hearing, supports the post-conviction court’s findings regarding
the trial court’s concerns that the Petitioner understand and agree to all elements of the guilty
plea. The Petitioner, facing a possible 25 year sentence to be served at 100 percent, received
a substantial benefit by pleading guilty to a lesser offense with an agreed effective sentence
of 12 years with a 30 percent release eligibility. We agree with the post-conviction court that
the Petitioner failed to prove her allegations by clear and convincing evidence. Accordingly,
the order of the post-conviction court denying post-conviction relief is affirmed.


                                                     _________________________________
                                                     NORMA MCGEE OGLE, JUDGE




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