                                                                                         03/01/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 15, 2017

                 WILLIE C. COLE v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
              Nos. 41300139, 41300140 William R. Goodman, III, Judge
                      ___________________________________

                           No. M2016-00625-CCA-R3-PC
                       ___________________________________


Petitioner, Willie C. Cole, filed a pro se petition for post-conviction relief, challenging
various aspects of trial counsel’s representation as ineffective, among other things. After
appointment of counsel and a hearing, the post-conviction court denied relief and
dismissed the petition. We affirm the judgment of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

B. Nathan Hunt, Clarksville, Tennessee, for the appellant, Willie Charles Cole.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Counsel; John W. Carney, District Attorney General; and Dan Brollier, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                   Factual Background

       In February of 2013, Petitioner was indicted in Case Number 41300139 for theft
of property valued over $10,000 and in Case Number 41300140 for aggravated robbery.
On September 13, 2013, Petitioner, with the assistance of trial counsel, entered a guilty to
both crimes. At the guilty plea hearing, counsel for the State informed the trial court that
it was prepared to put forth proof at trial to show that on December 3, 2012:
       [Petitioner] and his codefendant Marquex Townsend entered into an
       agreement whereby Mr. Townsend w[ould] take the victim . . . in the Wal-
       Mart store and cash a check, . . . g[e]t some cash while in the store. They -
       - they were - - we actually have text messages between them kind of setting
       up the incident.

               When Mr. Townsend and [the victim] came back out of the store and
       got into [the victim’s] vehicle, [Petitioner] met them and approached them
       with a gun in his hand. I believe it did turn out to be a pellet gun, but I - - I
       have a photograph of it here for the Court if the Court wants to see it. It
       had every bit of the appearance of being a real automatic handgun.
       [Petitioner] did take [$]632 in cash and a cell phone - - cell phone from . . .
       [the victim].

             He was caught later that night with the stolen property in his
       possession and with the gun in his possession. [Petitioner] made a full
       confession to the robbery as did Mr. Townsend, who had - - has already
       been charged and entered a plea in this case.

The facts giving rise to Case Number 41300139 took place on December 12, 2012. On
that day:

       [Ms.] Blevins left her 2009 Chrysler 300 running while she ran into the
       Dollar General Store. Her seven year old child was in the car at the time.
       [Petitioner] saw the car running, jumped into it, took off with it, eventually
       stopped at Wal-Mart, put the child out of the car, and [was] eventually
       apprehended a little bit later by the police. He had the stolen vehicle car
       keys in his pocket at the time he was apprehended. He did admit to that
       theft as well. He told officers he took the car because he needed the money
       for the bail in the aggravated robbery case. And the value of that car was
       over $20,000. He was [also] initially charged with kidnapping. The State
       chose not to present th[at] to the Grand Jury.


        Prior to accepting the plea, the trial court informed Petitioner of the range of
punishment for each offense, taking into account that Petitioner was a Range II offender.
The trial court also notified Petitioner that the sentences would be served consecutively to
any sentence he was already serving. Petitioner acknowledged that he was giving up his
right to a jury trial, his right to confront witnesses, his right to subpoena witnesses, his
right to remain silent, his right to testify, and his right to appeal. Petitioner acknowledged
his understanding that these convictions could be used to enhance any future convictions
                                             -2-
he received. Petitioner informed the trial court that it was in his best interest to plead
guilty and admitted to the trial court that he was guilty of the offenses.

       The trial court approved the negotiated settlement of the cases, sentencing
Petitioner to eight years for aggravated robbery to be served at 100 percent and six years
for theft of property to be served as a Range II, multiple offender. The trial court did not
award Petitioner any jail credits because he was “presently serving” a sentence on a
probation violation at the time of the guilty plea hearing. The trial court ordered the
sentences in the present cases to be served consecutively to each other and to the sentence
he was already serving. His effective consecutive sentence is fourteen years.

        On August 11, 2014, Petitioner filed a lengthy pro se petition for post-conviction
relief in which he sought relief based on numerous allegations of ineffective assistance of
counsel and various constitutional violations. Counsel was appointed and the post-
conviction court held a hearing on the petition for relief.

                                  Post-conviction Hearing

        At the hearing, Petitioner admitted that he was on probation at the time he
committed the offenses which were the basis of the guilty plea. He explained that there
were “a whole lot of grounds” for his ineffective assistance of counsel claim. Petitioner
testified that he met with trial counsel at least two times at the county jail and before each
court appearance. Petitioner insisted that he requested trial counsel file a motion to
suppress his statement to police because the police failed to administer “Miranda rights
or any of that.” Petitioner claimed that he never signed the statement and that the
detective threatened him and his girlfriend, who was pregnant at the time of their arrest.
The detective told him that if Petitioner “didn’t confess, basically, that he would make
sure [his girlfriend] got locked up, and if she had the kids while she was locked up, then
the state would take ‘em and things . . . .” Petitioner also complained that trial counsel
failed to challenge his arrest. Petitioner’s statement was entered into evidence. It
appeared to be signed by Petitioner and contained an admonition and waiver of Miranda
rights.

       In the theft case, Petitioner insisted that he had no “intent to deprive the owner of
the vehicle” and that he was just joyriding. He wanted trial counsel to pursue a lesser
charge. Trial counsel told Petitioner that was not a possibility and that the State would
not agree to a reduced offense.

       Petitioner claimed that he was “out of it” because he was on a “lot of medication”
after coming “[b]ack from the mental health institution” where he had stayed for several
weeks after he tried to hang himself in a “suicide attempt.” Petitioner testified that he
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was taking Lithium, Trazodone, and Celexa when he was at the mental health institution
but that they took him off of Lithium when he returned to jail and replaced it with
Zyprexa, another antipsychotic. Trial counsel was aware that Petitioner was on
medication. Petitioner complained that trial counsel did not address his limited cognitive
abilities and the side effects of the medications. Petitioner stated that the medication and
his mental state negatively affected his ability to enter his plea.

        Trial counsel testified that he was appointed to represent Petitioner and recalled
that he had “greater exposure” for a longer sentence if he went to trial versus entering
guilty pleas. Trial counsel did not recall Petitioner requesting that he file a motion to
suppress based on a “forced” statement. He described Petitioner’s “biggest thing” was
with regard to witness testimony because Petitioner did not think “[the] codefendant and
the girlfriend would be willing to testify against him.” Trial counsel testified that the
statement and signed confession would have been used against Petitioner if he decided to
go to trial.

        Trial counsel recalled that Petitioner asked if the State would agree for the
sentences to be served concurrently at 85 percent. Trial counsel testified that up until the
entry of the plea, the only offer received from the State had been for a ten-year sentence
for the aggravated robbery charge. He prepared to try the case, even getting street clothes
for Petitioner to wear at trial. Petitioner understood his options but was “torn” between
pleading guilty and going to trial because trial counsel told him this was the “best deal
[he] was going to get” but that he “went for” the plea because of “the fear of getting more
time.”

       Trial counsel recalled Petitioner was in a mental health institution prior to the plea
but did not think that Petitioner’s mental state would have any effect on his ability to
plead guilty. Trial counsel “did not detect that [Petitioner] had any issue with
understanding what was . . . going on [at the guilty plea hearing].”

      At the conclusion of the hearing, the post-conviction court took the matter under
advisement. In a solid written order entered March 26, 2016, the post-conviction court
denied relief. Petitioner appeals the denial of relief.1

                                       A. Standard of Review

        1
          In the petition for relief, spanning over fifty pages, Petitioner sought relief on various other
grounds that were not raised on appeal. Any issues raised in the pro se petition and not raised on appeal
are deemed abandoned. See Jeffrey L. Vaughn v. State, No. W2015-00921-CCA-R3-PC, 2016 WL
1446140, at *2 n.4 (Tenn. Crim. App. Apr. 12, 2016), perm. app. denied (Tenn. Aug. 19, 2016); Ronnie
Jackson, Jr. v. State, No. W2008-02280-CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App.
2009), perm. app. denied (Tenn. Apr. 16, 2010).
                                                   -4-
        Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). On appeal, this Court will review the post-conviction court’s
findings of fact “under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State,
960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh or re-evaluate the
evidence presented or substitute our own inferences for those drawn by the trial court.
Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the weight and
value to be given to testimony, and the factual issues raised by the evidence are to be
resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing Henley, 960
S.W.2d at 578). However, the post-conviction court’s conclusions of law and application
of the law to the facts are reviewed under a purely de novo standard, with no presumption
of correctness. Fields, 40 S.W.3d at 458.

                            B. Ineffective Assistance of Counsel

        Petitioner argues that his guilty plea was involuntary and unintelligent due to the
ineffective assistance of trial counsel. Specifically, Petitioner asserts that trial counsel
failed to adequately discuss the case, meet with him prior to trial, failed to file a motion
to suppress, failed to negotiate a lesser charge or a shorter sentence, and failed to explain
the potential sentencing range. Petitioner also argues that he received ineffective
assistance of counsel because trial counsel failed to recognize his mental health issues.
The State argues that Petitioner has not shown that he received ineffective assistance of
counsel.

       Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel’s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel’s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order 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,
                                             -5-
960 S.W.2d at 580. “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 v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466
U.S. at 697).

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use hindsight to second-
guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994), even if a different procedure or strategy might have produced a different result.
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this
deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694). In the context of a guilty plea, a 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 v. Lockhart, 474 U.S. 52, 59
(1985).

       In its order denying relief, the post-conviction court determined:

       [T]rial counsel for the Petitioner reviewed the facts and applicable law in
       each case with the Petitioner, consulted with the Petitioner on several
       occasions, and [testified] that the Petitioner both considered and
       participated in trial strategy. Petitioner initially refused to accept any offer
       of settlement based on his assumption that certain parties would not testify
       against him. After learning this would not be the case, the Petitioner
       displayed his understanding of the circumstances by his decision to accept
       the offer of settlement which had been tendered.
                                             -6-
             Based on the factors set forth in Blankenship v. State, 858 S.W.2d
       897 (Tenn. 1993), the court finds the plea of guilty of the Defendant to have
       been made voluntarily and knowingly.


                           1. Failure to file Motion to Suppress

        First, Petitioner claims on appeal that trial counsel was ineffective for failing to
file a motion to suppress. The State disagrees.

       This Court has previously addressed the evidence necessary at a post-conviction
hearing in order to demonstrate that counsel’s failure to file a motion to suppress
prejudiced the petitioner:

       It is well settled that when a [p]etitioner in post-conviction proceedings
       asserts that counsel rendered ineffective assistance of counsel by failing to
       call certain witnesses to testify, or by failing to interview certain witnesses,
       these witnesses should be called to testify at the post-conviction hearing;
       otherwise, [p]etitioner asks the [c]ourt to grant relief based upon mere
       speculation. Black v. State, 794 S.W.2d 752, 757 (Tenn. 1990). The same
       standard applies when a [p]etitioner argues that counsel was
       constitutionally ineffective by failing to file pre-trial motions to suppress
       evidence. In order to show prejudice, [a] [p]etitioner must show by clear
       and convincing evidence that (1) a motion to suppress would have been
       granted and (2) there was a reasonable probability that the proceedings
       would have concluded differently if counsel had performed as suggested.
       Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006) (citing Strickland, 466
       U.S. at 687). In essence, the petitioner should incorporate a motion to
       suppress within the proof presented at the post-conviction hearing.

Terrance Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436, at *8
(Tenn. Crim. App. Sept. 12, 2011), no perm. app. filed. Thus, “[i]f a petitioner alleges
that trial counsel rendered ineffective assistance of counsel by failing to . . . file a motion
to suppress[,] . . . the petitioner is generally obliged to present . . . the [evidence
supporting his claim] at the post-conviction hearing in order to satisfy the Strickland
prejudice prong.” Demarcus Sanders v. State, No. W2012-01685-CCA-R3-PC, 2013
WL 6021415, at *4 (Tenn. Crim. App. Nov. 8, 2013), perm. app. denied (Tenn. Mar. 17,
2014); see also Craig Abston v. State, No. W2014-02513-CCA-R3-PC, 2016 WL
3007026, at *9 (Tenn. Crim. App. May 17, 2016), perm. app. denied (Tenn. Aug. 18,
2016).
                                             -7-
        In this case, Petitioner failed to demonstrate that a motion to suppress his
statement would have been successful had it been filed. Petitioner claimed that he was
coerced and threatened into making the confession and was not given Miranda warnings.
Trial counsel testified that he found no basis existed to file a motion to suppress.
Moreover, the record reflects that Petitioner signed a waiver of Miranda rights prior to
his confession. Petitioner did not present any evidence at the hearing to support his
claims. Based on the record before us, we are unable to determine that a motion to
suppress would have been granted. Petitioner has failed to show that he was prejudiced
by any alleged deficiency as required by a proper Strickland analysis. The post-
conviction court accredited the testimony of trial counsel and properly concluded that
Petitioner did not receive ineffective assistance of counsel for trial counsel’s failure to
file a motion to suppress.

            2. Failure to Negotiate Reduced Charge or Concurrent Sentences

       Petitioner also complains that trial counsel failed to try to get one of the charges
reduced to joyriding and failed to secure an agreement wherein his sentences would be
served concurrently rather than consecutively. Trial counsel testified that neither of these
scenarios were possible, recalling that Petitioner was subject to mandatory consecutive
sentences because he was out on bond. In fact, Tennessee Rule of Criminal Procedure
32(c)(3)(C) requires consecutive sentences if “a felony [is] committed while the
defendant was released on bail and the defendant is convicted of both offenses.” The
proof at the hearing indicated that Petitioner was on bail for the robbery offense at the
time he committed the theft offense. Additionally, trial counsel did not think that the
State would entertain reducing Petitioner’s theft charge to joyriding. Petitioner has
produced no proof that a plea deal for joyriding or concurrent sentences was ever an
option. Thus, Petitioner he is not entitled to relief.

                 3. Failure to Meet with Petitioner and Investigate Case

       Petitioner also claims that trial counsel did not adequately meet with Petitioner and
did not thoroughly investigate his case. The post-conviction court noted that the
testimony of Petitioner and trial counsel was similar with regard to the number of times
they met prior to the guilty plea and noted that Petitioner confessed to his involvement in
the offenses. The evidence does not preponderate against the determinations of the post-
conviction court. Petitioner has not identified what else trial counsel could have achieved
through additional preparation or investigation. Petitioner is not entitled to relief.

                        5. Failure to Pursue Mental Health Issues

                                            -8-
       Petitioner insists that trial counsel failed to adequately investigate and address his
mental health problems. Petitioner testified at length that he suffered from mental health
problems, took medication, had attempted suicide, and had been institutionalized for
several weeks. Trial counsel was aware of all of these things but did not perceive any of
the medication to have an effect on Petitioner’s ability to understand the nature and
consequences of his guilty plea. Petitioner claimed at the hearing that his medication
came with side effects which impaired his ability to enter a valid plea but admits that he
did not communicate those problems to trial counsel. Moreover, Petitioner failed to
introduce any medical evidence, in the form or testimony or otherwise, to support his
allegations. Petitioner bears the burden of producing the favorable evidence regarding
his mental health that he claims trial counsel was ineffective for failing to present to the
trial court. See Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990).
Because Petitioner has not demonstrated that favorable evidence exists that would have
proven his incompetency or otherwise affected his sentence, he has failed to prove by
clear and convincing evidence that he received ineffective assistance of counsel.
Petitioner is not entitled to relief on this issue.

                                 6. Voluntariness of Plea

       Finally, as noted by the post-conviction court, all of Petitioner’s claims about the
voluntariness of his guilty plea are slammed by the transcript of the guilty plea hearing, in
which he was advised of all of his constitutional rights and his sentencing range.
Petitioner complains that the trial court improperly utilized Blakenship v. State, 858
S.W.2d 897 (Tenn. 1993), in making its decision. We disagree. In order to determine
whether a plea is intelligent and voluntary, the trial court must “canvass[ ] 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, 244 (1969). The trial court looks to
several factors before accepting a plea, including:

       the relative intelligence of the defendant; degree of his familiarity with
       criminal proceedings; whether he was represented by competent counsel
       and had the opportunity to confer with counsel about the options available
       to him; the extent of advice from counsel and the court concerning the
       charges against him; and the reasons for his decision to plead guilty,
       including a desire to avoid a greater penalty that might result from a jury
       trial.

Blankenship, 858 S.W.2d at 904; see Howell v. State, 185 S.W.3d 319, 330-31 (Tenn.
2006). Once the trial court has conducted a proper plea colloquy, it discharges its duty to
assess the voluntary and intelligent nature of the plea and creates an adequate record for
any subsequent review. Boykin, 395 U.S. at 244. Statements made by a petitioner, his
                                            -9-
attorney, and the prosecutor during the plea colloquy, as well as any findings made by the
trial court in accepting the plea, “constitute a formidable barrier in any subsequent
collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Statements
made in open court carry a strong presumption of truth, and to overcome such
presumption, a petitioner must present more than “conclusory allegations unsupported by
specifics.” Id. at 74. The transcript reflects that Petitioner approved of the performance
of trial counsel, affirmed that he was clear-minded, and insisted that it was his desire to
plead guilty. Petitioner has failed to prove by clear and convincing evidence that he
received the ineffective assistance of counsel thereby rendering his guilty plea
involuntary and unintelligent.

                                       Conclusion

      For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                                                        ___________________________
                                                        TIMOTHY L. EASTER, JUDGE




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