        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 17, 2009

             MONCELLE VOORHIES v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Rutherford County
                             No. F-62072 Don R. Ash, Judge



                    No. M2008-02846-CCA-R3-CD - Filed May 20, 2010


On August 13, 2007, Petitioner, Moncelle Voorhies, pled guilty in Rutherford County to sale
of cocaine under .5 grams. Petitioner filed a petition for post-conviction relief on August 11,
2008, alleging that his guilty plea was not entered knowingly and voluntarily and that he was
afforded ineffective assistance of counsel. Following an evidentiary hearing on the petition,
the post-conviction court denied the petition. Petitioner now brings this appeal from the
post-conviction court’s denial of his petition. After a review of the record and arguments on
appeal, we conclude that Petitioner entered his plea knowingly and voluntarily and that he
was afforded effective assistance of counsel. Therefore, we affirm the post-conviction
court’s denial of the petition for post-conviction relief.


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

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
C AMILLE R. M CM ULLEN, JJ., joined.

Barry R. Tidwell, Murfreesboro, Tennessee, for the appellant, Moncelle Voorhies..

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; and Bill Whitesell, District Attorney General, for the appellee, State of Tennessee.


                                         OPINION

                                    Factual Background

       On February 3, 2005, officers arranged for a confidential informant to participate in
a controlled purchase of crack cocaine from Mark Voorhies, Petitioner’s brother. Mr.
Voorhies told the confidential informant to go to the Fred’s parking lot in Rutherford County
where he would meet a third person who would deliver the cocaine to him. The officers set
up a monitoring device on the confidential informant and set up surveillance at Fred’s. The
officers saw a light-colored Cadillac drive into the parking lot. The officers recognized
Petitioner as the driver. A woman got out of the Cadillac. Petitioner drove away and an
officer followed him to a BP station. While Petitioner was gone, the woman walked over to
the confidential informant’s car and gave him the cocaine. Petitioner returned to pick up the
woman. After the purchase was completed and the confidential informant turned the cocaine
over to the police, Petitioner called the confidential informant complaining that many police
officers were around the area where he was. On August 13, 2007, Petitioner entered a best
interest plea to sale of cocaine under .5 grams. As part of the plea agreement, the trial court
sentenced Petitioner to three years of probation.

                                   Post-conviction Petition

       On August 11, 2008, Petitioner filed a pro se petition for post-conviction relief in
which he argued that his counsel was ineffective and his plea was entered involuntarily. The
post-conviction court appointed an attorney to represent Petitioner. On December 8, 2008,
the post-conviction court held an evidentiary hearing.

        Petitioner was the first witness. Petitioner testified that he had retained trial counsel
to represent him and that trial counsel had been his attorney for a long time before this
incident. He testified that he met with trial counsel “all the time” before the entry of the plea.
He recalled that trial counsel was pursuing an issue related to the two-year delay between the
controlled buy and his being charged with a crime. Trial counsel filed a motion for dismissal
based upon this issue. In the middle of the hearing on the motion for dismissal, the trial court
had a recess. During the recess, according to Petitioner, someone from the district attorney’s
office told trial counsel that another member of the district attorney’s office was mad at trial
counsel. Petitioner believed that this statement affected trial counsel’s ability to represent
him.

       Petitioner stated that during the recess the assistant district attorney offered a plea
bargain to Petitioner’s attorney. Trial counsel advised Petitioner to agree to the plea offer
and enter it as a best interest plea. Petitioner stated at the post-conviction hearing that he
now wished that they had litigated the issue concerning the two-year delay. He stated that
he had done some legal research since entering his plea, and he believed that they could have
been successful on that issue.

       On cross-examination, Petitioner stated that if he had known about the constitutional
issues connected to a delay of prosecution, he would not have pled guilty. Petitioner

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admitted that trial counsel went over the plea agreement with him before he entered the plea.
He also admitted that he stated he had no problems with trial counsel when the trial judge
asked if he had any problems with his representation. Petitioner admitted that he made the
decision to enter the best interest plea after trial counsel advised him to enter the plea.
Petitioner received a three-year sentence to be served on probation. Petitioner stated that trial
counsel had been representing him for several years, and Petitioner trusts him.

        Trial counsel also testified at the evidentiary hearing. He stated that he had
represented Petitioner on more than one occasion. Trial counsel explained the facts leading
up to Petitioner’s charges. He stated that there was a series of searches performed based
upon search warrants obtained by the police. As a result of the searches, Petitioner’s father
was charged with possession of cocaine. Trial counsel represented Petitioner’s father on his
charges. Trial counsel was able to get the charges dismissed at the end of 2006. In February
or March of 2007, Petitioner was charged by direct presentment on charges stemming from
the searches to which are referred above. Trial counsel filed a motion to dismiss the
indictment based upon unnecessary and unjustifiable delay. Trial counsel pointed out that
the situation at hand was not a delay between indictment and prosecution, but instead a delay
between the commission of the offense and his indictment when the State was fully aware
of the commission of the offense and Petitioner’s whereabouts.

        Trial counsel testified that the trial court held an evidentiary hearing on Petitioner’s
motion to dismiss the indictment based upon the delay. During a recess at that hearing, the
State offered a deal of three years to be served on probation. Petitioner was facing
conviction of a Class B felony and, up to that point, had not received an offer for less than
two years of incarceration. Petitioner told trial counsel that he did not want to serve any
more time in incarceration. In addition, trial counsel said they were facing a situation where
if they lost the motion to dismiss the indictment he believed a co-defendant would have
testified against Petitioner. Trial counsel told Petitioner to discuss the plea offer with his
father. He also said that the discussion of whether someone in the District Attorney’s office
was mad at him did not affect his representation of Petitioner. Trial counsel also testified
that he had no way to predict what the outcome would have been had they continued the
hearing on the motion to dismiss the indictment.

       At the conclusion of the evidentiary hearing, the post-conviction court denied the
petition. Petitioner filed a timely notice of appeal.

                                         ANALYSIS

      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).

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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 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 reevaluate 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). 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).

                                  Involuntary Guilty Plea

       Petitioner argues that he did not enter his plea knowingly and voluntarily. When
evaluating the knowing and voluntary nature of a guilty plea, the United States Supreme
Court has held that “[t]he standard was and remains whether the plea represents 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). The court reviewing the voluntariness of a guilty
plea must look to the totality of the circumstances. See State v. Turner, 191 S.W.2d 346, 353
(Tenn. Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim.
App. 1990). Specifically, a reviewing court must consider “the relative intelligence of the
defendant; the 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 than might result from a jury trial. Blankenship v. State, 858 S.W.2d
897, 904 (Tenn. 1993).

        In its order, the post-conviction court held that based upon the plea colloquy,
Petitioner entered a voluntary and knowing guilty plea. In the plea colloquy, Petitioner
agreed that no one was forcing him to enter the plea and that he was entering the plea freely
and voluntarily. When the trial court asked Petitioner if he understood the constitutional
rights he was giving up by pleading guilty instead of going to trial, Petitioner stated that he
did. In addition, trial counsel testified that Petitioner told him he did not want to serve any
more jail time. The deal offered of three years probation was the best deal that Petitioner had
been offered so far. Petitioner stated that trial counsel advised him to take the plea bargain
but that he made the decision to accept it. We find no evidence in the record that
preponderates against the post-conviction court’s findings that Petitioner’s plea was entered
voluntarily and knowingly.




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                              Ineffective Assistance of Counsel

        Petitioner also argues that he was afforded ineffective assistance of counsel because
he wanted to have the hearing on the motion to dismiss the indictment continued and go to
trial. 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. Burns, 6 S.W.3d at 461.

        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).

       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 Alford, 400 U.S. at 31). 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

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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).

        The post-conviction court found that trial counsel’s representation did not fall below
an objective standard of reasonableness. We find no deficiency with regard to trial counsel’s
representation. Petitioner was facing a conviction for a Class B felony. The minimum
sentence he was facing was eight years. Petitioner received a sentence of three years on
probation with no jail time. Trial counsel testified that Petitioner specifically stated he did
not want to serve any more jail time. Petitioner argues that he now believes that he would
have been successful at the hearing on the motion to dismiss the indictment. However, as
stated above, Petitioner is not entitled to the benefit of hindsight with regard to any research
he had done. We conclude that it was a reasonably-based trial strategy to advise Petitioner
to accept a three-year sentence of probation with no jail time when Petitioner was facing a
minimum of eight years in incarceration. This is especially true when Petitioner himself
expressed a desire to not serve any more jail time.

       Therefore, this issue is without merit.

                                       CONCLUSION

       For the foregoing reasons, we affirm the post-conviction court’s denial of the petition
for post-conviction relief.
                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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