        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 7, 2011

                COREY HENNINGS v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Madison County
                    No. C-10-302     Roy B. Morgan, Jr., Judge


                No. W2010-02630-CCA-R3-PC - Filed October 6, 2011


The petitioner, Corey Hennings, appeals the dismissal of his petition for post-conviction
relief from his attempted first degree murder conviction, arguing that he was denied the
effective assistance of counsel and that his guilty plea was unknowing and involuntary.
Following our review, we affirm the dismissal of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J EFFREY S. B IVINS, JJ., joined.

Mike Mosier, Jackson, Tennessee, for the appellant, Corey Hennings.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

        On December 14, 2009, the petitioner entered a best interest guilty plea to attempted
first degree murder in exchange for a Range I sentence of twenty years in the Department of
Correction. At the guilty plea hearing, the prosecutor recited the following factual basis for
the plea:

             Your Honor, upon trial in this matter the State would show that on or
       about May 31, 2009 [the petitioner], also known as Slo Mo, was in the area of
       239A Lincoln Courts.
               He was engaged in an argument with Latoya Smith. At some point
       during the argument, [the petitioner] retrieved a gun and shot Felecia
       Wilbourn, who was a neighbor and who was there during the time that this
       argument was ongoing. He shot her twice. As a result of her being shot, she
       is paralyzed from the face down.

        The petitioner filed a pro se petition for post-conviction relief on October 14, 2010,
followed by an amended petition on November 23, 2010, after the appointment of post-
conviction counsel, in which he alleged that his guilty plea was unknowing and involuntary
and that he was denied the effective assistance of trial counsel. Specifically, he asserted that
counsel was deficient in her representation, which led to his unknowing and involuntary plea,
because she failed to adequately advise him about the case, including the ramifications of his
guilty plea; failed to provide him with complete discovery; failed to investigate the defense
of self-defense; and failed to investigate his history of mental issues or to request a mental
evaluation.

        At the evidentiary hearing, the petitioner’s mother, Beverly Hennings, testified that
the petitioner had spinal meningitis as a four-year-old child, which “led to some kind of brain
damage” and resulted in his being placed in special education classes in school. She
acknowledged, however, that the petitioner was able to read and write and that he had
regularly written to both her and his sister since his incarceration. She said that the petitioner
was remorseful for having shot the victim, and she identified a letter of apology that the
petitioner had written to the victim from prison, which was admitted as an exhibit to the
hearing.

        The petitioner testified that trial counsel visited him only once or twice during the five
to six months she represented him. He said he did not really understand the case against him
and felt as if he needed more time to consult with trial counsel. He at first stated that trial
counsel never discussed self-defense with him. During cross-examination, however, he
amended his testimony to claim that counsel told him that the defense of self-defense was not
available in Tennessee. The petitioner also expressed his belief that counsel failed to provide
him with full discovery in the case, testifying that he had heard that his ex-girlfriend had
written a statement but that he never received a copy of it.

        The petitioner testified that he “might have mentioned” to counsel that he had been
a special education student. He said that he told counsel to talk to his mother about his
background but did not know whether she ever did. He stated that he never underwent a
mental evaluation and, although he “sort of” understood the guilty plea proceedings, counsel
failed to fully and completely explain the process to him. He claimed, thus, that he did not
know he could have rejected the State’s offer and chosen to go to trial.

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       On cross-examination, the petitioner acknowledged that he knew, at the time he
entered his plea, that he faced a sentence of fifteen to twenty-five years if convicted at trial.
He conceded that he was familiar with the process of entering guilty pleas, having previously
pled guilty in at least two prior felony cases. Finally, he admitted that he informed the trial
court at the guilty plea hearing that he was happy with counsel’s representation.

       On redirect examination, the petitioner testified that the victim was holding a butcher
knife at the time he shot her.

       Trial counsel, who said that she had been licensed to practice law for thirteen years
and had been working for the public defender’s office for the past three and a half years,
estimated that she had handled hundreds, if not thousands, of criminal cases during her
career. She said that she had copied the discovery materials she received from the State,
which had an open-file policy, and forwarded them to the petitioner on November 17, 2009.
She also provided to the petitioner a copy of the State’s notice of enhanced punishment,
which listed his three prior felony convictions.

        Trial counsel testified that one of the first things that she discussed with the petitioner
was his possible defenses, including the defense of self-defense, because she read in one of
the police reports a witness’s account of having seen the victim with a knife. In relating the
sequence of events, however, the petitioner told her that after the argument broke out, he and
his family had gone back into their house and shut the door. She asked if the victim had tried
to enter the home, and the petitioner replied that she had not but that he had retrieved his gun,
gone back outside, and shot the victim. The petitioner also told her that he had not seen the
victim with a knife, but he had heard someone say something about a knife. Trial counsel
stated that she explained to the petitioner that, once he and his family had safely retreated
from the scene and were no longer threatened, the defense of self-defense was no longer an
option.

       Trial counsel testified that she got the impression in her dealings with the petitioner
that he was “somewhat slow,” so she asked him if he had been in special education classes
in school or ever received any mental health treatment. As she recalled, the only thing the
petitioner mentioned was that he had experienced some learning disabilities in school. He
had, however, sent her letters, so she knew that he was able to read and write. In addition,
he expressed tremendous remorse for the shooting, indicating that he knew the difference
between right and wrong, assisted her in his defense, appeared to understand everything that
was going on, and had prior experience with the criminal justice system. She, therefore, did
not believe that a forensic evaluation was warranted.




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        Trial counsel testified that she recommended that the petitioner accept the plea deal
because of the strong evidence against him, which included two eyewitnesses who had
identified him as the shooter and the sympathetic victim, who had been permanently
paralyzed by the shooting. She said that the petitioner wanted a deal with less time, but she
explained to him that the State’s offer was non-negotiable. The petitioner asked thoughtful
questions and was involved and engaged throughout her representation. In short, he gave “no
indication whatsoever” that he was not comprehending the process or did not understand
exactly what was going on.

        On cross-examination, trial counsel testified that she asked the petitioner’s mother,
who told her that the petitioner had been in special education classes, the same questions that
she asked the petitioner about his prior mental history and school records. Based on her
answers, she saw no reason to request a mental evaluation. Counsel said that she attempted
to get the petitioner’s records from “Pathways,” which the petitioner told her he had attended,
but the facility could not locate any records on him. She also made a number of unsuccessful
attempts to obtain his school records.

       The post-conviction court dismissed the petition at the conclusion of the hearing,
issuing oral findings of fact and conclusions of law, which were followed by a written order
entered on December 20, 2010. The court found, among other things, that the petitioner had
no difficulty communicating and exhibited during his guilty plea colloquy a thorough
understanding and knowledge of what he was doing in entering the plea, including that he
had the right to proceed to trial rather than plead guilty. The court, therefore, concluded that
the petitioner had failed to establish his allegations by clear and convincing evidence.

                                         ANALYSIS

       On appeal, the petitioner contends that trial counsel was defective for not investigating
his mental health issues or seeking a mental evaluation and that such deficiency led to his
entry of an unknowing and involuntary guilty plea. Specifically, he argues that because
counsel suspected that he was “slow,” she should not only have investigated his mental
history more thoroughly but also should have requested a mental evaluation. He asserts that
his “mental condition was a thread that was woven throughout his case . . . and . . . affected
every aspect of his case leading up to the guilty plea.” In support, he cites his testimony as
to his belief that he was not provided with full discovery and was not made aware of the
defense of self-defense. The State argues that the post-conviction court properly denied the
petitioner relief because he failed to prove his allegations by clear and convincing evidence.
We agree with the State.




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        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 (2006). 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
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 trial court’s findings as to the credibility of witnesses or the weight of their
testimony. Id. However, review of a trial 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

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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).

        The petitioner argues that trial counsel was deficient, thereby prejudicing his case, by
her failure to obtain his mental health records or to request a mental evaluation. However,
trial counsel’s testimony, which was obviously accredited by the post-conviction court, was
that she unsuccessfully sought copies of the petitioner’s school and counseling records and
saw no reason, based on her experience with the petitioner, to request a forensic evaluation.
The petitioner was able to read and write, communicated with her well, asked thoughtful
questions, expressed remorse for the shooting, and in general appeared to fully understand
the case, including the guilty plea proceedings. Moreover, as the State points out, the
petitioner failed to produce any of the alleged missing mental health records at the
evidentiary hearing, despite faulting trial counsel for her inability to locate them. As such,
he cannot show that he was prejudiced by their omission. See Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990).

       We note that trial counsel also testified that she provided the petitioner with copies
of discovery and fully discussed with him why the defense of self-defense was not feasible,
as well as the reasons for her recommendation that he accept the plea offer. We conclude,
therefore, that the petitioner has not met his burden of demonstrating that he was denied the
effective assistance of counsel.

       In an interrelated argument, the petitioner argues that counsel’s deficiencies in seeking
his mental health records and a mental evaluation resulted in his entry of an involuntary and
unknowing guilty plea. When analyzing a guilty plea, we look to the federal standard
announced in Boykin v. Alabama, 395 U.S. 238 (1969), and the state standard set out in State
v. Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn.
1999). In Boykin, the United States Supreme Court held that there must be an affirmative
showing in the trial court that a guilty plea was voluntarily and knowingly given before it can
be accepted. 395 U.S. at 242. Similarly, our Tennessee Supreme Court in Mackey required
an affirmative showing of a voluntary and knowledgeable guilty plea, namely, that the
defendant has been made aware of the significant consequences of such a plea. Pettus, 986
S.W.2d at 542.

       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

                                              -6-
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.

       The transcript of the guilty plea hearing reveals that the trial court appropriately
informed the petitioner of his constitutional rights and of the specific rights he was waiving
by pleading guilty. The petitioner assured the trial court that his counsel had discussed the
plea agreement with him, that he fully understood its terms and the constitutional rights he
was waiving by entering his plea, and that he was freely and voluntarily entering the plea
because he believed it was in his best interest to do so.

        The record also shows that the petitioner, who said he was working on his GED, is
able to communicate his ideas fairly well, both verbally and in writing. In the letter he wrote
to the victim, for example, he expressed his remorse for his actions and his intention to
“strive tireless[ly]” to help the victim reach her “fullest p[o]tential.” We conclude, therefore,
that the record shows that the petitioner’s guilty plea was knowingly, intelligently, and
voluntarily entered.

                                       CONCLUSION

       Based on our review, we conclude that the petitioner has not met his burden of
showing that trial counsel was ineffective in her representation or that the petitioner’s guilty
plea was unknowing and involuntary. Accordingly, we affirm the dismissal of the petition
for post-conviction relief.


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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