         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs September 21, 2005

              MICHAEL SHANE HOLT v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                        No. 2002-D-2434    Cheryl Blackburn, Judge



                  No. M2005-00171-CCA-R3-PC - Filed September 23, 2005


The Defendant, Michael Shane Holt, pled guilty to three counts of money laundering and was
sentenced as a Range I, standard offender to three concurrent terms of eight years. He subsequently
filed a petition for post-conviction relief, alleging that his guilty pleas were constitutionally infirm
and that he received ineffective assistance of counsel in conjunction with his pleas. After an
evidentiary hearing, the trial court denied relief. This appeal followed. We affirm the judgment of
the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C.
MCLIN , JJ., joined.

Lonnie Maze, Nashville, Tennessee, for the appellant, Michael Shane Holt.

Paul G. Summers, Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General; Victor
S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                              OPINION


       The Defendant, Michael Shane Holt, was originally indicted for one count of conspiracy to
commit money laundering, four counts of money laundering, and two counts of criminal forfeiture.
The Defendant eventually pled guilty to three counts of money laundering pursuant to a plea
agreement with the State; the remaining counts were dismissed. As part of the Defendant’s plea
agreement, he was sentenced as a Range I, standard offender in spite of having sufficient prior
convictions to be sentenced as a Range III, career offender. See Tenn. Code Ann. § 40-35-108. The
Defendant agreed to three concurrent terms of eight years for each of the money laundering offenses,
to be served consecutively to a ten year term he was then serving for a prior conviction. The
Defendant was on parole from that prior conviction at the time he committed the instant offenses.
         At the evidentiary hearing on his petition for post-conviction relief, the Defendant testified
that, at the time of his plea, he was under a lot of stress because his oldest brother had died just a
short time previously, his wife was pregnant, and his wife had earlier that day pled guilty to some
charges she shared with the Defendant. As a result of these stresses, he “didn’t have a full
understanding of what [he] was pleading guilty to.” The Defendant explained that his family
retained his defense lawyer (“Counsel”) for him, but Counsel did not spend sufficient time with him
or in preparing his case. He said that Counsel did not explain the State’s evidence to him and did
not adequately explain the charges he was facing. Counsel focused on the Defendant’s past criminal
record, warning him that he was facing thirty years if he was found guilty at trial of even a single
count of money laundering. The Defendant maintained that Counsel pressured him into pleading
guilty.

        The Defendant admitted on cross-examination that, during his plea colloquy, he told the trial
court that he understood the charges against him. He also admitted that he knew at the time of his
plea that any sentence he received after a trial would run consecutively to the sentence he was then
serving. Accordingly, he realized at the time he pled that going to trial placed him at “tremendous
risk.” The Defendant admitted that Counsel never “forced” him to plead guilty and that he knew that
the final decision about whether to plead was his.

        Counsel testified and explained that, as of the time of the hearing, he had been licensed to
practice law for twelve or thirteen years and that the majority of his practice was criminal defense
work. He stated that, after the Defendant’s family retained him, he reviewed the State’s file, spoke
personally with the detectives, and received copies of video taped statements and some transcripts.
Counsel also reviewed the statement the Defendant gave to the police. After reviewing the State’s
evidence, Counsel became concerned that the prosecution would succeed in obtaining a conviction
against the Defendant. Because his investigation had revealed that the Defendant had six or seven
previous Class B felonies, Counsel became concerned that the Defendant would be sentenced as a
career offender.

        Counsel testified that he met with the Defendant twice at the prison and also during the times
the Defendant was in court. Counsel acknowledged that the Defendant was “stressed” at the time
of his plea, in part because of his brother’s death, his wife’s pregnancy, and his concerns about
taking care of his family while he was incarcerated. However, Counsel did not think that the
Defendant was so overwhelmed that he did not know what he was doing at the time he pled guilty.


       On cross-examination, Counsel admitted that the Defendant’s prior convictions were his
“biggest concern in this case.”

        The trial court considered this proof and also reviewed the transcript of the Defendant’s
guilty plea hearing, which was made an exhibit to the post-conviction hearing. The trial court
subsequently entered a written order denying the Defendant’s claim for relief. The trial court
specifically credited Counsel’s testimony. With respect to the Defendant’s claim that his plea was


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constitutionally infirm, the trial court specifically found that the Defendant “knowingly and
voluntarily entered his plea in this case.” With respect to the Defendant’s claim that he suffered
from ineffective assistance of counsel, the trial court concluded that the Defendant had failed to
prove either that Counsel’s representation was deficient, or that he was prejudiced by Counsel’s
performance.

STANDARD OF REVIEW

        A. Petitions for post-conviction relief
        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not re-
weigh or re-evaluate the evidence below; all questions concerning the credibility of witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.

         B. Constitutionality of guilty plea
         A criminal defendant’s plea of guilty must be both voluntary and knowing in order to pass
constitutional muster. See Boykin v. Alabama, 395 U.S. 238, 244 (1969); Blankenship v. State, 858
S.W.2d 897, 903 (Tenn. 1993). “[A] plea is not ‘voluntary’ if it is the product of ‘[i]gnorance,
incomprehension, coercion, terror, inducements, [or] subtle or blatant threats . . . .’” Blankenship
at 904 (quoting Boykin at 242-43). Moreover, a voluntary plea is one in which there is nothing to
indicate that the defendant was incompetent or otherwise not in control of his or her mental facilities
at the time the plea is entered. See Blankenship at 904. In determining whether a guilty plea is
voluntary and knowing, the reviewing court

       must look to various circumstantial factors, such as 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 that might result from a jury trial.

Blankenship at 904.

        C. Ineffective assistance of counsel
        Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).


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Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        This two-part standard of measuring ineffective assistance of counsel also applies to claims
arising out of a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice component
is modified such that the defendant “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.” Id.
at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

        In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks, 983 S.W.2d
at 246.

        A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.




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ANALYSIS

        We have carefully reviewed the transcript of the post-conviction hearing, the transcript of the
Defendant’s guilty plea hearing, and the trial court’s order dismissing the Defendant’s petition. We
find no error by the trial court in its findings of fact or conclusions of law. The Defendant has failed
to establish by clear and convincing evidence that his guilty plea was anything other than voluntary,
knowing, and intelligent. Indeed, the transcript of his guilty plea hearing reveals that the Defendant
assured the trial court that he understood what he was doing and that he was satisfied with his
attorney’s performance. The fact that the Defendant may have been stressed by his personal
circumstances at the time does not render his guilty plea infirm. The fact that the Defendant’s
attorney advised him that his exposure at trial was far greater than the plea bargain he was being
offered does not render his guilty plea coerced. Consequently the Defendant has failed to establish
that he is entitled to post-conviction relief on the basis of the circumstances surrounding his plea.

        The Defendant has further failed to establish by clear and convincing evidence that Counsel
performed deficiently. Counsel, whose testimony the trial court specifically accredited, testified that
he investigated the case, engaged in personal discussions with the detectives, and met with the
Defendant several times. Based on his investigation, Counsel became concerned that the State
would succeed in gaining a conviction against the Defendant. Based on his investigation into the
Defendant’s criminal background, Counsel became very concerned about the sentence the Defendant
would be facing upon a conviction at trial. Counsel obtained a generous offer from the State on
behalf of the Defendant. Because the Defendant was on parole at the time he committed the instant
offenses, he was required to serve the instant sentences consecutively to the one he was already
serving. See Tenn. R. Crim. P. 32(c)(3)(A). Our review of the record convinces us, as it did the trial
court, that the Defendant received competent representation from Counsel. The Defendant’s claim
that Counsel’s representation was ineffective is without merit.

       Accordingly, we affirm the judgment of the trial court.




                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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