        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 12, 2013

               CHAUNCEY MOORE v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                       No. 2009-A-539 Cheryl Blackburn, Judge



                    No. M2012-01545-CCA-R3-PC - Filed June 18, 2013


Petitioner, Chauncey Moore, was indicted by a Davidson County Grand Jury for one count
of attempting to commit premeditated murder and one count of employing a firearm during
the commission of a dangerous felony. He entered a guilty plea to the lesser included offense
of attempt to commit manslaughter and employing a firearm during the commission of a
dangerous felony. Pursuant to the plea agreement, Petitioner was sentenced to two years at
thirty percent for the attempt to commit voluntary manslaughter conviction and six years at
100 percent for the employing a firearm during the commission of a dangerous felony
conviction. Petitioner subsequently filed a petition for post-conviction relief arguing that he
was afforded ineffective assistance of counsel and that he entered his guilty plea
unknowingly and involuntarily. After a thorough review of the record, we conclude that
Petitioner has failed to prove any of his allegations that counsel’s representation was
ineffective and that his plea was entered knowingly and voluntarily. Therefore, we affirm
the post-conviction court’s denial of the petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
J EFFREY S. B IVINS, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Chauncey Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General, and Bret Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                                    Factual Background

       The following facts were set out at the guilty plea hearing:

       Mr. Etter, the victim in the case, went to a location on Zermatt Avenue where
       the defendant lived. His purpose in going there was to buy some marijuana
       from a third person, which did occur. But during the course of that he and
       [Petitioner] got into an argument. Mr. Etter basically asserting that if
       [Petitioner] wanted to fight he could come outside and do so. They both went
       outside. [Petitioner] had a gun, he fired the gun at Mr. Etter several times, shot
       him in the legs, shot him in the mid section. And, of course, police and
       ambulance responded.


       A Davidson County Grand Jury indicted Petitioner for one count of attempting to
commit premeditated murder and one count of employing a firearm during the commission
of a dangerous felony. A jury trial held on March 22-24, 2010, ended in a mistrial. In April
2010, Petitioner retained trial counsel to represent him going forward. A second trial was
scheduled for July 2010.

        On July 9, 2010, Petitioner pled guilty to one count of the lesser included offense of
attempted voluntary manslaughter and employing a firearm during the commission of a
dangerous felony. Pursuant to the plea agreement, Petitioner was sentenced to two years at
thirty percent as a Range I, standard offender, for the attempted voluntary manslaughter
conviction. He was sentenced to six years at 100 percent for the conviction of employing
a firearm. The six-year sentence was run consecutively to the two-year sentence.

       On February 11, 2011, Petitioner filed a pro se petition for post-conviction relief. The
post-conviction court appointed counsel, and appointed counsel filed an amended petition.
The petition alleged that Petitioner received ineffective assistance of counsel and that he
entered his plea unknowingly and involuntarily. The post-conviction court held an
evidentiary hearing on March 7, 2012.

       Petitioner was the first witness at the hearing. He testified that he has a tenth-grade
education and earned his GED while in custody. Petitioner stated that he met with trial
counsel about four times before entering his plea, twice in jail and twice in court. He said
that he thought the plea deal was to be a total of eight years all served at thirty percent.
Petitioner said he based that assumption on what trial counsel had told him.

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        Petitioner agreed that trial counsel went over his plea bargain arrangement before he
enterd his plea. According to Petitioner, trial counsel told him to say yes to everything and
that is why he said yes to the guilty plea. He agreed that at the guilty plea hearing he said that
he understood the sentence as two years at thirty percent and six years at 100 percent.
Petitioner testified that trial counsel told him that the Tennessee Department of Correction
(“TDOC”) was going to change the 100 percent to thirty percent when he got into custody.
Petitioner testified that he discovered that the six years was at 100 percent from a timesheet
he received in prison.

       Petitioner stated that this was his first time as an adult in the criminal justice system,
and it was the first time he had entered a guilty plea. He said he felt coerced into taking the
deal because trial counsel told him that the six-year sentence would be served at thirty
percent.

        Petitioner complained because he asked trial counsel to file various motions prior to
trial, but trial counsel refused to do so. When asked on cross-examination which motions
should have been filed, Petitioner could not name any. He stated that “if I ask my lawyer to
do something that is her duty to serve me and do whatever it is that I want.”

         On cross-examination, Petitioner admitted that he heard the trial court state that the
six years would be served at 100 percent. He maintained that he did not question this
because he believed that TDOC would change the 100 percent to thirty percent. He said that
trial counsel told him this. Petitioner stated that when he answered the questions asked
during the guilty plea hearing, he was lying to the trial court. Petitioner also stated that he
did not read the plea petition. He testified that he signed it because trial counsel told him to
sign it.

       Trial counsel also testified at the post-conviction hearing. She stated that she received
a transcript from the first trial and reviewed it. Trial counsel stated that there were no
motions that should have been filed in Petitioner’s case. She denied misleading Petitioner
about the terms of his guilty plea. She did not tell him how to respond to the trial court’s
questions at the guilty plea hearing. She said there was no indication that he did not
understand the plea. Trial counsel stated that it was her practice to review plea petitions with
her clients and have them initial each point of the petition. Petitioner’s plea petition was
presented at the post-conviction hearing, and he had initialed the petition.

       Trial counsel testified that she told him the sentence was two years at thirty percent
and six years at 100 percent. She said that she did not discuss how TDOC would interpret
his sentence. She said that it is not her practice to explain what TDOC does with sentences.
She told Petitioner that he would serve the two-year sentence first and the six-year sentence

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would be served consecutively to the two-year sentence. Trial counsel testified that she
could tell that Petitioner was unhappy with the deal, but in such a way that he wanted to
“walk free” and that he “[didn’t] want to do any time.”

       On June 22, 2012, the post-conviction court filed a written order denying the petition.
The post-conviction court specifically found that trial counsel’s testimony at the hearing was
credible. The post-conviction court included the following findings:


               Further, the guilty plea transcript belies Petitioner’s claims. During the
       guilty plea colloquy, the Court went over the plea agreement with Petitioner
       and explained in detail how the sentences for each Count had different release
       eligibility; Petitioner indicated he understood. Not only was Petitioner
       answering the questions under oath at the plea hearing, but he did not simply
       respond “yes” to all of the questions. For example, when Petitioner had a
       question about how much jail credit he would receive, his counsel interjected
       to allow for Petitioner to raise his question and he discussed directly with the
       Court the issue of credit.

             When asked about the petition, Petitioner stated that he read it himself
       and “talked over it with my lawyer.” The plea petition introduced into
       evidence at Exhibit 1, explicitly sets forth the sentence with the two
       percentages and is initialed by Petitioner.


(citations to the record omitted).

       The trial court further concluded that “A review of the record including the guilty plea
hearing . . . affirmatively demonstrates that the petitioner’s guilty pleas were made with an
awareness of the consequences, and, as such, the guilty plea was voluntarily and knowingly
entered.” (citations to the record omitted).

                                       ANALYSIS
                           Post-conviction Standard of Review

        On appeal, Petitioner argues that he was afforded ineffective assistance of counsel and
that his guilty plea was entered unknowingly and involuntarily. 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). 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

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post-conviction 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 re-weigh or re-evaluate 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).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing by clear and convincing evidence 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); see also T.C.A. § 40-30-110(f). 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, 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 North Carolina v. Alford, 400
U.S. 25, 31 (1970)). As stated above, in order to successfully challenge the effectiveness of

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counsel, 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, Petitioner must establish: (1) deficient representation; and (2)
prejudice resulting from the deficiency. 466 U.S. 668, 694 (1984). However, in the context
of a guilty plea, to satisfy the second prong of Strickland, 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, 474 U.S. at 59; see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).

       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 knowing 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. The
standard is the same for a “best interest” or Alford plea, that is, “whether the plea represents
a voluntary and intelligent choice among the alternative courses of action open to the
defendant.” Alford, 400 U.S. at 31.

       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 fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S.W.2d at 904.

       Petitioner has failed to show that but for trial counsel’s alleged deficiencies, he would
have refused to plead guilty and insisted on going to trial. Petitioner testified that trial
counsel told him how to respond to the trial court’s questions at the guilty plea hearing. He
also stated that trial counsel told him that the six-year sentence was to be served at thirty
percent and that TDOC would change the 100 percent service to thirty once he was in
custody. Trial counsel adamantly denied both these assertions when she testified at the post-
conviction hearing. The post-conviction court specifically found trial counsel’s testimony
to be credible. It is up to the trial court to determine credibility of witnesses and the post-
conviction court’s findings have the weight of a jury verdict. Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). Therefore, Petitioner has not proven that trial counsel’s
representation was deficient and that he would not have pled guilty if not for her
representation.



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        Furthermore, the transcript of the guilty plea hearing reflects that the trial court
discussed the ramifications of the guilty plea with Petitioner. He was thoroughly questioned
by the trial court to ascertain whether he understood the effects of the plea. The plea hearing
also indicates that Petitioner knew what he was doing, understood the plea, and agreed that
it was what he wanted to do to resolve the case. Petitioner has failed to show by clear and
convincing evidence that he received ineffective assistance of counsel or that his guilty plea
was involuntary. Moreover, Petitioner has failed to prove he did not understand the
consequences of his plea.

                                      CONCLUSION

      For the foregoing reasons, we affirm the denial of Petitioner’s petition for post-
conviction relief.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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