             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                  Assigned on Briefs October 25, 2006

                      HARVEY S. BURNS v. STATE OF TENNESSEE

                          Appeal from the Criminal Court for Davidson County
                             No. 2003-C-1862    Cheryl Blackburn, Judge



                       No. M2005-02961-CCA-R3-PC - Filed November 17, 2006



The Petitioner, Harvey S. Burns,1 pled guilty to selling less than one-half gram of cocaine. At the
guilty plea hearing, the Petitioner accepted a sentence of thirteen years as a Range III, persistent
offender. The Petitioner timely filed a pro se petition for post-conviction relief, and after being
appointed counsel, filed an amended petition for post-conviction relief. After a hearing, the trial
court denied the petition for post-conviction relief. In this appeal, the Petitioner asserts that he
received the ineffective assistance of counsel and that his plea was not knowingly, voluntarily, and
intelligently entered. 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.

Nathan Moore, Nashville, Tennessee, for the appellant, Harvey S. Burns.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General,
for the appellee, State of Tennessee.




         1
           The Petitioner also refers to himself in the initial petition for post-conviction relief as “Harvey Burns Stanley,”
yet he signed the petition “Harvey S. Burns.” All prior case styles contained in the record in this matter refer to the
Petitioner as “Harvey S. Burns.”
                                            OPINION

        On November 20, 2003, the Petitioner pled guilty to one count of selling less than one-half
gram of cocaine. At the guilty-plea hearing, the Assistant District Attorney recited the underlying
facts of the offense as follows:

               [O]n April the third of this year, Officers Devord (phonetic) and
               Fiddler were working in an undercover capacity, trying to buy drugs
               from street-level dealers.

                      They got into the area of Lewis and Lafayette, where they
               were approached by, Mr. McPherson[, the Petitioner’s co-defendant]
               and engaged in a conversation. They told Mr. McPherson they were
               looking for a “forty,” meaning forty dollars’ worth of crack cocaine.

                       Mr. McPherson didn’t have it on him. He walked across the
               street to [the Petitioner], where the officers observed an exchange
               take place. Mr. McPherson came back over and then exchanged the
               crack cocaine with the police officers, who gave him the forty dollars.

                       Then take-down units came in. . . . Mr. McPherson was
               caught. The buy money was either on him or near him. [The
               Petitioner] fled, and the officers observed him throw some additional
               crack cocaine away.

        At the guilty plea hearing, the following colloquy occurred between the trial court and the
Petitioner:
                         THE COURT: [Y]ou’re here charged with the sale of less
                than point-five grams of cocaine. That charge could carry from three-
                to-fifteen years’ imprisonment.
                ....
                         Do you . . . understand the charges against you?

                      [THE PETITIONER]: Yes, sir.
               ....

                      THE COURT:           And are you satisfied with [your]
               representation?

                      [THE PETITIONER]: Yes, sir.

                       THE COURT: . . . It’s being recommended, on your plea of
               guilty to the sale of less than point-five grams of cocaine, that you


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                receive a thirteen-year sentence as a Range Three offender for parole
                purposes, with a two-thousand dollar fine.
                        Is that your understanding?

                        [THE PETITIONER]: Yes, sir.
                ....

                       THE COURT: All right. . . . [I]s this your signature [on the
                plea agreement]?

                        [THE PETITIONER]: Yes, sir.

                        THE COURT: Did you have any questions about it?

                        [THE PETITIONER]: No, sir.
                ....

                        THE COURT: Is there anyone forcing you in any way to
                enter your particular plea? . . .

                        [THE PETITIONER]: No, sir.
                ....

                        THE COURT: Do . . . you have any questions of the Court?

                        (Whereupon, the [Petitioner] responded negatively.)
                ....

                        THE COURT: What is your plea to the charge of the sale of
                less than point-five grams of [cocaine]?

                        [THE PETITIONER]: Guilty.


       Following this litany of questions, the trial court accepted the Petitioner’s guilty plea and
sentenced the Petitioner to serve the agreed-upon sentence of thirteen years. It is from this guilty
plea and resulting judgment of conviction that the Petitioner seeks post-conviction relief.

                                                  Analysis
                                 I. Ineffective Assistance of Counsel
        First, the Petitioner asserts that he received the ineffective assistance of counsel. Specifically,
the Petitioner claims that his attorney (1) failed to adequately consult and advise him of the plea’s
consequences, (2) failed to adequately investigate the facts, and (3) induced the Petitioner into


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pleading guilty. The State asserts that the Petitioner’s attorney did provide the effective assistance
of counsel by communicating with the Petitioner about the plea negotiations and by properly
investigating the facts of the case. The State further asserts that the Petitioner has failed to prove that
his attorney coerced him to plead guilty. We conclude that the trial court did not err in determining
that the Petitioner received the effective assistance of counsel.

        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. State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). 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. 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. 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. 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.
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. 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.” 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 v. State, 983 S.W.2d 240, 246
(Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. 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


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standard, accompanied with a presumption that those findings are correct unless the preponderance
of the evidence is otherwise. 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. (emphasis in original).

                                1) Adequate Consultation and Advice
        First, the Petitioner asserts that his attorney did not adequately consult and advise him on “the
plea options and the legal aspects of the case.” We conclude that the trial court did not err in finding
that the Petitioner’s counsel reasonably counseled him to enter his plea.

        At the post-conviction hearing, the Petitioner testified that his attorney never advised him of
earlier plea discussions in which the prosecutor stated that he would indict the Petitioner for selling
a controlled substance in a school zone if he did not plead guilty to a fifteen-year sentence. The
Petitioner testified that the only plea offer he knew anything about provided for a sentence of three
years. He testified his attorney told him that, upon his plea of guilty, he would receive a three-year
sentence. On the contrary, the Petitioner’s attorney testified that he did notify the Defendant of the
earlier plea negotiations, and that the Petitioner was “not correct” when he stated that he knew only
of a three-year plea offer.

         In dismissing the post-conviction petition, the trial court found that the Petitioner had not
presented clear and convincing evidence that his trial attorney did not adequately advise him during
the early stages of the plea bargaining process. The trial attorney testified that he did notify the
Petitioner of the earlier negotiations. It is well-settled that the trial court is in the best position to
assess the credibility of witnesses’ testimony when there are contradictions among witnesses. The
trial court accredited the testimony of the Petitioner’s attorney. We conclude that the evidence does
not preponderate against the trial court’s finding that the Petitioner received the effective assistance
of counsel.

                               2) Failure to Investigate the Facts
       Next, the Petitioner claims that his attorney failed to thoroughly investigate the facts of his
case. We conclude that the trial court properly determined that the Petitioner’s counsel reasonably
performed his duty to investigate the facts of the charges against the Petitioner.

        At the post-conviction hearing, the Petitioner’s attorney testified about the various steps he
took to investigate the drug sale. The Petitioner’s attorney testified that one central factual issue was
whether the Petitioner’s co-defendant, Mr. McPherson, would testify that he had obtained cocaine
from the Petitioner. The Petitioner’s attorney sent a staff member to question Mr. McPherson, who
stated that he did in fact get the drugs from the Petitioner. Another key issue was whether the State
could have charged the Petitioner with selling cocaine within one thousand feet of a school. The
Petitioner’s attorney used an internet map program, known as “Mapquest,” to determine that the sale
was made within the statutorily defined school zone. Therefore, the trial court properly found that



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the Petitioner did not present clear and convincing evidence of deficient performance, and we
conclude the record does not preponderate against the trial court’s findings.

                                   3) Inducement to Plead Guilty
        Finally, the Petitioner contends that he received the ineffective assistance of counsel because
his attorney coerced him into pleading guilty to a sentence of thirteen years when the Petitioner had
been told his sentence would be three years. We conclude that the trial court did not err in
determining that the Petitioner was not coerced into pleading guilty.

         At the post-conviction hearing, the Petitioner testified that he believed throughout the guilty
plea hearing that he was actually pleading guilty to a sentence of three years rather than thirteen
years. The Petitioner stated that his attorney told him that the court had made “a slight mistake” in
stating that the sentence would be thirteen years. The Petitioner claims that his attorney “repeatedly
assured [him] that he would fix the court’s recitation of a thirteen . . . year sentence.” The Petitioner
states that his attorney told him to “just say yeah” to the questions of the trial judge. The Petitioner
further states that his attorney claimed to have everything “under control.”

        The Petitioner’s attorney denied that he ever gave the Petitioner the impression that he was
pleading guilty to a three-year sentence. The Petitioner’s attorney testified that he did not have “any
recollection of standing over his shoulder and whispering in his ear” or of saying anything to the
Petitioner at all during the guilty plea colloquy.

       The trial court again assessed the credibility of the witnesses, who presented contradictory
versions of events. The trial court credited the testimony of the Petitioner’s attorney, and the record
does not preponderate against the trial court’s findings.

                       II. Knowing, Voluntary and Intelligent Guilty Plea
        Next, the Petitioner contends that his guilty plea was not entered knowingly, voluntarily, or
intelligently because he was improperly advised and unduly coerced into pleading guilty. The State
asserts that the Petitioner’s attorney’s testimony and the record of the guilty plea hearing show
otherwise. We agree with the State. The proof supports the trial court’s finding that the Petitioner
knowingly, voluntarily, and intelligently pled guilty.

        When a guilty plea is entered, a defendant waives certain constitutional rights, including the
privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront
witnesses. Boykin v. Alabama, 395 U.S. 238, 243 (1969). “A plea of guilty is more than a
confession which admits that the accused did various acts; it is itself a conviction; nothing remains
but to give judgment and determine punishment.” Id. at 242. Thus, in order to pass constitutional
muster, a guilty plea must be voluntarily, understandingly, and intelligently entered. See id. at 243
n.5; Brady v. United States, 397 U.S. 742, 747 n.4 (1970). To ensure that a guilty plea is so entered,
a trial court must “canvass[] the matter with the accused to make sure he [or she] has a full
understanding of what the plea connotes and of its consequence[s].” Boykin, 395 U.S. at 244. The
waiver of constitutional rights will not be presumed from a silent record. Id. at 243.


                                                  -6-
        In State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), the Tennessee Supreme Court set forth
the procedure for trial courts to follow in Tennessee when accepting guilty pleas. Id. at 341. Prior
to accepting a guilty plea, the trial court must address the defendant personally in open court, inform
the defendant of the consequences of a guilty plea, and determine whether the defendant understands
those consequences. See id.; Tenn. R. Crim. P. 11. A verbatim record of the guilty plea proceedings
must be made and must include, without limitation, “(a) the court’s advice to the defendant, (b) the
inquiry into the voluntariness of the plea including any plea agreement and into the defendant’s
understanding of the consequences of his entering a plea of guilty, and (c) the inquiry into the
accuracy of a guilty plea.” Mackey, 553 S.W.2d at 341.

       However, a trial court’s failure to follow the procedure mandated by Mackey does not
necessarily entitle the defendant to post-conviction relief. See State v. Prince, 781 S.W.2d 846, 853
(Tenn. 1989). Only if the violation of the advice litany required by Mackey or Tennessee Rule of
Criminal Procedure 11 is linked to a specified constitutional right is the challenge to the plea
cognizable in post-conviction proceedings. See Bryan v. State, 848 S.W.2d 72, 75 (Tenn. Crim.
App. 1992). “Whether the additional requirements of Mackey were met is not a constitutional issue
and cannot be asserted collaterally.” Johnson v. State, 834 S.W.2d 922, 925 (Tenn. 1992).

        In this case, the trial judge did advise and question the Petitioner as mandated by Mackey.
Indeed, the Petitioner does not dispute that the trial judge followed protocol during the guilty plea
hearing. The Petitioner’s claim rests on the assertion that his counsel did not properly advise him
of earlier plea negotiations and that his counsel told him to plead guilty for a thirteen-year sentence
that would be adjusted to three years. As discussed previously, we agree with the post-conviction
court that the Petitioner did not demonstrate that his attorney in any way failed to advise him or
coerced him. The record simply does not support the Petitioner’s claim that his guilty plea was not
knowingly, voluntarily, and intelligently entered.

        On the contrary, the Petitioner evidenced every intention during the guilty plea hearing to
plead guilty, and the Petitioner stated that no one had forced him to enter this plea. Further, although
the Petitioner claims that his attorney told him to only respond “yeah” to the judge’s questions, the
Petitioner nonetheless responded in the negative to key questions such as whether anyone had
coerced him and whether he had any questions regarding the plea. As such, we conclude that the
trial court did not err in determining that the guilty plea was properly entered.

        In summary, the trial court entered a comprehensive order denying post-conviction relief.
The order includes findings of fact and conclusions of law. The evidence does not preponderate
against the factual findings. The conclusions of law are sound.

                                         Conclusion
       Based upon the foregoing reasons and authorities, we affirm the judgment of the trial court.




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      ______________________________
      DAVID H. WELLES, JUDGE




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