         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs January 15, 2014

                   FELIX TAMAYO v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                    No. 2009-B-1946    Cheryl Blackburn, Judge




                No. M2013-01273-CCA-R3-PC - Filed February 19, 2014


The Petitioner, Felix Tamayo, pled guilty to five counts of aggravated robbery and agreed
to allow the trial court to determine the length and manner of service of his sentence. After
a sentencing hearing, the trial court imposed consecutive twelve-year sentences for a total
effective sentence of sixty years. On appeal, this Court affirmed the Petitioner’s sentence.
State v. Felix Tamayo, No. M2010-00800-CCA-R3-CD, 2011 WL 1876315, at *1 (Tenn.
Crim. App., at Nashville, May. 16, 2011), perm. app. denied (Tenn. Sept. 21, 2011). The
Petitioner timely filed a petition seeking post-conviction relief on the basis that his guilty plea
was not knowingly and voluntarily entered, which the post-conviction court denied after a
hearing. The Petitioner appeals the post-conviction court’s denial, maintaining that his guilty
pleas were not knowingly and voluntarily entered because he was not advised that he could
receive consecutive sentencing. After a thorough review of the record, the briefs, and
relevant authorities, we affirm the post-conviction court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.

Chad Davidson, Nashville, Tennessee, for the Appellant, Felix Tamayo.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                           OPINION

                                             I. Facts
      A Davidson County grand jury indicted the Petitioner for seven counts of aggravated
robbery. The Petitioner pled guilty to five counts of aggravated robbery.

                             A. Guilty Plea Submission Hearing

       At the guilty plea submission hearing, the trial court reviewed the Petitioner’s charges
and the range of sentences that the Petitioner might receive at the subsequent sentencing
hearing. The Petitioner affirmed his understanding of the charges and the range of sentences.
The trial court asked if the Petitioner understood that he faced the possibility of consecutive
sentencing, and the Petitioner responded affirmatively. The trial court reviewed the
Petitioner’s rights and the waiver of those rights as it related to the entry of a guilty plea. The
Petitioner once again affirmed his understanding. The Petitioner denied that he was
influenced by any medication and denied that he was experiencing any “difficulty”
understanding his decision to plead guilty to the offenses. The Petitioner testified that he had
reviewed the plea petition with his attorney and that his attorney had satisfactorily answered
any questions. The State presented the following factual basis for the trial court’s acceptance
of the guilty plea:

       [O]n February the 20th of 2009 [there were] two separate incidents . . . . [T]he
       first incident in time occurred where Mr. Adam Willis and Ms. Mildred
       Whittendem (phonetic) were in a vehicle near a bowling alley. And the
       [Petitioner], as it turned out to be, approached and robbed them each of
       property with what at least to them appeared to be a handgun and fled in a
       vehicle. That was shortly after midnight on the 20 th .

               Not too long after that the next incident involved Mr. Terry Coat
       (phonetic), Wynona Hilton (phonetic), and Nora Canfield (phonetic). This
       occurred, I believe, as they were leaving a club on Nolensville Road. Mr. Coat
       was walking Ms. Hilton and Ms. Canfield to their car. They had gotten seated
       in the car when a person came up behind Mr. Coat, struck him from behind,
       and knocked him to the ground. It turned out to be the person - - it was [the
       Petitioner], who had a gun or something that looked like a gun. They robbed
       Mr. Coat of property. They robbed Ms. Hilton of property and Ms. Canfield.
       In addition Mr. Coat was struck several times with this gun. [The Petitioner’s]
       accomplice had some type of rod or long item that he was hitting Mr. Coat in
       the back of the head with. He also broke out the windshield of the vehicle that
       belongs to one of these ladies and hit one of the ladies in the leg . . . when she
       didn’t produce her handbag quickly enough. But in any event all five of these
       people were robbed that night.

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              And eventually [the Petitioner] and this group of people came to be
       suspects. [The Petitioner] was interviewed by detectives, and he admitted to
       these two incidents during the interview and said he was the person with the
       gun. He didn’t say it was a real gun. But he did admit he was the person that
       had a fake gun and robbed these people. And as I said, this was a recorded
       interview. And that would be the bulk - - in fact, that would be all of the
       proof, that it was this [Petitioner].

       The Petitioner entered his plea of guilt as to each of the five charges. The trial court
accepted the plea and determined that the Petitioner’s pleas were “voluntarily and factually
based.”

                                B. Post-Conviction Hearing

       At the post-conviction hearing, the Petitioner testified that he met with his attorney
(“Counsel”) four or five times over thirteen or fourteen months. The Petitioner stated that
he received various offers from the State. Initially he wished to proceed to trial, but later he
“didn’t want to take the trial.” The Petitioner said that he believed that the potential amount
of time he stood to serve if he pled “open” to the five counts was twelve years. He said he
based this on the State’s offer for the Petitioner to plead to five of the seven counts with a
sentencing range of eight to twelve years. He explained that this “made sense to [him], so
[he] ran with it.”

       The Petitioner testified that it was not until the day of the sentencing hearing that he
realized he could potentially serve up to sixty years. He said that he told Counsel “I did not
plead to this” and that he wanted to “take [his] plea back.” In response, Counsel told the
Petitioner that, “It was too late because [he] signed the paperwork.”

       The Petitioner testified that he understood that each of the counts was a “separate
case.” He said that Counsel discussed with him possible defenses for each of the robberies.
He also recalled that Counsel argued to suppress the Petitioner’s statements to police but that
the motion was denied.

       The Petitioner testified that he had pled guilty to theft of property before and received
a probation sentence. The Petitioner said that he did not have any difficulty understanding
his previous plea but that this was “the first really pretty serious case.” The Petitioner stated
that he was currently twenty-two years old.

       On cross-examination, the Petitioner stated that he had completed the eighth grade.

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When asked why at the guilty plea submission hearing he told the trial court he had
completed the tenth grade, the Petitioner said, “I don’t remember that.” The Petitioner
agreed that the State’s previous offers had also been for a set number of years in the range
of twenty to twenty-two years. Despite the State’s consistent offers for sentences around
twenty-years, the Petitioner stated that he believed the final offer was for a maximum of
twelve years.

       The Petitioner testified that he understood that, because the trial court had denied his
motion to suppress, his statement admitting to each of the robberies would have been
introduced to the jury. The Petitioner stated that his defense at trial would have been that the
police coerced him into admitting to the crimes.

        The Petitioner testified that, even though the trial court discussed consecutive
sentencing with him during the plea submission hearing, he did not understand “what
consecutive concurrent was.” The Petitioner stated that he did not remember the trial court
telling him at the plea submission hearing that his effective sentence might be eight years or
it might be sixty years. The Petitioner stated that he asked Counsel instead of the trial court
about why the trial court said he could receive sixty years and that Counsel told him “twelve
years.”

       The Petitioner testified that he lied when he told the trial court at the plea submission
hearing that he understood its explanation of consecutive sentencing. He said that he did so
because he wanted to “hurry up and get out of here.”

         Gonzalo Villegas, the Petitioner’s brother, testified that he was present while Counsel
reviewed the State’s offer with the Petitioner. Mr. Villegas said that he never heard Counsel
tell the Petitioner he could potentially receive an effective sixty-year sentence. Mr. Villegas
said that he encouraged the Petitioner to take the State’s offer of eight to twelve years. Mr.
Villegas said that he told the Petitioner that, if he did it, he should “pay the time,” but the
eight to twelve-year offer was one that was not so excessive as to “throw [his] life away.”
Mr. Villegas said that he and the Petitioner discussed the State’s offer before the Petitioner
went into the courtroom and pled. Mr. Villegas maintained that neither of them realized the
State’s offer allowed for a sixty-year sentence.

      On cross-examination, Mr. Villegas testified that he was present when Counsel
conveyed the offer, but he did not hear Counsel review the Petitioner’s rights with him or
observe the Petitioner sign the plea agreement. Mr. Villegas agreed that he did not know
what discussions took place between Counsel and the Petitioner after he left the room.

       Mr. Villegas testified that he sat through the sentencing hearing and “everything was

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not right.” He said he observed the Petitioner and could tell that he was “nervous” and “just
wanted to get rid of it.” Mr. Villegas opined that the Petitioner had his mind set on twelve
years and did not “know what he got involved in.” Mr. Villegas said he watched the
Petitioner agreeing, but he did not believe he was in the position to yell to the Petitioner
across the room “it’s not right.”

       Counsel testified that he had been licensed as an attorney since 2004 and
approximately eighty or ninety percent of his practice was criminal defense work. Counsel
recalled that the State made two alternative offers to the Petitioner: (1) plead to between three
and five of the counts for a twenty-three-year sentence; or (2) plead to a number of the counts
with an eight to thirty year sentencing range. Counsel conveyed the offers to the Petitioner
and negotiated with the State on these offers. The State amended the offer to include a guilty
plea to all counts of the indictment for a twenty-year sentence. Counsel said that the
Petitioner rejected all of the offers, and the case was set for trial. Counsel agreed that
discussions about any of those offers would have required him to discuss the possibility of
consecutive sentencing with the Petitioner. Counsel said that he did not have a “specific
recollection of that conversation” but was “certain” he would have explained consecutive
sentencing to the Petitioner.

       Counsel testified that, after losing the suppression hearing, the Petitioner agreed to
accept the State’s offer. Counsel said that he reviewed the plea petition with the Petitioner.
He said that he talked with the Petitioner about the fact the plea was “open” with no
agreement as to the sentence. Counsel said that he anticipated that the trial court would
impose a twenty to twenty-five-year sentence. Counsel said that he also expected the trial
court to impose consecutive sentencing.

        Counsel testified that he did not recall the Petitioner ever stating he wished to
withdraw his plea or that he believed his sentence would be twelve years. Counsel confirmed
that the Petitioner’s brother was present during some of his discussions with the Petitioner.
 Counsel said that he recalled that Mr. Villegas was “fairly adamant” that his brother should
not take the plea and advised the Petitioner that he was “throwing his life away.”

         On cross-examination, Counsel estimated that he met with the Petitioner between ten
and fifteen times. Counsel said that in light of the Petitioner’s full admission to the charged
offenses, he “didn’t have a very good defense.” Counsel agreed that he advised the
Petitioner to take the offer because he “didn’t see any real hope that we would be successful
at trial.”

       After hearing the evidence, the trial court took the issue under advisement and later
issued an order denying the Petitioner relief. It is from this judgment that the Petitioner now

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appeals.

                                          II. Analysis

       On appeal, the Petitioner contends that because he received the ineffective assistance
of counsel his guilty plea was not knowingly and voluntarily entered. The State responds that
the Petitioner has failed to prove that Counsel was ineffective or that his guilty pleas were
involuntary. We agree with the State.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:

       First, the [petitioner] 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 [petitioner] by the Sixth
       Amendment. Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 S.W.2d
417, 419 (Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, “a petitioner must show that counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the “distorting
effects of hindsight” and “judge the reasonableness of counsel’s challenged conduct on the

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facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S.
at 689-90. In doing so, the reviewing court must be highly deferential 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. Finally, we note that a defendant in a
criminal case is not entitled to perfect representation, only constitutionally adequate
representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other
words, “in considering claims of ineffective assistance of counsel, ‘we address not what is
prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483
U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)).
Counsel should not be deemed to have been ineffective merely because a different procedure
or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276, 279-
80 (Tenn. Crim. App. 1980). “The fact that a particular strategy or tactic failed or hurt the
defense, does not, standing alone, establish unreasonable representation. However, deference
to matters of strategy and tactical choices applies only if the choices are informed ones based
upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

       If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State,
90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875
S.W.2d 662, 665 (Tenn. 1994). In the context of a guilty plea, as in this case, the effective
assistance of counsel is relevant only to the extent that it affects the voluntariness of the plea.
Therefore, to satisfy the second prong of Strickland, the 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 v. Lockhart, 474 U.S. 52, 59 (1985) (footnote
omitted); see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        In the its written order, the trial court provided the following reasoning in support of
its denial of relief:

       [T]he guilty plea transcript belies Petitioner’s claims. During the plea colloquy
       the Court explained to Petitioner his potential exposure and the possibility of
       concurrent or consecutive sentencing, which would result [in] a total effective
       sentence of as low as 8 years or up to 60 years. Petitioner affirmed that he
       understood. Petitioner took a risk by electing to have the sentencing hearing
       in lieu of one of the State’s offers setting the time to serve. It appears that
       Petitioner is experiencing “buyer’s remorse.”



                                                -7-
              ....

               The Court notes that during [the] hearing Petitioner was actively
       engaged in the plea colloquy; Petitioner did not merely respond “yes” or “no”
       to all of the Court’s questioning. For example, when there was an issue as to
       how many charges were involved in the plea, Petitioner confirmed that there
       were only five remaining charges. Then, when asked if he was satisfied with
       counsel, Petitioner advised the Court he felt like he needed more time but
       ultimately agreed that counsel had done everything requested. Further, after
       the State provided a recitation of the underlying facts, before indicating the
       facts were generally true, Petitioner took issue with the charge involving Terry
       Coat explaining his involvement in the robbery. The Court then explained the
       concept of criminal responsibility [and] Petitioner indicated he understood.

              ....

              A review of the record including the guilty plea hearing affirmatively
       demonstrates that [P]etitioner’s guilty plea was made with an awareness of the
       consequences, and, as such, the guilty plea was voluntarily and knowingly
       entered.

              ....

       Petitioner has failed to meet his burden of proving by clear and convincing
       evidence that his trial counsel was ineffective or that he was prejudiced by any
       alleged deficiency.

(Citations omitted).

       We agree with the post-conviction court that the Petitioner has failed to prove by clear
and convincing evidence that his plea was not made knowingly and voluntarily. See T.C.A.
§ 40-30-110(f) (2006); Momon, 18 S.W.3d at 156. Counsel’s testimony and the guilty plea
hearing transcript indicate that the Petitioner was advised and understood the potential range
of sentence. The Petitioner has not shown that “but for” Counsel’s alleged errors, he would
have insisted on proceeding to trial. See Walton, 966 S.W.2d 54, 55. Therefore, the
Petitioner is not entitled to relief on this issue.

                                       II. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that the


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post-conviction court properly denied post-conviction relief. Accordingly, we affirm the
judgment of the post-conviction court.


                                                _________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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