        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 18, 2013

                 QUINCY MOUTRY v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                      No. 99082     Mary Beth Leibowitz, Judge


              No. E2013-01313-CCA-R3-PC-FILED-JANUARY 28, 2014


Petitioner pleaded guilty to manufacturing less than .5 grams of a controlled substance and
received a sentence of seven years. Petitioner filed an unsuccessful petition for post-
conviction relief. On appeal, petitioner contends that he received ineffective assistance of
counsel prior to his guilty plea hearing and that his guilty plea was not knowing and
voluntary. Following our review, we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
N ORMA M CG EE O GLE, J., joined.

Jonathan S. Wood, Knoxville, Tennessee, for the appellant, Quincy Moutry.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           I. Facts

                                   A. Guilty Plea Hearing

        While neither the indictments nor the judgments are included in the record, we glean
that appellant was indicted for manufacturing a controlled substance within 1000 feet of a
child care agency or recreation center, possession of cocaine with intent to sell, and simple
possession of cocaine. Pursuant to a plea agreement, on October 26, 2011, petitioner pleaded
guilty to the lesser-included charge of manufacturing less than .5 grams of cocaine, a Class
C felony, and the State dismissed the remaining two counts. The plea agreement also
provided that petitioner would receive a seven-year sentence, to be served at one hundred
percent release eligibility and concurrently with a twenty-seven-year sentence he received
in an unrelated carjacking case.

        At the guilty plea submission hearing, the State presented the following factual basis
for the guilty plea:

       [O]fficers with the Knoxville Police Department . . . conducted a number of
       undercover buys from 1315 Alliance Avenue, Apartment 106. Upon further
       investigation, it was determined that these buys were made from [petitioner]
       and that he lived in this apartment with Latasha Bell.

              On this particular day, officers with the Knoxville Police Department
       had a search warrant for this apartment that [petitioner] -- he was stopped in
       a vehicle leaving from the apartment. They executed the search warrant of the
       apartment. Inside of the apartment, they found items used to make crack
       cocaine, to package crack cocaine, baggies, razor blades, some cocaine
       residue, some marijuana seeds, some scales, ID belonging to [petitioner], as
       well as letters and clothing in the bedroom that he shared with Ms. Bell.

             Further proof would be that all these events did take place in Knox
       County[] [and] that when [petitioner] was arrested, he [had] $215 in cash on
       him. All this was consistent with the manufacturing and sale of cocaine.

        Petitioner did not object to the State’s recitation of the facts. Petitioner stated that he
was thirty-four years old and had completed the twelfth grade. He agreed that he understood
the offense with which he was charged, the range of punishment he might receive, and the
rights he would waive by pleading guilty. He further agreed that he understood his sentence
and that his conviction could be used in a subsequent prosecution to enhance his sentence.
He agreed that he had not been coerced and stated, “I’m doing it on my own.”

       Following the guilty plea hearing, petitioner filed a pro se motion to withdraw his
guilty plea. However, the trial court determined that the motion was not timely.

                               B. Post-Conviction Proceedings

      Petitioner filed a petition for post-conviction relief, and the post-conviction court
appointed counsel, who filed an amended petition. The court held an evidentiary hearing at
which petitioner and his trial counsel testified.

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        Petitioner testified that trial counsel represented him in another case that involved
carjacking, robbery, and weapons charges at the same time that he represented petitioner in
this drug case. Petitioner went to trial on the carjacking case and was subsequently found
guilty and sentenced to twenty-seven years. Petitioner was aware of the drug charges, but
trial counsel never discussed the drug case with him. He said that he did not receive a copy
of the evidence in the drug case until October 26, 2011, which was intended to be his trial
date for the drug case. Petitioner explained that trial counsel gave him the evidence and
presented the State’s plea offer prior to court and that he did not have an opportunity to
review the evidence before his guilty plea hearing. Petitioner testified that after his guilty
plea hearing, he reviewed the evidence and determined that, in his opinion, the evidence did
not match the offense to which he pleaded guilty. He said he wrote trial counsel a letter
asking that trial counsel enter a motion to withdraw the guilty plea. Petitioner said he also
called trial counsel but was not able to reach him. Petitioner testified that he was never able
to contact trial counsel and that he ultimately filed a pro se motion to withdraw the guilty
plea. The trial court, however, determined that the motion was filed after the thirty-day
limitation.

        Petitioner further testified that he met with trial counsel at the jail on October 25,
2011, but that they primarily discussed the motion for new trial in the carjacking case, which
was set to be heard the day after petitioner’s trial in the drug case. Petitioner said that the
only discussion he and trial counsel had regarding the drug case was when trial counsel
presented a plea offer from the State for a two-year sentence. Petitioner also stated that he
filed a motion with the trial court requesting new counsel but that the trial court denied his
request.

        On cross-examination, petitioner testified that he had pleaded guilty to second degree
murder and attempted aggravated robbery in 1999. He agreed that the trial court informed
him at that time that those convictions could be used in a subsequent proceeding to enhance
his punishment. Petitioner further agreed that on June 27, 2011, he had been sentenced as
a Range II offender in the carjacking case, but petitioner insisted that he did not know that
he would be sentenced as a Range II offender in the drug case. Petitioner testified that he
attempted to have trial counsel object to the State’s presentation of the factual basis for the
plea but that trial counsel ignored him. He said that he was aware that his girlfriend and co-
defendant, Latasha Bell, had been prepared to testify against him at trial. Petitioner testified
that if he had known what was in the discovery materials, he would not have pleaded guilty.
However, he acknowledged that he was charged with manufacturing less than 0.5 grams of
a controlled substance and that the laboratory report indicated that 0.2 grams of cocaine was
found in the apartment. Petitioner agreed that 0.2 grams is less than 0.5 grams. Petitioner
further agreed that he answered “yes” each time the trial court asked him if he understood
the guilty plea proceedings. Petitioner testified that he “expressed [his] displeasure” with his

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trial counsel to the trial court in the weeks prior to his guilty plea hearing and that he had
complained about trial counsel to the Board of Professional Responsibility. He agreed that
he did not express any displeasure, however, during the guilty plea hearing.

       On re-direct examination, petitioner testified that he understood the guilty plea
proceedings, having been through the process before, but that he did not understand the
nature of the case against him. Following his testimony, he rested his case.

        The State called trial counsel to testify. Trial counsel said that during the sentencing
for petitioner’s carjacking conviction, the trial court found him to be a dangerous offender.
As a result, trial counsel believed that the trial court would have imposed consecutive
sentencing in petitioner’s drug case had petitioner been found guilty after a trial. Trial
counsel testified that petitioner met with him at his office three times while petitioner was
on bond. He further testified that he reviewed the evidence in both cases with petitioner
during those meetings. In particular, trial counsel recalled showing pictures of items found
in the apartment to petitioner because petitioner insisted that he did not live at the apartment.
Those items included petitioner’s identification, clothing, a traffic citation issued to
petitioner, and a photograph of petitioner with a group of men. Trial counsel testified that
an issue in the drug case was whether petitioner’s girlfriend would testify against him and
that she had participated in petitioner’s defense before she became a witness for the State.
Trial counsel further testified that as far as he knew, petitioner had been aware of the facts
of the case prior to pleading guilty. Trial counsel said that he did not recall receiving a letter
from petitioner about withdrawing his guilty plea. On cross-examination, trial counsel
testified that he advised petitioner that it was in his best interest to accept the plea agreement.

       In its written order denying post-conviction relief, the post-conviction court
determined that “[t]he proof [was] overwhelming that [petitioner] was aware of the evidence
and prospective testimony prior to [the] plea.” The post-conviction court found that
petitioner did not prove that he would have gone to trial but for any alleged errors of trial
counsel.

                                           II. Analysis

                             A. Ineffective Assistance of Counsel

       On appeal, petitioner contends that he received ineffective assistance of counsel and
that he entered his guilty plea involuntarily and unknowingly as a result of the ineffective
assistance. In particular, petitioner alleges that he never had the opportunity to review the
evidence against him because trial counsel never discussed the pending drug case with him
and did not give him the discovery materials until just before the guilty plea hearing. The

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State responds that petitioner failed to prove his factual allegations by clear and convincing
evidence. We agree with the State.

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,
562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

        The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court held:

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       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).

        To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)). When
a petitioner’s claims that ineffective assistance of counsel contributed to his entering a guilty
plea that was not voluntary, the Supreme Court has required a petitioner to demonstrate a
reasonable probability that but for counsel’s ineffectiveness, he would not have entered the
guilty plea and would have insisted on standing trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985). Accordingly, in this case, petitioner must demonstrate that trial counsel’s
representation was deficient and that but for counsel’s mistakes, he would not have entered
the guilty plea. Veldora L. Trout v. State, No. W2000-00857-CCA-R3-PC, 2001 WL
359238, at *2 (Tenn. Crim. App. Apr. 9, 2001).

       In this case, the trial court found that the proof was overwhelming that petitioner was
aware of the facts of his case prior to pleading guilty, and the record does not preponderate
against this finding. Trial counsel testified that he met with petitioner several times to review
the discovery in both his carjacking case and his drug case. He specifically recalled showing
photographs to petitioner that were related to the drug case and discussing whether
petitioner’s girlfriend would testify against him. Moreover, petitioner never indicated during
his guilty plea hearing that he contested the State’s recitation of the facts. The trial court
found that petitioner had not proven his factual allegations by clear and convincing evidence.
We will not disturb the trial court’s factual finding on appeal. Therefore, we conclude that

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appellant has not shown that trial counsel’s representation was deficient, and he is without
relief as to this issue.

                                        B. Guilty Plea

       Appellant argues that he entered his guilty plea unknowingly and involuntarily
because he was unaware of the nature of the case against him due to the ineffectiveness of
his counsel. The State responds that the totality of the circumstances indicate that appellant’s
decision to plead guilty was knowing, voluntary, and intelligent. We agree with the State.

        A guilty plea must be entered knowingly, voluntarily, and intelligently. Lane, 316
S.W.3d at 562 (citations omitted); see North Carolina v. Alford, 400 U.S. 25, 31 (1970);
Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). If a plea is not knowingly, voluntarily, and
intelligently entered, the guilty plea is void because appellant has been denied due process.
Lane, 316 S.W.3d at 562 (citing Boykin, 395 U.S. at 243 n.5; State v. Mellon, 118 S.W.3d
340, 345 (Tenn. 2003)). To make such a determination, the court must examine “whether
the plea represents a voluntary and intelligent choice among the alternative courses of action
open to the defendant.” Id. (quoting Grindstaff v. State, 297 S.W.3d 208, 218 (Tenn. 2009).
Courts should consider the following factors when ascertaining the validity of a guilty plea:
(1) the defendant’s relative intelligence; (2) the defendant’s familiarity with criminal
proceedings; (3) the competency of counsel and the defendant’s opportunity to confer with
counsel about alternatives; (4) the advice of counsel and the court about the charges 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. (quoting Howell v. State, 185 S.W.3d 319,
330-31 (Tenn. 2006)). “[A] plea is not voluntary if it results from ‘[i]gnorance,
incomprehension, coercion, terror, inducements, [or] subtle or blatant threats.’” Id. at 563
(quoting Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993)). Thus, the transcript of
the plea colloquy must affirmatively show that a defendant’s decision to plead guilty was
both voluntary and knowledgeable. Id. (quoting State v. Mackey, 553 S.W.2d 337, 340
(Tenn. 1977). The trial court must ensure that the defendant entered a knowing and
intelligent plea by thoroughly “‘canvass[ing] the matter with the accused to make sure that
he has a full understanding of what the plea connotes and of its consequences.’” Id. (quoting
Blankenship, 858 S.W.2d at 904).

        In this case, we have already concluded that appellant received constitutionally
effective counsel; therefore, his argument that he was unaware of the nature of his case due
to his counsel’s ineffectiveness is without merit. Moreover, petitioner was apprised of the
facts of his case by the State prior to entering his plea, and the trial court questioned him to
ensure that he understood the proceedings. Petitioner affirmed several times during the plea
colloquy that he understood his rights, his plea, and his sentence, and that he was not

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coerced. “A Petitioner’s testimony at a guilty plea hearing ‘constitute[s] a formidable
barrier’ in any subsequent collateral proceeding because ‘[s]olemn declarations in open court
carry a strong presumption of verity.’” Bruce S. Rishton v. State, No. E2010-02050-CCA-
R3-PC, 2012 WL 1825704, at *17 (Tenn. Crim. App. May 21, 2012) (quoting Blackledge
v. Allison, 431 U.S. 63, 74 (1977)). In addition, petitioner testified at the post-conviction
hearing that he understood the guilty plea proceedings having been through them before. The
record also indicates that trial counsel was concerned that the trial court would have imposed
consecutive sentencing had petitioner been found guilty of the drug charges at trial and that
he advised petitioner that the guilty plea was in his best interests. We conclude that
petitioner entered his guilty plea knowingly, voluntarily, and intelligently. He is not entitled
to relief on this issue.

                                       CONCLUSION

       Based on our review of the record, the parties’ briefs, and the applicable law, we
affirm the judgment of the post-conviction court.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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