        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 5, 2010

          JUSTIN RASHARD FORREST v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Madison County
                          No. C-09-31     Roy Morgan, Judge



                  No. W2009-00827-CCA-R3-PC - Filed April 14, 2010


The petitioner, Justin Rashard Forrest, appeals the judgment of the Madison County Circuit
Court denying his petition for post-conviction relief. Pursuant to a negotiated plea
agreement, the petitioner pleaded guilty to aggravated burglary, especially aggravated
kidnapping, and three counts of aggravated robbery in case number 07-337; aggravated
burglary and theft in case number 07-285; and possession of marijuana and especially
aggravated robbery in 07-286. The trial court sentenced him to an effective sentence of
fifteen years in the Tennessee Department of Correction. The petitioner filed a petition for
post-conviction relief alleging the ineffective assistance of counsel, and the post-conviction
court denied his petition. On appeal, the petitioner contends that the post-conviction court
erred when it denied his petition for post-conviction relief. After review, we affirm the
judgment of the post-conviction court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and C AMILLE
R. M CM ULLEN, JJ., joined.

Joseph T. Howell, Jackson, Tennessee, for the appellant, Justin Rashard Forrest.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney
General; Jerry Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                        Background

       A Madison County grand jury indicted the defendant for aggravated burglary,
especially aggravated kidnapping, and three counts of aggravated robbery in case number 07-
337; aggravated burglary and theft of more than $1,000 in case number 07-285; and
possession of marijuana and two counts of especially aggravated robbery in case number 07-
286. On January 14, 2008, the petitioner pleaded guilty to all counts, and the trial court
sentenced him to serve his sentences concurrently for an effective fifteen-year sentence, at
100 percent, in the Tennessee Department of Correction.

       During the plea submission hearing, the trial court and the petitioner engaged in a
colloquy, and the court advised the petitioner that he had the right to interrupt and ask for an
explanation if he did not understand anything. The petitioner stated that he understood that
right. The petitioner further stated that he was not under the influence of “alcohol, narcotics
or any other mind altering drugs.” The petitioner testified that he understood the charges and
ranges of penalties that he faced for each case. The court informed the petitioner that he had
the right to a speedy trial by jury, an attorney, to confront and cross-examine witnesses and
evidence, to testify, and to appeal an unsatisfactory result to a higher court. The petitioner
indicated that he understood his rights and understood that by pleading guilty he was waiving
his rights. Likewise, the petitioner testified that he understood that his convictions would
appear on his record, and courts could use them to enhance any future sentences. Finally the
court asked,

        Other than the plea agreement itself that you’re asking me to approve, has
        there been any force or pressure applied, any threats made or promises made
        . . . to get you to enter your plea of guilty today?

The petitioner answered, “No, sir.” Next, the trial judge asked the petitioner if he was
satisfied with his attorney’s representation, and the petitioner responded, “Yes, sir.”

        The parties stipulated to the statement of facts for each case, and the petitioner stated
that he reviewed the facts and agreed that they were correct.1 The court reviewed the plea
agreement with the petitioner, and the petitioner advised the court that he understood the
agreement, which included his convictions, sentences and release eligibility. During the
discussion about the agreement, the petitioner asked if the court would release him to federal
prison. The trial court advised the petitioner that the state and the Tennessee Department of
Correction would determine whether they would release him to federal custody. After
questioning the petitioner, the trial court found that the petitioner made his plea freely,
voluntarily, and intelligently with “the advice of counsel with whom he’s indicated he is
satisfied.”


        1
           The state did not recite the facts supporting the petitioner’s guilty plea to the court, and thus, they
are not included in the transcript of the guilty plea hearing. In addition, the petitioner agreed that the
statements contained in the indictments were “substantially correct to the facts of [his] cases;” however,
copies of the indictments are not included in the record on appeal.

                                                       -2-
        On February 4, 2009, the petitioner filed a pro se petition for post-conviction relief.
The court appointed counsel who filed an amended petition for post-conviction relief. The
state filed a response on March 16, 2009. The court held a hearing on April 13, 2009, and
the parties presented the following evidence.

        The petitioner testified that he filed a petition for post-conviction relief alleging
ineffective assistance of counsel. He further testified that he told the trial judge that he did
not understand his plea the week before his plea hearing; however, the judge “laughed it off”
and again asked if he understood it. The petitioner stated that he and the judge “had some
words,” and he was removed from the courtroom. He said that he did not “mean to mislead
the [c]ourt” on January 14 when he told the judge that he understood his plea, but he felt that
he had to plead guilty because trial counsel could never tell him anything about his case. The
petitioner also said that he did not intend to mislead the court when he testified that counsel’s
representation was satisfactory. He explained that he testified that he was satisfied with trial
counsel’s representation at the plea hearing because he did not think he could get a new
lawyer. The petitioner said that he felt coerced into accepting the plea agreement because
he did not feel that he could go to trial with his counsel. According to the petitioner, trial
counsel did not know anything about his case and answered that “she didn’t know, [and they
could] try to go to trial with it” when he asked questions.

        Concerning case number 07-337, the petitioner testified that counsel gave him a
package containing discovery materials but did not discuss the materials with him. The
petitioner said that he read the material as trial counsel instructed. After he read the material,
the petitioner asked trial counsel why she did not interview the witnesses with whom he had
asked her to speak. The petitioner testified that he told trial counsel that his brother and co-
defendant, Terrance Forrest2 , could testify that he was not at the scene and did not have
anything to do with the case. He also testified that his then girlfriend, Mikal Joy, could
testify in his defense. The petitioner did not think that trial counsel filed a notice of alibi
witnesses. He stated that trial counsel never spoke with Ms. Joy or anyone else. According
to the petitioner, Terrance and Ms. Joy were in the courtroom during his trial, but they did
not testify.

        In the petition for post-conviction relief, the petitioner alleged that trial counsel did
not file a motion to withdraw his guilty plea; however, the petitioner testified that he did not
ask her to do so. He stated that trial counsel told him that a plea agreement was in his “best
interest,” but he felt it was not in his “best interest [be]cause [he] could have went trial and
beat this stuff” by telling the jury that he was not involved. The petitioner said that he asked

       2
         Because the petitioner and Terrance Forrest have the same last name, we will refer to the
petitioner, Justin Rashard Forrest, as “the petitioner” and Terrance Forrest as “Terrance.” No
disrespect is intended to any person described or discussed herein.

                                               -3-
trial counsel to investigate tapes and videos if there were any. According to the petitioner,
trial counsel did not know what evidence that the state had against the petitioner. He stated
that after he read the discovery packet he learned that the victims had identified two other
people in the crime. The petitioner said that he wanted trial counsel to “represent[] [him] like
she was supposed to, and [they] could have went to trial.” He testified that if trial counsel
had looked through the discovery file, then they could have talked about the case. The
petitioner said it was as though trial counsel did not try to represent him.

       The petitioner testified that he did not discuss case number 07-285 with trial counsel.
However, he further testified that they met “a couple of times” and discussed another
possible suspect in the crime. The petitioner said that he tried to tell trial counsel that he did
not have anything to do with the aggravated burglary, but she “just sat there and looked at
[him].” He gave trial counsel information about two witnesses, Shawn Greer and Shaka
Finley, who could confirm that he did not have anything to do with the burglary, but he did
not know what trial counsel did with that information.

        Regarding case number 07-286, the petitioner stated that trial counsel did not
interview anyone regarding this case, and she “could have went and talked to the victim . .
. [and] the other suspects.” The petitioner stated that had trial counsel interviewed the people
involved in the case, “she would have [known] what she was talking about and could have
been ready to go to trial.” The petitioner said that trial counsel would have learned that
“there was [sic] a whole lot of lies, . . . them [sic] people was lying[,]” and he did not shoot
around anyone. The petitioner said that he was present when the shooting took place, but if
trial counsel would have investigated “she would have [known] that [he] was just sitting high
as Cooter Brown, . . . [and] couldn’t even tell you [his] name.”

        The petitioner initially testified that trial counsel did not advise him of his right to
appeal. However, he later testified that trial counsel told him that he could appeal if he lost,
and he stated that he knew he was going to lose with her as his attorney. The petitioner went
on to say that trial counsel told him that once he signed the plea agreement he could not
appeal. The petitioner read some “law books” while incarcerated and learned that “anything
that you do in the courtroom, you can appeal it.” He said that he waived the right to appeal
because he “really didn’t have [a] choice . . . .” The petitioner also said that he felt coerced
and pressured to accept the plea agreement because trial counsel “just really went with
whatever [sentence] she would get from [the state] . . . .” The petitioner said that when he
and the trial judge had “that little altercation” the week before trial, trial counsel advised him
that the “‘[b]est thing for [him] to do [was] to just sign for the time, just get it over with.”’
The petitioner said trial counsel’s advice “let [him] know right there she wasn’t on [his]
side.” He went on to say “I was afraid to go to trial because . . . she [was] the one who [had]
to get up and represent me, and every time I asked her something, it was, ‘I don’t know. Well
we can go to trial and find out and see.”’ The petitioner stated that when he found out that

                                               -4-
the state was seeking an enhanced punishment, he “signed for it” because he did not want
trial counsel to cause him to receive a life sentence. He wanted to research legal books and
material in prison so that he could “get the right paper” and “get it [done] how it [was
supposed] to be done.”

       On cross-examination, the petitioner testified that he had been in court and pleaded
guilty to charges on “numerous occasions.” The petitioner agreed that when he had
previously pleaded guilty the judge explained the rights that he was waiving, and he
understood that he was waiving his rights. The petitioner stated that he did not understand
that he was giving up his right to an appeal; however, he admitted that he answered “Yes,
sir” when the judge asked if understood that he was “giving up [his] valuable rights”
including the right to an appeal. The petitioner further stated that he and trial counsel went
over the charges in the indictment, but the petitioner testified that he did not understand the
charges. The petitioner said that although he did not intend to mislead the trial court, his
testimony at the plea hearing was not true. He stated that his testimony “wasn’t no [sic] lie,
but then at the same time, it wasn’t no [sic] truth either.”

        The petitioner recalled writing a letter to Assistant District Attorney General Jody
Pickens. In that letter, the petitioner told General Pickens that he was present during the
aggravated robbery. The petitioner explained that he was at the scene of the robbery, but
there was “no plan, no plot, or nothing [sic] to rob these people.” The petitioner stated that
he wrote the letter because he wanted the district attorney’s office to investigate his case
further “instead of just giving [him] that time [that he] was given . . . .” The petitioner
testified that he wrote ‘“[b]ut all I’m asking for is a good deal”’ in his letter because he
wanted a good deal for selling “dope” to someone, a crime with which the state did not
charge him. According to the petitioner, he wanted a deal on what he did and not on a
robbery that he did not do.

         When asked where he stated in his petition for post-conviction relief that he had an
alibi, the petitioner answered that he did not know. He stated that he told his appointed post-
conviction counsel about his four alibi witnesses, and post-conviction counsel subpoenaed
two of them. The petitioner further stated that post-conviction counsel probably could not
find the other witnesses. On redirect examination, he testified that he did not address his
alibi witnesses in his petition for post-conviction relief because he was trying to get his
petition filed before the deadline. He said that he did allege ineffective assistance of counsel
in his petition because trial counsel did not call his witness or investigate the case.

       Terrance, the petitioner’s brother, testified that he was the petitioner’s co-defendant
in case number 07-337. He pleaded guilty to aggravated robbery and especially aggravated
kidnapping in that case. Terrance stated that the petitioner did not have anything to do with
the case. He further stated that the victims “identified [the petitioner], and they thought [the

                                              -5-
petitioner] was [him] . . . .” He said that three witnesses were supposed to testify at the
preliminary hearing, but only one victim, whom he did not know anything about, testified.
Terrance stated that he stood up three times during the hearing to inform the court that the
petitioner was not involved in the crime. He further stated that had counsel called him to
testify during the petitioner’s trial, he would have testified that the petitioner was not
involved. Likewise, in his statement to the police, Terrance stated that the petitioner did not
have anything to do with the robbery. According to Terrance, trial counsel did not interview
him about the case.

        On cross-examination, Terrance denied that he told trial counsel that he would not
“take all the rap” for the petitioner. He said that the petitioner and another man named
Randall did not get involved in this case until Terrance and the victim had a “confrontation
at the hotel and [the victims] said [Terrance] robbed [a victim] and tied him up . . . .”
Terrance said that what really happened was that he “shorted [the victim] on some drugs”
and no one else was involved. Terrance denied that the testimony at trial would show that
three men were involved. He maintained that he was the only one present in the hotel room.
When asked whether he recalled his statements “‘Randall had already left the room,” and
“[m]e and Randall both went in the room,” Terrance then stated that he, Randall, and the
three victims were in the room. On redirect examination, Terrance testified that nothing in
his statement suggested that the petitioner was present during the crime.

        Trial counsel testified that she was employed as a public defender in January 2008,
and she represented the petitioner in his three cases. Trial counsel stated that she prepares
for her cases by meeting with the client to discuss the case, the district attorney’s offer, and
whether to modify the offer or prepare for trial. She further stated that this was the manner
in which she prepared for the petitioner’s case. Trial counsel said that she met with the
petitioner three times before the plea agreement, and they exchanged several letters. The
letters “alluded to the fact that there was one particular case that [the petitioner] was involved
in that he said that there were people who could prove he wasn’t there, but [the petitioner]
never identified who those people were or gave [her] any way to get in touch with them.”
She stated that she did not ask the petitioner for that information. Shortly after she got the
information, the petitioner decided that he wanted to plead guilty to his state charges because
of his pending federal charges. She recalled that his federal charges resulted in the petitioner
receiving “like [twenty] years or something.” Trial counsel testified that after the petitioner
received the federal sentence, he said that “he just wanted to be done with it and not have to
come back, just go on to the federal facility.” When the petitioner decided this, trial counsel
began negotiating with the state, and they agreed that his sentences would run concurrently.

       Trial counsel recalled that at the plea hearing the trial judge advised the petitioner of
the rights that he was waiving by pleading guilty. She testified that the petitioner never
suggested that he did not want to plead guilty. According to trial counsel, the petitioner “just

                                               -6-
wanted the best deal he could get,” and he got the best deal that she could get for him. She
stated that the petitioner agreed to accept the deal and never indicated to her or the court that
he wanted anything different. She further stated that had the petitioner decided to go to trial,
she would have prepared to represent him at trial.

        On cross-examination, trial counsel testified that the petitioner never mentioned Mikal
Joy to her. She recalled Terrance giving a statement to the police, but she could not recall
the specifics of the report. Trial counsel stated that she did not interview Terrance because
private counsel represented him. She further stated that she never discussed the case with
Terrance’s counsel because “very shortly after the subject came up, [the petitioner] indicated
that because of the federal charges, he just wanted to go ahead and plead it out as long as the
two sentences could run concurrent.” Regarding the petitioner’s aggravated burglary charge
in case number 07-285, she testified that the petitioner did not give her the names of Shaka
Finley or Shawn Greer to interview as potential witnesses. Trial counsel spoke briefly with
one victim in that case and what the victim told her “paralleled what he had reported to the
police.” Trial counsel testified that she did not interview any of the victims and witnesses
in the petitioner’s especially aggravated robbery case because the petitioner had told her “‘I
want this over with. I just want to go off and do my time.”’ She stated that she and the
petitioner discussed the incident that occurred at the Casey Jones Motel the most because “he
seemed the most disturbed” about that case. She further stated that the petitioner “wanted
[her] to understand that [the incident] didn’t go down the way the victim claimed it did.”
Based on the petitioner’s concerns, she talked to the victim who had called the police. She
said that she had two different stories, and she would have investigated if the petitioner said
that he wanted to go to trial.

        On redirect examination, trial counsel stated that the way she approaches case
preparation depends on whether the client wants to go to trial or reach a plea agreement. She
stated that because the petitioner “made it very clear” that he did not want to go to trial, she
used the plea agreement avenue for her defense preparation.

        Following the hearing, the post-conviction court entered an order denying the
petitioner’s request for post-conviction relief. The court made findings of fact and
determined that the petitioner “failed to carry his burden of proof in this matter by clear and
convincing evidence and that [the petitioner] did enter his guilty plea knowingly and
intelligently and that there was nothing that counsel did or did not do that in [any way]
affected any right of the [petitioner].” The petitioner timely appealed the judgment of the
post-conviction court.

                                           Analysis




                                               -7-
       In order for a petitioner to succeed on a post-conviction claim, the petitioner must
prove the allegations of fact set forth in his petition by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f). On appeal, this court is required to affirm the post-conviction
court’s findings unless the petitioner proves that the evidence preponderates against those
findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction
court’s factual findings, such as findings concerning the credibility of witnesses and the
weight and value given their testimony, is de novo with a presumption that the findings are
correct. See id. Our review of the post-conviction court’s legal conclusions and application
of law to facts is de novo without a presumption of correctness. Fields v. State, 40 S.W.3d
450, 457-58 (Tenn. 2001).

        To establish the ineffective assistance of counsel, the petitioner bears the burden of
proving that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced the defense rendering the outcome unreliable or fundamentally unfair. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d
784, 787 (Tenn. 2004). Deficient performance is shown if counsel’s conduct fell below an
objective standard of reasonableness under prevailing professional standards. Strickland, 466
U.S. at 688; see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that
representation should be within the range of competence demanded of attorneys in criminal
cases). Prejudice is shown if, but for counsel’s unprofessional errors, there is a reasonable
probability that the outcome of the proceeding would have been different. Strickland, 466
U.S. at 694. A fair assessment of counsel’s performance “requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id.
at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). Both deficient
performance and prejudice must be established to prove ineffective assistance of counsel.
Strickland, 466 U.S. at 697; see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). If
either element of ineffective assistance of counsel has not been established, a court need not
address the other element. Strickland, 466 U.S. at 697.

        The two-part standard of proving ineffective assistance of counsel also applies to
claims arising out of the plea process. The prejudice requirement is modified so that the
petitioner must show a reasonable probability that, but for the errors of counsel, the petitioner
would not have pleaded guilty. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); Adkins v. State,
911 S.W.2d 334, 349 (Tenn. Crim. App. 1994). It is also helpful to note that when
determining the knowing and voluntary nature of the guilty plea, the standard is “whether the
plea represents a voluntary and intelligent choice among the alternative courses of action
open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970); see also State v.
Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). A petitioner’s solemn declaration in open court
that his or her plea is knowing and voluntary creates a formidable barrier in any subsequent



                                               -8-
collateral proceeding because these declarations “carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 74 (1977).

       On appeal, the petitioner claims that he received the ineffective assistance of counsel,
which caused him to enter an unknowing and involuntary guilty plea. Specifically, the
defendant contends that his counsel was ineffective for failing to interview witnesses; address
the issues raised by him before the plea hearing; and review, explain, and discuss the
discovery materials.

        The post-conviction court found that the defendant had effective representation during
his guilty plea and that he entered his plea knowingly and voluntarily. The court also found
that the petitioner only made “general speculations” regarding the video and other evidence
that he wanted trial counsel to investigate, and there was “absolutely no evidence that any
videos or similar items existed.” The court further found that, contrary to the petitioner’s
assertions, the guilty plea transcript shows that the petitioner was well advised of the rights
that he was giving up by pleading guilty. Likewise, the court found that trial counsel
discussed the facts of the case and the charges in the indictment with the petitioner. The
post-conviction court did not assign any merit to the petitioner’s argument regarding trial
counsel’s failure to use alibi witnesses and noted that the defendant only presented one
witness that he asserted his counsel should have interviewed. The presentation of witnesses
at the post-conviction hearing is generally necessary to prove that counsel’s failure to present
evidence resulted in prejudice to the petitioner. See Black v. State, 794 S.W.2d 752, 757
(Tenn. Crim. App. 1990). Although the petitioner presented Terrance as a witness at the
post-conviction hearing, the court accredited trial counsel’s testimony that she did not pursue
using him as a witness because the petitioner decided he wanted to plead guilty. Moreover,
the post-conviction court found trial counsel’s testimony that the petitioner’s only concern
was getting a deal that would allow his state and federal sentences to run concurrently was
credible. Trial counsel was in the process of interviewing witnesses, but when the petitioner
decided that he wanted to plead guilty, she abandoned that avenue of preparation and
negotiated the best possible deal for the petitioner. Thus, the post-conviction court found that
trial counsel was not deficient. We conclude that nothing in the record preponderates against
the post-conviction court’s findings; therefore, we affirm the post-conviction court’s denial
of the defendant’s petition.




                                                    ___________________________________
                                                    J.C. McLIN, JUDGE



                                              -9-
