        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 18, 2013

               ERIKA CIENFUEGOS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                    No. 2008-C-3013    Mark J. Fishburn, Judge


              No. M2012-01924-CCA-R3-PC - Filed September 27, 2013


The Petitioner, Erika Cienfuegos, appeals from the post-conviction court’s denial of her
petition for post-conviction relief, contending that she received the ineffective assistance of
counsel which, given that she was unmedicated for her mental illnesses during the plea
submission hearing, led to her unknowingly entering a guilty plea. Upon consideration of
the applicable authorities and the record, we affirm the judgment of the post-conviction
court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and A LAN E. G LENN, JJ., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Erika Cienfuegos.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Victor S. (Torry) Johnson, III, District Attorney General; and Sharon Reddick, Assistant
District Attorney General; for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

       The Petitioner was indicted on September 19, 2008, for the following Class A felony
offenses against A.C., a child under eight years of age: Count 1, aggravated child abuse,
occurring on February 11, 2008; Count 2, aggravated child abuse, occurring on May 30,
2008; Count 3, aggravated child abuse, occurring on May 30, 2008; Count 4, aggravated
child neglect, occurring on May 30, 2008; Count 5, aggravated child abuse, occurring on
May 30, 2008; and Count 6, aggravated child neglect, occurring on May 30, 2008. Counsel
was appointed, and a plea agreement was negotiated. The plea agreement provided that the
Petitioner would plead guilty to the lesser offenses of child abuse in Count 1, a Class D
felony, and aggravated child abuse in Count 3, a Class B felony1 ; the remaining counts would
be dismissed.

                                       A. Guilty Plea Hearing

        The guilty plea hearing was held on September 17, 2010. The proffered factual basis
for the plea was as follows:

                [H]ad this matter of State of Tennessee versus Erika Powers, also
        known as Erika Cienfuegos, the State’s proof would be that in the Winter and
        Spring of 2008, Ms. Powers [was] married to the biological father of the child
        who is the victim in both of these counts. She is a child who[se] date of birth
        is 5/30, 2005. They all - Ms. Powers, the child, the child’s father and two other
        children all live together in the same household here in Davidson County.

               The Stat[e]’s proof as to count one of the indictment would be that on
        February the 11th, 2008, Ms. Powers hit the child, knocking her out of the
        chair that she was sitting in and causing bruising to her head and face. The
        child presented at the hospital with these injuries. Ms. Powers was interviewed
        by detectives[,] and she did eventually admit to causing those injuries[.
        T]herefore[,] she admitted to knowingly, other than by accidental means,
        treating a child in such a way that caused injury. That event occurred at the
        family’s residence here in Davidson County, and that would be the State’s
        proof as to count one of the indictment.

                 As to count three of the indictment, the State’s proof would be that
        again Ms. Powers was in the family’s residence here [in] Davidson County
        with the three children[,] and sometime during that day[,] Ms. Powers became
        angry with the child for getting dirty. [A]t some point in the midst of her anger
        and in the midst of trying to clean the child up, Ms. Powers scalded the child’s
        hand with scalding water causing a very, very serious third-degree burn to the
        child’s hand, which has subsequently required numerous surgeries and surgical
        procedures[. S]he will wear the physical scar of that injury for the rest of her
        life[.] . . . Ms. Powers was interviewed by detectives again after presenting to


1
 The Petitioner’s conviction of aggravated child abuse is a lesser offense of the indicted charge, hence a
Class B felony, because it does not include the aggravating circumstance of the child involved being eight
years of age or less, which elevates the offense to a Class A felony.

                                                   -2-
       the hospital and again she admitted to causing the injury to the child and
       thereby knowingly, other than by accidental means, treating a child in such a
       way as to result in this injury.


       In response to questioning by the trial court, the Petitioner stated that she had been
diagnosed with bipolar disorder and post-traumatic stress disorder, that she was currently
taking Invega and Paxil for these illnesses, that the medications were working by keeping her
mood stable, and that she was “clear-headed.” The Petitioner agreed that she had spoken
with trial counsel to her satisfaction about the circumstances and facts surrounding the
offenses and the plea agreement and that trial counsel had answered all of her questions
about the plea agreement before she signed it and agreed to plead guilty. She stated that she
understood the consequences of her guilty plea and the rights that she was giving up by
entering a plea of guilty. The Petitioner also stated that she understood the possible
punishment if convicted of the indicted offenses at trial and the actual punishment she would
receive upon entering her plea and that she did not have any additional questions. The
Petitioner further stated that no one threatened her or promised her anything and that she was
solely pleading guilty because she was, in fact, guilty.

        After explaining the rights that the Petitioner was entitled to, and giving up as a result
of her plea, the trial court asked trial counsel whether she believed the Petitioner understood
the charges and was pleading guilty freely and voluntarily; trial counsel responded in the
affirmative. The trial court then stated, “Based upon your pleas of guilty, I find you guilty.
I find there’s a factual basis to support the pleas of guilt, that you’re competent to enter said
pleas and that you’re doing so freely, knowingly and voluntarily.” The trial court accepted
the plea agreement and sentenced the Petitioner to serve four years in Count 1 at thirty
percent and eleven years at one hundred percent in Count 3, to be served consecutively, for
an effective fifteen-year sentence.

                                 B. Post-Conviction Hearing

        The Petitioner and trial counsel testified at the post-conviction hearing. The Petitioner
testified that she accepted the plea agreement because she was scared. When asked to
expound on why she was scared, the Petitioner explained, “[t]he fact that I was given 15
years at a hundred when I know I did something really bad, there’s still some other
circumstances that it wasn’t taken with [trial counsel] was presenting me.” She further
explained that trial counsel told her that she could get thirty years at one hundred percent if
she did not accept the plea agreement, so she decided to accept the deal. The Petitioner
testified that she had been diagnosed with bipolar disorder, depression, post-traumatic stress
disorder, and “something about mania” some time prior to the commission of her offenses.

                                               -3-
The Petitioner stated that trial counsel did not represent her properly because trial counsel
knew that she had mental illnesses, that she had been suffering tremendously from those
illnesses, and that she was not on medication at the time she entered her guilty plea; despite
this knowledge, trial counsel failed to get a specialist to testify regarding her illnesses. She
insisted that she would not have pleaded guilty if she had been on her medication during the
guilty plea hearing. The Petitioner stated that she never talked about trial nor told trial
counsel that she wanted to go to trial because she “wasn’t sure” and reiterated that she was
scared that she would be sentenced to serve thirty years.

        On cross-examination, the Petitioner admitted that, at the guilty plea hearing, she told
the trial court that she was currently taking Invega and Paxil, that those medications were
working properly, and that she was “clear-minded.” While the Petitioner conceded that she
was presumably telling the truth at the guilty plea hearing, she explained that she did not
understand the judge because he was talking fast and her “English is not that good.” The
Petitioner admitted that she spoke with trial counsel often during trial counsel’s two-year
representation, mostly over the phone, and that trial counsel explained the charges and the
likelihood of her receiving consecutive sentencing on more than one occasion. The
Petitioner further admitted that she had no reason to believe that trial counsel was being
untruthful when trial counsel advised her that she could get thirty years at one hundred
percent if she went to trial. The Petitioner also admitted that she was scared that she would
get more time if she did not accept the plea agreement.

        Trial counsel testified that she represented the Petitioner “the entire time,”
approximately two years. She explained that the case was set for trial several times but that
she delayed resolution for as long as she could so that the Petitioner could spend as much
time as possible with the Petitioner’s family. Trial counsel also explained that she conversed
with the prosecutor “many, many times” in an attempt to negotiate a favorable plea
agreement and that she ultimately received a better offer “a couple of days before the actual
plea.” She testified that she spoke with the Petitioner over fifty times, both via telephone and
in person, during her representation. Trial counsel further testified that the Petitioner was
on bond for Count 1 when the Petitioner committed the offenses in Counts 2 through 6. Trial
counsel also testified that she explained to the Petitioner the ramifications being on bond
would have on the ultimate outcome – the likelihood and impact of the imposition of
consecutive sentencing – and that she went over the discovery with the Petitioner. She
stated that she believed the State’s case against the Petitioner was “very strong,” explaining
that the Petitioner had done “a video reenactment of how the incident occurred” and that
there were “pictures from Vanderbilt” of the child’s injuries. Trial counsel testified that the
Petitioner correctly relayed her statement that the Petitioner faced thirty years if convicted
but that trial counsel actually told the Petitioner that it would be a minimum of thirty years,
not a maximum.

                                              -4-
         Trial counsel explained that the mental evaluation was conducted “because [the
Petitioner] said that she was off of her medication at the time and that the fact that [the
Petitioner] was off of her medication, it was affecting her actions.” Trial counsel stated that
she requested the evaluation to see if they had any defense based on the fact that the
Petitioner was not on medication at the time of the incident; the results of that evaluation
were harmful. Trial counsel clarified that she had the Petitioner evaluated solely for the
purpose of determining whether the Petitioner’s mental illnesses themselves and the fact that
the Petitioner was not on medication when the incident occurred might negate the necessary
mental state. Trial counsel testified that, during the representation, the Petitioner told trial
counsel that “there were times when she was on and off her medication[,] and [trial counsel]
encouraged her to keep up with counseling and keep up with her medication.” Trial counsel
admitted being aware that the Petitioner was struggling with her mental health issues. Trial
counsel testified, “[the Petitioner] told me that she was off of her medication when the
incident occurred, which is why I had her evaluated, but during those two years, she would
fall in and out of depression, finding jobs, not finding jobs, now she was having tremendous
financial issues.” Nevertheless, trial counsel further testified that at no point did trial counsel
feel that the Petitioner was not understanding the basic nature of the charges against her or
that she was unable to assist trial counsel in her defense. Trial counsel also testified that she
never noticed any language barriers, despite English not being the Petitioner’s first language,
and noted that the Petitioner went to school in California.

       Regarding the plea agreement, trial counsel testified,

               [The Petitioner] wasn’t happy about the plea, but we went over, I mean,
       maybe twenty times, the evidence, the strength of the case, the fact that we did
       not have any mental health defense what she was likely to get at trial, the
       strength and weaknesses, we went over the plea petition that day with her
       father and her brother and that was, I mean, maybe a 45-minute conversation,
       we went over every single line[. S]he had questions, and her family had
       questions, and I believe that everything was answered on that day.

        On cross-examination, trial counsel admitted that the Petitioner’s family jointly agreed
that taking the “deal” was the Petitioner’s best option. However, trial counsel denied that the
Petitioner’s family encouraged her to plead guilty, explaining that they were there for
support. Trial counsel also admitted, “I don’t think she ever really got her mind wrapped
around how much time the charge carries, . . . which is why I went over the statute and the
time many times with [the Petitioner].” Nevertheless, trial counsel denied that the Petitioner
appeared, or was in fact, confused about what she was charged with.

       In a memorandum opinion denying relief, the post-conviction court made the

                                                -5-
following relevant findings:

              In this case, the Court finds that there was nothing deficient in the
      representation provided by [trial counsel]. Petitioner had admitted to causing
      the injuries suffered by the victim on both occasions. Therefore, her only
      defense was to suppress her confessions or to negate her culpable mental state.
      [Trial counsel] concluded that there was no legal basis upon which to suppress
      the admissions made by Petitioner[,] and [P]etitioner has presented no
      evidence to the contrary.

              On the issue of Petitioner’s mental state, [trial counsel] had Petitioner
      evaluated to assess the possible lack of a culpable mens rea as a defense to
      these crimes. The testimony was that such a defense was not only
      unsupportable, but that the expert testimony would be damaging to the
      Petitioner. Left with no other viable options to effectively present a reliable
      defense, [trial counsel] was left with no alternative to concentrating her efforts
      on reaching a plea agreement that would minimize the consequences to her
      client. She did this, but only after fully discussing all the consequences with
      Petitioner.

             ....

             A part of the exchange during the plea between the Court and Petitioner
      clearly refutes Petitioner’s claim regarding any mental impairment: [her
      agreement that she could read and write; that she was taking Invega and Paxil;
      that those medications were working, adequately controlling her symptoms;
      that her mood was stable; that she was clear-headed; and that she understood
      why she understood why she was in court and what she was doing].

             ....

             . . . Petitioner was aware of her rights, and she admitted to the court that
      she was entering her plea of guilt without threats or promises. [] The Court
      took time to explain to Petitioner the charges pending against her, and the plea
      she had accepted. During times in the colloquy, Petitioner asked questions
      which were promptly answered. Petitioner had sufficient understanding of the
      English language as to not need an interpreter, and asserted that she could read
      and write and had graduated from high school in California. Therefore, the
      Court feels that Petitioner’s argument is without merit, and she entered her
      plea of guilty freely, knowingly and voluntarily.

                                              -6-
                                         ANALYSIS

       The Petitioner challenges her guilty plea, explaining that she was not on her
medication that day, that her mental illnesses and lack of medication left her mind clouded,
and that she would not have accepted the plea if she had been properly medicated. The
Petitioner contends that trial counsel knew that the Petitioner was “struggling tremendously
with her mental illnesses” and that she was “off her medications at the time of the plea,”
concluding that trial counsel’s failure to reschedule the plea hearing until the Petitioner was
properly medicated resulted in the ineffective assistance of counsel. The State responds that
there was no evidence that trial counsel was ineffective nor that the Petitioner did not
understand the guilty plea proceedings.

       Petitions for post-conviction relief are governed by the Post-Conviction Procedure
Act. Tenn. Code Ann. §§ 40-30-101 to -122. To obtain relief, the petitioner must show that
her conviction or sentence is void or voidable because of the abridgement of a constitutional
right. Tenn. Code Ann. § 40-30-103. The petitioner must prove her factual allegations
supporting the grounds for relief contained in her petition by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(2)(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). Evidence is clear and convincing when there is no substantial doubt about the
accuracy of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245
(Tenn. Crim. App. 1998).

        The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence in the record preponderates against them. See Nichols v. State, 90 S.W.3d 576, 586
(Tenn. 2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)); see also Fields v.
State, 40 S.W.3d 450, 456-57 (Tenn. 2001). The petitioner has the burden of establishing
that the evidence preponderates against the post-conviction court’s findings. Henley v. State,
960 S.W.2d 572, 579 (Tenn. 1997). This court may not re-weigh or reevaluate the evidence
or substitute its inferences for those drawn by the post-conviction court. Nichols, 90 S.W.3d
at 586. Furthermore, the credibility of the witnesses and the weight and value to be afforded
their testimony are questions to be resolved by the post-conviction court. Bates v. State, 973
S.W.2d 615, 631 (Tenn. Crim. App. 1997).


                             I. Ineffective Assistance of Counsel

       Ineffective assistance of counsel claims are regarded as mixed questions of law and
fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). Thus, the trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed under
a de novo standard, accompanied with a presumption that the findings are correct unless the

                                              -7-
preponderance of the evidence is otherwise. Fields, 40 S.W.3d at 458 (citing Tenn. R. App.
P. 13(d)). The trial court’s conclusions of law are reviewed under a de novo standard with
no presumption of correctness. Id.

        Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the defendant to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockart v. Fretwell, 506 U.S. 364, 368-72
(1993). A defendant will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. See Henley, 960 S.W.2d at 580. The
performance prong requires a defendant raising a claim of ineffectiveness to show that
counsel’s representation was deficient, thus fell below an objective standard of
reasonableness or was “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. The prejudice prong requires a defendant to demonstrate that
“there is a reasonable probability that, but for counsel’s professional errors, the result of the
proceeding would have been different.” Id. at 694. “A reasonable probability means a
probability sufficient to undermine confidence in the outcome.” Id. Failure to satisfy either
prong results in the denial of relief. Id. at 697. The Strickland standard has also been applied
to the right to counsel under article I, section 9 of the Tennessee Constitution. State v.
Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        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, 466 U.S. at 687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In
reviewing counsel’s conduct, a “fair assessment of attorney 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.” Strickland, 466 U.S. at 689. Deference is made to trial strategy or
tactical choices if they are informed ones based upon adequate preparation. Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). “Thus, the fact that a particular strategy or tactic failed or
even hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       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, she would not have pleaded guilty and would have
insisted on going to trial.” Id. at 59; see also Hicks, 983 S.W.2d at 246.



                                               -8-
                     II. Mental Issues Affecting Voluntariness of Plea

       Once a guilty plea has been entered, effectiveness of counsel is relevant only to the
extent that it affects the voluntariness of the plea. Thaddius Brown v. State, No. W2010-
01131-CCA-R3-PC, 2011 WL 4027338, at *7 (Tenn. Crim. App. Sept. 9, 2011). In this
respect, such claims of ineffective assistance necessarily implicate the principle that guilty
pleas be voluntarily and intelligently made. Hill v. Lockhart, 474 U.S. at 56 (citing North
Carolina v. Alford, 400 U.S. 25, 31 (1970)).

        When analyzing the voluntariness of a guilty plea, we look to the federal standard
announced in Boykin v. Alabama, 395 U.S. 238 (1969), and the state standard set out in State
v. Mackey, 553 S .W.2d 337 (Tenn. 1977). See State v. Pettus, 986 S.W.2d 540, 542 (Tenn.
1999). In Boykin, the United States Supreme Court held that there must be an affirmative
showing in the trial court that a guilty plea was voluntarily and knowingly given before it can
be accepted. 395 U.S. at 242. Similarly, our supreme court in Mackey required an
affirmative showing of a voluntary and knowledgeable guilty plea. Pettus, 986 S.W.2d at
542. A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). In order
to find that the plea was entered “intelligently” or “knowingly,” Boykin requires that the trial
court “canvass[ ] the matter with the accused to make sure [s]he has a full understanding of
what the plea connotes and of its consequences.” Blankenship, 858 S.W.2d at 904 (quoting
Boykin, 395 U.S. at 244)(emphasis in original).

        The courts have recognized that “the decision to plead guilty is often heavily
influenced by the defendant’s appraisal of the prosecution’s case against h[er] and the
likelihood of securing leniency through a plea bargain.” See id. at 904. (quoting Brown v.
Perini, 718 F.2d 784, 786 (6th Cir. 1983)). There are a number of circumstantial factors that
should be considered when examining the voluntariness of a guilty plea. Blankenship, 858
S.W.2d at 904. These factors include (1) the defendant’s relative intelligence; (2) her
familiarity with criminal proceedings; (3) whether she was represented by competent counsel
and had the opportunity to confer with counsel about alternatives; (4) the advice of counsel
and the court about the charges against her 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. at 904-05.

       Considering those factors, we conclude that the Petitioner understood the guilty plea
proceedings and that her guilty plea was voluntarily entered. During the hearing, the
Petitioner told the trial court that she was currently taking her prescribed medications, that
she was “clear-headed[,]” that she understood the possible punishment if convicted of the
indicted offenses and the actual punishment she would receive upon entering her plea, and

                                              -9-
that trial counsel had satisfactorily answered all of her questions; the Petitioner also said that
she was pleading guilty solely because she was, in fact, guilty. At the post-conviction
hearing, the Petitioner admitted that she believed trial counsel’s statement that she could face
up to thirty years, with no release eligibility, if convicted of all or some combination of the
offenses for which she was indicted. Given that the Petitioner faced anywhere from fifteen
to twenty-five years on each of the six counts for which she was indicted and that she met
the criteria for imposing consecutive sentencing, trial counsel’s advice was not erroneous.
As such, we conclude that the Petitioner’s testimony at both hearings suggests that she was
aware of the potential punishment she faced and that she decided to plead guilty to avoid a
greater punishment in a jury trial.

        We now turn to the Petitioner’s claim that trial counsel was ineffective for failing to
take her mental illnesses into account during the plea hearing and that she would not have
pleaded guilty if she had been properly medicated. The applicable test as to competency to
stand trial is whether the accused has the sufficient present ability to consult with her lawyer
with a reasonable degree of rational understanding and whether she has a rational and factual
understanding of the proceedings against her. State of Tennessee v. Billy Joe Carter, No.
E2012-00279-CCA-R3-PC, 2013 WL 625597, at *15 (Tenn. Crim. App. Feb. 20,
2013)(citing State v. Benton, 759 S.W.2d 427 (Tenn. Crim. App. 1988)). The record reflects
that the Petitioner was able to consult with trial counsel and that trial counsel thoroughly
explained the plea agreement with the Petitioner, her father, and her brother prior to the
guilty plea hearing. We note that although trial counsel admitted knowing that the Petitioner
had been struggling with her mental illnesses during the representation, there is no evidence
that trial counsel was aware that the Petitioner was in fact unmedicated at the time of the
plea. The veracity of that statement notwithstanding, the Petitioner has presented no
evidence to show that her untreated mental illnesses precluded her from having a rational and
factual understanding of the proceedings against her and from being able to consult with trial
counsel with a reasonable degree of rational understanding. Therefore, she did not present
sufficient evidence to satisfy the prejudice component, demonstrating that she would not
have pleaded guilty and would have insisted on going to trial but for trial counsel’s alleged
error. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The Petitioner is
not entitled to relief on this issue.

                                        CONCLUSION

       Based upon the foregoing, the judgment of the post-conviction court is affirmed.


                                                     _________________________________
                                                     D. KELLY THOMAS, JR., JUDGE

                                              -10-
