        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 9, 2013

                    LESTER PAGE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 09-01298    James Lammey, Jr., Judge


                No. W2012-01466-CCA-R3-PC - Filed August 19, 2013


The Petitioner, Lester Page, contends that his guilty plea to incest, a Class C felony, was not
knowingly and intelligently entered because he received the ineffective assistance of counsel
and that the post-conviction court erred in denying him post-conviction relief. After a
thorough review of the record and the applicable authorities, 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 J OHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

Paul K. Guibao, Memphis, Tennessee, for the appellant, Lester Page.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy
P. Weirich, District Attorney General; and Lora Fowler, Assistant District Attorney General;
for the appellee, State of Tennessee.

                                      OPINION
                                FACTUAL BACKGROUND

       The record reflects that the Petitioner was indicted on February 26, 2009, for incest,
a Class C felony, and rape, a Class B felony. The Petitioner pleaded guilty on September 15,
2010, to incest. Probation was denied, and he was sentenced to serve ten years in the
Department of Correction; in exchange for his plea, the rape charge was dismissed. No
direct appeal was filed. On May 31, 2011, the Petitioner filed a pro se petition for post-
conviction relief. Counsel was appointed, and an amended petition was filed on December
8, 2011. The petitions alleged multiple grounds for relief, but only the following issues were
raised at the hearing: the Petitioner’s trial counsel rendered ineffective assistance of counsel
by (1) failing to request a mental evaluation of the Petitioner and (2) leading him to believe
that he would get probation if he pleaded guilty, which resulted in the Petitioner entering a
plea unknowingly and unintelligently. A hearing on the petition was held on May 18, 2012.
The following evidence was presented at the post-conviction hearing.

        The Petitioner and his trial counsel testified at the hearing. During the Petitioner’s
testimony, he stated that he met with trial counsel “a lot of times.” He explained that he
pleaded guilty because he did not understand the “big words” and really thought he was
going to get probation because trial counsel said they “were looking at it.” The Petitioner
explained that he had told trial counsel about phone records he had where the victim told him
“she was sorry and she lied and made a false statement on [him], which [he] got in writing[.]”
He further explained that he believed this would get him a better shot at probation. The
Petitioner testified that trial counsel told him not to ask the judge any questions at the
hearing, “[j]ust go in there and say, ‘Yes sir/no, sir’; and don’t say nothing.” When the
Petitioner asked why, trial counsel said, “Well, you don’t want to mess with this prosecutor
because she’s tough.” The Petitioner said that he had tried to get a trial date multiple times,
but trial counsel told him that he would be tried on both charges in the indictment and that
trial counsel would work out something better than going to trial. The Petitioner also testified
that he had a psycho-sexual evaluation in jail, which reported that he did not have any mental
issues, but he disagreed with that determination because he had “mental-health issues” and
had been prescribed Thorazine.

        The Petitioner admitted that the trial court told him at the guilty plea hearing that
probation was not guaranteed and that he told the trial court that he still wanted to plead
guilty. He also admitted that he did not tell the trial court of any of the alleged issues he had
with trial counsel but insisted that was because trial counsel told him to only answer yes or
no sir. However, the Petitioner further admitted that he gave more extensive answers than
yes or no during the joint guilty plea and sentencing hearing. He insisted that he did not
know what incest was and that he only recently learned what it means. The Petitioner
explained that he just told the trial court he understood everything and that trial counsel had
explained everything to him because he “was tired of sitting downtown in 201 Poplar, and
[he] had enough of it.”

        Trial counsel testified that he gave the Petitioner a copy of the incest statute and the
pattern jury instruction. He stated that he would be surprised to learn that the Petitioner had
reading and writing difficulties because despite the Petitioner’s failure to complete high
school, he had never noticed any such difficulties. Trial counsel stated that he believed the
Petitioner’s assertion that the sexual encounter was consensual, so he asked the prosecutor
to re-interview the victim based on that belief. However, trial counsel stated that there was
no question as to whether he had sexual relations with a blood relative; the Tennessee Bureau

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of Investigations (TBI) report proved that fact. Trial counsel stated that he had tried
approximately 100 cases and that he would have taken this case to trial and given it his “best
shot.” He explained that he believed they had a “good shot” on the rape charge but that “they
had him locked in” on the incest charge. Trial counsel testified that he does not promise his
clients probation, even when the prosecutor agrees to it, because it is ultimately the trial
court’s decision. Trial counsel did not recall telling the Petitioner to only say yes and no sir
to the judge but explained that he typically tells his clients to listen, say “yes sir” and “no sir,”
and answer truthfully. Regarding his statement that the prosecutor was “tough,” he explained
that it was rare for this prosecutor to dismiss charges and that not only had she agreed to
dismiss the rape and offered the Petitioner ten years on the incest charge, she was not
opposed to the Petitioner receiving probation. Trial counsel testified that he never had any
problems with the Petitioner and that there was no indication of any mental issues. He
explained that he generally requests such evaluations in cases involving A felonies, but he
did not see a need to make such a request in this case.

        Trial counsel explained that the victim appeared to be a “fabulous witness” from what
he observed at the preliminary hearing and that she always maintained that she was raped.
According to the victim, the Petitioner forced himself onto her and would not let her go.
Afterwards, she “[c]alled the police, and she was taken to MSARC; and of course, identity
was never an issue; and the TBI report was just the last straw.” The Petitioner’s DNA was
found. He also explained that there was no impeachment material because the victim,
approximately twenty years old at the time, only had a traffic ticket. Trial counsel stated that
he told the Petitioner that if the Petitioner did not get probation, they could petition the trial
court later for “cut time” if he stayed in Shelby County but that, otherwise, he would be out
of the trial court’s jurisdiction. Trial counsel told the Petitioner, “We’ll go out and give it
our best shot,” and the Petitioner said, “Let’s do it.” However, after the hearing the
Petitioner yelled at him for the first time saying, “You tricked me.”

       The post-conviction court credited the testimony of trial counsel, found the Petitioner
incredible, and denied post-conviction relief.

       This timely appeal followed.


                                           ANALYSIS

      The Petitioner contends that the post-conviction court erred in denying him post-
conviction relief because he received the ineffective assistance of counsel; specifically, he
contends that his guilty plea was not knowingly and intelligently entered and that trial
counsel failed to request a mental evaluation. The State responds that the Petitioner failed to

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include his guilty plea transcript in the record on appeal and, as such, this court must presume
that the transcript supports the ruling of the post-conviction court; further, the Petitioner has
failed to prove that his trial counsel was ineffective, that his guilty plea was unknowingly and
unintelligently entered, or that a mental evaluation was necessary.

       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
his 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 his factual allegations
supporting the grounds for relief contained in his 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
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

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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, he 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.

       A. Failure to Request a Mental Evaluation

       The Petitioner contends that counsel failed to take into account his reading and writing
difficulties in their communication and failed to request a mental evaluation. The State
responds that trial counsel was not ineffective for failing to request a mental evaluation of
the Petitioner because (1) the Petitioner presented no proof that he had any mental
difficulties; (2) the psycho-sexual evaluation reported that he did not have any mental-health

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issues; and (3) trial counsel testified that he noticed no reading or writing limitations. We
agree with the State.

        The applicable test as to competency to stand trial is whether the accused has the
sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding and whether he has a rational and factual understanding of the proceedings
against him. 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)). Trial counsel, an experienced trial attorney, communicated
regularly and thoroughly with the Petitioner about his case. Trial counsel had experience
evaluating the mental competency of criminal clients and had requested mental evaluations
in the past. Based upon his interactions with the Petitioner, he did not believe a mental
evaluation necessary, especially since a psycho-sexual evaluation had already determined that
the Petitioner did not have any mental issues. Trial counsel did not file a motion for a mental
evaluation because he never noticed any reading or writing limitations and because the
Petitioner understood the nature of the charges. We discern nothing in the record indicating
that the Petitioner was unable to meaningfully consult with trial counsel. Moreover, as the
State points out, the Petitioner failed to produce any mental health records at the evidentiary
hearing illustrating a previous diagnosis of mental illness requiring his use of Thorazine or
otherwise, despite faulting trial counsel for his inability to locate and utilize them. As such,
he cannot show that he was prejudiced by trial counsel’s failure to request a mental
evaluation. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

       B. Plea Knowingly and Intelligently

       The Petitioner generally contends that his plea was not knowingly and intelligently
entered because he did not understand the proceedings and because his trial attorney told him
that he would get probation if he pleaded guilty and had instructed him not to ask any
questions during the guilty plea hearing. The State responds that the Petitioner failed to
prove this allegation because he admitted at the post-conviction hearing that the trial court
told him during the guilty plea hearing that probation was not guaranteed and that his trial
attorney had previously advised him of the same.

       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

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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 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 him 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) his
familiarity with criminal proceedings; (3) whether he 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 him 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’s guilty plea was knowingly
and intelligently entered. Although the transcript of the guilty plea hearing was not included
in the record for our review, the transcript of the post-conviction hearing reveals that the
post-conviction court informed the Petitioner that probation was not guaranteed. The
Petitioner stated that he understood that probation was not guaranteed and that he still wished
to plead guilty. The Petitioner also stated that trial counsel had told him prior to the hearing
that probation was not guaranteed. Regarding the Petitioner’s claim that he had mental
issues, he did not present any evidence at the post-conviction hearing demonstrating his
limitations and how they affected his guilty plea. Trial counsel testified that a psycho-sexual
evaluation the Petitioner received had already determined that the Petitioner did not have any
mental issues, and he did not seek an additional evaluation because he never had any trouble
communicating with the Petitioner or noticed any other limitations. As a result of his plea,
the Petitioner’s rape charge was dismissed; thus, the plea allowed him to avoid a greater
penalty. Further, the Petitioner had multiple prior convictions, and as a career offender, he
would have faced fifteen years at sixty percent on the incest charge alone if he had gone to
trial. We also note that the Petitioner never denied having intercourse with the victim; he
only alleged that the encounter was consensual, which is not a defense to incest. Given the
foregoing, we conclude that the post-conviction court did not err in concluding that trial
counsel was not ineffective and that the Petitioner’s plea was knowingly and intelligently
entered. Likewise, the Petitioner has failed to prove any deficiency in trial counsel’s
performance.

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                                     CONCLUSION

       Based on our review of the record and the applicable law, we affirm the judgment of
the post-conviction court denying relief.


                                                 _________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




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