        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   May 20, 2014 Session

            BLAIN STEVEN COVERT v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Campbell County
                         No. 15983 E. Shayne Sexton, Judge


               No. E2013-02531-CCA-R3-PC - Filed September 16, 2014


The State appeals the Campbell County Circuit Court’s grant of post-conviction relief from
the Petitioner’s convictions for aggravated sexual exploitation of a minor and sexual
exploitation of a minor and his effective ten-year sentence. The State contends that the trial
court erred by granting the Petitioner relief because he failed to establish by clear and
convincing evidence that he received the ineffective assistance of counsel. We have
reviewed the trial court’s decision granting post-conviction relief and conclude that the
Petitioner failed to show that he received the ineffective assistance of counsel.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                  Case Remanded

J OSEPH M. T IPTON, S P.J., delivered the opinion of the court, in which J EFFREY S. B IVINS, S P.
J., joined. T HOMAS T. W OODALL, P.J., filed a dissenting opinion.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Lori Phillips-Jones, District Attorney General; and Scarlett W. Ellis,
Assistant District Attorney General, for the appellant, State of Tennessee.

J. Stephen Hurst, LaFollette, Tennessee, for the appellee, Blain Steven Covert.

                                           OPINION

       The Petitioner was indicted for twenty-two counts of aggravated sexual exploitation
of a minor and three counts of sexual exploitation of a minor. See T.C.A. § 39-17-1003, 39-
17-1004 (2010). He pleaded guilty to aggravated sexual exploitation of a minor and sexual
exploitation of a minor and received an effective ten-year sentence. The Petitioner filed a
petition for post-conviction relief, alleging multiple grounds of the ineffective assistance of
counsel. After an evidentiary hearing, the trial court granted post-conviction relief on the
ground that counsel provided ineffective assistance by not investigating the Petitioner’s
reported mental health problems, and the State appealed.

       At the post-conviction hearing, Ben Walker, a relative of the Petitioner, testified that
he was a retired Federal Bureau of Investigation (FBI) agent and that he met with counsel at
the request of the Petitioner’s grandmother. The meeting was held at counsel’s office before
the Petitioner pleaded guilty, and his grandmother attended. Mr. Walker said his role at the
meeting was to help her understand the charges against the Petitioner.

       Mr. Walker testified that counsel stated at the meeting that he had not “done
discovery” because counsel was “too busy trying to negotiate the plea deal on two counts of
the indictment.” He told counsel that the Petitioner was “a young, stupid kid with mental
health problems.” He said the Petitioner’s grandmother also told counsel at the meeting that
the Petitioner received mental health care. On cross-examination, Mr. Walker testified that
he knew the Petitioner was charged with four Class B felony offenses.

       Linda Covert, the Petitioner’s mother, testified that she met with counsel several times
before the Petitioner entered his guilty pleas. She, the Petitioner’s father, and his
grandmother told counsel that the Petitioner was having mental health problems and that the
Petitioner was receiving counseling and taking medications. She said that she provided
counsel with a list of the Petitioner’s counselors and their telephone numbers early in
counsel’s representation. She said that she raised the mental health issue each time she met
with counsel.

       Ms. Covert testified that counsel told her that he was going to investigate the
Petitioner’s mental health problems but that to her knowledge, counsel never obtained any
documents from the counselors who evaluated and treated the Petitioner. She said that she
came to court when the Petitioner entered his guilty pleas but that she was not expecting him
to plead guilty. She said counsel showed the Petitioner the documents regarding the plea
agreement. She heard the Petitioner tell counsel that he was not guilty and did not want to
sign the plea agreement. She heard counsel tell the Petitioner that counsel would no longer
represent him if he did not accept the plea offer.

        Steven Covert, the Petitioner’s father, testified that he met with counsel at counsel’s
office four times and that the Petitioner was present only once. He said the Petitioner
maintained his innocence until he entered his guilty pleas. He confirmed Ms. Covert’s
testimony regarding counsel’s being repeatedly told about the Petitioner’s mental health
history. He said counsel told him that he would “look into it.” He said the Petitioner wanted
to reject the plea offer and go to trial. He told counsel that if the Petitioner “signs it, it would



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be under duress.” On cross-examination, he stated that the Petitioner wanted a trial rather
than to plead guilty because the Petitioner “didn’t do the charges.”

       Brad Franks, a counselor at Helen Ross McNabb Center, testified that the Petitioner
was treated on an outpatient basis approximately one month before entering his guilty pleas.
He said the Petitioner sought medication for his depression. The Petitioner sought entry of
his medical records, and the State objected. The trial court “conditionally” sustained the
State’s objection.

       The prosecutor told the trial court,

       Your Honor, I’m [going to] object to the introduction of these medical -- or
       these records. I think the witness can testify to anything he knows about [the
       Petitioner] any time he saw him and what his status was but not on anything
       other people told him, certainly not what [the Petitioner] told him.

Post-conviction counsel told the court,

       The only thing I’m offering this for is that the -- I’ll be very candid with the
       Court -- is that he authored the report. My client is going to testify about the
       contents [of the] report and the information he gave. . . . [O]ther than the fact
       that he reported, he’s the author of the report which, as an expert in the field,
       he has an absolute right to do and rely on.

After further discussion, the trial court found that the records contained multiple declarants.
It permitted Mr. Franks to review the records and “pick out the items that he ha[d] . . .
prepared.” The court stated, “Frankly, I don’t know that he even has to do that. If he can
testify without the paperwork, then that’s fine. But I’m hesitant to let these come in for the
purpose that they are being offered because . . . there’s . . . multiple declarants[.]” After post-
conviction counsel questioned Mr. Franks further, the court found that the records were
inadmissible and ordered them to be placed under seal in the same manner in which they
were presented to the court. We note that when questioned by the court, the Petitioner
waived all rights to prevent disclosure of his medical records.

       Mr. Franks testified that to his knowledge, post-conviction counsel was the only
person who sought the Petitioner’s medical records. He agreed he performed the evaluation
and prepared the report and said only post-conviction counsel had talked to him about the
Petitioner’s condition or attempted to obtain the records.




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       Post-conviction counsel told the trial court that he wanted to present the medical
records to the court because “they’re here[] and never . . . sought by any person. Beyond the
content my client would testify to, what he recorded, I would not offer any further proof
beyond that limitation.” The court stated,

       Well, if they are not being offered for the truth of the matter asserted, there’s
       really no reason to have the substance in. This is quite voluminous. I mean
       we can - - it may be best to get what opinions that you may get from this
       witness, but putting this in carte blanche is not [going to] be permitted.
       Because I don’t see any other way it can be for anything but for the truth of the
       matter asserted. I understand where you’re going with it. That the issue
       should have been raised and it was not. It begs the question, do we go further.
       If . . . there is a substantial basis for a defense or for consideration of this type
       of information by competent trial counsel, then it really doesn’t matter what’s
       in it. It’s clear that he’s been treated.

Upon further discussion, the trial court was told the Petitioner entered his guilty pleas on
February 6, 2012, and that the relevant treatment occurred in December 28, 2011. The
prosecutor told the court that the Petitioner presented on an outpatient basis because he was
depressed about the charges. The court stated that if counsel had the records, “we might go
into the substance of them and what he did with them. He never asked for them. That’s the
point being made.” The court stated that as a result, the substance of the records did not
matter and that “[i]t might be a question for me at some point. I may . . . look at those in
chambers and decide to what degree they may have made some difference.” The court noted
the relevant legal analysis to establishing an ineffective assistance of counsel claim was
deficient performance and prejudice. The court found that the substance of the records and
Mr. Franks’s knowledge about the Petitioner were irrelevant. The court sustained the State’s
objection to the admission of the records and said, “I’m going to reseal it, and it will become
part of my analysis down the line. . . . If I find that there is ineffectiveness, then I have to go
further and look for prejudice.”

        On cross-examination, Mr. Franks testified that he was not the keeper of the records
for the center. He agreed the Petitioner declined case management and therapy in December
2011.

       Carolyn Hatfield, the Petitioner’s grandmother, testified that she hired counsel to
represent the Petitioner and that she told counsel about the Petitioner’s mental health
counseling and treatment. She said counsel never explained if and how he would use the
information, although she asked counsel about the intended use. She said the Petitioner did
not want to plead guilty and wanted a trial because he was innocent. She said she did not

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know the Petitioner was going to plead guilty when she came to court on the day he entered
his guilty pleas.

        The Petitioner testified that he was twenty at the time of his arrest. He said he met
with counsel at counsel’s office once shortly after he was indicted. He said his parents and
grandmother were present for the meeting. He agreed he met with counsel at the courthouse
on other occasions. He said that at the first meeting, he told counsel that he was innocent and
that his uncle, who lived with him, “had did the charges.” He said that his family members
told counsel about his mental health history and that he was undergoing counseling. He
agreed he did not mention his mental health at the first meeting.

        The Petitioner testified that about one month after counsel was hired, counsel told him
“that there was a ten-year [plea offer] on the table.” He said that he told counsel the offer
was unreasonable and that he “wanted a different plea bargain.” He said counsel told him
the prosecutor would not offer a more lenient sentence. He said that at his mother’s request,
counsel asked the prosecutor to place him in a mental health facility upon conviction but that
the prosecutor refused. He said that he refused the plea offer because the prosecutor refused
the mental health facility request.

       The Petitioner testified that although he pleaded guilty on February 6, 2012, he
understood from talking with counsel that counsel would obtain “another postponement to
discuss another plea bargain.” He said counsel gave him the negotiated plea agreement
papers when he arrived at the courthouse on February 6. He said that counsel told him,
“[T]his is all we’re gonna get,” and that if he refused to accept the ten-year offer, he would
receive “375 years” and counsel would terminate his representation.

       The Petitioner testified that on the day he entered his guilty pleas, he told counsel
about his mental health counseling again. He said counsel stated that “there was no way we
could do anything about it.” He told counsel when the charges were pending that he had
received counseling since he was ten. He said he told counsel he was diagnosed recently
with somatization disorder, bipolar disorder, and severe depression. He said counsel never
investigated this information or reviewed medical records with him.

       The Petitioner testified that counsel never suggested that he should have been
evaluated to determine if he was competent to stand trial, although counsel had been told he
was taking medication related to his mental health diagnoses. He said that he felt counsel
provided ineffective assistance and that based on counsel’s statement that counsel would stop
representing him if he did not plead guilty, he believed he had no choice but to plead guilty.
He thought he would have to go to trial without a lawyer if counsel withdrew. He said that
because counsel was retained, he believed he would not be allowed to have appointed

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counsel. He said that he probably would have gone to trial and not pleaded guilty if he had
known he could have had appointed counsel. On cross-examination, he said he understood
that if post-conviction relief was granted, he would have to face all twenty-seven counts in
the indictment.

       Counsel testified that he had practiced law for twenty-seven years and that he was
hired and paid by the Petitioner’s grandmother to represent the Petitioner. He said he met
with the Petitioner and his family “a couple of times.” He said that at a meeting before the
plea offer was received in September 2011, he talked to the Petitioner alone at his office. He
said that during the meeting, the Petitioner admitted he received and kept the child
pornography and sent child pornography to other people. Counsel said that he advised the
Petitioner to permit him to attempt to obtain a favorable plea agreement and that the
Petitioner authorized him to talk to the prosecutor.

         Counsel testified that he spoke to the Petitioner “multiple times” about the plea offer
from the State, some of which were by telephone. He said that he told the Petitioner the offer
was “a very good plea” and acknowledged that the Petitioner did not want to serve a sentence
in confinement. He said that when they spoke, the Petitioner “was acclimated as to day, date,
person present,” and was lucid. He said he never had the impression that the Petitioner was
“mentally incompetent or infirm.” He said he believed the Petitioner was well aware “that
he . . . got caught doing something wrong.” He said they did not discuss the Petitioner’s
mental health, except at some point the Petitioner mentioned “that he had been seen by some
people.” He believed, though, that the Petitioner’s statements never “rose to the level of
something that would give [the Petitioner] a diminished capacity argument.” He admitted
he did not seek information from the Petitioner’s mental health providers. He said the
Petitioner only “appeared anxious about having to go to prison” and was scared.

        Counsel testified that he talked with the Petitioner first, obtained the Petitioner’s
admission that he committed the offenses, and talked to the police investigator to determine
if the State had sufficient evidence to convict him. He said he received information from the
police investigator that the Petitioner deleted some of the evidence from his e-mail account
after he was charged. He noted that this conduct was further proof that the Petitioner did not
have a mental health problem preventing him from being aware of his conduct. He said that
the Petitioner wanted an October 2011 court date continued because he did not want to plead
guilty and be incarcerated at Christmas. He said that the Petitioner read the plea agreement
and that he explained the details to the Petitioner. He denied that he threatened to end his
representation if the Petitioner refused to accept the plea offer. He did not recall if he met
or spoke on the telephone with a relative of the Petitioner who was a retired FBI agent,
although he could not say he did not meet with the agent.



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      On cross-examination, counsel admitted that in cases like the Petitioner’s in which
exposure to many years of incarceration existed and in which the State made an “incredibly
good offer,” weakness in the State’s case that could be exploited by the defense might exist.
He admitted that once the Petitioner admitted committing the offenses, reaching a plea
agreement was his focus.

       Counsel testified that he did not interview any possible defense witnesses and that he
interviewed only one State witness. He said the Petitioner “never made a significant issue
of his mental capacity.” He admitted, though, that at some point, the Petitioner’s mother
provided him with a list of the Petitioner’s doctors and treatment facilities. He said he did
not obtain any medical records because after talking with the Petitioner, he did not think the
Petitioner “had a significant disease or defect that affected his cognitive abilities.”

       When asked if he believed a trial would have been a mistake in light of the favorable
plea agreement, counsel testified

       I think that [the Petitioner] is an unmitigated fool to come here and try to set
       this plea aside and have a trial on all of these issues and expose himself to all
       the prison time that he’s looking at. Because the things that you’ve described
       to me, bipolar, that does not take away the cognitive ability of a person to
       know right from wrong. The -- what you’ve described to me -- there’s nothing
       that you’ve described to me that would lead to me to believe that this plea was
       not in his best interest. And . . . with all the information I had at hand, and
       even not talking to those providers because I wasn’t told anything and he
       didn’t act in any way that led me to believe . . . he had a mental issue that was
       significant enough to impair his ability to understand what he was charged
       with or make the plea, I . . . don’t think it was the wrong thing to do. I didn’t
       think it was then, and I don’t think it was now.

        Knoxville Police Investigator Mel Pierce testified that he was assigned to the Internet
Crimes Against Children Task Force and that he was a forensic analyst. He said that counsel
contacted him and that they discussed the State’s evidence extensively. He said that when
he initially spoke with the Petitioner at his home, the Petitioner was nervous but coherent and
able to communicate. He said that in a later conversation, the Petitioner was able to explain
how he deleted some of the evidence from an e-mail account and to provide passwords to
various e-mail accounts.

        The trial court found that the Petitioner “failed to establish with any credibility that
trial counsel was deficient in exploring the proposed plea agreement.” It found that counsel
exercised a strategic decision to attempt to obtain the best negotiated plea possible because

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no defense to the charges existed, in counsel’s opinion. The court found that the Petitioner’s
assertion he was not “in his right mind” when he pleaded guilty was not credible.

        Regarding counsel’s failure to investigate the Petitioner’s mental health, the trial court
found that counsel’s investigation was in pursuit of “the best deal [he] could possibly get”
for the Petitioner. The court found counsel was deficient for not investigating the
Petitioner’s mental health problems further. Regarding prejudice to the Petitioner, the court
stated,

       The second question then . . . is whether . . . there was . . . prejudice by that
       decision and without hesitation, the Court finds that there is. [T]his would be
       a great deal for anyone charged with this number of offenses if he’s guilty.
       [The Petitioner] today has persisted with his was not guilty, and rather than --
       I don’t -- I’m not trying to establish [precedential] value. We can always go
       back and look at these. But with the mental state coupled with the outright --
       outright denial, the Court is [going to] find that there is sufficient proof by the
       petitioner to set the plea -- to grant the relief requested which is find that there
       is ineffective assistance of counsel. . . .

This appeal followed.

        The State contends that the trial court erred by granting post-conviction relief because
the Petitioner failed to establish by clear and convincing evidence that counsel provided the
ineffective assistance of counsel. The Petitioner responds that he received ineffective
assistance. We conclude that the trial court erred by granting post-conviction relief.
        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

       Under the Sixth Amendment, when a claim of ineffective assistance of counsel is
made, the burden is on the Petitioner 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 Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the

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petitioner must also show that but for the substandard performance, there is “a reasonable
probability that . . . the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. The Strickland standard has 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).

        A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to
show that counsel’s representation fell below an objective standard of reasonableness or
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional 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.

        Regarding counsel’s failure to investigate the Petitioner’s mental health condition, the
record reflects that counsel was informed of the Petitioner’s mental health condition before
the Petitioner entered his guilty pleas. The Petitioner’s parents, his grandmother, and Mr.
Walker each told counsel about the Petitioner’s receiving mental health counseling and
taking prescription medication. The Petitioner’s mother provided counsel with a list of the
Petitioner’s counselors and their telephone numbers early in counsel’s representation. The
Petitioner testified that he told counsel on the day he entered his guilty pleas that he was
recently diagnosed with somatization disorder, bipolar disorder, and severe depression.
Although counsel was made aware of the Petitioner’s mental health problems and concluded
the Petitioner was competent, he admitted he did not obtain the relevant records or
investigate the nature of the Petitioner’s condition. The record does not preponderate against
the trial court’s finding that counsel was deficient by failing to investigate the Petitioner’s
mental health condition.

      Regarding prejudice to the Petitioner, the Supreme Court has stated in similar
circumstances that when a petitioner enters a guilty plea and

       the alleged error of counsel is a failure to investigate or discover potentially
       exculpatory evidence, the determination whether the error “prejudiced” the
       [petitioner] by causing him to plead guilty rather than go to trial will depend
       on the likelihood that discovery of the evidence would have led counsel to
       change his recommendation as to the plea. This assessment, in turn, will
       depend in large part on a prediction whether the evidence likely would have
       changed the outcome of a trial. Similarly, where the alleged error of counsel

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       is a failure to advise the [petitioner] of a potential affirmative defense to the
       crime charged, the resolution of the “prejudice” inquiry will depend largely on
       whether the affirmative defense likely would have succeeded at trial.

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

       The Petitioner’s medical records were received by the trial court under seal for the
limited purpose of determining whether the Petitioner was prejudiced by counsel’s
performance. Because of the “conditional admissibility” of the medical records and our
concluding that the record supports the trial court’s finding counsel was deficient by not
investigating the Petitioner’s mental health, we have reviewed the records. Although the
medical records support the Petitioner’s and his family’s assertion that the Petitioner received
counseling and was prescribed medication, no evidence shows that the Petitioner’s mental
health condition would have affected his ability to enter a knowing and intelligent guilty plea.
Without testimony to explain the information contained in the medical records, the effect of
the records is neutral on the issue of prejudice in the post-conviction context.

        We note that the dissenting opinion is concerned about this court’s substituting its own
judgment for the trial court’s regarding witness credibility. We note, though, that the trial
court made few explicit findings and that the dissenting opinion relies on its view that the
trial court “implicitly found” facts. We agree with the dissenting opinion in that the witness
testimony supports a finding that the Petitioner had mental health difficulties. The record,
though, fails to show that had counsel obtained the Petitioner’s mental health records, the
basis of the Petitioner’s ineffective assistance claim, that he would not have pleaded guilty.
The Petitioner’s claim of innocence at the post-conviction hearing viewed in conjunction
with his mental health records does not support a finding a prejudice.

        Likewise, no evidence exists showing that the Petitioner had viable grounds to present
a diminished capacity or other affirmative defense. We note that counsel testified regarding
the State’s evidence against the Petitioner, his lengthy conservation with the investigating
officer, and his conclusion that the plea offer was in the Petitioner’s best interest. The
Petitioner failed to show a reasonable probability existed that the Petitioner would not have
pleaded guilty had counsel obtained the records. We, likewise, conclude that the Petitioner
failed to show a reasonable probability that the mental health records would have changed
the outcome of a trial had the Petitioner not pleaded guilty. As a result, the record fails to
support the trial court’s finding that the Petitioner was prejudiced by counsel’s failure to
investigate the Petitioner’s mental health condition.




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       In consideration of the foregoing and the record as a whole, the judgment of the trial
court is reversed, and the case is remanded to the trial court with instructions to enter an
order denying post-conviction relief.




                                           ____________________________________
                                           JOSEPH M. TIPTON, SPECIAL JUDGE




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