         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 24, 2008

               GEORGE ALLEN KING v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                            Nos. 86923 Kenneth F. Irvine, Judge



                   No. E2008-00584-CCA-R3-PC- Filed February 11, 2009


Petitioner, George Allen King, pled guilty to one count of robbery. Pursuant to a plea agreement,
he was sentenced to eight years as a Range II multiple offender. He was placed on enhanced
probation. After the revocation of his probation within a year of his plea, Petitioner filed a petition
for post-conviction relief. Petitioner argued that he was afforded ineffective assistance of counsel
and that his plea was not entered into voluntarily. At the conclusion of a hearing on the matter, the
post-conviction court denied the petition. On appeal, Petitioner argues that the post-conviction court
erred because Petitioner was under the influence of drugs at the time he entered the plea and that he
believed he was to receive a six-year sentence as opposed to an eight-year sentence. Because we
find no credible evidence in the record to support Petitioner’s claims, we affirm the decision of the
post-conviction court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and DAVID
H. WELLES, J., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, George Allen King.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; and Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

       On June 29, 2006, Petitioner pled guilty to simple robbery. The parties stipulated to the
following facts at Petitioner’s guilty plea hearing:


              Your Honor, if called to trial in this matter, the State would call those
       witnesses listed on the indictment. The substance of their testimony would be that
        Mrs. Dorothy Irwin was walking in the parking lot of O’Charley’s Restaurant at 3050
        South Mall Road.

                An unindicted – or an unknown female suspect got out of the car, grabbed her
        purse – grabbed the purse from Mrs. Irwin and ran to the car that was driven by
        [Petitioner]. The victim chased her purse and this woman to the vehicle, reached in
        and grabbed the purse.

                 [Petitioner] tried to drive away and ended up dragging the victim a number
        of feet through the parking lot. He finally stopped the car, and she let go and fell to
        the ground.

       Pursuant to the plea agreement, Petitioner was sentenced to eight years as a Range II multiple
offender. At the conclusion of Petitioner’s sentencing, the trial court placed Petitioner on enhanced
probation. In January of 2007, Petitioner’s probation was revoked.

       On May 29, 2007, Petitioner filed a Petition for Post-conviction Relief. In the petition, he
argued that he agreed to a six-year sentence but was given an eight-year sentence. He argues that
he was under treatment at a methadone clinic at the time he entered his plea; therefore, it was not
entered knowingly. The trial court appointed counsel, and on August 23, 2007, Petitioner filed an
amended petition arguing that he was afforded ineffective assistance of counsel.

                                       Post-conviction Hearing

         On March 6, 2008, the post-conviction court held a hearing on the petition. Petitioner was
the first witness. Petitioner testified that his trial counsel told him that the State offered six years on
probation. Petitioner stated that he refused this offer. According to Petitioner, trial counsel sent him
to the probation office to see if he would qualify for probation. Petitioner testified that he informed
the person he met with that he had been on methadone for over a year. She told him he could not
be on probation and be on methadone. She also told him he needed a job. A few days after the
meeting with the probation office, trial counsel met Petitioner with the paperwork for the plea
agreement. Petitioner said he did not want to accept the plea. Petitioner testified that he was on
methadone at the time accepted the plea. He stated at the post-conviction hearing that when he looks
back on the entry of his guilty plea, he did not really understand what was going on at the plea
hearing. Petitioner did not realize he was agreeing to an eight-year sentence instead of a six-year
sentence and enhanced probation instead of regular probation. Petitioner testified that he had told
trial counsel that he was innocent of the charge. Also, Petitioner stated that trial counsel knew he
was going to the methadone clinic. Petitioner stated that his plea was coerced by trial counsel
because trial counsel told Petitioner that he would get a twelve-year sentence to serve if he did not
enter the guilty plea.

        On cross-examination, Petitioner admitted that he had a criminal history dating back to 1980
that included convictions for felony drug sales, felony theft, attempted burglary, and aggravated


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burglary. With regard to the conviction at hand, Petitioner admitted that there were originally five
counts against him. Petitioner agreed that he was arrested several times while on probation before
having his probation revoked on January 16, 2007.

        Trial counsel also testified at the post-conviction hearing. He testified that he represented
Petitioner for his guilty plea. Trial counsel had no indication that Petitioner was under the influence
of drugs or alcohol the day Petitioner entered his plea. Trial counsel also stated that Petitioner knew
what was occurring.

         On cross-examination, trial counsel stated that he went over the plea agreement, waiver of
jury trial and entry of the plea. He stated that he went over the documents in detail. Trial counsel
agreed that he underlined various phrases and passages in the documents concerning Petitioner’s
plea. This is part of his normal practice. Petitioner understood that he was agreeing to an eight-year
sentence, but Petitioner was concerned about getting probation. Therefore, trial counsel and the
District Attorney agreed to have a pre-plea report conducted. Trial counsel stated that he went over
everything with Petitioner, and Petitioner agreed to the plea agreement as he pled to it. Petitioner
did not say anything to him about being on drugs the night before or the day that the plea was
entered.

        At the conclusion of the post-conviction hearing, the post-conviction court denied the
petition. On March 24, 2008, the post-conviction court entered an order denying the petition. The
following findings of fact and conclusion of law announced from the bench were incorporated by
reference:

              Mr. King, you’re here today on your post-conviction case, and, as I
       understand it, you’re saying that you didn’t enter a knowing, intelligent, and
       voluntary plea because you thought it was a six-year sentence with probation rather
       than an eight-year sentence and probation.

              The – the record doesn’t support your recollection of that. In the plea
       paperwork, it’s clearly marked as an eight-year sentence. Judge Jenkins, on a couple
       of occasions, said eight years to you. He never said six years. And you got an eight-
       year sentence and were placed on probation.

               You have some problems on probation. You go through a couple of
       revocation issues, and ultimately, you’re revoked and now are being required to serve
       this sentence.

              I credit the testimony of [trial counsel] that you understood what you were
       doing. I credit the – the transcripts of these proceedings that show that it was
       explained to you that it was an eight-year sentence. So your request for post-
       conviction relief will be denied.



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               Everything – the credible evidence says that you understood what you were
       doing, that you entered a plea for eight years with an application for probation.
       Probation was granted. So I’m going to find that you have failed to prove that it was
       not a knowing, intelligent, and voluntary plea; therefore, your relief will be denied.


       Petitioner filed a timely notice of appeal.

                                             ANALYSIS

                               Post-conviction Standard of Review

         The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issues raised, we will afford those findings of fact the weight of a jury verdict, and this Court
is bound by the post-conviction court’s findings unless the evidence in the record preponderates
against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958
S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not reweigh or reevaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt,
54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).

                   Effective Assistance of Counsel and Voluntariness of Plea

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). “Because a petitioner must establish both prongs of the test to prevail on a claim of
ineffective assistance of counsel, failure to prove either deficient performance or resulting prejudice
provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580.

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . .; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).




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       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This
Court may not second-guess a reasonably based trial strategy, and we cannot grant relief based on
a sound, but unsuccessful, tactical decision made during the course of the proceedings. See id.
However, such deference to the tactical decisions of counsel applies only if counsel makes those
decisions after adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

         Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent
that it affects the voluntariness of the plea. In this respect, such claims of ineffective assistance
necessarily implicate the principle that guilty pleas be voluntarily and intelligently made. See Hill
v. Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). As
stated above, in order to successfully challenge the effectiveness of counsel, the petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. See Baxter, 523 S.W.2d at 936. Under Strickland v. Washington, 466 U.S. 668,
694 (1984), the petitioner must establish: (1) deficient representation; and (2) prejudice resulting
from the deficiency. However, in the context of a guilty plea, to satisfy the second prong of
Strickland, the petitioner 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.” Hill, 474 U.S.
at 59; see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

       When analyzing 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). 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. Boykin, 395 U.S. at 242. Similarly, our
Tennessee Supreme Court in Mackey required an affirmative showing of a voluntary and
knowledgeable guilty plea, namely, that the defendant has been made aware of the significant
consequences of such a 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). The trial court
must determine if the guilty plea is “knowing” by questioning the defendant to make sure he fully
understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858 S.W.2d at
904. When evaluating the knowing and voluntary nature of a guilty plea, the United States Supreme
Court has held that “[t]he standard was and remains 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 (1970). The court reviewing the voluntariness of a guilty plea must look to
the totality of the circumstances. See State v. Turner, 191 S.W.2d 346, 353 (Tenn. Crim. App.
1995); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). Specifically,
a reviewing court must consider “the relative intelligence of the defendant; the degree of his
familiarity with criminal proceedings; whether he was represented by competent counsel and had the
opportunity to confer with counsel about the options available to him; the extent of advice from


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counsel and the court concerning the charges against him; and the reasons for his decision to plead
guilty, including a desire to avoid a greater penalty that might result from a jury trial.” Blankenship,
858 S.W.2d at 904.

        In its findings of fact, the post-conviction court categorically stated that it accredited the
testimony of trial counsel. Trial counsel stated that Petitioner was not under the influence of drugs
when he accepted the plea. Trial counsel also testified that he went over all documents related to the
plea agreement in detail prior to Petitioner accepting the plea. The plea colloquy is included in the
record on appeal. This colloquy, as stated by the post-conviction court, includes the trial court’s
statement on more than one occasion that Petitioner’s sentence was to be for eight years. We
conclude that the evidence does not preponderate against the findings of the post-conviction court.

       Petitioner has not shown that trial counsel was ineffective. Petitioner’s argument is that trial
counsel was coercive. However, the evidence from the post-conviction hearing shows the opposite.
Therefore, Petitioner cannot meet the first prong set out in Strickland.

        Likewise, Petitioner has not demonstrated that he did not knowingly, intelligently and
voluntarily enter his guilty plea. There was no evidence other than Petitioner’s testimony that trial
counsel coerced him to accept the plea and that he was under the influence of drugs at the time. The
post-conviction court previously determined that trial counsel’s testimony was credible and
Petitioner’s was not. This is a finding of fact that is conclusive on appeal. In addition, the plea
colloquy demonstrates that the trial court questioned Petitioner and that Petitioner understood his
plea. Therefore, we find no evidence to preponderate against the post-conviction court’s finding that
the plea was entered into the plea voluntarily.

                                          CONCLUSION

       For the reasons stated above, we affirm the post-conviction court’s denial of the petition.



                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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