         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 3, 2004

             THOMAS WILLIAM FARR v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                    Nos. 2000-A-274, 2000-I-971 J. Randall Wyatt, Judge




                   No. M2003-00480-CCA-R3-PC - Filed April 14, 2004



The Defendant, Thomas Farr, pled guilty to one count of second degree murder and two counts of
solicitation to commit first degree murder. In accordance with the plea agreement, the Defendant
was sentenced to thirty years on the murder charge and to eight years on each of the solicitation
charges, which terms were concurrent to each other but consecutive to the thirty year term, for an
effective sentence of thirty-eight years. The Defendant subsequently filed for post-conviction relief
on the grounds that his lawyer was ineffective and that his plea was not knowingly and voluntarily
entered. After a hearing, the trial court denied relief. This appeal followed. We affirm the judgment
of the trial court.


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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH , JJ., joined.

David M. Hopkins, Nashville, Tennessee, for the appellant, Thomas William Farr.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Victor
S. Johnson, District Attorney General; and Tom Thurman, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                             OPINION

       The Defendant’s conviction for second degree murder was based upon his involvement in
the shooting death of his wife. His convictions for two counts of solicitation of first degree murder
grew from his attempts to obtain someone to kill a detective and an assistant district attorney general
who were involved in the investigation and prosecution of the Defendant for the murder of his wife.
         The Defendant testified at the post-conviction hearing that, at the time he entered his plea,
he was a Range I offender, subject to a sentence of no more than twenty-five years for second degree
murder. He stated that his lawyer did not explain to him that his plea agreement was for a Range II
sentence of thirty years. He admitted, however, that he understood at the plea hearing that he was
receiving a sentence of thirty years to be served at one hundred percent. The Defendant also testified
that his lawyer told him that, according to the prosecutor, if he did not take the plea, the State
planned on prosecuting his sister for her involvement in the solicitation charges. He further stated
that he was told that, if he did not take the plea, the State was going to “turn the charges over” to the
U. S. Attorney’s office for federal prosecution. He stated that, prior to his plea, he had been
“considering suicide.” He admitted, however, that he told his lawyer not to say anything about his
mental state. At the plea hearing, he stated, his mental condition was “[c]onfused, distraught, not
sure if [he] knew what [he] was doing.” The defendant testified that he was college educated, having
both an undergraduate degree and a master’s degree.

         The Defendant explained that, prior to his plea, defense counsel had filed a motion to recuse
the District Attorney’s office because two of the pending charges involved two state officials. The
Defendant stated that his lawyer told him that this motion had been denied. The Defendant also
testified that his lawyer told him “very strongly” that the legislation providing that sentences for
second degree murder be served at one hundred percent was likely to be changed to requiring only
sixty percent service.

         Mr. Martin Szeigis testified that he represented the Defendant during the plea process. He
testified that the State provided him with extensive discovery. His opinion was that the Defendant
faced a “strong likelihood of conviction on the murder case.” He testified that he repeatedly
explained to the Defendant what his sentence would be, its ramifications, and that he would be
pleading to a sentence that was outside of his Range. During these discussions, the Defendant asked
“normal” and “intelligent” questions. Mr. Szeigis explained to the Defendant that he would be
entitled to up to fifteen percent sentencing reduction credits, but never told the Defendant that he
would be eligible for release after service of sixty percent of his sentence.

        Mr. Szeigis never had any questions about whether the Defendant was entering his plea
voluntarily. On the day of the plea hearing, he saw nothing to alert him to any mental problems on
the Defendant’s part. He stated that “at no time did we feel like . . . there was a competency issue”
and that the Defendant’s mental state “was not something that . . . we felt that would be to his
advantage to pursue.” He explained that the Defendant was concerned about his sister, but he did
not think that the Defendant’s concern influenced his decision to accept the plea agreement. Rather,
“the evidence and . . . the evaluation of the evidence was the significant reason” for the Defendant’s
decision to accept the plea.

         Mr. Szeigis discussed with the Defendant possible federal prosecution against both him and
his sister. His information in this regard came from the state prosecutor, and he did not have any
direct discussions with the U. S. Attorney’s office. Introduced into evidence at the post-conviction
hearing was a letter from the State prosecutor to Mr. Szeigis providing that “If [the Defendant] enters


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this plea, there will be no federal or further state prosecution for his solicitation of Mr. Roger Bray
or Deandre Goodwin to commit any criminal offense. In addition, his sister Aubrey F. Duncan will
not be prosecuted for conspiracy to commit murder by either state or federal authorities for her part
in sending money to Russell Bray.”

       Mr. Szeigis testified that the motion to recuse the District Attorney’s office was pending at
the time of the plea, and that he did not tell the Defendant that it had been denied.

        The trial court found that the Defendant’s allegation that Mr. Szeigis misled him about the
passage of legislation which would lower his release eligibility date was “not supported by the
record,” thereby finding that the Defendant was not credible on this point. The trial court also
rejected the Defendant’s claim that Mr. Szeigis told him that the motion to recuse the District
Attorney’s office had been denied. The trial court further found “absolutely no evidence” to support
the Defendant’s allegation that his plea was the result of threats by the State and prosecutorial
misconduct on the part of the District Attorney’s office. The trial court concluded that the Defendant
“was represented in a competent and effective manner by attorney Szeigis.” Taking into account the
transcript of the plea hearing, which was admitted into evidence at the post-conviction hearing, the
trial court determined that “it carefully explained the plea petition to the [Defendant] as well as his
rights in connection with pleading guilty, numerous times during the proceedings. The Court also
notes that the Petitioner acknowledged the Court’s explanation and clearly indicated that he
understood. Based on the evidence presented, the Court is of the opinion that the Petitioner
understood the plea agreement and entered into it knowingly and voluntarily.” Accordingly, the trial
court denied the Defendant’s claim for post-conviction relief. The Defendant now contends that, in
so doing, the trial court erred.

        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not re-
weigh or re-evaluate the evidence below; all questions concerning the credibility of witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.

         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
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. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.


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        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        This two-part standard of measuring ineffective assistance of counsel also applies to claims
arising out of a guilty plea. See 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 v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made. See Strickland, 466 U.S. at 690; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).

        A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.

         The trial court entered a thorough and comprehensive order setting forth its findings of facts
and conclusions of law. The court found that the Defendant knowingly and voluntarily entered his
guilty pleas with the effective assistance of counsel. The record in this case fully supports the
findings of the trial court and demonstrates that the Defendant entered his guilty plea knowingly and
voluntarily and with the effective assistance of counsel. Accordingly, the Defendant is not entitled
to relief in his appeal.




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                                 CONCLUSION

For the reasons stated above, the judgment of the trial court is affirmed.


                                               ___________________________________
                                               THOMAS T. WOODALL, JUDGE




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