        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               December 17, 2013 Session

                 JEREMIAH R. KEY v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                     No. 100204     Jon Kerry Blackwood, Judge


               No. E2013-00744-CCA-R3-PC - Filed February 14, 2014


Petitioner, Jeremiah R. Key, sought post-conviction relief from his guilty-pleaded
convictions for aggravated robbery, second degree murder, and coercion of a witness. The
post-conviction court denied relief after an evidentiary hearing. On appeal, petitioner raises
the following issues: (1) ineffective assistance of counsel for failure to adequately
communicate with petitioner; (2) ineffective assistance of counsel for failure to ensure that
his guilty pleas were voluntarily entered; and (3) involuntariness of his guilty pleas.
Following our review, we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
N ORMA M CG EE O GLE, J., joined.

Forrest L. Wallace, Knoxville, Tennessee, for the appellant, Jeremiah R. Key.

Robert E. Cooper, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Randall
Eugene Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

       This post-conviction case stems from petitioner’s guilty-pleaded convictions for
aggravated robbery, second degree murder, and coercion of a witness, for which he received
consecutive sentences of ten years, twenty years, and four years, respectively. Pursuant to
the plea agreement, petitioner entered a guilty plea to second degree murder, a lesser included
offense of the indicted charge of felony murder. The State also dismissed the additional
counts of the indictments in each case.
                                           I. Facts

                    A. Facts from the Guilty Plea Submission Hearing

       At the January 10, 2012 plea submission hearing, the State submitted that its proof
against petitioner in support of the aggravated robbery charge consisted of the victim’s
testimony, in which he would have identified petitioner, although masked, by his “very
distinctive eyes” that were visible through the ski mask. One of the victim’s neighbors
witnessed two individuals in a black Jeep Cherokee who were behaving suspiciously. He
observed them change the vehicle’s license plate before fleeing the scene. This neighbor also
obtained a partial license plate number from the Jeep that matched the vehicle owned by
petitioner’s brother. Petitioner’s brother gave a statement to police that placed petitioner at
the crime scene. Finally, when questioned about his involvement in a subsequent unrelated
murder, petitioner commented to an officer that he did not commit the murder but that he
robbed the victim in this case.

       With regard to the second degree murder charge, the State’s evidence at trial would
have established that the victim, a known drug dealer, was shot and killed. A witness was
present in the victim’s residence when a masked intruder entered and demanded that the
victim lie on the ground. The victim resisted and was shot during the ensuing struggle.
Petitioner’s brother drove him to that location knowing that petitioner’s intent was to rob the
victim. He witnessed petitioner in possession of a mask, gloves, and a silver weapon. The
mask and gloves were recovered, and DNA evidence confirmed that they belonged to and
had been worn by petitioner.

       The evidence underlying the charge of coercion of a witness consisted of an
investigator’s testimony with regard to placing petitioner’s brother, Joe Key, under subpoena,
Mr. Key’s failure to appear in court as directed on the first day of trial, and the summary of
the telephone call that petitioner placed to his grandmother on the night before the trial
began, wherein he encouraged his grandmother to assist Joe Key in leaving the area.

       At the plea submission hearing, petitioner acknowledged that he understood his rights,
that he voluntarily waived his rights, that he had no complaints about trial counsel’s
representation of him, and that he had no questions.

                                   B. Procedural History

       Petitioner filed the instant petition for post-conviction relief on August 29, 2012.
Appointed counsel did not file an amendment. The post-conviction court held a hearing on
the petition on February 25, 2013.

                                              -2-
                           C. Facts from Post-Conviction Hearing

        Petitioner testified that he filed the instant petition for post-conviction relief because
he felt “forced” into accepting the State’s plea offer. He stated trial counsel informed him
that his younger brother Joe Key, who had failed to appear as a witness on the first day of
trial, and his grandmother were going to be arrested immediately if he did not accept the
State’s offer.

       Petitioner recounted that trial counsel was appointed to represent him at the general
sessions level. He recalled that his robbery case was dismissed following the preliminary
hearing due to a flawed eyewitness identification. He was surprised when he was indicted
because he thought that the dismissal marked the conclusion of the matter. According to
petitioner, trial counsel had never indicated that he could be indicted in criminal court
following the dismissal in general sessions court. Despite his case being dismissed,
petitioner remained in jail due to a detainer against him issued by North Carolina.

       Petitioner agreed that he was indicted for robbery on May 3, 2011, and for an
unrelated felony murder on May 31, 2011. Prior to the setting of the first trial, counsel
visited petitioner approximately five or six times at the jail for around twenty to thirty
minutes each time, but he was always accompanied by another person or persons.

       Petitioner stated that his defense at the robbery trial, which was scheduled first, was
going to be that he was not guilty of the charges. Trial counsel discussed some of the State’s
evidence against him, namely a mask and gloves that contained his DNA as well as DNA
from others. Petitioner testified that he was not aware of any proof that trial counsel planned
to offer. Moreover, he said that he was not advised about the strengths and weaknesses of
his cases.

        Petitioner recalled that prior to trial, the State offered to settle his cases in exchange
for a ten-year sentence for robbery and a twenty-year sentence for second degree murder, but
he declined the offer. On the second day of the trial, the State offered the same agreement
but added a charge of coercion of a witness and an additional four-year sentence for that
offense. He claimed that trial counsel told him that if he did not accept the State’s offer, his
grandmother and younger brother, both of whom were present in court, would be arrested for
coercion and obstruction of justice. He did not have sufficient time to consider the offer, but
he accepted it in an effort to “protect [his] family.” Petitioner stated that he did not want to
accept the offer because he was innocent of the charges.

      Petitioner testified that prior to his entering the plea, he and trial counsel reviewed
some of the plea agreement documents. Petitioner said that he had no questions for trial

                                               -3-
counsel at that time. He did not recall reviewing each of the seven pages of the plea
agreement. Petitioner stated that he answered affirmatively during the plea submission
hearing because “if [he] would have answered any different[ly], then [he] wouldn’t have
been able to accept the plea and [his] family would have been locked up . . . .” In sum,
petitioner explained that he felt “let down” because he had been prepared to go to trial.

        Petitioner confirmed that trial counsel instructed that if petitioner did not accept the
plea agreement on the second day of trial, the State would have his grandmother and younger
brother arrested. He said that trial counsel conveyed that the State would arrest his brother
on the same charges for which petitioner was arrested. In addition, his grandmother would
be arrested on charges of coercion of a witness and obstruction of justice. Petitioner
maintained that the basis for the charges stemmed from a telephone call he placed on the
night before trial. Petitioner claimed that in the call, he told his grandmother that his brother
did not want to come to court and that he asked her to give his brother some money with
which he could leave the area. Petitioner said that his brother had confided in him during a
visit that the State “was trying to make him say things that he didn’t want to say[] [and] that
he didn’t want to come to court.” Petitioner recalled that when trial counsel explained the
new developments to him, his voice sounded calm.

        The State called trial counsel as a witness. Trial counsel testified that he had been a
criminal defense attorney for seventeen years and that he had handled over thirty-six first
degree murder cases and over 150 jury trials. During the course of his representation of
petitioner, trial counsel prepared him for his trial both personally and by use of an
investigator, to whom he entrusted the responsibility of reviewing the evidence with
petitioner. In response to petitioner’s complaint that trial counsel was always accompanied
by someone else, he stated that the first thing he would do when visiting a client in the
presence of a third party was to remind the client that attorney/client privilege extended to
the third party, as well. By doing so, he sought to make the client feel more comfortable
speaking to an investigator.

        Trial counsel testified that he prepared petitioner for both of his cases and reviewed
all of the evidence with him, including DNA evidence and witness statements. He recalled
that his opinion was that the State’s case was strong and that he thought petitioner would be
convicted in both cases. As such, he believed that the plea offer was generous, considering
petitioner’s status as a Range II offender. Trial counsel thought, at one time, that petitioner
was going to accept the offer, but petitioner then decided that if he could prevent his brother
from appearing, “that would change the tide.” However, trial counsel opined that even
without the testimony of petitioner’s brother, they were going to lose both cases. Trial
counsel recalled:



                                               -4-
       I remember doing voir dire, we were aware [petitioner’s brother] wasn’t there.
       Frankly, I remember thinking, now I know why we’re going to trial. And I
       remember [the State] telling the Court that this was a critical witness and that
       [the State] wanted time – [the State] didn’t want the jury sworn, so we . . .
       agreed that we would pick the jury, send them home[,] and the State would
       have that afternoon and evening to try to find this witness.

       And . . . I met with him and said, “I hope you know what you’re doing.
       Because they are going to find [him]. And if they do, God help us.”

       Trial counsel stated that the following morning, the State approached him with a
computer disk containing a recording of a telephone call between petitioner and his
grandmother the Sunday night prior to trial, during which he instructed his grandmother to
“get Joe out of town.” Futhermore, trial counsel recalled that when the trial judge saw
petitioner’s brother in the courtroom on Tuesday morning, he was very upset. Pursuant to
the court’s order, Joe Key was placed in handcuffs. Trial counsel retreated to the holding cell
adjacent to the courtroom where he told petitioner that his brother was present and that the
State had a recording of the telephone call he had placed. According to trial counsel,
petitioner reacted with his “[m]outh open like, [‘][O]h.[’] All right. No denial. I mean, you
know, a taped phone call is a taped phone call.”

        Trial counsel recalled that at that time, he did not tell petitioner that his brother or
grandmother would be arrested. Before the trial resumed, trial counsel met with the State and
asked for the plea offer to be extended again. Trial counsel was surprised when the State
agreed and only added four years for the coercion charge. He communicated the offer to
petitioner, who, at that point, only knew that his brother was present in the courtroom.
Petitioner asked if his brother would be in trouble for not appearing the previous day, and
trial counsel responded that he would not, pursuant to his discussion with the assistant district
attorney general. Trial counsel explained that because of the last-minute nature of the plea
agreement, he and the State had to seek approval from the trial court. During that
conversation, trial counsel recalled that he asked that Joe Key be released from handcuffs
because, if not, petitioner would later attack his guilty plea by claiming that it was coerced.
He said, “I was very careful about that.” According to trial counsel, petitioner never knew
that his brother had been in handcuffs or that he was in custody.

        On cross-examination, trial counsel stated that he prepared for the robbery case by
meeting with petitioner, reviewing the warrant, educating himself about the State’s evidence,
and conducting a preliminary hearing. After the case was dismissed in general sessions
court, trial counsel explained to petitioner “right away” that he could still be indicted in
criminal court. He communicated this in person, as it was his policy to not write letters. The

                                               -5-
State ultimately indicted petitioner on the robbery charge and obtained an additional
indictment for felony murder in an unrelated case.

       Trial counsel stated that he represented petitioner at the arraignments. The first matter
he undertook was explaining the charges and the ranges of punishments for each charge. He
secured funds for a private investigator and accompanied him to the jail to meet petitioner.
Trial counsel confirmed that although petitioner did not receive a copy of the motion for
discovery, petitioner had an opportunity to review all of the discovery they had received.

        Based on his review of the case, trial counsel prepared a “pros and cons” list of the
case to discuss with petitioner. He opined that the list in favor of the State’s case was much
longer than the list in favor of the defense. He reviewed all of the evidence with petitioner.
Together, trial counsel and petitioner decided that he would not testify at either trial because
of his extensive criminal record.

        With regard to the plea agreement, trial counsel testified that in his opinion, “when
[petitioner] knew his brother was here, he caved . . . he knew the problem. When he knew
his brother was here, he resigned to it.” He remembered that petitioner’s response to the
State’s having learned of the content of the telephone call was “shock.” When petitioner
accepted the plea offer, trial counsel reviewed the plea documents with him, though “not
word for word.” After the trial court accepted the plea, petitioner was removed from the
courtroom. At that time, the trial court addressed Joe Key and petitioner’s grandmother and
“politely chastised” them for their conduct. Petitioner was not in the room to witness any
interaction between the trial court and his family members.

       At the close of the proof, the post-conviction court announced that it found
petitioner’s guilty pleas to be voluntary and that trial counsel was not ineffective. The post-
conviction court summarized its holding in a written order dated March 4, 2013. This appeal
follows.

                                         II. Analysis

        In this appeal, petitioner raises three issues: (1) ineffective assistance of counsel in
failing to adequately communicate with petitioner and advise him of developments in his
case; (2) ineffective assistance of counsel in failing to ensure that petitioner’s guilty pleas
were voluntarily entered; and (3) involuntariness of his guilty pleas.




                                              -6-
                                  A. Standard of Review

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,
562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As mixed questions of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

        The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court held:



                                             -7-
       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).

        To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

       Strickland’s two-part test also applies to guilty pleas. See Hill v. Lockhart, 474 U.S.
52, 58 (1985). Pursuant to Hill, the issue with regard to guilty pleas is whether, absent
counsel’s deficiency, petitioner would not have pleaded guilty but would have insisted upon
going to trial. Id. at 59.

                                          B. Claims

                   1. Failure to Adequately Communicate with Petitioner

      Petitioner argues in his brief that trial counsel failed to adequately communicate with
him and advise him of developments in his case. In denying relief on this claim, the post-
conviction court credited the testimony of trial counsel:

              Trial counsel testified that he constantly communicated with Petitioner
       and kept him informed of the developments in the case. He explained to
       Petitioner that his case would be taken to the grand jury on the robbery charge
       and that a felony murder charge would be added. Trial counsel further

                                               -8-
       testified that he devoted the entire week before trial working with Petitioner
       on his case. More importantly, trial counsel explained in his testimony the
       evidence against Petitioner and his discussion with him.

         The post-conviction court was in the better position to assess the credibility of
witnesses, and we will not disturb the court’s determination in this regard. Dellinger, 279
S.W.3d at 292. Moreover, petitioner has not demonstrated that he was prejudiced by trial
counsel’s alleged failure to adequately communicate with him or apprise him of
developments in his cases. Moreover, even if trial counsel had visited more often, “[b]ecause
. . . petitioner has failed to satisfactorily prove how this lack of communication might have
affected the results of the trial, no relief can be granted on this basis.” Brimmer v. State, 29
S.W.3d 497, 511 (Tenn. Crim. App. 1998). Petitioner is not entitled to relief on this claim
of error.

            2. Failure to Ensure that the Guilty Pleas Were Voluntarily Entered

        Petitioner further posits that he reluctantly accepted the plea agreement because trial
counsel advised him of his family members’ possible incarceration. To that end, we glean
that he is asserting that trial counsel rendered ineffective assistance of counsel by failing to
ensure that his guilty pleas were voluntarily entered. The post-conviction court denied relief,
stating:

       Petitioner was aware that his only hope in light of the overwhelming evidence
       was that his brother would not appear. To that end, he devised the scheme to
       get his brother out of town. Faced with the reality of his failed ploy, the
       Petitioner entered a plea that was very advantageous to him in light of the
       evidence.

        Trial counsel testified that the State’s plea offer was generous, especially in light of
petitioner’s criminal history. At some point, trial counsel believed that petitioner would
accept the plea, but he later ascertained that petitioner intended to go to trial on the belief that
his brother would not appear to testify. When petitioner learned that his brother had, indeed,
appeared on the second day of trial, he appeared “shocked” and “resigned,” as characterized
by trial counsel. Moreover, trial counsel testified that petitioner never saw his brother in
handcuffs. He also stated that petitioner’s grandmother was never handcuffed. Trial counsel
assured petitioner that his family members would face no legal repercussions. Petitioner’s
testimony that he believed that his family members were subject to impending criminal
charges and incarceration was not credited by the post-conviction court, and we will not
disturb its credibility findings. Dellinger, 279 S.W.3d at 292. Petitioner is not entitled to
relief on this claim.

                                                -9-
                              C. Voluntariness of Guilty Pleas

        Petitioner also advances a free-standing claim challenging the voluntariness of his
guilty pleas. A guilty plea must be entered knowingly, voluntarily, and intelligently. Lane,
316 S.W.3d at 562; see North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v. Alabama,
395 U.S. 238, 242-44 (1969). If a plea is not knowingly, voluntarily, and intelligently
entered, the guilty plea is void because appellant has been denied due process. Lane, 316
S.W.3d at 562 (citing Boykin, 395 U.S. at 243 n.5). To make such a determination, the court
must examine “whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” Id. “[A] plea is not voluntary if it
results from ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or
blatant threats.’” Id. at 563 (quoting Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993)). Thus, the transcript of the plea colloquy must affirmatively show that a defendant’s
decision to plead guilty was both voluntary and knowledgeable. Id. The trial court must
ensure that the defendant entered a knowing and intelligent plea by thoroughly “‘canvass[ing]
the matter with the accused to make sure that he has a full understanding of what the plea
connotes and of its consequences.’” Id. (quoting Blankenship, 858 S.W.2d at 904).

       Petitioner concedes that the plea submission hearing satisfied constitutional muster.
However, he asserts that trial counsel conveyed that his family members would possibly be
incarcerated if he did not accept the plea, which violated the prohibition against use of
coercion. The record does not support this factual allegation.

        Moreover, petitioner’s testimony at the post-conviction hearing was in direct conflict
with his testimony at the guilty plea hearing. “A petitioner’s testimony at a guilty plea
hearing ‘constitute[s] a formidable barrier’ in any subsequent collateral proceeding because
‘[s]olemn declarations in open court carry a strong presumption of verity.’” Bruce S. Rishton
v. State, No. E2010-02050-CCA-R3-PC, 2012 WL 1825704, at *17 (Tenn. Crim. App. May
21, 2012) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). In this case, the post-
conviction court credited petitioner’s testimony during the guilty plea hearing over his
testimony at the post-conviction hearing. In sum,

       [t]he evidence does not preponderate against the findings of the
       post-conviction court. It appears the petitioner is suffering from a classic case
       of ‘Buyer’s Remorse,’ in that he is no longer satisfied with the plea for which
       he bargained. A plea, once knowingly and voluntarily entered, is not subject
       to obliteration under such circumstances.

Robert L. Freeman v. State, No. M2000-00904-CCA-R3-PC, 2002 WL 970439, at *2 (Tenn.
Crim. App. May 10, 2002). Petitioner is not entitled to relief on this issue.

                                             -10-
                                     CONCLUSION

       Based upon the arguments of counsel, the parties’ briefs, applicable legal authority,
and the record as a whole, we affirm the judgment of the post-conviction court.

                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




                                            -11-
