         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs June 4, 2013

               DEMARCUS SANDERS v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                     No. 10-02677     J. Robert Carter, Jr., Judge


                No. W2012-01685-CCA-R3-PC - Filed November 8, 2013


Petitioner, Demarcus Sanders, appeals from the trial court’s denial of post-conviction relief
following an evidentiary hearing. Petitioner attacked his guilty plea to second degree murder
and his resulting twenty-five-year sentence on the basis that his trial counsel rendered
ineffective assistance of counsel as a result of which Petitioner entered a guilty plea that was
not knowingly and voluntarily entered. After a thorough review of the record and the parties’
briefs, we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and J EFFREY S. B IVINS, JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Demarcus Sanders.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

        In his brief on appeal, Petitioner argues that there are “multiple” examples of trial
counsel’s rendering of ineffective assistance of counsel. These included trial counsel’s
failure to prepare for trial by 1) not securing an expert witness to testify on the issue of
reliability of eyewitness testimony; 2) not moving to suppress photograph identifications of
Petitioner by the eyewitnesses; and 3) not moving to suppress Petitioner’s statement to
police. Petitioner further asserts that as a direct result of trial counsel’s ineffective assistance
of counsel, he was coerced into entering a plea of guilty to second degree murder with an
agreed sentence of twenty-five years pursuant to a negotiated plea agreement, when he was
facing trial for first degree murder with a sentence of life imprisonment if convicted as
charged.

       Evidence at the relatively brief post-conviction hearing consisted of the testimony of
Petitioner and trial counsel, plus one exhibit, the transcript of the guilty plea hearing. For the
purposes of disposition of the precise arguments in this appeal, it is noteworthy to state that
the uncontradicted proof showed that no eyewitness identification expert witness was
consulted or retained for trial, and no pre-trial motions were filed by trial counsel which
challenged the admissibility of the eyewitnesses’ photograph identifications or Petitioner’s
statement to police. Trial counsel testified that the evidence of Petitioner’s guilt of first
degree murder was strong, and his strategy was to work toward a favorable negotiated
settlement of the case in lieu of litigating suppression motions. Trial counsel stated that he
would probably have litigated the photograph identification issue if Petitioner had not
accepted the State’s offer to settle the case.

       Petitioner testified that trial counsel met with Petitioner at the jail “several times” prior
to the guilty plea hearing. Petitioner admitted trial counsel provided him with a copy of
discovery materials and went over the discovery information with Petitioner. Petitioner
acknowledged in his testimony that two eyewitnesses identified Petitioner as a shooter during
the homicide. According to Petitioner, trial counsel told him several times that he would be
convicted of first degree murder if he went to trial. Also, Petitioner claimed that trial counsel
used “blunt” language in a letter to Petitioner which expressed the opinion that Petitioner
would be convicted as charged if he went to trial.

        Regarding the allegations of ineffective assistance of counsel raised in this appeal,
Petitioner also testified that he wanted to have a trial and that he was frightened and coerced
by trial counsel to enter the guilty plea. He added that he felt trial counsel was not prepared
for trial, “[b]ecause he kept telling me to take the twenty-five years. He didn’t want me to
seek trial and didn’t really, didn’t investigate the case properly like he [was] suppose[d] to.”

       The transcript of the guilty plea hearing discloses the following portion of the
colloquy between the trial court and Petitioner:

         Q.     When you enter a guilty plea, you’re telling me that you understand
                about your trial rights and you want me to find you guilty without a
                jury based on this agreement that your attorney has worked out for
                you?

         A.     Yes, sir.



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Q.   And the agreement in this case is that the charge that you were
     originally indicted for, murder in the first degree, will be reduced to
     murder in the second degree. Murder in the first degree, of course
     carries life, life without parole or even the death penalty under
     certain circumstances. And it will be reduced to murder in the
     second degree, and that carries between 15 and 60 years. In your
     case the agreed upon sentence is 25 years as a Range I Violent
     Offender. Is that your understanding?

A.   Yes, sir.

Q.   That’s a 100 percent crime in other words. Do you understand that?

A.   Yes, sir.

Q.   Did you discuss that with [trial counsel]?

A.   Yes, sir.

Q.   All right. Now, is this what you want to do?

A.   Yes, sir.

Q.   All right. Well, is anybody making you do this?

A.   No, sir.

Q.   Are you doing it of your own free will?

A.   Yes, sir.

Q.   Do you have any questions about it?

A.   No, sir.

Q.   All right. I know this matter has been pending for a while, but has
     [trial counsel] done everything you’ve asked of him in terms of
     investigating the case? Do you feel like he understands the case
     fully? Have you told him everything you know about the case?



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A.   Yes, sir. Yes, sir.

Q.   All right. And he has - - I understand in fact he’s the one who went
     and negotiated and got this reduction for murder one down to murder
     two; is that correct?

A.   Yes, sir.

Q.   So are you satisfied with how this is - - was this in your best
     interest?

A.   Yes, sir.

Q.   All right. Now, it was mentioned that you wanted to enter this plea
     under Alf[or]d versus North Carolina. And what that means is as
     part of a guilty plea you don’t have to say that you did anything that
     you don’t believe that you did.

A.   Right.

Q.   But on the other hand, you have to tell me that you understand this
     is going to be on your record just like a regular plea. It just means
     as part of the plea you don’t have to admit to something you say you
     didn’t do.

A.   Right.

Q.   All right. And it’s often call a Best Interest Plea. What - - what this
     means usually is you and your attorney have reviewed all the
     evidence against you and you’ve decided this is in my best interest
     to plead to this because if I went to trial on murder first degree,
     there’s good chance I might get convicted of that and get a lot more
     time. Is that - - is that what your thinking was?

A.   Yes, sir. Yes, sir.

Q.   All right. Like I said, any last chance here, do you have any
     questions about this that I can answer or any questions about any of
     this?



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         A.     Yes, sir. One thing I’m trying to see when [will] I be shipped to the
                penitentiary?

       During his direct examination at the post-conviction hearing, Petitioner stated that he
did not tell the trial court at the guilty plea hearing that he (Petitioner) was unhappy with trial
counsel’s representation,

         [b]ecause at the point in time, like I say, I caught the charges as a juvenile
         and I wasn’t aware of none of it . . . . I didn’t know what was going on.
         Not, like I say, I caught the charge as a juvenile and the same time I was
         frightened.

       During cross-examination at the post-conviction hearing, Petitioner was questioned
as follows regarding his inconsistent testimony in the guilty plea hearing and the post-
conviction hearing:

         Q.     And the next question [at the guilty plea hearing] is: So are you
                satisfied with how this is, was this in your best interest? And you
                said: Yes, sir.

                So back on June the 27th , just over a year ago you thought the case
         was in your best interest and the twenty-five years was in your best interest.
         What made you determine that the twenty-five year guilty plea was not in
         your best interest considering that you were facing life in prison? In other
         words, the rest of your life incarceration in the Department of Correction[]
         in Tennessee. When, when did you decide that the twenty-five years was
         a bad guilty plea for you?

         A.     Well at the point in time I been decided it was not a good, a good
                guilty plea for me because, like I said, the facts of the case they had
                not have good grounds. They didn’t have no sufficient evidence to
                convict me of second degree or first degree to murder. Because first
                degree murder it, it’s far as premeditation. And second degree
                murder as far as knowing, it’s a knowing of killing.

                And they could not have proved none of that fact of me doing it
                because, like I said, through witness at that point in time never said
                that he didn’t see that I talked to him or knowing of killing that
                person. At the time the witness had made inconsistent statements
                pertaining to the case.

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       The trial court took the post-conviction proceedings under advisement when the
hearing concluded and timely filed a written order denying relief. After summarizing the
relevant testimony and quoting a pertinent portion of the guilty plea proceedings, the trial
court made the following factual findings in its ruling:

                In the case at hand, it is clear that Petitioner was familiar with
        criminal proceeding[s] from two prior convictions, and had ample
        opportunities to confer with his attorney as well as his family. It is also
        clear that Petitioner chose to plead guilty specifically to avoid the possibility
        of a more sever[e] sentence.

               Petitioner asserts that his attorney was ineffective, but presents no
        proof to support this. In fact, it appears that counsel was prepared and made
        every effort to provide support for Petitioner’s claim of alibi.

                Counsel further had a back up strategy prepared for implementation
        if Petitioner chose to exercise his right to a jury trial. Petitioner has not
        shown any deficiency in his representation by trial counsel.

              Under all of the circumstances, it is clear that Petitioner entered a
        “knowing and voluntary” guilty plea in this case. His assertion at this time,
        unsupported by any proof, that his plea was involuntary is not well taken.

ANALYSIS

        In order to be granted post-conviction relief, a petitioner must prove the factual
allegations supporting relief by clear and convincing evidence at an evidentiary hearing.
T.C.A. § 40-30-110(f); Ward v. State, 315 S.W.3d 461, 465 (Tenn. 2010). The trial court’s
factual findings in its ruling in a post-conviction proceeding “are conclusive on appeal unless
the evidence preponderates against those findings.” Jaco v. State, 120 S.W.3d 828, 830
(Tenn. 2003). Appellate review of legal issues, or of mixed questions of fact and law, such
as in a claim of ineffective assistance of counsel, is de novo with no presumption of
correctness. Pylant v. State, 263 S.W.3d 854, 867-68 (Tenn. 2008). A petitioner must satisfy
both prongs of the two-prong test to prove ineffective assistance of counsel which is set forth
in Strickland v. Washington, 466 U.S. 668 (1984). Dellinger v. State, 279 S.W.3d 282, 293
(Tenn. 2009). These prongs are (1) deficient performance of counsel, defined as “counsel’s
representation fell below an objective standard of reasonableness,” Strickland, 466 U.S. at
687-88, and (2) prejudice to the defendant, defined as “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Dellinger, 279 S.W.3d at 293. If the petitioner fails to establish either one of the prongs, that

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is a sufficient basis to deny relief, and the other prong does not need to be addressed.
Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004). If a petitioner alleges that trial
counsel rendered ineffective assistance of counsel by failing to do an act such as call a
witness, present tangible documents for evidence, and/or file a motion to suppress, among
other actions, the petitioner is generally obliged to present the witness or the other evidence
at the post-conviction hearing in order to satisfy the Strickland prejudice prong. See Pylant,
263 S.W.3d at 869. In other words, it is incumbent upon a petitioner to prove that what he
says trial counsel should have done would have had merit and produced admissible, relevant
evidence.

       Regarding whether the guilty plea was entered knowingly and voluntarily, the trial
court correctly stated the following in its order denying post-conviction relief:

                When determining the knowing and voluntary nature of the guilty
        plea, the standard is “whether the plea represents a voluntary and intelligent
        choice among the alternative courses of action open to the defendant.”
        North Carolina vs. Alford, 400 U.S. 25, 31 (1970). This is elaborated upon
        in [Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993)] when the
        Tennessee Supreme Court stated that the reviewing court must look to
        various circumstantial factors, including

                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 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.

        In light of the above legal authorities it is important to note the type of evidence not
submitted at the post-conviction hearing. Petitioner did not produce: an expert witness to
testify concerning the reliability of eyewitness identification proof; the testimony of the two
eyewitnesses who Petitioner claims counsel should have been prepared to question their
credibility; the photographs used in the photograph identifications by the eyewitnesses; the
circumstances of Petitioner’s statements to a police officer; or Petitioner’s statement to a
police officer. In other words, Petitioner totally failed to prove the prejudice prong of
Strickland. Since Petitioner’s claim that his guilty plea was not knowingly and voluntarily
entered as a result of trial counsel’s “coercion” because trial counsel had rendered ineffective
assistance of counsel by not preparing an adequate defense for a trial, he thus also failed to

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prove his guilty plea was not knowingly and voluntarily entered. To the extent Petitioner’s
arguments on appeal that his guilty plea was not knowingly and voluntarily entered were due
to any “coercion” or misunderstanding of the proceedings, the trial court’s factual findings
refute those arguments. The record overwhelmingly supports the trial court’s decision.

      Accordingly, we affirm the judgment of the trial court denying the petition for post-
conviction relief.

                                                  _________________________________
                                                  THOMAS T. WOODALL, JUDGE




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