         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 6, 2008

                 WILED McMILLIAN v. STATE OF TENNESSEE

                        Appeal from the Circuit Court for Dyer County
                               No. 05-395   Lee Moore, Judge



                      No. W2007-02280-CCA-R3-PC - Filed July 23, 2008


The petitioner, Wiled McMillIan, pleaded guilty in the Dyer County Criminal Court to one count
of the sale of 0.5 grams or more of cocaine. He received a sentence of ten years, to be served in the
Department of Correction (TDOC), although the court noted that the petitioner would be allowed
to go to long-term drug rehabilitation after he had served six months in the Dyer County jail. Prior
to the petitioner’s serving six months in the Dyer County jail, he was transferred to TDOC to serve
the remainder of his sentence. Thereafter, the petitioner filed a petition for post-conviction relief,
alleging ineffective assistance of counsel. The trial court denied the petition. On appeal, the
petitioner asserts that he received ineffective assistance of counsel, that his guilty plea was
involuntary, and that the post-conviction court erred in denying his separate motion to set aside the
guilty plea. We affirm the judgment of the post-conviction court.

                  Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID H. WELLES, J.
and DAVID G. HAYES, SR. J., joined.

Tracey A. Brewer-Walker, Ripley, Tennessee, for the appellant, Wiled McMillian.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacey Wilber, Assistant Attorney General;
C. Phillip Bivens, District Attorney General; and Karen Burns, Assistant District Attorney, for the
appellee, State of Tennessee.

                                              OPINION

               The petitioner was indicted by a Dyer County Grand Jury on one count of the sale of
0.5 grams or more of cocaine, a Class B felony. See T.C.A. § 39-17-417(a)(3), (c)(1) (2003). On
January 31, 2007, the petitioner submitted a guilty plea, and the trial court sentenced him to ten years
in the Tennessee Department of Correction. At the guilty plea hearing, the trial court noted that the
petitioner would be allowed to go to long-term drug rehabilitation after he served six months in the
Dyer County jail. However, the trial court stressed that should the petitioner be transferred from the
Dyer County jail to TDOC for any reason, the court would not be able to help him enter the drug
rehabilitation program. The petitioner testified at the guilty plea hearing that he made his guilty plea
knowingly, voluntarily, and understandingly, and that he understood the contingencies of his
proposed transfer to a rehabilitation program.

             Prior to the petitioner’s serving six months in the Dyer County jail, he was transferred
to TDOC to serve the remainder of his sentence.

               The petition for post-conviction relief was heard on July 6, 2007. The State entered
the transcript from the guilty plea hearing, noting that the beginning of the hearing was not
transcribed due to a technical malfunction.

                Lieutenant Robert Parish, Dyer County jail administrator, testified that the petitioner
was transferred on February 26, 2007. He also described the jail’s transfer policy. Prisoners with
sentences of less than five years usually stay in the county jail for the duration of their sentence.
Prisoners with sentences longer than five years will typically be transferred to TDOC when the jail
receives notice of space available. Lieutenant Parish testified that in February 2007, TDOC notified
him there were eight spaces available at the prison and that the petitioner was transferred because
he had a ten-year sentence.

                The petitioner’s trial counsel testified that his clients frequently entered guilty plea
agreements with the possibility of attending a rehabilitation program and that he had been making
such agreements with the State “for a long time.” Counsel testified that he was “shocked” to learn
the petitioner had been transferred to TDOC, and he called Lieutenant Parish to find out the reason
for the transfer. It was only after this phone call that he learned of the jail’s policy of transferring
inmates with sentences larger than five years. Counsel did not think his assistance was ineffective
for telling his clients that a plea agreement would likely avail them rehabilitation, then possibly
release to probation, because “that’s been the practice forever.”

               On cross examination, Counsel testified that he negotiated for the petitioner to be
sentenced as a Range I offender instead of a Range II offender. In Range II, the petitioner would
have been sentenced in the range of 12-to-20 years with release eligibility at 35 percent. Counsel
discussed the plea ramifications with the petitioner for a long time, stressing that the rehabilitation
program was not guaranteed and that he could still be forced to serve his entire sentence as ordered.
Counsel believed the petitioner to be intelligent and one who “[v]ery clearly” understood the legal
process.

               The petitioner testified that he pleaded guilty upon the advice of Counsel that he
would be able to enter a rehabilitation program after six months. He testified that he would not have
pleaded guilty had he known that he could be transferred to TDOC at any time for any reason. The
petitioner was satisfied with Counsel’s representation until he was transferred to TDOC; however,
he admitted that Counsel warned him that the final decision about his transfer was up to the jail.

             Betty Hicks testified that she was the record clerk for the Dyer County Sheriff’s
Department. She testified that in the previous two years, more inmates were receiving sentences


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with the possibility of going to rehabilitation programs. The petitioner was not the first inmate to
be transferred to TDOC despite being eligible for rehabilitation if they remained in the county jail.
Ms. Hicks testified that she was not an employee of the Dyer County jail and could not speak to the
petitioner’s behavior while incarcerated in Dyer County.

                On appeal, the petitioner asserts that the trial court erred in denying his claim for post-
conviction relief because he received ineffective assistance of counsel, which also rendered his guilty
plea involuntary. To support this claim, the petitioner argues that his counsel provided deficient
representation by not effectively investigating the Dyer County Sheriff’s policy on transferring
inmates to TDOC. Furthermore, the petitioner asserts that but for the deficiency in his counsel’s
representation, he would have followed through with his trial and that, therefore, his guilty plea was
not knowingly and voluntarily entered. Finally, the petitioner asserts that the trial court erred when
it denied his separate motion to set aside the guilty plea. The State argues that the appeal should be
dismissed because the petitioner’s notice of appeal was untimely, and in the alternative, that the post-
conviction court did not err in denying post-conviction relief because the petitioner received
effective representation and entered his plea voluntarily. Additionally, the State argues that the
decision of the lower court to deny the motion to set aside the guilty plea is not properly before this
court.

                 We first turn our attention to whether the petitioner’s notice of appeal was timely
filed. The notice of appeal was filed on August 31, 2007, 52 days after the post-conviction court’s
order of dismissal. Even though this notice was filed more than thirty days after entry of the
judgment and therefore was untimely, we will waive the thirty-day requirement in this case in the
interest of justice and reach the merits of the petitioner’s appeal. See Tenn. R. App. P. 4(a).

                 The post-conviction petitioner is obliged to establish his claims by clear and
convincing evidence. See T.C.A. § 40-30-110(f) (2003). On appeal, the appellate court affords the
trial court’s findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. 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).

                The Sixth Amendment to the United States Constitution and Article I, section 9 of
the Tennessee Constitution both require that a defendant in a criminal case receive effective
assistance of counsel. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). When a defendant claims
ineffective assistance of counsel, the standard applied by the courts of Tennessee is “[w]hether the
advice given or the service rendered by the attorney [is] within the range of competence demanded
by attorneys in criminal cases.” Summerlin v. State, 607 S.W.2d 495, 496 (Tenn. Crim. App. 1980).

               In Strickland v. Washington, the United States Supreme Court outlined the
requirements necessary to demonstrate a violation of the Sixth Amendment right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, the
petitioner must show that counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms and must demonstrate that counsel made errors so serious that
he was not functioning as “counsel” guaranteed by the Constitution. Id. at 687, 104 S. Ct. at 2064.
Second, the petitioner must show that counsel’s performance prejudiced him and that errors were

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so serious as to deprive the petitioner of a fair trial, calling into question the reliability of the
outcome. Id.; Henley, 960 S.W.2d at 579.

                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, 106 S. Ct. 366 (1985). The
prejudice component is modified such to require the petitioner to “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, 106 S. Ct. at 370; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn.
Crim. App. 1998).

               The court does not “second guess” tactical and strategic choices pertaining to defense
matters and does not measure a defense attorney’s representation by “20-20 hindsight.” Henley, 960
S.W.2d at 579 (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). Rather, a court reviewing
counsel’s performance should “eliminate the distorting effects of hindsight . . . [and] evaluate the
conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
“The fact that a particular strategy or tactic failed or hurt the defense, does not, standing alone,
establish unreasonable representation.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). On the
other hand, “deference to matters of strategy and tactical choices applies only if the choices are
informed ones based upon adequate preparation.” Id.

                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.

                Additionally, our supreme court, in setting forth the standard for identifying a
constitutionally valid guilty plea, has noted that “before a trial judge can accept a guilty plea, there
must be an affirmative showing that it was given intelligently and voluntarily.” State v. Pettus, 986
S.W.2d 540, 542 (Tenn. 1999) (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1711
(1969)). Our high court further noted that “a plea is not ‘voluntary’ if it is the product of
‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats,’”
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43, 89
S. Ct. at 1712), or if the defendant was “incompetent or otherwise not in control of his mental
facilities” when the plea was entered. Id.

                In this case, the post-conviction court concluded that counsel’s failure to anticipate
the petitioner’s likelihood of transfer did not amount to deficient representation. After considering
the arguments presented to us on appeal, we likewise conclude that the petitioner has failed to
demonstrate that he received ineffective assistance of counsel.



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                Contrary to the petitioner’s assertions, counsel did not provide deficient
representation. When a petitioner’s claim is one of inadequate advice, as it is in this case, courts
generally distinguish between direct and indirect consequences of a failure to inform the guilty-
pleading petitioner. See Bautista v. State, 160 S.W.3d 917, 921 (Tenn. Crim. App. 2004). As a
general rule, an attorney’s failure to inform a criminal defendant of the “direct consequences of a
guilty plea may constitute ineffective assistance of counsel,” although “failure to inform of indirect
consequences of a guilty plea normally does not.” Id.; see also Adkins v. State, 911 S.W.2d 334, 350
(Tenn. Crim. App. 1994). This distinction often “‘turns on whether the result represents a definite,
immediate and largely automatic effect on the range of the defendant’s punishment.’” Adkins, 911
S.W.2d at 350 (quoting Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988)). Furthermore, this
court has held,

               “Any failure of counsel to advise as to any collateral consequences of
               a plea does not, under these authorities, fall below the range of
               competence demanded of attorneys in criminal cases. Misadvice on
               the issue might have warranted relief; and, while a fine distinction,
               silence by counsel does not. In short, a sin of commission might
               merit relief while the sin of omission does not.”

Bautista, 160 S.W.3d at 921 (quoting Adkins, 911 S.W.2d at 350).

                We decline to hold that Counsel’s failure to investigate the Dyer County Sheriff’s
policy on transferring inmates to TDOC constitutes deficient representation. Initially, we note that
the “failure” to advise on the collateral consequences of his plea was at most an omission and not
misinformation. See Bautista, 160 S.W.3d at 921. Even more significantly, we conclude that
Counsel’s failure to investigate, as well as his failure to anticipate the actions of Dyer County jail,
had “no definite, immediate, and largely automatic effect” on the petitioner’s punishment. Id. at 922.
The collateral consequences the petitioner faced were not automatic or definite; the petitioner was
selected for transfer based on his sentence and the ability of TDOC to receive new inmates. We
conclude that the petitioner’s counsel, although not advising him of the indirect, collateral effects
of his plea, did not misinform the petitioner, and therefore was not deficient in his representation.

                Finally, the petitioner contends that the trial court erred when it denied his motion to
set aside the guilty plea. See Tenn. R. Crim. P. 32(f). However, this motion was filed after the
petition for post-conviction relief was adjudicated, and the record contains neither the order
disposing of the motion nor the transcript of any hearing on the motion. A trial court’s order
denying a motion to set aside a guilty plea must be brought before this Court on direct appeal. See
Tenn. R. App. P. 3(b). Furthermore, the notice of appeal addresses only the order dismissing the
post-conviction petition and does not mention the Rule 32(f) motion. Under these circumstances,
the Rule 32(f) issue of withdrawing the guilty plea is not before this court.

               Accordingly, the post-conviction court’s denial of the petition is affirmed.


                                                        ___________________________________

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      JAMES CURWOOD WITT, JR., JUDGE




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