                                                                                          04/12/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs March 13, 2018

          JAMES CHRONICLES COBB v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Madison County
                   No. C-17-137       Roy B. Morgan, Jr., Judge
                     ___________________________________

                           No. W2017-01828-CCA-R3-PC
                       ___________________________________


Petitioner, James Chronicles Cobb, appeals the denial of his petition for post-conviction
relief. Petitioner argues that he received ineffective assistance of counsel and that his
guilty plea was unknowing and involuntary. After a review of the record and the briefs
of the parties, we determine Petitioner has failed to establish that he received ineffective
assistance of counsel and Petitioner’s guilty plea was knowingly and voluntarily entered.
Accordingly, the judgment of the post-conviction court is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR. and ALAN E. GLENN, JJ., joined.

Joseph T. Howell, Jackson, Tennessee, for the appellant, James Chronicles Cobb.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Jody S. Pickens, District Attorney General; and Al Earls, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                        OPINION


       Petitioner pled guilty to a laundry list of offenses, including multiple drug
possession charges, multiple theft charges, multiple firearm possession charges, and a
drug sale charge. The charges spanned six case numbers and twenty-seven counts.

       At the outset of the guilty plea hearing, the trial court advised Petitioner, “[I]f
there’s anything taking place [that] you do not understand, you have a right to interrupt
me and ask your attorney, the State or the Court to explain further. You understand you
have that right?” Petitioner replied, “Yes, sir.” Additionally, the post-conviction court
asked Petitioner if he was satisfied with plea counsel’s representation, and Petitioner
replied, “Yes, sir.” Before accepting Petitioner’s plea, the trial court went over each
charge against the Petitioner and explained the sentence length and the percentage of the
sentence that Petitioner would be required to serve. At the end of the review of his
charges, the trial court stated, “So you understand, [Petitioner], based upon the
consecutive sentence, your total effective sentence under 16-193 is a 23-year sentence,
and you’d have some of it at 100 percent and some of it at 35 percent. You understand
that?” Before Petitioner could respond, plea counsel interjected and asked if he could
state the sentence in a way that Petitioner understood. Plea counsel said, “He has a 15-
year sentence umbrella at 35 percent. Then he has a 6-year at 100 percent consecutive.
Then he has 2 years at 35 percent after the 6 years at 100.” The trial court asked, “And
the total effective sentence then is?” Plea counsel said, “23 years.” The trial repeated,
“23 years. You understand that, [Petitioner]?” Petitioner responded, “Yes, sir.” A few
moments later, the trial court asked, “Any questions about it?” Petitioner replied, “No,
sir.” Before the plea agreement was accepted, the trial court asked three questions, “Do
you have any questions about your plea agreement?”; “Do you still wish me to approve
it?”; and “[Y]ou understand absolutely you cannot change your mind later?” Petitioner
had no questions, indicated that he wanted the trial court to approve the agreement, and
said he understood that he could not change his mind.

       After asking if anyone had questions, the trial court found that Petitioner entered
his pleas freely, voluntarily, knowingly, and intelligently. The court accepted the plea
and sentenced Petitioner accordingly. Petitioner filed a pro se petition for post-
conviction relief challenging the knowing and voluntary nature of his plea and alleging
ineffective assistance of plea counsel.

        At the post-conviction hearing, Petitioner testified that he retained plea counsel to
represent him on all of the charges that were subject to the plea agreement. Petitioner
acknowledged that he stated during the plea colloquy that he understood the terms of the
plea agreement and that he was satisfied with his attorney. However, when he received
the paperwork for his plea agreement, he did not recognize or understand how he was
sentenced. He referenced the various sentence lengths and the percentages, and then, he
stated that he thought that he would be receiving “one sentence.” Petitioner stated, “I
didn’t think everything was [going to] run wild. I was thinking that everything was
[going to] be one sentence.” Additionally, Petitioner said he felt rushed on the day that
he pled guilty. Petitioner’s belief at the time he pled guilty was that he would receive a
fifteen-year sentence at thirty-five percent.



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       On cross-examination, the State inquired if the post-conviction court told
Petitioner that the total effective sentence would be twenty-three years. Petitioner agreed
that the trial court said twenty-three years. The State asked Petitioner, “You do
understand what the word[s] 23 years mean[?]” Petitioner replied, “Yes. 23 years?” The
State then asked Petitioner if he said that he understood what the trial court was doing
when the trial court stated that the fifteen-year sentence, the six-year sentence, and the
two-year sentence ran consecutively. Petitioner responded, “Right.” Petitioner then
attempted to explain how twenty-three years could be interpreted multiple ways.

       Petitioner indicated that he only completed the fifth grade. Further, he testified
that he had been in court many times. Petitioner also protested his innocence to the
firearm possession charges.

       Plea counsel also testified at the post-conviction hearing. Plea counsel had
practiced law for twenty-five years with at least half of his practice consisting of criminal
work. He was retained by Petitioner to represent him on the charges subject to the plea
agreement. Plea counsel reviewed all of the discovery materials and met with Petitioner
multiple times. Plea counsel was successful in negotiating Petitioner’s plea down from
the original offer made by the State. Plea counsel stated that he discussed the sentences
for each case with Petitioner separately and then discussed his sentence for all of the
cases collectively. Plea counsel believed that Petitioner understood his plea bargain.

       On the day of the plea, Petitioner and plea counsel reviewed each plea form, each
charge, and each indictment. Plea counsel said that it was his practice to keep a copy of
the plea agreement with him at the podium so Petitioner could refer to each line of the
plea agreement as the plea was being taken by the trial court.

       Following the testimony at the hearing, the post-conviction court noted that there
were discrepancies in the testimony and found plea counsel to be credible. The post-
conviction court found Petitioner alleged that he did not understand his agreement, but
everything else indicated otherwise. The post-conviction court also noted that Petitioner
had an extensive record and a “vast amount of experience in the courts of law and matter
of guilty pleas.” The post-conviction court commented, “probably one of the most
extensive [records] I’ve seen in a long time.” The post-conviction court found that there
was nothing ambiguous about the twenty-three-year effective sentence and that the record
did not support Petitioner’s claim that his plea was involuntary. In a written order, the
post-conviction court denied post-conviction relief on the grounds of ineffective
assistance of counsel and an unknowing and involuntary guilty plea. Petitioner now
appeals.

                                          Analysis
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       Petitioner argues that the post-conviction court erred when it denied his petition
finding that Petitioner received effective assistance of counsel and that his plea was
voluntary. The State disagrees. We agree with the State.

       Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his or her factual
allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18
S.W.3d 152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       This Court will review the post-conviction court’s findings of fact “under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001) (citing Tenn. R. App. P. 13(d); Henley, 960 S.W.2d at 578). This Court will not
re-weigh or re-evaluate the evidence presented or substitute our own inferences for those
drawn by the post-conviction court. Id. at 456. Questions concerning witness credibility,
the weight and value to be given to testimony, and the factual issues raised by the
evidence are to be resolved by the post-conviction court. Id. However, the post-
conviction court’s conclusions of law and application of the law to the facts are reviewed
under a purely de novo standard, with no presumption of correctness. Id. at 458.

                           I. Ineffective Assistance of Counsel

        Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two
prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must prove that counsel’s performance was deficient and that the deficiency prejudiced
the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that the same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). Because a petitioner must establish both elements in
order 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 v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “Indeed, a court need
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not address the components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (citing Strickland, 466 U.S. at 697). Whether a petitioner has been denied
the effective assistance of counsel presents a mixed question of law and fact. State v.
Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

        The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), 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. This Court will not use hindsight to second-guess a reasonable trial
strategy, even if a different procedure or strategy might have produced a different result.
See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); Williams v. State,
599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this deference to the
tactical decisions of trial counsel is dependent upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694). Because Petitioner’s ineffective assistance of counsel
claims relate to his guilty plea, in order to show prejudice he “must prove that counsel
performed deficiently and ‘there is a reasonable probability that, but for counsel’s errors,
he would not have pled guilty and would have insisted on going to trial.’” Grindstaff v.
State, 297 S.W.3d 208, 217 (Tenn. 2009) (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)). “[A]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Hill, 474 U.S. at 58 (quoting Strickland, 466 U.S. at 691).

       Petitioner claims that he received ineffective assistance of counsel. However, in
Petitioner’s brief, he points to no facts which show that plea counsel was deficient.
Petitioner merely states in a conclusory fashion, “The Petitioner submits that counsel’s
representation fell below the range of competence demanded of attorneys in criminal
cases.” In the next sentence, Petitioner mentions “his attorney’s lack of attention to his
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defense . . . .” Yet, Petitioner does not point to any specific flaw or unreasonable action
taken by plea counsel. At the post-conviction hearing, plea counsel testified that he met
with Petitioner multiple times, reviewed all of the discovery materials, and successfully
bargained with the State for a lower sentence for Petitioner. Additionally, the post-
conviction court accredited the testimony of plea counsel, and that determination rests
solely with the post-conviction court. See Fields, 40 S.W.3d at 456. We fail to see how
plea counsel’s representation could be considered below an objective standard of
reasonableness. Accordingly, Petitioner has failed to show that he received deficient
representation.

                       II. Voluntariness of Petitioner’s Guilty Plea

       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, 31 (1970). The court
reviewing the voluntariness of a guilty plea must look to the totality of the circumstances.
See State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also
Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). In that review, the
court looks to the following factors:

       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 trial.

Blankenship v. State, 858 S.W.2d 897, 905 (Tenn. 1993) (citing Caudill v. Jago, 747 F.2d
1046, 1052 (6th Cir. 1984). A plea resulting from ignorance, misunderstanding,
coercion, inducement, or threats is not “voluntary.” Id. at 904. A petitioner’s solemn
declaration in open court that his plea is knowing and voluntary creates a formidable
barrier in any subsequent collateral proceeding because these declarations “carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

       Petitioner also argues that he did not knowingly and voluntarily enter his plea
agreement. At the post-conviction hearing, Petitioner claimed that he did not understand
his sentence and that he thought he was receiving a fifteen-year sentence at thirty-five
percent. However, Petitioner admitted on cross-examination that the trial court said that
Petitioner would receive a twenty-three-year sentence with part of it being served at 100
percent and part of it being served at thirty-five percent. In response to that, Petitioner
                                            -6-
attempted to explain that there were multiple ways to interpret twenty-three years.
Regardless of how it is interpreted, we fail to see how twenty-three years translates to
fifteen years. Petitioner was afforded numerous opportunities to ask questions at his plea
hearing, but he turned them down. When specifically asked “23 years. You understand
that, [Petitioner]?” Petitioner replied, “Yes, sir.” At the plea hearing, Petitioner knew
exactly what his sentence would be, twenty-three years.

       When considering the aforementioned factors, we note that Petitioner only
attended school through the fifth grade, but this is not necessarily indicative of
Petitioner’s intelligence, merely his schooling. The post-conviction court noted
Petitioner’s extensive record and indicated that Petitioner was familiar with criminal
proceedings. Plea counsel was competent to represent Petitioner, and the record indicates
that they had plenty of opportunities to confer about the options available to Petitioner.
Plea counsel and the trial court adequately advised Petitioner of the nature of his plea.
Additionally, the post-conviction hearing focused on Petitioner’s understanding of the
guilty plea, and no significant evidence was presented pertaining to the reasons for
Petitioner’s decision to plead guilty. Viewing the totality of the circumstances with the
formidable barrier created by Petitioner’s declaration at the plea hearing in mind, we hold
that the evidence does not preponderate against the post-conviction court’s finding that
Petitioner’s plea was knowing and voluntary.

                                       Conclusion

         For the aforementioned reasons, we affirm the judgment of the post-conviction
court.




                                             ____________________________________
                                             TIMOTHY L. EASTER, JUDGE




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