        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 7, 2011

            MELISSA BETH MACKEY v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                   No. 08-02594    Carolyn Wade Blackett, Judge


                No. W2010-01414-CCA-R3-PC - Filed August 9, 2011


The petitioner, Melissa Beth Mackey, appeals as of right the Shelby County Criminal Court’s
denial of her petition for post-conviction relief challenging her conviction of attempted
aggravated robbery for which she received a sentence of six years as a Range II, multiple
offender. On appeal, she argues that trial counsel committed ineffective assistance that
rendered her guilty plea involuntary. 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 is Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and A LAN E. G LENN, JJ., joined.

David Stowers, Bolivar, Tennessee, for the appellant, Melissa Beth Mackey.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Brooks Yelverton, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       The record reflects that the Shelby County Grand Jury indicted the petitioner and her
two female codefendants for one count of aggravated robbery and two counts of aggravated
kidnapping, alleging alternative counts, committed against Jesslyn Hernandez on January 21,
2008. On October 7, 2008, the petitioner pled guilty to one count of attempted aggravated
robbery. In exchange for her guilty plea, the petitioner received a sentence of six years as
a Range II, multiple offender, and the State dismissed the aggravated kidnapping counts. On
August 7, 2009, the petitioner filed a timely petition for post-conviction relief. Following
the appointment of counsel and amendment of the petition, the trial court held an evidentiary
hearing on May 21, 2010.

       The petitioner testified at the evidentiary hearing that “[i]t was very hard to get in
contact with [trial counsel]” throughout the pendency of her case. When asked if trial
counsel visited her in the jail, the petitioner said equivocally, “If she did, I don’t remember
but it might [have] been one time but I’m really not for sure.” The petitioner did
acknowledge, however, that she spoke with trial counsel at each court hearing. The
petitioner said that she reported to court “numerous times.”

        The petitioner testified that she instructed her attorney to interview three witnesses:
Heather Bryant, Dedrick Reddick, and Dedrick Wade. She said that Ms. Bryant was present
at the scene of the offenses and had witnessed “the whole thing.” She said that Mr. Reddick
and Mr. Wade knew about the victim’s prior violent behavior toward the petitioner and also
could have testified that the victim “was a liar.” On cross-examination, she claimed that she
did not know that Ms. Bryant had told the police that she saw the petitioner hit the victim
with a “pool stick” and that she did not know that her codefendants were planning to testify
against her at trial.

       The petitioner testified that she “had 37 prior aggravated robberies” and that she
“went on and pled [in this case] for a six [year sentence be]cause [trial counsel] said it was
in [her] best interest” to plead. The petitioner claimed that she “wasn’t guilty” but that “in
the back of [her[ mind . . . [she]’d rather take this six and go and file for a post-conviction
and get some relief from there” instead of “go[ing] through trial and [a jury] actually find
[her] guilty of it.” On cross-examination, the petitioner admitted that she pled guilty
voluntarily, but she claimed that she was guilty of aggravated assault, not aggravated
robbery.

         Trial counsel testified that the petitioner’s case was designated by the district attorney
general’s office as a “No Deals Case” which meant that it was “very difficult to get reduced.”
Trial counsel recalled that after speaking with the codefendants and witnesses in the case, she
felt that the petitioner was “not in a good position to go to trial.” She described the petitioner
as a “jailhouse lawyer” who had difficulty understanding that despite the petitioner’s claim
that the victim was a liar, the witnesses had corroborated the victim’s account of the offense
and that, given the petitioner’s criminal history, a jury was not likely to acquit the petitioner
at trial. Trial counsel also recalled that the case was further compromised when the petitioner
wrote a letter to the district attorney claiming that she should not be charged because, at the
time of the offenses, she had been “turning tricks” to buy drugs and was “high as a kite.”

      Although the petitioner was facing a 90-year sentence as a career offender, trial
counsel testified that she was able to negotiate a plea agreement whereby the State would

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drop the aggravated kidnapping charges, reduce the aggravated robbery charge to attempted
aggravated robbery, and agree to the trial court’s sentencing the defendant as a multiple
offender. Trial counsel described the plea agreement as “a sweetheart of a deal.”

       In its written order, the post-conviction court found that the petitioner failed to present
proof that trial counsel did not communicate adequately and also failed to prove any deficient
performance concerning the investigation of witnesses. The court further found that the
petitioner voluntarily pled guilty to avoid a harsher sentence. Accordingly, the post-
conviction court denied relief.

        To be successful in a claim for post-conviction relief, a petitioner must prove all
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). “‘Clear and convincing evidence
means evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight
of a jury verdict, with such findings being conclusive on appeal absent a showing that the
evidence in the record preponderates against those findings. Id. at 578.

       The petitioner contends that his trial counsel was ineffective. A claim of ineffective
assistance of counsel is a mixed question of law and fact. See State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). We will review the post-conviction court’s findings of fact de novo with
a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001). However, we will review the post-conviction court’s conclusions of law purely de
novo. Id.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover,

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       [b]ecause a petitioner must establish both prongs of the test, a failure to prove
       either deficiency or prejudice provides a sufficient basis to deny relief on the
       ineffective assistance claim. Indeed, a court need not address the components
       in any particular order or even address both if the [petitioner] makes an
       insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). In the context of a guilty plea,
“the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s errors, he
would not have pleaded guilty but would have insisted upon going to trial.” Hicks v. State,
983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S. 52, 59 (1985).

        We conclude that the record supports the findings of the post-conviction court. The
petitioner failed to present the testimony of any purported witnesses who she claims should
have been called at trial. As a consequence, we cannot speculate as to the substance of their
testimony or any effect it may have had on the outcome of the proceedings. See Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (holding that a post-conviction
petitioner generally fails to establish prejudice in that counsel did not properly investigate or
call a witness if she does not present the witness to the post-conviction court because a post-
conviction court may not speculate “on the question of . . . what a witness’s testimony might
have been if introduced” at trial). Furthermore, the petitioner admitted that she voluntarily
pled guilty to avoid a harsher sentence with plans to “file for a post-conviction and get some
relief.” The petitioner failed to present clear and convincing proof to establish that trial
counsel performed deficiently. Accordingly, the post-conviction court’s order denying relief
is affirmed.


                                                     _________________________________
                                                     NORMA MCGEE OGLE, JUDGE




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