         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs January 22, 2003

                JEFFREY WHITAKER v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Roane County
                           No. 10,920    E. Eugene Eblen, Judge



                                  No. E2001-02399-CCA-R3-PC
                                          June 3, 2003

Aggrieved that the lower court denied post-conviction relief following an evidentiary hearing, the
petitioner, Jeffrey Whitaker, appeals and claims that his convictions resulted from the ineffective
assistance of counsel and involuntary guilty pleas. We affirm the denial of post-conviction relief.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
NORMA MCGEE OGLE , JJ., joined.

Spence R. Bruner, Kingston, Tennessee, for the Appellant, Jeffrey Whitaker.

Michael E. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; J. Scott McCluen,
District Attorney General; and Frank Harvey, Assistant District Attorney General, for the Appellee,
State of Tennessee.

                                             OPINION

                After pleading guilty to multiple counts of rape of a child, the conviction court
imposed an effective Department of Correction sentence of 45 years. The sentence was affirmed on
appeal. See State v. Jeff Whitaker, No. 03C01-9509-CC-00256 (Tenn. Crim. App., Knoxville, Oct.
15, 1996), perm. app. denied (Tenn. 1999). The petitioner thereafter sought post-conviction relief,
and following an evidentiary hearing, the lower court denied relief. Now on appeal, the petitioner
claims that his trial counsel rendered ineffective assistance, which resulted in an involuntary guilty
plea.

                Testimony at the evidentiary hearing revealed that multiple female children accused
the petitioner of various acts of child rape and aggravated sexual battery, resulting in a number of
felony charges. The petitioner gave the authorities an extensive, inculpatory statement. At the post-
conviction evidentiary hearing, the petitioner testified that his appointed trial counsel did not
adequately acquaint him with the facts of the case, did not explain the law or theory of the
prosecution, did not review his or the victims’ statements with him, and did not move to suppress
the petitioner’s pretrial statement. In addition, he claims that his pretrial statement was coerced
because he gave the statement in exchange for the officer’s promise to get him mental health
assistance. He also maintained at the hearing that, during his incarceration in the Department of
Correction, he has been diagnosed with anxiety disorder and that he now is aware that he was
suffering from anxiety when he gave the inculpatory statement and when he pleaded guilty. When
asked how he would have defended himself had he gone to trial and the victims testified consistently
with their pretrial statements, even if his own statement were suppressed, the petitioner merely
replied that he would not have testified in his own behalf and that it was up to his counsel to devise
a defense.

                 Specifically concerning the guilty plea, the petitioner testified that he was taking an
unspecified prescription medication that caused confusion and affected his ability to understand what
transpired at the plea submission hearing. He testified that his attorney merely told him to sign the
plea papers and that he complied without reading the papers, based upon counsel’s claim that, if he
went to trial, the jury would convict him and impose a sentence of 100 years.

               The petitioner testified that, after the plea was accepted, his attorney did not prepare
him to be interviewed by the presentence investigator and that, as a result, he supplied the
investigator with a damaging hand-written statement.

              Concerning his pretrial statement, the petitioner claimed that he gave the statement
while hampered by an anxiety attack and that the interrogating officer tricked him into confessing
by promising to get him treatment.

                The petitioner’s father testified that, when he talked with the petitioner’s trial counsel
approximately three years after the guilty plea, counsel admitted that, when he handled the
petitioner’s case, he was experiencing a “very heavy caseload.”

               The petitioner’s trial counsel testified that he met with the petitioner on several
occasions and received and reviewed the petitioner’s and the victims’ pretrial statements. Counsel
concluded that the promises made by the interrogating officer provided no basis for suppressing the
statement. He found no evidence of force or coercion and determined that the petitioner was not in
custody when the statement was given. Accordingly, although counsel knew that the petitioner
claimed to have been upset and nervous when he gave the statement, counsel perceived no basis for
a motion to suppress.

                Counsel testified that his investigator’s attempts to interview the minor victims were
rebuffed by the victims’ families. He obtained a pretrial mental health evaluation, which resulted
in an opinion that the petitioner was competent and manifested no mental health symptoms that
would support an insanity defense. He discerned nothing in the petitioner’s behavior or demeanor
to suggest that the petitioner was less than fully competent. He testified that he would have asked



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the petitioner, before the plea was submitted, whether he was under the influence of anything that
might affect his judgment.

               Although the petitioner claimed that counsel should have filed a litany of pretrial
motions, including a motion to suppress the pretrial statement and a motion to seek an independent
mental evaluation, counsel explained that he did not file the motions because he saw no bases.
Concerning the latter motion, counsel testified that the petitioner had no history of mental illness,
and counsel perceived no manifestation of mental illness during his interaction with the petitioner.
Furthermore, he saw no legal or factual grounds for motions to dismiss the charges and to obtain a
change of venue. He knew of no legal precedents supporting motions to reduce the charges, to
suppress the victims’ statements, and to compel a witness to cooperate with adversary counsel prior
to trial.

                Counsel was aware that, on the day of the scheduled trial, the petitioner was upset and
cried. The petitioner was afraid of the jury. Nevertheless, the petitioner comprehended the situation,
understood the alternatives, and communicated effectively with counsel. Counsel testified that he
would have read the plea papers to the petitioner verbatim because that was his invariable practice.
He explained the plea offer and the range of punishment to the petitioner. The petitioner appeared
to fully understand the terms, including that the judge would set the actual sentences and determine
whether they would be served concurrently or consecutively. Counsel testified that he informed the
petitioner that he could receive a sentence of up to 45 years.

                Following the evidentiary hearing, the post-conviction court denied relief and found
that the petitioner’s guilty pleas were voluntary and knowing, that trial counsel rendered effective
assistance, and that in matters of factual conflict, the court accredited counsel’s testimony and
discredited that of the petitioner.

                 The post-conviction petitioner bears the burden of establishing, at the evidentiary
hearing, his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997).
Evidence is clear and convincing when there is no serious or substantial doubt about the correctness
of the conclusions drawn from the evidence. Hodges v. S. C. Toof & Co., 833 S.W.2d 896, 901, n.
3 (Tenn. 1992). An appellate court is bound by the trial court's findings of fact unless we conclude
that the evidence in the record preponderates against those findings. Black v. State, 794 S.W.2d 752,
755 (Tenn. Crim. App. 1990).

                When the post-conviction petitioner raises the issue of ineffective assistance of
counsel, this court must determine whether the evidence preponderates against the post-conviction
court's findings (1) that counsel's performance was within the range of competence demanded of
attorneys in criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and/or (2) that any
deficient performance did not prejudice the petitioner, Strickland v. Washington, 466 U.S. 668,
687-79, 104 S. Ct. 2052, 2064-69, (1984); see also Powers v. State, 942 S.W.2d 551, 557 (Tenn.
Crim. App. 1996). Courts need not address these components in any particular order or even address



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both if the petitioner fails to meet his burden with respect to one. Henley v. State, 960 S.W.2d 572,
580 (Tenn. 1997).

                In evaluating counsel's performance, this court should not examine every allegedly
deficient act or omission in isolation, but rather we should examine them in the context of the case
as a whole. State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The primary concern
of the court should be the fundamental fairness of the proceeding that is being challenged. Id.
Therefore, this court should not second-guess tactical and strategic decisions by defense counsel.
Henley, 960 S.W.2d at 579. Instead, this court must reconstruct the circumstances of counsel's
challenged conduct and evaluate the conduct from counsel's perspective at the time. Id.; see Irick
v. State, 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998).

               However, this court's deference to counsel's tactical decisions will depend upon
counsel's adequate investigation of defense options. Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct.
3114, 3126 (1987). That having been said, one court has observed:

               Judges wisely defer to true tactical choices – that is to say, to choices
               between alternatives that each have the potential for both benefit and
               loss. We are in a poor position to judge, on the cold record, the
               quality of such a choice, made as it is in the fine-grained texture and
               nuance of the particular proceeding.

Profitt v. Waldron, 831 F.2d 1245, 1249 (5th Cir. 1987). Accordingly, assuming adequate
investigation, the fact that a strategy or tactic failed or hurt the defense does not alone support the
claim of ineffective assistance of counsel. Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim.
App. 1997); Jerry Whiteside Dickerson v. State, No. 03C01-9710-CR-00472, slip op. at 3 (Tenn.
Crim. App., Knoxville, Sept. 16, 1998), perm. app. denied (Tenn. 1999).

                In sum, a defendant is not entitled to perfect representation, only constitutionally
adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other
words, "in considering claims of ineffective assistance of counsel, '[w]e address not what is prudent
or appropriate, but only what is constitutionally compelled.' " Burger, 483 U.S. at 794, 107 S. Ct.
at 3126.

               Even if the petitioner establishes that counsel's performance was not within the
requisite range of competence, he must also demonstrate a reasonable probability that the result of
the proceeding would have been different but for the defective performance of counsel. Henley, 960
S.W.2d at 580.

               In cases involving a guilty plea or plea of nolo contendere, 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. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985);
Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).


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                 In determining whether a plea of guilty was voluntarily, understandingly, and
intelligently entered, this court, like the trial court, must consider all of the relevant circumstances
that existed at the entry of the plea. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995).
A reviewing court may look to any relevant evidence in the record to determine the voluntariness
of the plea. Id. Rule 11 of the Tennessee Rules of Criminal Procedure and our supreme court's
decisions in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), and State v. McClintock, 732 S.W.2d
268 (Tenn. 1987), control the guilty plea process in Tennessee. Trial judges are required to adhere
substantially to the procedure prescribed in the rule. A submission hearing transcript must establish
on its face that the trial court substantially complied with the requirements of Rule 11 and the
teachings of Mackey and McClintock. State v. Turner, 919 S.W.2d at 352.

                Without belaboring each and every issue, we hold that the record supports the post-
conviction court’s determinations that trial counsel rendered effective assistance and that the
petitioner’s guilty pleas were entered voluntarily and knowingly. Although the record establishes
that counsel filed no pretrial motions, it is devoid of any proof that the absence of pretrial motions
denotes deficient performance of counsel or that the petitioner was prejudiced thereby. Similarly,
the petitioner failed to establish the other specific claims of ineffective assistance, including the
claim that counsel deficiently advised the petitioner about his pre-plea options. The lower court, as
was its prerogative, declined to accredit the petitioner’s claim that his guilty pleas were the product
of confusion, deficient mental capacity, or coercion, and we defer to that court’s determination.

                Consequently, we affirm the denial of post-conviction relief.




                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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