         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 4, 2005

                 MICHAEL W. SMITH v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                             No. P-28443    Chris Craft, Judge



                  No. W2005-00246-CCA-R3-PC - Filed December 14, 2005


The petitioner, Michael W. Smith, appeals the denial of his petition for post-conviction relief, raising
as his sole issue whether trial counsel was ineffective for failing to properly prepare and investigate
his case. Following our review, we affirm the denial of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY L.
SMITH , JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Michael W. Smith.

Paul G. Summers, Attorney General and Reporter; Brian C. Johnson, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Alana Dwyer, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                               FACTS

        On March 13, 1997, the petitioner entered best interest guilty pleas to two counts of rape, two
counts of aggravated burglary, and five misdemeanor offenses. Michael Wade Smith v. State, No.
W1999-01817-CCA-R3-PC, 2000 WL 1664262, at *1 (Tenn. Crim. App. Oct. 23, 2000). Pursuant
to his guilty plea agreement, he received concurrent sentences of ten years for each of the rape
convictions, six years for each of the aggravated burglary convictions, and eleven months, twenty-
nine days for each of the misdemeanor convictions, for an effective sentence of ten years in the
Department of Correction. Id. In a subsequent petition for post-conviction relief, the petitioner
alleged ineffective assistance of counsel and that his guilty pleas were unknowing and involuntary.
Id. Because the record revealed that the second rape and aggravated burglary offenses were
committed while the petitioner was out on bond for the initial charges and thus that the guilty plea
agreement violated Tennessee Code Annotated section 40-20-111(b), which requires that the
sentence for a felony committed while on bail be served consecutively to the sentence for the initial
felony charge, this court remanded the case to the trial court with instructions that the petitioner be
allowed to withdraw his guilty pleas. Id. at *3.

         Following the appointment of new trial counsel, the petitioner pled guilty on April 29, 2003,
to one count of rape and one count of attempted rape in exchange for consecutive sentences of eight
years at 100% for the rape conviction and three years at 30% for the attempted rape conviction, for
an effective sentence of eleven years in the Department of Correction. The remaining charges were
dismissed. On May 12, 2004, the petitioner filed a pro se petition for post-conviction relief alleging,
inter alia, that he was denied the effective assistance of counsel and that his guilty pleas were
unknowing and involuntary. Post-conviction counsel was appointed and an amended petition for
post-conviction relief was filed on July 28, 2004. Although the petitioner raised a number of
different grounds for relief and various allegations of ineffective assistance of counsel in his original
and amended petitions, he confines himself on appeal to arguing that his trial counsel was ineffective
for failing to properly prepare and investigate his case.

         At the September 24, 2004, evidentiary hearing, trial counsel testified that approximately
90% of his private law practice involved criminal defense. He said he met with the petitioner on
different occasions, including several meetings at the jail and a number of short meetings in the
courthouse on the petitioner’s report dates. In addition, he always accepted the petitioner’s telephone
calls if he was in his office and therefore spoke with the petitioner about the case by telephone on
several different occasions. Trial counsel said he thoroughly discussed every aspect of the case with
the petitioner.

        Trial counsel further testified he reviewed discovery, which ultimately included the
statements of the victims and the potential alibi witnesses; consulted with a DNA expert; and
employed the services of an investigator who, among other things, investigated the crime scene and
the petitioner’s alibi defense, which proved unsupportable. Trial counsel said the strength of the
State’s case, which included damaging DNA evidence as well as a positive identification of the
petitioner by one of the rape victims, led him to conclude it was in the petitioner’s best interest to
plead guilty and that he had extensive discussions with the petitioner about that fact.

        Trial counsel acknowledged he did not request an investigator until March 2003. He
explained, however, that he did not believe an investigator was necessary under the circumstances
of the case. Trial counsel testified he requested the investigator only after it appeared that a plea
agreement might not be reached:

                Well, based on the fact that what I had already read in the files and the
        strength of the State’s case, I was not sure that he would really receive any benefit
        from an investigator. However, when it [be]came clear that I was going to probably
        have to encounter an out of state witness, which I think may have been [one of the
        rape victims], at that point I felt it necessary to have her interviewed. We had
        obtained at some point in the discovery, her statement. So, I did have that. And, I


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        think my first, quite frankly, my first, I guess assumption on that, that an investigator
        would not probably help this case was correct, after what they found.

        Trial counsel testified he eventually decided not to have his investigator contact the victim
because he was again involved in plea negotiations with the State and feared that the victim, if
contacted, would insist that the case proceed to trial. Trial counsel said he discussed those concerns
with the petitioner and that he agreed that the victim should not be contacted. Trial counsel stated
that his investigator interviewed the potential alibi witnesses only to learn that their accounts were
consistent with their statements to the district attorney’s office, which trial counsel had already
reviewed. According to trial counsel, neither potential witness was able to provide an alibi for the
petitioner during the times of the offenses.

        On cross-examination, trial counsel acknowledged the DNA results showed a 1 in 555,000
probability in the Caucasian population of someone other than the petitioner as the source for the
DNA evidence. He said he conveyed every offer from the State to the petitioner and it was the
petitioner’s decision to plead guilty.

         Ronald L. Lax, the defense investigator assigned to the petitioner’s cases, acknowledged that
trial counsel instructed him not to interview the rape victims. On cross-examination, he testified that
he met with the petitioner twice and that another investigator from his office met with the petitioner
four times. Lax stated that, during one of his meetings with the petitioner, he and trial counsel
informed him of their belief that it was not in his best interest for them to contact the rape victim.
According to Lax, the petitioner placed a lot of emphasis on discrepancies between the rape victim’s
initial description of her attacker and his appearance, and in particular on the fact that the victim had
described her attacker as a shorter man. Nonetheless, the victim had subsequently identified the
petitioner from a photographic lineup, and Lax therefore did not believe that the height discrepancy
was pertinent. Lax testified the petitioner agreed that they should not contact the victim.

        The petitioner testified he agreed to plead guilty only on the condition that trial counsel first
contact the victim to determine if she planned to stand by her initial description of her attacker. The
petitioner said that had the victim stood by her initial description, which did not match his
appearance, he would have insisted on going to trial. However, trial counsel told him on a Tuesday
that he had contacted the victim and that “nothing beneficial came out of it.” The petitioner testified
that he did not learn until that Friday that trial counsel had not, in fact, contacted the victim. The
petitioner conceded that, notwithstanding, he entered his guilty pleas on April 29, 2003. He further
conceded that he informed the post-conviction court at the plea colloquy that he understood what he
was doing in entering his guilty pleas and that he was satisfied with counsel’s representation. When
questioned by the court, the petitioner acknowledged that counsel met with him at the jail on three
or four occasions and at almost every court appearance, that he freely discussed the case with trial
counsel, and that trial counsel provided him with copies of discovery.

        On January 4, 2005, the post-conviction court entered a detailed written order denying the
petition for post-conviction relief. Among other things, the court accredited trial counsel’s testimony


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with respect to the number of meetings and conversations he had with the petitioner and his level
of preparation and investigation of the case. Accordingly, the post-conviction court concluded that
the petitioner had not met his burden of demonstrating he was denied the effective assistance of trial
counsel.

                                             ANALYSIS

                              I. Post-Conviction Standard of Review

         The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). Where appellate review involves purely factual issues, the appellate court should not reweigh
or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
review of a trial court’s application of the law to the facts of the case is de novo, with no presumption
of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo, with a
presumption of correctness given only to the post-conviction court’s findings of fact. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

                               II. Ineffective Assistance of Counsel

        To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:

        First, the defendant must show that counsel's performance was deficient. This
        requires showing that counsel made errors so serious that counsel was not
        functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel's errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

        The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong


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of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In the context of a
guilty plea, the petitioner must show a reasonable probability that were it not for the deficiencies in
counsel’s representation, he would not have pled guilty but would instead have insisted on
proceeding to trial. Hill v. Lockart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985);
House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

                         III. Claims of Ineffective Assistance of Counsel

        The petitioner argues that trial counsel was ineffective for failing to properly prepare for and
investigate the case. Specifically, he asserts that counsel was defective for failing to litigate any
motions, to adequately discuss the case with him, to investigate the alibi witnesses, and to interview
the rape victims. The petitioner contends that the cumulative effect of these alleged deficiencies
“gives rise to reasonable probability that the outcome of the case would have been different.”

         The record in this case, however, fully supports the post-conviction court’s finding that the
petitioner received effective assistance of counsel. Trial counsel’s testimony, which was accredited
by the post-conviction court, established that he spent extensive time in his investigation and
preparation for the case, which included filing appropriate motions, reviewing discovery, and fully
discussing the case with the petitioner both in person and over the telephone. Trial counsel reviewed
the strong evidence against the petitioner, which included transcripts of the State’s interviews with
the victims and the potential “alibi” witnesses, whose statements did not support the petitioner’s
account of his whereabouts during the time that the offenses occurred. He believed that it was in the
petitioner’s best interest to seek a plea bargain and that it would hurt the petitioner’s chances of
getting a successful plea offer if they attempted to contact the victim. Trial counsel said he explained
his rationale to the petitioner and the petitioner agreed with his decision. Ronald Lax, the
investigator appointed to assist trial counsel, corroborated that the petitioner was fully informed of
their reasons for not contacting the victim and that the petitioner was in agreement with that decision.
Finally, trial counsel testified that he explained the plea agreement to the petitioner and that the
petitioner indicated he understood the agreement, was satisfied with counsel’s representation, and
wanted to plead guilty. In sum, there is no evidence that counsel was deficient in his representation
or that the petitioner would not have pled guilty were it not for counsel’s alleged deficiencies. We
conclude, therefore, that the petitioner is not entitled to post-conviction relief on the basis of his
claim of ineffective assistance of counsel.

                                           CONCLUSION

        We conclude that the petitioner has failed to meet his burden of demonstrating he was denied
the effective assistance of trial counsel. Accordingly, we affirm the post-conviction court’s denial
of the petition.
                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE


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