        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 29, 2014

        JOSEPH HOWARD GREEN, JR. V. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                    No. 2011C2562    Cheryl A. Blackburn, Judge




            No. M2014-00148-CCA-R3-PC           - Filed December 22, 2014



The petitioner, Joseph Howard Green, Jr., was originally charged with second degree murder,
and he ultimately pled guilty to voluntary manslaughter, a Class C felony. He received a six-
year sentence to be served consecutively to another sentence. In this appeal, the petitioner
contends that: (1) his guilty plea was not knowingly and voluntarily made because he was
mentally ill and unmedicated at the time of his plea and because he was not made aware of
the consequences of the guilty plea; and (2) that trial counsel provided ineffective assistance
of counsel. Upon review, we affirm the judgment denying relief of the post-conviction court.


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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which R OGER A. P AGE
and R OBERT H. M ONTGOMERY, J R., JJ., joined.

Morgan E. Smith, Nashville, Tennessee, for the appellant, Joseph Howard Green, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Senior Counsel; Victor
S. Johnson III, District Attorney General; and Bret Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                              Facts and Procedural History

       This case arose out of an altercation between the petitioner and the victim during
which the petitioner stabbed and killed the victim. Prior to the guilty plea hearing, Drs.
Kimberly Brown and Thomas Xavier interviewed the petitioner and concluded that he was
competent to stand trial. They also recommended that the petitioner continue to receive and
to comply with mental health services at the jail to maintain his competency. They further
found that an insanity defense would be unsuccessful because the evidence did not suggest
that the petitioner was experiencing a mental illness that left him unable to appreciate the
nature or wrongfulness of his actions during the incident with the victim.

      At the petitioner’s guilty plea hearing, the State set forth the following facts as the
underlying basis for the petitioner’s guilty plea:

               If this case had gone to trial, the State’s proof would be that on July the
       8th of 2011, I think it would be undisputed, that [the petitioner] owed the
       victim in this case, Mr. Robert Burris (phonetic), some money. I think it
       would further be the proof that Mr. Burris wanted his money and had made
       some overtures toward [the petitioner] about getting his money. That was the
       situation when Mr. Burris rode by [the petitioner’s] house on July the 8th of
       2011 with his cousin, a Ms. Samelta Glen (phonetic), in her vehicle. She was
       driving. Mr. Burris told Ms. Glen to stop the vehicle when he saw [the
       petitioner]. And, of course, he knew [the petitioner] owed him money. So he
       jumped out and went over and confronted [the petitioner] about the money.
       That confrontation turned into a fight. At one point Mr. Burris walked away
       back to the vehicle and was fine at that point. But then there were some more
       words, and Mr. Burris left the vehicle and went back and engaged with [the
       petitioner] again. It was during that second time that [the petitioner] stabbed
       Mr. Burris with a knife, and that ultimately caused Mr. Burris to die. This was
       here on 4395 Summertime Drive. I think this occurred in front of the
       [petitioner]’s house.

The petitioner told the trial court that he signed a petition to enter a plea of guilty to the
reduced charge of voluntary manslaughter and a six-year sentence. He was a Range II,
multiple offender based upon his prior felony convictions. The petitioner was serving a six-
year sentence for a probation violation at the time of the hearing, and he agreed that he
understood he would serve his sentence for voluntary manslaughter consecutively to his six-
year sentence. He asked the court if he would receive any pretrial jail credit for the voluntary
manslaughter charge, and the court informed him that he would receive pretrial credit for the
period of time from when he was arrested for second degree murder to the point when he was
served with his probation violation.

       The trial court informed the petitioner that he was charged with second degree murder.

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The court explained the elements of second degree murder and told the petitioner that he
faced a potential sentence of fifteen to twenty-five years. The court then defined the
elements of voluntary manslaughter, explaining that the difference between the crimes was
that a voluntary manslaughter killing resulted from a “heat of passion.” The court explained
that as a Range II offender, the petitioner faced a sentence of six to ten years’ incarceration.
The petitioner agreed that counsel had discussed the crime for which he was initially charged,
the crime to which he was pleading guilty, and the respective ranges of punishment. The
petitioner agreed that he had thoroughly discussed his case with counsel and that she had
explained to him the petition to enter a plea of guilty. The petitioner also confirmed that he
understood that the conviction for voluntary manslaughter would remain permanently on his
record.

        The petitioner stated that he had received his high school diploma and that he was able
to read. The petitioner stated that he normally took medication but that he was not medicated
at the time of the hearing. He recalled that he took Risperdal, Cogentin, and Zyloprim, but
he could not remember the names of all of his medications. The petitioner typically took his
medication in the evening, but he did not take it the evening prior to the guilty plea hearing
because he fell asleep early and missed “pill call.” The court asked if his lack of medication
was affecting his understanding of the proceedings, and he responded, “Not really,” and
confirmed that he was aware that he was pleading guilty to voluntary manslaughter. The
court again asked the petitioner if he was affected by his lack of medication, and he replied,
“Somewhat.” He explained that he did not believe that he should have been charged with
a crime in this case. The court interrupted the petitioner to clarify that it was not asking
whether he believed that he should not have been indicted but whether he understood the
guilty plea proceedings. The petitioner again reiterated that he was “[s]omewhat” affected
by not taking his medication, and he contended that the effect was his failure to understand
why he was being charged with a crime. The court asked if the petitioner wanted to plead
guilty and explained that by pleading guilty to voluntary manslaughter, the petitioner would
be admitting that he intentionally and knowingly killed another person but that his will was
“overborn” at the time of the killing.

        After a conference between the petitioner and counsel, the trial court again defined
the elements of voluntary manslaughter. In an attempt to clarify some of the petitioner’s
confusion, the prosecutor told the court that he believed that the petitioner was trying to
communicate to the court that he felt like he acted in self-defense in killing the victim. The
prosecutor conceded that the petitioner had “a decent argument about self-defense.” As a
result, the prosecutor offered the plea agreement, which was a compromise between the
sentence the petitioner could receive at trial and a complete acquittal. The petitioner
confirmed that he believed he acted in self-defense when he expressed confusion as to why
he was charged with a crime, and he confirmed that he understood the plea agreement was

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a compromise between a guilty verdict as to second degree murder and a complete acquittal.
However, when asked a second time if he understood that the plea agreement was a
compromise, the following exchange occurred between the court and the petitioner:

              Petitioner: Somewhat. But I don’t think -- I don’t --

                Trial Court: Well, I mean, if you don’t want to plead guilty, that’s fine.
       I’m just trying to find out that you are making this decision, this is your
       voluntary choice, and that you are making this after you’ve discussed this with
       everybody and you’ve chosen to do this but the fact that you haven’t taken
       your medication is not affecting your decision. That’s all I’m trying to find out
       so . . .

              Petitioner: I understand

              Trial Court: You do understand. So this is what you want to do then?

              Petitioner: Ma’am?

              Trial Court: Is this what you want to do? Is this your choice?

              Petitioner: I’m saying it’s my choice if my lawyer is not talking --

              Trial Court: No, no, no, no. she can advise you, but you ultimately have
       to decide. Your trial is set in October. Do you want to take this compromise,
       or do you not? She can give you all kinds of advice about what, you know,
       your chances are or what the proof is and all that, but you ultimately have to
       make this decision. It has to be your decision based on thorough discussion
       and information. So are you choosing to plead guilty to voluntary
       manslaughter? Is this your choice?

              Petitioner: Yes, ma’am.

              Trial Court: Okay. And you’ve discussed it with her, and she’s told you
       things. But ultimately are you making this decision?

              Petitioner: Yes, ma’am.

The petitioner agreed that no one had threatened or coerced him into pleading guilty. He also
agreed that he understood that he did not have to plead guilty and that he was giving up his

                                               4
right to go to trial by pleading guilty. The following exchange then occurred between the
petitioner and the court:

             Trial Court: Now, have you been satisfied with the work [trial counsel]
       has done on your case?

              Petitioner: I think I shouldn’t have been indicted on homicide.

              Trial Court: Okay. Well, that’s not her call. Do you understand that?
       That’s -- the State decided to do that. That goes back to the fact of whether or
       not you want to plead guilty. You don’t think that you should have been
       indicted because you think you have a self-defense. Well, you were. We’re
       kind of not there. So do you want to do this?

              Petitioner: I guess so, yes.

The petitioner confirmed that he understood that he would have the right to an attorney at
trial. He also agreed that he was aware that counsel would cross-examine witnesses against
him at trial and that he had the right to testify but would not be required to do so. He
confirmed that he was surrendering his right to a sentencing hearing and the right to appeal
both the fact that he pled guilty and the length of his sentence. He agreed that he wanted to
plead guilty. Counsel confirmed that she thoroughly discussed the case with the petitioner
and that she believed that the petitioner understood the consequences of his guilty plea. The
petitioner agreed that the State’s recitation of the facts was an accurate recollection of the
incident that led to the victim’s death, and he responded affirmatively that he was pleading
guilty to voluntary manslaughter.

       The trial court accepted the petitioner’s plea and stated, for the first time at the
proceeding, that voluntary manslaughter was a felony. The court found that there was a
factual basis to support the plea and sentenced the petitioner to a six-year sentence to be
served consecutively to his current six-year sentence.

       The petitioner timely filed a pro se petition for post-conviction relief. The post-
conviction court appointed counsel, and the petitioner later filed an amended petition. The
post-conviction court conducted a hearing where both the petitioner and his mother testified.

       At the post-conviction hearing, the petitioner testified that he was prescribed
Depakote, Risperdal, Cogentin, Trazodone, and Haldol and that he had taken Depakote the
night before the post-conviction hearing. The petitioner stated several times during the



                                              5
hearing that he believed that he was the rapper Lil Wayne 1 and that he was married to the
rapper Nicki Minaj. He stated that he wished trial counsel would have “[r]eally look[ed] into
the case more.” He told trial counsel about “law 46 on voluntary manslaughter[,]” a law that
said, “[I]f you use a knife in a self-defense case, a murder, they can only charge you with
assault and battery.” The petitioner was aware that trial counsel attempted to negotiate a plea
agreement with the State that called for two to three years’ imprisonment. However, the
State increased this proposed sentence to six years after discovering that he was a Range II
offender.

        The petitioner was unsure whether he took his medication the night before he entered
his guilty plea. He stated that he did not want to plead guilty but did so because he was
afraid that the jury might wrongly convict him based upon his manner of speech. At the time
of his plea, the petitioner believed that he was pleading guilty to “[s]elf-defense. . . . a
misdemeanor charge.” The petitioner stated that there were two types of misdemeanors:
either an “11/29 probation misdemeanor” or a misdemeanor that imposed a sentence of three
to six years. He believed that felony convictions began with sentences that were at least
seven years in length. When asked how he misunderstood that he was pleading guilty to a
felony charge after the trial court explained that he was pleading guilty to a felony, the
petitioner replied that he “didn’t misunderstand it.” He understood voluntary manslaughter
to be a misdemeanor because he was originally indicted for second degree murder, and the
charge was later reduced. Because the charge was reduced, he believed that he would be
pleading guilty “to a misdemeanor or a lower charge.” He stated that trial counsel’s “exact
words” were that “by [the petitioner] copping out to this plea that [he] will be copping out
to a misdemeanor charge.”

         On cross-examination, the petitioner agreed that he knew that he pled guilty to a six-
year sentence. The prosecutor asked if the petitioner knew that he pled guilty to the crime
of manslaughter, and the petitioner responded, “Right. Voluntary manslaughter.” The
petitioner agreed that he knew the crime to which he was pleading guilty and the sentence
he would receive, regardless of whether the crime was classified as a felony or a
misdemeanor. The petitioner also stated that trial counsel told him that he “could appeal it
within a year.” He agreed that he made the decision to plead guilty instead of proceeding to
trial, albeit “uncomfortably.” The petitioner was uncomfortable with his plea because he
would have preferred a lesser sentence, but he agreed that he still made the decision to plead
guilty.



        1
          While these statements certainly raise a question about the petitioner’s current competency, the
question of his competency at the post-conviction hearing is not before us, and we do not have a record
sufficient to allow us to consider it.

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       Jewel Hill, the petitioner’s mother, testified that she believed that “everything that was
happening to him was [her] fault from birth.” She stated that the petitioner was not “right[,]”
as he “kept saying he was God, and he was making his kids feel sad.” She said that the
petitioner went to a mental health clinic, but she later found out that he was not taking his
prescribed medications. Ms. Hill testified that the petitioner lost his job after telling co-
workers that he was God, that he got them their jobs, that he was the manager, that he was
the President, and that the President was his father. She stated that she took the petitioner
to the hospital the week of the incident with the victim. Ms. Hill noted that the petitioner
“was easily persuaded when he’s not taking his medicine.”

        After the hearing, the post-conviction court denied relief in a written order. The court
found that both the testimony of the petitioner and his mother confirmed that the petitioner
had mental health issues. The court noted that although the petitioner “made some confusing
and illogical statements” during his testimony, he reiterated multiple times that he understood
that he was pleading guilty to voluntary manslaughter in exchange for a six-year sentence.
The court noted that the petitioner was mistaken about his belief that voluntary manslaughter
was a misdemeanor but chose to plead guilty because he was concerned that he would be
convicted at trial. The court found that the petitioner did not present any evidence that trial
counsel was ineffective or that any deficiency by trial counsel prejudiced the petitioner, and
the court denied his ineffective assistance of counsel claims.

        The court found that the petitioner’s testimony at the post-conviction hearing
contradicted his claim that his guilty plea was not knowing or voluntary due to mental illness.
The court found that the petitioner was confused about the classification of misdemeanors
and felonies but noted that he stated several times that he understood that he was pleading
guilty to the lesser-included offense of voluntary manslaughter for a sentence of six years.
The court noted that the petitioner did not believe that he was guilty of a crime but that he
agreed to plead guilty to avoid receiving a longer sentence as a result of a guilty verdict at
trial.

        The court also found that the transcript of the guilty plea hearing supported a finding
that the petitioner’s plea was knowing and voluntary. The court noted that the petitioner
“was more lucid during his plea hearing [than at the post-conviction hearing.]” The court
found that the petitioner was engaged in the plea colloquy and provided appropriate
responses that were not merely “Yes” or “No” answers. The petitioner asked about receiving
pretrial jail credit based upon the sentence he was currently serving and asked a question
about how his prior conviction would affect the manner of his sentences. The court noted
that the petitioner successfully recalled the medications that he was taking and was able to
tell the court when he took his medication. The court observed that the petitioner was able
to discuss that his medication did not affect his decision making but that he did not

                                               7
understand the reason he was charged with second degree murder, as the petitioner believed
that the crime was justified. The court found that the record of the guilty plea hearing
indicated that the petitioner understood the consequences of his guilty plea and as a result
that his plea was knowingly and voluntarily entered.

     After the trial court denied his petition, the petitioner timely filed his notice of appeal.
We now proceed to consider his claims.

                                          ANALYSIS

                          I. Knowing and Voluntary Guilty Plea

       The petitioner argues that his guilty plea was not knowing and voluntary. Specifically,
he contends that his unmedicated mental illness made him incapable of knowingly and
voluntarily pleading guilty, and his plea was not knowing and voluntary because he was not
made aware of the consequences of the plea.

       To obtain post-conviction relief, the petitioner must demonstrate that “the conviction
or sentence 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
(2012). The petitioner bears the burden of proving the allegations of fact giving rise to the
claim by clear and convincing evidence. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn.
2009). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998)).

        A guilty plea is constitutional only when it is entered into knowingly, intelligently, and
voluntarily. Boykin v. Alabama, 395 U.S. 238, 242 (1969). A plea is involuntary “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). In evaluating whether a guilty plea was knowingly and voluntarily
entered, “[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). A reviewing court must make this determination
“based upon the totality of the circumstances.” State v. Turner, 919 S.W.2d 346, 353 (Tenn.
Crim. App. 1996). A court charged with determining the nature of a guilty plea:

       must look to various circumstantial factors, such as the relative intelligence of
       the defendant; the degree of his familiarity with criminal proceedings; whether

                                                8
       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 a jury trial.

Blankenship, 858 S.W.2d at 904.

A. Mental Illness

        The petitioner contends that his guilty plea was invalid because he suffers from a
mental illness and had not taken his medication at the time he entered his guilty plea. The
post-conviction court found that the petitioner’s testimony at the post-conviction hearing
contradicted his claim that his plea was not knowing and voluntary. Although he was
confused about the classification of misdemeanors and felonies, he repeatedly confirmed that
he knew that he was pleading guilty to the charge of voluntary manslaughter in exchange for
a six-year sentence. He also articulated the reason that he wished to avoid a trial, where he
faced a twenty-five-year sentence if convicted. He testified that he was uncomfortable
pleading guilty due to his desire for a shorter sentence, but he agreed that he overcame this
discomfort and made the decision to plead guilty. Further, as the post-conviction court
observed, the transcript of the petitioner’s guilty plea also demonstrated that his plea was
knowing and voluntary. During the plea colloquy, he was engaged with the trial court,
asking questions of the trial court about pre-trial jail credit and appropriately answering the
trial court’s questions. The record reflects that the petitioner’s confusion at the proceeding
seemed to stem not from a failure to understand his guilty plea due to his lack of medication
but rather from his belief that he should not have ever been indicted. However, as the trial
court explained, the petitioner’s belief that he should not have been charged was not relevant
to the proceedings; the only relevant inquiry was whether the petitioner wished to enter a plea
of guilty. After the trial court provided this explanation, the petitioner stated that he wished
to plead guilty.

        Further, the only medical evidence introduced at the post-conviction hearing regarding
the petitioner’s mental health condition was Dr. Brown’s recommendation that the petitioner
“continue to receive and be compliant with mental health services in jail to maintain
competency.” Although this recommendation, along with the testimony of the petitioner and
his mother, reflects that the petitioner suffers from a mental illness, the petitioner presented
no medical testimony regarding the effect that a failure to take his medications would have
on him. “[T]his Court has, on multiple occasions, held that a petitioner’s bare allegations,
unsupported by medical testimony, about the use of psychiatric drugs was insufficient to
support a claim that his plea was not knowingly and voluntarily entered.” Darrell Wayne

                                               9
Bumpas v. State, No. M2010-00222-CCA-R3-PC, 2010 WL 5140673, at *8 (Tenn. Crim.
App. Dec. 14, 2010) (citations omitted). In denying post-conviction relief, the post-
conviction court implicitly found that the petitioner did not establish by clear and convincing
evidence that a failure to take his medication affected his ability to enter a knowing and
voluntary plea, and the evidence does not preponderate against this finding. Accordingly,
we conclude that the petitioner has not met his burden of proving that his guilty plea was not
knowing and voluntary.

B. Consequences of the Plea

        The petitioner also contends that his plea was not knowing and voluntary because he
was not aware that voluntary manslaughter was a felony. In order for a guilty plea to be
voluntary, a defendant must be made aware of the consequences of the guilty plea. State v.
Mackey, 553 S.W.2d 337, 340 (Tenn. 1977); see also State v. Pettus, 986 S.W.2d 540, 542
(Tenn. 1999). In addition to the requirements of Boykin that a defendant be informed that
a guilty plea waives the privilege against self-incrimination, the right to a jury trial, and the
right to confront one’s accusers, Tennessee Rule of Criminal Procedure 11(b)(1) provides
additional information about which a trial court must question the defendant, including
whether the defendant understands “the nature of the charge to which the plea is offered[.]”
Tenn. R. Crim. P. 11(b)(1)(A); Howell v. State, 185 S.W.3d 319, 331 (Tenn. 2006).
However, only substantial, rather than literal, compliance with the advice in Tennessee Rule
of Criminal Procedure 11(b)(1) is required. Howell, 185 S.W.3d at 331. “A trial court
substantially complies with these mandates when it expresses the sense of the substance of
the required advice to a defendant who is seeking to plead guilty.” Id.

        Here, the petitioner correctly points out that the trial court did not affirmatively state
that voluntary manslaughter was a Class C felony until after the petitioner entered his guilty
plea. However, the trial court explained the elements that constituted the offense of
voluntary manslaughter, the sentence that the petitioner would receive as a result of his guilty
plea, and the fact that the conviction would remain permanently on his record, which is one
of the consequences of pleading guilty to a felony. The petitioner did not respond to the trial
court’s statement that he was pleading guilty to a felony by expressing surprise or
communicating his understanding that the crime was a misdemeanor. Furthermore, the
petition to enter a plea of guilty stated that voluntary manslaughter was a Class C felony, and
the petitioner’s signature was on this document. See Linda Blair v. State, No. W2010-00627-
CCA-R3-PC, 2010 WL 4812768, at *4 (Tenn. Crim. App. Nov. 18, 2010) (concluding that
the petitioner’s signature on a judgment sheet that indicated that TennCare fraud was a Class
E felony could be considered as proof that the petitioner was aware that the consequence of
her guilty plea would be a felony conviction). The petitioner, who had prior felony
convictions, was familiar with the criminal justice system. By denying the petition, the post-

                                               10
conviction court implicitly chose not to credit the testimony of the petitioner that he believed
that voluntary manslaughter was a misdemeanor. We conclude that the record does not
preponderate against the post-conviction court’s finding that the petitioner was aware of the
consequences of his guilty plea. Accordingly, the petitioner is not entitled to any relief as to
this claim.

                           II. Ineffective Assistance of Counsel

       The petitioner argues that trial counsel provided ineffective assistance of counsel.
Specifically, he contends that counsel was ineffective for failing to investigate the
petitioner’s competency at the time of his guilty plea, failing to properly articulate to the
petitioner that voluntary manslaughter was a felony, and for informing the petitioner that he
had one year to file an appeal.

        Both the Sixth Amendment to the United States Constitution and article I, section 9
of the Tennessee Constitution guarantee the right to counsel. This right affords an individual
representation that is “within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Counsel is ineffective when
“counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466
U.S. 668, 686 (1984).

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
prove by clear and convincing evidence that: (1) counsel’s performance was deficient; and
(2) the deficiency prejudiced the petitioner to the degree that the petitioner did not receive
a fair trial. Strickland, 466 U.S. at 687. A petitioner satisfies the deficiency prong of the
test by showing that counsel’s representation fell below an objective standard of
reasonableness; that is, “the services rendered or the advice given must have been below ‘the
range of competence demanded of attorneys in criminal cases.’” Grindstaff, 297 S.W.3d at
216 (quoting Baxter, 523 S.W.2d at 936); see Strickland, 466 U.S. at 687. The petitioner
must demonstrate that “counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at
687. Courts evaluating the performance of an attorney “should indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.”
State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). In order to fairly assess counsel’s conduct,
every effort must be made “to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. “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).

                                              11
       Prejudice requires the petitioner to show “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. In order to establish prejudice in the context
of a guilty plea, the petitioner must demonstrate that “counsel’s constitutionally ineffective
performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59
(1985). This requires a showing of “a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.” Id. If the
petitioner fails to establish either deficiency or prejudice, post-conviction relief is not
appropriate, and this court need not address both components if the petitioner makes an
insufficient showing as to one component. Grindstaff, 297 S.W.3d at 216 (citing Goad, 938
S.W.2d at 370).

        The post-conviction court found that the petitioner did not present any evidence that
trial counsel was ineffective or that he was prejudiced by any alleged deficiency. The
petitioner was deemed competent to stand trial and, as we concluded above, entered a
knowing and voluntary guilty plea. Although the petitioner claimed at the post-conviction
hearing that trial counsel informed him that voluntary manslaughter was a misdemeanor, he
confirmed several times that he knew that he was pleading guilty to the charge of voluntary
manslaughter in exchange for a six-year sentence. He also agreed that he pled guilty because
he was concerned that he would be convicted at trial. He stated at the guilty plea hearing that
he understood that he was waiving his right to appeal by pleading guilty. We note that trial
counsel did not testify at the post-conviction hearing, and this court has “observed on many
occasions that original counsel, when available, should always testify in a post-conviction
proceeding when there is an allegation that [she] was ineffective.” State v. Hopson, 589
S.W.2d 952, 954 (Tenn. Crim. App. 1979). However, even if we were to assume that trial
counsel’s performance was in some way deficient, we conclude that the petitioner has not
met his burden of proving that but for trial counsel’s errors, he would not have pled guilty
and instead proceeded to trial. The petitioner is not entitled to any relief as to this claim.

                                      CONCLUSION

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




                                                   _________________________________


                                                   JOHN EVERETT WILLIAMS, JUDGE

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