        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs January 7, 2014

               BERNARD FRAZIER v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 10-03359     J. Robert Carter, Jr., Judge


                 No. W2013-00187-CCA-R3-PC - Filed April 10, 2014


The petitioner, Bernard Frazier, appeals the denial of his petition for post-conviction relief,
arguing that he received ineffective assistance of counsel and that his guilty pleas were not
knowingly and voluntarily entered. After review, we conclude that the petitioner received
effective assistance of counsel but that his guilty pleas were not knowingly and voluntarily
entered. As such, we reverse the judgment and remand to the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded

A LAN E. G LENN, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS, J R. and
R OGER A. P AGE, JJ., joined.

Warren P. Campbell, Memphis, Tennessee, for the appellant, Bernard Frazier.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; and Paul Goodman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

        The petitioner was charged in the Shelby County Criminal Court with two counts of
attempted first degree murder, two counts of employing a firearm during a felony, one count
of aggravated robbery, two counts of possession of a controlled substance with the intent to
sell, and two counts of possession of a controlled substance with the intent to deliver. On
July 18, 2011, pursuant to a plea agreement, the petitioner pled guilty to two counts of
attempted first degree murder and was sentenced to twenty-three years on each count, to be
served concurrently to each other in the Tennessee Department of Correction and
concurrently to a sentence imposed in the United States District Court for the Western
District of Tennessee. The record shows that on July 14, 2011, four days before entering his
plea in state court, the petitioner pled guilty to three counts of unlawful possession of a
firearm in violation of an order of protection, unlawful possession of a stolen firearm, and
unlawful possession with the intent to distribute cocaine in federal court and was sentenced
to an effective term of 276 months.

       At the plea submission hearing, the State informed the court that the petitioner was
entering a plea as follows:

         He’s pleading guilty in Indictment 10-03359, Count 1, criminal attempt first
         degree murder. It’s an A felony, twenty-three years in the Tennessee
         Department of Correction.

               He’s also pleading guilty under Count 2 of that same indictment,
         criminal attempt first degree murder as charged, twenty-three years in the
         Tennessee Department of Correction.

                All other counts under that indictment will be nol prosed [sic] at no
         cost. That is to run concurrently with -- those two counts run concurrently
         with one another and also to the [petitioner]’s federal case.

         The State then summarized the facts it would have presented had the case gone to
trial:

         [O]n the date alleged in the indictment[,] undercover officers were working in
         the area of 3331 Howard, Memphis, Tennessee, when they met [the petitioner]
         and Michael Young, a third co-defendant, and met them in front of 3331
         Howard in Shelby County when [the petitioner] and Mr. Young pulled out
         handguns and began to rob one of the undercover officers.

                They took his [s]ervice revolver and his phone. [The petitioner] told
         Mr. Young to go through his pockets. At some point they found a recording
         device, [the petitioner] indicated that he was a police officer.

                 The undercover officer took off running at that point. [The petitioner]
         told him he was going to blow his ass off. He began firing shots at the
         undercover officer in the direction of his head and his ass. He eventually dove
         into a ditch, played dead. At that point Mr. Young and [the petitioner] turned

                                               -2-
       on the other officer who was still in the vehicle and began firing shots at him.
       He was also able to escape.

              Subsequently to all this officers with the Undercover Operations Unit
       did find Mr. Young and [the petitioner]. They did find the handgun that was
       taken from the officer in addition to the bullets, and his cell phone.

The defense stipulated to the facts and asked the court to accept the negotiated plea
agreement.

        The trial court then explained to the petitioner that by pleading guilty, he was waiving
the right to a jury trial, the right to confront his accusers, the privilege against compulsory
self-incrimination, and the right to an appeal. The court queried the petitioner about the
interplay between his state and federal cases:

       Q:     You understand we actually had you set for a jury trial in a couple of
       weeks if you wanted one, but we’ve been holding this because your attorney
       has wanted -- you would be able to plead guilty in Federal Court first and then
       plead guilty in this so it could be run concurrently with that. Is that your
       understanding?

       A:     Yes, sir.

The court asked the petitioner whether he had been threatened into pleading guilty or was
doing it of his own free will and whether he had any further questions about pleading guilty.
The court then questioned the petitioner about his trial counsel as follows:

       Q:     I mean, [counsel] has been on your case from the beginning, is that
       correct?

       A:     Correct.

       Q:     And did he represent you in Federal Court as well or did he coordinate
       with the people that were handling that over there?

       A:     He coordinated.

       Q:     Okay. So, you know, there’s no question in your mind this is what you
       think you need to do?



                                              -3-
       A:     Yes, sir.

        The court found that the petitioner’s pleas were knowingly, voluntarily and
intelligently entered. As such, the court found the petitioner guilty as charged in counts one
and two of the indictment and sentenced him to concurrent twenty-three-year sentences “in
the Tennessee Department of Correction as a Range I standard offender.” The court also
ordered that “these be allowed to be served . . . concurrently with [the petitioner’s] Federal
case which is 10-20134[.]”

       On July 27, 2012, the petitioner filed a pro se petition for post-conviction relief and,
following the appointment of counsel, an amended petition was filed on October 4, 2012.
In his petitions, the petitioner argued, among other things, that he received ineffective
assistance of counsel and that his guilty pleas were not knowingly and voluntarily entered
because he was led to believe that his state sentences would be served concurrently with his
federal sentences in federal custody.

        At the post-conviction hearing, the petitioner testified that trial counsel was appointed
to represent him at trial. He said that he only talked to counsel on court dates and one time
in jail. He was not provided with a discovery packet in his case, but he did receive the
discovery from his co-defendant’s case after he pled guilty. The petitioner maintained that
“if I would have got my discovery pack, or [counsel] would have questioned the witness, I
believe that I would have had a better outcome on the case[.]”

        The petitioner testified that he believed he would have a better outcome with a trial,
and he advised counsel of his desire to take his case to trial. However, counsel did not want
the petitioner to go to trial, and the petitioner told counsel that he would consider entering
a plea if he “could do [his] time in the Feds, or [he] sign[ed] for [his] Fed time first.” The
petitioner had pending charges in federal court stemming from the same underlying facts.
The petitioner’s state court case was continued so he could enter a plea in his federal court
case first. He entered a blind plea in federal court and received a twenty-three-year sentence.

        The State offered the petitioner a plea for a twenty-three-year sentence concurrent
with his federal sentence. However, the petitioner testified that counsel told him that as part
of the plea agreement, he would be able to serve his sentence in federal custody. He recalled
that counsel told him that as soon as he signed the plea agreement “[he would] be in the Feds
and they [would] come pick [him] up in the next couple of days.” The petitioner affirmed
that it was his understanding he would be taken directly into federal custody upon signing
the plea agreement in state court. The petitioner testified that he would not have pled guilty
had he known that he would serve his sentence in state custody. He was presently housed
in the Hardeman County Correctional Facility, a state penitentiary.

                                               -4-
         The post-conviction court questioned the petitioner regarding his understanding of his
plea agreement. Asked where the federal court sentenced him, the petitioner stated, “They
said they [were] working something out with my State Lawyer, that he was supposed to
[have] been making some arrangement for me to come to the Feds.” The court asked the
petitioner: “What arrangements? What I don’t understand is what arrangements do you think
that your Lawyer could make? He doesn’t run the Federal Government. I couldn’t send you
to Federal Prison.” The petitioner responded, “Me not knowing then I was thinking that he
had the power to do that, that’s what he told me he was going to do. . . . [I]f I would have
kn[own] that, then I would have just took my chances, elsewhere. But, that is what was told
to me.” The petitioner acknowledged that if he were granted relief, he could be convicted
at trial and could receive a far greater sentence on all nine counts. He also acknowledged
that all the counts could run consecutively to each other and to the federal sentence.

       Trial counsel testified that “for a great deal of [his] representation [the petitioner]
wanted to go to trial.” However, counsel explained to the petitioner that “[h]e could have
been looking at well over eighty years” if he were convicted on all counts at trial. Counsel’s
best estimate was that the petitioner would receive at least thirty-five years after a trial.
Counsel said that he delivered a discovery package to the petitioner, and they went over the
petitioner’s and his co-defendants’ statements to police, as well as the transcript of the
preliminary hearing.

        Counsel testified that he had numerous meetings with the petitioner, the state
prosecutors, and the petitioner’s federal counsel, and after “talking about what the possible
outcomes were at trial and what kind of offer he was getting from the State, [the petitioner]
decided to enter a guilty plea.” Counsel stated that he thought the likelihood of the
petitioner’s being convicted if he went to trial “was pretty great” because the petitioner had
given a statement to police in which he admitted to planning the robbery and being armed.
Even though the petitioner never admitted to firing shots, one of the undercover officers
testified at the preliminary hearing that the petitioner had fired shots and the petitioner could
also be found guilty based on a theory of criminal responsibility for the actions of his co-
defendants.

        Counsel testified that he did not tell the petitioner that he would be housed in the
federal system as opposed to the state system. Counsel said that he had “numerous
conversations” with federal counsel so he “would be more aware of how sentencing would
work with the Feds and here and State Court.” According to counsel, he told the petitioner
“that there was no guarantee that the time would be run concurrent, unless the Federal plea
was done[] first and there was no communication about where he would be housed.”
Counsel stated that he “coordinated extensively” with federal counsel and recalled having
a jailhouse meeting with the petitioner and federal counsel. During that meeting, the topic

                                               -5-
of where the petitioner would be housed did not come up. Counsel recalled that the
petitioner talked about where he would be housed in the custody room on the day of the plea.
Counsel said that he told the petitioner that how and where he would be housed was entirely
up to the federal authorities.

       At the conclusion of counsel’s testimony, the State introduced judgments of
conviction for co-defendant Michael Young. The judgments revealed that Young pled guilty
to two counts of attempted first degree murder and one count of aggravated robbery, and he
received a total effective sentence of forty years.

        The post-conviction court entered a written order denying the petition on December
7, 2012. The court found that review of the transcript of the guilty plea hearing showed that
the petitioner’s sentence was to be served in the Tennessee Department of Correction. The
court noted that “[i]t was clear that it was to be served concurrently [with] . . . his federal
conviction, but no representations were made at the plea indicating that Petitioner would
serve his time anywhere but Tennessee’s Department of Corrections.” The court also noted
that the petitioner was asked if he had any questions about the terms of his plea and that he
did not. The court concluded that “[t]his is not a case where a representation was made, that
was relied upon by Petitioner, which was then reneged upon after the entry of a plea. The
record clearly shows a sentence to the Tennessee Department of Corrections.” The court also
found that the petitioner’s allegations that his counsel was ineffective had “a similar shortage
of proof.”

                                         ANALYSIS

        On appeal, the petitioner argues that he received ineffective assistance of counsel in
conjunction with his guilty pleas because counsel led him to believe that he would serve his
state and federal sentences concurrently in federal custody. He also argues that his pleas
were not knowingly, intelligently, and voluntarily entered for the same reason. As detailed
above, the post-conviction court rejected the petitioner’s claims that he received ineffective
assistance of counsel and that his guilty pleas were not knowingly, voluntarily, and
intelligently entered. We conclude that the record supports the determination that the
petitioner received effective assistance of counsel. However, we cannot conclude that the
petitioner’s guilty pleas were knowingly and voluntarily entered.

       Post-conviction relief “shall be granted when 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.” Tenn. Code Ann. § 40-30-103 (2012). The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the

                                              -6-
findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the post-conviction court’s findings as to the credibility of witnesses or the weight
of their testimony. Id. However, review of a post-conviction 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); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

       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 (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.

        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; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The
prejudice prong 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.
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 or she would not have pled guilty
but would instead have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

       At the evidentiary hearing, counsel testified that he did not tell the petitioner that he

                                                -7-
would be housed in the federal system as opposed to the state system. Counsel recalled that
on the day of the plea, the issue about where the petitioner would be housed was brought up,
and counsel told the petitioner that the decision was entirely up to the federal authorities.
Counsel also testified that he had numerous meetings with the petitioner, and the petitioner
decided to plead guilty after they discussed the possible outcomes of a trial and the terms of
the State’s offer. Counsel believed the petitioner’s potential exposure on the charges ranged
from thirty-five to more than eighty years. Counsel believed that the petitioner’s likelihood
of being convicted after a trial was “pretty great” because the State’s case included a
statement by the petitioner admitting that he had planned the robbery and that he was armed.

        The post-conviction court implicitly accredited counsel’s testimony in noting that
“[t]rial counsel flatly denie[d] that he guaranteed or assu[r]ed Petitioner that he could serve
his sentence in any particular prison system.” Accordingly, the proof does not support the
petitioner’s allegation that counsel misled him on the terms of the plea agreement. Any
failings in the fulfillment of the terms of the petitioner’s plea agreement were not due to any
incompetency in counsel’s advice.

        However, with regard to the knowingness of the petitioner’s pleas, we are constrained
to reach a different conclusion. Before a guilty plea may be accepted, there must be an
affirmative showing in the trial court that it was voluntarily and knowingly entered. Boykin
v. Alabama, 395 U.S. 238, 242 (1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977).
This requires a showing that the defendant was made aware of the significant consequences
of the plea. State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d
at 340). A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial
court must determine if the guilty plea is “knowing” by questioning the defendant to make
sure he or she fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S.W.2d at 904. If a plea of guilty is based on a misrepresentation,
including unfulfilled or unfulfillable promises, then the guilty plea cannot stand. See Brady
v. United States, 397 U.S. 742, 755 (1970).

        From the testimony at the guilty plea and post-conviction evidentiary hearings, it is
clear that the intent of the state court plea agreement was that the sentences be served
concurrently with the petitioner’s previously imposed federal sentences. Although the
petitioner additionally alleges that he believed his sentences would be served in federal
custody, such is not supported by the judgments, the testimony from the guilty plea hearing,
or the testimony of counsel at the evidentiary hearing. However, turning back to the issue
of concurrence with the federal sentence, the problem with the petitioner’s present
incarceration in state custody is not so much that he is in a state prison contrary to his wishes
but that there is no guarantee that upon completion of his term he will not be taken into

                                               -8-
federal custody and required to serve his entire federal sentence. The petitioner’s federal
judgment mentions nothing of concurrence with the state sentence because it had yet to be
imposed at that time and lists the place to be incarcerated as the United States Bureau of
Prisons. The petitioner could end up in effect serving a consecutive sentence, which was
obviously contrary to his intent in pleading guilty.

        Panels of this court have addressed similar scenarios and reached the same result. See
Joseph T. Faulkner v. State, No. W1999-00223-CCA-R3-PC, 2000 WL 1671470 (Tenn.
Crim. App. Oct. 17, 2000); Derrick E. Means v. State, No. 02C01-9707-CR-00248, 1998 WL
470447 (Tenn. Crim. App. Aug. 13, 1998); see also James L. Crawford v. State, No. E2010-
00425-CCA-R3-PC, 2011 WL 1745187 (Tenn. Crim. App. May 9, 2011), perm. app. denied
(Tenn. Aug. 25, 2011); Andre Wilson v. State, No. W2001-02442-CCA-R3-PC, 2002 WL
818260 (Tenn. Crim. App. Apr. 17, 2002), perm. app. denied (Tenn. Oct. 7, 2002) (Hayes,
J., dissenting); Lucious Allen v. State, No. W2000-02320-CCA-OT-PC, 2001 WL 1381360
(Tenn. Crim. App. Nov. 2, 2001). Although the State attempts to distinguish these cases
from the present case because the state court judgments, plea agreements, etc. designated that
the state sentences were to be served in federal custody and the petitioner’s judgments listed
Tennessee Department of Correction, we cannot agree that such distinctions render the
petitioner’s pleas knowing and voluntary. Upon completion of the petitioner’s state sentence,
he would have no avenue for forcing the federal government to give him credit for time
served in a state penitentiary when such was not on his federal judgment. As noted by this
court in Derrick E. Means:

              The Tennessee Rules of Criminal Procedure do provide for concurrent
       service of state and federal sentences if explicitly ordered by the trial court.
       Tenn. R. Crim. P. 32(c)(2); State v. Graham, 544 S.W.2d 921, 922 (Tenn.
       Crim. App. 1976). While authorized by the rule, the implementation of
       concurrent state and federal sentences has proven to be difficult. See State v.
       Hun, 197 W. Va. 729, 478 S.E.2d 579, 582 (W. Va. 1996). The practical
       problems with the rule are as a result of dual sovereignty. Neither sovereign
       controls the other’s proceedings.

1998 WL 470447, at *5.

     The concurring opinion in Del Guzzi v. United States, 980 F.2d 1269 (9th Cir. 1992),
summarizes the issue:

       State sentencing judges and defense attorneys in state proceedings should be
       put on notice. Federal prison officials are under no obligation to, and may well
       refuse to, follow the recommendation of state sentencing judges that a prisoner

                                             -9-
       be transported to a federal facility. Moreover, concurrent sentences imposed
       by state judges are nothing more than recommendations to federal officials.
       Those officials remain free to turn those concurrent sentences into consecutive
       sentences by refusing to accept the state prisoner until the completion of the
       state sentence and refusing to credit the time the prisoner spent in state
       custody.

Id. at 1272-73.

       Because the promise of concurrent sentences was a direct inducement for the
petitioner’s guilty pleas, we cannot conclude that the pleas were knowingly and voluntarily
entered.

       Turning to the appropriate remedy, we see no reason to depart from this court’s
reasoning in Derrick E. Means, 1998 WL 470447, and therefore adopt that holding in
determining what relief should be granted in the present case. In Derrick E. Means, the court
advised:

       Fashioning relief for the petitioner will take the combined good faith efforts
       of all involved. The parties are first encouraged to make every effort to fulfill
       the intent of the plea bargain. Specific performance may, however, be
       impossible to effectuate. Both defense counsel and the district attorney’s
       office, while taking steps to preserve the integrity of the state sentence, should
       contact the federal authorities and determine whether the federal authorities
       would be willing to accept the petitioner for his federal sentence.

              If specific performance is an impossibility, the parties should enter into
       new plea negotiations taking into account the intentions of the failed plea
       agreement. The agreement failed through no fault of the petitioner. In our
       view, plea negotiations and sentencing should take into account the time the
       petitioner has served in prison and in the county jail. If these avenues do not
       provide a satisfactory resolution, the petitioner may be allowed to withdraw his
       guilty pleas altogether and face trial.

Id. at *7.

                                      CONCLUSION

      Based on the foregoing authorities and reasoning, we reverse the judgment of the post-
conviction court and remand for proceedings consistent with the avenues of relief proposed

                                              -10-
by this court in Derrick E. Means, 1998 WL 470447, and adopted by this panel.


                                                _________________________________
                                                ALAN E. GLENN, JUDGE




                                         -11-
