        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  March 8, 2011 Session

              DWANE WASHINGTON v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                    No. 2005-C-2071     Cheryl Blackburn, Judge


                 No. M2010-00534-CCA-R3-PC - Filed June 29, 2011


The petitioner, Dwane Washington, appeals the post-conviction court’s ruling that he failed
to prove prejudice by clear and convincing evidence after his case was remanded for a
determination of prejudice. The proper standard of review was whether the petitioner had
shown that there was a reasonable probability that, but for counsel’s errors, he would not
have pled guilty and would have insisted on going to trial. After a careful review, we
conclude that the post-conviction court used the wrong standard in requiring the petitioner
to prove prejudice by clear and convincing evidence and that the record before us clearly
establishes that there was a reasonable probability that, but for trial counsel’s inaccurate
assurances that the petitioner was eligible for boot camp, he would not have pled guilty and
would have insisted on going to trial. We reverse the judgment of the post-conviction court,
vacate the petitioner’s judgment of conviction, and remand the case for a trial.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

Jeremy W. Parham, Nashville, Tennessee, for the appellant, Dwane Washington.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        Originally, the petitioner pled guilty to Class B cocaine possession and, in exchange
for his plea, was sentenced, as a Range II, multiple offender, to twelve years in the Tennessee
Department of Correction (TDOC) with a recommendation for the Boot Camp Program.
After arriving at the Tennessee Department of Correction, the petitioner learned he was not
eligible for the Boot Camp Program because he was a Range II, multiple offender. The
petitioner contacted his trial counsel, who had assured him that he was eligible for the Boot
Camp Program, and was advised to file a post-conviction relief petition. The petitioner filed
such a petition and, at the original post-conviction hearing, trial counsel confirmed that she
gave assurances to the petitioner that he was eligible for the Boot Camp Program. Trial
counsel testified that she had discussed the petitioner’s eligibility with someone at the
Tennessee Department of Correction and was assured that the petitioner was indeed eligible.
The petitioner testified and confirmed that he had been assured that he was eligible for the
Boot Camp Program and also stated that had he known otherwise, he would not have pled
guilty. The post-conviction court, nonetheless, determined that the inaccurate advice
concerning the petitioner’s eligibility in the Boot Camp Program did not result in deficient
performance by trial counsel.

        The petitioner appealed the post-conviction court’s initial determination, and a panel
of this court concluded that trial counsel’s advice to the petitioner was inaccurate and that
trial counsel’s performance was deficient because she relied upon the advice given by a
Tennessee Department of Correction employee despite clear statutory language setting forth
that a Range II, multiple offender does not qualify for the Boot Camp Program. This court
remanded the case to the post-conviction court to make a determination as to whether the
petitioner had been prejudiced by trial counsel’s deficient performance. Dwane Washington
v. State, No. M2008-01062-CCA-R3-PC (Tenn. Crim. App, at Nashville, June 16, 2009).

        Upon remand, the post-conviction court heard the arguments of counsel, reviewed the
initial guilty plea colloquy, and rendered a written order concluding that the petitioner had
not established by “clear and convincing evidence” that he was prejudiced by trial counsel’s
deficiency and, therefore, denied any relief. From this order the petitioner now appeals,
contending that the trial court erred in denying him relief.

                                           Analysis

       On appeal, two issues are be decided: 1) whether the post-conviction court used the
appropriate standard in determining whether the petitioner was prejudiced by the trial
counsel’s deficient performance; and 2) whether the petitioner’s proof was sufficient to
establish a reasonable probability that, but for counsel’s errors, he would not have pled guilty
and would have insisted on going to trial.

      For a petitioner to successfully overturn a conviction based on ineffective assistance
of counsel, the petitioner must first establish that the services rendered or the advice given

                                              -2-
was below “the range of competence demanded of attorneys in criminal cases.” Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, the petitioner must show that the
deficiencies “actually had an adverse effect on the defense.” Strickland v. Washington, 466
U.S. 668, 693 (1984). With regard to the prejudice prong, as to guilty pleas, the petitioner
must establish that, but for counsel’s errors, the petitioner would not have entered the plea
and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). This
court will not disturb the findings of fact entered by the post-conviction court unless the
evidence preponderates against them. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

       Upon the remand of this case to the post-conviction court, the only issue to be
determined was whether the petitioner was prejudiced by the deficient performance of trial
counsel. The post-conviction court found that the petitioner failed to establish “by clear and
convincing evidence” that he was prejudiced by trial counsel’s deficiency. Initially, we
conclude that the post-conviction court failed to apply the proper standard of review in this
case, instead imposing a higher burden to establish prejudice by clear and convincing
evidence. The post-conviction court should have allowed the petitioner to establish prejudice
by proving a reasonable probability that, but for counsel’s errors, the petitioner would not
have entered a guilty plea and would have insisted on going to trial.

       Nonetheless, in denying relief on the merits, the post-conviction court found:

        The petitioner was fully advised during his plea hearing that the courts are not
       bestowed with the authority to order TDOC to place particular defendants into
       its boot camp program (and the court did make this recommendation on behalf
       of the Petitioner), and TDOC would determine whether the inmate is eligible
       to participate in boot camp. [The petitioner] informed the court that he
       understood TDOC possessed the ultimate authority to determine whether he
       would be placed in the boot camp program.

        Here, it is not disputed that the petitioner’s trial counsel informed the petitioner that
he was eligible for boot camp. Indeed, trial counsel stated that, in an attempt to satisfy her
own mind that the advice she was giving the petitioner was correct, she contacted an
employee with the Tennessee Department of Correction and was informed that the petitioner
would be eligible for the Boot Camp Program. In making his decision to enter a guilty plea,
the petitioner, no doubt, relied upon counsel’s inaccurate assurances that he was eligible for
boot camp. A panel of this court has already determined that trial counsel provided deficient
performance to this petitioner for giving advice that was contrary to the clear expressed
statutory provisions of Tennessee Code Annotated section 40-20-207. This statute makes
clear that the petitioner, as a Range II, multiple offender, did not qualify for the Boot Camp
Program. In our view, the trial court’s telling the petitioner that his participation in the Boot

                                               -3-
Camp Program was entirely at the discretion of the Tennessee Department of Correction,
when the petitioner did not even qualify for the program, did not lessen the prejudicial effect
of counsel’s deficient performance.

                                         Conclusion

       Based on the foregoing reasons, we conclude that the post-conviction court applied
an incorrect standard of review for determination of prejudice. Upon our review of the
determination of prejudice, we conclude that the evidence was sufficient to establish that the
petitioner received inaccurate assurances that he was eligible for the boot camp program; that
he relied upon these assurances which the trial court bolstered; and that there exists a
reasonable probability that, but for those inaccurate assurances, he would not have pled
guilty. Therefore, the judgment of the post-conviction court denying relief is reversed, the
judgment of conviction is vacated, and the case is remanded for a trial.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




                                              -4-
