         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs February 5, 2002

                  DARREL HOWARD v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                        No. P-20479    Carolyn Wade Blackett, Judge



                    No. W2001-00813-CCA-R3-PC - Filed March 21, 2002


Pursuant to a plea agreement, the Petitioner pleaded guilty to nine counts of aggravated robbery and
five counts of aggravated assault. The trial court sentenced the Petitioner to an effective sentence
of twenty years in the Tennessee Department of Correction. The Petitioner subsequently filed for
post-conviction relief, claiming that his plea was constitutionally defective because he was
inadequately represented at the time of the plea and because the plea was not voluntarily, knowingly,
and intelligently entered. The post-conviction court denied relief. After review, we affirm the
judgment of the post-conviction court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
DAVID G. HAYES, JJ., joined.

Bill Anderson, Jr., Memphis, Tennessee, for the Appellant, Darrel Howard.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; Betsy Carnesale, Assistant District Attorney
General; and Stephanie Johnson, Assistant District Attorney General, for the Appellee, State of
Tennessee.

                                            OPINION

        The Petitioner, Darrel Howard, pleaded guilty to nine counts of aggravated robbery and five
counts of aggravated assault. Pursuant to a plea agreement, the trial court sentenced the Petitioner
to ten years on each of the aggravated robbery convictions and four years on each of the aggravated
assault convictions. A combination of concurrent and consecutive sentencing resulted in an effective
sentence of twenty years in the Tennessee Department of Correction.

        The Petitioner subsequently filed a petition for post-conviction relief, in which he alleged
that his guilty pleas were constitutionally defective because he was inadequately represented by
counsel and because he did not voluntarily, knowingly and intelligently enter the pleas. In his
petition, the Petitioner stated that “counsel intimidated the Defendant by telling him he would
receive one hundred years if he didn’t cop-out for twenty years.” In a motion to amend his petition,
the Petitioner further claimed that his name was forged on the “conviction papers,” that additional
charges were added to the “guilty plea paper” after the Petitioner had signed it, and that the
Petitioner was sentenced “out of [his] range.” The Petitioner also contended that counsel was
ineffective in representing him because counsel: (a) did not file pre-trial motions; (b) allowed the
Petitioner to be sentenced out of range; (c) used coercive tactics; and (d) failed to fully discuss the
Petitioner’s case with the Petitioner. Following a hearing, at which the Petitioner, his mother, and
Petitioner’s trial counsel testified, the post-conviction court denied relief.

         The Petitioner argues on appeal that “there were many times during the course of
representation in these cases that [the Petitioner] was confused and appeared to not grasp the gravity
of the situation he was involved with.” The Petitioner argues that defense counsel failed to properly
explain “all of the procedures” to him and that this failure, “along with the apparently [sic]
immediacy urged by defense counsel to enter the guilty pleas” rendered the Petitioner’s guilty pleas
involuntary. The Petitioner further argues on appeal that counsel “should have recognized the
problems the Defendant was having in accepting the guilty pleas and that his failure to do so
constituted ineffective assistance of counsel.” The State responds that the Petitioner’s guilty pleas
were not constitutionally defective and that Petitioner’s counsel was not ineffective.1 We agree with
the State. Therefore, we affirm the judgment of the post-conviction court.

                                                      I. Facts

        The evidence presented at the post-conviction hearing consisted of the testimony of the
Petitioner, his mother, and Petitioner’s trial counsel. A transcript of the hearing at which the
Petitioner entered his guilty pleas was also introduced as evidence. The Petitioner testified that his
attorney did not discuss the facts of each case separately and thoroughly with the Petitioner; did not
ask the Petitioner for a list of witnesses; did not file any motions to suppress statements of the
Petitioner allegedly made in a juvenile facility; did not interview witnesses; and became hostile with
Petitioner, telling Petitioner that if the Petitioner did not accept the twenty years, he would get one
hundred years. The Petitioner also testified that he did not understand that he was pleading to
fourteen separate charges. Finally, the Petitioner’s mother testified that counsel did not discuss the
particular facts of each crime and confirmed that the Petitioner and counsel were involved in a heated
discussion immediately prior to the entry of the plea.

        The testimony of defense counsel was directly contradictory to the testimony of the Petitioner
on virtually every point. Defense counsel testified that he did discuss the facts of each case with the



         1
           As a preliminary matter, the State argues that the Petitioner’s notice of appeal was not timely filed. By our
calcu lations, the no tice of appe al wa s timely. See Tenn. R. A pp. P. 21(a).

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Petitioner and that he basically did all he could for the Petitioner considering the numerous charges
and the overwhelming evidence against the Petitioner.

        In a detailed “FINDINGS OF FACT AND CONCLUSIONS OF LAW ON PETITION FOR
POST-CONVICTION RELIEF,” the post-conviction court concluded that the Petitioner failed to
prove any of his claims by clear and convincing evidence. Relying in part upon the transcript of the
guilty plea, the post-conviction court concluded that the Petitioner understood his plea. The court
also noted that the Petitioner heard the statement of facts that the State gave about all of the crimes
and that the Petitioner admitted that those facts were true. The post-conviction court found no merit
to the Petitioner’s claim that he was coerced into pleading guilty. Likewise, the post-conviction
court found no merit to the Petitioner’s assertion that his convictions were based on a violation of
the privilege against self-incrimination. Finally, the post-conviction court carefully analyzed the
Petitioner’s claim that he was denied effective assistance of counsel and determined that claim to
be meritless as well. With regard to the claim of ineffective assistance of counsel, the post-
conviction court found in part as follows:
        Petitioner accuses his attorney of failing to file any motions to suppress, failing to
        discuss the case with him including possible sentences, failing to meet with him and
        discuss strategies, and taking his money without doing any work. On the contrary,
        [Counsel] testified that he discussed each of Petitioner’s charges with him and the
        possible sentences. Furthermore, Counsel testified that he that [sic] did file a motion
        for a mental evaluation to prepare Petitioner’s defense. Counsel further testified that
        he tried to meet with Petitioner while he was out on bond, and Petitioner failed to
        come to the office for scheduled appointments. Specifically, Counsel testified that
        he asked to meet with Petitioner to go over the discovery packet. However,
        Petitioner failed to show and Counsel could not remember giving Petitioner a copy
        of any of the discovery materials. Although Counsel was ready to go to trial, there
        was a lot of evidence against Petitioner including confessions made by himself and
        his co-defendant, and a report-indicating Petitioner had a weapon. As a result
        Counsel negotiated a good deal for him. [Counsel] testified that Petitioner never
        indicated that he was giving ineffective assistance of counsel, or that there were other
        things that [Petitioner] wanted him to do.

                                             II. Analysis

         In order to obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.
§ 40-30-203. The petitioner bears the burden of proving factual allegations in the petition for post-
conviction relief by clear and convincing evidence. Id. § 40-30-210(f). A post-conviction court’s
factual findings are subject to a de novo review by this Court; however, we must accord these factual
findings a presumption of correctness, which is overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40 S.W.3d 450,
456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject to a purely de novo
review by this Court, with no presumption of correctness. Id. at 457. The Tennessee Supreme Court

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has held that the issue of ineffective assistance of counsel is a mixed question of law and fact and,
as such, is subject to de novo review. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

        The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution.
Id.; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the
right to “reasonably effective” assistance. Burns, 6 S.W.3d at 461. In reviewing a claim of
ineffective assistance of counsel, this Court must determine whether the advice given or services
rendered by the attorney are within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a petitioner
must show that “counsel’s representation fell below an objective standard of reasonableness,”
Strickland v. Washington, 466 U.S. 668, 688 (1984), and that this performance prejudiced the
defense, resulting in a failure to produce a reliable result. Id. at 687; Cooper v. State, 849 S.W.2d
744, 747 (Tenn.1993). To satisfy the requirement of prejudice, a petitioner must show a reasonable
probability that, but for counsel’s unreasonable error, the fact finder would have had reasonable
doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable probability must
be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v. State, 875
S.W.2d 662, 665 (Tenn. 1994).

        This standard also applies to claims arising out of the plea process. Hill v. Lockhart, 474
U.S. 52, 58 (1985). To satisfy the requirement of prejudice in a case involving a guilty plea, the
petitioner must demonstrate a reasonable probability that, but for counsel’s errors, he or she “would
not have pleaded guilty and would have insisted on going to trial.” Id. at 59.

        When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and
“should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

        The Petitioner has failed to prove that he received ineffective assistance of counsel in this
case. The post-conviction court clearly found that the Petitioner’s testimony at the post-conviction
hearing was not credible and accredited the testimony of trial counsel. The evidence supports these
findings of the post-conviction court. Furthermore, we have concluded from our de novo review that
the Petitioner entered his pleas voluntarily, knowingly, and intelligently. The Petitioner argues that
the numerous charges against him and his confusion concerning the charges resulted in involuntary
pleas. The transcript of the guilty pleas does not support the Petitioner’s arguments. It reflects no
confusion or misunderstanding by the Petitioner. The issue is whether the pleas represented a


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voluntary and intelligent choice among the alternative courses of action open to the Petitioner. North
Carolina v. Alford, 400 U.S. 25, 31 (1970). The Petitioner was facing potential punishment for nine
Class B felonies and five Class C felonies. As the post-conviction court noted, the twenty-year
negotiated sentence was a “good deal.”

        We conclude, as did the post-conviction court, that the Petitioner received effective
representation in the trial court and that his guilty pleas were entered without any constitutional
defects.


       Accordingly, the judgment of the post-conviction court is AFFIRMED.




                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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