        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs May 9, 2012

               RICKY LEE MORGAN v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                     No. 2008-A-61     Mark J. Fishburn, Judge


                   No. M2011-02129-CCA-R3-PC - Filed June 7, 2012


Much aggrieved by his convictions of aggravated rape and robbery and resulting 23-year
sentence of imprisonment, the petitioner, Ricky Lee Morgan, filed a timely petition for post-
conviction relief alleging that his guilty pleas were involuntarily and unknowingly entered
due to the ineffective assistance of counsel. Following the appointment of counsel and an
evidentiary hearing, the post-conviction court denied relief. Discerning no error, we affirm
the post-conviction court’s order.

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

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Ricky Lee Morgan.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Sarah Davis, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

              On May 4, 2009, the petitioner pleaded guilty to aggravated rape and robbery.
Pursuant to his open plea, the State dismissed a related aggravated kidnapping charge. At
the plea submission hearing, the State offered the following factual basis for the guilty pleas:

              [O]n September 18th of 2007, the victim [ ] was returning to her
              Warren Street residence when she was approached by the
              [petitioner]. The [petitioner] asked her for a cigarette, and the
              victim provided one as requested. The victim[,] who was on
               foot walked towards the Bicentennial Mall . . . [,] and the
               [petitioner] walked with her. He identified himself as Ricky . .
               . . [T]he [petitioner] approached the victim and grabbed her by
               the front of her sweat shirt before throwing her to the ground .
               . . . The [petitioner] demanded sex from the victim, but the
               victim refused. He then held the victim to the ground and
               produced a small kitchen type knife from his pocket, which he
               then held to the victim’s throat. . . . After a prolonged struggle,
               which included him choking her and striking her head against a
               metal handrail, the [petitioner] removed her pants and forcibly
               engaged in penile/vaginal intercourse. After ejaculating, the
               [petitioner] told the victim not to move for ten minutes, he then
               took her pants, one boot and her cell phone before fleeing the
               area on foot. The victim sustained obvious injuries . . . .

                              After viewing several lineups and not being able
               to identify her attacker . . . two more lineups were prepared. . .
               . [During] one of the lineups . . . [the victim] immediately
               identified the [petitioner] as her attacker. A rape kit was
               subsequently sent to the TBI, and the DNA from both the
               vaginal swab and [the victim’s] underwear w[ere] shown to be
               a match beyond the world population to the [petitioner].

Following a detailed plea colloquy, the trial court accepted the petitioner’s guilty pleas and
set the case for a June 29, 2009 sentencing hearing. Following the testimony of the victim,
the defendant’s sister, and the defendant at the sentencing hearing, the trial court sentenced
the defendant to 23 years’ incarceration with service of one hundred percent for the
aggravated rape conviction to be served concurrently with a six-year sentence for the robbery
conviction.

               On April 9, 2010, the petitioner filed a timely petition for post-conviction relief
alleging that his guilty pleas were involuntarily and unknowingly entered as the result of trial
counsel’s ineffective assistance. In both his pro se petition and a subsequent amendment
filed by counsel, the petitioner maintained that trial counsel told him that he would receive
a sentence of 15 years’ incarceration in exchange for his guilty pleas.

               At the evidentiary hearing, trial counsel testified that he represented the
petitioner for approximately one year. During that time, counsel spent time reviewing and
explaining discovery materials and developing a trial strategy with the petitioner. Counsel
said that the petitioner understood that the victim had identified him from a photographic

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line-up and that deoxyribonucleic acid (“DNA”) evidence confirmed him as the attacker.
Consequently, counsel recalled that the petitioner candidly admitted raping the victim but
steadfastly denied kidnapping the victim.

               Counsel testified that an original plea offer extended by the State included a
guilty plea to aggravated kidnapping in exchange for a 23-year sentence. Counsel recalled
that the petitioner rejected this plea based upon his belief that he had not kidnapped the
victim. On the eve of trial, counsel negotiated an agreement whereby the petitioner would
plead “open” to aggravated rape and robbery in exchange for a dismissal of the aggravated
kidnapping charge. Counsel testified, “I advised [the petitioner], in my honest opinion, I
believe[d] the judge would max him out, but [the petitioner] agreed that the sentencing
hearing would be his only shot at getting 15 years.” Counsel said that he explained to the
petitioner numerous times that the trial judge would determine his sentence. The petitioner
agreed to the plea because “he wanted his shot at getting 15 years.”

                The petitioner testified that he was dissatisfied with counsel’s representation
and said,“[I]t was just like I represented myself because . . . he never did nothing for me.”
The petitioner maintained that he understood that he would be sentenced to 15 years. He
claimed, in fact, that counsel “practically guaranteed” that he would receive a 15-year
sentence. The petitioner testified in general that counsel “sold [him] out to the State” and
claimed that counsel “could have worked and pushed a little harder to get [his] sentencing
down.” He acknowledged that he never denied “forc[ing] [him]self on [the victim]” but
claimed that he was “just under the influence of alcohol and crack cocaine” at the time of the
offenses. He testified that, at the time of the evidentiary hearing, he did not desire to go to
trial but “just want[ed] to go back to the bargaining table and try to work out a deal” to get
the 15-year sentence that he felt counsel had promised him.

              In its September 20, 2011 written order, the post-conviction court found that
the plea colloquy from the plea submission hearing reflected that the petitioner fully
understood the consequences of his open guilty pleas and that the petitioner was in no
manner guaranteed a 15-year sentence. Accordingly, the post-conviction court denied relief.
The petitioner filed a timely notice of appeal.

              In this appeal, the petitioner reiterates his claim that trial counsel’s ineffective
assistance rendered his guilty pleas unknowing and involuntary. We view the petitioner’s
claim with a few well-settled principles in mind. Post-conviction relief is available only
“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.”
T.C.A. § 40-30-103 (2006). A post-conviction petitioner bears the burden of proving his or
her allegations by clear and convincing evidence. Id. § 40-30-110(f). On appeal, the post-

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conviction court’s findings of fact are conclusive unless the evidence preponderates against
them. Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d
615, 631 (Tenn. Crim. App. 1997). By contrast, the post-conviction court’s conclusions of
law receive no deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001).

               To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, the petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
In the context of a guilty plea, the petitioner must establish that “counsel’s constitutionally
ineffective performance affected the outcome of the plea process” by establishing “a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see Hicks
v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998). Should the petitioner fail to
establish either deficient performance or prejudice, he is not entitled to relief. Id. at 697;
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be
followed.” Strickland, 466 U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

               “Whether a plea was knowing and voluntary is an issue of constitutional
dimension because ‘the due process provision of the federal constitution requires that pleas
of guilty be knowing and voluntary.’” State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2000)
(quoting Johnson v. State, 834 S.W.2d 922, 923 (Tenn. 1992)). A plea “may not be the
product of ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or
blatant threats.’” Wilson, 31 S.W.3d at 195 (quoting Boykin, 395 U.S. at 242-43); see also
State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003) (“Certainly, a plea is not ‘voluntary’ if
it results from ignorance, misunderstanding, coercion, inducements, or threats.”) (citing

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Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993)); see Sexton v. State, 151 S.W.3d
525, 532 (Tenn. Crim. App. 2004) (stating that “the nature of the proceeding, the exchange
between the trial court and the petitioner, and the relatively beneficial plea agreement reflect
the petitioner’s knowledge and understanding that [his] constitutional rights relative to the
trial process were not to be asserted by [him] any further”).

             Both claims of ineffective assistance of counsel and involuntary guilty plea are
mixed questions of law and fact. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v.
Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). When reviewing the application of law to the post-conviction court’s factual findings,
our review is de novo, and the post-conviction court’s conclusions of law are given no
presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

               In our view, the evidence does not preponderate against the findings of the
post-conviction court. Trial counsel testified that he warned the petitioner that he was not
guaranteed a 15-year sentence but that the petitioner felt that an open plea was “his only
shot” at getting a sentence less than that offered by the State during earlier plea negotiations.
At the plea submission hearing, the petitioner was fully apprised of his potential range of
punishment by the trial court prior to making his plea. Furthermore, the transcript of the
guilty plea submission hearing confirms that the petitioner understood that the choice to enter
the guilty plea was his alone and that he entered the plea entirely of his own volition. That
the petitioner would now like to “go back to the bargaining table and try to work out a deal”
involving a 15-year sentence does not equate to a deprivation of the effective assistance of
counsel. The petitioner has failed to establish any entitlement to post-conviction relief.

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




                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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