         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 13, 2004

                DEMETRIUS CURRIE v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Tipton County
                          No. 4276 Joseph H. Walker, III, Judge



                     No. W2003-01201-CCA-R3-PC - Filed June 8, 2004


The petitioner, Demetrius Currie, pled guilty in the Tipton County Circuit Court to two counts of
especially aggravated robbery and one count of especially aggravated burglary. The petitioner
received a total effective sentence of sixteen years incarceration in the Tennessee Department of
Correction. Subsequently, the petitioner filed for post-conviction relief, alleging that because
counsel failed to correctly inform him of his release eligibility percentage, counsel was ineffective
and the petitioner’s guilty pleas were not knowingly and voluntarily made. After a hearing, the post-
conviction court denied the petition, and the petitioner appeals. Upon review of the record and the
parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES
CURWOOD WITT , JR., JJ., joined.

J. Barney Witherington, IV, Covington, Tennessee, for the appellant, Demetrius Currie.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Elizabeth T. Rice, District Attorney General; and James Walter Freeland, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

        The petitioner was originally charged with attempted first degree murder, especially
aggravated robbery, and especially aggravated burglary. However, after plea negotiations, the
petitioner pled guilty to two counts of especially aggravated robbery and one count of especially
aggravated burglary. The State agreed to dismiss the attempted first degree murder charge. The plea
agreement further provided that the sentences imposed would run concurrently; however, the length
of the sentences was left to the trial court’s discretion.
        At the guilty plea hearing, the State recited the following stipulated factual basis for the pleas:

                [O]n August 24th, 2001, Mr. Freddie Jackson and Demetrius Currie
                were with Kevin Chaney in a vehicle. Mr. Chaney dropped them off
                at 217 Boals Street, each went into the home of Mr. William Lyle
                Jones, each had a pistol. They had Mr. Jones lie down on the floor.
                And there was also a Gerald Conley in the residence at the time. Mr.
                Conley was taken off the couch where he was sleeping and beaten.
                Mr. Jones was robbed of his wallet, $65 cash, and then he was shot
                in the back three times. According to the witness statements, Mr.
                Jackson and Mr. Currie then fled the residence, and Mr. Jackson
                admitted – or made the statement on several different occasions that
                he was the killer.

        After the recitation of facts, the petitioner waived his right to a trial and stated that no one
was forcing him to plead guilty. The petitioner told the court that he had reviewed the plea
agreement forms with his attorney and understood the plea. The trial court informed the petitioner,
“The especially aggravated robbery is the type of offense that requires service of a hundred percent
under T.C.A. 40-35-501.” Next, the trial court asked the petitioner if he was satisfied with the
representation of counsel, and the petitioner replied in the affirmative. The petitioner then entered
his guilty pleas in open court. Subsequently, the trial court sentenced the petitioner to concurrent
sentences of sixteen years incarceration on each especially aggravated robbery conviction and to
eight years incarceration on the especially aggravated burglary conviction. The trial court further
required the petitioner to serve one hundred percent of his especially aggravated robbery sentences
in confinement.

        Thereafter, the petitioner timely filed a petition for post-conviction relief. In his petition, the
petitioner alleged that counsel did not inform him that he would be serving one hundred percent of
his sentences in confinement. To the contrary, the petitioner entered his pleas believing that he
would be serving thirty percent of his sentences in confinement. Therefore, the petitioner contended
that he received the ineffective assistance of counsel, and that his pleas were not knowingly and
voluntarily entered.

        At the post-conviction hearing, the petitioner testified that he met with trial counsel two or
three times for durations of ten minutes to twenty minutes. At one of the meetings, counsel and the
petitioner discussed entering guilty pleas. The petitioner maintained that counsel informed him that
it was not likely that he would “win at trial.” Further, counsel cautioned the petitioner that he could
be held criminally responsible for the actions of his co-defendant, Freddie Jackson. The petitioner
explained to counsel that he did not shoot victim Jones. Counsel asserted that because the petitioner
admitted to police that he went to the residence with the intent to rob, he and Jackson could be found
equally culpable for the shooting. The petitioner conceded that he had given a statement to the
Covington Police Department saying that he went to the residence to commit a robbery, and, while
there, Jackson shot Jones.


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        The petitioner recalled that counsel advised him that he was facing a twenty-year sentence
for especially aggravated robbery. Counsel further advised the petitioner that if he proceeded to trial,
he was potentially facing a total effective sentence of thirty to fifty years if the sentences were
“stacked.”

        The petitioner asserted that he had the ability to read and write, having completed the tenth
grade. He stated that the plea agreement form he signed prior to the guilty plea hearing led him to
believe that he would have to serve only thirty percent of his sentences. However, he admitted that
the plea agreement form did not specify a percentage of service. In fact, the petitioner
acknowledged, “It wasn’t no percent discussed.”

       The petitioner conceded that at the guilty plea hearing, the trial court informed him that an
especially aggravated robbery conviction required service of one hundred percent of the sentence.
However, the petitioner argued that he had already signed the plea agreement form prior to the
hearing.

        On cross-examination, the State asked the appellant when he first realized “that there were
some felonies that carried 30 percent.” The petitioner responded, “I looked – looked in a law book
[in the penitentiary], find out most of my stuff, most of the things I know.” The petitioner
acknowledged that during his review of the law, he learned that a conviction of especially aggravated
robbery required service of one hundred percent of the sentence in confinement.

        The petitioner’s trial counsel testified that his records revealed that he met with the petitioner
six times, with the meetings lasting anywhere from ten minutes to forty-five minutes. During these
meetings, counsel and the petitioner discussed the facts of the case, possible defenses, and strategy.
Counsel stated that from the beginning of the case, he recommended that the petitioner seek a plea
bargain. Counsel explained that the shooting victim, Jones, was in critical condition. He feared that
Jones would die, and the petitioner would face first degree murder charges which could lead to a
death sentence.

        Counsel stated that his three main concerns with the case were solved by the petitioner’s
guilty pleas. First, counsel wanted “to plead him as soon as possible in case the man did die, then
he’s facing the electric chair.” Second, the plea agreement provided that the attempted murder
charges would be dismissed, “which I think the proof was clearly he was also criminally responsible
for that.” Third, the agreement provided for concurrent sentencing, obviating the concern of a
lengthier sentence. In sum, counsel opined, “I thought this was a good plea arrangement, especially
considering he confessed to being there, confessed to having a gun, and one of the victims testified
that Mr. Currie, even though he didn’t shoot him, pistol whipped him.” Finally, counsel admitted
that he could not specifically recall discussing service percentages with the petitioner; however, he
was “confident” that he discussed all aspects of sentencing with the petitioner.




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       After the post-conviction hearing, the post-conviction court entered a written order
dismissing the petition. The court specifically accredited the testimony of counsel and found that
counsel “provided adequate assistance.” Further, the post-conviction court stated:

                 Petitioner failed to show any deficient performance by [counsel] or
                 that he was prejudiced. Petitioner was not happy with the sentence
                 received, or the percentage of service. However he was adequately
                 warned of the possible range of sentence and the percentage of
                 service. The entry of a plea of guilty to avoid the risk of a greater
                 sentence does not make a plea involuntary.

On appeal, the petitioner contests this ruling.

                                                  II. Analysis

         To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-210(f) (1997).1 “‘Clear and convincing evidence means evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses,
the weight and value to be accorded their testimony, and the factual questions raised by the evidence
adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings
of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing
that the evidence in the record preponderates against those findings. Id. at 578.

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of
fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. Id.

        “To establish ineffective assistance of counsel, the petitioner bears the burden of proving
both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad
v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court
must determine whether counsel’s performance was within the range of competence required of
attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Moreover, in
the context of a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for


        1
           Since the post-conviction hearing in the instant case, this provision has been codified at Tennessee Code
Annotated section 40-30-110(f) (2003).

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counsel’s errors, he would not have pleaded guilty but would have insisted upon going to trial.”
Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S.
52, 59, 106 S. Ct. 366, 370 (1985).

        The petitioner claims that, prior to his signing of the plea agreement, he believed that he
would only be required to serve thirty percent of his sentence in confinement. However, the post-
conviction court specifically accredited the testimony of the petitioner’s trial counsel who stated that
he believed that he discussed release eligibility with the petitioner prior to his pleas. See Terrell
Burgess v. State, No. W2002-00826-CCA-R3-PC, 2003 WL 21645148, at *7 (Tenn. Crim. App. at
Jackson, July 2, 2003), perm. to appeal denied, (Tenn. 2003). Counsel further stated that he warned
the petitioner that he was facing a lengthier sentence if he were to be convicted at trial. Counsel
maintained that on his advice, the petitioner entered into a favorable plea agreement. From our
review of the record, we conclude that the petitioner has not proved deficiency or prejudice by clear
and convincing evidence.

        Moreover, the petitioner claims that his guilty pleas were not knowingly and voluntarily
entered because he was misled about the percentage of his sentence that he would have to serve in
confinement. As we earlier noted, counsel’s accredited testimony reveals that the petitioner was
informed about his sentence and release eligibility prior to entering his pleas. Moreover, the
transcript of the guilty plea hearing reflects that the trial court informed the petitioner that a
conviction of especially aggravated robbery required service of one hundred percent of the sentence
in confinement. See Ross Gunter v. State, No. E2000-00747-CCA-R3-CD, 2001 WL 348331, at *4
(Tenn. Crim. App. at Knoxville, Apr. 10, 2001). After being so warned, the petitioner told the court
that he understood his pleas and wished to plead guilty to two counts of especially aggravated
robbery and one count of especially aggravated burglary. We conclude that the petitioner’s pleas
were knowingly and voluntarily entered.

                                           III. Conclusion

       Accordingly, we affirm the judgment of the post-conviction court.


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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