         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  December 11, 2002 Session

                 MICHAEL J. BAILEY v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court of Davidson County
                          No. 2001-I-240 Cheryl Blackburn, Judge



                      No. M2002-00736-CCA-R3-PC - Filed May 21, 2003


The petitioner, Michael J. Bailey, filed a petition for post-conviction relief alleging that he was
denied effective assistance of counsel. Following an evidentiary hearing, the post-conviction court
denied relief and the petitioner timely appealed. 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 Criminal Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

David M. Hopkins, Nashville, Tennessee, for the appellant, Michael J. Bailey.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn and Michelle Thompson,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

                                       I. Factual Background
                On March 27, 2001, the petitioner pled guilty to three counts of burglary, one count
of burglary of a motor vehicle, and one count of reckless aggravated assault. He was sentenced as
a Range II offender to an effective sentence of six years and one month to be served at 35%.
Subsequently, the petitioner filed a petition for post-conviction relief alleging ineffective assistance
of counsel. Specifically, the petitioner alleged that his guilty plea to the charge of reckless
aggravated assault was not entered knowingly and voluntarily. The petitioner alleged that counsel
failed to inform him as to the nature and consequences of his guilty plea; counsel failed to adequately
investigate his case; counsel failed to adequately consult with the petitioner prior to his pleading
guilty, and counsel failed to advise the petitioner regarding “the Elements of the Charges Against
Him as They Related to the Evidence in His Case.”
                At the post-conviction hearing, the petitioner called David McCurdy to testify
regarding the events which resulted in the petitioner’s conviction for reckless aggravated assault.
McCurdy testified that he was walking out of a Home Depot store when he noticed the tool box on
his truck was open. He ran to the truck and discovered the petitioner unloading the vehicle.
McCurdy and the petitioner “scuffled around” and McCurdy was able to detain the petitioner.
However, the petitioner was able to escape and McCurdy pursued him across the parking lot. The
petitioner jumped into a vehicle into which he had previously loaded McCurdy’s tools. McCurdy
testified that while the petitioner was in his grasp, the petitioner “threw the car in gear and dragged
me along, . . . 50 yards across the parking lot.” When McCurdy saw the car approaching a power
pole, he “let go and kind of just came to a tumbling halt.” McCurdy described his injuries as “road
rash,” noting that he was bleeding on the head, knees, and elbows and had scuffs and scratches. He
did not seek medical treatment for his injuries.

                 The petitioner testified at the evidentiary hearing that he was alleging ineffective
assistance of counsel only as to the charge of reckless aggravated assault. The petitioner admitted
that McCurdy’s testimony regarding the offense was essentially correct. The petitioner related that
he met his trial counsel “on the jail docket.” Counsel met with the petitioner three times prior to his
plea. On the day of the plea, the petitioner and counsel reviewed the plea agreement for
approximately three to four minutes. The petitioner testified that he explained to counsel the events
surrounding the offense. Counsel advised him that McCurdy was seriously injured and had been
hospitalized as a result of his injuries.
                 The petitioner contended that until he was incarcerated in the Department of
Correction, he was not aware of the statutory definition of reckless aggravated assault or aggravated
assault. After reading the statute defining reckless aggravated assault, the petitioner concluded that
he was not guilty of the offense.

                The petitioner alleged that if trial counsel had properly investigated his case, counsel
would have learned that McCurdy had not been seriously injured during the altercation. The
petitioner also maintained that an automobile was not a deadly weapon and therefore, he could not
be guilty of reckless aggravated assault. He asserted that he was not trying to hurt McCurdy, but was
simply trying to escape. The petitioner testified, “I don’t believe that I used or displayed a deadly
weapon, and I don’t feel I acted recklessly. I don’t think it fits the definition of reckless aggravated
assault in any way.”

               On cross-examination, the petitioner admitted that he had “a few” prior felony
convictions, although he was unsure of the exact number. He also conceded that he was not
contesting the burglary convictions and that the plea agreement provided that all sentences would
be served concurrently. The petitioner admitted that prior to his guilty plea, trial counsel advised
him that he could potentially receive a twelve year sentence for each burglary conviction, and that
he was eligible for consecutive sentencing. However, the Petitioner was willing to risk receiving a
harsher sentence if the plea agreement were set aside, explaining, “I have never been convicted of
any crime of violence in my life, and it sticks in my craw.”



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                 The petitioner’s trial counsel testified that since being licensed to practice law in
1996, he had been employed by the Public Defender’s Office. He first represented the petitioner on
the “felony jail docket.” He discussed the case with the Assistant District Attorney and learned that
the petitioner had a lengthy criminal record. In addition to the charges involving McCurdy, the
petitioner had been charged with burglarizing three buildings. During two of the burglaries, the
victims were in the building and “one caught [the petitioner] in the act.”

                Prior to the petitioner’s guilty plea, counsel talked with the arresting officer and also
with the victim. The victim’s version of events was consistent with his testimony at the post-
conviction hearing. Counsel discussed with the petitioner the charges and recalled that the petitioner
was upset about the aggravated assault charge. While in the courtroom preparing for the preliminary
hearing, the petitioner asked counsel if he could “do six and a month and go to TDOC.” Counsel
relayed the request to the Assistant District Attorney who agreed to the proposal. Counsel recalled
that at that point “we stopped the hearing, didn’t swear in any witnesses and bound it over on an
information agreement.”

                Counsel testified that the petitioner’s present concerns about the reckless aggravated
assault charge were of the same nature as the concerns he expressed at the guilty plea hearing.
Counsel explained to the petitioner the elements of each charged offense and also advised the
petitioner that in counsel’s opinion, the State could prove that his actions constituted reckless
aggravated assault. Upon the petitioner’s request, counsel asked the State if the plea agreement was
contingent on the petitioner pleading guilty to all charges. The State advised counsel that the
proposal was a “package deal.” He relayed this information to the petitioner who decided to accept
the proposed plea agreement.

                 Counsel was aware that the petitioner had prior felony convictions and noted that the
State was also aware of the convictions. He concluded that based upon the number of prior
convictions, the petitioner would have been classified as a Range II offender and could have possibly
been a Range III offender. According to counsel, the convictions “were all over the place.” Counsel
recalled that the petitioner’s record included convictions in Minnesota, Texas, and a “couple of other
places.” Additionally, the petitioner had served a three year sentence based upon a “Federal gun
conviction.” At the post-conviction hearing, counsel opined that “given his record, it was a very
good offer.”

               At the conclusion of the hearing, the post-conviction court took the matter under
advisement and subsequently entered a lengthy written order denying the petition for post-conviction
relief. The court made detailed findings of fact, specifically accrediting the testimony of trial
counsel, concluding that the petitioner’s claims were without merit.

                                             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. Tenn.
Code Ann. § 40-30-210(f) (1997). “‘Clear and convincing evidence means evidence in which there


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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. 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. State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). In connection with this issue, this court will review the
post-conviction court’s findings of fact de novo with a presumption of correctness; however, any
conclusions of law will be reviewed purely de novo. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001).

               “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. 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 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).

               In the instant case, the record supports the post-conviction court’s denial of relief.1
The post-conviction court found that the petitioner had “affirmatively and repeatedly responded
under oath to inquiries by this court regarding whether he had been advised of his rights; whether
he chose to waive those rights voluntarily, knowingly and free from coercion and undue influence;
and whether his legal counsel had advised him regarding the protections afforded the petitioner by
those rights and the consequences of their waiver.” The petitioner claimed that if he had known the
“elements of the charge against him,” he would not have pled guilty. He further maintained that if
he had known that the victim was not seriously injured, he would not have plead guilty, but would
have insisted on going to trial. Again, the petitioner is alleging ineffective assistance only as to the
reckless aggravated assault charge.

                As we noted, the post-conviction court accredited the testimony of trial counsel that
he discussed with the petitioner the charges against him. He explained to the petitioner the elements
of each offense and evaluated the strength of the State’s case. Counsel testified that he advised the


         1
             The plea agreement, judgment of conviction, and the transcript of the guilty plea hearing referenced by the
trial court are no t include d in the record on app eal.

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petitioner that the aggravated assault charge could not be separated from the other four counts
because the State’s offer was a “package deal.” He also explained to the petitioner that in counsel’s
opinion, the State could prove the elements of reckless aggravated assault. The petitioner then
decided to accept the State’s offer.

                 Likewise, the record reflects that the petitioner’s claim that counsel failed to
adequately investigate his case is without merit. The petitioner testified that counsel advised him
that he had not investigated the facts surrounding the offense and that counsel misrepresented the
extent of the victim’s injuries. Contrastingly, counsel testified at the post-conviction hearing that
prior to the entry of the petitioner’s guilty plea, he spoke with the victim. Counsel explained to the
petitioner that reckless aggravated assault could be based upon either serious bodily injury or use of
a deadly weapon. He explained to the petitioner that in certain circumstances an automobile could
be considered a deadly weapon. Counsel was also aware of the petitioner’s lengthy criminal history.
Counsel stated that he did not otherwise investigate the petitioner’s case because the petitioner
decided to plead guilty. Based upon his review of the case, counsel believed the State made a
favorable offer. Counsel opined that if “his [petitioner’s] case was bound over after a hearing,
anything that happened to him in criminal court would likely be worse.”

                In our view, the evidence does not preponderate against the post-conviction court’s
findings that the petitioner failed to prove that his plea was not knowing and voluntary and that
counsel provided ineffective assistance. Because the petitioner has failed to demonstrate ineffective
assistance, we need not address the issue of prejudice.

                                          III. Conclusion


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




                                               NORMA McGEE OGLE, JUDGE




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