         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 2, 2009

             HOWARD KEITH SALLEE v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Weakley County
                        No. CR95-2008 William B. Acree, Jr., Judge



                 No. W2008-01935-CCA-R3-PC - Filed November 20, 2009


The Weakley County Grand Jury indicted Petitioner, Howard Keith Sallee, for one count of
fraudulently obtaining a controlled substance. Petitioner pled guilty to the offense as charged. The
trial court sentenced Petitioner to ten years as a Range III, persistent offender. Petitioner filed a
petition for post-conviction relief in which he alleged that his guilty plea was not entered voluntarily,
knowingly, and intelligently because he attempted to commit suicide a few days before entering his
guilty plea. He also alleged that his trial counsel was ineffective for failing to order a mental
evaluation. The post-conviction court held an evidentiary hearing. Following the hearing, the post-
conviction court concluded that Petitioner had been unable to prove his assertions. After a thorough
review of the record, we conclude that the evidence does not preponderate against the findings of
the post-conviction court. Therefore, we affirm the denial of Petitioner’s petition for post-conviction
relief.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
CAMILLE R. MCMULLEN , JJ., joined.

J. Kate Long, Dresden, Tennessee, for the appellant, Howard Keith Sallee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney
General; for the appellee, State of Tennessee.
                                             OPINION

       At Petitioner’s guilty plea hearing, the following statement of facts was introduced:


       [Petitioner] went to the CVS Pharmacy in Martin, attempting to get a prescription for
       28 Hydrocodone tablets. The prescription was called in by someone who identified
       themselves as Dr. Stutesbury . . . and requested that [Petitioner’s] girlfriend be
       allowed to fill the prescription. It was determined that Dr. Stutesbury . . . had not
       called the prescription in. [E]ventually it was determined that [Petitioner] was
       responsible for attempting to get that fraudulent prescription passed.


The Weakley County Grand Jury indicted Petitioner for one count of fraudulently obtaining a
controlled substance. On November 1, 2007, Petitioner pled guilty to the offense as charged, and
the trial court sentenced Petitioner to ten years as a Range III, persistent offender. The sentences
were ordered to run concurrently to two prior sentences. Pursuant to the plea, the trial court
dismissed another charge for fraudulent use of a credit card.

                                Petition for Post-conviction Relief

        On March 28, 2008, Petitioner filed a pro se petition for post-conviction relief. On June 10,
2008, Petitioner through counsel, filed an amended petition. Petitioner alleged that he was entitled
to post-conviction relief because he had been afforded ineffective assistance of counsel and his guilty
plea was entered involuntarily.

        The post-conviction court held a hearing on July 31, 2008. There were two witnesses at the
post-conviction hearing, trial counsel and Petitioner. Trial counsel stated that he spoke with
Petitioner before the preliminary hearing on the charge in question, as well as, several times leading
up to the hearing. Trial counsel did not recall Petitioner mentioning any medications he was on for
anxiety or depression. Trial counsel stated that he had no knowledge of any diagnosis for
Petitioner’s alleged mental problems. Trial counsel had asked for a forensic evaluation in other cases
when it appeared that the defendant had a mental defect to such an extent that the defendant cannot
understand the proceedings against him. He did not ask for a forensic evaluation of Petitioner. Trial
counsel found Petitioner to be a very intelligent person. He never had any problems communicating
with him, and Petitioner appeared to understand everything.

        Trial counsel did not recall Petitioner’s attempted suicide immediately before the entry of his
guilty plea. Trial counsel did recall that Petitioner had many medical problems throughout the time
he represented him. However, he could not recall whether Petitioner had bandages on his arms or
not. Trial counsel testified that he would not always order a forensic evaluation in a case where his


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client attempted suicide. He stated that committing suicide is not connected to whether the
defendant understands the proceedings and can participate in their own defense. When asked if he
thought a suicide attempt should put him on warning that the plea should not have been entered that
day, trial counsel stated that if he had thought there was a problem he would have had the plea reset
on the docket.

        Trial counsel stated that he went over the charge with Petitioner and the fact that the State
filed a notice of career offender against him. The charge in question was a Class D felony, and
Petitioner was on probation at the time he was charged. As a career offender on probation, Petitioner
had a potential sentence of up to twelve years to be run consecutively to two prior sentences. In
addition, Petitioner was charged for fraudulent use of a credit card while he was on bond for the
instant offense. Therefore, Petitioner had the potential of yet another consecutive sentence which
would result in an effective sentence of eighteen to twenty-two years.

        Petitioner testified that he did not believe he was mentally competent the day he entered his
guilty plea. He stated that he had been diagnosed with severe panic attacks and severe depression.
He had also been prescribed medication in conjunction with these diagnoses. Petitioner also testified
that he suffers from blackouts where he loses track of time.

         Petitioner stated that he and trial counsel talked several times. He also admitted that trial
counsel was correct about Petitioner having many injuries. Petitioner testified that he did not recall
being in jail or his suicide attempt. Someone else told him the details he recalled about his suicide
attempt. He also did not recall a second suicide attempt. As far as his guilty plea on November 1,
2007, Petitioner remembered coming to the courthouse but did not remember anything else.
Petitioner testified that he did not inform trial counsel about his suicide attempt. Petitioner thought
that trial counsel had mentioned the suicide attempt to him because he thought everyone knew about
the suicide attempt. Petitioner stated that he would not have considered himself to be competent to
plead guilty during that time. He was on medication before being put in jail, but when he was placed
in jail, he stopped receiving his medication.

         Petitioner only recalled one conversation with trial counsel. During that conversation, trial
counsel did not mention that Petitioner had the potential of consecutive sentences. Petitioner
testified that trial counsel only told him he had a potential sentence of sixteen to twenty years.
Petitioner stated that he did not recall seeing trial counsel at any other time, including his guilty plea
hearing, until the post-conviction hearing.

        On August 14, 2008, the post-conviction court filed a written order denying the petition for
post-conviction relief. The post-conviction court found that Petitioner entered a voluntary, knowing,
and intelligent guilty plea. The court also found that Petitioner did not establish that he lacked the
mental capacity to understand the proceedings. The court found that he did establish that he
attempted to commit suicide, but he did not establish that this attempt was as the result of lack of
mental capacity. In addition, the trial court concluded that trial counsel was not aware of the suicide



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attempt, correctly informed Petitioner as to his potential sentence, and met with him on numerous
occasions. Petitioner filed a timely notice of appeal.

                                             ANALYSIS

         The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issues raised, we will afford those findings of fact the weight of a jury verdict, and this court
is bound by the court’s findings unless the evidence in the record preponderates against those
findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138,
147 (Tenn. Crim. App. 1997). This Court may not reweigh or reevaluate the evidence, nor substitute
its inferences for those drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762,
766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are reviewed under a
purely de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                                      Involuntary Guilty Plea

         When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970). The court reviewing the voluntariness of a guilty plea
must look to the totality of the circumstances. See State v. Turner, 191 S.W.2d 346, 353 (Tenn.
Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990).
Specifically, a reviewing court must consider “the relative intelligence of the defendant; the degree
of his familiarity with criminal proceedings; whether he was represented by competent counsel and
had the opportunity to confer with counsel about the options available to him; the extent of advice
from counsel and the court concerning the charges against him; and the reasons for his decision to
plead guilty, including a desire to avoid a greater penalty than might result from a jury trial.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

        Petitioner argues that his plea was not entered knowingly because he had twice attempted
suicide around the time he entered the plea and that trial counsel coerced or mislead him concerning
the plea. The plea colloquy is included in the record. The colloquy demonstrates that the trial court
advised Petitioner of his rights. Petitioner told the trial court that he understood both his rights and
had been advised of the effects of entering a guilty plea. While we agree with the trial court that
Petitioner had proven that he had attempted suicide near the time of the entry of his guilty plea,
Petitioner did not prove that the suicide attempt affected his mental capacity to understand that he
was pleading guilty. In addition, Petitioner provided no evidence, outside of his own testimony, as
to a medical diagnosis regarding his mental capacity at the time. Petitioner did not present a medical
expert to testify as to his mental capacity. As for his argument that he was coerced by trial counsel,
Petitioner’s own testimony does not support this assertion. Trial counsel testified that Petitioner was
alert and able to assist in his own defense. Trial counsel stated that Petitioner seemed to understand


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all the issues surrounding the guilty plea. Because the evidence does not preponderate against the
findings of the trial court that Petitioner’s suicide attempts did not render his guilty plea involuntary,
he is not entitled to relief on this basis.

                                  Effective Assistance of Counsel

         Petitioner also argues that he received ineffective assistance of counsel because trial counsel
did not pursue a mental health evaluation after his attempted suicide. When a petitioner seeks
post-conviction relief on the basis of ineffective assistance of counsel, the petitioner bears the burden
of showing that (a) the services rendered by trial counsel were deficient and (b) that the deficient
performance was prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996).
In order to demonstrate deficient performance, the petitioner must show that the services rendered
or the advice given was below “the range of competence demanded of attorneys in criminal cases.”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975). “Because a petitioner must establish both prongs
of the test to prevail on a claim of ineffective assistance of counsel, failure to prove either deficient
performance or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley,
960 S.W.2d at 580.

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact ...; thus, [appellate] review of [these issues] is de novo” with no presumption of correctness.
Burns, 6 S.W.3d at 461.

       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This
Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief based on
a sound, but unsuccessful, tactical decision made during the course of the proceedings. See id.
However, such deference to the tactical decisions of counsel applies only if counsel makes those
decisions after adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

         Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent
that it affects the voluntariness of the plea. In this respect, such claims of ineffective assistance
necessarily implicate the principle that guilty pleas be voluntarily and intelligently made. See Hill
v. Lockhart, 474 U.S. 52, 56 (1985) (citing Alford, 400 U.S. at 31). As stated above, in order to
successfully challenge the effectiveness of counsel, the petitioner must demonstrate that counsel’s
representation fell below the range of competence demanded of attorneys in criminal cases. See
Baxter, 523 S.W.2d at 936. Under Strickland v. Washington, 466 U.S. 668, 694 (1984), the
petitioner must establish: (1) deficient representation; and (2) prejudice resulting from the deficiency.
However, in the context of a guilty plea, to satisfy the second prong of Strickland, the petitioner must
show that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded


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guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59; see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).

         Trial counsel stated that he was not aware at the time that Petitioner entered his guilty plea
that Petitioner had attempted suicide. Petitioner testified that he did not inform trial counsel about
the suicide attempt. In addition, trial counsel testified that he found Petitioner to be alert and able
to assist in his own defense. Trial counsel stated that if he represented a client who appeared to have
mental issues he would procure a mental evaluation. Trial counsel had represented Petitioner on
more than one occasion before the charges at hand. He never had any questions regarding
Petitioner’s mental capability. Petitioner has not presented any evidence at the post-conviction
hearing to demonstrate that trial counsel should have ordered a mental evaluation. We find that trial
counsel’s failure to order a mental evaluation was not deficient in this case. Therefore, Petitioner
cannot meet the first prong set out in Strickland. We conclude that the evidence does not
preponderate against the trial court’s findings that he was afforded effective assistance of counsel.

       Therefore, this issue is without merit.

                                          CONCLUSION

       For the foregoing reasons we affirm the findings of the post-conviction court.




                                                 ___________________________________
                                                 JERRY L. SMITH, JUDGE




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