        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs August 19, 2015

          BILLY DREW MASSENGILL v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Cocke County
                       No. 5630     Rex Henry Ogle, Judge


                No. E2014-02431-CCA-R3-PC – Filed August 31, 2015


The petitioner, Billy Drew Massengill, appeals the denial of post-conviction relief from
his 2013 Cocke County Circuit Court guilty-pleaded convictions of the sale of less than
0.5 grams of cocaine, the sale and delivery of Oxymorphone, driving on a revoked
license, theft of $500 or less, and failure to appear, for which he received an effective
sentence of eight years. In this appeal, the petitioner contends that his guilty pleas were
not knowingly and voluntarily entered and that he was denied the effective assistance of
counsel. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Jessica S. Sisk, Newport, Tennessee, for the appellant, Billy Drew Massengill.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Assistant
Attorney General; James B. Dunn, District Attorney General; and William Brownlow
Marsh, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

              On November 9, 2013, the petitioner entered pleas of guilty in five separate
cases to one count each of the sale of less than 0.5 grams of cocaine; the sale of
Oxymorphone, a Schedule II controlled substance; driving on a revoked license; theft of
property valued at $500 or less; and failure to appear in exchange for a total effective
sentence of eight years‟ incarceration as a Range II offender. The transcript of the guilty
plea colloquy contains the following factual summary of the offense:
       If it please the [c]ourt, Case No. 3707, the [S]tate‟s
proof would be on or about December the 8th, 2011, that
members of the Cocke County Sheriff‟s Department, using a
confidential informant, went to 508 Paintbrush Way, which is
the princip[al] residence, or was the princip[al] residence of
the [petitioner] at the time. This confidential informant went
inside and made contact with the [petitioner] and purchased
two twenty milligram Opana pills for eighty dollars. Those
pills were sent to the crime lab and tested and came back as
Schedule II oxymorphone. All that occurred in Cocke
County.

       Case No. 3706, Your Honor, the [S]tate‟s proof would
be on or about January 26, 2012, that the Cocke County
Sheriff‟s Department, using a confidential informant, traveled
to [the petitioner‟s] residence to purchase some more pills.
Upon arrival at the home [the petitioner] stated that he didn‟t
have any pills but delivered to the confidential informant
crack cocaine, and told him to try it and see if he liked it.
That cocaine was sent off to the crime lab and came back as
cocaine base[] .02 grams, which is less than half a gram. All
that occurred in Cocke County.

       Case No. 3384, Your Honor, the [S]tate‟s proof would
be on or about December 13th, 2011, that the [petitioner] took
a hundred and twenty dollars cash in twenty dollar bills from
a confidential informant in exchange for two thirty milligram
Opana pills, prescription pills. [The petitioner] took the
money from the informant, walked in the house and wouldn‟t
return the money [] nor provide the pills. He‟s charged with
theft. And all that occurred in Cocke County.

       Case No. 3481, Your Honor, the [S]tate‟s proof would
be on or about October 1st, 2011, that the [petitioner] was
stopped after being clocked going forty-one miles an hour in
a twenty mile an hour zone, and they checked his license and
it showed to be suspended for failure to satisfy a citation. All
that occurred in Cocke County.

      And finally, 4510, Your Honor, the [S]tate‟s proof
would be on or about March the 25th, 2013, the [petitioner]
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             was to be in court on the sale and delivery charges that he just
             pled to, and he failed to appear. All that occurred in Cocke
             County.

The guilty plea hearing transcript evinces that the trial court conducted a thorough
Tennessee Rule of Criminal Procedure 11(b) colloquy with the petitioner. In the
colloquy, the trial judge informed the petitioner of the nature and sentencing range of
each charge, and the petitioner indicated his understanding of the potential sentencing.
The petitioner also confirmed that he had consulted with trial counsel about his decision
to plead guilty and that he freely and voluntarily made the decision to accept the plea
agreement.

              Following the entry of the plea agreement, the petitioner filed a timely
petition for post-conviction relief, alleging that he was deprived of the effective
assistance of counsel and that his guilty pleas were not knowingly and voluntarily made.
On November 10, 2014, the post-conviction court conducted an evidentiary hearing.

               At the evidentiary hearing, the petitioner conceded that, at the plea
submission hearing, he had acknowledged an understanding of the range of penalties for
the charges against him and had agreed that he had voluntarily decided to accept the plea
agreement. In response to the question of why his pleas were involuntary, the petitioner
responded that, at the time he entered his plea, he was “asking counsel to get the evidence
and go over the evidence with [him] because the drug cases” were inaccurate. The
petitioner testified that he only met with trial counsel on one occasion and that counsel
never reviewed his discovery materials with him. When asked on cross-examination why
he had failed to voice “any other reason” why he had pleaded guilty, the petitioner
responded that he “just wanted to get it over with.”

               Trial counsel testified that he met with the petitioner “two or three times”
and that they spoke on the telephone “more than that.” Trial counsel recalled meeting
with the petitioner “[a]t least twice” during court appearances. Trial counsel stated that
he had reviewed the discovery materials with the petitioner, recalling a specific incident
when he and the petitioner were reviewing a puzzling exhibit. Trial counsel
acknowledged that he was unable to listen to the audio recordings of the drug transactions
with the petitioner because trial counsel “had no method to be able to do that.” Trial
counsel did, however, discuss the recordings with the petitioner and the way in which the
State would likely use the recordings against him. Trial counsel testified that the
petitioner never provided him with the names of any potential witnesses. Trial counsel
recalled that the petitioner‟s prior counsel provided him with the discovery materials in
her possession, and trial counsel stated that he filed his own discovery motions as well.

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                With respect to sentencing, trial counsel testified that he reviewed the
State‟s notice of enhancement with the petitioner to ensure that the notice was accurate.
In addition, trial counsel instructed the petitioner that his guilty pleas would result in
“rang[ing] him up” if he were to be convicted of any future crimes. Trial counsel
testified that he explained to the petitioner that the drug convictions were Class C felonies
and that the failure to appear conviction was a Class E felony, and trial counsel stated that
he believed the petitioner understood. Trial counsel acknowledged that the State‟s
original offer was a sentence of 12 years at 45 percent service and that he had
successfully negotiated a sentence of eight years at 35 percent service.

               In the post-conviction court‟s order denying post-conviction relief, the
court found that the petitioner, in entering into the plea agreement, “understood the
terms” and “freely, knowingly, and voluntarily pled guilty.” The court further found that
the petitioner‟s convictions were “not based on an unlawfully induced guilty plea” and
were not “entered without understanding the nature and consequences of the plea.” With
respect to trial counsel‟s representation of the petitioner, the post-conviction court found
that trial counsel “adequately and effectively represented [p]etitioner throughout the
proceedings,” that trial counsel “met with [p]etitioner, discussed the facts of the cases,
possible defenses, advised [p]etitioner of his constitutional rights, and the range of
penalties that he was facing.” The post-conviction court concluded that the petitioner
“was not denied the effective assistance of counsel.”

               In this appeal, the petitioner reiterates his claims of ineffective assistance of
counsel and involuntary guilty pleas, claiming that trial counsel performed deficiently by
failing to review all discovery materials with him and that he simply did not understand
the nature and consequences of his plea agreement, thus rendering his plea unknowing
and involuntary. The State contends that the post-conviction court did not err by denying
relief.

              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 abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court‟s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal 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).
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               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, 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
that 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. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. 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).

               Apart from whether a guilty plea is the product of ineffective assistance of
counsel, it is invalid if otherwise made unknowingly or involuntarily. “Whether a plea
was knowing and voluntary is an issue of constitutional dimension because „[t]he 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 v. Alabama, 395 U.S. 238, 242-43 (1969)); see also
State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003) (citing Blankenship v. State, 858
S.W.2d 897, 904 (Tenn. 1993)).

              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
                                            -5-
v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

             In our view, the record fully supports the ruling of the post-conviction
court. The record of the guilty-plea submission hearing and the implicitly accredited
testimony of the petitioner‟s trial counsel evince the petitioner‟s understanding of the
proceedings and his willingness to enter into the plea agreement. Moreover, the record
demonstrates that trial counsel rendered effective assistance in representing the petitioner.

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

                                                  _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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