        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 24, 2010

    IVAN MORENO a/k/a FERNANDO FILETO a/k/a ROBERTO LEPE-
             CERVANTES v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                          No. 207-A-208     Steve Dozier, Judge



                    No. M2009-00393-CCA-R3-PC - Filed June 21, 2010


Petitioner, Ivan Moreno, a/k/a Fernando Fileto a/k/a/ Roberto Lepe-Cervantes, pled guilty
to felony murder, aggravated rape, and especially aggravated robbery. Petitioner received
an effective sentence of life in prison without the possibility of parole. Petitioner then filed
a pro se petition for post-conviction relief claiming ineffective assistance of counsel and an
involuntary guilty plea. After a hearing, the post-conviction court denied relief. Petitioner
seeks a review of the post-conviction court’s decision. Because Petitioner has failed to prove
that his guilty plea was involuntary or that he received ineffective assistance of counsel, 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.

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ., joined.

Jeremy W. Parham, Nashville, Tennessee, for the appellant, Ivan Moreno.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Victor S. Johnson, District Attorney General, and Rachel Sobrero, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                         OPINION
                                     Factual Background

      In January of 2007, Petitioner was indicted for first degree premeditated murder, two
counts of first degree felony murder, aggravated rape, especially aggravated robbery,
coercion of a witness, two counts of assault, resisting arrest, and the intentional killing of an
animal.

       In May of 2007, Petitioner pled guilty to one count of felony murder, one count of
aggravated rape, and one count of especially aggravated robbery. Petitioner received a life
sentence without the possibility of parole for the felony murder conviction. In addition,
Petitioner received twenty-five year sentences for the aggravated rape and especially
aggravated robbery convictions, to be served concurrently with each other and with his life
sentence.

      At the guilty plea hearing, the attorney for the State relayed the facts of the underlying
convictions as follows:

       [O]n August twenty-first, two-thousand-six, several residents of the Cross
       Timbers neighborhood in Bellevue called police to report a reckless driver.

              Police officers responded to the neighborhood and found an empty car
       that matched the description of the car that was being driven recklessly.

              ....

              The car’s tag number was run through the police computer system; and
       it was learned that the owner, [Petitioner] lived at Two-Thirty-Three Cross
       Timbers and that he had an outstanding misdemeanor driver’s license warrant.

             Ivan Moreno’s wife was present when the police arrived at Two-Thirty-
       Three Cross Timbers. She gave the officers consent to search the home. Ivan
       Moreno was not present.

              As the police left the residence, they spotted Ivan Moreno behind the
       house next door at Two-Twenty-Nine Cross Timbers. This was the home of
       his neighbor, seventy-four-year-old Miss Mary Sadler.

              The officers observed that [Petitioner] had blood on him. He was taken
       into custody on the outstanding warrant.

              Officer Al Walls went to Two-Twenty-Nine Cross Timbers to
       investigate. He discovered droplets of blood on the deck stairs leading up to
       the rear entrance.



                                               -2-
              Officer Walls looked through the glass sliding doors, which were
       closed, and saw Mary Sadler lying on the floor amid a scene of blood. Several
       items in the house were overturned and broken. Drawers had been opened and
       Miss Sadler’s wallet was on the floor in a bedroom.

               Her pet cockatiel, Aussie, died as a result of injuries sustained from
       [Petitioner]. Its wing was broken in four places, including one spiral
       compound fracture.

              [Petitioner] took several items from the home of Mary Sadler, including
       a crucifix, a Game Boy, a karaoke machine, a credit card, a watch and an Ipod.

               A crumpled check was found in the yard, in between Miss Sadler and
       [Petitioner’s] home. It was a check from Miss Sadler to [Petitioner] for forty
       dollars. The check had a notation on it that it was, quote, a loan for Joanna,
       [Petitioner’s] daughter.

              [Petitioner] struck Mary Sadler about the head and body several times
       with a large, hard object, causing extensive skull fractures. He strangled her
       with a black cable ligature, causing extensive fractures of the hyoid bone and
       thyroid cartilege [sic].

              [Petitioner] removed a part of Miss Sadler’s clothing and penetrated her
       anus and rectum with a glass liquor bottle, leaving it inside her. The Medical
       Examiner determined that the cause of death was multiple blunt-force injuries
       and strangulation.

             [Petitioner] was interviewed by the Metro Police and admitted to killing
       Mary Sadler. All of this occurred in Davidson County.

       After the guilty plea, Petitioner filed a pro se petition for post-conviction relief. In the
petition, Petitioner alleged that trial counsel failed to properly investigate and prepare for the
case, failed to file a motion to suppress, and failed to file a motion for a psychiatric
evaluation. Further, Petitioner alleged that his guilty plea was involuntary.

        Counsel was appointed for Petitioner. The post-conviction court held a hearing on
the petition. At the hearing, Petitioner testified that at the time of his arrest and subsequent
guilty plea, he spoke a little English. Petitioner’s primary language was Spanish. According
to Petitioner, he did not understand very much English at all. Petitioner claimed that trial
counsel promised to get a Spanish-speaking psychologist to evaluate him prior to trial.

                                                -3-
Petitioner thought that he was meeting with a “Vanderbilt student” prior to the evaluation by
the psychologist. Petitioner actually met with Terrence Flynn, an intern from the Vanderbilt
School of Social Work who was working in the Public Defender’s Office.

        During Petitioner’s meetings with Mr. Flynn, Petitioner explained that he kept a
picture of the victim in his cell so that he could pray for her constantly. Petitioner explained
that he felt better after praying for the victim, but Mr. Flynn suggested that Petitioner throw
the picture away. Mr. Flynn promised to write the information down. Petitioner told Mr.
Flynn about his teenage suicide attempt and explained that “everything was caused by
alcohol.” Petitioner claimed that he was suffering from depression and “seeing weird things
in [his] cell, like animals and other stuff.” Petitioner also told Mr. Flynn that he “wanted to
commit suicide in [his] cell” at one point.

       Petitioner testified at the hearing that he was taking medication for depression and that
the medication did not help. Petitioner insisted that he informed trial counsel about the
medication and his hallucinations prior to the entry of the guilty plea and trial counsel told
Petitioner she would see what could be done. Petitioner admitted that he had seen a
psychologist at the criminal justice center but argued that the psychologist said “nothing
could be done and that it was normal.” Petitioner complained that the psychologist did not
speak Spanish. Petitioner was unable to explain what part of his mental condition or mental
health history should have been investigated by trial counsel.

       Petitioner informed the post-conviction court that after his teenage suicide attempt,
he saw a psychologist in a “government hospital in Mexico.” According to Petitioner, this
psychologist left the hospital shortly after their meeting and did not return. Petitioner also
recalled attending a drug and alcohol rehabilitation program. Petitioner did not provide the
names of either of these medical facilities or documentation to support his claims.

       Petitioner testified that he sought assistance from the mental health clinic twice while
being housed at the criminal justice center. Petitioner acknowledged that he was put in touch
with an interpreter but that neither of the consultations resulted in a mental health diagnosis.

       Petitioner felt that his depression prevented him from adequately assisting his
attorney. Further, Petitioner stated that his depression caused him to feel pressured during
the plea process. Petitioner did not recall the crimes for which he entered the plea or his
confession to police. In fact, Petitioner insisted that he repeatedly told trial counsel that he
could not remember the crimes. Additionally, Petitioner thought that he was intoxicated
during the interview with police during which he admitted to killing the victim.




                                              -4-
        Trial counsel testified at the hearing on the post-conviction petition. According to
trial counsel, she communicated with Petitioner in Spanish. Trial counsel recalled Petitioner
informing her about his history of depression and substance abuse. Trial counsel discussed
a psychological exam with Petitioner and understood that the exam would have to be
conducted in Spanish. Trial counsel tried to contact four different people to perform the
evaluation. Additionally, trial counsel contacted the attorney with the Mexican Capital Legal
Assistance Project. Trial counsel was eventually able to locate expert Antonio Puente. Trial
counsel wanted to consult with Puente in hopes of mitigating Petitioner’s sentence.
Unfortunately, they were unable to secure an evaluation prior to the date of the plea.
However, after reviewing the evidence, trial counsel felt that a defense of intoxication or
diminished capacity would not be successful. Trial counsel primarily wanted to obtain the
mental evaluation for mitigation in sentencing.

        At the conclusion of the post-conviction hearing, the post-conviction court took the
matter under advisement. In a separate order, the post-conviction court explained that
“Petitioner failed to prove any factual allegations by clear and convincing evidence that his
counsel was ineffective.” Specifically, the post-conviction court accredited the testimony of
trial counsel that she met with Petitioner and fully explained the consequences of the plea.
Further, the post-conviction court determined that Petitioner understood the nature and
consequences of the plea as evidenced by the thorough questioning at the plea hearing.
Moreover, the post-conviction court noted that Petitioner himself acknowledged that it was
his decision to enter the plea, even though it was difficult to make that decision. The post-
conviction court also reviewed Petitioner’s statement. The post-conviction court pointed out
that “[P]etitioner used English at times when he was communicating with the police and no
legal basis exists for suppressing the statement.” The post-conviction court also found that
trial counsel met with Petitioner several times and determined that there was no basis for a
mental evaluation. In conclusion, the post-conviction court noted that:

       [P]etitioner has failed to prove by clear and convincing evidence the factual
       allegations in his petitions. He has not demonstrated by the requisite standard
       that counsel’s performance was deficient or that counsel was not acting with
       the competence required of attorneys in criminal cases, or that he would have
       determined to go to trial absent the deficient performance. The Court believes
       [P]etitioner knowingly and voluntarily agreed to the plea agreement . . . .”

The post-conviction court denied relief and dismissed the petition.

       Petitioner appeals, challenging the dismissal of the petition for relief.




                                             -5-
                                         Analysis
                            Post-Conviction Standard of Review

       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 post-conviction 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 re-evaluate 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 Shields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                             Ineffective Assistance of Counsel

        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). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “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 v. State,
960 S.W.2d 572, 580 (Tenn. 1997).

       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. 1994).

                                             -6-
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 North Carolina v. Alford, 400
U.S. 25, 31 (1970)). As stated above, in order to successfully challenge the effectiveness of
counsel, 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), 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, Petitioner must show that “there is
a reasonable probability that, but for counsel’s errors, he would not have pleaded 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).

       When analyzing a guilty plea, we look to the federal standard announced in Boykin
v. Alabama, 395 U.S. 238 (1969), and the State standard set out in State v. Mackey, 553
S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin,
the United States Supreme Court held that there must be an affirmative showing in the trial
court that a guilty plea was voluntarily and knowingly given before it can be accepted.
Boykin, 395 U.S. at 242. Similarly, our Tennessee Supreme Court in Mackey required an
affirmative showing of a voluntary and knowing guilty plea, namely, that the defendant has
been made aware of the significant consequences of such a plea. Pettus, 986 S.W.2d at 542.

       A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial
court must determine if the guilty plea is “knowing” by questioning the defendant to make
sure he fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S .W.2d at 904.

       On appeal, Petitioner complains that trial counsel committed “multiple errors in
representing him” but addresses only the failure of trial counsel to “procure a mental health
evaluation” prior to the entry of the guilty plea. Petitioner additionally contends that his
guilty plea was involuntary; that trial counsel “pressured” him in to pleading guilty.



                                               -7-
       At the post-conviction hearing, Petitioner claimed that he met with the intern from
Vanderbilt in preparation for a mental health evaluation. During these meetings, Petitioner
informed the intern about his past suicide attempts, depression, hallucinations, and suicidal
thoughts. Petitioner complained that trial counsel failed to secure a mental evaluation despite
her knowledge of Petitioner’s problems. Trial counsel testified that Petitioner’s mental
health would be beneficial at sentencing and that she tried to contact several experts who
could assist in the evaluation process. Trial counsel even contacted an attorney with the
Mexican Capital Legal Assistance Program.

        In the order denying post-conviction relief, the post-conviction court accredited the
testimony of trial counsel. Petitioner presented no evidence concerning his mental health
beyond his own testimony. The post-conviction court determined that the decision to forgo
a mental evaluation was a tactical decision made by trial counsel after preparation for the
case. Again, we will not second-guess a reasonably-based trial strategy that is made after
adequate preparation for the case. Adkins, 911 S.W.2d at 347; Cooper, 847 S.W.2d at 528.
“[Q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact,” and the post-conviction court’s credibility determinations are conclusive on appeal
unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). We find no evidence to preponderate against the findings of the trial court. Further,
Petitioner has failed to show that there is a reasonable probability that the proceedings would
have concluded differently had counsel performed the suggested task. Vaughn v. State, 202
S.W.3d 106, 120 (Tenn. 2006) (citing Strickland, 466 U.S. at 687). The evidence does not
preponderate against the determination of the post-conviction court.

       Moreover, Petitioner has failed to show that but for trial counsel’s alleged
deficiencies, he would have refused to plead guilty and insisted on going to trial. The
transcript of the guilty plea hearing reflects that the trial court went to great lengths to discuss
the ramifications of the guilty plea with Petitioner. There was an interpreter present who
translated everything at the hearing. Petitioner was thoroughly questioned by the trial court
to ascertain whether he understood the effects of the plea.

       Petitioner complains that he had no choice but to plead guilty, he did not understand
what he was doing, and trial counsel pressured him to plead guilty. In other words, he claims
he was coerced into pleading guilty. After hearing the evidence, the post-conviction court
accredited the testimony of trial counsel. The plea hearing indicates that Petitioner knew
what he was doing, understood the plea, and agreed that it was what he wanted to do to
resolve the case. Petitioner has failed to show by clear and convincing evidence that he
received ineffective assistance of counsel or that his guilty plea was involuntary. We
recognize that because of a language barrier, Petitioner may have had difficulty

                                                -8-
understanding portions of the plea. However, the transcript from the guilty plea reveals that
the terms of the plea were fully and completely explained to Petitioner through an interpreter
prior to the entry of the plea. Finally, even though Petitioner claims that he had no choice
but to plead guilty, the plea hearing indicates that Petitioner knew what he was doing,
understood the plea, and agreed that it was what he wanted to do to resolve the case.
Petitioner himself admitted to the post-conviction court that he chose to plead guilty.
Petitioner has failed to show by clear and convincing evidence that he received ineffective
assistance of counsel or that his guilty plea was involuntary. Petitioner is not entitled to
relief.

                                         Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




                                             -9-
