        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 1, 2012

            CORRY TYRONE OWENS v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Tipton County
                        No. 6536 Joseph H. Walker, Judge




                 No. W2011-01622-CCA-R3-PC - Filed June 29, 2012




The Petitioner, Corry Tyrone Owens, pled guilty to theft of property valued over $1,000. The
trial court sentenced the Petitioner, pursuant to a plea agreement, to ten years of
incarceration, to be served at 45%. The Petitioner filed a petition for post-conviction relief,
alleging that he had received the ineffective assistance of counsel, and the post-conviction
court dismissed the petition after holding a hearing. On appeal, the Petitioner contends that
he received the ineffective assistance of counsel. After a thorough review of the record and
applicable authorities, we affirm the post-conviction court’s dismissal of his petition.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Lyle A. Jones, Covington, Tennessee, for the appellant, Corry Tyrone Owens.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Mike Dunavant, District Attorney General; and Jason Poyner, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                 I. Facts and Background
                                  A. Guilty Plea Hearing

      This case arises from the Petitioner’s unlawful taking of two aluminum wheelchair
ramps, valued at $3,000. In November 2009, the Tipton County grand jury indicted the
Petitioner for theft of property valued over $1,000. The Petitioner pled guilty to this offense.
During the plea submission hearing, the State provided the trial court with the following
basis for the Petitioner’s guilty plea, informing the trial court that, had the case gone to trial,
it would have proven:

               [On] 4/20/09, at approximately 7:30 p.m., Barry Foster of 883 Bethel
        Road, Atoka, reported two aluminum wheelchair ramps valued at $3,000 were
        taken from his residence.

               On 4/20/09 [the Petitioner] sold two aluminum wheelchair ramps for
        scrap to Worley Brothers Iron and Metal on 14895 Highway 51, Atoka. The
        ramps sold by [the Petitioner] were identified as those taken from the [Foster]
        residence. [The Petitioner] did not have consent of the owner to sell the
        ramps.

               [The Petitioner] is charged with theft of property $1,000 to $10,000,
        which is a D felony. The State would have called Mr. Foster. Also the State
        would have called Tremain Reed, Richard Nessly, who spoke with [the
        Petitioner], and also a Taylor Brewer from Worley Brothers Iron and Metal.

Upon questioning from the trial court, the Defendant stated that he was forty-two years old
and had completed the eleventh grade in high school. The trial court reviewed with the
Defendant his rights, including that he could plead “not guilty” and have a trial during which
he would be represented by an attorney. The trial court informed the Defendant that he could
not be compelled to testify, that he could appeal a jury’s verdict of guilty, and that, by
pleading guilty, he was waiving his rights to a trial and to an appeal. The trial court
explained that the Defendant was pleading guilty to a Class D felony and would be sentenced
as a Persistent Offender, rather than a Career Offender. The Defendant acknowledged that
he understood each of his rights and the plea agreement. The trial court then accepted the
Defendant’s plea of guilty to the theft of property valued over $1,000.

                                     B. Post-Conviction Hearing

       The Petitioner filed a petition for post-conviction relief,1 alleging that he had received
the ineffective assistance of counsel. The Petitioner’s counsel (“Counsel”) testified that he
was a public defender appointed to represent the Petitioner. Counsel testified that, when he


        1
          On April 4, 2011, the Petitioner filed a petition for post-conviction relief. Subsequently, on April
20, 2011, he filed a pro se motion to withdraw his guilty plea. In this appeal, he is proceeding on his petition
for post-conviction relief and not his motion to withdraw his guilty plea.

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was initially appointed to represent the Petitioner, he believed the Petitioner was incarcerated
for his prior convictions. He later learned that the Petitioner had been released, so he sent
his investigator, Billy Dan Huggins, to the Petitioner’s home on multiple occasions in an
attempt to locate the Petitioner. Huggins was unsuccessful in locating the Petitioner.

       Counsel testified that he filed several pretrial motions, one of which was a motion for
discovery from the State. The State offered the discovery, which included several reports
from Detective Nessly indicating that the owner of the ramps had contacted the detective.
Additionally, the State included in discovery pictures of the wheelchair ramps from Worley
Brothers, the location where they had been scrapped, and a photocopy of the Defendant’s
license, which the Defendant provided to Worley Brothers when he scrapped the ramps. The
discovery also included a “scrap ticket” that listed the items received by Worley Brothers
as scrap metal.

       Counsel agreed that the “scrap ticket” listed the ramps as being five feet by eight feet
and that, from the pictures, those dimensions seemed incorrect. Counsel testified that he first
spoke with the Petitioner on the day that the Petitioner’s case was scheduled for trial. At this
time, the two discussed the photographs, the indictment, and the evidence against the
Petitioner. Counsel testified that, to ascertain the value of the wheelchair ramps, he
personally drove to Worley Brothers and spoke with the employees there. He learned that
the Petitioner had been paid two payments, totaling $43.92, for the ramps. Counsel said that
he attempted, unsuccessfully, to contact the victim, Frost, to find out how Frost valued the
ramps. Counsel then called a local distributor of wheelchair ramps and was informed that
the ramps were worth in excess of $1,000 each. Counsel said he saw a similar wheelchair
ramp in a local yard and asked the owner the value of the ramp. The owner told him that the
VA had purchased the ramp, and he believed it cost around $5,000 to purchase the ramp and
also have it installed.

       Counsel agreed that the ramps the Petitioner sold were not new ramps, and Counsel
did not ascertain the value of used wheelchair ramps. Counsel agreed that, had he taken the
case to trial, the jury would have had to determine the value of the wheelchair ramps, and
they would have heard that the Petitioner was paid a little more than $40 for the ramps.
Counsel said that he discussed with the Petitioner that, if the jury believed the ramps to be
worth less than $1,000, they could convict him of the lesser-included offense of theft of
property over $500 but less than $1,000.

       Counsel testified that the Petitioner expressed his desire not to have his case tried.
The State’s only offer, however, was for twelve years to be served at 60%, which was the
worst punishment that the Petitioner could receive if he took the case to trial. Counsel
explained this to the Petitioner, and the two agreed to take the case to trial. A day before the

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trial, the State offered ten years to be served at 45%. Counsel said the Petitioner accepted
the State’s offer.

        On cross-examination, Counsel detailed the numerous attempts he made to contact the
Petitioner. He said, however, the Petitioner did not return his communication attempts until
the morning of the Petitioner’s trial date when he arrived at Counsel’s office. The Petitioner
expressed his desire not to have his case tried, based in part upon the fact that his numerous
prior felony convictions. Counsel said he later learned that the Petitioner had sixteen prior
felony convictions. Counsel said that, because he had not spoken with the Petitioner before
the date of the Petitioner’s first scheduled trial, he prepared the case as if it were going to
trial.

        Counsel testified that the Petitioner’s trial was continued, but the trial court revoked
his bond and placed him into custody. Counsel and the Petitioner met approximately three
to five times while the Petitioner was in custody pending his trial. During these discussions,
the Petitioner and Counsel discussed that Counsel would attempt to prove at trial that the
wheelchair ramps were worth less than $1,000. Counsel also explained to the Petitioner his
sentencing range and release eligibility. The Petitioner said he did not want to go to trial and
wanted to accept the State’s offer of ten years, to be served at 45%.

        David Stockton, a public defender, testified that he represented the Petitioner when
his case was before the General Sessions Court. He said the two discussed having a bench
trial to determine the value of the wheelchair ramps. Stockton said it was not “really
conceivable that the [value of the ramps] would be – a misdemeanor amount . . . .” Stockton
testified that the victim placed the value of the ramps at somewhere more than $5,000 and
that the State’s discovery file showed the ramps valued between $4,000 and $5,000. He
recalled Counsel calling businesses to determine what a replacement value for the ramps
would be to ascertain their fair market value.

       The Petitioner testified that he pled guilty in this case based upon Counsel’s advice.
He explained, however, that the only reason he had done so was because he did not believe
that Counsel was “trying to help [him.]” The Petitioner said Counsel “told [him] to make the
plea.” He said he asked Counsel to have a property hearing in order for the trial court to
establish the value of the property, but Counsel said he could not ask for such a hearing. He
said he informed Counsel that Stockton had requested a bench trial to determine the
property’s value, and Counsel informed him that Counsel did not believe that was in the
Petitioner’s best interest.

      The Petitioner testified that Counsel told him to plead guilty, and the Petitioner asked
Counsel if he could get the State to agree to a sentence of less than twelve years, to be served

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at 60%. Counsel later informed him the State had agreed to ten years, to be served at 45%.
He again asked Counsel for a valuation hearing, but Counsel informed him that Counsel
could not request such a hearing.

        The Petitioner looked at the pictures contained in the State’s discovery file and said
Counsel never showed him those pictures. The Petitioner said he was not denying that he
took the wheelchair ramps but that the ramps were four feet by six feet, smaller than listed
on his indictment. The Petitioner said Counsel never showed him the indictment, so he was
unable to point out this discrepancy to Counsel.

       The Petitioner then said that he first learned he had been indicted for stealing two
four-foot by eight-foot ramps when he filed his petition for post-conviction relief. He said
he was never informed of such during the plea hearing. The Petitioner said that, had he been
so informed, he would have told them that the measurements were wrong. The Petitioner
said he conducted his own research and discovered that a new four-foot by eight-foot ramp
cost $1,800 but that a four-foot by six-foot one cost closer to $ 618. Additionally, the ramps
that he stole were not new and were, therefore, worth less than the new ones.

        On cross-examination, the Petitioner testified that he was present during his
arraignment, but he maintained he never saw a copy of his indictment or the State’s notice
to seek enhanced punishment. He said he knew that he could have been sentenced to twelve
years of incarceration had a jury convicted him. The Petitioner acknowledged that he lived
at the address where Counsel had sent the letters. He did not acknowledge receiving those
letters. The Petitioner said his decision to plead guilty was based on Counsel not helping
him. The Petitioner testified that Counsel told him that the jury would decide the value of
the property. The Petitioner said his response was “Well, how many people y’all know that
done won in trial here?” Partly based on this skepticism, the Petitioner decided to plead
guilty.

        The Petitioner acknowledged that, during his guilty plea hearing, he told the trial court
that he understood what he was doing by pleading guilty. He said he also told the trial court
that he understood his rights, including his waiver of the right to a jury trial and appeal. He
said he told the trial court that he was satisfied with Counsel’s representation. The Petitioner
said he felt as if his sentence was too long for his offense.

      Based upon this evidence, the trial court dismissed the Petitioner’s petition for post-
conviction relief. The post-conviction court found:




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              The [P]etitioner has not shown his attorney was deficient in any regard.
       A hearing was conducted for probation or alternative sentencing, and his
       attorney presented this issue [of valuation]. The request was denied.

              The Court finds that the [Petitioner] actually understood the
       significance and consequences of the particular decision to plea[d] guilty and
       the decision was not coerced. The [Petitioner] was fully aware of the direct
       consequences of the plea, including the sentence actually received. He failed
       to show that any promise or inducement was made for the entry of the plea
       other than the State agreeing to an agreed sentence at a lesser range tha[n]
       Career Offender.

              The Court finds that Mr. Stockton and [Counsel] provided adequate
       assistance.

              Petitioner failed to show any deficient performance by his attorneys or
       that he was prejudiced.

             A plea hearing is not a mere formality. It serves to insure that the
       defendant understands his rights and the terms of his plea. State v. Neal, 810
       S.W.2d 131.

              He alleges that his attorney did not properly investigate his case. [The]
       Petitioner failed to show in what way his attorney failed to investigate, or how
       he was prejudiced by the failure to investigate.

              The Court finds that [the P]etitioner has failed to establish the factual
       allegations contained in his petition by clear and convincing evidence. Tenn.
       Code Ann. § 40-35-210. The [P]etitioner has not shown that (a) the services
       rendered by trial counsel were deficient and (b) the deficient performance was
       prejudicial. The [P]etitioner has not shown that the services rendered or the
       advice given was below the range of competence demanded of attorneys in
       criminal cases. The [P]etitioner has not shown that there is a reasonable
       probability that, but for counsel’s deficient performance, the result of the
       proceeding would have been different.

It is from this judgment that the Petitioner now appeals.

                                        II. Analysis



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       On appeal, the Petitioner contends that the trial court erred when it dismissed his
petition because Counsel was ineffective. He asserts that Counsel did not adequately
ascertain the value of used wheelchair ramps. Had he done so, the Petitioner asserts, Counsel
would have determined that the used wheelchair ramps were valued at “barely . . . over
$1,000.” The State counters that Counsel went to “great lengths” to try to establish the value
of the wheelchair ramps and determined they were valued at more than $1,000. The State
contends that the Petitioner has failed to prove that Counsel was deficient or that Counsel’s
performance prejudiced the Petitioner. We agree with the State.

        In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2006). Upon our review, the trial judge’s findings of fact are given the effect and
weight of a jury verdict, and this Court is “bound by the trial judge’s findings of fact unless
we conclude that the evidence contained in the record preponderates against the judgment
entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus,
this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the
credibility of witnesses, the weight and value to be given their testimony and the factual
issues raised by the evidence are to be resolved by the trial court, not the appellate courts.
Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997). A post-conviction court’s conclusions of law, however, are subject to a purely
de novo review by this Court, with no presumption of correctness. Fields v. State, 40 S.W.3d
450, 457 (Tenn. 2001).

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:

       First, the [petitioner] must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the [petitioner] by the Sixth
       Amendment.         Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

                                               -7-
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be
highly deferential and “should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.
Finally, we note that a defendant in a criminal case is not entitled to perfect representation,
only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,
466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective
merely because a different procedure or strategy might have produced a different result.
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The fact that a
particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. However, deference to matters of strategy and tactical choices
applies only if the choices are informed ones based upon adequate preparation.” House, 44
S.W.3d at 515 (internal quotations omitted).

        If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; see also Nichols v.
State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694; see also Harris v. State,
875 S.W.2d 662, 665 (Tenn.1994). In the context of a guilty plea as in this case, the effective
assistance of counsel is relevant only to the extent that it affects the voluntariness of the plea.

                                                -8-
Therefore, 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 guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also
Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        In the case under submission, we agree with the post-conviction court that the
Petitioner is not entitled to post-conviction relief. Counsel did, in fact, investigate the value
of the wheelchair ramps. He first called Worley Brothers and learned that they had paid little
more than $40 for the ramps. Following up, Counsel called a distributer of similar ramps and
learned that they were valued in excess of $1,000 each. He asked a man having a similar
ramp the ramps value and was told that it was more than $5,000 installed. Counsel also
attempted unsuccessfully to contact the victim. Counsel informed the Petitioner that the
valuation of the property would be left to the jury to decide and that he would attempt to
prove that its value was less than $1,000. The Petitioner, however, expressed his desire not
to have his case presented to a jury, opting instead to plead guilty in exchange for a reduced
sentence.

       At the post-conviction hearing, the Petitioner contended that Counsel should have
searched “Craigslist” and “eBay” to determine the value of the used wheelchair ramps that
he stole. He offered a document showing that the actual fair market value might be “barely”
more than $1,000. We conclude that the Petitioner did not prove by clear and convincing
evidence that Counsel’s performance was deficient or that he was prejudiced by Counsel’s
performance. The Petitioner is, therefore, not entitled to relief.

                                       III. Conclusion

      In accordance with the aforementioned reasoning and authorities, we affirm the post-
conviction court’s dismissal of the Petitioner’s petition for post-conviction relief.


                                                     ___________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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