        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 10, 2013

                     JOE N. HILL v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for McNairy County
                       No. 2772     J. Weber McGraw, Judge




              No. W2012-02224-CCA-R3-PC - Filed September 30, 2013


The petitioner, Joe N. Hill, appeals the denial of post-conviction relief from his McNairy
County Circuit Court guilty-pleaded conviction of incest, for which he received a sentence
of three years’ probation. In this appeal, the petitioner contends that he was denied the
effective assistance of counsel and that his guilty plea was not knowingly and voluntarily
entered. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and D. K ELLY T HOMAS, J R., JJ., joined.

Ryan B. Feeney, Selmer, Tennessee, for the appellant, Joe N. Hill.

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

                                         OPINION

               On June 16, 2011, the petitioner, originally charged with rape and incest,
entered a plea of guilty to incest in exchange for an agreed sentence of three years’ probation
and dismissal of the rape charge. The transcript of the guilty plea colloquy contains the
following factual summary of the offense:

                     If this case were to go to trial, the State would be able to
              show that on or about October 27th of 2010, Deputy Allen
              Strickland, McNairy County Sheriff’s Department, received a
              report from [the victim] that she was the victim of a forcible
              sexual encounter with the defendant, Joe Hill. The usual
              protocol was followed regarding doctor visits and also evidence
              gathered that the alleged [victim] . . . was, in fact, the niece of
              the defendant, Joe Hill, his brother’s daughter. Subsequent
              investigation by both the sheriff’s department and our office
              have raised serious doubt as to whether or not this was a forcible
              sexual encounter. There is, however, Mr. Hill’s statement to the
              officer that there was sexual contact between the two, at least in
              the form of fellatio.

               On December 30, 2011, the petitioner filed a pro se petition for post-conviction
relief, and the petitioner’s counsel filed an amended petition on June 11, 2012. In his
amended petition, the petitioner claimed that he was deprived of the effective assistance of
counsel and that his guilty plea was not knowingly, voluntarily, and intelligently made. In
support of his claims, the petitioner alleged that neither his counsel nor the trial court
informed him of the lifetime supervision requirement attendant to his conviction of incest.

               At the evidentiary hearing, the prosecutor explained that the judgment
incorrectly indicated that the petitioner was subject to community supervision for life when
his conviction offense did not actually carry the lifetime supervision requirement. The
prosecutor noted that the defendant was not told that he would be subject to community
supervision for life but was told that he would be required to merely register as a sex
offender for the duration of his life, which was a correct statement of the law. The
prosecutor asked the post-conviction court to enter a corrected judgment form removing the
offending information. Post-conviction counsel agreed with the prosecutor’s assessment and
agreed that the court could enter a corrected judgment if it found that the error was “only an
error of administration.” Counsel nevertheless argued that the misinformation regarding the
lifetime supervision requirement rendered the petitioner’s guilty plea involuntary. The post-
conviction court deemed the judgment error “ministerial” and entered a corrected judgment
form.

               Trial counsel testified that he was retained to represent the petitioner shortly
after the petitioner’s arrest. Counsel said that he waived the petitioner’s right to a
preliminary hearing because the petitioner did not want his wife to hear the audio-recorded
statement he provided to police where he admitted sexual contact with the victim. After the
petitioner’s indictment, trial counsel filed “all the generic motions,” including a motion “to
suppress any and all statements.” Counsel said that because he determined that no legal basis
existed to pursue suppression of the petitioner’s statement, he did not ask that the motion be
heard. Counsel said that the petitioner acknowledged having sexual contact with the victim

                                              -2-
and that he told trial counsel “[t]hat he had paid her some money and maybe she had stolen
some checks from him.”

               Counsel testified that after negotiating the plea agreement with the State, he
explained to the petitioner that the petitioner would have to register as a sex offender and
“that it was for life but in certain situations he may apply back after so many years to get off
of it.” Counsel said that the petitioner did not appear to be under the influence of an
intoxicant when he entered the plea and that the petitioner indicated that “he was satisfied
with his representation.” Counsel said that it was his “understanding [that] the victim did
testify before the [g]rand [j]ury,” but he could not recall whether he told the petitioner that
she had done so.

                The petitioner testified trial counsel told him that “they could do something
about” his “more or less admission” based upon his treatment at the hands of police. The
defendant said that when officers arrived at his residence to investigate the victim’s claims,
one officer placed handcuffs on him that were too tight and another forced him to turn off
his cellular telephone. He stated that once the sheriff arrived, he agreed to go to the police
station voluntarily because he believed the officers “were investigating” the victim rather
than a complaint that he had raped her. The petitioner acknowledged that he admitted having
sexual contact with the victim, explaining that he did so “[b]ecause of what . . . he was
talking about and she was talking about wearing a wire.”

               The petitioner testified that he had been under the care of a psychiatrist “for
probably 15 years” and that he took nine medications to treat his unspecified mental illness.
The petitioner said that trial counsel actually suggested waiving the preliminary hearing to
avoid having his wife hear the recorded admission of sexual contact with the victim. The
petitioner said that he only agreed to plead guilty because he could not afford to hire another
lawyer and trial counsel had failed to perform any work on the case. The petitioner said that
he could not recall trial counsel’s explaining the sexual offender registry but that he “heard
that in court” when he entered his plea. The petitioner acknowledged that the trial court
provided him with all relevant information before he entered his plea “but at that point it
didn’t really matter” because he had already decided to plead guilty.

               During cross-examination, the petitioner agreed that he knew that he was
entering a plea to one count of incest. Although he said that “[n]obody is real sure” that the
victim was his niece, he admitted that he had always treated her as his niece. The petitioner
insisted that counsel had not examined the victim’s birth certificate despite counsel’s
testifying on direct examination that he had examined the document and determined that the
petitioner’s brother was the victim’s father. The petitioner admitted that he told the trial
court that he was satisfied with trial counsel’s handling of the case but said that he lied.

                                              -3-
                Trial counsel testified on rebuttal that he did inform the petitioner about the
sexual offender registry requirements. Counsel said that he met with the petitioner at least
10 times, often when petitioner came to his office without an appointment. Counsel
reiterated that he saw no meritorious reason to seek suppression of the petitioner’s statement.

                At the conclusion of the hearing, the post-conviction court observed that the
transcript of the plea colloquy established that the petitioner “was advised by the [c]ourt that
he would be on the sex offender registry for life” and that the petitioner “indicated that he
understood . . . he would be on that registry and also indicated that his counsel had advised
him of that.” In a written order denying post-conviction relief, the post-conviction court
accredited trial counsel’s testimony and concluded that counsel “provided adequate
assistance.” The post-conviction court also found that the petitioner failed to show that
counsel performed deficiently or “that he was prejudiced by the administrative error of
marking the incorrect box on the Judgment Sheet which was prepared after the plea and
sentence was announced.” The court concluded that the petitioner “actually understood the
significance and consequences of the plea and sentence” and “that the petitioner was not
coerced into entering a plea.”

               In this appeal, the petitioner reiterates his claims of ineffective assistance of
counsel and involuntary guilty plea, claiming that trial counsel performed deficiently by
failing to seek a hearing on the motion to suppress and by failing to accurately inform him
of the consequences of his guilty plea and that counsel’s failures as well as misinformation
provided by the trial court rendered his guilty 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 abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A.§ 40-30-103 (2006). A post-conviction petitioner
bears the burden of proving his or her allegations by clear and convincing evidence. Id. §
40-30-110(f). On appeal, the post-conviction court’s findings of fact are conclusive 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).

              To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first 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,

                                              -4-
936 (Tenn. 1975), and second that his 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.” Id. 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 ‘the 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 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 post-conviction court accredited counsel’s testimony that no meritorious grounds existed
for suppression of the petitioner’s pretrial statement, and the petitioner failed to present any
grounds for suppression at the evidentiary hearing. To the contrary, the petitioner

                                              -5-
acknowledged that he traveled to the police station voluntarily and that he voluntarily
admitted having sexual contact with the victim. That the petitioner felt that the handcuffs
initially used were too tight or that the officers’ behavior was rude would not render the
statement inadmissible.

               Trial counsel’s accredited testimony and the transcript of the plea colloquy both
establish that counsel and the trial court accurately advised the petitioner that he would be
required to register as a sex offender for life. At no time did anyone indicate that the
petitioner would be subject to the lifetime supervision requirement. The record supports the
prosecutor’s explanation that the inclusion of the lifetime supervision provision in the
judgment form was a clerical error committed by the prosecutor himself. Under those
circumstances, the post-conviction court did not err by ordering entry of a corrected judgment
form removing the offending provision. The petitioner failed to establish that, but for the
inclusion of the lifetime supervision provision in the judgment form, he would not have
pleaded guilty and would have insisted on a trial. Said another way, the record does not
support a finding that the petitioner’s plea was involuntary because the sentence imposed was
actually less onerous than the judgment form originally led him to believe.

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

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                              -6-
