         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 10, 2007

                TYRONE A. WALKER v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Fayette County
                            No. 5492    J. Weber McCraw, Judge



                     No. W2006-02035-CCA-R3-PC - Filed June 26, 2007


The petitioner, Tyrone A. Walker, appeals the denial of his petition for post-conviction relief,
arguing that his guilty pleas were unknowing and involuntary and that his trial counsel was
ineffective for failing to request an independent psychological examination. Following our review,
we affirm the denial of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and DAVID
G. HAYES, J., joined.

Karen T. Fleet, Bolivar, Tennessee, for the appellant, Tyrone A. Walker.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Terry D. Dycus, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                               FACTS

        On March 22, 2004, the Fayette County Grand Jury indicted the petitioner and two
codefendants, Pauline Rivers and Cornelius Marshall, on two counts of attempted first degree murder
and one count of aggravated arson, Class A felonies. Following several mental evaluations and a
final determination that he was competent to stand trial, the petitioner pled guilty on March 14, 2005,
to two counts of attempted first degree murder, a Class A felony, and one count of arson, a Class C
felony, in exchange for concurrent sentences as a Range I offender of twenty-five years for each of
the attempted murder convictions and six years for the arson conviction, for an effective twenty-five-
year sentence in the Department of Correction.
         The transcript of the guilty plea hearing reveals that Rivers paid the petitioner and Marshall
to set fire to the Moscow residence of two elderly victims. Among the evidence the State would
have presented at trial was the testimony of an investigator that the victims’ house was doused with
a flammable liquid and that a plastic milk jug containing the remnants of gasoline was found at the
scene; the surveillance videotape of a nearby convenience store, which showed that approximately
twenty-five to thirty minutes before the fire was set Marshall, accompanied by the petitioner,
purchased two plastic gallons of milk, poured out the milk, and refilled the plastic jugs with gasoline;
and the statements of the petitioner and Rivers, each of whom confessed his or her participation in
the crime.

        On February 28, 2006, the petitioner filed a pro se petition for post-conviction relief, alleging
that his guilty pleas were unknowing and involuntary and that he received ineffective assistance of
counsel. Specifically, the petitioner argued, among other things, that his trial counsel should have
requested an independent psychological evaluation and a hearing to determine his competency to
stand trial. He further argued that, in light of his mental problems, his trial counsel and the trial court
should have taken greater care during his plea colloquy to ensure that he understood exactly what
he was doing in entering his pleas.

        Post-conviction counsel was appointed and an evidentiary hearing held on July 17, 2006.
Trial counsel testified that he was licensed to practice law in 2000 and was appointed to represent
the petitioner in September 2004. At the time he was appointed, the petitioner had previously been
represented in the same case by at least one other attorney. Among other things, trial counsel spoke
with Officer Rick Wilson, the investigating officer; reviewed the affidavit of complaint; and met
with the petitioner “on numerous occasions” to discuss the case. Trial counsel agreed that the
petitioner had given a statement to police admitting his involvement in the crimes. He did not recall
asking Officer Wilson why the admonition of rights form contained the petitioner’s stricken
signature, initialed by Officer Wilson, on the line indicating that the petitioner did not wish to make
a statement. He also did not recall the petitioner’s having ever informed him that he had been
threatened by his codefendant, Cornelius Marshall. Trial counsel testified that he did not know if
Marshall was larger than the petitioner but assumed he probably was because the petitioner was not
a very big man.

        Trial counsel testified that he did not obtain any of the petitioner’s school records. He said,
however, that he understood that the petitioner was “a little slow” and that it would not surprise him
to learn that the petitioner had taken “resource classes” in school. He testified that the petitioner did
not appear to be mentally retarded, and he did not remember if he knew that the petitioner’s IQ was
70. However, he “seem[ed] to recall something in the file to that effect.” He said that the petitioner
did not appear to him to be mentally ill. He stated that he did not recall anyone indicating to him that
the petitioner was taking psychotropic medication and that it would be news to him to learn that the
petitioner was on Haldol and Cogentin at the time he entered his pleas. His file did not indicate
whether he spoke with any of the psychologists who examined the petitioner, and he did not speak
with the petitioner’s family about the petitioner’s mental health history. Trial counsel acknowledged



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that the petitioner was not the leader in the offense but said that he did not gather from his
conversations with him that the petitioner could be easily led.

        Trial counsel testified that he went over the guilty pleas with the petitioner three or four
times, which included reading the guilty plea form aloud to him. In his opinion, the petitioner fully
understood the nature and consequences of the pleas, and he had no concerns that the petitioner did
not understand exactly what he was doing at the time he entered the pleas. Trial counsel
acknowledged, however, that the petitioner initially expressed confusion to the trial court at the plea
colloquy, informing the court that he had a “really bad mental problem.” He said that the trial court
took a break to allow him to go over the plea with the petitioner again and that the petitioner
thereafter entered his pleas without incident.

        Trial counsel acknowledged the record in the case reflected the following: Previous trial
counsel filed a motion on April 14, 2004, requesting a psychological evaluation; the petitioner was
evaluated by Pathways Behavioral Health Services, which recommended that he be referred to
Western Mental Health Institute for further inpatient evaluation; and Western Mental Health Institute
determined that the petitioner was competent to stand trial and that a defense of insanity could not
be supported. Trial counsel further agreed that the Western Mental Health Institute staff also
recommended that the petitioner receive continued competency assessments and treatment while in
jail awaiting trial.

        Following the petitioner’s return to jail, the staff psychiatrist at Pathways Behavioral Health
Services wrote a letter to the trial court stating that the petitioner had again been determined to be
incompetent and recommending that he be referred back to Western Mental Health Institute to be
reevaluated for competency to stand trial and for malingering. Trial counsel acknowledged that, as
a result of that letter, he had filed a motion on October 26, 2004, requesting that the trial court
declare the petitioner incompetent to stand trial. As a result, the petitioner was readmitted to
Western Mental Health Institute for an inpatient evaluation of his competency to stand trial and for
a determination of whether he was malingering. At the conclusion of that evaluation, the Western
Mental Health Institute reported to the trial court that the petitioner had been determined to be
competent to stand trial and that the malingering probability scale indicated a 99.9% probability that
he was malingering. Trial counsel acknowledged that he did not request funds for an independent
psychological examination but said he believed that it would have been unlikely to change the
outcome of the case.

        On cross-examination, trial counsel testified that he met with the petitioner’s previously
appointed attorney to discuss the motions that attorney had filed in the case. He said he also
discussed the petitioner’s prior convictions and mental status with the public defender who had
represented the petitioner in various cases in juvenile court. Trial counsel agreed that there was no
guarantee that the trial court would have approved funds for independent psychological testing or
that an independent psychologist or psychiatrist would have reached a different conclusion with
respect to the petitioner’s competency. He testified that the petitioner was always engaging and
involved in his conversations with him, asking relevant questions and suggesting possible defenses,


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including an alibi defense. However, when he informed the petitioner that he would have to give
notice to the State of a possible alibi, the petitioner lost interest in that defense.

         Trial counsel testified that he went over everything with the petitioner, including the charges
against him and the fact that an aggravated arson sentence carried a day-for-day sentence. He said
that the petitioner clearly understood the possible day- for- day sentence and that it was of paramount
importance in his decision to plead guilty to the lesser offense of arson. Trial counsel stated that the
petitioner and his two codefendants had all given statements to the police implicating each other.
In addition, the petitioner admitted in his conversations with him that he had committed the crimes
in exchange for the money that Rivers paid him. Trial counsel reiterated that he had no doubt that
the petitioner understood exactly what he was doing in pleading guilty.

         Patricia Walker, the petitioner’s older sister, testified that the petitioner was mentally retarded
and had taken special education classes. She said that he did not read very well and that she or her
sisters had always accompanied him whenever he appeared in court on previous cases. In this case,
however, trial counsel never contacted her or her family, and she did not learn of the petitioner’s
guilty pleas until after they were already entered. Walker testified that the petitioner was easily led
and that others often got him into trouble. On cross-examination, she acknowledged that the
petitioner had pled guilty to various offenses in the past and had a fairly good understanding of the
court system. She identified the petitioner’s signature on the Fayette County Jail medication
dispensing log, which indicated that the petitioner had been regularly taking Lexapro, Zyprexa,
Trazodone, and Dihydramine at the time he entered his pleas and had not been on Haldol or
Cogentin. Finally, she acknowledged that the petitioner was not currently incarcerated in a special
needs facility.

        Shana McCoy-Johnson testified that she was employed at the District Public Defender’s
Office for the Twenty-Fifth Judicial District and had represented the petitioner in various juvenile
court proceedings. She said that the petitioner was “slow” and that his sister, Patricia, usually
accompanied him to court. She stated that the petitioner’s sister telephoned her about the instant
case, and she referred her to trial counsel but did not know whether she ever talked to him. She
agreed that it probably would have been a good idea for trial counsel to request funds for an
independent psychological examination but said that resources were limited in appointed cases, and
she did not think it likely that the judge would have approved the request. On cross-examination,
McCoy-Johnson testified that even if funds had been approved, she doubted that an independent
evaluation would have changed the outcome of the proceedings. She said she was very familiar
with the facts of the case, having represented the petitioner’s codefendant, Rivers, while the case was
at the general sessions court level. In her opinion, the State’s proof was “[o]verwhelming” and the
petitioner received “a good and fair deal.”

        On July 24, 2006, the post-conviction court entered an order denying the petition for post-
conviction relief, finding that the petitioner had failed to show that his pleas were unknowing or
involuntary or that he received the ineffective assistance of counsel. Thereafter, on August 16, 2006,
the petitioner filed a timely notice of appeal to this court.


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                                              ANALYSIS

        On appeal, the petitioner raises the interrelated issues of whether the post-conviction court
erred in finding that his guilty pleas were knowing and voluntary and that he received the effective
assistance of counsel. The post-conviction petitioner bears the burden of proving his allegations by
clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are conclusive
on appeal unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497,
500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate court should
not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997).
However, review of a trial court’s application of the law to the facts of the case is de novo, with no
presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998).

         The issue of ineffective assistance of counsel, which presents mixed questions of fact and
law, is reviewed de novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453,
461 (Tenn. 1999). To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee cases). The Strickland standard is a two-prong test:

        First, the defendant 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 defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

         The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong
of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In the context of a
guilty plea, the petitioner must show a reasonable probability that were it not for the deficiencies in
counsel’s representation, he would not have pled guilty but would instead have insisted on
proceeding to trial. Hill v. Lockart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); House v. State, 44
S.W.3d 508, 516 (Tenn. 2001).


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        Because both prongs of the test must be satisfied, a failure to show either deficient
performance or resulting prejudice results in a failure to establish the claim. See Henley, 960 S.W.2d
at 580. For this reason, courts need not approach the Strickland test in a specific order or even
“address both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697, 104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance
claim”).

        The petitioner contends that trial counsel was ineffective for failing to request an independent
psychological examination or a competency hearing. He further contends that in light of his low IQ
and history of mental problems, both the trial court and his trial counsel should have questioned him
more closely to ensure that his guilty pleas were knowing and voluntary. The record, however, fully
supports the post-conviction court’s finding that the petitioner received effective assistance of
counsel and that his guilty pleas were knowingly, voluntarily, and intelligently entered.

         Trial counsel’s testimony, which was accredited by the post-conviction court, established that
he went over the plea agreement with the petitioner three or four times prior to the guilty plea
hearing and once again during the hearing. The petitioner was involved and engaged in his
conversations with trial counsel and indicated that he understood the plea agreement and wished to
plead guilty. Trial counsel filed a motion requesting that the trial court declare the petitioner
incompetent, which resulted in the petitioner’s reevaluation at Western Mental Health Institute,
where it was determined that he was competent to stand trial and that there was a 99.9% probability
that he was malingering. Neither trial counsel nor Public Defender McCoy-Johnson, who was
familiar with both the petitioner and the facts of the case, thought it likely that an independent
psychological examination following that determination would have changed the outcome of the
proceedings. McCoy-Johnson, in fact, testified that she thought it unlikely that the trial judge who
presided over the case would have even approved funds for independent psychological testing. The
petitioner has not, therefore, met his burden of demonstrating either that trial counsel was deficient
for failing to request an independent psychological examination or competency hearing or that he
was prejudiced as a result of counsel’s failure to do so.

        The petitioner also contends that his guilty pleas were not knowingly, voluntarily, or
intelligently entered. Before a guilty plea may be accepted, there must be an affirmative showing
that the petitioner voluntarily and knowingly entered the plea. Boykin v. Alabama, 395 U.S. 238,
242, 89 S. Ct. 1709, 1711 (1969); State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). 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 or she fully understands the plea and
its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858 S.W.2d at 904.

        Because the plea must represent a voluntary and intelligent choice among the alternatives
available to the defendant, the trial court may look at a number of circumstantial factors in making
this determination. Blankenship, 858 S.W.2d at 904. These factors include: (1) the defendant’s


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relative intelligence; (2) his familiarity with criminal proceedings; (3) whether he was represented
by competent counsel and had the opportunity to confer with counsel about alternatives; (4) the
advice of counsel and the court about the charges against him and the penalty to be imposed; and (5)
the defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in a jury
trial. Id. at 904-05.


        The petitioner asserts that, in light of his history of mental problems and mild mental
retardation, the trial court and his trial counsel should have questioned him more thoroughly about
his understanding of the pleas. With respect to this claim, the post-conviction court made the
following findings of fact and conclusions of law:

                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 possibility of the sentence actually received. He was informed at the
       plea hearing of the sentence. The record further indicates that the [petitioner]
       maintained his mental health issues during the plea proceeding, at times quite timely
       and eloquently stating his mental issues. The records further reveal that the Court
       stopped the plea proceeding because of the [petitioner’s] refusal to answer basic
       questions and the Court’s concern for [the petitioner’s] understanding of simple
       questions. The record indicates that after a recess and after being told by the Court
       that the plea would be stopped if he could not understand the proceedings, the
       [petitioner] was then easily able to answer questions that he purportedly could not
       earlier understand, consistent to the malingering concern raised by each mental health
       evaluator.

         The record fully supports these findings and conclusions of the post-conviction court.
Following the petitioner’s return to the courtroom after his protestation that he had a “really bad
mental problem,” he responded appropriately during the lengthy and detailed plea colloquy in which
the trial court questioned him closely about his understanding of the charges, his constitutional
rights, the ramifications of pleading guilty, and the voluntariness of his pleas. The record further
reveals that, at the time he entered the pleas, the petitioner had already pled guilty to various other
offenses in the past and was therefore experienced with the criminal justice system. We, therefore,
conclude that the post-conviction court did not err in finding that the petitioner’s guilty pleas were
knowingly, intelligently, and voluntarily entered.

                                          CONCLUSION

       Based on our review, we conclude that the petitioner has failed to show either that trial
counsel was ineffective or that his guilty pleas were unknowing and involuntary. Accordingly, we




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affirm the denial of his petition for post-conviction relief.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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