        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 2, 2012

           NATHANIEL RICHARDSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 05-04653     J. Robert Carter, Jr., Judge


              No. W2011-01793-CCA-R3-PC - Filed December 19, 2012


Nathaniel Richardson (“the Petitioner”) entered a best interest plea to second degree murder
and received a sentence of twenty years. The Petitioner subsequently filed for post-
conviction relief, which the post-conviction court denied following an evidentiary hearing.
Upon our thorough review of the record and the applicable law, we affirm the judgment of
the post-conviction court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and R OGER A. P AGE, JJ., joined.

James Thomas, Memphis, Tennessee, for the appellant, Nathaniel Richardson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
Weirich, District Attorney General; and Betsy Weintraub, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                          Factual and Procedural Background

       A Shelby County Grand Jury indicted the Petitioner on July 14, 2005, for first degree
murder. The Petitioner filed a motion to suppress evidence obtained as a result of a search
of a Chevrolet Lumina. Following an evidentiary hearing, the trial court denied the
Petitioner’s motion. This Court recited the following factual and procedural history on direct
appeal:
[T]he trial court had several hearings in early 2008 to determine [the
Petitioner]’s competency to stand trial. [The Petitioner] was evaluated by
multiple doctors prior to the hearing and had spent some time as a patient in
a mental health facility prior to the hearings. At least three of the doctors who
evaluated [the Petitioner] reported that [the Petitioner] was “malingering” or
feigning mental illness. One of the doctors reported that [the Petitioner] was
depressed and “phase[d] in and out of competence” but could return to
competence with treatment. The majority of the doctors concluded, however,
that [the Petitioner] exhibited some form of mental illness but was competent
to stand trial at that time. The trial court ultimately determined that [the
Petitioner] was competent.

         In July of 2008, [the Petitioner] filed a petition to enter a guilty plea.
At the guilty plea hearing, [the Petitioner] agreed to plead guilty to second
degree murder in exchange for a twenty-year sentence. At the guilty plea
hearing, counsel for the State informed the trial court that, had the case gone
to trial, the proof would have established that:

              [O]n September 9th, 2004, Kenneth Miller, Jr. was found
       inside a vacant house on 869 North Third Street.

               Homicide began investigating the case. Mr. Miller was
       the victim of a stab wound. He suffered numerous stab wounds,
       and then after dying, his body was burned. This did not happen
       at the location of the abandoned house, but he was transported
       there after death.

              At that point, officers were able to investigate the case;
       they began talking to witnesses and friends of the victim. They
       came upon a person they now know to be [the Petitioner] who
       was the last known person to see the victim alive. They were
       able to establish that he was the last person to see him alive.

               Through their investigation, they developed enough
       evidence for a search warrant. They executed that search
       warrant on his vehicle. When they went into his vehicle, in the
       trunk of his vehicle, they found what appeared to be two box
       cutters and a knife with blood on them. That did not turn out to
       be the case. There was no blood on them. They were all clean.
       They were actually – it was actually paint.



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                        They also found a T-shirt and jeans that did have blood
              on them, and those came back to the victim through DNA
              analysis that was done days later. Based on the knives, based on
              the clothing, based on a third factor – that being a gas can in the
              back of the trunk along with accelerant on the T-shirt and jeans,
              the state had a circumstantial case to go forward with the fact
              that [the Petitioner] was, in fact, the one that last saw the victim,
              . . . , and did participate in his killing.

               The trial court accepted the guilty plea and the parties agreed to reserve
       the following certified questions for appeal:

                     1) Whether the trial court erred by denying the [the
              Petitioner’s] motion to suppress all the evidence taken from the
              trunk of the car that was seized by the police on September 13,
              2004? Whether the seizure of the car from the parking lot where
              [the Petitioner] worked in the absence of a search warrant
              violated the U.S. Const. amend. IV and amend. XIV and Art. 1
              § 7 and § 8 of the Tennessee Constitution and in violation of
              Rule 41 of the Tennessee Rules of Criminal Procedure;
              thereby[] requiring that the evidence taken from the trunk be
              suppressed? A search warrant was later signed on September
              15, 2004[,] and the vehicle was searched.

                     2) Whether the trial court erred by determining that [the
              Petitioner] was legally competent to stand trial.

State v. Nathaniel Richardson, No. W2008-01652-CCA-R3-CD, 2010 WL 481216, at *3-4
(Tenn. Crim. App. Feb. 11, 2010), perm. app. denied (Tenn. Aug. 25, 2010).

        On appeal, this Court affirmed the trial court’s decision to deny the Petitioner’s
motion to suppress. Id. at *5. As to the trial court’s determination that the Petitioner was
competent to stand trial, this Court held that the question was not appropriate to review as
a certified question. Id. This Court stated:

              For a question to be dispositive we “must either affirm the judgment or
       reverse and dismiss. A question is never dispositive when we might reverse
       and remand . . . if we . . . decided the question on its merits and found in favor
       of the defendant.” State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App.
       1984). Further, a question regarding suppression of the evidence is not



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       dispositive if other incriminating evidence exists in the record outside the
       scope of that question. State v. Dailey, 235 S.W.3d 131, 135 (Tenn. 2007).

               In State v. Bailey, 213 S.W.3d 907 (Tenn. Crim. App. 2006), this Court
       examined the issue of a defendant’s competency in the context of a certified
       question and determined that the resolution of the issue would not result in a
       final disposition of the case because, even if the court determined that the trial
       court erred, the result would be to remand the matter to the trial court. Id. at
       912. Thus, we determined that this issue was not dispositive and that the court
       was without jurisdiction to make a determination on the matter. The case
       herein is akin to Bailey. A determination of incompetence would not lead to
       a dismissal of the charges against [the Petitioner]. This question was not
       properly certified. Accordingly, we are without jurisdiction to review this
       issue on appeal.

Id. at *5-6.

        Following the direct appeal, the Petitioner filed for post-conviction relief alleging
ineffective assistance of counsel and asserting that his plea was constitutionally invalid. As
his bases for ineffective assistance, he asserted in his amended petition that trial counsel
failed to have the Petitioner reevaluated prior to his plea and that trial counsel failed to ensure
that all constitutional requirements associated with a guilty plea were followed during the
Petitioner’s plea hearing. At the post-conviction hearing, the Petitioner’s counsel stated,
“But that’s the basis, that limited question, is the basis of this post conviction hearing,
whether or not Mr. Richardson was competent to stand trial. In that, was counsel ineffective
for not having him reevaluated before the guilty plea.”

        The Petitioner proceeded with his proof and called the Petitioner’s counsel at trial
(“trial counsel”) to testify. Trial counsel stated that she had represented at least one hundred
individuals in murder cases over the course of her career. Her initial observations of the
Petitioner were as follows:

       I noticed that [the Petitioner] was slow in the preliminary hearing stages. We
       do our preliminary searches for medical records, even at the General Sessions
       point, and he had told me, and his mother had told me, that he was in CDC
       classes and I just made sure that I took extra special time down in General
       Sessions.

       Trial counsel could not recall whether the Petitioner received a mental evaluation
while the case was in General Sessions. However, following the Petitioner’s indictment, Dr.
John Hutson completed a mental evaluation on the Petitioner and found the Petitioner

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competent to stand trial. Approximately a year later, Dr. Hutson completed a second mental
evaluation and, this time, found the Petitioner to be incompetent. Trial counsel explained the
protocol following an incompetency finding:

             Well, we usually have to send him to a medical mental health facility
       and the doctors evaluate him and they actually do what I think is called
       competency training where through counseling, medication, and other
       procedures, they try to see if they can get this client to actually become
       competent.

        Trial counsel recalled that at some point the Petitioner was diagnosed with “major
depressive disorder, single episode, severe, without psychotic features, borderline intellectual
functioning,” and “seizure disorder.” In March 2008, the Petitioner again was found to be
competent. Trial counsel remembered spending “a lot” of time with the Petitioner and
assigned her “mitigation specialist on the case to also make regular visits to [the Petitioner]
so that we could make sure that we monitored his mental and physical health.” When asked
about the Petitioner’s understanding of the criminal process near the time of his plea, trial
counsel responded,

               Well, it was kind of difficult to tell. On the day of the guilty plea, he
       told me that he understood. I went to great lengths to make sure that I
       explained everything to him slowly. Any questions that he had, I would
       answer them. I made sure that, you know, he was aware of the rights to go to
       trial. One thing he consistently said was that he did not want to go trial.

        Trial counsel agreed that she explained to the Petitioner and believed he understood
the fact that he was indicted for first degree murder with a possible sentence of life
imprisonment. She also agreed that, despite the Petitioner’s apparent understanding of his
charge and potential sentence, she and the appellate attorney nevertheless decided to
challenge the trial court’s finding that the Petitioner was competent. As her reason, she
stated, “I could only go by [the Petitioner’s] responses that he understood, and I guess that’s
kind of an awkward situation, because if he really doesn’t understand, he’s the only source
that I can get that information from. I believe that he understood.”

        Trial counsel acknowledged the passage of time from a doctor’s finding of
competency of the Petitioner in March, to the trial court’s competency finding in May, and
finally to the Petitioner’s plea in July. However, she believed that the Petitioner was under
the care of a doctor either the day of or shortly before his plea.

      On cross-examination, the State entered the trial court’s order of competency into
evidence. Trial counsel read from the order that “Dr. John Hutson, a clinical psychologist,

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testified the [Petitioner] feigned cognitive difficulties which hindered [Dr. Hutson’s]
assessment of [the Petitioner]. According to Dr. Hutson, [the Petitioner] started realizing the
benefits of malingering between 1987 and 1990, during which period, [the Petitoner] began
receiving a social security check for his mental payments.”1 She also read that, according to
Dr. Hutson, “the [Petitioner’s] malingering improved over two years he ha[d] observed [the
Petitioner].” Trial counsel agreed that a clinical social worker, Deborah Nichols, also found
the Petitioner to be malingering and competent following an examination.

       Trial counsel acknowledged that the trial court, on February 7, 2008, held an
additional competency hearing and that Dr. Ronnie Stout testified that the Petitioner needed
“competency training.” Dr. Stout returned on April 18, 2008, and stated that he then found
the Petitioner to be competent. Thereafter, the trial court entered an order on May 7, 2008,
that found that the Petitioner was competent to stand trial.

        Trial counsel agreed that the Petitioner clearly expressed that he did not wish to go to
trial. Trial counsel received an offer from the State for second degree murder with a sentence
of twenty years. The Petitioner entered a best interest plea because he wished to maintain
his innocence but believed it best to accept the State’s offer. Trial counsel maintained that
the Petitioner understood the ramifications of entering a best interest plea.

       Trial counsel read a letter to the trial court dated March 4, 2008 from Dr. Larry D.
Southerd of the Middle Tennessee Mental Health Institute which stated, “After completion
of the present competency evaluation the staff is of the opinion that [the Petitioner’s]
condition is such that he is capable of adequately assisting his defense in a court of law.”
Trial counsel did not believe that she could do anything more regarding the Petitioner’s
competency because, once the trial court found the Petitioner competent, the Petitioner had
to proceed to trial or to enter a plea.

       Prior to entering his plea, the Petitioner expressed to trial counsel that he understood
the rights he was waiving, such as the right to trial. Trial counsel also witnessed the trial
court explain to the Petitioner his rights and the Petitioner indicate that he understood those
rights. The post-conviction court asked whether trial counsel conducted a traditional
investigation of this case, and trial counsel responded that she “went beyond a traditional
investigation.”

       David Zak testified that he became the prosecutor on the Petitioner’s case after the
Petitioner was indicted. He was counsel for the State at the time that the trial court found the
Petitioner to be competent and when the Petitioner entered his plea. Zak verified that he
signed the judgment order which included both certified questions for appeal. When asked

       1
           According to the order of the trial court, Dr. Hutson testified at a hearing on January 31, 2008.

                                                     -6-
whether he had reservations about the Petitioner’s competency when he entered his plea, Zak
stated,

               No, there was nothing in my mind that thought he was not competent
       or else I would not have allowed the plea to go through. And [trial counsel]
       wouldn’t have either. I mean I had been with the [Petitioner] for months.
       [Trial counsel] had been with him for years. We had a hearing at one point
       where it became apparent to the State that his entire family used his
       competency as a shield and a sword to get medical benefits and money and
       that’s – it was a family trick, and he was caught in the malingering status, and
       when they found he was malingering, then it was okay for him to plead guilty.

       On cross-examination, Zak testified to the following regarding trial counsel’s
representation of the Petitioner:

               [Trial counsel] did everything she could for her client. The case itself
       was based on DNA and photographs and her client was going to be found
       guilty of murder first. She was able to convince me that the facts and nature
       and circumstantial evidence in this case, that there were other people that did
       it with him, and based on – I’m talking weeks, months, of negotiation, she
       finally proved to me that murder second was justice, and that’s what we did.

       The Petitioner testified that he took medication daily for “seeing things, hearing
voices, depression, . . . [his] nerves,” and seizures. At the time that he testified, he had not
yet taken his medication for that day. Post-conviction counsel asked the Petitioner whether
he had heard voices that day, and the Petitioner responded, “They comes and goes [sic]” but
agreed that he understood the questions being asked of him. He stated that his medication
did not “stop the voices and seeing things.” Post-conviction counsel asked the post-
conviction court “if it could become an issue on appeal if the . . . Petitioner has not been
given his medication today and is currently or has today been hearing voices.” The post-
conviction court responded, “Well, we’re going to take him at his word, he says he
understands and we’re going to move forward.”

        The Petitioner remembered entering a plea and stated that he had eleven years, five
months, and six days remaining in his sentence. He acknowledged that, if he received relief,
he would be facing a first degree murder charge again with a potential life sentence. He
testified that he did “[n]ot really” understand the circumstances surrounding his plea and that
he did not know why he told trial counsel and the trial court that he did understand. He was
taking medication at the time of his plea and confirmed that he took his medication on the
day of the plea. The Petitioner denied ever telling trial counsel that he did not want to go to
trial. Later, he stated that he did not remember telling trial counsel that he did not want to

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go to trial and denied telling her that he wished to go to trial. He stated, “I can’t remember
that day, but I know that I had signed for some time.” He did remember that he was able to
enter a plea but still maintain his innocence by entering a best interest plea.

        The post-conviction court considered the Petitioner’s ineffective assistance of counsel
claim as the sole issue before the court, stating, “[The Petitioner] maintains that he received
ineffective assistance of counsel, which would render his guilty plea invalid. The Petitioner
does not specifically address the voluntariness of the guilty plea. Rather, he states only that
his attorney was ineffective.” The court noted, “It is unclear what, if anything, that [the
Petitioner] expected or now expects for his trial counsel to have done.” It also noted that
many of the reports regarding the Petitioner’s competency found the Petitioner to be
“malingering.” The post-conviction court denied the Petitioner relief, holding that the
Petitioner failed to establish that trial counsel’s performance was deficient or that the
Petitioner suffered prejudice as a result of such deficient performance. The Petitioner now
appeals, arguing that the Petitioner’s plea was constitutionally invalid. Additionally, the
Petitioner contends that “trial counsel should have known that the issue of competency was
not dispositive of the case [for purposes of a certified question] and was ineffective for
allowing [the Petitioner] to . . . plead guilty under the false understanding that the issue had
merit.”

                                           Analysis

                                     Standard of Review

        Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “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.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.




                                              -8-
                                     Validity of the Plea

       The Petitioner asserts on appeal that his plea was constitutionally invalid. In his
appellate brief, he notes that the State agreed to certifying the following question for review
on appeal: “[w]hether the trial court erred by determining that [the Petitioner] was legally
competent to stand trial.” Later, on direct appeal, the State argued that the issue of
competency was not a dispositive issue, and this Court agreed. Nathaniel Richardson, 2010
WL 481216, at *5-6. Thus, the Petitioner contends that “such a contradictory position on the
State’s behalf should be seen as a coercive measure that got the [Petitioner] to enter into [a]
plea that was not knowing involuntary [sic].” The post-conviction court made no findings
regarding the validity of the Petitioner’s plea, stating that the Petitioner did not address the
issue separate from his ineffective assistance of counsel claim. The State, therefore,
contends that the Petitioner has waived appellate review of this issue. The Petitioner did
raise the validity of his plea in his pro se petition for post-conviction relief which was
incorporated into his amended petition for post-conviction relief. Thus, we will address the
validity of his plea.

        To be valid, a plea must be entered knowingly, voluntarily, and intelligently. See
Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); State v. Mackey, 553 S.W.2d 337, 340
(Tenn. 1977) superseded on other grounds by Tenn. R. of Crim. P. 37(b) and Tenn. R. of
App. P. 3(b). A plea meets constitutional muster when the defendant understands both what
the plea connotes and its consequences, Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993) (citing Boykin, 395 U.S. at 244), and makes a voluntary and intelligent choice from
the alternative courses of action available to plead guilty, Jaco v. State, 120 S.W.3d 828, 831
(Tenn. 2003) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In Mackey, 553
S.W.2d at 341, our supreme court set forth the procedure that a trial court should follow
when accepting a plea in order to ensure that a defendant’s plea is knowing, voluntary, and
intelligent. See also Tenn. R. Crim. P. 11(b). A trial court must “substantially” comply with
this procedure. State v. Newsome, 778 S.W.2d 34, 38 (Tenn. 1989).

       Initially, we note that the Petitioner has failed to include a transcript of his plea
hearing in the record before this Court. Therefore, we cannot review discussions at the
hearing regarding the Petitioner’s plea or whether constitutional safeguards were
implemented. Additionally, the Petitioner did not testify at the post-conviction hearing that
the State “coerced” him to enter his plea, nor did he present any other proof to establish that
his plea was the product of coercion.

        Moreover, trial counsel testified at the post-conviction hearing that the Petitioner
clearly expressed his desire to avoid going to trial. Trial counsel believed that the Petitioner
understood the ramifications of entering a best interest plea, and the prosecutor also testified
that the Petitioner appeared competent to enter a plea. Thus, because of the omission of the

                                              -9-
plea hearing transcript and lack of proof at the post-conviction hearing, the Petitioner has
failed to establish that his plea was the product of coercion, rendering it invalid.
Accordingly, the Petitioner is not entitled to post-conviction relief on this basis.

                              Ineffective Assistance of Counsel

        The Petitioner also asserts that he was denied effective assistance of counsel. At the
post-conviction hearing, the Petitioner argued that trial counsel was ineffective for not having
the Petitioner reevaluated prior to his plea. Now, the Petitioner’s theory for ineffective
assistance is that “trial counsel should have known that the issue of competency was not
dispositive of the case and was ineffective for allowing [the Petitioner] to . . . plead guilty
under the false understanding that the issue had merit.” Thus, the Petitioner now contends
that trial counsel gave the Petitioner “erroneous advice.” This theory for relief differs
substantially from his theory at the post-conviction hearing or his numerous grounds of
ineffective assistance of counsel raised in his petition for post-conviction relief. This Court
has held that “an appellant is bound by the evidentiary theory set forth at trial, and may not
change theories on appeal.” State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001)
(citation omitted). Put another way, “[i]t is elementary that a party may not take one position
regarding an issue in the trial court, change his strategy or position in mid-stream, and
advocate a different ground or reason in this Court.” State v. Adkisson, 899 S.W.2d 626,
635-36 (Tenn. Crim. App. 1994). Accordingly, the Petitioner has waived appellate review
of this issue.

                                       CONCLUSION

       For the foregoing reasons, the Petitioner has failed to establish that he is entitled to
post-conviction relief. Therefore, we affirm the judgment of the post-conviction court
denying relief.


                                                     ______________________________
                                                     JEFFREY S. BIVINS, JUDGE




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