        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 17, 2011

          SISAVANH KEOMONGKOUT v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Rutherford County
                         No. F-65071      Don. R. Ash, Judge


               No. M2011-00317-CCA-R3-PC - Filed December 21, 2011


The Petitioner, Sisavanh Keomongkout, appeals the Rutherford County Circuit Court’s
denial of post-conviction relief from his convictions for second degree murder and attempted
first degree murder and his effective forty-year sentence. On appeal, he contends that trial
counsel rendered ineffective assistance by (1) failing to provide the Petitioner with discovery
materials before the Petitioner entered his guilty pleas, (2) failing to discuss the definition
of first degree murder and lesser included offenses with the Petitioner, and (3) failing to
inform the Petitioner that he could hire an expert witness. We affirm the judgment of the
trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER, J., and D ONALD P. H ARRIS, S R. J., joined.

Kerry Knox (on appeal) and Bert McCarter (at trial), Murfreesboro, Tennessee, for the
appellant, Sisavanh Keomongkout.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; William Whitesell, District Attorney General; and Trevor Lynch, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               The Petitioner pled guilty to two counts of second degree murder and one count
of attempted first degree murder and was sentenced to concurrent terms of twenty-five years’
confinement for each second degree murder conviction and to a consecutive term of fifteen
years’ confinement for attempted first degree murder, for an effective forty-year sentence.
The facts of this case were recited by the State at the guilty plea hearing:
                      [On] June 29th of 2008, an individual by the name of
              Somsack had gotten into an altercation with some people. After
              this altercation he called . . . [a] man by the name of Lakky
              Phosy. Asked that individual to retrieve a firearm as well as call
              some additional friends. Those friends included [the Petitioner]
              along with several other individuals. They went to a party
              where some of these individuals were believed to be. Mr.
              Somsack and Mr. Phosy went towards the party while [the
              Petitioner], who held a semi-automatic weapon, stayed behind.
              A fight broke out at the party and [the Petitioner] fired at least
              nine rounds into the party area, into the crowd. Three
              individuals were hit. As a result, Mr. Land Vongsaphay and Mr.
              Kousonh Luangrath lost their lives and a third individual was
              struck, was taken to the hospital and survived his injuries. [The]
              Murfreesboro Police Department was called out to investigate
              . . . [and] they eventually questioned [the Petitioner] who
              acknowledged that he did have the firearm. That it was given to
              him by somebody else. That he did fire several rounds. It
              would be his position that he did not intend to kill anybody but
              understands that his actions did cause the loss of life of others.

        In response to questions from the trial court, the Petitioner testified that he was not
forced or coerced to enter the plea agreement. He said he reviewed the plea agreement with
trial counsel, understood the agreement, did not have questions about it, and signed it. He
agreed that he was pleading guilty to second degree murder because he was guilty. He said
he understood that the sentences for second degree murder would run consecutively to the
sentence for attempted first degree murder. He said he understood that by pleading guilty,
he waived his rights to a speedy public trial; trial by jury; the assistance of counsel; the
presumption of innocence; the right to remain silent; the right to see, hear, and cross-examine
witnesses against him; the right to compel production of any favorable evidence; and the
ability to file a motion for a new trial or an appeal. He said he understood that the
convictions could be used to enhance the punishment of future convictions.

       The Petitioner testified that trial counsel did a good job and that he had no complaints
regarding trial counsel. He agreed that trial counsel explained the range of punishment, what
the State would have to prove in order to obtain convictions, and any potential defenses. He
said that trial counsel went over the elements of first degree murder, second degree murder,
voluntary manslaughter, and “all those other options in there” and that he did not have any
questions regarding the elements. He said trial counsel did everything the Petitioner
requested of him in preparing for the case. He said he agreed to plead guilty because it was
“the best.”

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       In response to questions from the State, the Petitioner agreed that he took the weapon
voluntarily before the murders. He acknowledged that he caused the death of the victims and
accepted responsibility for his actions.

        In response to questions from trial counsel, the Petitioner agreed that trial counsel met
with him several times and that they discussed the elements of each charged offense. He
agreed that trial counsel explained that given the Petitioner’s exposure, the plea agreement
was in his best interest. He agreed that trial counsel explained the plea agreement on several
occasions and that counsel spoke with the Petitioner’s family. He said he understood that
after he entered into the agreement, he could not change it. He said he wanted to go forward
with the plea agreement. In response to an additional question from the trial court, the
Petitioner testified that he was entering into the agreement freely and voluntarily based upon
his own decision, not trial counsel’s decision.

       At the post-conviction hearing, the Petitioner testified that he was charged with these
crimes when he was nineteen, about one month after he graduated from high school. He said
he had no previous arrests or experience with law enforcement. He said that the charges
were pending for about nine months before he pled guilty and that trial counsel met with him
on five occasions during that time, with each meeting lasting about ten to fifteen minutes.
When asked if there was anything he requested trial counsel to do that trial counsel failed to
do while the charges were pending, the Petitioner responded that he asked trial counsel to
provide him with discovery materials and to determine if he should argue that the killings
were reckless homicides. He said he believed the killings were reckless homicides because
they were accidents. He said that the weapon he fired was an automatic AK-47 assault rifle,
that he had no experience with firearms, and that the gun was difficult to control.

       The Petitioner testified that he did not learn that his statement to the police was
recorded until the post-conviction process began and that he did not review the recording
before he pled guilty. He said that he reviewed the recording before the post-conviction
hearing and that his description of the incident was consistent with what he told trial counsel.
On questioning from the trial court, the Petitioner agreed that he was present during the
statement and that he knew what he said during his statement.

       The Petitioner testified that he was not provided with discovery materials, including
witness statements, but that he reviewed the statements before the post-conviction hearing.
He said that there were discrepancies in the witness statements and that witnesses stated that
his co-defendant, Lakky Phosy, could have fired the shots or was the shooter. He identified
two witness statements written in Lao and said that he could not read Lao and that trial
counsel did not have the statements translated. He identified a Tennessee Bureau of
Investigation (TBI) firearms report and said he was not provided with the report before he
pled guilty. He said the report stated that the similarities of markings on the recovered shell

                                               -3-
casings were insufficient to conclude that they were fired from the AK-47 he fired. He said
the only discovery materials he reviewed before entering his guilty pleas were his co-
defendant’s statements. He said that he pled guilty because he “didn’t know of any other
route” and that if he had been provided with discovery materials, he would have had a
stronger defense and would have insisted on going to trial. He said that trial counsel did not
want to go to trial and that he was “backed into a corner and didn’t have a defense at the
time.”

          The Petitioner testified that trial counsel did not discuss lesser included offenses with
him and that he did not know what lesser included offenses were at the time of his guilty
pleas. He said he did not know that he could have been convicted at a trial of anything other
than the charged offenses. He said he did not understand the difference between felony
murder and premeditated murder or what proof the State would use to establish
premeditation. When the trial court noted that the Petitioner agreed at the guilty plea hearing
that trial counsel went over the different elements of “the crime of murder in the first degree,
second degree, voluntary manslaughter, and all those other options,” the Petitioner denied
that trial counsel went over those items. The Petitioner said that he was not truthful at the
guilty plea hearing and that he lied because he felt he was “boxed in” at the time and he did
not understand lesser included offenses. He said that at the time of his guilty pleas, he did
not know that reckless homicide was a potential lesser included offense. He did not know
if trial counsel discussed a potential plea bargain involving reckless homicide with the State.

        The Petitioner testified that although trial counsel explained that the State planned to
use an expert witness at a trial, counsel did not explain if he could hire his own expert. He
said that had he known he could hire an expert, it would have changed his understanding of
the “whole situation.” He agreed an expert could have corroborated his theory that the
killings were accidental. On questioning from the trial court, the Petitioner testified that he
was not truthful when he previously stated that his guilty pleas were voluntarily entered into,
that trial counsel did a good job, and that he had no complaints about trial counsel’s
performance.

        On cross-examination, the Petitioner agreed that he discussed reckless homicide with
trial counsel and that he wanted trial counsel to discuss with the State a plea agreement
involving reckless homicide. He agreed that reckless homicide was a lesser included offense
of murder and that he wanted trial counsel to discuss reckless homicide with the State
because he understood it to be a lesser included offense. When asked if the Petitioner had
contradicted himself, he responded, “The only thing he discussed was the reckless homicide
and I didn’t know that was a lesser included offense. That is a lesser included offense. I
thought it was just another charge.” He agreed that trial counsel mentioned reckless
homicide and the possibility of a plea agreement involving reckless homicide, but that trial
counsel did not discuss “anything else.” He agreed that he was under oath when he lied to

                                                -4-
the trial judge at the guilty plea hearing and that he previously stated he discussed lesser
included offenses with trial counsel.

        The Petitioner agreed that although he asked trial counsel several times to provide him
with discovery materials and that trial counsel failed to do so, he told the trial court at the
guilty plea hearing that trial counsel performed all tasks the Petitioner requested. He said he
lied when he told the trial court that the plea agreement was voluntarily entered into and
based on his own decision. He said that if he had known he could have had an expert witness
at a trial, he would have done so. He agreed that he did not have an expert witness at the
post-conviction hearing and that he had no idea what an expert would say.

        The Petitioner testified that he was honest when he told the police that he fired the
AK-47 into the air because he saw Mr. Phosy and Mr. Chanthalay getting hit with chairs and
bottles and that he accidentally tripped due to the weapon’s recoil and changed the trajectory
of the gun. He agreed that Mr. Phosy handed him the gun, that Mr. Phosy did not have a rifle
in his hands, and that he made the conscious decision to fire the weapon after he saw Mr.
Phosy get into a fight. He agreed that any witness who thought Mr. Phosy had a gun was not
correct and that any witness’s statement that Mr. Phosy had a gun would not provide him
with a defense. He said that to his knowledge, there was only one gun: the gun he fired. He
agreed that the TBI report he previously identified concluded that two recovered bullet
casings were fired from the same gun and that although a third casing contained similar
characteristics and could have been fired through the same gun, the similarities were
insufficient for a more conclusive examination. He agreed the report never stated that the
third casing was fired through a different gun.

       The Petitioner agreed that trial counsel discussed the elements of the charged crimes
and the incriminating evidence. He said trial counsel did not discuss defenses or of what he
could not have been convicted. He said that although he told trial counsel he understood to
what he planned to plead guilty, he did not actually know to what he pled. On redirect
examination, the Petitioner agreed that he consistently stated that although he fired the gun
several times, the killings were accidental.

        In denying the petition for post-conviction relief, the trial court found that the
Petitioner’s post-conviction testimony was not credible. With regard to the claim that trial
counsel failed to provide the Petitioner with discovery materials, the trial court found that the
Petitioner previously testified that trial counsel did a good job, that he had no complaints
with trial counsel’s performance, and that trial counsel performed all tasks requested by the
Petitioner. The trial court also noted that “the statements of witnesses do not have to be
disclosed until after the witness has testified.” With regard to the claim that trial counsel
failed to discuss lesser included offenses, the trial court found that the Petitioner “testified
twice at the hearing that [trial counsel] did in fact go over elements of lesser-included

                                               -5-
offenses with him and even his family members before entering his plea. Although [the
Petitioner] stated at the hearing that he was being untruthful at the time, this Court does not
find him credible.” The court found that the Petitioner failed to present clear and convincing
proof that trial counsel’s performance was deficient or that the Petitioner was prejudiced by
counsel’s performance. This appeal followed.

       The burden in a post-conviction proceeding is on the Petitioner to prove his
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006);
Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). Once a petitioner establishes the fact
of counsel’s errors, the trial court must determine whether those errors resulted in the
ineffective assistance of counsel. Dellinger, 279 S.W.3d at 293; see Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984).

        On appeal, we are bound by the trial court’s findings of fact unless we conclude that
the evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d
450, 456-57 (Tenn. 2001). Questions regarding the credibility of the 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 judge. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). Because
they relate to mixed questions of law and fact, we review the trial court’s conclusions as to
whether counsel’s performance was deficient and whether that deficiency was prejudicial
under a de novo standard with no presumption of correctness. Id. at 457. Post-conviction
relief may only be given if a conviction or sentence is void or voidable because of a violation
of a constitutional right. T.C.A. § 40-30-103.

        Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland,
466 U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). A petitioner will
only prevail on a claim of ineffective assistance of counsel after satisfying both prongs of the
Strickland test. See Henley, 960 S.W.2d at 579. The performance prong requires a petitioner
raising a claim of ineffectiveness to show that the counsel’s representation fell below an
objective standard of reasonableness or “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. In the context of a guilty plea, the prejudice prong
requires a petitioner to demonstrate 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).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within
the range of competence demanded of attorneys in criminal cases. Further, the court stated

                                              -6-
that the range of competence was to be measured by the duties and criteria set forth in
Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster,
487 F.2d 1197, 1202-04 (D.C. Cir. 1973). See Baxter, 523 S.W.2d at 936. Also, in
reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689.

                                               I

        The Petitioner contends that trial counsel rendered ineffective assistance because he
failed to provide the Petitioner with discovery materials before the Petitioner entered his
guilty pleas. He argues that his recorded statement to the police, witness statements showing
that there may have been a second shooter, and a TBI report showing that there could have
been another firearm at the scene would have assisted with his defense and that he would not
have entered his pleas and would have gone to trial had he been provided with these
materials. The State contends that the trial court properly determined that the Petitioner
failed to establish his claim. We agree with the State.

        Defense counsel have a duty to confer with clients to determine potential defenses and
strategies and a duty to conduct appropriate investigations to determine what matters of
defense can be developed. See Baxter, 523 S.W.2d at 932-33. When a petitoner alleges that
counsel failed to investigate exculpatory evidence or advise the petitioner of a potential
affirmative defense, the determination of whether the error prejudiced the petitioner will
depend on whether the evidence would likely have led counsel to change his plea
recommendation or whether the defense would likely have succeeded if there had been a
trial. Lockhart, 474 U.S. at 59.

        Although the Petitioner claimed at the post-conviction hearing that trial counsel failed
to comply with his requests for discovery materials, the Petitioner previously testified that
trial counsel performed all tasks requested by the Petitioner, that trial counsel met with him
multiple times and explained the charged offenses and all potential defenses, that trial
counsel did a good job, and that he had no complaints about trial counsel’s performance. We
conclude that the evidence does not preponderate against the trial court’s finding that the
Petitioner’s post-conviction testimony was not credible.

      The Petitioner claimed that trial counsel was deficient for not providing him with
witness statements showing that there may have been a second shooter, but the Petitioner
agreed that any witness who thought Mr. Phosy had a gun was not correct and that any
witness’s statement that Mr. Phosy had a gun would not have provided him with a defense.


                                              -7-
The Petitioner also claimed that trial counsel failed to provide him with his recorded
statement to the police and a TBI report and that such materials would have assisted with his
defense. The Petitioner agreed that he was present while giving his recorded statement to the
police and that he knew what he said during his statement. The Petitioner has not
demonstrated how having a recording of his statement would have provided any information
or a defense not already known to him and counsel when he entered his guilty pleas.
Furthermore, although the Petitioner claimed that the TBI report suggested that there could
have been another firearm at the scene, he agreed that the report never concluded that the
bullet casings recovered from the scene were fired by more than one gun. Instead, the report
concluded that markings on two of the recovered bullet casings established they were fired
through the same gun and that a third casing had markings that were consistent with the other
two. The Petitioner said that to his knowledge, there was only one gun: the gun he fired.
There is no indication that the TBI report would have provided a defense that would have
been likely to succeed at a trial. The trial court found that the Petitioner failed to present
clear and convincing proof that trial counsel’s performance was deficient or that the
Petitioner was prejudiced by counsel’s performance. The evidence does not preponderate
against the trial court’s findings. The Petitioner is not entitled to relief.

                                              II

       The Petitioner contends that trial counsel rendered ineffective assistance by failing to
discuss the definition of first degree murder and lesser included offenses with the Petitioner
before he entered his guilty pleas and that as a result, his pleas were not knowingly entered
into. The State contends that the trial court properly found that the Petitioner failed to
establish his claim. We agree with the State.

       When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the
defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). The court reviewing the
voluntariness of a guilty plea must look to the totality of the circumstances. See State v.
Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). The circumstances include

              the relative intelligence of the defendant; the degree of his
              familiarity with criminal proceedings; whether he was
              represented by competent counsel and had the opportunity to
              confer with counsel about the options available to him; the
              extent of advice from counsel and the court concerning the
              charges against him; and the reasons for his decision to plead
              guilty, including a desire to avoid a greater penalty that might
              result from a jury trial.

                                              -8-
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (citing Caudill v. Jago, 747 F.2d
1046, 1052 (6th Cir. 1984)). A plea resulting from ignorance, misunderstanding, coercion,
inducement, or threats is not “voluntary.” Blankenship, 858 S.W.2d at 904.

        Although the Petitioner claimed at the post-conviction hearing that trial counsel failed
to discuss the definition of first degree murder and lesser included offenses with the
Petitioner before he entered his guilty pleas, the Petitioner agreed that he discussed reckless
homicide with trial counsel, that trial counsel mentioned the possibility of a plea agreement
involving reckless homicide, and that trial counsel discussed the elements of the crimes with
which he was charged and of what he could be found guilty. At the guilty plea hearing, the
Petitioner testified that trial counsel went over the elements of each offense with which he
was charged, including explanations of first degree murder, second degree murder, voluntary
manslaughter, and “all those other options in there,” that he did not have any questions
regarding the elements of the offenses, and that trial counsel explained what the State would
need to prove in order to obtain convictions. He also testified that he was not forced or
coerced to enter the plea agreement and that he reviewed the plea agreement with trial
counsel, understood it, and did not have questions about it. He said that he understood the
rights he waived pursuant to the agreement and that he was pleading guilty to second degree
murder because he was guilty. He said that he entered into the plea agreement freely and
voluntarily based upon his own decision, not trial counsel’s decision, and that he agreed to
plead guilty because it was “the best.” As noted above, the evidence does not preponderate
against the trial court’s finding that the Petitioner’s post-conviction testimony was not
credible. The trial court also found that the Petitioner failed to present clear and convincing
proof that trial counsel’s performance was deficient or that the Petitioner was prejudiced by
counsel’s performance. The evidence does not preponderate against the trial court’s findings.
The Petitioner is not entitled to relief.




                                               III

        The Petitioner contends that trial counsel rendered ineffective assistance by failing to
inform the Petitioner that he could hire an expert witness. The State contends that the
Petitioner has waived any issue regarding trial counsel’s failure to discuss the possibility of
hiring an expert witness because he failed to raise the issue in either his original or amended
petition for post-conviction relief. Alternatively, the State contends that the Petitioner failed
to establish this claim with clear and convincing evidence. We conclude that the Petitioner
has failed to establish this claim by clear and convincing evidence.

                                               -9-
        The State argues that an issue not presented in a petition for post-conviction relief may
not be raised for the first time on appeal. See T.C.A. § 40-30-106(g) (2006) (“A ground for
relief is waived if the petitioner . . . failed to present it for determination in any proceeding
before a court of competent jurisdiction in which the ground could have been presented. . .
.”); State v. Townes, 56 S.W.3d 30, 35 (Tenn. Crim. App. 2000), overruled on other grounds
by State v. Terry, 118 S.W.3d 355, 359 (Tenn. 2003). We note that this issue is not being
raised for the first time on appeal. Unlike the waived issue in Townes, the Petitioner
presented this issue to the trial court during the post-conviction hearing. Furthermore, the
State did not object to the Petitioner’s raising the issue at the post-conviction hearing. Had
the State objected, the trial court could allow the Petitioner to amend the petition “and shall
do so freely when the presentation of the merits of the cause will otherwise be subserved.”
Tenn. Sup. Ct. R. 28 §8(D)(5). We hold that the Petitioner has not waived this issue.

        Although the Petitioner testified that knowing he could hire an expert would have
changed his understanding of the “whole situation” and that an expert could have
corroborated his theory that the killings were accidental, he also agreed that he did not have
an expert witness at the post-conviction hearing and that he had no idea what an expert would
say. We conclude that the Petitioner has failed to present clear and convincing evidence that
trial counsel failed to discuss the possibility of hiring an expert witness or that he would not
have pled guilty had he known he could hire an expert.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.




                                                ____________________________________
                                                JOSEPH M. TIPTON, PRESIDING JUDGE




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