        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 6, 2009

                  MARCO LINSEY v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                          No. 06-07289 Mark Ward, Judge




                 No. W2009-00282-CCA-R3-PC - Filed April 15, 2010




The Petitioner, Marco Linsey, appeals as of right the Shelby County Criminal Court’s denial
of his petition for post-conviction relief challenging his guilty plea conviction for one count
of child rape, a Class A felony. On appeal, the Petitioner argues that he received the
ineffective assistance of counsel and that counsel’s ineffective assistance rendered his guilty
pleas unknowing and involuntary. After the appointment of counsel and a full evidentiary
hearing, the post-conviction court found that the Petitioner failed to prove his allegations by
clear and convincing evidence and denied the petition. Following our review, we affirm the
judgment of the post-conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN, JJ., joined.

David Christensen, Memphis, Tennessee, attorney for appellant, Marco Linsey.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Paul Thomas Hoover, Jr.,
Assistant District Attorney General, attorneys for appellee, State of Tennessee.


                                         OPINION

       A Shelby County Grand Jury charged the Petitioner with child rape. The offense
involved acts committed against the Petitioner’s eleven-year-old neighbor. The victim
alleged that the Petitioner came into her room through a window and raped her. On March
26, 2007, the Petitioner pled guilty to one count of child rape. In exchange for his guilty
plea, the Petitioner was sentenced as a mitigated offender to 13.5 years at 100%, the
minimum sentence proscribed for the Class A felony conviction.

        On March 3, 2008, the Petitioner filed a petition for post-conviction relief, and with
the assistance of counsel, the Petitioner filed an amended petition for post-conviction relief
on September 30, 2008. The Petitioner alleged that his guilty plea was involuntary and the
result of ineffective assistance at trial. Specifically, he claimed that trial counsel failed to
properly discuss the case with the Petitioner and that trial counsel failed to properly prepare
the case for trial. He also claimed that trial counsel erroneously informed the Petitioner as
to when he would be eligible for release and that if trial counsel had informed him, he would
not have pled guilty.

        The proof at the evidentiary hearing consisted solely of the testimony of the Petitioner
and trial counsel. The Petitioner testified regarding trial counsel’s performance. According
to the Petitioner, he pled guilty because he believed that penetration was not a required
element of child rape. The Petitioner claimed that he never received discovery documents
from trial counsel and that trial counsel did not explain the facts of the case to him. Trial
counsel told him that there was “no way [he] could win this trial” and that he needed to agree
with everything the judge said at the guilty plea hearing because this was the best plea
agreement he would receive.

        The Petitioner also stated that he agreed to a sentence of 13.5 years to serve at 20%
and that the judgment form appears to be altered. The Petitioner agreed that the trial judge
declared in the plea colloquy that the sentence was 13.5 years to serve at 100%, but he
argued that he thought the judge meant that 100% was the most he would have to serve and
that the Tennessee Department of Correction would ultimately decide what percentage he
would serve. He then stated that he would have pled guilty even if he had known that he
would have to serve his sentence at 100% because he believed that penetration was not a
required element of child rape. Therefore, his desire to plead guilty was not affected by the
percentage of the sentence he would be required to serve.

        On cross-examination, the Petitioner insisted that he told trial counsel that he did not
rape the victim and that he gave trial counsel names regarding witnesses who had
information. The Petitioner admitted that he did touch, kiss, and attempt to have sex with
the victim, but he denied raping her. The Petitioner admitted that the trial judge told him that
penetration was a required element of child rape, but the Petitioner stated that he was too
scared to ask any questions.

       Trial counsel testified that he has been practicing law for approximately twenty-five
years and that 80% of his practice consists of criminal defense cases. Prior to the Petitioner’s

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preliminary hearing, trial counsel believed that the Petitioner may not be competent to stand
trial. After the Petitioner was declared competent, trial counsel continued working on his
case. He stated that he received discovery and that he discussed the case with the Petitioner.

        According to trial counsel, the Petitioner never wanted to take his case to trial.
However, the Petitioner had trouble understanding why he was guilty of child rape because
he was not able to fully penetrate her vagina. Trial counsel explained to the Petitioner that
any amount of penetration was sufficient for a conviction of child rape. Even though the
Petitioner knew that the victim was eleven, the Petitioner was still confused as to why his
actions amounted to rape because the victim consented to the act, was “provocative,” and
pursued him and others in the neighborhood. Trial counsel said that the Petitioner gave him
the name of a potential witness to corroborate his story. The witness was the Petitioner’s
best friend, a fifteen-year-old boy. Trial counsel did not interview this witness because he
did not believe that testimony from the Petitioner’s fifteen-year-old best friend would be
beneficial.
        After having several discussions with the Petitioner, trial counsel began to pursue a
defense of mental impairment. At some point, trial counsel spoke with the Petitioner’s
family and asked them if they had noticed a change in the Petitioner’s behavior. All of the
family members stated that they had not noticed any change in the Petitioner’s behavior.
Consequently, trial counsel concentrated his efforts on trying to get the best possible plea
agreement for the Petitioner.

       Trial counsel testified that, before the plea hearing, he did tell the Petitioner to answer
the judge’s questions with a “yes, sir” or “no, sir” because most of his clients do not know
how to address a trial judge. He also stated that when he discussed the judgment form with
the Petitioner, the form reflected that the Petitioner was to serve his sentence at 100%. Trial
counsel admitted that the form appears to be altered, but he stated that the form was correct
when he talked with the Petitioner.

       On cross-examination, trial counsel admitted that there was no scientific evidence
linking the Petitioner to the crime of child rape but that there was evidence that the victim
was injured. Trial counsel admitted that the Petitioner stated that he could not penetrate the
victim because she was a virgin. However, trial counsel insisted that there was penetration
because the Defendant admitted that he was trying to have sex with the victim when he
discovered that she was a virgin. Trial counsel admitted that he waived the preliminary
hearing, but he stated that he discussed this with the Petitioner and that the Petitioner chose
to waive the hearing in exchange for a reduction in bond.

       Following the evidentiary hearing, the post-conviction court found that the Petitioner
failed to prove by clear and convincing evidence that trial counsel did not adequately
investigate and prepare the case. The post-conviction court found that trial counsel and the

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trial court advised the Petitioner that he would serve his sentence at 100%. Moreover, the
Petitioner testified that he would have pled guilty even if he had known of the 100%
requirement; therefore, the Petitioner did not prove that he was prejudiced by the alleged
error. The post-conviction court further found that the Petitioner did not prove that trial
counsel told him that penetration was not a required element of child rape. The post-
conviction court also noted that the Petitioner did not raise this issue in the pleadings.

                                         ANALYSIS

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f). 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 (Tenn. 2001). 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.


       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the petitioner must prove (1) that counsel’s
performance was deficient and (2) that the deficiency was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). In other words, a showing that counsel’s performance falls below a reasonable
standard is not enough; rather, the petitioner must also show that but for the substandard
performance, “the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989). In the context of a guilty plea as in this case, the effective assistance of counsel is
relevant only to the extent that it affects the voluntariness of the plea. Therefore, to satisfy
the second prong of Strickland, the petitioner must show that “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Walton v. State,
966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).


       The Petitioner asserts that trial counsel was deficient in advising the Petitioner that
he would serve the child rape conviction at 20% and that the Petitioner pled guilty because
he believed that he would only have to serve 20% of his sentence before he would be eligible
for parole. The Petitioner also argues that he conditioned his acceptance of the plea
agreement on the erroneous belief that penetration was not an element of child rape. The

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State argues that the Petitioner failed to prove that counsel erroneously advised him that he
would serve his sentence at 20%. The State also contends that the Petitioner’s argument that
counsel was deficient in stating that penetration was not a required element of child rape is
waived for failure to include it in the pleadings.


        In spite of his initial assertion that counsel misinformed him regarding his release
eligibility, the Petitioner stated multiple times in the post-conviction hearing that he would
have pled guilty even if he had known that he would have to serve 100% of his sentence
because he believed that penetration was not a required element of child rape. Consequently,
even if the Petitioner was misled as to the percentage requirement, he has failed to prove that
he would have insisted on going to trial if he had known that he would have to serve his
sentence at 100%. Furthermore, the guilty plea acceptance and waiver form, signed by the
Petitioner, clearly indicates that the Petitioner would serve 100% of his sentence - as does
the judgment of conviction, which was also signed by the Petitioner.


       The real issue here is whether trial counsel erroneously instructed the Petitioner that
penetration is not a required element of child rape. We must first note that the issue of
penetration was alluded to in the Petitioner’s pro se petition for post-conviction relief.
Therefore, this issue is not waived, and we will review the merits of his claim.


       The Petitioner admitted in the post-conviction hearing that he attempted to have sex
with the victim. Trial counsel testified that the Petitioner told him that he attempted to have
sex with the victim but that he was unable to fully penetrate her vagina because she was a
virgin. Trial counsel also stated that he told the Petitioner that any amount of penetration
was sufficient for child rape. There is no showing that trial counsel’s advice was deficient
in any way. Accordingly, we conclude that the record supports the post-conviction court’s
finding that the Petitioner failed to prove by clear and convincing evidence that trial counsel
instructed the Petitioner that penetration was not a required element of child rape.




                                       CONCLUSION




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       In consideration of the foregoing, the judgment of the post-conviction court denying
the petition for post-conviction relief is affirmed.




                                                  _______________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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