        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs September 9, 2014

               JAMES DAVID SHELL v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2012-I-1151 J. Randall Wyatt, Jr., Judge


                No. M2014-00381-CCA-R3-PC - Filed October 2, 2014



Petitioner, James David Shell, pled guilty to two counts of possession with intent to sell
or deliver a Schedule II controlled substance and one count of driving under the
influence. During plea negotiations, Petitioner was offered two alternate sentences by the
State: either one year to serve with ten years of probation or seven years to serve with no
probation. After consulting with his attorney, Petitioner chose the seven-year sentence.
Subsequently, Petitioner filed a petition for post-conviction relief, alleging that his guilty
plea was not knowing and voluntary because he was under the influence of several
prescribed medications at the time he pled. He also claimed that he received ineffective
assistance of counsel. After a hearing, the post-conviction court denied relief, finding that
Petitioner failed to prove his claims by clear and convincing evidence. Petitioner
appealed. Upon thorough review of the record, we affirm the decision of the post-
conviction court.

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

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

Jessica Van Dyke, Nashville, Tennessee, for the appellant, James David Shell.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy Alcock, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Hunter,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION


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                                   Factual Background

       Petitioner was charged, via a criminal information, with three counts of possession
with intent to sell or deliver a Schedule II controlled substance, one count of possession
with intent to sell or deliver a Schedule IV controlled substance, and one count of driving
under the influence (“DUI”). On October 12, 2012, Petitioner pled guilty to two counts
of possession with intent to sell or deliver a Schedule II controlled substance and one
count of DUI. The remaining counts were dismissed. During plea negotiations with the
prosecutor, Petitioner was offered two alternate sentences: either one year to serve day-
for-day with ten years of probation or a total effective sentence of seven years to be
served at thirty percent. After discussing the matter with his counsel and family,
Petitioner chose the seven-year sentence to serve.

        On June 3, 2013, Petitioner filed a timely petition for post-conviction relief. An
attorney was appointed and filed an amended petition on October 23, 2013. Petitioner
alleged that his guilty plea was not knowing or voluntary because he was under the
influence of several prescribed medications at the time of the plea. He also alleged that
his trial counsel was ineffective for allowing him to enter a plea in his medicated state
rather than requesting a continuance.

        At the post-conviction hearing, Petitioner testified that he was on medication the
day he entered his guilty plea and that he does not remember very much about that
morning. He remembered meeting with counsel and being accompanied to court by
several family members. He only “sort of” remembered entering his plea before the trial
judge, but he did not remember being asked questions during the plea hearing or signing
the plea petition. He testified, “I know I stood up there. I don’t know what was said, I
just, you know, pled guilty.”

        Petitioner’s medical records show that he was prescribed five different medications
for prior knee and elbow surgeries, back pain, panic attacks, and depression. Petitioner
testified that he took his medications daily as per his physician’s instructions. He
believes that he took all five medications the morning of his plea hearing, as that was his
daily routine; however, he does not specifically remember taking his medications that
day. Petitioner testified that he had also suffered head injuries and been in a coma, which
caused him to experience short-term memory loss. He did not receive treatment for his
memory loss and conceded that it is possible he does not remember all of his plea hearing
because of the memory loss rather than because of his medications.

       Petitioner testified that after the plea hearing, he was taken to the Criminal Justice
Center, where he fell asleep on a bunk. When he woke up, the medications had worn off,
and his mind was clear. He realized that he made a mistake by accepting the offer of

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seven years to serve rather than the offer of one year to serve followed by ten years of
probation. He testified that he called his trial counsel and informed him that he wanted to
accept the State’s initial offer. Petitioner testified that, had he not been under the
influence of his medications the morning of the plea hearing, he would have accepted the
one-year sentence with probation.

       Counsel testified that he was retained by Petitioner and met with Petitioner ten to
twenty times prior to the plea hearing. Counsel was aware that Petitioner had substance
abuse problems and short-term memory issues, and he knew that Petitioner was on
several medications at the time leading up to the plea hearing. Counsel testified that he
could not recall if he discussed whether Petitioner took medication on the morning of the
plea hearing. Counsel also did not recall whether the trial judge asked during the plea
hearing whether Petitioner took any medication prior to the entry of the plea, even though
such a question was fairly routine.

        Counsel explained that Petitioner was on probation for five years at the time he
was arrested on the charges in this case. A probation violation hearing was scheduled for
the day of the plea. Counsel wanted to put together a “package deal” to dispose of both
the probation violation and the new charges. The State initially offered a one year
sentence to serve, followed by ten years of probation. Counsel testified that Petitioner
requested that he negotiate a sentence to serve rather than probation, and the State made
the alternate offer of seven years to serve at thirty percent.

        Counsel testified that he explained both offers to Petitioner with Petitioner’s
family present. Counsel’s advice to Petitioner was to accept the one year offer with
probation “if he could successfully complete the probation.” However, Petitioner
indicated that he wanted to choose the seven-year sentence to serve, and he gave a very
detailed explanation of his choice to his family. Petitioner explained that he believed he
would be classified as special needs and sent to a facility in Nashville, that he would be
eligible for parole after only a little bit more time than the one-year sentence, and that he
would be on parole for less time than the ten-year probation and that it would be harder to
violate. Counsel testified that Petitioner’s explanation “was as good as anything I have
heard any other lawyers give to their clients.” Even though both Counsel and Petitioner’s
family thought the one-year sentence with probation was the better option, Counsel
testified that Petitioner had “obviously” thought through his options and made a rational
decision, which Petitioner reaffirmed several times over the course of an hour.

       Counsel testified that every time he met with Petitioner prior to the plea hearing,
“there was at least a concern that maybe he had taken prescription medication to excess.”
However, Counsel testified that any concern that Petitioner might be impaired on the day
of the plea hearing was dispelled when Petitioner explained his reasons for the sentencing

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option he chose. Counsel testified that if any concerns existed that Petitioner did not
understand what he was doing on the day of his plea hearing, Counsel would not have
permitted Petitioner to plead guilty.

       Counsel testified that a few days after the plea hearing, he received phone calls
from Petitioner’s family informing him that Petitioner had changed his mind on his plea.
Counsel visited both Petitioner and Petitioner’s family. Counsel then approached the
State and explained that Petitioner had changed his mind, but the State would not agree to
withdraw Petitioner’s plea or amend the judgments.

        A transcript of the plea hearing was entered into evidence. During the plea
hearing, Petitioner acknowledged that he understood his right to a jury trial and his right
to remain silent, and that he was waiving those rights by pleading guilty. Petitioner
acknowledged that Counsel advised him concerning the plea petition and that he filled out
the petition with Counsel’s help. Petitioner testified that he understood what he was
doing, he understood the charges he was pleading guilty to, and he understood the
sentence he was receiving. Petitioner acknowledged that he was pleading voluntarily.
Counsel testified that he spoke with Petitioner and was satisfied that Petitioner understood
the consequences of his plea. Counsel believed that Petitioner was pleading voluntarily.
The trial court accepted Petitioner’s guilty pleas and sentenced him to a total effective
sentence of seven years to be served at thirty percent. The trial court did not ask
Petitioner if he was under the influence of any drugs or medications that would impair his
ability to understand the plea agreement and enter a knowing and voluntary plea.

       At the conclusion of the post-conviction hearing, the post-conviction court took the
matter under advisement. On February 4, 2014, the post-conviction court entered an
order denying the petition for relief. Petitioner filed a timely notice of appeal.

                                          Analysis

                                   I. Standard of Review

        In order to prevail in a claim for post-conviction relief, a petitioner must prove his
factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is
no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal,
this Court gives deference to the trial court’s decision on questions concerning witness
credibility, the weight and value to be given to testimony, and the factual issues raised by
the evidence. Momon, 18 S.W.3d at 156 (citing Henley v. State, 960 S.W.2d 572, 578
(Tenn. 1997)). This court will not reweigh or reevaluate the evidence presented below

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and is bound by the findings of the post-conviction court unless the evidence
preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). However, the
post-conviction court’s conclusions of law and application of the law to the facts are
subject to de novo review with no presumption of correctness. Fields v. State, 40 S.W.3d
450, 457 (Tenn. 2001).

                            II. Ineffective Assistance of Counsel

        Petitioner alleges that he received ineffective assistance of counsel. Both the Sixth
Amendment to the United States Constitution and Article I, section 9 of the Tennessee
Constitution guarantee the right of an accused to the effective assistance of counsel. To
support a claim for ineffective assistance of counsel, a post-conviction petition would
have to contain sufficient factual assertions to satisfy the two-pronged test established by
Strickland v. Washington, 466 U.S. 668 (1984). In other words, Petitioner “must show
first that counsel’s performance was deficient and second that the deficient performance
prejudiced the defense.” Burnett v. State, 92 S.W.3d 403, 408 (Tenn. 2002). “Because a
petitioner must establish both prongs . . . to prevail on a claim of ineffective assistance of
counsel, failure to prove either deficient performance or resulting prejudice provides a
sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580.

        The test for deficient performance is “whether counsel’s assistance was reasonable
considering all the circumstances.” Strickland, 466 U.S. at 688. Counsel’s performance
is considered reasonable “if the advice given or the services rendered [were] within the
range of competence demanded of attorneys in criminal cases.” Henley, 960 S.W.2d at
579 (citing Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). To be considered
deficient, counsel’s acts or omissions must fall below an objective standard of
reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688; Henley,
960 S.W.2d at 579. However, this Court will not use hindsight to second guess counsel’s
tactical decisions unless the choices were uninformed because of inadequate preparation.
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

       The post-conviction court, in its order denying the petition, found that Petitioner
failed to prove by clear and convincing evidence that Counsel’s performance was
deficient. The post-conviction court found that Counsel met with Petitioner several times
to discuss the case, negotiated a settlement with the State that gave Petitioner the choice
between a sentence to serve and probation, “thoroughly and competently” explained the
ramifications of both offers to Petitioner, and allowed Petitioner “to decide for himself”
which offer to accept. The post-conviction court concluded that “nothing about
[counsel’s] representation of the Petitioner in this case even approaches ineffectiveness.”
We agree, and nothing in the record preponderates against the post-conviction court’s
findings. Petitioner is not entitled to relief on this ground.

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                                 III. Voluntariness of Plea

       Petitioner also contends that his guilty plea was entered unknowingly and
involuntarily due to the effects of the medications he was taking. Petitioner asserts that,
had he not been on medication the morning of his guilty plea, he would have rendered a
different decision. The State asserts that the record shows that Petitioner knowingly,
voluntarily, and understandingly pleaded guilty. We agree.

       When reviewing a guilty plea, the primary question is whether it was entered
knowingly, voluntarily, and understandingly. Boykin v. Alabama, 395 U.S. 238, 242-22
(1969). “[A] plea is not ‘voluntary’ if it is the product of ‘[i]gnorance, incomprehension,
coercion, terror, inducements, [or] subtle or blatant threats.’” Blankenship v. State, 858
S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43). Moreover, a plea
cannot be voluntary if the defendant is “incompetent or otherwise not in control of [his]
mental facilities” at the time it is entered. Id. at 904 (quoting Brown v. Perini, 718 F.2d
784, 788 (6th Cir. 1983)).

       To determine whether a plea has been made knowingly, voluntarily, and
understandingly, a court must look at the totality of the circumstances, including such
factors as:

       the relative intelligence of the [petitioner]; 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.

Powers v. State, 942 S.W.2d 551, 556 (Tenn. 1996) (quoting Blankenship, 858 S.W.2d at
904). “If the accused is to make a ‘voluntary and intelligent choice among the alternative
courses of action’ available to him, counsel must advise the accused, among other things,
of the choices that are available to him as well as the probable outcome of the choices.”
Parham v. State, 885 S.W.2d 375, 384 (Tenn. Crim. App. 1994).

        The post-conviction court found that Petitioner “clearly made ‘a voluntary and
intelligent choice among the alternative courses of action open to’ him.” The court
accredited the testimony of trial counsel and found that Petitioner “rationally analyzed
both of the offers before him and freely chose the one he wanted to accept.” The court
found that Petitioner’s claim that he was intoxicated at the time of the plea hearing was

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not credible but that, “[e]ven if the Petitioner is to be believed that he does not remember
much about the plea, . . . it is equally likely that this is due to his memory loss as it is
intoxication.” Additionally, the Petitioner signed a Petition to Enter a Plea of Guilty,
which was entered as an exhibit at his evidentiary hearing. Paragraph 21 of this Petition
affirms that the Petitioner declared at the time he entered his plea that he was not under
the influence of any alcoholic beverage or intoxicating drug. The post-conviction court
denied relief because Petitioner did not meet his burden to prove by clear and convincing
evidence that his plea was not knowingly and voluntarily entered. Nothing in the record
preponderates against the post-conviction court’s findings. Therefore, Petitioner is not
entitled to relief.

                                        Conclusion

       Upon thorough review of the record, we determine that Petitioner has failed to
prove by clear and convincing evidence either that he received ineffective assistance of
counsel or that his guilty plea was entered unknowingly or involuntarily. We, therefore,
affirm the decision of the post-conviction court.




                                          _________________________________
                                          TIMOTHY L. EASTER, JUDGE




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