        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs January 13, 2016

              ALVIN GEORGE RYE v. STATE OF TENNESSEE

              Appeal from the Circuit Court for Montgomery County
                      No. 41200256     Ross H. Hicks, Judge




              No. M2015-01294-CCA-R3-PC – Filed February 5, 2016
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Petitioner, Alvin George Rye, sought post-conviction relief in Montgomery County
following his no contest plea to one count of attempted rape of a child. The petition for
relief was dismissed after a hearing. Upon review, we affirm the judgment of the post-
conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROGER A. PAGE, J., joined.

Gregory D. Smith, Clarksville, Tennessee for the petitioner, Alvin George Rye.

Herbert H. Slatery III, Attorney General and Reporter; David H. Finley, Senior Counsel;
John W. Carney, District Attorney General; and Kimberly Lund, Assistant District
Attorney General, for the respondent, State of Tennessee.


                                       OPINION

       Petitioner and his wife were indicted in a multi-count indictment in March of 2012
by the Montgomery County Grand Jury for events that took place in 2008 and 2009. The
charges against Petitioner included eight counts of rape of a child and four counts of
criminal responsibility for rape of a child. The victims at issue were Petitioner‟s
daughters, who were born in 2001 and 2006.

       At the November 20, 2013 plea hearing, trial counsel for Petitioner informed the
court that, had the case gone to trial, the victim would not have testified because,
“whether as a result of these offenses and/or other causes[, she] has been involuntarily
placed in a mental institution.” The victim suffered from “mental trauma.” The State
would have relied on proof in the form of statements given by the victim for the purposes
of medical diagnosis and treatment, an admission by Petitioner as to count one, and
testimony of Petitioner‟s wife. Essentially, Petitioner admitted that he “was drunk and in
the bathroom on the bathroom floor when a female walked in and he reached up
believing it to be his wife . . . , felt between her legs, then [] discovered after a few
moments that no, this was his daughter, who was nine or ten years old.” The proof would
also show that the defendant‟s wife was a large woman, weighing nearly 250 pounds.

       The State informed the trial court that the plea agreement was a “compromise” to
reduce count one of the indictment to attempt to commit rape of a child in exchange for a
twelve-year sentence to be served at thirty percent. Petitioner would also be subject to
community supervision for life, registration as a sex offender, attendance at treatment for
sex offenders, and termination of his parental rights. The trial court accepted the plea
agreement.

       On July 11, 2014, Petitioner filed a pro se petition for post-conviction relief in
which he alleged that he received ineffective assistance of counsel, that his guilty plea
was involuntary, and that there was newly discovered evidence. Counsel was appointed
and an amended petition was filed.

        At a hearing on the petition, Petitioner stated that he was thirty-five years old and
had a ninth grade education. He testified that he met with trial counsel about three times
prior to the plea and received a discovery packet but had “trouble understanding some of
it.” Each meeting lasted “[a]bout ten or fifteen minutes.” Petitioner did not understand
all of the terms used in the indictment, including fellatio, but admitted he knew these
unfamiliar words related to sex. Petitioner claimed that he did not have all the “forensic
science and everything” together in order to enter the plea. Additionally, Petitioner
testified that he did not understand that the sentencing range of thirty percent did not
guarantee parole after service of thirty percent of the sentence and that he did not
understand he was going to be on probation for the rest of his life. Petitioner claimed that
he did not discuss the elements of the offenses at issue, specifically penetration, with trial
counsel.

       Trial counsel testified that he had been practicing law for “roughly thirty years”
solely in the area of criminal law. Trial counsel met with Petitioner “[a]t least five times”
and presented him with a discovery packet. Petitioner asked questions about the packet
but none of them involved vocabulary. Trial counsel explained to Petitioner that there
was no DNA evidence but that the State could prove its case without any DNA evidence
because there was an admission and his wife was willing to testify against him at trial.
Trial counsel recalled that, at first, the State wanted to go to trial because Petitioner had
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“prior convictions for child pornography” and was on probation at the time of the
offense. Trial counsel recalled that the “evidentiary problems” with the child victim‟s
testimony emerged about four months prior to the settlement. Trial counsel recalled
discussing the terms of the plea agreement with Petitioner, “specifically alert[ing] him to
the community supervision for life.” Petitioner indicated to trial counsel that he did not
like but understood the terms of the plea. Trial counsel admitted that he was unaware
that Petitioner dropped out of school. Trial counsel testified that this knowledge could
have changed the way he presented issues to Petitioner as he would have probably used
“high school words” for things “like fellatio and cunnilingus.” It would not have
changed any other facet of the negotiation.

       At the conclusion of the hearing, the post-conviction court looked at the transcript
of the plea and sentencing hearing and determined that the trial court held a “lengthy and
thorough discussion of the consequences of [the] plea with [Petitioner].” The post-
conviction court also noted Petitioner‟s repeated acknowledgement of his understanding
from the plea hearing. The post-conviction court concluded:

       despite his protestations to the contrary, if there is any indication that
       [Petitioner] doesn‟t have a clear understanding of what is going on and
       what was going on, even the fact of his testimony today that he - - questions
       of whether he could possibly understand that if the Court granted his
       wishes, he‟s back facing two hundred years. If there is any questioning to
       be done of anyone‟s judg[]ment in this matter, it would be the questioning
       of [Petitioner‟s] judg[]ment and the capacity today to understand the
       significance of - - and the foolhardiness of asking the court - - the decision
       he is asking the Court to make.

              ....

              [Petitioner] knew what he was doing. [Counsel] represented him
       well and competently . . . .

The post-conviction court denied the petition. Petitioner filed a timely appeal.

                                          Analysis

       Petitioner challenges the denial of post-conviction relief on appeal. 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
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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 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).

                            I. 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. The test for ineffective assistance of counsel is a two-prong test: a
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) (citing Strickland v. Washington, 466 U.S. 668 (1984)). “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).

        Even if a petitioner shows that counsel‟s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. Prejudice is shown where “there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.” Burns, 6
S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). This reasonable probability must be
“sufficient to undermine confidence in the outcome.” Id. In the context of a guilty plea,
the specific inquiry is whether “there is a reasonable probability that, but for counsel‟s
errors, [the petitioner] would not have pleaded guilty and would have insisted on going to

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trial.” Calvert v. State, 342 S.W.3d 477, 486 (Tenn. 2011) (quoting Hill v. Lockhart, 474
U.S. 52, 59 (1985)).

        The post-conviction court, in its order denying the petition, found that Petitioner
failed to prove by clear and convincing evidence that trial counsel‟s performance was
deficient. The post-conviction court found that trial counsel met with Petitioner several
times to discuss the case and negotiated a settlement with the State. The post-conviction
court concluded that trial counsel was a credible witness and rejected Petitioner‟s claim
that trial counsel did not meet with and discuss the case adequately with Petitioner.
Questions concerning the credibility of witnesses and the weight to be given to their
testimony are matters for the post-conviction court. Black v. State, 794 S.W.2d 752, 755
(Tenn. Crim. App. 1990). Nothing in the record preponderates against the post-
conviction court‟s findings. Because Petitioner did not establish deficient performance
on the part of trial counsel, we need not address the prejudice prong of the Strickland test.

                                  II. Voluntariness of Plea

       Petitioner also contends that his guilty plea was entered unknowingly and
involuntarily. Petitioner asserts that he did not fully understand the plea because trial
counsel failed to fully explain the terms of the plea agreement. 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, 242-43
(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. (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,

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      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 these choices.”
Parham v. State, 885 S.W.2d 375, 384 (Tenn. Crim. App. 1994). Moreover, “[t]he entry
of a plea of guilty to avoid a . . . risk [of] greater punishment does not, standing alone,
make the plea involuntary.” Id. at 381(citing Capri Adult Cinema v. State, 537 S.W.2d
896, 898 (Tenn. 1976) (other citations omitted)); see also Brady v. United States, 397
U.S. 742, 748-50 (1970); Hicks v. State, 983 S.W.2d 240, 248 (Tenn. Crim. App. 1998).

       The post-conviction court found that Petitioner was not entitled to relief on the
basis that his plea was entered unknowingly or involuntarily. The post-conviction court
noted that trial counsel explained the terms of the agreement during the guilty plea
hearing. The post-conviction court reminded Petitioner that if his plea was withdrawn
and the case started anew, he would be facing over two hundred years in incarceration on
the charges as originally stated in the indictment. As stated above, a post-conviction
court‟s factual findings are given a presumption of correctness, rendering them
conclusive on appeal unless the record preponderates against the court‟s findings. We
have found nothing in the record to preponderate against the post-conviction court‟s
findings. Petitioner has failed to prove that trial counsel did not discuss the plea with
Petitioner prior to its entry.

       Moreover, the transcript of the guilty plea hearing reflects that the trial court
discussed the ramifications of the guilty plea with Petitioner. The trial court thoroughly
questioned Petitioner to ascertain whether he understood the effects of the plea. The plea
hearing also indicates that Petitioner knew what he was doing, understood the plea, and
agreed that it was what he wanted to do to resolve the case. Petitioner has failed to show
by clear and convincing evidence that he received ineffective assistance of counsel or that
his guilty plea was involuntary. Furthermore, Petitioner has failed to prove he did not
understand the consequences of his plea. 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.

                                       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

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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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