        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 18, 2014

                   TAMIR CLARK v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Rutherford County
                        No. F-70407 M. Keith Siskin, Judge




               No. M2014-00618-CCA-R3-PC - Filed December 18, 2014



The Petitioner, Tamir Clark, pleaded guilty to especially aggravated kidnapping, arson,
especially aggravated robbery, and attempted robbery, and the trial court sentenced him to
serve twenty-five years in the Tennessee Department of Corrections. The Petitioner filed a
petition for post-conviction relief, in which he alleged that he had received the ineffective
assistance of counsel and that his guilty plea was not knowingly and voluntarily entered. The
post-conviction court dismissed the petition after a hearing. On appeal, the Petitioner
contends that the post-conviction court erred when it dismissed his petition, maintaining that
he received the ineffective assistance of counsel and that his guilty plea was not knowingly
and voluntarily entered. After a thorough review of the record and applicable law, we affirm
the post-conviction court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and T IMOTHY L. E ASTER, JJ., joined.

Thomas H. Bray, Murfreesboro, Tennessee, for the appellant, Tamir Clark.

Herbert E. Slatery, III, Attorney General and Reporter; Meredith Devault, Senior Counsel;
William Whitesell, District Attorney General; J. Paul Newman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                           I. Facts
       This case arises from the victim, Latorcia Clark, being robbed, kidnapped, and her car
being set on fire. The Petitioner, the victim’s stepson, was indicted for offenses related to
this incident.

                                 A. Guilty Plea Hearing

      At the guilty plea submission hearing, the State offered the following summary of the
evidence supporting the Petitioner’s guilty plea:




               [O]n or about the 29th day of October, 2010, [the Petitioner] did break
       into the home of Latorcia Clark, who is his stepmother. The home was located
       [at] 2607 Lincoya Drive here in Rutherford County and the State of Tennessee.

              While inside [the Petitioner] did attack Ms. Clark. Did render her
       unconscious at times when she was attacked. Did bind her hands and feet.
       Placed an object in her mouth, and covered her head.

              At a point later, she was also dragged from the residence and put into
       the back seat of a vehicle, which was parked in the driveway of the residence.
       The vehicle was her . . . vehicle at her residence.

              [The Petitioner] also stabbed Ms. Clark approximately four times in the
       buttocks area and did make the statement that she was “going to die tonight,
       bitch,” according to the testimony of the officer that would have been called.

              Shortly thereafter, [the Petitioner] apparently attempted to try to steal
       the vehicle, and at some point got frustrated, started a fire in the front
       compartment of the vehicle. The vehicle did catch fire. At some point, the
       husband did come home, saw the fire, and was able to remove her from the
       vehicle. After he removed her from the vehicle, the vehicle did explode. And
       there was damage to not only the vehicle, but the house was also caught on
       fire.

              All of these events did occur here in Rutherford County, State of
       Tennessee, and prior to the return of this indictment. And the especially
       aggravated kidnapping, it was accomplished by a weapon that did result in
       serious bodily injury.

       The State then announced the proposed plea agreement including the negotiated
sentences. It stated that, in exchange for the Petitioner’s pleas, it would dismiss four

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additional charges against him.

        The Petitioner testified at the guilty plea submission hearing that he had heard the
facts articulated by the State and that those facts were basically correct. He confirmed that
he was entering the guilty plea freely and voluntarily and that his attorney had done a “good
job” for him. He stated that he understood the range of punishment for each of his offenses
and the State’s burden of proof. The trial court informed the Petitioner of his rights, and the
Petitioner acknowledged understanding those rights. He testified that he was guilty of the
offenses to which he was pleading guilty.

        The State interjected that it had neglected to articulate during its recounting of the
facts that “there was property taken from [the victim] illegally, which would constitute the
robbery.”

       The trial court found:

              Sir, first, I’m going to find you guilty of aggravated kidnapping.
       Sentence you to 25 years as a Violent, 100 Percent Offender. Counts 5, 7, and
       8 will run concurrent with that. But it will run consecutive to your parole
       violation. That will be a sentence to serve. . . .

              Next, I’m going to find you guilty of the offense of arson. Sentence you
       to 5 years as a . . . Standard, 30 Percent Offender. That will be a sentence to
       serve as well. It will run concurrent with the other cases, except the parole
       violation will run consecutive. . . .

              Next, I’m going to find you guilty of especially aggravated robbery.
       Sentence you to 25 years at 100 percent. It will run concurrent with 2, 5, and
       8 of the indictment, but consecutive to the parole violation. . . .

             Next, I’m going to find you guilty of attempted first degree murder.
       Sentence you to 25 years as a Standard, 30 Percent Offender. It will run
       concurrent with 2, 5, and 7, but consecutive to the parole violation.

               Based upon your pleas in Felony Number 66462, I’ll dismiss Counts 1,
       3, 4, and 6 without any cost to you.

The Petitioner said he did not have any questions.

                          B. Petition for Post Conviction Relief

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        The Petitioner filed a petition seeking post-conviction relief. In it, he asserted that his
attorney (“Counsel”) was ineffective because he failed to inform the Court that the Petitioner
was currently taking a “mind altering medication during the plea negotiation.” He asserted
that, based upon his drug addiction and mental health considerations, he was in “no position
to enter a knowing and intelligent guilty plea.”

       At a hearing on the petition, the Petitioner testified that he was incarcerated on these
charges for two years before he entered his guilty plea. He said that he had been diagnosed
with paranoid schizophrenia and that, at the time of his plea, he was taking medication to
address this mental illness. He said he did not understand what was happening and that, at
the time, he believed that Counsel had his best interest “at heart” and was “doing his job.”
He said that after he went to the penitentiary, he did research and “things didn’t add up.”

       The Petitioner testified that Counsel never came to see him after he was appointed to
represent him. He said that he attempted to fire Counsel, but he was told that Counsel had
health issues. He gave Counsel “another chance,” but the two still had very few
communications. The Petitioner said that Counsel came and talked to him twice. The
Petitioner recalled times when he went to court, and Counsel was not present.

       The Petitioner said that Counsel told him the charges to which he was pleading guilty
but that Counsel never explained the essential elements of those offenses. The Petitioner
further stated that he was taking Thorazine the day he entered his guilty plea, which made
him drowsy and slow to comprehend what was happening. He said that he did not
“register[]” everything Counsel was saying to him. He did not comprehend what was
happening until later. The Petitioner said that he was no longer on Thorazine because the
prison budget did not allow for this medication. He said the medication he was taking was
“not as strong as the Thorazine,” so he could understand “everything now.”

       The Petitioner said he and Counsel never discussed the Petitioner’s mental health
history. He thought Counsel was aware of and had reviewed the Petitioner’s mental health
records. Counsel told the Petitioner that he would have a psychologist come and talk to him,
but the psychologist never came.

      The Petitioner said that Counsel explained to him the charges he faced and the
minimum and maximum punishment. The Petitioner, however, did not understand what
Counsel was saying. The Petitioner said he did not understand that he would be sentenced
as a Career Offender. The Petitioner said his plea should be set aside because of the
medication he was taking at the time he entered the plea.

       During cross-examination, the Petitioner testified that he pleaded guilty to the offenses

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he was charged with because he was guilty of those offenses. He agreed he never told
Counsel that he was innocent of those charges. The Petitioner agreed that he was first
represented by another attorney from the Public Defender’s Office and that his first attorney
had him evaluated by Middle Tennessee Mental Health Institute. This was a thirty-day
evaluation that included an evaluation for schizophrenia and competency to stand trial.

       The Petitioner agreed that he wrote the letter asking Counsel to be removed from his
case while he was taking Thorazine. He said that someone helped him write the letter but
that he knew what he wanted the letter to say.

        The Petitioner said that Counsel discussed the evidence against him, including the
DNA evidence. Counsel expressed to him that the Petitioner was not likely to be successful
at trial. The Petitioner said that he remembered the day that he pleaded guilty. He
remembered the trial court asking him questions, and he remembered giving answers. The
Petitioner said that Counsel read to him the plea petition and that he understood what it said
at the time.

       During redirect examination, the Petitioner testified that he did not comprehend
anything during the guilty plea submission hearing because of his medication. He said that
his guilty plea was not therefore knowingly and voluntarily entered.

        Counsel testified that he was appointed to represent the Petitioner. He said that, as
an assistant public defender, he had represented more than a thousand defendants. Counsel
first encountered the Petitioner in the late 1990s or early 2000s when he represented the
Petitioner in juvenile court. Counsel said that he had read the Petitioner’s mental health
evaluations but that in his dealings with the Petitioner he “never thought he didn’t understand
what [Counsel] was saying to him.”

        Counsel said that the Petitioner’s mental health evaluation that his first attorney
requested was part of the file. He had reviewed the result of that evaluation. Counsel
estimated that he met with the Petitioner between ten and fifteen occasions. The two
discussed the evidence against the Petitioner, including all of the discovery. Counsel said
that he could still recall the evidence against the Petitioner because “it was so devastating to
his case.”

       Counsel said that, while the Petitioner was incarcerated pending his trial, the
Petitioner had written a letter to the Petitioner’s father. In the letter he apologized to his
father for what he had done and explained that the devil had made him do it. Counsel
discussed with the Petitioner that the letter would likely be admissible at trial.



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       Counsel said he discussed the State’s plea offer with the Petitioner at length. The
Petitioner appeared to understand the offer. Counsel said he reviewed the guilty plea petition
with the Petitioner, and the Petitioner did not seem to have trouble understanding that
document. Counsel said that it was the Petitioner’s decision to plead guilty. He said that he
had informed the Petitioner that, given the severity of the charges he faced and the evidence
incriminating him, if the Petitioner did not plead guilty there was a chance he would die in
prison. He said that when he discussed the State’s offer with the Petitioner, they discussed
the fact that, given the Petitioner’s age, he would likely live to be released from prison and
“have some life to live.”

        Counsel agreed that the Petitioner had been diagnosed with a mental disorder before
he committed the offenses in this case. Counsel said that the defenses of insanity or
diminished capacity had already been ruled out by the mental health evaluation done while
the case was pending in general sessions court. Counsel said that he discussed with the
Petitioner that it was the Petitioner’s choice about whether to plead guilty. Counsel did not
recall the Petitioner mentioning that he was taking medication, but he presumed from the
results of the mental health evaluations that medication had likely been prescribed. Counsel
said he explained to the Petitioner the minimum and maximum sentence he faced and also
what the State had to prove in order to support a conviction for the charges against him.

       Counsel agreed that he had a medical issue in May 2012 necessitating a medical leave
for some period of time. He was unsure whether there was a significant period of time
during which he did not communicate with the Petitioner.

       Based upon this evidence, the post-conviction court dismissed the Petitioner’s petition
for post-conviction relief. The post-conviction court found:

              This Court finds that the Petitioner has failed to meet his burden of
       showing, by clear and convincing evidence, that his trial counsel’s
       performance was deficient or that his guilty plea was not knowingly and
       voluntarily entered.

               With regard to [Counsel’s] performance, Petitioner has not
       demonstrated by clear and convincing evidence that [Counsel] was ineffective
       in explaining his case to him or ineffective by not seeking an additional mental
       health evaluation. The Court finds [Counsel’s] testimony to be credible.
       [Counsel] throughly explained the discovery, evidence, State’s burden of
       proof, and the possible range of punishment to the Petitioner. The transcript
       of the plea hearing shows that the Petitioner told the Trial Judge that he had no
       gripes or complaints against [Counsel], and that [Counsel] had explained to

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him the range of punishment, State’s burden of proof, and any defenses he
might have. . . . [Counsel] was very familiar with the Petitioner, due to his
prior representation of the Petitioner in Juvenile Court, and was aware that the
Petitioner had previously received mental health treatment and evaluations,
both as a juvenile and at the General Sessions level in this case; nonetheless,
in his interactions with the Petitioner, [Counsel] never thought that the
Petitioner did not understand what he was telling him. [Counsel] likewise did
not observe any behavior by the Petitioner that caused him to doubt the
Petitioner’s ability to understand the plea petition, or that caused the Petitioner
any problems while answering the Trial Judge’s questions during the plea
acceptance hearing. [Counsel’s] strategic decision to raise the Petitioner’s
mental health as a mitigating factor during the sentencing phase of the case
was reasonable, considering that diminished capacity and insanity were ruled
out at the General Session level. This Court finds that [Counsel] met and
exceeded all standards of competency for criminal defense attorneys in
Tennessee and any other state. Additionally, the court finds that [Counsel]
fully apprised himself of the facts and law applicable to the Petitioner’s case,
and explored all potential strategies and defenses. [Counsel] was ready to try
the Petitioner’s case, but the Petitioner made a rational, informed, voluntary
decision to enter a plea agreement instead.

        With regard to the voluntariness of the guilty plea, the Petitioner argues
that he was taking [T]horazine, which caused drowsiness and slow
comprehension. However, the Petitioner never told his attorney, the District
Attorney, or the Trial Judge that he was taking this medication. Moreover, the
trial judge carefully explained all of the Petitioner’s rights before accepting his
plea, and specifically inquired as to whether the Petitioner was entering the
plea freely and voluntarily, whether the Petitioner understood the negotiated
plea agreement, and whether the Petitioner had any questions about the
agreement. . . . Only after satisfying himself as to these factors did the Trial
Judge accept the Petitioner’s plea and approve the agreement. . . . Although
the Trial Judge did not specifically ask the Petitioner whether he was taking
any medications during the plea colloquy, the Petitioner has provided this
Court with no authority to suggest that such is required. The Trial Judge in
this case was satisfied, based upon his questioning of the Petitioner in open
Court, that the plea was entered knowingly and voluntarily; this Court finds no
proof to the contrary. Moreover, it is well-settled that a petitioner’s bare
allegations, unsupported by medical testimony, about the use of psychiatric
drugs is insufficient to support a claim that a guilty plea was not knowingly
and voluntarily entered. See State v. [Darrell Wayne] Bumpas, [No. M2010-

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       00222-CCA-R3-CCA-R3-PC,] 2010 WL 5140673 (Tenn. Crim. App. 2010),
       perm app. denied 4/14/11.

It is from this judgment that the Petitioner now appeals.

                                          II. Analysis

        On appeal, the Petitioner contends that his guilty plea was not knowingly or
voluntarily entered because it was based upon the ineffective assistance of counsel. He
asserts that Counsel was ineffective because he failed to have the Petitioner mentally
evaluated. Further, he asserts that he was under the influence of medication that affected his
ability to comprehend at the time that his guilty pleas were entered and that, therefore, they
were not knowingly or voluntarily entered.

                            A. Ineffective Assistance of Counsel

        On appeal, the Petitioner contends that the post-conviction court erred when it denied
his petition because he received the ineffective assistance of counsel because Counsel failed
to have him mentally evaluated. The State responds that the post-conviction court properly
found that Counsel’s performance was not deficient.

        In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2014). The post-conviction court’s findings of fact are conclusive on appeal unless
the evidence preponderates against it. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
Upon review, this Court will not re-weigh or re-evaluate the evidence below; all questions
concerning the credibility of 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, not the appellate
courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,
578-79 (Tenn. 1997). A post-conviction court’s conclusions of law, however, are subject to
a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and Article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:



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               First, the [petitioner] must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the [petitioner] by the
       Sixth Amendment. Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be
highly deferential and “should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.
Finally, we note that a defendant in a criminal case is not entitled to perfect representation,
only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,
466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective
merely because a different procedure or strategy might have produced a different result.
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The fact that a
particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. However, deference to matters of strategy and tactical choices
applies only if the choices are informed ones based upon adequate preparation.” House, 44
S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

                                                9
        If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994). In the context of a guilty plea, the Strickland prejudice requirement
mandates that a 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).

        In the matter at hand, Counsel did not request a mental evaluation for the Petitioner
because the Petitioner’s original attorney, who also worked for the Public Defender’s Office,
had already done so. Counsel said that the mental evaluation was part of the Public
Defender’s file and that he had reviewed that record. The evaluation ruled out a defense of
insanity or diminished capacity. Counsel said that he and the Petitioner had discussed having
him undergo another mental evaluation to use as part of sentencing. The parties agreed to
a sentence as part of the plea agreement, so this evaluation was not done. Under these
circumstances, we agree with the post-conviction court that the Petitioner has not shown that
Counsel’s decision in this regard fell below a reasonable standard. He further has not proven
that he was prejudiced by any of Counsel’s decisions. The Petitioner is not entitled to relief
on this issue.

                                       B. Guilty Plea

       The Petitioner also argues that the post-conviction court erred when it dismissed his
petition because his guilty plea was not knowingly and voluntarily entered because he was
taking Thorazine at the time he entered his plea.

       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); see also Chamberlain v. State, 815
S.W.2d 534, 542 (Tenn. Crim. App. 1990).              A plea resulting from ignorance,
misunderstanding, coercion, inducement, or threats is not “voluntary.” Blankenship v. State,
858 S.W.2d 897, 904 (Tenn. 1993). A petitioner’s solemn declaration in open court that his
plea is knowing and voluntary creates a formidable barrier in any subsequent collateral

                                              10
proceeding because these declarations “carry a strong presumption of verity.” Blackledge
v. Allison, 431 U.S. 63, 74 (1977)

        As noted above, the post-conviction court credited the testimony of Counsel. The
post-conviction court found that the Petitioner willingly entered into the plea agreement after
he had been advised of the consequences of not doing so. Counsel informed the Petitioner
of the strength of the State’s case against him, which included DNA evidence, a witness
identification, and a letter of confession written by the Petitioner to his father. The State
dismissed four counts against the Petitioner in exchange for his plea. Counsel reviewed the
plea with the Petitioner privately and felt that the Petitioner did not have any trouble
understanding the proposed plea agreement or the proceedings. The trial court questioned
the Petitioner during the guilty plea submission hearing and reviewed with the Petitioner the
rights he was waiving by entering a guilty plea. The Petitioner acknowledged that the trial
court explained his rights and the plea agreement to him and that Counsel explained the plea
agreement to him. We conclude that the evidence supports the post-conviction court’s
finding that the Petitioner entered his guilty plea knowingly and voluntarily. He is not
entitled to relief.

                                       III. Conclusion

       After a thorough review of the record and the applicable law, we conclude the
post-conviction court properly dismissed the Petitioner’s petition for post-conviction relief.
Therefore, in accordance with the foregoing reasoning and authorities, we affirm the
judgment of the post-conviction court.


                                                    ________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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