           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                Assigned on Briefs January 11, 2005

                     DICKEY COTTON v. STATE OF TENNESSEE

                    Direct Appeal from the Criminal Court for Shelby County
                          No. P-26577    Carolyn Wade Blackett, Judge



                        No. W2004-00366-CCA-R3-PC - Filed April 14, 2005


The petitioner appeals from the denial of post-conviction relief and asserts in two issues that his
guilty plea was unknowing and involuntary due to (1) trial counsel’s ineffective representation, and
(2) violations of Tennessee Rule of Criminal Procedure 11. We affirm the denial of post-conviction
relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and J.C.
MCLIN , JJ., joined.

Autumn Chastain, Memphis, Tennessee, for the appellant, Dickey Cotton.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Gail Vermaas, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                    OPINION

         The petitioner, Dickey Cotton, was indicted in January of 1999 on one count of rape of a
child, a Class A felony, and one count of rape, a Class B felony. The petitioner retained an attorney
(hereinafter, counsel or trial counsel) prior to arraignment on June 21, 1999. Ultimately, the
petitioner entered into a plea agreement and entered a guilty plea on June 25, 2001. The petitioner
pled to two counts of rape and received an agreed sentence of eight years on each count, to be served
concurrently. On July 2, 2002,1 a pro se post-conviction petition was filed. An amended petition
for post-conviction relief was filed July 31, 2003. After a hearing, relief was denied by an order
from the post-conviction court, as filed February 6, 2004. Notice of appeal was timely filed on
February 13, 2004.



       1
           The original pro se post-conviction petition was delivered to prison officials on June 21, 2002.
       On appeal, the petitioner presents two issues:
       1)    That due to trial counsel’s ineffective representation, the petitioner entered
             an unknowing and involuntary guilty plea; and
       2)    That the petitioner’s guilty plea was unknowing and involuntary due to
             violations of Tennessee Rule of Criminal Procedure 11.

        The witnesses at the post-conviction hearing were the petitioner, Jack Cotton, Lori Bunch,
and trial counsel.

        The petitioner had at one time been married to the victim’s mother and, after their divorce,
returned to live with her and the victim on various occasions. The petitioner claimed that trial
counsel had not discussed the specific dates of the alleged offenses and that the petitioner had not
lived with the victim during a portion of the time alleged in the indictments. The petitioner stated
he had provided trial counsel with names of “about a dozen” witnesses. Some of the witnesses lived
in the house with the victim, and some were aware of bizarre behavior by the victim’s mother. The
petitioner claimed that some witnesses could testify that the victim had made accusations of sexual
molestation against other individuals. Some witnesses knew a neighbor who had been under
investigation for similar offenses. The petitioner said that he had tried to fire trial counsel. The
petitioner claimed to have suffered a head injury that caused him to miss a trial date. The petitioner
was incarcerated after this event. He stated that trial counsel did not contact him from February of
2000 until June 21, 2001, four days before the trial date. According to the petitioner, no witnesses
had been contacted.

        The petitioner said that, after discussion, he rejected a plea bargain involving fifteen years
of incarceration. The petitioner said he was led to believe that he would stand trial on June 25, 2001.
The petitioner stated that he accepted the plea offer of eight years because he felt he had no
alternative, due to trial counsel’s failure to prepare. When asked if it would have affected his
decision to plead guilty if the judge had informed him of the nature of the charges and the minimum
and maximum penalties, the petitioner answered that it was a possibility. The petitioner also
complained that the trial court explained that his present counsel would remain in place if he chose
to go to trial and would also serve as appellate counsel. The petitioner said that he did not hire
another attorney due to a lack of funds. The petitioner had never been involved in the judicial
process other than for traffic violations.

        The petitioner’s brother, Jack Cotton, testified that, while the petitioner was residing with
him on the gulf coast, the victim’s mother had made bizarre allegations about the petitioner
attempting to pour gas down her chimney and kill the occupants of her home. Jack Cotton stated that
he was never contacted by the petitioner’s trial counsel, although he did receive a trial subpoena after
the petitioner had already entered the guilty plea. He did not know the dates during which the
petitioner resided with him.

       Lori Bunch, the petitioner’s sister, testified that the victim’s mother was schizophrenic and
had required hospitalization. Mrs. Bunch said that the victim’s mother had told her about the


                                                  -2-
petitioner flying around in the mother’s home, attacking her and the victim. Mrs. Bunch stated that
the victim’s mother had attempted to get two neighbor girls to make allegations of abuse against their
father. Mrs. Bunch also knew of a neighbor who was under investigation on separate charges of
molestation. Mrs. Bunch said she was unable to contact the petitioner’s counsel to relay this
information. She further stated that she had affidavits of witnesses which she had attempted to
provide counsel, but he failed to contact her. Mrs. Bunch said that the petitioner resided with her
during some of the period between February 1, 1998, and June 11, 1998, but she did not give specific
dates or know where he resided otherwise.

        The petitioner’s trial counsel was questioned on direct examination by the petitioner’s post-
conviction counsel. Trial counsel agreed that he was retained by the petitioner. Counsel stated that
the only documents he had available were the discovery provided by the State. Counsel said that he
had not seen page two of a forensic report on the victim. The page that counsel denied receiving
contained a narrative of the history provided by the victim. The narrative quoted the victim as
reporting the last incident of abuse by the petitioner on September 1, 1998, and it had recurred
repeatedly in the six months prior.

         Trial counsel also denied having ever seen the sexual assault report prepared by the Memphis
Police Department. An entry therein, dated October 9, 1998, quoted the victim as saying that the
petitioner had raped her five or six times since February of 1997. On a separate page of the same
report, the offense occurrences were listed as February 1998 - August 1998. The indictments alleged
occurrence dates as February 1, 1998 - June 11, 1998,2 and June 11, 1998 - September 2, 1998. Trial
counsel admitted that he was unaware of date discrepancies as reported.

        Trial counsel stated that the petitioner never told him that the petitioner was not living in the
victim’s home during the relevant time periods. Trial counsel contacted only one witness as
provided by the petitioner, and that witness was Lori Bunch. Counsel stated that he had ongoing
correspondence and conversations with Mrs. Bunch. Trial counsel stated that no affidavits were ever
presented to him. He stated that he was aware the victim was a “slow learner” and that her mother
was a “revolving door case” at Charter Lakeside Hospital. Trial counsel made no independent
investigation of other claims of abuse by the victim. Trial counsel was given opportunity to
interview the victim but chose not to because “it was obviously a very sensitive matter and that one
has to take her feelings into consideration.”

        Margaret Stafford was the victim’s grandmother who had allowed the petitioner and the
victim’s family to live in her house. Trial counsel issued a trial subpoena for Mrs. Stafford but never
interviewed her. Likewise, trial counsel did not interview the petitioner’s two sons who lived in the
victim’s residence.

       During cross-examination, counsel stated that the petitioner had not advised him of any
periods of time during the relevant dates of offense that he did not live with the victim. Counsel said


        2
            The victim was thirteen years old on June 11, 1998.

                                                        -3-
that all witnesses provided him by the petitioner were character witnesses and were of no use in
establishing a defense. Counsel formed this opinion from his conversations with the petitioner.
Counsel said he knew that the State did not intend to use the victim’s mother as a witness and, thus,
he did not interview her. Counsel said that the petitioner had no legal defense available, only factual
differences. According to counsel, the petitioner wanted to enter the guilty plea in exchange for the
eight-year sentence. Counsel stated that he thoroughly explained the range of punishment and the
options available to the petitioner and that the petitioner understood.

        This Court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s
performance was deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The failure
to prove either deficiency or prejudice justifies denial of relief; therefore, the court need not address
the components in any particular order or even address both, if one is insufficient. Goad, 938
S.W.2d at 370. In order to establish prejudice, the petitioner must establish a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

        The test in Tennessee to determine whether counsel provided effective assistance is whether
his or her performance was within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct
falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104
S. Ct. at 2065; State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove
a deficiency, a petitioner must show “that counsel’s acts or omissions were so serious as to fall below
an objective standard of reasonableness under prevailing professional norms.” Goad, 938 S.W.2d
at 369 (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

         The petitioner bears the burden of proving the factual allegations that would entitle petitioner
to relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). We review the post-
conviction court’s factual findings underlying a claim of ineffective assistance of counsel under a
de novo standard with a presumption that those findings are correct – unless the preponderance of
the evidence establishes otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). However, the
post-conviction court’s conclusions of law – such as whether counsel’s performance was deficient
or whether that deficiency was prejudicial – are reviewed under a de novo standard with no
presumption of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001) (citations omitted).

        “When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner at the
evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990); see also Scott
v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a general rule, this is the only way the


                                                  -4-
petitioner can establish that: (1) a material witness existed who could have been discovered but for
counsel’s negligent investigation of the case; (2) a known witness was not interviewed; (3) the
failure to discover or interview the witness caused him prejudice; or (4) the failure to present a
known witness resulted in the denial of critical evidence which caused the petitioner prejudice.
Black, 794 S.W.2d at 757. Neither the trial court nor this Court can speculate on what a witness’s
testimony might have been if introduced by counsel. Id.

        The record reflects that trial counsel’s preparation of the petitioner’s defense was less than
optimum. It appears that counsel relied entirely on discovery provided by the State and was unaware
of certain documents relevant to the victim’s allegations. However, the variances in dates of the
uninvestigated documents were slight and insignificant. The record also reflects that trial counsel
only interviewed one of the petitioner’s suggested witnesses, Lori Bunch. The failure of counsel to
interview the victim is also troubling. However, the petitioner failed to produce any witnesses at the
post-conviction hearing that provided any more than vague allusions to possible exculpatory
evidence. No specific facts were developed that would have enhanced the petitioner’s defense.

        There were various instances of contradictions in the testimony of the petitioner and counsel.
The post-conviction court accredited counsel’s testimony, and the evidence does not preponderate
against that finding.

        While trial counsel’s quality of preparation and investigation is questionable, the petitioner
has simply failed to prove prejudice. The proof at the post-conviction hearing was insufficient to
establish a reasonable probability sufficient to create doubt as to the outcome or rendering the results
fundamentally unfair. The petitioner failed to satisfy the second prong of Strickland, and we
therefore agree with the post-conviction court that the petitioner did not suffer ineffective counsel.

        In the second issue, the petitioner claims that his plea of guilty was made unknowingly and
involuntarily as a result of violations of Tennessee Rule of Criminal Procedure 11. The specific
violations cited by the petitioner are the failure of the trial court to: (1) advise on the nature of the
charges; (2) advise on mandatory and minimum penalties; (3) advise that the court could ask
questions of the petitioner under oath; and that (4) the trial judge stated that the petitioner’s trial
counsel would continue as counsel during a trial and an appeal.

         The United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709,
1713, 23 L. Ed. 2d 274, 279 (1969), held that defendants must waive certain rights in order for their
decision to plead guilty to be considered knowing and voluntary. These rights include the right to
a jury trial, the right to confront witnesses, and the right against self-incrimination. Id. These rights
cannot be validly waived without an intentional relinquishment, which cannot be presumed from a
silent record. Id. To ensure guilty pleas are entered “knowingly and intelligently,” Boykin instructs
the trial court to discuss with the accused the consequences of the decision. Boykin, 395 U.S. at 244,
89 S. Ct. at 1712.




                                                  -5-
        When a trial court fails to advise an accused of these rights, the burden shifts to the State to
prove a constitutional plea. Johnson v. State, 834 S.W.2d 922, 925 (Tenn. 1992). However, the
failure does not, in and of itself, entitle the defendant to relief. Id. The State may prove by clear and
convincing evidence either substantial compliance with the advice requirement, by showing the
defendant was made aware of his constitutional rights, or that the defendant independently knew of
his constitutional rights, rendering the trial court’s omission harmless. Id.

        The standard for determining substantial compliance or harmless error necessarily requires
inquiry into circumstantial factors surrounding the plea. Blankenship v. State, 858 S.W.2d 897, 904
(Tenn. 1993). The relative intelligence of the defendant, the degree of his familiarity with criminal
proceedings, the opportunity to confer with competent counsel regarding plea options, the extent of
advice from counsel and the trial court regarding the charges faced, and the desire to avoid a greater
punishment resulting from a jury trial are all relevant factors a trial court can use to find a “knowing”
and “intelligent” plea. Blankenship, 858 S.W.2d at 904 (citing Caudill v. Jago, 747 F.2d 1046, 1052
(6th Cir. 1984)).

        The Tennessee Supreme Court established guidelines for reviewing guilty pleas in State v.
Neal, 810 S.W.2d 131, 137 (Tenn. 1991). The Court held that “absolutely literal compliance with
the advice to be given is not required.” Id. at 137. “Substantial compliance” would suffice as long
as the “sense of the substance of the required advice . . . is [expressed to an accused prior to a plea
of guilty].” Id.

        The finding that a plea was knowing and voluntary, as required by Boykin, is a constitutional
right and may be attacked collaterally. See Boykin, 395 U.S. at 243, 89 S. Ct. at 1712. Additional
requirements of State v. Mackey, 553 S.W.2d 337 (Tenn. 1977) and Tennessee Rule of Criminal
Procedure 11 are not constitutional issues and cannot be asserted collaterally. Johnson, 834 S.W.2d
at 925. See Tenn. Code Ann. § 40-30-103.

        The voir dire, as conducted by the trial judge, was as follows:
        Q:              [Defendant], you understand that you don’t have to plead guilty today. You
                        have a right to plead not guilty, go to trial in front of a jury, be represented by
                        your lawyer, [trial counsel]. You could cross-examine witnesses. You could
                        subpoena your own witnesses. You would testify in your own behalf
                        although you’ll not be required to. You would appeal the case if you lost it,
                        be represented by [trial counsel] on appeal. You’re giving up all of your trial
                        and appellate rights by pleading guilty today. Do you understand that?
        A:              Yes, sir.
        Q:              Are you pleading guilty freely and voluntarily?
        A:              Yes, sir.
        Q:              Have you discussed your case thoroughly with [trial counsel]?
        A:              Yes.
        Q:              Do you have any questions or complaints about the manner in which he has
                        represented you in this case?


                                                   -6-
       A:              No, sir.
       Q:              Do you have any questions at all about this guilty plea?
       A:              No.
       The Court:      Step down.

        The facts supporting the guilty plea were recited by the State and stipulated by the
petitioner’s counsel. Sentence was then pronounced.

        The voir dire by the trial judge encompassed the privilege against self-incrimination, the right
to confront witnesses, and the right to a trial by jury; the minimal standards under Boykin to ensure
a knowing and voluntary plea. Any other alleged deficiencies would be beyond the scope of a post-
conviction action. For reasons cited herein, we affirm that the violations of Tennessee Rule of
Criminal Procedure Rule 11 are supervisory instructions that do not rise to constitutional dimensions.
Consequently, this issue is without merit.

       Based on the foregoing reasons, we affirm the denial of post-conviction relief.




                                                        ___________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




                                                  -7-
