        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   June 12, 2012 Session

                ROBIN PAUL CAGLE V. STATE OF TENNESSEE

                     Appeal from the Circuit Court of Dyer County
                         No. 10-CR-212     Lee Moore, Judge


                 No. W2011-02509-CCA-R3-PC - Filed August 1, 2012


Robin Paul Cagle (“the Petitioner”) filed a petition for post-conviction relief from his
conviction of aggravated sexual battery, alleging that his guilty plea was constitutionally
infirm and that it was entered due to the ineffective assistance of counsel. After a hearing,
the post-conviction court denied relief, and this appeal followed. Upon our careful review
of the record and relevant authorities, we affirm the judgment of the post-conviction court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and R OGER A. P AGE, JJ., joined.

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Robin Paul Cagle.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; and C.
Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                           Factual and Procedural Background

       On January 4, 2011, the thirty-five-year-old Petitioner entered a guilty plea to a single
count of aggravated sexual battery based on the Petitioner’s fondling and kissing an eleven-
year-old boy in May 2010. Pursuant to the plea agreement, the trial court sentenced the
Petitioner as a Range I offender to the minimum term of eight years in the Tennessee
Department of Correction, to be served at 100%. At the time the Petitioner entered his guilty
plea, he was serving a probationary sentence for a prior offense of attempted aggravated
sexual battery. As part of the plea agreement, the Petitioner waived his hearing on the
probation revocation and agreed that his probation on the prior offense would be revoked.
Also as a part of the plea agreement, the trial court ordered that the sentence on the instant
conviction be served concurrently to the sentence on the prior conviction.

         Prior to the plea hearing, the trial court ordered that the Petitioner be referred to
Pathways Behavioral Health Services for a forensic evaluation, including a determination of
the Petitioner’s competency to stand trial, his mental condition at the time of the offense,
whether the Petitioner suffered from a drug or alcohol dependency, an assessment of his
intellectual quotient (“I.Q.”), and whether, at the time of the offense, the Petitioner “lacked
the capacity to form the requisite culpable mental state to commit the offense.” The trial
court also ordered the Petitioner’s lawyer to “provide pertinent information to Pathways for
the . . . evaluations” and ordered Pathways to report its findings to the court. At the plea
hearing, a transcript of which is included in the record, the only reference to the ordered
evaluations was the prosecutor’s statement that “[t]here was a competency evaluation of [the
Petitioner] and we did get a report back that should be in the file dated November 11th from
Pathways that found that he was competent.” The referenced report was not made an exhibit
to the guilty plea hearing.

       On June 29, 2011, the Petitioner filed for post-conviction relief. The State responded
and the post-conviction court conducted an evidentiary hearing. At the hearing, the State
introduced into evidence a report dated November 11, 2010, from Pathways Behavioral
Health Services (“the Report”). The Report included the following statements:

               After completion of the competency evaluation, Richard Drewery,
        Ph.D., has concluded that the [Petitioner] has sufficient present ability to
        consult with his attorney with a reasonable degree of rational understanding
        and a rational as well as factual understanding of the proceedings against him.

               After completion of the evaluation based on T.C.A. 39-11-501[1 ], it is
        Dr. Drewery’s opinion that at the time of the commission of the acts
        constituting the offense, the [Petitioner] was able to appreciate the nature or
        wrongfulness of such acts.

               [The Petitioner] states he is not using any illegal substances or alcohol.
        Therefore no treatment is indicated in this area. Although no formal testing
        was performed, his intelligence appears to be mild mental retardation. In
        addition, the court order requested us to evaluate diminished capacity.


       1
           “It is an affirmative defense to prosecution that, at the time of the commission of the acts
constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to
appreciate the nature or wrongfulness of the defendant’s acts.” Tenn. Code Ann. § 39-11-501(a) (2010).

                                                  -2-
        Available evidence does not suggest that [the Petitioner] had a mental disease
        and/or defect that interfered with his capacity to form the requisite culpable
        mental state for aggravated sexual battery which is intentionally and
        knowingly.

(Footnote added).

        At the post-conviction hearing, the Petitioner proffered Dr. Robert E. Murray, a
psychiatrist, as an expert. During voir dire by the State, Dr. Murray acknowledged that he
previously had not testified about a criminal defendant’s competency to stand trial or his or
her “competency . . . at the time they committed an offense.” He stated that he understood
his role as determining whether the Petitioner “understood what was happening when he pled
guilty”; “whether or not his prior evaluation was adequate”; “whether that led to an adequate
defense”; and “whether or not he had diminished capacity for understanding the nature of his
wrong.” Dr. Murray explained his understanding of diminished capacity as follows: “does
the individual have the capacity to control his actions, does he have the capacity to
understand the consequences of his actions.” Dr. Murray explained his understanding of
culpable mental state as “the individual has the awareness that what he’s done is wrongful.”
He added that he understood “mens rea” as meaning “[t]o have the mind-set to do that
wrongful thing.” He evaluated the Petitioner several days prior to the post-conviction
hearing through a ninety-minute interview at the prison where the Petitioner was housed.
Although the post-conviction court expressed some reservations about Dr. Murray’s
qualifications in the area in which he was proffered as an expert, the post-conviction court
allowed Dr. Murray to testify.

        Dr. Murray testified that, in addition to interviewing the Petitioner, he reviewed the
Report. Dr. Murray described the Report as “lacking” and stated that the Report indicated
that I.Q. testing was not performed.2 As to his examination and diagnoses of the Petitioner,
he testified that the Petitioner suffers from mild mental retardation and that he was
functioning at the level of an eleven-year-old child. Dr. Murray clarified that the Petitioner
“can appear to be functioning normal if you don’t really sort of ask him the right kinds of
questions and enough questions.” However, the Petitioner’s “ability to understand abstract
thought was particularly inadequate, compared with non-mentally retarded individuals.” Dr.




        2
           The Petitioner attempts to make much of the fact that Pathways did not perform any I.Q. “testing.”
However, the trial court’s order for an evaluation did not require “testing.” The order merely states that the
staff at Pathways “shall make an assessment of the [Petitioner’s] intellectual quotient.” (Emphasis added).
Pathways arrived at the same assessment that Dr. Murray did: that the Petitioner is mildly mentally retarded.

                                                     -3-
Murray also diagnosed the Petitioner as having Tourette syndrome,3 which he explained was
strongly related to inappropriate sexual behavior. Additionally, the Petitioner exhibited
“elements of obsessive-compulsive disorder.” According to Dr. Murray, Pathways failed to
diagnose either of these conditions.

       When asked by the Petitioner’s counsel whether, in Dr. Murray’s opinion, the
Petitioner suffered from a mental condition that reduced his culpability in committing the
aggravated sexual battery, Dr. Murray responded, “Yes.” When asked about the Report’s
conclusion on diminished capacity, Dr. Murray responded as follows:

        I believe that [the Petitioner’s] capacity to fully appreciate what was going on
        was very clearly affected by his [T]ourette[’]s disorder, with his -- his history
        of inappropriate sexual behavior, which I noted is genetically believed to be --
        mostly to be genetically determined. In some cases, there’s also a role for
        infection. It’s generally -- there’s no one that believes that it’s sort of a
        process of, you know, reaction to environmental circumstances. So I think that
        addresses, to some degree, the degree of culpability of how fully capable was
        he [sic] of making a rational decision, with thinking about consequences and
        reacting to those possible consequences.

Dr. Murray also opined that the Petitioner “would have a great deal of difficulty with”
understanding the guilty plea.

        On cross-examination, Dr. Murray acknowledged that he also had performed no
“formal” I.Q. testing on the Petitioner. He further acknowledged that, while Pathways
conducted no formal I.Q. testing on the Petitioner, the Report indicated that the Petitioner
suffered from mild mental retardation. Dr. Murray also explained that the Petitioner knew
that the actions he took which resulted in his conviction were wrong, but asserted that the
Petitioner did not appreciate the extent of their wrongfulness. Dr. Murray also acknowledged
that the Petitioner “knew he had contact with the [victim]” and that “[h]e did know of his
participation.” He explained, however, that the Petitioner lacks “a really good understanding
of the difference between himself, at age 36, and a boy that’s age 11 [because] he perceives
of himself as functioning kind of like a 13-year-old.”

       The Petitioner’s trial lawyer (“Trial Counsel”) testified that he met with the Petitioner
and the Petitioner’s mother several times before the plea hearing. Trial Counsel’s office had


        3
         This medical condition is spelled various ways in the record. We have chosen to use the spelling
and capitalization utilized by the National Institute of Neurological Disorders and Stroke, a division of the
National Institutes of Health.

                                                    -4-
represented the Petitioner in his prior sex offense case. Trial Counsel stated that the
Petitioner already had been sentenced to lifetime supervision as a result of his prior
conviction, but he explained to the Petitioner that the instant conviction also carried the
lifetime supervision requirement. He also explained that the plea-bargain included an eight-
year sentence that would have to be served at one hundred percent. According to Trial
Counsel, the Petitioner admitted that he had fondled and kissed the victim.

       The Petitioner’s mother provided to Trial Counsel records of past evaluations that had
been conducted on the Petitioner. These evaluations indicated that he had a low I.Q. Trial
Counsel stated that, even before he reviewed the evaluations, he could tell that the Petitioner
had a mental disability. Accordingly, he requested that the trial court order mental
evaluations. Trial Counsel stated that he knew that Pathways did not conduct I.Q. testing and
that was why he provided previous I.Q. testing results to Pathways. Specifically, Trial
Counsel provided Pathways nine pages of information about the Petitioner for their use in
conducting the court-ordered evaluations. The information provided by Trial Counsel was
admitted as a collective exhibit. The exhibit contained background information about the
Petitioner, including a psychological evaluation conducted by the Dyersburg City Schools
when the Petitioner was eighteen years old which indicates a “Full Scale IQ” of 65. The
evaluation concluded that the testing results “indicate[] that this student meets the criteria for
Mental Retardation services at this time.”

       When asked whether he considered obtaining an independent evaluation of the
Petitioner, Trial Counsel responded, “No. Because based on my conversations with him all
during the pendency of this case, even though he has a low I.Q., it was my opinion that he
understood the difference between right and wrong. He knew. He actually told me he
knew.” Trial Counsel also stated that “Pathways had already adjudged him competent to
stand trial” in conjunction with the previous case.

       Trial Counsel testified that he did not know if the Petitioner could read the guilty plea
document, but stated that he read it to the Petitioner. He explained to the Petitioner the
questions that the trial judge would be asking him. Trial Counsel reviewed these matters
with the Petitioner while in the presence of the Petitioner’s mother. Trial Counsel also
explained to the Petitioner that he would be going to jail for eight years and that he would
have to serve his entire sentence. Trial Counsel told the Petitioner that the location of his
imprisonment would be up to the sheriff and that he could be transferred to the Tennessee
Department of Correction to serve his sentence. According to Trial Counsel, the Petitioner
understood what he was told and what would be happening to him.

       On cross-examination, Trial Counsel stated that the Petitioner’s prior case was in 2007
and resulted in a guilty plea to attempted aggravated sexual battery with a six-year sentence
on community corrections after serving one day in jail. According to Trial Counsel,

                                               -5-
Pathways performed an evaluation in conjunction with that case and determined that the
Petitioner understood the nature of the process, understood the charges, understood the
consequences, and could participate with counsel in his defense. Pathways also determined
that the Petitioner was able to appreciate the nature or wrongfulness of the act and that the
Petitioner’s intelligence appeared to be mild mental retardation. As to diminished capacity,
Pathways determined that “[t]he evidence does not suggest that he has a mental disease or
defect that interfered with his capacity to form the requisite culpable mental state for
aggravated sexual battery.” Trial Counsel stated that Pathway’s findings in the instant case
mirrored their previous findings in 2007.

       Janet Cagle, the Petitioner’s mother, testified that the Petitioner was (at the time of the
post-conviction hearing), thirty-six years old. He continued to live with her and his father,
her husband. She learned that the Petitioner was mentally disabled when he was about eight
years old. In addition to his mental disability, the Petitioner had “always been hyperactive.”
He had been drawing disability since becoming eighteen years old.

        Ms. Cagle understood that if the Petitioner took the plea-bargain offer in the instant
case he would be going to prison for eight years. She did not know that, before he took the
plea, they could have obtained, at state expense, a different doctor to evaluate the Petitioner.

        Farris Cagle, the Petitioner’s father, also testified that he had not known that they
could have obtained an independent evaluation of the Petitioner prior to his guilty plea. He
also testified that he had never heard the Petitioner diagnosed with Tourette syndrome until
Dr. Murray evaluated the Petitioner.

        The Petitioner testified that he currently was housed in the state penitentiary in Lake
County in protective custody. The Petitioner explained that he had been “jumped” twice.
He remembered that Trial Counsel told him that he would “probably get eight, you know,
eight at a hundred.” He did not remember where Trial Counsel told him he would be going.
He also stated that he thought he would be returning home after his plea. He testified that
he did not understand what he was doing during the guilty plea hearing. He stated that he
could not read the plea agreement but that he signed it because Trial Counsel told him to sign
it.

       The post-conviction court took the matter under advisement and subsequently issued
a comprehensive order denying relief. The court reviewed all of the proof adduced at the
hearing and determined that the Petitioner had failed to prove either that Trial Counsel was
deficient or that he was prejudiced by Trial Counsel’s performance. The court also rejected
the Petitioner’s claim that his guilty plea was constitutionally infirm. The post-conviction
court concluded:


                                               -6-
              The difficult thing for the Court in this case is that we have a young
       man who is mildly retarded and for the first time in his life is away from home
       and by himself in prison. The Court wishes that there was some way to take
       him off the streets other than placing him in prison, but with the competency
       evaluations, it would have to be done by some method other than post-
       conviction relief.

        On appeal, the Petitioner argues that Trial Counsel was ineffective in failing to
provide Pathways “with the pertinent mental evaluations or did not make sure that the
previous reports were in fact received by Pathways” and was also ineffective in failing to
obtain an independent evaluation of the Petitioner. He contends that he would not have
entered a plea of guilty had Trial Counsel “provided adequate medical proof of his mental
insufficiencies.” The Petitioner also asserts that he did not enter his guilty plea knowingly,
intelligently, and voluntarily.

                                    Standard of Review

        Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.

                                           Analysis

        We agree with the post-conviction court that this case presents a very unfortunate
situation. Nevertheless, we also are constrained to agree with the post-conviction court that
the Petitioner has failed to demonstrate that he is entitled to post-conviction relief.




                                              -7-
                                Ineffective Assistance of Counsel

         The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel
at trial.4 Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that this right is to “reasonably effective” assistance, which is assistance that falls
“within the range of competence demanded of attorneys in criminal cases.” Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). The deprivation of effective assistance of counsel at trial presents a claim cognizable
under Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103;
Pylant, 263 S.W.3d at 868.

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.

        To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688)). Our Supreme Court has explained:

       [T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It
       is a violation of this standard for defense counsel to deprive a criminal
       defendant of a substantial defense by his own ineffectiveness or incompetence.
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell


       4
         The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).

                                                 -8-
v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).

       As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). In the context of a guilty plea, our
analysis of this prong

       focuses on whether counsel’s constitutionally ineffective performance affected
       the outcome of the plea process. In other words, in order to satisfy the
       “prejudice” requirement, 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 Calvert v. State, 342 S.W.3d 477, 486
(Tenn. 2011).

       The Petitioner contends, in essence, that Trial Counsel was deficient in failing to seek
and/or present more vigorously evidence that the Petitioner could not be tried or held
criminally liable for the offense of aggravated sexual battery. The proof at the post-
conviction hearing, however, established that Trial Counsel was aware of the Petitioner’s
mental infirmities and his past evaluations. Moreover, the proof also demonstrates that Trial
Counsel made this information available to Pathways. Based on his knowledge of the
Petitioner, the evaluations, and the legal requirements for avoiding criminal responsibility
on the basis of a mental disease or defect, he made a reasoned decision to not pursue further
mental evaluations. The Petitioner has failed to establish that Trial Counsel’s decision fell
below the standard of competence expected of criminal defense lawyers.

       He also has failed to establish that further mental evaluations would have inured to
his benefit. A criminal defendant may be found not guilty by reason of insanity only if the
defendant proves, by clear and convincing evidence, that, “at the time of the commission of
the acts constituting the offense, the defendant, as a result of a severe mental disease or
defect, was unable to appreciate the nature or wrongfulness of the defendant’s acts.” Tenn.

                                              -9-
Code Ann. § 39-11-501(a) (2010). Clear and convincing evidence is proof which leaves no
serious or substantial doubt about the correctness of the conclusions drawn therefrom. State
v. Kennedy, 152 S.W.3d 16, 18 (Tenn. Crim. App. 2004). At the post-conviction hearing,
Dr. Murray opined that the Petitioner understood that his actions vis-a-vis the victim were
wrong, but did not understand the extent to which his actions were wrong. This proof is not
sufficient to establish the affirmative defense of insanity. Therefore, the Petitioner has failed
to establish that Trial Counsel was deficient in not further pursuing this defense.

        Psychiatric testimony also may be admissible to prove that “the defendant lacks the
capacity, because of mental disease or defect, to form the requisite culpable mental state to
commit the offense charged.” State v. Hall, 958 S.W.2d 679, 689 (Tenn. 1997).5 The
Petitioner was charged with aggravated sexual battery, defined as “unlawful sexual contact
with a victim by the defendant or the defendant by a victim [where] [t]he victim is less than
thirteen (13) years of age.” Tenn. Code Ann. § 39-13-504(a)(4) (2010). “Sexual contact”
is further defined as

       the intentional touching of the victim’s, the defendant’s, or any other person’s
       intimate parts, or the intentional touching of the clothing covering the
       immediate area of the victim’s, the defendant’s, or any other person’s intimate
       parts, if that intentional touching can be reasonably construed as being for the
       purpose of sexual arousal or gratification.

Id. § 39-13-501(6) (2010). This Court has noted that “[t]he various elements of aggravated
sexual battery contain distinct culpable mental states.” State v. Julio Ramirez, No. M2009-
01617-CCA-R3-CD, 2011 WL 2348464, at *20 (Tenn. Crim. App. June 8, 2011), perm. app.
denied (Tenn. Sept. 21, 2011). Thus, the element of sexual contact “must be accomplished
‘intentionally’ with ‘the purpose of sexual arousal or gratification.’” Id. (quoting Tenn. Code
Ann. § 39-13-501(6) (2003)). However, “[b]ecause the statute is silent as to the culpable
mental state as to the victim’s age, a showing of recklessness suffices to establish a
defendant’s culpability as to the victim’s age.” Id.

       Although Dr. Murray testified generally that, in his opinion, the Petitioner suffered
from a mental condition that reduced his culpability in committing the instant offense, Dr.
Murray did not testify that the Petitioner lacked the capacity to touch the victim intentionally
and with the requisite purpose. Nor did Dr. Murray testify that the Petitioner lacked the
capacity to act recklessly in determining the victim’s age. Rather, the thrust of Dr. Murray’s
testimony was that the Petitioner did not fully understand the extent to which his actions in


       5
         This theory of defense is sometimes referred to as “diminished capacity.” See Hall, 958 S.W.2d
at 688-89.

                                                 -10-
touching the victim were wrong or the extent to which his actions were damaging to the
victim. Such proof, however, does not negate the culpable mental state required for
aggravated sexual battery. Accordingly, the Petitioner has failed to demonstrate that Trial
Counsel was deficient in not further pursuing this theory of defense.6

        In sum, the Petitioner has failed to prove by clear and convincing evidence that he is
entitled to post-conviction relief from his guilty plea on the basis of ineffective assistance of
counsel.

                                        Validity of Guilty Plea

       The Petitioner also contends that, due to his mental retardation, his guilty plea is
constitutionally infirm. We disagree.

        To be valid, a guilty plea must be entered knowingly, voluntarily, and intelligently.
See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); State v. Mackey, 553 S.W.2d 337, 340
(Tenn. 1977). A plea meets constitutional muster when the defendant understands both what
the plea connotes and its consequences, Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993) (citing Boykin, 395 U.S. at 244), and makes a voluntary and intelligent choice from
the alternative courses of action available to plead guilty. Jaco v. State, 120 S.W.3d 828, 831
(Tenn. 2003) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In Mackey, our
Supreme Court set forth the procedure that a trial court should follow when accepting a guilty
plea in order to ensure that a defendant’s plea is knowing, voluntary, and intelligent.
Mackey, 553 S.W.2d at 341; see also Tenn. R. Crim. P. 11(b). A trial court must
“substantially comply” with this procedure. State v. Newsome, 778 S.W.2d 34, 38 (Tenn.
1989).

        As set forth above, a petitioner in a post-conviction proceeding must establish his right
to relief by clear and convincing evidence. Although Dr. Murray testified that, in his
opinion, the Petitioner would have a great deal of difficulty understanding his guilty plea,
other proof in the record contradicts this conclusion. Pathways determined that the
Defendant was competent to stand trial. Trial Counsel testified that he read the plea
agreement to the Petitioner and explained what was going to happen. Trial Counsel was
confident that the Petitioner understood the proceedings. Indeed, the Petitioner testified that
Trial Counsel explained to him that he would “probably get eight . . . at a hundred.” The
transcript of the guilty plea hearing also indicates that the Petitioner understood the

        6
          In his brief to this Court, the Petitioner also refers to Tennessee Code Annotated section 40-35-
113(8) (2010) in his argument regarding diminished culpability resulting from a mental condition. However,
section -113(8) applies only to reduce the length of a defendant’s sentence. In the Petitioner’s case, he was
sentenced to the minimum term. Therefore, section -113(8) had no applicability to the Petitioner’s sentence.

                                                    -11-
proceedings. We note that the Petitioner responded appropriately to the trial court’s
questions, even asking for clarification when he did not understand a question. Moreover,
the trial court obviously had no concerns when faced with the Petitioner’s answers and
demeanor. Also, significantly, the Petitioner previously had entered a guilty plea to a similar
offense. Accordingly, he was familiar with the procedure. The post-conviction court also
had the benefit of listening to and observing the Petitioner testify at the post-conviction
hearing and nevertheless determined that the Petitioner’s plea was constitutionally sound.
In short, the Petitioner has simply failed to establish by clear and convincing evidence that
he is entitled to relief on this basis.

       We, again, reiterate that this case presents a very unfortunate situation. Nevertheless,
the Petitioner has failed to satisfy the requirements for post-conviction relief. Accordingly,
we are constrained to affirm the post-conviction court’s denial of relief.

                                         Conclusion

       For the foregoing reasons, we affirm the judgment of the post-conviction court.




                                           _________________________________
                                           JEFFREY S. BIVINS, JUDGE




                                             -12-
