        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 21, 2016

              CORDELL L. BUTLER v. STATE OF TENNESSEE

            Direct Appeal from the Criminal Court for Davidson County
                    No. 2013-C-2570      Steve R. Dozier, Judge



                 No. M2015-01708-CCA-R3-PC – Filed April 6, 2017



The Petitioner, Cordell L. Butler, filed in the Davidson County Criminal Court a petition
for post-conviction relief from his convictions of conspiracy to sell over fifty grams of
hydromorphone and possession of over fifty grams of hydromorphone. The Petitioner
alleged that his trial counsel was ineffective and that his guilty pleas were not knowing
and voluntary. The post-conviction court denied the petition, and the Petitioner appeals.
Upon review, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Holly L. Troutman, Nashville, Tennessee, for the Appellant, Cordell L. Butler.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn R. Funk, District Attorney General; and J. Wesley King and Edward S.
Ryan, Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

        The Petitioner was charged with conspiracy to sell fifty grams or more of a
substance containing hydromorphone, a Schedule II controlled substance, within a school
zone; possession of fifty grams or more of a substance containing hydromorphone with
intent to sell within a school zone; and being a convicted felon in possession of a weapon.
The potential sentence for each drug offense was sixty years, and the weapon offense had
a potential sentence of three to fifteen years. In exchange for the dismissal of the weapon
charge and the school zone enhancement, the Petitioner agreed to plead guilty to
conspiracy to sell over fifty grams of hydromorphone and possession of over fifty grams
of hydromorphone, Class A felonies. The plea agreement provided that the Petitioner
would be sentenced as an especially mitigated offender to concurrent sentences of twenty
years for each offense and that he would be eligible for release after serving twenty
percent of the sentences in confinement.

       At the June 19, 2014 guilty plea hearing, the Petitioner told the trial court that he
understood the plea agreement, that he knew the rights he was waiving by entering his
guilty pleas, that his guilty pleas were not the result of threats, and that he was satisfied
with trial counsel. The State recited the following factual basis for the pleas:

              [I]f the State‟s witnesses were called to testify, they would
              testify that with regard to count one, conspiracy charges,
              police were investigating a drug conspiracy that began in June
              of 2012 through May of 2013 where co-defendants James
              Hannah, Ricky Vaughn and others were selling large
              quantities of Dilaudid pills. The [Petitioner] from time to
              time assisted that conspiracy on some occasions he could
              transport the defendants to the Nashville airport for [the]
              purpose of them going out of town to pick up the pills.

                     [Regarding the possession charges,] on April 10th,
              2010, [the Petitioner] was arrested at the [G]reyhound bus
              station at 709 5th Avenue South. He was in possession of
              4,815 Dilaudid pills that he obtained from New York.

        Thereafter, the Petitioner filed a petition for post-conviction relief, alleging that
his trial counsel was ineffective and that his guilty pleas were not knowing and voluntary.
At the post-conviction hearing, the Petitioner testified that he met with trial counsel two
or three times prior to accepting the State‟s offer. Each meeting lasted fifteen or twenty
minutes. The Petitioner said that he thought trial counsel was “a fine attorney” and “a
good guy” but that he had “a lot . . . on his plate” and was “just a little overworked and
overwhelmed” because he was transitioning from the public defender‟s office to private
practice.

       The Petitioner said that the discovery materials included six compact discs (CDs)
of recordings from wiretaps. The Petitioner and trial counsel discussed the discovery
materials, but the Petitioner could not listen to the CDs because he did not have a device
to play the discs or a transcript of the recordings. The Petitioner acknowledged that he

                                            -2-
saw the “takedown reports” and some supplemental reports from the Metro Nashville
Police Department.

       The Petitioner said that he wanted counsel to file a motion to suppress and take his
case to trial instead of accepting a plea offer. The Petitioner thought evidence that pills
were found on him at the jail would be suppressed because of Detective Young‟s
preliminary hearing testimony that the Petitioner had no drugs or weapons when he was
arrested. Nevertheless, trial counsel did not have the preliminary hearing transcribed and
advised the Petitioner to accept a plea offer instead of pursuing the suppression issue.
Trial counsel warned the Petitioner that the State would rescind plea offers and would not
make any other offers if the Petitioner filed the motion. Additionally, trial counsel
advised the Petitioner that he would likely receive a sentence of sixty years if he were
convicted at trial. The Petitioner said that trial counsel did not discuss any potential
defenses and discussed only the plea offer. The Petitioner said that he “felt threatened
because [trial counsel said] if [the Petitioner went] through with a suppression hearing
[he] would get 60 years, [he] would get this much time and never get an offer.”

      The Petitioner said that he thought the reason counsel never discussed a defense
was because trial counsel was “busy.” Nevertheless, the Petitioner said that he and trial
counsel had a good working relationship.

        The Petitioner said that the State made two plea offers. One included a sentence
of fifteen years as a Range I, standard offender and required that he serve thirty percent
of the sentence in confinement before he would be eligible for release. The other offer
was a sentence of twenty years as an especially mitigated offender with release eligibility
after serving twenty percent in confinement. Trial counsel advised the Petitioner that he
would have a chance to be released sooner if he accepted the sentence of twenty years as
an especially mitigated offender. The Petitioner asserted that trial counsel guaranteed he
would be released after he served twenty percent of the twenty-year sentence.

        After the Petitioner went to the penitentiary, “law clerks” advised him that he
should have accepted the fifteen-year sentence. The Petitioner maintained that he
thought his release would be automatic and that he did not realize the parole board would
decide whether he would be released. The Petitioner stated that he had fourteen months‟
of jail credit at the time he was sentenced. The Petitioner said that he had been before the
parole board but that he was denied release because it would “disrespect” a sentence of
twenty years. The Petitioner did not think his release would have been denied if he had
accepted the fifteen-year sentence.

       The Petitioner said that trial counsel advised him to respond “yes, sir” or “no, sir”
to all of the trial court‟s questions at the guilty plea hearing. Trial counsel told the
Petitioner that he needed to convince the trial court that he wanted to plead guilty.
                                            -3-
       On cross-examination, the Petitioner said that he and trial counsel understood each
other but that they “were just at two different points.” The Petitioner wanted a
suppression hearing, and trial counsel wanted the Petitioner to accept a plea offer. When
asked if trial counsel told him to lie to the trial court during the guilty plea hearing, the
Petitioner responded, “I wouldn‟t say he said lie to the judge, but make sure you answer
yes or no to the questions and it doesn‟t seem like, you know, that it‟s not what you
want.” The Petitioner acknowledged that he lied to the trial court when he stated that he
did not feel threatened, explaining that he felt he “was pushed into the plea.” The
Petitioner conceded that he made the decision to plead guilty.

       When asked if he would have filed for post-conviction relief if the parole board
had released him, the Petitioner initially stated, “Yeah, I probably would.” However,
when the post-conviction court asked, “If you were on parole now, out in society, you
would still file this and risk facing what you said earlier, 60 years,” the Petitioner
responded, “No, no, not that.”

        The Petitioner said that Detective Young‟s testimony at the preliminary hearing
was not the only reason he wanted a suppression hearing. The Petitioner said, “I wasn‟t
on any parole, probation. I wasn‟t on any wiretaps. If my attorney would have
investigated the conspiracy, I wasn‟t on no conspiracy. I wasn‟t on surveillance, no buys,
no anything, nothing.” The Petitioner acknowledged that he took a Greyhound bus from
New York to Nashville. When he arrived in Nashville, the police took him into custody.
He was searched, but the police found no drugs or weapons. The police handcuffed him,
put him in the police car, and took him to another location. Approximately two hours
later, the police searched him again and found over 4,000 pills in his pants. The
Petitioner said that he did not put the pills in his pants and that the police did not plant the
pills on him.

       The Petitioner acknowledged that he had prior felony convictions but stated that
he had never appeared before a parole board. He said that trial counsel promised him that
he would get out of jail in two years, which included his jail credit.

       Trial counsel testified that he had practiced law for approximately four years and
that his practice was almost exclusively criminal defense. He began his practice in the
public defender‟s office but left in December 2013 to practice with an association of
attorneys. The other attorneys practiced criminal law, and they discussed cases with each
other.

       Trial counsel was appointed to represent the Petitioner in January 2014 after his
previous attorney withdrew. The Petitioner was charged with two Class A felony drug
offenses within a drug-free school zone. Trial counsel said that if convicted of the
                                              -4-
charged offenses, the Petitioner would have been sentenced as a Range II, multiple
offender and required to serve one hundred percent of the sentences in confinement.

       Trial counsel said that he and the Petitioner had a good relationship. Trial counsel
met with the Petitioner nine or ten times. They discussed the case against the Petitioner
and the sentences he faced. Trial counsel acknowledged that he received a large amount
of discovery materials and that he gave the Petitioner the materials relevant to his case.
Trial counsel said that most of the discovery materials related to another case with which
the Petitioner had little involvement but that he discussed the other case with the
Petitioner. Trial counsel said that the other case concerned wiretaps. The Petitioner‟s
telephone was not tapped, and his voice was on only two of the recorded telephone calls.
Trial counsel said that he and the Petitioner “discussed those calls and the takedown
primarily.”

      Trial counsel said that

             the police investigation showed that other individuals had
             gone back to New York and ridden back on a Greyhound bus.
             And they had been surveilling people, the main people in the
             case, them selling Dilaudid.

                   And the police had information that [the Petitioner]
             had a one way ticket to New York, was coming back on a
             Greyhound bus and they assumed that that would be the
             opportunity to take them down and catch them with the drugs.

       Trial counsel said that the Petitioner‟s case “basically would rise and fall with
th[e] suppression motion,” noting that the Petitioner was caught with the Dilaudid pills in
his possession. The Petitioner never told trial counsel that the pills had been planted by
someone else. Trial counsel said that the Petitioner was

             correct that at the preliminary hearing was something to the
             effect of the first officer that searched him didn‟t find the bag
             that [the pills] were in. But they were taken in a different
             location because the takedown happened in the terminal for
             [the] Greyhound bus station so they took them to a different
             location to investigate further and search further, and that‟s
             when they found the pills on [the Petitioner].

       Trial counsel never asked the Petitioner how the pills got inside his pants,
explaining, “I just kind of assumed where they were found on him that he knew how they
got there.” Trial counsel recalled that the pills were found in “some sort of contraption
                                           -5-
that [the Petitioner] wore around his underwear that had the pills like wrapped in plastic
Kroger bags.” Trial counsel advised the Petitioner that in order to prevail on a
suppression motion, the defense needed to argue that the State did not have probable
cause to apprehend him. Trial counsel said that he and the Petitioner discussed whether
to file a motion to suppress. Trial counsel advised the Petitioner that trying to win a
suppression motion would “be a very uphill battle.”

        Trial counsel said that the State made an initial offer of twenty-five years at thirty
percent. Through negotiations, trial counsel obtained alternate offers of fifteen years at
thirty percent or twenty years at twenty percent. The State cautioned trial counsel that if
the Petitioner filed a motion to suppress, the State would revoke all plea offers and
proceed to trial. Trial counsel conveyed the information to the Petitioner and advised
him that counsel “couldn‟t guarantee him getting an offer back ever.” Trial counsel
warned the Petitioner that if he were convicted a trial, he faced a lengthy sentence and
that he would have to serve one hundred percent of that sentence in confinement;
accordingly, pursuing a motion to suppress “was incredibly risky.”

        Trial counsel and the Petitioner discussed the alternate plea offers of fifteen years
at thirty percent or twenty years at twenty percent. They also discussed the likelihood of
the Petitioner‟s being granted parole. Trial counsel stated:

                     I don‟t typically ever tell a client on a felony sentence
              that you could expect to get out on this particular day because
              there [are] so many factors. But we did talk about when he
              could see the parole board on the 20 at 20 because that‟s a
              pretty certain calculation. And the 15 at 30 and that‟s about
              four and a half to four years depending on which option he
              took.

Trial counsel said that he and the Petitioner discussed the Petitioner‟s time credits and
what he could do to make himself a better candidate for parole, but trial counsel never
promised that the Petitioner would be granted parole. Trial counsel specifically denied
telling the Petitioner that he would be released in two years. Trial counsel said that the
Petitioner had at least two “discussion dates” to consider the plea offers.

       Trial counsel said that he was not overwhelmed while representing the Petitioner.
He recalled that the Petitioner‟s case was difficult and that he received a lot of discovery
materials. Trial counsel stated, “I could see how someone in his position feels that way
when nothing is happening quickly in his case but I didn‟t feel overwhelmed.” Trial
counsel thought the Petitioner understood the plea agreement.


                                             -6-
       On cross-examination, trial counsel said that he advised the Petitioner the State
would revoke all plea offers and proceed to trial if the Petitioner filed a motion to
suppress. Trial counsel told the Petitioner the suppression motion would be difficult;
therefore, filing the suppression motion and refusing the guilty plea offers was a “risky
decision.” Trial counsel told the Petitioner that if he lost the suppression motion, the trial
would be difficult to win. Trial counsel did not file the motion to suppress but would
have filed the motion if the Petitioner had been “adamant” that he wanted it filed.

       Trial counsel recalled that the State offered fifteen years at thirty percent and that
the Petitioner “was satisfied at that point saying that that‟s kind of what he wanted, he
would rather plead.” The Petitioner asked trial counsel to try to negotiate for twelve
years at thirty percent. The State refused that offer but made a counteroffer of twenty
years at twenty percent. Trial counsel thought that after the State made the plea offers, he
and the Petitioner continued to discuss the motion to suppress, but they mainly discussed
which plea offer to accept.

       Trial counsel advised the Petitioner that

              if he wanted a shorter sentence to take the 15. And if he
              wanted the opportunity to see the parole board sooner, he
              could take the 20 but that he did have some things on his
              record[, namely an attempted homicide conviction and federal
              drug charges,] that might give the parole board pause about
              releasing him. So if he wanted the shorter guarantee[d]
              sentence to take the 15.

However, trial counsel never guaranteed the Petitioner that he would be granted parole
because “no one can guarantee what the parole board is going to do.” In response to
questioning by the post-conviction court, trial counsel said that after the Petitioner pled
guilty, he had “heard anecdotally that . . . there is a difference in the length of your
sentence whether you can get to an annex or things like that, but I didn‟t know that.”

      The post-conviction court accredited trial counsel‟s testimony and found that trial
counsel was not ineffective and that the Petitioner‟s guilty pleas were knowing and
voluntary. Accordingly, the post-conviction court denied relief.

                                        II. Analysis

       To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “„Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
                                             -7-
conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court‟s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s
conclusions of law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is 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. Further,

                      [b]ecause a petitioner must establish both prongs of the
              test, a failure to prove either deficiency or prejudice provides
              a sufficient basis to deny relief on the ineffective assistance
              claim. Indeed, a court need not address the components in
              any particular order or even address both if the [petitioner]
              makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Moreover, in the context
of a guilty plea, “the petitioner must show „prejudice‟ by demonstrating that, but for
counsel‟s errors, he would not have pleaded guilty but would have insisted upon going to
trial.” Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v.
Lockhart, 474 U.S. 52, 59 (1985).

       When a defendant enters a plea of guilty, certain constitutional rights are waived,
including the privilege against self-incrimination, the right to confront witnesses, and the
                                            -8-
right to a trial by jury. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in
order to comply with constitutional requirements a guilty plea must be 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). In order to ensure that a defendant
understands the constitutional rights being relinquished, the trial court must advise the
defendant of the consequences of a guilty plea, and determine whether the defendant
understands those consequences. Boykin, 395 U.S. at 244.

       In determining whether the petitioner‟s guilty pleas were knowing and voluntary,
this court looks to the following factors:

             the relative intelligence of the defendant; the degree of his
             familiarity with criminal proceedings; whether he was
             represented by competent counsel and had the opportunity to
             confer with counsel about the options available to him; the
             extent of advice from counsel and the court concerning the
             charges against him; and the reasons for his decision to plead
             guilty, including a desire to avoid a greater penalty that might
             result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). Further, we note that “[a]
petitioner‟s solemn declaration in open court that his plea is knowing and voluntary
creates a formidable barrier in any subsequent collateral proceeding because these
declarations „carry a strong presumption of verity.‟” Dale Wayne Wilbanks v. State, No.
E2014-00229-CCA-R3-PC, 2015 WL 354773, at *10 (Tenn. Crim. App. at Knoxville,
Jan. 28, 2015) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

        On appeal, the Petitioner contends that the proof at the post-conviction hearing
established that trial counsel was ineffective and that the Petitioner entered his guilty
pleas “without fully understanding the nature and consequences of what he was doing.”
The Petitioner maintains that he wanted trial counsel to file a motion to suppress but that
trial counsel refused. He alleged that the State, through trial counsel, coerced him into
pleading guilty by threatening to withdraw plea offers if the Petitioner filed a motion to
suppress. The Petitioner asserts trial counsel guaranteed that if he accepted the twenty-
year sentence, he would automatically be released from confinement in two years. The
Petitioner contends that trial counsel failed to review the six CDs of discovery materials
with him. The State asserts that the post-conviction court correctly denied post-
conviction relief. We agree with the State.

      The post-conviction court accredited trial counsel‟s testimony and found that trial
counsel shared all relevant discovery materials with the Petitioner and discussed the
evidence against him. Trial counsel also discussed the plea options with the Petitioner
                                           -9-
and did not guarantee the Petitioner‟s release. Additionally, trial counsel advised the
Petitioner that the risks involved in pursuing a suppression hearing were great, given the
likelihood that the motion would not be successful, that the State would revoke all plea
offers, and that the Petitioner then likely faced a conviction at trial. The Petitioner
entered his guilty pleas in order to avoid the risk of being convicted at trial, receiving a
sentence of sixty years, and having to serve one hundred percent of the sentence in
confinement. The trial court determined that the Petitioner knowingly and voluntarily
entered his guilty pleas and that his trial counsel was not ineffective. The proof at the
post-conviction hearing does not preponderate against the judgment of the post-
conviction court.

                                     III. Conclusion

      Based upon the record and the parties‟ briefs, we affirm the judgment of the post-
conviction court.

                                                    _________________________________
                                                    NORMA MCGEE OGLE, JUDGE




                                           - 10 -
