         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs January 6, 2009

                   JON LEE FIELDS v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Tipton County
                           No. 5445 Joe H. Walker, III, Judge



                     No. W2008-00821-CCA-R3-PC - Filed April 15, 2009


On March 28, 2007, the petitioner pled guilty in the Tipton County Circuit Court to initiation of the
manufacture of methamphetamine and was sentenced to twelve years to be served concurrently with
a sentence imposed in Lauderdale County. On July 9, 2007, he filed a petition for post-conviction
relief, claiming that he had not been afforded a hearing on his request for alternative sentencing, as
he was told he would have. Following an evidentiary hearing, the post-conviction court found that
the petition was without merit. After our review, we affirm the dismissal of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which J.C. MCLIN and CAMILLE R.
MCMULLEN , JJ., joined.

Frank Deslauriers, Covington, Tennessee, for the appellant, Jon Lee Fields.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        The petition for post-conviction relief sought, as specific relief, that “the Petitioner’s
conviction in [the Tipton County case] be set aside and the sentence vacated and the Petitioner be
afforded the opportunity to have this matter tried” and that the “[violation of probation] hearing [in
Lauderdale County] be postponed until after the Petitioner’s Post-Conviction proceedings in Tipton
County Case No. 5445 are concluded.” However, at the evidentiary hearing, the petitioner testified
that he did not want to withdraw his plea of guilty but, instead, be afforded a hearing at which he
could seek alternative sentencing.
        At the evidentiary hearing in this matter, the petitioner testified that the guilty plea offer from
the State was a twelve-year sentence on the case which is the basis for this appeal, to be served
concurrently with an eight-year sentence imposed in Lauderdale County:

                 [Trial counsel] had come and spoke with me earlier that day in the back and
        told me that the State was willing to offer me a twelve-year sentence on this charge
        with the eight that I had in Lauderdale County ran concurrent with it, ran into it, and
        that the State would not object to me posing for alternative sentencing to a long-term,
        eighteen-month rehab at Serenity House in Memphis.

        The petitioner then explained what he was told would happen following his plea of guilty:

        I had come in here and signed the paperwork and . . . pled guilty in the court. And
        [the trial judge] had t[aken] the plea and set me another court date for April 27 for my
        sentencing. And when [trial counsel] told me that I’d come up in front of the judge
        for my alternative sentencing, and . . . somebody from his office had – we had
        contacted Serenity House and had an interview over the phone, Serenity House was
        willing to accept me, [trial counsel] told me that I’d come into court on April 27 and
        file – go for my alternative sentencing hearing. If it went through, then I’d . . . leave
        and go to Serenity House.

       The petitioner testified that he was not seeking to set aside his plea of guilty but, rather, that
he be given a hearing on his request for alternative sentencing.

       Apparently, before a hearing in Tipton County on his request for alternative sentencing could
be conducted, the petitioner was found to have violated his probation on his eight-year sentence,
which he was ordered to serve:

               I went to court in February in Lauderdale [County]. . . . [I]t was put off.
        Next thing I know, March 28, [trial counsel] comes at me with the agreement of
        twelve years, the eight’s going to run into it, I’m going to go to the long-term rehab.

                I come back the 27th to find out that somehow [counsel] had went . . . to
        court and done all that without me being present, and I was violated. And now [trial
        counsel] is telling me that the rehab that he promised me is no longer eligible for me.

       We surmise that the petitioner entered his plea of guilty in Tipton County to a twelve-year
sentence and was accepted into a drug rehabilitation program, dependent upon the outcome of the
Lauderdale County violation of probation hearing. The petitioner testified:

        All I know is that [trial counsel] told me that I was eligible for the alternative
        sentencing. I entered the guilty plea. Then I entered the guilty plea March 28.
        Around April 1st . . . a member of his law firm, whatever, come, and we called and
        had the interview over the phone with Serenity House. They accepted me. They


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          [were] willing to accept me pending what went on [on] April 27. So all I can look
          at it is, is [trial counsel] offered it to me. Then we had the interview[.]

         On cross-examination, the petitioner acknowledged that he had prior convictions for
facilitation of arson, attempted manufacture of methamphetamine, possession of methamphetamine,
felony failure to appear, aggravated burglary, theft over $500, burglary, and two additional thefts
over $1000.1

        The petitioner’s trial counsel in the Tipton County case testified as to his negotiation with
the State:

                  [The petitioner] was actually charged with . . . the deal was – the situation
          was kind of tricky. He was charged with a Class B felony and a couple of C’s and
          D’s. But he was a career offender for the C’s and the D offenses. If I remember
          correctly he was not a career offender for the B. So that’s why we ultimately entered
          the plea on the B because he was actually facing a lesser amount of time than he
          would have been facing on the lesser charges.

                 After some negotiation and talking with [the prosecutor] regarding those, we
          ultimately came to an agreement that he would enter a plea to the Class B felony for
          the twelve years.

          Q. All right. Did you have any discussion with [the prosecutor] about the possibility
          of alternative sentencing?

          A. Yes.

          Q. And what is your memory of those discussions?

          A. I think initially [the prosecutor] had reservations about . . . him being entitled to
          that. But I think ultimately he decided that he would just submit it to the Court.

          The order of the post-conviction court dismissing the petition set out the chronology of the
matter:

                  Petitioner was indicted in November 2006 for the C felony of Attempt to
          Manufacture Meth, the D felony of promote meth, the E felony of reckless
          endangerment with a deadly weapon, and the B felony of initiate the manufacture of
          meth. These offenses occurred in August 2006. At that time the petitioner was on
          alternat[ive] sentencing in Lauderdale County, RD 7704.



          1
          In making reference to these convictions, we rely upon their characterization by the State during the
evidentiary hearing.

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               The [S]tate filed notice that the petitioner is a range III, career offender.

               The public defender was appointed to represent the petitioner, and negotiated
       a plea agreement to enter a plea of guilty in count 4 for an agreed sentence of 12
       years as a multiple offender, and dismiss all other counts. Further the 12 year
       sentence would be concurrent to Lauderdale RD 7704.

              On March 28, 2007, the [petitioner] entered a plea of guilty per the agreement
       and was sentenced to 12 years. The [petitioner] had been revoked from alternat[ive]
       sentencing in Lauderdale County RD 7704 after a hearing in February 2007, and was
       serving that sentence.

       In dismissing the petition, the court made detailed findings:

               The [petitioner] is a career offender, and has been tried multiple times on
       release status. He has been placed on probation in 1998, revoked in 1999. Placed
       on alternat[ive] sentencing in 2000, and revoked in 2001. Paroled in 2003, and
       revoked in 2004. Released upon expiration and convicted again. He was placed
       again with alternat[ive] sentencing in 2006, and revoked in 2007. He entered the plea
       in Tipton RD 5445 shortly after the revocation. . . .

              The [p]etitioner has a lengthy history of alcohol and drug abuse problems.
       He has been through rehab treatment several times.

               The petitioner has shown no prejudice by not receiving [an] alternat[ive]
       sentencing hearing. This offense occurred while he was on alternat[ive] sentencing.
       He had just been revoked off alternat[ive] sentencing in February 2007, and had been
       tried before on both probation and alternat[ive] sentencing several times without
       success. H[is] chance to be returned to alternat[ive] sentencing was nil. The attorney
       was not ineffective by not scheduling an alternat[ive] sentencing hearing.

               The Court finds that petitioner has failed to establish the factual allegations
       contained in his petition by clear and convincing evidence. Tenn. Code Ann. § 40-
       30-210. The petitioner has not shown that (a) the services rendered by trial counsel
       were deficient and (b) the deficient performance was prejudicial. The petitioner has
       not shown that the services rendered or the advice given was below the range of
       competence demanded of attorneys in criminal cases. The petitioner has not shown
       that there is a reasonable probability that, but for counsel’s deficient performance, the
       result of the proceeding would have been different.

        As we stated, the record on appeal does not include copies of either the Tipton or Lauderdale
County judgments or of the submission hearing. The State argues that this fact prevents our being
able to adequately review this matter.

                                            ANALYSIS

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        In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The United States Supreme Court articulated the standard
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), which is widely accepted as the
appropriate standard for all claims of a convicted petitioner that counsel’s assistance was defective.
The standard is firmly grounded in the belief that counsel plays a role that is “critical to the ability
of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at 2063. The Strickland
standard is a two-prong test:

       First, the defendant 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 defendant by the Sixth Amendment.
       Second, the defendant must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive
       the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

       In any case presenting an ineffectiveness claim, the performance inquiry must be
       whether counsel’s assistance was reasonable considering all the circumstances. . . .
       No particular set of detailed rules for counsel’s conduct can satisfactorily take
       account of the variety of circumstances faced by defense counsel or the range of
       legitimate decisions regarding how best to represent a criminal defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

         As for the prejudice prong of the test, the Strickland Court stated: “The defendant 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.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).
        Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

        By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of
proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-
110(f) (2006). A petition based on ineffective assistance of counsel is a single ground for relief,

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therefore all factual allegations must be presented in one claim. See Tenn. Code Ann. § 40-30-
206(d).

        We note that when post-conviction proceedings have included a full evidentiary hearing, as
was true in this case, the trial judge’s findings of fact and conclusions of law are given the effect and
weight of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we
conclude that the evidence contained in the record preponderates against the judgment entered in the
cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must
indulge a strong presumption that the conduct of counsel falls within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-
guess the tactical and strategic choices made by trial counsel unless those choices were uninformed
because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact
that a strategy or tactic failed or hurt the defense does not alone support the claim of ineffective
assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997).
Finally, a person charged with a criminal offense is not entitled to perfect representation. See
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in State v. Burns, 6
S.W.3d 453, 462 (Tenn. 1999), “[c]onduct that is unreasonable under the facts of one case may be
perfectly reasonable under the facts of another.”

        As we understand the facts, the petitioner pled guilty in March 2007 in Tipton County and
was sentenced to twelve years to be served concurrently with the Lauderdale County sentence. As
we have said, the record on appeal includes neither copies of the judgments from Tipton or
Lauderdale County nor a transcript of the Tipton County submission hearing. He filed in Tipton
County a petition for post-conviction relief, asking that his plea of guilty be set aside and the
sentence vacated and that the violation of probation proceeding in Lauderdale County be
“postponed” until the Tipton County proceedings were “concluded.” However, at the evidentiary
hearing, the petitioner abandoned his request to withdraw his plea of guilty and, instead, said that
he sought “specific performance” of his Tipton County plea agreement, meaning he wanted a hearing
at which he could seek alternative sentencing as to that sentence. He no longer wished to withdraw
his plea of guilty.

        The post-conviction court detailed the petitioner’s extensive criminal record and multiple
failures to abide by conditions of release. The court noted that the petitioner was classified as a
career offender, that his alternative sentences had been revoked in 1999, 2001, and 2007 and that his
2003 parole was revoked in 2004. At the time he was seeking alternative sentencing for his twelve-
year Tipton County sentence, his alternative sentence had just been revoked on his eight-year
Lauderdale County sentence. Thus, in the view of the post-conviction court, his chances for yet
another alternative sentence were “nil,” and, accordingly, he had failed to show that he was
prejudiced by the alleged ineffectiveness of counsel. The record abundantly supports this analysis.
Additionally, we add that the petitioner failed to explain how he might have benefitted from
receiving alternative sentencing for the Tipton County sentence when, at the same time, he would
have remained incarcerated for the Lauderdale County sentence.

                                           CONCLUSION


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       Based upon the foregoing authorities and reasoning, we affirm the post-conviction court’s
dismissal of the petition.


                                                    ___________________________________
                                                    ALAN E. GLENN, JUDGE




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