        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 26, 2010

        ANTHONY DEWAYNE JORDAN v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                      No. 2007-D-3279     Steve Dozier, Judge


               No. M2010-00774-CCA-R3-PC - Filed December 22, 2010


The petitioner, Anthony D. Jordan, appeals the denial of his petition for post-conviction
relief. On appeal, he argues that he received ineffective assistance of counsel and that he did
not enter his guilty plea knowingly and voluntarily. After careful review, we affirm the
denial of post-conviction relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J ERRY L. S MITH
and N ORMA M CG EE O GLE, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Anthony Dewayne Jordan.

Robert E. Cooper, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Rachel M. Sobrero,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       The petitioner was initially indicted for twenty-two crimes of a sexual nature. He
entered guilty pleas to two counts of rape of a child in exchange for concurrent twenty-five-
year sentences. The following facts were asserted during the plea acceptance hearing:

       During the time period [between] January 1, 2004, and January 27, 2007, [the
       petitioner] did intentionally, knowingly, or recklessly engage in unlawful
       sexual penetration with [the victim], whose date of birth is January 28, 1994
       . . . [The victim] would be here to testify to those facts. Detective Josh Mayo,
       for the Metro Police Department, Sex Abuse Unit, would be here to testify
       regarding an interview he conducted with [the petitioner] during the
       investigation, wherein [he] admitted to these two acts and countless others.
       These events did occur here in Davidson County, and based on these facts, the
       State recommends the previously-announced disposition.

       The petitioner initially told the court that he wanted to enter the pleas, then changed
his mind, and asked for a jury trial. Following the selection and empaneling of a jury, the
petitioner announced his desire to enter guilty pleas. The State indicated a reluctance to enter
the agreement because of a concern that the petitioner would later attempt to claim his pleas
were not entered voluntarily. The State eventually agreed to continue with the plea
acceptance hearing.

                                           Analysis

        On appeal, the petitioner contends that counsel was ineffective and that his pleas were
not entered knowingly and voluntarily. 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 (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 petitioner so as to deprive him of a fair trial. Strickland, 466 U.S. at 687;
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.

       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).

      In reviewing counsel’s conduct, a “fair assessment . . . requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

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counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002) (citing Strickland, 466 U.S. at 689,
104 S. Ct. at 2065). The fact that a particular strategy or tactic failed or hurt the defense does
not, standing alone, establish unreasonable representation. However, deference to matters
of strategy and tactical choices applies only if the choices are informed ones based upon
adequate preparation. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997); Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982).

        In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court applied the two-part
Strickland standard to ineffective assistance of counsel claims arising out of a guilty plea.
The Court in Hill modified the prejudice requirement by requiring a petitioner to show that
there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty
and would have insisted on going to trial. 474 U.S. at 59; Nichols v. State, 90 S.W.3d 576,
587 (Tenn. 2002).

        On appeal, the petitioner argues that counsel was ineffective because he did not recall
whether counsel filed any motions on his behalf. He specifically contends that counsel
should have filed a motion to suppress his confession because he was under the influence of
marijuana. Trial counsel testified during the post-conviction hearing that the petitioner did
not allege to him that he was under the influence of marijuana at the time of his confession.
Counsel testified that he did not file a motion to suppress because he was unaware of any
grounds for suppression. The petitioner did not tell counsel that he was high and did not
appear to be high on the videotape of the interrogation. The post-conviction court
specifically accredited the testimony of trial counsel over that of the petitioner.

        The petitioner also argues that counsel was ineffective for failing to interview two
witnesses who were with the petitioner and observed him smoking marijuana prior to his
confession. “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 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. During the post-conviction hearing, the petitioner presented no
witnesses to support his claim that these witnesses would have testified that he was under the
influence of marijuana when he confessed to police. Therefore, this issue is waived.

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       The petitioner also contends his pleas were involuntary and unknowing. Our supreme
court has stated the following:

              The cases of Boykin v. Alabama and State v. Mackey are the landmark
       constitutional cases for analyses of guilty pleas. Boykin v. Alabama, 395 U.S.
       238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) (federal standard); State v.
       Mackey, 553 S.W.2d 337 (Tenn. 1977) (state standard). In Boykin, the United
       States Supreme Court held that before a trial judge can accept a guilty plea,
       there must be an affirmative showing that it was given intelligently and
       voluntarily. Id. at 242, 89 S. Ct. at 1711, 23 L. Ed. 2d at 279. In order to find
       that the plea was entered “intelligently” or “voluntarily,” the court must
       “canvass[ ] the matter with the accused to make sure he has a full
       understanding of what the plea connotes and of its consequences.” Id. at 244,
       89 S. Ct. at 1712, 23 L. Ed. 2d at 280 (emphasis added).

               Likewise, in Mackey, this Court held that “the record of acceptance of
       a [petitioner’s] plea of guilty must affirmatively demonstrate that his decision
       was both voluntary and knowledgeable, i.e., that he has been made aware of
       the significant consequences of such a plea. . . .” 553 S.W.2d at 340.

State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999).

        To determine if a plea was voluntarily, knowingly, and understandingly entered,
courts consider the totality of circumstances, considering factors such as the relative
intelligence of the petitioner; the degree of his familiarity with criminal proceedings; whether
he was represented by 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. Powers v. State, 942 S.W.2d 551,
556 (Tenn. 1996); Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

        Here, the record supports the conclusion that the petitioner entered his plea
knowingly, voluntarily, and intelligently. The petitioner testified during the plea entry
hearing that he fully understood his plea and that he was not forced to enter a plea. He told
the court that he fully understood his rights and chose to waive them. The petitioner
acknowledged during the post-conviction hearing that counsel was fully prepared to proceed
to trial and that it was his decision to plead guilty. The petitioner’s plea of guilty
affirmatively demonstrated that his decision was both voluntary and knowledgeable and that
he was made aware of the significant consequences of such a plea. By entering a guilty plea
to two charges, he also avoided prosecution for twenty additional crimes. The petitioner is

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not entitled to relief on this issue. Therefore, we affirm the judgment from the post-
conviction court.

                                     Conclusion

      Based on the foregoing and the record as a whole, we affirm the denial of post-
conviction relief.




                                               _________________________________
                                               JOHN EVERETT WILLIAMS, JUDGE




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