        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   May 15, 2012 Session

             ROBERT ERIC COLLINS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Hawkins County
                      No. 08CR0032      Thomas Wright, Judge


               No. E2011-01758-CCA-R3-PC-FILED-OCTOBER 5, 2012


The Petitioner, Robert Eric Collins, appeals from the Hawkins County Criminal Court’s
denial of post-conviction relief from his two guilty plea convictions for possession with
intent to deliver a controlled substance, Class C felonies, and his effective three-year
community corrections sentence. On appeal, the Petitioner contends that counsel provided
ineffective assistance by (1) failing to advise him properly of potential conflicts of interest
and (2) forcing him to plead guilty by telling him that he could not receive a fair trial in
Hawkins County. We affirm the judgement of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and N ORMA M CG EE O GLE, JJ., joined.

Wayne R. Stambaugh, Morristown, Tennessee, for the appellant, Robert Eric Collins.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; C. Berkeley Bell, Jr., District Attorney General; and Alex Pearson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

        The Petitioner was indicted for possession with the intent to deliver 274 tablets of
Oxycodone, a Schedule II controlled substance, and possession with the intent to deliver 108
tablets of Dihydrocodeinone, a Schedule III controlled substance. On November 24, 2008,
the Petitioner pleaded guilty to both offenses for an effective three-year sentence and
requested judicial diversion, which the trial court granted and ordered six months’ house
arrest. The Petitioner failed to disclose a disqualifying felony conviction, and as a result, the
plea was set aside. On April 14, 2009, the court entered an order stating that “there was no
plea agreement and that the case would proceed to trial or be resolved by a plea to the
indictment without any agreement for a reduction or specific sentence.” On July 30, 2009,
the Petitioner pleaded guilty to the same offenses and received an effective three-year
sentence to be served on community corrections.1

        On May 28, 2010, the Petitioner filed a petition for post-conviction relief contending
that he received the ineffective assistance of counsel because of counsel’s dual
representation of him and his wife and because counsel commented on the Petitioner’s
inability to receive a fair trial because of his race and interracial marriage. He argued
counsel’s comments forced him to plead guilty.

       At the post-conviction hearing, counsel testified that the Petitioner made an
appointment to meet with him after the Petitioner and his wife, Rita Collins, were indicted.
He said the Petitioner discussed counsel’s representing the Petitioner and Mrs. Collins and
the circumstances of their charges. The Petitioner told counsel that the police found
Oxycontin tablets belonging to his wife during a search of their car. The Petitioner also told
him that a third person in the car was charged.

       Counsel testified that after his initial visit with the Petitioner, the Petitioner stated that
counsel had been “highly recommended as a criminal defense attorney . . . and that they were
going to hire [him].” Counsel quoted the Petitioner a fee for handling both cases, and the
Petitioner paid a portion of the fee. When asked if he discussed with the Petitioner and Mrs.
Collins that there might be a potential conflict of interest, counsel said that he told them,
“[Y]ou’re husband and wife, and that sometimes means that, you know, if you’re not saying
she did anything, and she’s not saying you did anything or anything of that nature . . . I just
went over the conflictual process.” Counsel said that his practice was to handwrite
something and have the client sign it but that he could not find such a document in his file.
He recalled telling the Petitioner and Mrs. Collins that he did not see any potential conflict.
He said he thought he had them sign a statement waiving any potential conflict of interest,
but he could not find it and questioned if it was done in this case. He recalled, though,
reviewing “it in great detail with them verbally.”

       Counsel testified that he received Mrs. Collins’s statement in the State’s discovery
package and that Mrs. Collins told the police the Petitioner sold her Oxycontin tablets to
Charles Gilbert, the second co-defendant. The record shows that Mrs. Collins told the police
the instant offense was the third time she went with her husband to sell the pills, that the
Petitioner took the money and put it in her purse, and that the Petitioner counted the pills and

        1
           We note that although the court entered a separate order of alternative sentencing, the judgments
fail to refer to the order or to reflect the court’s ordering community corrections.

                                                    -2-
gave the pills to her when a police officer approached the car, causing her to drop the pills
on the seat.

        Counsel testified that after he received Mrs. Collins’s statement, he talked to both of
them concerning potential conflicts of interest. He said that he told them a potential conflict
existed and that the Petitioner responded that “we’ve got to keep her out of jail.” He said
the Petitioner stated that he did not want his wife going to jail and that although the
Petitioner did not want to go to jail, he would go to jail if he had to. He said the Petitioner
stated, “I cannot have my wife going to jail; she can’t make it in jail.” Counsel recalled that
Mrs. Collins had been involved in a serious accident years earlier and was in “constant pain,
chronic pain.” He said he promised the Petitioner that he would do everything he could to
keep Mrs. Collins from going to jail. He denied the Petitioner stated he was guilty of a
crime.

       Counsel testified that he discussed with the Petitioner and Mrs. Collins the potential
conflict that could arise if the case went to trial. He said he discussed the State’s calling
Mrs. Collins as a witness against the Petitioner and calling the Petitioner as a witness against
Mrs. Collins. He said that during this discussion, Mrs. Collins stated that she did not want
to go to trial. He said that he talked to the Petitioner and Mrs. Collins about the potential
conflict and that they wanted counsel to represent them. He said the Petitioner and Mrs.
Collins did not want another attorney. He said he successfully obtained judicial diversion
for Mrs. Collins.

       Counsel testified that he filed a motion in the Petitioner’s case to suppress Mrs.
Collins’s statement and the products of the search of the Petitioner’s car. He said he argued
that Mrs. Collins was heavily medicated at the time of the stop and “incompetent due to the
effect of her prescribed medication and deteriorating mental state.” He said a court’s
granting the motion would not have threatened Mrs. Collins’s case and would have helped
the Petitioner’s case. He did not recall the Petitioner’s telling him that he believed Mrs.
Collins was intoxicated at the time of the suppression hearing.

        Counsel testified that he and the Petitioner discussed the evidence in the case and that
the police officers found “a lot of pills.” He said that he rarely saw such a large quantity of
pills and that he was unsure how a jury would react to the large quantity. He did not recall
the Petitioner’s stating whether the pills belonged to him but recalled there was a
discrepancy in the number of “pills per prescription” and the number of pills found in the
car. He said that after the trial court ruled on the motion, he advised the Petitioner to accept
the plea offer.



                                              -3-
       Counsel testified that the Petitioner pleaded guilty on November 24, 2008, and
received judicial diversion. Counsel said that the Petitioner did not tell him before the
diversion hearing that he wanted a trial instead of pleading guilty. He said that the Petitioner
asked if counsel thought they should go to trial and that he talked “ad nauseam” about it with
the Petitioner. He said that he asked for a continuance at one of the scheduled hearings to
discuss the Petitioner’s pleading guilty or going to trial but that the trial court told him they
were going to select a trial date or the Petitioner was going to plead guilty. He said he
advised the Petitioner that there was a high likelihood of conviction if he went to trial.

        Counsel testified that he got “in a pickle somewhat” because the Petitioner told him
about the activities that led to the charges in the case. He said the Petitioner admitted that
there was “a transfer of pills going on” because the buyer “was hurting . . . and they were
helping him out.” He said he worried that an ethical problem could arise if the Petitioner
testified at a trial that “there was nothing going on, on top of that mountain[.]” He told the
Petitioner, “[H]ow about if we just -- get to -- look, you’[ll] -- plead guilty and we’ll . . . go
through the process of a hearing for judicial diversion.” He said that he spent a lot of time
with the Petitioner, that he thought they were friends, and that he advised the Petitioner that
he would be “much better off by taking this plea.” He said he told the Petitioner that he did
not know if he could call the Petitioner as witness at a trial and that he did not know if any
of his defenses would be successful. He said that after this discussion, the Petitioner said,
“[Mrs. Collins] is safe, she’s not going to jail,” and pleaded guilty. The trial court granted
the Petitioner’s judicial diversion request.

        Counsel testified that he and the Petitioner did not have heated arguments on the day
of the plea. He said that the Petitioner had “a forceful personality” but that he never cursed
or yelled at the Petitioner. He agreed the Petitioner “may have gotten a little agitated” when
deciding whether to plead guilty. He said he told the Petitioner that he could receive a
prison sentence if he lost at a trial and that he had a better chance of staying out of prison
by “having this hearing and . . . getting up and . . . saying a few things and doing the right
thing here than . . . with going to trial.” He said he told the Petitioner that he thought there
were things that would hurt him at trial, and the Petitioner said, “I trust you,” and pleaded
guilty. He said that he explained a best interest plea to the Petitioner but that the trial court
might look favorably on the Petitioner if he admitted guilt and accepted responsibility. He
said “it worked” because the Petitioner received diversion.

       Counsel testified that at the first guilty plea hearing, the trial court discussed whether
the Petitioner and Mrs. Collins thought counsel had any conflicts of interest due to counsel’s
representing them. The court conducted “detailed questioning . . . about whether or not
anybody saw conflict here[.]”


                                               -4-
       Counsel testified that after the Petitioner received diversion, the Petitioner’s
community corrections officer learned that the Petitioner had a previous felony conviction
involving marijuana, which disqualified him from judicial diversion. The State filed a
motion to set aside the judicial diversion. Counsel said that when he discussed this with the
Petitioner, the Petitioner “got upset . . . [and] started saying this is a racial thing.” He said
the Petitioner stated that the State was “after [him]” because he was “a black man . . .
married to a white woman.” He said the Petitioner was “a different” person that day.

         Counsel testified that he thought the State would not offer the Petitioner another deal
and that the Petitioner would have to go to trial. He recalled that the prosecutor was “upset
and . . . thinking about filing perjury charges” but that the prosecutor offered the Petitioner
a three-year sentence. He said the Petitioner pleaded guilty again. He said that at the
sentencing hearing, he cross-examined the Petitioner’s community corrections officer, who
testified that the Petitioner was “a perfect probationer” while on community corrections and
did everything required of him. He said that the trial court ordered the Petitioner to serve
his sentence on community corrections and that the only difference in sentencing was that
the convictions could not be expunged from his record.

       Counsel testified that he thought he could have represented the Petitioner if the case
went to a trial. He said he talked to the Petitioner about potential racial issues with respect
to a jury trial. He said he told the Petitioner that “most of the time . . . we have black
members of jury panels . . . [because] there’s a sizable black population in Hawkins
County.” He did not think the Petitioner’s race would have prevented a fair trial in Hawkins
County. He said he told the Petitioner that there were complicated constitutional issues
about race that would have to be discussed if there was a trial but that the Petitioner could
receive a fair trial.

        The Petitioner testified that because counsel had the reputation of being “a good
counselor,” he and his wife discussed the indictments with counsel. The Petitioner recalled
that he told counsel, “I don’t want you to look at me as, you know, as black. I just wanted
to get treated like the rest[.]” He said that counsel never talked to him and Mrs. Collins
about there being a potential conflict of interest by representing both of them. He said that
he did not learn of Mrs. Collins’s statement until one year later. He said Mrs. Collins was
medicated and “didn’t even know she was in the world” at the suppression hearing. He said
counsel knew of Mrs. Collins’s condition at the hearing.

       The Petitioner testified that he told counsel he wanted a trial but that counsel “just
didn’t want [him] to go to trial.” He said counsel told him that he would not get a fair trial
because he was black and that the jurors would be “a bunch of hillbillies and rednecks” who
would not like that he was married to a white woman. He said that he and counsel argued

                                               -5-
about going to trial the last time they were together and that counsel became so upset he
slammed down his papers. He said that he threatened to hire another attorney on at least
three occasions but that every time he mentioned it, counsel said, “Oh, no, no, no. I’ve got
everything took care of.” He said he decided to plead guilty “[b]ecause [he] was told [he]
wouldn’t get a fair trial.” He said the trial court’s asking him if he was satisfied with his
attorney at the guilty plea hearing was the hardest question for him to answer, which was
why he hesitated before responding.

        The Petitioner testified that he applied for judicial diversion and thought that he and
counsel discussed his prior convictions. He said he did not remember “his having a prior
record because it happened “30 years back -- 20 or 30” and “figured the statute of limitations
had run out or something.” He said, “It had actually slipped my mind myself, you know, 20-
30 -- 25-30 year[s] ago.” When asked if he served time in jail on the prior offense, the
Petitioner said, “I’ve been in jail before. I’m trying to think. I may have. Yeah, I guess I
did. Yeah, I’ve been in jail before.” He stated that when the trial court reviewed the
requirements for judicial diversion, he did not reveal that he had a prior conviction because
he “didn’t remember something, you know, 25-30 year[s] ago, 40 or however many years
it was.” He said he “ended up in the hospital . . . and . . . forgot a lot then.” He denied
failing to tell the court about his conviction because he did not want the court to find out
about it.

        The Petitioner testified that the trial court “mentioned a lot about conflict of interest”
at his plea hearing. He acknowledged that he understood what the court asked him and felt
comfortable entering his plea.

       The Petitioner testified that the reason for the large quantity of pills inside the car was
because Mrs. Collins had just been released from the hospital. He stated that the pharmacy
was out of the prescribed dosage of Roxicodone and that “they had to break the 30’s down
and give her 15’s.” He said that Mrs. Collins was prescribed two pills, five times a day and
that she was also prescribed 120 hydrocodone pills.

       Charles Gilbert testified that he and the Petitioner were friends and that he was
arrested with the Petitioner and Mrs. Collins. He said he saw the Petitioner and counsel
speak once or twice. He recalled an occasion when the Petitioner was irritated and upset and
noted neither shouted but that “[t]hey were just like highly concerned[.]” He said he gave
a statement to the police that did not incriminate the Petitioner or Mrs. Collins. He agreed
that he told the police he did not know anything about the drugs in the car and that he
pleaded guilty to a misdemeanor drug offense.



                                               -6-
        The trial court noted that at the initial plea hearing, it explained in detail to the
Petitioner and Mrs. Collins that there was a potential conflict of interest with counsel
representing the Petitioner and Mrs. Collins but that because of their primary goal of keeping
Mrs. Collins out of jail, “there wasn’t an actual conflict.” The court found that the Petitioner
and Mrs. Collins “were in agreement of what ought to happen” and that counsel was hired
to fulfill that objective. The court found that the

              goal was fulfilled because of the skillful lawyering of [counsel]
              in convincing, first, the district attorney’s office to reduce her
              charges to misdemeanors and, secondly, convincing me to put
              her on a judicial diversion. And then, even more, I guess the
              bigger leap would have been convincing me to put [the
              Petitioner] on judicial diversion before we knew [he] had a
              prior felony conviction.

The court noted that the Petitioner “couldn’t have just waltzed in here by [himself] and
gotten that result.” Instead, the court found that the result was obtained because the
Petitioner “hir[ed] somebody that had 25 years of experience, that had a great relation with
the District Attorney’s Office, and knew what would be important to bring out, in arguing
for those types of alternative sentencings[.]” The court found that the potential conflict of
interest with counsel representing the Petitioner and Mrs. Collins did not adversely affect
the voluntariness of the plea on November 24, 2008, or on July 30, 2009. The court found
that at the plea hearing, the Petitioner assured the court that his plea was voluntary and that
he had no complaints about counsel’s services.

       The trial court noted that the only fault with counsel was his maintaining his
paperwork for having the Petitioner and Mrs. Collins sign a waiver of any potential conflict
of interest. The court acknowledged that having clients sign a waiver was something
criminal defense lawyers were supposed to do, “[s]o [counsel] either did a bad job of
maintaining his file or he omitted doing something that he should have done[.]” The court
concluded, though, this failure did not prejudice the Petitioner.

       The trial court stated that “it’s somewhat amazing that [it] granted the community
corrections on the second go-round after [it] found out that [the Petitioner] had a prior
felony drug offense.” The court found that “it stretches the credulity of the Court to believe
that somebody doesn’t remember going to jail in their past, whether it’s five years or 30
years ago. That’s just not something that’s, unless it’s a common occurrence . . . , that
anybody ever tends to forget.”



                                              -7-
        The trial court found that counsel was not deficient and was “dead-bang on target”
in his advice that the Petitioner had a better chance of avoiding jail time by pleading guilty
rather than going to trial and likely getting convicted. The court noted that had the case
gone to trial, Mrs. Collins would have probably been required to testify about her prior
statement related to the Petitioner’s selling pills to Mr. Gilbert. The court stated that
“whether you are black or white, you’re going to get convicted in that situation, nine times
out of ten. And that’s what he was telling you, and he was right. And you were right to
accept his advice.” The court said counsel probably did what any good lawyer would do by
pointing out that race could be a factor with certain members of the jury panel, but it refused
to accredit the Petitioner’s testimony that counsel told him he would not receive a fair trial
because of his race. The court stated that it was the Petitioner’s “hindsight” that led him to
believe that counsel told him he would not receive a fair trial but found that race did not
motivate the Petitioner to plead guilty.

       With regard to the potential conflict of interest, the trial court found that the Petitioner
“was well aware of the potential conflict of interest in [counsel]’s representation of both
[him] and his wife” but that an actual conflict of interest did not exist because the primary
goal of both parties was to prevent Mrs. Collins from going to jail. The court found that the
secondary goal of keeping the Petitioner from going to jail was also achieved. The court
concluded that counsel’s loyalty to the Petitioner and his wife “was not divided as they were
in agreement on the goal of his representation. No conflict of interest, actual or potential,
affected the voluntariness of [the Petitioner’s] plea of guilty.”

        With regard to the Petitioner’s receiving a fair trial in Hawkins County, the trial court
found that counsel did not make the statement to the Petitioner and that counsel’s testimony
was significantly more credible than that of the Petitioner. The court stated that the
Petitioner “either ha[d] significant memory lapses or veracity issues,” considering he did not
recall a previous felony drug conviction or the court’s discussion about the potential conflict
of interest at the first plea hearing. This appeal followed.

                                                I

        The Petitioner contends that counsel provided the ineffective assistance of counsel
by failing to advise him properly of any potential conflict in counsel’s joint representation
of him and Mrs. Collins. The State contends that the trial court properly concluded that
counsel did not render ineffective assistance and argues that counsel informed the Petitioner
of the potential conflict of interest. We agree with the State.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, we

                                                -8-
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2006).

       Under the Sixth Amendment, when a claim of ineffective assistance of counsel is
made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient
and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the
Petitioner must also show that but for the substandard performance, “the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland
standard has been applied to the right to counsel under article I, section 9 of the Tennessee
Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within
the range of competence demanded of attorneys in criminal cases. Further, the court stated
that the range of competence was to be measured by the duties and criteria set forth in
Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster,
487 F.2d 1197, 1202-04 (D.C. Cir. 1973). See Baxter, 523 S.W.2d at 936. Also, in
reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. “Thus, the fact that a particular
strategy or tactic failed or even hurt the defense does not, alone, support a claim of
ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Deference is given to trial strategy or tactical choices if they are informed ones based upon
adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487
F.2d at 1201.

       “[A]n actual conflict of interest includes any circumstances in which an attorney
cannot exercise his or her independent professional judgment free of ‘compromising
interests and loyalties.’” State v. White, 114 S.W.3d 469, 476 (Tenn. 2003) (quoting State
v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000) (quoting Tenn. R. Sup. Ct. 8, EC 5-1)).
“The proper focus is solely upon whether counsel’s conflict affected counsel’s actions and
the [petitioner]’s decision.” Netters v. State, 957 S.W.2d 844, 848 (Tenn. Crim. App. 1997).

                                             -9-
Prejudice is presumed in cases in which a petitioner can establish that his trial counsel
“‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely
affected [counsel’s] performance.’” Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan,
446 U.S. 335, 348 (1980)). However, unless the petitioner proves that trial counsel was
burdened by an actual conflict of interest, he must establish that trial counsel’s performance
was deficient and that he was prejudiced by this deficiency. Strickland, 466 U.S. at 692.

       Counsel testified that he discussed in detail the possibility of a conflict of interest
with the Petitioner and his wife. Although counsel was unable to find in his records a
document signed by the Petitioner and Mrs. Collins reflecting that counsel discussed
potential conflicts of interest, counsel thought they signed a statement waiving potential
conflicts of interest. Counsel stated that after discussing conflicts of interest, the Petitioner
and his wife said that they wanted him to continue representing them. Counsel said the
Petitioner’s primary concern was to keep Mrs. Collins from going to jail. The trial court
accredited counsel’s testimony. The record shows that at the November 24, 2008 guilty plea
hearing, the trial court thoroughly discussed the potential conflicts of interest, and the
Petitioner told the court that he was satisfied with his and his wife’s having one attorney.
We conclude that the Petitioner has failed to show that counsel was deficient or that an
actual conflict of interest arose.

                                                II

       The Petitioner contends that counsel provided ineffective assistance by forcing him
to plead guilty by telling him that he could not receive a fair trial in Hawkins County
because he was African-American and his wife was Caucasian. He argues that counsel
should have filed a motion for a change of venue. The State contends counsel provided
effective assistance and argues that the trial court properly found counsel did not tell the
Petitioner that he could not receive a fair trial.

       Counsel testified that he discussed the potential racial issues with the Petitioner.
Counsel told the Petitioner that if they went to trial, there were complicated constitutional
issues related to race that they would have to discuss but that he believed Petitioner could
receive a fair trial. The trial court accredited counsel’s testimony and found counsel did
what any good lawyer would do by pointing out that race could be a factor with certain
members of the jury panel. The court refused to accredit the Petitioner’s testimony that
counsel told him that he could not receive a fair trial because of his race. The court found
that “hindsight” led the Petitioner to believe counsel told him he would not receive a fair
trial but did not motivate his pleading guilty. We conclude that the record does not
preponderate against the trial court’s findings and that the Petitioner is not entitled to relief.



                                               -10-
        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.


                                                  _________________________________
                                                  JOSEPH M. TIPTON, PRESIDING JUDGE




                                           -11-
