         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs August 1, 2006

              CLYDE LEE BLACKMON v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Shelby County
                         No. 03-02936    James C. Beasley, Jr., Judge



                    No. W2005-02570-CCA-R3-PC - Filed October 13, 2006


The petitioner, Clyde Lee Blackmon, appeals as of right the Shelby County Criminal Court’s denying
his petition for post-conviction relief from his 2004 conviction of second degree murder, a Class A
felony, for which he is serving a twenty-five-year sentence as a Range I, violent offender. The
petitioner claims he received the ineffective assistance of counsel, which rendered his guilty plea
involuntary. We conclude no error exists, and we affirm the judgment of the trial court.

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

JOSEPH M. TIPTON , P. J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT
W. WEDEMEYER , JJ., joined.

Vicki M. Carriker, Memphis, Tennessee, for the appellant, Clyde Lee Blackmon.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Theresa Smith McCusker, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The petitioner’s plea hearing transcript reflects that the petitioner shot and killed a security
guard at an apartment complex where the petitioner and an accomplice were attempting to steal car
radios. The petitioner was charged with first degree murder. At the time of his plea, the petitioner
was twenty years old and had a high school education. He agreed to enter a guilty plea to second
degree murder and to accept a twenty-five-year sentence to be served at 100% as a violent offender.
He acknowledged that he would serve the sentence day-for-day. The petitioner said that he did not
want to go to trial, that he wanted to enter the guilty plea, and that he was satisfied with the services
of his attorney.

       Several months later, the petitioner filed this post-conviction action in which he alleged that
counsel had been ineffective in failing to obtain a mental examination, failing to challenge the
admissibility of his accomplice’s statement to the police, and failing to challenge the determination
of his sentence range. Counsel was appointed, and additional allegations were added. Those
allegations were that the petitioner’s plea was involuntary because counsel failed to communicate
to the petitioner the amount of time he would actually serve in the Department of Correction before
release and that counsel failed to file a motion to suppress a statement the petitioner gave while
injured and under the influence of medication.

        The trial court conducted a hearing, at which the petitioner limited his issues to whether
counsel had been ineffective in (1) failing to explain that the petitioner’s sentence would be served
at 100%, and (2) failing to file a motion to suppress the petitioner’s statement. Both the petitioner
and his trial attorney testified.

        The petitioner’s trial counsel testified that he was certain he advised the petitioner of the
100% service aspect of the sentence. Counsel said that the petitioner did not like either alternative
before him – pleading guilty and serving a twenty-five-year sentence or going to trial and likely
receiving a life sentence. Counsel said that the petitioner knew what the evidence was against him.
Counsel testified that the state had a very strong case against the petitioner and that he was somewhat
surprised to have received the settlement offer under these circumstances. Counsel testified that he
strongly advocated the settlement agreement to the petitioner because it gave him an opportunity to
live some of his life outside prison walls in the future. He said, however, that the decision to enter
the plea was the petitioner’s own after consulting with counsel and his family. Counsel characterized
his decision not to file a motion to suppress as a strategic one because the statement was consistent
with the self-defense theory he intended to put forward if the case went to trial.

         The petitioner testified that he consulted with counsel before entering his plea and that they
discussed the evidence and a theory of self-defense. The petitioner, who had been in pre-trial
detention since the time of his crime, said that he understood from counsel that he would only serve
“five more years” of his twenty-five-year sentence. He claimed that counsel never told him the
sentence carried essentially no release eligibility and that he did not learn how long he would actually
be incarcerated until he reached the Department of Correction. The petitioner testified that he was
inexperienced in the criminal justice system and did not understand the guilty plea paperwork or the
admonitions from the court about release eligibility at his plea hearing. The petitioner also testified
that he and counsel discussed filing a motion to suppress. The petitioner said that he wanted counsel
to file the motion but that counsel thought the statement was helpful to the defense. The petitioner
said this was the reason the motion was not filed. He said that ultimately he deferred to counsel’s
expertise on this issue.

        At the conclusion of the hearing, the trial court accredited the testimony of counsel that he
had correctly advised the petitioner of the ramifications of the plea agreement, including the sentence
he would receive and the release eligibility for that sentence. The court found that the petitioner had
received the effective assistance of counsel and that he had entered his guilty plea knowingly and
voluntarily. The post-conviction court also rejected the petitioner’s claim that trial counsel should
have filed a motion to suppress. The court found that counsel made an informed, strategic decision


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not to file the motion and that the decision did not constitute ineffective assistance of counsel. Based
upon these findings, the trial court denied relief.

        In his appeal, the petitioner raises only the question of the voluntariness of his plea based
upon counsel’s failure to advise him adequately about release eligibility. In the lower court, the
burden was on the petitioner to prove by clear and convincing evidence the factual allegations that
would entitle him to relief. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial court’s
findings of fact unless we conclude that the evidence in the record preponderates against those
findings. See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect, the
petitioner, as the appellant, has the burden of illustrating how the evidence preponderates against the
judgment entered. Id. However, we review the trial court’s conclusion regarding the effectiveness
of counsel de novo because it involves a mixed question of law and fact. See State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999).

        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, 104 S. Ct. 2052, 2064
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). In other
words, a showing that counsel’s performance falls below a reasonable standard is not enough; rather,
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, 104 S. Ct. at 2068. 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).

        A petitioner will only prevail on a claim of ineffective assistance of counsel after satisfying
both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). The
performance prong requires a petitioner raising a claim of ineffectiveness to show that the counsel’s
representation fell below an objective standard of reasonableness or “outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The prejudice
prong requires a petitioner to demonstrate that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694,
104 S. Ct. at 2068. “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id., 104 S. Ct. at 2068. Failure to satisfy either prong results in the denial of relief.
Id. at 697, 104 S. Ct. at 2069.

       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). 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


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perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Thus, the fact that a
particular strategy or tactic failed or even hurt the defense does not, alone, support a claim of
ineffective assistance. Deference is made to trial strategy or tactical choices if they are informed
ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201.

       When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970). The court reviewing the
voluntariness of a guilty plea must look to the totality of the circumstances. See State v. Turner, 919
S.W.2d 346, 353 (Tenn. Crim. App. 1995). The circumstances include

               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) (citing Caudill v. Jago, 747 F.2d 1046,
1052 (6th Cir. 1984)). A plea resulting from ignorance, misunderstanding, coercion, inducement,
or threats is not “voluntary.” Id.

        In the present case, the petitioner testified that his attorney did not tell him he would serve
100% of his twenty-five-year sentence. Trial counsel testified that he did. The record of the plea
hearing reflects that the court advised the petitioner in this regard and that the petitioner
acknowledged his understanding. The trial court found that counsel was not ineffective, that the
petitioner was advised of his rights, and that the petitioner entered his guilty plea knowingly,
intelligently, and voluntarily. Upon review, the evidence of record does not preponderate against
the trial court’s findings, which support the conclusions reached. Thus, the petitioner has not
established that he is entitled to appellate relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.



                                                       ____________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE




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