                                                                                         04/10/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 12, 2019

                      DAVID WI v. STATE OF TENNESSEE

              Appeal from the Circuit Court for Montgomery County
             No. 63CC1-2016-CR-292 William R. Goodman, III, Judge
                     ___________________________________

                           No. M2018-00671-CCA-R3-PC
                       ___________________________________


Petitioner, David Wi, pled guilty to aggravated burglary, felony murder, attempted first
degree felony murder, attempted first degree premeditated murder, conspiracy to commit
first degree murder, and aggravated assault in exchange for a sentence of life plus twenty-
five years. Petitioner subsequently filed a petition for post-conviction relief and alleged
that he received ineffective assistance of counsel and that his guilty pleas were not
knowing and voluntary. The post-conviction court denied relief. After a review, we
affirm the judgment of the post-conviction court on the issues of ineffective assistance of
counsel and the knowing and voluntary nature of Petitioner’s guilty plea. However, we
must reverse Petitioner’s conviction for attempted first degree felony murder and dismiss
Count Five of the indictment because Count Five of the indictment fails to state an
offense.


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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT W. WEDEMEYER., JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, David Wi.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and Arthur Bieber,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION
                              Factual and Procedural Background

       As the factual basis of the plea, the State offered an October 4, 2015 shooting in
Montgomery County where Brandon Jiminez1 and a two-year-old minor male victim, the
son of Petitioner’s wife, were shot. On this particular day, Petitioner’s wife, Petitioner’s
daughter, Petitioner’s mother-in-law, and the minor male victim were at the home of Mr.
Jiminez. Mr. Jiminez answered a knock on the door of his apartment, and a man greeted
him asking for jumper cables. When Mr. Jiminez declined the man’s request, the man
pulled out a gun and began firing. Mr. Jiminez fell to the floor, and the man walked past
him and fired several shots as he went down the hallway, including firing shots into the
room where Petitioner’s wife and daughter were hiding. As the man was leaving, the
minor male victim began to cry. Hearing this cry, the man walked deeper into the home
and fired more shots. Mr. Jiminez was seriously injured and transported via life flight to
Vanderbilt Hospital, and the minor male victim died as a result of a gunshot to the back
of the head.

       During his interview at the hospital, Mr. Jiminez recalled seeing a red or burgundy
Impala on the evening of the shooting, and he recalled that the man who committed the
shooting had come by the apartment the day before to ask for directions. Bullets from the
shooting matched a pistol recovered from a vehicle owned by Zachary Alexander, and
DNA analysis revealed that blood from the scene, which had not matched any of the
victims, matched Mr. Alexander. Phone records revealed that Mr. Alexander and
Petitioner had communicated before and after the shooting, and a field book recovered
from Mr. Alexander’s vehicle contained pages labeled “Wi’s plan.” The plan contained
notes about life insurance, the need for a body, and the date on which the crime was to be
committed, October 4th. A different page contained a hand drawn map labeled “Wi’s
crib.”

        While in jail, Petitioner wrote a letter to another inmate describing the crime and
detailing his motive. In the jail letter, Petitioner wrote the following:

        First of all I never asked him to kill [the minor male victim]. He was only
        supposed to take out my ole lady, Alicia [and] her boyfriend if he got in the
        way. I didn’t want anyone else in the house to die. Not even Rachel[,
        Alicia’s mother,] because I didn’t want [the minor male victim] to go into
        foster care. But what I think happen was, he knew I have life insurance on
        [the minor male victim], so after he shot the boyfriend, he couldn’t find
        anyone else but the boy. He couldn’t find Alicia, and he wanted to get paid
        so he shot [the minor male victim]. When he told me he shot him, I flipped

        1
         The indictment refers to “Brandon Jiminez,” and the transcript of the guilty plea hearing refers
to “Brandon Jimenez.” For consistency, we will use the spelling from the indictment.
                                                 -2-
       out [and] asked him why. He just kept saying IDK, IDK, IDK, it was an
       accident. By the way, I didn’t go in the house. I waited in the car. And he
       never saw Rachel. She hid in the bathroom the whole time. . . .

        At Petitioner’s guilty plea hearing, Petitioner was placed under oath, and the trial
court directly questioned him. Petitioner testified that he understood the agreement and
that he did not contest any of the facts alleged by the State. Petitioner testified that he
had read the plea agreement. Petitioner testified that he had reviewed the agreement with
his attorney and that he was satisfied with his attorney’s representation. The trial court
went over each crime to which Petitioner would be pleading, stating the offense
classification, the range of punishment, and release eligibility percentage associated with
each offense. Then, the trial court asked Petitioner, “[A]re you in fact guilty of” each
offense to which Petitioner was pleading guilty, and Petitioner answered affirmatively.
Additionally, the trial court explained the consecutive and concurrent alignment of
Petitioner’s sentences that added up to a total effective sentence of life plus twenty-five
years.

        Later, Petitioner filed a petition for post-conviction relief alleging that he received
ineffective assistance of counsel and, as a result, his pleas were not knowing and
voluntary. Petitioner testified at the post-conviction hearing and gave the following
account of his representation. Petitioner recalled that he was indicted for “11 or 12
counts” that included charges of “[f]irst degree murder, felony murder, attempted murder,
. . . aggravated burglary, aggravated assault.” The trial court appointed trial counsel to
represent Petitioner.

        At the post-conviction hearing, Petitioner testified that a little more than a year
passed between Petitioner’s arrest and the entry of his plea. Though Petitioner had very
little experience with the court system and lawyers, the gravity of the charges against
Petitioner became apparent to him rather quickly. The amount of Petitioner’s bond and
the period of time he was told to expect to be in jail before trial indicated to him that his
charges were very serious.

       Petitioner believed that he and trial counsel met in person twice and that they met
via video conference “maybe, two, three times max.” Petitioner recalled the in-person
meetings lasting around fifteen minutes. According to Petitioner, the first in-person
meeting between Petitioner, trial counsel, and an investigator consisted of trial counsel
asking for Petitioner’s story and fielding Petitioner’s questions. Petitioner stated that his
video conferences with trial counsel usually lasted around five minutes, but a few lasted
approximately fifteen minutes. Petitioner estimated that his total time spent with trial
counsel prior to the entry of the guilty plea was approximately two hours. Petitioner met
with the investigator more than he met with trial counsel. Petitioner’s meetings with the
investigator lasted around fifteen minutes.
                                             -3-
       Petitioner claimed that during these meetings, trial counsel went over the
indictment but did not explain each individual count. He said trial counsel did not
discuss the elements of the charged crimes, the possible punishments for each individual
offense, or the lesser included offenses of the charged crimes. Trial counsel sent a
discovery packet to Petitioner, but in Petitioner’s words, “we never really went into it and
discussed what was in it.” However, the county jail prohibited Petitioner from receiving
the compact discs contained in the discovery, and Petitioner only had “a little over a
thousand pages” of the discovery that contained “thousands” of pages. Petitioner could
not recall if he had the entire discovery packet before he pled guilty. Petitioner claimed
that he did not specifically discuss any of the discovery materials with trial counsel.
Also, Petitioner felt that he did not have the opportunity or time to discuss the discovery
with trial counsel, but Petitioner did not remember asking for more time to discuss things
with trial counsel. Petitioner reached out to trial counsel multiple times, and trial counsel
responded via mail.

        The breaking point in Petitioner’s case came when the prosecutor sent trial counsel
the letter written by Petitioner about the crime that was found in another inmate’s jail
cell. According to Petitioner, the investigator delivered a message to him from trial
counsel that said, “shut the f**k up” and “nice job ensuring your conviction.” Defenses
were not discussed after this point. Petitioner said that no discussions were had about
suppressing the letter or preparing for trial.

        The discovery of the letter prompted Petitioner and trial counsel to discuss the
death penalty. Petitioner was aware that no death penalty notice had been filed by the
State, but he was unaware that the State had to file a death penalty notice before the State
could pursue that punishment. Petitioner was also unaware that the death penalty notice
had been filed in his co-defendant’s case. Petitioner said, “I assumed that . . . if I was
found guilty that I would be sentenced with the death penalty.” Petitioner claimed there
was no discussion with trial counsel about the sentencing phase of a criminal prosecution.
Petitioner and trial counsel never discussed an exact number of years that Petitioner
would be facing if he pled guilty. However, Petitioner testified that trial counsel told him
that the State was going to pursue the death penalty against him. When describing his
state of mind during the plea negotiations, Petitioner said, “I was pretty much willing to
do anything to not get the death penalty.”

       Trial counsel sent Petitioner a letter detailing the State’s plea offer, but Petitioner
did not discuss the plea offer with trial counsel until the day of the plea hearing. The first
time that Petitioner actually saw his petition to plead guilty was on the day of the plea
hearing. Petitioner read the plea petition on his own in the “roughly 30[ ]minutes”
between his receipt of the plea petition and the beginning of the hearing. Petitioner
maintained that trial counsel did not review the contents of the plea petition with him.
                                             -4-
Petitioner was uncomfortable with this situation, but he was afraid that he would receive
the death penalty if he did not go forward with the plea. Petitioner felt as though he had
unanswered questions, but he recognized that trial counsel advised him that pleading
guilty was the better option in his case.

       Petitioner recounted the trial court going over his rights during the plea hearing,
and Petitioner told the trial court that he had no questions regarding his rights. However,
at the post-conviction hearing, Petitioner contended that he was never told that he could
not be compelled to testify at his own trial. Petitioner added that he did not remember
reading about that right in the plea petition either.

      On cross-examination, Petitioner admitted that he never told trial counsel that he
would rather go to trial than plead guilty. Furthermore, Petitioner admitted that trial
counsel informed him of the State’s offer two or three weeks before the entry of his plea.

        Trial counsel had a different perspective on his representation of Petitioner. Trial
counsel, a death penalty qualified defense attorney, had handled three death penalty cases
in his career. Trial counsel documented nine different times that he met with Petitioner
either in person or via video conference. At the outset of the case, trial counsel believed
some defenses were available to Petitioner. Specifically, trial counsel believed the State
would have trouble identifying Petitioner and that “the wife” looked like a really good
suspect. However, trial counsel did not believe that these defenses were particularly
strong.

        Trial counsel explained that his method for handling cases such as Petitioner’s was
to meet with the client after indictment. He begins the meeting by asking the client if he
or she has any questions. Then, he moves to his own questions. Trial counsel had no
difficulties when communicating with Petitioner. Trial counsel stated that he would have
gone over the possible punishments for each of Petitioner’s indicted offenses. Trial
counsel generally does not go over every element of each offense when meeting with
clients. Instead, he only focuses on the issues which will be crucial to the outcome of the
case. Trial counsel could not recall if he discussed lesser-included offenses with
Petitioner.

        According to trial counsel, Petitioner said at one of their very first meetings that he
did not want to go to trial. Petitioner had questions about the death penalty. In response,
trial counsel carefully explained that he only told Petitioner that he “may” face the death
penalty, but he did not tell Petitioner that he “would” face the death penalty. No death
penalty notice had been filed, and in trial counsel’s experience, they were usually filed a
few months after indictment. However, trial counsel had indications that the State was
leaning toward pursuing the death penalty, and he had experience with the State using a
death penalty notice as a negotiation tool. Trial counsel did not explain to Petitioner that
                                             -5-
the guilt phase of trial would be bifurcated from the sentencing phase. When asked if he
believed Petitioner pleaded guilty to avoid the death penalty, trial counsel said, “I believe
he [pled] guilty because that was in his best interest to plead guilty for the offer that was
accorded him.”

        Trial counsel believed that the police had put together a pretty good “bread crumb
trail” leading to Petitioner. He characterized the State’s circumstantial evidence as
“pretty strong.” The police had recovered a field notebook from the co-defendant that
contained the victims’ address written in Petitioner’s handwriting. When the jail letter
was discovered, trial counsel’s view of Petitioner’s case worsened.

       After trial counsel received the jail letter from the prosecutor, he sent his
investigator to go confront Petitioner with the letter at the jail because trial counsel was
out of town. Trial counsel instructed his investigator to “tell him to shut up in soldierly
terms, because, apparently, at that point professional terms weren’t working.” Trial
counsel did not direct the exact language that he wanted his investigator to use. Instead,
he used asterisks and ampersands to convey the language that he wanted the investigator
to communicate to Petitioner. When confronted, trial counsel did not dispute that he
instructed his investigator to tell Petitioner to “shut the f**k up, and nice job ensuring
your conviction.”

       Trial counsel did not usually review the long form plea petition with his clients. In
this case, Petitioner had the plea petition “several days in advance.” Trial counsel fielded
questions from Petitioner and had discussions about the plea with Petitioner. Trial
counsel said, “If he asked me to discuss the plea agreement[,] we discuss[ed] it; if he did
not, then no, we didn’t.” Trial counsel went on to say the following:

       [Petitioner] is not a stupid man. Right. He’s smart. His conversations,
       when he asked me questions, were appropriate, probing and addressed the
       concerns that he had. He’s not a stupid man. So, . . . when I went down
       there, [and] asked him if he has questions about stuff, I leave it to him to
       ask me those questions.

Specifically, trial counsel noted that Petitioner never asked about the State’s ability to
compel him to testify in his own trial.

       At some point, trial counsel and the prosecutor exchanged texts about the case.
Trial counsel expressed that Petitioner was interested in retaining private counsel if the
case were to remain non-capital, and he inquired with the prosecutor if she intended to
pursue the death penalty. The prosecutor stated that she considered the matter a “death
case” and that she was authorized to pursue the death penalty. The prosecutor testified
that she got closer to filing the death notice as the case went on. They had hoped to spare
                                            -6-
the victim’s family from the protracted litigation of a death penalty trial, but the
prosecutor had authorization to file a death penalty notice and proceed to trial.

        In its written order denying post-conviction relief, the post-conviction court found
that the evidence at the hearing “did not support the premise that Petitioner did not have
sufficient time to read, review, and question anything that he did not understand in the
plea agreement,” that the plea agreement advised Petitioner of his right “to remain silent
and not testify at trial,” and that there was “no basis to support the contention that
Petitioner believed he could be forced to testify.” Further, the post-conviction court
found no merit in Petitioner’s claims that trial counsel insufficiently communicated with
Petitioner. Finding that neither deficiency nor prejudice, the post-conviction court
determined that Petitioner had not received ineffective assistance and that Petitioner’s
plea was knowing and voluntary. It is from this order that Petitioner now appeals.

                                          Analysis

                                   I. Standard of Review

        Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a post-
conviction court’s findings of fact are conclusive unless the evidence preponderates
otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions
concerning witness credibility, the weight and value to be given to testimony, and the
factual issues raised by the evidence are to be resolved by the post-conviction court, and
an appellate court may not substitute its own inferences for those drawn by the post-
conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However,
the post-conviction court’s conclusions of law and application of the law to the facts are
reviewed under a purely de novo standard, with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).

                            II. Ineffective Assistance of Counsel

        Petitioner argues that trial counsel was ineffective when he allowed Petitioner “to
plead guilty in a case when said plea was not fully knowing and voluntary.” Essentially,
Petitioner argues that trial counsel did not adequately communicate with Petitioner about
his situation and the available options. The State argues that trial counsel’s performance
                                             -7-
was not deficient because he met with Petitioner multiple times, discussed Petitioner’s
case with him, and answered Petitioner’s questions. Additionally, the State argues that
Petitioner has not established prejudice because there is no evidence that Petitioner would
have insisted upon a trial. We agree with the State.

       Both the Sixth Amendment to the Constitution of the United States and Article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner usually must
prove both that counsel’s performance was deficient and that the deficiency prejudiced
the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Because a
petitioner must establish both elements in order to prevail on a claim of ineffective
assistance of counsel, “failure to prove either deficient performance or resulting prejudice
provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580.
“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 v. State,
938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 690 (“[C]ounsel is strongly presumed to
have rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.”). This Court will not use hindsight to second-guess a
reasonable trial strategy, even if a different procedure or strategy might have produced a
different result. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994);
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this
deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

       In order to determine prejudice, the question is “whether counsel’s deficient
performance renders the result of the trial unreliable or the proceeding fundamentally
unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). As stated above, a petitioner
must show that there is a reasonable probability “sufficient to undermine confidence in
the outcome” that, “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Burns, 6 S.W.3d at 463 (quoting Strickland, 466 U.S. at
694). “An error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
                                            -8-
Id. (quoting Strickland, 466 U.S. at 691). To establish prejudice in the context of a guilty
plea, a petitioner “must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 59 (1985).

       The evidence does not preponderate against the post-conviction court’s finding
that Petitioner’s claims of insufficient communication were without merit. Trial counsel
documented nine different times that he met with Petitioner either in person or via video
conference. Additionally, the record contains four letters sent by trial counsel to
Petitioner in order to keep him apprised of the status of his case. While trial counsel did
not explain every element that the State was required to prove or the lesser-included
offenses of the crimes charged, he did discuss the possible punishments for each of
Petitioner’s indicted offenses, which was the main focus of the plea negotiations. Trial
counsel provided Petitioner with a copy of his plea petition weeks in advance of his
hearing, but he did not go over the plea petition in a line-by-line fashion before the
hearing. Nevertheless, Petitioner posed no questions to trial counsel about the plea
petition. The biggest issue with regard to their communication appears to surround the
State’s death penalty notice, or lack thereof. Petitioner knew that the State had not filed a
death penalty notice, but he did not know that notice was required before the State could
pursue the death penalty. Petitioner assumed that if he were convicted at trial, then he
would receive the death penalty. Indeed, trial counsel informed Petitioner that he “may”
face the death penalty, but at the post-conviction hearing, trial counsel carefully
explained that he used the word “may” rather than “would.” It is not deficient
performance when an attorney is not informed of and thus does not dispel a client’s
assumptions. Therefore, Petitioner did not receive ineffective assistance of counsel.

                                       III. Validity of Guilty Plea

       Interwoven with Petitioner’s claim of ineffective assistance of counsel is a claim
that Petitioner’s plea was not made knowingly and voluntarily.2 The State responds that
Petitioner knew the nature of his guilty plea and made a voluntary choice to plead guilty.
We agree with the State.

      To satisfy constitutional standards of due process, a guilty plea must be entered
knowingly, intelligently, and voluntarily. Boykin v. Alabama, 395 U.S. 238, 243 (1969).
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 (1970). In making this

        2
           Petitioner’s claim that he was not properly advised of his right to remain silent and not testify at
trial has been implicitly abandoned on appeal.
                                                     -9-
determination, the reviewing court must look to the totality of the circumstances. See
State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); Chamberlain v. State,
815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). This Court may consider the following
circumstantial 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 trial.

Blankenship v. State, 858 S.W.2d 897, 905 (Tenn. 1993). “[A] plea is not ‘voluntary’ if it
results from ignorance, misunderstanding, coercion, inducements, or threats.” Ward v.
State, 315 S.W.3d 461, 465 (Tenn. 2010). A defendant’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.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

        Defendant’s intelligence is apparent. He is a high school graduate who attended a
university for a short period of time before joining the military. While in the military,
Petitioner served as a supply specialist who managed the equipment and property books
for his outfit. He had no experience with the judicial system before this case, but he was
represented by a well-seasoned attorney who adequately communicated with him about
his options. Ultimately, it is obvious that Petitioner pled guilty to avoid the death
penalty. Even though receiving the death penalty may not have been an inevitable
outcome, as Petitioner had assumed, it was still a possibility. The prosecutor had the
authority to file a death notice and considered Petitioner’s case to be a “death case.” The
trial court thoroughly reviewed Petitioner’s guilty plea with him, and Petitioner affirmed
at the guilty plea hearing that he had read and understood the plea agreement, which
informed Petitioner of all of his rights including the right to remain silent. Petitioner has
failed to overcome the “strong presumption of verity” afforded to his declarations at the
guilty plea hearing, and we conclude that his guilty plea was made knowingly and
voluntarily.

                             IV. Count Five of the Indictment

       We have noticed a fatal flaw in Count Five of the indictment that has not been
addressed by either party or the court below. This Court must consider whether the trial
court had jurisdiction over the subject matter, regardless of whether it was presented as
an issue for review. Tenn. R. App. P. 13(b). “A valid indictment is an essential
jurisdictional element, without which there can be no prosecution.” Dykes v. Compton,
                                            - 10 -
978 S.W.2d 528, 529 (Tenn. 1998). Subject matter jurisdiction is not waived by a
defendant’s guilty plea. State v. Yoreck, 133 S.W.3d 606, 612 (Tenn. 2004). Thus, the
waiver rule does not apply when an indictment fails to charge an offense. State v.
Perkinson, 867 S.W.2d 1, 6 (Tenn. Crim. App. 1992). Moreover, subsequent
proceedings are a nullity when the indictment fails to state an offense. Id.

       “[T]he offense of attempted felony-murder does not exist in Tennessee.” State v.
Kimbrough, 924 S.W.2d 888, 892 (Tenn. 1996); State v. Madkins, 989 S.W.2d 697, 699
(Tenn. 1999). “[A] charge of ‘attempted felony-murder’ is inherently inconsistent, in that
it requires that the actor have intended to commit what is deemed an unintentional act.”
Kimbrough, 924 S.W.2d at 890.

        Count Five of the indictment alleges that Petitioner “did unlawfully attempt to
commit the offense of First Degree murder against Brandon Jiminez, as defined in TCA
39-13-202(a)(2), during the perpetration of a felony or attempt to perpetrate a felony. . . .”
Page two of Petitioner’s plea petition states that Petitioner offered to plead guilty to
“Count 5: Attempted first degree (felony) murder of Brandon Jiminez,” and page three of
Petitioner’s plea petition sets forth the possible punishment for “[a]ttempted first degree
(felony) murder of Brandon Jiminez.” At the guilty plea hearing, the State announced the
offense in Count Five as the “attempted first degree felony murder of Brandon Jimenez
[sic],” and the trial court referenced “the attempted first degree felony murder of Brandon
Jimenez (sic)” multiple times before ultimately asking, “Are you in fact guilty of the
offense as charged in [C]ount [F]ive of the indictment of attempted first degree murder?”
To which Petitioner responded, “Yes, sir.” Ultimately, the judgment document for Count
Five indicates “attempted first degree murder” and cites Tennessee Code Annotated
section 39-13-202. The judgment document does not contain a reference to a subsection
of section 39-13-202 unlike Count Five of the Indictment which references the subsection
of the statute pertaining to felony murder. There is nothing in the record that indicates
that the indictment was amended to attempted first degree premeditated murder before
Petitioner entered his plea of guilt. In fact, only moments before the entry of Petitioner’s
plea, the trial court referred to the charge as “attempted first degree felony murder”
(emphasis added).

       We cannot ignore our supreme court’s determination in State v. Kimbrough that
“attempted felony murder” is not a cognizable crime. Because Count Five of the
indictment alleges an attempted felony murder, which is not an offense in Tennessee, we
must reverse Defendant’s conviction in Count Five and dismiss Count Five of the
indictment.

      Ultimately, we determine that Count Five may be reversed and dismissed
independently from the remaining convictions that resulted from Petitioner’s guilty plea.
An invalid portion of a guilty plea may be severed from the remaining convictions so
                                            - 11 -
long as the invalid portion is not a material, bargained-for, element of the plea. See
David Wayne Britt v. Jerry Lester, Warden, No. W2013-00148-CCA-R3-HC, 2014 WL
117423, at *3 (Tenn. Crim. App. Jan. 13, 2014), perm. app. denied (Tenn. May 15,
2014). A portion of a plea agreement is material when there is a reasonable probability
that that outcome would be different in the absence of that portion. See id. (citing
Summers v. Fortner, 267 S.W.3d 1, 6-7 (Tenn. Crim. App. 2008)). The reversal of
Petitioner’s conviction in Count Five will not affect Petitioner’s total effective sentence
because the twenty-five-year sentence for Count Five was concurrent with Petitioner’s
twenty-five-year sentence in Count Nine. Since Petitioner’s stated reason for pleading
guilty was that he wanted to avoid the death penalty, his plea to Count Five is not a
material element of Petitioner’s plea agreement. Therefore, all of Petitioner’s convictions
other than the conviction for Count Five will remain intact as well as his life (Count 2)
plus twenty-five years (Count 9) sentence.

                                       Conclusion

         For the aforementioned reasons, we affirm the judgment of the post-conviction
court.


                                             ____________________________________
                                             TIMOTHY L. EASTER, JUDGE




                                           - 12 -
