        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs February 12, 2013

                ORLANDO M. LADD v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                     No. 2010-A-294, 2010-A-476 Steve Dozier, Judge



                    No. M2011-01823-CCA-R3-PC - Filed June 11, 2013


Petitioner, Orlando M. Ladd, was indicted by the Davidson County Grand Jury for possession
with intent to sell or deliver in a drug-free zone, evading arrest, possession of drug
paraphernalia, and two counts of felony simple possession of a controlled substance. He
entered a negotiated plea to possession with intent to sell or deliver, evading arrest and one
count of simple possession. He received an effective sentence of twelve years to serve at
forty-five percent incarceration to be served concurrently to a twelve-year sentence he was
already serving at the time of sentencing. Petitioner filed a petition for post-conviction relief
arguing that he received ineffective assistance of counsel and that he entered his guilty plea
unknowingly and involuntarily. The post-conviction court held a hearing and denied the
petition. Petitioner appeals that denial to this Court. After a thorough review of the record,
we conclude that the petition was properly denied, and we affirm the judgment of the
post-conviction court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
J EFFREY S. B IVINS, JJ., joined.

Joseph W. Fuson, Nashville, Tennessee, for the appellant, Orlando Ladd.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General, and Rachel Sobrero, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                          OPINION

                                     Factual Background
       On November 18, 2010, Petitioner filed a pro se petition for post-conviction relief.
An amended petition was filed by appointed counsel. The petitions argued that Petitioner
had been afforded ineffective assistance of counsel and that he had entered his plea
unknowingly and involuntarily. The post-conviction court held a hearing on March 10, 2011.
Petitioner was the first witness at the hearing. He testified that trial counsel was appointed
to represent him. Petitioner stated that he received a letter from trial counsel but did not
actually meet him in person until the day he pled guilty. When he met trial counsel,
Petitioner was already serving time on his previous twelve-year sentence. Petitioner said that
their meeting lasted fifteen to twenty minutes.

       Petitioner stated that their discussion focused on how the new plea would effect his
“full expiration date.” Petitioner stated that he knew that his new sentence would be run
concurrently with his prior sentence. According to Petitioner, he told trial counsel that he
wanted his sentence expiration date for his previous sentence that expired in 2018 to remain
the same. Petitioner testified that he told trial counsel that he would accept the plea offer as
long as his full expiration date did not change. Petitioner and trial counsel also discussed
how the school-zone enhancement was going to be dropped and how that would affect his
sentence.

       Petitioner recalled his guilty plea hearing. He remembered that the State had said
something about his parole date changing, but Petitioner claimed that it had nothing to do
with his full expiration date. Petitioner stated that he had reviewed the transcript of his guilty
plea and did not find anything about an “outdate” or “expiration date.” He testified that his
expiration date was now 2021 instead of 2018. Petitioner stated that he would not have
entered the plea had he known that his expiration date was going to change to 2021.

       Petitioner testified on cross-examination that he knew that if the school-zone
enhancement was dropped his sentence would be lower. Petitioner stated that trial counsel
told him that his sentence expiration date would not change because of the deal.

        Trial counsel also testified at the hearing. He stated that he explained to Petitioner
that the deal the State offered was twelve years at forty-five percent to run concurrently with
his prior sentence. Trial counsel stated that he probably used the words “that the new twelve
will eat the old twelve.” Trial counsel stated that he never assured Petitioner that his
expiration date would stay the same. Trial counsel stated that he knew Petitioner was
concerned about his expiration date and whether the deal would change his expiration date.
Trial counsel stated that he told Petitioner that trial counsel could not calculate his release
eligibility for him. Trial counsel stated that he told Petitioner that trial counsel did not know



                                               -2-
how the deal would affect his release eligibility. Trial counsel told Petitioner that the new
twelve-year sentence would take care of the old twelve-year sentence.

       Trial counsel stated that his number one priority in his representation of Petitioner was
to get the school-zone enhancement out of contention. With the charges in Petitioner’s
indictment, Petitioner’s potential exposure was a twelve-year sentence at 100 percent
incarceration and two, six-year sentences at sixty percent incarceration. Trial counsel
believed that the deal he was offered by the State was particularly good, and he believed that
Petitioner needed “to jump on [it] today.” Trial counsel liked the offer because it removed
the school-zone enhancement and ran the new sentence concurrently with the sentence
Petitioner was already serving.

        Trial counsel agreed that he and Petitioner did not spend very much time together.
He agreed that the only time they spent discussing the case was the first time they were in
court. Trial counsel received discovery from the State and had reviewed it. Trial counsel
recalled discussing the substance of case with Petitioner, but he could not remember if he had
specifically reviewed the discovery materials with him. Trial counsel felt that the State’s
case was strong. Trial counsel stated, “My position was [the State’s] case was strong on its
face, this is a great offer. We don’t need to do anything today but, you know, we don’t see
offers like this on these kinds of cases.”

        Trial counsel testified that he knew that Petitioner was concerned about his sentence
expiration date. However, he denied telling Petitioner that his sentence expiration date was
going to stay the same. Trial counsel stated that he would have never promised Petitioner
that his sentence expiration date would stay the same.

       On April 11, 2011, the post-conviction court entered a written order that denied the
petition. The post-conviction court included the following:


       [T]he Court finds the petition has failed to prove the allegations by clear and
       convincing evidence. The Court accredits the testimony of trial counsel that he
       did not give the petitioner any assurance that he would be released at a certain
       time or that his guilty plea would not alter his release date. In fact, the advice
       given could be exactly correct. The petitioner could be released on parole long
       before 2021. The Court has reviewed the transcript of the guilty plea which
       contains no discussion regarding the petitioner’s release or parole date. The
       petitioner has five (5) prior felony drug convictions and is familiar with the
       criminal justice system. Trial counsel obtained a favorable disposition



                                              -3-
       evidenced by the Drug Free School Zone aspect being dropped and the
       sentence running concurrently to [the] petitioner’s TDOC sentence.


Petitioner appeals the denial of his petition to this Court.

                                       ANALYSIS
                           Post-conviction Standard of Review

        On appeal, Petitioner argues that he was afforded ineffective assistance of counsel and
that he did not enter his plea knowingly and voluntarily. The post-conviction court’s findings
of fact are conclusive on appeal unless the evidence preponderates otherwise. See State v.
Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review of the issues raised, we will
afford those findings of fact the weight of a jury verdict, and this Court is bound by the
post-conviction court’s findings unless the evidence in the record preponderates against those
findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d
138, 147 (Tenn. Crim. App. 1997). This Court may not re-weigh or re-evaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. See State v.
Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s
conclusions of law are reviewed under a purely de novo standard with no presumption of
correctness. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing by clear and convincing evidence that
(a) the services rendered by trial counsel were deficient and (b) that the deficient
performance was prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.
1996); see also T.C.A. § 40-30-110(f). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). “Because a petitioner must establish both prongs of the test 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.

       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

                                              -4-
        Furthermore, on claims of ineffective assistance of counsel, Petitioner is not entitled
to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994). This Court may not second-guess a reasonably-based trial strategy, and we cannot
grant relief based on a sound, but unsuccessful, tactical decision made during the course of
the proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Once a guilty plea has been entered, effectiveness of counsel is relevant only to the
extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective
assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently
made. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400
U.S. 25, 31 (1970)). As stated above, in order to successfully challenge the effectiveness of
counsel, Petitioner must demonstrate that counsel’s representation fell below the range of
competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. Under
Strickland v. Washington, Petitioner must establish: (1) deficient representation; and (2)
prejudice resulting from the deficiency. 466 U.S. 668, 694 (1984). However, in the context
of a guilty plea, to satisfy the second prong of Strickland, 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, 474 U.S. at 59; see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).

       When analyzing a guilty plea, we look to the federal standard announced in Boykin
v. Alabama, 395 U.S. 238 (1969), and the State standard set out in State v. Mackey, 553
S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin,
the United States Supreme Court held that there must be an affirmative showing in the trial
court that a guilty plea was voluntarily and knowingly given before it can be accepted. 395
U.S. at 242. Similarly, our Tennessee Supreme Court in Mackey required an affirmative
showing of a voluntary and knowing guilty plea, namely, that the defendant has been made
aware of the significant consequences of such a plea. Pettus, 986 S.W.2d at 542. The
standard is the same for a “best interest” or Alford plea, that is, “whether the plea represents
a voluntary and intelligent choice among the alternative courses of action open to the
defendant.” Alford, 400 U.S. at 31.

       A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial
court must determine if the guilty plea is “knowing” by questioning the defendant to make
sure he fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S.W.2d at 904.



                                               -5-
        Petitioner has failed to show that trial counsel was deficient and, but for these alleged
deficiencies, he would have refused to plead guilty and insisted on going to trial. Petitioner
argues that he would not have accepted the plea offer if he had known that his sentence
release eligibility date would have been longer. The trial court concluded that trial counsel
was the more credible witness. Trial counsel testified that he informed Petitioner that there
was no way to calculate his release eligibility date in light of the guilty plea. Trial counsel
also stated that he did not tell Petitioner that the sentence release eligibility date would
remain the same. It is up to the trial court to determine credibility of witnesses, and the post-
conviction court’s findings have the weight of a jury verdict. Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). Trial counsel advised Petitioner that there was no way to predict
what his sentence release eligibility date would be, and Petitioner decided to plead guilty
anyway. The transcript of the guilty plea hearing reflects that the trial court discussed the
ramifications of the guilty plea with Petitioner. Petitioner was thoroughly questioned by the
trial court to ascertain whether he understood the effects of the plea. He has not proven that
he would not have pled guilty if not for the alleged deficiencies.

       Furthermore, he has not proven that he entered his plea unknowingly or involuntarily.
The plea hearing also indicates that Petitioner knew what he was doing, understood the plea,
and agreed that it was what he wanted to do to resolve the case. Petitioner has failed to show
by clear and convincing evidence that he received ineffective assistance of counsel or that
his guilty plea was involuntary. Petitioner has failed to prove he did not understand the
consequences of his plea.

                                       CONCLUSION

       For the foregoing reasons, we affirm the denial of the petition.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




                                               -6-
