        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 24, 2012

                 JULIO VILLASANA v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                     No. 2006-D-3105     Mark Fishburn, Judge




               No. M2012-00518-CCA-R3-PC - Filed December 20, 2012


Petitioner, Julio Villasana, appeals the post-conviction court’s denial of his petition for post-
conviction relief. Petitioner was indicted by the Davidson County Grand Jury for two counts
of aggravated vehicular homicide and one count of leaving the scene of an accident.
Petitioner entered guilty pleas to one count of aggravated vehicular homicide, a Class A
felony, and one count of leaving the scene of an accident resulting in death, a Class E felony.
Following a sentencing hearing, Petitioner was sentenced by the trial court to the maximum
sentence of 25 years for aggravated vehicular homicide and two years for leaving the scene
of an accident. His sentences were ordered to run concurrently. This court affirmed
Petitioner’s sentence on direct appeal. In his post-conviction petition, Petitioner asserted that
he was denied the effective assistance of counsel and that his pleas were involuntarily and
unknowingly entered. The post-conviction court denied relief following a hearing. After a
careful review of the record, we affirm the judgment of the post-conviction court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M.T IPTON, P.J.
and D. K ELLY T HOMAS, J R., J., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Julio Villasana.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Kyle Anderson,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

        A summary of the facts underlying Petitioner’s convictions and of the evidence
presented at the sentencing hearing can be found in this court’s opinion on direct appeal. See
State v. Julio Villasana, No. M2007-01923-CCA-R3-CD, 2008 WL 2368911 (Tenn. Crim.
App. at Nashville, filed June 10, 2008), perm. app. denied (Tenn., Dec. 8, 2008).

        At the post-conviction hearing, Petitioner testified that his trial counsel advised him
“[w]hen she started [his] case,” that his “sentence would be a minimum of eight [years] and
a maximum of twelve [years].” He also testified that trial counsel told him that he “was
going to get twelve years maximum sentence because [the victim] was American . . . and
because [Petitioner is] Mexican.” Petitioner testified that trial counsel subsequently told him
that his “sentence had gone from 15 to 25 years because [he] had been caught eleven times
[by] immigration.” He testified that he met with trial counsel “[l]ike five times, and the last
time [was] when she told [him] to sign to accept 15 years.”

         Petitioner testified that trial counsel advised him that he had a right to a trial. He
testified, “I didn’t want to go to trial because I am guilty, I just want to receive a sentence
that is legal.” Petitioner added, “I never would have signed for 25 years.” Petitioner testified
that he spoke to trial counsel “a week before [entering his guilty pleas] and [he] signed the
paper saying [he] could get 15 to 25 years.” Petitioner acknowledged that he answered under
oath at the guilty plea hearing that he understood that the sentencing range was 15 to 25
years. Petitioner testified that he would not have pled guilty if he had known that he would
be sentenced to 25 years.

       On cross-examination, Petitioner testified that trial counsel told him that he could
receive a sentence between 15 and 25 years but that trial counsel “told [him] the most would
be 17” because the trial judge “was not a racist.” Petitioner testified:

        [Assistant District Attorney]:      So, when you plead [sic], you were aware
        that the judge could sentence you as high as 25 years, but you didn’t think
        that he would, is that a correct understanding?

        [Petitioner]: Yes. I didn’t think he would do that because [trial counsel]
        told me that the most would be 17.

        [Assistant District Attorney]:    But you were aware that the Judge had
        the power to give you 25 if he wanted to, correct?

        [Petitioner]: Yes.


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         [Assistant District Attorney]:       And [trial counsel] advised you that the
         judge was not a racist, is that correct?

         [Petitioner]: Yes, sir.

         [Assistant District Attorney]:       Do you have any evidence today that that
         was incorrect, that in fact the judge is a racist?

         [Petitioner]: No, he’s not a racist, but – well he gave me 25 years.

         [Assistant District Attorney]:    But you understand he had the power to
         give you 25 years without thinking about your race, correct?

         [Petitioner]: Yes, sir.

         [Assistant District Attorney]:       [Trial counsel] told you that you could
         have a trial, correct?

         [Petitioner]: Yes, but she told me if I went to trial, I was going to lose for
         sure.

         [Assistant District Attorney]:       And you today have said you are guilty,
         correct?

         [Petitioner]: Yes, sir.

        Petitioner testified that he would not have been pleased with the minimum sentence
of 15 years either “because in the prison where [he is] there’s a lot of cases worse than [his]
and all of them have 8 [years] at 30 [percent release eligibility] or 9 [years] at 30.” Petitioner
acknowledged that his prior convictions for driving under the influence and his high blood
alcohol content were considered in enhancing his sentence.

         Petitioner’s trial counsel testified that “we had an offer from the State that I did not
think was a fair offer” and that she encouraged Petitioner to have a sentencing hearing. Trial
counsel testified, “[t]here were obviously circumstances that made it aggravated” but that she
believed Petitioner’s “admirable work history” would “weigh heavily” in his favor. Trial
counsel testified that Petitioner’s recollection of their conversations regarding whether to go
to trial was “fairly accurate[,]” and she testified, “we did discuss him having a trial, but only
sort of cursorily, he did not want one, it was clearly a bad idea, he would have lost.” Trial
counsel testified that the State’s offer was a fixed sentence less than what he received at the
sentencing hearing. The exact offer by the State was never mentioned during the post-

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conviction proceedings. Trial counsel testified, “[i]n retrospect, there were things that
occurred at the sentencing hearing that I had not anticipated, had I known all of those factors
ahead of time I would have advised him differently about the State’s offer.” Specifically,
trial counsel testified that Special Agent Dickhaus testified about Petitioner’s “immigration
issues.” Trial counsel recalled that she “received a continuance of a couple of hours” to
review information regarding Petitioner’s prior deportations. Trial counsel objected to Agent
Dickhaus’ testimony as it related to enhancement of Petitioner’s sentence. She testified that
she did not receive the information prior to the sentencing hearing. Trial counsel testified
that she explained to Petitioner that the sentencing range was 15 to 25 years and that she
“hope[d] that [they] could get it down to maybe 17.” She testified that she advised Petitioner
that the maximum allowable sentence was 25 years, but she “didn’t think it was likely from
where [she] sat[.]”

Analysis

        Petitioner argues that his trial counsel was ineffective by incorrectly advising him as
to the applicable sentencing range, and therefore, his guilty plea was unknowing and
involuntary. We have reviewed the record and conclude Petitioner has not demonstrated that
the trial court erred in denying his petition.

        We review ineffective assistance of counsel claims arising out of guilty pleas under
the well-established standard set out in Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L.
Ed. 2d 203 (1985). In Hill, the United States Supreme Court addressed the issue of alleged
involuntary guilty pleas resulting from erroneous or negligent advice by trial counsel and
merged the Strickland test for ineffective assistance with the traditional requirements for a
valid guilty plea. Hill, 474 U.S. at 59, 106 S. Ct. at 370. The Strickland test provides that,
to prevail on a claim of ineffective counsel, the defendant must establish that (1) the services
rendered by counsel were deficient and (2) he/she was prejudiced by the deficient
performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674 (1984); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). As applied to
guilty pleas, the first prong, deficient performance remains the same, i.e., counsel failed to
exercise the customary skill and diligence that reasonably competent counsel would provide
under similar circumstances. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Walton
v. State, 966 S.W.2d 54-55 (Tenn. Crim. App. 1997). However, the prejudice requirement
focuses on whether counsel’s ineffective performance affected the outcome of the plea
process. See Hill, 474 U.S. at 58, 106 S. Ct. at 370. In other words, in order to satisfy the
prejudice requirement, the defendant must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pled guilty and would have insisted on going to
trial. Id.; see also Walton, 966 S.W.2d at 55.



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        Generally, the “prejudice” inquiry will closely resemble the inquiry courts make in
reviewing ineffective assistance challenges to convictions obtained through a trial. See Hill,
474 U.S. at 59, 106 S. Ct. at 370. Indeed, the focus is not only upon the actual “error”
committed by counsel, but whether counsel acted competently in that (1) counsel would have
changed his recommendation as to the plea or (2) whether competent performance would
likely have changed the outcome of a trial. See Hill, 474 U.S. at 59, 106 S. Ct. at 370-71.

        In the present case, the post-conviction court concluded that Petitioner received the
competent assistance of counsel and, consequently, entered his plea knowingly and
voluntarily. A trial court’s findings of fact in a post-conviction hearing are conclusive on
appeal unless the evidence in the record preponderates against those findings. See Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Clenny v. State, 576 S.W.2d 12, 14 (Tenn.
Crim. App. 1978), cert. denied.

      The trial court in this case heard the testimony of both trial counsel and Petitioner and
made the following findings:

                During the hearing, Petitioner stated that [trial counsel] visited him
        about five times prior to the resolution of his case. He stated that he was
        fully aware of his right to a trial, but knowingly waived such right because
        he was guilty of the charges. Petitioner also contends that while he and
        [trial counsel] hoped for a lesser sentence, he was fully aware that the
        maximum sentence which could be imposed by this Court was twenty-five
        (25) years. Petitioner was aware that his prior deportations could increase
        the sentence [and] were a relevant sentencing factor. Both he and [trial
        counsel] were arguing for a maximum sentence of seventeen (17) years.

        . . . . On the day of sentencing, [trial counsel] made the court aware that she
        was unaware of Petitioner’s [f]ederal [r]ecord because it was not included
        in discovery or in a notice to enhance punishment because of the
        convictions. She also asked for a possible continuance to prepare.
        However, the Court acknowledging that there were between twenty (20) to
        twenty-five (25) family, friends and co-workers of the deceased victim
        present, decided to give [trial counsel] until 1:00PM that day for her to
        review the certified copies of convictions, speak to Special Agent Dickhaus
        and discuss issues with Petitioner.

        ....

              Petitioner also claims that had he known the maximum sentence
        would be imposed[,] he would have not [sic] entered an open plea.

                                              -5-
        ....

               Petitioner speaks Spanish, with limited, if no, understanding of the
        English [language. [Trial counsel] submitted a plea petition in Spanish and
        one in English. Petitioner stated that when he plead [sic], he was fully
        aware that the maximum sentence he could receive was twenty-five (25)
        years.

               [Trial counsel] stated that she fully informed Petitioner of [the]
        maximum sentence, and while being fully aware of that, both she and
        Petitioner hoped for a lesser sentence. She also stated that Petitioner was
        informed that if he entered an open plea, his sentence could be less [than]
        or greater than what was originally offered by the State.

(footnotes and citations omitted).

       Finally, the post-conviction court found that Petitioner was advised of the applicable
sentencing range for both offenses at the guilty plea hearing and that Petitioner informed the
court that “he was guilty ‘but would like to have the minimum.’” The court concluded that
Petitioner’s pleas were voluntarily and knowingly entered.

        Our review of the record shows that Petitioner clearly has not demonstrated that the
evidence in the record preponderates against the post-conviction court’s findings. Petitioner
acknowledged that he was guilty of the offenses, that he did not want to have a trial, and that
trial counsel informed him of the correct sentencing range. The trial court asked Petitioner
at the guilty plea hearing whether he understood that “the possible sentence for the
aggravated vehicular homicide will be between 15 and 25 years, [and] the possible sentence
for leaving the scene of the accident will be 1 to 2 years.” Petitioner answered that he
understood. That Petitioner hoped for a lesser sentence does not invalidate his guilty pleas
as unknowing and involuntary. Trial counsel’s advice to Petitioner to reject the State’s plea
offer and enter open pleas was an informed and strategic decision, which this court will not
second-guess on appeal. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore,
we affirm the order denying Petitioner’s petition for post-conviction relief.

                                      CONCLUSION

       The judgment of the post-conviction court is affirmed.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE


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