                                                                                       05/19/2020
              13IN THE COURT OF CRIMINAL APPEALS OF
                           TENNESSEE
                           AT JACKSON
                          Assigned on Briefs March 3, 2020

               WALI MUHAMMAD v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 12-00766    Carolyn Wade Blackett, Judge


                            No. W2019-01198-CCA-R3-PC


The petitioner, Wali Muhammad, appeals the denial of his petition for post-conviction
relief, which petition challenged his 2017 Shelby County Criminal Court guilty-pleaded
convictions of aggravated assault and aggravated robbery. In this appeal, the petitioner
claims, as he did below, that he is entitled to post-conviction relief because his guilty
pleas were not knowingly, voluntarily, or intelligently entered. Discerning no error, we
affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which TIMOTHY L.
EASTER, and J. ROSS DYER, JJ., joined.

Rosalind Elizabeth Brown, Memphis, Tennessee, for the appellant, Wali Muhammad.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

              Originally charged with attempted second degree murder, especially
aggravated robbery, and employing a firearm during the commission of a dangerous
felony, the petitioner pleaded guilty pursuant to a plea agreement with the State to
aggravated assault and aggravated robbery in exchange for a total effective sentence of
12 years and the dismissal of the firearm charge. The prosecutor summarized the facts of
the case:

                    Your Honor, had this matter proceeded to trial [the]
State’s proof would be that at or around the date of August 10
of 2011 that afternoon approximately 5:45 the crime scene,
the evidence would be that Mr. Jonathan E. Hill was shot in
the face.

       That he . . . had met with an individual on his way
back to the casinos, a Mr. Sturgill. That he was in his vehicle
with Mr. Sturgill, who had parked his vehicle in front of the
vehicle. That there was actually a witness out in the
neighborhood viewing these things.

       Testimony would be that a black I believe Maxima, a
black sedan or a 4-door car pulled up with tinted windows.
That two individuals in dark clothing emerged from the
vehicle. One with a Tech 9. That individual took a circular
pattern, came around, to the driver’s side, which is where Mr.
Hill was seated.

       That individual tapped on the window and actually
ended up shooting his firearm, shooting out the tire, shooting
into the vehicle. That shortly thereafter the passenger, Mr.
Sturgill did leave the vehicle after unlocking the doors.

       As soon as he had unlocked the doors, [the petitioner],
who has been identified by the victim in this case climbed
into the backseat of the vehicle, into the back passenger seat
cater-corner behind or from the location of Mr. Jonathan E.
Hill.

        At that point, Mr. Hill’s testimony would be that [the
petitioner] began to produce a firearm. That he . . . had as
much as $3100 on his person. The person that had just left
the car told him to give him all of his stuff. The minute he
saw the firearm, he jumped over the seat, puts his hands on
the firearm, that the firearm was discharged traveling through
his face, that he ultimately lost consciousness.

       He could hear what was going on. He knows that his
$3100 was taken. He was taken to the hospital. On the way
to the hospital he died, lost his heartbeat in the ambulance.
Somehow the EMTs were able to resurrect him and he did
                              -2-
              regain consciousness and remarkably has recovered from a lot
              of the injuries that he suffered on that day.

               The petitioner timely filed a pro se petition for post-conviction relief,
alleging, among other things, that he was deprived of the effective assistance of counsel.
The post-conviction court appointed counsel to represent the petitioner. Following the
appointment of counsel, the petitioner filed an amended petition for post-conviction
relief, alleging that he was deprived of the effective assistance of counsel and that, as a
result, his guilty pleas were not knowingly and voluntarily entered. In another amended
petition, the petitioner added claims that the trial court coerced his pleas by threatening
him with immediate incarceration should he refuse to enter the pleas and that the
mishandling of his motion to withdraw his guilty pleas by both trial counsel and the trial
court deprived him of the opportunity to appeal the denial of that motion.

               At the March 2019 evidentiary hearing, the petitioner testified that the
indictment was returned in March 2012 and that he was originally represented by a
member of the public defender’s office. That attorney withdrew from the case in 2015
after learning that the public defender’s office also represented the victim in an unrelated
case. Trial counsel was then appointed to represent the petitioner. The petitioner
testified that he met with trial counsel during the time his case was pending but said that
they were not “preparing for trial like what we going to do (sic) or our defense or our
opening statement or nothing like preparing for trial, but we was going over what
discovery the State had.” He said that trial counsel told him that the accounts provided
by the victim and Ms. Rucker, an independent witness, “kind of match up” and that the
jury was “not going to believe” the petitioner because he was a drug dealer. The
petitioner insisted that trial counsel did not prepare him to testify and that they did not
discuss any potential witnesses.

              The petitioner said that the case did not proceed to trial as scheduled on
April 24, 2017, because trial counsel “was still trying to work out a deal.” He said that he
and trial counsel discussed the State’s plea offer and that counsel “was telling me I would
lose, and I would face up to 40 years.” The petitioner insisted that he told trial counsel
that he “didn’t do it” and that he “didn’t want to take the deal.” He acknowledged that he
was in court on April 25, 2017, when trial counsel told the court that the petitioner had
agreed to accept the plea offer that included a sentence of “12 years at 85 percent for
aggravated robbery.”

            The petitioner claimed that, after the April 25, 2017 proceeding, he and his
mother encountered another attorney in the elevator and “spoke briefly about the case and
asked him how much would he charge.” He said that the attorney “gave us a price of
how much he would charge, and that’s when . . . I wanted to go forward with” the other
                                            -3-
attorney. The petitioner testified that he told trial counsel that he “wanted to go forward”
with another attorney and that trial counsel “said, wait. Let me see what I can do. Let me
try to work things out.” The petitioner conceded that trial counsel “bent over backwards
trying to get the deal” but said that “the only reason I agreed to take the deal [was]
because [trial counsel] wasn’t ready to go to trial.”

               The petitioner testified that when he returned to court on May 3, 2017, he
did so with new counsel and that trial counsel was not in court despite that he was still
counsel of record. The petitioner said that new counsel did not become attorney of record
on his case. Instead, the petitioner said, “The Judge . . . told me if I go forward with [new
counsel] she would revoke my bond, make me sit in jail until trial.” New counsel advised
the petitioner to discuss the case with trial counsel because new counsel was “not in the
position to advise” the petitioner. The petitioner testified that he ultimately pleaded
guilty because he “felt like I was defeated” and that he “had no choice,” explaining, “I
was forced . . . to sign it, because she threatened to revoke my bond if I didn’t sign it, and
make me sit in jail until trial.”

               During cross-examination, the petitioner acknowledged that he did not pay
new counsel until the day before trial but insisted that the delay was caused by his
waiting for his father to send him the money. He admitted that new counsel told the trial
court that he was not aware of the age of the case or that it had been previously set for
trial. The petitioner conceded that new counsel confirmed trial counsel’s information
regarding his potential exposure but insisted that he “still wanted to go to trial knowing
that I could face up to 40 years. I still wanted to go to trial to presume my innocence.”

               The petitioner admitted that, prior to May 3, 2017, he had not indicated a
desire or ability to retain counsel. The petitioner said that his father finally agreed to help
him secure retained counsel when “we seen how the case was turning,” adding,

              I don’t know if I can say this. I don’t know if I can speak on
              this, Your Honor, but when I got shot, . . . when I came to the
              preliminary hearing about the person that shot me, [trial
              counsel] met with that lawyer downstairs, and that’s when the
              suspect . . . was telling them that I sold drugs, and I had
              money.

                    That’s when [trial counsel] got to saying, if you’ve got
              some money I need to get paid and stuff like that. So that’s
              when . . . I spoke with my dad letting him know what was
              going on with the case. He seen how the case was turning.
              So he was like, man, go on and hire a real lawyer.
                                              -4-
The petitioner insisted that trial counsel, who had been appointed to his case and was
being paid through the Administrative Office of the Courts, asked him for money.

               The petitioner admitted that he indicated, through trial counsel, to the trial
court on April 25, 2017, that he intended to enter pleas of guilty but asked the court to
continue the case so that he could take care of personal business. The trial court agreed
to reset the case for May 3, 2017, and, because it was set for a plea submission hearing,
no jury was present. The petitioner admitted that the trial judge told him that he did not
have to enter the guilty plea but warned him that if he did not do so, his bond would be
revoked. He conceded that he told the trial court that no one had pressured him to enter
his pleas of guilty and that he was satisfied with the services of trial counsel.

             The petitioner acknowledged that trial counsel told him that trial counsel
had spoken with the victim and that the victim’s story matched that of the other witness.
He also admitted that trial counsel told him that it was trial counsel’s opinion that the
victim would be a credible witness. The petitioner insisted, however, that trial counsel
could have used the information gleaned from the victim to attack the victim’s credibility
at trial.

              The petitioner denied that the reason he changed his mind about accepting
the plea offer was to extend his time out of custody. He said, “It’s not that I was just
trying to continue this case forever and stay out. I knew one day that I would have to
either go serve some time.”

               During redirect examination, the petitioner identified a letter that he wrote
to trial counsel on May 11, 2017. In the letter, which was exhibited to the hearing, the
petitioner did not express dissatisfaction with the terms of his plea agreement or with the
plea process but instead stated that he “was supposed to be charged as a mitigated inmate
but it seems I was charged as a Range 2 or 3.” He expressed remorse for the victim’s
injuries as well as a desire to “get this matter settled” and offered to pay counsel “to get
things right.” The petitioner testified that trial counsel did not respond to the letter. The
petitioner said that he then filed a pro se motion to withdraw his guilty pleas. In the
motion, which was also exhibited to the hearing, the petitioner claimed that the trial
court’s statement that his bond would be revoked if he did not plead guilty “was one of
the reasons I pleaded out.” The petitioner also claimed that trial counsel performed
deficiently by failing to “follow-up” on statements provided by the victim. The petitioner
said that he was never notified that his motion had been denied by the trial court. The
trial court’s order denying the motion was exhibited to the hearing. The trial court first
determined that the motion was untimely because it was filed more than 30 days after the
entry of the judgment. Additionally, the court determined that the petitioner had failed to
                                             -5-
provide any evidence to substantiate his claims regarding the voluntariness of his pleas
other than his own bare assertions.

               During recross-examination, the petitioner maintained that trial counsel lied
to the court on April 25, 2017, when he told the court that the petitioner intended to
accept the State’s plea offer. He admitted that he was present when trial counsel made
the assertion and that he did nothing to contradict trial counsel. The petitioner agreed that
trial counsel’s assertion to the court came after the petitioner and his mother had spoken
to new counsel about taking over the case. The petitioner acknowledged that trial
counsel told the court that he was prepared to go to trial on May 3, 2017.

              Trial counsel testified that by the time he was appointed to represent the
petitioner in 2015, he had represented many criminal defendants charged with criminal
offenses and that he had participated in many felony trials. Trial counsel said that he
reviewed with the petitioner the discovery materials that had already been provided by
his previous counsel and that the petitioner “had a firm understanding of the situation.”
Trial counsel recalled that he discussed with the petitioner the facts of the case as well as
previous counsel’s strategy. Trial counsel characterized the petitioner’s case as “kind of
a drug deal gone wrong” and explained that his trial strategy would have been to
challenge the victim’s credibility. He recalled that the victim had identified the petitioner
from a photographic array and that the petitioner’s fingerprint had been discovered inside
the victim’s car. Ms. Rucker could not identify the petitioner. Another witness who had
been a passenger in the car during the offenses “wobbled” but eventually tried “to place
blame on” the petitioner. That witness died before the case was set for trial.

              Trial counsel said that, except for a very brief period, the petitioner was out
on bond the entire time that trial counsel represented him. He said that he and the
petitioner met several times at trial counsel’s office and had many telephone
conversations about the case. He recalled that he also met with the petitioner and the
petitioner’s mother on at least one occasion during which they “had a lengthy discussion”
regarding “how things will work at trial, the good, the bad, how things could possibly go
based on certain variables.” Trial counsel said that he did not make a speedy trial
demand or attempt to get a quicker court date because the petitioner “was very
comfortable with being out of custody” and that “anything we could do to get more time
that’s what he wanted to do.”

               Trial counsel said that his impression of the State’s case changed after he
spoke to the victim on April 24, 2017. Trial counsel emphasized that he was prepared to
go to trial but stated that “you never know until the day of trial what the proof is actually
going to be in terms of who’s going to show up, what the story is today, and what’s going
on.” Trial counsel said that, had he gone to trial, he intended to cross-examine the victim
                                             -6-
with the victim’s criminal history and “evidence of him using drugs and selling drugs.”
Counsel also intended to impeach the victim’s credibility using his prior inconsistent
statements. Trial counsel said that the prosecutor encouraged him to speak with the
victim and that the victim “presented himself as a very coherent changed person.” The
victim admitted having used and sold drugs and told trial counsel that “this event kind of
changed his life” for the better. Trial counsel recalled that the victim’s “story tracked”
the version of events given by Ms. Rucker. That version, he said, “contradicted what I
was getting from my client.” After speaking to the victim, trial counsel told the petitioner
that the victim was “going to own up to anything I’m going to hit him with to kind of just
take the air out of this impeachment, and his story is lining up with the fingerprints” and
the statement given by Ms. Rucker.

               Trial counsel testified that he pulled out all the stops in negotiating on the
petitioner’s behalf, using the age of the case and the death of a State’s witness to the
petitioner’s advantage. In addition, trial counsel took advantage of the structure of the
district attorney’s office and his knowledge that a particular prosecutor would be out for
medical leave “to try to negotiate the case with . . . a leader who I felt would be more
favorable for us.” He said that the petitioner’s had been deemed a “no deals” case with a
total potential exposure of 42 years and that he was able to negotiate a plea offer of 12
years to be served at 85 percent release eligibility and dismissal of the firearms charge,
which carried a mandatory consecutive sentence and 100 percent release eligibility. Trial
counsel said that he and the petitioner “were able to have meaningful discussions about
the proof and how the law applied” and that the petitioner “understood and was able to
kind of contribute in our discussions.”

               Trial counsel testified that when he told the petitioner about his
reassessment of the case, the petitioner was not happy. He said that the petitioner had
been out on bond for “four or five years” and that “[h]e had grown accustomed to being
out.” Trial counsel said that he was ready to go to trial but that he provided the petitioner
“the global picture of where everything was.” He told the petitioner that it was his
opinion that the State had provided a “good offer given the proof” but “made abundantly
clear to him that it’s not my decision.” Trial counsel said the petitioner eventually said
that “he wanted to take the plea, and actually his mother too. She was involved in his
discussions, and they both agreed that this was his . . . best move at this point.” Trial
counsel recalled that the petitioner told him that he had “some affairs to take care of” and
said that he needed time before he was taken into custody. Trial counsel testified that
based upon the petitioner’s assertions, he told the trial court that the parties “have
something worked out, but he needs at least a week or so whatever the reset was to get
his affairs in order.” He said that he would not have made such assertions to the court if
he had not believed them to be true, saying, “I mean, just -- your word is what you got in
that situation.”
                                             -7-
               Trial counsel said that, prior to April 24, 2017, the petitioner had not
mentioned retaining another attorney. Trial counsel said that he had been appointed to
represent the petitioner, that he was paid via the Indigent Defense Fund, and that he never
told the petitioner “or his family that the outcome would change based on money.” He
flatly denied asking the petitioner for payment in addition to the fees he was being paid
for his appointment to the case. He added, “If there was ever any discussion about me
with money, it’s a yes, I’m a private lawyer. I do take private cases, and I charge fees for
my work. But I also take appointed cases where I’m paid through the [c]ourt . . . .”

               Trial counsel said that he was not aware when he told the trial court that a
settlement had been reached that the petitioner had had discussions with new counsel. He
said that after he made the assertions to the court, the petitioner “may have called me, and
we may have had a discussion that he said, well, I want to back out of this.” He also said
that the petitioner may also have said he intended to hire new counsel and that trial
counsel “may have explained to him, well, you know, this doesn’t look good with the
[c]ourt.” Trial counsel said that he was “aware that if you play games with the [c]ourt
while out of custody or if you try to cause delays,” the court might revoke bond. He
testified that he “would’ve discussed that with him either on the phone in that call or the
day of court explaining that this is what can happen. . . . this is up to the [c]ourt’s
discretion. Don’t be surprised if this occurs.” He clarified that he could not recall
whether he had actually spoken with the petitioner but said that if he had done so, he
would have given the petitioner that information. Trial counsel reiterated that he “would
have been surprised that he would be backing out after assuring me when we got the
continuance that this is what he wanted to do. He was comfortable.”

               Trial counsel acknowledged that he was not present in court on May 3,
2017, when new counsel tried to make an appearance on the petitioner’s behalf to request
a trial date. Once he arrived, he and the petitioner discussed “what all had happened that
morning, what’s going on, what the situation is. Are we still doing this plea? Am I still
your attorney? What’s going on? And so we . . . cover all of that.” Trial counsel
recalled that the trial judge was “frustrated” with everything that had happened,
particularly given counsel’s prior representations to the court. Trial counsel testified that
“after discussing the entire situation, [the petitioner] decided to go forward with the plea”
and did not, at any point, indicate that he actually wanted to go to trial. He added, “You
know, . . . we discussed the -- the situation and came to the terms that this is the plea that
he wanted to enter.” Trial counsel said that, if the petitioner had indicated that he wanted
to go to trial and that he wanted trial counsel to remain as his attorney, trial counsel
“would have tried to do what we could do to get him back out of custody.” Trial counsel
observed that the decision to revoke the petitioner’s bond was within the discretion of the
trial court and stated that the trial court “clearly did not take away his trial right. The
                                             -8-
[c]ourt was clear from what I recall that, I’ll give you a trial date. That’s fine. But I’m
upset that you appear to be gaming the system here to your advantage by . . . getting out
of this trial date.”

               Trial counsel testified that “over the two years representing him,” he and
the petitioner “had several meaningful discussions about the case, the defense, the
exposure, . . . all the normal stuff.” In contrast to those discussions, on either “the trial
setting or the day of the plea,” for “the first time in . . . the year or two years of
representing him and knowing him, he started asking questions like, what is a trial or
what do you mean jury?” Trial counsel said that he “could just tell at that moment that he
was being . . . disingenuous.” Trial counsel added that the petitioner also had been
previously subjected to voir dire by the court regarding his understanding of the case and
the proceedings when he rejected the State’s first plea offer. After discussing the
situation with the petitioner and the petitioner’s mother, trial counsel was comfortable
that the petitioner wanted to accept the State’s offer and plead guilty. He said that if he
had any doubts about the voluntariness of the petitioner’s plea, he “would not have
prepared him and assisted him entering that plea.”

              During cross-examination, trial counsel reiterated that he was appointed to
represent the petitioner in December 2015 and conceded that he filed his first motion for
discovery in February 2017. He explained, however, that he filed that motion “mainly to
protect the record” because he had received all of the discovery materials from the
petitioner’s first attorney in December 2015. Trial counsel acknowledged that he
requested funds to hire a private investigative firm in January 2017, four months before
the scheduled trial date, but said that he had conducted his own investigation before that
and that he had received investigative materials from the petitioner’s first attorney.

               Trial counsel maintained that when he spoke with the victim on April 24,
2017, the victim “owned up to using drugs” and “even owned up to being in a drug
transaction on that street.” Trial counsel said that his “impression was [the victim] was
kind of taking the wind out of my cross, that . . . instead of fighting me on it, he was kind
of leaning into it.” Trial counsel said that he did not ask the petitioner to be present
during his interview of the victim because to do so “would be a horrible strategic move
on my part.” Trial counsel said that it was his “strategy to gather as much information . .
. as I can prior to trial so that I can prepare and know how to respond to evidence.” When
asked whether he believed that speaking to the victim outside the presence of the
petitioner “eroded” his ability to fairly represent the petitioner, trial counsel replied:

                     That is the most bizarre idea of pretrial preparation
              I’ve ever heard in my experience as an attorney. So if you’re
              asking me that I should not have spoken with a witness prior
                                             -9-
                to trial, I believe I should have. I believe that’s my ethical
                duty that if I have an opportunity to gather information and
                evidence prior to trial for my clients potential 41-year
                exposure criminal case, I needed to do that.

                       I need to get that information and get to my client as
                quickly as I could and let him evaluate it. Let him decide
                according to his Constitutional Rights whether he decided to
                take his case to trial. What I think, who I believed, does not
                matter.

Counsel characterized his meeting with the victim as “a significant turning point in this
case.”1 Trial counsel agreed that the petitioner had the constitutional right to change his
mind about accepting the plea offer but stated that “there may be consequences in terms
of bond and release . . . that that defendant will have to take up with the [c]ourt for their
time.”

               Trial counsel conceded that the petitioner contacted him after entering his
pleas because he “wanted to withdraw his plea,” explaining that “what I gathered from
that was him saying he was forced to take this plea.” Counsel said that he told the
petitioner that he could not file a motion to withdraw under those circumstances “because
number one, that is not how I remember this plea. And number two, . . . I was a potential
witness to those allegations and any allegations he would make that led toward
ineffective assistance of counsel, I couldn’t file on his behalf.”

               During redirect examination, trial counsel testified that the victim’s version
of events placed the petitioner at the scene with a gun in his hand and ended with the
petitioner’s shooting the victim in the face. Trial counsel acknowledged that the victim
had a lengthy criminal record and had made inconsistent statements in the past but said
that he nevertheless concluded that the victim’s account, coupled with the impending
testimony of the independent witness “and the fingerprints and everything and the
gunshot wounds and the blood and everything else” would likely result in the petitioner’s
being convicted as charged. Counsel said that it was not necessarily that he personally
believed the victim’s version of events but that he believed that a jury would be likely to
believe the victim’s version. Trial counsel agreed that, with only six potential witnesses,
the petitioner’s case did not involve a lot of proof.


1
        The petitioner made much of the fact that trial counsel spoke with the victim outside his presence,
apparently misapprehending the function of the Confrontation Clause. The constitution only guarantees
the right to confrontation at trial and does not constrain trial counsel’s pretrial investigation. Indeed,
counsel is to be commended for making the effort to interview the victim prior to trial.
                                                   -10-
               The transcript of proceedings from May 3, 2017, which was exhibited to
the hearing, showed that new counsel attempted to make an appearance on the
petitioner’s behalf, telling the court: “Yesterday [the petitioner] came by my office and
left a fee that would be sufficient for me to substitute in. I didn’t find that out until I
came in the office this morning.” The trial court noted that the case had been pending
since 2011 and asked, “Didn’t we have this worked out . . . ?” The prosecutor replied,
“That’s correct, Your Honor. . . . I bent over backwards to get a new offer . . . . But
apparently he . . . doesn’t want that offer I guess. I don’t know.” The trial judge told the
petitioner that he did not owe the court “any explanation. It’s just this is a case that’s
been -- six years.” New counsel indicated that he had not spoken to trial counsel about
the case, and the trial court observed that trial counsel “has done so much work on this
case like he does in every case.” The prosecutor stated that if the petitioner did “not take
that offer today of course that offer will be revoked and we will be in a trial posture on
it.” New counsel asked the trial court “to hold this, let [trial counsel] come, talk to him
again,” explaining, “I’m not in a position to advise him what to do other than I’m
available to try the case. But I’m not in a position to say if that’s the best thing to do.”
At that point, the trial court reviewed the petitioner’s case file and then the following
exchange occurred:

                     THE COURT:                Okay. What happened was
              based on assurances that he was pleading guilty we didn’t go
              forward with the trial, gave him until today to go into
              custody. His bond is revoked if this doesn’t go forward. So
              that’s what’s going on.

                     THE [PETITIONER]:             May I speak, Your Honor?

                     THE COURT:                    No.

                     [NEW COUNSEL]:                No.

                     THE COURT:                    No.

                     [NEW COUNSEL]:                Wait outside for me.

                     THE COURT:                    This is just playing games
              with the [c]ourt.

                     [NEW COUNSEL]:            Hold on, Mr. Muhammad,
              I’m sorry. The Judge wasn’t through. That’s my mistake.

                                            -11-
       THE [PETITIONER]:             I didn’t understand.

       THE COURT:                    You know, this case is six
years old.

       THE [PETITIONER]:             Yes, ma’am, Your Honor.

       ....

      THE COURT:                    I was told we would not go
forward with the trial, the case was worked out --

       THE [PETITIONER]:             I didn’t understand --

       THE COURT:                    Stop.

       THE [PETITIONER]:             I’m sorry. I’m sorry.

       ....

       THE COURT:               The case was worked out.
You were pleading guilty to 12 years and going into custody
today.

       THE [PETITIONER]:             I didn’t --

       THE COURT:                    Yes, you did understand.

       THE [PETITIONER]:             No, ma’am.

        THE COURT:                   You don’t want to go into
custody and I -- stop. And I fully understand you don’t want .
. . to do 12 years jail time. I wouldn’t either.

      THE [PETITIONER]:              No, ma’am. It’s not that,
Your Honor. I’m sorry.

       THE COURT:                     Yes, it is that. Yes, it is
that and I get that. I get that, but I was ready to try your case
and we would let a Jury decide whether or not you were
guilty of especially aggravated robbery, which carries 15 to
                              -12-
25 years jail time. That’s real jail time.

       THE [PETITIONER]:              Yes, ma’am.

       ....

      THE COURT:                That’s what that was about.
Based on your assurances that you were pleading guilty I let
you walk out that door.

       THE [PETITIONER]:              Yes, ma’am.

       THE COURT:                     And now you’re reneging
on that.

       THE [PETITIONER]:              I’m not, Your Honor.

       THE COURT:                 You’ve      hired    another
attorney after you told me you couldn’t hire an attorney and I
appointed counsel. That’s been going on for six years.

       So, I promise you, if you’re not entering a guilty plea
today and you don’t have to, I will again set this for trial,
which is multiple, multiple trial settings for you, not for the
victim. The victim has been ready and willing to have this
case heard.

       THE [PETITIONER]:              Yes, ma’am.

        THE COURT:                  It’s not just your case to be
heard, it’s the victim’s day in court too. And that’s my job to
get this case heard and it will be heard either through a guilty
plea or through a Jury trial.

       THE [PETITIONER]:              Yes, ma’am.

        THE COURT:                But what we’re going to do
right now is we’re standing in recess and we’re going to get
[trial counsel] up here. He’s not leaving the courtroom.
Stand in recess.

                               -13-
              When the court reconvened, trial counsel appeared and told the court that
he had spoken to the petitioner and the petitioner’s mother and that he had been told that
new counsel “was going to be coming by.” Trial counsel indicated that he did not oppose
the petitioner’s hiring new counsel, saying, “It’s his decision who he hires.” The trial
court responded, “Well, it is and it isn’t.” The trial court observed that new counsel
“really doesn’t know anything about the case” and that the parties had been prepared to
go to trial on the previous setting. The court also observed that it had allowed the
petitioner “to leave the courtroom and to return today ready to go into custody” based
assurances “that the matter would be resolved on a guilty plea.” The court went on:

                    And if I’m incorrect, let me know. That was what was
             done. This case is now six years old. [Trial counsel] is the
             third attorney in this case. He was appointed as were the
             other attorneys. So this morning [new counsel] comes in and
             says . . . a large amount of money was brought to him
             recently, very recently to retain him to try the case.

                    And he was ready to select a trial date and that’s not
             what’s going to happen. If it happens in any way shape or
             form [the petitioner] is going into custody. Because we were
             ready to try this case approximately one week ago. We were
             ready to bring the jurors into this courtroom and give [the
             petitioner] his Jury trial.

                    So as far as I’m concerned this is reneging on a
             promise made to this [c]ourt that the matter was settled and
             [the petitioner] would go into custody. So that’s this [c]ourt’s
             position.

                    Is there anything inaccurate in what I’ve just said?

Both trial counsel and the prosecutor agreed with the court’s assessment of the status of
the case. The prosecutor indicated that, after speaking with new counsel, it was his
impression that new counsel did not have “any idea of the posture that this case was in,
the age on this case, the amount of work that [trial counsel] has put into this case.”

             At that point, the trial court asked the petitioner whether he wanted “to
accept the guilty plea that you agreed to or do you want a trial date?” The following
exchange occurred:

                           THE [PETITIONER]:           I’m not sure, Your
                                           -14-
              Honor.

                         THE COURT:                 Okay. Your bond is
              revoked. We’ll get [new counsel] in here to get you a trial
              date.

                             THE [PETITIONER]:           I’m sorry.       You
              didn’t let me finish.

                            THE COURT:                   I’m sorry.

                            THE [PETITIONER]:              You didn’t let me
              finish, Your Honor. I’ll go ahead. I’ll accept the plea. If I’m
              going to be in jail I might as well be in jail doing my time.

                            THE COURT:                   It’s what you agreed
              to.

                            THE [PETITIONER]:         I didn’t understand
              though. My mom tried to help me out to understand
              everything. But I apologize to the [c]ourt, to the State. I’m
              ready to go forward.

               At the guilty plea submission hearing that took place later that same day,
the trial court informed the petitioner that he did not have to plead guilty and had the
right to a jury trial. After the trial court completed the full Rule 11 litany, the defendant
indicated that he had no questions for the court, that no one had pressured or forced him
to plead guilty, and that he was satisfied with the services of trial counsel.

               In its written order denying post-conviction relief, the post-conviction court
found that the trial court’s indication “that it would revoke [the p]etitioner’s bond if he
decided to go to trial” did not amount to coercion but was, instead, a proper exercise of
the court’s “right under the law.” The court noted that, based on the representations from
trial counsel that the petitioner “was going to plead guilty but needed some time to get
things in order,” “the trial court released the jury” and set a date for the guilty plea
submission hearing. When the petitioner hired new counsel and refused to enter the
guilty pleas as promised, the trial court concluded that the petitioner “was ‘playing games
with the court’” in a manner that was “obstructing the progress of the trial” and “decided
to exercise its right and revoke” the petitioner’s bond to prevent further delay and ensure



                                            -15-
the petitioner’s presence.2

              The post-conviction court concluded that trial counsel did not perform
deficiently by indicating to the court that the petitioner intended to accept the State’s plea
offer and plead guilty because, at that time, the petitioner had indicated as much to trial
counsel. The court also determined that trial counsel’s initial absence from court on the
day of the guilty plea hearing did not result in prejudice to the petitioner’s case because
the court gave the petitioner an opportunity to discuss the available alternatives with his
counsel and because counsel was present when the petitioner pleaded guilty.

               The post-conviction court held that the fact that the petitioner did not
receive a copy of the order denying his motion to withdraw his guilty pleas would not
entitle the petitioner to post-conviction relief. As to the petitioner’s claim that trial
counsel performed deficiently by failing to assist in the petitioner’s attempt to withdraw
his guilty pleas, the post-conviction court concluded that trial counsel was not obligated
to assist the petitioner because he was not the petitioner’s counsel when the motion was
filed.

              In this timely appeal, the petitioner reiterates his claim that his guilty plea
was not knowingly and voluntarily entered because the trial court threatened to revoke
his bond if he refused to plead guilty and because trial counsel performed deficiently by
absenting himself from the court “during the time that the [p]etitioner was being coerced
and threatened by the trial court” and by failing to “get detailed information regarding
what happened that led to [p]etitioner’s plea.”

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence 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. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).
2
        Code section 40-11-414(b) provides that if “the defendant . . . engages in conduct which results in
the obstruction of the orderly and expeditious progress of the trial or other proceedings, then the court
may revoke and terminate the defendant’s bond and order the defendant held without bail pending trial or
without release during trial.” T.C.A. § 40-11-141(b).
                                                   -16-
                Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.

               When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

               Apart from whether a guilty plea is the product of ineffective assistance of
counsel, it is invalid if otherwise made unknowingly or involuntarily. “Whether a plea
was knowing and voluntary is an issue of constitutional dimension because ‘the due
process provision of the federal constitution requires that pleas of guilty be knowing and
voluntary.’” State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2000) (quoting Johnson v. State,
834 S.W.2d 922, 923 (Tenn. 1992)). A plea “may not be the product of ‘[i]gnorance,
incomprehension, coercion, terror, inducements, [or] subtle or blatant threats.” Wilson,
31 S.W.3d at 195 (quoting Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)); see also
State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003) (citing Blankenship v. State, 858
S.W.2d 897, 904 (Tenn.1993)).

            Both claims of ineffective assistance of counsel and involuntary guilty plea
are mixed questions of law and fact. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
                                            -17-
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State
v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               In our view, the record supports the denial of post-conviction relief.
Although the trial court indicated an intent to revoke the petitioner’s bond if he did not go
forward with his promise to plead guilty on May 3, 2017, the record establishes that the
trial court’s decision to revoke the petitioner’s bond was not based upon the petitioner’s
exercising his constitutional right to trial but was based upon what the trial court
perceived as the petitioner’s “playing games” to remain out of custody as long as
possible. The trial court emphasized to the petitioner that he was not obligated to plead
guilty and that the court would set his case for trial if that was his desire. Moreover, trial
counsel’s absence during these proceedings did not prejudice the petitioner’s case
because new counsel was present in the courtroom to advise the petitioner, the trial court
took a recess specifically to allow the petitioner to discuss the case with trial counsel, and
the court presented a full recap of the earlier proceedings on the record when trial counsel
returned later in the day. Trial counsel’s evidentiary hearing testimony, implicitly
accredited by the post-conviction court, established that the petitioner had accepted the
State’s offer and was ready to plead guilty on April 25, 2017, and that, after some
discussion with trial counsel on May 3, 2017, the petitioner was ready to plead guilty that
day. The transcript of the guilty plea submission hearing and the other proceedings
support the conclusion that the petitioner’s pleas were knowingly and voluntarily entered.
The petitioner has failed to establish any detail or clarification that trial counsel could
have obtained that would have resulted in the petitioner’s not pleading guilty.

              As to the petitioner’s claim, presented in his reply brief, that trial counsel
performed deficiently by failing to assist the petitioner in preparing the motion to
withdraw his guilty pleas, we hold that the petitioner is not entitled to post-conviction
relief on this basis.3 The petitioner, citing Garza v. Idaho, asserts that trial counsel’s
refusal to assist him in the preparation of the motion to withdraw the guilty pleas was
“per se ineffective assistance of counsel.” In Garza, the Court revisited the holding of
Roe v. Flores-Ortega “that when an attorney’s deficient performance costs a defendant an
appeal that the defendant would have otherwise pursued, prejudice to the defendant
should be presumed ‘with no further showing from the defendant of the merits of his
underlying claims.’” Garza v. Idaho, 139 S. Ct. 738, 742 (2019) (quoting Roe v. Flores-
Ortega, 528 U.S. 470, 484 (2000)). The Garza majority held that the Flores-Ortega
3
        Initially, we would note that, although the petitioner claims that he filed his pro se motion in May
2017, the motion itself, which was exhibited to the hearing, indicates that it was signed by the petitioner
on June 7, 2017.
                                                   -18-
presumption of prejudice should apply even in those situations where a guilty-pleading
defendant has signed “an ‘appeal waiver’—that is, an agreement forgoing certain, but not
all, possible appellate claims.” Id. The ruling in Garza is confined to counsel’s duty to
file the notice of appeal document when asked to do so by his client. Indeed, the Court
observed that the holding “hinge[d]” on “two procedural devices . . . : appeal waivers and
notices of appeal.” Garza, 139 S. Ct. at 744. As to these two devices, the Court first
determined that “while signing an appeal waiver means giving up some, many, or even
most appellate claims, some claims nevertheless remain.” Id. at 745. The Court then
concluded that “filing a notice of appeal is, generally speaking, a simple, nonsubstantive
act that is within the defendant’s prerogative.” Id. at 746. The case makes no mention,
and therefore has no application, to the filing of the motion to withdraw a guilty plea.
We observe that, unlike the filing of a notice of appeal, the filing of a motion to withdraw
a guilty plea is not a simple, ministerial task and that, although an accused has a right to
appeal, no such right applies to the filing of a motion to withdraw a guilty plea.
Moreover, trial counsel correctly stated that he could not ethically file a motion to
withdraw that had, as a basis for relief, a claim that trial counsel was ineffective. See
McCullough v. State, 144 S.W.3d 382, 386 (Tenn. Crim. App. 2003) ( stating that “it is
reasonable to anticipate that [counsel’s] financial, business and/or personal interests may
affect his professional judgment insofar as advising the [petitioner] about any possible
ineffectiveness on his part”); see also Tenn. Sup. Ct. R. 8, RPC 1.7(2) (“A concurrent
conflict of interest exists if . . . there is a significant risk that the representation of one or
more clients will be materially limited by . . . a personal interest of the lawyer.”).

               Accordingly, we affirm the judgment of the post-conviction court.


                                                      _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




                                              -19-
