        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 August 12, 2014 Session

          THEODORE JAMES NUGENT v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                     No. 2012-I-692    Cheryl Blackburn, Judge


                No. M2014-00014-CCA-R3-PC - Filed October 30, 2014


The petitioner, Theodore James Nugent, appeals the Davidson County Criminal Court’s
denial of his timely petition for post-conviction relief, which petition challenged his 2012
guilty-pleaded convictions of domestic assault and aggravated stalking on the grounds that
his trial counsel was ineffective and that his guilty pleas were unknowing and involuntary.
Because the record supports the decision of the post-conviction court, we affirm that court’s
order.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CGEE
O GLE and D. K ELLY T HOMAS, J R. JJ., joined.

Andrew B. Love, Nashville, Tennessee, for the appellant, Theodore James Nugent.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Megan King, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               The petitioner’s counsel-assisted petition for post-conviction relief alleged that
the petitioner’s trial counsel did not adequately investigate the charges against the petitioner,
failed to gather exculpatory evidence, failed to explain the elements of the charged offenses,
and failed to seek a reduction of the petitioner’s bail. The petition also alleged that, because
the petitioner “had to make a decision to plead guilty without sufficient opportunity to be
advised of the law regarding the offenses and possible defenses to the charges,” the resulting
guilty pleas were unknowing and involuntary.
               The post-conviction court conducted an evidentiary hearing at which the 51-
year-old petitioner testified that the charges in this case resulted from a domestic dispute
between him and the victim, his then-wife, Julia Wright Nugent. He said that during an
argument on Sunday, March 18, 2012, he grabbed the victim’s arm but did not injure her.
He denied that he threatened the victim. The petitioner testified that at the time of the
offenses, he was trying to persuade the victim to “just give [him] five minutes and just talk”
to him. He said a neighbor called the police, and the police arrested the petitioner after he
admitted that he had touched the victim on the arm. The petitioner said that he remained in
jail from the time of his arrest until he appeared in general sessions court the following
Thursday and was released on bail. On the evening before his general sessions court
appearance, he was served with an order of protection.

               Approximately two weeks later, the petitioner appeared in court pro se for the
protective order hearing. He testified that the victim had contacted him twice before the
protective order hearing and that, after the hearing, he contacted the victim to arrange for
some personalty to be moved and for the preparation of tax returns. The petitioner claimed
that the victim had told the petitioner’s father that she wished to reconcile.

               The petitioner testified that on a night several weeks later, his bail bondsman
called to inform the petitioner that he was due in general sessions court the following day for
a bond revocation hearing. The petitioner appeared and voluntarily testified at the revocation
hearing. When presented with transcripts of some e-mails, the petitioner admitted having
sent them to the victim. The court revoked the petitioner’s bond, and he was incarcerated.
While he was in custody, he conferred with trial counsel, who informed the petitioner that
the victim intended to aggressively pursue the charges against him and that the petitioner
could remain in jail for several months pending grand jury review unless he agreed to plead
guilty.

                The petitioner testified that he pleaded guilty in order to get out of jail. He
testified that, prior to the incidents with the victim, he had never been in trouble and had
never been in jail. He said, “I had a job. I had ownership in a company. I had two animals
that no one – I had no one to take care of. Nobody knew I was in jail.”

              The petitioner testified further that he felt “a lot of pressure” to plead guilty and
that he “was afraid.” He said that he suffered from bipolar disorder, anxiety disorder, and
“ADHD” and that during the 20 days he spent in jail before pleading guilty, he was deprived
of the medications he took to treat these illnesses. The petitioner said that the deprivation
of his medication resulted in “[w]ithdrawal, anxiety, depression.”

               The petitioner testified that he did not speak with his trial counsel between the

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day of the bond revocation and the appearance date on which he submitted his guilty pleas.

               The petitioner testified that before the convictions, he was a board registered
polysomnographic technologist and that he lost his “national registry” due to the felony
conviction of aggravated stalking. He said that the board would not renew his license. He
testified that he did not anticipate this development when he agreed to plead guilty.
Additionally, he testified that he could not read without his reading glasses, that he did not
have the glasses in jail, and that he was therefore unable to read the plea papers before he
signed them.

                 On cross-examination, the petitioner agreed that he had “quite a few warrants”
pending in the general sessions court based upon his “repeated violations of the order of
protection.” The plea agreement, which the petitioner acknowledged having signed while
his case was pending in general sessions court, called for the petitioner’s plea to be entered
in criminal court. He testified that he spent 20 days in jail awaiting his plea submission
hearing in criminal court and that, during that time, he did not see his counsel and “never got
a chance to really understand what was going on and ways to defend [himself] in this
situation.” The petitioner agreed that he chose “the route to take a speedy resolution of the
case . . . that would get [him] out of jail.” The petitioner acknowledged that during his plea
colloquy, the trial judge had asked whether he was satisfied with his attorney and that he
replied in the affirmative. The petitioner said that he believed his trial counsel should have
endeavored to have his bond revocation reviewed and his bond restored. He agreed that his
“beef” with trial counsel was counsel’s performance “between the time [his] bond got
revoked and the time that it came back into court five days later.”

               The petitioner’s trial counsel testified that the petitioner “kept picking up order
of protection violations[, a]nd eventually that turned into aggravated stalking, and I think he
had about ten charges total.” He added, “I’ve never had a client so repetitively violate and
pick up new charges while I represented them.” Nevertheless, counsel initially believed that
“a reasonable deal” would be in the offing because none of the petitioner’s contacts with the
victim were aggressive or threatening; no “egregious violations” occurred.

               Counsel stated that he was not informed of the bail revocation proceeding until
the petitioner contacted him the night before the hearing. Counsel appeared at the hearing,
which was also attended by the victim, who brought proof of the violations in the form of
text messages and voice mail recordings. Counsel conversed with the victim and learned that
she was adamant about pursuing charges against the petitioner. Counsel was surprised about
her attitude because the petitioner had told him that the victim had called the petitioner twice.
Counsel iterated that the petitioner had already admitted to the officers that he had contacted
the victim and that the petitioner had no defense to the bond revocation other than that the

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offenses were “innocuous” and that the petitioner had no prior criminal record. Nevertheless,
the general sessions court judge revoked the bond, and that “put [the petitioner] in a corner.”
Counsel believed that the normal binding-over process to criminal court might take four to
six months while the petitioner remained in jail.

             Counsel testified that he was unaware of any mental health issues the petitioner
may have had; the petitioner did not inform him of such, and the petitioner’s interaction with
counsel did not suggest such issues.

               Counsel opined that asking the criminal court to review the bond revocation
would avail the petitioner nothing because he had violated the general sessions court judge’s
specific “early on” command for him not to “contact this woman.” Counsel did not recall
whether he advised the petitioner that a motion could be filed to have the bond revocation
reviewed. Counsel also opined that pursuing even a successful review of the revocation
would have nevertheless caused the petitioner a protracted jail stay. Counsel testified that
he arranged for the petitioner’s neighbor to take care of the petitioner’s house cats. Counsel
testified that the time he spent on the case between the revocation hearing and the plea
submission hearing was devoted to working on a plea agreement to get the petitioner out of
jail.

                Counsel testified that he explained to the petitioner that the plea offer included
a felony conviction that “would stay on his record.” Counsel admitted that he did not discuss
the effect of a felony conviction on the petitioner’s job or housing options because “[t]here’s
thousands of conceivable negative consequences from a felony.” Counsel acknowledged that
he did not like the petitioner’s having to plead to a felony but said “it was either that or
possibly sit in jail for six months,” longer “if you go to trial.”

                In the order denying relief, the post-conviction court stated that the petitioner
“was unable to articulate what Trial Counsel should have done on his behalf other than file
to have his bond reinstated and secure a better plea offer.” The court found that the
petitioner “voluntarily made the choice to accept the plea because it was the quickest way for
him to be released from custody and take care of his responsibilities.” Thus, the court held
that the petitioner failed to show that he was prejudiced by his trial counsel’s performance
or that his guilty plea was unknowing or involuntary. The court noted that the transcript of
the plea submission hearing belied the claim that the plea was unknowing or involuntary.

               On appeal, the petitioner posits that his trial counsel was ineffective in the
following ways: failing to move for a continuance of the bond revocation hearing to protect
the petitioner’s right to procedural due process and his bargaining position vis-a-vis the State;
failing to advise the petitioner of his right to seek review of the bond revocation; and failing

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to advise the petitioner of the adverse effects of a felony conviction on his career. Further,
he posits that, “as a result of counsel’s mistakes,” he was “coerced” into pleading guilty.

              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 (2006). A
post-conviction petitioner bears the burden of proving his or her 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).

              To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first 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 second that his 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.” Id. at 694.

                Should the petitioner fail to establish either deficient performance or prejudice,
he is not entitled to relief. Strickland, 466 U.S. 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 reviewing a claim of ineffective assistance of counsel, 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).

              In the context of a guilty plea, the petitioner must establish that “counsel’s
constitutionally ineffective performance affected the outcome of the plea process” by
establishing “a reasonable probability that, but for counsel’s errors, he would not have

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pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985); see Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

                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); 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).

                Upon our review, we conclude that the record supports the post-conviction
court’s factual findings and its application of the law to those findings. Counsel testified that
the general sessions court judge told the petitioner “early on” not to contact the victim. Thus,
the result in the petitioner’s criminal case was precipitated initially by his series of violations
of the victim’s protective order, and these acts in turn provided a basis for both the felony
charge of aggravated stalking and the revocation of the petitioner’s bond. Then, at that point,
the petitioner was incarcerated, a condition that he understandably found to be intolerable.
Based on the record, the post-conviction court inferred from the testimony that the
petitioner’s main objective – and hence that of his counsel – was to liberate the petitioner
from confinement. We cannot say that counsel’s actions did not advance this objective, and
accordingly, we agree with the post-conviction court that the petitioner failed to establish by
clear and convincing evidence prejudice on an ineffective assistance claim.

               That said, the petitioner has proven no ineffective assistance of counsel that
ipso facto could serve to vitiate his willingness to plead guilty. On the other hand, as we
have mentioned, a claim of an unknowing and involuntary guilty plea can be based on
circumstances other than the performance of counsel. In this case, we have looked
specifically at the contention that the resulting felony conviction damaged his career and that

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his being unaware of that result vitiated his guilty plea.

               “[N]either our federal nor state constitution requires that an accused be
apprised of every possible or contingent consequence of pleading guilty before entering a
valid guilty plea. Courts are constitutionally required to notify defendants of only the direct
consequences--not the collateral consequences--of a guilty plea.” State v. Ward, 315 S.W.3d
461, 466-67 (Tenn. 2010). This court has previously characterized a loss of employment
resulting from a guilty-pleaded felony conviction as a collateral consequence of the plea.
Linda Blair v. State, No. W2010-00627-CCA-R3-PC, slip op. at 6 (Tenn. Crim. App.,
Jackson, Nov. 18, 2010). For this reason, we hold that the defendant’s guilty pleas were not
infirm because he was unaware that the felony conviction would adversely affect his
employment or career.

              As a result, we affirm the judgment of the post-conviction court.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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