        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs January 11, 2011

              ORLANDO M. REAMES v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                      No. 2006-D-3069    Cheryl Blackburn, Judge



                    No. M2010-00267-CCA-R3-PC - Filed March 8, 2011


Pursuant to a plea agreement, the Petitioner, Orlando M. Reames, entered an “open” guilty
plea to one count of aggravated assault, a Class C felony, and the State dismissed one count
of failure to appear, a Class E felony. See Tenn. Code Ann. §§ 39-13-102(e)(1), -16-609(e).
The trial court sentenced the Petitioner to twelve years as a Range III, persistent offender.
The Petitioner filed a timely petition for post-conviction relief and, after a hearing, the post-
conviction court denied relief. In this appeal, the Petitioner argues that Trial Counsel was
ineffective because he failed to adequately prepare for the Petitioner’s trial, resulting in the
Petitioner feeling coerced to accept the State’s plea offer. After our review, we affirm the
post-conviction court’s denial of relief.

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

D AVID H. W ELLES, J., delivered the opinion of the court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

J. Chase Gober, Nashville, Tennessee, for the appellant Orlando M. Reames.

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

                                          OPINION

                                     Factual Background
       On Friday, August 10, 2007, the trial court held a hearing regarding Trial Counsel’s
request to continue the Petitioner’s trial, which was scheduled to commence the following
Monday, August 13, 2007. At that time, Trial Counsel informed the trial court that, the night
before, the Petitioner just told him about several potential witnesses. Trial Counsel admitted
that, prior to the day before, he had not spoken to his client since the beginning of May.
When the trial court reminded him that the court held a status conference on July 13, 2007,
and that the Petitioner was present, Trial Counsel stated that he did not speak to his client that
day. Additionally, the Petitioner told the trial court that he thought Trial Counsel was not
prepared to represent him. The trial court denied Trial Counsel’s motion for a continuance
and told him that he should work over the weekend to prepare for the Petitioner’s trial.

       On August 13, 2007, the Petitioner entered an “open” guilty plea to one count of
aggravated assault, and the State dismissed one count of failure to appear pursuant to the plea
agreement. The Petitioner stated that he talked with Trial Counsel over the weekend and that
they had thoroughly reviewed his case. He also said that he was satisfied with the work Trial
Counsel had done. The trial court asked Trial Counsel if he had an opportunity to contact
the witness he had mentioned in court on Friday, and he replied, “Judge, we’ve discussed that
and decided not to pursue that route.” The Petitioner replied in the affirmative when the trial
court asked him in open court, “So you have thoroughly discussed that with [Trial Counsel],
correct?”

       The State summarized the underlying facts of the aggravated assault count as follows:

              Your Honor, in this case, 2006-D-3069, against [the Petitioner], if that
       had gone to trial, the State’s proof would be that on July the 15th, 2006, the
       victim, Mr. William [Adkinson] was in the area of 684 Rolynn Drive. He
       owed [the Petitioner] $10 for some crack cocaine he had purchased a few
       weeks earlier, and [the Petitioner] that day wanted his money. At that time Mr.
       A[d]kinson didn’t have it. A physical struggle ensued between the two of
       them, and at some point [the Petitioner] produced a gun and shot Mr.
       A[d]kinson in the thigh. This was here in Davidson County.

The Petitioner replied in the affirmative when asked if the facts the State recited were
generally true. The trial court accepted the Petitioner’s guilty plea, finding it was voluntary
and factually based.

        On January 23, 2008, the trial court sentenced the Petitioner as a Range III, persistent
offender to serve twelve years in the Department of Correction. The Petitioner timely filed
a petition for post-conviction relief asserting, among other claims, that because Trial Counsel
was not prepared for his trial, the Petitioner felt that he had no other choice but to accept a
plea agreement. On May 11, 2009 and June 1, 2009, the post-conviction court conducted a
hearing regarding the Petitioner’s request for relief.




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       William Adkinson, the victim, first testified that there was another person at the scene
when he was shot and that he was not sure whether it was the Petitioner or the third party that
shot him. However, upon cross-examination, Mr. Adkinson admitted that a man named
Larice Davis coerced him to “drop the case” against the Petitioner and that his previous
testimony during the post-conviction hearing had been untruthful. He admitted that his
testimony at the Petitioner’s preliminary hearing, in which he said that the Petitioner was the
one who shot him, was true.

        The Petitioner testified that, between his indictment in November 2006 and May 3,
2007, he only met with Trial Counsel once—while he was in court in April 2007. He said
that, at that time, Trial Counsel never asked him about any witnesses who were present the
night of the shooting. The Petitioner testified that Trial Counsel did not inform him that his
case was set for trial on August 13, 2007, until August 9, 2007, when Trial Counsel came to
visit the Petitioner in jail. The Petitioner said that he was shocked by the news and recalled,
“I told him we weren’t prepared to go to trial, he ain’t done nothing concerning my case.”

       The Petitioner said that he told Trial Counsel about three witnesses—Larice Davis,
Freddie Roper, and a woman named Liz. The Petitioner testified that he knew where Mr.
Roper could be found because he was also incarcerated. Regarding the other two witnesses,
he recalled that he did not know their exact addresses but that he “could point to the
vicinity.” The Petitioner claimed that Mr. Davis “knew I wasn’t the man that shot [the
victim].” He explained that “Liz” drove the vehicle that the Petitioner rode in the night of
the shooting and that Mr. Roper “was a witness.”

       The Petitioner testified that Trial Counsel came to see him the Friday, Saturday, and
Sunday before trial. He said that Trial Counsel and a private investigator said that they
would contact the witnesses, but to his knowledge they never did. He recalled that Trial
Counsel “kept telling me that I’m going to get found guilty,” and he decided to plead guilty
instead of having a trial. When asked why he answered “yes” to all of the questions the trial
court asked him during his plea hearing, the Petitioner explained, “I knew I had to answer
them questions to take the plea. I couldn’t say no and still take the plea.” The Petitioner
further testified that he felt it was in his best interest “to take this plea at the time considering
I was being forced to go to court with an unprepared attorney.”

        Trial Counsel testified that he had been licensed to practice law in Tennessee since
2003. He testified that he was first appointed to represent the Petitioner in general sessions
court and that he conducted the preliminary hearing in this case. When asked if he informed
the Petitioner that a trial date had been set, Trial Counsel said, “I’m not for certain, but I
think I did.” Regarding why he did not meet with his client between May 2007 and August
9, 2007, Trial Counsel explained as follows:

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               Because based on my previous conversations with [the Petitioner] and
       having conducted the preliminary hearing I felt fairly confid[e]nt about the
       facts of the case, what I was dealing with, and what I would have to present if
       I went to trial. At the time I don’t recall that I had any notice of any witnesses.
       And if I did, I didn’t have any way to—it was just general names. There
       wasn’t any specific information as far as addresses, telephone numbers, or
       anything like that.

       Trial Counsel testified that, the weekend before the trial, he worked diligently on the
Petitioner’s case and even hired a private investigator to help him. Regarding the potential
witnesses, he recalled that he interviewed Mr. Roper and did not find him credible. He also
said that, although he did not physically locate Mr. Davis, he believed that Mr. Davis would
not be a credible witness because of his criminal record. Regarding “Liz,” he explained,
“[T]hat’s all I had was a lady named Liz.”

       Trial Counsel testified that, the weekend before the trial was scheduled, he discussed
the facts of the case with the Petitioner, as well as the implication of his criminal record.
Trial Counsel recalled that, after their discussions, the Petitioner “may have said he didn’t
have any other options” beside to plead guilty. Trial Counsel testified that he was ready to
proceed with a trial on August 13, 2007, if that was what the Petitioner wanted. He
explained as follows:

               It wasn’t a complex case. It was an agg[ravated] assault case. It’s not
       like I had three or four co-defendants trying to figure out what they’re doing.
       I had one defendant, I had one victim. It was a situation where [the Petitioner]
       was alleged to have shot the victim over a bad drug deal. It wasn’t a
       complicated case.

        Scott Wilder, the attorney who represented the Petitioner for his sentencing hearing,
testified that he spoke to a woman named Liz Scott during the course of his investigation of
the Petitioner’s case. However, according to Mr. Wilder, “she was not a very helpful witness
as far as testimony” because she said it was dark, and she did not see what happened.

      The post-conviction court denied the Petitioner’s request for relief. This appeal
followed.

                                           Analysis
      The Petitioner asserts that the post-conviction court erred when it found the Petitioner
was not denied effective assistance of counsel. Specifically, he argues that Trial Counsel’s



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failure to adequately prepare for the trial resulted in him feeling coerced to accept the State’s
plea offer.

       To sustain a petition for post-conviction relief, a petitioner must prove his or her
factual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn.
Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon
review, this Court will not reweigh or re-evaluate the evidence below; all questions
concerning the credibility of witnesses, the weight and value to be given their testimony, and
the factual issues raised by the evidence are to be resolved by the post-conviction judge, not
the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-
79 (Tenn. 1997). The post-conviction judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless
the evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley,
960 S.W.2d at 578.

        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that the right to such representation includes the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936.

       A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is
comprised of two components: deficient performance by the defendant’s lawyer and actual
prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d
at 461. To demonstrate prejudice, a defendant must show “a reasonable probability that but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The defendant bears the burden of establishing both of these
components by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6
S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice is a sufficient
basis upon which to deny relief on an ineffective assistance of counsel claim. Burns, 6
S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       This two-part standard of measuring ineffective assistance of counsel also applies to
claims arising out of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice
component is modified such that the defendant “must show that there is a reasonable

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probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Id. at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn.
Crim. App. 1998).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard
of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing
court must be highly deferential to counsel’s choices “and should indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Burns, 6 S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should
not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,
see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be
judged in light of all the facts and circumstances as of the time they were made, see
Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a
mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
This Court reviews the trial court’s findings of fact with regard to the effectiveness of
counsel under a de novo standard, accompanied with a presumption that those findings are
correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s
conclusions of law—such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial—are reviewed under a purely de novo standard, with no
presumption of correctness given to the trial court’s conclusions.” Id. (emphasis in original).

       Even if it is assumed that Trial Counsel was deficient for failing to investigate and
prepare for the Petitioner’s trial, the Petitioner has failed to prove prejudice by clear and
convincing evidence. Although the Petitioner testified that he told Trial Counsel about three
witnesses that could be helpful in his defense—Mr. Roper, “Liz,” and Mr. Davis—he failed
to present testimony from any of them at his post-conviction hearing. In Black v. State, this
Court stated, “When a petitioner contends that trial counsel failed to discover, interview, or
present witnesses in support of his defense, these witnesses should be presented by the
petitioner at the evidentiary hearing.” 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990); see
also Owens v. State, 13 S.W.3d 742, 756 (Tenn. Crim. App. 1999) (“[P]roof of deficient
representation by omission requires more than a speculative showing of a lost potential
benefit.”). Also, we note that Mr. Wilder testified that he interviewed Liz Scott and found
that she was not a helpful witness because she did not see what happened. Thus, we agree
with the post-conviction court that the Petitioner failed to meet his burden of proving by clear
and convincing evidence that he was prejudiced by Trial Counsel’s alleged deficient
performance.




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       Finally, to the extent that the Petitioner is arguing that his guilty plea was not
voluntary because he felt coerced to accept the State’s offer due to Trial Counsel’s lack of
preparation, we conclude that this argument lacks merit.

        In order to pass constitutional muster, a guilty plea must be voluntarily,
understandingly, and intelligently entered. See Boykin v. Alabama, 395 U.S. 238, 243 n.5
(1969); Brady v. United States, 397 U.S. 742, 747 n.4 (1970). To ensure that a guilty plea
is so entered, a trial court must “canvass[] the matter with the accused to make sure he [or
she] has a full understanding of what the plea connotes and of its consequence[s].” Boykin,
395 U.S. at 244.

        The trial court extensively questioned the Petitioner when he entered his guilty plea
and found that his plea was entered voluntarily. The trial court even asked the Petitioner
about the concerns he previously raised about Trial Counsel’s lack of preparation, and the
Petitioner said that the two had worked out their differences. During the post-conviction
hearing, when asked why he answered “yes” to all of the questions the trial court asked him
at his plea hearing, the Petitioner explained, “I knew I had to answer them questions to take
the plea. I couldn’t say no and still take the plea.” Further, the Petitioner testified as follows
when he was questioned by the post-conviction court about his plea:

              [Post-Conviction Court]: . . . So why not go on to trial? Why not just
       go on to trial?

              [The Petitioner]: I feel at the time—I wish I could have—what is the
       plea where you take a best interest plea or—that’s what I was willing to take.
       I didn’t feel like—I wasn’t taking a plea because I was guilty. I was taking it
       because it was my best option at the time.

             [Post-Conviction Court]: Okay. So you preferred to do the plea as
       opposed to going to trial.

                [The Petitioner]: Let me tell you what I understood. Okay. I have a
       six[-year sentence] already. [The Assistant District Attorney] made it clear
       that if I go to trial and lose he [sic] going to take me to trial on this failure to
       appear. So not only could I end up with a fifteen and possibly another four or
       six, I could end up with a six, a fifteen, and something else for this failure to
       appear. So the only incentive—the only incentive I had was to take this plea
       and he [sic] dismiss this other one. But now I don’t have three charges, three
       different sentences. I have two. That’s the only incentive I had. So me
       knowing I’m fixing to get found guilty because I don’t have no defense, no

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       witnesses, no nothing, my lawyer has done nothing, I had to do what I had to
       do for me that made sense to me. And it wasn’t going to trial and getting two
       more sentences. I felt like I’m going to take this right here, I’m going to go in
       here and throw myself on the mercy of the [c]ourt and hope you give me the
       low end of it. And I maybe could come back on appeal and prove what I’m
       trying to do today, that my lawyer was ineffective. I didn’t want to have three
       different sentences. I knew what was going on in spite of [Trial Counsel]. I
       knew what was going on. I was prepared.

        Upon reviewing the record, we conclude that the Petitioner entered into his plea
voluntarily, understandingly, and intelligently and that he had a full understanding of his plea
and its consequences. The Petitioner is not entitled to relief on this issue.

                                    Conclusion
      Based on the foregoing authorities and reasoning, we affirm the denial of post-
conviction relief.




                                                    _________________________________
                                                    DAVID H. WELLES, JUDGE




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