        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 18, 2011

                 FRANCINE L. GOSS V. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court of Davidson County
                      No. 2006-A-419     Seth Norman, Judge


               No. M2011-00324-CCA-R3-PC - Filed December 14, 2011


The petitioner filed for post-conviction relief from two counts of facilitation of second
degree murder and resulting thirty-eight-year sentence. She alleged that her guilty pleas to
these offenses were not entered knowingly; that her convictions were based on a violation
of her privilege against self-incrimination; and that she received ineffective assistance of
counsel. After an evidentiary hearing, the post-conviction court denied relief, and the
petitioner has appealed. After a thorough 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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J.,
and J OHN E VERETT W ILLIAMS, J., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Francine L. Goss.

Robert E. Cooper, Jr., Attorney General & Reporter; Meredith DeVault, Senior Counsel;
Victor S. Johnson III, District Attorney General; Dan Hamm, Assistant District Attorney
General; for the appellee, State of Tennessee.

                                          OPINION

                           Factual and Procedural Background

       Francine Latoya Goss (“the Petitioner”) was charged in February 2006 with two
counts of first degree premeditated murder, two counts of first degree felony murder, and two
counts of attempted robbery. In October 2008, the Petitioner took a “best interest” guilty
plea1 to two counts of facilitation of second degree murder with an agreed sentence of
nineteen years on each count, to be served consecutively and with a Range I release
eligibility date. The remaining counts were dismissed.

         In July 2009, the Petitioner filed pro se a petition for post-conviction relief alleging
that her plea is constitutionally infirm because she pled without understanding that her
sentences were to be served consecutively. She also alleges that her lawyer was ineffective
in this regard, and also in failing to challenge the admissibility of statements she made to the
police. Although the post-conviction court appointed counsel, no amended petition for post-
conviction relief was filed.

        At the evidentiary hearing, the Petitioner testified that her lawyer (“trial counsel”) did
not explain to her that she would be serving her two sentences consecutively. He also did
not give her time to read “the paperwork.” She stated that, at the time she entered her plea,
she had completed the eighth grade. She has since obtained her GED. At the time she
entered her plea, she testified, she did not understand the meaning of the word “consecutive.”
When she heard the term during her plea colloquy and attempted to ask trial counsel about
its meaning, he “told [her] to be quiet, that he would talk to [her] after everything was over
with.” They did not have a follow-up conversation, however. The Petitioner testified that,
had she known she was pleading to a sentence of thirty-eight years, she would not have pled
guilty.

       The Petitioner also testified that, the first time the police questioned her, she told them
that she had taken a combination of alcohol, cocaine, marijuana, and Ecstasy, but they
persisted in their questioning. They did not provide any Miranda warnings prior to their
questioning. The Petitioner informed trial counsel about this. He did not file any suppression
motions, however.

        The Petitioner also testified that, although she met with trial counsel “no more than
ten times,” he did not discuss trial strategy with her because “he didn’t want [her] to go to
trial. He didn’t think it was in [her] best interest, that is why he had [her] take a best interest
plea.”

       On cross-examination, the State asked the Petitioner if, during her initial statement to
the police, she told them “anything that would have been an admission to a crime?” The


        1
           See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (holding that, when the prosecution
demonstrated a strong factual basis for the defendant’s guilt, the trial court committed no constitutional error
in accepting a guilty plea from the defendant who, while protesting his innocence, deemed the plea to be in
his best interest).

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Petitioner responded, “No, sir.” She claimed, however, that the police “took [her] words that
[she] told them and twisted them around.” The Petitioner also admitted to having been in
court before on an assault charge.

       Trial counsel testified that the Petitioner’s co-defendant was tried twice before the
Petitioner pled guilty. Trial counsel had the transcript from at least one of these trials.
According to trial counsel, the Petitioner was not arrested on the basis of her first statement
to the police because she did not confess to anything. Trial counsel also testified that he
believed the Petitioner knew the difference between concurrent sentences and consecutive
sentences because she repeatedly expressed her desire for concurrent sentences.

        On cross-examination, trial counsel acknowledged that he did not have an independent
recollection of advising the Petitioner about the difference between concurrent and
consecutive sentences, but stated that it was his normal practice to discuss the difference with
his clients. He emphasized that both he and his investigator discussed with the Petitioner
“the benefits and the possible detriments of going to trial.” Trial counsel explained, “we
were trying to develop the case and trying to get anything we could, and I also was getting
my investigator to research everything [the Petitioner] said that would be beneficial to her
defense.”

       The transcript from the guilty plea hearing was admitted as an exhibit and reveals that
the Petitioner identified herself as being twenty-nine years old at the time. She stated that
she was satisfied with trial counsel’s representation. She authenticated her signature on the
petition to enter plea of guilty, stated that she had signed it freely and voluntarily, and
answered affirmatively when asked if she had had “the opportunity to go over it thoroughly
with [trial counsel].” She also told the trial court that she understood the document. The
written petition to enter plea of guilty sets forth above the Petitioner’s signature, “Total
sentence 38 yrs 30%.”

      After further colloquy between the trial court and the Petitioner, the prosecutor
advised the trial court as follows:

       I would point out that the plea that she is doing is facilitation of second degree
       murder. 19 years at 30 percent on both, consecutive. For a total of 38 years
       at 30 percent.

The prosecutor also described the factual basis for the Petitioner’s plea, explaining that she
and a girlfriend had enticed two men to their residence with the aim of assisting another
friend of the Petitioner’s, Jamar Scott, to rob them. During the robbery, Scott shot and killed
the two men. The Petitioner initially told the police “that they had been home invaded by


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unknown assailants.” Although this report slowed the investigation, the police “eventually
found that Mr. Scott and [the Petitioner] did, in fact, set up [the two victims] for a robbery
that Mr. Scott, again with or without help of another individual, did kill these two young men
in the perpetration of the robbery.” The prosecutor continued:

               On her plea agreement, we recommend on the plea of guilty, her best
       interest plea of guilty to facilitation of second degree murder, out of range. 19
       years at 30 percent on count one and on count two, the same sentence to run
       consecutive for a total sentence of 38 years at 30 percent. The other counts
       of the indictment, Your Honor[,] will be retired.

        On questioning by the trial court, the Petitioner affirmed that she had heard the facts
stated by the prosecutor, and that she had determined that it was in her best interest to plead
guilty. The trial court accepted the plea, stating that the sentences of 19 years on each count
“will run consecutive, one to the other.”

       After considering this proof, the post-conviction court denied the Petitioner’s claim
for post-conviction relief by written order, finding that her “argument that she did not
understand the nature of the plea agreement and the sentencing ramifications of its entry are
not persuasive” and was “therefore without merit.” As to her claim that her conviction was
based upon a violation of her right against self-incrimination because the police took her first
statement without giving her Miranda warnings, the post-conviction court found it to be
without merit because she “did not submit any details as to this claim or how such an
allegation may be founded in support of her complaint.” The post-conviction court also
rejected the Petitioner’s claim of ineffective assistance of counsel, finding that trial counsel
discussed the Petitioner’s options with her and that, in light of the evidence and the nature
of the crimes and the potential penalties, his advice to take the best interest plea “provided
the petitioner with the best possible outcome in the case.”

                                           Analysis

                                     Standard of Review

        A petitioner is entitled to post-conviction relief only when the petitioner demonstrates
that his or her “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.”
Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction claim of a
constitutional violation, the petitioner must prove his or her allegations of fact by “clear and
convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v. State, 18
S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction court’s


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findings of fact unless the preponderance of the evidence is otherwise. Pylant v. State, 263
S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim. App.
2004). We will defer to the post-conviction court’s findings with respect to the witnesses’
credibility, the weight and value of their testimony, and the resolution of factual issues
presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising mixed
questions of law and fact, however, including claims of ineffective assistance of counsel and
challenges to the validity of a guilty plea, our review is de novo with no presumption of
correctness. See Pylant, 263 S.W.3d at 867-68; Jaco v. State, 120 S.W.3d 828, 830-31
(Tenn. 2003); Sexton, 151 S.W.3d at 531.

                                    Validity of Guilty Plea

       The Petitioner asserts that her plea is constitutionally infirm because she did not
understand the meaning of the term “consecutive” with respect to her sentences. We agree
with the post-conviction court that the Petitioner clearly has failed to prove this claim by
clear and convincing evidence.

        To be valid, a guilty plea must be entered knowingly, voluntarily, and intelligently.
See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); State v. Mackey, 553 S.W.2d 337, 340
(Tenn. 1977). A plea meets constitutional muster when the defendant understands both what
the plea connotes and its consequences, Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993) (citing Boykin, 395 U.S. at 244), and makes a voluntary and intelligent choice from
the alternative courses of action available to plead guilty. Jaco, 120 S.W.3d at 831 (citing
North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In Mackey, 553 S.W.2d at 341, our
Supreme Court set forth the procedure that a trial court should follow when accepting a guilty
plea in order to ensure that a defendant’s plea is knowing, voluntary, and intelligent. See also
Tenn. R. Crim. P. 11(b). A trial court must “substantially comply” with this procedure. State
v. Newsome, 778 S.W.2d 34, 38 (Tenn. 1989).

        The record in this case demonstrates that the Petitioner’s sentence was described no
less than three times during her plea hearing as totaling thirty-eight years, over and above any
reference to the word “consecutive.” Additionally, her petition to enter plea of guilty sets
forth in writing “Total sentence 38 yrs 30%” right above her signature. The Petitioner told
the trial court at her plea hearing that she understood this document. The post-conviction
court did not accredit the Petitioner’s testimony at the post-conviction hearing that she did
not understand her sentence. The proof does not preponderate against the post-conviction
court’s finding. The Petitioner is not entitled to relief on this issue.




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                        Violation of Right Against Self-Incrimination

       Although the Petitioner alleged in her petition for post-conviction relief that the police
violated her right against self-incrimination because they did not provide her with Miranda
warnings prior to taking her first statement, the Petitioner does not argue this contention in
her brief before this Court. Therefore, this issue is waived. See Tenn. Ct. Crim. App. R.
10(b).

                              Ineffective Assistance of Counsel

        The Petitioner contends that trial counsel was ineffective because he did not explain
her thirty-eight year sentence to her. “In criminal prosecutions, the accused has a right to the
assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution
and Article I, Section 9 of the Constitution of Tennessee.” Lovin v. State, 286 S.W.3d 275,
284 (Tenn. 2009). The Sixth Amendment right to counsel is applicable to the States through
the Fourteenth Amendment to the United States Constitution. See Gideon v. Wainwright,
372 U.S. 335, 342 (1963); State v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993). Both the
United States Supreme Court and the Tennessee Supreme Court have recognized that the
right is to “reasonably effective” assistance, which is assistance that falls “within the range
of competence demanded of attorneys in criminal cases.” Strickland v. Washington, 466
U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
deprivation of effective assistance of counsel at trial presents a claim cognizable under
Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103; Pylant, 263
S.W.3d at 868.

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.

       To establish the first prong of deficient performance, the petitioner must demonstrate
that his or her lawyer’s “acts or omissions were so serious as to fall below an objective
standard of ‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202
S.W.3d 106, 116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688)). Our Supreme Court
has explained that:

       [T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It


                                               -6-
       is a violation of this standard for defense counsel to deprive a criminal
       defendant of a substantial defense by his own ineffectiveness or incompetence.
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell
v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).

       As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). In the context of a guilty plea, our
analysis of this prong

       focuses on whether counsel’s constitutionally ineffective performance affected
       the outcome of the plea process. In other words, in order to satisfy the
       “prejudice” requirement, the [petitioner] must show that there is a reasonable
       probability that, but for counsel’s errors, he would not have pleaded guilty and
       would have insisted on going to trial.

Hill v. Lockhart, 474 U.S. 52, 59 (1985). See also Calvert v. State, 342 S.W.3d 477, 486
(Tenn. 2011).

       Based upon the overwhelming proof on the issue of the Petitioner’s total sentence, we
need not even address the issue of counsel’s performance. Goad, 938 S.W.2d at 370. As set
forth above, the record clearly establishes that the Petitioner was aware of her thirty-eight-
year sentence at the time she entered her best-interest guilty plea. Therefore, the Petitioner
has failed to establish that, but for trial counsel’s alleged failure to explain what


                                             -7-
“consecutive” meant, she would not have pled guilty and would have insisted on a trial.
Thus, the Petitioner has failed to establish that she was prejudiced by trial counsel’s allegedly
deficient performance. Accordingly, the Petitioner is not entitled to post-conviction relief
on the basis of ineffective assistance of counsel.

                                          Conclusion

       The Petitioner has failed to prove by clear and convincing evidence that her guilty plea
is constitutionally infirm or that it was entered as the result of ineffective assistance of
counsel. We therefore affirm the judgment of the post-conviction court denying relief.


                                            _________________________________
                                            JEFFREY S. BIVINS, JUDGE




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