            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                         July 19, 2011 Session

                      DANIEL EWING v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Marshall County
                         No. 2010-CR-26      Robert Crigler, Judge


                 No. M2010-02282-CCA-R3-PC - Filed September 27, 2011


Much aggrieved by his guilty-pleaded convictions of rape and introduction of drugs into a
penal institution, the petitioner, Daniel Ewing, filed a petition for post-conviction relief
alleging that his guilty pleas were involuntarily and unknowingly entered as a product of the
ineffective assistance of counsel. Following the appointment of counsel and an evidentiary
hearing, the post-conviction court denied relief. Following our review, we affirm the
judgment of the post-conviction court.

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

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and D. K ELLY T HOMAS, J R., JJ., joined.

Karen McDonald, Nashville, Tennessee, for the appellant, Daniel Ewing.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Charles Crawford, District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                                 OPINION

             On September 17, 2008, the Dickson County grand jury charged the petitioner
with two counts of aggravated rape, see T.C.A. § 39-13-502(a)(3)(A) (2006)1 , one count of


        1
           The defendant was indicted under a theory of criminal responsibility for the conduct of another;
in this case his codefendant committed the sexual assault with the petitioner’s assistance. See T.C.A. § 39-
11-402(2). We remind the petitioner that criminal responsibility is a theory of culpability that does not
mitigate his responsibility for the offense; thus, his culpability is equal to that of the primary offender. See
                                                                                                   (continued...)
theft of property valued at less than $500, see id. § 39-14-103 and -105(1), and one count of
introduction of drugs into a penal institution, see id. § 39-16-201. The grand jury charged
his codefendant, David Clilion Bates, with two counts of aggravated rape and three counts
of assault. Their cases were severed for trial, and following Mr. Bates’s convictions at trial,
the petitioner pleaded guilty on May 21, 2009, to a reduced charge of rape and introduction
of drugs into a penal institution with an agreed sentence totaling 18 years’ incarceration in
exchange for dismissal of the remaining charges.

              At the plea submission hearing, the State offered the following recitation of
facts concerning the offense:

                       The victim will testify concerning this defendant that his
                codefendant, Mr. Bates, came in and assaulted her on the bed
                and the codefendant, Mr. Bates, asked [the petitioner] to hold
                her arms down and put a pillow over her head, which the victim
                says that he did, while Mr. Bates unlawfully forcibly penetrated
                the victim’s vaginal area with his penis.


                               During the course of that, Mr. Bates asked [the
                petitioner] to leave, although there was penetration before he
                left. He did leave and the penetration continued on.

                ....

                              Then [the petitioner] was taken over to the
                Marshall County Jail where during the booking search by Dac
                Burrow he was asked to empty his pockets. He was in an area
                where prisoners were kept and several, I think three or four,
                Xanax, Schedule IV controlled substance, pills fell out of his
                pocket on to the floor . . . .

              On March 4, 2010, the petitioner filed a timely pro se petition for post-
conviction relief alleging that his guilty pleas were involuntarily entered as a result of the


        1
         (...continued)
T.C.A. § 39-11-401 (“A person is criminally responsible as a party to an offense, if the offense is committed
by the person’s own conduct, by the conduct of another for which the person is criminally responsible, or
by both.”). The petitioner’s attempt to characterize his ultimate conviction of rape via a criminal
responsibility theory as some sort of lesser offense has no basis under the law.

                                                    -2-
ineffective assistance of counsel. The petitioner, however, failed to express a sufficient
factual basis for relief in this petition. Accordingly, the petitioner filed a subsequent petition
averring that he was coerced into pleading guilty, that trial counsel told him he would only
serve ten years before being released on parole, that he felt pressured into pleading guilty by
his codefendant’s conviction, and that trial counsel failed to interview some 17 witnesses that
the petitioner requested be interviewed.

               Following the appointment of counsel, the petitioner filed an amended petition
alleging that trial counsel failed to advise him of the consequences of his guilty plea
regarding his release eligibility, consecutive service of sentences, and sexual offender
registry requirements. In the amended petition, he also alleged that counsel failed to
investigate his cognitive ability as it bore on his ability to enter into an understanding and
knowing plea, that counsel failed to explain to the petitioner the mens rea requirement for the
introduction of drugs into a penal institution offense, and that trial counsel prohibited his
family members from attending the codefendant’s trial.

                At the onset of the September 10, 2010 evidentiary hearing, the State moved
to dismiss the allegations contained in the counsel-filed amended petition because the
amendment did not comply with the statutory mandate that it be verified under oath. See
T.C.A. § 40-30-104(e) (requiring that “[t]he petition and any amended petition shall be
verified under oath”). Post-conviction counsel conceded that the amendment was not
verified.2 Accordingly, the post-conviction court ruled that the petitioner be precluded from
presenting any evidence or argument concerning the additional claims raised in the amended
petition. See Hutcherson v. State, 75 S.W.3d 929, 931 (Tenn. Crim. App. 2001) (“It is
imperative that factual allegations be made and that the petition be verified as true under
oath.”). The post-conviction court specifically excluded any evidence in support of the
petitioner’s claim concerning trial counsel’s failure to advise him regarding the sexual
offender registry requirements. The post-conviction court did, however, allow post-
conviction counsel to proffer evidence concerning the sexual offender registry advice in the
event the petitioner challenged the court’s exclusion on appeal. The petitioner raises no
challenge on appeal to the post-conviction court’s limitation of proof to those issues raised
in the initial petition.

                Trial counsel testified that he met with the petitioner several times. During one
of the initial meetings, trial counsel asked the petitioner to write his account of the offenses,
in part, so that trial counsel could assess the petitioner’s ability to spell and write. Based


        2
          Counsel offered to verify the amendment at the hearing, but the post-conviction court ruled that
the unverified claims should be dismissed without allowing the amendment. The petitioner raises no claim
on appeal regarding the propriety of this ruling.

                                                   -3-
upon this writing, trial counsel determined that the petitioner had difficulty spelling but was
able to communicate sufficiently. Trial counsel recalled that he interviewed several
witnesses, including the petitioner’s mother, two of his aunts, his stepfather, and his cousin.
He testified that no one suggested that he interview Keyonia Taylor as a potential witness to
the petitioner’s condition on the night of the offenses.

                Trial counsel attended the codefendant’s trial and assessed the witnesses’
testimony, particularly that of the victim, so that he could advise the petitioner regarding
potential outcomes of a trial. Trial counsel recalled that the petitioner’s girlfriend, Brittany
Tears, told counsel that she was with the petitioner for “all but two minutes” on the night of
the offense and that the petitioner was not involved in the victim’s assault. Characterizing
Ms. Tears as the petitioner’s “star witness,” trial counsel paid specific attention to her
testimony at the codefendant’s trial. At the codefendant’s trial, however, Ms. Tears admitted
that “she stayed playing with her cell phone outside the house for 30 minutes before she went
inside” while the petitioner, codefendant, and victim were inside. Because the victim
testified that the rape “happened so fast” and because their “star witness,” Ms. Tears, had no
credibility, trial counsel advised the petitioner to accept a plea offer. Counsel told the
petitioner that he “would probably lose” and “end up worse than” his codefendant if he went
to trial because the petitioner faced the additional charge of introduction of drugs into a penal
institution.

                Trial counsel recalled discussing the lengths of the sentences contemplated by
the plea agreement. He explained to the petitioner that the rape sentence carried a release
eligibility of 100 percent but that with sentence reduction credits, the petitioner may only
serve 85 percent of the 12-year sentence. Trial counsel opined that this discussion may have
been what led to the petitioner’s mistaken belief that he would only serve 10 years’
incarceration. Trial counsel testified, however, that the petitioner fully understood that he
would serve the six-year sentence for the contraband charge consecutively to the rape
sentence. In an offer of proof, trial counsel said that he advised the petitioner regarding the
sexual offender registry requirements. Trial counsel admitted that the petitioner acted
“combative” with counsel when around the petitioner’s mother but stated that “when we were
just alone talking at the jail, [the petitioner] said he was going to accept [the plea
agreement].”

               Trial counsel testified that he was ready to go to trial and that he was “familiar
with the case like the palm of [his] hand.” He recalled that he shared each piece of discovery
material with the petitioner. He stated that the petitioner understood the benefit of pleading
to a Class B felony, rape, rather than risking conviction of a Class A felony, aggravated rape.
In summary, trial counsel said that the petitioner “understood everything, and he told me that
he [was] ready to take the plea that day.”

                                               -4-
               Amy Greer, the petitioner’s aunt, testified that she saw the petitioner in the
early morning hours of June 21, 2008.3 She said that the petitioner was “really messed up”
and “falling all over the place.” She also said that the petitioner was unable to “read all that
good” and “always had trouble in school.” She testified that she wrote a statement for trial
counsel but that trial counsel did not interview her.

                Sandra Greer, the petitioner’s aunt, testified that the petitioner visited her home
from approximately 10:00 a.m. until 7:00 p.m. on June 20. She recalled that after the
petitioner left her home at 7:00, he returned near midnight. Ms. Greer said that the petitioner
was so intoxicated that she sent him home. Ms. Greer, however, heard the petitioner in her
home sometime after 2:00 a.m. when he fell as “his baby mama [was] helping him to the
bathroom.” Ms. Greer testified that the petitioner “always had problems” in school but that
he could comprehend things that were read to him. She also recalled that trial counsel told
the petitioner’s family that the sentence would be 12 years and that they were surprised when
the trial court announced a sentence of 18 years at the plea submission hearing.

              Keyonia Taylor, the petitioner’s cousin, testified that she saw the defendant as
he was leaving the victim’s house at approximately 9:30 p.m. on June 20. She recalled that
the petitioner’s girlfriend helped him to the car “because he could barely walk.” She
acknowledged that she testified at the codefendant’s trial consistently with her testimony at
the evidentiary hearing.

              Jada Hurt, the petitioner’s cousin, testified that she saw the petitioner at
approximately 3:00 a.m. on June 21 and that the petitioner was basically “unconscious . . .
sitting up asleep.” She overheard discussions with trial counsel concerning the plea
agreement and recalled that the petitioner’s sentence would be 10 years or 18 years –
“something like that.”

               The petitioner’s mother, Audrey Hardin, testified that she gave trial counsel a
list of witnesses and even obtained statements from several witnesses concerning the
petitioner’s whereabouts and impairments on the night of the offense. She recalled that
Christopher Jackson gave a statement to the police concerning the petitioner’s involvement,
but Mr. Jackson could not be located. She testified that the petitioner had limited cognitive
ability and attended “special ed” in school. She, like other family members, understood the
petitioner’s sentence to be 12 years’ incarceration and was surprised when the sentence was
18 years. She said that trial counsel did not explain the sexual offender registry requirements
to the petitioner during any meetings she attended.



       3
           We discern from the record that the rape occurred sometime during the evening of June 20, 2008.

                                                    -5-
               The petitioner testified that trial counsel approached him with the plea offer
and “basically told [him that he] would get found guilty.” He faulted trial counsel for not
hiring investigators to locate Mr. Jackson, whom the defendant claimed would have provided
him an alibi that the codefendant had directed Mr. Jackson, the petitioner, and Ms. Tears to
leave the victim’s home before any assault occurred. Regarding the length of his sentence,
the petitioner stated that he thought he agreed to a sentence of 10 years. He then stated, “If
I knew that it wasn’t [10 years], I would never have took the deal. If I thought I had to serve
more than one day over 10 years, I would have never took that deal.” The petitioner said that
the sexual offender registry requirements were “never mentioned at all.” Regarding trial
counsel’s overall advice concerning the plea, the petitioner said, “[I]f I knew all of the
consequences behind my plea, I never would have entered that plea.”

               Trial counsel testified in rebuttal and stated that he did not have funds available
to hire an investigator to find Mr. Jackson but that he did stay in contact with investigators
from the public defender’s office who were also searching for Mr. Jackson through their
representation of the codefendant. Trial counsel denied telling any family members that they
could not attend the codefendant’s trial and explained that the petitioner’s family must have
been confused about the rule of sequestration concerning testifying witnesses. Regarding the
petitioner’s claim that he did not understand that he was agreeing to an 18-year sentence, trial
counsel testified, “He is lying.”

                Based upon this evidence and a review of the plea submission hearing
exhibited at the evidentiary hearing, the post-conviction court accredited the testimony of
trial counsel and found that the petitioner freely, understandingly, and voluntarily entered his
guilty pleas. The court further ruled that none of the witnesses could have provided an alibi
and that trial counsel was not deficient in advising the petitioner to plead guilty. The court
made no findings regarding trial counsel’s advice concerning the sexual offender registry or
other consequences based upon its earlier ruling that the claims contained in the unverified
amendment filed by counsel would not be considered.

               On appeal, the petitioner urges this court to reverse the post-conviction court’s
denial of relief. He contends trial counsel’s failure to interview witnesses and to explain the
consequences of his guilty plea, specifically the sexual offender registry requirements,
rendered his guilty plea involuntary. The State argues that the post-conviction court correctly
denied relief based upon the voluntariness of the plea and ineffective assistance of counsel.
The State also asserts that the petitioner has waived any allegation concerning trial counsel’s
failure to advise him regarding lifetime supervision.

              The post-conviction petitioner bears the burden of proving his allegations by
clear and convincing evidence. See T.C.A. § 40-30-110(f) (2006). On appeal, the appellate

                                               -6-
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.

                In the context of a guilty plea, the petitioner must establish that “counsel’s
constitutionally ineffective performance affected the outcome of the plea process.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). To do so, he must show “a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial.” Id.; see Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App.1998). In the context
of ineffective assistance of counsel that resulted in a guilty plea, the petitioner is not required
to demonstrate that he likely would have fared better at trial than he did by pleading guilty,
although evidence of this type can be persuasive that he would have insisted on his right to
a jury trial. See Hill, 474 U.S. at 59. 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 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).

              Claims of ineffective assistance of counsel are mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6, S.W.3d 453, 461

                                                -7-
(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).

               The record in this case fully supports the findings of fact and conclusions of
law of the post-conviction court concerning the voluntariness of the guilty plea and
representation of counsel. The overall record belies the testimony of the petitioner that he
did not understand the guilty plea agreement and that trial counsel performed deficiently in
any manner concerning those issues raised in the petition. The plea submission hearing
transcript corroborates trial counsel’s testimony concerning the petitioner’s understanding
of the sentence lengths and release eligibility. The petitioner failed to establish any deficient
performance concerning trial counsel’s investigation of the case and interviewing of
witnesses. To the extent that the petitioner claims that counsel was deficient by failing to
locate Christopher Jackson, we note that the petitioner also failed to present Mr. Jackson as
a witness at the evidentiary hearing. As such, the petitioner failed to establish his claim for
relief. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (holding that a
post-conviction petitioner generally fails to establish his claim that counsel did not properly
investigate or call a witness if he does not present the witness to the post-conviction court
because a post-conviction court may not speculate “on the question of . . . what a witness’s
testimony might have been if introduced” at trial). Therefore, the petitioner failed to
establish his entitlement to post-conviction relief.

                We now turn to the State’s argument that the petitioner has waived any
allegation that “the trial court failed to advise him about the mandatory lifetime supervision
consequence of his plea.” In his principal brief, the petitioner argues that “[c]ounsel did not
inform [him] that his plea would require him to register as a sex offender, nor did he inform
him of any of the other consequences related to being a convicted felon.” Citing Ward v.
State, 315 S.W.3d 461 (Tenn. 2010), the petitioner then distinguishes between lack of advice
concerning sexual offender registry requirements versus lifetime community supervision as
it applies to the ineffective assistance of counsel affecting the voluntariness of a guilty plea.
Presumably, the State understood this to be an additional attack on the voluntariness of the
plea based upon advice concerning lifetime community supervision. In his reply brief,
however, the petitioner states that he “is not subject to lifetime community supervision but
he is required to register as a sex offender.” Thus, it appears that the petitioner is limiting
his allegation to trial counsel’s failure to advise him regarding the sexual offender registry.

              The petitioner included the sexual offender registry allegation in an unverified
amendment filed by counsel, counsel conceded at the evidentiary hearing that the amendment
was unverified, and the post-conviction court dismissed this allegation from its consideration.

                                               -8-
For this reason, the post-conviction court made no findings concerning this allegation. We
note once more that the petitioner raised no issue on appeal concerning the propriety of the
post-conviction court’s dismissal of the amended petition claims. Thus, we are hampered by
the petitioner’s initial failure to include this allegation in a properly verified amendment as
well as the petitioner’s failure to challenge on appeal the post-conviction court’s ruling
dismissing the amendment. Accordingly, we conclude that the petitioner failed to preserve
this issue in any manner for this court’s review.

               Additionally, we note that the petitioner’s judgment for rape does not include
a notation that the petitioner is subject to community supervision for life. See T.C.A. 40-35-
524(a) (“any person who . . . commits a violation of § 39-13-503 [a rape] . . . shall receive
a sentence of community supervision for life”). Furthermore, the transcript of the plea
submission hearing is completely silent concerning any advice by either trial counsel or the
trial court concerning this additional consequence of his guilty plea. Much as this court is
hampered by the petitioner’s omissions concerning the sexual offender registry allegation,
we are likewise hampered by post-conviction counsel’s mistaken belief that the petitioner “is
not subject to lifetime community supervision.” Nevertheless, we recognize that the
judgment in this case is potentially illegal. See State v. Bronson, 172 S.W.3d 600, 601-02
(Tenn. Crim. App. 2005), perm. app. denied (Tenn. 2005) (“the failure to include the
community supervision for life provisions rendered the defendants’ sentences illegal”); see
also Ward, 315 S.W.3d at 477 (the trial court’s failure to advise the petitioner during a plea
colloquy concerning mandatory community supervision for life rendered the guilty plea
involuntary); Calvert v. State, — S.W.3d —, No. M2008-00426-SC-R11-PC, slip op. at 15
(Tenn., Nashville, Apr. 28, 2011) (“a lawyer’s failure to advise his or her client about the
mandatory lifetime community supervision sentence, where the client is considering a plea
to one or more of the relevant offenses, is deficient performance”). Furthermore, the
petitioner in this case testified at the evidentiary hearing that “if [he] knew all of the
consequences behind [his] plea, [he] never would have entered that plea.”

                Nevertheless, because the petitioner failed to properly allege any claim for
relief relative to mandatory lifetime community supervision, we are precluded from taking
any action in this post-conviction case concerning this issue. In addition to the strict pleading
requirements of the post-conviction procedure act, see T.C.A. § 40-30-104(d), appellate
review is generally limited to the issues raised and decided in the trial court. See Tenn. R.
App. P. 13(b); 36. Furthermore, “[t]he plain error doctrine has no application in post-
conviction relief proceedings.” Alfio Orlando Lewis v. State, No. M2004-01282-CCA-R3-
PC, slip op. at 6 (Tenn. Crim. App., Nashville, Mar. 16, 2005), perm. app. denied (Tenn.,
Nashville, Oct. 31, 2005). We reflect that claims for relief regarding this issue more aptly
sound in habeas corpus law.



                                               -9-
                                        Conclusion

              The record in this case fully supports the findings of fact and conclusions of
law of the post-conviction court. The judgment of the post-conviction court denying relief
is affirmed.

                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                            -10-
