        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 16, 2014

           ROGER G. VAN BLARCOM v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Rutherford County
                          No. F66985    Don R. Ash, Judge




              No. M2012-00949-CCA-R3-PC           - Filed March 12, 2015



The petitioner, Roger G. Van Blarcom, was initially charged with first degree murder, a Class
A felony, and several other crimes. In exchange for the dismissal of the other charges and
a reduction of the first degree murder charge, the petitioner pled guilty to second degree
murder, a Class A felony, and agreed to an out-of-range sentence of thirty years to be served
at 100%. He now appeals the denial of his petition for post-conviction relief, arguing that
he received the ineffective assistance of counsel and that his guilty plea was not knowing and
voluntary. After reviewing the record, the briefs of the parties, and the applicable law, we
affirm the judgment of the post-conviction court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J. and R OBERT W. W EDEMEYER, J., joined.

Chelsea Nicholson, Nashville, Tennessee, for the appellant, Roger G. Van Blarcom.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel;
William C. Whitesell, Jr., District Attorney General; and Jennings Jones, Assistant District
Attorney General, for the appellee, State of Tennessee.



                                         OPINION

      At the petitioner’s guilty plea hearing, the State presented the following as proof that
would have been adduced had the defendant gone to trial:
       [T]he State would have presented testimony to include that of Detective Doug
       Arrington with the Murfreesboro Police Department who would have come
       forward to testify that on or about the date of 10-14-2009 through investigation
       it was determined that [the petitioner] had struck his elderly mother in the head
       with a baseball bat and in the body with a baseball bat repeatedly. He had
       called 911 after leaving his mother’s body lying on the floor of the garage and
       had a conversation with the dispatcher. In this conversation the [petitioner]
       stated that he would like to report a premeditated first degree murder.
       Towards the end of the conversation he states to the dispatcher that he can hear
       his mother in the background in the garage and he states that he ought to go
       finish her off. The dispatcher attempts to talk him out of doing so, however
       he does put the phone down and hang[s] up on the dispatcher and returns to the
       garage. At approximately this same time police officers had converged on the
       house, kicked in the back door, came inside and saw [the petitioner] standing
       over his mother as she lay on the ground bleeding. He was ordered to retreat
       at gunpoint. Was then placed under arrest. His mother was taken to the
       hospital by ambulance where as a result of her injuries that she suffered at the
       hands of [the petitioner] she did pass some few days later.

At the hearing, the prosecutor stated that the petitioner had “expressly agreed” to enter an out
of range plea to a thirty-year sentence as a Range II, multiple offender to be served at 100%
in exchange for a reduction of the charge from first degree murder to second degree murder
and the dismissal of several other charges. The prosecutor explained that because the
sentencing range for a Range I offender for a Class A felony was fifteen to twenty-five years,
the petitioner had to agree to a Range II classification to receive the thirty-year sentence. The
prosecutor stated that there was a negotiated plea agreement that reflected the arrangement.
Trial counsel agreed that the prosecutor accurately described the plea agreement.

        The petitioner informed the trial court that he had not been coerced or forced into
pleading guilty and that he was doing so freely and voluntarily. He agreed that he was
satisfied with his attorney’s representation and that he did not have any complaints regarding
the representation. Although he did not agree with the State’s recitation of the facts, he
agreed that he still desired to enter a best interest plea.

        The petitioner agreed that he discussed the different elements of first and second
degree murder with trial counsel and that he understood that he was pleading guilty to a
lesser offense than the offense with which he was initially charged. He confirmed that trial
counsel explained the range of punishment, the burden the State would have to meet to obtain
a guilty verdict, and any possible defenses he may have. The petitioner agreed that he

                                               2
understood the rights that he was waiving by pleading guilty. He also confirmed that he was
pleading guilty to an out-of-range sentence.

        When the trial court asked, “So you’re agreeing to this multiple 35 percent offense and
that’s to get to that 30 year plateau right there[,]” the petitioner agreed. The petitioner had
reviewed the plea agreement with trial counsel and stated that his only issue with
understanding the agreement “was that [the sentence] was at 100 percent instead of 80.”
However, he stated that he understood that his sentence would be served at 100% and
confirmed that he signed the plea agreement.

       At the conclusion of the hearing, the trial court found the petitioner guilty of second
degree murder and sentenced him to serve thirty years as a multiple offender at 100%.

        At the post-conviction hearing, the petitioner represented himself, and standby counsel
was available to assist the petitioner if needed. The petitioner called trial counsel as his first
witness. Trial counsel agreed that the petitioner was incarcerated prior to pleading guilty and
that he discussed a plea agreement with the petitioner several times. He said that the
petitioner ultimately pled guilty to second degree murder in exchange for a thirty-year
sentence as a Range II offender. Trial counsel testified that he had several discussions with
the petitioner regarding the meaning of the terms “Range I” and “Range II.” He explained
to the petitioner that second degree murder was a Class A felony, which carried an ultimate
range of fifteen to sixty years of incarceration. He further explained that the sentencing
range for a Range I offender was fifteen to twenty-five years and that the range for a Range
II offender started at twenty-five years.

       Trial counsel testified that the State offered a sentence of thirty years, which would
require the petitioner to waive a Range I sentence. He stated that the petitioner decided to
waive his offender status due to the other charges he faced. Trial counsel said that the
petitioner faced more than thirty years if he was convicted at trial. He testified that the
petitioner accepted the State’s offer in order to avoid the risk of a lengthier sentence.

        Trial counsel recalled telling the district attorney during the course of negotiations that
he explained the difference between Range I and Range II to the petitioner. He testified that
at the guilty plea hearing, the petitioner informed the trial court that the petitioner understood
the consequences of pleading guilty as a Range II offender.

        Trial counsel testified that he was unaware of any blood alcohol test that was
performed. He recalled that some blood tests were conducted, but he said that the purpose
of the test was to determine the source of the blood found at the crime scene, not to test the
blood alcohol level.

                                                3
       The petitioner testified that trial counsel informed him that the sentencing range for
second degree murder was twenty-five to forty years. He stated that trial counsel was aware
that the petitioner had no prior criminal record and would have no way of knowing what
“Range I” and “Range II” meant. The petitioner testified that trial counsel never discussed
with him the difference between a Range I and a Range II sentence. He accused trial counsel
of being deceptive, and he stated that the deception caused his guilty plea to be coerced.

       The petitioner recalled the day when he entered his guilty plea, but he testified that
he did not recall the trial court explaining the consequences of pleading guilty as a Range II
offender. He stated that when the trial court asked, “So you’re agreeing to this Multiple, 35
percent offense. And that’s to get to the 30 year plateau right there. You understand that as
well,” he replied that he understood because he believed he was agreeing to a sentence to be
served at 35%. He testified that there were alterations to the plea agreement made in
whiteout after he signed the agreement and that there were also alterations made to the
judgment sheet. He agreed that the only proof that the plea agreement was changed after he
signed it was his testimony at the post-conviction hearing. The petitioner stated that he was
confused at the time of his guilty plea because the court initially said 35% but later said
100%. He agreed that he signed the negotiated plea agreement, which stated that the
petitioner “expressly agreed” to plead out of range. He contended that he did not understand
what Range I and Range II meant and that the sentencing ranges for second degree murder
were added after he signed the plea agreement.

        The petitioner testified that the discovery file that he received contained a notation that
a detective requested a blood alcohol test “for purposes of D.N.A.” A box was checked
“Homicide” on the upper right-hand corner of the form, which led the petitioner to believe
that standard operating procedure in homicide cases was to perform a blood alcohol test. He
testified that this procedure was not followed because no blood alcohol test was ever
performed.

       The post-conviction court orally denied the petition, stating that it did not find the
testimony of the petitioner credible. The post-conviction court also issued a written order
denying the petition. In the written order, the court credited trial counsel’s testimony that he
explained what a Range I and Range II sentence meant to the petitioner and found that the
petitioner’s testimony was not credible. The post-conviction court agreed with the petitioner
that portions of the plea agreement and judgment were whited out and corrected, but the
court found that “it [was] clear these changes were made before the plea was entered.” 1 The


        1
         On the judgment, the following had been whited out: a check next to “Standard,” a check next to
“Multiple 35%,” the date of the judgment being entered, the date the sentence is imposed, and in the “Special
Conditions” box, “35%” had been crossed out and “100%” was written beneath it. On the plea agreement,

                                                     4
court found that the transcript of the guilty plea hearing negated the petitioner’s assertion that
he believed he was only required to serve his sentence at 35% and that the corrected plea
agreement and judgment accurately reflected the petitioner’s plea agreement. The court also
found that the petitioner had failed to prove his allegation regarding the blood-alcohol test
by clear and convincing evidence. The court noted that if the petitioner’s claim was that trial
counsel should have requested that the State perform the test or independently had the test
performed, such a claim was not properly raised and was waived. Additionally, the court
found that even if the claim was not waived, the petitioner had not established that trial
counsel performed deficiently or that any deficiency caused him prejudice.

                                            ANALYSIS

                              I. Ineffective Assistance of Counsel

       The petitioner contends that he received ineffective assistance of counsel and that his
plea was not knowing and voluntary. Specifically, he contends that trial counsel never
discussed with him the differences between a Range I and Range II sentence and that he was
given “false information regarding his range and sentence,” rendering his plea involuntary.

       In a claim of ineffective assistance of counsel, the defendant bears the burden of
proving the allegations of fact giving rise to the claim by clear and convincing evidence.
Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). “‘Evidence is clear and
convincing when there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). This court
affords the post-conviction court’s findings the weight of a jury verdict, and these findings
“are conclusive on appeal unless the evidence in the record preponderates against” them.
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997).

        Both the Sixth Amendment to the United States Constitution and article I, section 9
of the Tennessee Constitution guarantee the right to counsel. This right affords an individual
representation that is “within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Counsel is ineffective when
“counsel’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 v. Washington, 466
U.S. 668, 686 (1984).



the following was whited out: under “Range & Offender Classification,” “100%” was written over in white
out and “5-9” was written over white out for the petitioner’s end date for jail credit.

                                                  5
        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
prove by clear and convincing evidence that: (1) counsel’s performance was deficient; and
(2) the deficiency prejudiced the petitioner to the degree that the petitioner did not receive
a fair trial. Strickland, 466 U.S. at 687. A petitioner satisfies the deficiency prong of the
test by showing that counsel’s representation fell below an objective standard of
reasonableness; that is, “the services rendered or the advice given must have been below ‘the
range of competence demanded of attorneys in criminal cases.’” Grindstaff, 297 S.W.3d at
216 (quoting Baxter, 523 S.W.2d at 936); see Strickland, 466 U.S. at 687. The petitioner
must demonstrate that “counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at
687. Courts evaluating the performance of an attorney “should indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.”
State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). In order to fairly assess counsel’s conduct,
every effort must be made “to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. “The fact that a particular strategy or
tactic failed or hurt the defense, does not, standing alone, establish unreasonable
representation.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).

       Prejudice requires the petitioner to show “that there is 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. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. In order to establish prejudice in the context
of a guilty plea, the petitioner must demonstrate that “counsel’s constitutionally ineffective
performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59
(1985). This requires a showing of “a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.” Id. If the
petitioner fails to establish either deficiency or prejudice, post-conviction relief is not
appropriate, and this court need not address both components if the petitioner makes an
insufficient showing as to one component. Grindstaff, 297 S.W.3d at 216 (citing Goad, 938
S.W.2d at 370).

                                    A. Advice of Counsel

        Trial counsel testified that he discussed with the petitioner what Range I and Range
II meant several times and that he explained the applicable sentences for a Class A felony in
each range. He explained to the petitioner the thirty-year sentence required the petitioner to
waive a Range I sentence. Trial counsel also testified that the petitioner wanted to plead
guilty to an out-of-range sentence in exchange for the dismissal of other charges against him
and to avoid exposure to a lengthier sentence if he were convicted at trial. In its written and

                                               6
oral findings, the post-conviction court explicitly credited the testimony of trial counsel over
that of the petitioner. We conclude that the petitioner has not established that trial counsel
performed deficiently. The petitioner is not entitled to any relief as to this claim.

                                         B. Blood Test

        The petitioner asserts that trial counsel “was ineffective for failing to obtain the blood
test results of the victim if these were performed.” The petitioner makes no argument and
cites no law to support this bare allegation. Accordingly, this issue is waived. See Tenn. R.
Ct. Crim. App. 10(b) (“Issues which are not supported by argument, citations to authorities,
or appropriate references to the record will be treated as waived.”).

                         II. Knowing and Voluntary Guilty Plea

       The petitioner next argues that his plea was not knowing and voluntary because he
believed that he was pleading guilty in exchange for a thirty-year sentence to be served at
35% rather than 100%. Specifically, he contends that the judgment and guilty plea
agreement were altered after he signed them, which demonstrates that he did not agree to the
sentence imposed.

         A guilty plea is constitutional only when it is entered into knowingly, intelligently, and
voluntarily. Boykin v. Alabama, 395 U.S. 238, 242 (1969). “[A] plea is not ‘voluntary’ if
it is the product of ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle
or blatant threats.’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting
Boykin, 395 U.S. at 242-43). In order to determine whether a plea was entered “intelligently”
or “knowingly,” “‘[t]he standard was and remains whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.’” Id.
(quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). A court must make this
determination “based upon the totality of the circumstances.” State v. Turner, 919 S.W.2d
346, 353 (Tenn. Crim. App. 1996). A court charged with determining the nature of a guilty
plea:

       must look to various circumstantial factors, such as the relative intelligence of
       the defendant; the degree of his familiarity with criminal proceedings; whether
       he was represented by competent counsel and had the opportunity to confer
       with counsel about the options available to him; the extent of advice from
       counsel and the court concerning the charges against him; and the reasons for
       his decision to plead guilty, including a desire to avoid a greater penalty that
       might result from a jury trial.



                                                7
Blankenship, 858 S.W.2d at 904.

        The post-conviction court agreed that portions of the judgment and plea agreement
were altered but found that these changes were made prior to the entry of the plea. The court
also found that the transcript of the guilty plea hearing negated the petitioner’s claim that he
was to serve his sentence with a 35% release eligibility. At the guilty plea hearing, the
prosecutor stated that the petitioner “expressly agreed” to a thirty-year sentence as a multiple,
Range II offender to be served at 100%. He explained that the petitioner had to agree to be
sentenced as a Range II offender to obtain a thirty-year sentence because the sentencing
range for a Range I offender was only fifteen to twenty-five years. While the trial court used
the phrase “multiple 35 percent offense”, the proceedings clarified that the petitioner’s
release eligibility would be 100%. When the trial court asked if the petitioner understood the
plea agreement, the petitioner made no mention of his belief that he would serve his sentence
at 35%. Instead, he stated that his only issue was that the sentence would be served at 100%
instead of 80%, and he agreed that he understood that he was to serve his sentence at 100%.
He made no objection when the trial court sentenced him to a thirty-year sentence as a
multiple offender with 100% to serve. If the petitioner had not pled guilty, he would have
faced a charge of first degree murder and the risk of a far lengthier sentence than thirty years
if convicted at trial. The credited testimony of trial counsel reflected that the petitioner
elected to plead guilty in exchange for the dismissal of the other charges against him and to
avoid a trial and a longer sentence. We agree with the post-conviction court that the record
reflects that the petitioner entered his plea knowingly and voluntarily. The petitioner is not
entitled to relief as to this claim.

                                          Conclusion

       Based upon the foregoing, we affirm the judgment of the post-conviction court.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




                                               8
