        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs at Knoxville May 15, 2012

            TOMMY LEE PENDLETON v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Franklin County
                      No. 18495     Thomas W. Graham, Judge


                  No. M2011-02207-CCA-R3-PC - Filed July 23, 2012


Petitioner, Tommy Lee Pendleton, pled guilty to two counts of aggravated sexual battery and
received concurrent sentences of fourteen years. He filed a petition for post-conviction relief
alleging that his trial counsel provided ineffective assistance of counsel by failing to file a
bill of particulars, by failing to obtain an expert witness to review the statements of the child
victim, and by failing to spend adequate time investigating the case and preparing for trial.
He further contends that his guilty pleas were involuntary because trial counsel’s errors
tainted the plea process. Finally, he claims that the trial court should not have accepted his
plea in light of his hesitance during the guilty plea hearing. Discerning no error in the
proceedings, we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. WOODALL and
N ORMA M CG EE O GLE, JJ., joined.

David L. Stewart, Winchester, Tennessee, for the appellant, Tommy Lee Pendleton.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
James Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                          OPINION

                                    I. Procedural History

      A Franklin County Grand Jury indicted petitioner for two counts of rape of a child and
two counts of aggravated sexual battery. The State alleged that the offenses involved one
victim and occurred on or about October 8, 2008. Petitioner pled outside his range to the two
counts of aggravated sexual battery on June 9, 2009. The State dismissed the two counts of
rape of a child as part of the plea agreement. The trial court imposed the agreed-upon
sentence of fourteen years for each count to be served concurrently in the Tennessee
Department of Correction.

       Petitioner filed a petition for post-conviction relief on June 14, 2010, and an amended
petition on September 24, 2010. He filed a supplement to the amended petition on April 18,
2011. The post-conviction court held a hearing on the petition on September 15, 2011, and
entered an order denying relief on September 23, 2011. This appeal follows.

                                          II. Facts

                                  A. Guilty Plea Hearing

      At the guilty plea hearing, the State announced the following factual basis for the
charges against petitioner:

                [T]he State would call in this case the young victim . . . , age three;
       [and] the victim’s mother. The victim’s mother is the cousin of the defendant
       in this case. The victim’s mother will testify that she allowed the defendant to
       come into her house and to live there for a while [ ] because the defendant had
       no place else to live.

              The proof would show that the young victim had complained about the
       defendant’s physical contact on multiple occasions. The mother called the
       authorities, and ultimately a rape kit was performed on the child. The child’s
       clothing was collected. The TBI Crime Lab performed DNA testing [and]
       [l]ocated the defendant’s sperm on several items of the victim’s clothing, and
       Your Honor, we believe that this proof would substantiate the plea in both of
       these pleas.

Trial counsel agreed that there was “significant correctness to the state’s case.”

      Because petitioner alleges error with regard to the guilty plea hearing, we note the
following from the transcript of the hearing as the State announced the terms of the plea
agreement to the court:

       THE COURT:           Did you hear that, Mr. Pendleton?



                                             -2-
                               Approach, counsel . . .

(A bench conference was held on the record at sidebar:)

       THE COURT: I’ve been watching this guy. He doesn’t act like he’s - -

       [TRIAL COUNSEL]: He is. We’ve had him evaluated. He just doesn’t want
       to do it, that’s why he’s looking like that.

       [THE STATE]: We did have a mental evaluation, he’s okay.

       [TRIAL COUNSEL]: He’s fine, Judge.

        .....

(Upon completion of the bench conference, the proceedings continued:)

        .....

       THE COURT: If you had a jury trial you would have the right to the assistance
       of your lawyer at all stages of that proceeding. If you were convicted at a jury
       trial[,] you would have the right to appeal that conviction to a higher court.
       Understand that if you enter a guilty plea you’ll lose your right to appeal your
       conviction.

        .....

       Are you willing to give up these rights to enter your plea, . . . Mr. Pendleton?

       MR. PENDLETON: Yeah.

                                  B. Post-Conviction Hearing

        Petitioner called trial counsel, an assistant district public defender, as his first witness.
She testified about the procedure she used when she met with a client for the first time. She
stated that she and the client would review the indictment, the elements of the offense(s), his
criminal history, and the range of punishment for the offense(s). If she had obtained
discovery, she would review it with her client. If she had not received discovery before the
first meeting, that would be the subject of a second meeting. She would also look for any
“outstanding” issues such as competency or suppression issues. She would then review the

                                                 -3-
facts underlying the current offense. She recalled that during her first meeting with
petitioner, he informed her that he had some mental health issues, which prompted her to
request a mental evaluation. The basis for the request was that petitioner told trial counsel
that he had a very hard childhood and experienced problems in school. She thought
petitioner may have had some sort of disorder. The results of the examination indicated that
petitioner was competent to proceed to trial. Trial counsel testified that petitioner never
indicated that he did not understand the charges against him.

       Trial counsel’s file contained notes that showed she talked with petitioner on four
different dates. She further indicated that she would have talked with or visited petitioner
on occasions when she did not document her file. For instance, the trial court held
“discussion days” on February 17 and March 26, 2009, as well as other court dates, during
which trial counsel spoke with petitioner, but her file did not reflect those discussions. The
dates of her communications with petitioner did not bear a corresponding entry showing how
long each session lasted. She testified that the length of the visit varied depending on the
purpose of the visit. For example, reviewing discovery would take longer than
communicating a plea offer. Trial counsel recalled the last visit she had with petitioner, June
3, 2009, because during the meeting he said he did not want to accept the State’s offer.
Another note indicated that she spoke with petitioner on June 8th . Petitioner pled guilty on
June 9, 2009. Trial counsel testified that if petitioner had not changed his mind and decided
to accept the State’s plea offer, they would not have been in court on the plea day.

       In addition to the motion for a mental evaluation, trial counsel filed a motion to
determine the competency of the child victim as well as the routine discovery motions. She
would have filed additional motions if the case had proceeded to trial. In her file, she made
a note to evaluate whether she needed to file a bill of particulars. She determined that she
did not need to file it because, although the indictment alleged “in the month of,” the
discovery materials were more specific about a date. While petitioner would have benefitted
from knowing the exact date, trial counsel stated:

       The State has to narrow it down as best they can with a child witness . . . if you
       look at the documents that were given, the child reported it the very next
       morning, so if we looked at the dates on the documents that we did have, we
       could determine the date that the state was actually alleging, even though the
       indictment was not specific.

From the discovery provided, trial counsel was able to glean and communicate to petitioner
the alleged date, time, and location of the offenses. Even though the laboratory results
showed DNA evidence on more than one piece of clothing, trial counsel did not see the need
for a bill of particulars because she believed that the evidence pertained to only one incident

                                              -4-
and the tested clothing items for that incident were the victim’s pull-up (disposable
underpants) and pajamas. She did not believe she would have obtained any additional
information from filing a bill of particulars. The State clearly communicated to trial counsel
that it was alleging two incidents that occurred on one night.

       Trial counsel gave petitioner all of the necessary information upon which he could
decide whether to accept a plea offer or go to trial. She reviewed the recording of the child’s
interview, the DNA report, and the Children’s Advocacy Center’s report with petitioner. She
explained the potential sentence he would face if a jury determined his guilt and that the
competency of the child, i.e., if the child testified appropriately, could have an impact on the
jury’s verdict.

       Trial counsel asked petitioner about a potential alibi. He gave her the names of three
individuals with whom he had been drinking beer on the evening in question. Trial counsel
attempted to reach each of them by letter and by telephone. She was unsuccessful in
reaching two of the people, and the third person could not remember the event at all. The
District Public Defender’s Office had represented all three individuals on different charges,
and all were convicted felons. Petitioner could not assist trial counsel by recounting his
version of the events; he told trial counsel that he passed out in the doorway of his cousin’s
house on his way in, and afterward he could not account for his actions. Petitioner had been
staying at his cousin’s house, and the victim was his cousin’s daughter. Petitioner told trial
counsel that his cousin’s husband stepped over him the following morning as he left the
house to go to work.

        Trial counsel further testified that petitioner consistently maintained his innocence and
said he wanted a trial. Petitioner eventually decided to accept a “best interest plea” and did
not admit his guilt. On cross-examination, trial counsel agreed that younger children are
more easily influenced and more impressionable than older children. Because the victim was
three years old at the time of the offenses, trial counsel was concerned about the veracity of
her testimony. Trial counsel stated that authorities elicited several statements from the
victim, but all were consistent. Trial counsel did not consider retaining an expert to evaluate
whether the child’s testimony could have been influenced by statements of others, but she
did consider hiring an expert to determine whether a three-year-old child could actually be
competent to testify. Trial counsel was unsuccessful in her search for such an expert. She
believed that, even if she had found an expert who would offer such testimony, the child’s
statements would not have been excluded from trial, but instead the jury would have weighed
the credibility of the testimony in light of the expert’s opinion. The better course would have
been to have the child’s actual statements excluded from evidence, which was trial counsel’s
first and primary strategy.



                                               -5-
        Trial counsel testified that she succeeded in convincing the trial court to hear the issue
of the victim’s competency before trial rather than the usual practice of having a competency
hearing after the trial begins. Because the trial court scheduled a pre-trial hearing on the
child’s competency as a witness, the State told trial counsel that it did not want to subject the
victim to the hearing. Trial counsel recalled that the State offered to let petitioner enter a
plea to two counts of aggravated sexual battery with an agreed dismissal of the two counts
of rape of a child. However, if petitioner pursued the pre-trial motion, the State would
revoke its offer. Trial counsel relayed the information to petitioner, who ultimately made the
decision on whether to proceed with the pre-trial competency motion or accept the plea offer.

       Petitioner made trial counsel aware that the victim’s mother had previously made
allegations against a family member that were later determined to be false. Petitioner
believed that the mother had wrongly influenced the child. Trial counsel did not consider the
issue of the mother’s improper influence to be valid, because the mother would have had to
not only coach her three-year-old daughter about what to say, but would also have had to gain
access to petitioner’s DNA and plant it on the child’s clothing.

      Trial counsel stated that on the day petitioner entered the pleas, he did not want to do
so. He resisted because “he wanted it to magically go away.” She further testified:

       He didn’t want a trial, and he didn’t want to plead. He just wanted it to all go
       away, so when he made his decision, I don’t know that he was completely –
       I think he thought it was the best thing for him, but he wasn’t happy about it.
       That’s what I meant by that.

The court observed petitioner’s demeanor during the guilty plea hearing and called a bench
conference. Trial counsel informed the court that petitioner was hesitant to go forward with
his plea. By her statement to the trial court, she was not “bluntly informing the Court that
he didn’t want to take a guilty plea . . . .” Petitioner did not want to go to trial and face the
possibility of two twenty-five-year consecutive sentences nor did he want to accept two
concurrent sentences of fourteen years. However, because the case would have to be
resolved by a trial or a plea, petitioner decided to accept the plea agreement. A notation in
the transcript of the plea hearing indicated that trial counsel conferred with petitioner
immediately following the bench conference. She testified that petitioner did not tell her that
he wanted to stop the plea proceedings and go to trial. None of petitioner’s responses during
the plea colloquy indicated that he was hesitant to enter the plea.

       Petitioner next called as a witness another assistant district public defender who
assisted trial counsel (hereinafter “co-counsel”). Co-counsel stated there were occasions
during which he met with petitioner without trial counsel present. On March 18, 2009, co-

                                               -6-
counsel reviewed the status of the case with petitioner, reviewed his rights with him, and
explained what petitioner could expect as his case progressed. Co-counsel’s notes indicated
that he reviewed discovery with petitioner during that visit. He did not recall whether trial
counsel was present during that visit; however, he remembered that he was present on at least
one occasion when trial counsel reviewed discovery with petitioner. On May 19, 2009, he
discussed the issue regarding the victim’s competency with petitioner. Co-counsel testified
that petitioner never indicated to him and trial counsel that he had assaulted the victim. He
said that on one or two occasions, petitioner said, “I didn’t do it, I don’t think I did it,” but
petitioner also admitted that he was not sure what had happened that night.

       Co-counsel discussed with trial counsel whether they should file a bill of particulars.
During cross-examination, he reluctantly agreed that even though the State’s discovery
“pinpointed” the date of the offense, it would still have been helpful to lock the State into a
specific date via a bill of particulars to help petitioner avoid double jeopardy.

        Co-counsel testified that an alibi defense would be utilized in a case involving a
question of identity, but in petitioner’s case, identity of the perpetrator was not an issue. He
did not recall a specific conversation with petitioner in which he advised petitioner to plead
guilty; however, he could have informed petitioner the State had substantial evidence against
him and there would be a substantial likelihood of a conviction. Co-counsel could not deny
that he may have recommended a guilty plea to petitioner but would have told petitioner that
it was ultimately petitioner’s decision whether to take the offer.

        When co-counsel asked petitioner how his semen could have been identified in the
victim’s undergarments, petitioner stated that “on at least one occasion he had masturbated
in the bathroom, and that, perhaps, the semen had been retrieved by the child’s mother, and
somehow . . . placed upon the child’s undergarments to get him in trouble.” Co-counsel had
a vague recollection of petitioner informing him that the victim’s mother had a history of
making false allegations but did not remember the substance of the allegations.

        In preparing the defense, co-counsel and trial counsel searched for a witness, a child
psychiatrist or a similar expert, who could testify about the very basics of the competency of
a child, i.e., whether a three-year-old child would know the difference between the truth and
a lie. They did not try to locate an expert witness who would review the facts and
circumstances of the case and give an opinion about whether that particular victim had been
coached in her statements. He had no recollection of being concerned that the child was
coached.

        Co-counsel further testified that in a case in which the defendant was going to plead
guilty, he did not file every possible relevant motion. He would continue to file every proper

                                               -7-
motion until the day the trial began. On the day petitioner pled guilty, he did not tell co-
counsel, nor did co-counsel hear the petitioner tell trial counsel, that he wanted to stop the
proceedings and set the matter for trial. Petitioner appeared to understand all of the questions
asked during the plea colloquy.

        Petitioner testified that he accepted the guilty plea with the understanding that he
would be able to appeal it. He knew he was going to receive a sentence of confinement but
that “[i]t was just [his] choice on what time [he] was going to get.” Petitioner thought that
if he proceeded to trial and was convicted, he would not be able to try to “beat this.” He then
agreed that he would have had an appeal after a trial. During cross-examination by the State,
petitioner agreed that he remembered the trial court informing him that if he entered a guilty
plea, he would lose the right to appeal the conviction. He added that his misunderstanding
during the guilty plea hearing was due to trial counsel telling him, “[I]f you take the plea we
can win it on appeal.” He clarified that she did not tell him that he could “file” an appeal;
she only said they could “win” the case on appeal. Petitioner testified that her exact words
to him were “I know you’re innocent, it’s a bunch of bull**** and if you take the plea we
can win it on appeal.”

        Petitioner testified that he was sitting there during the guilty plea hearing, still not sure
what he was going to do, when the judge stopped the hearing and asked counsel to approach.
He recalled hearing the judge say, “I have a bad vibe about this. I don’t like the way he’s
sitting, and you need to talk to him, or I’m going to, you know, jerk it away.” Petitioner
testified that trial counsel told him he needed to accept the offer or the trial court would
remove it from consideration. He testified, “I really didn’t know what I wanted. I mean, I
wanted a trial, but I just – I couldn’t – I didn’t – I didn’t know how to go.”

        Petitioner testified at the post-conviction hearing that during trial preparation he told
trial counsel that the victim’s mother may have fabricated the allegations against him because
of a conflict between them arising from his mother’s death. Petitioner recalled that he told
trial counsel he was standing at the head of his mother’s casket and all he could hear around
him was discussion about who was going to get what property. He stated that the victim’s
mother brought the allegations against him because she was motivated by a desire to obtain
his mother’s estate. He thought she somehow obtained his semen and planted it on the
victim’s undergarments.         While petitioner denied “accusing” the victim’s mother of
coaching the child, he testified that it seemed “the only thing possible.” Petitioner denied
that he was homeless during the time of the offense and denied that the victim’s mother
allowed him to stay in their home. The victim’s mother never filed a claim against the estate
of petitioner’s mother.




                                                 -8-
       Petitioner disputed that he told trial counsel he did not remember the events of the
night in question. He testified he “wasn’t completely impaired.” He said he never told
anyone that he passed out in the doorway of his cousin’s home. He attributed trial counsel’s
testimony about that point to “a misconception about what was said, but that’s not what was
said.” He further testified he told trial counsel that he went to his cousin’s house the morning
after he was drinking with the three individuals, not on the night he was with them.

        According to petitioner, trial counsel discussed the allegations against him and the
proof that the State intended to introduce against him. She informed him that his DNA was
found all over the victim’s clothes and underpants. Trial counsel also told petitioner that the
victim gave multiple statements accusing him of vaginally and orally violating her.
Petitioner confirmed that his counsel reviewed his alleged alibi defense with him. They
discussed with him the possibility of trying to have the court declare the child incompetent
to testify. He also admitted that his attorneys met with him numerous times. He believed
that his attorneys collectively spent approximately four hours meeting with him and that each
session lasted only five to ten minutes. He initially thought that his attorneys did the best job
that they could, but when he reviewed his case, he concluded that they omitted too much
information. If not for the mistakes of his attorneys, he would have demanded a jury trial.
On rebuttal, trial counsel denied having told petitioner that he could appeal his guilty plea.

                                         III. Analysis

                            A. Ineffective Assistance of Counsel

       A post-conviction petitioner bears the burden of proving his or her factual allegations
by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2010); Lane v. State,
316 S.W.3d 555, 562 (Tenn. 2010) (citing Grindstaff v. State, 297 S.W.3d 208, 216 (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.’” Lane, 316 S.W.3d at 562
(quoting Grindstaff, 297 S.W.3d at 216).

       Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Questions regarding the credibility of witnesses is a matter
entrusted to the trial judge as the trier of fact. Dellinger, 279 S.W.3d at 292 (citing State v.
Odom, 928 S.W.2d 18, 23 (Tenn.1996)). The post-conviction court’s findings of fact carry
the weight of a jury verdict and are conclusive on appeal unless the preponderance of the
evidence is otherwise. Rigger v. State, 341 S.W.3d 299, 307 (Tenn. Crim. App. 2010) (citing
 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)). However, conclusions of law receive no presumption of correct-

                                               -9-
ness on appeal. Rigger, 341 S.W.3d at 306 (citing Fields v. State, 40 S.W.3d 450, 453 (Tenn.
2001)). As a mixed question of law and fact, this court’s review of petitioner’s ineffective
assistance of counsel claims is de novo with no presumption of correctness. Dellinger, 279
S.W.3d at 294 (citing Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007)).

       To prevail on his claim of ineffective assistance of counsel, petitioner must
demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Finch, 226 S.W.3d at 315; Vaughn v. State, 202 S.W.3d 106, 116
(Tenn. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)). To prove that counsel’s performance was deficient,
petitioner must establish that his attorney’s conduct fell below an objective standard of
“reasonableness under prevailing professional norms.” Finch, 226 S.W.3d at 315 (quoting
Strickland, 466 U.S. at 688). As our supreme court has previously held:

       ‘[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It 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)). On appellate review of trial counsel’s performance, this court “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); see
Finch, 226 S.W.3d at 316.

         To establish that petitioner suffered prejudice as a result of counsel’s deficient
performance, petitioner “‘must establish a reasonable probability that but for counsel’s errors
the result of the proceeding would have been different.’” Finch, 226 S.W.3d at 316 (quoting
Vaughn, 202 S.W.3d at 116). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Vaughn, 202 S.W.3d at 116 (quoting Strickland, 466
U.S. at 694); see Finch, 226 S.W.3d at 316. As such, petitioner must establish that his
attorney’s deficient performance was of such magnitude that he was deprived of a fair trial
and the reliability of the outcome was called into question. Vaughn, 202 S.W.3d at 116
(citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).




                                             -10-
        Petitioner must establish both deficient performance and prejudice therefrom to be
entitled to post-conviction relief. Id. (citing Howell, 185 S.W.3d at 326). It follows that if
this court holds that either prong is not met, we are not compelled to consider the other
prong. Id. (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)).

       Petitioner first claims that trial counsel was ineffective for failing to file a bill of
particulars to narrow the time of the offenses. In its order denying relief, the post-conviction
court made extensive findings of fact. The court found that petitioner’s attorneys discussed
the necessity of filing a bill of particulars but did not file one for several reasons. They
concluded that they knew what the State expected to prove at trial, that the materials they
received in the discovery process provided detailed information about the specific charges
and the charged acts, that they knew the exact time, date, and place of the criminal conduct,
and that they knew who the State would call as witnesses. We have determined that the post-
conviction court’s findings of fact are supported by the evidence, and we credit those
findings with the weight of a jury verdict.

        The post-conviction court found that petitioner and his counsel were “fully aware of
the specific conduct and acts alleged in the indictment” and “the alleged location of the
criminal conduct, the alleged date and time frame of the criminal conduct, and the evidence
and witnesses supporting the charges.” In reviewing de novo the post-conviction court’s
legal conclusion that trial counsel’s failure to file a bill of particulars did not constitute
ineffective assistance of counsel, we find no error. Petitioner has failed to establish that his
counsel’s performance was deficient or that he was prejudiced by counsel’s failure to file a
bill of particulars. See Joe Tyree v. State, No. M2008-01273-CCA-R3-PC, 2009 WL
2951145, at *4 (Tenn. Crim. App. Aug. 21, 2009) (stating that petitioner is not entitled to
relief for counsel’s failure to file a bill of particulars when trial counsel knew the time line
alleged by the State, and petitioner failed to demonstrate either prejudice or that he would
have proceeded to trial if counsel had filed the motion.) Petitioner is not entitled to relief on
this issue.

        Petitioner next alleges that trial counsel was ineffective for failing to retain an expert
witness to review the statements of the victim and determine whether she may have been
“coached.” The post-conviction court found that the victim made an unrecorded statement
to her mother implicating petitioner, transcribed (but not videotaped) statements to the
Department of Children’s Services and to the forensic interviewer with the Children’s
Advocacy Center, and a recorded statement to law enforcement. Trial counsel reviewed all
of the statements and saw no indication that the victim was improperly influenced. Counsel
sought an expert to testify generally about the competency of a three-year-old child witness.
The post-conviction court also noted that the victim’s statements were supported by the
physical evidence in the case.

                                              -11-
        The post-conviction court found that trial counsel performed “within the range of
competence demanded of attorneys in criminal cases with respect to this issue.” We agree.
The record reflects that because of trial counsel’s diligence in questioning the competence
of the victim, the State offered to dismiss the two counts of rape of a child to protect the
victim from further distress. Trial counsel’s performance was not deficient in this regard.
Further, we note that petitioner failed to present evidence that he was prejudiced by trial
counsel’s representation. Petitioner did not present an expert to testify about the competency
of the child witness in this case. See Kevin Jones v. State, No. W2009-02051-CCA-R3-PC,
2010 WL 4812773, at *4 (Tenn. Crim. App. Nov. 19, 2010) (noting that, in a post-conviction
case, where trial counsel testified about why he did not believe that a medical expert was
necessary at trial, and petitioner failed to present evidence at post-conviction hearing to show
that counsel’s belief was mistaken, petitioner failed to establish ineffective assistance of
counsel). We conclude that petitioner has failed to establish either deficient performance by
his trial counsel or prejudice.

       In petitioner’s final claim of ineffective assistance of counsel, he alleges that trial
counsel failed to adequately investigate and explain the case to him. The post-conviction
court made findings of fact detailing the testimonies of trial counsel and petitioner, both of
which demonstrate that trial counsel fully informed petitioner regarding the offenses with
which he was charged, the evidence against him, the status of his alibi defense, and trial
counsel’s efforts to try to have the victim declared incompetent as a witness. The court’s
findings are supported by the record. Despite his testimony that counsel met with him only
a few times in short meetings, petitioner acknowledged on cross-examination that counsel
discussed his case with him. Petitioner failed to present evidence that trial counsel failed to
inform him or explain to him any aspect of his case.

        The post-conviction court found that the attorneys sufficiently investigated petitioner’s
case, reviewed it with him, and provided petitioner with adequate representation. Trial
counsel investigated a possible alibi defense for petitioner but was unsuccessful. She
pursued the theory of having the witness declared incompetent but could not find an expert
who would so testify. Counsel reviewed all of the evidence with petitioner. In light of trial
counsel’s efforts and the overwhelming physical evidence against petitioner, he was not
prejudiced by counsel’s representation at trial. Again, petitioner has failed to demonstrate
either prong of ineffective assistance of counsel under Strickland and Baxter. See Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (the only evidence that trial counsel
failed to properly investigate his case was petitioner’s conclusory statement; petitioner should
present witnesses at hearing to corroborate his assertion).




                                              -12-
                        B. Claim Alleging Involuntary Guilty Pleas

       Petitioner’s claim that “the outcome of the plea process was prejudiced by trial
counsel’s errors” is merely an argument encompassing the “prejudice” prong of Strickland,
which we have thoroughly addressed above. Petitioner’s final claim, that “the trial judge
erred in accepting the plea when defense counsel told him during the plea[ ] that appellant
‘did not want to do it,’” is essentially an argument that his guilty plea was involuntarily
entered.

         A guilty plea must be entered knowingly, voluntarily, and intelligently. Lane, 316
S.W.3d at 562; see North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v. Alabama, 395
U.S. 238, 242-44 (1969). If a plea is not knowingly, voluntarily, and intelligently entered,
the guilty plea is void because appellant has been denied due process. Lane, 316 S.W.3d at
562 (citing Boykin, 395 U.S. at 243 n.5). To make such a determination, the court must
examine “whether the plea represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant.” Id. Courts should consider the following factors
when ascertaining the validity of a guilty plea: (1) the defendant’s relative intelligence; (2)
the defendant’s familiarity with criminal proceedings; (3) the competency of counsel and the
defendant’s opportunity to confer with counsel about alternatives; (4) the advice of counsel
and the court about the charges and the penalty to be imposed; and (5) the defendant’s
reasons for pleading guilty, including the desire to avoid a greater penalty in a jury trial. Id.
(quoting Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006)). “[A] plea is not voluntary
if it results from ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle
or blatant threats.’” Id. at 563 (quoting Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993)). Thus, the transcript of the plea colloquy must affirmatively show that a defendant’s
decision to plead guilty was both voluntary and knowledgeable. Id. The trial court must
ensure that the defendant entered a knowing and intelligent plea by thoroughly “‘canvass[ing]
the matter with the accused to make sure that he has a full understanding of what the plea
connotes and of its consequences.’” Id. (quoting Blankenship, 858 S.W.2d at 904).

       To ensure that defendants’ guilty pleas are voluntarily, knowingly, and intelligently
entered, Rule 11 of the Tennessee Rules of Criminal Procedure sets forth, in pertinent part,
the requirements for guilty pleas:

       Before accepting a guilty or nolo contendere plea, the court shall address the
       defendant personally in open court and inform the defendant of, and determine
       that he or she understands, the following:

              (A)     The nature of the charge to which the plea is offered;



                                              -13-
               (B)    the maximum possible penalty and any mandatory minimum
                      penalty;

               (C)    if the defendant is not represented by an attorney, the right to be
                      represented by counsel--and if necessary have the court appoint
                      counsel--at trial and every other stage of the proceeding;

               (D)    the right to plead not guilty or, having already so pleaded, to
                      persist in that plea;

               (E)    the right to a jury trial;

               (F)    the right to confront and cross-examine adverse witnesses;

               (G)    the right to be protected from compelled self incrimination;

               (H)    if the defendant pleads guilty or nolo contendere, the defendant
                      waives the right to a trial and there will not be a further trial of
                      any kind except as to sentence;

               (I)    if the defendant pleads guilty or nolo contendere, the court may
                      ask the defendant questions about the offense to which he or she
                      has pleaded. If the defendant answers these questions under
                      oath, on the record, and in the presence of counsel, the answers
                      may later be used against the defendant in a prosecution for
                      perjury or aggravated perjury; and

               (J)    if the defendant pleads guilty or nolo contendere, it may have an
                      effect upon the defendant’s immigration or naturalization status,
                      and, if the defendant is represented by counsel, the court shall
                      determine that the defendant has been advised by counsel of the
                      immigration consequences of a plea.

Tenn. R. Crim. P. 11(b)(1).

       Rule 11 also requires that the trial court ascertain that the plea is “voluntary and is not
the result of force, threats, or promises,” other than those contained in the plea agreement.
Tenn. R. Crim. P. 11(b)(2). In addition, Rule 11 requires the trial court to inquire “whether
the defendant’s willingness to plead guilty results from prior discussions between the district
attorney general and the defendant or the defendant’s attorney.” Id. Finally, the trial court

                                               -14-
must confirm that there is a factual basis for the plea. Tenn. R. Crim. P. 11(b)(3). Tennessee
case law has further refined the requirements of a plea colloquy to include informing a
defendant and ensuring that he understands that different or additional punishment may result
from his guilty plea due to prior convictions or other factors and that the resulting conviction
may be used for enhancement purposes in any subsequent criminal actions. Lane, 315
S.W.3d at 564 (citing Howell, 185 S.W.3d at 331).

        After a full hearing, the post-conviction court found that petitioner’s guilty plea was
knowingly, voluntarily, and intelligently entered. The transcript of the plea colloquy
confirms that the trial court strictly followed the mandates of Rule 11 of the Tennessee Rules
of Criminal Procedure and applicable state and federal law. When the trial court had
concerns stemming from petitioner’s demeanor at the hearing, it immediately halted the
proceedings to confer with trial counsel. Trial counsel assured the court that petitioner had
been evaluated and found to be competent but that he appeared to have reservations about
pleading guilty because “he wanted it to magically go away.” After confirming petitioner’s
mental state, the trial court continued. When the trial court asked petitioner if he understood
that he would give up his right to appeal by pleading guilty, he responded affirmatively. The
trial court asked petitioner if he believed that it was in his best interest to plead guilty, and
petitioner again answered affirmatively.

       Post-conviction counsel questioned trial counsel in detail about the guilty plea
proceedings. Trial counsel explained that when she informed the trial court that petitioner
did not want to enter a plea, she meant that petitioner neither wanted to go to trial nor enter
a plea; he just wanted the case to go away. Trial counsel testified that she thought that
petitioner knew that entering a guilty plea was the best course of action but that he was not
happy about it. Petitioner asserts that he entered his plea based on the misleading advice of
counsel that he would be able to appeal the guilty plea. He testified that he followed the
advice of counsel over the warning of the trial court that he would not be able to appeal.

        In denying relief, the post-conviction court implicitly found that petitioner’s testimony
at the hearing was not credible. The court heard conflicting testimony from trial counsel and
petitioner on this issue and credited trial counsel. “The trial court is the best source to
determine the demeanor, credibility of witnesses, and the nuances of the evidentiary
hearing.” State v. Taylor, 968 S.W.2d 900, 905 n.3 (Tenn. Crim. App. 1997). Moreover,
petitioner’s testimony at the post-conviction hearing was in direct conflict with his testimony
at the guilty plea hearing. “A petitioner’s testimony at a guilty plea hearing ‘constitute[s] a
formidable barrier’ in any subsequent collateral proceeding because ‘[s]olemn declarations
in open court carry a strong presumption of verity.’” Bruce S. Rishton v. State, No. E2010-
02050-CCA-R3-PC, 2012 WL 1825704, at *17 (Tenn. Crim. App. May 21, 2012) (quoting
Blackledge v. Allison, 431 U.S. 63, 74 (1977)). In this case, the post-conviction court

                                              -15-
credited petitioner’s testimony during the guilty plea hearing over his testimony at the post-
conviction hearing. In sum,

       [t]he evidence does not preponderate against the findings of the
       post-conviction court. It appears the petitioner is suffering from a classic case
       of ‘Buyer’s Remorse,’ in that he is no longer satisfied with the plea for which
       he bargained. A plea, once knowingly and voluntarily entered, is not subject
       to obliteration under such circumstances.

Robert L. Freeman v. State, No. M2000-00904-CCA-R3-PC, 2002 WL 970439, at *2 (Tenn.
Crim. App. May 10, 2002).

                                      CONCLUSION

       After a thorough review of the record, the parties’ briefs, and the applicable case law,
we affirm the judgment of the post-conviction court.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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