        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs October 15, 2013

                  ALLEN MASSEY v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Bradley County
                     No. 12-CR-181     Carroll L. Ross, Judge


               No. E2013-00908-CCA-R3-PC - Filed December 20, 2013


       The petitioner, Allen Massey, appeals from the denial of post-conviction relief by the
Criminal Court of Bradley County. Pursuant to a plea agreement, the petitioner entered
guilty pleas to promotion of manufacturing methamphetamine and possession of
methamphetamine, for which he received suspended sentences of four years and eleven-
months and twenty-nine days, respectively. In this appeal, the petitioner argues that he
received ineffective assistance of counsel and that his guilty pleas were involuntarily and
unknowingly entered. Upon our review, we affirm the judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R. and J EFFREY S. B IVINS, JJ., joined.

David K. Calfee, for the Defendant-Appellant, Allen Massey.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Wayne Carter, District Attorney General; and Stephen Hatchett, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

      On December 8, 2008, the petitioner entered a guilty plea to the above listed offenses.
The factual basis supporting the guilty pleas was as follows:

              On [November 3, 2008], based on a confidential source, the [petitioner]
       was stopped as a passenger in a car, and at that time a search was made of that
       vehicle, and was found in it one, 10-pound bag of organic iodine, digital
       scales, bags used for resale, lithium batteries, rubber bands, and numerous
        unknown pills. Also at that time, he was run through the computer system for
        Tennessee Methamphetamine Information System, and it was revealed that he
        had purchased 14.4 grams of pseudoephedrine. That’s the basis of the
        promotion, as well as there was a small amount of methamphetamine found on
        him at that time, which is the basis of the . . . . simple possession.


The petitioner agreed to the above factual basis and affirmed that he was pleading guilty
because he was, in fact, guilty of the offenses. Prior to entering the above guilty plea, the
petitioner said that trial counsel had reviewed the guilty plea paperwork with him and that
he understood the ramifications of entering the guilty plea. He acknowledged that he signed
the guilty plea paperwork, waived his right to a jury trial, and waived his right to appeal his
case.

        Additionally, the petitioner agreed that he discussed resolving his case, consistently
with the plea agreement, at the general sessions court level. The trial court specifically asked
the petitioner whether “the offer made by the State today [was] the same as what they told
you [in general sessions court].” The petitioner replied, “Yes, Sir.” Although trial counsel
did not represent the petitioner in general sessions court, he agreed that the settlement offer,
as reflected in his file, was the same. The petitioner said that no one threatened him or made
any promises to him to force him to plead guilty. He also said that he was satisfied with how
trial counsel handled his case. Asked if there was anything trial counsel should have done
that he had not done, the petitioner replied, “He did great.” Finally, the petitioner agreed that
he wanted to proceed with the guilty plea, was not under the influence of alcohol or drugs,
and had not taken any medication within the last twenty-four hours.

       On October 6, 2009, the petitioner, acting pro se, filed a one-page, handwritten
document entitled “Post Conviction Motion to Withdraw Plea.” The petitioner asserted three
grounds for relief (1) that he was not advised that he would be indicted by the federal
government; (2) that he received “insufficient counsel”; and (3) that he was under the
influence of medication prescribed by the Bradley County jail. On May 10, 2012, the trial
court entered an order finding the petitioner indigent and appointing counsel.1

       At the January 15, 2013 post-conviction hearing, trial counsel testified that he
represented the petitioner in criminal court and another attorney represented the petitioner
in general sessions court. Trial counsel acknowledged that his representation of the


       1
           The order noted that the court had only recently received the petition due to “an inadvertent
oversight.” Additionally, an amended petition for post-conviction relief was filed; however, the issues
therein were the same as alleged in the petitioner’s pro se petition.

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petitioner was brief. He explained that the petitioner was arraigned and pleaded guilty in this
case on the same day, December 8. Trial counsel spoke with the petitioner for
“approximately 10, 15 minutes” and expressed his desire for additional time to prepare the
case. He acknowledged that he did not have “full discovery” prior to the petitioner entering
the guilty plea, but he reviewed the State’s file and explained:

       I usually, in those types of cases, if we’re trying to handle something, I always
       try to always review that file, even though, regardless if my client’s wanting
       to enter a plea or not. I want to at least for our own record to be able to review
       it.

       ....

       . . . I’m always reluctant to [enter a guilty plea on arraignment day], but again,
       if my client is adamant, and as I say, I take the opportunity to review the file
       quickly to, to ascertain whether or not at least to do a brief discovery, and I
       also make known to them that I have not had the chance to get the discovery.

        On the day of the guilty plea, the petitioner advised trial counsel that he had a pending
felony offense and a violation of probation in Hamilton County. The petitioner also told trial
counsel that he was working with the “DTF, and [the petitioner] thought he was going to be
able to take care of those charges.” Trial counsel advised the petitioner that the “effect of
this plea . . . would probably have an effect on the charges that were pending . . . . [and] that
they could use that against him on [the Hamilton County] charges.” Despite trial counsel’s
advice, the petitioner “still indicated that he had had a plea agreement out of sessions court
with [sessions counsel], that he still wanted to carry through on that plea agreement.” The
petitioner also advised trial counsel that he had “potential charges in federal court.” Trial
counsel told the petitioner that his guilty plea to the instant offenses “could affect his
sentencing in federal court.” Trial counsel said the petitioner was “adamant about wanting
to proceed on that day.”

        The petitioner testified that he entered a guilty plea to federal methamphetamine
offenses on May 27, 2010, and was currently serving a sentence of fourteen years in federal
prison. The federal judgment of conviction was admitted as an exhibit to the hearing. The
petitioner agreed that he was arrested in November 2008 for the instant offense. He recalled
that he appeared in general sessions court and was represented by general sessions counsel.
The petitioner could not remember the details of his discussions with general sessions
counsel and explained his memory loss as follows:




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       Well, the main reason it was difficult for me to remember at the time was
       because I’d been doing meth[amphetamine] for some time, day and night, day
       and night, day and night. So my recollection of, of those days back then are
       pretty vague.

The petitioner recalled that general sessions counsel would “get [him] four years probation
and send [him] home, and that would be it.” The petitioner generally recalled the
involvement of federal authorities and agents from the Georgia Bureau of Investigation, but
he could not recall any details. He said he remembered one agent and provided him with
some names.

       Post-conviction counsel continued to ask the petitioner questions about his
recollection from general sessions court. The petitioner vaguely recalled signing the general
sessions waiver and plea agreement form, which was admitted as an exhibit. The form
provided that the petitioner agreed to plead guilty to promotion of methamphetamine and
possession of methamphetamine for resale in exchange for a suspended sentence of four
years and 364 days, respectively. The form also noted that the petitioner was “to undergo
in-patient treatment at CADIS, if provides info to GBI, and they say it is sufficient, will
reduce to 3 [years] 6 [months] suspended sentence.” The remaining charges were to be
dismissed. The petitioner could not remember telling general sessions counsel or trial
counsel about any potential federal charges. Had he known he would have been federally
indicted, the petitioner would not have entered his pleas to the state offenses. The petitioner
said that the instant offenses were used as an “enhancement” to his federal sentence.

        The petitioner explained the reason why he wanted to pursue post-conviction relief
as follows:

       The reason I filed this is the way this, the way everything happened here is I
       didn’t feel like I was guilty of these charges, and when it did give me a 10-year
       enhancement on my case, I filed it in, on my federal case I filed it, hoping to
       get this dropped in order to drop back to a 10-year, just a regular 10 to life is
       what I would have signed had this case not been on me. They used this as an
       enhancement and give me a 20 to life. So, therefore, if – I was hoping if I
       could get this taken care of here, it would cut my federal time.

The petitioner said that when he was incarcerated in Bradley County, he “somehow . . . got
to medical and was put on Paxil[.]” He became extremely sick as a result of being given this
medication by the jail and suffered “lockjaw or something . . . [and] was biting down on [his]
teeth and couldn’t hardly talk.” On cross-examination, the petitioner conceded that he had
other felonies that may have served to enhance his federal sentence.

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        Based on the above proof, the post-conviction court determined that the petitioner
failed to present sufficient evidence in support of the allegations in his petition and that his
guilty pleas were knowingly and voluntarily entered. The court entered a written order
denying the petition. The petitioner now appeals.

                                         ANALYSIS

       I. Alleged Ineffective Assistance of Counsel. The petitioner contends that the post-
conviction court erred in denying post-conviction relief. Specifically, the petitioner argues
that he received ineffective assistance of counsel based on trial counsel’s failure to fully
investigate his case. In response, the State contends that the proof adduced at the post-
conviction hearing does not show that the petitioner would have proceeded to trial and
declined the four-year suspended sentence and dismissal of the remaining charges, had
counsel conducted a full investigation of his case. For the reasons that follow, we agree with
the State.


        In resolving this issue, we are guided by the following well settled law pertaining to
post-conviction relief. Post-conviction relief is only warranted when a petitioner establishes
that his or her conviction is void or voidable because of an abridgement of a constitutional
right. T.C.A. § 40-30-103 (2006). The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court's
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992)).




                                              -5-
       In Vaughn, the Tennessee Supreme Court repeated well-settled principles applicable
to claims of ineffective assistance of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

        In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L. Ed.2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975)). “[A]
failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. Indeed, a court need not address the components in any
particular order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S.
at 697).

        A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting
Strickland, 466 U.S. at 694). Within the context of a guilty plea, a petitioner “must show that
there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct.
366, 88 L.Ed.2d 203 (1985); see also, Serrano v. State, 133 S.W.3d 599, 605 (Tenn. 2004).

       We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential and 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) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how

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best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However, we note
that this “‘deference to matters of strategy and tactical choices applies only if the choices are
informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d 508, 515
(Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).

        In denying relief on this issue, the post-conviction court reasoned as follows:

               At the hearing in this cause, trial counsel testified that the [petitioner]
       wanted to plead to the charges pursuant to an agreement that had already been
       made by him, the petitioner, at general sessions court. While there was some
       discussion of potential charges in federal court, the petitioner had indicated
       that he thought he could take care of those charges in federal court by working
       with law enforcement personnel involved in those cases.

                The alternative the [petitioner] had was to ask for a trial in the charges
       in [these] cases, and then run the risk of getting an even greater sentence at that
       trial, all of which could still have been used to enhance his federal charges.

              The court finds that the Petitioner offered no evidence at his hearing
       that would support his contention that “he was actually prejudiced by his
       attorney’s performance, [and] that but for the counsel’s ineffectiveness that
       guilty plea would not have been agreed to.”

               There was no evidence to show that counsel was in any way ineffective
       in his defense of the petitioner.

        Nothing in the record preponderates against the findings of the post-conviction court.
In support of this issue, the petitioner points to the minimal contact he had with trial counsel
prior to his guilty pleas and trial counsel’s failure to complete discovery or investigate his
case. However, rather than any deficiency in trial counsel’s performance, the petitioner’s
testimony at the post-conviction hearing focused solely upon his displeasure with the
enhancement of his federal sentence as a result of the instant offense. The record shows that
the petitioner was aware of the potential for federal charges at the time of the plea in this
case. Trial counsel advised the petitioner that pleading guilty to the instant offenses would
likely affect his other state and federal charges. Nevertheless, the petitioner insisted upon
accepting the plea agreement and entering the guilty pleas that day. As noted by the post-
conviction court, the petitioner had agreed to the terms of his plea agreement in general
sessions court, nearly a month prior to entering his guilty pleas in this case. The general
sessions court guilty plea form was consistent with the terms of the instant plea agreement
and noted that the State would reduce the petitioner’s sentence even further if he provided

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sufficient information to the Georgia Bureau of Investigation. Prior to the guilty plea, trial
counsel examined and reviewed the State’s file. Significantly, the petitioner does not explain
in his petition or his brief to this court what additional investigation he claims trial counsel
should have performed. Because the petitioner has failed to establish that he would have
declined the State’s settlement offer of a suspended sentence and proceeded to trial but for
trial counsel’s alleged failure to fully investigate his case, the petitioner is not entitled to
relief.

       II. Guilty Plea. Next, the petitioner asserts that the post-conviction court erred in
concluding that his guilty pleas were knowingly, voluntarily, and intelligently entered. The
petitioner argues that he was suffering from “illegal drug abuse, the effects of his withdrawal
from said drug abuse, and the effects of medication prescribed to him while incarcerated”
when he entered his guilty pleas. In response, the State contends that the post-conviction
court properly denied relief. We agree with the State.

       When analyzing the validity of a guilty plea, we follow the federal landmark case of
Boykin v. Alabama, 395 U.S. 238 (1969), and the Tennessee landmark case of State v.
Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on other grounds by rule as stated in
State v. Wilson, 31 S.W.3d 189, 193 (Tenn. 2000). State v. Pettus, 986 S.W.2d 540, 542
(Tenn. 1999). In Boykin, the United States Supreme Court held that a trial court may not
accept a guilty plea unless there is an affirmative showing that the guilty plea was “intelligent
and voluntary.” 395 U.S. at 242. When accepting a guilty plea, the trial court is responsible
for “canvassing the matter with the accused to make sure he has a full understanding of what
the plea connotes and of its consequence.” Id. at 244. In Mackey, the Tennessee Supreme
Court held that “the record of acceptance of a defendant’s plea of guilty must affirmatively
demonstrate that his decision was both voluntary and knowledgeable, i.e., that he has been
made aware of the significant consequences of such a plea; otherwise, it will not amount to
an ‘intentional abandonment of a known right.’” 553 S.W.2d at 340.

        The Tennessee Supreme Court has emphasized that a plea is not voluntary if it is the
result 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). A trial court must look at a number of circumstantial factors before
determining whether a guilty plea is voluntary and intelligently made. Id. These factors
include the following:

       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

                                               -8-
       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.

Id. (citing Caudill v. Jago, 747 F.2d 1046, 1052 (6th Cir. 1984)).

       In denying relief on this issue, the post-conviction court stated, in pertinent part, the
following:

              In entering his plea in this matter, [the petitioner] signed the standard
       plea papers required for pleading guilty. These plea papers indicated that he
       understood the charges against him, that he understood and waived his rights
       to both a jury trial and an appeal should he be found guilty, that he had fully
       discussed these matters with his attorney, and that he fully understood the offer
       made to him by the state and which he accepted pursuant to his plea.

               In addition to these plea papers, the court, by way of review, went
       through each of these rights orally and on the record to insure that the
       [petitioner] knew what his rights were and what charges he was pleading to.

              In that plea proceeding, the [petitioner] repeatedly stated that he
       understood what his rights were, that he was waiving those rights, that he
       understood what the state’s offer of settlement was, and that he was accepting
       that offer rather than facing the prospects of going to trial, and that, as has
       been earlier stated, the offer made to him by the state on the date of his plea
       was identical to the offer they made him at general sessions court when he
       bound his case over to the grand jury.

              ...

                 Petitioner also complains that, because of some alleged drug usage, he
       did not know what he was doing when he entered the plea in this cause. The
       court cannot help but note that in the Petitioner’s original handwritten Petition
       . . . the assertion was that the petitioner was ‘under the influence of medication
       prescribed by the Bradley County Jail.’[original footnote omitted]. At the
       hearing in this cause, however, the petitioner testified to his regular usage of
       methamphetamine over the years, but no proof was produced by him as to any
       prescribed medication that may have influenced his ability to know what he
       was doing when he entered the plea.

The post-conviction court then noted the following colloquy from the guilty plea hearing:

                                              -9-
       The Court: Have you been satisfied with your attorney’s handling of this
       matter?

       The Petitioner: Yes, sir, I have.

       The Court: Is there anything he should have done that he has not done in
       preparation of this resolution?

       The Petitioner: He did great.

       The Court: Do you want to ask him anything at all before we proceed?

       The Petitioner: No, sir.

       The Court: Is there anything you wish to ask the Court before we proceed?

       The Petitioner: No, sir.

       The Court: Are you here today under the influence of alcohol?

       The Petitioner: No, sir.

       The Court: Or of drugs?

       The Petitioner: No, sir.

       The Court: Have you taken any medication at all in the last 24 hours?

       The Petitioner: No, sir.


        Upon our review of the guilty plea hearing transcript and the evidence adduced at the
post-conviction hearing, we conclude that the post-conviction court properly determined that
the petitioner’s guilty pleas were knowingly, voluntarily, and intelligently entered. As
reflected above, the record shows that the petitioner was specifically questioned and denied
being under the influence of drugs, alcohol or medication at the guilty plea hearing. At the
post-conviction hearing, the petitioner testified that he was taking Paxil at the time of the
guilty plea, which caused him to experience “lock-jaw” or problems with his mouth. He also
said that he had been using methamphetamine on a daily basis for some time prior to his
arrest in this case, which caused memory loss. However, the petitioner did not say or offer

                                            -10-
proof regarding how his use of Paxil or his prior drug use impaired his ability to enter his
guilty pleas. In other words, even if the petitioner’s prescribed drug use at the time of the
guilty plea and his illegal drug use prior to the guilty plea were true, there was no proof
presented showing that the petitioner was unable to appreciate the consequences of entering
the guilty pleas in this case. As such, the petitioner has failed to prove by clear and
convincing evidence that his guilty pleas were constitutionally infirm. Accordingly, he is not
entitled to relief.


                                      CONCLUSION

       Discerning no error, we conclude that the post-conviction court properly determined
that the petitioner received effective assistance of counsel and that the petitioner’s guilty
pleas were knowingly, voluntarily, and intelligently entered. The judgment of the post-
conviction court is affirmed.


                                                    ___________________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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