                                                                                          05/28/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 15, 2020

                LUIS JORGE DIAZ v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Davidson County
               No. 2012-B-1673    Angelita Blackshear Dalton, Judge



                             No. M2019-01000-CCA-R3-PC



The Petitioner, Luis Jorge Diaz, was convicted of six counts of aggravated sexual battery
and subsequently sentenced to twenty years in confinement. See Tenn. Code Ann. § 39-
13-504. Following an unsuccessful direct appeal, the Petitioner filed a petition seeking
post-conviction relief, alleging, among other things, that trial counsel was ineffective
because of his failure to communicate multiple plea offers from the State to the
Petitioner. The post-conviction court denied the petition, and the Petitioner filed a timely
appeal. Following our review, we affirm.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.

Jay Umerley (on appeal); and Andrew Chad Davidson (at trial), Nashville, Tennessee, for
the appellant, Luis Jorge Diaz.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker,
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Tammy
Haggard Meade, Assistant District Attorney General, for the appellee, State of
Tennessee.

                                    OPINION
                              FACTUAL BACKGROUND

       This case concerns a stepfather’s intimate touching of his six-year-old
stepdaughter (“the victim”). Following a jury trial, the Petitioner was convicted of six
counts of aggravated sexual battery and sentenced to ten years on each conviction, with
two counts to be served consecutively, for a total effective sentence of twenty years’
incarceration. See State v. Luis Jorge Diaz, No. M2014-01685-CCA-R3-CD, 2015 WL
5472288, at *1 (Tenn. Crim. App. Sept. 18, 2015), perm app. denied (Tenn. Feb. 18,
2016).

    A. Trial

        As relevant to the issues raised in this appeal, the facts underlying his convictions
are as follows:

        A. R.1, the victim’s grandmother, allowed her daughter, the victim’s mother, C. D.,
along with the victim, the victim’s siblings, and the Petitioner, to live with her
intermittently during 2010. The victim’s mother and the Petitioner had met a few years
before in 2008. During this stay, the victim’s grandmother observed the Petitioner
interact “pretty well” with the children, but the Petitioner seemed to focus most of his
attention on the victim. While staying at A.R.’s house, the victim, C.D., the Petitioner,
and the other children would all sleep in the same room.

       Irene Reed, a family friend, had been keeping some of the children, but returned
the children to A. R.’s home when the family began staying there.

        Upon moving out of A.R.’s home, A. R. continued to notice the Petitioner’s
attention towards the victim. A. R. described the family’s living situation as nomadic,
with the family moving from houses to apartments intermittently. Around Halloween
2011, C. D. and her children once again moved back into A. R.’s home. A. R. did not
allow the Petitioner to live there at this time.

       Around the same time, one of C. D.’s older sons told A. R. that the victim had
made allegations of sexual abuse against the Petitioner. A day or two later, the victim
called A. R. to tell her the she was going to Mexico with the family. However, a few
days later, C. D., the victim, and other children returned to A. R.’s home and C. D. filed
an official report on the victim’s allegations.

        At trial, the victim testified that she was eight years old at the time, and she
identified the Petitioner. The victim asserted that the incidents in question took place at
the family’s old apartment and at A. R.’s home. In the old apartment, the victim and the
Petitioner slept on the floor together, and three incidents happened there. The Petitioner

1
  It is the policy of this court to protect the identity of minors who were the victims of sexual crimes; as
such, we will refer to the victim’s immediate family members by their initials.

                                                    -2-
pushed his genitalia against the victim’s genitalia; the Petitioner used the victim’s hand to
“go up and down” his penis; and the victim awoke one night to find that her hand was
placed inside the Petitioner’s pants. Additionally, an incident took place in the apartment
living room when the Petitioner touched the victim’s genitalia with his fingers and in the
kitchen when the Petitioner sat the victim on a counter in front of him, but she could not
recall what happened next. The incident at A. R.’s home took place in the bathroom
when the Petitioner grabbed the victim’s hand and moved it “up and down” his penis.

        The victim told her mother and her grandmother about these incidents. The victim
stated that no one asked her to make these allegations.

       Jill Howlett testified that she worked as a social worker for Our Kids Center and
had interviewed the victim. The victim told Ms. Howlett that the Petitioner had touched
her genital area and buttocks with his genitals, over her clothing, on multiple occasions.
Additionally, the Petitioner had touched the inside of the victim’s genital area with his
fingers. The victim told Ms. Howlett that the Petitioner had put her hand on his penis and
would move it back and forth. The Petitioner would make the victim hug and kiss him
every night, and the Petitioner would lick her teeth when he kissed her.

       Metro Nashville Police Detective John Ferrell testified that he was present for the
Petitioner’s interview. During this interview, the Petitioner explained that the victim’s
allegations were a product of the victim’s older brothers’ influence, C. D.’s anger toward
the Petitioner for ending their relationship, and the victim’s anger for witnessing a
physical and verbal altercation between Petitioner and C. D. on Halloween 2011.

       The Petitioner called C. D. to testify in his defense at trial. C. D. asserted that the
Petitioner became controlling of her and the victim about a year after the two were
married. C. D. explained that the Petitioner did not like her older children and eventually
the relationship ended. A few weeks after the separation, the victim told her about the
allegations. When C. D. asked the victim why she did not tell her about the abuse sooner,
the victim replied that Petitioner had told her he would find out, and she was afraid C. D.
would be angry.

       C. D. did not cut off contact with the Petitioner after the victim’s allegations. C.
D. continued to see the Petitioner and wrote him letters while he was in jail. On cross-
examination, C. D. asserted that she initially tried to protect the Petitioner and had
planned to drive with the Petitioner and her children to Mexico to protect him from
prosecution. However, she returned when the victim said she would be fine with the
Petitioner as long as he was not in her bed.


                                             -3-
        Seccorro Moreno, the Petitioner’s mother, testified that the family lived with her
for a time and that the Petitioner treated all of C. D.’s younger children the same. Ms.
Moreno asserted that the Petitioner was very upset when C. D. and the children moved
into A. R.’s home without him. Ms. Moreno described an altercation between C. D. and
the Petitioner on Halloween 2011.

       The Petitioner testified in his own defense. The Petitioner and C. D. had one
biological child together. After C. D.’s older children came to live with the family, the
Petitioner asserted he began locking doors in the home to keep the younger children from
being exposed to inappropriate language and content from the older children. The
Petitioner had arguments with the older children. Soon after C. D. and the children
moved into A. R.’s home, the Petitioner told C. D. he wanted to end their relationship.
The Petitioner testified that C. D. responded by threatening to call the police and telling
them the Petitioner had raped her. Soon after, C. D. told the Petitioner about the
allegations the victim had made against him. The Petitioner spoke about the altercation
on Halloween 2011.

       The Petitioner asserted that the victim was lying and that he would never hurt her.
He agreed that he sometimes slept on the floor with the victim, but he treated all of the
children the same. However, on cross-examination he recanted and said he slept in bed
with C. D.

    B. Post-Conviction Hearing

        On January 9, 2017, the Petitioner filed a pro se petition seeking post-conviction
relief. Following the appointment of counsel, the Petitioner filed an amended petition on
February 27, 2017. On May 25, 2017, a second amended petition was filed, wherein the
Petitioner alleged he received ineffective assistance of counsel in the following ways: (1)
failure to communicate multiple plea offers from the State; (2) failure to withdraw or
attempt to withdraw from the case when communication became an issue; and (3) failure
to properly investigate potential witnesses.2 The post-conviction court held an
evidentiary hearing on May 3, 2019.

        Trial counsel testified that he had been practicing law for twenty-three years and
practiced almost exclusively criminal law for twenty years. Prior to the Petitioner’s case,
trial counsel had represented clients on rape and sexual harassment charges, including
those involving children. Trial counsel estimated that he represented the Petitioner for

2
 Although the Petitioner raised several other grounds of ineffectiveness in his multiple petitions for post-
conviction relief he has abandoned those on appeal. Accordingly, these issues are waived.

                                                    -4-
“just a little over two years,” but could not be sure because he disposed of files after “a
certain amount of years,” he recalled that he worked “seventy to eighty hours total” on
the Petitioner’s case.

        Trial counsel first met with the Petitioner while he was in custody. Trial counsel
testified that the Petitioner maintained that he “didn’t do any of the things he was accused
of” and did not want to serve jail time. Trial counsel recalled “several [plea] offers” prior
to trial. The Petitioner subsequently made bond, and trial counsel began meeting with
him at trial counsel’s office. Trial counsel could not recall how many times he met with
the Petitioner, but estimated it to be “at least seven or eight times.” Trial counsel’s
assistant, who served as an interpreter, was also present during the meetings. Trial
counsel testified that the Petitioner would sometimes bring family members to the
meetings. Trial counsel testified that the Petitioner did not provide him with a list of
potential witnesses.

        Trial counsel asserted that the first plea offer was “some sort of split confinement,
but it was very[,] very loose” and it “was never a firm offer.” After discussing the loose
offer, the Petitioner rejected it. The second offer was “a ten-year offer at a percentage.”
The Petitioner refused this offer, and the offer was subsequently rescinded after the State
spoke with the victim. Trial counsel could not recall any other plea offers and testified
that “a twenty-year-offer at thirty-five percent [] would have [been] rejected,” reasoning
that the Petitioner “didn’t even want to go to jail when [they] were talking about a one-
year [plea offer] and then [the Petitioner] rejected the ten years at a percentage.” At the
time of trial, the Petitioner still maintained his innocence.

        Trial counsel asserted that he explained parole and parole eligibility to the
Petitioner and “someone else that was with [the Petitioner]” during a meeting at trial
counsel’s office. Trial counsel could not recall the Petitioner’s immigration status, but he
testified that he usually explained the immigration consequences of these types of
proceedings because his office had some experience with immigration work.

       Trial counsel testified that the Petitioner had an issue paying for his entire retainer,
but claimed that he would not “abandon somebody close to trial because of a financial
issue[.]” Trial counsel averred that he did not become upset with the Petitioner over lack
of payment and it was not an issue. Trial counsel could not remember the Petitioner’s
asking him to withdraw nor could he recall filing a motion to withdraw. Trial counsel did
not represent the Petitioner at his sentencing hearing. Trial counsel testified that the
Petitioner and the Petitioner’s family “were upset with [] the outcome[] of the trial.”

      Trial counsel testified that his trial strategy was not to attack the victim’s mother
on “outside incidences.” Likewise, trial counsel did not use an audio recording of
                                             -5-
“threatening messages” from C. D. during trial. Trial counsel attempted to create
reasonable doubt by proving that the victim was living in various locations with her
mother and that the Petitioner had “no reason or ability to do some of the things [] he was
charged with.”

       Trial counsel did not interview the victim prior to trial. Trial counsel spoke with
the Petitioner about his charges and discussed the indictment. Trial counsel explained the
possible sentencing range and the judge’s ability for “stack[]” multiple sentences. These
discussions were prompted by the plea offers, which the Petitioner rejected “because he
did not want to go to jail again.”

       On cross-examination, trial counsel confirmed that he received discovery in the
Petitioner’s case and reviewed it with the Petitioner. Trial counsel reviewed the victim’s
forensic interview and informed the Petitioner of the contents. Additionally, trial counsel
and the Petitioner discussed the Petitioner’s decision to testify at trial on his own behalf.
The Petitioner decided to testify, and trial counsel prepared the Petitioner for his
testimony prior to trial.

       Ines Palacios was the Petitioner’s ex-sister-in-law and had known the Petitioner
for eleven years. Ms. Palacios had been present for one meeting between trial counsel
and the Petitioner. While at trial counsel’s office, Ms. Palacios did not hear trial counsel
decline offers on behalf of the Petitioner. However, while present in court with the
Petitioner, Ms. Palacios did recall the Petitioner’s telling trial counsel that he wanted to
accept a plea offer, but she could not understand what the plea offer entailed.

        Seccoro Moreno, the Petitioner’s mother, testified that she was present during
meetings between the Petitioner and trial counsel. During these meetings she “didn’t
understand [the conversation] really well.” Ms. Moreno recalled trial counsel’s relaying
to the Petitioner an offer to serve one year, but trial counsel did not accept the offer
because “[the Petitioner] had already spent six months in jail.” Ms. Moreno asserted that
trial counsel had declined the offer before speaking with the Petitioner.

        Ms. Moreno testified that trial counsel charged her $6,500 to represent the
Petitioner. Ms. Moreno would pay a portion “every week or every two weeks based [on
her] financial standing[.]” Ms. Moreno’s last payment to trial counsel was declined when
trial counsel informed Ms. Moreno that he would not be representing the Petitioner any
longer following the trial. Ms. Moreno did not witness trial counsel’s becoming upset
about lack of payment.

      On cross-examination, Ms. Moreno testified that she paid trial counsel a total of
$5,800. Ms. Moreno did not know how many times the Petitioner and trial counsel met
                                            -6-
prior to trial. After the Petitioner was convicted, Ms. Moreno recalled the Petitioner’s
sending a letter to trial counsel in which he stated he did not want trial counsel to
represent him any longer. Ms. Moreno was not present during the trial and was unaware
of the amount of time or preparation that trial counsel had put into the Petitioner’s case.

       Alberto Diaz, the Petitioner’s brother, testified that he was present during a
meeting at trial counsel’s office. During this meeting, trial counsel “had denied a[] [plea]
offer of one year . . . because [the Petitioner] had already completed six months [in
custody.]” Upon hearing this, Mr. Diaz witnessed the Petitioner become “angry.” Mr.
Diaz asserted that the relationship between the Petitioner and trial counsel began to
“break[] down” prior to trial because trial counsel “wasn’t showing up to court dates” and
“wasn’t communicating with [the Petitioner].”

       On cross-examination, Mr. Diaz explained that the Petitioner was not present
during the meeting at trial counsel’s office because the Petitioner was still in jail. Mr.
Diaz did not visit the Petitioner in jail and was aware of the Petitioner’s reaction to the
rejected plea offer because of telephone conversations with the Petitioner. Mr. Diaz
asserted that the Petitioner was not angry or upset merely because he was in jail. Mr.
Diaz testified that the Petitioner “was always very repetitive saying that he had” not
committed the crimes he was charged with and that the Petitioner was “never willing to
go to jail for it.”

       The Petitioner testified that he hired trial counsel upon learning he was being
investigated for these allegations, but prior to speaking with the police. The Petitioner
recalled signing paperwork with trial counsel retaining him for the amount of $3,500.
The Petitioner asserted that trial counsel did not visit him while he was in jail.

        The Petitioner recalled trial counsel’s relaying a plea offer of twenty years to be
served at thirty-five percent. Trial counsel had rejected this offer before informing the
Petitioner about it. The Petitioner asked trial counsel to speak with the State to “give [the
Petitioner] the same [plea offer] or another better offer.” The Petitioner testified that he
first heard about a split confinement offer during trial counsel’s testimony. Regarding the
plea offer to serve one year at one-hundred percent, the Petitioner asserted that he told
trial counsel he wanted to take the offer, but trial counsel rejected the offer because the
Petitioner had “already [done] six months in county jail and [the Petitioner] shouldn’t
have to do any more time.”

       The Petitioner asserted that he had written trial counsel a letter while in jail
threatening to fire him. After posting bond, the Petitioner asked trial counsel to
withdraw, but trial counsel did not think the judge would allow such a withdrawal “in the
middle of trial.” The Petitioner asked trial counsel to withdraw because “[trial counsel]
                                            -7-
never came to visit [the Petitioner] in jail” and trial counsel became upset because of lack
of payment before trial. Trial counsel had conducted the bond hearing with no advance
payment.

        The Petitioner asserted that trial counsel should have called Ines Palacios and
Irene Reed to testify at trial. According to the Petitioner, Ms. Palacios would have
testified that C. D. sent naked pictures, posing as Ms. Palacios, to men to break up Ms.
Palacios’s relationship with her significant other because the Petitioner was threatening to
leave C. D. Additionally, Ms. Reed would have testified that C. D. “had coerced minors
in the past to charge criminal allegations of sexual conduct[.]” The Petitioner contacted
Ms. Reed and averred that she had never been contacted by trial counsel. The Petitioner
did not call Ms. Reed to testify at the post-conviction hearing.

        The Petitioner and trial counsel had discussed cross-examination of the victim’s
grandmother, A. R., and the Petitioner told trial counsel that A. R. “coerced” other minors
to lie about similar allegations “in a separate unrelated incidence.”

       The Petitioner stated that he and C. D. had a falling out before the Petitioner was
charged and that C. D. “threaten[ed] [the Petitioner] that if [he] reenlisted in the Army
that she was going to make sure” to send him to prison. The Petitioner began recording
conversations with C. D. and claimed that he had discussed these recordings and the
contents with trial counsel. On redirect examination, the Petitioner testified that trial
counsel did not explain that if he were convicted at trial, he would have to serve one-
hundred percent of his sentence.


       On cross-examination, the Petitioner testified that had he “been advised [of] the
consequences of going to trial” and that if he had known or been advised of the “less
probable” likelihood of success at trial under the circumstances, he would have “likely”
taken a plea offer. The Petitioner recalled signing a contract with trial counsel, but had
not asked counsel for a copy for his own records. The Petitioner had paid trial counsel
$3,500 before trial. The Petitioner denied that trial counsel reviewed discovery with him,
but said trial counsel gave him a “stack of documents” after the first day of trial and
instructed the Petitioner to read the documents. The Petitioner did not read the
documents because of his “mental state” at the time. The Petitioner asserted that he and
trial counsel “never discussed the details of the allegations.” In regards to trial
preparation, the Petitioner said trial counsel only provided a baseball analogy.

       The post-conviction court denied the Petitioner’s claims in an order filed June 4,
2019. The post-conviction court found Ms. Moreno and Mr. Diaz’s testimony
“troubling” and credited trial counsel’s testimony that he relayed all plea offers to the
                                            -8-
Petitioner. The Petitioner timely filed a notice of appeal. The case is now before us for
review.

                                      ANALYSIS

       The Petitioner contends that the post-conviction court erred by denying him relief,
arguing that trial counsel’s performance was deficient because of his failure to
communicate plea offers from the State and the Petitioner was prejudiced because he was
not able to accept a plea offer and continued to trial. The State responds that relief was
properly denied because the post-conviction court credited trial counsel’s testimony that
he had conveyed all plea offers.

       Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const.
amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective
assistance of counsel is made under the Sixth Amendment to the United States
Constitution, the burden is on the petitioner to show (1) that counsel’s performance was
deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “Because a
petitioner must establish both prongs of the test, a failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.”
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been
applied to the right to counsel under article I, section 9 of the Tennessee Constitution.
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. When a court
reviews a lawyer’s performance, it “must make every effort to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). We will not deem
counsel to have been ineffective merely because a different strategy or procedure might
have produced a more favorable result. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim.
App. 1991). We recognize, however, that “deference to tactical choices only applies if
the choices are informed ones based upon adequate preparation.” Cooper v. State, 847

                                           -9-
S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982)).

        As to the prejudice prong, the petitioner must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing Strickland, 466
U.S. at 694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. “That is, the petitioner must
establish that his counsel’s deficient performance was of such a degree that it deprived
him of a fair trial and called into question the reliability of the outcome.” Pylant v. State,
263 S.W.3d 854, 869 (Tenn. 2008) (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.
1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies
the second prong of Strickland.” Id.

       The two-prong Strickland test further extends to plea offers with “defense counsel
ha[ving] the duty to communicate formal offers from the prosecution to accept a plea on
terms and conditions that may be favorable to the accused.” Missouri v. Frye, 566 U.S.
134, 145 (2012). Further, “[t]o show prejudice from ineffective assistance of counsel
where a plea offer has lapsed or been rejected because of counsel’s deficient
performance, defendants must demonstrate a reasonable probability they would have
accepted the earlier plea offer had they been afforded effective assistance of counsel.” Id.
at 147. “Defendants who have shown a reasonable probability they would have accepted
the earlier plea offer must also show that, if the prosecution had the discretion to cancel it
or if the trial court had the discretion to refuse to accept it, there is a reasonable
probability neither the prosecution nor the trial court would have prevented the offer from
being accepted or implemented.” Id. at 148.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94. On appeal, we
are bound by the post-conviction court’s findings of fact unless we conclude that the
evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d
450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of witnesses,
the weight and value to be given their testimony, and the factual issues raised by the
evidence are to be resolved” by the post-conviction court. Id. Because they relate to
mixed questions of law and fact, we review the post-conviction court’s conclusions as to
whether counsel’s performance was deficient and whether that deficiency was prejudicial
under a de novo standard with no presumption of correctness. Id. at 457.

      At the post-conviction hearing, trial counsel testified that he worked about
“seventy to eighty hours total” on the Petitioner’s case. Trial counsel testified that the
                                            -10-
Petitioner maintained he “didn’t do any of the things he was accused of” and did not want
to serve jail time. Regardless, trial counsel asserted that he discussed a “loose” offer of
split confinement with the Petitioner and that the Petitioner rejected the offer. Although
trial counsel could not recall any other specific plea offers, he was sure the Petitioner
would have rejected the offers because the Petitioner maintained his innocence through
trial.

       Ms. Palacios testified that she did not hear trial counsel reject an offer on the
Petitioner’s behalf and could only recall the Petitioner’s telling trial counsel at trial that
he wanted to accept an offer. Ms. Moreno testified that she was present for some
meetings between the Petitioner and trial counsel, but she did not understand the
conversations. Mr. Diaz testified that during a meeting at trial counsel’s office, he
learned that trial counsel had rejected a plea offer on behalf of the Petitioner; however,
the Petitioner was not present during this meeting. Additionally, Mr. Diaz asserted that
the Petitioner was adamant that he was innocent. The Petitioner testified that trial
counsel had only relayed a plea offer from the State after trial counsel had rejected the
offer.

      In its order, the post-conviction court found that the witness testimony from Ms.
Moreno and Mr. Diaz was “troubling” because trial counsel would have had to
communicate “privileged information outside of the Petitioner’s presence to the
witnesses.” The court credited trial counsel’s testimony that he relayed all offers from
the State to the Petitioner and that all offers were rejected because the Petitioner
maintained his innocence and did not want to go back to jail.

       The Petitioner has failed to show by clear and convincing evidence that trial
counsel did not relay plea offers to him and thereby rendered deficient performance. The
post-conviction court credited trial counsel’s testimony, and the record supports its
finding that trial counsel relayed all plea offers to the Petitioner. The Petitioner did not
want to accept a plea offer and maintained his innocence through trial. Accordingly, we
do not find any merit in the Petitioner’s ineffective assistance claim.

                                      CONCLUSION

       Based upon the foregoing, the judgment of the trial court is affirmed.




                                                   D. KELLY THOMAS, JR., JUDGE

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