         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 10, 2009

  LUIZ GOMEZ and FRANKLIN DELACRUZ v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Warren County
                          No. F-9586 Larry B. Stanley, Jr., Judge



                   No. M2008-01868-CCA-R3-PC - Filed December 10, 2009


Petitioners, Luiz Gomez and Franklin Delacruz, each pled guilty to second degree murder and two
counts of aggravated arson in Warren County in exchange for effective sentences of thirty-six years.
Petitioners then each filed timely petitions for post-conviction relief. After a joint hearing on the
petitions for relief, the post-conviction court denied relief, finding that Petitioners did not receive
ineffective assistance of counsel and that their guilty pleas were entered knowingly, voluntarily, and
intelligently. After a review of the record, we determine that Petitioners have failed to show that
they received ineffective assistance of counsel or that their guilty pleas were entered involuntarily.
Accordingly, the judgments of the post-conviction court are affirmed.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C.
MCLIN , JJ., joined.

Bud Sharp, McMinnville, Tennessee, for appellant, Luiz Gomez.
Robert Brooks, Memphis, Tennessee, for appellant, Franklin Delacruz.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; and Rodney C. Strong, District Attorney General,, for the appellee, State of Tennessee.



                                             OPINION

                                        Factual Background

       In September of 2003, a special session of the Warren County Grand Jury returned an
indictment against Franklin Delacruz, Luiz Gomez, and Ruben Pimentel for one count of first degree
murder, one count of felony murder, four counts of aggravated arson and one count of conspiracy
to commit first degree murder. The three men were indicted for their role in the death of Gina
Thompson. Petitioners assisted Pimentel in setting Ms. Thompson on fire while she slept in her
trailer. The men mistakenly believed Ms. Thompson had stolen cocaine from them. Prior to trial,
the State made the decision to pursue the death penalty.

       On June 3, 2005, Petitioner Gomez and Petitioner Delacruz1 entered into a negotiated plea
agreement with the State. The agreement specified that each Petitioner would plead guilty to second
degree murder and two counts of aggravated arson. The remaining counts of the indictment were
dismissed. In exchange for the guilty pleas, Petitioners received a thirty-six year sentence to be
served at 100% for the second degree murder conviction. Petitioners received an eighteen-year
sentence to be served at 100% for each aggravated arson conviction. The sentences for aggravated
arson were ordered to run consecutively to each other but concurrently to the sentence for second
degree murder, for a total effective sentence of thirty-six years at 100% in the Department of
Correction.

       After the entry of the guilty pleas, Petitioners filed separate pro se petitions for post-
conviction relief. In their petitions, they argued that they received ineffective assistance of counsel
and that their guilty pleas were unknowingly and involuntarily entered.

       The post-conviction court appointed counsel and held a hearing on the petitions for post-
conviction relief.

                                                Petitioner Gomez

       At the hearing, Petitioner Gomez informed the trial court that he did not understand the
charges because he spoke Spanish rather than English and that he was pressured to plead guilty by
his two attorneys. The trial court provided an interpreter for Petitioner Gomez during all phases of
the court proceedings. Petitioner Gomez claimed that his trial counsel told him to plead guilty
because a jury would convict him based on the evidence and the only way he could avoid the death
penalty would be to negotiate a plea agreement. Petitioner Gomez admitted that he was able to recall
“some” of the evidence that trial counsel told him would be introduced at trial. Petitioner Gomez
complained that the attorneys did not go over “all” the evidence and did not point out any evidence
that would be favorable to the defense at trial. Later, Petitioner Gomez admitted that counsel had
discussed the facts of the case with him on a number of occasions, even showing him a translated
version of his videotaped statement.

        Next, Petitioner Gomez claimed that he did not understand the plea agreement or hearing.
He admitted that one of his trial counsel had gone over the plea agreement with him but complained
that the agreement was in English and no interpreter was present at the time. Later on during the
hearing, Petitioner Gomez agreed that both trial counsel met with him at the jail and went over the
plea agreement while a Spanish interpreter was present. According to him, the interpreter left before
he signed the agreement. Petitioner Gomez admitted that even though the agreement was in English,


       1
           The disposition of the indictment against Ruben Pimentel is unclear from the record on appeal.

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he understood the contents of the deal prior to signing it. He claimed that the interpreter did not tell
him what was contained in the document. Petitioner Gomez also admitted that he had been in court
in New York and had previously entered a guilty plea in a burglary case.

        Petitioner Gomez recalled the details of the plea hearing, including the plea colloquy in
which the trial court asked questions about his rights. Petitioner Gomez claimed that he was not
telling the truth when the trial court asked if he wanted to enter the plea. He did not answer
negatively to any of the trial court’s questions because, according to Petitioner Gomez, his trial
counsel told him to answer “yes” to all of the judge’s questions. Petitioner Gomez acknowledged
that he expressed his understanding of the agreement during the plea hearing, including the part in
which he understood that his sentence would be the same as Petitioner Delacruz. Further, Petitioner
was in court when Petitioner Delacruz signed his petition, so he had already heard the agreement
translated into Spanish before the entry of his plea.

        Lead trial counsel for Petitioner Gomez testified that he discussed trial strategy with
Petitioner, including the lack of “good facts” and the multitude of “bad facts that we were going to
have to either ignore or to explain away, which [was] going to be difficult to do” at trial. Trial
counsel explained to the trial court that there were facts that could be used in mitigation during the
sentencing phase of trial but would be detrimental during the guilt phase of trial.

        Lead trial counsel admitted that an interpreter was not always present during their meetings
with Petitioner Gomez. Trial counsel did not feel that communication was an issue with regard to
simple information about the case. Trial counsel also admitted that an interpreter was not present
when Petitioner signed the agreement but that an interpreter went over the agreement with Petitioner
Gomez. According to trial counsel, Petitioner Gomez never seemed to have reservations about
taking the plea agreement. The decision was left up to Petitioner and he chose to accept the plea.

                                         Petitioner Delacruz

         Petitioner Delacruz also testified at the post-conviction hearing. He recalled meeting with
his two attorneys as well as the investigators and interpreters on the day prior to the plea. In his
words, they “explained all the evidence that [the State] had against me and that’s when they told me
that I did not have good probabilities or that I was not likely to be successful.” Petitioner Delacruz
had turned down a prior plea offer because he claimed that he was not guilty. At this meeting,
Petitioner felt that he had “no option” even though he did not want to take the plea agreement.
Petitioner Delacruz was convinced that he would be found guilty if he went to trial. The
investigators told him “[t]hat if we went to trial that I would be found guilty and if I didn’t get the
death penalty they would give me a lot more time than what was being offered.”




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        Petitioner Delacruz claimed that on the day prior to the plea agreement the interpreter left
prior to his attorney’s arrival.2 He insisted that he did not discuss the plea agreement with the
interpreter. When the attorneys arrived, they did not discuss the plea agreement, and Petitioner
Delacruz signed it even though he did not understand them or the agreement. In fact, Petitioner
Delacruz informed the post-conviction court that his attorneys visited him “many times” without an
interpreter and that he could not understand them because he did not speak English.

        Petitioner Delacruz felt that he had “no chance of success” so he entered the plea even though
he did not understand any English.

        Petitioner Delacruz recalled the day of the plea hearing. He testified at the hearing that he
had never been informed that he had a right to go to trial. However, upon further questioning,
Petitioner Delacruz informed the post-conviction court that he had been told by his attorneys that he
could have a trial but that the jury would not “believe” him and would find against him even though
he was “not guilty of the crime.” Petitioner Delacruz claimed that one of his trial counsel told him
that he would not be permitted to testify at trial.

         Like Petitioner Gomez, Petitioner Delacruz admitted at the post-conviction hearing that he
had been to court in New York and had pled guilty “two or three times” in the past. As for the plea
hearing at issue herein, Petitioner Delacruz admitted that he expressed his understanding of the plea
to the trial court but claimed that he “didn’t have any choice but to say yes” and had “no choice but
to sign [it].” In fact, he stated that he “felt like [he] was stuck between a rock and a hard place.”

        Assistant trial counsel testified that he represented Petitioner Delacruz at the plea hearing and
had previously handled between fifteen and twenty first degree murder cases. The defense team
consisted of two attorneys. Assistant trial counsel recalled meeting with Petitioner Delacruz on a
frequent basis and determined when there was going to be “substantive conversation,” it was “clear”
that they would need an interpreter.

       Assistant trial counsel recalled that the plea offer of thirty-six years was relayed to Petitioner
Delacruz in the late part of May or the first few days of June of 2005. At this meeting, Petitioner
Delacruz informed trial counsel that he was not interested in the offer.

       Assistant trial counsel denied that he told Petitioner Delacruz that he would be prevented
from testifying at trial. In fact, he recalled telling Petitioner that “it was important that he did testify”
and thought that the defense team would probably “encourage him to testify” if the case went to trial.

        After the first meeting at which the plea offer was conveyed, Petitioner Delacruz met with
the investigators. Soon after this meeting, trial counsel met with him again. At this meeting, “it was
communicated to [trial counsel] by Mr. Delacruz that indeed he did want to take the deal. He wasn’t
excited about it but he did want to go ahead and do it.” Assistant trial counsel insisted that he did


        2
            Petitioner Delacruz testified that only one of his attorneys attended this meeting.

                                                            -4-
not tell Petitioner Delacruz that his only option was to take the deal. In fact, assistant trial counsel
testified that he “always make[s] it very clear they have the right to go to trial and that’s not my
decision, it’s theirs.”

        Assistant trial counsel informed the post-conviction court that he explained the legal issues
to Petitioner Delacruz who “had a difficult time understanding felony murder and understanding
criminal responsibility . . . which is not uncommon . . . .” When all was said and done, assistant trial
counsel felt like Petitioner Delacruz understood the concepts and assistant trial counsel was “firmly
convinced” that Petitioner Delacruz had an understanding of the legal situation.

        At the conclusion of the hearing, the post-conviction court denied relief from the bench. The
post-conviction court later entered an order in each case denying the petitions for relief. In the
orders, the post-conviction court specifically determined that each Petitioner received effective
assistance of counsel. Next, the post-conviction court determined that, based on the evidence
presented, each Petitioner understood what they were doing when they entered their plea agreements.
Finally, the post-conviction court found that there was “no undue influence” by the attorneys to try
to “coerce” Petitioners to enter into a plea agreement.

       Petitioners Gomez and Delacruz filed timely notices of appeal, challenging the post-
conviction court’s denial of post-conviction relief.

                                             Analysis
                                Post-Conviction Standard of Review

         The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issues raised, we will afford those findings of fact the weight of a jury verdict, and this Court
is bound by the post-conviction court’s findings unless the evidence in the record preponderates
against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958
S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not reweigh or re-evaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt,
54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. See Shields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).

                                  Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing (a) that the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.


                                                  -5-
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must
establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a sufficient basis to deny relief
on the claim.” Henley, 960 S.W.2d at 580 (Tenn. 1997).

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court may
not second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound, but
unsuccessful, tactical decision made during the course of the proceedings. See id. However, such
deference to the tactical decisions of counsel applies only if counsel makes those decisions after
adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).

         Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent
that it affects the voluntariness of the plea. In this respect, such claims of ineffective assistance
necessarily implicate the principle that guilty pleas be voluntarily and intelligently made. See Hill
v. Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). As
stated above, in order to successfully challenge the effectiveness of counsel, Petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. See Baxter, 523 S.W.2d at 936. Under Strickland, 466 U.S. at 694. Petitioner
must establish: (1) deficient representation; and (2) prejudice resulting from the deficiency.
However, in the context of a guilty plea, to satisfy the second prong of Strickland, 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, 474 U.S. at 59; see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        When analyzing a guilty plea, we look to the federal standard announced in Boykin v.
Alabama, 395 U.S. 238 (1969), and the State standard set out in State v. Mackey, 553 S.W.2d 337
(Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin, the United States
Supreme Court held that there must be an affirmative showing in the trial court that a guilty plea was
voluntarily and knowingly given before it can be accepted. Boykin, 395 U.S. at 242. Similarly, our
Tennessee Supreme Court in Mackey required an affirmative showing of a voluntary and knowing
guilty plea, namely, that the defendant has been made aware of the significant consequences of such
a plea. Pettus, 986 S.W.2d at 542.


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       A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court
must determine if the guilty plea is “knowing” by questioning the defendant to make sure he fully
understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858 S.W.2d at
904.
                                         Petitioner Gomez

        On appeal, Petitioner Gomez contends that he did not receive “effective assistance of
counsel” because he “ended up with a plea he didn’t understand . . . [and] didn’t fully appreciate the
consequences of his actions” and that this led to an adverse effect on the defense, proving the
“second prong” of ineffective assistance of counsel. Petitioner seems to argue that the allegedly
deficient performance by his trial counsel led to a presumptively prejudicial effect, proving that he
received ineffective assistance of counsel. Petitioner also argues that his guilty plea was not
knowingly or voluntarily entered because he was unable to understand the plea “because of his lack
of English.”

        In the case herein, Petitioner Gomez has failed to show that his trial counsel were deficient,
much less presumptively prejudicial as he argues. Moreover, Petitioner Gomez has failed to show
that but for trial counsel’s alleged deficiencies, he would have refused to plead guilty and insisted
on going to trial. The transcript of the guilty plea hearing reflects that the trial court went to great
lengths to discuss the ramifications of the guilty plea with Petitioner Gomez. There was an
interpreter present who translated everything at the hearing. Petitioner Gomez was thoroughly
questioned by the trial court to ascertain whether he understood the effects of the plea.

        Petitioner Gomez complains that he had no choice but to plead guilty, he did not understand
what he was doing, and trial counsel did not present “all the issues.” Further, he complains that the
plea offer was not explained in Spanish, and he was led to believe by trial counsel that his case was
hopeless. In other words, that he was coerced into pleading guilty. After hearing the evidence, the
post-conviction court accredited the testimony of trial counsel and discredited Petitioner Gomez’s
testimony. The post-conviction court specifically found that Petitioner Gomez “lied under oath” and
that he “understood what he was doing” when he pled guilty. The plea hearing indicates that
Petitioner knew what he was doing, understood the plea, and agreed that it was what he wanted to
do to resolve the case. Petitioner Gomez himself admitted that he had previously entered a guilty
plea in New York. The post-conviction court noted that it was a “tough case” in which the attorneys
would “be remiss if they had not been very adamant to their clients about what could and might
happen in the case” but that their advice to Petitioner Gomez did not amount to “undue influence.”
Petitioner has failed to show by clear and convincing evidence that he received ineffective assistance
of counsel or that his guilty plea was involuntary. Petitioner Gomez is not entitled to relief.




                                                  -7-
                                          Petitioner Delacruz

        On appeal, Petitioner Delacruz argues that the post-conviction court “committed an error in
finding that his guilty pleas was [sic] entered knowingly and voluntarily” where the proof established
that he was “reluctant” to enter the guilty plea and even “refused” the plea prior to the guilty plea
hearing and did not understand the charges that he was facing. Petitioner also alleges that post-
conviction relief is appropriate when “the guilty plea does not conform to the due process standard.”

        In the case herein, Petitioner Delacruz has failed to show that his trial counsel were deficient.
Moreover, Petitioner Delacruz has failed to show that but for trial counsel’s alleged deficiencies, he
would have refused to plead guilty and insisted on going to trial. Again, the transcript of the guilty
plea hearing reflects that the trial court went to great lengths to discuss the ramifications of the guilty
plea with Petitioner Delacruz. As with Petitioner Gomez, there was an interpreter present who
translated everything at the hearing. Petitioner Delacruz was repeatedly asked by the trial court if
he understood the effects of the plea.

         Petitioner Delacruz complains that he had no choice but to plead guilty and he did not
understand what he was doing. Specifically, he complains that counsel’s undue influence led him
to believe he had “no realistic choice” but to plead guilty. In other words, that he was coerced into
pleading guilty. The post-conviction court accredited the testimony of trial counsel, finding that
there was no deficient representation on the part of his attorneys. In fact, the testimony from trial
counsel indicated that they were careful to have an interpreter present when they were having
meetings with Petitioner Delacruz that dealt with substantive matters. While Petitioner Delacruz
initially did not want to plead guilty, he decided after the initial meeting to accept the offer. We
recognize that because of a language barrier, Petitioner Delacruz may have had difficulty
understanding portions of the plea, specifically, the definitions of felony murder and criminal
responsibility. However, the testimony from trial counsel indicated that these terms were fully and
completely explained to Petitioner Delacruz through an interpreter prior to the entry of the plea.
Finally, even though Petitioner Delacruz claims that he had no choice but to plead guilty, the plea
hearing indicates that Petitioner knew what he was doing, understood the plea, and agreed that it was
what he wanted to do to resolve the case. Petitioner Delacruz himself admitted to the post-
conviction court that he had prior experience with guilty pleas. The post-conviction court noted that
the attorneys “went above and beyond what was required and did an outstanding job in preparing
their cases.” Petitioner has failed to show by clear and convincing evidence that he received
ineffective assistance of counsel or that his guilty plea was involuntary. Petitioner is not entitled to
relief.

          Petitioner Delacruz also makes an argument that his guilty plea did not comply with due
process requirements. We concur in the State’s assessment of Petitioner Delacruz’s brief in that it
makes a conclusory allegation without citing any authority to support this argument. Rule 27(a)(7)
of the Tennessee Rules of Appellate Procedure provides that a brief shall contain “[a]n argument .
. . setting forth the contentions of the appellant with respect to the issues presented, and the reasons
therefor, including the reasons why the contentions require appellate relief, with citations to the


                                                   -8-
authorities and appropriate references to the record . . . relied on.” Tennessee Court of Criminal
Appeals Rule 10(b) states that “[i]ssues which are not supported by argument, citation to authorities,
or appropriate references to the record will be treated as waived in this court.” See also State v.
Sanders, 842 S.W.2d 257 (Tenn. Crim. App. 1992) (determining that issue was waived where
defendant cited no authority to support his complaint). Because Petitioner Delacruz has failed to
comply with Tennessee Rule of Appellate Procedure 27(a)(7) and Tennessee Court of Criminal
Appeals Rule 10(b), he has waived this issue.

                                             Conclusion

       For the foregoing reasons, the judgments of the post-conviction court are affirmed.




                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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