        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                            Assigned on Briefs July 18, 2012

           JACOB STEPHEN LOVE V. STATE OF TENNESSEE
                 Appeal from the Criminal Court for Davidson County
                     No. 2009-A-919    Cheryl Blackburn, Judge




               No. M2012-00135-CCA-R3-PC - Filed December 7, 2012


The Petitioner, Jacob Stephen Love, appeals the Davidson County Criminal Court’s denial
of his petition for post-conviction relief from his convictions for two counts of attempted
aggravated sexual battery and effective eight-year sentence. On appeal, he contends that his
guilty pleas were unknowingly and involuntarily made because he was denied the effective
assistance of counsel. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.

Jason M. Chaffin, Nashville, Tennessee, for the appellant, Jacob Steven Love.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        The record reflects that the Petitioner was charged with five counts of aggravated
sexual battery and three counts of child rape. Pursuant to agreement, he pleaded guilty to two
counts of attempted aggravated sexual battery. According to the State’s recitation of the facts
at the guilty plea hearing:

              [The Petitioner] was residing with the victim. . . . Her date of
              birth is 3-29-97, a child less than thirteen years of age. [The
              Petitioner] . . . was residing with her, her sibling, and her
               mother, and he was her mother’s boyfriend at the time. . . . [O]n
               two separate incidents . . . [the Petitioner] did attempt to engage
               in unlawful sexual contact with the child named in the
               indictment. These events happened at their residence, which
               [was] located here in Davidson County.

The Petitioner received consecutive four-year sentences.

        The judgments reflect that the Petitioner was sentenced to community supervision for
life following the expiration of his sentence pursuant to Tennessee Code Annotated section
39-13-524 and that the Petitioner was required to register as a sexual offender. The transcript
of the plea submission hearing shows that the trial court advised the Petitioner that the
consequences of his guilty pleas included registering as a sex offender and lifetime
supervision after his release from confinement. When the trial court asked if the Petitioner
understood these consequences, his response was, “Yes, ma’am.” The court stated that it
noted on the petition to enter a plea of guilty that it advised the Petitioner of both
consequences. When the trial court asked the Petitioner if he read the guilty plea petition,
he responded, “I read it myself. And I had questions, and it was explained to me.” He
agreed his questions were explained to his satisfaction.

       At the post-conviction hearing, the Petitioner testified that although the State’s
discovery packet was about three inches thick, counsel failed to review it with him. He said
the discovery materials included a criminal history of Jacob J. Love, who was not the
Petitioner. He said counsel believed it was the Petitioner’s criminal history until eight
months later when the Petitioner asked an investigator to compare the Petitioner’s
fingerprints with Jacob J. Love’s fingerprints.

        The Petitioner testified that the witness statements contained different versions of
events. He said that he talked to counsel about the recording counsel received eight days
after the Petitioner’s arrest and that the victim admitted on the recording that the victim made
up the allegations. He said that although counsel sent the prosecutor an email about the
recording, counsel told the Petitioner “none of that matters, because if it goes to trial, they
can change their mind, take the plea.”

        The Petitioner testified that counsel confused the facts of his case with another client’s
case and that counsel did not know the number of offenses for which the Petitioner was
indicted. He said that at his plea hearing, he reviewed the plea agreement with counsel and
that he told the trial court he understood the agreement. He said, though, that counsel did not
“fully discuss” his being on community supervision for life. He said he feared going to
prison and had never faced a prison sentence before the instant charges. He said counsel told

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him “that all [the Petitioner] would be subject to was lifetime supervision.” He said counsel
defined lifetime supervision as requiring the Petitioner to go to the police department every
four months to register as a sexual offender. He said that after he pleaded guilty, he learned
he was required to wear an ankle bracelet, to meet with a parole officer, and to undergo
psychological or psychiatric treatment for the remainder of his life. He said he understood
he was required to register with the sexual offender database. He said counsel never
discussed a prerelease psychological evaluation. He said that counsel told him he would be
denied parole the first time and that he would probably receive parole the second time.

        The Petitioner testified that in August 2009, he wanted to go to trial but that counsel
did not want a trial. He stated that they argued about whether to go to trial and that counsel
refused “to present the case in chief.” He said counsel told the Petitioner approximately
twenty-five times that the Petitioner would be convicted at a trial. He said that although he
was charged with two Class C felonies, counsel told him the range of punishment was two
to four years. He said that counsel was a “plea attorney” rather than a trial attorney and that
counsel told him that counsel had not tried “these types of cases.” He said counsel advised
him that he should accept the plea offer because sexual offenses were difficult to win at a
trial.

        The Petitioner testified that he pleaded guilty because he was not familiar with the
criminal justice system and his attorney told him to plead guilty. He said he did not know
the consequences of his pleading guilty when he pleaded guilty. He said that he and counsel
argued several times over counsel’s representation and that he attempted to fire counsel
because counsel refused to review the discovery materials. He said counsel introduced him
to co-counsel and told him the trial court would not allow the Petitioner to fire counsel. He
said that to his knowledge, counsel did not file a motion requesting permission to withdraw
as his counsel.

        On cross-examination, the Petitioner testified that he received the State’s discovery
package and clarified that counsel refused to review the materials until two months before
the trial date. He said counsel agreed that after the investigator examined the fingerprints,
the criminal history included in the discovery materials was not the Petitioner’s criminal
history. He said that eight months before his arrest, the victim’s brother molested the victim
and that counsel said this information did not matter. He said that anytime he raised issues
with the discovery materials, counsel said the information did not matter.

       The Petitioner testified that at the guilty plea hearing, the trial court asked him if he
was satisfied with counsel’s work and that he responded counsel “were perfect.” He agreed
that he knew about the evidence the State and the defense would have presented at a trial
before he pleaded guilty and that he knew what the witnesses would have testified to at a

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trial. He agreed that counsel had the same information he had before he pleaded guilty and
that counsel’s advice was to accept the plea offer. He said he knew the decision whether
to plead guilty was his, not counsel’s. He agreed counsel only offered their opinions on
whether he should plead guilty.

       The Petitioner testified that he did not ask counsel about the sexual offender registry
and that he thought the registry and lifetime supervision were the same. He said that counsel
did not discuss community supervision for life or lifetime supervision at any time before he
pleaded guilty. He said he first heard about lifetime supervision from the trial court when
he pleaded guilty.

       The Petitioner testified that he knew he pleaded guilty to two Class C felonies. He
denied counsel told him that he was pleading to Class D felonies. The Petitioner’s only
issue was the length of sentence, although the range of punishment for a Class C felony was
three to six years. He agreed he received two four-year sentences. When asked how
counsel confused his case with another client’s case, he said counsel told him “eleven
people found Raul guilty, one hung the jury. [The Petitioner was] coming behind Raul . . .
remember what happened to Raul.” He said counsel’s statement showed “coercion” but
agreed the statement did not show counsel was confused. He said that counsel compared
the two cases and agreed that it was counsel’s job to inform the Petitioner of how similar
cases were resolved.

       Upon examination by the trial court, the Petitioner testified that he did not understand
the difference between community supervision for life and lifetime supervision. The
Petitioner said he did not understand that his registration on the sexual offender database
was separate from community supervision.

       Counsel testified that he had been licensed to practice law since 1998 and that he
only practiced criminal defense work. He agreed he was appointed to represent the
Petitioner and said he reviewed the discovery materials numerous times with the Petitioner.
He said he did not understand the Petitioner’s testimony that counsel refused to review the
discovery materials until two months before trial. He said he told the Petitioner that they
would meet more often for trial preparation two months before trial.

       Counsel testified that with regard to the victim and her family, the Department of
Children’s Services investigated previous allegations of sexual abuse that did not involve
the Petitioner and that he attempted to tell the Petitioner that these previous allegations were
irrelevant to the instant charges. He said he attempted to explain to the Petitioner that
whether a jury believed the victim mattered at a trial. He said that with regard to the
incorrect criminal history, the Petitioner believed the State wanted to prosecute him because

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of the criminal history. He said he attempted to explain to the Petitioner that the prosecutor
charged him because of the victim’s allegations, not because of any criminal history. He
said that to his knowledge, he did not confuse the Petitioner’s case with another client’s
case, although he said he could have misstated the number of counts in the indictment.

       Counsel testified that he had long conversations about the plea offer with the
Petitioner. He said that although there were weaknesses in the State’s case, he told the
Petitioner that it was “very risky” to go to trial. He said the Petitioner faced life
imprisonment if convicted by a jury and agreed the plea agreement was for two consecutive
four-year sentences to be served at thirty percent. He said that he told the Petitioner the
decision to go to trial was the Petitioner’s and agreed that when the Petitioner asked for his
opinion, he told the Petitioner that he believed a jury would convict him. He said that he
never told the Petitioner to plead guilty and that at one point, the Petitioner’s case was
scheduled for a trial.

       Counsel testified that his frustration with the Petitioner resulted from the Petitioner’s
changing his mind daily about whether to accept the plea offer or go to trial and that he told
the Petitioner that the Petitioner had to decide if he wanted to accept the offer or go to trial.
He said that he and the Petitioner had a heated exchange and that he asked co-counsel to
work with the Petitioner. He said he “bowed out” of the Petitioner’s case when co-counsel
became involved. He said that he had never tried a case like the Petitioner’s but that co-
counsel had.

       Counsel testified that he discussed community supervision for life with the Petitioner
and that he discussed the consequences of the Petitioner’s pleading guilty to a sexual
offense, including sexual offender registration, sexual offender requirements, and
supervision. He said his file included a copy of the sexual offender probation guidelines,
and he thought he showed the guidelines to the Petitioner. He said he did not go into detail
about everything that would be required of the Petitioner.

        On cross-examination, counsel testified that the Petitioner always denied his guilt and
that he believed the Petitioner became frustrated because the Petitioner wanted a trial but
knew a trial was risky. He denied dismissing as unimportant anything the Petitioner raised
and said he discussed each topic with the Petitioner. He said he interviewed the people the
Petitioner suggested and met with the people the Petitioner wanted him to meet. He said he
reviewed the video recording of the victim’s statement and discussed it with the Petitioner.
He denied telling the Petitioner that the Petitioner could not go to trial or that counsel would
not try the Petitioner’s case. He said he gave the Petitioner his opinion with regard to the
outcome of a trial and told the Petitioner it was the Petitioner’s decision. He agreed that



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with regard to the Petitioner’s community supervision, there were “probably some specifics”
that the Petitioner did not know.

        Co-counsel testified that she had been licensed to practice law since 1984 and that
she had only done criminal work. She said she told the Petitioner that if he decided to plead
guilty, the Petitioner would be required to register as sexual offender and would be subject
to lifetime supervision. She did not recall the amount of detail in which she discussed
lifetime supervision. She believed the Petitioner knew the consequences of his guilty plea.

        On cross-examination, co-counsel testified that she represented the Petitioner close
to the time of the guilty plea and that she reviewed the case and was briefed about the status
of the case. She said that she began working on the Petitioner’s case because of
communication issues between counsel and the Petitioner and that she discussed the
Petitioner’s accepting the plea offer and going to trial. She said she considered the offer to
be “extraordinarily good.” She said she told the Petitioner that sexual offense cases were
difficult to win at trial, that the State made a good offer, and that the Petitioner had to make
the decision.

        The trial court credited counsel’s testimony at the post-conviction hearing. The court
found that although counsel may have misstated the number of counts in the indictment,
counsel knew the facts of the Petitioner’s case. The court found that the issue of whether the
State included the Petitioner’s criminal history in the discovery materials was resolved by the
investigator’s research. With regard to the Petitioner’s contention that he was coerced into
pleading guilty, the trial court credited counsel and co-counsel’s testimony that they advised
the Petitioner to plead guilty but told the Petitioner it was his decision. The trial court noted
that the guilty plea hearing transcript showed that the Petitioner told the court that he
understood he had the right to a trial but that he elected to enter a plea.

       With regard to community supervision for life, the trial court found that counsel and
co-counsel discussed lifetime supervision with the Petitioner generally but did not address
the specific requirements. The court noted that at the guilty plea hearing, the Petitioner told
the court that counsel discussed the “collateral consequences of his plea, which included sex
offender registration and lifetime supervision.” The court found that at the guilty plea
hearing, the Petitioner was advised that he would have to undergo sexual offender treatment.
The court found that counsel informed the Petitioner of community supervision for life. The
court concluded that the Petitioner’s guilty pleas were made knowingly and voluntarily and
denied relief.

       On appeal, the Petitioner contends that his guilty pleas were not knowingly and
voluntarily made because counsel did not sufficiently inform him that he was subject to

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community supervision for life. The State responds that the trial court properly denied relief.
We agree with the State.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we
are bound by the trial 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, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial 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.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

       Under the Sixth Amendment, when a claim of ineffective assistance of counsel is
made, 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). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the
Petitioner must also show that but for the substandard performance, “the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. 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).

        A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to
show that counsel’s representation fell below an objective standard of reasonableness or
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A reasonable probability means a “probability sufficient
to undermine confidence in the outcome.” Id. When a petitioner pleads guilty, he must show
a reasonable probability that, but for the errors of his counsel, he would not have pleaded
guilty. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); Adkins v. State, 911 S.W.2d 334, 349
(Tenn. Crim. App. 1994).

        The United States Supreme Court has held that a plea must represent a “voluntary and
intelligent choice among the alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970). The court reviewing the voluntariness of a guilty
plea must look to the totality of the circumstances. See State v. Turner, 919 S.W.2d 346, 353

                                              -7-
(Tenn. Crim. App. 1995). A plea resulting from ignorance, misunderstanding, coercion,
inducement, or threats is not “voluntary.” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993). A petitioner’s solemn declaration in open court that his or her plea is knowing and
voluntary creates a formidable barrier in any subsequent collateral proceeding because these
declarations “carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74
(1977).

        In Tennessee, the imposition of community supervision for life is required by statute
and is in addition to the punishment received for the commission of certain sexual offenses.
See T.C.A. § 39-13-524 (2010). Our supreme court has stated that a “defendant must be
apprised of the sentence that he will be forced to serve as a result of his guilty plea and
conviction.” Blankenship, 858 S.W.2d at 905. “[L]ifetime community supervision is a direct
and punitive consequence of which a defendant must be informed in order to enter a knowing
and voluntary guilty plea. . . .” Ward v. State, 315 S.W.3d 461, 475 (Tenn. 2010). Counsel’s
“failure to advise his or her client about the mandatory lifetime community supervision
sentence . . . is deficient performance.” Calvert v. State, 342 S.W.3d 477, 490 (Tenn. 2011).

        The Petitioner relies on Chad Alan Parker v. State, No. M2007-02799-CCA-R3-PC
(Tenn. Crim. App. July 31, 2008), in support of his contention that counsel provided
ineffective assistance by failing to explain the details of community supervision for life. The
case is distinguishable. There, counsel testified at the post-conviction hearing that he told
the petitioner lifetime supervision involved certain restrictions, including where the petitioner
could live and work after his release from confinement. Counsel learned after the petitioner
pleaded guilty that more was required of the petitioner, and counsel conceded that he did not
accurately represent the requirements to the Petitioner. After counsel informed the Petitioner
of the significant differences, the petitioner said that he would not have pleaded guilty had
he known the extent of the restrictions. In reversing the trial court’s denial of relief, this
court concluded that counsel “misinformed” the petitioner of the lifetime supervision
requirements because counsel told the petitioner that he would have to do nothing in addition
to participating in the sexual offender registry. Id. slip op. at 8-9.

       In the present case, the Petitioner was not told his obligations upon release were
limited to the sexual offender registry. Although the Petitioner testified that counsel told him
he would only be required to report to the police every four months, the trial court credited
counsel’s testimony over that of the Petitioner. Counsel testified that he discussed with the
Petitioner sexual offender registration, sexual offender requirements, and lifetime
supervision. Although he believed there were specifics about the lifetime supervision the
Petitioner did not know, counsel’s file included a copy of the sexual offender probation
guidelines, which he thought was shown to the Petitioner. Co-counsel testified that she
discussed with the Petitioner the sexual offender registry and the lifetime supervision,

                                               -8-
although she did not recall the details of their discussion. The Petitioner told the trial court
at his plea submission hearing that his attorneys discussed his registering as a sexual offender
and his lifetime supervision. The trial court discussed with the Petitioner that he might be
required to undergo sexual offender treatment, and the Petitioner stated that he understood.

       We conclude that the Petitioner was informed of the community supervision for life
requirement and that his pleas were knowingly and voluntarily entered. The evidence does
not preponderate against the trial court’s factual findings. We conclude that counsel was not
deficient and that the Petitioner is not entitled to relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                            ___________________________________
                                            JOSEPH M. TIPTON, PRESIDING JUDGE




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