                                                                                        11/13/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs September 25, 2019

               RANDY B. DALTON v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Grainger County
                   Nos. 5641, 5782-83      James L. Gass, Judge



                            No. E2018-01827-CCA-R3-PC


In 2016, the Petitioner, Randy B. Dalton, pleaded guilty to offenses contained in three
indictments: aggravated robbery, theft of a vehicle valued at more than $1,000, escape
from a penal institution, harvesting ginseng out of season, and harvesting ginseng out of
season with less than three prongs. Pursuant to a plea agreement, the trial court imposed
partial consecutive sentencing with a total effective sentence of eighteen years of
confinement. In 2017, the Petitioner filed a petition for post-conviction relief, alleging
that he had received the ineffective assistance of counsel. Following a hearing, the post-
conviction court denied the petition. After review, we affirm the post-conviction court’s
judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL and ROBERT H. MONTGOMERY, JR., JJ., joined.

Robert M Burts, Rutledge, Tennessee, for the appellant, Randy B. Dalton.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulman, Senior
Assistant Attorney General; James B. Dunn, District Attorney General; and George C.
Ioannides, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                               I. Facts and Background
                                      A. Guilty Plea

      This case originates from the Petitioner’s robbing a drugstore, from which he stole
prescription narcotics after telling the store clerk that he had a bomb. For these offenses,
the Petitioner was indicted in case no. 5641 with aggravated robbery and possession of a
hoax device. While on work release, the Petitioner escaped custody and stole a vehicle
belonging to the Grainger County Board of Education. For these offenses, the Petitioner
was indicted in case no. 5782 for theft of property valued at more than $1,000 and felony
escape from a penal institution. Following his escape, the Petitioner was found to be in
possession of wild ginseng outside of harvesting season, to which he admitted he had
harvested with “less than three prongs.” For these offenses, the Petitioner was indicted in
case no. 5783 with harvesting ginseng in closed season and harvesting ginseng with less
than three prongs. In July of 2016, in case no. 5641, the Petitioner pleaded guilty to
aggravated robbery with a sentence of twelve years of confinement to be served at 85%;
the possession of a hoax device charge was dismissed by the State; in case no. 5782, the
Petitioner pleaded guilty to theft of property valued at more than $1,000 with a sentence
of six years of confinement to be served at 35% and to escape from a penal institution
with a sentence of four years of confinement to be served at 35%; and in case no. 5783,
the Petitioner pleaded guilty to one count of harvesting ginseng out of season and one
count of harvesting ginseng with less than three prongs with sentences of eleven months
and twenty-nine days of confinement for each of these convictions. The total effective
sentence to serve was eighteen years.

       Following the imposition of his sentences, the Petitioner filed a motion to
reconsider his sentence. The Petitioner requested that the trial court order his sentence in
case no. 5782 (theft and escape) to be served on probation in light of his family members’
medical conditions and minor daughter. The trial court denied the motion.

                                    B. Post-Conviction

        The Petitioner filed a petition for post-conviction relief, pro se, in which he
alleged that he had received the ineffective assistance of counsel because trial counsel
failed to investigate the monetary value of the stolen truck, which he contended was an
issue of utmost importance to his case. An attorney was appointed for the Petitioner, and
a hearing was held, during which the following evidence was presented: Trial counsel
(“Counsel”) testified that she was employed as an assistant public defender and
represented the Petitioner in these three indictments. Counsel testified that she visited the
Petitioner in jail, once accompanied by an investigator, and exchanged letters with the
Petitioner. Counsel testified that she took the District Public Defender with her to a
meeting with the Petitioner, hoping to communicate to the Petitioner the seriousness of
his charges. Counsel and the Petitioner shared legal research and “look[ed] into the value
of the truck” on Kelley Blue Book. Counsel recalled that the Petitioner stole the truck
from the school system’s garage where he was employed as a custodian. Counsel was
aware that the school system had purchased the truck for $1,400 in 1998.
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       Counsel recalled the ongoing plea negotiations with the State and that the State
offered a twenty-year sentence which the parties negotiated down to sixteen years.
However, while that offer was pending, the Petitioner acquired new charges for theft and
escape. As to the theft of the vehicle charge, Counsel researched the value of the vehicle
via the Kelley Blue Book, which listed a value of over $1,000 for “good” condition and
less than $1,000 for “bad” condition. The new charges became part of a comprehensive
plea offer from the State for a twenty-year sentence, which the State indicated to Counsel
was a firm offer that it would not lower. However, on the day of the plea, Counsel
approached the State and negotiated the Petitioner’s sentence to eighteen years. Counsel
recalled that the Petitioner’s maximum sentence exposure was lengthy.

        Counsel stated that she worked diligently to help the Petitioner understand the
sentences he was facing, and she recalled that he was very smart and knew exactly what
was happening with his case. Counsel testified that she spent more time on the
Petitioner’s case than she typically does. She would not have allowed him to enter a plea
if she felt the Petitioner was not aware or informed of his options.

       The Petitioner testified that he had “good” knowledge of trucks because he bought
and sold cars all his life. He stated that the stolen truck was valued at $500. He agreed
he had seen the $1,400 bill of sale but stated that it had been used for almost twenty years
since the purchase and would not have still been valued at more than $1,000. As an
inmate, the Petitioner had worked at the school as a trustee, painting the trucks and
getting them prepared for use, and he said this particular truck was in terrible shape. He
stated that the vehicle had over 400,000 miles on it and the school system discussed
“scrapping it.” The Petitioner testified that, because Counsel did not adequately
investigate the value of the truck, he pleaded to a higher class of felony and thus received
a longer sentence. He stated that Counsel’s boss, the District Public Defender, was of the
opinion that the Petitioner was a Range I offender because of a “new law.”

       On cross-examination, the Petitioner agreed that he did not request another
attorney. The Petitioner stated that he believed he should have been sentenced as a
Range I offender, rather than a Range II, which would have made his sentencing range
much lower.

       The post-conviction court denied the petition, stating the following:

              The Court has listened to the testimony in this case and considered
       the record as it is before the Court. The chief complaints it would appear
       from [the Petitioner], is that he takes great issue with the value of a vehicle
       for which he was charged with felony theft. There’s been his opinion stated
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on the record that the vehicle would not have risen to the level of being of
felony value.

       ....

        The issue as to Range I or Range II is complained about by the
[Petitioner] today, but it appears that the State in accordance with the
statute properly applied a Range II notice to this [Petitioner] for which he
was on notice well before the day of his plea consideration. The Court did
hear testimony that someone earlier, when he had pled earlier was offered
some opinion about would it count as all one or not as one in an earlier
proceeding; however, that was not to the knowledge of this Court done on
the day that this plea was taken.

       ....

        The Court does find that the [Petitioner] was facing a substantial
number of years -- 20, I believe -- for the robbery charge, aggravated
robbery as a Range II offender; that he accepted by a universal agreement
to resolve all of his charges a sentence of 12 years -- a substantial break in
or relief in the potential for incarceration to him from what he could have
faced had he gone to trial, been convicted, or pled openly without a trial
and waived his right to a jury trial . . . .

       Further, he received less than the maximum on the potential -- on the
escape and theft charges in accepting six years which by law would be
required to run with the 12 for an effective sentence of 18 years.

       Those are both advantageous as Range II offenders, advantageous
sentences to this [Petitioner]. They were mandated to run consecutive
because of the escape and the crime while committed on escape. . . . . His
plea was fully informed in the estimation of this Court, and I do find that in
order for this to be advantageous he was required to take off the table the
issue of consideration of the value of this motor vehicle that was taken
during an escape.

        [Counsel], for this record, did indicate she had been talking to the
[Petitioner] since 2014, I believe. He pled around the 5th of July if my
memory is correct -- of 2016.

       All these things considered and all these findings now having been
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      made by the Court, the Court does further find that [the Petitioner] was
      afforded in all of these cases for which we are now here on -- not just the
      single case, but all of these cases referred to both for escape and theft and
      aggravated burglary, . . . but for all consideration, the Court specifically
      finds that he was afforded effective assistance of counsel.

             The Court is mindful that [Counsel] has practiced many years, is
      very capable, and knows the process adequately to defend an individual in
      her role as an assistant public defender. She understands the rules. . . . .

              The Court finds no constitutional violations as alleged by the
      [Petitioner] and therefore the petition for post-conviction relief is denied.

      It is from this judgment that the Petitioner now appeals.

                                      II. Analysis

       On appeal, the Petitioner contends that the post-conviction court erred when it
denied his petition for post-conviction relief. He claims that he received the ineffective
assistance of counsel because Counsel failed to investigate the value of the stolen truck
and failed to argue that the value was less than $1,000. This, he contends, lead him to
plead to a greater class of felony which was “inappropriate” given the evidence and that
he should not have been encouraged to plead guilty. The State responds that the
Petitioner has not met his burden that he received the ineffective assistance of counsel.
We agree with the State.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. §40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). The post-conviction court’s findings of fact are conclusive
on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450,
456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are subject to a
purely de novo review by this court, with no presumption of correctness. Id. at 457.
“Where a petition conclusively shows that the petitioner is entitled to no relief, it is
properly dismissed without the appointment of counsel and without an evidentiary
hearing.” Givens v. State, 702 S.W.2d 578, 580 (Tenn. Crim. App. 1985).

            The right of a criminally accused to representation is guaranteed by both
the Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v.
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Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). The following two-prong test directs a court’s evaluation of a claim for
ineffectiveness:

              First, the [petitioner] must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the [petitioner] by
      the Sixth Amendment. Second, the [petitioner] must show that the
      deficient performance prejudiced the defense. This requires showing that
      counsel’s errors were so serious as to deprive the [petitioner] of a fair trial,
      a trial whose result is reliable. Unless a [petitioner] makes both showings,
      it cannot be said that the conviction or death sentence resulted from a
      breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417,
419 (Tenn. 1989).

        In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, a petitioner must show
that “counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at
690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the 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.” Burns, 6
S.W.3d at 462. Finally, we note that a defendant in a criminal case is not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only
what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)).

      Counsel should not be deemed to have been ineffective merely because a different
procedure or strategy might have produced a different result. Williams v. State, 599
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S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The fact that a particular strategy or
tactic failed or hurt the defense does not, standing alone, establish unreasonable
representation. However, deference to matters of strategy and tactical choices applies
only if the choices are informed ones based upon adequate preparation.” House, 44
S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

        If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994). To demonstrate prejudice in the
guilty plea context, the petitioner must show that there is a reasonable probability that,
but for counsel’s deficient performance, she would not have pleaded guilty and would
have insisted on going to trial. Calvert v. State, 342 S.W.3d 477, 486 (Tenn. 2011).

       The evidence presented in this case does not preponderate against the post-
conviction court’s findings. The evidence presented was that Counsel researched the
value of the truck and determined, based on the guide in the Kelley Blue Book, that the
truck had a value of more than $1,000. This determination was aided by the knowledge
that the vehicle had been purchased for $1,400. Through the lens of whether Counsel’s
performance in this regard was “prudent” or “appropriate,” we conclude that it was. We
point out that Kelley Blue Book has been recognized as an objective guide to valuing
vehicles. See Government Employees Insurance co. v. Linda Bloodworth, No. M2003-
02986-COA-R10-CV, 2007 WL 1966022, at *45 fn. 37 (Tenn. Ct. App., June 29, 2007)
(citing Martinez v. Enterprise Rent-A-Car Co., 119 Cal. App. 4th 46, 56 (2005); Hill v.
Mercedez-Benz USA, LLC, 274 Ga. App. 826,829; In re General Motors Corp. v. Pick-
Up Truck Fuel Tank Prods. Liabil. Litig., 55 F.3d 768, 816 (3d Cir. 1995). Relying on
the value named in the guide was a prudent strategy on the part of Counsel.

       Additionally, the Petitioner cannot show prejudice. The evidence was that
Counsel worked diligently to negotiate a “substantial break” for the Petitioner in his
comprehensive plea to a sentence considerably lower than the potential sentences for
these offenses. The Petitioner has not met his burden in showing that, had Counsel
presented more or different proof on the value of the truck, the outcome of his case would
have been different. The Petitioner is not entitled to relief.

                                    III. Conclusion

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

                                             ________________________________
                                              ROBERT W. WEDEMEYER, JUDGE




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