        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs February 8, 2005

                 UNTE HENDERSON v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Rutherford County
                             No. F-54159    Don R. Ash, Judge



                     No. M2004-00938-CCA-R3-PC - Filed April 15, 2005


The petitioner, Unte Henderson, appeals from the Rutherford County Circuit Court’s denial of his
petition for post-conviction relief from his guilty pleas to second degree murder and conspiracy to
commit aggravated robbery and effective nineteen-year sentence. He contends that he received the
ineffective assistance of counsel because his attorney coerced him into pleading guilty. We affirm
the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J. C.
MCLIN , JJ., joined.

Larry D. Brandon, Murfreesboro, Tennessee, for the appellant, Unte Henderson.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; William
C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                           OPINION

        This case arises from the robbery and murder of Cory Talley. On January 10, 2003, the
petitioner pled guilty to second degree murder and conspiracy to commit aggravated robbery. At the
plea acceptance hearing, the state summarized the evidence against the petitioner as follows:

                       On or about March 18, 2002, that Mr. Henderson, along with
               Mr. Crawford, did involve themselves in a robbery of a victim named
               Mr. Cory Talley. The location of this event was, Hookers Bait and
               Tackle Shop, in Rutherford County, State of Tennessee. And that at
               this particular location where this happened that Mr. Crawford, who
               is the codefendant, the state believes fatally shot Mr. Talley, two
               times with a 380 caliber handgun.
                        During part of this altercation, Mr. Henderson was in contact
                with the victim, Mr. Talley, and at some point did have his hands on
                him and was holding him. After Mr. Talley had been shot the proof
                would be that it appears from the evidence and from the statements
                given that his pockets were gone through. There were items taken
                from his vehicle. And after that Mr. Henderson and Mr. Crawford
                then fled the scene. They were developed as suspects. They were
                interviewed by the police. As a result of that interview there was
                bloody clothes recovered from a trash dumpster. In that trash
                dumpster there were clothes that apparently were worn by Mr.
                Henderson at the time that did have what the state believed to be the
                victim’s blood on them. Also a weapon was recovered. It was found
                in a local body of water by Detective Jack Keisling of the sheriff’s
                department. That firearm was sent to the lab and was determined to
                be the murder weapon.

                        Judge, both Mr. Crawford and Mr. Henderson were
                interviewed by the police. And as a result after those interviews or
                during those interviews they did tell, although different stories at
                different times about what happened, they both did make statements
                that were very inculpatory and weighs out to a confession as to their
                involvement both in the robbery and in the murder.

         Following the state’s proffer, the trial court informed the petitioner of his constitutional right
(1) to a speedy and public trial, (2) to a jury trial, (3) to the assistance of counsel, (4) to see, hear and
cross-examine witnesses, (5) to compel the production of favorable evidence, (6) to a presumption
of innocence, (7) to remain silent, (8) to have a jury impose any fine in excess of $50 and, if
convicted, (9) to file a motion for new trial. The trial court asked the petitioner if his attorney had
explained the range of punishment and what the state would have to prove in order to convict him,
as well as defenses available, and if the petitioner had gone over the plea agreement with his
attorney. The petitioner answered these questions in the affirmative. The trial court asked the
petitioner if he had been forced or coerced to enter the plea and if the petitioner had any “gripes or
complaints” against his attorney. The petitioner replied no to each question. The trial court accepted
the petitioner’s pleas, found him guilty of second degree murder and conspiracy to commit
aggravated robbery, and sentenced him to nineteen years for the second degree murder and three
years for the conspiracy to commit aggravated robbery, to be served concurrently in the Department
of Correction.

        The petitioner filed his petition for post-conviction relief claiming that he received the
ineffective assistance of counsel because he was coerced by his attorney into pleading guilty. The
petition asserts that the petitioner’s attorney advised him that if he went to trial, he would be
convicted of first degree murder and would be sentenced to fifty-one years. The petition alleges that
the petitioner felt coerced because he did not receive videotapes of witnesses until the day before he


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was to enter his plea. The petition also alleges that the petitioner requested a change of venue, that
his attorney told him he would file the necessary motion, but that he never received a copy.

         At the post-conviction hearing, the petitioner testified that he felt coerced because he did not
receive videotapes of witnesses the state intended to call until the day before the plea acceptance.
He said the videotapes were brought to the jail for him to review. He said he reviewed the
videotapes and saw the witnesses that would be presented to testify against him at trial. The
petitioner said that he and his attorney had conflicting views about one of the witness’s testimony.
He said the attorney believed the testimony was damaging but that he did not. The petitioner
testified that his attorney encouraged him to plead guilty based on that one witness’s testimony. The
petitioner testified that he and his attorney did not review the videotapes together. The petitioner
also claims that he was coerced because he did not receive documents pertaining to his trial until the
last minute. However, the petitioner conceded that he had the opportunity to review the documents.
The petitioner testified that he was given all the videotapes and two hours to review them at the jail.
The petitioner said he did not make a complaint against his attorney because he thought he was
supposed to go along with everything.

        The petitioner testified that he based his decision to plead guilty on his attorney’s judgment.
He said he did not feel that he should have pled guilty. The petitioner testified that he did not
understand what he was doing at the time he entered his plea. He said he answered “yes” to the
questions that he was asked because he thought if he did not, the plea would be taken away, and he
would receive a sentence of fifty-one years. The petitioner testified that he and his post-conviction
attorney had met and gone over the transcript from the plea acceptance hearing. He acknowledged
that his testimony at the post-conviction hearing was different from his testimony at the plea
acceptance hearing.

         The petitioner testified that he met with his trial attorney four or five times after he was
appointed and that he understood what he was charged with. He said he did not think he had a
chance to review everything before trial because he did not receive all of it until the last minute. He
said his trial attorney told him that if he did not take the plea, he would get a worse sentence. The
petitioner testified that he wanted a change of venue because of pretrial publicity. He said he knew
of no hearing regarding a change of venue. He said his attorney’s performance was deficient for
failing to attempt to change venue.

        On cross-examination, the petitioner acknowledged that there was only one videotape he did
not watch, that he had no complaints about watching the videotapes, and that he watched the
videotapes he wanted to watch. The petitioner also said that he read all the documents he received
pertaining to his trial and that he had no complaints about reading the documents. The petitioner
acknowledged he received letters from his attorney regarding an offer, about motions, and about the
charges against him. He said that his attorney discussed the charges against him and told him he
could receive up to fifty-one years. The petitioner acknowledged that he met with his trial attorney
five or six times and that he spent as much time as needed with his attorney when he met with him.



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The petitioner acknowledged that he knew he could have gone to trial, testified, and subpoenaed
witnesses.

        The petitioner’s trial attorney testified that he was appointed to represent the petitioner in
September 2002. Following his appointment, he obtained a copy of the court file, filed pretrial
motions, filed a discovery request, and went to see the petitioner. He testified that the first time he
met with the petitioner, he spent about three hours with him going over the indictment, reviewing
the court file, and discussing the facts of the case. He said he explained the charges to the petitioner,
gave the petitioner copies of statutes under which the petitioner was charged, as well as sentencing
statutes for first degree murder, and reviewed them with the petitioner.

       The trial attorney testified that he and the petitioner did not watch the witness videotapes
together because the petitioner became upset and refused to watch the tapes further. He said he did
discuss the contents of the videotapes with the petitioner and how they would be used at trial.

        The trial attorney testified that he never discussed with the petitioner what the length of his
sentence might be. He said he gave the petitioner a copy of the sentencing statutes on murder and
let him derive from that his exposure. The trial attorney stated that he never told the petitioner that
proceeding to trial would result in a conviction. However, he said he did tell him that if he did not
win at trial, he would face a substantial period of time in the penitentiary. The trial attorney testified
that he never discussed a change of venue with the petitioner. He said that he knew nothing to
indicate the petitioner was coerced into pleading guilty. He said the petitioner was an intelligent
young man, who had plenty of time to digest his choices.

        On cross-examination, the trial attorney acknowledged that he had represented a large
number of people charged with serious crimes, conducted several trials, and tried several murder
cases. He stated he believed he did what was best for the petitioner by advising him to plead guilty.
The attorney said that he reviewed the plea agreement with the petitioner and that the petitioner knew
what he was doing by entering into the plea agreement.

        The trial court found that the petitioner failed to show his trial attorney’s performance fell
below the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984). It found the attorney’s representation to be “outstanding.” It also found nothing to
undermine the confidence and the outcome of the guilty plea. It further found that the plea was
voluntarily entered and free from coercion based upon petitioner’s intelligence; his familiar attitude
with criminal proceedings; the fact that he was represented by competent counsel and had
opportunity to confer with counsel; the advice of counsel and the court about the charges against the
petitioner; and the petitioner’s reasons for pleading guilty, including the desire to avoid a greater
penalty in a jury trial.

        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). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates against


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those findings. Fields v. State, 40 S.W.3d 450, 456 (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.

        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, 466 U.S. at 687, 104 S. Ct. at 2064; see Lockhart v. Fretwell,
506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). In other words, a showing that counsel’s
performance falls below a reasonable standard is not enough; rather, 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, 104 S. Ct. at 2068. When a petitioner pleads guilty, he must show a
reasonable probability that, but for the errors of his counsel, he would not have pled guilty. See Hill
v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Adkins v. State, 911 S.W.2d 334, 349
(Tenn. Crim. App. 1994).

        The petitioner contends that he received the ineffective assistance of counsel because his
attorney coerced him into pleading guilty instead of going to trial. The petitioner also contends he
was coerced into pleading guilty because he did not receive videotapes of the state’s witnesses until
the day before he was supposed to enter his guilty plea. The state claims that the petitioner was not
coerced and that he voluntarily entered his plea. We agree with the state.

       At the post-conviction hearing, the petitioner’s trial attorney testified he did not know
anything to indicate that the petitioner was coerced into pleading guilty. The attorney also stated that
he would not have let the petitioner enter the plea if the petitioner did not know what he was doing.
During the post-conviction hearing, the trial court asked the petitioner the following questions
concerning his testimony at the plea acceptance hearing:

               THE COURT:                      Stop there, on page 6, Line 15, I asked
                                               you under oath, you got any gripes or
                                               complaints against him, what did you
                                               tell me?

               [THE PETITIONER]:               I said no sir.

               THE COURT:                      On Page 6, Line 1, sir, has anyone
                                               forced you or coerced you to enter this
                                               plea today. What was your answer?

               [THE PETITIONER]:               No, sir.




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              THE COURT:                      So, what am I supposed to do? Just
                                              guess whether or not you’re telling me
                                              the truth?

              [THE PETITIONER]:               No. I understand what your position
                                              is. I just didn’t want you to take the
                                              plea back from me then at the time.
                                              Because I thought if you did I was
                                              going to get a life sentence.

              THE COURT:                      Right. You were afraid if you went to
                                              a jury trial, you were going to get a life
                                              sentence, right?

              [THE PETITIONER]:               Yes, sir. Because my lawyer, who
                                              supposed to be defending me, this is
                                              what he is telling me.

              THE COURT:                      He was right, wasn’t he? If you were
                                              convicted you could have gotten a life
                                              sentence.

              [THE PETITIONER]:               Yes, sir.

              THE COURT:                      If I set this aside and we have a trial,
                                              you understand you’d be going to the
                                              penitentiary for 51 years, never getting
                                              out.

              [THE PETITIONER]:               Yes, sir. I’m ready to take that
                                              chance, your Honor.

We conclude that the evidence does not preponderate against the trial court’s finding that the
petitioner failed to show by clear and convincing evidence that he was coerced into accepting the
plea agreement.

       Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                      ___________________________________
                                                      JOSEPH M. TIPTON, JUDGE



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