                                                                                          03/14/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 18, 2018

      TIMOTHY CLAYTON THOMPSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                      No. 90379    Bobby Ray McGee, Judge


                             No. E2018-00403-CCA-R3-PC


The Petitioner, Timothy Clayton Thompson, appeals from the Knox County Criminal
Court’s denial of his petition for post-conviction relief. The Petitioner contends (1) that
his guilty pleas were not knowingly and voluntarily entered because of the ineffective
assistance of trial counsel; and (2) that trial counsel failed to adequately prepare for the
Petitioner’s sentencing hearing. Discerning no error, we affirm the judgment of the
post-conviction court.

 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 NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.

Bailey M. Harned, Knoxville, Tennessee, for the appellant, Timothy Clayton Thompson.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Kevin James Allen,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                              FACTUAL BACKGROUND

       In 2002, the Petitioner pled guilty to one count of especially aggravated
kidnapping and one count of aggravated rape without a sentencing recommendation from
the State. State v. Timothy Clayton Thompson, No. E2002-01710-CCA-R3-CD, 2003
WL 21920247, at *1 (Tenn. Crim. App. Aug. 12, 2003), perm. app. denied (Tenn. May
16, 2012). Following a sentencing hearing, the trial court imposed sentences of
twenty-two years for each conviction and ordered them to be served consecutively, for a
total effective sentence of forty-four years. Id. This court affirmed the trial court’s
sentencing decision on direct appeal. Id. On May 16, 2012, our supreme court declined
to review this court’s opinion.

       The Petitioner was indicted for one count of especially aggravated kidnapping,
two counts of aggravated kidnapping, and four counts of aggravated rape. At the start of
the guilty plea submission hearing, the prosecutor announced that the Petitioner agreed to
plead guilty to especially aggravated kidnapping and one count of aggravated rape. The
prosecutor then stated that she would “not pursue the other” charges. Instead, they would
“merge” into the especially aggravated kidnapping and aggravated rape convictions. The
prosecutor noted that the Petitioner was entering a “blind plea” and that the State would
contest the Petitioner’s offender classification and “probably” ask the trial court at the
sentencing hearing to impose consecutive sentences.

        The trial court then informed the Petitioner that he was “entering a blind plea.”
Because the State was contesting the Petitioner’s offender classification, the trial court
informed the Petitioner that he faced a range of punishment between fifteen and sixty
years for the two Class A felonies. The Petitioner responded that he understood. The
trial court also informed the Petitioner that it would decide at the sentencing hearing the
length of his sentences and whether they would be served consecutively and that there
was “no promise of that today.” The Petitioner again responded that he understood. The
Petitioner stated that he had reviewed the plea agreement forms with trial counsel, that he
was “[m]ore than satisfied” with trial counsel’s representation, and that he was freely
pleading guilty. The trial court concluded that the Petitioner had voluntarily and
knowingly entered his guilty pleas.

        As a factual background for the Petitioner’s guilty pleas, the State provided that in
April 2000, the victim was at a car wash when the Petitioner came up behind her, hit her
on the head and back, and “forcefully placed her in his van.” The Petitioner “pulled out a
knife, placed it to [the victim’s] side[,] and told her that he didn’t want to hurt her and for
her to cooperate.” The Petitioner bound the victim’s hands and feet. The Petitioner took
off the victim’s pants and “engage[d] in sexual activity with her.” The Petitioner then
drove around with the victim. The victim “engaged in a conversation with the
[Petitioner].” The Petitioner told the victim his name. Additionally, the van he was
driving belonged to his employer and had the name and phone number of the Petitioner’s
employer on the side of the van. The Petitioner eventually returned the victim to her car,
and she contacted the police. The Petitioner was arrested and gave a statement to the
police “where he admitted to all of these allegations.”

       At the conclusion of the guilty plea submission hearing, the Petitioner made the
following statement:


                                              -2-
       Your Honor, first of all, I’d like to apologize to [the victim] . . . for--I know
       that she don’t [sic] want to accept an apology. But she did nothing wrong.
       I knew what I was doing, and I didn’t even try to cover up the fact. I told
       everybody who I was. I’m sorry. That’s all I’d like to say, your Honor.

       At the Petitioner’s sentencing hearing, the State requested that the Petitioner’s
presentence report be admitted into evidence. Trial counsel noted two errors in the
presentence report, including the fact that it incorrectly listed a conviction that the
Petitioner did not have. The trial court admitted the presentence report after noting trial
counsel’s corrections. The presentence report stated that the Petitioner had prior
convictions in Florida for false imprisonment, sexual battery with a deadly weapon, and
simple battery. The presentence report stated as follows about the Florida convictions:

       The [Petitioner’s] convictions in Florida in 1992 were the result of a similar
       kidnapping and rape of a female. On 02/02/92 he abducted a female at
       knife point from her vehicle after she had asked for directions. He took her
       to a secluded location, forced her to undress, forced her to [lie] on the
       ground and then had sexual intercourse with her. During this time, the
       [Petitioner] struck the victim in the head with the butt of his knife, and then
       choked her until she was unconscious. He then stood over the victim and
       masturbated until she regained consciousness.            At that point, the
       [Petitioner] began having intercourse with the victim a second time, and
       continued until the act was completed. The [Petitioner] then drove the
       victim back to where he had picked her up. Refer to attached investigative
       narratives from the Longwood, FL Police Department.

The Florida police reports were attached to the presentence report.

       The prosecutor argued for the Petitioner to be classified as a Range II, multiple
offender and subject to a sentencing range of twenty-five to forty years based upon his
Florida convictions. The prosecutor argued that the Petitioner’s Florida conviction for
false imprisonment should be treated like a conviction for especially aggravated
kidnapping because it involved a deadly weapon, a knife. The prosecutor argued that
both convictions could be counted in determining the Petitioner’s offender classification
despite having occurred within the same twenty-four hours because they both involved
bodily injury.

       In making these arguments, the prosecutor stated the following:

             So what we are saying is, if you look at the presentence report, the
       addendum to the presentence report, there’s a long narrative from the
       Longwood Police Department in Florida. It’s showing how that he
                                              -3-
       abducted the victim in Florida by using a folding knife and put it to her ribs.
       He drove her around for about a half an hour. He took her clothes off. He
       wouldn’t let her exit the vehicle, made her remove her clothes. He raped
       her. With the knife still to her ribs, he forced himself on her. He--at one
       time during this, he put his--he grabbed her throat and choked her. It goes
       on and on, Judge, about, on the second page, he took the knife eventually
       and hit --

        At that point, defense counsel objected to “the attachment of officers’ reports” and
the prosecutor’s “going into all of these details” because the prosecutor was “trying to
certify hearsay.” The trial court noted that the details of the Florida convictions had
“been put in as a part of the presentence report.” Trial counsel then objected “to it’s
inclusion in terms of the Court giving it weight.” The prosecutor noted that the details of
the Florida convictions had been included in the presentence report and were reliable
hearsay. The prosecutor also noted that she had provided the Florida “court file” and
police reports to trial counsel “in advance” of the sentencing hearing. The trial court and
trial counsel discussed trial counsel’s objection, and the trial court ultimately overruled it.

        The victim testified that after placing her in the van and raping her, the Petitioner
drove her around in his van for approximately two hours. The Petitioner talked to the
victim and made no attempt to hide his identity. The victim testified that the Petitioner
“initially” used a knife “to get [her] to pay attention to him.” The victim also testified
that she did not “remember seeing the knife until [the] investigator showed it to [her].”
Trial counsel asked the victim if she felt the knife, and the victim responded that she did
not because she had on “two layers of clothing.” However, the victim testified that the
knife “was pulled out” and pressed “against [her] side.”

        The Petitioner was called as a witness and testified about his background. The
Petitioner testified that his father was an alcoholic and abusive. The Petitioner also
testified that he was sexually abused by a relative when he was a child. The Petitioner
discussed his work history and past relationships. The Petitioner stated that he knew the
victim could identify him and that he would likely go to prison for what he had done, but
he released her because he “couldn’t hurt [any]body like that[,] . . . [s]he had already
been through enough.”

        Trial counsel asked the Petitioner if they had discussed “the possibility of going to
trial” and what he had instructed trial counsel to do. The Petitioner responded as follows:
“Well, I knew that if I wanted to take it to trial that you would. You’ve been an excellent
attorney. But I said no because I didn’t want to put [the victim] through anymore than
what she had already been through.” The Petitioner testified that he pled guilty without a
sentencing agreement for that reason. The Petitioner also testified that he had never
rethought his “instructions to [trial counsel] of pleading” guilty.
                                              -4-
       On cross-examination, the Petitioner was asked why he had attacked the victim.
The Petitioner responded that he did not know, “[i]t just happened.” The prosecutor
asked the Petitioner if he had used “a knife when [he] abducted” the victim. The
Petitioner responded that he “had knife on [his] hip, and [he] told her [he] had one[,] but
[he] never used it.” The Petitioner believed that the victim had mistaken another tool in
his van for a knife when she believed that she felt a knife pressed against her side.

       The Petitioner admitted that he was on probation for his Florida convictions when
he committed the instant offenses. The Petitioner was then asked about the facts of his
Florida convictions. The Petitioner claimed that he had not choked the Florida victim or
used a knife to get into that victim’s car. The Petitioner asserted that the Florida victim
had invited him into her car. However, the Petitioner admitted that he had a knife with
him during the incident in Florida. The Petitioner also admitted that he had the knife
“closed” in his hand as he beat the Florida victim. The Petitioner denied cutting the
Florida victim with the knife, stating that he “just used it as a persuasion.”

        The State argued that the Petitioner was a Range II, multiple offender, that several
enhancement factors applied, and that the trial court should impose consecutive sentences
for a total effective sentence between fifty and eighty years. Trial counsel argued that the
Petitioner’s background and the fact that he released the victim were mitigating factors
for the trial court to consider. Trial counsel also argued against all but one of the
enhancement factors the State sought to apply. Trial counsel further argued that the
Petitioner was a Range I, standard offender and for concurrent sentences.

       At the outset of its sentencing decision, the trial court noted that the Petitioner’s
Florida convictions were “very similar” to the instant offenses and that was “of great
concern to” it. The trial court also noted this incident was “very close to what happened
before, which [was not] a help to [the Petitioner] at all.” However, the trial court rejected
the State’s argument that the Petitioner was a Range II, multiple offender and classified
him as a Range I, standard offender with a sentencing range of fifteen to twenty-five
years for each conviction.1 Thompson, 2003 WL 21920247, at *3.

       The trial court considered the Petitioner’s “remorse for the offense” and his release
of the victim as a mitigating factor. Thompson, 2003 WL 21920247, at *3. The trial
court also accepted the Petitioner’s background and “steady employment history” as a
mitigating factor, but “assigned this factor little weight.” Id. “The trial court found
several enhancement factors,” including that the Petitioner committed the offenses to
gratify his sexual pleasure and excitement, that he caused bodily injury to the victim and

1
  The transcript of the Petitioner’s sentencing hearing contained in the appellate record is missing a page
from the trial court’s sentencing decision; therefore, we refer to this court’s direct appeal opinion for the
complete description of the trial court’s sentencing decision.
                                                    -5-
had a prior felony conviction involving bodily injury to a victim, and that he committed
the offenses while on probation. Id.

       The trial court imposed sentences of twenty-two years for each of the convictions,
elevated from the midrange of twenty years but less than the maximum of twenty-five
years. Thompson, 2003 WL 21920247, at *3. The trial court then ordered the sentences
to be served consecutively “finding that [the Petitioner] was a dangerous offender and
had committed the offenses while on probation.” Id. The Petitioner appealed his
sentences to this court, challenging both the length of his sentences and their consecutive
nature. Id. at *1. On August 12, 2003, this court affirmed the trial court’s sentencing
decision. Id.

        On November 17, 2008, the Petitioner filed a pro se petition for post-conviction
relief. The Petitioner was eventually granted a delayed appeal to the Tennessee Supreme
Court of this court’s direct appeal opinion. See Timothy Clayton Thompson v. State, No.
E2008-02819-CCA-R3-PC, 2010 WL 1539744 (Tenn. Crim. App. Apr. 19, 2010). After
our supreme court declined to review this court’s direct appeal opinion, counsel was
appointed to represent the Petitioner on his claims for post-conviction relief.

        An amended petition was filed, alleging that the Petitioner’s guilty pleas were not
knowingly and voluntarily entered because trial counsel failed to investigate if “the
victim was inconsistent regarding the presence of a knife during the commission of the
crime.” The Petitioner also alleged that trial counsel was ineffective for failing to prepare
for the sentencing hearing as evidenced by trial counsel’s not objecting to the inclusion of
the Florida police reports in his presentence report prior to the hearing.

       The Petitioner was the sole witness at the evidentiary hearing.2 The Petitioner
claimed that he met with trial counsel only four times prior to pleading guilty and that he
“only met with [him] for about ten minutes before” the guilty plea submission hearing.
According to the Petitioner, trial counsel never explained to him what he was charged
with or reviewed the State’s evidence with him. The Petitioner insisted that he told trial
counsel that he did not have a knife during the attack and that he did not threaten the
victim with a knife. The Petitioner asserted that he was not guilty of “what they charged”
him with and that trial counsel “basically pleaded guilty for [him].”

       The Petitioner admitted that he knew the victim had told the investigator that he
used a knife during the attack. The Petitioner also admitted that he told the investigator
that he had a knife on his side during the attack. However, the Petitioner claimed that he
only said this so the investigator would stop questioning him and take him to a hospital.
The Petitioner explained that he had been in the woods several days without food or

2
    Trial counsel died prior to the hearing.
                                               -6-
water before his arrest. The Petitioner also admitted that he testified at the sentencing
hearing that he had a knife on him during the attack. The Petitioner claimed that he had
lied during the sentencing hearing because trial counsel had warned him that if he “didn’t
just agree,” the trial court “would burn [him].”

        The Petitioner claimed that trial counsel assured him his sentences would be
between seventeen and twenty years and that the trial court would “run [them]
concurrent.” The Petitioner insisted that trial counsel never spoke to him about the
possibility of consecutive sentences. The Petitioner also claimed that trial counsel passed
him a note saying, “Relax [seventeen] or [twenty],” when he had a question during the
guilty plea submission hearing. The Petitioner admitted that the trial court informed him
at the guilty plea submission hearing that he could receive consecutive sentences, and he
stated that he understood. The Petitioner claimed that trial counsel never prepared him to
testify at the sentencing hearing.

         The Petitioner believed that he deserved a total effective sentence between fifteen
and twenty-five years. The Petitioner claimed that he would have insisted on going to
trial if he had known trial counsel would not challenge the victim about the presence of a
knife during the attack or had he known that he could receive consecutive sentences.
However, the Petitioner admitted that he “didn’t want to take [his case] to trial.”

        The post-conviction court orally denied the petition. The post-conviction court
concluded that trial counsel was not ineffective for failing to investigate the presence of a
knife during the attack. The post-conviction court found that the victim consistently
testified that a knife was present and that the Petitioner had admitted that he had a knife
with him to the investigator and at the sentencing hearing.

       The post-conviction court also concluded that the Petitioner did not enter his guilty
pleas without knowing that he could receive consecutive sentences. The post-conviction
court found that it was explained “over and over again” that the Petitioner was entering a
“blind plea” and that the Petitioner stated that he understood.

        The post-conviction court further concluded that trial counsel was not ineffective
for failing to object to the use of the Florida police reports at the sentencing hearing. The
post-conviction court found that trial counsel was “caught by surprise” when the
prosecutor started reading from the reports, but that he then “strenuously” objected to
their use. The post-conviction court also noted that the prosecutor only read a portion of
the reports, that she stopped after trial counsel’s objection, and that the trial court
sentenced the Petitioner from the bench without reading the reports.



                                             -7-
                                       ANALYSIS

       The Petitioner contends that his guilty pleas were not voluntarily and knowingly
entered. The Petitioner argues that trial counsel was ineffective for failing to “look into
whether . . . the knife was shown to or used against the victim in furtherance of the
crime” and by assuring the Petitioner that he would receive a sentence between seventeen
and twenty years if he pled guilty. The Petitioner also contends that trial counsel was
ineffective for failing to adequately prepare for the sentencing hearing. The Petitioner
argues that trial counsel failed to object to the inclusion of the Florida police reports in
the presentence report prior to the sentencing hearing and that trial counsel failed to
prepare the Petitioner to testify at the sentencing hearing. The State responds that the
post-conviction court did not err in denying the petition.

       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 v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). 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.
However, we review the post-conviction court’s application of the law to its factual
findings de novo with no presumption of correctness. Id. at 457.

       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, 279 S.W.3d at 293 (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).

       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. Prejudice requires
proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “Because a petitioner must
establish both prongs of the test, a failure to prove either deficiency or prejudice provides
                                             -8-
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).

        In the context of a guilty plea, like the present case, the effective assistance of
counsel is relevant only to the extent that it affects the voluntariness of the plea.
Therefore, to satisfy the second prong of Strickland, the petitioner must show that “there
is a reasonable probability that, but for counsel’s errors, he would not have [pled] guilty
and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see
also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). However, we note
that a petitioner’s “[s]olemn declarations in open court carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

       A petitioner’s sworn responses to the litany of questions posed by the trial
       judge at the plea submission hearing represent more than lip service.
       Indeed, the petitioner’s sworn statements and admission of guilt stand as a
       witness against the petitioner at the post-conviction hearing when the
       petitioner disavows those statements.

Alfonso C. Camacho v. State, No. M2008-00410-CCA-R3-PC, 2009 WL 2567715, at *7
(Tenn. Crim. App. Aug. 18, 2009).

        The transcripts of the guilty plea submission and sentencing hearings belie the
Petitioner’s claim that his guilty pleas were not knowingly and voluntarily entered.
Regarding the use of a knife during the offenses, the prosecutor described the Petitioner’s
use of a knife while providing a factual basis for the pleas, and the Petitioner did not
object to her description of the facts. Additionally, the victim testified at the sentencing
hearing that the Petitioner showed her the knife and pressed it against her side, although
she admitted that she did not initially remember the knife until it was shown to her by an
investigator. Furthermore, the Petitioner testified at the sentencing hearing that he had a
knife on him and told the victim that he had a knife during the offenses. The Petitioner
admitted at the post-conviction hearing that he knew prior to entering his guilty pleas that
the victim had told the investigator that he had used a knife during the attack. Similarly,
the Petitioner admitted that he told the investigator that he had a knife on his side during
the attack.

       Likewise, the record belies the Petitioner’s claim that he was unaware that he
could receive a total effective sentence greater than twenty years when he entered his
guilty pleas. The trial court explained to the Petitioner that he was “entering a blind plea”
and that it would determine the length of his sentences and whether they would be served
consecutively at a later sentencing hearing. The Petitioner stated that he understood this.
                                             -9-
The trial court also informed the Petitioner that the range of punishment for his
convictions was between fifteen and sixty years with his offender classification to also be
determined at the sentencing hearing. The Petitioner again stated that he understood.
The Petitioner stated that he had reviewed the plea agreement forms with trial counsel,
that he was freely pleading guilty, and that he was “[m]ore than satisfied” with trial
counsel’s performance. More importantly, the Petitioner testified at the sentencing
hearing that he had instructed trial counsel to accept a plea agreement without an agreed
upon sentence because he “didn’t want to put [the victim] through anymore than what she
had already been through.” Accordingly, we conclude that the Petitioner failed to prove
his factual allegation that his guilty pleas were not knowingly and voluntarily entered.

       At the sentencing hearing, the State argued that the Petitioner was a Range II,
multiple offender subject to a total effective sentence between fifty and eighty years.
Trial counsel successfully argued that the Petitioner was a Range I, standard offender;
argued for the application of two mitigating factors established by the Petitioner’s
testimony, which the trial court ultimately applied; and argued against the majority of the
enhancement factors sought by the State and the imposition of consecutive sentencing.
Trial counsel objected “strenuously” against the prosecutor’s use of the Florida police
reports during her argument. The majority of the facts described by the prosecutor were
contained in the narrative of the Petitioner’s presentence report. “Reliable hearsay” is
admissible at a sentencing hearing as long as “the opposing party is accorded a fair
opportunity to rebut any hearsay evidence so admitted.” Tenn. Code Ann. § 40-35-
209(b). Presentence reports have long been held to be reliable hearsay. See State v.
Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997).

       Moreover, the Petitioner has failed to establish that he was prejudiced by the
prosecutor’s use of the Florida police reports. The trial court did state that the
Petitioner’s Florida convictions were “very similar” to the instant offenses, that this was
“of great concern to” it, and that this incident was “very close to what happened before,
which [was not] a help to [the Petitioner] at all.” However, the Florida police reports
were not used to establish any of the enhancement factors that the trial court found. The
trial court did find that the Petitioner was dangerous offender as a justification for
imposing consecutive sentences. However, it was undisputed that the Petitioner was on
probation for his Florida convictions when he committed these offenses, and only one of
the grounds listed in Tennessee Code Annotated section 40-35-115(b) is needed to justify
consecutive sentencing. Accordingly, we conclude that the post-conviction court did not
err in denying post-conviction relief regarding trial counsel’s conduct at the Petitioner’s
sentencing hearing.




                                           -10-
                                  CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of
the post-conviction court is affirmed.



                                               _________________________________
                                               D. KELLY THOMAS, JR., JUDGE




                                        -11-
