        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 15, 2013

            YOVONDA S. CHAMBERS v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Williamson County
                     No. CR056483      Timothy L. Easter, Judge




                    No. M2012-02288-CCA-R3-PC - August 13, 2013


The Petitioner, Yovonda S. Chambers, pled guilty to one count of identity theft and agreed
to allow the trial court to determine sentencing. Pursuant to the plea agreement, the State
entered a nolle prosequi as to a second count of identity theft. After a sentencing hearing,
the trial court sentenced the Petitioner to four years to be served on intensive probation. The
Petitioner timely filed a petition seeking post-conviction relief on the basis of ineffective
assistance of counsel, which the post-conviction court denied after a hearing. The Petitioner
appeals the post-conviction court’s denial, claiming that her attorney failed to adequately
investigate the case, discuss the case with the Petitioner, and properly prepare for sentencing.
After a thorough review of the record, the briefs, and relevant authorities, we affirm the post-
conviction court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN and R OGER A. P AGE, JJ., joined.

Matthew J. Crigger, Franklin, Tennessee, for the Appellant, Yovonda S. Chambers.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel,
Criminal Justice Division; Kim R. Helper, District Attorney General; and Mary Katharine
White, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                          OPINION
                                           I. Facts

       The Petitioner timely filed a post-conviction petition, claiming that she received the
ineffective assistance of counsel. The Petitioner asserts on appeal that her attorney
(“Counsel”) failed to: (1) adequately investigate the charges; (2) review discovery with her;
(3) explain her sentence; and (4) prepare for the sentencing hearing.

      The Defendant has failed to provide a transcript of the guilty plea submission hearing.
The indictments, which are included in the record, provide the following as to Count 1:

       The Grand Jurors for Williamson County, Tennessee, duly impaneled and
       sworn, upon their oath, present that YOVONDA S. CHAMBERS, heretofore,
       to-wit, in January of 2009, inclusive, before the finding of this presentment, in
       said County and State, unlawfully, knowingly and feloniously did use personal
       identification of another person to wit: Erin Chambers, on a lease application,
       with the intent to commit any unlawful activity, without the consent of such
       person, in violation of Tennessee Code Annotated 39-14-150, a class D felony,
       and against the peace and dignity of the State of Tennessee.

As to Count 2, the indictment provides the following:

       The Grand Jurors for Williamson County, Tennessee, duly impaneled and
       sworn, upon their oath, present that YOVONDA S. CHAMBERS, heretofore,
       to-wit, in January of 2009 and March of 2009, inclusive, before the finding of
       this presentment, in said County and State, unlawfully, knowingly and
       feloniously did use personal identification of another person to wit: Erin
       Chambers, to subscribe to Direct TV, with the intent to commit any unlawful
       activity, without the consent of such person, in violation of Tennessee Code
       Annotated 39-14-150, a class D felony, and against the peace and dignity of
       the State of Tennessee.

        At the hearing on the petition, the parties presented the following evidence: Counsel
testified that he had been practicing law for twenty-five years, and his practice was mostly
comprised of criminal cases. Counsel recalled that the Petitioner contacted him several
months before her court appearance seeking representation but did not actually retain him
until shortly before her August 2011 court appearance.

        Counsel testified that the State made a plea agreement offer that required one year to
serve followed by probation. Counsel conveyed the offer, and the Petitioner declined,
believing she could “do better” at a sentencing hearing. The Petitioner pled guilty, with the
trial court to determine the manner of service of an agreed sentence. Counsel testified that
he could not recall the term of probation, but he said that the sentence did not involve
incarceration. Counsel said that he spoke with the Petitioner on “several occasions,” both
in person and by telephone, leading up to the guilty plea submission hearing. He recalled

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that, on at least one occasion, the Petitioner met with him at his office.

       Counsel testified that he was aware the Petitioner had additional cases in Rutherford
County. He said the cases were related to the Petitioner’s use of a false identity when
entering a lease agreement.

       Counsel said that the Petitioner’s position, from the time he first met with her, was
that she was guilty as to the first count of the indictment but was not guilty as to the second
count. Counsel said that, despite her admissions, he still wanted to review the State’s
discovery to determine if he could formulate a reasonable doubt defense. After reviewing
the State’s discovery and determining the State had “a very strong case” involving an
“outright confession,” he reviewed the evidence with the Petitioner. The Petitioner raised
concern about whether the Williamson County indictments violated double jeopardy
protections and, after further investigation, Counsel “pretty quickly rejected that.”

       Counsel testified that his strategy at the sentencing hearing was for the Petitioner to
take full responsibility for the offense and then for Counsel to demonstrate that the Petitioner
was a good candidate for probation based upon her willingness to be accountable, the fact
that she had no prior record, and that she was gainfully employed. Counsel said that the
Petitioner was the only witness he called to testify at the sentencing hearing.

       On cross-examination, Counsel agreed that he effectively negotiated dismissal of
Count Two of the indictment, which was the charge that the Petitioner contested. Counsel
agreed that the outcome of the sentencing hearing was that the Petitioner received a full
probation sentence with no time to serve in jail. Counsel said that, during his representation
of the Petitioner, her primary concern was avoiding the service of jail time. Counsel
explained his reason for rejecting double jeopardy as a defense. He said that, while the
Rutherford County incidents involved the same victim, the Williamson County incidents and
the Rutherford County incidents were separate and distinct criminal acts. He said that the
incidents occurred in different jurisdictions, on different dates, and involved entirely different
actions by the Petitioner.

       Counsel testified that one of the exhibits at the sentencing hearing was the Petitioner’s
handwritten statement admitting use of a false identity to obtain a rental lease. Counsel said
that he believed there was no basis upon which to request suppression of the statement.

       The Petitioner testified that she worked in the mail room at Vanderbilt Hospital. She
said that she had completed three years of college but had no “formal legal training.” The
Petitioner said that she contacted Counsel in June 2011 seeking representation for the
Williamson County charges. Although she met with Counsel in June, she did not retain him

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until the beginning of August 2011. The Petitioner recalled that she met with Counsel only
one time during his representation. During this initial meeting, she asked Counsel about
double jeopardy issues and, she told him about the Rutherford County cases.

        The Petitioner testified that Counsel never conveyed an offer to serve one year to her.
 She testified that on her August 9, 2011 court date, Counsel stepped out in the hall with her,
briefly discussed the discovery, and told her he was negotiating a settlement. The Petitioner
testified that Counsel told her what she would plead guilty to before they went into the
courtroom for the guilty plea submission hearing. She said that she had “no idea” what it
meant to enter an “open plea.” When asked if Counsel explained the term to her, she stated
the following:

       No, I think he just told me information that he felt as though I needed to know,
       and I didn’t ask any questions, pretty much per se, because I didn’t know what
       type of questions to really ask for, you know? He just - - he was in such a
       crunch for time, you know, just wasn’t, you know, he didn’t give me too much
       information to elaborate on a lot of things to explain a lot of things in full
       detext (sic) for my understanding.

She said that her discussion with Counsel before she pled guilty was “two minutes or so.”

       The Petitioner testified that she did not meet with Counsel between her guilty plea
submission hearing and the sentencing hearing but that she did speak with him on the
telephone. She said he did not discuss with her the consequences of her testifying at the
sentencing hearing or the possibility that convictions can be used to enhance a sentence on
subsequent charges.

        On cross-examination, the Petitioner agreed that she signed the plea negotiation
paperwork and stipulation. The Petitioner said that she did not review the documents she
signed but that she did understand her rights as explained to her by the trial court at the time
of her guilty plea. Upon further questioning, the Petitioner agreed that, during the guilty plea
submission hearing, she told the trial court that Counsel reviewed the plea negotiation
paperwork with her. She then said, “So, yeah, I did actually go over that with my attorney.”
The Petitioner further agreed that she told the trial court during the plea colloquy that she was
satisfied with Counsel’s representation. She denied that her “goal” was a probation sentence
and clarified that her “goal” was to have the cases dismissed on the basis of double jeopardy
violations.

       The Petitioner testified that both Counsel and another attorney told her that her cases
did not present a valid double jeopardy defense. She agreed that she chose to retain Counsel

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after he had already told her that there were no double jeopardy grounds upon which to
challenge her charges. She further agreed that she also chose to enter a guilty plea. Despite
this, the Petitioner maintained that her “goal” when retaining Counsel had not changed.
When asked in what way Counsel had not represented her well, the Petitioner stated that she
did not “feel” that Counsel “spent enough time of investigating information.”

       After the proof, the trial court orally made the following findings:

                The Court finds, based upon the proof of [Counsel], as well as [the
        Petitioner], that she has failed to establish this claim by clear and convincing
        evidence. There is insufficient evidence presented here today that the Court
        should make an exception to any rule governing the rules of post-conviction
        relief.

                The evidence that’s before the Court today is that there’s nothing that
        [Counsel] could have done that would have changed the outcome of [the
        Petitioner’s] conviction as to Count One. It’s clear from the proof, from her
        testimony, that she confessed, made statements to law enforcement regarding
        that issue. I’m satisfied that the claim of double jeopardy and that perhaps
        Count One occurred in another county is not supported either by the proof in
        the original file, [Counsel]’s testimony, or for that matter, [the Petitioner’s]
        testimony.

                All disputed issues presented by the [P]etitioner today, and in her
        pleadings, are found to be resolved in favor of [Counsel]. Any discrepancies
        between their two testimonies, the Court finds [Counsel] to be the more
        credible witness and resolves all issues in his favor. The Court cannot find,
        by clear and convincing evidence, that [Counsel]’s performance was
        deficient. Under the circumstances and facts, and the overwhelming, frankly,
        evidence in this case, the Court finds that [Counsel] did the job that an
        attorney of his caliber should do in representing the [P]etitioner. She has
        failed to demonstrate to the Court that [Counsel] made errors so serious that
        the attorney was not functioning as counsel guaranteed under the Sixth
        Amendment of the United States Constitution, and that his deficient
        representation prejudiced her in any way resulting in a failure to produce a
        reliable result.

Based on these findings, the post-conviction court denied the petition. It is from this
judgment that the Petitioner now appeals.



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                                          II. Analysis

       On appeal, the Petitioner contends that she received the ineffective assistance of
counsel. Specifically, she asserts that Counsel failed to: (1) adequately investigate the case;
(2) adequately discuss discovery with the Petitioner; (3) properly advise the Petitioner about
the consequences of an open guilty plea; and (4) properly prepare for the sentencing hearing.
The State responds that the Petitioner has failed to prove her factual allegations by clear and
convincing evidence and that, therefore, the post-conviction court should be affirmed. 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 (2012). 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) (2012). Upon review, this Court will not re-weigh or re-evaluate the evidence below;
all 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 trial judge,
not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999) (citing Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-conviction court’s factual findings
are subject to a de novo review by this Court; however, we must accord these factual findings
a presumption of correctness, which can be overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. 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.

       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. 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.

                                               -6-
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also 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 Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

        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 should avoid the “distorting
effects of hindsight” and “judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S.
at 689-90. 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 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, 938 S.W.2d at 369).

       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).



                                              -7-
       The State correctly points out the Petitioner has failed to include the transcripts from
the guilty plea submission hearing and the sentencing hearing. We note that defendants have
a duty to prepare a record that conveys “a fair, accurate and complete account of what
transpired with respect to the issues which form the basis of the appeal” and will enable the
appellate court to decide the issues. Tenn. Rule App. P. 24(a); see State v. Taylor, 992
S.W.2d 941, 944 (Tenn. 1999).

               It is well-established that an appellate court is precluded from
       considering an issue when the record does not contain a transcript or statement
       of what transpired in the trial court with respect to that issue. Moreover, the
       appellate court must conclusively presume that the ruling of the trial judge was
       correct, the evidence was sufficient to support the defendant's conviction, or
       the defendant received a fair and impartial trial. In summary, a defendant is
       effectively denied appellate review of an issue when the record transmitted to
       the appellate court does not contain a transcription of the relevant proceedings
       in the trial court.

State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990). While we acknowledge the
deficiencies in the record, it provides a sufficient amount of information for us to review the
issues presented.

        Our review of the record reveals that the evidence does not preponderate against the
trial court’s findings. The Petitioner never denied guilt as to Count One of the indictment.
Her handwritten statement to police, discussions with Counsel, and statement for the
presentence report all reflect her admission of guilt as to Count One. Her handwritten
statement and statements to Counsel reflect that she denied guilt as to Count Two, the charge
for which Counsel successfully negotiated a dismissal.

       Counsel reviewed the discovery and found the State had a “strong case,” which
included the Petitioner’s handwritten admission to police. The trial court credited Counsel’s
testimony that he spoke with the Petitioner regarding the case on several occasions and
reviewed the discovery with her.

       As to the Petitioner’s contention that Counsel failed to explain what it meant to enter
an open plea, Counsel said that the Petitioner believed her chances were better at the
sentencing hearing than the State’s offer of one year to serve. Moreover, the results at the
sentencing hearing were, in fact, more favorable to the Petitioner in that she avoided a jail
sentence. Furthermore, the Petitioner’s testimony at the hearing belie her assertion that
Counsel did not review her sentence with her. After denying reading the plea agreement
documents, she acquiesced that Counsel did review her guilty plea agreement with her. Her


                                              -8-
understanding of the guilty plea agreement is also evidenced by her signature on the guilty
plea agreement paperwork and dialogue with the trial court during the plea colloquy as read
by the State during the post-conviction hearing cross-examination of the Petitioner. Finally,
the evidence showed that Counsel planned a reasonable strategy for the sentencing hearing
and was able to obtain for the Petitioner a fully probated sentence.

       We conclude that the post-conviction court did not err when it denied relief. The
Petitioner failed to show that Counsel’s representation was ineffective and that she was
prejudiced by Counsel’s representation. The Petitioner is not entitled to relief.

                                     II. Conclusion
       After a thorough review of the record and relevant authorities, we conclude that the
post-conviction court properly denied post-conviction relief. Accordingly, we affirm the
judgment of the post-conviction court.

                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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