        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 18, 2016

                  RONNIE MILLS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                       No. 95923 Steven W. Sword, Judge


                  No. E2015-01066-CCA-R3-PC – Filed July 6, 2016


The Petitioner, Ronnie Mills, appeals as of right from the Knox County Criminal Court’s
denial of his petition for post-conviction relief. On appeal, he contends that his pleas
were unknowing and involuntary due to counsel’s misinforming him regarding the
specific terms of his plea agreement with the State and counsel’s subsequent failure to get
those terms in writing or object when the alleged agreement was not honored. Following
our review, 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 THOMAS T.
WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.

J. Liddell Kirk (on appeal) and Bruce A. Alldredge (at hearing), Knoxville, Tennessee,
for the appellant, Ronnie Mills.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Charme P. Allen, District Attorney General; and Phillip H. Morton, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                              FACTUAL BACKGROUND

        On April 16, 2012, the Petitioner pled guilty to possession with intent to sell .5
grams or more of a schedule II controlled substance, a Class B felony; possession with
intent to sell a schedule III controlled substance, a Class D felony; simple possession, a
Class A misdemeanor; and possession of drug paraphernalia, a Class A misdemeanor. At
the guilty plea submission hearing, the State provided the following factual basis
underlying the offenses:

       [O]n March 17th of 2010, a little after midnight, [the Petitioner] was
       operating a motor vehicle that was stopped for running a stop sign at Kelle
       and Hollywood, and also had a brake light out during that process. He . . .
       thereafter gave consent to search his . . . vehicle.

              During the search, the officer[] with the Knoxville Police
       Department, Randall Smith, discovered a loaded .45 single-shot pistol
       under the driver’s seat, and also a baggie containing 15.5 grams of cocaine.
       In the back seat, they also found some plastic baggies, needles, and scales,
       and also found 293 pills.

               All these items--drug items were sent to the lab, and the lab
       confirmed the presence of cocaine in the amount of 13.3 grams;
       methylphenidate, 20 tablets; dihydrocodeinone, 36 tables; oxycodone, 60
       tablets; and morphine, 12 tablets. All these--or these items were packaged
       in a manner consistent with resale.

The State informed the court that it had “no specific agreement” with the Petitioner.

       The trial court engaged the Petitioner in a plea colloquoy, explaining that he was
pleading guilty and detailing the rights he was waiving by entering guilty pleas. The
Petitioner said that he understood the prosecutor’s statement about the plea agreement.
He acknowledged that he was pleading guilty to four offenses and that he understood the
potential range of punishment for each offense. The Petitioner affirmed that he
understood that the court would be determining his sentence.

        The trial court asked the Petitioner whether he understood that “by pleading guilty,
[it was] up to [the court] to determine whether or not [he was] appropriate for probation
or [would] have to serve all or a portion of these sentences in jail, and what the length of
[his] sentence w[ould] be.” The Petitioner said that he understood.

       The Petitioner agreed that he and his attorney had discussed a document entitled
“Waiver of a Trial by Jury and Request for Acceptance Plea of Guilty” and that he had
understood and signed the document. The Petitioner said that he did not have any
questions about the entry of guilty pleas or his waiver of rights. He confirmed that he
was satisfied with his counsel’s representation.

      The trial court delayed acceptance of the pleas until the sentencing hearing, which
was scheduled for May 25, 2012. A transcript of that hearing was not included in the
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appellate record. It appears that during the sentencing hearing, the Petitioner left court
and did not make another appearance in court until over six months later. The judgments
were ultimately entered on April 18, 2013. The Petitioner received a total effective
sentence of thirteen years to be served at thirty-five percent.

       On April 15, 2014, the Petitioner filed a “Motion for Withdrawal of Guilty Plea
for Breach of Contract,” which the court construed as a petition for post-conviction relief.
Counsel was appointed, and an amended petition was filed. The amended petition
alleged that the Petitioner was entitled to relief based on claims that his counsel was
ineffective and that his guilty pleas were unknowingly and involuntarily entered.
Specifically, the Petitioner alleged that counsel failed to properly investigate and prepare
a defense. The Petitioner further asserted that his lack of confidence in his attorney’s
performance “compelled” him to enter guilty pleas. Additionally, he claimed that
counsel failed to properly advise him with regard to the sentence he would receive,
including the likelihood that he would be placed on probation. Finally, the Petitioner
alleged that “the prosecutor and trial court breached the plea agreement by
recommending and sentencing . . . the Petitioner to [thirteen] years[’] imprisonment
rather than placing him on [eight] years[’] probation, as was agreed to in the plea
agreement.”

       At the March 13, 2015 evidentiary hearing, the Petitioner testified that he never
intended to proceed to trial and that counsel was retained for the purpose of negotiating a
plea agreement. He said that his understanding of the agreement was that his “sentence
would be between eight and [ten] at [thirty] percent, eight years[’] probation if [he]
cooperated and done [sic] what they asked [him].” According to the Petitioner, he
cooperated fully with the State, explaining that he “went and talked to [the State] and
everything else, but . . . didn’t have enough time to actually get anything worked out.”
He said that thirty days elapsed between the date he entered his guilty pleas and his
sentencing hearing. The Petitioner testified that he thought the sentencing hearing was
going to be continued so that he would have an opportunity to work with “them,”1 but the
prosecutor did not agree to a continuance.

       The Petitioner said that he met with counsel three or four times at counsel’s office
and that each meeting lasted from ten to twenty minutes. He said that counsel advised
him that he was going to be classified as a Range I offender and was facing “no more
than [ten years] . . . at [thirty] percent,” and that if he “cooperated, [the prosecutor] would


1
 Although the Petitioner testified that he provided “them the information, phone numbers,” and addresses
and did “everything that was asked of [him],” the exact nature of his purported agreement to “cooperate”
with police and prosecutors is unclear from the record.

                                                  -3-
go below that, would give [him] the eight years[’] probation.” He opined that counsel did
not adequately advise him regarding the potential penalties and exposure he was facing.

       The Petitioner testified that counsel was not sufficiently prepared for the
sentencing hearing because counsel “stated to [him] that he had a deal worked out,” but
from what the Petitioner now understood, he did not. However, the Petitioner later said
that he blamed the prosecutor for the “breach” of the plea agreement.

       The Petitioner said that “even though it was an oral plea agreement, [counsel]
didn’t . . . object or do anything at sentencing.” The Petitioner agreed that the written
plea agreement did not contain any of the terms that he was now claiming were promised
and that there was no recommendation for sentencing. Nevertheless, the Petitioner
insisted that he relied upon verbal assurances from the prosecutor. He said that he
entered into the plea agreement as written because counsel told him that it was in his best
interest to do so and that counsel assured him that the prosecutor would honor the
purported verbal agreement.

        On cross-examination, the Petitioner admitted that he had been through the
criminal justice system many times in the past and that he had ten previous convictions,
all of which he had pled guilty to.2 He further agreed that he knew what was “involved in
pleading guilty to a crime[.]”

       The Petitioner said that his understanding of the plea agreement was that he faced
a maximum of ten years’ incarceration if he did not cooperate, but that if he did cooperate
with the authorities, then he would receive an eight-year probated sentence. The
Petitioner admitted that the transcript from the guilty plea hearing was devoid of any
mention of these terms and that the prosecutor stated, explicitly, that there was no
specific agreement in place. He further acknowledged that the judge told him he was
entering a “blind plea” and that the judge would determine the length and manner of
sentence.

       According to the Petitioner, he was “very upset” on the date of his 2012
sentencing hearing when he realized he would not receive an eight-year probated
sentence. The Petitioner said that during a recess in the sentencing hearing, he went to
the bathroom where he had a panic attack. The Petitioner left the courthouse and “went
straight to the emergency room.” The Petitioner’s wife attempted to call counsel and tell
him about the Petitioner’s medical condition, but she was unable to reach him. The
Petitioner acknowledged that he did not return to court for another six to eight months.

2
 He later clarified that some of the guilty pleas had been entered at the same time, but he nonetheless
admitted being familiar with the plea process.

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He said that he was in touch with counsel during this time, and counsel told him that he
was “trying to get it worked out.”

      The Petitioner was the only witness at the evidentiary hearing; counsel was
deceased at the time of the hearing.

        On April 28, 2015, the post-conviction court entered a detailed order denying
relief. The court found that the record supported that the Petitioner entered into a “pure
blind plea,” with sentencing to be at the court’s discretion. The court noted that
“procedural safeguards” were followed before the Petitioner’s pleas were accepted. The
court pointed out that the prosecutor specifically stated at the guilty plea submission
hearing that there was no specific agreement with regard to sentencing.

       The court acknowledged that counsel could not refute the Petitioner’s allegations
but emphasized that the burden was on the Petitioner to prove his allegations of fact. The
court concluded that the Petitioner failed to meet that burden. Despite concluding that
counsel’s performance was not deficient, the court examined the prejudice prong, again
concluding that the Petitioner failed to prove prejudice. The court noted that the
Petitioner “clearly wanted a plea agreement, not to go to trial.”

       With respect to the Petitioner’s claim that his pleas were unknowing and
involuntary, the court found that during the plea colloquoy “the Petitioner affirmatively
stated at least four times that he was pleading voluntarily, that no one forced him to do
so, and that he understood the implications of his pleading guilty.”

       The court explicitly discredited the Petitioner’s claim that he had an “unwritten
agreement” with the State. The court found that the evidence indicated that the State
informed the Petitioner that his cooperation with the police might assist him during
sentencing but that no guarantees were made. According to the court, there was no
evidence, other than the Petitioner’s own contention, that an unwritten plea agreement
existed. Accordingly, the Petitioner also could not prove that the State breached the plea
agreement.

       It is from this decision that the Petitioner now appeals.

                                        ANALYSIS

      On appeal, the Petitioner contends that trial counsel was ineffective by
misinforming him about the terms of his plea agreement with the State and by failing to
ensure that the State honored that plea agreement. The Petitioner further contends that
counsel’s ineffective assistance in this respect rendered his guilty pleas unknowing and
involuntary. The State responds that the Petitioner is not entitled to post-conviction relief
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because he failed to present clear and convincing evidence that a plea agreement
encompassing a sentencing recommendation existed or that counsel misinformed him
regarding that agreement.

       In a post-conviction proceeding, the burden is on the petitioner to prove the factual
basis of 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 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 (Tenn.
2001). Additionally, “questions concerning the credibility of the 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. 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 to the United States Constitution, 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 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. 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, 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 pleaded 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).

       When analyzing the voluntariness of a guilty plea, we look to the federal standard
announced in Boykin v. Alabama, 395 U.S. 238 (1969), and the state standard set forth in
State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542
(Tenn. 1999). In Boykin, the United States Supreme Court held that there must be an
affirmative showing in the trial court that a guilty plea was voluntarily and knowingly
given before it can be accepted. 395 U.S. at 242. Similarly, in Mackey the Tennessee
Supreme Court required an affirmative showing of a voluntary and knowledgeable guilty
plea, namely, that the defendant has been made aware of the significant consequences of
                                           -6-
such a plea. Pettus, 986 S.W.2d at 542. A plea is not “voluntary” if it results from
ignorance, misunderstanding, coercion, inducements, or threats. Blankenship v. State,
858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if the guilty plea is
“knowing” by questioning the defendant to make sure he or she fully understands the plea
and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858 S.W.2d at 904.

        Because the plea must represent a voluntary and intelligent choice among the
alternatives available to the defendant, the trial court may look at a number of
circumstantial factors in making this determination. Blankenship, 858 S.W.2d at 904.
These factors include: (1) the defendant’s relative intelligence; (2) his familiarity with
criminal proceedings; (3) whether he was represented by competent counsel and had the
opportunity to confer with counsel about alternatives; (4) the advice of counsel and the
court about the charges against him and the penalty to be imposed; and (5) the
defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in
a jury trial. Id. at 904-05.

       Following our review, we conclude that the record supports the post-conviction
court’s conclusion that the Petitioner knowingly and voluntarily entered into open guilty
pleas, with sentencing left to the discretion of the trial court. Indeed, there is nothing in
the record, save the Petitioner’s bare assertions, that the State verbally promised the
Petitioner a fully-probated eight-year sentence in exchange for his “cooperation” with
police and prosecutors. The post-conviction court explicitly discredited that Petitioner’s
claim that such an agreement existed. Additionally, the Petitioner has provided no
substantial proof that counsel assured him that such a deal existed. The written plea
agreement signed by the Petitioner contains notations next to each count stating that the
“sentence [was] to be determined.” Also, the Petitioner testified that he never intended to
proceed to trial and that he hired counsel with the explicit purpose of entering into a plea
agreement.

        The transcript of the guilty plea submission hearing reveals that the State
announced in open court that there was “no specific agreement” in place. Likewise, the
trial court informed the Petitioner that sentencing, including the length and manner of
service, would be determined solely by the trial court following a sentencing hearing, and
the Petitioner indicated his understanding. He also averred that he was satisfied with
counsel’s representation. The Petitioner was familiar with the plea process, having
entered guilty pleas on more than one occasion in the past.

        In sum, there is simply nothing in the record to support the Petitioner’s assertions
that a plea agreement with sentencing recommendations existed or that counsel
misinformed the Petitioner about that alleged agreement. Accordingly, we conclude that
the pleas were entered voluntarily and knowingly and that the Petitioner is not entitled to
relief.
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                                 CONCLUSION

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



                                             _________________________________
                                             D. KELLY THOMAS, JR., JUDGE




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