        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 19, 2010

  CELSO VILORIO MELENDEZ, a/k/a EDWIN CANALES v. STATE OF
                      TENNESSEE


                 Appeal from the Criminal Court for Davidson County
                     No. 2004-B-1260     Monte Watkins, Judge


                No. M2009-01489-CCA-R3-PC - Filed February 2, 2011


The Petitioner, Celso Vilorio Melendez, aka Edwin Canales, appeals as of right the Davidson
County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner
alleges that his guilty pleas to two counts of facilitation to deliver over 300 grams of cocaine,
a Class B felony, was not voluntarily, knowingly and understandingly made due to the
ineffective assistance of counsel. Specifically, he contends that trial counsel did not advise
him of the eligibility requirements for participation in the Department of Correction’s (DOC)
Boot Camp Program, and that, had he been properly advised, he would not have pleaded
guilty. After the appointment of counsel and a full evidentiary hearing, the post-conviction
court found that the Petitioner failed to prove his allegations by clear and convincing
evidence and denied the petition. Following our review, we conclude that trial counsel
rendered deficient representation when he incorrectly advised the Petitioner that he was
eligible for the boot camp program. We reverse the judgment of the post-conviction court
and remand for a determination regarding whether that deficiency was prejudicial to the
Petitioner.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                    Remanded

D AVID H. W ELLES, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
D. K ELLY T HOMAS, J R., JJ., joined.

John E. Herbison, Nashville, Tennessee, for the appellant, Celso Viloria Melendez, a/k/a
Edwin Canales.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background
        This case arises from the Petitioner’s involvement in a conspiracy to deliver large
amounts of cocaine from Texas to Nashville. On May 7, 2004, a Davidson County grand
jury returned a forty-five count indictment charging the participants of this conspiracy. The
Petitioner was indicted in twenty-one counts; the charges included conspiracy to deliver over
300 grams of cocaine, conspiracy to sell over 300 grams of cocaine in a school zone,
conspiracy to commit money laundering, money laundering, possession with intent to deliver
over 300 grams of cocaine, delivery of over 300 grams of cocaine, delivery of over 300
pounds of marijuana, conspiracy to deliver over 70 pounds of marijuana in a school zone,
attempted delivery of over 300 grams of cocaine, and criminal forfeiture.

       Pursuant to the terms of his plea agreement, in exchange for his guilty pleas to two
counts of facilitation to deliver over 300 grams of cocaine (amended charge for Counts 1 and
16), a Class B felony, see Tennessee Code Annotated sections 39-11-403, -17-417, the
remaining nineteen charges were dismissed. Furthermore, the Petitioner was sentenced to
two consecutive terms of twelve years as a mitigated offender, release eligible after service
of 20% of his sentence.

       At the August 25, 2005 guilty plea hearing, the State provided the facts supporting the
Petitioner’s plea:

       [T]his stems from a wiretap investigation conducted by the Twentieth Judicial
       District Drug Task Force. During the investigation officers learned that [the
       Petitioner] was ordering a large amount of cocaine from co-defendant Rene
       Ruiz. Mr. Ruiz was having the kilograms delivered to [the Petitioner] here in
       Nashville, Davidson County. The testimony would be that Mr. [Ruiz] and [the
       Petitioner] met on several occasions; and, also, made numerous telephone calls
       to broker those cocaine deals.

               [The Petitioner] also arranged for the multiple kilograms of cocaine to
       be distributed to several people in Davidson County, including Nathan Phillips
       and Louis Chavez. Ms. Maria Melendez and Jose Molina, who are also co-
       defendants . . . , provided a safe house at 919 Goodbar Drive here in Davidson
       County. And that was a safe house for marijuana, cocaine, and drug proceeds.



                                             -2-
               On January 11th of 2004 [co-defendants] Hector Villegrand, . . . and
       Elden Roberto Reyes, who at that time was known as Victor Flores, used a
       tractor-trailer to deliver forty kilograms of cocaine to 1200 Vultee Boulevard
       here in Davidson County. At that time Carlos Flores, [S]antos Melendez, and
       others, including [the Petitioner], arrived at the Vultee Boulevard address. The
       cocaine was then placed into personal vehicles and driven to 919 Goodbar
       Drive here in Davidson County.

              Officers executed a search warrant at 919 Goodbar. They did find
       twenty kilograms of cocaine in the attic, money in the attic, another twenty
       kilograms of cocaine that had been moved from the residence to Nathan
       Phillip’s truck; and, found nearly half a million dollars on a bed in the
       bedroom of the residence.

              The January 11th delivery was one of several cocaine deliveries that
       officers were able to track to Davidson County, that were coming to Davidson
       County at the direction of [the Petitioner].

       During the hearing, the trial court spoke with the Petitioner regarding his trial rights,
and the Petitioner responded appropriately to questioning. The Petitioner affirmed that he
had been able to communicate with trial counsel and that he was satisfied with his
representation. The Petitioner also confirmed that he had not been forced or coerced into
pleading guilty and that he had not been promised anything in exchange for his plea. When
asked if he had any questions for the court, the Petitioner responded, “No.” He
acknowledged his signature on the petition and stated he signed the petition freely and
voluntarily.

       The Petitioner filed a petition for post-conviction relief on June 20, 2006. Counsel
was appointed for the Petitioner, and an amended petition was filed. In his amended petition,
the Petitioner asserted that he received the ineffective assistance of counsel: (1) due to trial
counsel’s failure to accurately advise the Petitioner about his eligibility for the boot camp
program; (2) due to trial counsel’s failure to explain the consecutive nature of the Petitioner’s
sentences; (3) due to trial counsel’s failure to litigate “meritorious issues,” including the
warrantless search of the residence, suppression of the Petitioner’s statements, and
deficiencies in the affidavit supporting the arrest warrant; and (4) due to trial counsel’s
failure to challenge the admissibility of the taped telephone conversations obtained via
wiretap. A hearing was held on November 20, 2008, at which the Petitioner and trial counsel
were the only witnesses.




                                               -3-
       The Petitioner testified that he was aware that, if his guilty plea was set aside, he faced
substantially more time in prison under the numerous charges in the original indictment.
When asked why he still wanted to withdraw his plea, the Petitioner answered, “Because I
believe that the law is not based on lies or deceit.”

        The Petitioner’s native language was Spanish, but he did speak some English. The
Petitioner was from El Salvador and had an eighth grade education. According to the
Petitioner, there was not an interpreter present at his guilty plea hearing, and he did not know
he was entitled to have one present. The Petitioner did not believe that, at the time of his
plea, his English skills allowed him to adequately communicate with trial counsel. Prior to
his arrest in another state and being brought to Nashville, the Petitioner had no prior dealings
with the criminal justice system in Tennessee.

        When asked about other plea offers made by the State before the one he ultimately
accepted, the Petitioner stated that the first offer was nineteen years at 30% and that the
second one was sixteen years likewise at 30%. The Petitioner acknowledged that his release
eligibility date under the sixteen-year sentence would be the same as under the sentence he
accepted. The Petitioner also confirmed that the sixteen-year offer would have required him
to plead guilty to a Class A felony and, therefore, he accepted the twenty-four-year offer,
pleading to Class B felonies, in order to be eligible to attend boot camp.1 The Petitioner
stated that eligibility for the boot camp program was a very important concern to him,
elaborating, “If it weren’t for that I wouldn’t have accepted it.” The Petitioner claimed that
he was told he would have the “same time,” that no one told him “the twenty-four years was
going to end up being a lot more time. Because what the parole [board] looks at are the two
sentences. If I had known, I would have accepted the sixteen-year sentence without any
argument.”

          The Petitioner testified that trial counsel did not explain eligibility requirements for
boot camp to him, particularly the provision that gave higher priority to inmates between the
ages of seventeen and twenty-five to enter the program. The Petitioner acknowledged that
he was thirty years old at the time he entered his plea. After applying for boot camp once in
prison, the Petitioner was told it was “impossible,” receiving the following explanation: “In
the first place I was older. Second time I had a long time, a long sentence. And third place,
I had no possibility because of the amount of drugs in the case.” The Petitioner testified that,
if trial counsel had discussed the factors affecting his eligibility for, or likelihood of his going
to, boot camp, then he would not have accepted the plea offer and would have insisted on
going to trial. He reiterated that the reason he accepted the longer, twenty-four-year sentence


       1
        Tennessee DOC’s special alternative incarceration unit, commonly referred to as “boot camp.” See
Tenn. Code Ann. §§ 40-20-201 to - 207.

                                                  -4-
rather than the shorter, sixteen-year sentence was because he “was going to go to boot camp.”
Furthermore, the Petitioner stated that trial counsel did not explain how the parole system
worked and that he did not understand what release eligibility meant.

       When asked if he had any other concerns with trial counsel’s representation, the
Petitioner replied, “I think that [trial counsel] was trying to do the best for me. I think he also
made the same mistake that I made” by “[n]ot investigating everything about the plea
bargain.” The Petitioner confirmed that he had a good rapport with trial counsel and that he
trusted his judgment.

        Upon questioning by the trial court, the Petitioner testified that he had been before the
parole board one time. According to the Petitioner, the parole board said to him that he “had
to fulfill one complete twelve-year sentence and then start on the other one, flatten it.” When
asked when would he next go before the parole board, the Petitioner responded, “The last
time they gave me six years and told me I would not be able to come back until 2012.”

        On cross-examination, the Petitioner confirmed that he had reviewed the English
transcript of his guilty plea hearing and that he remembered the proceedings. He stated that
he conversed with trial counsel in both English and Spanish, and while there was confusion
at times, the Petitioner was not troubled by their communication. The Petitioner confirmed
that he was reviewed for parole in 2006, approximately six or seven months after his transfer
to the DOC.

       When asked if he mentioned anything about boot camp to the trial judge, the
Petitioner answered, “I don’t think anybody had the opportunity to talk on that day.” The
Petitioner did not recall the trial judge asking him whether he had been promised anything
in exchange for his plea or whether he had any questions for the court. The Petitioner
understood that, if he was convicted of all the original charges in the indictment, he could
spend the rest of his life in prison.

       Trial counsel then testified he was retained to represent the Petitioner after the
preliminary hearing. Trial counsel testified that he obtained discovery in the Petitioner’s case
and familiarized himself with the allegations against the Petitioner. Trial counsel, who spoke
Spanish, although not perfectly, met with the Petitioner, and they were able to communicate
effectively:

       My Spanish is not as good as his Spanish, and his English is probably not as
       good as my English, but between the two we would get through things.
       Sometimes there were like confusion about what words meant and things of



                                                -5-
       that nature, but we were able to converse and we had no problems
       communicating I didn’t think.

        Trial counsel opined that, given the amount of drugs involved and the fact some of
the actions occurred in a school zone, the Petitioner faced a substantial amount of time in jail
if convicted. According to trial counsel, the district attorney general did not make an offer
at first “because she wasn’t sure what she wanted to do with it for [the Petitioner].”
Eventually, the prosecutor made an offer of twenty-six years at 30%, and that offer did not
change for a long time. The offer was rejected, and trial counsel prepared for trial. Trial
counsel later went and spoke with the prosecutor and “gave her some light to the case that
she hadn’t had before,” and the prosecutor returned with an offer of nineteen years. Trial
counsel did not recall there ever being a sixteen-year offer.

       Trial counsel still did not like the nineteen-year offer: “That’s an A felony. He won’t
even have a chance to go to boot camp. He won’t be eligible for any programs and
depending on his immigration status it might end up being he spends a lot more time in jail.”
Thereafter, trial counsel reviewed his “charge and guidelines” and formulated the twenty-
four-year offer (two consecutive twelve-year terms) as a 20% mitigated offender.
Reluctantly, the prosecutor agreed to the deal.

        Trial counsel confirmed that there was no factual basis for the Petitioner being a
mitigated offender, it was simply a benefit of the proposed plea agreement. Trial counsel
testified that he then conveyed the offer to the Petitioner and approximated a parole eligibility
date for him; he calculated that the Petitioner would be release eligible after service of 4.8
years. The Petitioner had approximately two years of jail credit at the time of his plea and
sentencing. Trial counsel said that he never promised the Petitioner that he would be
released the first time he went before the parole board.

       Trial counsel testified that he discussed boot camp with the prosecutor but, while she
would not oppose the Petitioner’s participation in the program, she also would not
recommend him for the program. According to trial counsel, boot camp participation was
not a quid pro quo part of the plea agreement. Per his discussions with the prosecutor, trial
counsel did not discuss boot camp with the trial judge so the prosecutor would not have to
formally oppose it, thereby, protecting the Petitioner’s eligibility for boot camp. Trial
counsel said that he never promised the Petitioner that he would be admitted to the boot camp
program and that he never told the Petitioner he could withdraw his plea if he was not
accepted into boot camp.

       Trial counsel did not recall the Petitioner at the guilty plea hearing ever not wanting
to enter a plea or ever not being able to answer questions appropriately. Trial counsel also

                                               -6-
recalled that an interpreter was present for the plea hearing2 and believed that the Petitioner
understood what was going on during the proceedings. The Petitioner did ask trial counsel
one question during the hearing, but trial counsel believed they resolved the matter.

       On cross-examination, trial counsel was asked to detail what information he told the
Petitioner about boot camp:

                I told him that there’s programs available. I don’t—I think I explained
        what boot camp was. . . . I think I did tell him the program takes a few months
        to complete. I said, “When you first go”—usually what I say is, “When you
        first go to M.T.X., they—there is a sorting out process that they assign, kind
        of, where you are.” I said, “because there is no weapons involved in this case,
        and you don’t have a prior record,” things of that nature—I said, “you should
        be eligible”—the facilitation to deliver over a certain quantity—I think it was
        over three hundred grams. I told him that that could actually get him out
        sooner, his release eligibility date, if he qualified for the program.

When asked if eligibility for boot camp was important during plea negotiations, trial counsel
responded, “I wanted him to get the B so he would have the opportunity to have it, but [the
prosecutor] wasn’t going to give a recommendation.” According to trial counsel,
maintaining potential eligibility for boot camp was an important factor to both he and the
Petitioner. Trial counsel testified that he was not aware of the statutory preference for
persons seventeen to twenty-five years of age, but he did know the older a defendant was
“the harder it [was] to get in.” Furthermore, trial counsel did not look up the boot camp
statute during the plea process and did not advise the Petitioner that persons under the age
of twenty-five have a better likelihood of being admitted into the program.

       Trial counsel did not discuss the effects of accepting the longer, aggregate consecutive
sentence, as opposed to the Class A felony sentence offer. Trial counsel agreed that it was
unusual for someone to make parole upon their first application, especially with a long
sentence. When asked if he told the Petitioner “that twenty percent was just a starting point
and that parole may well not be granted at the first opportunity,” trial counsel replied that “I
don’t think I said it in that context.” The Petitioner informed trial counsel that he was upset
when he was put off for parole consideration until 2012.




        2
          At the conclusion of the hearing, it was noted that the transcript of the plea hearing clearly stated
the proceedings were conducted with the aid of an interpreter.

                                                     -7-
        After hearing the evidence presented, the post-conviction court entered an order
denying the petition on May 26, 2009. The post-conviction court ruled that the Petitioner had
not satisfied his burden that trial counsel was ineffective, reasoning as follows:

               A close review of the record and testimony presented, reveals that the
       trial counsel testified [he] met with the [Petitioner] on several occasions and
       informed him of the nature of the charges against him, the likelihood of
       conviction and range of punishment for the forty-five (45) count indictment.
       Also, trial counsel testified that he received approximately three plea offers
       which were each discussed with the [P]etitioner. Additionally, trial counsel
       stated that there were discussions regarding the possibility of the [P]etitioner
       participating in boot camp. However, there was no promise of boot camp only
       that the State of Tennessee would not oppose but the ultimate decision is
       governed by the Tennessee Department of Correction[].

This appeal followed.

                                         ANALYSIS
       On appeal, the Petitioner claims that he received the ineffective assistance of counsel
because his attorney did not properly investigate whether he would be able to serve his
sentences in boot camp, which rendered his guilty pleas unknowing and involuntary. To
sustain a petition for post-conviction relief, a petitioner must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann.
§ 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court
will not reweigh 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 post-conviction judge, not the appellate courts. See
Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). The
post-conviction judge’s findings of fact on a petition for post-conviction relief are afforded
the weight of a jury verdict and are conclusive on appeal unless the evidence preponderates
against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d at 578.

        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that the right to such representation includes the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936.

                                             -8-
        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is
comprised of two components: deficient performance by the defendant’s lawyer and actual
prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d
at 461. The defendant bears the burden of establishing both of these components by clear
and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The
defendant’s failure to prove either deficiency or prejudice is a sufficient basis upon which
to deny relief on an ineffective assistance of counsel claim. Burns, 6 S.W.3d at 461; Goad
v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       This two-part standard of measuring ineffective assistance of counsel also applies to
claims arising out of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice
component is modified such that the defendant “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.” Id. at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn.
Crim. App. 1998).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard
of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing
court must be highly deferential to counsel’s choices “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; see also Strickland, 466 U.S. at 689. The court should
not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,
see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be
judged in light of all the facts and circumstances as of the time they were made, see
Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a
mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
This Court reviews the trial court’s findings of fact with regard to the effectiveness of
counsel under a de novo standard, accompanied with a presumption that those findings are
correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s
conclusions of law—such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial—are reviewed under a purely de novo standard, with no
presumption of correctness given to the trial court’s conclusions.” Id. (emphasis in original).

       Once a guilty plea has been entered, effectiveness of counsel is relevant only to the
extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective
assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently

                                               -9-
made. Hill v. Lockhart, 474 U.S. at 56 (citing North Carolina v. Alford, 400 U.S. 25, 31, 91
S.Ct. 160, 164 (1970)).

        When a guilty plea is entered, a defendant waives certain constitutional rights,
including the privilege against compulsory self-incrimination, the right to trial by jury, and
the right to confront witnesses. Boykin v. Alabama, 395 U.S. 238, 243 (1969). “A plea of
guilty is more than a confession which admits that the accused did various acts; it is itself a
conviction; nothing remains but to give judgment and determine punishment.” Id. at 242.
Thus, in order to pass constitutional muster, a guilty plea must be voluntarily,
understandingly, and intelligently entered. See id. at 243 n.5; Brady v. United States, 397
U.S. 742, 747 n.4 (1970). To ensure that a guilty plea is so entered, a trial court must
“canvass[] the matter with the accused to make sure he [or she] has a full understanding of
what the plea connotes and of its consequence[s].” Boykin, 395 U.S. at 244. The waiver of
constitutional rights will not be presumed from a silent record. Id. at 243.

        In State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), the Tennessee Supreme Court set
forth the procedure for trial courts to follow in Tennessee when accepting guilty pleas. Id.
at 341. Prior to accepting a guilty plea, the trial court must address the defendant personally
in open court, inform the defendant of the consequences of a guilty plea, and determine
whether the defendant understands those consequences. See id.; Tenn. R. Crim. P. 11. A
verbatim record of the guilty plea proceedings must be made and must include, without
limitation, “(a) the court’s advice to the defendant, (b) the inquiry into the voluntariness of
the plea including any plea agreement and into the defendant’s understanding of the
consequences of his entering a plea of guilty, and (c) the inquiry into the accuracy of a guilty
plea.” Mackey, 553 S.W.2d at 341.

       When the petitioner’s claim is one of inadequate advice, courts generally distinguish
between failure to inform of direct and indirect consequences of a guilty plea. Failure by
counsel to inform of direct consequences of a guilty plea may constitute ineffective
assistance of counsel. On the other hand, failure to inform of indirect consequences of a
guilty plea normally does not. Adkins v. State, 911 S.W.2d 334, 350 (Tenn. Crim. App.
1994). This distinction “turns on whether the result represents a definite, immediate and
largely automatic effect on the range of the defendant's punishment.” Id. (quoting Torrey v.
Estelle, 842 F.2d 234, 236 (9th Cir. 1988)).

        In this case, the Petitioner’s claim is one of inadequate advice. The Petitioner claims
that he would not have pleaded guilty if had been accurately apprised that inmates between
the ages of seventeen and twenty-five were given higher priority to enter the boot camp
program. See Tenn. Code Ann. § 40-20-203. While he is correct about this statutory
preference, the Petitioner, under thirty-five years of age, was still eligible for the program.

                                              -10-
See Tenn. Code Ann. § 40-20-203. Both the Petitioner and trial counsel testified that the
Petitioner understood that his placement in the boot camp program was not guaranteed and
that he knew the final decision was vested with the DOC. This claim alone would not
support a finding of deficient performance.

       However, apparently, all parties believed that boot camp was available to the
Petitioner. The prosecutor agreed to a plea to two Class B felonies in order to allow the
Petitioner’s possible participation in the program if approved by the DOC, and the post-
conviction court’s findings are based on the premise that the Petitioner was eligible for the
program. However, the statute regarding boot camp eligibility requirements for drug
offenders is clear:

              Notwithstanding the six (6) year or less sentence limitation of this part,
       an especially mitigated offender, as defined by § 40-35-109, or a standard
       offender, as defined by § 40-35-105, who is convicted of a violation of §
       39-17-417(a) with respect to a controlled substance in an amount less than that
       set out in § 39-17-417(i), is eligible for placement in the special alternative
       incarceration unit as defined and authorized by this part.

Tenn. Code Ann. § 40-20-207. The Petitioner, convicted of facilitation of delivery of over
300 grams of cocaine, did not qualify. See Tenn. Code Ann. § 39-17-417(i) (when the two
statutes are read in conjunction, to be eligible for the boot camp program, the amount of
cocaine must be less than twenty-six grams). Trial counsel’s advice to the Petitioner that he
was eligible at all for participation in the program was directly contrary to the statute, and
we must conclude that trial counsel rendered deficient performance when he gave the
Petitioner incorrect advice. See Dwane Washington v. State, No. M2008-01062-CCA-R3-
PC, 2009 WL 1676058, at *8 (Tenn. Crim. App., Nashville, June 16, 2009).

        However, in order to obtain relief, the Petitioner must also prove that he was
prejudiced by the deficient performance. See Strickland, 466 U.S. at 687. We are unable to
determine from the record whether the deficiency was prejudicial to the Petitioner. Trial
counsel testified that the Petitioner understood that his placement in the boot camp program
was not guaranteed. Trial counsel also said that boot camp participation was not a quid pro
quo part of the agreement. The Petitioner apparently accepted that he would have no
recourse if the DOC decided not to place him in boot camp. If convicted as charged in the
original indictment, the Petitioner faced exposure to a lengthy incarceration, potentially for
the rest of his life.

       Nonetheless, trial counsel confirmed that boot camp was important to him and the
Petitioner in fashioning a plea agreement. At the post-conviction hearing, the Petitioner

                                             -11-
relayed that, if he had been told about the eligibility requirements for boot camp, then he
would not have entered his plea and would have proceeded to trial. He specifically stated
that he accepted the twenty-four-year sentence because he “was going to go to boot camp.”
The Petitioner testified that he was aware if the original indictment was re-instated, then he
faced substantially more time, but he wanted to withdraw his plea anyway.
        The Petitioner also alleged that trial counsel did not adequately inform him about his
parole eligibility and how the parole system worked. He claims that, if the parole system
would have been properly explained to him, then he would not have accepted the longer,
twenty-four-year sentence but would have taken the sixteen-year offer. However, the post-
conviction court did not find the Petitioner credible. Trial counsel testified that there was
never a sixteen-year offer, only a nineteen-year offer at 30%. Trial counsel also did not like
the nineteen-year offer, explaining, “That’s an A felony. He won’t even have a chance to go
to boot camp. He won’t be eligible for any programs and depending on his immigration
status it might end up being he spends a lot more time in jail.” While the aggregate sentence
was longer (twenty-four years), the Petitioner was release eligible sooner under the accepted
plea, 4.8 years versus 5.7 years under the nineteen-year offer. Trial counsel testified that he
never promised the Petitioner that he would be released the first time he went before the
parole board.

         Notwithstanding, the Petitioner’s plea to two Class B felonies was accepted largely
in part because the Petitioner believed he would be eligible for participation in the boot camp
program and, as we have previously stated, this belief was incorrect. This was not just a
failure to advise about eligibility requirements for boot camp, but incorrect advice from trial
counsel that the Petitioner was even eligible for boot camp. While the post-conviction court
did find the Petitioner not to be credible, this finding was based on its apparent assumption
that the Petitioner was eligible for boot camp. The post-conviction court did not make
determinations in its findings, specifically with regard to whether the Petitioner, given the
amount of time he was ultimately facing if he proceeded to trial, would have proceeded to
trial if he was correctly informed that he was not eligible for boot camp. See Washington,
2009 WL 1676058 at *9. We are unable to discern from the record to what degree
“counsel’s constitutionally ineffective performance affected the outcome of the plea
process.” Hill v. Lockhart, 474 U.S. at 59. We must remand for further findings.

                                       CONCLUSION
        Based upon the foregoing, we conclude that the post-conviction court erred by
determining that Petitioner received the effective assistance of counsel. After a review of
the record, we conclude that trial counsel’s incorrect advice that the Petitioner was eligible
for participation in the boot camp program amounted to deficient performance. Accordingly,
the judgment of the Davidson County Criminal Court is reversed. Upon remand, the post-
conviction court shall determine whether this deficiency was prejudicial to the Petitioner.

                                             -12-
       ______________________________
       DAVID H. WELLES, JUDGE




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