         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   October 29, 2002 Session

                 BARRY C. MELTON v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Sevier County
                         No. 2000-264-III   Rex Henry Ogle, Judge



                                 No. E2001-02689-CCA-MR3-PC
                                        December 4, 2002

The petitioner appeals the denial of post-conviction relief, arguing: (1) his “best interest” plea was
not entered voluntarily and intelligently; and (2) trial counsel was ineffective in representing him
at sentencing. We affirm the judgment of the post-conviction court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT W.
WEDEMEYER, J., joined.

Charles R. Ray (at hearing and on appeal) and Jeffery S. Frensley (on appeal), Nashville, Tennessee,
for the appellant, Barry C. Melton.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

        On April 10, 1997, the petitioner entered a “best interest” plea to four counts of aggravated
sexual battery, a Class B felony, as a Range II multiple offender, and six counts of sexual battery,
a Class E felony, as a career offender. The facts presented at the plea hearing established that during
the month of July 1995, the petitioner took two brothers, ages thirteen and twelve, ice skating at
Ober Gatlinburg. During the trip, the petitioner touched the boys’ penises through their clothing and
placed the twelve-year-old’s hands over the petitioner’s private area. According to the prosecutor,
during that same month, in a separate incident, the petitioner invited a ten-year-old boy to his
apartment where he touched the boy’s penis and had the boy touch his penis.

       The six counts of sexual battery involved the thirteen-year-old victim. Two counts of
aggravated sexual battery involved the twelve-year-old victim and the remaining two counts of
aggravated sexual battery involved the ten-year-old victim. The petitioner had several prior
convictions for sexual offenses. The plea agreement provided for the trial court to determine the
lengths of the aggravated sexual battery sentences within twelve to twenty years, the range of
punishment for a Range II offender. See Tenn. Code Ann. § 40-35-112(b)(2). As a career offender,
the petitioner would receive six-year sentences for the sexual battery convictions. See Tenn. Code
Ann. §§ 40-35-108(c), -112(c)(5). The agreement provided that the sentences for convictions
involving the same victim would be served concurrently, but the trial court would determine whether
the sentences for the offenses involving different victims would be served concurrently or
consecutively. Therefore, the range of punishment for the total effective sentence for all offenses
under the plea agreement was between twelve and forty-six years. Following a sentencing hearing,
the trial court imposed an effective thirty-six-year sentence.

        The petitioner contends his “best interest” plea was not entered voluntarily and intelligently.
More specifically, the petitioner maintains his trial counsel did not adequately prepare for trial, but
instead enlisted the petitioner’s parents to convince him to enter the plea. The petitioner claims that
his will was overborne, and he entered the plea against his wishes.

        Further, the petitioner argues trial counsel was ineffective in presenting the testimony of
clinical psychologist Dr. Diana McCoy at his sentencing hearing. We note that even if the
petitioner’s contentions regarding trial counsel’s representation during sentencing were valid, he
would not be entitled to have his “best interest” plea set aside provided his plea was otherwise
voluntary. Instead, if his argument were meritorious, he would be entitled to re-sentencing under
the terms of the plea agreement.

        The post-conviction court denied the petition for post-conviction relief, finding the petitioner
entered his plea knowingly and voluntarily, and that trial counsel provided the petitioner with
effective assistance.


                         PROOF AT POST-CONVICTION HEARING

        At the post-conviction hearing, the petitioner testified that every time he and trial counsel
discussed whether he should plead guilty or go to trial, trial counsel told him he would lose if he
went to trial and advised the petitioner he was facing up to 120 years in prison. The petitioner stated
he told trial counsel he wanted to go to trial because he was not guilty. He said he never told his
attorney he was guilty, although he told his attorney he may have made the victims feel
uncomfortable.

         The petitioner indicated he knew the detective to whom he a gave a statement would have
offered damaging testimony at trial. The petitioner testified his trial counsel advised him that if he
testified at trial, the prosecution would use his prior convictions to impeach him. The proof at the
post-conviction hearing showed the petitioner had prior felony convictions for sexual offenses
involving young boys in Madison County, Tennessee, and Arkansas. The petitioner, who is a
college graduate, stated trial counsel advised him of his constitutional rights and kept him informed
regarding the motions filed in his case.



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        The petitioner testified his trial counsel explained to him he had three choices: (1) plead
guilty in exchange for an offered sentence of either twenty-four or thirty-two years; (2) go to trial
and risk a sentence of up to 120 years in prison; or (3) enter the “best interest” plea pursuant to the
plea agreement which was ultimately presented to the trial court. The petitioner indicated trial
counsel said he knew the trial judge, and the petitioner could hope for a sentence of approximately
eighteen or twenty years if he entered the “best interest” plea. The petitioner stated he knew the
range of punishment under the agreement was between twelve and forty-six years, and that the trial
judge would decide the exact sentence.

         The petitioner stated no one threatened him, although his attorney spoke harshly to him. The
petitioner described an incident in which trial counsel became upset when the petitioner telephoned
counsel at home early one morning because the petitioner was being taken to court unexpectedly.
The petitioner also said that during a meeting with him and his parents, his trial attorney swore, hit
the table, and told the petitioner he needed to make a decision as to whether he was going to trial.
The petitioner testified that in the days that followed, his trial attorney did not contact him regarding
trial preparations. The petitioner stated that when he telephoned his parents a few days later, they
told the petitioner he would lose if he went to trial. According to the petitioner, trial counsel came
to the jail before he entered his plea and gave the petitioner a quick summary of what they were
going to do that day. The petitioner conceded that, during the plea hearing, he told the trial court
he had no complaints regarding his trial counsel.

       The petitioner said he understood that a jury would determine whether he was guilty if he
went to trial, and he conceded he understood his constitutional rights. He said he felt he had no
choice but to enter the “best interest” plea because his attorney and his parents did not believe in his
innocence.

        Petitioner’s trial counsel testified at the post-conviction hearing that he received discovery
from the prosecutor, interviewed the detective who investigated the charges against the petitioner,
reviewed the detective’s notes regarding the petitioner’s statement, reviewed the victims’ statements,
and spoke with two of the victims and the parents of all the victims. Trial counsel stated he also
searched records, including records relating to the petitioner’s prior convictions; met with the
petitioner’s father; and filed motions in preparation for trial. The attorney stated he met with the
petitioner on several occasions. He said he reviewed the state’s evidence with the petitioner, they
discussed theories of defense, and they extensively discussed the petitioner’s version of the events
in question. The attorney testified he felt prepared to go to trial.

         The attorney testified the petitioner vacillated on whether he wanted to go to trial. According
to trial counsel, the petitioner did not deny the charges; instead, the petitioner said his actions were
accidental and he did not intend to hurt the victims.

        Trial counsel stated he advised the petitioner the only way to try the case successfully was
for the petitioner to testify, and that the petitioner was subject to being impeached by his prior
convictions if he were to testify. The attorney opined it would have been extremely difficult to try
the petitioner’s case successfully. Trial counsel stated the petitioner was facing potential
punishment of over 100 years if he were convicted as charged, and that he advised the petitioner of

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this possibility. Counsel feared the trial court would have imposed a greater sentence had petitioner
gone to trial. Trial counsel testified he told the petitioner a guilty plea was the only option that made
sense.

        Trial counsel stated that approximately one week before the petitioner entered his plea, he
met with the petitioner and his parents at the jail. During that meeting, the petitioner told his
attorney he wanted to go to trial. The attorney said he later contacted the petitioner’s parents and
told them he felt it was in the petitioner’s best interest to enter a guilty plea, and that it was the
petitioner’s only chance of being released from incarceration “in the next century.”

        The attorney testified the state offered the petitioner a sentence of twenty-four years, but that
the petitioner instructed him to seek a better offer; as a result, the parties structured the plea
agreement which was accepted by the trial court. The attorney testified he told the petitioner on
several occasions that a “best interest” plea had the same effect as a guilty plea.

       Trial counsel testified the petitioner made the decision to enter the plea and “absolutely knew
what he was doing.” The attorney stated the petitioner knew he had the choice to go to trial and
understood his rights before he entered the plea.

        Willard Melton and Shirley Humphrey, the petitioner’s parents, testified at the post-
conviction hearing that a few weeks prior to the petitioner’s plea, they met with trial counsel and
the petitioner at the jail; during that meeting, their son stated he wanted to go to trial. Melton stated
trial counsel did not want to go to trial. He said trial counsel indicated the petitioner could receive
a greater sentence if he went to trial, and that the petitioner was facing a potential sentence of 120
years. Humphrey testified trial counsel did not think the petitioner should go to trial because he did
not think the petitioner would win, but he indicated the choice belonged to the petitioner. She stated
the attorney told the petitioner he needed to make up his mind. Both witnesses indicated that at the
conclusion of that meeting, they believed the case was going to be tried.

         The petitioner’s parents testified that over a week later, they had a telephone conversation
with trial counsel in which trial counsel discussed the “best interest” plea with them. Melton
testified trial counsel stated he had taken the bar exam with the trial judge, which would be helpful
to the petitioner. Trial counsel denied this allegation and the trial judge, who presided at the post-
conviction hearing, stated for the record that he did not take the bar exam with trial counsel. Trial
counsel indicated he may have said he and the judge got along, and that the judge would listen to
his arguments.

        Willard Melton stated trial counsel thought the petitioner could receive a sentence as low as
eighteen years if sentenced by the trial court. Melton recalled the state’s initial offer to the petitioner
was a sentence of thirty-two years, and trial counsel told them that if the trial court sentenced the
petitioner under the “best interest” agreement, he would definitely receive a sentence of less than
thirty-two years. Shirley Humphrey said trial counsel indicated the petitioner would receive a
sentence of between ten and eighteen years. Trial counsel denied predicting the sentence the trial
court would impose under the plea agreement and indicated he advised the petitioner that an
eighteen-year sentence was a more realistic possibility than the twelve-year sentence the petitioner

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requested. According to Melton, trial counsel asked them to speak with their son and convince him
to accept the plea agreement. Melton said he and Humphrey advised their son to enter the plea.

        Melton further testified the petitioner made the final decision to enter the plea and
understood he had the right to go to trial. Humphrey testified her son wanted to go to trial and did
not want to enter the “best interest” plea; she opined he did what she and his father thought best.
She further stated she and Melton told their son it was his decision, and that he always understood
it was his decision.

        Psychologist Dr. Kenneth Anchor testified at the post-conviction hearing that the petitioner
had a “pathologically high need for social approval,” which caused the petitioner to capitulate to the
will of authority figures such as his parents and his attorney. He described the petitioner as a person
of average intelligence suffering from clinical depression. Dr. Anchor said that at the time the
petitioner entered his plea, he was very conflicted about wanting a trial, but felt “worn down” by his
parents and his attorney. The psychologist testified the petitioner knew he was facing a potential
sentence of greater than 100 years. In Dr. Anchor’s opinion, the petitioner’s plea was not knowing,
independent, natural, or voluntary because the petitioner did not “have it within him to maintain his
view” when faced by pressure from his parents and, therefore, capitulated due to his need for social
approval.

        The proof as contained in the record established trial counsel presented the testimony of Dr.
Diana McCoy, a clinical psychologist, at the petitioner’s sentencing hearing. Dr. McCoy testified
the petitioner was eligible for sex offender treatment, had the potential to be rehabilitated, and was
a good candidate for treatment. However, she opined the petitioner was likely to reoffend without
treatment, although he was not prone to violence. She stated the Department of Correction had a
good treatment program for sex offenders, that the petitioner was motivated to receive treatment,
and that while pedophilia was not a curable condition, it was something that could be controlled.

         At the post-conviction hearing, trial counsel testified he reviewed Dr. McCoy’s report in
preparation for the sentencing hearing. The report indicated the petitioner was at risk for recidivism
without treatment. Trial counsel stated the report also indicated some positive factors, including Dr.
McCoy’s opinion the petitioner was non-violent and could be helped by treatment. According to
trial counsel, Dr. McCoy also testified the petitioner had not previously received the treatment she
was recommending. The attorney indicated he offered Dr. McCoy’s testimony in order to give the
trial judge information to rely upon in the event the judge wanted to show leniency to the petitioner.


                         INEFFECTIVE ASSISTANCE OF COUNSEL

A.     Standard of Review

        When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the
petitioner bears the burden of proving (1) that counsel's performance was deficient, and (2) the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings were fundamentally unfair. Strickland v. Washington, 466 U.S.

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668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). This standard has also 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 Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the
services be rendered within the range of competence demanded of attorneys in criminal cases. In
reviewing counsel's conduct, a “fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland,
466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

         The petitioner is not entitled to the benefit of hindsight; the petitioner may not second-guess
a reasonably based trial strategy; and the petitioner may not criticize a sound, but unsuccessful,
tactical decision made after adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994); Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the Supreme Court
applied the two-part Strickland standard to ineffective assistance of counsel claims arising out of
a guilty plea. The Court in Hill modified the prejudice requirement by requiring a petitioner to 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. 474 U.S. at 59, 106 S. Ct. at 370; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).

        The petitioner bears the burden of proving by clear and convincing evidence the factual
allegations that would entitle petitioner to relief. Tenn. Code Ann. § 40-30-210(f). The trial judge's
findings of fact on post-conviction hearings are conclusive on appeal unless the evidence
preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The trial court’s findings
of fact are afforded the weight of a jury verdict, and this court is bound by the trial court’s findings
unless the evidence in the record preponderates against those findings. Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This court
may not reweigh or reevaluate the evidence, nor substitute its inferences for those drawn by the trial
judge. State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). Questions concerning the credibility
of witnesses and the weight and value to be given to their testimony are resolved by the trial court,
not this court. Burns, 6 S.W.3d at 461. The burden of establishing that the evidence preponderates
otherwise is on petitioner. Henley, 960 S.W.2d at 579. However, the trial court’s conclusions of
law are reviewed under a purely de novo standard with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).

B.     Analysis

       The post-conviction court implicitly accredited the testimony of trial counsel. It found trial
counsel fully investigated the charges against the petitioner and advised the petitioner regarding his
option to enter into the plea agreement or proceed to trial. Further, the post-conviction court
determined trial counsel’s frank and dire predictions regarding the potential outcome of a trial did
not constitute deficient performance. The post-conviction court found the petitioner was facing a

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situation where there were no available defense witnesses or other exculpatory evidence, and that
trial counsel’s advice to the petitioner was accurate.

        The judge presiding at the post-conviction hearing was the same trial judge who imposed the
petitioner’s sentence. At the close of the post-conviction hearing, he stated he considered Dr.
McCoy’s testimony that the petitioner had not received much treatment for his pedophilia when he
imposed less than the maximum sentence allowed under the parties’ plea agreement. The post-
conviction court found trial counsel’s performance was not deficient, and the psychologist’s
testimony was not prejudicial.

        The post-conviction court’s findings of fact are supported by the record. Further, its
conclusions of law are without error. While the petitioner complained his trial counsel did not
“believe in him,” there is no showing that the petitioner’s trial counsel provided anything other than
competent, zealous, and effective representation. A subjective belief in the innocence of the accused
on the part of a defense attorney is not a prerequisite to effective assistance of counsel, nor does
defense counsel’s candid, negative assessment of the potential outcome of a trial constitute deficient
performance. The post-conviction court did not err in concluding the petitioner received effective
assistance of counsel in entering his “best interest” plea.

         Further, we conclude, based on our thorough review of the record, the post-conviction court
did not err in making its determinations regarding trial counsel's performance during sentencing.
It is clear trial counsel made a reasonable tactical decision to present the psychologist's testimony.
Further, as the post-conviction court found, the evidence did not prejudice the petitioner. This
argument is without merit.


                                  VOLUNTARINESS OF PLEA

        The petitioner’s primary complaint as to the voluntariness of his plea appears to be that he
entered the “best interest” plea under psychological pressure from his parents and his attorney. We
find the post-conviction court did not err in concluding the petitioner’s plea was entered voluntarily.



A.     Standard of Review

       Our supreme court has stated the following:

                        The cases of Boykin v. Alabama and State v. Mackey are the
               landmark constitutional cases for analyses of guilty pleas. Boykin v.
               Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)
               (federal standard); State v. Mackey, 553 S.W.2d 337 (Tenn. 1977)
               (state standard). In Boykin, the United States Supreme Court held
               that before a trial judge can accept a guilty plea, there must be an
               affirmative showing that it was given intelligently and voluntarily. Id.

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                at 242, 89 S. Ct. at 1711, 23 L. Ed. 2d at 279. In order to find that the
                plea was entered "intelligently" or "voluntarily," the court must
                "canvass[ ] the matter with the accused to make sure he has a full
                understanding of what the plea connotes and of its consequences." Id.
                at 244, 89 S. Ct. at 1712, 23 L. Ed. 2d at 280 (emphasis added).

                         Likewise, in Mackey, this Court held that "the record of
                acceptance of a defendant's plea of guilty must affirmatively
                demonstrate that his decision was both voluntary and knowledgeable,
                i.e., that he has been made aware of the significant consequences of
                such a plea . . . .” 553 S.W.2d at 340.

State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999).

B.      Analysis

       In the case at bar, the post-conviction court found the college-educated petitioner understood
he had the option to proceed to trial or to enter into the plea agreement. The lower court further
found the proof established the petitioner possessed average intelligence. It stated the evidence
presented at the hearing established nothing except that the petitioner was fully informed. The post-
conviction court noted the petitioner discussed his case with his attorney and his parents and
understood “everything that was going on.” The evidence presented at the post-conviction hearing
supports the trial court’s findings.

        The transcript of the plea hearing indicates the trial court fully apprised the petitioner of his
constitutional rights and the terms of the plea agreement before he entered his plea. During that
hearing, the petitioner advised the trial court he had discussed the case with his attorney, he
understood the plea agreement, and he understood his constitutional rights. The petitioner told the
trial court no one had threatened him or made him any promises not announced as part of the plea
agreement. At the sentencing hearing conducted five days later, the petitioner told the trial court,
“I’ve made this best interest plea because I thought it was the most that I could do at this time in the
best interest of these children, as well as myself.”

        At the post-conviction hearing, the petitioner testified his trial counsel advised him of his
constitutional rights, the strength of the state’s evidence against him, and the potential punishment
he was facing. The petitioner indicated his trial attorney kept him informed regarding the status of
his case and met with him several times while he was incarcerated. The petitioner further stated trial
counsel apprised him of his choices to proceed to trial or to accept one of the plea agreements
offered by the state. According to the petitioner’s testimony, trial counsel accurately explained the
terms of the plea agreement which he accepted. According to trial counsel, the petitioner understood
his rights and his choices when he elected to enter the plea. The testimony of the petitioner’s parents
also indicated the petitioner made his own decision to enter the plea. The evidence does not
preponderate against the findings of the post-conviction court. The petitioner’s argument is without
merit.


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                                          CONCLUSION

        We hold the post-conviction court did not err in determining trial counsel provided the
petitioner with effective representation nor in determining the petitioner entered his “best interest”
plea knowingly and intelligently. Therefore, we affirm the judgment of the post-conviction court.



                                                       ____________________________________
                                                       JOE G. RILEY, JUDGE




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