                                                                                          11/09/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                Assigned on Briefs at Knoxville September 20, 2017

               JASON LEE HOLLEY v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2014-A-378     Cheryl A. Blackburn, Judge
                     ___________________________________

                           No. M2017-00510-CCA-R3-PC
                       ___________________________________


Petitioner, Jason Lee Holley, entered a guilty plea to one count of possession of .5 grams
or more of cocaine with the intent to sell in exchange for the dismissal of other charges.
Petitioner received a twelve-year sentence as a Range II offender and was ordered to
serve one year of the sentence day-for-day prior to being released to community
corrections for the balance of the sentence. Petitioner sought post-conviction relief on the
basis that his guilty plea was unknowing and involuntary and that he received ineffective
assistance of counsel. The post-conviction court denied relief after a hearing. Because
Petitioner failed to show that he received ineffective assistance of counsel or that his
guilty plea was unknowingly and involuntarily entered, we affirm the judgment of the
post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Jason Lee Holley.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Glenn R. Funk, District Attorney General; and Doug Thurman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                   Factual Background

       In January of 2014, Petitioner was indicted by the Davidson County Grand Jury in
case number 2014-A-378 for one count of possession of .5 grams of more of cocaine with
the intent to sell or deliver, one count of possession of drug paraphernalia, one count of
evading arrest, one count of resisting arrest, and one count of driving on a suspended
license. Petitioner subsequently entered a guilty plea to one count of possession of .5
grams or more of cocaine with the intent to sell, a Class B felony. He agreed to a
sentence of twelve years in exchange for the dismissal of the remaining counts of the
indictment. The sentence was ordered to be served twelve months “day for day” and
eleven years on Community Corrections. The sentence was ordered to be served
consecutively to the sentence in case number 2014-B-1231.1

        Counsel for the State explained the factual basis for the plea as follows:

                [O]n October 30, 2013, Metro police were patrolling around the area
        of South 5th Street here in Davidson County. They observed a white
        Chrysler Sebring make a traffic violation. The officer attempted to stop the
        vehicle. They slowed down for a period of time but then accelerated away
        from the officer. At some point the officer did not pursue any further[;]
        however, other officers found the vehicle abandoned a short distance later
        and also saw an individual who was later identified as [Petitioner] running
        in the area. He was apprehended on a porch near the area and admitted that
        he ran because he did not have a driver’s license. After patrolling the scene
        in the area of where he was running, they found cocaine in two separate
        bags, one with some scales, weighing approximately twenty grams and also
        found some currency, which was broken into small denominations, on his
        person.

Petitioner agreed to the factual basis of the plea, told the trial court he was not under the
influence of medication, and informed the trial court that trial counsel discussed all
aspects of the case with him prior to the entry of the plea.

       One year later, Petitioner filed a pro se petition for post-conviction relief with
respect to his conviction in case number 2014-A-378. In the form petition, Petitioner
checked the following as “possible grounds for relief”:

        (1) Conviction was based on unlawfully induced guilty plea or guilty plea
        involuntarily entered without understanding of the nature and consequences
        of the plea.

        1
          According to the transcript of the guilty plea hearing, Petitioner also entered a guilty plea in case
number 2014-B-1231 to one count of conspiracy to possess .5 grams of more of cocaine with the intent to
sell in exchange for a six-year sentence with one year to be served in incarceration prior to release on
Community Corrections. Petitioner received pretrial jail credit of one year, from October 30, 2013, to
October 30, 2014. Petitioner does not challenge the conviction from case number 2014-B-1231 in his
post-conviction petition.
                                                     -2-
       (3) Conviction was based on use of evidence gained pursuant to an
       unconstitutional search and seizure.
       (4) Conviction was based on use of evidence obtained pursuant to an
       unlawful arrest.
       (6) Conviction was based on the unconstitutional failure of the prosecution
       to disclose to defendant evidence favorable to defendant.
       (9) Denial of effective assistance of counsel.
       (10) Newly discovered evidence.
       (11) Illegal evidence.

Because Petitioner failed to include a factual basis for his allegations, the post-conviction
court granted a fifteen-day extension for Petitioner to file an amended petition. In the
amended petition, Petitioner alleged that he received ineffective assistance of counsel on
the basis that trial counsel should have filed a motion to suppress the evidence and that
the State withheld evidence that fingerprints on the drugs and digital scales did not match
Petitioner. The post-conviction court found the petition “may present a colorable claim”
and appointed counsel.

        Post-conviction counsel filed an amended petition for post-conviction relief. In
the amended petition, Petitioner alleged that trial counsel was ineffective for failing to
file a motion to suppress and that, as a result of trial counsel’s actions, Petitioner’s guilty
plea was unknowing and involuntary.

        The post-conviction court held a hearing on the petition. At the hearing, Petitioner
testified that he retained trial counsel. Trial counsel was the third attorney to work on
Petitioner’s case and was hired about one and one-half months prior to the trial date.
Petitioner explained that he remained incarcerated prior to the entry of the plea because
he was unable to make bond.

       Trial counsel visited with Petitioner two or three times at the jail prior to the entry
of the plea. Petitioner acknowledged that they discussed the case and insisted that he
asked trial counsel to file several pretrial motions, including a motion to suppress.
According to Petitioner, counsel indicated that she would file a motion to suppress but
never did so. Petitioner explained that he was unaware that entering a guilty plea would
effectively prevent him from filing a motion to suppress. Petitioner also acknowledged,
however, that he was no stranger to the judicial process, having entered guilty pleas on
prior occasions.

       Trial counsel informed Petitioner shortly after she was retained that she would be
taking a job with a judge. Petitioner claimed that he chose to enter the guilty plea
because he did not have the money to hire someone else and he was tired of being in jail.
Petitioner admitted that he agreed with the factual basis for the plea but claimed that he
                                             -3-
only agreed to the factual basis for the “plea to take effect.” Petitioner did not tell the
trial court that he was under the influence of his blood pressure medication at the time of
the guilty plea but did not think that the blood pressure medication would affect his
ability to make a decision. After Petitioner pled guilty, he received a lab report showing
that his fingerprints did not match the fingerprints on the drugs and scales.

       Trial counsel testified that she spent approximately two years in private practice
prior to being retained by Petitioner. Trial counsel primarily practiced criminal law,
including felonies and misdemeanors. When Petitioner retained her services, they met to
discuss the case, and trial counsel secured the case file from the previous attorney. She
estimated that she and Petitioner met six times prior to the entry of the plea. During their
meetings, trial counsel discussed discovery and the possibility of filing a motion to
suppress. Trial counsel did not think that the motion was a “slam dunk” but thought that
it was worthwhile to file the motion.

      Trial counsel was working on the motion to suppress at the same time she was
attempting to negotiate a settlement with the State. During this time, trial counsel
decided to take a job with a judge. She met with Petitioner and informed him that she
would have to withdraw from his case.

        At the hearing on the motion to withdraw, the parties agreed to settle Petitioner’s
case. Trial counsel testified that she informed Petitioner it was his decision and that trial
counsel would assist him in finding replacement counsel if he did not want to enter the
guilty plea. In trial counsel’s opinion, Petitioner’s primary concern was getting out of
jail, and the settlement offer of two consecutive years day for day made Petitioner
hesitate. Trial counsel recalled that Petitioner was reluctant to take the plea deal but
ultimately determined that the plea agreement was in his best interest. Trial counsel
admitted that she did not mention or discuss the possibility of seeking a certified question
of law on the suppression issue.

        Petitioner presented evidence at the hearing on the petition for post-conviction
relief to support his argument that trial counsel should have filed a motion to suppress.
Petitioner explained that he lent his vehicle to a friend on the night of his arrest. He was
walking along Shelby Avenue when he saw several police cars. Petitioner reacted by
running and was chased down and beaten by police officers when he did not stop.
Petitioner claimed that he had about $100 in cash and that no one actually observed him
throwing drugs or running from the car.

       Officer Conrad Straub, a detective with the Metro Nashville Police Department,
participated in the arrest of Petitioner. Initially, the police pursued a white vehicle. The
chase continued on foot after officers located the vehicle at 525 Shelby Avenue. Officers
soon saw someone running away from the area where the vehicle was found. The man,
                                            -4-
later identified as Petitioner, was apprehended by officers. Petitioner was carrying the
keys to the white vehicle and about $400 in cash when he was arrested. Additionally,
Petitioner was the registered owner of the vehicle. A set of scales and 21.4 grams of
cocaine were found in the area where Petitioner was seen running. However, Officer
Straub admitted that he did not see Petitioner throw anything on the ground.

       Officer John Tuberville went to the hospital with Petitioner. According to Officer
Tuberville, Petitioner told him that if any drugs were found behind the dumpster, they did
not belong to Petitioner. Officer Tuberville did not solicit the information and did not ask
Petitioner any questions. Officer Tuberville testified that Petitioner offered several
versions of the events occurring that evening, changing his story several times. Officer
Tuberville admitted that he was unaware if Petitioner had been Mirandized.

        At the conclusion of the hearing, the post-conviction court determined that
Petitioner failed to show that trial counsel was ineffective or that he was prejudiced by
her representation. In fact, the post-conviction court accredited Petitioner’s testimony in
which he admitted the “motivation for accepting the guilty plea was to get out of
custody.” The post-conviction court concluded that when Petitioner accepted the guilty
plea, the motion to suppress was rendered moot. Nonetheless, the post-conviction court
determined that there was no legal basis to suppress the drugs because the police had a
reasonable suspicion to initiate an investigative stop of Petitioner. The post-conviction
court commented on the fact that after Petitioner resisted and was detained, the police
found cocaine in the area nearby. In the post-conviction court’s assessment, the location
of the cocaine gave police probable cause to further detain Petitioner, ultimately making
the issue of whether the drugs actually belonged to Petitioner a jury question. The post-
conviction court accredited trial counsel’s testimony in which she insisted that she met
with Petitioner several times, assessed the case, and determined that while a motion to
suppress would not be frivolous, it would most likely not be successful. Lastly, the post-
conviction court determined that Petitioner entered the guilty plea knowingly and
voluntarily, denying the petition for relief.

       Petitioner filed a timely notice of appeal.

                                          Analysis

        On appeal, Petitioner argues that the post-conviction court erred by determining
that his guilty plea was entered knowingly and voluntarily. Specifically, Petitioner
argues that he was “forced into accepting the State’s plea offer because [trial counsel]
failed to pursue a suppression motion.” Petitioner also argues that he received ineffective
assistance of counsel on the basis that trial counsel failed to file a motion to suppress.
The State disagrees, insisting that “[n]othing in the record warrants a reversal of the
court’s findings.”
                                             -5-
                                   A. Standard of Review

        Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). On appeal, this Court will review the post-conviction court’s
findings of fact “under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State,
960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh or re-evaluate the
evidence presented or substitute our own inferences for those drawn by the trial court.
Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the weight and
value to be given to testimony, and the factual issues raised by the evidence are to be
resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing Henley, 960
S.W.2d at 578). However, the post-conviction court’s conclusions of law and application
of the law to the facts are reviewed under a purely de novo standard, with no presumption
of correctness. Fields, 40 S.W.3d at 458.

                         B. Ineffective Assistance of Trial Counsel

        Petitioner argues that he received ineffective assistance of trial counsel.
Specifically, Petitioner asserts that trial counsel failed to adequately prepare for and file a
motion to suppress so he had no other choice but to enter a guilty plea or languish in jail
awaiting a jury trial. Tangentially, Petitioner insinuates that statements he made on the
night of his arrest resulted from a violation of his Miranda rights. Because Petitioner did
not raise the issue about Miranda in his petition for post-conviction relief, he cannot now
raise it on appeal. See Jeffrey Lynn Myers v. State, No. M2004-02411-CCA-MR3-PC,
2005 WL 1541870, at *5 (Tenn. Crim. App. June 29, 2005), no perm. app. filed.

       Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel’s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel’s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a
claim of ineffective assistance of counsel, “failure to prove either deficient performance
                                             -6-
or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley,
960 S.W.2d at 580. “Indeed, a court need not address the components in any particular
order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466
U.S. at 697).

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use hindsight to second-
guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994), even if 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). However, this
deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694). In the context of a guilty plea, a 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).

       This Court has previously addressed the evidence necessary at a post-conviction
hearing in order to demonstrate that counsel’s failure to file a motion to suppress
prejudiced the petitioner:

       It is well settled that when a [p]etitioner in post-conviction proceedings
       asserts that counsel rendered ineffective assistance of counsel by failing to
       call certain witnesses to testify, or by failing to interview certain witnesses,
       these witnesses should be called to testify at the post-conviction hearing;
       otherwise, [p]etitioner asks the [c]ourt to grant relief based upon mere
       speculation. Black v. State, 794 S.W.2d 752, 757 (Tenn. 1990). The same
                                             -7-
       standard applies when a [p]etitioner argues that trial counsel was
       constitutionally ineffective by failing to file pre-trial motions to suppress
       evidence. In order to show prejudice, [a] [p]etitioner must show by clear
       and convincing evidence that (1) a motion to suppress would have been
       granted and (2) there was a reasonable probability that the proceedings
       would have concluded differently if counsel had performed as suggested.
       Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006) (citing Strickland, 466
       U.S. at 687). In essence, the petitioner should incorporate a motion to
       suppress within the proof presented at the post-conviction hearing.

Terrance Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436, at *8
(Tenn. Crim. App. Sept. 12, 2011), no perm. app. filed. Thus, “[i]f a petitioner alleges
that trial counsel rendered ineffective assistance of counsel by failing to . . . file a motion
to suppress, . . . the petitioner is generally obliged to present . . . the [evidence supporting
his claim] at the post-conviction hearing in order to satisfy the Strickland prejudice
prong.” Demarcus Sanders v. State, No. W2012-01685-CCA-R3-PC, 2013 WL
6021415, at *4 (Tenn. Crim. App. Nov. 8, 2013), perm. app. denied (Tenn. Mar. 17,
2014); see also Craig Abston v. State, No. W2014-02513-CCA-R3-PC, 2016 WL
3007026, at *9 (Tenn. Crim. App. May 17, 2016), perm. app. denied (Tenn. Aug. 18,
2016).

        At the hearing, trial counsel testified that she met with Petitioner several times and
was drafting a motion to suppress at the same time she was attempting to negotiate a
settlement offer with the State. According to trial counsel, Petitioner was most concerned
with getting out of jail. In fact, Petitioner admitted as much during the post-conviction
hearing. The post-conviction court accredited the testimony of trial counsel and nothing
in the record preponderates against this finding. In other words, the post-conviction court
determined that trial counsel was not ineffective. As a result, the post-conviction court
deemed moot the issue of whether Petitioner was prejudiced by the absence of a motion
to suppress. However, because Petitioner presented the testimony of Officer Straub and
Officer Tuberville, the post-conviction court summarized the testimony and determined
that there was actually “no basis to suppress the evidence.” Nothing in the record
preponderates against this determination by the post-conviction court. Thus, even if trial
counsel’s filing of the motion to suppress had not been circumvented by Petitioner’s
entry of his guilty plea, Petitioner has not shown that he was prejudiced by the failure to
file the motion. Petitioner is not entitled to relief on this issue.

                                       C. Guilty Plea

       Petitioner also argues that his guilty plea was involuntary and unknowing. In
order to determine whether a plea is being entered knowingly and voluntarily, the trial
court must “canvass[ ] the matter with the accused to make sure he has a full
                                              -8-
understanding of what the plea connotes and of its consequence.” Boykin v. Alabama,
395 U.S. 238, 244 (1969). The trial court looks to several factors before accepting a plea,
including:

       the relative intelligence of the defendant; the degree of his familiarity with
       criminal proceedings; whether he was represented by competent counsel
       and had the opportunity to confer with counsel about the options available
       to him; the extent of advice from counsel and the court concerning the
       charges against him; and the reasons for his decision to plead guilty,
       including a desire to avoid a greater penalty that might result from a jury
       trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993); see Howell v. State, 185 S.W.3d
319, 330-31 (Tenn. 2006). Once the trial court has conducted a proper plea colloquy, it
discharges its duty to assess the voluntary and intelligent nature of the plea and creates an
adequate record for any subsequent review. Boykin, 395 U.S. at 244. Statements made
by a petitioner, his attorney, and the prosecutor during the plea colloquy, as well as any
findings made by the trial court in accepting the plea, “constitute a formidable barrier in
any subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 73-74
(1977). Statements made in open court carry a strong presumption of truth, and to
overcome such presumption, a petitioner must present more than “conclusory allegations
unsupported by specifics.” Id. at 74.

        As noted by the post-conviction court, all of Petitioner’s claims about the
voluntariness of his guilty plea are belied by the transcript of the guilty plea hearing, in
which he was advised of all of his constitutional rights and his sentencing range. The
transcript reflects that Petitioner approved of the performance of trial counsel, affirmed
that he was clear-minded, and insisted that it was his desire to plead guilty. Moreover,
both Petitioner and trial counsel testified at the post-conviction hearing that Petitioner
agreed to plead guilty based on his desire to get out of jail. This desire holds no
consequence to us as it does nothing to negate a perfectly sound plea process. Petitioner
has failed to prove that he received the ineffective assistance of counsel that would
otherwise render his guilty plea involuntary and unintelligent. Petitioner is not entitled to
relief on this issue.

                                        Conclusion

       Based on the foregoing, the judgment of the post-conviction court is affirmed.


                                          ____________________________________
                                          TIMOTHY L. EASTER, JUDGE
                                            -9-
