                                                                                        01/27/2017




          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                          Assigned on Briefs December 14, 2016

                LUIS NAPOLEON PAZ v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Davidson County
                    No. 2012-C-2474 Cheryl A. Blackburn, Judge
                       ___________________________________

                              No. M2016-00069-CCA-R3-PC
                          ___________________________________


The petitioner, Luis Napoleon Paz, appeals the denial of his petition for post-conviction
relief, arguing the post-conviction court erred in finding he received effective assistance
of counsel. Following our review, we affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and
CAMILLE R. MCMULLEN, JJ., joined.

Celia Marie Stacey, Nashville, Tennessee, for the appellant, Luis Naoleon Paz.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Glenn Funk, District Attorney General; and Jeff Burks and Megan
King, Assistant District Attorney Generals, for the appellee, State of Tennessee.


                                            OPINION

                                             FACTS

       After being indicted for first degree murder (Count 1) and employment of a
firearm during a dangerous felony (Count 2), the petitioner pled guilty to the lesser
included offense of second degree murder.1 Pursuant to Hicks v. State, the negotiated
plea deal imposed an out-of-range sentence of thirty years in confinement to be served at
100%. 945 S.W.2d 706, 709 (Tenn. 1997). The thirty-year sentence offered in the plea
deal fell “out-of-range” because a second degree murder conviction at trial would have

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          Count 2 was dismissed as part of the plea deal.
carried a sentencing range of only fifteen to twenty-five years for the petitioner, a Range I
offender. See Tenn. Code Ann. § 40-35-112(a)(1).

       As a result, the petitioner filed a pro se petition for post-conviction relief alleging
ineffective assistance of counsel regarding his lack of understanding of the imposed, out-
of-range sentence. In his amended post-conviction petition, the petitioner claimed “his
guilty pleas were not entered into knowingly and voluntarily because he did not
understand the consequences of pleading guilty to second degree murder.” The petitioner
ultimately stated if that “counsel [had] adequately advised petitioner of the maximum
sentence for the lesser offenses, he would not have pled guilty and would have insisted on
proceeding to trial.”

      The post-conviction court conducted an evidentiary hearing wherein the petitioner
and counsel both testified. The court summarized the hearing testimony as follows:

              Petitioner testified [counsel] represented him, and she discussed with
       him the benefits of trial and the guilty plea. Counsel advised him the guilty
       plea was more beneficial for him because he would receive less time.
       Petitioner stated that counsel did not advise him, however, of the potential
       sentence he faced in number of years should he be convicted at trial. When
       questioned whether he has thought about what kind of sentence he would
       receive if convicted at trial, [p]etitioner responded, “No.”

              Petitioner testified he now understands that he accepted a higher
       sentence than his range, but at the time of his plea he did not understand
       what it meant to “plead out of range.” He stated that he did not understand
       the consequences of his plea “other than I was serving 30 years.” Petitioner
       acknowledged that [t]rial [c]ounsel provided the “witness paperwork”
       showing what “facts they knew” and how they would testify at trial.

              On cross-examination, [p]etitioner agreed that he was represented by
       [counsel] in [g]eneral [s]essions as well as in [c]riminal [c]ourt. In
       [g]eneral [s]essions he had two appearances, including a preliminary
       hearing where the man who identified [p]etitioner as the shooter, Ladarion
       Smith, testified. Petitioner could not quantify the number of times [t]rial
       [c]ounsel met with him about his case, but he agreed that (sic) she met with
       him multiple times during court appearances in [c]riminal [c]ourt as well as
       outside of court.

               Petitioner testified that he wanted to go to trial and his case was set
       for trial in September 2013, but [t]rial [c]ounsel advised him taking a guilty
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plea was better for him because of the witnesses. Petitioner testified since
his trial was only a few weeks away when they had this discussion, he told
[t]rial [c]ounsel to “get me something,” and she came back with the 30-year
offer. Petitioner conceded that [t]rial [c]ounsel discussed with him possible
defenses should the case go to trial.

       Petitioner’s recollection of his plea hearing was spotty. For
example, [p]etitioner did not recall the [c]ourt explaining the 15- to 25-year
range to him although he did recall the [c]ourt advising the sentence was to
be served at 100% due to the nature of the offense. Petitioner testified that
he was telling the truth during his plea hearing.

       The [c]ourt clarified that [p]etitioner was under oath and told the
truth during his plea hearing. Petitioner did not dispute what occurred at
his plea hearing; rather, he just did not remember some of the hearing.

        [Trial counsel] testified that she has served as an assistant public
defender for almost 10 years in Tennessee, devoting 100% of her practice
to criminal defense work. She stated she met with [p]etitioner at least once
prior to the preliminary hearing once he was extradited from Florida. She
also met with him on each of the nine [c]riminal [c]ourt appearances as well
as outside of court approximately 25 times. During these meetings, she
discussed the charges with [p]etitioner, his exposure for the charged offense
of first degree murder versus the 30-year offer for second degree murder,
and range of punishment for lesser included offenses. Trial [c]ounsel stated
she discussed with [p]etitioner the difference between first and second
degree murder.

       Trial [c]ounsel testified that [p]etitioner asked to accept the State’s
offer. Trial [c]ounsel believes she met with [p]etitioner the day before the
plea hearing to go over the plea petition. She recalled going over it
together in CJC, where she read the petition aloud while [p]etitioner
followed along.

        On cross-examination, [t]rial [c]ounsel agreed she could not recall
the specifics of going over the plea with [p]etitioner. She conceded
[p]etitioner may not have understood the phrase “out of range,” but
maintained [p]etitioner understood the difference between accepting 30
years as part of the plea versus going to trial and facing the exposure of a
first degree murder conviction with a life sentence. That is, [p]etitioner was

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       aware of and understood his options to either go to trial with the known
       evidence against him or accept the State’s offer.

       After its review, the post-conviction court held the petitioner failed to show he
received ineffective assistance of counsel. In denying relief, the court noted that both the
petitioner’s and trial counsel’s testimony “indicated he understood the concept [of out-of-
range sentencing] and that he chose to accept the 30-year sentence because it was less
time than he would face should he be convicted at trial of first degree murder as
charged.” This appeal followed.

                                       ANALYSIS

       On appeal, the petitioner alleges trial counsel was ineffective because she failed to
fully explain the terms of his plea deal, specifically the fact that he was pleading out-of-
range. The State argues the petitioner has failed to meet his burden of proving he
received ineffective assistance of counsel. After our review, we agree with the State.

        The petitioner bears the burden of proving his post-conviction allegations of fact
by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). The findings of
fact established at a post-conviction evidentiary hearing are conclusive on appeal unless
the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500
(Tenn. 1996). This Court will not reweigh or reevaluate evidence of purely factual
issues. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate
review of a trial court’s application of the law to the facts is de novo, with no
presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The
issue of ineffective assistance of counsel presents mixed questions of fact and law. See
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus, this Court reviews the
petitioner’s post-conviction allegations de novo, affording a presumption of correctness
only to the post-conviction court’s findings of fact. See Fields, 40 S.W.3d at 458; Burns
v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the standard for determining ineffective assistance of counsel applied in federal cases is
also applied in Tennessee). The Strickland standard is a two-prong test:

              First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by
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       the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. 466 U.S. at 687. Thus, courts are not required to even
“address both components of the inquiry if the defendant makes an insufficient showing
on one.” Strickland, 466 U.S. at 697; see also Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (stating that “a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim”).

       A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. Because the petitioner’s ineffective assistance of counsel
claims relate to his guilty plea, in order to show prejudice he “must prove that counsel
performed deficiently and ‘there is a reasonable probability that, but for counsel’s errors,
he would not have pled guilty and would have insisted on going to trial.’” Grindstaff v.
State, 297 S.W.3d 208, 216–17 (Tenn. 2009) (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)).

       On appeal, the petitioner argues trial counsel’s ineffective assistance led him to
plead guilty to second degree murder “without being informed about what his overall
exposure was and about what pleading out of range means.” The record, however, shows
otherwise. Both the guilty plea and the post-conviction hearings support the trial court’s
finding that the petitioner understood the nature of the plea deal, the potential sentences
he faced at trial versus in the plea deal, and the strengths and weaknesses of his defense.

      Prior to pleading guilty, the petitioner faced two options. He could proceed to trial
under a first degree murder charge which carried a possible life sentence if convicted, or
he could plead guilty to the lesser included offense of second degree murder which
imposed a thirty-year sentence as a condition of the plea deal.

       Second degree murder is a Class A felony which carries an overall sentencing
range of “not less than fifteen (15) nor more than sixty (60) years.” Tenn. Code Ann. §
40-35-111 (b)(1). The guilty plea, however, presented an “out-of-range” sentence based
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on the petitioner’s classification as a Range I offender. Had the petitioner gone to trial
and been convicted of second degree murder, his status, as a Range I offender, would
have warranted a sentencing range between fifteen and twenty-five years. Tenn. Code
Ann. § 40-35-112 (a)(1). Thus, the thirty-year offer exceeded the petitioner’s sentencing
exposure for second degree murder at trial, which would have been capped at twenty-five
years. However, the petitioner and the State are free to enter into “a ‘hybrid’ sentence
that ‘mixes and matches’ range assignment, term of years, and release eligibility without
regard to what our sentencing scheme might call for absent a plea bargain . . . .” Davis v.
State, 313 S.W.3d 751, 760 (Tenn. 2010) (internal citations omitted). This is precisely
what happened in the petitioner’s case.

       Rather than proceeding to trial, the petitioner chose to plead guilty to second
degree murder. Under the plea deal and as noted on the judgment sheet, the petitioner
received a thirty-year sentence as a multiple offender with a statutorily imposed 100%
release eligibility. Tenn. Code Ann. § 40-35-501(i). Though the negotiated guilty plea
deal offered an “out-of-range” sentence, the record indicates the petitioner was fully
informed by counsel and the trial court of the out-of-range nature of the thirty-year
sentence and, therefore, entered a knowing and voluntary plea.

       The post-conviction court summarized the petitioner’s position and highlighted
pertinent testimony from the plea colloquy, as follows:

              In this case, [p]etitioner faced two unappealing options: to go to trial
       in a case where the State had strong evidence or to accept the State’s only
       guilty plea offer of 30 years. Granting post-conviction relief would simply
       place [p]etitioner in that same position of either going to trial on first
       degree murder, which carries a life sentence, and be tried on Count 2, or
       accepting a plea offer should the State even be willing to engage in plea
       negotiations.

              Moreover, the guilty plea transcript belies [p]etitioner’s allegations.
       During the plea hearing, the [c]ourt thoroughly explained to [p]etitioner
       more than once that he was pleading “out of range” and [p]etitioner
       affirmed he understood:

                      THE COURT: Now, the petition says you are going to
              be pleading guilty to the lesser included offense of murder in
              the second degree. That’s an A felony. It’s going to be a
              thirty-year sentence. Now, you have a standard- actually
              that’s not a standard. That’s a multiple offense thing, but the
              percentage is a hundred percent. So it really-he’s waiving the
                                            -6-
              range. This is what I need to ask you, [petitioner]. Had you
              gone to trial and been convicted of murder in the second
              degree- you were charged with murder in the first degree.
              But if you had been convicted of murder in the second
              degree, your range of punishment would have been fifteen to
              twenty-five years. But in order to sort of arrange for this plea
              agreement you’ve agreed to plead guilty to thirty years, rather
              than to go to trial and be convicted of murder in the first
              degree. Is that a correct statement?

                     [PETITIONER]: Correct.

                      THE COURT: All right. Now, let’s go over again
              what you were charged with. You were charged with murder
              in the first degree. And I assume this is an intentional
              premeditated killing. That’s what that means, murder in the
              first degree, that you intend to kill somebody and thought
              about it. The range of punishment would have been for you
              life imprisonment with the possibility of parole because the
              State has not given notice of any enhanced punishment in
              your case.
                      Now, you’re not pleading guilty to that. You’re
              pleading guilty to a knowing killing of another, which that
              range-the full range of punishment is fifteen to sixty years.
              But as a Range 1 offender, it’s fifteen to twenty-five years.
              But you’re waiving the twenty-five year limit and accepting a
              thirty-year sentence in order to get this plea to murder in the
              second degree. Do you understand that?

                     [PETITIONER]: Yeah.

        The record shows the trial court conducted a thorough plea colloquy and found the
petitioner understood his choice to forego a trial for first degree murder and plead guilty
to the lesser included offense of second degree murder. In denying the petition, the post-
conviction court found “the record, including the guilty plea transcript, affirmatively
demonstrates that the [p]etitioner’s guilty plea was made with an awareness of the
consequences, and, as such, the guilty plea was voluntarily, intelligently, and knowingly
entered.” We agree.

       The evidence in the record demonstrates that at the time the petitioner entered his
guilty plea, he understood he would receive a thirty-year sentence for second degree
                                            -7-
murder outside of the range he would have received if convicted at trial. The record
indicates that prior to entering his plea of guilty, the petitioner met with counsel multiple
times and discussed the strength of the State’s case and the evidence against him, the
differences between first and second degree murder and the sentences associated
therewith, and the specifics of the plea deal offered by the State. The record shows the
petitioner knew he faced a potential life sentence under the first degree murder charge
while he faced a thirty-year sentence under the plea deal. Further, during the post-
conviction evidentiary hearing, the petitioner testified he discussed the guilty plea
proceedings with counsel, he understood the proceedings and his associated rights, and he
was satisfied with counsel’s representation. Accordingly, the record supports the post-
conviction court’s finding that the petitioner failed to meet his burden of proving
ineffective assistance of counsel on the grounds that he did not understand the
consequences of pleading guilty to second degree murder. The petitioner is not entitled
to relief.

        In order to succeed on his ineffective assistance claim, aside from presenting clear
and convincing factual evidence establishing counsel’s deficient performance, the
petitioner must also establish prejudice. Specifically, the petitioner must show that but
for counsel’s alleged deficient performance, he would have insisted on going to trial. See
Grindstaff, 297 S.W.3d at 216–17; Strickland, 466 U.S. at 687. The petitioner has not
met this burden. The record is replete with evidence that the petitioner understood the
options he faced prior to entering his guilty plea, the out-of-range sentencing associated
with the guilty plea, and the rights he waived upon entering the guilty plea. Thus, not
only has the petitioner failed to show counsel was ineffective, but also he cannot prove he
was prejudiced. Without proof of prejudice, the petitioner’s claims fail and he is not
entitled to post-conviction relief on the grounds of ineffective assistance of counsel.

       Finally, upon our review and as found by the post-conviction court, the record
contains no proof to suggest the petitioner did not enter a knowing and voluntary guilty
plea. The record indicates the trial court discussed the petitioner’s right to confront the
witnesses against him and to testify in his own defense if he were to go to trial. See Jaco
v. State, 120 S.W.3d 828, 831 (Tenn. 2003) (“A plea is ‘knowing’ if the court informed
the accused of his constitutional rights against self-incrimination, to confront accusers,
and to trial by jury.”). The record indicates the petitioner was fully informed by both trial
counsel and the trial court of his options, to either go to trial or take the plea deal. The
record also indicates the petitioner made “a voluntary and intelligent choice among the
alternative courses of action” available to him when choosing to plead guilty. Jaco, 120
S.W.3d at 831 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970) (internal
quotations omitted)). As such, the record supports the trial court’s finding that the
petitioner entered a knowing and voluntary guilty plea to second degree murder. The
petitioner is entitled to no further relief.
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                                 CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.


                                              _________________________________
                                              J. ROSS DYER, JUDGE




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