          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT KNOXVILLE
                             Assigned on Briefs February 19, 2015

             THOMAS EUGENE LESTER v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Hamilton County
                            No. 288339   Don W. Poole, Judge


                   No. E2014-01625-CCA-R3-PC – Filed March 31, 2015


The Petitioner, Thomas Eugene Lester, appeals as of right from the Hamilton County
Criminal Court’s denial of his petition for post-conviction relief. In this appeal, the
Petitioner contends that he received the ineffective assistance of counsel and that his
guilty plea was unknowingly and involuntarily entered because he was suffering from an
untreated medical condition at the time he entered his plea. Discerning no error, we
affirm the judgment of the post-conviction court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.
James W. Clement, III, Chattanooga, Tennessee, for the Appellant, Thomas Eugene
Lester.
Herbert H. Slatery, III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Neal Pinkston, District Attorney General; and Bates W. Bryan, Jr., Assistant
District Attorney General, for the Appellee, State of Tennessee.
                                          OPINION
                                    FACTUAL BACKGROUND1

      On January 14, 2013, the Petitioner pled guilty to theft of property valued at
$1,000 or more in case number 284721 and was sentenced to “supervised probation for a


1
  Initially, we note that the Petitioner has not included documentation of the trial court proceedings for his
underlying charges in the record. Therefore, our understanding of the underlying charges is gleaned from
the transcript of the guilty plea submission hearing, which was made an exhibit to the post-conviction
hearing, the post-conviction court’s orders, and the testimony from the post-conviction hearing.
term of three years, for removal from which the [P]etitioner could petition the [c]ourt
after successful completion of one year.” Thereafter, the Petitioner was charged in case
number 287087 with a violation of the Motor Vehicle Habitual Offenders Act (“the
MVHOA”). Around the same time, he was also charged with aggravated assault.2

       At the guilty plea submission hearing on May 6, 2013, the prosecutor stated that
the Petitioner was conceding that he violated his probation in case number 284721 and
that he would “be released on the time that he’s served and the balance of the sentence
will be on supervised probation.” The State clarified that the length of the probation was
three years. With respect to case number 287087, the Petitioner entered a plea of guilty
to violation of the MVHOA and agreed to a one-year sentence, suspended to
unsupervised probation, to run consecutive to case number 284721.

       The State explained that the basis for the probation violation was an aggravated
assault that “was dismissed down in general sessions court just recently.” The MVHOA
violation stemmed from the Petitioner’s driving a motor vehicle on November 27, 2012,
in Hamilton County. When asked for his driver’s license, the Petitioner was unable to
produce one and was subsequently taken into custody. The Petitioner had been declared
a habitual motor vehicle offender in May 1999.

       The trial court engaged the Petitioner in a plea colloquoy, explaining that he was
pleading guilty and detailing the rights he was waiving by entering a plea. The Petitioner
said that he understood the charges he was facing as well as the relevant maximum and
minimum sentences. When asked whether he understood that he had the right to plead
not guilty and proceed to trial, the Petitioner responded, “I do understand that, sir, but
there’s another side to the problem here, sir, and I just - - I understand.” The court
continued to question the Petitioner, and he agreed that he understood his rights.

        The court asked the Petitioner whether he had signed the petition to enter a plea of
guilty, and the Petitioner responded affirmatively. The Petitioner agreed that he either
read the petition himself or had someone read it to him. He indicated that he understood
the contents of the petition and the consequences of entering a guilty plea.

       The trial court asked the Petitioner whether anyone had threatened him in any way
or promised him anything other than the plea deal, and the Petitioner responded, “Yes,
sir.” The trial court asked the Petitioner what he had been promised, and the Petitioner
answered, “Nothing, no, no, sir.” The trial court inquired further, asking the Petitioner


2
 The exact timing of the aggravated assault charge is not apparent from the record. The case number
assigned to the aggravated assault is also unclear.

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whether he was listening to the court’s questions. The Petitioner indicated that he was
listening and agreed that that the factual account provided by the prosecutor was true.

       The trial court accepted the Petitioner’s guilty plea for driving while being a
habitual motor vehicle offender and sentenced him to one year as a Range I, standard
offender. The sentence was suspended to time served with the remainder to be served on
unsupervised probation for one year. The court asked the Petitioner whether he heard
“the agreement that [the prosecutor] announced in the other case, that you’re going to be
on supervised probation for a period of three years and then this sentence will run
consecutive to that one?” The Petitioner indicated that was his understanding of the
agreement.

        On May 10, 2013, the Petitioner filed two pro se post-conviction petitions. The
first petition alleged that he was induced to plead guilty to violating the MVHOA because
he was refused medical treatment while in jail. The second petition alleged that he had
not received the plea deal that he was promised for his probation revocation.

       On June 4, 2014, the post-conviction court entered an order addressing both
petitions. With respect to the Petitioner’s probation revocation in case number 284721,
the trial court determined that the Petitioner failed to state a colorable claim and
summarily dismissed the issue. The court cited to Young v. State, 101 S.W.3d 430, 432
(Tenn. Crim. App. 2002), noting that “claims arising from the revocation of probation are
not cognizable in post-conviction proceedings.” For the violation of the MVHOA in case
number 287087, the post-conviction court concluded that the petition stated a colorable
claim. Thereafter, the Petitioner was appointed counsel and an amended petition for
post-conviction relief was filed.

        In his amended petition, the Petitioner alleged that his trial counsel was ineffective
for failing to advise him that the guilty plea submission hearing could be continued and
medical treatment for his “severe ailments” ordered. The Petitioner averred that he was
suffering from a urinary blockage at the time of his guilty plea and had not received
proper medical attention while incarcerated. The Petitioner contended that he was
“unduly coerced” into accepting the plea offer so that he could be released from custody
and seek medical treatment.

       A post-conviction hearing was held on June 25, 2014. Trial counsel testified that
in May 2013 he was appointed to represent the Petitioner on a probation violation and
violation of the MVHOA. He remembered that the Petitioner “had some medical issues
involving . . . his . . . urinary tract.” Trial counsel discussed this medical issue with the
Petitioner and told the Petitioner that he would notify the nurse at the jail about the
problem, which he did. According to trial counsel, the jail responded that it “would look

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into that,” which trial counsel characterized as a “general response . . . that [he] usually
get[s].”

       Trial counsel recalled talking to the Petitioner in the holding cell before his guilty
plea submission hearing. Counsel relayed the State’s offer to the Petitioner, but “[the
Petitioner] was annoyed, he didn’t like the offer.” Counsel explained that if the Petitioner
accepted the offer, “he would be out that day.” However, trial counsel told the Petitioner
that the decision whether to accept the offer rested with the Petitioner and that if he did
not accept the deal, they could “have a hearing.” The Petitioner told trial counsel that he
wanted to have the hearing right then, but trial counsel told him that it would have to be
scheduled for a later date so that trial counsel could arrange for witnesses. Trial counsel
told the Petitioner that they could “handle the probation violation then and . . . set the
other one for trial.”

        The Petitioner was “upset about that” and told trial counsel that he was “having a
hard time” and wanted to plead. Trial counsel assured the Petitioner that if he wanted to
wait and go to trial, he would call the nurse again and “look into [his medical condition]
if it’s really an issue.” Trial counsel testified that when the Petitioner said he was
“having a hard time,” he understood that the Petitioner was referring to his psoriasis.
According to trial counsel, the Petitioner eventually decided to take the plea, saying, “I
just want to get this over with, I want to get out.”

        Trial counsel testified that he could not say whether the Petitioner’s medical
condition was the “impetus for him taking the plea.” He explained that many of his
clients “just want out” and that he told the Petitioner that there was medical staff at the
jail that could help him if he chose not to take the plea deal. Trial counsel said that he
advised the Petitioner to do “what he wanted to do.” According to trial counsel, he
informed the Petitioner that he would “try to get [a hearing] as soon as possible.”

       On cross-examination, trial counsel testified that the Petitioner pled as a Range I
offender, although, to the best of his recollection, the Petitioner actually qualified as a
Range III offender. Trial counsel recalled that the Petitioner received one year of
unsupervised probation for the MVHOA violation. Trial counsel testified that after
reviewing the underlying facts, he believed the Petitioner was guilty of violating the
MVHOA, and he remembered advising the Petitioner that the State’s offer was “a good
deal.”

       The Petitioner testified that he had “a real bad case of psorias[i]s,” which he
described as a skin condition that can also affect his ability to urinate. He testified that he
was currently suffering from psoriasis and that he was having the same issue when he
entered his guilty plea in May 2013. The Petitioner usually treated the psoriasis with

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daily medications as well as a shot every two months. According to the Petitioner, when
he takes his medication he does not suffer from the symptoms associated with his illness.

       The Petitioner testified that he was currently back in custody and did not have
access to the proper medication and that when he asked for it, “they” gave him “some
other cream for it.” He testified that his regular medication had not been delivered to jail
personnel because he did not “have no one [sic] to do that.” The Petitioner clarified that
he was currently receiving a topical cream that was not effective and that although he put
in a request to see a doctor, he had not seen one in the four months he had been in
custody.

       He testified that prior to the guilty plea submission hearing, he was not receiving
proper medical care for his psoriasis. According to the Petitioner, he was given a topical
cream at the jail. The Petitioner testified that his normal medication, which was
effective, was an ointment and that “a cream and an ointment [are] different, very
different.”

       The Petitioner testified that he could not read very well and that trial counsel did
not go over the petition to plead guilty with him. He acknowledged that he signed the
petition to plead guilty and that he understood he was pleading guilty. He also agreed
that the trial court went over the guilty plea with him during the guilty plea submission
hearing.

       The Petitioner testified that he attempted to raise his medical issue at the guilty
plea submission hearing when he told the trial court that “there’s another side to the
problem.” According to the Petitioner, trial counsel advised him that if he did not take
the plea, he would not be released from jail that day. The Petitioner testified that he took
the plea deal and was able to immediately see his doctor and receive effective treatment
for his condition. His condition improved, and he was able to continue to take his
medication regularly until he went back into custody.

       The Petitioner testified that his medical condition rendered his guilty plea to the
violation of the MVHOA involuntary. He further testified that he was facing a probation
violation, that he knew he had a right to a hearing on the matter, and that he took the deal
because he would be released from jail that day and could seek medical treatment.

       On cross-examination, the Petitioner admitted that he had a lengthy arrest record
and that he had been through the “plea process” many times. He recalled that at the
guilty plea submission hearing in the present case, he hesitated when the trial court asked
him whether he felt threatened because he “wanted to say something else.” The
Petitioner testified that he felt threatened “[t]o take something or stay in jail when I
couldn’t use the bathroom.”
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       Denise Cowings testified that the Petitioner was “like a brother to her” and that he
resided with her when not in custody. She testified that the Petitioner took regular
medication for his psoriasis and that the medication was at her house. According to Ms.
Cowings, she had not been able to get in touch with the Petitioner since he had been in
custody and did not know whether the jail would allow the Petitioner to receive an
“outside medication.”

       The Petitioner was recalled to the stand, and the trial court asked him to clarify
whether he had an aggravated assault case pending in May 2013. The Petitioner testified
that he “came back to your court to handle the driving situation,” and the court told the
Petitioner that it “couldn’t let [him] leave because [he] had a warrant downstairs for
aggravated assault.” He was then taken into custody. The Petitioner testified that the
charges were later dismissed in sessions court after the person who made the assault
allegations recanted his story. Nevertheless, the guilty plea submission hearing followed,
and the Petitioner admitted to violating his probation and also to violating the MVHOA.
His three-year probationary sentence was then changed from “one-year active to three
years active,” and he received an additional year of unsupervised probation for violating
the MVHOA. The Petitioner asserted that he did not understand that the probation
revocation would result in three years of supervised probation, and he wanted to go “back
to square one” and try his cases.

       The post-conviction court issued a written order denying the Petitioner post-
conviction relief. The court accredited trial counsel’s testimony that he advised the
Petitioner about the availability of a hearing on another day and that trial counsel assured
the Petitioner that he would request medical treatment for the Petitioner. The court found
no deficiency in counsel’s performance. The court again concluded that the Petitioner’s
claims with respect to his probation revocation were not cognizable in a post-conviction
proceeding.

       The post-conviction court further concluded that the Petitioner’s plea was knowing
and voluntary, relying on the following factual findings: the Petitioner’s extensive
criminal record and familiarity with the plea process; trial counsel’s competence; the
Petitioner’s awareness of the charges and consequences of the pleas; and the Petitioner’s
decision to not bring up his medical condition during the guilty plea submission hearing.
The court specifically found that the Petitioner did not explain why he did not accept trial
counsel’s offer to obtain appropriate medical treatment and also noted that the Petitioner
had not provided any evidence of a request for specific treatments or a rejection of such
request. The court concluded that “the [P]etitioner was aware of the options available to
him and the plea on the new charge was his voluntary and intelligent choice among those
options.”


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                                       ANALYSIS

       First, we note that to the extent the Petitioner challenges the revocation of his
probation, the trial court properly determined that such a claim is not cognizable in a
post-conviction proceeding. See Young, 101 S.W.3d at 433 (holding that “the Tennessee
Post-Conviction Procedures Act does not permit the filing of a petition under its
provisions to attack collaterally the validity of a proceeding to revoke the suspension of
sentence and/or probation”). Therefore, we need only consider the validity of the
Petitioner’s guilty plea with respect to his violation of the MVHOA.

                                  I. Standard of Review

       In a post-conviction proceeding, the burden is on the Petitioner to prove his
grounds for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f);
see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). On appeal, we are bound
by the trial court’s findings of fact unless we conclude that the evidence in the record
preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001).
Additionally, “questions concerning the credibility of the witnesses, the weight and value
to be given their testimony, and the factual issues raised by the evidence are to be
resolved” by the post-conviction court. Id. Because they relate to mixed questions of
law and fact, we review the trial court’s conclusions as to whether counsel’s performance
was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

                           II. Ineffective Assistance of Counsel

        On appeal, the Petitioner first contends that trial counsel was ineffective for
allowing him to accept a plea deal when trial counsel knew that the Petitioner was
suffering from a medical condition that was causing him pain. He asserts that he would
not have accepted the plea deal but for his medical condition and that trial counsel’s
failure to obtain a continuance deprived him of the opportunity to litigate his claims. The
State responds that the trial court properly concluded that trial counsel was effective and
appropriately advised the Petitioner that he could challenge the charges at a later hearing
and that trial counsel would speak with jail officials about getting the Petitioner proper
medical treatment.

       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S.
364, 368-72 (1993). In other words, a showing that counsel’s performance falls below a
reasonable standard is not enough; rather, the petitioner must also show that but for the
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substandard performance, “the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The Strickland standard has been applied to the right to
counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).

       In the context of a guilty plea, the effective assistance of counsel is relevant only
to the extent that it affects the voluntariness of the plea. Therefore, to satisfy the second
prong of Strickland, the petitioner must show that “there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        The trial court concluded that the Petitioner did not suffer from deficient
representation. The evidence presented at the post-convictoin hearing reflects that trial
counsel discussed the plea agreement with the Petitioner and explained that if he chose
not to accept the deal, he could receive a hearing on the matter. The Petitioner
complained about medical issues and expressed reservations about extending his time in
jail. Trial counsel assured the Petitioner that if he chose to decline the plea deal and
proceed with the charges, counsel would contact the jail nurse again about the medical
care that the Petitioner needed while in jail. The Petitioner responded that he wanted to
get it over with and accept the deal. The evidence does not preponderate against the trial
court’s conclusion that the Petitioner received effective assistance of counsel. This issue
is without merit.

                       III. Involuntary and Unknowing Guilty Plea

       Next, the Petitioner contends that his untreated medical condition rendered his
guilty plea unknowing and involuntary. The State responds that the Petitioner was fully
apprised of his rights and knew he had the option to refuse the plea deal with counsel’s
assurances that his medical condition would be treated. The State further responds that
the Petitioner has not supported his contention with medical records that would
substantiate the basis of his claim.

       When analyzing the voluntariness of a guilty plea, we look to the federal standard
announced in Boykin v. Alabama, 395 U.S. 238 (1969), and the state standard set forth in
State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542
(Tenn. 1999). In Boykin, the United States Supreme Court held that there must be an
affirmative showing in the trial court that a guilty plea was voluntarily and knowingly
given before it can be accepted. 395 U.S. at 242. Similarly, in Mackey the Tennessee
Supreme Court required an affirmative showing of a voluntary and knowledgeable guilty
plea, namely, that the defendant has been made aware of the significant consequences of
such a plea. Pettus, 986 S.W.2d at 542. A plea is not “voluntary” if it results from
                                           -8-
ignorance, misunderstanding, coercion, inducements, or threats. Blankenship v. State,
858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if the guilty plea is
“knowing” by questioning the defendant to make sure he or she fully understands the plea
and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858 S.W.2d at 904.

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

       At the guilty plea submission hearing, the Petitioner indicated that he understood
the charges against him and the details of his guilty plea. Although at one point he did
say, “there’s another side to the problem,” he failed to elaborate and never mentioned that
he was suffering from a medical condition that affected his decision-making abilities. At
the post-conviction hearing, trial counsel testified that prior to the guilty plea submission
hearing, he advised the Petitioner that the hearing could be postponed and that the
decision to plead was entirely up to the Petitioner. Trial counsel also reassured the
Petitioner that he would receive appropriate medical care if he remained in custody. The
Petitioner acknowledged that he had a lengthy arrest record and was familiar with the
plea process.

       We note that the Petitioner has failed to present any medical records or testimony,
other than his own bare assertions, in support of his claim that his psoriasis rendered his
plea unknowing or involuntary. Ordinarily, a petitioner should provide medical records
or medical testimony when relying on a medical condition to assert that a plea was not
entered voluntarily or knowingly. See Darrell Wayne Bumpas v. State, No. M2010-
00222-CCA-R3-PC, 2010 WL 5140673, at *8 (Tenn. Crim. App. Dec. 14, 2010)
(concluding that the petitioner’s “bare allegations, unsupported by medical testimony,
about the use of psychiatric drugs was insufficient to support a claim that his guilty plea
was not knowingly and voluntarily entered”). Although in Bumpas the petitioner
asserted that his pleas were unknowingly and involuntarily entered because he had not
received medication for a mental health condition, the same reasoning supports a similar
requirement for claims that a physical medical condition rendered a plea unknowing or
involuntary.

       The post-conviction court found that the Petitioner understood what he was
pleading guilty to and knew that if he did not wish to plead guilty, he could come back to
                                            -9-
court at a later date. The post-conviction court noted that the Petitioner failed to present
any evidence that he made requests for specific medical treatments or that such requests
were denied. Furthermore, the court noted that the Petitioner offered no explanation as to
why he refused counsel’s offer to help the Petitioner get proper medical treatment if he
chose not to accept the deal. The post-conviction court concluded that the Petitioner’s
plea was entered voluntarily and knowingly and the evidence does not preponderate
against this conclusion. The Petitioner’s claim is without merit.

                                     CONCLUSION

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


                                                  _________________________________

                                                  D. KELLY THOMAS, JR., JUDGE




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