        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 3, 2010

                 CHARLES BATES v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                       No. 08-02044     Paula Skahan, Judge


             No. W2009-02046-CCA-R3-PC - Filed November 15, 2010


The petitioner, Charles Bates, appeals the denial of his petition for post-conviction relief.
He pled guilty to criminal attempt to commit aggravated sexual battery, a Class C felony, in
exchange for a sentence of six years in the Shelby County Correction Center as a Range I,
standard offender. On appeal, he argues that counsel was ineffective and that his guilty plea
was not entered knowingly, voluntarily, and intelligently. After careful review, we affirm
the denial of relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R. and J.C. M CL IN, JJ., joined.

Tiffani S. Taylor, Memphis, Tennessee, for the appellant, Charles Bates.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        The facts were summarized by the State and stipulated to by the petitioner during the
entry of the petitioner’s guilty plea. The six-year-old victim was in the care and custody of
the petitioner, who was living in the home with the victim and her family. The victim’s
mother left to go to a neighbor’s home and returned to find the petitioner missing. The
victim told her mother that the petitioner touched her genital area. The petitioner testified
that he understood the charges against him, that counsel had explained everything to him, and
that he had no questions about the charges. The petitioner was sentenced to six years of
confinement and was ordered to pay a $1000 sex offender fine and to register as a sex
offender.

                                           Analysis

        On appeal, the petitioner argues that counsel was ineffective for failing to properly
prepare his case, which rendered his guilty plea involuntary. Specifically, he argues that
counsel did not meet with him for an adequate amount of time and did not personally
interview any witnesses. This court reviews a claim of ineffective assistance of counsel
under the standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The petitioner has the burden to prove
that (1) the attorney’s performance was deficient, and (2) the deficient performance resulted
in prejudice to the defendant so as to deprive him of a fair trial. Strickland, 466 U.S. at 687,
104 S. Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Butler v. State, 789
S.W.2d 898, 899 (Tenn. 1990). The failure to prove either deficiency or prejudice justifies
denial of relief; therefore, the court need not address the components in any particular order
or even address both if one is insufficient. Goad, 938 S.W.2d at 370. In order to establish
prejudice, the petitioner must establish a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694, 104 S. Ct. at 2068.

       The test in Tennessee to determine if counsel provided effective assistance is whether
his or her performance was within the range of competence demanded of attorneys in
criminal cases. Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption
that counsel’s conduct falls within the wide range of acceptable professional assistance.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; State v. Honeycutt, 54 S.W.3d 762, 769
(Tenn. 2001). Therefore, in order to prove a deficiency, a petitioner must show “that
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, 104 S. Ct. at 2065).

       In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366 (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
pled guilty and would have insisted on going to trial. 474 U.S. at 59, 106 S. Ct. at 370;
Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

      The petitioner testified during the post-conviction hearing that counsel visited with
him only two times during his representation, which lasted five months. Trial counsel

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testified to several meetings with the petitioner in the jail, as well as written correspondence
following up on telephone calls. Trial counsel also testified that he provided two copies of
the discovery materials to the petitioner because the petitioner lost the first set. The post-
conviction court clearly accredited the testimony of counsel, and the petitioner points to no
evidence on appeal to undermine the decision of the post-conviction court. Therefore, he is
not entitled to relief on this issue.

        The petitioner also claims that counsel was ineffective for failing to interview
witnesses whose names he provided to counsel. Counsel testified that his investigator
interviewed the witnesses and determined that they were unable to provide the alibi the
petitioner was seeking. Nevertheless, the petitioner is not entitled to relief on his issue
because he failed to produce these witnesses during the post-conviction hearing. “When a
petitioner contends that trial counsel failed to discover, interview, or present witnesses in
support of his defense, these witnesses should be presented by the petitioner at the
evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990); see also
Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a general rule, this is the
only way the petitioner can establish that (1) a material witness existed who could have been
discovered but for counsel’s negligent investigation of the case; (2) a known witness was not
interviewed; (3) the failure to discover or interview the witness caused him prejudice; or (4)
the failure to present a known witness resulted in the denial of critical evidence which caused
the petitioner prejudice. Black, 794 S.W.2d at 757. Neither the trial court nor this court can
speculate on what a witness’s testimony might have been if introduced by counsel. Id.

        The petitioner has failed to meet his burden of demonstrating that counsel was either
deficient or that counsel’s representation prejudiced him. He has not demonstrated on appeal
that counsel committed errors that led to the entry of his plea and, therefore, is not entitled
to relief.

      The petitioner also argues that his guilty plea was not knowingly, intelligently, and
voluntarily entered because he suffered from mental illness and may not have been on his
medications on the day of the guilty plea. The petitioner also contends that his plea was
involuntary and unknowing. 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. at 242, 89 S. Ct. at 1711, 23 L. Ed. 2d at 279. In order to find

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       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). Specifically, the petitioner contends that
his plea could not be knowingly, intelligently, and voluntarily entered because he was not
taking his medication on the day his plea was entered and could not understand the future
ramifications of the entry of a guilty plea to a sexual crime. He argues that counsel was
ineffective for taking the petitioner’s word that he did not need his medication instead of
pursuing the advice of a doctor. The record reflects that, prior to the entry of his guilty plea,
the petitioner was evaluated by doctors and determined to be competent to stand trial, not
committable, and not eligible for an insanity defense. The petitioner told counsel that he did
not want to take his medication during the entry of his plea because it prevented him from
thinking clearly.

        The transcript of the plea hearing reflects that the State announced in open court that
the petitioner was pleading guilty to an offense that required him to be listed on the sex
offender registry. The petitioner answered in the affirmative when asked by the trial court
whether he understood the charges against him, the plea agreement, and the charge to which
he pled guilty. The petitioner told the court that he had no questions and that he wanted to
plead guilty. Counsel testified that he discussed the plea agreement with the petitioner and
allowed the petitioner to decide whether to plead guilty or proceed to trial. The petitioner
said that he reviewed the agreement, including the provision that he would be registered as
a sex offender. If he proceeded to trial, the petitioner faced eight to twelve years, to be
served at one hundred percent as charged. The plea agreement shortened the time to six
years, with a release eligibility of thirty percent. The record supports the post-conviction
court’s finding that the petitioner entered his guilty plea knowingly, voluntarily, and
intelligently.




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                                     Conclusion

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




                                               _________________________________
                                               JOHN EVERETT WILLIAMS, JUDGE




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