                                                                                        04/25/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 3, 2018

              MALIK JONES-SMITH v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Shelby County
   Nos. 13-03489, 13-03490, 13-03491, 13-03492, 13-05896, 13-05897, & 14-01647
                               Lee V. Coffee, Judge


                            No. W2017-01041-CCA-R3-PC


The Petitioner, Malik Jones-Smith, appeals from the Shelby County Criminal Court’s
denial of his petition for post-conviction relief. The Petitioner contends that his guilty
pleas were not knowingly and voluntarily entered due to the ineffective assistance of his
trial counsel. Following our review, we affirm the judgment of the post-conviction court.
However, we remand the case to the post-conviction court for entry of a corrected
judgment form with respect to one of the Petitioner’s convictions.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and J. ROSS DYER., JJ., joined.

Ernest J. Beasley, Memphis, Tennessee, for the appellant, Malik Jones-Smith.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Alanda Horne Dwyer,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             FACTUAL BACKGROUND

       The Petitioner was indicted for seven counts of aggravated robbery, two counts of
attempted aggravated robbery, one count of especially aggravated kidnapping, one count
of aggravated burglary, and one count of employing a firearm during the commission of a
dangerous felony. On December 11, 2014, the Petitioner entered into a plea agreement
with the State. The Petitioner agreed to plead guilty to all of the charged offenses in
exchange for the following sentencing recommendations from the State:

 Group     Indictment       Offense                                           Sentence
              13-03489      Aggravated Robbery                                8 years
                            Aggravated Robbery                                8 years
    1
              13-03490      Attempted Aggravated Robbery                      6 years
                            Attempted Aggravated Robbery                      6 years
              13-03491      Aggravated Robbery                                8 years
              13-03492      Aggravated Robbery                                8 years
              13-05896      Especially Aggravated Kidnapping                  15 years
    2                       Aggravated Robbery                                12 years
                            Aggravated Burglary                               12 years
              13-05897      Aggravated Robbery                                12 years
              14-01647      Aggravated Robbery                                12 years
    3         13-05896      Employment of a Firearm                           6 years

The plea agreement further provided that the sentences in each of the groups above were
to be served concurrently to each other but consecutively to the other groups, for a total
effective sentence of twenty-nine years.

       The offenses in Group 1 were committed between April 5 and April 7, 2013. The
Petitioner was arrested and released on bail for those offenses. The Petitioner then
committed the offenses in Groups 2 and 3 between June 11 and June 13, 2013.
Therefore, the sentences for Groups 2 and 3 were statutorily required to be served
consecutively to the sentences in Group 1. See Tenn. Code Ann. § 40-20-111(b).
Similarly, the sentence for Group 3 was statutorily required to be served consecutively to
the sentences for Group 2. See Tenn. Code Ann. § 39-17-1324(e)(1). According to the
prosecutor at the guilty plea submission hearing, this sentencing arrangement was “the
absolute bare minimum for . . . all these indictments.”

        The Petitioner was sixteen years old when he was arrested for the offenses listed
above and seventeen years old at the time of the plea submission hearing. The Petitioner
stated that it was his signature on the plea agreement forms and that his trial counsel had
reviewed with him the plea agreement forms and the rights he would be waiving. The
Petitioner further stated that he understood the plea agreement forms. The trial court then
reviewed the various rights that the Petitioner was waiving by pleading guilty. The
Petitioner stated that he understood his rights, that he had discussed the plea agreement
with his attorneys and his family, and that it was his decision to plead guilty.

      The trial court reviewed the charged offenses, the applicable range of
punishments, and the plea agreement with the Petitioner. The Petitioner stated that he
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understood all of this and had no questions about his plea agreement. The Petitioner
further stated that he had no complaints about his trial counsel. The Petitioner admitted
that his attorneys had reviewed with him the discovery materials provided by the State,
that they had hired a private investigator, and that he had provided them with the names
of possible witnesses. The trial court estimated that the Petitioner faced a maximum
sentence of approximately 150 years if all of the indicted offenses had been brought to
trial. The trial court concluded that the Petitioner had “freely and voluntarily” entered his
guilty pleas and accepted the plea agreement.

       The Petitioner filed a timely pro se petition for post-conviction relief. An attorney
was appointed to represent the Petitioner in this matter and an amended petition was filed
on December 8, 2015. As pertinent to our review, the petitions alleged that the
Petitioner’s guilty pleas were “invalid because [he] lacked a complete understanding of
the charges due to his young age and questionable mental state during the guilty plea
proceeding” and that his trial counsel had “not adequately prepared . . . [him] to plead
guilty on these charges.” The petitions also alleged that trial counsel had failed to
properly investigate the charges against the Petitioner. On May 4, 2017, the
post-conviction court held an evidentiary hearing on this matter.

        The Petitioner testified that he felt confused at the guilty plea submission hearing
and that “everything was basically being rushed.” The Petitioner claimed that his trial
attorneys did not explain the plea submission process to him. When asked why he did
not say anything about being confused during the plea submission hearing, the Petitioner
answered that he “was told to just go with the flow and get it over with.” The Petitioner
further claimed that “there was a whole lot of pressure” for him to plead guilty and that
his trial attorneys had told him that twenty-nine years was “the best” that they could do.
Despite this, the Petitioner also claimed that his attorneys had told him that he had a
fifty-fifty chance of an acquittal at trial.

       The Petitioner testified that he felt his trial attorneys did not “thoroughly
investigate [his] case” or “follow up with anything.” The Petitioner claimed that he had
an alibi witness, Timothy Perkins, and that he told his trial attorneys about Mr. Perkins
but that they never contacted to Mr. Perkins. When asked why Mr. Perkins was not at the
evidentiary hearing, the Petitioner responded that Mr. Perkins “just won’t show up” to
court. The Petitioner also claimed that his trial attorneys did not look into his medical or
mental health histories.

       The Petitioner admitted that co-counsel had told him that he was “in the big
league, facing real time.” The Petitioner was aware that he faced a maximum possible
sentence of 139 years if he went to trial and lost. The Petitioner further admitted that he
thought pleading guilty was the right thing to do at the time of the plea submission
hearing. However, the Petitioner testified that he wanted to withdraw his guilty pleas and
                                             -3-
go to trial because “half of” the State’s cases were “garbage” and that the evidence
against him “was planted.”

       Co-counsel testified that he was initially retained to represent the Petitioner, but
was then appointed when the Petitioner’s cases became too “voluminous.” Co-counsel
recalled that lead counsel was also appointed due to the complex nature of the
Petitioner’s cases. According to co-counsel, he became less involved in the Petitioner’s
cases after lead counsel was appointed. However, co-counsel met with the Petitioner
several times, represented the Petitioner at the preliminary hearing, reviewed the
discovery materials with the Petitioner, and was present at the guilty plea submission
hearing. Co-counsel testified that he took the Petitioner’s age into account when
discussing the cases with him.

       Co-counsel testified that the State’s initial offers “were sky-high,” around sixty
years. Co-counsel explained that he felt that all of the State’s cases “were good, except
one.” Co-counsel recalled that most of the witnesses “immediately” identified the
Petitioner as the perpetrator. Co-counsel testified that he advised the Petitioner to take
the offer of twenty-nine years because the Petitioner was not going to get a better offer
from the State.

       Co-counsel believed that the Petitioner “knew what was going on” and that the
Petitioner made the decision to accept the plea agreement. Co-counsel recalled that on
the day of the plea submission hearing, the Petitioner said that he was accepting the plea
agreement because he “did not want to risk it” and that he was “not going to play with
these folks.” Co-counsel further explained that the Petitioner was “very articulate and
[was] more intelligent than the majority of people . . . [in] the [criminal justice] system.”
Co-counsel concluded that the Petitioner “knew full well” what he was doing when he
accepted the plea agreement because they “had a very good discussion about what could
potentially happen, what he was looking at, exposures, . . . [and] he had a very good
understanding.”

       Lead counsel testified that he “beg[ged] and pleaded” to get the State to lower
their offer to twenty-nine years. Lead counsel believed that the Petitioner understood
what he was doing when he pled guilty. Lead counsel recalled that he had no problems
communicating with the Petitioner and that he explained to the Petitioner the
consequences of pleading guilty. Lead counsel testified that he went through the plea
agreement form with the Petitioner and underlined each item as he explained it to the
Petitioner. Lead counsel did not recall the private investigator’s finding anything useful.

       At the conclusion of the evidentiary hearing, the post-conviction court denied
post-conviction relief. The post-conviction court concluded that the Petitioner had failed
to establish his factual allegations by clear and convincing evidence. The post-conviction
                                             -4-
court chose not to credit the Petitioner’s testimony, finding it to be “dishonest” and
“untruthful.” The post-conviction court accredited the testimonies of lead and
co-counsel. The post-conviction court concluded that lead and co-counsel had “properly
investigated” the case and noted that the Petitioner failed to present any proof at the
evidentiary hearing regarding his claims of an alibi or that he suffered from any mental
disease or defect. The post-conviction court ultimately concluded that the Petitioner
made an intelligent, knowing, and voluntary decision to accept the plea agreement. The
post-conviction court subsequently entered a written order memorializing its decision.

                                       ANALYSIS

        The Petitioner contends that his guilty pleas were not knowingly and voluntarily
entered due to the ineffective assistance of his trial counsel. The Petitioner argues that
his trial attorneys “did not properly investigate the nature of the [] case against him,
including looking into his medical records for a possible mental health defense.” The
Petitioner further argues that he “was confused about the nature of the [charges] against
him” and would not have pled guilty “but for the actions of his attorneys.” The State
responds that the post-conviction court did not err in denying the petition.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting 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 post-conviction 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 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.
However, we review the post-conviction court’s application of the law to its factual
findings de novo with no presumption of correctness. Id. at 457.

       Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger, 279 S.W.3d at 293 (citing U.S. Const. amend. VI; Cuyler v. Sullivan,
446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made
under the Sixth Amendment to the United States Constitution, 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).

       Deficient performance requires a showing that “counsel’s representation fell
                                            -5-
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “Because a petitioner must
establish both prongs of the test, a failure to prove either deficiency or prejudice provides
a sufficient basis to deny relief on the ineffective assistance claim.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). 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, like the present case, 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 [pled] 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).

        With respect to the Petitioner’s claim that trial counsel failed to “properly
investigate the nature of the [] case against him,” we note that there was no proof
regarding either the Petitioner’s alleged alibi or mental health defenses presented at the
post-conviction hearing. This court has long held that “[w]hen 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). Generally, “this is the only way
the petitioner can establish that . . . the failure to have a known witness present or call the
witness to the stand resulted in the denial of critical evidence which inured to the
prejudice of the petitioner.” Id. We cannot speculate as to what a witness may have said
if presented or how the witness may have responded to a rigorous cross-examination. Id.
As such, the Petitioner has failed to prove these factual allegations by clear and
convincing evidence.

       Regarding the Petitioner’s claim that he “was confused about the nature of the
[charges] against him” and would not have pled guilty “but for the actions of his
attorneys,” we note that a petitioner’s “[s]olemn declarations in open court carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

       A petitioner’s sworn responses to the litany of questions posed by the trial
       judge at the plea submission hearing represent more than lip service.
       Indeed, the petitioner’s sworn statements and admission of guilt stand as a
       witness against the petitioner at the post-conviction hearing when the
       petitioner disavows those statements.
                                              -6-
Alfonso C. Camacho v. State, No. M2008-00410-CCA-R3-PC, 2009 WL 2567715, at *7
(Tenn. Crim. App. Aug. 18, 2009).

       Here the post-conviction court chose to discredit the Petitioner’s testimony at the
evidentiary hearing, finding it to be “dishonest” and “untruthful.” Rather, the
post-conviction court accredited the testimonies of lead and co-counsel that the Petitioner
understood what he was doing and made the decision to accept the plea agreement
himself. The Petitioner faced a possible maximum sentence of 139 years, and his trial
attorneys negotiated until the State agreed to “the absolute bare minimum” sentence of
twenty-nine years. Furthermore, the Petitioner admitted that he thought pleading guilty
was the right thing to do at the time of the plea submission hearing.

       Additionally, the transcript of the guilty plea submission hearing belies the
Petitioner’s claims. The trial court reviewed the charged offenses, the applicable range of
punishments, the rights the Petitioner would waive by pleading guilty, and the plea
agreement with the Petitioner. The Petitioner stated that he understood all of this. The
Petitioner also stated that lead counsel had reviewed the plea agreement with him, that he
had discussed his decision with his trial attorneys and his family, and that it was his
decision to accept the plea agreement.            As such, the evidence supports the
post-conviction court’s conclusion that the Petitioner knowingly and voluntarily entered
his guilty pleas. Accordingly, we conclude that the post-conviction court did not err in
denying the petition.

       However, we note that the judgment form for the Petitioner’s conviction in
indictment number 13-05897 incorrectly states that the sentence is to be served
consecutively to the other sentences in Group 2 and 3 and concurrently to the sentences
in Group 1. Therefore, we remand this case to the post-conviction court for entry of a
corrected judgment form reflecting that the sentence for indictment number 13-05897 be
served concurrently to the sentences in indictment number 14-01647 and Counts 1, 2, and
3 of indictment number 13-05896 but consecutively to the sentences in indictment
numbers 13-03489, 13-03490, 13-03491, 13-03492, and Count 4 of indictment number
13-05896.

                                    CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of
the post-conviction court is affirmed.      However, we remand the case to the
post-conviction court for entry of a correct judgment form for indictment number
13-05897.

                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE
                                            -7-
