        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs October 4, 2016 at Jackson

         JANETTE EBONY ROBINSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Davidson County
                   No. 2013-A-643    Cheryl A. Blackburn, Judge


               No. M2016-00058-CCA-R3-PC – Filed January 25, 2017



The petitioner, Janette Ebony Robinson, appeals the denial of her petition for post-
conviction relief, arguing that she received ineffective assistance of counsel and that her
guilty pleas were unknowing and involuntary. 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

ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and TIMOTHY L. EASTER, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Janette Ebony Robinson.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn R. Funk, District Attorney General; and Robert Wilson Jones, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                         FACTS

       In March 2013, the petitioner was indicted by the Davidson County Grand Jury for
five counts of aggravated child abuse and one count of aggravated child neglect based on
her 2011 abuse of her three-year-old daughter. On March 7, 2014, she pled guilty to two
counts of aggravated child abuse in exchange for an effective sentence of twenty-five
years at 100% in the Department of Correction. Pursuant to the terms of her negotiated
plea agreement, the remaining counts of the indictment were dismissed.
       The prosecutor recited the following factual basis for the pleas at the guilty plea
hearing:

             Our proof would have shown that in . . . August of 20[11] [the
      victim] was returned to the care of [the petitioner] on a trial basis and
      remained in her care through the month[s] of August and September up
      until October 14th of 2011 when she was admitted to the hospital. Our
      proof would have shown that in September of 2011, specifically on
      September 26th of 2011, [the victim] presented to Vanderbilt Hospital with
      a fracture of her arm. Initially the medical staff accepted [the petitioner‟s]
      explanation for this as an accidental injury. However on October 14th of
      2011, [the victim] was re[-]presented to Vanderbilt Hospital. At that time
      she was diagnosed with a lacerated pancreas, a hematoma to her liver,
      hematomas to her head, severe bruising around her head, a concussion, and
      various cutaneous injuries.

              On October 17th a skeletal survey was done, which revealed an
      undetected rib fracture that was healing, suggesting it had been caused
      between the arm fracture and the date of her admission based on the timing
      of that injury.

             Specifically [the petitioner] was asked to describe the circumstances
      surrounding [the victim‟s] injuries. She provided a number of conflicting
      accounts, admitted that she was the caretaker for [the victim]. [The victim]
      had injuries that represented whip marks from a belt or a cord based on the
      pattern of injuries. Those occurred during the time period between August
      5th of 2011 and September 26th of 2011. She was observed to cause those
      injuries by [the victim‟s father] as well as the accounts of one of [the
      victim‟s] siblings. That constitutes the basis for the allegations set forth in
      Count 5 involving causing those injuries with a dangerous instrumentality.

             With regard to Count 3 of the indictment alleging the liver
      hematoma and the lacerated pancreas as well as the head injuries, those
      occurred on or around October 14th, 2011, based on the information [the
      petitioner] provided to medical staff about when the child became
      symptomatic. There were no other individuals who were in a position to
      have caused these particular injuries on that particular date.

        Following her guilty pleas, the petitioner mailed to the trial court a handwritten
letter dated March 29, 2014, in which she sought to withdraw her pleas on the basis that
her counsel had not fully explained them to her and they were therefore unknowing and
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involuntary. See State v. Janette Ebony Robinson, No. M2015-00041-CCA-R3-CD,
2015 WL 8973898, at *1 (Tenn. Crim. App. Dec. 15, 2015), perm. app denied (Tenn.
Mar. 23, 2016).

        The trial court‟s office manager forwarded a copy of the letter to the petitioner‟s
trial counsel on April 8, 2014, and on June 2, 2014, trial counsel filed both a motion to
withdraw the guilty pleas and a motion to withdraw as counsel. Id. At the hearing on the
motion to withdraw the guilty pleas, at which the petitioner was represented by
substituted counsel, the petitioner testified “that she had been diagnosed with paranoid
schizophrenia and bipolar, PSOD and psychopath” and was currently “taking Seroquel,
Trazodone . . . and some more other medicines.” Id. at *2. The petitioner stated that,
after her arrest, she took her medications only sporadically and that she completely
stopped taking them about three weeks prior to her guilty pleas. Id. The petitioner stated
that she did not remember what she told the trial judge during her guilty plea hearing and
that she did not understand what she was doing in pleading guilty. Id.

        On cross-examination, the petitioner acknowledged she said nothing in her letter
to the court about not taking her medication or not being of sound mind at the guilty plea
hearing. The petitioner claimed that she had informed her trial counsel about being off
her medications and that counsel knew she had not been taking them for the three weeks
prior to the guilty plea hearing. Id. at *3.

       The petitioner‟s trial counsel denied that the petitioner told him that she had
stopped taking her medications at the time of the guilty plea hearing and said that, had he
known that, he would never have gone through with the hearing. The petitioner also
never contacted him after entry of her guilty pleas to tell him that she had not been taking
her medications. Id. at *4.

       At the conclusion of the hearing, the trial court denied the petitioner‟s motion to
withdraw her guilty pleas. On direct appeal, this court affirmed the judgment of the trial
court, concluding that the record supported the trial court‟s findings that the pleas were
knowingly and voluntarily entered and that no manifest injustice existed that warranted
allowing the petitioner to withdraw her pleas:

               The record reflects that at the guilty plea hearing, the trial court
       questioned the [petitioner] regarding her understanding of the charges
       against her, her available defenses, the possible sentences, and the effect of
       the guilty plea on her permanent record. The court also questioned the
       [petitioner] relative to her medications, how often she took them, and any
       possible effect they might have on her understanding of the proceedings.
       The [petitioner] testified she had been taking her medications,
                                            -3-
       acknowledged her understanding of her plea, and said she wanted to waive
       her rights and plead guilty.

               The [petitioner‟s] letter contained complaints about defense
       counsel‟s explanation of her rights but did not mention her medications.
       Counsel testified that the [petitioner] did not contact him after her plea and
       that the first notice he received of any problem was when he received the
       forwarded letter from the trial court. The trial court credited counsel‟s
       testimony that the [petitioner] did not tell him prior to the guilty plea
       hearing she had not been taking her medications. The court did not abuse
       its discretion in finding that the [petitioner] entered a voluntary, intelligent,
       and knowing plea, and therefore, that no manifest injustice existed.

Id. at *5-6.

       On January 21, 2015, the petitioner filed a pro se petition for post-conviction relief
in which she raised a claim of ineffective assistance of counsel. Following the
appointment of post-conviction counsel, she filed an amended petition in which she
raised claims of both ineffective assistance of counsel and unknowing and involuntary
guilty pleas. Specifically, she alleged that trial counsel was ineffective for, among other
things, failing to adequately investigate the case, failing to mount a meaningful defense,
failing to communicate with her, failing to have her evaluated for competency by a
mental health expert, and failing to thoroughly explain the plea agreement to her. The
petitioner further alleged that, due to counsel‟s ineffective representation, she was unable
to fully understand the plea agreement, which rendered her pleas unknowing and
involuntary.

        At the evidentiary hearing, the petitioner testified that trial counsel visited her
“[m]aybe three times” when she was in jail. Counsel brought an investigator with him to
the jail, who also spoke with the petitioner. Counsel explained her charges and told her
she faced a maximum potential sentence of 125 years if convicted of all charges.
Counsel, however, never provided her with any discovery, despite her asking him for it
both in writing and orally. The petitioner claimed that when she asked, counsel told her
that he did not have enough time to provide her with copies of discovery.

       The petitioner testified that she was medicated during the time she spent in jail but
that she sometimes stopped taking her medication, which affected her ability to
understand counsel. She said that counsel communicated the State‟s offer to her a week
before the trial date and that she was “devastated” by the offer and did not really
understand it, but counsel “just threw out numbers” without trying to help her understand.

                                              -4-
        According to the petitioner, had she gone to trial, she would have “told the truth”
to the jury about who had committed the crimes. Specifically, she would have informed
them that the victim‟s father was the perpetrator. The petitioner testified that she
informed counsel that the victim‟s father was the one who committed the crimes and that
counsel sent his investigator to talk with the victim‟s father, with the results being that
counsel “told [her] that [the victim‟s father] seem[ed] like a nice guy” and that counsel
did not believe he was capable of the crimes. The petitioner stated that she gave counsel
the names and contact information of witnesses, including Bianca German and Shirley
Work, who could have corroborated her accusations against the victim‟s father, but that
counsel told her he did not have enough time to interview them. Finally, the petitioner
complained that counsel “did not represent [her] right,” “never explained anything” to
her, and was “no help at all” with her case.

       On cross-examination, the petitioner insisted that she informed trial counsel that
she was not taking her medication. She acknowledged, however, that she told the trial
court at the guilty plea hearing that she was taking her medication and that she
understood what was happening with the plea process. The petitioner denied that trial
counsel told her on the day she entered her pleas that she could take more time to decide
if she wanted to accept the plea offer. Instead, she claimed that she told trial counsel that
she did not understand what was going on, but counsel told her that she needed to make a
decision that day, that it was the “last time,” and that she would either receive 125 years
or twenty-five years at 100%.

       Trial counsel testified that he had been practicing law for eight years, had
represented hundreds of criminal defendants, and had participated in thirteen trials. Early
in his representation of the petitioner, he obtained the services of an investigator, who
assisted him in reviewing discovery, accompanied him on jail visits with the petitioner,
and interviewed witnesses. The bulk of the discovery materials consisted of medical
records, which trial counsel thought he may not have provided to the petitioner. He
believed he had, though, given her copies of the police reports, witness statements, and
related items.

         Trial counsel specifically recalled having made four different visits to the
petitioner while accompanied by his investigator. In addition, he believed he made one
or two visits alone. He reviewed with the petitioner the discovery in the case, the State‟s
evidence against her, the elements of the offenses, and her potential exposure if convicted
at trial, which he said was fifteen to 150 years. Trial counsel recalled that his investigator
interviewed the victim‟s father and his sister. He said he remembered the name Bianca
German but could not recall if his investigator had interviewed her. However, he was
certain that if the petitioner told him that Ms. German had knowledge that the victim‟s

                                             -5-
father had committed the crimes, he would have interviewed her and any other witness
with similar claims.

        Trial counsel testified that the State‟s first offer was twenty years, but the
petitioner rejected it and a trial date was set. The second offer of twenty-five years was
made shortly before the trial date, and the petitioner accepted the offer on the same day
that it was made. Trial counsel testified that he strongly urged the petitioner to accept the
offer because he thought it was “as good as it was going to get, and the risk would be
much higher if she went to trial.” The petitioner was not happy with the offer and
“struggled” with her decision. Trial counsel said he spoke with the prosecutor, who
agreed to give them an extension of time, and then told the petitioner that “if she wanted
some extra time that [he and his investigator] would go back out to the jail and discuss it
with her so she didn‟t have to make the decision there on the spot.” The petitioner,
however, ultimately decided to plead guilty that day.

      Trial counsel testified that, although there was no doubt that the petitioner suffered
from a mental illness, she appeared to understand what she was doing in pleading guilty.
He said a forensic mental evaluation was performed on the petitioner at Vanderbilt
Medical Center, and she was found to be competent at the time of the offenses and
competent to stand trial. He reviewed the report with the petitioner, and the petitioner‟s
mental health was an issue that he and the petitioner discussed “at great length.”

       On cross-examination, trial counsel testified that his defense strategy would have
depended on which version he chose of the “conflicting versions of events” that the
petitioner provided to him. He said the defense strategy of blaming the victim‟s father
would have been the strongest, but the petitioner did not make those allegations until the
very end of the case, which left him without sufficient time to conduct a thorough
investigation. He reiterated, however, that his investigator interviewed the victim‟s father
and his sister. Trial counsel stated that the victim‟s father made no admissions in the case
and had at least a partial alibi, having been with his sister at one point and having been
incarcerated during another period in which the abuse was alleged to have occurred.
Trial counsel testified that he was never provided with the name of any other witness
alleged to have knowledge of the victim‟s father‟s having committed the abuse.

       On December 18, 2015, the post-conviction court entered a detailed written order
denying the petition for post-conviction relief. The court concluded that the petitioner
failed to establish by clear and convincing evidence that she was denied the effective
assistance of counsel or that her pleas were not knowing and voluntary. Thereafter, the
petitioner filed a timely notice of appeal to this court, arguing that the post-conviction
court erred in its findings.

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                                       ANALYSIS

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court‟s
application of the law to the facts of the case 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, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court‟s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel‟s performance was deficient and that counsel‟s
deficient performance prejudiced the outcome of the proceeding. 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 same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies 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 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.

        The deficient performance prong of the test is satisfied by showing that “counsel‟s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., 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.”
                                            -7-
Strickland, 466 U.S. at 694. In the context of a guilty plea, the petitioner must show a
reasonable probability that were it not for the deficiencies in counsel‟s representation, he
or she would not have pled guilty but would instead have insisted on proceeding to trial.
Hill v. Lockhart, 474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d 508, 516 (Tenn.
2001).

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

        Before a guilty plea may be accepted, there must be an affirmative showing in the
trial court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S.
238, 242 (1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a
showing that the defendant was made aware of the significant consequences of the plea.
State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340).
A plea is not “voluntary” if it results from 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) the defendant‟s
familiarity with criminal proceedings; (3) whether the defendant 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 the defendant 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.

        In denying the petition, the post-conviction court specifically accredited the
testimony of trial counsel over that of the petitioner, finding, among other things, that
trial counsel adequately investigated the case and meaningfully communicated with the
petitioner, including about the charges, the punishment she faced, defense theories, and
the plea bargain agreement. The post-conviction court found that the petitioner‟s mental
competency affecting the voluntariness of her plea had been previously addressed in her
motion to withdraw her pleas and thus was waived. The court also noted the petitioner‟s
guilty plea testimony, in which she assured the trial judge that she understood the
                                            -8-
proceedings, had discussed the case with her counsel, and was satisfied with counsel‟s
representation, in concluding that the petitioner entered her pleas intelligently,
knowingly, and voluntarily.

        The record fully supports the findings and conclusions of the post-conviction
court. Trial counsel‟s testimony established that he met with the petitioner on multiple
occasions, reviewed discovery, arranged for the petitioner to undergo a mental
evaluation, and investigated the case with the assistance of an investigator. Counsel‟s
testimony further established that he held discussions with the petitioner about the State‟s
evidence against her, various defense theories of the case, her mental health evaluation
and mental health history, the range of punishments she faced, and the plea bargain
agreement under which the petitioner ultimately entered her pleas. Trial counsel also
testified that the petitioner provided multiple versions of the events and did not bring up
the theory of the victim‟s father as the perpetrator until very late in the case. The
petitioner also never informed counsel of any witnesses with knowledge of the victim‟s
father‟s having committed the crimes.

        As noted by the post-conviction court and pointed out by the State, the issue of the
effect of the petitioner‟s mental illness on the voluntariness of her pleas has already been
litigated in the motion to withdraw the guilty pleas, the denial of which was affirmed by
this court on direct appeal. “„[U]nder the law of the case doctrine, an appellate court‟s
decision on an issue of law is binding in later trials and appeals of the same case if the
facts on the second trial or appeal are substantially the same as the facts in the first trial or
appeal.‟” State v. Willis, 496 S.W.3d 653, 743 (Tenn. 2016) (quoting Memphis Publ‟g
Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn.
1998)). Much of the testimony at the post-conviction hearing on the voluntariness of the
pleas was a repetition of testimony that was already given at the hearing on the motion to
withdraw the pleas. The petitioner responded appropriately to the trial court when asked
at the guilty plea hearing whether she was taking her medication, understood the guilty
plea agreement and the rights she was waiving by pleading guilty, was satisfied with
counsel, and was entering her pleas knowingly and voluntarily. See Janette Ebony
Robinson, 2015 WL 8973898, at *5. According to counsel, the petitioner struggled with
the decision but ultimately chose to enter the pleas. Furthermore, she appeared to counsel
to understand what she was doing in pleading guilty. In sum, the petitioner has not met
her burden of demonstrating either that she received ineffective assistance of counsel or
that her guilty pleas were unknowing and involuntary. Accordingly, we affirm the denial
of the petition for post-conviction relief.




                                               -9-
                                CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court denying the petition for post-conviction relief.


                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE




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