        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   July 27, 2010 Session

                  DAVID HEARING v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Greene County
                    No. 08-CR-472     John F. Dugger, Jr., Judge




                 No. E2009-02430-CCA-R3-PC - Filed October 4, 2010


The petitioner, David Hearing, appeals the denial of his petition for post-conviction relief
wherein he challenged his 2005 guilty-pleaded convictions of felony murder. In this appeal,
he contends that he was denied the effective assistance of counsel and that his guilty pleas
were not knowingly, voluntarily, and intelligently entered. Because the petitioner failed to
establish his claims by clear and convincing evidence, we affirm the judgment of the post-
conviction court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and D. K ELLY T HOMAS, J R., J., joined.

Troy L. Bowlin, II, Morristown, Tennessee, for the appellant, David Hearing.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; C. Berkeley Bell, District Attorney General; and Connie Trobaugh, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

              On September 2, 2005, the petitioner entered pleas of guilty in the Greene
County Criminal Court to two counts of felony murder in exchange for concurrent sentences
of life imprisonment and the dismissal of other charges. The convictions related to the
murder of Ance “Pete” Pratt and his wife, Rebecca Pratt, at their home in Hancock County.
Following the State’s filing of its notice of intent to seek the death penalty, but prior to the
entry of the guilty pleas in this case, trial counsel successfully moved the trial court for a
change of venue to Greene County. Less than 30 days after he entered his pleas, the
petitioner filed a motion to withdraw them on grounds that his trial counsel had performed
deficiently by misrepresenting the terms of the plea agreement and that his guilty pleas were
not, therefore, knowingly and voluntarily entered. The trial court ordered, sua sponte, that
the motion be treated as a petition for post-conviction relief and appointed counsel (“motion
counsel”) to represent the petitioner in the post-conviction proceeding.

                Following an amended motion and evidentiary hearing, the trial court denied
post-conviction relief, finding “that the petitioner’s trial counsel were effective and that the
pleas were made voluntarily.” David Wayne Hearing v. State, No. E2006-00362-CCA-R3-
PC, slip op. at 2 (Tenn. Crim. App., Knoxville, Dec. 28, 2006) (Hearing I). On appeal of the
denial of post-conviction relief, this court found that although neither of the parties contested
the trial court’s treating the motion to withdraw the petitioner’s guilty pleas as a petition for
post-conviction relief, “the trial court erred in this regard and that the case should be
remanded to the trial court for consideration of the petitioner’s original motion to withdraw
his guilty pleas.” Id.

                On remand, the petitioner claimed that he was entitled to withdraw his guilty
pleas because his trial counsel were ineffective and because his guilty pleas were not
knowingly, voluntarily, and intelligently entered. See State v. Crowe, 168 S.W.3d 731, 742
(Tenn. 2005) (holding that withdrawal of a guilty plea “to correct manifest injustice is
warranted where: (1) the plea ‘was entered through a misunderstanding as to its effect, or
through fear and fraud, or where it was not made voluntarily’; (2) the prosecution failed to
disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963), and
this failure to disclose influenced the entry of the plea; (3) the plea was not knowingly,
voluntarily, and understandingly entered; and (4) the defendant was denied the effective
assistance of counsel in connection with the entry of the plea.”) (footnotes omitted)). The
trial court, based on the evidence presented at the earlier evidentiary hearing, concluded that
the petitioner had failed to establish a manifest necessity requiring the withdrawal of his
guilty pleas.1 See David Wayne Hearing v. State, No. E2007-00778-CCA-R3-PC, slip op.
at 2 (Tenn. Crim. App., Knoxville, Feb. 22, 2008) (Hearing II). Specifically, the trial court
concluded

                “that the petitioner was not coerced into accepting the plea
                agreement, that no false promises were made to him regarding
                the length of service of his sentences, that he had no conflict of



        1
          The trial judge that took the petitioner’s pleas and presided over the initial “post-conviction”
proceeding did not preside over the case upon remand. The second judge noted in the record that he had
reviewed the record in its entirety before rendering a decision on the petitioner’s motion to withdraw his
guilty pleas.
                                                   -2-
               interest with his counsel and that he did receive effective
               assistance of counsel.

                             This [c]ourt further finds from the credible
               evidence that the guilty pleas were entered voluntarily,
               understandingly, knowingly, and intelligently, that there was no
               misunderstanding as to their effect, that the pleas were not
               entered through fear or fraud, and that there was no denial of
               due process.”

Id., slip op. at 5-6. On appeal, this court, utilizing the standard enunciated in Strickland v.
Washington, 466 U.S. 668 (1984), determined that the petitioner had failed to establish
prejudice occasioned by the “myriad” alleged deficiencies in the performance of the
petitioner’s trial counsel. Id., slip op. at 7-9. This court also found that “the transcript of the
guilty plea hearing reflects that his plea was knowingly and voluntarily entered.” Id., slip op.
at 9. Accordingly, this court concluded “that the petitioner did not carry his burden of
demonstrating that his pleas were unknowingly and involuntarily entered.” Id., slip op. at 12.

                Following the supreme court’s denial of his application for permission to
appeal on June 23, 2008, see David Wayne Hearing v. State, No. E2007-00778-SC-R11-PC
(Tenn. June 23, 2008), the petitioner filed a petition for post-conviction relief on December
29, 2008. In the petition, the petitioner alleged that motion counsel performed deficiently by
permitting the trial court to treat the proceeding as a post-conviction action, by failing to
provide sufficient evidence to support the petitioner’s “claims of [i]nvoluntary [p]lea and
[i]neffective assistance of [c]ounsel during his evidentiary hearing,” and by failing to argue
that the judgments “were both void and voidable.” The post-conviction court appointed
counsel, and counsel filed an amended petition for post-conviction relief adding as a ground
for relief that motion counsel performed deficiently on appeal by failing to argue that there
was a conflict of interest between the petitioner and his trial counsel.

                At the evidentiary hearing held on September 2, 2009, motion counsel testified
that he was appointed to represent the petitioner in his post-conviction proceeding. He stated
that “the order that Judge Beckner actually entered said . . . that [the petitioner] had filed a
motion to withdraw his guilty plea but that that must be treated as a petition for post-
conviction relief” and that he had been “appointed . . . in that regard.” Motion counsel
testified that he allowed the petitioner’s motion to withdraw his guilty plea to proceed as a
post-conviction petition because the trial court’s order appointing him to the case
“specifically said that his motion to withdraw a guilty plea must be treated as a petition for
post-conviction relief.” He explained, “I just followed the directive in the court order that
appointed me to represent him on a post-conviction petition.”

                                                -3-
               Regarding the petitioner’s claim that he failed to provide sufficient evidence
to support the claims of ineffective assistance of counsel and involuntary guilty plea raised
in the petitioner’s motion to withdraw his guilty pleas, motion counsel testified that he
investigated each of the petitioner’s claims and raised them to the best of his ability, noting
that he prepared a log of all the petitioner’s visits with his trial counsel, presented all relevant
plea documents, and elicited testimony from the petitioner that he felt pressured by his trial
counsel to enter into the plea agreement. He said, “[T]he ultimate argument that we made
at the hearing and then again at the . . . Court of Criminal Appeals was that he was really
placed in the untenable position of proceeding with counsel that he didn’t feel comfortable
with, that weren’t working diligently to represent him, or take a plea.”

              Motion counsel stated that he also argued that the sentence provided for in the
plea documents, life with the possibility of parole, was not a valid sentence. He testified that
although the original judgment sheets contained an erroneous sentence of 51 years, “the
judgment sheets have been amended to reflect what the proper sentence would be.” He noted
his concern that “those are judgment sheets that [the petitioner] would not have seen until
after he had actually entered his plea.”

               Motion counsel testified that “the biggest problem” they faced in proceeding
on the petitioner’s claim that his pleas were involuntary and unknowing was “the transcript
of the actual allocution and plea,” which established that the trial judge had explained the
conditions of the plea “very thoroughly” and that the petitioner had “affirmatively answered
his questions” and “said that [he] understood what the sentence was.” He stated that the
waiver of rights and guilty plea submission form, both of which were signed by the
petitioner, indicate that the petitioner was to enter pleas of guilty to two counts of felony
murder in exchange for concurrent sentences of life imprisonment.

               Motion counsel testified that although he and the petitioner discussed “what
his viable defense theories could have been” had he proceeded to trial, they did not arrive at
“one coherent theory to assert other tha[n] it essentially involved his ex-wife, Leah, at that
time and that she had played some type of role in . . . including him or portraying him as a
person that helped to commit this offense.” Motion counsel noted that evidence available
to the State belied the petitioner’s claimed lack of knowledge of the offenses to the point that
motion counsel did not feel he “could assert a viable defense theory really on a good faith
basis.” He said, “He wanted to criticize [his trial counsel] for not doing more work to
develop that . . . . I understood his concerns . . . but I don’t know, really, what else I could
have done or how I could have helped him to develop a viable defense theory at that time.”
Motion counsel opined that “it would . . . have been difficult, not impossible but difficult, to
craft a viable defense theory around the evidence that [the petitioner] was confronted with.”



                                                -4-
               Motion counsel testified that he did, in fact, argue on appeal that the petitioner
had a conflict with his trial counsel. He stated that he presented the petitioner’s pro se
motion to remove his trial counsel as an exhibit at the evidentiary hearing and that he argued
in his brief that the petitioner had requested the removal of trial counsel and that the
petitioner’s sister had filed a complaint against trial counsel with the Board of Professional
Responsibility. He explained,

               I know I raised that at the original post-conviction and in front
               of the Court of Criminal Appeals, that that was a potential
               conflict, and that it would be difficult for him to maintain a good
               working relationship and a degree of trust with the attorneys
               when he had filed with the court openly a motion that said they
               were ineffective and had filed a Bar complaint against them.

              During cross-examination, motion counsel stated that he did not argue that the
petitioner’s motion to withdraw his guilty pleas be treated as other than a post-conviction
petition because the trial court had already ruled on the issue. He testified that following this
court’s remand of the case, he moved the new trial judge for another evidentiary hearing to
argue the case under the manifest injustice standard.2 That motion was denied.

                Motion counsel agreed that the negotiated plea agreement contains notations
that the defendant is a standard offender pleading guilty to a Class A felony, but he stated
that the form also indicated a sentence of life and no release eligibility percentage. He
testified that the plea agreement “coupled with the transcript of his actual plea . . . and the
waiver of rights and guilty plea, the other document that was introduced that says his
sentence is life, . . . it was pretty clear.” He stated that it was not reasonable for the petitioner
to think he would receive a Range I Class A sentence of 15 to 25 years because “it’s written
in, life with the possibility of parole.” Motion counsel testified that he did not believe he
could have used the original judgment forms to establish that the petitioner’s pleas were not
knowing “because [the petitioner] didn’t sign that document. He didn’t review that
document. That was done after he had entered his guilty plea.” He added, “So I don’t see
any way that I could have used that to assert that he was confused about what his plea was
because he didn’t actually have knowledge of that beforehand.”

               Motion counsel reiterated that the only viable defense theory that he and the
petitioner discussed was that the petitioner’s ex-wife had “tried to frame him in some regard”
and that he did not present that theory to the court because “that was a stretch, and . . . as an



       2
        The original trial judge had retired by the time the case was remanded to the Greene County
Criminal Court.
                                                 -5-
officer of the court, [he] ha[d] a duty not to assert things that [he did not] have a good faith
basis to do.”

                On redirect-examination, motion counsel testified that he questioned both of
the petitioner’s trial attorneys extensively regarding the contents of the waiver of rights and
plea agreement documents. He stated that the trial judge had to review those documents as
a part of the petitioner’s entering his guilty pleas. Motion counsel testified that the petitioner
was “very intelligent” and that he should have been able to understand the plea documents,
particularly in light of the detailed plea hearing.

                The petitioner testified that he believed motion counsel performed deficiently
by failing “to present certain documents” and “viable defense theories” during the evidentiary
hearing conducted on his motion to withdraw his guilty pleas. He claimed that motion
counsel should have introduced the plea agreement to establish that the petitioner believed
he would receive a Range I sentence for a Class A felony. The petitioner insisted that his
trial counsel told him he would serve “[t]hirty percent on a standard offender.” He stated that
the document could have been used to rebut trial counsel’s testimony at the evidentiary
hearing that he did not mislead the petitioner in regard to his sentence. He claimed that his
trial counsel told him that he would receive a sentence of “51 at 30, so you can get out in 15
years.”

              The petitioner testified that his was an involuntary plea “because [he] didn’t
plead guilty to a life sentence.” He claimed that it was his belief that the trial judge’s
references to a life sentence or a sentence of 51 years referenced only what the petitioner
would have faced following a trial rather than the sentence he had agreed to by pleading
guilty.

              The petitioner stated that motion counsel performed deficiently by allowing the
motion to withdraw his guilty pleas to be treated as a post-conviction petition because the
former proceeding would have been analyzed under the “lesser standard” of manifest
injustice and, “[h]ad we presented the plea agreement, the viable defense theories, at a
manifest injustice standard, [we] would have satisfied it.” The petitioner enumerated the
“viable defense theories” he wanted motion counsel to present:

                              One of them was the fact that nobody ever told or
               give [sic] a statement that I killed anyone. They always said it
               was someone else. So I’m pleading guilty to a first-degree
               murder I didn’t do. I got a letter where a guy that bragged about
               doing the murder.



                                               -6-
                             . . . . If you could look at the statements, I mean,
              it’s never been denied that I drove and sold pot to the Pratts. It’s
              not denied. I never denied that, but the intent to go and rob and
              kill somebody. It was not my intent.

The petitioner agreed with motion counsel that the two met “four or five” times and that each
of the meetings lasted “for a few hours.”

               The petitioner stated that he filed a motion to remove his trial counsel because
his trial counsel “was not presenting any viable defensive theories, and he just said it’s all
or nothing.” He said that he and his counsel did not have “a working relationship.” He
insisted that had the trial court inquired into the motion or had motion counsel presented it
to the court, “we could have at least presented the viable defensive theories.” The petitioner
claimed that his ex-wife “was mad about the whole thing” and that “she pointed the finger
and set some things up.” He added, “I mean, it was a viable defensive theory.” He said that
his trial counsel told him, “You have to take a plea deal or they’re going kill you.”

               The petitioner admitted that he told the trial judge during the plea colloquy that
he had no complaints about his trial counsel, but he insisted that the trial judge “knew that
was a lie.” He said, “[T]he D.A. knew it was a lie, and so did my counsel, because they knew
I had filed that motion, but the only way to get the 51 at 30 was to agree in the affirmative
to everything and say no to the complaint.”

                During cross-examination, the petitioner admitted that the plea documents did
not indicate a release eligibility percentage of 30 percent. He also conceded that the trial
judge examined the documents during the plea submission hearing, showed them to the
petitioner, and asked the petitioner to identify his signature on the documents. He
acknowledged that his trial counsel explained that, should he proceed to trial, he was facing
a possible sentence of death and alternative sentences of life without the possibility of parole
or life with the possibility of parole. He said that was why he agreed to the plea offer of “51
at 30.”

             The petitioner admitted that he was at the victims’ residence on the day they
were murdered but insisted that he “was collecting the money from marijuana” he had sold
to the pair.

             On redirect examination, the petitioner presented a letter from a Halerio
Cardenas who, he explained, “was [a] co-defendant in this case that had wrote a guy in the
Greene County Jail way before I had plead guilty but after he had.” The petitioner claimed
that Cardenas “was writing his buddy back here at the jail and explained to him that he got

                                               -7-
two tattoo’s of the 45’s that he used in this murder with the bullets going through the skin
dripping down in his victims’ initials.” He claimed he showed the letter to his trial counsel,
but “[n]obody ever said nothing about them.”

              The petitioner’s mother, Barbara Sue Townsend, testified that on the night
before he pleaded guilty, the petitioner telephoned her at home and told her that if he
accepted the plea offer he would “probably be out in about 15 years.” She stated that she
“assumed that to be correct” because trial counsel had implied that “they were fixing to make
new laws about life sentences and all, and it would probably be about 15 years.”

              On cross-examination, Ms. Townsend stated that she could not remember
whether she had testified at the previous evidentiary hearing. She admitted that she had
previously told motion counsel that she believed he had done a good job on the petitioner’s
case.

                The State called motion counsel as a rebuttal witness. Motion counsel testified
that the petitioner had shown him the letter from Mr. Cardenas, and he identified Mr.
Cardenas as one of the co-defendants who went by the name Larry. Motion counsel stated
that Mr. Cardenas was also convicted of the first degree felony murder of the victims. As
a result, it was motion counsel’s opinion that the letter did not exonerate the petitioner. He
stated that the letter could have been used by the State as “another way to confirm who [Mr.
Cardenas] had killed if it were in fact the Pratts, and that [the petitioner] was present.” He
stated that he and the petitioner discussed the letter and its potential ramifications and that
the petitioner did not ask him to “make that an issue.”

               During cross-examination, motion counsel testified that neither the petitioner
nor Ms. Townsend told him that trial counsel had told Ms. Townsend that the petitioner
would be paroled in 15 to 25 years. He said, “Had [the petitioner] told me about that or Ms.
Townsend indicated that, I would have asked [trial counsel] about it. I probably wouldn’t
have enjoyed it but I would have asked him about it.” Motion counsel stated that the use of
the letter from Mr. Cardenas did not establish a viable defense theory and neither did the
petitioner’s claims regarding his ex-wife.

              At the conclusion of the hearing, the post-conviction court took the petition
under advisement. In a written order detailing its findings of fact and conclusions of law, the
post-conviction court denied relief, holding that the petitioner had failed to establish by clear
and convincing evidence that motion counsel performed deficiently.

             In this appeal, the petitioner argues that in finding that motion counsel did not
perform deficiently, the post-conviction court “abused its discretion and made factual

                                               -8-
determinations on the evidence presented, which are unreasonable.” He reiterates his claims
that motion counsel performed deficiently by failing to introduce certain documents and
make more persuasive arguments at the previous evidentiary hearing and on appeal. He also
challenges many of the post-conviction court’s factual findings as “erroneous.” The
petitioner also argues that his guilty pleas were not knowingly and voluntarily entered. The
State asserts that the petitioner was not denied the effective assistance of counsel and that the
issue whether the petitioner’s guilty pleas were knowingly and voluntarily entered was
previously determined. We agree with both assertions.

               We view each of the petitioner’s claims with a few well-settled principles in
mind. Post-conviction relief is available only “when the 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.” T.C.A. § 40-30-103 (2006). A post-conviction
petitioner bears the burden of proving his or her allegations by clear and convincing
evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to the post-conviction
court’s findings of fact the weight of a jury verdict, and these findings are conclusive on
appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572,
578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By
contrast, the post-conviction court’s conclusions of law receive no deference or presumption
of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                             I. Ineffective Assistance of Counsel

                The petitioner asserts that motion counsel performed deficiently by permitting
his motion to withdraw his pleas to be treated as a petition for post-conviction relief, by
failing to introduce into evidence at the previous evidentiary hearing the plea agreement, by
failing to “provide sufficient evidence” to support the petitioner’s original claims of
ineffective assistance of counsel and involuntary guilty plea, and by failing to “prepare viable
defenses.” The petitioner makes a myriad of other claims of deficient performance that are
completely lost in the barely intelligible morass that he has tried to pass off as an appellate
brief.

              To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, the petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

                                               -9-
                In the context of a guilty plea, the petitioner must establish that “counsel’s
constitutionally ineffective performance affected the outcome of the plea process.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). To do so, he must show “a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial.” Id.; see Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998). In the context
of ineffective assistance of counsel that resulted in a guilty plea, the petitioner is not required
to demonstrate that he likely would have fared better at trial than he did by pleading guilty,
although evidence of this type can be persuasive that he would have insisted on his right to
a jury trial. See Hill, 474 U.S. at 59. Should the petitioner fail to establish either deficient
performance or prejudice, he is not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d
363, 370 (Tenn. 1996). Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, . . . that course should be followed.” Strickland, 466
U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

              Claims of ineffective assistance of counsel are regarded as mixed questions of
law and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). When reviewing the application of law to the post-conviction
court’s factual findings, our review is de novo, and the post-conviction court’s conclusions
of law are given no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State
v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

                The petitioner first asserts that motion counsel performed deficiently by
permitting the petitioner’s motion to withdraw his guilty pleas to be treated as a petition for
post-conviction relief. Motion counsel testified that he never considered treating the motion
as anything other than a petition for post-conviction relief because the trial court’s order
appointing him to the case specifically held that the motion “must” be treated as a petition
for post-conviction relief. Even if counsel had performed deficiently in this regard, however,
the petitioner cannot establish prejudice. Not only did motion counsel conduct a thorough
evidentiary hearing on the issues raised in the original motion, but also the motion was
eventually considered and denied following this court’s initial remand. The petitioner is not
entitled to relief on this issue.



                                               -10-
                The petitioner next contends that motion counsel performed deficiently by
failing to introduce into evidence at the evidentiary hearing the plea agreement signed by the
petitioner. He claims that the agreement would have supported his claimed belief that he had
agreed to a sentence of 51 years at 30 percent service. The document itself, however, belies
the petitioner’s claims. Although the document contains an erroneous notation that the
petitioner was pleading guilty to a Class A felony, it clearly states that the petitioner is
pleading guilty to first degree murder in exchange for a sentence of “life with the possibility
of parole.” The notation that the petitioner is a standard offender does not alter that fact.
Furthermore, any ambiguity that might have been occasioned by these notations was
remedied by the very thorough explanation of the sentence and plea agreement by the trial
court during the plea colloquy. One exchange, in particular, completely undercuts the
petitioner’s claims of ambiguity and misunderstanding:

                 THE COURT: Did I correctly state it when I say that you will
                 be sentenced to serve a determinant sentence of life with the
                 possibility of parole in each count, those two counts to be served
                 concurrently for a life sentence in each of the . . . counts? Is that
                 your complete agreement and what you ask me to approve?

                 THE DEFENDANT: Yes, sir.

Moreover, motion counsel testified that although he did not enter the document into
evidence at the hearing, the document was a part of the trial record that was made an exhibit
to the hearing, and he questioned trial counsel thoroughly regarding its contents. Under
these circumstances, the petitioner has failed to establish that motion counsel performed
deficiently by failing to offer the plea agreement into evidence at the original evidentiary
hearing.

               In related claims, the petitioner claims that motion counsel performed
deficiently by failing to “provide sufficient support” for his claims of ineffective assistance
of trial counsel and involuntary guilty plea and by failing to “prepare viable defenses.” 3

               The record supports motion counsel’s accredited testimony that he questioned
trial counsel thoroughly at the evidentiary hearing and vigorously presented each of the
petitioner’s claims. It is unclear what the petitioner wanted motion counsel to do other than



        3
         Initially we note that in relation to these claims, the petitioner, in his brief, makes numerous
assertions of facts regarding the evidence of the petitioner’s guilt that were not presented during the
evidentiary hearing on his petition for post-conviction relief. This court will not consider facts in its analysis
not presented to the lower court for consideration.
                                                      -11-
to perform “better.” To obtain post-conviction relief on the basis of an ineffective
assistance of counsel claim, the petitioner must establish a specific deficiency and prejudice
arising from that deficiency. The petitioner has failed to do either with regard to his claim
that motion counsel failed to sufficiently support the claims raised in the motion to withdraw
the petitioner’s guilty pleas. The post-conviction court held that motion counsel developed
the petitioner’s issues “the best that he could.” We agree.

               Motion counsel also testified that he and the petitioner discussed possible
defenses that could have been raised at trial but that none of those defenses was supported
by sufficient potential evidence to provide motion counsel with a good faith basis to present
them at the first evidentiary hearing. The only “viable defense” offered by the petitioner at
the post-conviction evidentiary hearing, that he had been framed by his ex-wife, was
completely unsupported. Given the petitioner’s failure to provide even via his own
testimony any possible defense to the charged offenses after having two opportunities to do
so, we cannot say that motion counsel performed deficiently by failing to present any alleged
“viable defense” at the original evidentiary hearing. Furthermore, the record supports the
post-conviction court’s ruling that the omission of this information was “not significant
enough to change any findings of the trial court.” The petitioner is not entitled to relief on
this issue.

                           II. Voluntariness of the Guilty Pleas

              The petitioner also claims that his guilty pleas were not knowingly,
voluntarily, and understandingly entered because of “the erroneous advice” of his trial
counsel, with whom he had a conflict of interest, that he would receive a sentence of 51
years to be served at 30 percent. The State contends that this issue has been previously
determined. We agree with the State.

               “A ground for relief is previously determined if a court of competent
jurisdiction has ruled on the merits after a full and fair hearing.” T.C.A. § 40-30-106(h).
“A full and fair hearing has occurred where the petitioner is afforded the opportunity to call
witnesses and otherwise present evidence, regardless of whether the petitioner actually
introduced any evidence.” Id.

              In his original motion to withdraw his guilty pleas, the petitioner alleged that
the pleas were not knowingly, voluntarily, or understandingly entered because his trial
counsel led him to believe that he would be sentenced to serve 30 percent of a 51 year
sentence. Although the trial court erroneously treated the motion as a petition for post-
conviction relief, the petitioner proceeded with his involuntary guilty plea claim and
presented evidence on the claim at the original evidentiary hearing. The court concluded

                                             -12-
that the pleas were voluntary under the typical post-conviction standard of proof. Following
the remand of the case for reconsideration, the court again concluded that the guilty pleas
had been voluntarily entered. This court, on appeal of the case after remand, utilized the
standards enunciated in Boykin v. Alabama, 395 U.S. 238 (1969), and State v. Mackey, 553
S.W.2d 337 (1977), to determine that “the petitioner did not carry his burden of
demonstrating that his pleas were unknowingly and involuntarily entered.” Hearing II, slip
op. at 12.

              The claim raised by the petitioner in his petition for post-conviction relief and
asserted on appeal is identical to that raised in his motion to withdraw his guilty pleas. That
claim has been heard and considered and has, accordingly, been previously determined.

                                         Conclusion

               Because the petitioner has failed to establish that motion counsel performed
deficiently and because his claim that his guilty pleas were not knowingly, voluntarily, or
intelligently entered was previously determined, the post-conviction court did not err by
denying relief. Accordingly, the judgment of the post-conviction court is affirmed.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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