        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs October 23, 2012

                 DEMETRIUS BYRD v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Hamilton County
                      No. 277787     Barry A. Steelman, Judge




                No. E2012-00070-CCA-R3-PC - Filed January 31, 2013


Petitioner, Demetrius Byrd, appeals the dismissal of his petition for post-conviction relief
from felony drug convictions in which he alleged that his guilty plea was unknowingly and
involuntarily entered due to the ineffective assistance of trial counsel. More specifically he
contends that (1) trial counsel failed to properly investigate his case to determine that
Petitioner’s co-defendant, Dominic Jones, pled guilty to the cocaine offense under a separate
indictment and accepted full responsibility for the offense; and (2) trial counsel insisted that
he plead guilty to avoid federal prosecution. After a thorough review of the record, we
conclude that Petitioner has failed to show that his trial counsel rendered ineffective
assistance of counsel, and we accordingly affirm the judgment of the post-conviction court.

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

T HOMAS T. W OODALL, 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.

Donna Miller, Chattanooga, Tennessee, for the appellant, Demetrius Byrd.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Bret Alexander, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

I. Background


       At the plea submission hearing, the Assistant District Attorney General gave the
following information as a factual basis for the plea in Case No. 268737:

       [T]he State would have shown on November 14th of 2007, [Petitioner] was
       driving a vehicle in Hamilton County. At 2700 Long Street, he was stopped
       for a traffic infraction.

       During a search of the vehicle, the officers found a, an amount of marijuana
       more than 28 grams - - let me find the exact amount, Judge - - 18.9 grams,
       Judge, I’m sorry, 18.9 grams, and [Petitioner] was placed in custody for felony
       possession of marijuana.

Additionally, the Assistant District Attorney General gave the following information as a
factual basis for the plea in Case No. 268200:

       The State would have shown on January 6th of 2008, [Petitioner] was driving
       a vehicle here in Hamilton County. Police were behind the vehicle and they
       saw a baggie with a white cocaine cookie fly out the window. The car was
       traveling at a high rate of speed when the police were behind it.

       They pulled the car over, recovered the cocaine and placed [Petitioner] under
       arrest for felony possession of cocaine.

II. Post-Conviction Hearing

       At the post-conviction hearing, Petitioner entered into evidence the following factual
basis for the plea on June 17, 2010, by co-defendant Dominic Donta Jones for the events
occurring on January 6, 2008, as recited by the Assistant District Attorney General at Mr.
Jones’ guilty plea submission hearing:

       [T]he State would show on January 6th of 2008, here in Hamilton County, Mr.
       Jones was a passenger in a vehicle that was speeding. Officer Crider with
       CPD had attempted to pull that car over. The window came down and a clear
       plastic baggie with a white substance was thrown out the window. That was
       later recovered and determined to be cocaine. That came out of a window

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       where Mr. Jones was sitting, and he did possess that cocaine with the amount
       an indicia that it would be for resale, and it’s charged as a B felony but we’re
       reducing it as part of the plea to a C felony.

        Trial counsel testified that he was appointed to represent Petitioner on May 20, 2009.
Prior to his appointment, Petitioner had been represented by the public defender’s office “for
a substantial period of time” but had to withdraw as counsel. He said that Petitioner pled
guilty to two felonies, and Petitioner received suspended sentences for the offenses. Trial
counsel was aware that a co-defendant was also charged in the case, and he spoke with co-
defendant’s counsel about the case, and they viewed the videotape of the traffic stop. He was
not aware if the co-defendant pled guilty and accepted responsibility for the cocaine offense.
Trial counsel testified a motion to suppress was filed, heard, and denied before he began
representing Petitioner and that he reviewed the motion after he was appointed.

        Trial counsel did not recall any interest in Petitioner by the federal authorities. He met
with Petitioner on several occasions in court, and he went out “to the facility once or twice
and met with him.” He did not recall “that there were any federal implications concerning
[Petitioner].” Trial counsel testified:

       What I typically do - - and I’ve looked through my notes - - is I make my
       clients aware of the potential - - in cases like this, where I recognize that there
       might be a federal problem in the future, I just make them aware of the
       potential that, you know, irrespective of what we do in State Court, there could
       be a federal issue crop up later, but I don’t really get into specifics about that.

He specifically denied telling Petitioner that he needed to plead guilty to avoid “federal
consequences in this particular case[.]” Trial counsel did not recall a conversation with
Petitioner as to whether his co-defendant had purportedly pled guilty.

        On cross-examination, trial counsel testified that it was possible Petitioner’s co-
defendant pled guilty after Petitioner’s guilty plea. He did not know “either way,” and would
have to rely on the records of the court clerk’s office. Trial counsel agreed that Petitioner’s
guilty plea occurred on September 29, 2009. He was not aware of any reservations on
Petitioner’s part about entering the plea. Trial counsel testified that he was “a bit surprised”
at the State’s offer, and he felt that it was a fair offer. He unequivocally denied that there
was a conversation with Petitioner indicating that if Petitioner did not plead guilty, the
federal authorities would take the case, and Petitioner would face greater consequences.
Trial counsel felt that Petitioner’s guilty plea was knowing and voluntary.




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       Petitioner testified that he was in custody on a probation revocation while being
represented by the public defender’s office for the offenses in this case. He met with an
assistant public defender numerous times and that person told him that the federal authorities
were going to “pick up” his case. He then “flattened” the sentence for the probation
revocation and made bond on the present offenses. Petitioner testified that after trial counsel
began representing him, they met one time in trial counsel’s office. Although he saw trial
counsel on court dates, they did not discuss the facts of his case.

        Petitioner testified that during the meeting in trial counsel’s office, trial counsel said
that the State had not made a plea offer and that the “feds may still be going to pick the case
up.” He said that during a court date on September 29, 2009, trial counsel advised him that
the State had offered him three years on unsupervised probation. Petitioner testified that he
did not want to accept the offer. He claimed that trial counsel then said,

       “Well, I don’t want” - - “I don’t want to say that the fed” - - I mean, that this
       will coerce - - I mean, that this will make the D.A. turn the case over to the
       feds, but my understanding that if you don’t plead out, that he could turn it
       over to the feds, and I pled it out.

Petitioner testified that he felt his only option was to “plea out to three years probation if I
ain’t [sic] want to do federal time.”

       Petitioner testified that at the time of the cocaine offense, Dominic Jones threw some
crack cocaine out the passenger window of Petitioner’s vehicle. He said that Mr. Jones
ultimately pled guilty in this case and accepted responsibility. This occurred after Petitioner
had already pled guilty. Petitioner testified:

       But, but from my understanding, the day that I pled out, he was supposed to be
       pleading out, too. I mean, he, he was supposed to already have pled [sic] out,
       but I came in here and went on ahead with my hearing or whatever, but he had
       a, I want to say attempted murder charge pending, but had two separate
       lawyers. So I guess his lawyer on his attempted murder wasn’t ready to settle
       the case then, so they end up putting his case off.

Concerning this matter, Petitioner further testified:

       I was just like, when he first approached me, I was like, “I don’t want to plea
       out to it,” or whatever, and he was like - - and I was like, and I was like [sic],
       “Has Dominic pled out to it already?”



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       He was like, “He’s going to plead out today.” And I was like, “I don’t want
       to plead out until he” - - and then, that’s when he was like - - you know what
       I’m saying? - - I be, I be [sic] making the D.A. forced to turn it over to the
       federal authorities

Petitioner testified that he felt coerced in accepting the plea because trial counsel said that
his case could be turned over to the federal authorities.

        On cross-examination, Petitioner testified that someone from the public defender’s
office had reviewed some of the proof with him, and a motion to suppress was filed. After
a hearing, the motion was denied. Petitioner testified that there were fifteen months of
activity on his case while he was represented by the public defender’s office, and there were
discussions between that office and the district attorney general’s office about the case. At
some point, trial counsel was appointed to the case due to a conflict of interest with the
public defender’s office. Petitioner testified that he and trial counsel never discussed his
motion to suppress, and to his knowledge, trial counsel was not given any documents from
the public defender’s office. He admitted that trial counsel received the only plea offer in
his case, and it was for a suspended sentence. Petitioner accepted the offer and entered the
plea on September 29, 2009.

        Petitioner admitted that during the guilty plea submission hearing, the trial court
informed him that the judgments in his case could be used against him in the future to
increase his punishment, and he told the court that he understood. He told the trial court that
no one forced or coerced him into pleading guilty and that he did not have any questions;
however, he said that he asked trial counsel “something about less than .5 grams or
something like that.” Petitioner also listened to the factual basis for the guilty pleas and told
the trial court that he was guilty of the offenses.

       Petitioner testified that he met with trial counsel in trial counsel’s office prior to
entering the plea, and he did not have any personal knowledge of how much work trial
counsel put into his case. He said:

       But when I went to meet him, he had nothing too much to say about the case.
       He more asked me about the case, and just was like, he still haven’t got a offer
       yet because - - you know what I’m saying? - - the federal authorities was still
       trying to see was they going to pick it up or not. But we, we didn’t elaborate
       on, on what had happened or nothing like that because he really didn’t know
       too much at the time.




                                               -5-
         Petitioner testified that during the fifteen months that he was represented by the public
defender’s office, he was worried about the possibility of receiving federal charges. He and
the assistant public defender handling his case never discussed how pleading guilty in state
court would affect him in federal court. Petitioner testified that he was more worried about
whether the federal authorities were “going to pick it up or not.” He said that at every court
date, the assistant public defender handling his case would tell him that the federal authorities
were “still looking at picking it up and she’ll send me back down, or she’ll be like, ‘Well, I
set it off because they still looking at it to pick it up.” Petitioner testified that they “never just
talked about it.” He claimed that he never thought about the implications of his state case
in federal court.

       Petitioner testified that trial counsel never discussed the possibility of the federal
government taking over the case and how it would affect Petitioner. He said that trial
counsel only told him that if he did not accept the State’s offer, the district attorney’s office
would be forced to turn his case over to the federal authorities. Petitioner admitted that he
pled guilty to a crack cocaine offense in federal court, which was then set for a sentencing
hearing. He agreed that the presentence report for the federal plea indicated that his sentence
would be enhanced by the state charges. He further admitted that he faced a “pretty high”
sentence.

        On redirect examination, Petitioner testified that he had an additional felony
consisting of an aggravated assault. He claimed that he would not have pled guilty if he had
not felt threatened about the federal charges. He would have “kept trying until [he] got the
charge dismissed” or he would have gone to trial. Petitioner testified that he filed his post-
conviction petition long before he entered his guilty plea in federal court. The post-
conviction court denied the Petitioner relief.

III. Standard of Review

        On appeal, Petitioner asserts that he received ineffective assistance of counsel in
association with his guilty plea because trial counsel failed to properly investigate his case
to determine that Petitioner’s co-defendant pled guilty to the cocaine offense under a separate
indictment and accepted full responsibility for the offense; and trial counsel insisted that he
plead guilty to avoid federal prosecution. In a claim for post-conviction relief, the petitioner
must show that his or her conviction or sentence is void or voidable because of the
abridgment of a constitutional right. Tenn.Code Ann. § 40-30-103. Petitioner bears the
burden of proving factual allegations by clear and convincing evidence. Tenn. Code Ann.
§ 40-30-110(f); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009). The post-conviction
court’s factual findings “are conclusive on appeal unless the evidence preponderates against
those findings.” Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003). Upon review, this court

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will not reweigh or reevaluate the evidence below, and all 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 trial court, not this court. Momon v.
State, 18 S.W.3d 152,156 (Tenn. 1999).

       On appeal, the post-conviction court’s findings of fact are entitled to substantial
deference and are given the weight of a jury verdict. They are conclusive unless the evidence
preponderates against them. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley
v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). A post-conviction court’s
conclusions of law are subject to a de novo review with no presumption of correctness.
Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001). Our supreme court has “determined that
the issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact, ... thus, [appellate] review of [these issues] is de novo” with
no presumption of correctness. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

       When a petitioner seeks post-conviction relief based on the alleged ineffective
assistance of counsel, the petitioner bears the burden of showing that (a) the services
rendered by trial counsel were deficient, and (b) that the deficient performance was
prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order
to demonstrate deficient performance, the petitioner must show that the services rendered or
the advice given was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate
prejudice, the petitioner must show that there is a reasonable probability that, but for
counsel’s deficient performance, the result would have been different. See Strickland v.
Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Because a
petitioner must establish both prongs of the test to prevail on a claim of ineffective assistance
of counsel, failure to prove either deficient performance or resulting prejudice provides a
sufficient basis to deny relief on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997).

       On claims of ineffective assistance of counsel, the petitioner is not entitled to the
benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court
may not second-guess a reasonably-based trial strategy, and we cannot grant relief based on
a sound, but unsuccessful, tactical decision made during the course of the proceedings. See
id. However, such deference to the tactical decisions of counsel applies only if counsel
makes those decisions after adequate preparation for the case. See Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       Once a guilty plea has been entered, effectiveness of counsel is relevant only to the
extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective

                                               -7-
assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently
made. See Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (citing
North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). As stated
above, in order to successfully challenge the effectiveness of counsel, Petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded of
attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. Under Strickland v. Washington,
466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner must establish: (1)
deficient representation; and (2) prejudice resulting from the deficiency. However, in the
context of a guilty plea, to satisfy the second prong of Strickland, Petitioner must show that
“there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59; see also Walton v.
State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        First, Petitioner argues that trial counsel failed to properly investigate his case to
determine that Petitioner’s co-defendant, Dominic Jones, pled guilty to the cocaine offense
under a separate indictment and accepted full responsibility for the offense. Concerning this
issue, the post-conviction court found:

       Counsel and the petitioner did meet, though, perhaps because of the relatively
       late substitution of counsel, many or most of their meetings were in court. In
       any event, apparently, counsel did not overlook any evidence or witness.
       Although another person did eventually plead guilty to possession of cocaine
       for resale, neither the plea nor, apparently, any other statement excludes the
       possibility of the petitioner’s joint possession of cocaine. Nor did the other
       person plead guilty to possession of marijuana. The Court therefore finds that
       any deficiency in counsel’s performance in these respects was not prejudicial.

        The record in this case supports the post-conviction court’s findings. Trial counsel
was aware that co-defendant Jones was also charged in the case, and he spoke with co-
defendant’s counsel about the case, and they viewed the videotape of the traffic stop. He was
not aware if co-defendant Jones pled guilty and accepted responsibility for the cocaine
offense. Trial counsel did not recall a conversation with Petitioner as to whether co-
defendant Jones had purportedly pled guilty. He testified that it was possible co-defendant
Jones pled guilty after Petitioner’s guilty plea. He did not know “either way,” and would
have to rely on the records of the court clerk’s office. Trial counsel agreed that Petitioner’s
guilty plea occurred on September 29, 2009. He was not aware of any reservations on
Petitioner’s part about entering the plea. Trial counsel testified that he was “a bit surprised”
at the State’s offer, and he felt that it was a fair offer.




                                               -8-
        As pointed out by the State, co-defendant Jones pled guilty on June 17, 2010, after
Petitioner had entered his guilty plea. Therefore, it is irrelevant as to whether trial counsel
failed to investigate his case to determine whether co-defendant Jones had pled guilty and
accepted full responsibility for the cocaine offense. Furthermore, even if co-defendant Jones
had pled guilty before Petitioner entered his plea, this would not mean that co-defendant
Jones “fully accepted responsibility for the cocaine and exculpated Petitioner of any
involvement in same.” The recitation of facts by the State at co-defendant Jones’ guilty plea
submission hearing merely indicated that co-defendant Jones was a passenger in a vehicle
that was speeding. When the police officer attempted to pull that car over, “the window came
down and a clear plastic baggie with a white substance was thrown out the window.” It was
later recovered and determined to be cocaine. The baggie came out of a window where co-
defendant Jones was sitting. The prosecutor stated at the plea hearing that co-defendant Jones
  “did possess that cocaine with the amount an indicia [sic] that it would be for resale, and
it’s charged as a B felony but we’re reducing it as part of the plea to a C felony.” As found
by the post-conviction court and pointed out by the State, this does not preclude the
possibility that Petitioner was also in constructive possession of the cocaine. In order for a
person to “constructively possess” a drug, that person must have “ ‘the power and intention
at a given time to exercise dominion and control over ... [the drugs] either directly or through
others.’” State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987) (quoting State v.
Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981)). Additionally, “it may be inferred
from the amount of a controlled substance or substances possessed by an offender, along with
other relevant facts surrounding the arrest, that the controlled substance or substances were
possessed with the purpose of selling or otherwise dispensing.” Tenn. Code Ann. § 39-17-
419. Furthermore, Petitioner listened to the factual basis for the guilty pleas in his case, and
he told the trial court at the guilty plea submission hearing that he was guilty of the offenses.

       Petitioner has failed to carry his burden of proof on this allegation by clear and
convincing evidence, and he is not entitled to relief.

        Next, Petitioner contends that trial counsel was ineffective for urging him to plead
guilty to the offenses in order to avoid federal prosecution. Concerning this issue, the post-
conviction court found:

       The Court understands the petitioner to allege that counsel did not understand
       and correctly convey the representation of the federal prosecutor’s office to
       [the assistant district attorney general] that it did not intend to charge him for
       the offenses in issue but would seek an indictment for other drug offenses,
       advising him instead that the office had threatened to indict him if he did not
       plead guilty and thereby coercing him to plead guilty, though it was not in his
       best interest to do so and was the cause of the enhancement of federal

                                               -9-
       sentences. The Court accredits counsel’s account that the petitioner did not
       express any reservations about the plea offer. The petitioner himself admits
       that the offer of probation was a relief in part because it was an indication that
       federal prosecution was unlikely and all but admits that he was willing to plead
       guilty if the other person did so too. The Court therefore finds no deficiency
       in counsel’s performance in this respect.

The post-conviction court further noted:

       The Court had already found that counsel did not threaten the petitioner with
       federal prosecution, and most of the other circumstances of the pleas suggest
       that they were voluntary and intelligent: his prior conviction for aggravated
       assault, his awareness of the advantages of the plea offer, including probation,
       and the disadvantages of the plea offer, including the general sentence-
       enhancing potential of the pleas, his satisfaction with and the effectiveness of
       counsel, and the lack of a defense that he was not in sole or joint possession
       of the contraband.

       While, absent more specific advice, the petitioner was perhaps not aware of the
       precise sentence-enhancing effect of the pleas in the apparently not-then-
       pending federal cases, he did seem to be aware of the ongoing possibility of
       federal prosecution on other charges. Thus, even if the advice about the
       sentence-enhancing potential of the pleas was general, the petitioner did not
       have reason to regard it as abstract. The Court finds that the pleas were a
       voluntary and intelligent choice between the courses of action open to the
       petitioner.

        The record in this case does not preponderate against the trial court’s findings. Trial
counsel did not recall any interest in Petitioner by the federal authorities, and he did not recall
“that there were any federal implications concerning [Petitioner].” Trial counsel testified:

       What I typically do - - and I’ve looked through my notes - - is I make my
       clients aware of the potential - - in cases like this, where I recognize that there
       might be a federal problem in the future, I just make them aware of the
       potential that, you know, irrespective of what we do in State Court, there could
       be a federal issue crop up later, but I don’t really get into specifics about that.

He specifically denied telling Petitioner that he needed to plead guilty to avoid “federal
consequences in this particular case.” Trial counsel unequivocally denied that there was a



                                               -10-
conversation with Petitioner indicating that if Petitioner did not plead guilty, the federal
authorities would take the case, and Petitioner would face greater consequences.

       We conclude that Petitioner has failed to show by clear and convincing evidence that
his guilty plea was involuntarily or unknowingly entered, that he received ineffective
assistance of counsel or that he was prejudiced by any alleged defective representation by
counsel. Petitioner is not entitled to relief in this appeal.

                                     CONCLUSION

       After a thorough review, we affirm the judgment of the post-conviction court.

                                                   ___________________________________
                                                   THOMAS T. WOODALL, JUDGE




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