        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs July 14, 2009

              JOHN CARROLL COOK v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Madison County
                      No. C-08-245    Roy B. Morgan, Jr., Judge



                No. W2008-02588-CCA-R3-PC - Filed February 18, 2010


The Petitioner, John Carroll Cook, pled guilty in the Madison County Circuit Court to rape
of a child and aggravated sexual battery. He received a total effective sentence of twenty-
five years to be served at one hundred percent. Subsequently, the Petitioner filed for post-
conviction relief, alleging that his trial counsel was ineffective and that his guilty pleas were
not knowingly and voluntarily entered. The post-conviction court denied relief, and the
Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Joseph T. Howell, Jackson, Tennessee, for the appellant, John Carroll Cook.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney
General; James G. Woodall, District Attorney General; and Jody S. Pickens and Alfred Lynn
Earls, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

                                   I. Factual Background

        At the post-conviction hearing, the Petitioner acknowledged that he told the trial court
at the guilty plea hearing that he was satisfied with counsel, that he understood the charges
he was facing, and that his pleas were knowing and voluntary. The Petitioner said he had not
intended to mislead the court, but, until he did research in prison, he did not understand what
was happening. He said that as a result of his confusion, he pled guilty to an offense he did
not commit.
        The Petitioner complained that trial counsel did not properly investigate his case and
find exculpatory evidence. The Petitioner did not specifically allege what evidence counsel
failed to discover. The Petitioner complained that counsel visited with him only three times
and that each visit lasted only fifteen or twenty minutes. The Petitioner said that trial counsel
did not review discovery materials with him and did not have any substantive conversations
with him regarding his defense. The Petitioner maintained that trial counsel spoke with him
only about pleading guilty; thus, the Petitioner felt “[a] little” pressured to enter guilty pleas.

       The Petitioner stated that he told counsel to investigate counselors and doctors who
treated him when he was younger, alleging that they would be helpful in his defense. The
Petitioner acknowledged that he did not provide counsel with the names of those individuals.
The Petitioner did not know what assistance those witnesses could have provided; however,
the State and the Petitioner’s post-conviction counsel stipulated that the Petitioner was a
victim of sexual abuse when he was a child.

       The Petitioner said that at the time of his guilty pleas, he did not know how to read
and had informed his trial counsel of this inability. The Petitioner said that he learned to read
in prison and noticed some factual errors in a statement he gave to police. The Petitioner
acknowledged that he signed the statement but maintained that he was unaware of the factual
errors at that time because of his inability to read. The Petitioner stated that part of the
statement was accurate and that he “might have” told police that the allegations against him
were true; however, he refuted the portion of the statement indicating that he admitted raping
his two-year-old daughter. The Petitioner maintained the police “must have misunderstood
me.” The Petitioner stated that he did not know until after he learned to read in prison that
the victim had been examined and that the examination revealed evidence consistent with
penile penetration.

       The Petitioner maintained that he pled guilty to offenses he did not commit. The
Petitioner said that at the time of his guilty pleas, he was confused; however, he admitted that
“[n]ot much [about the guilty plea proceedings was confusing] if you think about it.” The
Petitioner acknowledged that if he were convicted at trial, he could have faced a longer
sentence. Thus, he conceded that the effective twenty-five-year sentence he received was
“a pretty good thing.”

       The Petitioner’s trial counsel testified that she had handled hundreds of criminal cases,
including other child rape cases. She recalled that she was appointed to represent the
Petitioner in August 2007. Counsel said she obtained a complete copy of the State’s file and
shared a copy of the discovery materials with the Petitioner. Trial counsel said that her
conversations with the Petitioner led her to suspect his ability to read was limited; therefore,
counsel thoroughly discussed the discovery materials with the Petitioner. Counsel



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specifically stated that she reviewed the medical reports with the Petitioner and that she
reviewed the Petitioner’s statement with him “line by line.”

       Counsel stated that she informed the Petitioner of the charges he was facing and of
the potential sentences he could receive for each offense if he were convicted at trial.
Additionally, counsel informed the Petitioner that he could receive consecutive sentencing.

       Counsel maintained that she was unable to develop any evidence that would help
establish the Petitioner’s innocence of the crimes and that she acknowledged the Petitioner’s
chance of success at trial was “slim to none.” Counsel stated that she nevertheless wanted
to take the Petitioner’s case to trial. Counsel hoped that based on sexual abuse he received
as a child “a better deal could have been worked out.” Counsel said the Petitioner admitted
that he was guilty of raping his daughter and that he was remorseful and needed to pay for
what he had done. The Petitioner told counsel he did not want a trial and insisted on
pleading guilty. Counsel said she reviewed the guilty plea forms with the Petitioner prior to
the entry of the pleas.

        Counsel said she had explored the need for expert testimony at trial. However, she
discovered that the records of the sexual abuse the Petitioner suffered as a child and of the
treatment he subsequently received were sparse. She also said she had done research
regarding studies showing that “when the wife leaves, if there is a female child, the attraction
to the wife can be transferred to the child.” Counsel recalled that after she informed the State
of the Petitioner’s abuse as a child, the State offered the minimum sentence of twenty-five
years.

       At the conclusion of the hearing, the post-conviction court accredited trial counsel’s
testimony that she met with the Petitioner and explained the proof against him. Additionally,
the court observed that the transcript of the guilty plea hearing reflected that the Petitioner
was thoroughly informed regarding the plea process and the consequences of entering guilty
pleas and that the Petitioner knowingly and voluntarily entered the guilty pleas. The post-
conviction court stated that counsel explored the possibility of using expert testimony at trial
but that she was unable to find any exculpatory evidence to exonerate the Petitioner.
Accordingly, the post-conviction court found that trial counsel was not ineffective. On
appeal, the Petitioner contests the post-conviction court’s ruling.

                                         II. Analysis

       To be successful in his claim for post-conviction relief, the Petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). “‘Clear and convincing evidence
means evidence in which there is no serious or substantial doubt about the correctness of the

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conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight
of a jury verdict, with such findings being conclusive on appeal absent a showing that the
evidence in the record preponderates against those findings. Id. at 578.

       First, the Petitioner contends that his trial counsel was ineffective. A claim of
ineffective assistance of counsel is a mixed question of law and fact. See State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of fact
de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d
450, 458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of
law purely de novo. Id.

       When a Petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the [P]etitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the Petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, 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. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover,

                       [b]ecause 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.
              Indeed, a court need not address the components in any
              particular order or even address both if the [Petitioner] makes an
              insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). In the context of a guilty plea,
“the [P]etitioner must show ‘prejudice’ by demonstrating that, but for counsel’s errors, he
would not have pleaded guilty but would have insisted upon going to trial.” Hicks v. State,
983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S. 52, 59
(1985).



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        On appeal, the Petitioner specifically maintains that trial counsel failed to adequately
investigate the case, explain the charges and potential sentences to him, solicit expert
testimony, or review the discovery materials with him. However, trial counsel’s testimony,
which was accredited by the post-conviction court, belies the Petitioner’s contentions. Trial
counsel testified that she informed the Petitioner of the charges and potential sentences he
could receive if convicted at trial. Additionally, trial counsel testified that the Petitioner
consistently maintained that he was guilty of the offenses. Nevertheless, counsel pursued
mitigation in the form of expert testimony regarding the sexual abuse the Petitioner suffered
as a child. Accordingly, the post-conviction court found that counsel was not ineffective in
her representation of the Petitioner. There is nothing in the record to preponderate against
this finding. The Petitioner did not produce any evidence at his post-conviction hearing that
trial counsel could have discovered through further investigation. Generally, “[w]hen a
[P]etitioner contends that trial counsel failed to discover, interview, or present witnesses in
support of his defense, these witnesses should be presented by the [P]etitioner at the
evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We
may not speculate on what benefit any additional witnesses might have offered to the
Petitioner’s case, nor may we guess as to what evidence further investigation may have
uncovered. Id. Accordingly, the Petitioner has failed to demonstrate prejudice in this regard.
Therefore, we conclude that the post-conviction court did not err in finding that trial counsel
was not ineffective.

        Additionally, the Petitioner asserts that his guilty pleas were not knowingly and
voluntarily entered. We note that in determining whether a Petitioner’s guilty plea was
knowing and voluntary, this court must look at the totality of the circumstances. See State
v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). “This court is bound by the
post-conviction court’s findings unless the evidence preponderates otherwise.” Bates v.
State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

        When a defendant enters a plea of guilty, certain constitutional rights are waived,
including the privilege against self incrimination, the right to confront witnesses, and the
right to a trial by jury. See Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in
order to comply with constitutional requirements, a guilty plea must be a “voluntary and
intelligent choice among the alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970). In order to ensure that a defendant understands
the constitutional rights being relinquished, the trial court must advise the defendant of the
consequences of a guilty plea and determine whether the defendant understands those
consequences. See Boykin, 395 U.S. at 244.

      In State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1977), our supreme court set out the
procedure trial courts should follow when accepting a guilty plea. Prior to accepting the


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guilty plea, the trial court must address the defendant personally in open court, inform the
defendant of the consequences of the guilty plea, and determine whether the defendant
understands those consequences. Id.; see also Tenn. R. Crim. P. 11(c). A verbatim record
of the guilty plea proceedings must be made and must include, without limitation, “(a) the
court’s advice to the defendant, (b) the inquiry into the voluntariness of the plea including
any plea agreement and into defendant’s understanding of the consequences of his entering
a plea of guilty, and (c) the inquiry into the accuracy of a guilty plea.” Mackey, 553 S.W.2d
at 341.

       In determining whether the Petitioner’s guilty plea was knowing and voluntary, this
court looks to the following factors:

              [T]he relative intelligence of the [Petitioner]; the degree of his
              familiarity with criminal proceedings; whether he was
              represented by competent counsel and had the opportunity to
              confer with counsel about the options available to him; the
              extent of advice from counsel and the court concerning the
              charges against him; and the reasons for his decision to plead
              guilty, including a desire to avoid a greater penalty that might
              result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

        The proof at the post-conviction hearing reflects that the Petitioner was facing charges
of rape of a child, a Class A felony, and aggravated sexual battery, a Class B felony. The
trial court noted that the State had a strong case against the Petitioner and that the Petitioner
was facing a significant sentence if convicted at trial. Trial counsel testified that the
Petitioner insisted on pleading guilty, stating that he needed to pay for what he had done. The
transcript of the guilty plea hearing reflects that the Petitioner informed the trial court that
he understood the rights he was forfeiting, the charges he was facing, and the sentences he
would receive, and that he wanted to plead guilty. We conclude that there is no evidence to
preponderate against the post-conviction court’s finding that the Petitioner knowingly and
voluntarily pled guilty.

                                       III. Conclusion

       Based upon the foregoing, we affirm the judgment of the post-conviction court.




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      ___________________________________
      NORMA McGEE OGLE, JUDGE




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