        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 15, 2011

     TRINA DAWN HOLDWAY JOHNSON v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Sullivan County
                        No. C58522     R. Jerry Beck, Judge




                No. E2011-00348-CCA-R3-PC - Filed January 18, 2012


The petitioner, Trina Dawn Holdway Johnson, appeals the denial of her petition for post-
conviction relief, claiming that she was denied the effective assistance of counsel and that
counsel’s faulty advice rendered her guilty plea unknowing and involuntary. Discerning no
error, we affirm.

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

J AMES C URWOOD W ITT, J R., delivered the opinion of the Court, in which D. K ELLY T HOMAS,
J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Katherine L. Tranum, Kingsport, Tennessee, for the appellant, Trina Dawn Holdway.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Adam Moore, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               On May 10, 2010, the petitioner entered best-interest pleas of guilty to one
count of the sale of cocaine and one count of the delivery of cocaine within 1,000 feet of
Holston View Elementary School. Pursuant to a plea agreement, the convictions were
merged, and the petitioner received a Range I sentence of eight years’ incarceration to be
served at 100 percent by operation of law. The State offered the following summary of the
facts at the guilty plea submission hearing:

              On April 3rd, 2008, Ginger Crowe, who is an officer with the
              Bristol Tennessee Police Department, met with a confidential
informant, Lisa Thompson, in reference to making a purchase of
crack cocaine.

       Upon meeting with the confidential informant, they were
searched, and no contraband was found. The . . . confidential
informant was then fitted with a video and audio recording
device on their person.

       The confidential informant made a recorded phone call
to a female known to her as “Trina.” Trina advised the
confidential informant if they would just come to their house
[sic]. The confidential informant was then provided a $100 in
recorded money [sic] to make the purchase.

        After a few minutes, Officer Crowe could hear the
confidential informant speaking with a female. Officer Crowe
could hear a brief conversation. After a short conversation,
Officer Crowe could hear the female asking to stay at the
confidential informant’s house. Officer Crowe heard the
confidential informant advising that they would just give Trina
a ride to Springdale.

        Officer Crowe then received a phone call from the
confidential informant advising that they were giving Trina a
ride to Springdale. The confidential informant advised also that
they would leave the stuff on the counter, meaning leave the
dope on the counter. Officer Crowe observed the confidential
informant leaving the area. Within a short time the confidential
informant returned. Officer Crowe met with the confidential
informant and retrieved two Baggies of crack cocaine. The
video and audio recording devices were removed. The
confidential informant was once again searched and no
contraband was found. Officer Crowe later field-tested the
white chunky substance, and it showed positive for the presence
of cocaine.

       All of the above transaction occurred within 1,000 feet of
real property comprising a public elementary school, Holston
View Elementary School, here in Sullivan County.



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(alteration in original).

               In her timely-filed petition for post-conviction relief, the petitioner claimed,
among other things, that she was deprived of the effective assistance of counsel and that, as
a result, her guilty plea was not knowingly and voluntarily entered. At the evidentiary
hearing, the petitioner testified that trial counsel initially misinformed her regarding her
potential punishment, telling her she was subject to a Range I rather than Range III sentence.
She said that she and counsel viewed the video recording of the controlled buy and agreed
that the theory of defense would be that the petitioner was guilty of no more than facilitation
of the sale of cocaine. Trial counsel told her that, should she be convicted of that offense,
she faced a maximum sentence of six years and that she would be eligible for probation.

                A week before her trial date, trial counsel told the petitioner that he had made
a mistake regarding her potential punishment, explaining that her previous criminal history
qualified her as a Range III offender. He told the petitioner that, should she be convicted as
charged, she faced a potential sentence of 40 to 60 years’ incarceration and a 100 percent
release eligibility. The petitioner testified that counsel said that even if she was convicted
of facilitation, she faced a minimum of 20 years’ incarceration and a 100 percent release
eligibility. The petitioner said that trial counsel provided her with written documentation of
her potential range of punishment and asked her to sign an acknowledgment saying she had
been informed. That same day, trial counsel told the petitioner that the State had made a plea
offer for a sentence of eight years to be served at 100 percent in exchange for the petitioner’s
plea of guilty to the reduced charge of the sale of cocaine. He also told her that if she did not
accept the offer right away, the State would withdraw it.

               The petitioner said that counsel’s revelation shocked her, and she told him she
still wanted to go to trial. She testified that counsel told her that “he didn’t feel like [her]
health would withstand the stress of a trial.” He also told her that she had “no choice” but
to accept the plea agreement if she wanted to get her “life back at some point.” At that point,
the petitioner said, she asked for a new attorney. She testified that counsel returned with
another attorney, who confirmed trial counsel’s information and agreed with his advice that
the petitioner accept the plea offer. The petitioner said that she agreed to accept the offer
despite her discomfort with the decision. She explained, “I did not want to enter this plea.
I mean, if I got 100 years for something I did, I can handle that.” She said she had “set [her]
mind” on serving six years on probation and that she did not have sufficient time to consider
the revised information regarding potential punishment or the State’s offer.

               During cross-examination, the petitioner admitted that trial counsel told her not
to “get [her] hopes up” that she would be acquitted. She conceded that counsel clarified her
potential range of punishment five days before she entered her plea and that counsel “did

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everything he could.” She nevertheless maintained that his initial misinformation “put the
case in turmoil.” She admitted that she never mentioned her apprehension or difficulties with
counsel to the trial court and that she was familiar with the plea process, having entered
guilty pleas on previous occasions in the same court.

                Trial counsel, an assistant public defender, testified that he began representing
the petitioner on July 2, 2009, and did so continuously until she entered her plea on May 10,
2010. Counsel admitted that he initially misinformed the petitioner regarding her sentencing
range and that, based on his initial mistake, he told her that should she be convicted of
facilitation of the sale of cocaine, she “would be looking at six years.” Counsel said that he
informed the petitioner immediately after realizing his mistake and had the petitioner sign
an acknowledgment that she had been informed of her actual potential range of punishment
because he “felt very strongly” that the petitioner would “turn on him” and “complain” if she
was not happy with the outcome. Counsel said that he advised the petitioner to accept the
plea offer, even going so far as to tell her that refusing the offer would be “a huge mistake,”
but he insisted that he had “never, ever” told any client that they had “no choice” but enter
a guilty plea.

               Trial counsel admitted that he and the petitioner had engaged in “heated”
conversations regarding the potential for a lengthy period of incarceration, explaining that
the petitioner did not believe that the State should be permitted to use her prior convictions
to enhance her sentence because she “was not guilty” of those prior offenses. Counsel
testified that when the petitioner expressed that she was no longer sure whether she could
trust him, he asked a colleague from the public defender’s office to speak with her. After
speaking with his colleague, the petitioner agreed to accept the State’s offer.

               Trial counsel’s colleague, another assistant public defender, testified that he
met with the petitioner at trial counsel’s request and discussed with her “possible ranges that
she would be facing.” He explained the sentence ranges and provided the petitioner with
copies of the relevant Code sections detailing the potential punishments.

               In its written order denying post-conviction relief, the post-conviction court
specifically accredited the testimony of trial counsel and his colleague that the petitioner was
aware of the accurate range of punishment and that she voluntarily accepted the State’s offer
and pleaded guilty. The court found that the petitioner’s testimony was not credible. The
post-conviction court concluded that, despite counsel’s initial bad advice, the petitioner was
not deprived of the effective assistance of counsel and that her guilty plea was knowingly and
voluntarily entered.

              In this appeal, the petitioner reiterates her claims that trial counsel was

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ineffective and that her guilty plea was unknowing and involuntary. 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).

               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.
In the context of a guilty plea, the petitioner must establish that “counsel’s constitutionally
ineffective performance affected the outcome of the plea process” by establishing “a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see Hicks
v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998). 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).

              “Whether a plea was knowing and voluntary is an issue of constitutional

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dimension because ‘the due process provision of the federal constitution requires that pleas
of guilty be knowing and voluntary.’” State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2000)
(quoting Johnson v. State, 834 S.W.2d 922, 923 (Tenn. 1992)). A plea “may not be the
product of ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or
blatant threats.’” Wilson, 31 S.W.3d at 195 (quoting Boykin, 395 U.S. at 242-43); see also
State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003) (“Certainly, a plea is not ‘voluntary’ if
it results from ignorance, misunderstanding, coercion, inducements, or threats.”) (citing
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993)); see Sexton v. State, 151 S.W.3d
525, 532 (Tenn. Crim. App. 2004) (stating that “the nature of the proceeding, the exchange
between the trial court and the petitioner, and the relatively beneficial plea agreement reflect
the petitioner’s knowledge and understanding that [his] constitutional rights relative to the
trial process were not to be asserted by [him] any further”).

             Both claims of ineffective assistance of counsel and involuntary guilty plea are
mixed questions of law and fact. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); 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).

               In our view, the evidence does not preponderate against the findings of the trial
court. Trial counsel initially misinformed the petitioner regarding her potential punishment
but corrected his mistake as soon as he realized it. The petitioner was fully apprised of her
potential range of punishment by trial counsel, his colleague, and the trial court prior to
making her plea. Although the petitioner faced a potential sentence of as much as 60 years’
incarceration, trial counsel successfully negotiated a sentence of eight years’ incarceration.
That the petitioner would have liked more time to consider the offer or that she was upset to
discover her true potential range of punishment does not equate to a deprivation of the
effective assistance of counsel. The transcript of the guilty plea submission hearing confirms
that the petitioner was accurately advised of her potential range of punishment, that she
understood that the choice to enter the guilty plea was hers alone, and that she entered the
plea entirely of her own volition. The petitioner’s familiarity with the justice system, and the
entering of a guilty plea in particular, belies any claim that she was overwhelmed by the
procedure. The petitioner has failed to establish any entitlement to post-conviction relief.

              Accordingly, the judgment of the post-conviction court is affirmed.




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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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