         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 29, 2006

            BRONSON WAYNE COKER v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Sullivan County
                          No. C49,394    Phyllis H. Miller, Judge



                      No. E2005-02131-CCA-R3-PC - Filed May 18, 2006


The petitioner, Bronson Wayne Coker, appeals the dismissal of his petition for post-conviction relief,
arguing that his trial counsel provided ineffective assistance for failing to adequately investigate the
case or explain the ramifications of the plea agreement and that his guilty pleas were consequently
unknowing and involuntary. Following our review, we affirm the dismissal of the petition for post-
conviction relief.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and J.C. MCLIN ,
JJ., joined.

John D. Parker, Kingsport, Tennessee, for the appellant, Bronson Wayne Coker.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                               FACTS

        On August 29, 2003, the petitioner pled guilty in the Sullivan County Criminal Court as part
of a package plea agreement to two counts of misdemeanor assault, two counts of burglary of a
building, one count of misdemeanor vandalism, one count of theft under $500, possession of
marijuana, three counts of felony failure to appear, two counts of theft over $10,000, one count of
attempted theft over $10,000, and one count of vandalism over $1000, in exchange for an effective
sentence of nine years to be served consecutively to a Virginia sentence for burglary and grand
larceny. During his recitation of facts at the guilty plea hearing, the prosecutor revealed that the two
thefts over $10,000 and the attempted theft over $10,000 were based on the petitioner’s theft of a
1999 Mitsubishi Eclipse from Don Hill Pontiac in Kingsport and theft of a 1958 Ford Edsel and
attempted theft of a 1970 Porsche from Murphy’s Auto Sales, also in Kingsport. The manner of
service of the petitioner’s sentence was left to the trial court’s later determination, and on November
4, 2003, the trial court sentenced the petitioner to serve his time in the Department of Correction.

        The petitioner filed a pro se petition for post-conviction relief on July 14, 2004, followed by
an amended petition on October 7, 2004, after the appointment of post-conviction counsel. In the
original and amended petitions, the petitioner claimed that he was denied the effective assistance of
trial counsel and that his guilty pleas were unknowingly, unintelligently, and involuntarily entered
as a result of counsel’s deficiencies in representation. The petitioner alleged, among other things,
that counsel failed to adequately investigate his case or inform him of the consequences of his guilty
pleas. Specifically, he asserted that counsel failed to investigate the value of the automobiles
involved in the theft and attempted theft over $10,000 offenses, misinformed him that he would be
sentenced to a drug treatment program instead of prison, and coerced him into pleading guilty by
threatening him with greater jail time if he did not accept the plea offer.

        At the February 18, 2005, evidentiary hearing, the petitioner’s sister, Sheila Duncan, testified
that after the petitioner entered his guilty pleas she visited Murphy’s Auto Sales on Lynn Garden
Drive in Kingsport, where she looked at a green Ford Edsel that was for sale. She said a salesman
told her the price of the vehicle was $2800, but it could not be sold at that time because it was tied
up in a court case. Duncan acknowledged she did not check the vehicle identification number and
therefore did not know if it was the same Ford Edsel the petitioner had been convicted of stealing.

        The petitioner testified he told trial counsel he wanted to contest the values of the vehicles
because he did not believe any of them was worth $10,000, but trial counsel made no attempt to
investigate their values and told him there was nothing he could do about it. He also claimed that
trial counsel coerced him into signing the plea agreement by telling him that he could face fifty to
sixty years in a jury trial. The petitioner’s primary complaint against trial counsel was that he failed
to deliver on his promise that he would be sentenced to a drug treatment program instead of prison.
The petitioner summed up his complaints against trial counsel as follows:

                No, just that I feel and I believe that there’s no way that the cars were worth
        that value and that . . . they was [sic] in really bad shape and that I was offered the
        Hay House and I didn’t get it from my attorney and that’s, you know, really the basis
        of my argument of being here today.

         On cross-examination, the petitioner, who said he had obtained a GED, testified that he was
neither under the influence of any drug or alcohol nor suffering from any mental impairment at the
time of his guilty plea hearing. He acknowledged he said nothing to the trial court about being
sentenced to a drug treatment program instead of prison and conceded that he answered “no” when
the trial court asked whether anyone had threatened, coerced, intimidated, or pressured him into
pleading guilty, or if anyone had made any promises to him other than what was in the plea
agreement. He explained that the “coercion” did not arise until his sentencing hearing:



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                At that time I did not know that the cars was [sic] not of that value and at the
        time I pled guilty I had not been to my alternative sentencing hearing and been denied
        part of my plea bargain, so at the time that wasn’t in effect. No, I wasn’t coerced at
        the time. When I went to my alternative sentencing hearing and was denied the Hay
        House, at that time is when that coercion took effect.

        Upon further questioning, the petitioner acknowledged that the trial court never told him that
Hay House was part of his plea bargain agreement. He testified trial counsel had mentioned Hay
House as “a possibility” and told him that the prosecutor was going to recommend it to the trial
court at sentencing. He added, however, that trial counsel told him that he “pretty much had it in the
bag.” As a consequence, he “was under the impression” he was going to Hay House or else he
would not have accepted the plea offer.

        Wayne Overby, the sales manager of Don Hill Pontiac-Jeep, testified that he was familiar
with the 1999 Mitsubishi Eclipse that was stolen from the dealership on November 22, 2002. He
said that after the vehicle was recovered, the dealership sold it for $10,995.

         Trial counsel testified he had been an assistant public defender for approximately fifteen
years and was appointed to represent the petitioner in the instant cases. He said he thoroughly
reviewed the package plea bargain with the petitioner and explained to him the sentences and the
conditions contained in it. He stated that he put no pressure on the petitioner to accept the plea offer
and never promised him that he would be sentenced to a drug treatment program. Trial counsel
testified that he routinely reviews with his clients the different possible sentencing alternatives
available to the trial court, and was sure he had done so in this case, but was also positive that he told
the petitioner that the sentence would be strictly up to the trial court at the sentencing hearing.

        Trial counsel agreed that the police detective involved in the case had sworn under oath that
the three vehicles were each valued at over $10,000. He said he could not recall having ever
discussed the value of the vehicles with the petitioner, as the sentences for those offenses were to
run concurrently to the sentences for other offenses, but if he had, he probably told him that

        the owners whose [sic] not, you know generally are not thieves, are testifying that the
        value is worth a certain thing and, you know, unless I have something very contrary
        to that then normally that’s what they’re sworn to and that’s what the value is. I
        mean a lot of times you’ve got defendants that want to come in and argue the value,
        . . . I mean people don’t, you know, they’re going to believe the victim before they
        do the defendant, generally. And again, in this case it really didn’t matter because
        most of them were concurrent. But I don’t even recall us discussing it, really.

       On cross-examination, trial counsel testified he never told the petitioner that the prosecutor
was going to recommend that he be sentenced to Hay House.




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        On April 18, 2005, the post-conviction court entered a detailed written order dismissing the
petition for post-conviction relief on the basis that the petitioner had failed to meet his burden of
demonstrating either ineffective assistance of counsel or that his guilty pleas were unknowing and
involuntary. Among other things, the court specifically accredited the testimony of trial counsel
over the testimony of the petitioner, noting that trial counsel testified that he fully explained the
ramifications of the plea agreement to the petitioner, never promised him that he would be sentenced
to a drug treatment program, and did not coerce, pressure, or threaten him into pleading guilty. The
post-conviction court also noted that the petitioner answered appropriately at the guilty plea hearing,
indicating that his guilty pleas were knowingly, voluntarily, and intelligently entered.

                                             ANALYSIS

        On appeal, the petitioner raises the interrelated issues of whether the post-conviction court
erred in finding he received effective assistance of trial counsel and that his guilty pleas were
knowing and voluntary. The post-conviction petitioner bears the burden of proving his allegations
by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). When an
evidentiary hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v. State, 922
S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate
court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578
(Tenn. 1997). However, review of a trial court’s application of the law to the facts of the case is de
novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The
issue of ineffective assistance of counsel, which presents mixed questions of fact and law, is
reviewed de novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d
453, 461 (Tenn. 1999).

        To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
       Second, the defendant must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive the
       defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.



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         The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong
of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel's unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In the context of a
guilty plea, the petitioner must show a reasonable probability that were it not for the deficiencies in
counsel’s representation, he would not have pled guilty but would instead have insisted on
proceeding to trial. Hill v. Lockart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985);
House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

         In support of his ineffective assistance of counsel claim, the petitioner cites, among other
things, his testimony that trial counsel did not investigate the value of the vehicles and promised him
that he would be sentenced to Hay House instead of prison. The post-conviction court, however,
specifically accredited the testimony of trial counsel over that of the petitioner. Trial counsel
testified that he fully explained the plea agreement to the petitioner and never promised anything
with respect to the manner of service of his sentence. Trial counsel further testified that he could not
recall discussing the value of the vehicles with the petitioner and explained why it was not an
important issue in the context of the package plea bargain that was offered by the State. We
conclude, therefore, that the record supports the post-conviction court’s finding that counsel
provided effective representation.

        In an interrelated claim, the petitioner also contends that his guilty pleas were not knowingly,
voluntarily, or intelligently entered. Specifically, he asserts that the record is clear that he entered
into the guilty pleas under the assumption that he would receive a community corrections sentence
and be sent to a drug treatment program instead of prison. The State argues that the evidence
supports the post-conviction court’s finding that the petitioner freely, voluntarily, and knowingly
entered his pleas. We agree with the State.

         When analyzing a guilty plea, we look to the federal standard announced in Boykin v.
Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and the state standard set out in
State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999).
In Boykin, the United States Supreme Court held that there must be an affirmative showing in the
trial court that a guilty plea was voluntarily and knowingly given before it can be accepted. 395 U.S.
at 242, 89 S. Ct. at 1711. Similarly, the Tennessee Supreme Court in Mackey required an affirmative
showing of a voluntary and knowledgeable guilty plea, namely, that the defendant has been made
aware of the significant consequences of such a plea. Pettus, 986 S.W.2d at 542. A plea is not
“voluntary” if it results from ignorance, misunderstanding, coercion, inducements, or threats.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if the guilty
plea is “knowing” by questioning the defendant to make sure he or she fully understands the plea and
its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858 S.W.2d at 904.



                                                   -5-
         Because the plea must represent a voluntary and intelligent choice among the alternatives
available to the defendant, the trial court may look at a number of circumstantial factors in making
this determination. Blankenship, 858 S.W.2d at 904. These factors include: (1) the defendant's
relative intelligence; (2) his familiarity with criminal proceedings; (3) whether he was represented
by competent counsel and had the opportunity to confer with counsel about alternatives; (4) the
advice of counsel and the court about the charges against him and the penalty to be imposed; and (5)
the defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in a jury
trial. Id. at 904-05.

         Trial counsel’s testimony, accredited by the post-conviction court, established that the
petitioner was fully informed of the consequences of his pleas, including that the method of service
of his sentence would be determined by the trial court at the sentencing hearing. Trial counsel’s
testimony further established that he did not coerce or threaten the petitioner into pleading guilty and
that it was the petitioner’s decision to accept the package plea bargain offered by the State.

         The petitioner’s own testimony established that he had obtained his GED, that he signed the
guilty plea agreement, and that he told the trial court that no one had threatened or induced him into
pleading guilty and said nothing to the trial court about being sentenced to a drug treatment center.
Furthermore, the transcript of the guilty plea hearing reflects that the petitioner responded
appropriately when asked if he understood the various constitutional rights as described by the trial
court, if he understood he was waiving certain rights by pleading guilty, whether he had been fully
informed of the charges and the plea agreement by his counsel, whether he understood his guilty
pleas, and whether he was satisfied with counsel’s representation. In sum, the record fully supports
the post-conviction court’s finding that the petitioner failed to show that his guilty pleas were
unknowing and involuntary.

                                          CONCLUSION

        Having reviewed the record, we conclude that the petitioner has failed to meet his burden of
demonstrating he was denied the effective assistance of trial counsel or that his guilty pleas were
unknowing and involuntary. Accordingly, we affirm the dismissal of the petition for post-conviction
relief.

                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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