        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 13, 2010

                   TONY HOOVER v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                      No. 05-04655-56    Paula Skahan, Judge


                  No. W2009-01737-CCA-R3-PC - Filed June 7, 2011


The petitioner, Tony Hoover, appeals the Shelby County Criminal Court’s denial of his
petition for post-conviction relief. The petitioner entered open Alford pleas to two counts of
rape and two counts of incest. Following a sentencing hearing, the trial court imposed an
effective sentence of twenty-one years in the Department of Correction. On appeal, the
petitioner contends that his pleas were not entered with an understanding of the nature and
consequences of the pleas. He also contends that trial counsel provided ineffective assistance
by failing to properly inform him of the terms and consequences of his guilty pleas and by
advising him to waive his ex post facto rights and be sentenced pursuant to the 2005
amendments to the Sentencing Act. Following careful review of the record, we affirm the
judgment of the post-conviction court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and C AMILLE R. M CM ULLEN, JJ., joined.

Deena L. Knopf, Memphis, Tennessee, for the appellant, Tony Hoover.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Alexia Fulgham, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Procedural History

    The petitioner’s convictions in this case arose from sexual acts committed against his
two minor daughters. The relevant underlying facts, as recited on direct appeal, are as
follows:

              At the sentencing hearing, the following evidence was presented:
      [Victim One], sixteen at the time of the hearing, testified she was fourteen
      when she was raped by her father. She lived with her mother at that time and
      visited her father for Thanksgiving, along with her two sisters and her brother.
      [Victim One] testified that she was sitting in a back room watching television
      when the [petitioner] came in and repeatedly asked her to have sex with him.
      Eventually, because [Victim One] grew tired of his asking, she had sex with
      the [petitioner.] [Victim One] stated that this was not the first time she had sex
      with the [petitioner] and that all the previous instances also occurred at his
      residence. [Victim One] testified that the previous instances involved digital
      penetration “a lot” and oral sex “several” times. [Victim One] also described
      a card game where she, her half-sister, . . . and the [petitioner] all took off their
      clothes throughout the game. By the end, they were all naked. All of these
      acts occurred over a period of “five or six” years.

             ....

              [Victim Two], fifteen at the time of hearing, testified that she was
      thirteen at the time of these acts. The [petitioner,] her father, touched her
      vagina, chest, and buttocks when she visited him in Memphis. [Victim Two]
      stated that he digitally penetrated her vagina “many times,” he performed oral
      sex on her, and he also engaged her in penile intercourse more than three
      times. . . . .

              Angela Matthews, the victims’ mother, testified that she had allowed
      her two oldest children, [Victims One and Two,] to visit their father, the
      [petitioner,] in Memphis. Prior to 2004, she had no worries about the
      [petitioner] and their children. She described her relationship with the
      [petitioner] as “really good” and said he was one of her best friends. After
      Thanksgiving 2004, her daughters came to her and described their problems
      with the [petitioner]. Matthews stated that, prior to learning of the situation,
      she witnessed [Victim Two’s] behavior change drastically: [Victim Two] had
      been outgoing and no longer was, and her grades and behavior both declined.
      [Victim One] asked not to go to Memphis anymore, but she would not explain
      why.

             ....



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               Josephine Anderson, the mother of the [petitioner’s] daughter, T.H.,
       who was fifteen at the time of these crimes, testified that T.H. was frequently
       at the [petitioner’s] house, often when [Victim’s One and Two] were also
       there. One time, T.H. arrived home with a “hicky,” which she attributed to the
       [petitioner]. Anderson, however, thought nothing of it. . . . .

               T.H. testified that she visited her father, [the petitioner,] when her
       sisters, [Victims One and Two,] were at his house. She recalled a card game
       where players who lost were required to remove an article of clothing. She,
       her two sisters, and the [petitioner] all played; they all ultimately removed all
       their clothes. After the card game, the [petitioner] asked T.H. to touch his
       penis, which she did. T.H. stated that the [petitioner] touched her vagina more
       than once with his fingers, and once with his mouth. Additionally, the
       [petitioner] touched her breasts and buttocks, and he gave her a “hicky.” She
       stated she did not initially tell her mother because she was scared. . . .

State v. Tony Hoover, No. W2007-00326-CCA-R3-CD (Tenn. Crim. App. at Jackson, Jan.
7, 2008). Based upon the above conduct with regard to Victims One and Two, the petitioner
entered open Alford pleas to two counts of rape and two counts of incest. He was not
criminally charged with regard to his acts against T.H.

       A sentencing hearing was subsequently conducted by the trial court. At the hearing,
the petitioner, on the advise of trial counsel, waived his ex post facto rights and elected to be
sentenced pursuant to the 2005 amendments to the Sentencing Act. The trial court then
determined that the petitioner was a Range I offender and that he had a previous history of
criminal convictions, a D.U.I., but placed little weight on that factor. Id. However, the court
did consider the unrefuted testimony of T.H. regarding the petitioner’s actions against her
as prior criminal conduct. Id. Additionally, the court applied the enhancement factors that
the offenses were committed to gratify the petitioner’s desire for pleasure or excitement. Id.
The trial court also applied in mitigation: (1) that the petitioner’s conduct neither caused nor
threatened serious bodily injury; (2) that the petitioner pled guilty rather than going to trial;
and (3) his lack of a significant criminal record and his employment. Id. The trial court then
ordered that the petitioner was to be sentenced to ten and one-half years for each rape and
to four years for each incest conviction. Based upon the application of consecutive
sentencing, the petitioner was ordered to serve an effective twenty-one-year sentence in the
Department of Correction. Id. The petitioner appealed to this court, challenging only the
consecutive nature of his sentences.         Thereafter, a panel of this court affirmed the
convictions and sentences as entered, concluding that the multiple instances of the
petitioner’s sexual penetration over a number of years which resulted in emotional damage
warranted consecutive sentences. Id.

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       Next, the petitioner filed a premature pro se petition for post-conviction relief. He
subsequently withdrew the petition and later timely re-filed the pro se petition with the court,
with the grounds for relief being that he was denied his right to the effective assistance of
counsel and that his convictions were based on a violation of the privilege against self-
incrimination. Following the appointment of counsel, an amended petition was filed, which
added as a ground for relief that the petitioner’s pleas were involuntarily entered without his
understanding the nature and consequences of the pleas.

        An evidentiary hearing was then conducted, and both the petitioner and trial counsel
offered testimony. The petitioner testified that he had met with trial counsel at least twice
prior to trial, as well as at all court dates. He acknowledged that he had been provided with
discovery, which he reviewed himself and with trial counsel. Moreover, the petitioner
acknowledged that trial counsel had interviewed the State’s witnesses, investigated the
allegations made in the indictment, reviewed the indictment with him, and filed pretrial
motions on his behalf. The petitioner also recalled that, early in the prosecution of his case,
trial counsel communicated an offer from the State to plead guilty to the two rape charges,
with the incest charges being dropped, and receive two concurrent eight-year sentences. The
petitioner stated at the hearing that he rejected this offer. However, on the date of trial, the
petitioner stated that he now wanted to accept the previously rejected offer. The State then
informed the petitioner in open court that the offer was no longer available, and the petitioner
was allowed time to discuss his options with trial counsel.

       The petitioner testified that, at this point, his “mind went blank.” He acknowledged
discussing the options with trial counsel and, further, testified that counsel “gave [him] the
reassurance it would be eight years.” Based upon this understanding alone, the petitioner
claims he then agreed to enter the open Alford pleas to all counts of the indictment. He also
opined that trial counsel never mentioned the possibility of consecutive sentencing.
However, he did acknowledge that the trial court, on the record, had reviewed with him the
possibility that the sentences could be ordered to be served consecutively.

       The petitioner testified that he vaguely remembered two sentencing hearings which
took place in his case. He further recalled that, prior to the second hearing, trial counsel had
him sign a document entitled “Waiver of Ex Post Facto Protections.” According to the
petitioner, he had no idea what the document was and, further, when he asked trial counsel,
she informed him to “sign it, it will not affect you.” According to the petitioner, trial counsel
told him that he would “still be Range One, eight years.”

       Trial counsel also testified at the hearing and stated that she recalled speaking with
the petitioner over twenty times during the course of her nineteen-month representation of
the petitioner. She opined that she provided the petitioner with discovery and read over

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witness statements with him on numerous occasions. Trial counsel also testified with regard
to her efforts as to the victims’ sexual history, stating that, in fact, she was successful at
suppressing evidence that one of the victims had been diagnosed with herpes, which the
victim attributed to the petitioner. She also testified with regard to her unsuccessful efforts
to get the petitioner’s statements to the police suppressed.

        Trial counsel testified that in the course of the prosecution, the State offered the
petitioner a plea agreement which would result in an effective ten-year sentence on all
charges. Trial counsel testified that she successfully negotiated with the State and got the
offer reduced to an effective eight-year sentence. However, when she presented the offer to
the petitioner, he rejected the deal. Trial counsel also recalled that she explained in depth to
the petitioner that he would be facing a possible effective sentence of thirty-six years.
Counsel further recalled that on the day the trial was to begin, the petitioner decided to accept
the State’s offer. However, by this time, the State had withdrawn the offer of eight years.
Trial counsel specifically testified that she never informed the petitioner that, after his
rejection, the offer could be revived. She testified that she believed that the petitioner
understood this at the time of his rejection of the offer. Trial counsel also testified that, prior
to his accepting the open plea agreement, she again reviewed his possible exposure. She
further denied that she had told the petitioner that he would get an eight-year sentence if he
accepted the open plea agreement.

        Based upon the dates on which the offenses were committed and the date the
petitioner was being sentenced, trial counsel recognized that the petitioner could be
sentenced under either the 2005 amendments or the prior law. She testified that she was
aware that in order to be sentenced under the amended law, execution of a waiver of ex post
facto protections would be required. According to trial counsel, she spoke with her
colleagues in the public defender’s office regarding which law should be utilized in the
petitioner’s case. She testified that they advised her, based on the facts of the case, that “it
was a coin toss.” Trial counsel testified that she discussed the various options with the
petitioner and the ramifications of signing the waiver. She specifically testified that the
petitioner appeared to understand the waiver which he signed when he elected to be
sentenced under the amended sentencing law. Trial counsel acknowledged that, had the
petitioner elected to be sentenced under prior law, the trial court would have been precluded
from enhancing the sentences based upon a finding that the offenses were committed to
gratify the petitioner’s desire for pleasure or excitement.

       After hearing the evidence presented, the post-conviction court found that the
petitioner had failed to show his entitlement to relief and denied the petition. This timely
appeal followed.



                                                -5-
                                           Analysis

        On appeal, the petitioner contends that his guilty pleas were not knowingly and
voluntarily entered because he was denied the effective assistance of counsel. In evaluating
the knowing and voluntary nature of a guilty plea, the United States Supreme Court has held
that “[t]he standard was and remains whether the plea represents 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 making this determination, the reviewing court must look
to the totality of the circumstances. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App.
1995); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990).
Indeed, a

       court charged with determining whether . . . pleas were “voluntary” and
       “intelligent” must look to various circumstantial factors, such as the relative
       intelligence of the defendant; 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).

       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
assistance necessarily implicate that guilty pleas be voluntarily and intelligently made. Hill
v. Lockhart, 474 U.S. 52, 56 (1985) (citing Alford, 400 U.S. at 31).

       To succeed in a challenge for ineffective assistance of counsel, a petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded of
attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under
Strickland v. Washington, 466 U.S. 668, 687 (1984), the petitioner must establish (1)
deficient representation and (2) prejudice resulting from the deficiency. In the context of a
guilty plea, to satisfy the second prong of Strickland, the 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.” Lockhart, 474 U.S. at 59; see also Walton v. State,
966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). The petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a
sound, but unsuccessful, tactical decision made during the course of the proceeding. Adkins
v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This deference to the tactical

                                               -6-
decisions of trial counsel, however, is dependant upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).

        The issues of deficient performance by counsel and possible prejudice to the defense
are mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A
trial court’s findings of fact underlying a claim of ineffective assistance of counsel are
reviewed on appeal under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d). However, conclusions of
law are reviewed under a purely de novo standard, with no presumption of correctness. Id.
at 458.

I. Ex Post Facto Protections

        The petitioner contends, as his only ground for ineffective assistance of counsel, that
trial counsel provided ineffective assistance by advising him to waive his ex post facto
protections and be sentenced pursuant to the 2005 amended sentencing law. Again, we note
that the petitioner’s argument regarding ineffective assistance of counsel is relevant only to
the extent that it affects the voluntariness of the pleas. The petitioner’s argument makes no
reference to the effect of trial counsel’s action upon his decision to plead guilty. Rather, he
simply contends that trial counsel was deficient because the decision to proceed under the
2005 amended act resulted in a longer sentence, thus, establishing prejudice. Although
somewhat misplaced, in the interest of completeness and finality, we will nonetheless address
the petitioner’s specific contentions.

        The petitioner is correct in his recitation of the relevant caselaw provisions. Under the
pre-2005 statutory sentencing scheme, the trial court was required to begin at the presumptive
sentence within the applicable range and then to increase or decrease the sentence based upon
the finding of enhancement or mitigating factors. Carter, 254 S.W.3d at 342. For all felony
sentences, the presumptive sentence was the minimum within the range, except for Class A
felonies, which were to start at the mid-point in the range. T.C.A. § 40-35-210(c). The
weight the trial court afforded any applicable enhancement and mitigating factors was left
to the trial court’s discretion. Carter, 254 S.W.3d at 342.

       However, as is now well established in our caselaw, the pre-2005 sentencing act was
held unconstitutional, as it violated a defendant’s constitutional right to a jury trial. In
Blakely, the United States Supreme Court held that, “‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” Blakely,

                                               -7-
542 U.S. at 301 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Thus the
“statutory maximum” to which a trial court may sentence a defendant is not the maximum
sentence after application of appropriate enhancement factors, but rather, other than the fact
of a prior conviction, the “maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.” Id. at 303. As such, under
Blakely, the “statutory maximum” sentence which may be imposed is the presumptive
sentence applicable to the offense. See id. The presumptive sentence may be exceeded
without the participation of the jury only when the defendant has a prior conviction or when
an otherwise applicable enhancement factor was reflected in the jury’s verdict or was
admitted by the defendant. In State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (Gomez II), our
supreme court, after much litigation, recognized that “to the extent the [1989 Criminal
Sentencing] Reform Act permitted enhancement based on judicially determined factors other
than the fact of a prior conviction, it violated the Sixth Amendment.” Gomez II, 239 S.W.3d
at 740.

        There is no dispute in this case that the petitioner was entitled to elect which law he
would be sentenced under. The 2005 public acts provided that a defendant tried after the
effective date of June 7, 2005, for crimes committed after July 1, 1989, and before the act’s
effective date could elect to be sentenced under the 2005 act by executing a waiver of their
ex post facto protections. Nor is there a dispute in this case that the petitioner did, in fact,
execute such a waiver and was sentenced under the amended law. His argument, however,
is that trial counsel was ineffective for advising him to do so because it resulted in longer
sentences, as the trial court was able to apply the now discretionary enhancement factors to
increase the sentence lengths. Specifically, the petitioner asserts that the trial court could not
have utilized the “sexual gratification or pleasure” factor and, further, that the court could
not have relied upon the testimony of the victim’s half-sister in its weighing of prior criminal
conduct not charged if he had been sentenced under the propr law.

        While we understand the jest of the petitioner’s argument and note some validity in
that the pre-2005 law would have allowed only application of the prior criminal history
enhancement factor, we cannot conclude that he has established his entitlement to relief on
the issue. Trial counsel testified that she investigated the pros and cons of sentencing under
both the prior and amended versions of the law. Moreover, we would note that, at the time
of sentencing, the law applicable in Tennessee was State v. Gomez, 163 S.W.3d 632, 649-50
(Tenn. 2005) (“Gomez I”), which held that our sentencing structure did not run afoul of the
Sixth Amendment. In light of this, as well as trial counsel’s research into the matter, we
cannot conclude that her advice to the petitioner would fall “outside the range of reasonable”
at the time. Counsel did not have the benefit of Gomez II, decided eight months after this
case, in which the Tennessee Supreme Court overruled their decision in Gomez I and found
that Blakely did, in fact, apply. We note that in reviewing counsel’s conduct, a “fair

                                               -8-
assessment . . . requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.” Nichols v. State, 90 S.W.3d 576, 587
(Tenn. 2002). As such, based on the facts here, we are hard pressed to conclude that trial
counsel rendered deficient performance in this case.

       Moreover, with regard to prejudice, we note that the petitioner has failed to present
an argument which would definitely conclude that he would have received a shorter sentence
under the prior law. While the trial court would have been precluded from use of the “sexual
pleasure or gratification factor,” the court could still have applied the factor for prior criminal
history and determined the appropriate weight to give it under the circumstances.
Additionally, while the petitioner’s argument focuses on that the court could not have
considered the uncharged sexual conduct against the petitioner’s third daughter because it
was not admitted or found by a jury, it ignores that the court could have considered, and put
great weight on, the petitioner’s admitted history of alcoholism and illicit drug use. The
petitioner has simply failed to carry his burden in this case.

II. Voluntary and Knowing Plea

       The petitioner also contends that his guilty pleas were not entered knowingly and
voluntarily because he lacked an understanding of the nature and consequences of the pleas.
Specifically, he bases his argument on the fact that the State withdrew the previously rejected
argument on the day of trial when the petitioner had decided to accept it. He contends that
his “mind went blank” and that he was not capable of understanding what was transpiring
or of making a reasoned decision on whether to proceed or enter open pleas. Finally, he
asserts that he would have not accepted the pleas had trial counsel not told him he would
receive an eight-year sentence if he accepted the agreement or if she had explained the
possibility of consecutive sentencing.

        However, the argument that his “mind went blank” does not preponderate against the
findings of the post-conviction court that the pleas were entered appropriately. The transcript
of the guilty plea hearing reflects that the petitioner was informed of charges against him, the
potential sentencing exposure he faced, and the range of punishments for the charged
offenses by trial counsel. Additionally, the record reflects that the trial court reiterated the
explanations given. The petitioner responded on the record that the pleas were being entered
voluntarily.

       Moreover, trial counsel testified at the sentencing hearing that, prior to the hearing,
she had also explained to the petitioner the potential exposure he faced. Additionally, she
specifically stated that she never indicated to the petitioner that the original eight-year-

                                                -9-
sentence offer could be revived. She testified that “[i]n no way did I ever tell him he would
get eight again. I never told him that.”

        Based upon this evidence, the post-conviction court concluded that the petitioner
wanted to enter the guilty pleas. The court went on to find that trial counsel had spoken with
her client and discussed all options, as well as the ramifications of entering the pleas. Again,
we must conclude that nothing in the record preponderates against this finding that the pleas
were entered knowingly and voluntarily. The petitioner stood before the court and, under
oath, stated that he was entering the pleas voluntarily and knowingly. He cannot now
repudiate that statement merely by asserting that his “mind went blank.” As such, the
petitioner has not established his entitlement to relief.

                                       CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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