        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Jackson October 4, 2011

                BRANDON WATSON v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2008-A-287    Cheryl A. Blackburn, Judge




                 No. M2011-00177-CCA-R3-PC - Filed April 30, 2012


The Petitioner, Brandon Watson, appeals the Davidson County Criminal Court’s denial of
post-conviction relief from his convictions for two counts of aggravated robbery and his
effective eight-year sentence. On appeal, the Petitioner contends that his guilty pleas were
not knowingly and voluntarily entered. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and A LAN E. G LENN, JJ., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Brandon Watson.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

       At the guilty plea hearing on March 2, 2009, the Petitioner agreed that although his
trial was scheduled that day on two counts of aggravated robbery, one count of aggravated
assault, and one count of attempted aggravated assault, he chose to plead guilty to two counts
of aggravated robbery in exchange for the remaining charges being dropped and his being
sentenced to concurrent eight-year terms as a Range I, standard offender. The State
stipulated that they would have shown at a trial that

              on June 24th of 2007[,] Ms. Tanya Carr Spence and Ms. Crystal
              Tate went to 2304 Hammond Drive here in Nashville, Davidson
              County to meet Mr. Ray McKell who . . . said he was going to
               purchase some clothes for them. Once they arrived at that
               location Mr. McKell and the co-defendant, Rodricus Garret,
               both had weapons. They produced those weapons and robbed
               Ms. Spence and Ms. Tate at gunpoint. [The Petitioner] took the
               keys from one of the victims and used those keys to give them
               to Mr. McKell to drive the victim’s car away, which contained
               clothing and cell phones as well.

       Upon questioning by the trial court at the plea hearing, the Petitioner testified that trial
counsel explained the charges and the range of punishment he faced if he went to trial,
including the possibility of consecutive sentencing. He said he understood that the
convictions could be used to enhance his punishment for any future conviction and that the
convictions would remain on his record for the rest of his life. He agreed that counsel
discussed “everything” about his case with him, including the testimony of witnesses at a
codefendant’s hearing and the statements of a codefendant at a guilty plea hearing. He said
he earned his GED certificate and could read. He said that he and counsel read his guilty
plea petition and that he did not have any questions for counsel or the trial court. He said that
he had not taken any medication and that he knew what he was doing. He said he knew that
he could plead not guilty, that he had the right to a jury trial, and that it was his decision
whether to have a trial. He said no one threatened him or promised him anything to enter his
guilty pleas. He said he resolved any previous disagreements he had with counsel’s
representing him.

         The Petitioner testified that he understood that by pleading guilty, he waived his right
to a jury trial, his right to confront and cross-examine witnesses, his right not to incriminate
himself, and his right to appeal his conviction or sentence. He agreed that if a trial were held,
witnesses would have testified to the facts previously recited by the State. He agreed he was
pleading guilty to two counts of aggravated robbery because it was in his best interest. The
trial court accepted the pleas after finding that they were “voluntarily and factually based.”

        The Petitioner filed a pro se petition for post-conviction relief on February 23, 2010,
and an amended petition on April 5, 2010. He alleged that his guilty pleas were not knowing
and voluntary because trial counsel induced him to enter the pleas. He also argued that trial
counsel did not provide effective assistance because counsel failed to investigate and prepare
for trial properly.

       At the post-conviction hearing, trial counsel testified that he worked on the
Petitioner’s case for about one year. He said he appeared at court dates, spoke with the
Petitioner and counsel for the codefendants, filed for and read discovery materials, and
interviewed the victims. He said the Petitioner sent him letters stating that the Petitioner
wanted a new attorney after a codefendant received probation in exchange for agreeing to

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testify in an unrelated murder trial. He said that despite sending these letters, the Petitioner
“would be fine” when they got to court. He agreed he received letters from the Petitioner
asking him to visit the Petitioner. He said he visited the Petitioner if “there was anything
new to discuss,” about five or six times total.

       Trial counsel testified that on the day the Petitioner’s trial was scheduled to begin, the
Petitioner’s mother asked what would happen at the trial and how long of a sentence the
Petitioner could receive. He said that she requested to see the Petitioner and that she met
privately with the Petitioner. When counsel returned to speak with the Petitioner, the
Petitioner had decided to plead guilty. Counsel said the State dismissed the Petitioner’s other
pending case on the condition that he plead guilty in the present case.

        The Petitioner testified that he was unhappy with trial counsel’s representation
because counsel never came to see him. He said that despite sending letters to counsel and
having his family contact counsel, counsel only came to see him once, on the day before the
trial was scheduled to occur, and attempted to convince him to plead guilty. He said counsel
filed a motion for discovery and gave him a transcript but performed no other work on his
case. He said he wrote counsel about ten letters and requested that counsel be removed from
the case. He said that he argued with trial counsel at every court date and that he received
a written reprimand for arguing with trial counsel and pushing counsel’s papers off a table
on March 1, 2009.

        The Petitioner testified that the victims were unable to identify him in a lineup. He
said that he attempted to discuss this with trial counsel but that counsel told him to plead
guilty. He said counsel told him that he could not “beat” the charges because the jury would
not listen to the Petitioner. He said counsel stated that the Petitioner should plead guilty and
presented two “deals” to him, one involving pleading guilty to facilitation of aggravated
robbery and the other involving pleading guilty to aggravated robbery. He did not know if
the “deals” were offers from the district attorney. He said he told counsel that he would not
plead guilty and that he wanted to have a trial because he did not take anything from the
victims, he did not use a weapon during the crime, and the victims could not identify him.
He said counsel again advised him to plead guilty.

       The Petitioner testified that on the morning of the trial, counsel asked him if he
intended to plead guilty and told him that the jury would “automatically” listen to the
victims. He said that he asked to see counsel’s trial materials but that counsel did not show
him any written materials or indicate that he was ready for a trial. The Petitioner said he
spoke with his mother and told her he wanted to have a trial because he did not rob the
victims. He said his mother told him to plead guilty because he could receive a longer
sentence if he went to trial. He thought counsel told his mother that the Petitioner could face
an “outrageous” sentence if he went to trial and that the Petitioner should plead guilty. The

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Petitioner said that he was “weak” for his mother and that he agreed to plead guilty after
speaking with her. He said he pled guilty because counsel was not prepared for trial and
counsel told him to plead guilty. He said he wanted to overturn his guilty pleas.

       On cross-examination, the Petitioner agreed that there was a hearing on his request
to remove trial counsel and that the trial court denied the request. He agreed that he made
previous statements admitting he was present during the crime but said that he did not “play
any part” in the crime. When asked what counsel failed to do in preparing for a trial, the
Petitioner said counsel did not consider the transcript of the Petitioner’s probation violation
hearing, which the Petitioner thought contained the most helpful evidence for his case; failed
to prepare for trial adequately; and failed to communicate with the Petitioner. He said that
at the probation violation hearing, a victim did not identify him and instead presented
rehearsed testimony and fabricated allegations. He said that the victim’s testimony at his
probation revocation hearing was inconsistent with her statement to the police and that his
defense at a trial would have been that the victim was lying. He said the victim should not
have been allowed to testify at his probation revocation hearing because “she didn’t know
who [he] was.” On questioning by the trial court, the Petitioner agreed that he knew the
victim had a right to be at the hearing because the State subpoenaed her and that he heard the
victim’s testimony, including her description of the crime and her identification of the
assailants.

       The Petitioner testified that he did not think trial counsel was prepared for a trial
because counsel did not have anything written down. He said he knew counsel did not have
any written materials because he thought they would have discussed anything counsel had
written. He said that counsel was not prepared to cross-examine the victims and that counsel
ignored his defense that a victim was not credible. He agreed counsel had a copy of the
transcript of the probation revocation hearing that could have been used to cross-examine the
victims. He said counsel should have filed more motions, including requests for more
detailed discovery materials and a motion to suppress a statement that he made to the police.
He also said counsel never spoke with him or told him what was happening with the case.
He said that counsel came to see him one time and that whenever he saw counsel in court,
they argued.

       The Petitioner agreed that the trial court asked him several questions during the guilty
plea hearing, including a question regarding whether the Petitioner had resolved any previous
problems he had with trial counsel. He agreed he did not tell the court that he was unhappy
with counsel and said he did not mention the problem because he was following counsel’s
instructions. He said counsel told him to plead guilty and then “file for a post-conviction.”
He agreed he spoke with his mother before pleading guilty and said she told him to plead
guilty. He agreed his mother convinced him to plead guilty. He knew he could have
received a significantly longer sentence if he had a trial.

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       Upon questioning by the trial court, the Petitioner agreed that he knew a codefendant
planned to testify against the Petitioner if he went to trial, but he said that the codefendant
would not have told the jury that the Petitioner robbed the victims. He agreed he read
materials that explained the concept of criminal responsibility for the conduct of another.
He agreed that before he pled guilty, he knew that witnesses would have placed him at the
scene of the robbery and testified regarding his involvement. He agreed that he pled guilty
because counsel told him to do so and that he did not plead guilty until after speaking with
his mother. When asked by the trial court if he pled guilty because it was in his best interest,
the Petitioner responded, “Yes, ma’am.”

       Trial counsel was recalled by the State and agreed that the defense at a trial would
have been that a victim was not being truthful. He said that he was prepared to cross-
examine the victim and that he intended to point out discrepancies between the victim’s
statement to the police and her previous testimony at the Petitioner’s probation revocation
hearing. He said he also intended to present evidence showing that the Petitioner’s
codefendants sought to blame each other. He said that he was ready for a trial and that he
was “as shocked as anybody” that the Petitioner pled guilty. He said that the Petitioner did
not discuss suppressing his statements but that the Petitioner wanted counsel to suppress a
victim’s testimony from the probation revocation hearing. He told the Petitioner that the
victim had a right to testify at the trial and that suppressing her pretrial testimony was not
possible.

       On redirect examination, trial counsel testified that the Petitioner wanted him to adopt
the Petitioner’s “logic and thinking.” He said that he had a duty to be objective and that he
explained the strengths and weaknesses of the case to the Petitioner. He encouraged the
Petitioner to plead guilty because the Petitioner faced a potential sentence of more than
twenty years at a trial. He said he did not force the Petitioner to plead guilty.

        The trial court denied the petition for post-conviction relief. It found that trial counsel
gave credible testimony and that counsel prepared for a trial by visiting the Petitioner five
or six times, reviewing discovery materials, interviewing the victims, and discussing trial
strategy. The court noted that the Petitioner admitted he pled guilty because it was in his best
interest and found that his admission and the transcript of the guilty plea hearing refuted the
Petitioner’s claim that his pleas were not knowing and voluntary. This appeal followed.

        The Petitioner contends that his pleas were not knowingly and voluntarily entered
because they were the result of pressure from trial counsel and the Petitioner’s mother. The
State contends that the trial court properly denied the petition because the Petitioner failed
to establish that his guilty pleas were involuntarily and unknowingly entered. We agree with
the State.



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        The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006);
Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates
against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Post-conviction
relief may only be given if a conviction or sentence is void or voidable because of a violation
of a constitutional right. T.C.A. § 40-30-103 (2006).

       When 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). The court reviewing the
voluntariness of a guilty plea must look to the totality of the circumstances. See State v.
Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). The circumstances include

               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) (citing Caudill v. Jago, 747 F.2d
1046, 1052 (6th Cir. 1984)). A plea resulting from ignorance, misunderstanding, coercion,
inducement, or threats is not “voluntary.” Blankenship, 858 S.W.2d at 904.

        The record reflects that the Petitioner had a GED certificate and could read. It also
reflects that he was on probation when these crimes occurred and was familiar with criminal
proceedings. At the guilty plea hearing, the Petitioner testified that trial counsel explained
the charges and the higher range of punishment he faced if convicted at a trial, including the
possibility of consecutive sentencing. He agreed counsel discussed “everything” about his
case with him.
        The Petitioner and trial counsel read his petition to plead guilty, and the Petitioner did
not have any questions for counsel or the trial court. He said that he had not taken any
medication and that he knew what he was doing. He knew that he could plead not guilty, that
he had the right to a jury trial, and that it was his decision whether to have a trial. He
understood that by pleading guilty, he waived his right to a jury trial, his right to confront and
cross-examine witnesses, his right not to incriminate himself, and his right to appeal his
conviction or sentence. He said no one threatened him or promised him anything in

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exchange for the guilty plea. He agreed he was pleading guilty to two counts of aggravated
robbery because it was in his best interest.

       At the post-conviction hearing, trial counsel testified that he worked on the
Petitioner’s case for about one year. He met with the Petitioner about five or six times and
explained the strengths and weaknesses of the case to the Petitioner. He said that he was
prepared for a trial and that he was shocked when the Petitioner pled guilty.

        Shortly before the trial was scheduled to begin, the Petitioner’s mother met with the
Petitioner and told him she thought he should plead guilty because he could face a longer
sentence at a trial. The Petitioner agreed that he decided to plead guilty after speaking with
his mother and that he knew he could have received a significantly longer sentence if he had
a trial. In exchange for the guilty plea, the State dismissed the aggravated assault charges
and agreed to concurrent eight-year sentences. When the Petitioner was asked at the post-
conviction hearing if he pled guilty because it was in his best interest, he responded, “Yes,
ma’am.” We conclude that the trial court did not err in finding that the Petitioner failed to
establish that his pleas were not knowingly and voluntarily entered. The Petitioner is not
entitled to relief.

        Based upon the foregoing and the record as a whole, we affirm the judgment of the
trial court.

                                                   ___________________________________
                                                   JOSEPH M. TIPTON, PRESIDING JUDGE




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