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

                   KEITH COLLINS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                         No. P-28552    John T. Fowlkes, Jr., Judge



                 No. W2008-02235-CCA-R3-PC - Filed November 13, 2009


The petitioner, Keith Collins, pled guilty to possession of more than 0.5 grams of cocaine with the
intent to sell, a Class C felony, and aggravated assault, a Class C felony. He was sentenced to
concurrent sentences of three years on probation as a Range I, standard offender. His probation was
later revoked, and a petition for post-conviction relief followed. On appeal, he argues that counsel
was ineffective and that his guilty pleas were not knowingly and voluntarily entered. After careful
review, we affirm the judgment from the post-conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN , JJ., joined.

Joseph S. Ozment (on appeal), and Sean Muizers and Larry Copeland (at trial), Memphis, Tennessee,
for the appellant, Keith Collins.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Chris West, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

        On September 16, 2003, the petitioner entered pleas of guilty to two Class C felonies and
received a total effective sentence of three years suspended to probation. On May 24, 2004, his
probation was revoked because of several violations of his probation agreement, including a new
charge violation. The petitioner filed a pro se petition for post-conviction relief on June 7, 2004,
alleging that he had not received effective assistance of counsel and that his pleas were not
knowingly, voluntarily, and intelligently entered. He was appointed counsel on June 25, 2004.
Amended petitions for post-conviction relief were filed by counsel, and a hearing was conducted on
December 6, 2007. The petitioner was denied post-conviction relief by written order entered
September 5, 2008. This appeal followed.
        During the hearing on the petition for post-conviction relief, the petitioner testified that
counsel did not meet with him while he was in jail but only met on his court dates. He claimed that
his only conversation with counsel about this case occurred on the day he entered his guilty plea.
He also testified that he did not receive a copy of his discovery materials and that counsel did not
review the materials with him. The petitioner said that counsel told him that he should sign the plea
agreement because the State had enough evidence to put him away for a long time. He testified that
he had no prior offenses and no experience with the court system. He acknowledged that he faced
a potential eight to twelve-year sentence if convicted in a new trial.

       The petitioner testified he told counsel about two witnesses to call at trial. He expected one
witness to claim ownership of the drugs and the other witness, the victim, to explain that he
mistakenly identified the petitioner.

       The petitioner said the trial court reviewed all his rights with him, including the voluntariness
of his pleas. He testified that he pled guilty because he was afraid of spending time in the
penitentiary for his first offense.

        The petitioner testified that he was diagnosed with bipolar disorder in 2001. He told counsel
about the diagnosis, but no mental evaluation was performed prior to entry of the pleas. He did not
release his medical records or mental evaluations as part of the presentence report and averred that
he was in good mental health.

        Counsel testified that he had practiced criminal defense exclusively for twenty years at the
time he represented the petitioner. He spoke with the petitioner on the day he was appointed.
Counsel had received discovery material when he met with the petitioner, and his practice was to
leave a copy of the material with his client. He did not recall specific meetings with the petitioner
except for the forty-five-minute time period he spent reviewing the plea agreement with him.

        Counsel testified that he held the petitioner’s case over until a different case had been
adjudicated so the petitioner could receive probation. He advised the petitioner of his opinion about
the case and the petitioner’s potential exposure in a trial. He denied that he intimidated the petitioner
into a plea and concluded that the petitioner did not need a mental evaluation.

        Counsel did not involve an investigator in the case because the two witnesses the petitioner
mentioned to him were unlikely to testify on the petitioner’s behalf. Both witnesses reported the
petitioner’s crimes, and one witness was the victim of the aggravated assault.

        Following the hearing, the post-conviction court took the petition under advisement. The
court later issued a written order denying relief.

                                               Analysis




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        On appeal, the petitioner argues that the post-conviction court erred in denying his petition
for post-conviction relief. Specifically, he contends that trial counsel was ineffective, thus rendering
his guilty pleas unknowing and involuntary.

        When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the
petitioner bears the burden of proving that (1) counsel’s performance was deficient, and (2) the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings were fundamentally unfair. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). This standard has also been applied to
the right to counsel under Article I, section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989). When a petitioner claims ineffective assistance of counsel in
relation to a guilty plea, the petitioner must prove that counsel performed deficiently, and, but for
counsel’s errors, the petitioner would not have pled guilty but would have, instead, insisted upon
going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the
services be rendered within the range of competence demanded of attorneys in criminal cases. In
reviewing counsel’s conduct, a “fair assessment of attorney performance 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.” Strickland,
466 U.S. at 689, 104 S. Ct. at 2065; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

        The petitioner bears the burden of proving by clear and convincing evidence the factual
allegations that would entitle the petitioner to relief. T.C.A. § 40-30-210(f). This court is bound by
the post-conviction court’s findings of fact unless the evidence preponderates against those findings.
Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

        The petitioner argues that trial counsel was ineffective because he did not adequately
communicate with the petitioner, did not properly investigate the case, and did not secure the
witnesses necessary to defend his case. The post-conviction court accredited the testimony of trial
counsel and determined that he represented the petitioner adequately. The court found that counsel
met with the petitioner and reviewed discovery material with him. Counsel reviewed with the
petitioner his possible sentence exposure and the possible outcome at trial. Counsel also spoke with
the petitioner about the potential witnesses proposed to him and explained that the proffered
witnesses were responsible for notifying police about the petitioner’s crimes. The evidence does not
preponderate against the post-conviction court’s findings. He has failed to demonstrate either that
counsel was deficient or that, but for counsel’s errors, he would have proceeded to trial.

        Further, because the petitioner did not call the proposed witnesses during the post-conviction
hearing, this issue is waived. “When a petitioner contends that trial counsel failed to discover,
interview, or present witnesses in support of his defense, these witnesses should be presented by the
petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990);
see also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a general rule, this is the
only way the petitioner can establish that (1) a material witness existed who could have been

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discovered but for counsel’s negligent investigation of the case; (2) a known witness was not
interviewed; (3) the failure to discover or interview the witness caused him prejudice; or (4) the
failure to present a known witness resulted in the denial of critical evidence which caused the
petitioner prejudice. Black, 794 S.W.2d at 757. Neither the trial court nor this court can speculate
on what a witness’s testimony might have been if introduced by counsel. Id.

        Regarding the voluntariness of the petitioner’s pleas, the petitioner claims that he felt
threatened and intimidated to enter his pleas. However, the post-conviction court accredited the
testimony of counsel that he did not intimidate the petitioner into entering a plea. The petitioner has
not offered any proof that he was intimidated into entering the guilty plea. The petitioner is not
entitled to relief on this issue.

                                             Conclusion

       Based on the foregoing and the record as a whole, we affirm the judgment from the post-
conviction court.



                                                       ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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