        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 18, 2013

            WILLIE LEWIS TOLBERT v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                         No. 100064    Steven Sword, Judge


                No. E2013-01114-CCA-R3-PC - Filed January 27, 2014


Petitioner, Willie Lewis Tolbert, pleaded guilty to two counts of robbery, one count of
carjacking, and one count of unlawful possession of a weapon. Pursuant to petitioner’s plea
agreement, the trial court imposed a sentence of eight years. Petitioner applied for probation,
which the trial court denied, and the trial court ordered petitioner to serve his sentence in
confinement. Petitioner filed the instant petition for post-conviction relief, in which he
alleged that he received ineffective assistance of counsel and that his guilty plea was not
entered knowingly, voluntarily, and intelligently. Following an evidentiary hearing, the post-
conviction court denied relief. On appeal, petitioner argues that he received ineffective
assistance of counsel when trial counsel: (1) failed to properly communicate with petitioner
prior to his guilty plea submission hearing; (2) failed to adequately advise petitioner
regarding whether he would receive probation; and (3) made an incorrect prediction that
petitioner’s case would be dismissed in general sessions court. He further argues that these
errors rendered his guilty plea involuntary. After our review of the parties’ briefs, the record,
and the applicable law, we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
N ORMA M CG EE O GLE, J., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Willie Lewis Tolbert.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.



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                                           OPINION

                                             I. Facts

       Petitioner was indicted for two counts of aggravated robbery, two counts of
carjacking, and one count of employing a firearm during the commission of a dangerous
felony. The trial court conducted petitioner’s guilty plea submission hearing on December
16, 2011.

                             A. Guilty Plea Submission Hearing

       According to the prosecutor’s recitation of the factual bases underlying the pleas, on
August 30, 2011, at 6:25 a.m., the victims, Alonzo Williams and Tyrone Colbert, were
driving out of a parking lot. Petitioner and Michael Tavon Cook approached their car,
produced weapons, made them get out of the car, took property from Mr. Williams, and
drove away in the victims’ car. The car was later recovered in the parking lot of an
apartment complex. In a separate incident later that day, Mr. Cook threatened Mr. Williams
with a gun.

        After the court explained petitioner’s charges and the plea agreement, petitioner
affirmed that he agreed with the facts of his case and that he understood his plea agreement,
which indicated that he agreed to an eight-year sentence. Petitioner also acknowledged that
he was applying for probation but that he understood that the trial court would determine
whether to grant his request. He acknowledged that he had a right to plead not guilty, the
right to a jury trial, the right to present and confront witnesses, and the right to testify or not
testify at trial, but petitioner chose to waive those rights. Petitioner stated that he was
satisfied with his attorney’s performance and that he had no questions regarding his
agreement or his rights. Petitioner also acknowledged his signature on the plea agreement
and affirmed that he understood his plea had to be voluntarily entered. Petitioner pleaded
guilty to two counts of robbery, one count of carjacking, and one count of unlawful
possession of a weapon.

                                 B. Post-Conviction Hearing

       Petitioner filed a petition for post-conviction relief on August 9, 2012, which was
amended on January 23, 2013. The post-conviction court held an evidentiary hearing on
April 8, 2013.

      Petitioner was the only witness to testify at the evidentiary hearing. He stated that trial
counsel represented him in general sessions court, that he discussed the allegations against

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him with trial counsel, and that he understood the nature of his charges. The general sessions
court conducted a preliminary hearing and sent petitioner’s case to the grand jury. Petitioner
explained that he did not expect the case to be sent to the grand jury because trial counsel had
opined that petitioner’s case would be dismissed in general sessions court.

        Petitioner testified that he was indicted by the grand jury and that his case was moved
to criminal court. Petitioner stated that he wanted trial counsel to attempt to suppress all of
the evidence against him but that she did not file a motion in that regard. He also asserted
that trial counsel said that there was no probable cause to arrest him and that she did not
understand why the general sessions court judge sent his case to the grand jury. He stated
that he called trial counsel “several times” and “wrote her letters” after his case was pending
in criminal court but that trial counsel did not respond. He explained that after his case was
in criminal court, he did not have the opportunity to speak with trial counsel until the day he
accepted his plea agreement. Petitioner was incarcerated while his case was pending in
criminal court.

        He testified that on the day he accepted his plea agreement, trial counsel told him that
he would receive eight years on probation under the agreement. He asserted that trial counsel
did not discuss with him the sentencing ranges for each of his original charges or the charges
in his plea agreement and that he did not understand the ranges for each charge. He stated
that he understood he was receiving eight years on probation for all of his charges combined.
He also stated that trial counsel did not discuss the possibility of consecutive sentencing.
Petitioner was released from jail the day he entered his plea without having to post a bond.
He explained that he believed he was “automatically being placed on probation” and that he
would not have pleaded guilty if he had known that he had to apply for probation.

        Petitioner testified that he did not remember the trial court’s informing him at the
guilty plea submission hearing that the trial court would make the final determination
regarding probation. He stated that prior to the hearing, trial counsel directed him to answer,
“Yes, sir,” to all of the judge’s questions. Petitioner said he was not “paying attention” to
the trial court. Instead, he was “just doing what [trial counsel] told [him] to do.” Petitioner
also testified that he did not read his plea agreement and that trial counsel “just told [him] to
sign it.” He stated that trial counsel told him that he was “signing for probation” and that
trial counsel did not read the document to him. Petitioner asserted that he was not guilty of
the charges and that he had a chance of being found not guilty at trial. He testified that he
pleaded guilty because he did not “feel safe going to trial with [trial counsel] representing
[him].” He explained that trial counsel was “negligent” and “failed to do anything that [he]
asked her to do.” He stated that trial counsel failed to respond to his telephone calls and
letters, as well as his sister’s telephone calls. He also stated that trial counsel’s prediction
that his case would be dismissed in general sessions court was incorrect. He said that he was

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“scared” to go to trial with trial counsel representing him and that if someone else had been
representing him, he would not have pleaded guilty.

        On cross-examination, petitioner conceded that when these crimes occurred, he was
on probation for a “weapons possession charge.” He stated that at the preliminary hearing,
he remembered the victims testifying about a carjacking, two aggravated robberies, and an
aggravated assault. He also recalled that these two men could not identify him at the hearing,
that the State presented an investigator as a witness, and that the investigator played a tape
of the witnesses’ interview. However, petitioner stated that he did not remember the
witnesses’ identifying him in the recorded interviews. Petitioner said that when the State
presented him with his plea agreement, he believed he was only pleading guilty to three
offenses rather than the four offenses in the plea agreement. He conceded that his plea
agreement explained the agreed-upon sentences for the offenses to which he was pleading
guilty and contained the language “apply for probation.” He also acknowledged his signature
on the plea agreement. He conceded that it was his choice not to listen to the judge during
his guilty plea proceeding and that he had the opportunity to speak with the judge.

        Following the hearing, the post-conviction court denied the petition for post-
conviction relief. The court stated that trial counsel contested petitioner’s case in general
sessions court. She requested a preliminary hearing and cross-examined the State’s
witnesses. The post-conviction court stated that even if trial counsel had advised petitioner
that his case would likely be dismissed in general sessions court, that advice did not render
trial counsel deficient. The court found significant the language in petitioner’s plea
agreement and the trial court’s colloquy regarding petitioner’s agreement that he would
“apply” for probation. The post-conviction court discredited petitioner’s testimony regarding
both the actions of trial counsel and petitioner’s reasons for pleading guilty. The court found
that trial counsel was not deficient and denied petitioner relief.

                                         II. Analysis

       On appeal, petitioner argues that trial counsel was ineffective because she failed to
properly communicate with him prior to his guilty plea submission hearing, failed to
adequately advise petitioner regarding whether he would receive probation, and made an
incorrect prediction that petitioner’s case would be dismissed in general sessions court. He
also argues that absent trial counsel’s ineffective assistance of counsel, he would not have
pleaded guilty. The State responds that the post-conviction court properly denied the petition
for post-conviction relief. We agree with the State.

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right

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guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,
562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing 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)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

        The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court held:

       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .

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       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).

        To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

        Petitioner argues that trial counsel was deficient in her performance, thereby forcing
him into his guilty pleas. First, petitioner alleges that trial counsel failed to properly
communicate with him. However, prior to the date of petitioner’s guilty plea submission
hearing, petitioner stated that trial counsel discussed his charges with him in general sessions
court. Trial counsel also requested a preliminary hearing and cross-examined the State’s
witnesses in petitioner’s presence. Finally, the record is clear that petitioner was able to talk
with trial counsel on the day he entered his plea agreement. Petitioner emphasizes that trial
counsel did not communicate with him after his case was moved to criminal court. However,
when denying relief on the basis of this claim, the post-conviction court determined that
petitioner’s allegations lacked credibility. We will not disturb that conclusion on appeal.
Dellinger, 279 S.W.3d at 292. Moreover, appellant has failed to establish prejudice
“[b]ecause . . . petitioner has failed to satisfactorily prove how this lack of communication
might have affected the results of the trial, no relief can be granted on this basis.” Brimmer
v. State, 29 S.W.3d 497, 511 (Tenn. Crim. App. 1998). Petitioner is not entitled to relief on
this claim of error.

       Petitioner also asserts that trial counsel failed to adequately advise him regarding
whether he would receive probation and made an incorrect prediction that his case would be
dismissed in general sessions court. However, the record reflects that petitioner signed the
plea agreement, which clearly stated that petitioner would be required to apply for probation.
The trial court also stated in the guilty plea submission hearing that it would make the final

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determination regarding probation, and petitioner assented. When asked by the trial court
if he was satisfied with his trial counsel, petitioner answered affirmatively. In addition, the
post-conviction court determined that petitioner’s allegations regarding trial counsel’s actions
and statements lacked credibility. We will not disturb that conclusion on appeal. Dellinger,
279 S.W.3d at 292. To prove that counsel’s performance was deficient, petitioner must
establish that his attorney’s conduct fell below an objective standard of “‘reasonableness
under prevailing professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State,
202 S.W.3d 106, 116 (Tenn. 2006)). We conclude that petitioner has failed to prove that trial
counsel’s performance was deficient, and he is without relief on this issue.

       Petitioner also argues that his guilty pleas were not entered knowingly, voluntarily,
and intelligently due to his trial counsel’s ineffective assistance of counsel. A guilty plea
must be entered knowingly, voluntarily, and intelligently. Lane, 316 S.W.3d at 562; see
North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44
(1969). If a plea is not knowingly, voluntarily, and intelligently entered, the guilty plea is
void because appellant has been denied due process. Lane, 316 S.W.3d at 562 (citing
Boykin, 395 U.S. at 243 n.5). To make such a determination, the court must examine
“whether the plea represents a voluntary and intelligent choice among the alternative courses
of action open to the defendant.” Id. Courts should consider the following factors when
ascertaining the validity of a guilty plea:

       (1) the defendant’s relative intelligence; (2) the defendant’s familiarity with
       criminal proceedings; (3) the competency of counsel and the defendant’s
       opportunity to confer with counsel about alternatives; (4) the advice of counsel
       and the court about the charges 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. (quoting Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006)). “[A] plea is not
voluntary if it results from ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or]
subtle or blatant threats.’” Id. at 563 (quoting Blankenship v. State, 858 S.W.2d 897, 904
(Tenn. 1993)). Thus, the transcript of the plea colloquy must affirmatively show that a
defendant’s decision to plead guilty was both voluntary and knowledgeable. Id.

       Petitioner does not contest that the trial court properly conducted his guilty plea
submission hearing but, rather, states that his pleas were involuntary because his trial counsel
told him that he would automatically receive probation. As stated above, petitioner has failed
to prove that trial counsel was ineffective, and the post-conviction court specifically
discredited petitioner’s assertion that trial counsel informed petitioner that he would
automatically receive probation. We will not disturb that conclusion on appeal. Dellinger,

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279 S.W.3d at 292. Moreover, petitioner’s testimony at the post-conviction hearing was in
direct conflict with his testimony at the guilty plea submission hearing. “A petitioner’s
testimony at a guilty plea hearing ‘constitute[s] a formidable barrier’ in any subsequent
collateral proceeding because ‘[s]olemn declarations in open court carry a strong
presumption of verity.’” Bruce S. Rishton v. State, No. E2010-02050-CCA-R3-PC, 2012 WL
1825704, at *17 (Tenn. Crim. App. May 21, 2012) (quoting Blackledge v. Allison, 431 U.S.
63, 74 (1977)). In this case, the post-conviction court implicitly credited petitioner’s
testimony during the guilty plea submission hearing over his testimony at the post-conviction
hearing. In sum,

       [t]he evidence does not preponderate against the findings of the
       post-conviction court. It appears the petitioner is suffering from a classic case
       of ‘Buyer’s Remorse,’ in that he is no longer satisfied with the plea for which
       he bargained. A plea, once knowingly and voluntarily entered, is not subject
       to obliteration under such circumstances.

Robert L. Freeman v. State, No. M2000-00904-CCA-R3-PC, 2002 WL 970439, at *2 (Tenn.
Crim. App. May 10, 2002). Based on the record and the credibility determinations of the
post-conviction court, petitioner has failed to prove that his guilty pleas were not entered
knowingly, voluntarily, and intelligently due to errors by trial counsel.

                                      CONCLUSION

      Based on the parties’ briefs, the record, and the applicable law, we affirm the
judgment of the post-conviction court.




                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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