        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 October 5, 2010 Session

            LAWRENCE EARL WADE v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Madison County
                        No. C-09-264     Roger Page, Judge




              No. W2009-02663-CCA-R3-PC - Filed December 14, 2010


The petitioner, Lawrence Earl Wade, pled guilty pursuant to a negotiated plea agreement to
first degree murder and especially aggravated robbery. Pursuant to the plea agreement, the
petitioner agreed to a sentence of fifteen years for the robbery charge and to a life sentence
for the murder charge. On appeal from the post-conviction court’s denial of relief, the
petitioner argues that he received ineffective assistance of counsel because his trial counsel
failed to investigate his mental history and that he did not knowingly and voluntarily enter
his guilty pleas. Following our review, we affirm the judgment of the post-conviction court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and C AMILLE R.
M CM ULLEN, JJ., joined.

Magan N. White, Jackson, Tennessee, for the appellant, Lawrence Earl Wade.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; James G. Woodall, District Attorney General; and Benjamin Caldwell
Mayo and Alfred Lynn Earls, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                         OPINION

                                        Background

      The petitioner, Lawrence Earl Wade, pled guilty pursuant to a negotiated plea
agreement to first degree murder and especially aggravated robbery. Pursuant to the plea
agreement, the petitioner agreed to a sentence of fifteen years for the robbery charge and to
a life sentence for the murder charge. On appeal from the post-conviction court’s denial of
relief, the petitioner argues that he received ineffective assistance of counsel because his trial
counsel failed to investigate the extent of his intoxication when he committed the offenses
as well as when he confessed, his past drug use and mental history, and that he did not
knowingly and voluntarily enter his guilty pleas.

                                            Analysis

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). On appeal,
this court is bound by the post-conviction court’s findings of fact unless the evidence
preponderates against those findings. State v. Burns, 6 S.W.3d 450, 461 (Tenn. 1999). Our
review of the post-conviction court’s factual findings is de novo with a presumption that the
findings are correct. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn, 2001). Our review of
the post-conviction court’s legal conclusions and application of law to facts is de novo
without a presumption of correctness. Id.

       When determining the knowing and voluntary nature of the guilty plea, the standard
is “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, 1 S. Ct.
160, 27 L.Ed.2d 162 (1970). See also State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999).
The reviewing court must look to various circumstantial factors, including:

       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). In order for a guilty plea
to be voluntary, the petitioner must have an understanding of the charges against him and the
consequences of pleading guilty, including “the sentence that he will be forced to serve as
the result of his guilty plea and conviction.” Id. at 905. A petitioner’s solemn declaration
in open court that his or her plea is knowing and voluntary creates a formidable barrier in any
subsequent collateral proceeding because these declarations “carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).

      To establish the ineffective assistance of counsel, the petitioner bears the burden of
proving that (1) counsel’s performance was deficient and (2) the deficient performance

                                               -2-
prejudiced the defense rendering the outcome unreliable or fundamentally unfair. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984). See also Arnold
v. State, 143 S.W.3d 784, 787 (Tenn. 2004). Deficient performance is shown if counsel’s
conduct fell below an objective standard of reasonableness under prevailing professional
standards. Strickland, 466 U.S. at 688. See also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). (establishing that representation should be within the range of competence demanded
of attorneys in criminal cases). A fair assessment of counsel’s 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. See also Nichols. v. State, 90 S.W.3d
576, 587 (Tenn. 2002). Deference is made to trial strategy or tactical choices if they are
informed ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982). The fact that a particular strategy or tactical decision failed does not by itself establish
ineffective assistance of counsel. Goad v. State, 938 S.W.2d 363,369 (Tenn. 1996). Once
the petitioner proves that counsel’s representation fell below a reasonable standard, the
petitioner must also prove prejudice. Strickland, 466 U.S. at 694. In relation to a guilty plea,
the petitioner must show a reasonable probability that, but for the errors of his counsel, he
would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart,
474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed.2d 203 (1985); Adkins v. State, 911 S.W.2d 334,
349 (Tenn. Crim. App. 1994).

       In this case, petitioner has failed to meet the burden of proving that his trial counsel’s
performance was deficient by clear and convincing evidence. There is no indication from
the record that the performance of the petitioner’s trial counsel did not meet an objective
standard of reasonableness. The petitioner’s trial counsel did, in fact, seek a mental health
evaluation for the petitioner. The results showed that the petitioner was malingering and that
he was not incapacitated at the time he confessed to police. Further, even if the petitioner
had shown that his trial counsel’s performance was deficient, the petitioner has made no
showing that the deficient performance was prejudicial.

       The petitioner argues that his trial counsel failed to investigate and present any
mitigating factors at his sentencing. However, pursuant to the plea agreement, the petitioner
received the minimum sentence for first degree murder, making any further mitigating factors
unnecessary.

        The petitioner further argues that he did not knowingly and voluntarily enter his guilty
plea. The evidence, however, suggests otherwise. At the plea hearing, the petitioner told the
trial court that he understood the charges against him, the plea agreement, and the range of
punishment for the offenses. The trial court repeatedly asked the petitioner if he understood
what he was doing, and the petitioner stated that he did. When asked if his plea was knowing

                                                -3-
and voluntary, the petitioner answered affirmatively. The petitioner, in declaring that his plea
was knowing and voluntary, has created a formidable barrier that petitioner has failed to
overcome.

      Based on the forgoing reasons, we conclude that the petitioner’s claim is without merit
and we affirm the denial of post-conviction relief.


                                                    ___________________________________
                                                    J.C. McLIN, JUDGE




                                              -4-
