        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 10, 2012

               STEPHEN LEE SCOTT v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                      No. 2006-A-811    Monte Watkins, Judge


                  No. M2011-00539-CCA-R3-PC - Filed June 28, 2012


The Petitioner-Appellant, Stephen Lee Scott, appeals the denial of post-conviction relief,
contending that he received the ineffective assistance of counsel in connection with his guilty
plea because counsel misinformed him regarding the elements of felony murder. Upon
review, we affirm the judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN , J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

Tillman W. Payne, Nashville, Tennessee, for the Petitioner-Appellant, Stephen Lee Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and
Roger Moore, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

        The petitioner was indicted in this case for first degree felony murder, premised on
the underlying felony of attempted murder, and reckless endangerment. On April 27, 2007,
the petitioner entered a guilty plea in the Davidson County Criminal Court to second degree
murder, a Class A felony, and the charge of reckless endangerment was dismissed. Pursuant
to the plea agreement, the trial court sentenced the petitioner to twenty-five years as a Range
I, violent offender. The petitioner timely filed a pro se petition for post-conviction relief.
The petitioner was appointed counsel, and he filed an amended petition. Following an
evidentiary hearing, the post-conviction court entered a written order denying relief.
Although the petitioner did not timely file notice of appeal, this court granted his motion to
waive the thirty-day time requirement for filing such notice under Tennessee Rule of
Appellate Procedure 4(a).
                               FACTUAL BACKGROUND

       Plea Submission Hearing. The State summarized the facts supporting the
petitioner’s guilty plea at the April 27, 2007 plea submission hearing:

       Had this case proceeded to trial the State’s witnesses are available and they
       would have testified on Monday, that on November the 12th, 2005[,] Denise
       Brown was with friends at 600 South Seventh Street. They were in a friend’s
       bedroom on the second floor. They were braiding their hair and they were
       getting ready to go see a movie. Denis[e] Brown was a fifteen-year[-]old
       straight A student at Stratford High School.

               The witnesses would have testified that through the defendant’s own
       statement that Stephen Scott was throwing dice a few feet away and, according
       to this statement, was robbed by a man named Juan. At the time the defendant
       grabbed a gun. Two witnesses would have testified that he had on a bullet-
       proof vest, that he got two guns, actually, and began firing at what he believed
       was Juan . . . . As he continued firing, at least four shots, one of them went
       through the upstairs window and went into the brain of Denise Brown.

               Your Honor, based upon all these facts, and the facts [sic] that the
       defendant himself admitted that he is the one that killed Denise Brown, the
       State recommends [that the court sentence the defendant according to the plea
       agreement].

       The State informed the court that the petitioner was going to plead guilty to second
degree murder in exchange for “a sentence of twenty-five [years] at one hundred percent to
serve at [the Department of Correction].”

        The petitioner agreed that the State correctly announced the terms of the plea
agreement. The petitioner said that he believed he understood what he was doing by entering
a guilty plea. He acknowledged that he was represented by counsel, and he stated that he
was satisfied with counsel’s representation. He said that counsel had explained the charges
of felony murder and reckless endangerment and the possible range of punishment for each.
The trial court outlined the petitioner’s rights to have a jury trial, to confront the State’s
witnesses, to call his own witnesses, to decide whether to testify in his own behalf, and to
appeal after trial. The petitioner acknowledged that he was waiving those rights by entering
his guilty plea.     The petitioner also stated that he reviewed the plea petition with his
attorney and that he understood the petition. He confirmed that if he had any questions when
reviewing the petition, he would have asked his attorney. He acknowledged signing the plea
petition and that he did so freely and voluntarily. The petitioner stated that no one forced or

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threatened him to plead guilty and that no one promised him anything other than the plea
agreement in exchange for the plea. Counsel stated that he believed the petitioner understood
what he was doing and that the petitioner was doing so freely and voluntarily. The petitioner
then entered a plea of guilty to the charge of second degree murder.

       Post-Conviction Hearing. At the September 29, 2010 post-conviction hearing,
Detective Terrance Bradley with the Metropolitan Nashville Police Department testified that
he investigated the shooting of Denise Brown. His investigation revealed that the petitioner
and Williamson1 were playing dice when Williamson robbed the petitioner. The apartment
in which the victim was shot was the home of a woman Williamson dated. The petitioner
thought he saw Williamson enter that apartment, and he shot into the apartment attempting
to shoot Williamson. When Detective Bradley interviewed Williamson, Williamson denied
being present for any of these events. Detective Bradley interviewed Tessie Torez at the
crime scene, and he was unsure whether she said that she saw the petitioner shooting at the
house or that she saw him shooting in the area of the house. No other witnesses
acknowledged seeing the petitioner shoot at anyone.

      On cross-examination by the State, Detective Bradley testified that the petitioner
confessed to killing the victim. The petitioner said that he was trying to shoot someone else
when he accidentally shot the victim.

        Patrick Wells testified that he was a private investigator hired to work on the
petitioner’s case. At trial counsel’s request, Mr. Wells interviewed witnesses to the shooting.
A letter from Mr. Wells to trial counsel summarizing the interview with Ms. Torez was
admitted as an exhibit to the post-conviction hearing. Ms. Torez told Mr. Wells that the
petitioner was shooting at the building and not at an individual. She also informed Mr. Wells
that others had told her the petitioner was shooting at Williamson. Mr. Wells could not recall
any witnesses who said they saw the petitioner shooting at a particular person. Mr. Wells
also could not recall whether the petitioner ever told him that his police statement was
untruthful.

       The petitioner testified that he was eighteen years old when he committed this offense.
He said that he met with counsel several times while the charges were pending. Counsel
reviewed the indictments and explained to the petitioner the definitions of the offenses. The
petitioner testified that counsel explained felony murder as the “commission of a felony,
where a murder occurred, somewhere in that words.” According to the petitioner, counsel
told him that reckless endangerment was a possible underlying felony on which to base the
charge of felony murder and “that if [the petitioner] was found guilty of reckless

        1
        This person is called by several names in the record, including “Williamson,” “Williams,” “Juan,”
and “Dejuan.”

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endangerment, it would make [him] guilty of felony murder automatically because it was a
felony.” The petitioner said that he pleaded guilty based on this understanding of felony
murder and that he would have gone to trial if he had known that reckless endangerment was
not an underlying offense for felony murder. Based on counsel’s advice, the petitioner
“didn’t believe [he] had a chance” at trial. He acknowledged that counsel reviewed the plea
agreement with him in detail and that he initialed every provision of the agreement.
Although the petitioner initialed the provisions stating that he understood the elements of the
charged offenses and that counsel explained all his possible defenses, that was not, in fact,
true.

        The petitioner testified that he informed trial counsel that he lied in his police
statement when he said that he was trying to shoot Williamson. The petitioner told counsel
the truth:

       I told [counsel] that the guy robbed me. He made me move. He made me get
       away from where we was at. I went home, and I got the guns and the vest, and
       I came back.

               And when I came back, nobody was right there. I told him I was mad.
       And the area I grew up in, I was just honest, and I told him that where I was
       from, that I had to try to put on some kind of front or I would be a punk . . . for
       as long as I lived there. And I told [counsel] I just was shooting the guns in
       frustration.

The petitioner denied trying to shoot any particular person or pointing the guns at anything
specific.

        The petitioner testified that he and counsel did not discuss possible defenses to the
charges. Trial counsel said that the best trial strategy would be for the petitioner to testify,
consistently with what he told counsel and contrary to the police statement, that he was not
trying to shoot anyone.

        On cross-examination, the petitioner testified that the primary issue at trial would be
which of the petitioner’s versions of the events to believe. The petitioner conceded that he
faced the possibility of life imprisonment if found guilty at trial and that such a sentence was
at least twice as long as the twenty-five year sentence he received for pleading guilty.
Nevertheless, based on his new understanding of felony murder, the petitioner believed that
he would be found not guilty of that offense at trial. The petitioner acknowledged lying to
the trial court at the plea hearing when he said he understood the offenses with which he was
charged and the consequences of his guilty plea.



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       Trial counsel testified that he had been licensed to practice law in Tennessee since
1999 and that ninety percent of his practice consisted of criminal defense. He was appointed
to represent the petitioner in this case, and he met with the petitioner “numerous time[s].”
They discussed the offense of felony murder, “what the State would have to prove, . . . and
what his defenses could potentially be in the case.” When asked whether counsel told the
petitioner that reckless endangerment was an underlying offense for felony murder, counsel
responded:

              Well, I am not sure that was the trigger for it. It was the underlying
       attempted murder of the other gentleman of the agg robbery. There were a
       couple of theories of why he went back over there, but his problem was that
       there were witnesses who said there had been a confrontation with this other
       adult and that that’s the reason he had returned.

               In our investigation, we discovered, we believed, that the man was
       inside the house when the shooting happened, that he went back to seek this
       revenge, or at least – and he did tell me the story about he more or less wanted
       to put on a front and go over there. And he was afraid if he didn’t retaliate,
       that he would forever be, in his words, some sort of punk over there, and so he
       had to go do something about it.

             We had issues that had nothing to do with just the reckless
       endangerment.

Counsel testified that “[t]he case came down to his intent, why was he there and what was
he doing.” He reviewed with the petitioner the circumstantial evidence of intent, that the
petitioner was angry, retrieved two guns and a bulletproof vest, returned to the house, and
fired the guns. Counsel and the petitioner discussed the possibility of the petitioner testifying
at trial to contradict his police statement, and counsel informed the petitioner that his lying
to the police would be harmful to his credibility in front of a jury.

      Regarding the petitioner’s plea, counsel testified that he believed the petitioner
understood his rights and what he was doing by pleading guilty. A transcript of the plea
submission hearing was admitted as an exhibit to the post-conviction hearing.

       On cross-examination by the petitioner, trial counsel testified that he discussed “the
entire case with [the petitioner],” including what trial would probably be like. The
petitioner’s defense against felony murder would have been that the petitioner did not intend
to shoot anyone but rather that he intended to make a display after the other man robbed him.
Counsel informed the petitioner that he would have to testify at trial in order to pursue that
defense. Trial counsel acknowledged that he was unaware of any witnesses that told the

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police the petitioner was trying to shoot a specific person. According to counsel, all the
witnesses and the petitioner told the police that the petitioner was shooting at the house.
Trial counsel advised the petitioner that pleading guilty under the terms of the plea agreement
was a “smarter choice than going to trial,” but counsel also told the petitioner that he had the
option of going to trial.

       Trial counsel could not recall informing the petitioner that reckless endangerment was
a possible underlying offense for felony murder, and when asked whether it was possible that
he did so inform the petitioner, counsel responded, “I don’t think so.”

      Following the evidentiary hearing, the post-conviction court entered a written order
denying relief. In the order, the court stated:

               A close review of the record and testimony presented, [sic] reveals that
       the trial counsel testified that . . . he met with the defendant and informed him
       of the nature of the charges against him, the likelihood of conviction and range
       of punishment as well as the nature and consequences of the plea agreement
       to the petitioner . . . .

              Therefore, Petitioner has failed to demonstrate by clear and convincing
       evidence ineffective assistance of counsel and that the plea was a violation of
       due process rights in violation of a constitutional right to render his conviction
       and sentence void or voidable under the Post Conviction Relief Act. The
       Court does not find the petitioner’s testimony to be credible. Accordingly, the
       Court finds that Petitioner has failed to show that he was prejudice [sic] by
       counsel’s allegedly deficient conduct. . . .

                                         ANALYSIS

        On appeal, the petitioner argues that he received the ineffective assistance of counsel
because trial counsel erroneously advised him that felony murder could be based on the
offense of reckless endangerment. As a result of this alleged ineffectiveness, he contends
that his guilty plea was not knowingly and voluntarily entered. The State responds that the
post-conviction court correctly denied relief because the petitioner failed to demonstrate his
claims by clear and convincing evidence. We agree with the State.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2006). The Tennessee Supreme Court has held:




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              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

       The right of a person accused of a crime to representation by counsel is
       guaranteed by both the Sixth Amendment to the United States Constitution and
       article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

        In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any particular order or even address both
if the [petitioner] makes an insufficient showing of one component.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

      A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of

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reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 370. “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” Id. (quoting
Strickland, 466 U.S. at 694). In order to satisfy the “prejudice” requirement in the context
of a guilty plea, a 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.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Serrano v. State, 133 S.W.3d 599, 605
(Tenn. 2004).

       When analyzing the validity of a guilty plea, we follow the federal landmark case of
Boykin v. Alabama, 395 U.S. 238 (1969), and the Tennessee landmark case of State v.
Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on other grounds by rule as stated in
State v. Wilson, 31 S.W.3d 189, 193 (Tenn. 2000). State v. Pettus, 986 S.W.2d 540, 542
(Tenn. 1999). In Boykin, the United States Supreme Court held that a trial court may not
accept a guilty plea unless there is an affirmative showing that the guilty plea was “intelligent
and voluntary.” 395 U.S. at 242. When accepting a guilty plea, the trial court is responsible
for “canvassing the matter with the accused to make sure he has a full understanding of what
the plea connotes and of its consequence.” Id. at 244. In Mackey, the Tennessee Supreme
Court held that “the record of acceptance of a defendant’s plea of guilty must affirmatively
demonstrate that his decision was both voluntary and knowledgeable, i.e., that he has been
made aware of the significant consequences of such a plea; otherwise, it will not amount to
an ‘intentional abandonment of a known right.’” 553 S.W.2d at 340.

        The Tennessee Supreme Court has emphasized that a plea is not voluntary if it is the
result of “‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant
threats . . . .’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395
U.S. at 242-43). A trial court must look at a number of circumstantial factors before
determining whether a guilty plea is voluntarily and intelligently made. Id. These factors
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.” Id. (citing
Caudill v. Jago, 747 F.2d 1046, 1052 (6th Cir. 1984)).

       Here, the record supports the post-conviction court’s ruling that the petitioner failed
to prove he received the ineffective assistance of counsel in connection with the guilty plea.
Trial counsel testified that, before the guilty plea, he reviewed with the petitioner the

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elements of the charged offenses, including felony murder. He could not recall telling the
petitioner that felony murder could be based on the offense of reckless endangerment, and
he doubted that he did so.2 Counsel’s testimony regarding possible defense strategies to
negate any proof that the petitioner intended to kill the robber further demonstrates that
counsel competently advised the petitioner regarding the charges he faced. Additionally, the
petitioner acknowledged at the plea submission hearing that he understood the elements of
felony murder. Although the petitioner testified at the post-conviction hearing that counsel
told him reckless endangerment was a basis for felony murder and that he would have taken
the case to trial had he known otherwise, the post-conviction court specifically found the
petitioner’s testimony to be incredible. We conclude, therefore, that the petitioner has not
produced clear and convincing evidence that counsel erroneously informed him regarding
reckless endangerment as a basis for felony murder. Consequently, the petitioner has failed
to prove either deficient performance or prejudice. Because his challenge to the guilty plea
is premised on the alleged ineffective assistance of counsel, the failure to prove that counsel
was ineffective also results in the failure to prove his guilty plea was not knowing and
voluntary. The petitioner is not entitled to relief.

                                            CONCLUSION

        Upon review, we affirm the judgment of the post-conviction court.




                                                          ______________________________
                                                          CAMILLE R. McMULLEN, JUDGE




        2
         Felony murder, at the time of the petitioner’s offense, was the “killing of another committed in the
perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery,
burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy.” T.C.A. §
39-13-202(a) (2003).

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