        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs February 17, 2010

          LATOYA DANIELLE PATTON V. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                     No. 2006-A-825    Cheryl Blackburn, Judge


                  No. M2009-01280-CCA-R3-PC - Filed April 14, 2010


The petitioner, Latoya Danielle Patton, appeals the Davidson County Criminal Court’s denial
of her petition for post-conviction relief. The petitioner, pursuant to a negotiated plea
agreement, pled guilty to second degree murder, a Class A felony, and received a sentence
of forty years. On appeal, the petitioner contends that her guilty plea was not knowingly and
voluntarily entered due to the ineffective assistance of counsel in advising the petitioner.
Following 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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which D AVID H. W ELLES
and T HOMAS T. W OODALL, JJ., joined.

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Latoya Danielle Patton.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                    Factual Background

        The underlying facts of the case, as recited by the State at the guilty plea hearing, are
as follows:

       On April 23rd, 2005, at 570 McMurray Drive here in Davidson County, on that
       date [the victim’s] brother . . . came to the residence to find out what was
       going on because he had not been able to contact [the victim] by phone during
       the day. He came in and saw [the victim] deceased, a murder victim. There
       were obvious multiple stab wounds there in the apartment. He called the
       police, and the police began investigating.

               That same day from asking around and doing their jobs they came to
       find that [the petitioner] was somebody that was acquainted with the [victim]
       and began to interview her. Initially she denied any knowledge of what took
       place, but eventually she did admit she had killed [the victim]. She said that
       she was a crack cocaine user, that she bought crack cocaine from [the victim],
       but it came to a point where she was out of money and the victim would not
       give her anymore. So she was there in the apartment and decided to kill him
       and take his crack cocaine. So she turned the water on in the kitchen so he
       [could not] hear in the living room and got a knife from the drawer and then
       went over to him in the living room, hiding the knife, and got close to him and
       stabbed him and ended up stabbing him a total of eighteen times with about
       three or four different implements that she found there. She took the crack
       cocaine and then went back to 189 Wallace Road, which was her residence.
       She told the police that they would find her clothes that had blood on them and
       her shoes and the empty pill bottle that the crack cocaine was in back at that
       location. And the police went there and did find that.

       Based upon the foregoing, the petitioner was indicted by a Davidson County grand
jury for first degree murder and felony murder. Subsequently, the petitioner filed a petition
with the trial court to enter a guilty plea to one count of second degree murder. The
agreement further provided that she would be sentenced to forty years, which was outside her
statutory range. Following the court’s acceptance of the plea, the petitioner was sentenced
in accordance with the agreement, and it was specifically noted on the judgment form that
the sentence imposed was outside her range.

        Thereafter, the petitioner filed the instant petition for post-conviction relief in which
she alleged that she was denied the effective assistance of counsel and that her plea was not
entered knowingly and voluntarily. A hearing was held, at which the petitioner and trial
counsel testified. The petitioner testified that trial counsel was the second attorney appointed
to represent her and that he began his representation four or five months after the case began.
According to the petitioner, she informed trial counsel that she was under the influence of
drugs when she committed the murder and, further, that the victim had been abusive,
controlling, and manipulative to her. She stated that she only stayed with the victim because
he provided her with drugs. The petitioner also testified that she informed trial counsel that
she had regular exposure to drug use as a child. She further testified that she had developed
a drug habit, which she supported by trading sex for drugs. The petitioner further testified

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that trial counsel told her at her first court appearance that “nine times out of ten” a jury
would only convict her of manslaughter because it was a crime of passion. However, trial
counsel later presented her with an offer from the State and encouraged her to accept it. The
petitioner acknowledged that she made a statement to police confessing her involvement in
the crime and providing details of its commission.

         According to the petitioner, she accepted her guilty plea on the Friday before the
trial’s start date of Monday. Prior to accepting the plea, she asked the court for a continuance
in order to allow her family additional time to hire a new attorney. The court denied the
request. Prior to accepting the plea, the court extensively voir dired and discussed the plea
agreement with the petitioner. The petitioner acknowledged that the court did, in fact, make
the statements and that she stated that she understood them, but she now contends that she
did not understand. According to the petitioner, she either did not remember the questions
or “blanked out” during the plea hearing. She testified that it was her belief that, if she pled
guilty, she “would go ahead to the prison and would file an appeal.” However, according to
the petitioner, she thought this meant that she would have more time to hire an attorney and
that she would get another opportunity to go to trial. The petitioner testified that she did not
want to seem “illiterate” before the court and “just gave up.” She testified that she wanted
to have the opportunity to testify before a jury.

       The petitioner also testified that no mental evaluation was performed even though she
and trial counsel had discussed such an evaluation. She believed that trial counsel should
have “put a little bit more time in investigating” her case and learned more about her
background.

         Trial counsel testified that he initially met with the petitioner and, based upon her
statements to him, believed that it might be possible for a jury to find her guilty of
manslaughter. He related that the petitioner had discussed the victim’s treatment of her and
that the victim had made a move for something under the cushions prior to the petitioner
stabbing him. However, upon receiving discovery, trial counsel’s opinion of the merits of
the case changed. Specifically, the petitioner’s statement to police was problematic as the
petitioner essentially stated that she killed the victim in order to get crack cocaine. After
reviewing discovery, trial counsel stated there was “no doubt” in his mind that the petitioner
would be convicted of first degree murder if she went to trial. According to trial counsel, he
informed the petitioner that he did not believe she could win the case in light of her
statement. He testified that, despite this, he told the petitioner that if she wanted to go to
trial, he would “give her [his] best effort.” However, he did advise her to take the plea offer.

        On the day the plea was entered, trial counsel went through the entire agreement with
the petitioner. He testified that she did not show any sign of confusion with the explanations

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he provided to her. He further related that he had discussed the right of appeal and informed
the petitioner that this would be her “final day in [c]ourt.” He acknowledged that the
petitioner’s parents were upset that the petitioner was taking the plea agreement. He stated
that, during the hearing, the petitioner looked back at her mother and said, “I don’t want to
get life.”

       Trial counsel testified that he had no problem communicating with the petitioner
regarding her case. He stated that he saw no basis to perform a mental evaluation because
he believed that she “clearly [was not] going to be found insane, either presently or at the
time of the offense.” He also indicated that he had hired a private investigator to assist him
with the case.

       After hearing the evidence presented, the post-conviction court denied relief. The
petitioner has timely appealed.

                                           Analysis

       On appeal, the petitioner asserts that the post-conviction court erred in denying relief
because trial counsel was ineffective and because the petitioner’s plea was not entered
knowingly and voluntarily. Although somewhat unclear from the brief, the petitioner appears
to argue that trial counsel did not render the effective assistance of counsel, based upon his
advice to the petitioner to plead guilty despite the fact that the facts and circumstances raised
a defense of self-defense. The petitioner further contends that her plea was not knowingly
and voluntarily entered because trial counsel was deficient.

       In 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). In making this determination,
the reviewing court must look to the totality of the circumstances. State v. Turner, 919
S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534,
542 (Tenn. Crim. App. 1990). Indeed, a

       court charged with determining whether . . . pleas were ‘voluntary’ and
       ‘intelligent’ must look to various circumstantial factors, such as 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

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       avoid a greater penalty that might result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

       Once a guilty plea has been entered, effectiveness of counsel is relevant only to the
extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective
assistance necessarily implicate that guilty pleas be voluntarily and intelligently made. Hill
v. Lockhart, 474 U.S. 52, 56 (1985) (citing Alford, 400 U.S. at 31, 91 S. Ct. at 164).

        To succeed in a challenge for ineffective assistance of counsel, the petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded of
attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under
Strickland v. Washington, 466 U.S. 668, 687 (1984), the petitioner must establish (1)
deficient representation and (2) prejudice resulting from the deficiency. In the context of a
guilty plea, to satisfy the second prong of Strickland, the 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.” Lockhart, 474 U.S. at 59; see also Walton v.
State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). The petitioner is not entitled to the
benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot
criticize a sound, but unsuccessful, tactical decision made during the course of the
proceeding. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). However, this
deference to the tactical decisions of trial counsel is dependant upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

        The issues of deficient performance by counsel and possible prejudice to the defense
are mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A
trial court’s findings of fact underlying a claim of ineffective assistance of counsel are
reviewed on appeal under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d). However, conclusions of
law are reviewed under a purely de novo standard, with no presumption of correctness. Id.
at 458.

I. Ineffective Assistance of Counsel

       As noted, the petitioner’s argument is somewhat unclear with regard to what factual
basis she is asserting to establish the ineffective assistance claim. For clarity sake, we
include the petitioner’s argument verbatim.



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                The petitioner asserts that it was error for the trial court to find her
       counsel rendered effective assistance of counsel. The petitioner testified that
       when she first met with [trial counsel] they discussed the facts of her case and
       that he stated a jury would most likely return a verdict of the lesser offense of
       manslaughter. . . . The petitioner testified she reviewed her confession with
       [trial counsel] but contends that other facts and circumstances could have
       supported a defense of self-defense or garnered compassion from the jury for
       her. . . . Further, she also stated that she had no criminal record, except for a
       juvenile citation, and had lived on and off the streets for [eleven] adult years
       without any arrests or trouble. . . . Thus, she could have testified without
       impeachment by prior convictions.

               [Trial counsel] even confirmed the petitioner’s assertion that he had
       discussed the possibility of a manslaughter verdict but only changed his mind
       after reading her statement to the police. . . . He also testified that the
       petitioner told him the victim had reached for something under the sofa
       cushion which would have supported [trial counsel’s] initial evaluation of the
       case. . . .

                Presumably all of this investigation by [trial counsel] took place well
       before the status check the Friday before the Monday trial date. Yet, as the
       petitioner and [trial counsel] testified, she was not advised to waive her right
       to trial and plead guilty until that Friday. . . . She even requested a continuance
       in order to hire another attorney at that proceeding. . . .

              For the foregoing reasons, the petitioner asserts “counsel’s
       representation fell below an objective standard of reasonableness[.]”

As noted, from this, we glean that the petitioner is arguing that trial counsel was ineffective,
based upon his advice to the petitioner to plead guilty rather than pursue a self-defense theory
at trial.

        In its written order denying relief, the post-conviction court specifically accredited
trial counsel’s testimony that: (1) he met with the petitioner; (2) he reviewed discovery; (3)
he hired an investigator to assist in finding information beneficial to the defense; (4) he did
not believe a mental evaluation was necessary based upon his communications with the
petitioner; and (5) the facts of the case were “strongly against” the petitioner. As had been
noted by this court multiple times, it is the province of the trier of fact to make the required
credibility determinations. On appeal, we will not reweigh or reassess the weight given to
those determinations which the post-conviction court makes with regard to credibility.

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Accrediting trial counsel’s testimony, we find nothing in the record which preponderates
against the post-conviction court’s determination that trial counsel was not deficient for
failing to encourage the petitioner to pursue a theory of self-defense rather than to plead
guilty. The record supports trial counsel’s determination that the facts of the case were
strongly against the petitioner. In her own statement, the petitioner basically stated that she
stabbed the victim when he failed to supply her with more drugs. She indicated that she
turned on the water to hide the noise of her getting the knife, hid the knife in her pants, asked
the victim to kiss her, and then proceeded to stab him multiple times. Clearly, upon these
facts, a theory of self-defense would not be supported. Thus, we agree with the post-
conviction court that trial counsel was not deficient in his representation of the petitioner.

II. Voluntary and Knowing Guilty Plea

        Next, the petitioner contends that the post-conviction court erred in determining that
she knowingly and voluntarily entered her guilty plea. She relies upon the facts that: she had
no previous experience with the criminal justice system; the bargain she received was not
“great” for a first time offender; and, at the post-conviction hearing, she maintained that she
did not understand the guilty plea proceedings despite her assertions to the contrary at the
guilty plea hearing. She contends that she simply “blacked out” during the plea hearing and
did not understand the consequences of entering the plea.

       In its written order denying relief, the post-conviction court specifically stated:

               Trial counsel . . . testified that he had thoroughly explained to [the
       petitioner] the nature and consequences of the plea and that he explained to her
       the plea would be the last step in her case. Again, the Court credits trial
       counsel’s testimony. The Court find that the transcript of [the petitioner’s]
       plea hearing belie her claims. [The petitioner] did not passively respond to
       questions in a yes or no fashion; in fact, at one point [the petitioner] informed
       the Court that she had asked trial counsel questions about her release
       eligibility.

                During the plea hearing, [the petitioner] affirmatively responded that
       her trial counsel had explained to her that she was pleading out of range; trial
       counsel had thoroughly discussed with her the facts of her case and the
       investigation that had been made; trial counsel went over every point on the
       plea petition and answered all her questions; she was satisfied with the work
       of trial counsel and he had performed everything she had wanted him to do on
       her behalf; and that she understood that by entering her plea she was waiving
       her right to trial where she may have been convicted of a lesser offense and

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       waiving her right to appeal. The Court explicitly informed [the petitioner] that
       if she enters a plea, the judgment would be final. The State recited the facts
       that would be presented at trial based upon the statements [the] petitioner
       provided to police and [the petitioner] concurred with the recitation of the
       facts.

        After a thorough review of the record, we find nothing which preponderates against
the post-conviction court’s findings. At the guilty plea hearing, the trial court conducted an
extensive voir dire of the petitioner prior to her entering the plea. The petitioner specifically
stated that she wanted to enter the plea. The court specifically explained that the petitioner
was receiving a forty-year sentence to be served at 85% and that the sentence was outside of
the petitioner’s range. The transcript further reflects that: the petitioner stated that she
understood the sentence; trial counsel had explained the agreement to her; she was not on
medication; and she knew that she did not have to plead guilty. As noted by the trial court,
the petitioner’s assertions on appeal are simply not credible, based upon her testimony at the
guilty plea hearing. Thus, our review of the record affirmatively demonstrates that the
petitioner’s plea “represent[ed] a voluntary and intelligent choice among the alternative
courses of action open to the [petitioner].” See Alford, 400 U.S. at 31.

                                       CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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