         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 6, 2006

                    JULIUS E. GUNN v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                           No. P-28187    Joseph B. Dailey, Judge



                      No. W2005-01811-CCA-R3-PC - Filed July 7, 2006


The petitioner, Julius E. Gunn, appeals the denial of his petition for post-conviction relief. The
single issue presented for review is whether the petitioner received the effective assistance of counsel
at trial. The judgment is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and J.C.
MCLIN , JJ., joined.

Kevin D. Balkwill, Memphis, Tennessee, for the appellant, Julius E. Gunn.

Paul G. Summers, Attorney General & Reporter; Brian Clay Johnson, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Theresa McCusker, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        On May 27, 2003, the petitioner entered a plea of guilty to the charge of especially aggravated
robbery, a Class A Felony. Pursuant to a plea agreement with the state, the petitioner received a
sentence of fifteen years to be served in the Department of Corrections. Because the petitioner was
found to be a violent offender, he was required to serve one hundred percent of his sentence. See
Tenn. Code Ann. § 40-35-501(i)(1),(2)(E) (2003). In January of 2004, the petitioner filed a pro se
petition for post-conviction relief in the Criminal Court for Shelby County alleging the ineffective
assistance of counsel. After the appointment of counsel, an amended petition was filed alleging that
trial counsel induced the petitioner to plead guilty by promising that he would be incarcerated in a
"youthful offender" facility.

       At the evidentiary hearing, the petitioner testified that his original trial counsel, A.C.
Wharton, visited him in jail when he "first caught the charge" on January 22, 2001, the same day the
offense was committed. The petitioner was represented by trial counsel at a preliminary hearing one
month later. After the petitioner was indicted by the Shelby County Grand Jury, but before a trial
date was set, trial counsel was elected mayor of Memphis. Kevin Reed and Mae Dell Steiner, two
attorneys from the Wharton law firm, assumed the petitioner's representation after the election.
When questioned about his decision to enter a guilty plea, the petitioner testified that he "was just
misled" by his attorneys into entering his plea of guilty because "[t]hey told me that I was going to
a youthful facility." On cross-examination, the petitioner admitted that he was beyond the age of
majority when he committed the offense.

        Attorney Wharton testified that the petitioner "insisted on not going into any elaborate
challenges and motions," electing instead to get his case "over without a trial." He recalled that the
petitioner simply wanted to procure the best deal possible so that he could serve his sentence in a
"youthful offender facility." According to Attorney Wharton, he explained to the petitioner that "the
Department of Corrections actually makes [that] ultimate determination" and promised only to "try."

       Attorney Steiner testified as follows:

               Once it was clear that the state was not going to reduce this offer [of fifteen
       years at one hundred percent] or change the offense in any way, and Mr. Gunn still
       wanted to enter a plea, I mentioned to him that I would request that he be allowed to
       serve his time at a youthful offender facility; and that was based on his age, and it
       was based on the fact that he had no prior criminal record.

               ....

       However, I think, from the very beginning – in my discussions with Mr. Gunn, it was
       always told to him that it was out of my hands, the state's hands, and even the judge's.
       Although I would ask the judge to recommend it, ultimately that decision as to where
       he would be housed would be left up to someone else.

        At the conclusion of the hearing, the post-conviction court took the matter under advisement
and later issued a written order denying the petition for post-conviction relief. In its findings, the
post-conviction court specifically accredited the testimony of the petitioner's trial counsel:

       Mr. Wharton and his associate Ms. Dell Steiner also testified at the evidentiary
       hearing. Their testimony indicated that they did indeed investigate the case, not
       withstanding the fact that their client was asking to settle the case from the outset and
       never wanted the matter to go to trial; that they were prepared to file appropriate
       motions but never pursued a Suppression Motion because of their client's desire to
       settle the case; that they did talk to the witnesses in this case, specifically the victim;
       and that they did fully advise Mr. Gunn of the exact and precise nature of the guilty
       plea offer that he ultimately accepted. In that guilty plea offer[,] there was never a
       promise of a "program" for youthful offenders.



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               After a full and complete review of the record in this matter, the transcript
        from the evidentiary hearing, the exhibits introduced at the hearing, and arguments
        of counsel, it is this Court's opinion, that Mr. Wharton and Ms. Steiner represented
        Mr. Gunn exceedingly well. In each instance, the complaints of this petitioner are
        found to be completely without merit.

       In this appeal, the petitioner asserts that the trial court erred by denying post-conviction relief.
He contends that he was denied the effective assistance of counsel because his attorneys had
promised that he would be placed in a youthful offender facility.

        Under our statutory law, the petitioner bears the burden of proving the allegations in his post-
conviction petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003).
Evidence is clear and convincing when there is no serious or substantial doubt about the accuracy
of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). On appeal, findings of fact made by the post-conviction court are conclusive and will not be
disturbed unless the evidence contained in the record preponderates against them. Brooks v. State,
756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the
evidence preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.
App. 1978). The credibility of the witnesses and the weight and value to be afforded their testimony
are questions to be resolved by the post-conviction court. Bates v. State, 973 S.W.2d 615, 631
(Tenn. Crim. App. 1997).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given was below "the range
of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the
defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). The error must be so serious as to
render an unreliable result. Id. at 695. Should the petitioner fail to establish either factor, he is not
entitled to relief. Our supreme court described the standard of review as follows:

                Because a petitioner must establish both prongs of the test, 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 defendant makes an insufficient showing
        of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). As to guilty pleas, the petitioner must establish
a reasonable probability that, but for the errors of his counsel, he would not have entered the guilty
pleas and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

       On claims of ineffective assistance of counsel, 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 proceedings. Adkins v. State, 911


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S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation of the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Claims of ineffective assistance of counsel are regarded as mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). When reviewing the application of law to the post-conviction court's factual findings, our
review is de novo, and the post-conviction court's conclusions of law are given no presumption of
correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see State v. England, 19 S.W.3d
762, 766 (Tenn. 2000).

         In this case, the petitioner testified that his trial counsel coerced him into entering a guilty
plea by promising the petitioner that he would be placed in a youthful offender facility. Trial counsel
testified that no such promise was ever made. Attorney Wharton testified that he made "no
guarantees" to the petitioner and produced a note from his file, which said, "Mr. Julius Gunn –
explained rights – will try to get him into youth facility – no guarantee." Attorney Steiner testified
that she explained to the petitioner that she would ask the sentencing judge to recommend that he
be permitted to serve his sentence in a youthful offender facility. The post-conviction court
accredited the testimony of trial counsel, finding that "[t]here was an effort made by Mr. Wharton,
Ms. Steiner and Judge Higgs to recommend to the Department of Corrections that Mr. Gunn be
assigned to a 'facility' for youthful offenders." Additionally, at the evidentiary hearing, the petitioner
acknowledged that Attorney Wharton only "told me that he was going to recommend and try to
enroll me into a youth facility." Under these circumstances, the petitioner is not entitled to relief on
this issue.

        Accordingly, the judgment of the trial court is affirmed.




                                                         ___________________________________
                                                         GARY R. WADE, PRESIDING JUDGE




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