                                                                                          11/14/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs October 17, 2017

          JEWELL WAYNE SMITH, JR. v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Robertson County
                No. 2011-CR-690     William R. Goodman III, Judge


                             No. M2017-00538-CCA-R3-PC


The Petitioner, Jewell Wayne Smith, Jr., appeals from the Robertson County Circuit
Court’s denial of his petition for post-conviction relief from his 2013 best interest guilty
plea to voluntary manslaughter, for which he is serving a thirteen-year sentence. The
Petitioner contends that (1) his guilty plea was involuntary and (2) he received the
ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Joe R. Johnson II, Springfield, Tennessee, for the appellant, Jewell Wayne Smith, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; John W. Carney, District Attorney General; and Jason White, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                        OPINION


       This case arises from the Petitioner’s April 1, 2013 best interest guilty plea to
voluntary manslaughter. See North Carolina v. Alford, 400 U.S. 25 (1970). Pursuant to
the plea agreement, the Petitioner was sentenced as a Range III offender, with the length
of the sentence to be determined by the trial court. The court sentenced the Defendant to
thirteen years’ incarceration and ordered consecutive service with an unrelated sentence.


                                Guilty Plea Proceedings
At the guilty plea hearing, the State’s recitation of the facts was as follows:

       The facts would show . . . the victim and the defendant had once
been friends, but had developed a disagreement over some money and the
night of the homicide that occurred on Blair Street, about 2005 Blair, about
an hour or so before that homicide . . . the defendant pulled up in a green, I
believe a Pontiac and got out and then probably thirty minutes or so, twenty
minutes or so before the homicide, and Martel (phonetic) Black would say
[that he] and the defendant and . . . Terrence Bigby, were in a car smoking
marijuana when . . . the victim came by on his bicycle and bumped the
car[.] [Martel Black would say] that [the victim] went on down the street.
The [d]efendant got out of the car and had a weapon in his hand, he would
describe it as a Smith and Wesson, .40 caliber and that [the defendant]
made some comments about the victim and . . . Mr. Black would say that he
called the victim multiple times to warn [the victim] about [the defendant]
and this is corroborated by phone records[.]

        The proof would show that the victim . . . went to April Davis’ house
to see, to sit for phone calls and finally picked up on[ ]the last one and after
talking, left to head back down the street to 2005 Blair. Ms. Davis will say
that when [the victim] came in, he took a gun out and put it on the dresser
drawers and when he left, he picked that gun back up[.]

       [Corroborating witnesses] would then say . . . that the victim came
down on his bicycle, got off his bicycle at 2005 Blair, it’s a housing
authority duplex. There’s a tree there and . . . a couple of witnesses would
say at that time that [the defendant] was . . . behind the tree, kind of in a
dark area and that the victim got [off his bicycle] and [witnesses] could tell
a conversation occurred and that shortly thereafter, a ray [sic] of gunfire,
describe[d] anywhere between four to six . . . [and one witness] told me
seven[,] shots. Everybody described the gunfire going in one direction
from the defendant to the victim. Nobody [saw] any gunfire coming back
the other way and describes the victim is shot multiple times and from
there—does not die immediately . . . gets up and goes down the street and
waves for help. At that time, the [d]efendant, Mr. Smith, flees the scene.

       At a trial, [the witnesses] we have . . . served, we’ve done a lot of
going out and knocking on doors and getting people served and there’s a
couple of people not served that were hiding from us. We have several . . .
[witnesses] . . . say they saw the gunfire, but say they didn’t see [the
defendant] actually do the shooting.          One witness in [Tennessee
Department of Correction] has . . . an aggravated conviction . . . that would
be the only eyeball witness that we would have. [The defendant] gave a

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       statement . . . that if he testified, would say that the victim, he did shoot one
       time but that was only because the victim pulled the gun on him first.
       Would have a witness say that he did—the police weren’t sure where the
       crime scene occurred so it took them—because the victim had fled down
       the street, by the time they got up to the crime scene, most everything had
       been picked up. Out of all six shots, no shell casings—only one bullet
       found. No guns found. Would have one witness to say that he did pick up
       a gun, may or may not be the victim’s gun[.] So there is not a lot of
       physical evidence at the scene because the crime scene had been cleared or
       cleaned up before the police realized where the crime scene was. That
       would be the facts . . . to show—we do have an eyeball witness that would
       say the [d]efendant shot him [and] [o]ther witnesses that would corroborate
       that. Due to the circumstances of witnesses’ impeachment and not sure
       exactly what everyone is going to say on the stand—we even had one
       [witness] at the [preliminary hearing] to [change] her story, feel that this is
       the best interest of the State to take this settlement.

         At the guilty plea hearing, the trial court reviewed the plea agreement with the
Petitioner, including the offense to which he was pleading guilty and the possible
sentence he could receive. The Petitioner told the court that he understood the agreement
and that he understood he was pleading guilty as a Range III offender even though he
qualified as a Range II offender. The court informed the Petitioner of his rights to a jury
trial, to confront witnesses, to present witnesses in his defense, and to appeal a finding of
guilt. When asked if the Petitioner waived those rights, he answered, “Yes.” The court
asked the Petitioner whether he thought it was “in his best interest to enter this plea,” and
he responded “Yes sir.” The Petitioner said that he did not have any questions for the
court.

       The Petitioner was sentenced to thirteen years’ incarceration. He appealed his
sentence, and this court denied relief. See State v. Jewell Wayne Smith, Jr., No. M2013-
01573-CCA-R3-CD, 2014 WL 683965 (Tenn. Crim. App. Feb. 20, 2014), perm. app.
denied (Tenn. May 14, 2014). The Petitioner filed a post-conviction petition, alleging
that his guilty plea was involuntarily entered and that he received the ineffective
assistance of counsel.

                               Post-Conviction Proceedings

       At the post-conviction hearing, the Petitioner testified that he was indicted for first
degree murder, that counsel was appointed to represent him, and that he pleaded guilty to
voluntary manslaughter. The Petitioner said he told counsel that the altercation with the
victim occurred because the Petitioner knew the victim was involved in a murder and that
the Petitioner acted in self-defense.


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       The Petitioner testified that counsel met with him three times but that counsel did
not respond to his letters. The Petitioner said he filed a complaint with the Board of
Professional Responsibility.

       The Petitioner testified that he met with counsel once before a court hearing and
once before the trial date to discuss the State’s plea offer. The Petitioner stated that
counsel told him that counsel was unprepared for trial, that the Petitioner faced a fifty-
one-year sentence if convicted of first degree murder, and that the Petitioner should
accept the offer. The Petitioner said that they never discussed a self-defense theory and
that he was coerced into accepting the offer because counsel was unprepared.

       The Petitioner testified that he did not meet with counsel to prepare for the
sentencing hearing and that counsel did not prepare witnesses for the hearing. The
Petitioner said that counsel did not file an appeal, that he filed his appeal pro se, and that
appellate counsel was later appointed. The Petitioner stated that appellate counsel
appealed only the sentence and that the appeal was denied. The Petitioner said that facts
supported his self-defense claim, that he told appellate counsel those facts, and that
appellate counsel said it was a post-conviction issue.

       On cross-examination, the Petitioner testified that he and the victim had an
altercation about the victim’s involvement in a murder. The Petitioner stated that he had
witness statements and limited ballistic evidence. The Petitioner said that he “pretty
much” knew the evidence the State would present if his case went to trial.

       The Petitioner testified that he pleaded guilty as a Range III offender but that he
was classified as a Range II offender. The Petitioner admitted that during the plea
colloquy, he said he understood he was pleading out of range but that he was “under
duress, at the time because [he] wanted to go to trial . . . and didn’t know what to do.”
The Petitioner stated that he knew he would be sentenced at the court’s discretion and
that he was on probation when the current offense occurred.

       The Petitioner testified that he gave counsel the names of individuals to call as
witnesses at the sentencing hearing and that counsel subpoenaed those individuals. The
Petitioner stated that he decided to testify at the hearing, that he recalled counsel asking
him why he pleaded guilty, and that he recalled answering “because the case, it . . . [has]
too many ups and downs . . . it can go both ways.” The Petitioner did not recall saying at
the hearing he had concerns about witnesses appearing in court but recalled his concerns
about the lack of ballistic evidence.

      The Petitioner testified that he understood a best interest guilty plea to mean “it
was in [his] best interests to take the State’s plea agreement or go [to court] with an
unprepared lawyer.” The Petitioner stated that counsel did not explain the risks of


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pleading guilty and that he was not in the “right state of mind” because he did not know
what to do.

      Counsel testified that he had been practicing law since 2004, that in the past he
worked as an assistant district attorney general, and that he had tried two or three
homicide cases. Counsel said that he now worked as a criminal defense attorney and that
95% of his cases were criminal.

       Counsel testified that he provided discovery, telephone records, and ballistic
evidence to the Petitioner. Counsel stated that he investigated the crime scene. Counsel
stated that he summarized transcripts from the preliminary hearing and the discovery
materials into a document for cross-examination purposes. Counsel said he spent about
150 hours working on the Petitioner’s case. Counsel testified that one bullet was
recovered from the crime scene and that it was shot from a .40-caliber gun. Counsel
stated that the Petitioner gave the police a .45-caliber gun, that a witness saw the
Petitioner with two guns the night of the shooting, and that one was a .40-caliber gun.

       Counsel testified that he met with the Petitioner for more than an hour explaining
the physical evidence and eyewitness testimony the State would present at trial. Counsel
stated that he and the Petitioner discussed a self-defense theory but that no physical
evidence corroborated the theory. Counsel said he told the Petitioner that three witnesses
saw the Petitioner under the tree during the shooting and heard gunshots.

        Counsel testified that he discussed the State’s plea offer with the Petitioner and
that they discussed “the pros and cons” of the case. Counsel stated that he told the
Petitioner it was his decision to go to trial but “that under the circumstances, given the
amount of risks . . . [counsel] thought it was a fair offer[.]” Counsel said that he
explained the offer required the Petitioner to plead guilty to voluntary manslaughter as a
Range III offender. Counsel stated that the Petitioner accepted the offer and that he
reviewed the plea form twice with the Petitioner. Counsel said that he discussed the plea
colloquy with the Petitioner and that he asked the Petitioner if he understood. Counsel
stated that he did not recall the Petitioner’s having concerns about entering the plea and
that the Petitioner “didn’t get upset about the plea deal until after sentencing.” Counsel
testified that he prepared for the sentencing hearing and that he subpoenaed the
appropriate witnesses. Counsel stated he advised the Petitioner that he could receive
consecutive sentencing with an unrelated sentence he was serving.

       On cross-examination, counsel testified that he met with the Petitioner about five
times. Counsel stated that after the initial meeting, the Petitioner wrote a letter and had a
family member call counsel’s office. Counsel stated that he did not discuss the
Petitioner’s case with his family members because of the attorney-client privilege.
Counsel said that he met with the Petitioner after the Petitioner wrote multiple letters to
the Board of Professional Responsibility, that he explained why he would not speak with

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the Petitioner’s family, and that he would respond to the Petitioner’s letters if given time.
Counsel stated that he was prepared for a trial and that he would have asked for a
continuance if he were unprepared.

       Counsel testified that the Petitioner did not sign the plea agreement until the
morning of the hearing and that he answered the Petitioner’s questions about the
agreement. Counsel said that he enjoyed working with the Petitioner and that the
Petitioner received a “good outcome under the circumstances.” Counsel said he did not
coerce the Petitioner into pleading guilty.

       Appellate counsel testified that he was appointed to represent the Petitioner, after
the Petitioner had filed a notice of appeal. Appellate counsel said that sentencing was the
only issue raised in the notice and that he did not raise an issue requesting review for
plain error.

       After receiving the proof, the post-conviction court denied relief. The court
determined that counsel adequately communicated with the Petitioner and that the
Petitioner’s ineffective assistance of counsel claim was without merit. Based on the
findings, the court implicitly credited counsel’s testimony. The court found that counsel
reviewed the facts and applicable law with the Petitioner and consulted with the
Petitioner numerous times regarding the State’s plea offer. The court determined that the
Petitioner voluntarily and knowingly pleaded guilty. This appeal followed.

       Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court’s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

                             I.     Involuntary Guilty Plea

       The Petitioner contends that his guilty plea was coerced because counsel was
unprepared for a trial and that the Petitioner’s guilty plea was involuntary. The State
responds that the Petitioner failed to show that counsel coerced the Petitioner into
pleading guilty. We agree with the State.

       The Supreme Court has concluded that a guilty plea must represent a “voluntary
and intelligent choice among the alternative courses of action open to the defendant.”

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Alford, 400 U.S. at 31. A trial court must examine in detail “the matter with the accused
to make sure he has a full understanding of what the plea connotes and of its
consequence.” Boykin v. Alabama, 395 U.S. 238, 243-44 (1969); see Blankenship v.
State, 858 S.W.2d 897, 904 (Tenn. 1993). Appellate courts examine the totality of
circumstances when determining whether a guilty plea was voluntarily and knowingly
entered. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). A guilty plea is
not voluntary if it is the result of “[i]gnorance, incomprehension, coercion, terror,
inducements, [or] subtle or blatant threats.” Boykin, 395 U.S. at 242-43; see Blankenship,
858 S.W.2d at 904. A petitioner’s representations and statements under oath that his
guilty plea is knowing and voluntary create “a formidable barrier in any subsequent
collateral proceedings [because] [s]olemn declarations . . . carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

        The record reflects that the Petitioner entered a knowing, intelligent, and voluntary
best interest guilty plea. Counsel’s credited testimony reflects that he discussed the plea
agreement and the State’s evidence with the Petitioner. Counsel reviewed the plea form
twice with the Petitioner before he entered his plea. The guilty plea hearing transcript
reflects that the Petitioner told the trial court he understood he was waiving certain rights
by pleading guilty and that he did not have any questions about his plea. The Petitioner,
upon questioning, did not express concern at the plea hearing about counsel’s
competence, nor did he inform the court that he felt coerced into pleading guilty. The
Petitioner said he understood that the court would determine the length of the sentence
and that he would be sentenced as a Range III offender. The court asked the Petitioner
whether it was in his best interest to plead guilty, and the Petitioner responded “Yes sir.”
The Petitioner testified at the sentencing hearing that he pleaded guilty because his case
has “too many ups and downs” and that it could “go both ways.” Likewise, counsel
testified at the post-conviction hearing that he told the Petitioner that the Petitioner’s
sentence might be imposed consecutively with the sentence the Petitioner was currently
serving in incarceration. We conclude the record does not preponderate against the post-
conviction court’s findings that the Petitioner entered a knowing, intelligent, and
voluntary guilty plea. The Petitioner failed to prove he is entitled to relief on this basis.

                        II.     Ineffective Assistance of Counsel

       The Petitioner contends that he received the ineffective assistance of counsel,
arguing that counsel was not adequately prepared for a trial or the sentencing hearing.
The State responds that the Petitioner failed to prove that counsel provided deficient
representation. We agree with the State.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment of the United States Constitution, a petitioner has the
burden of proving that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

                                            -7-
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). The Tennessee Supreme
Court has applied the Strickland standard to an accused’s right to counsel under article I,
section 9 of the Tennessee Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2
(Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . , are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

        Counsel’s credited testimony at the post-conviction hearing reflects that he was
prepared for a trial. Counsel investigated the crime scene, reviewed discovery, and
summarized witness statements. Counsel said that he worked about 150 hours on the
Petitioner’s case and that he provided the Petitioner with the discovery and the ballistic
evidence. Counsel met numerous times with the Petitioner to review the evidence and to
discuss the State’s plea offer. Counsel said he answered the Petitioner’s questions
regarding the plea offer, that he subpoenaed witnesses for the sentencing hearing, and
that he was prepared for the sentencing hearing. We agree with the post-conviction
court’s determinations that counsel’s representation was not deficient. The Petitioner
failed to establish his ineffective assistance of counsel claim and is not entitled to relief
on this basis.

       The judgment of the post-conviction court is affirmed.


                                      ____________________________________
                                      ROBERT H. MONTGOMERY, JR., JUDGE


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