           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                        September 18, 2002 Session

        RICHARD LEONARD MENDOZA v. STATE OF TENNESSEE

                     Direct Appeal from the Circuit Court for Davidson County
                              No. 98-A-184    Walter C. Kurtz, Judge



                        No. M2001-01855-CCA-R3-PC - Filed March 28, 2003


The petitioner, Richard Leonard Mendoza, appeals the denial of his petition for post-conviction
relief, which alleged ineffective assistance of counsel in connection with his guilty pleas to
aggravated sexual battery and that his guilty pleas were involuntary. Additionally, he insists that the
post-conviction court erroneously denied funding for expert psychological services at the post-
conviction level. After a thorough review of the record, we are unpersuaded that the post-conviction
court’s rulings, findings and conclusion are anything other than proper, and we affirm the judgment.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T. WOODA LL
and ROBERT W. WEDEMEYER , JJ., joined.

David L. Raybin and Jacqueline B. Dixon, Nashville, Tennessee, for the Appellant, Richard Leonard
Mendoza.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Philip H. Wehby, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                                      OPINION

                On May 3, 1999, Richard L. Mendoza appeared in the Fifth Circuit Court for
Davidson County, Tennessee and entered guilty pleas to two counts of aggravated sexual battery
involving his minor stepdaughter, AH.1 Pursuant to a plea agreement with the state, four counts of
rape of a child were dismissed, and the petitioner was sentenced, by agreement, outside the range to
consecutive twelve and one-half year sentences. The following stipulated facts were presented at
the plea submission:


       1
           It is the policy of the court to refer to minor victims of sexual offenses only by their initials.
                        [Prosecution Counsel]: If this case had gone to trial the court
               and the jury would have heard testimony that the victim in this case
               at the time these offenses occurred was five years old. Her name is
               [AH]. She was five years old in October of 1997 when she disclosed
               to her mother [] that her step-father, Richard Mendoza had taken a
               hand held massager and had rubbed it on her vagina. This happened
               at least twice between a time period of August and October 8th of
               1997, which was the day she told her mother October 8.

                       Detective Ron Carter of the Metro Police Department was
               assigned to the case. He met with Mrs. Mendoza and [AH]. He went
               to the home and collected the massager that was used. That would
               have been introduced as evidence in this case. Detective Carter also
               confronted the defendant about this. He advised him of his Miranda
               rights. The defendant signed a Miranda rights waiver form[,] and he
               denied initially any sexual contact with [AH]. He was arrested on
               that date.

                       On October the 10th, a few days later, the defendant was in
               jail. He told the sheriff’s deputy Jeff Williams that he wanted to talk
               to Detective Carter again. Deputy Williams contacted Detective
               Carter. Detective Carter went to the jail, had Mr. Mendoza sign
               another rights waiver form and after doing that, Mr. Mendoza
               admitted that he had not told the truth to Detective Carter a couple of
               days earlier when Detective Carter interviewed him. He admitted
               kissing [AH]’s vagina. He admitted putting his finger inside her
               vagina[,] and he also admitted using the massager on her vaginal area
               as well.

                       Based on these facts, the State would recommend a
               disposition of twelve and a half years on counts five and six
               aggravated sexual battery. Mr. Mendoza is pleading out of range. He
               has one prior felony conviction, but he’s waiving that and pleading
               out of range. These sentences are to run consecutively to each other
               for a total sentence of 25 years. [AH]’s mother, [] [,] is in the
               courtroom today[,] and she approves of the settlement.

                After the trial judge found the petitioner guilty and imposed sentence, the petitioner
solicited permission to make a statement, which was granted. The petitioner then apologized, “I was
wrong. Words are not ever going to be enough. I’m sorry, and I realize it’s just not enough, but I
need to say, I’m deeply sorry.”




                                                 -2-
                Three hundred sixty-four days later, the petitioner sought post-conviction relief to set
aside his guilty pleas. When his petition was denied, this appeal ensued. At the outset, we note that
our review has been greatly facilitated by the post-conviction court’s comprehensive written findings
and conclusions and by the parties’ thoughtful presentations and thorough analyses.

                                       I. Grounds for Relief

                The record in this case reveals that the initial petition for post-conviction relief was
filed pro se. Counsel was appointed to represent the petitioner; thereafter, two amendments to the
petition were filed. From the numerous allegations appearing in the petitions, two basic themes
emerge. First, the petitioner complains that his appointed trial counsel provided constitutionally
ineffective representation. Second, the petitioner argues that his guilty pleas were involuntary and
must be set aside. The petitioner presses these claims on appeal, and additionally he maintains that
the post-conviction court erred when it overruled his request for expert services.

                               A. Ineffective Assistance of Counsel

              According to the petitioner, his appointed trial counsel was ineffective in the
following respects:

               (1) During the nineteen-month period between the petitioner’s arrest (October 9,
1997) and guilty pleas (May 3, 1999), trial counsel made no attempt to interview any witnesses, most
notably the victim, the victim’s mother, and the detective to whom the petitioner confessed.

                (2) Trial counsel waived a preliminary hearing, thereby forgoing the right to question
the lead investigator and the victim, in exchange for a copy of the petitioner's taped confession but
then failed to listen to the tapes for seven months, at which time the state’s Rule 16 discovery
obligations would have required production of the tapes.

               (3) Had trial counsel investigated the petitioner’s allegations of the victim's prior
sexual abuse by her biological father, trial counsel could have discovered and obtained an affidavit
filed in an Idaho divorce proceeding by the victim's mother that accused the father of sexually
abusing the victim.

                (4) Had trial counsel investigated the divorce proceedings that the petitioner's wife
instituted in Nashville after the petitioner was arrested, trial counsel would have discovered that the
wife did not mention the victim's sexual abuse as a ground for divorce.

                (5) Trial counsel failed to move to suppress and/or challenge the petitioner's
inculpatory statements to Detective Carter in a timely fashion and waited until the eve of trial, after
the motion deadline had long passed, to solicit funding for expert psychological services, which
request was denied by the trial court as untimely.



                                                  -3-
                 (6) Trial counsel failed to take appropriate action to have the petitioner’s eligible
felony conviction in Idaho reduced to a misdemeanor to avoid its impeachment use if the petitioner
elected to testify at trial and to blunt its impact on sentencing in the event of a conviction.

               (7) Trial counsel coerced the petitioner into accepting the state’s plea offer by
characterizing it as a “miracle” and an “answer” to his prayers.

              (8) Trial counsel incorrectly advised the petitioner about the admissibility of his prior
conviction and about the prison availability of sex-offender treatment.

               Petitioner insists that he would not have pleaded guilty to the aggravated sexual
battery charges but for his counsel's failure to adequately defend his case, investigate the facts, and
present appropriate defenses on his behalf.

                                    B. Involuntary Guilty Pleas

                The petitioner's claim of ineffective assistance of counsel dovetails, in large measure,
with his contention that his guilty pleas were involuntary. In this regard, he claims that he entered
his guilty plea due to counsel’s unpreparedness, and he again points to the failure to address or
challenge his inculpatory statements.

                            II. Post-Conviction Evidentiary Hearing

                Because of scheduling considerations, the hearing on the post-conviction petition was
conducted in three stages. In support of his claims, the petitioner first offered the testimony of
clinical psychologist Joan Schleicher on the issue of reliability and/or voluntariness of confessions.
The petitioner’s trial counsel had contacted Dr. Schleicher shortly before the trial date to arrange for
an evaluation regarding a possible diminished capacity defense and about the petitioner’s state of
mind when he confessed. The evaluation was never performed, however, because trial counsel’s
request for funds to hire Dr. Schleicher was denied as untimely. Post-conviction counsel, likewise,
sought funding to hire Dr. Schleicher to better challenge the constitutional voluntariness of the
petitioner’s confession in the post-conviction proceeding. That request was also denied, but the basis
for the ruling was the failure to make the requisite showing to obtain expert funds.

               Evidently, post-conviction counsel prevailed upon Dr. Schleicher to assist without
remuneration. Although she had not spoken to or personally evaluated the petitioner, Dr. Schleicher
did review materials that post-conviction counsel provided to her, including mental health and
treatment records related to a prior sex offense conviction. Based on that review, Dr. Schleicher
opined that the Stockholm Syndrome “could explain why [the petitioner] called [Detective] Ron
Carter and then waived his Miranda right that second time.” Without belaboring the topic, we glean
from Dr. Schleicher’s testimony that the syndrome is behavioral change brought on by “extreme
duress.” Typically, the extreme duress involves a captive situation whereby an individual is isolated,



                                                  -4-
unable to escape, and threatened but also is shown token acts of kindness. Individuals who
experience the syndrome come to identify with and seek approval from their captors.

              Doctor Schleicher’s opinion never solidified beyond the possibility that the
Stockholm Syndrome prompted the petitioner to confess to gain approval from Detective Carter.
Doctor Schleicher conceded on cross-examination that it was also possible that the petitioner felt
remorse and wanted to speak with the detective or that he confessed to spare his stepdaughter from
going through a trial.

               The petitioner also testified and first provided background personal information. He
was born in 1962 in Spokane, Washington. His musical talents were such that he was playing the
guitar professionally by the time he was thirteen years old, but early in his career his life became
punctuated by drug and alcohol abuse. The petitioner has four children, two daughters by his first
wife and two sons by his second wife.

                The petitioner testified that in 1991 he was prosecuted in Idaho for sexually molesting
one of his daughters and was found guilty of lewd conduct. The petitioner was eligible for and was
sentenced to a boot-camp program with substance abuse and sex offender treatment. After he
completed the boot-camp sentence, the petitioner remained in treatment until he completed probation
in 1996. Petitioner said that he was led to believe that if he successfully completed probation and
treatment, his conviction would be “automatically dropped to a misdemeanor.” As it turned out, his
belief was erroneous, and, as post-conviction counsel discovered, additional legal proceedings were
required to effectuate the reclassification of the conviction.

               While on probation, the petitioner met and married his third wife, Melinda, whose
daughter, AH, is the victim of the sexual abuse in this case. According to the petitioner’s testimony,
before he and Melinda could begin dating, she had to meet with his therapist and probation officer.
The therapist and probation officer counseled the petitioner and Melinda on appropriate behavior,
which included not allowing the petitioner to be alone with AH.

                The petitioner and Melinda married in 1995. Melinda and her former husband had
joint custody of AH, but they argued constantly. The petitioner testified about a court hearing in
Idaho involving Melinda’s concern that her former husband had been molesting AH. The petitioner
stated that the litigation became too expensive for both Melinda and her former husband, and the
parties eventually agreed privately to split their time with AH.

                Approximately two months after the petitioner completed his probation, he relapsed
into cocaine use and amassed considerable debt. The petitioner testified that he decided to promote
his musical career by moving to Nashville. Melinda insisted on moving with him, and they relocated
to Nashville in April 1997. None of the children moved with them at the time. In August, however,
the couple returned briefly to Idaho to pick up furniture and an automobile that had been left behind
in April. At that time, Melinda decided to take AH back with them to Nashville; the petitioner
unsuccessfully objected to relocating the victim.


                                                 -5-
                AH’s presence soon caused marital tensions. The petitioner testified that he was
working “doubles” at Logan’s Roadhouse from 11:00 a.m. until midnight. Melinda had been
accepted into a real estate training program focused on vacation time-share properties. To
accommodate her training, she insisted that the petitioner assume primary responsibility for AH’s
care. The petitioner said that he pressed Melinda to find a substitute day-care provider but that she
objected that she could not afford the expense. The petitioner related that he “juggled” his schedule
at Logan’s Roadhouse three times, and on the third occasion he was fired.

                According to the petitioner, the morning of October 8, Melinda asked him to move
out of the apartment. She repeated the request in the afternoon after AH came home from school.
The petitioner insisted that he lacked the financial resources to move. That evening, Melinda took
AH with her to work. Around 6:00 p.m., the petitioner received a curious telephone call from a
woman who explained that Melinda had hired her as a sitter for AH. As the evening wore on and
the petitioner did not hear from his wife, he called her at work. She told him that she had tried
removing his name from the apartment lease. Wanting to confront his wife in person, the petitioner
drove to her office where he encountered his wife and his wife’s boss, with whom the petitioner
suspected his wife was having an affair.

                 A police officer came into the room and instructed the petitioner to wait outside.
While the petitioner waited, Detective Ron Carter approached the petitioner, escorted him to an
unmarked vehicle, and questioned whether he had abused AH. The petitioner denied any such
activity, but he provided Detective Carter with information about his prior conviction. The petitioner
testified that he was very upset.

                The petitioner related that later that evening he was arrested. Detective Carter gave
the petitioner a business card and told the petitioner to call as soon as possible. The petitioner said
that he “figured that somehow maybe if I called [Carter], he would somehow let me out.” The
petitioner was unable to make bond, and he testified that his treatment at the jail upset him further
and made him fearful for his safety. The petitioner claimed that after he was fingerprinted, he heard
someone yelling out for the jailers “to make sure he went in population and got his beating.” The
petitioner said that he had heard that a person accused of a sex charge would be raped and killed in
prison. Other officers, according to the petitioner, questioned him why he had raped the victim, and
one officer showed the petitioner a newspaper article reporting on the petitioner’s arrest and the
outstanding charges. The petitioner claimed that the officer with the newspaper told him that
everyone in the jail was going to find out about him.

               There was something about the newspaper article that agitated the petitioner. At the
post-conviction hearing, his testimony on this point was vague. He said that he wanted to know why
Detective Carter had lied about him to the newspaper. The petitioner expressed his desire to speak
with Detective Carter, and his request was relayed to the detective. As a result, Detective Carter
came to the jail and met with the petitioner on the evening of October 10, 1997. Detective Carter
advised the petitioner of his rights, obtained a signed rights waiver from the petitioner, and tape
recorded the ensuing conversation.


                                                 -6-
                Contrary to his earlier denials of guilt, the petitioner made numerous inculpatory
statements to Detective Carter on that occasion. Included in the record before us are audio cassette
tape recordings of the petitioner’s October 10 statements to Detective Carter and transcripts of the
cassette tape recordings, prepared by the petitioner’s post-conviction counsel. We have reviewed
these materials and find the following excerpts to be representative of the petitioner’s admissions
of wrongdoing.

               [Detective Carter]: . . . [O]ne of the things she had said that you had
               taken your tongue and was doing oral sex with her – putting your
               tongue in her vaginal area.

               [Mendoza]: I wasn’t putting my tongue there. I kissed her, but I
               didn’t stick my tongue in her. . . . But I did kiss her there. . . . I tried
               to pretend it wasn’t anything serious – that I wasn’t doing anything
               wrong. . . .

               ....

               [Detective Carter]: At what point did you start feeling yourself slip
               back into wanting to molest a child? And that’s exactly what you did.

               [Mendoza]: [AH’s father] had told [AH] – this is over the phone
               before she came – that she couldn’t wear underwear to bed. And she
               told Melinda this. And in my head – I knew that he was grooming
               her. And in my head I actually started grooming her, thinking she
               was going to be not wearing underwear and she’s going to want this.

               ....

               [Detective Carter]: How many times have you touched her?

               [Mendoza]: Total of four (4). And each time I swore I’d never do it
               again. And I told her that I can’t and that it was wrong.

               ....

               [Detective Carter]: How many times did you lick her?

               [Mendoza]: Twice.

               ....




                                                   -7-
                [Mendoza]: . . . I gave myself permission because [AH’s father] did
                and so I figured well if [AH] wanted [her father] to, then it was okay
                for me. When I should have just said no, don’t, it was wrong. Then
                when she told me that – that he had did that – and I knew that. And
                I should have stopped it then, but I didn’t. And I can’t – I can’t make
                any excuses. It’s my fault and it is my sickness. . . .

                At the post-conviction hearing, the petitioner attempted to explain why he made the
inculpatory statements to the detective. The petitioner variously pointed to sleep deprivation, not
being in his “right mind,” being confused and trying to think of anything to say to “appease”
Detective Carter, and thinking that his statements would get him out of jail. Regarding why he
ultimately agreed to plead guilty, the petitioner testified inter alia, that his trial counsel told him that
there was no defense he could raise in light of the inculpatory taped statements. He said that he “was
defenseless, and going to trial would be ridiculous.” The petitioner mentioned that after being
incarcerated for nineteen months, his mental health was poor and that he was sick of the death threats
and persecution from other inmates and guards. In addition, he was fearful that if he went to trial,
the state would use his past sex abuse therapy and history of being a child molester against him.
While incarcerated, the petitioner had a religious experience. He testified that an important
consideration that got him to sign the plea agreement was that when his attorney presented it to him,
the attorney told him that “it was a miracle from God, a gift from God, that that was [his] answer to
prayer.”

               The state called the petitioner’s appointed trial counsel, Jerrilyn Manning, to testify
at the post-conviction hearing. She explained that she was originally assigned to the case and later
recruited another attorney from her office to assist so the petitioner would have a second attorney
with whom to consult. Ms. Manning admitted that she waived the preliminary hearing on the
petitioner’s charges. She also conceded that the defense gained no tactical advantage from the
waiver because, although the waiver was predicated on the state’s early production of the petitioner’s
taped statements, she did not listen to the tapes until May 1998 – after the petitioner was indicted.

                 Ms. Manning, likewise, did not dispute that she interviewed no witnesses. She
testified that she did not interview Detective Carter because she had the tape recorded statements.
She did not attempt to interview the victim or the victim’s mother because she did not know how
to locate them. Ms. Manning explained that in her experience, the state would not have made the
child available to be interviewed and that the mother would have rebuffed a request through the state
for an interview. Thus, she did not pursue a request through the state that she be allowed to speak
to these witnesses.

               Ms. Manning was shown records obtained by post-conviction counsel from Idaho and
Washington, which included police reports regarding allegations that the victim had been sexually
abused by her father and divorce records containing sworn accusations by the victim’s mother that
her former husband had molested the child. Ms. Manning acknowledged that the petitioner had



                                                    -8-
asked her to investigate the allegations but that all she did was send a request to the state for
exculpatory evidence of other sex abuse allegations involving the victim.

                Ms. Manning defended her inactivity, by and large, on the basis that from her first
meeting with the petitioner until December 1998, he insisted that he did not want to go to trial. She
related that the petitioner told her that he confessed to the detective because he “wanted to clear
everything up.” The petitioner, however, insisted to Ms. Manning that he never raped AH. He told
his attorney that “he had not penetrated her, but that he had kissed her in her vaginal area and had
touched her with a massager in her vaginal area.”

                At one point in March 1998, the state made a 30-year plea offer on the case. Because
of the petitioner’s insistence that he was not guilty of rape, Ms. Manning solicited the state to allow
the petitioner to plead to aggravated sexual battery. The state’s response was an immediate and
unequivocal “no.” Ms. Manning testified that she explained to the petitioner the legal definition of
“penetration” and that she even reviewed with the petitioner copies of relevant cases addressing the
issue. In her opinion and based on the petitioner’s admissions, a jury instruction on penetration
would have been forthcoming in the event the case was tried.

                According to Ms. Manning, in early December 1998, the petitioner then did an about-
face; he took the position that nothing happened and that AH made up the allegations against him
because of her father. In terms of trial strategy, Ms. Manning testified that she told the petitioner that
juries often find children to be persuasive and that the biggest problem with his case was his
confession to Detective Carter and how to challenge it. She admitted telling the petitioner that his
prior sex conviction could be used against him, but she said that the discussion related mainly to use
of the conviction at sentencing should he be convicted. As for the conviction being disallowed if
the petitioner did not testify at trial, Ms. Manning said that he intended to testify. As for
impeachment use of the conviction depending on its felony/misdemeanor status, she did not recall
discussing the distinction with the petitioner. She said that the petitioner was of the opinion that the
conviction already had been reduced to a misdemeanor.

                 Nothing was filed relative to the petitioner’s confession until late April of 1999. At
that time, petitioner’s counsel filed a motion to suppress the statements made to Detective Carter and
a motion seeking funds to hire a psychological expert to assist in challenging the admissibility of the
statements. The petitioner’s charges were set for trial on May 10, 1999. On April 30, 1999, the
conviction court entered an order denying the request for funding. “The motion for an expert,” the
court wrote, “is untimely.” The court continued, “The record supports no reason that it is filed a year
after the motion filing deadline and a week and a half before trial.” The motion to suppress was
scheduled for hearing on May 3, 1999, but it was preempted by the petitioner’s guilty pleas on that
date.

              Ms. Manning was questioned at the post-conviction hearing about the five-month
delay from December of 1998 until April 1999 in requesting funds and challenging the statements.
She cited nonspecific problems related to the two previous trial settings in the case and explained


                                                   -9-
that because of a death in her family, she had taken time off to be with her family. Also, Ms.
Manning and co-counsel were having difficulties in identifying any legal irregularities in how the
petitioner’s statement was taken.

                The plea offer that the petitioner accepted was made after the funding request was
denied but while the suppression motion was outstanding. Ms. Manning testified that she could not
recall the specifics of the conversation with the petitioner, but she remembered that God was
mentioned and that the petitioner remarked that he had prayed about the matter. Ms. Manning
denied telling the petitioner that the plea offer was a “gift” from God, but she conceded, “I told him
perhaps this was the answer to his prayers.”

               At the time the petitioner agreed to accept the offer, he had been incarcerated for
about nineteen months. Ms. Manning described his demeanor in terms of “he considered himself
in pretty much a lose/lose situation from the beginning.” The petitioner was satisfied, however, with
the offer because he would not be pleading guilty to penetrating the victim.

                The final post-conviction witness was Detective Carter. His testimony was brief. He
related the circumstances under which he talked to the petitioner. He affirmed that on both occasions
when he spoke with the petitioner that he advised the petitioner of his rights and obtained a signed
rights waiver. Detective Carter said that the petitioner did not mention that anyone at the jail had
threatened him. Regarding the victim’s allegations, Detective Carter testified that the victim was
claiming that the petitioner was the only person who had abused her; the petitioner, however, told
the detective that something had occurred between the victim and her father.

                    III. Post-Conviction Court’s Memorandum and Order

                At the close of the evidentiary hearing, the court took the matter under advisement,
and on June 21, 2001, it issued its ruling denying the petition for post-conviction relief. The court
began by pointing out that it would have been difficult for the petitioner to have prevailed in a jury
trial if his confession to Detective Carter had been admitted and the five-year-old victim had
testified. The court credited the testimony of trial counsel that the petitioner initially indicated that
he did not want to go to trial and that the petitioner admitted his guilt to trial counsel. After being
in custody for slightly more than a year, the petitioner then changed his mind. The court accepted
Ms. Manning’s testimony that, despite her efforts to explain the law, the petitioner insisted that he
had not penetrated the victim and, therefore, was not guilty of rape. On the day he pleaded guilty,
the petitioner sought permission to make a statement, which was granted. The petitioner apologized
to his wife, who was in the courtroom that day, professed his love, and asked for forgiveness.

               The post-conviction court then proceeded to address each criticism that the petitioner
had leveled against trial counsel. We summarize the court’s findings and conclusions.

              As for the failure to interview witnesses, the court found that the petitioner had failed
to show prejudice. The court noted that trial counsel did not know how to locate the victim or the


                                                  -10-
victim’s mother, and trial counsel believed that any interview request through the state would have
been refused.

                As for the waiver of the preliminary hearing, the court found “no breach of the
standard expected of competent counsel and no prejudice.” The court relied on the absence of proof
how the hearing would have benefitted the petitioner and on trial counsel’s remembrance that the
petitioner did not want the victim to have to testify at the hearing.

                  Regarding trial counsel’s failure to pursue the allegations that the victim had been
abused by her father, the court was not impressed with the value of the information. The court did
state that trial counsel should have investigated the allegations and obtained the affidavit filed by the
victim’s mother in the Idaho divorce case. Nevertheless, trial counsel’s failure did not, in the court’s
opinion, prejudice the petitioner. The victim, for example, had no physical signs of sexual abuse;
the petitioner, therefore, did not need to blame anyone else for injuring the victim. In addition, in
the court’s estimation, impeaching a five-year-old child with a prior inconsistency carries “some
weight but not great weight.”

               The Nashville divorce records, showing that the petitioner’s wife did not claim sex
abuse as a ground of divorce from the petitioner, might have been admissible at trial, according to
the post-conviction court. Its impeachment value in cross-examination of the petitioner’s wife would
have, however, been slight.

               Concerning the petitioner’s confession, the post-conviction court found no basis upon
which trial counsel could have effectively challenged its admission or impeached its reliability. The
court found that the petitioner’s rights were meticulously observed by Detective Carter and that the
rights waivers were validly obtained. Having listened to the petitioner’s testimony and having
observed his demeanor, the post-conviction court described him as an “intelligent and articulate
individual.”

               The court was skeptical that the petitioner’s confession was motivated by a desire to
please Detective Carter or by threats and harassment by other prisoners and correction officers.
Rather, the court concluded that the petitioner was motivated by remorse and concern for the victim.
Moreover, even if the petitioner thought that his confession might improve his jail situation or
somehow result in his release, the court found that such “unrealistic” beliefs did not render his
confession involuntary.

                 In a similar fashion, the court was doubtful that a psychologist could have helped the
petitioner either suppress the confession or explain to the jury why he might have falsely confessed.
The court declined to wade into the intricacies of the “Stockholm Syndrome” or whether a person
suffering from the syndrome lacks “free will.” The testimony of Dr. Schleicher, taken in its best
light, was that the petitioner was motivated to please Detective Carter, which might have caused him
to confess falsely. The court disposed of this possibility, finding that “any possible use of the
‘Stockholm Syndrome’ at trial in an effort to impeach the confession is simply not credible.”


                                                  -11-
                  Turning to the petitioner’s prior Idaho conviction, the post-conviction court accepted
the petitioner’s evidence that the felony conviction could have been reduced to a misdemeanor. The
petitioner, though, advised trial counsel that the conviction already had been reduced to a
misdemeanor. Trial counsel took the incorrect information and advised the petitioner that the
conviction could have an adverse impact on sentencing and that the state might attempt to use the
conviction for impeachment should he testify at trial. “There is certainly no prejudice,” the post-
conviction court concluded, “from the way this was handled, although it certainly would have been
better if trial counsel had known that conviction had not been reduced to a misdemeanor.”

                Last, the post-conviction court simply did not credit the petitioner’s testimony that
trial counsel told him that the plea offer was a “gift from God” or that trial counsel pressured him
to enter a plea. The court found that trial counsel’s statement that perhaps the offer was an answer
to the petitioner’s prayers was a passing comment and did not exert any pressure on the petitioner
to plead.

                The post-conviction court summed up its findings and conclusions on the ineffective
assistance of counsel claims by expressing the opinion that while trial counsel “could have done
several things better,” the overall quality of representation “had no impact” on the petitioner’s guilty
pleas. From the evidence presented, the court was convinced that even if trial counsel had done
everything about which the petitioner complained, he still would have pleaded guilty.

                The post-conviction court briefly discussed the involuntary guilty plea argument. The
court cited to the absence of credible evidence to support the involuntary nature of the plea. The
court pointed out that the petitioner had several days to consider the plea and that during the plea
colloquy, he responded “rationally and appropriately to all the questions asked.” Moreover, the
petitioner apologized in open court for abusing his stepdaughter.

                Accordingly, the post-conviction court denied the petition.

                IV. Denial of Expert Services for Post-conviction Proceedings

                On appeal, the petitioner registers an initial complaint that the post-conviction court
erred in denying his request for funds for expert psychological services at the post-conviction level.
As we indicated earlier, the petitioner sought funds to retain Dr. Joan Schleicher to demonstrate how
the voluntariness and reliability of his confession to Detective Carter could have been contested
during the original prosecution. Doctor Schleicher is the same expert for whom the petitioner’s trial
counsel had unsuccessfully solicited funding on the eve of trial. The petitioner insists that Dr.
Schleicher’s testimony and her written report met the threshold requirement of showing a
particularized need for expert services.

                The petitioner’s argument is somewhat misleading because at the motion hearing on
the request for expert funds, the petitioner did not present Dr. Schleicher’s testimony or introduce
her written report. Her testimony and report were offered at a later time when the merits of the post-


                                                 -12-
conviction claims were litigated. At the motion hearing, post-conviction counsel simply argued in
support of the motion. Essentially, the argument was that in the typical situation, it is illogical, or
at least unusual, for an arrestee to ask to speak to a law enforcement officer; ergo, serious questions
about the petitioner’s mental health must exist requiring expert assistance. When the post-conviction
court expressed skepticism about the speculative nature of the claim, the petitioner’s counsel then
argued, “[L]et’s pretend that this is not a post conviction proceeding. Let’s do what due process
requires and put us back at the trial. . . . I should not have to jump over some huge due process
hurdle.” The post-conviction court remained unconvinced and denied the motion. We review that
ruling for an abuse of discretion. See State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000).

                On appeal, the petitioner points to Tennessee Supreme Court Rule 13, State v.
Barnett, 909 S.W.2d 423 (Tenn. 1995), State v. Scott, 33 S.W.3d 746 (Tenn. 2000), and State v.
Georgia Lucinda Hagerty, No. E2001-01254-CCA-R10-CD (Tenn. Crim. App., Knoxville., April
23, 2002), as supporting his post-conviction funding request. We disagree. First of all, the showing
of “particularized need” for expert services means just that; the need must be “particularized.”
Barnett, 909 S.W.2d at 431. Each request, consequently, stands or falls on the facts and
circumstances of the particular case. Id. The required showing was not made in this case.

                  In Georgia Lucinda Hagerty, for example, the court recounted in painstaking detail
how the defense made out its case of “particularized need” for expert assistance regarding
posttraumatic stress disorder. The defense offered live testimony and affidavits from fact witnesses
to the abuse inflicted on defendant Hagerty by the deceased victim. Id., slip op. at 7-8. The defense
established that there was “legitimate psychiatric recognition of posttraumatic stress disorder in the
domestic abuse or battering context,” and the defense showed a connection between the facts and
circumstances of the case and the disorder. Id., slip op. at 9. The court described the defense burden
as presenting a “daunting challenge of demonstrating, by reference to specific facts and
circumstances, that expert assistance is necessary to ensure – not a perfect – but a fundamentally fair
trial.” Id., slip op. at 6-7. In our estimation, the petitioner in this case failed to launch an effective
campaign to meet the “daunting challenge.”

                Similarly, in Scott, the defense went to great lengths to show particularized need for
a DNA analysis expert. The defendant, according to the Scott court, “listed in meticulous detail the
reasons needed for the expert assistance” and offered supporting witnesses. Scott, 33 S.W.3d at 753.
Among the reasons developed were the need to educate defense counsel about relevant issues
involved in DNA analysis, the need to determine if DNA samples had been contaminated in light
of inconsistent results reached by different examiners, and the need to understand why some reports
mentioned that blood samples from the defendant’s clothing contained the DNA of an unidentified
third person. Id. at 753-54. Under those circumstances, the supreme court held that the trial court
erred in denying the requested services. See id. at 754 (“the trial court deprived the [defendant] of
a meaningful opportunity to defend when his liberty was at stake”).




                                                  -13-
                The particularized need showings in Scott and Hagerty are qualitatively different
from the petitioner’s assertions in this case. Rather than supporting the petitioner’s position, these
cases highlight the deficiencies in the petitioner’s application for expert assistance.

                 Furthermore – and perhaps more fundamentally – notwithstanding the petitioner’s
protestations, his request for funding must be viewed through the lens of a non-capital, collateral
attack on his guilty pleas. Section 5(a) of Tennessee Supreme Court Rule 13 gives discretion to a
trial court to authorize expert services only in “the trial and direct appeals of all criminal cases in
which the defendant is entitled to appointed counsel and in the trial and appeals of post-conviction
proceedings in capital cases.” Tenn. R. S. Ct. 13, § 5(a). In addition, via Davis v. State, 912 S.W.2d
689, 696-97 (Tenn. 1995), the supreme court has reiterated that “the state is not required to provide
expert assistance to indigent non-capital post-conviction petitioners.” The court explained, “Once
the process goes beyond the trial and direct appeal as of right stage, the state has no duty to duplicate
the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to
reverse his conviction.” Id. at 696; see Clayton Eugene Turner v. State, No. E2001-02476-CCA-R3-
PC, slip op. at 7 (Tenn. Crim. App., Knoxville, Oct. 1, 2002); John Paul Seals v. State, No. E2001-
01756-CCA-R3-PC, slip op. at 3-4 (Tenn. Crim. App., Knoxville, July 11, 2002), perm. app. denied
(Tenn. 2002); Antione Harbison v. State, No. M2001-00887-CCA-R3-CD, slip op. at 12-13 (Tenn.
Crim. App., Nashville, April 10, 2002), perm. app. denied (Tenn. 2002).

                Consequently, for all the foregoing reasons, the post-conviction court cannot be
faulted or put in error for denying the petitioner’s request for expert assistance.

    V. Standard of Review: Ineffective Assistance of Counsel & Involuntary Guilty Plea

               A post-conviction petitioner bears the burden of proving his or her allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). “Evidence is clear and
convincing when there is no serious or substantial doubt about the correctness of the conclusions
drawn from the evidence.” 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)). On appeal, the appellate court
accords to the trial court’s findings of fact the weight of a jury verdict, and those findings are
conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d
572, 578-89 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).
Conclusions of law receive purely de novo review, with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 457-58 (Tenn. 2001).

                The Sixth Amendment to the United States Constitution and Article I, section 9 of
the Tennessee Constitution both provide that a defendant in a criminal case is entitled to effective
assistance of counsel. See Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). To make out a claim of
ineffective assistance of counsel, the petitioner must show both that his counsel failed to perform at
a level demanded of attorneys in criminal cases and that the deficient performance adversely affected
the defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984); Baxter, 523
S.W.2d at 936. Should the petitioner fail to establish either deficient performance or resulting


                                                  -14-
prejudice, he is not entitled to relief. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. On appeal,
there is a strong presumption that the petitioner received satisfactory representation. Barr v. State,
910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).

                When reviewing an attorney’s performance, courts do not “‘second guess’ tactical and
strategic choices,” nor do we “measure [the] defense attorney’s representation by ‘20-20 hindsight.’”
Henley, 960 S.W.2d at 579. We endeavor to eliminate “the distorting effects of hindsight . . . [and]
evaluate the conduct from counsel’s perspective at the time” of the conduct. Strickland, 466 U.S.
at 689, 104 S. Ct. at 2065. “The fact that a particular strategy or tactic failed or hurt the defense,
does not, standing alone, establish unreasonable representation.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996). Simply stated, on appeal, there is a strong presumption that the petitioner received
satisfactory representation. Barr, 910 S.W.2d at 464. On the other hand, our “deference to matters
of strategy and tactical choices applies only if the choices are informed ones based upon adequate
preparation.” Goad, 938 S.W.2d at 369.

                 When the petitioner claims that ineffective assistance of counsel resulted in a guilty
plea, the petitioner must show 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, 58-59,
106 S. Ct. 366, 350 (1985). Independent of, and as an alternative to, the claim of ineffective
assistance of counsel, a post-conviction petitioner may successfully attack his conviction when his
guilty plea was unknowing or involuntary. See Tenn. Code Ann. § 40-30-203 (1997) (post-
conviction relief available “when the conviction is void or voidable because of the abridgement” of
a constitutional right); Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969); State v.
Wilson, 31 S.W.3d 189, 194 (Tenn. 2002) (due process requires that guilty pleas be knowing and
voluntary). The petitioner has advanced both types of claims.

                               VI. Ineffective Assistance of Counsel

                 The record before us, and particularly the testimony of petitioner’s trial counsel, is
convincing that the investigative efforts were quite meager. Trial counsel interviewed no witnesses,
failed to investigate allegations of prior sexual abuse by the victim’s father, failed to explore possible
motives of the petitioner’s wife to make untruthful allegations, and failed to verify or check on the
petitioner’s prior criminal history. Evidently, the confession to Detective Carter, in conjunction with
the petitioner’s inculpatory admissions to his counsel, were the driving forces that caused trial
counsel to abandon independent avenues of investigation.

                In general, an attorney has a duty to conduct an appropriate investigation into both
the facts and the law to examine possible areas of defense. See Baxter, 523 S.W.2d at 932. Our
adversarial system of justice, at the most fundamental level, functions only when “‘all available
defenses are raised’ so that the government is put to its proof.” Id. at 932-33 (quoting United States
v. Decoster, 487 F.2d 1197, 1203-04 (D.C. Cir. 1973)).




                                                  -15-
               “Reasonableness,” however, is the constant guidepost to arrive at a fair assessment
of attorney performance. In the context of investigation options, the Strickland Court explained,

               [S]trategic choices made after thorough investigation of law and facts
               relevant to plausible options are virtually unchallengeable, and
               strategic choices made after less than complete investigation are
               reasonable precisely to the extent that reasonable professional
               judgments support the limitation on investigation. In other words,
               counsel has a duty to make reasonable investigations or to make a
               reasonable decision that makes particular investigations unnecessary.
               In any ineffectiveness case, a particular decision not to investigate
               must be directly assessed for reasonableness in all the circumstances,
               applying a heavy measure of deference to counsel’s judgment.

Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066.

               The Strickland Court elaborated further about the reasonableness of counsel’s choices
in response to a client’s own statements or actions.

                        The reasonableness of counsel’s action may be determined or
               substantially influenced by the defendant’s own statements or actions.
               Counsel’s actions are usually based, quite properly, on informed
               strategic choices made by the defendant and on information supplied
               by the defendant. In particular, what investigation decisions are
               reasonable depends critically on such information. For example,
               when the facts that support a certain potential line of defense are
               generally known to counsel because of what the defendant has said,
               the need for further investigation may be considerably diminished or
               eliminated altogether. And when a defendant has given counsel
               reason to believe that pursuing certain investigations would be
               fruitless or even harmful, counsel’s failure to pursue those
               investigations may not later be challenged as unreasonable. In short,
               inquiry into counsel’s conversations with the defendant may be
               critical to a proper assessment of counsel’s investigation decisions,
               just as it may be critical to a proper assessment of counsel’s other
               litigation decisions.

Id. at 691, 104 S. Ct. at 2066.

               In this case, based on the petitioner’s confession to law enforcement and on his
insistence that he was not guilty of “rape” because he never penetrated AH, certain areas of
investigation reasonably could have been assigned a low priority. What strikes us as disturbing,
however, in this case relative to the Strickland performance component is that trial counsel’s


                                               -16-
decisions appear largely, if not wholly, influenced by certain “assumptions.” She assumed, for
instance, that the state would not have made AH available for an interview; she assumed that the
victim’s mother would have declined an interview request communicated through the state; she
assumed that Detective Carter had no relevant information to convey. In addition, she evidently
assumed that the petitioner’s taped statements to Detective Carter were so devastating that no urgent
need existed to listen to the tapes.

                Cookie-cutter advocacy is fraught with peril. If, for example, through efforts to
interview AH and the mother, trial counsel had discovered that AH was refusing to testify, the
strength of the state’s case could have been affected. It is well-settled law that a conviction cannot
be founded solely upon a defendant’s confession; corroborating evidence is required to sustain the
conviction. See State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000). By these observations, we are not
suggesting that a client’s inculpatory statements should be irrelevant to formulating a plan of
investigation. Nor, however, do we believe that a confession invariably vitiates the need for any
investigation. See Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002) (stating that “a defendant’s
statements or confessions do not eliminate counsel’s duty to investigate”).

                We are confronted in this case with trial counsel’s failure to explore in a timely or
meaningful fashion the viability of defense strategies. Moreover, we are not speaking of some
elaborate or innovative exploration. We are referring to bedrock investigative techniques, such as
attempting to interview fact witnesses and evaluating the state’s ability to prove each and every
element of the charged crimes beyond a reasonable doubt.

                By contrast, the claim that trial counsel’s services were substandard in failing to
develop a psychological construct to challenge the petitioner’s confession as involuntary or
unreliable is much weaker. The record is devoid of any evidence of procedural irregularities, such
as Miranda violations, in how Detective Carter obtained the inculpatory admissions from the
petitioner. The petitioner told trial counsel that he confessed because he “wanted to clear everything
up.” We discern that trial counsel considered the petitioner to be a rather “difficult” and emotional
client, but the difficulties appear to stem largely from the petitioner’s inability to understand or
unwillingness to accept the legal definition of “sexual penetration” as an element of rape. Although
his incarceration undoubtedly was unpleasant and stressful, the petitioner presented no symptoms
of intellectual deficiency or other condition that would prompt a false confession. See generally
Nichols, 90 S.W.3d at 590-97 (petitioner mounted extensive, but unsuccessful, campaign to prove
his confessions should have been challenged by counsel as false because they contained inaccuracies
and omissions and because there was evidence of innocence).

              Trial counsel’s performance vis-a-vis the petitioner’s confession likewise appears
reasonable pursuant to existing legal authority. In Brimmer v. State, 29 S.W.3d 497 (Tenn. Crim.
App. 1998), which was decided prior to the petitioner’s guilty pleas, Brimmer complained that trial
counsel was ineffective for failing to present expert testimony at a suppression hearing about
“Prisoner of War Syndrome” whereby “sensory deprivation occurring in solitary confinement might



                                                -17-
result in a false statement by the prisoner in order to please his captors.” Id. at 511. The court
concluded that even had such testimony been offered, no legal basis for suppression existed.

               In Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 93
               L.Ed.2d 473 (1986), the United States Supreme Court ruled that “a
               defendant’s mental condition, by itself and apart from its relation to
               official coercion” does not render a statement involuntary. Because
               the rule of exclusion has been established as a deterrent to police
               misconduct, coercive activity on the part of law enforcement is a
               necessary predicate to finding that a confession is not voluntary under
               the Due Process Clause.

Brimmer, 29 S.W.3d at 512.

                Previously on appeal to the supreme court, Brimmer had complained that the trial
court erroneously excluded the same expert testimony during the guilt phase of the defendant’s trial.
State v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994). The trial court found that the basis for the
expert’s opinion “was not sufficiently trustworthy to go to the jury on the issue as to who and what
may have influenced the defendant’s mental state at the time that he gave his confession.” Id. Also,
the trial court noted that the defendant was not otherwise prevented from showing the jury the
physical and psychological environment that yielded his confession. See id. The supreme court
found no error in disallowing the testimony at trial. See id.

                In summary, the petitioner’s complaints about trial counsel’s deficient performance
are legitimate, in part, and unfounded in other respects. Turning next to the prejudice component
of the ineffective assistance claim, our review of the record convinces us that the lower court
correctly gauged the petitioner’s failure to show that he would have insisted on going to trial but for
trial counsel’s lapses in performance.

                When, as in this case, a claim of ineffective assistance of counsel is predicated on a
failure to investigate, the petitioner is obligated to show what a reasonable investigation would have
revealed. See Owens v. State, 13 S.W.3d 742, 756 (Tenn. Crim. App. 1999) (“deficient
representation by omission requires more than a speculative showing of a lost potential benefit”).
The petitioner failed to make the requisite showing in connection with his complaints that trial
counsel did not interview witnesses and waived a preliminary hearing. The petitioner was unable
to locate AH or AH’s mother and, therefore, did not present their testimony at the hearing on his
post-conviction petition. See Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990) (even
if petitioner can show deficient performance by counsel, petitioner not entitled to relief unless he
produces witness at post-conviction hearing, shows that counsel could have located witness, and
elicits both favorable and material testimony from witness). Likewise, the petitioner submitted no
evidence indicating how he would have benefitted from a preliminary hearing. Strickland’s
prejudice prong clearly has not been satisfied for these complaints.



                                                 -18-
                 As for the balance of his ineffective assistance claims, the petitioner did endeavor to
introduce exhibits, testimony, and other evidence showing what a reasonable investigation would
have uncovered. The petitioner did not, however, prove by clear and convincing evidence that these
fruits of a constitutionally “effective” investigation would have sustained his resolve to go to trial.
The post-conviction court accredited trial counsel’s testimony that for approximately one year after
his arrest, the petitioner said that he did not want to go to trial on the charges. In early December
1998, the petitioner, according to trial counsel, changed his mind, maintained that nothing had
happened between AH and him, and claimed that AH made up the allegations against him because
of her father. Most likely, trial counsel finally persuaded the petitioner that his notion of sexual
penetration was not consistent with the legal definition, and the petitioner reacted by claiming that
AH had fabricated the allegations against him because of her father.

                Approximately five months later and on the eve of trial, the petitioner then accepted
the state’s plea offer to consecutive, out-of-range sentences to two counts of aggravated sexual
battery. Thus, the pivotal time frame in this case is the period between December 1998 and May 3,
1999, when the petitioner pleaded guilty, and the critical inquiry is what caused the collapse of the
petitioner’s resolve to go to trial. The petitioner’s post-conviction testimony mentions several
reasons for pleading guilty. At one point, he testified that he was “not in good mental health,” that
he was “sick of the persecution from the other inmates and the guard,” and that he “gave up.” He
also said that he was trying to please everyone by pleading guilty. Other reasons that he gave were
that he “wanted to get out of that county jail,” and that when trial counsel communicated the state’s
offer, he thought that she was “giving [him] the answer from God.”

                Notably, the petitioner’s testimony does not attribute his guilty pleas to trial counsel’s
failure to investigate prior sexual abuse of AH, the divorce proceedings that the petitioner’s wife
instituted in Nashville after he was arrested, his Idaho conviction, or his treatment records related
to the prior conviction. Insight regarding why the petitioner asked trial counsel to investigate these
matters is found in his statement, “I wanted [trial counsel] to get all that information so that they
didn’t – I wanted them to understand what I’d really been trying to work for.” Later, the petitioner
reiterated the same point. “I guess that’s why I asked her to get records from, you know, my
treatment facilities; because I figured that that would be able to help her understand what I had been
working in as far as treatment.”

                The following testimony is the most detailed account why he accepted the state’s plea
offer:

                        And [trial counsel] came to me, I think it was on a Friday,
                with that plea agreement and said, You need to get out of here. . . .
                And – and I said, Yeah, I really do. And she goes, They’ve offered
                you this deal at eighty-five percent. Because up to that time, she had
                always said a hundred percent[.] There’s no way you get anything
                less than a hundred percent. And that’s – so I would never take any
                deal offered, and – and plus, I wanted a trial. I figured that somehow


                                                  -19-
                I would have a defense because I was – I never hurt [AH], and I
                wanted to prove that. And I’ve never talked to my ex. I thought,
                Okay, go to trial, it will all come out. So every time she would come
                to me with an offer, I would say no. But that – at that time, I was so
                sick of everything that was happening around me, and when she said
                eighty-five percent, I thought, I’m going to get out somehow. I
                thought maybe that would be a way to make parole or somehow, you
                know, to get out.

In addition, the petitioner admitted in his testimony that he understood that if he went to trial and was
convicted, he could be sentenced to a much longer term than the 25 years that the state was offering.

                  In our opinion, the petitioner was operating from an enlightened position of self
interest when he decided to plead guilty. With the plea offer, the petitioner avoided pleading guilty
to or being found guilty of raping AH, and he avoided a much longer term of incarceration. Even
if the petitioner essentially “gave up,” he did so with the knowledge that accepting the state’s offer
had distinct advantages to being convicted of and sentenced for raping AH. To be sure, the evidence
and information uncovered and developed by post-conviction counsel could have been put to good
use at a trial, but a successful collateral attack on a guilty plea must meet a more exacting standard;
to obtain relief on the basis of ineffective assistance of counsel, a petitioner must demonstrate by
clear and convincing evidence that but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial. See Hill, 474 U.S. at 58-59, 106 S. Ct. at 370; Hicks, 983
S.W.2d at 246. The petitioner has not carried his burden.

               The final prejudice inquiry, upon which we will touch briefly, concerns the
petitioner’s complaint about trial counsel’s failure to challenge his confession as involuntary or
unreliable. Previously, we concluded that trial counsel’s performance was not professionally
unreasonable. The ineffective assistance claim fails for the additional reason that prejudice has not
been demonstrated.

                 Even were we to assume that the petitioner would have insisted on going to trial had
his confession to Detective Carter been suppressed, there are simply no demonstrable grounds upon
which to order suppression. See Brimmer v. State, 29 S.W.3d at 514-15 (because petitioner failed
to show that suppression motion would have been successful, no prejudice could have resulted from
counsel’s inaction). The petitioner’s invocation of the “Stockholm Syndrome” does not suffice. As
we previously mentioned, Dr. Schleicher never spoke to or personally evaluated the petitioner. In
light of the magnitude of Dr. Schleicher’s uncompensated efforts, which evidently involved review
of voluminous treatment records, the preparation of a written report, and in-court testimony, we find
it somewhat curious that this expert failed to or was not asked to take the logical, final step of
interviewing the petitioner. Nonetheless, Dr. Schleicher’s testimony, as it stands, raises only a
possibility that the petitioner’s motivation in confessing was to gain approval from Detective Carter.
That possibility, moreover, fails to establish the requisite “coercive activity on the part of law



                                                  -20-
enforcement[, which] is a necessary predicate to finding that a confession is not voluntary under the
Due Process Clause.” Id. at 512.

                 As for trial counsel’s failure to be prepared to use the “Stockholm Syndrome” to
explore with the jury the physical and psychological environment in which the confession was given,
we are not persuaded that the evidence would have been admissible. See State v. Brimmer, 876
S.W.2d at 79. Additionally, such evidence may have opened the door for the state to elicit the details
of the petitioner’s prior arrest, conviction, and treatment. The petitioner admitted in his testimony
that he did not plead guilty to the earlier charge of molesting his daughter. He contested his guilt and
was tried and convicted by a jury. The petitioner’s earlier course of action arguably could be
portrayed as inconsistent with the theory that the petitioner suffered from “Stockholm Syndrome”
at the time he confessed to Detective Carter. Almost certainly, his treatment records would have
been relevant.

                At one point during his post-conviction testimony, the petitioner was asked if, at the
time he pleaded guilty, was he thinking that his prior conviction could be used to prove his guilt of
the charges involving AH. The petitioner responded that he “thought most definitely that that was
going to be used against [him].” Offering “Stockholm Syndrome” testimony at trial would have
practically guaranteed the independent, substantive use of the prior conviction by the state, which
the petitioner was trying to avoid by pleading guilty.

                Given the record before us, we affirm the post-conviction court’s denial of relief
based on ineffective assistance of counsel. Although trial counsel’s performance was deficient in
certain respects, which we have explained, the petitioner is not entitled to relief because he has failed
to prove by clear and convincing evidence that he was prejudiced by such performance as required
pursuant to Strickland and Hill.

                              VII. Voluntariness of the Guilty Pleas

                When an accused opts to plead guilty, the plea must be voluntarily, understandingly,
and knowingly entered to pass constitutional muster. See Boykin 395 U.S. at 244, 89 S. Ct. at 1713.
In Tennessee, a plea must be voluntary and entered with full understanding of its consequences. See
State v. Neil, 810 S.W.2d 131, 134-35 (Tenn. 1991). Entry of a guilty plea constitutes a waiver of
constitutional rights including the privilege against self-incrimination, the right to confront
witnesses, and the right to a trial by jury. Boykin, 395 U.S. at 243, 89 S. Ct. at 1714. Waiver of
constitutional rights may not be presumed from a silent record. See id.

                We have carefully reviewed the record before us, which includes a transcript of the
petitioner’s plea submission, and we find no evidence that the petitioner was forced or coerced into
pleading guilty. The post-conviction/trial court observed the petitioner’s demeanor during the plea
submission, and the court made specific findings relative to the post-conviction proceeding that the
petitioner responded “rationally and appropriately to all the questions asked.” The petitioner offered
an ostensibly heart-felt apology after the court accepted his plea, found him guilty, and imposed


                                                  -21-
sentence. The post-conviction court did not accredit the petitioner’s claims that trial counsel
encouraged him to accept the plea offer because it was a “gift from God” or that trial counsel
otherwise invoked religion to pressure the petitioner to plead guilty. Inasmuch as the evidence does
not preponderate against these findings and credibility determinations, they are conclusive on appeal.

               Furthermore, we note that the state effectively impeached the petitioner’s on cross-
examination regarding his sworn admissions, responses, and statements when he pleaded guilty,
which were inconsistent with his denial of wrongdoing in connection with his post-conviction
claims. In particular, when the petitioner was asked why the post-conviction court should believe
that he was telling the truth, he responded, “My whole life I was conditioned to lie, from a young
child.”

                We have no hesitation in affirming the post-conviction court’s rejection of this claim
for relief.

                                          VIII. Conclusion

               The evidence in the record before us fully supports the post-conviction court’s
conclusion that the petitioner is not entitled to relief. The petitioner received effective assistance of
counsel, entered his guilty pleas intelligently, knowingly, and voluntarily, and was not erroneously
denied expert services at the post-conviction level. We, therefore, affirm the post-conviction court’s
ruling.




                                                         ___________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




                                                  -22-
