        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  July 17, 2012 Session

              CELSO V. MELENDEZ v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                     No. 2004-B-1260     Monte Watkins, Judge


              No. M2011-01802-CCA-R3-PC - Filed November 13, 2012


The Petitioner, Celso V. Melendez, appeals the post-conviction court’s denial of his petition
for post-conviction relief from his guilty pleas to two counts of facilitation to deliver over
300 grams of cocaine and resulting effective sentence of twenty-four years. On appeal, the
Petitioner contends that he received the ineffective assistance of counsel because his guilty
pleas were based upon trial counsel’s assurance that he would be eligible for the boot camp
program. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that
the Petitioner received the ineffective assistance of counsel. Therefore, the judgment of the
post-conviction court is reversed, the judgments of conviction are vacated, and the case is
remanded for further proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed,
                            and the Case is Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

John E. Herbison, Clarksville, Tennessee, for the appellant, Celso V. Melendez.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

      On May 7, 2004, the Davidson County Grand Jury indicted the Petitioner for twenty-
one counts related to a conspiracy to deliver large amounts of cocaine from Texas to
Nashville. Celso Vilorio Melendez v. State, No. M2009-01489-CCA-R3-PC, 2011 Tenn.
Crim. App. LEXIS 76, at *2 (Nashville, Feb. 2, 2011). On August 25, 2005, the Petitioner
pled guilty to two counts of facilitation to deliver over 300 grams of cocaine, a Class B
felony, and received twelve-year sentences to be served consecutively. Id. at *3. The
Petitioner was sentenced as an especially mitigated offender with a release eligibility of
twenty percent. Id.

       Subsequently, the Petitioner filed a timely petition for post-conviction relief, claiming
that he received the ineffective assistance of counsel. Id. at *5. The post-conviction court
appointed counsel, and counsel filed an amended petition, contending, in relevant part, that
the Petitioner received the ineffective assistance of counsel because trial counsel failed to
advise him accurately about his eligibility for the boot camp program. Id. at **6-7.

       The following evidence was presented at the evidentiary hearing:

                      The Petitioner testified that he was aware that, if his
              guilty plea was set aside, he faced substantially more time in
              prison under the numerous charges in the original indictment.
              When asked why he still wanted to withdraw his plea, the
              Petitioner answered, “Because I believe that the law is not based
              on lies or deceit.”

                      The Petitioner’s native language was Spanish, but he did
              speak some English. The Petitioner was from El Salvador and
              had an eighth grade education. According to the Petitioner,
              there was not an interpreter present at his guilty plea hearing,
              and he did not know he was entitled to have one present. The
              Petitioner did not believe that, at the time of his plea, his English
              skills allowed him to adequately communicate with trial counsel.
              Prior to his arrest in another state and being brought to
              Nashville, the Petitioner had no prior dealings with the criminal
              justice system in Tennessee.

                      When asked about other plea offers made by the State
              before the one he ultimately accepted, the Petitioner stated that
              the first offer was nineteen years at 30% and that the second one
              was sixteen years likewise at 30%.               The Petitioner
              acknowledged that his release eligibility date under the
              sixteen-year sentence would be the same as under the sentence
              he accepted. The Petitioner also confirmed that the sixteen-year

                                               -2-
offer would have required him to plead guilty to a Class A
felony and, therefore, he accepted the twenty-four-year offer,
pleading to Class B felonies, in order to be eligible to attend
boot camp. The Petitioner stated that eligibility for the boot
camp program was a very important concern to him, elaborating,
“If it weren’t for that I wouldn’t have accepted it.” The
Petitioner claimed that he was told he would have the “same
time,” that no one told him “the twenty-four years was going to
end up being a lot more time. Because what the parole [board]
looks at are the two sentences. If I had known, I would have
accepted the sixteen-year sentence without any argument.”

        The Petitioner testified that trial counsel did not explain
eligibility requirements for boot camp to him, particularly the
provision that gave higher priority to inmates between the ages
of seventeen and twenty-five to enter the program. The
Petitioner acknowledged that he was thirty years old at the time
he entered his plea. After applying for boot camp once in
prison, the Petitioner was told it was “impossible,” receiving the
following explanation: “In the first place I was older. Second
time I had a long time, a long sentence. And third place, I had
no possibility because of the amount of drugs in the case.” The
Petitioner testified that, if trial counsel had discussed the factors
affecting his eligibility for, or likelihood of his going to, boot
camp, then he would not have accepted the plea offer and would
have insisted on going to trial. He reiterated that the reason he
accepted the longer, twenty-four-year sentence rather than the
shorter, sixteen-year sentence was because he “was going to go
to boot camp.” Furthermore, the Petitioner stated that trial
counsel did not explain how the parole system worked and that
he did not understand what release eligibility meant.

        When asked if he had any other concerns with trial
counsel’s representation, the Petitioner replied, “I think that
[trial counsel] was trying to do the best for me. I think he also
made the same mistake that I made” by “[n]ot investigating
everything about the plea bargain.” The Petitioner confirmed
that he had a good rapport with trial counsel and that he trusted
his judgment.



                                 -3-
        Upon questioning by the trial court, the Petitioner
testified that he had been before the parole board one time.
According to the Petitioner, the parole board said to him that he
“had to fulfill one complete twelve-year sentence and then start
on the other one, flatten it.” When asked when would he next
go before the parole board, the Petitioner responded, “The last
time they gave me six years and told me I would not be able to
come back until 2012.”

       On cross-examination, the Petitioner confirmed that he
had reviewed the English transcript of his guilty plea hearing
and that he remembered the proceedings. He stated that he
conversed with trial counsel in both English and Spanish, and
while there was confusion at times, the Petitioner was not
troubled by their communication. The Petitioner confirmed that
he was reviewed for parole in 2006, approximately six or seven
months after his transfer to the DOC.

       When asked if he mentioned anything about boot camp
to the trial judge, the Petitioner answered, “I don’t think
anybody had the opportunity to talk on that day.” The Petitioner
did not recall the trial judge asking him whether he had been
promised anything in exchange for his plea or whether he had
any questions for the court. The Petitioner understood that, if he
was convicted of all the original charges in the indictment, he
could spend the rest of his life in prison.

        Trial counsel then testified he was retained to represent
the Petitioner after the preliminary hearing. Trial counsel
testified that he obtained discovery in the Petitioner’s case and
familiarized himself with the allegations against the Petitioner.
Trial counsel, who spoke Spanish, although not perfectly, met
with the Petitioner, and they were able to communicate
effectively[.]

       ....

       Trial counsel opined that, given the amount of drugs
involved and the fact some of the actions occurred in a school
zone, the Petitioner faced a substantial amount of time in jail if

                               -4-
convicted. According to trial counsel, the district attorney
general did not make an offer at first “because she wasn’t sure
what she wanted to do with it for [the Petitioner].” Eventually,
the prosecutor made an offer of twenty-six years at 30%, and
that offer did not change for a long time. The offer was
rejected, and trial counsel prepared for trial. Trial counsel later
went and spoke with the prosecutor and “gave her some light to
the case that she hadn’t had before,” and the prosecutor returned
with an offer of nineteen years. Trial counsel did not recall
there ever being a sixteen-year offer.

        Trial counsel still did not like the nineteen-year offer:
“That’s an A felony. He won’t even have a chance to go to boot
camp. He won’t be eligible for any programs and depending on
his immigration status it might end up being he spends a lot
more time in jail.” Thereafter, trial counsel reviewed his
“charge and guidelines” and formulated the twenty-four-year
offer (two consecutive twelve-year terms) as a 20% mitigated
offender. Reluctantly, the prosecutor agreed to the deal.

        Trial counsel confirmed that there was no factual basis
for the Petitioner being a mitigated offender[;] it was simply a
benefit of the proposed plea agreement. Trial counsel testified
that he then conveyed the offer to the Petitioner and
approximated a parole eligibility date for him; he calculated that
the Petitioner would be release eligible after service of 4.8 years.
The Petitioner had approximately two years of jail credit at the
time of his plea and sentencing. Trial counsel said that he never
promised the Petitioner that he would be released the first time
he went before the parole board.

       Trial counsel testified that he discussed boot camp with
the prosecutor but, while she would not oppose the Petitioner’s
participation in the program, she also would not recommend him
for the program. According to trial counsel, boot camp
participation was not a quid pro quo part of the plea agreement.
Per his discussions with the prosecutor, trial counsel did not
discuss boot camp with the trial judge so the prosecutor would
not have to formally oppose it, thereby, protecting the
Petitioner’s eligibility for boot camp. Trial counsel said that he

                                -5-
never promised the Petitioner that he would be admitted to the
boot camp program and that he never told the Petitioner he
could withdraw his plea if he was not accepted into boot camp.

       Trial counsel did not recall the Petitioner at the guilty
plea hearing ever not wanting to enter a plea or ever not being
able to answer questions appropriately. Trial counsel also
recalled that an interpreter was present for the plea hearing and
believed that the Petitioner understood what was going on
during the proceedings. The Petitioner did ask trial counsel one
question during the hearing, but trial counsel believed they
resolved the matter.

       On cross-examination, trial counsel was asked to detail
what information he told the Petitioner about boot camp:

                 I told him that there’s programs available.
       I don’t—I think I explained what boot camp was.
       . . . I think I did tell him the program takes a few
       months to complete. I said, “When you first
       go”—usually what I say is, “When you first go to
       M.T.X., they—there is a sorting out process that
       they assign, kind of, where you are.” I said,
       “because there is no weapons involved in this
       case, and you don't have a prior record,” things of
       that nature—I said, “you should be eligible”—the
       facilitation to deliver over a certain quantity—I
       think it was over three hundred grams. I told him
       that that could actually get him out sooner, his
       release eligibility date, if he qualified for the
       program.

When asked if eligibility for boot camp was important during
plea negotiations, trial counsel responded, “I wanted him to get
the B so he would have the opportunity to have it, but [the
prosecutor] wasn’t going to give a recommendation.” According
to trial counsel, maintaining potential eligibility for boot camp
was an important factor to both [him] and the Petitioner. Trial
counsel testified that he was not aware of the statutory
preference for persons seventeen to twenty-five years of age, but

                                -6-
                he did know the older a defendant was “the harder it [was] to get
                in.” Furthermore, trial counsel did not look up the boot camp
                statute during the plea process and did not advise the Petitioner
                that persons under the age of twenty-five have a better
                likelihood of being admitted into the program.

                       Trial counsel did not discuss the effects of accepting the
                longer, aggregate consecutive sentence, as opposed to the Class
                A felony sentence offer. Trial counsel agreed that it was
                unusual for someone to make parole upon their first application,
                especially with a long sentence. When asked if he told the
                Petitioner “that twenty percent was just a starting point and that
                parole may well not be granted at the first opportunity,” trial
                counsel replied that “I don’t think I said it in that context.” The
                Petitioner informed trial counsel that he was upset when he was
                put off for parole consideration until 2012.

Id. at **6-15 (footnotes omitted).

        The post-conviction court denied the petition for post-conviction relief. Id. at *15.
On appeal, this court concluded that trial counsel rendered deficient performance by advising
the Petitioner that he was eligible for the boot camp program when the Petitioner, a drug
offender, was not eligible. Id. at **23-24. This court remanded the case in order for the
post-conviction court to determine whether the Petitioner was prejudiced by the deficiency.
Id. at *28. On July 11, 2011, the post-conviction filed an order denying post-conviction
relief, stating as follows:

                The Petitioner would have entered into a plea “even if there was
                no offer of boot camp.” Specifically, the Petitioner maintained
                that he would have pled to a sixteen[-]year sentence instead of
                a twenty-four year offer if he had known that he was ineligible
                for boot camp.1 Although, trial counsel testified that there was
                never a sixteen[-]year offer only a nineteen-year offer at 30%.

The court further found that the Petitioner understood boot camp was an option, not a
guarantee, and that the plea colloquy from the plea hearing demonstrated that he pled guilty


        1
         On direct examination, the Petitioner testified, “I am going to explain it again. The reason I
accepted the twenty-four years was because I was going to go to boot camp. If not I would have signed the
sixteen years at thirty percent, because that’s eight years difference.”

                                                  -7-
freely and voluntarily.

                                        II. Analysis

       The Petitioner claims that he was prejudiced by trial counsel’s incorrectly assuring
him that he was eligible for the boot camp program. The State argues that although trial
counsel incorrectly advised the Petitioner about boot camp, the post-conviction court
correctly determined that the Petitioner was not prejudiced because admission into the boot
camp program was not the only reason the Petitioner accepted a plea offer. The Petitioner
accepted an offer to avoid the possibility of a life sentence.

       To be successful in a claim for post-conviction relief, a petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the 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. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Notably,

                                              -8-
               [b]ecause a petitioner must establish both prongs of the test, a
               failure to prove either deficiency or prejudice provides a
               sufficient basis to deny relief on the ineffective assistance claim.
               Indeed, a court need not address the components in any
               particular order or even address both if the [petitioner] makes an
               insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). In the context of a guilty plea,
“the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s errors, he
would not have pleaded guilty but would have insisted upon going to trial.” Hicks v. State,
983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S. 52, 59
(1985).

        Based upon our de novo review, we disagree with the post-conviction court and
conclude that the Petitioner was prejudiced by trial counsel’s deficient performance. The
Petitioner’s and trial counsel’s testimony established that the State made previous plea offers
to the Petitioner. The Petitioner testified that the first offer was for nineteen years at thirty
percent and that the second offer was for sixteen years at thirty percent. Trial counsel
testified that the first offer was for twenty-six years at thirty percent and that the second offer
was for nineteen years at thirty percent. Regardless of the discrepancies in their testimony
about the lengths of the offers, one fact is clear: The State’s third offer for an effective
sentence of twenty-four years, which the Petitioner accepted, was significantly lengthier than
the previous offer of sixteen or nineteen years. The Petitioner testified that he accepted the
offer for the twenty-four-year sentence because the sixteen-year offer would have required
that he plead guilty to a Class A felony, making him ineligible for the boot camp program.
Likewise, trial counsel testified that he was dissatisfied with the State’s nineteen-year offer
because the Petitioner would have been pleading to Class A felony and, therefore, would
have been ineligible for the boot camp program. Thus, the testimony of both witnesses
established that the Petitioner accepted the State’s offer for the effective twenty-four-year
sentence in order to be eligible for boot camp.

       The post-conviction court found that the Petitioner failed to established prejudice
because he testified that he would have entered a plea and accepted the State’s second offer
even if he had known that he was ineligible for the boot camp program. In Grindstaff v.
State, 297 S.W.3d 208, 211 (Tenn. 2009), the petitioner pled guilty to five counts of
aggravated sexual battery. Pursuant to the plea agreement, the trial court was to determine
the length and manner of service of the sentences. Id. After a sentencing hearing, the
petitioner received an effective sentence of thirty years to be served at 100%. Id. at 212. The
petitioner filed a petition for post-conviction relief, arguing that he received the ineffective
assistance of counsel. Id. The testimony at the evidentiary hearing established that the

                                                -9-
petitioner had turned down the State’s initial offer of eight years to be served at 100% and
subsequent offers involving confinement because trial counsel had assured him that he would
be eligible for alternative sentencing. Id. at 213-14. However, the petitioner was not eligible
for probation or community corrections. Id. at 218. Our supreme court concluded that
counsel rendered deficient performance and stated the following regarding prejudice:

              On two different occasions . . . , the Petitioner turned down
              offers by the State which demanded at least eight years of
              confinement in prison. One of those proposals provided for
              concurrent service for each of the offenses at the minimum term
              permitted by statute. In our view, the record demonstrates a
              reasonable probability that if trial counsel had adequately
              researched the applicable law and informed the Petitioner that
              alternative sentencing was not available, he would not have
              entered an open plea of guilt to the several counts in the
              indictment.

                     ....

                     The record demonstrates by clear and convincing
              evidence that the performance of trial counsel fell below the
              range of competence required in criminal cases. The evidence
              in the record also establishes a reasonable probability of
              prejudice, because the Petitioner’s “ability to make an intelligent
              decision regarding [the] plea offer[s] [was] severely
              undermined.” [United States v.] Morris, 470 F.3d [596,] 603
              [(6th Cir. 2006)] (quoting United States v. Morris, 377 F. Supp.
              2d 630, 638 (E.D. Mich. 2005)). The standards established in
              Strickland and Hill require that the convictions be set aside and
              the cause be remanded for trial.

Id. at 222.

       As in Grindstaff, trial counsel’s deficient performance in this case severely
undermined the Petitioner’s ability to make an intelligent decision regarding the State’s plea
offers. Therefore, we conclude that the Petitioner was prejudiced by trial counsel’s
incorrectly advising him that he would be eligible for the boot camp program if he accepted
the State’s third offer. The Petitioner is entitled to post-conviction relief.




                                             -10-
                                      III. Conclusion

       Based upon the oral arguments, the record, and the parties’ briefs, we conclude that
the Petitioner received the ineffective assistance of trial counsel. The judgment of the post-
conviction court is reversed, the judgments of conviction are vacated, and the case is
remanded for further proceedings consistent with this opinion.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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