         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      August 1, 2006 Session

                      LOUIS STEELE v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Shelby County
                         No. 04-04089    James C. Beasley, Jr., Judge


                   No. W2005-02480-CCA-R3-PC - Filed November 15, 2006


The Appellant, Louis Steele, appeals the dismissal of his petition for post-conviction relief by the
Shelby County Criminal Court. Steele pled guilty to misdemeanor vandalism, harassment, and three
counts of driving under the influence (DUI). On appeal, Steele contends that his pleas were not
knowingly and voluntarily entered due to trial counsel’s ineffectiveness in: (1) failing to inform him
of the consequences of his pleas, specifically that three DUI convictions automatically qualified him
as a Motor Vehicle Habitual Offender; (2) failing to seek court-ordered medical treatment while he
was in jail or to pursue his release on bail; and (3) failing to properly conduct a pretrial investigation.
Following review, we affirm the judgment of the post-conviction court.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and
ROBERT W. WEDEMEYER , J., joined.

André C. Wharton, Memphis, Tennessee, for the Appellant, Louis Steele.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Scott Bearup, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                               OPINION

                                          Procedural History

       The Appellant collaterally challenges five convictions stemming from four separate
indictments. The first indictment was returned on December 17, 2002, and charged the Appellant
with DUI and reckless driving. The second indictment, returned February 11, 2003, charged the
Appellant with harassment and misdemeanor vandalism. The third indictment, returned June 10,
2004, and the fourth indictment, returned September 11, 2003, each charged DUI and reckless
driving. Under the terms of the plea agreement, the Appellant entered Alford guilty pleas to three
counts of DUI and single counts of harassment and vandalism. See North Carolina v. Alford, 400
U.S. 25, 37-38, 91 S. Ct. 160, 167-68 (1970). The reckless driving charges were dismissed. As
provided by the plea agreement, the Appellant was sentenced to: (1) eleven months and twenty-nine
days, with service of thirty days in confinement, for each DUI conviction; (2) eleven months and
twenty-nine days for vandalism, with service of thirty days in confinement; and (3) thirty days
confinement for harassment. All sentences were ordered to be served concurrently. Based upon
pretrial jail credit, the Appellant was released from custody upon entry of the pleas. Shortly
thereafter, the Appellant received notice of the State’s petition to declare him a Motor Vehicle
Habitual Offender. On February 25, 2005, the Appellant filed a pro se petition for post-conviction
relief alleging ineffective assistance of counsel and that his guilty pleas were involuntarily entered.
An evidentiary hearing was held on August 25, 2005, at which the Appellant, his brother, and trial
counsel were called as witnesses.

         According to the Appellant, neither of his attorneys1 ever explained or reviewed the State's
evidence with him, nor was he ever shown the videotapes of his field sobriety tests, despite multiple
requests to view them. However, he acknowledged that he was aware that some of the tapes had
been destroyed. The Appellant also testified that he suffered from severe hip problems and was in
tremendous pain during his incarceration in the jail. The Appellant testified that while incarcerated,
he was not given his prescription pain medication. According to the Appellant, he informed trial
counsel of this fact, prior to the entry of the pleas, and no action was taken by counsel to ensure
proper treatment. Moreover, trial counsel did not attempt to obtain a bond reinstatement in order to
secure outside medical treatment. The Appellant stated that trial counsel merely told him to plead
guilty so that he could get out of jail and then deal with his medical problems on the outside. The
Appellant further testified that, although he was advised by the trial court of the future consequences
of pleading guilty to the charged crimes, he was never advised that entering the pleas would
immediately qualify him as a Motor Vehicle Habitual Offender. The Appellant testified that he pled
guilty only because he needed a hip replacement operation and that he was actually innocent of the
DUI charges. He further acknowledged that three of his cases had been set for trial on at least three
occasions and, on each occasion, his attorney had been prepared to proceed to trial.

        Trial counsel, who represented the Appellant at the guilty plea hearing, testified that, in his
opinion, the Appellant had a good chance of being acquitted on two or three of the DUI’s based upon
the State’s lack of evidence. He further testified that he informed the Appellant of this fact. He also
informed the Appellant that the State had lost some of the videotapes of his field sobriety tests.
According to counsel, he never advised the Appellant to plead guilty. Trial counsel stated that the
Appellant informed him that he wanted to get out of jail so that he could have hip replacement
surgery. Accordingly, trial counsel stated that the Appellant’s guilty pleas were entered pursuant
to Alford v. North Carolina. Trial counsel acknowledged that he did not advise the Appellant that
the three DUI guilty pleas qualified him as a Motor Vehicle Habitual Offender.


         1
          Testimony indicated that the Appellant was represented by retained counsel at all general sessions level
hearings; however, following his indictments in the criminal court, he was represented by an assistant public defender.
Although appointed counsel was instrumental in negotiating the plea agreement, the Appellant was represented by initial
counsel at the guilty plea hearing.

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       On September 22, 2005, the post-conviction court entered an order denying relief. This
timely appeal followed.

                                               Analysis

        On appeal, the Appellant asserts that he was denied the effective assistance of counsel, and,
as a result, his guilty pleas were not knowingly and voluntarily entered. In order to succeed on a
post-conviction claim, the Appellant bears the burden of showing, by clear and convincing evidence,
the allegations set forth in his petition. T.C.A. § 40-30-110(f) (2003). The Appellant’s claim of
ineffective assistance of counsel stems from the following allegations: (1) that trial counsel and the
trial court failed to inform him of the consequences of entering the best interest guilty pleas to three
charges of DUI, which automatically qualified him as a Motor Vehicle Habitual Offender; (2) that
trial counsel failed to inquire about possible medical treatment while in confinement or seek
reinstatement of the Appellant’s bond so the Appellant could receive treatment while awaiting trial;
and (3) that trial counsel failed to investigate the facts of each case and the State’s evidence.

        In evaluating the knowing and voluntary nature of a guilty plea, the United States Supreme
Court has held that, “[t]he standard was and remains whether the plea represents a voluntary and
intelligent choice among the alternative courses of action open to the defendant.” North Carolina
v. Alford, 400 U.S. at 31, 91 S. Ct. at 164. In making this determination, the reviewing court must
look to the totality of the circumstances. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App.
1995); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). Indeed, a

       court charged with determining whether . . . pleas were ‘voluntary’ and ‘intelligent’
       must look to various circumstantial factors, such as the relative intelligence of the
       defendant; the degree of his familiarity with criminal proceedings; whether he was
       represented by competent counsel and had the opportunity to confer with counsel
       about the options available to him; the extent of advice from counsel and the court
       concerning the charges against him; and the reasons for his decision to plead guilty,
       including a desire to avoid a greater penalty that might result from a jury trial.

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

         Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent
that it affects the voluntariness of the plea. In this respect, such claims of ineffective assistance
necessarily implicate that guilty pleas be voluntarily and intelligently made. Hill v. Lockhart, 474
U.S. 52, 56, 106 S. Ct. 366, 369 (1985) (citing North Carolina v. Alford, 400 U.S. at 31, 91 S. Ct.
at 164).

       To succeed in a challenge for ineffective assistance of counsel, the Appellant must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Appellant must establish (1)


                                                  -3-
deficient representation and (2) prejudice resulting from the deficiency. In the context of a guilty
plea, to satisfy the second prong of Strickland, the Appellant must show that “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. at 59, 106 S. Ct. at 370; see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997). The petitioner is not entitled to the benefit of hindsight,
may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceeding. Adkins v. State, 911
S.W.2d 334, 347 (Tenn. Crim. App. 1994). This defense to the tactical decisions of trial counsel is
dependent upon a showing that the decisions were made after adequate preparation. Cooper v. State,
847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “[A] trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citing Tenn. R. App. P. 13(d)); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
conclusions of law are reviewed under a purely de novo standard with no presumption of correctness.
Fields, 40 S.W.3d at 458.

I. Consequences of the Guilty Pleas

        The Appellant contends that trial counsel, as well as the trial court, failed to inform him that
by pleading guilty to three counts of DUI, he would automatically qualify as a Motor Vehicle
Habitual Offender. In denying relief on this issue, the post-conviction court found that the “status
of motor vehicle habitual offender, is a civil statute[,] not a criminal enhancement.” The court
further concluded:

              The civil status of driving is not a right. . . . That is a privilege that is
       provided by our legislature. It is not a right.

               ....

               It does not carry any jail time. It does not carry any fines. It does not carry
       any kind of punishment other than you cannot drive. And you cannot drive, again,
       is not a right. It’s a privilege.

       Additionally, the post-conviction court noted that the Appellant was advised at the guilty plea
hearing that his convictions could be used to enhance any future punishments as required by law.
See Tenn. R. Crim. P. (b)(1); see also State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1977).

       a. Trial Court’s Failure to Inform of Consequences



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        It is fundamental that relief may be granted on a post-conviction petition only when the
sentence or conviction abridges a state or federal constitutional right of the defendant. T.C.A. § 40-
30-103 (2003); Overton v. State, 874 S.W.2d 6, 12 (Tenn. 1994). A requirement within the guilty
plea litany which exceeds the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709
(1969), is not a constitutional violation, and, as such, does not constitute a ground for post-
conviction relief.2 Housler v. State, 749 S.W.2d 758, 760 (Tenn. Crim. App. 1988). Advice to a
defendant entering a guilty plea that prior convictions might be used to enhance his sentence is not
constitutionally required; thus, this omission has no validity in a post-conviction proceeding. State
v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989). Likewise, the omission of a trial court to advise a
defendant with regard to a possible civil penalty is equally without constitutional foundation.

         b. Trial Counsel’s Failure to Inform of Consequences

        In support of his claim of trial counsel’s ineffectiveness, the Appellant relies upon R. L.
Seaton v. State, No. 03C01-9305-CR-0014 (Tenn. Crim. App. at Knoxville, Sept. 13, 1994), as
authority. This reliance is misplaced as the two cases are factually distinguishable. In Seaton, a
panel of this court affirmed the trial court’s grant of post-conviction relief following guilty pleas to
two counts of violation of the Motor Vehicle Habitual Offender Act based upon the petitioner’s
confusion as to “whether the petitioner entered the last plea with the understanding that he had the
option to try to set aside the civil judgment at a later date . . . or to waive any possible subsequent
challenge.”

        The Appellant cites to no authority, nor are we aware of any, which requires trial counsel to
advise a defendant of civil penalties or civil actions which could potentially arise as collateral
consequences of the guilty plea. To do so would require an endless discussion between counsel and
the client of potential consequences. As observed by the post-conviction court, if such requirement
existed, failure to advise a defendant prior to his pleading guilty that an increase in an automobile
insurance premium is likely could conceivably support a claim for post-conviction relief. We hold
such advice is not required, as it is not within the range of competency demanded of attorneys in
criminal cases. See Baxter v. Rose, 523 S.W.2d at 936. Accordingly, we conclude that the
Appellant’s argument that trial counsel’s failure to advise him that his DUI convictions qualified him
as a Motor Vehicle Habitual Offender is without merit.

         c. Involuntariness of Guilty Pleas

        Next, the Appellant argues that his guilty pleas were involuntarily entered because he was
unaware of the consequences of the pleas. This argument is similarly misplaced. A defendant’s plea
of guilty constitutes an admission in open court that the defendant committed the acts charged in the
indictment. Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1468 (1970). The plea,
however, is more than an admission; it is the defendant’s consent that judgment of conviction may


         2
           As observed by the United States Supreme Court in Boykin, a guilty plea implicates waiver of the defendant’s
constitutional rights (1) against compulsory self-incrimination; (2) to a trial by jury; and (3) to confront his accusers.

                                                           -5-
be entered without a trial. Id., 90 S. Ct. at 1469. A defendant’s sworn responses to the litany of
questions posed by the trial judge at the plea submission hearing represent more than simply lip
service. Indeed, the defendant’s sworn statements and admissions of guilt stand as witness against
the defendant at the post-conviction hearing when the defendant disavows those statements.

        In United States v. Broce, 488 U.S. 563, 573, 109 S. Ct. 757, 765 (1989), the Supreme Court
held:

        Our decisions have not suggested that conscious waiver is necessary with respect to
        each potential defense [or each collateral consequence] relinquished by a plea of
        guilty. Waiver in that sense is not required.

                ....

        Relinquishment derives not from any inquiry into a defendant’s subjective
        understanding of the range of potential defenses, but from the admissions necessarily
        made upon entry of a voluntary plea of guilty. The trial court complied with Rule 11
        in ensuring that respondents were advised that, in pleading guilty, they were
        admitting guilt and waiving the right to a trial of any kind. . . .

See also Tollett v. Henderson, 411 U. S. 258, 267, 93 S. Ct. 1602, 1608 (1973) (failure of trial
counsel to correctly appraise the constitutional significance, in retrospect, of certain historical facts
is insufficient to set aside an otherwise valid guilty plea); Brady, 397 U.S. at 757, 90 S. Ct. at 1473
(1970) (a guilty plea is not rendered invalid because the defendant misapprehended the penalties
attached to alternative courses of action); McMann v. Richardson, 397 U. S. 759, 770-71, 90 S. Ct.
1441, 1448-49 (1970) (a counseled defendant may not make a collateral attack on a guilty plea upon
the ground that he misjudged the admissibility of his confession). Accordingly, we conclude that
the Appellant’s challenge to the voluntariness of his guilty pleas is without merit.

II. Medical Treatment

        Second, the Appellant asserts that trial counsel was ineffective in failing “to file or research
appropriate motions” to obtain medical treatment while the Appellant was incarcerated or to attempt
to have the Appellant’s bond reinstated so that he could obtain medical treatment. According to the
Appellant, his lack of medical treatment was his primary motivation in accepting the plea agreement
and that if medical treatment had been provided, he would have proceeded to trial.

        Proof of deficient performance based upon an allegation that trial counsel failed to perform
requires more than merely a bald assertion of some lost potential benefit within the conviction
process. With regard to the Appellant’s allegation that trial counsel failed to perform as argued
above, the Appellant is required to prove by clear and convincing evidence: (1) that a motion to seek
medical treatment and a motion for reinstatement of bond would have been granted; and (2) that
there was a reasonable probability that the proceedings would have concluded differently if counsel


                                                  -6-
had performed as suggested, i.e., that the Appellant would not have pled guilty but would have
insisted on going to trial. The Appellant has failed to establish either of these factors.

         With regard to the Appellant’s argument that trial counsel failed to “file or research
appropriate motions” to obtain medical treatment, the Appellant fails to identify the type of research
trial counsel should have conducted and fails to reveal the “appropriate motion” that should have
been filed. Indeed, as noted by the trial court, there is no credible proof in the record that the
Appellant was deprived of medical assistance while incarcerated. With regard to trial counsel’s
failure to seek reinstatement of the Appellant’s bond, no proof was developed at the hearing with
regard to this issue. The single reference to this issue at the hearing indicates that the Appellant was
“in jail on a bond forfeiture” and that a motion to reinstate would have been “difficult.” Clearly, trial
counsel cannot be faulted for failing to file or pursue a motion which would have been meritless.
Accordingly, we conclude these allegations of deficient performance are not established.

III. Investigative Videos

         The Appellant also asserts that trial counsel was ineffective in failing to investigate the facts
and circumstances of his involvement in the crimes by failing to view the videotapes of the
Appellant’s field sobriety tests. He asserts that trial counsel’s failure to do so prevented his
utilization of possible defenses and led to his acceptance of the guilty pleas. Furthermore, the
Appellant asserts that trial counsel was deficient for failing to communicate with him regarding the
tapes.

        In denying relief upon this ground, the post-conviction court found:

        [Trial counsel] was aware of the fact through his discovery processes in General
        Sessions Court that the video tapes did not exist or had been lost or had been
        destroyed or whatever. And that he advised [the Appellant] as far back as General
        Sessions, he thought that the cases could be beat, could be won in trial.

                ....

        Again all those indicate that [the Appellant], at least in my mind, was aware of the
        deficiency of the State’s case, was aware of the potential that his lawyer said he had
        for possibly winning the case . . . . And he refused to do so because he wanted to go
        to trial.

                Then it’s obvious, again, . . . in the fact that his cases were set for trial four
        different times on four different trial dates . . . .

                ....




                                                   -7-
               It appears that [the Appellant] was well aware of the problems of the proof
       in the case and knew that it could be used to his advantage if he decided to go to trial.

               ....

               So I’m satisfied that [the Appellant] fully understood the nature of the facts
       against him and understood what the potential for winning the case or losing the case
       was based on the testimony that I’ve heard.

               So I don’t think you could say that he did not understand and knew the facts
       of the cases against him.

        Again, we conclude that nothing in the record before us preponderates against the post-
conviction court’s findings. Trial counsel testified that he investigated the case through the
discovery process and discovered that certain video tapes were no longer available. He stated that
he informed the Appellant that, in his opinion, the chances of winning at least two of the cases were
good. Additionally, the Appellant has failed to produce any proof of what beneficial evidence trial
counsel would have found had he further investigated the available videotapes. It was the
Appellant’s burden to present this proof at the post-conviction hearing. Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990). This issue is without merit.

                                          CONCLUSION

         Our review of the entire record affirmatively demonstrates that the Appellant’s guilty pleas
were made with sufficient awareness of the consequences of the pleas, and, as such, the guilty pleas
were voluntarily and knowingly entered. Mackey, 553 S.W.2d at 340. Based upon our conclusion
that trial counsel was not deficient in his representation of the Appellant, we affirm the dismissal of
the Appellant’s petition for post-conviction relief by the Shelby County Criminal Court.


                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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